*1 S010685. Dec. [No. 1994.] PEOPLE,
THE Plaintiff and Respondent, CRITTENDEN,
STEVEN EDWARD Defendant and Appellant.
Counsel Defender, Laethem, the Supreme under Fern M. State Public appointment Defenders, Court, Public Ellen J. State Albert W. Brodie and Eggers, Deputy for Defendant and Appellant. Williamson, General, Chief Assistant
Daniel E. Attorney George Lungren, General, General, Anderson, Edmund Attorney Robert R. Assistant Attorney General, Witt, and for Plaintiff Jesse Attorneys D. and McMurray Deputy Respondent.
Opinion circumstance of a and
GEORGE, J. guilt phase Following special trial, Crittenden found defendant Steven Edward guilty a jury capital Katherine and William Chiapella murders and the robbery first degree Code, 187, 189, 211, (Pen. 212.5).1 murders, As to both found jury §§ that defendant used a personally (§ deadly weapon (b)), subd. found true the circumstance that special allegation defendant committed the 190.2, murders in the course of a (§ (a)(17)(i)). subd. robbery With respect Katherine, to the murder of found true the jury additional special circumstance 190.2, defendant committed allegation murder (§ multiple (a)(3)), William, subd. and with respect the murder of found true jury the additional circumstance special that the allegation murder involved the 190.2, infliction of torture (§ (a)(18)). subd. The also found defendant jury of the additional offenses of guilty from with force or violence escape jail (b)), (§ subd. and the Kronen subd. kidnapping (§ Douglas (a)). trial,
Following death penalty phase jury imposed After defendant’s penalty. motion for modification of denying the verdict the death imposing sentences on the penalty, imposing other convic- tions, the court sentenced defendant to death for the murders of Katherine and William This (b).) is automatic. Chiapella. appeal (§ subd. We affirm the in its judgment entirety.
Facts (held The evidence at trial in Placer defendant’s suc- County following cessful motion for of venue from change Butte which the County, City 13, 1987, located) Chico is established that on defendant entered the January *20 and, Chico residence of William and Katherine Chiapella by threatening Katherine, forced her to write a check to defendant in the personal payable $3,000. amount of Defendant tied both William and Katherine then up to kill both of them. Defendant proceeded was arrested and subsequently 11, 1987, confined in On defendant jail. from and con- May escaped jail fronted Kronen inside Kronen’s residence. Defendant forced Kro- Douglas Sacramento, nen at to drive defendant to where defendant was gunpoint apprehended.
I. Guilt Phase Evidence
A. The case prosecution’s
1. The crimes Chiapella In (hereinafter, William), Dr. William Chiapella years age disease, wife, locomotion from and his Katherine Chia- suffering impaired (hereinafter, Katherine), 67 lived at 1416 pella years age, Downing statutory 1 All further references are Code unless otherwise indicated. to the Penal 9, 1986, Katherine submitted a order form job in Chico. On October Avenue at California State University, Development Department at the Employment Chico, $4.50 to work at the rate of a student perform yard seeking employ defendant, Katherine hired who then was hour. On the following day, per institution, that but enrolled as a student at Employment Development In middle of indicate he failed to for work. records appear Department month, defendant mentioned the his Diana. job girlfriend, her to defendant. Julie sublet Gearing apartment In mid-December defendant to discuss defendant’s landlord January telephoned Early cash because the landlord had been unable to defendant’s rent payment, due to insufficient funds. On defendant January defendant’s check in order to reschedule their from meeting January contacted his landlord it all” time. him that defendant would at that January advising “pay Meanwhile, 6, 1987, form at on William had submitted a January job-order someone to seeking perform Employment Development Department, $5 rate of work at the hour. yard per Bullard,
Edith last saw the when she Chiapellas’ housekeeper, couple time, their on At the she observed that cleaned residence 1987. January no accumulated mail. She the desk was neat and there was study floor runner under the recalled five earlier cleaned a days having plastic desk. On the Ms. Bullard the Chiapellas, morning January telephoned Katherine she had the flu. informing roommate, noticed that a knife
That same John defendant’s day, Eyrich, (used he owned earlier in the meat business to his father years packing carcasses) drain blood from animal was Defendant informed Eyrich missing. that defendant it to stereo and would return it the was his using repair following day. William and
On Dr. morning January Joseph Chiapella, son, That William Katherine’s with his mother spoke by telephone. morning, Steunkel, friend, her a When Janet to wish telephoned family good trip. *21 16, Steunkel informed on the until January him she was not leaving trip 15, but never William advised he would on 14 or January telephone again did so. after 1 on Katherine of slacks Shortly p.m. January brought pair cleaners, to a local the following day, be cleaned dry they by requesting 13, the but she never returned to collect them. At 3 on January p.m. min- for less than 30 attorney, Laughlin, met with their Robert Chiapellas him travel to San Francisco utes. The informed they planned Chiapellas mother. to attend the theater and visit Katherine’s following day was his washing At 1 on Cox January Rodney approximately p.m. (located four homes from the Chiapellas’ truck in front of his residence residence), he when noticed a man feet on the college-age twenty away, African-American, side of the street. The individual was same approximately tall, 6 feet inches to 6 feet 3 inches 180 to weighed approximately white hooded sweatshirt and was with front wearing long-sleeved, pounds, front, and on the as well as black head- pockets lettering “walkman”-type residence, Cox observed the man walk toward the and Chiapella phones. later him the street one hour saw and walking along up approximately later, A minute Cox observed man cross to Chiapellas’ driveway. side of the street. Cox did not defendant at an identify “in-person” other five resembled but did select defendant’s as one of which lineup, photograph trial, At Cox identified the man as defendant. the man he had seen. 1987) that she (who married defendant in November testified Diana (at her in with defendant on which time January parents moved On she and her with financial January discontinued providing support). left with had an over Defendant their money. apartment defendant argument at with the returning bicycle approximately a bicycle approximately p.m., time, Diana he had received hours later. At that defendant informed two a budget from his father in Texas and asked her prepare some money $3,000. based assets upon bank, he cashed a to a where
On the defendant following day, proceeded 13, 1987, $3,000, made out to defendant and dated check January determined had not been It was the check executed Katherine. later recorded the she entered in Katherine’s check register, although customarily $100 bills. Defendant received the cash primarily checks she had written. date, of late rent to his landlord the amount On that defendant in cash paid $1,277.50, lease 1987. July all sums due on the through representing plus Court, North Municipal $85 in cash an traffic fine at County Defendant paid cover $144.63 to Stores to Safeway $112 in cash to K-mart and and paid defendant funds. That day, he had written on insufficient checks previously knife, blood was determined to contain his roommate’s which later returned the knife blade. on the recess of finger Ms. on January of January again
On the morning evening newscarrier no answer. The but received Bullard telephoned Chiapellas it at he delivered Record testified who delivered the Chico Enterprise he delivered 13. On the following day, on January approximately p.m. time, day’s that the previous the same noticing at approximately newspaper his at Chiapella stopped remained on the On January Joseph porch. paper knock, and, a letter to his dropped no receiving response residence parents’ *22 Cox, 16, Lois a neighbor, in January the slot the front door. On through doorbell, and, no residence, receiving rang stopped by Chiapellas’ in a comer of the On accumulating porch. stacked the newspapers response, Powers, removed the three morning another day Audrey neighbor, the same a note. evening leaving and four newspapers, concern, entered his
After Ms. Bullard her expressed Joseph Chiapella a amount of mail that had residence on 17 and noticed January large parents’ door, in front including in the near the mail slot entryway accumulated bedroom, the main he had left on 15. envelope January Upon entering father, dead. entered the bathroom and discov- discovered his Joseph Joseph words, in on the mirror. The ered the written “just beginning” lipstick same words were written on the mirror in another bathroom. went Joseph friends, service, and into the kitchen and called two “911” his emergency floor, her, wife. While he saw his dead on the kitchen on mother speaking the other of the counter. side Hall,
Dr. Gwen a forensic who examined the bodies pathologist them, residence and later on testified as to their condi- performed autopsies tion. We summarize this at considerable because it bears testimony length, some of the issues raised on upon including sufficiency appeal, evidence of torture. back,
Katherine was discovered on her and face covered her head lying a blanket. Her mouth had been her and her hands tied behind back gagged with three separate bindings consisting strips strawberry-patterned defendant, (When cloth. Ms. sublet her she left behind Gearing apartment a set of sheets and a Katherine’s strawberry-patterned matching pillowcase.) skirt was around her and she was not pulled up hips, wearing underpants, there no although was evidence of sexual assault. Fecal matter was present out, on her area. Her its pubic contents was located purse, spilled nearby. death, Prior to Katherine’s her shirt had been above her chest up pulled breast, and a knife had been thrust into Katherine’s left large deeply causing to the and aorta and The knife had been damage lung four ribs. breaking wound, moved within the a backwards and was body, creating C-shaped death, from the at the it Prior to protruding body time was discovered. Katherine had received an additional stab wound to her abdomen upper navel, above the two inches with the knife that consistent size deep defendant returned to Eyrich. death,
Prior head Katherine also had suffered massive to the injuries and face. She had laceration above three-and-one-half-inch-long incurred forehead, the left the fractured which was caused eye, bone of the exposing instrument, blow from a hard a dented and by strong bloody from possibly *23 death, fire found next to extinguisher William’s Prior body. her nose had been broken and she had received a minor relatively to her lower injury lip. trauma, She had died from from the multiple primarily forehead and chest wounds.
William was discovered on the his lying rug, hands tied behind his back to chair, over, a desk which had been knocked his head and face a by covered A pillowcase. large knife found inside his chest had been driven completely inside his even the handle was not visible A body; above the skin surface. mouth, sock was used to his and there gag was a loose around his binding neck. He had suffered 13 (1) wounds. A and contusion laceration large trauma, above had been inflicted right eye blunt a fracture in by causing skull and in the ear (2) canal. There was a deep bleeding large separate, blunt-force laceration on (3) his forehead above wound higher No. 1. There of, was another blunt trauma wound to the the same right approximately as, level on the face (4) wound No. 2. There was a blunt trauma wound (5) behind the ear. Two right blunt-force lacerations had been separate, small, inflicted in (6) the center back of the head. A cut a superficial by instrument such as a knife had been made on the left front of the sharp neck. (7) A (8) laceration had been made at long the center front of the neck. A wound had been stab-type made with a instrument toward the sharp right (9) side of the neck. lower William’s had been fractured blunt force. jaw by (10) fractured, The was upper jaw with blunt-trauma to the severely injuries and tissues beneath it. upper lip There was a wound on the left upper chest caused knife by large been driven inside the having completely force, with a body amount of as if someone had on the knife great stomped or had used (such as the fire heavy object found near the extinguisher on it. The wound was made body) pound several thrusts of the using back, knife. There was a wound to the lower left caused the knife (wound 11). (13) from the other side No. There protruding through body were two wounds above wound No. inch approximately one-quarter instrument, knife. caused deep, by sharp consistent size with Eyrich’s testified, that, Hall Dr. based the amount of internal and external upon occurred, 1, 2, 3, 4, 5, 6, 7, 8, 11, that had wound Nos. and 13 were bleeding The wounds would have caused if inflicted while William premortem. pain was conscious. Wounds Nos. could have caused William’s death. trauma, The cause of death was caused chest multiple primarily by large wound and to the side of the head. injuries right
Dr. Hall was unable to determine had died first. which of the two victims The the wounds could not determine the in which pathologist upon sequence inflicted, inflicted William had been nor which of knives had the three *24 The blows received the victims specific injuries. by were sufficient to cause unconsciousness, and it was each victim had been probable unconscious death, it could not be determined for prior although how long. checks, cash,
Two made out in crumpled Katherine’s but handwriting and the check unsigned numerically immediately cashed defend- preceding by ant, were found inside the front of the residence. A doorway bloody copy 13, 1987, the San Francisco Chronicle dated was found newspaper January on the kitchen table. In the open defendant’s name and current address study, were written in defendant’s on a found on the sheet of handwriting paper desk. Defendant’s left was obtained a Wells auto- thumbprint from Fargo matic teller found on the desk. A slip shoe was discovered on print floor runner beneath desk. An unused plastic of cloth similar portion used on the victims was bindings found beneath a chair near the desk. checks had been Envelopes containing and the contents strewn on opened the desk and floor. There were linear on the from the markings carpet study to the bedroom where William was found. 21, 1987,
On Chico January Police Department Investigators Rodney O’Hem and Moore Terry and Robert Horton Captain executed a search warrant on defendant’s on West 9th Street. The officers located apartment sheets with a that matched the strawberry pattern found on the design used to tie bindings The officers did not up Chiapellas. find pillowcases matching sheets in the The officers seized a apartment. black pair tennis shoes a small amount having of blood on them and possessing on the design soles that to match the left the shoe proved design print located in the The Chiapellas’ study. officers found a white hooded sweat- shirt with on radios, the front and also lettering located two “walkman” one of which had a black headset.
2. arrest Defendant’s 21, 1987, On January while officers still were at the present apartment, arrest, defendant arrived and was arrested. At the time of his defendant alibi, an provided he had been out of stating town with “partying” his and girlfriend roommate all and on day evening 1987. January an interview at the During station that defendant police evening, gave following version of the events. Defendant told the he had met police Katherine in at the August 1986 Employment Development Department when she an posted advertisement for a work yard Defendant told job. officers that three later days Katherine him in her vehicle and picked up paid $50 him after he allowed her to him. Between orally copulate August time, over occasions. Each Katherine met on picked they
December 1986 $200 $300 him After cash. paid approxi- him in her vehicle up wrote him a or November Katherine in October meetings, four mately America, Bank of and defendant deposited $550 on an account at check for his account. the check in *25 in he and Katherine went to an which
Defendant described episode from the retrieved a doll blow-up in Chico. Katherine Lodge Thunderbird room, vehicle, while motel and watched trunk carried it inside the of her doll, which he received with the an act for defendant had sexual intercourse 9, 1987, $1,000 defendant went to Katherine and $100 bills. On January 96, Katherine where Katherine had registered. the Thunderbird room Lodge, and machine on his a battery operated penis watched while defendant placed climaxed, the seminal fluid. Katherine Katherine swallowed after which $3,000 he had Defendant told the police check for this activity. him the gave had arrived on the check on later stating received the check January at the did not meet he and Katherine Defendant told police 14. January house, to their residence. that he never had gone and Chiapellas’ interview, that on January also told the officers defendant During Following noon. his until approximately he remained at apartment defendant, in a black and gray clad with his then girlfriend, minor argument 1:30 and outfit, at p.m. went to Acker Gym, arriving Puma warm-up with a basketball location he met to three hours. At that two remaining He returned coach, Freitas, and Gerald Boles. as Shawn Hicks Kirk as well went he and his then girlfriend at p.m., to his apartment approximately film, “The After.” Morning to see the out that evening $1,250 he received a student loan payment Defendant told police $1,250 had no but in December October and another payment in order repair a knife from Mr. Eyrich Defendant borrowed other income. shoes his black tennis he had not worn Defendant stated his stereo antenna. that He remembered had not lent them anyone. fall and since the previous when he moved in the had been apartment sheets the strawberry-patterned interview, had his defendant as the The same day there in December 1986. hair cut short. very or automobile in the Chiapellas’ not find semen stains any
The did police automobile. residence or in the Chiapellas’ or materials sexual aids any made out checks not reflect earlier account did Katherine’s checking $550 but not reflect a deposit account did Defendant’s bank defendant. funds, on and that for insufficient had been returned that 43 checks did show The funds. for insufficient closed the account was December also discovered that neither Katherine nor defendant had at registered police 9,1987, Thunderbird on and that there was no room Lodge 96 at January motel. Coach Freitas and Mr. Boles testified had met with defend- they ant, shoes, who was “sweats” and tennis wearing gray carrying radio, 7, 1987, “walkman” at the on but not thereafter. gym January 3. escape jail Defendant’s from
On defendant was an inmate in the Butte at May County jail Oroville, trial on the above awaiting described offenses. That afternoon defendant could not be located at the It was discovered that the wire jail. mesh screen over a window had been forced jail window had been open, broken, and an was from the orange window. jumpsuit hanging jail *26 Kronen,
At on that who lived approximately p.m. day, Douglas one-half mile from the Butte entered his residence. Kronen County jail, heard a noise defendant, and discovered whose arms cut were and a bleeding, pointing gun Kronen, at him. Defendant told “Don’t do I don’t want to nothing stupid. floor, hurt ordered him to lie you,” down on the and threw a blanket over his foot, knee, head. Defendant a or placed hand on Kronen’s back and informed him that defendant “was to him going have to” tie Defendant had up. removed and tom into a in pieces that had been one of Kronen’s pillowcase knife, children’s bedrooms. Defendant a grabbed his foot on Kron- placed back, said, en’s and “I can’t drive.” for his and that of his Fearing safety children, school, who were due to return from Kronen offered to drive defendant wherever he wanted to go. track,
The two men drove in a away once stopping purchase gasoline. truck, When Kronen reentered the defendant instructed him to “head for Chico,” and Kronen until noticed several vehicles on complied, they police at which highway, defendant moved down in his seat and instructed point Kronen to “head for Sacramento.” On the defendant volunteered to way, Kronen that defendant had not committed “the When Kronen killings.” innocent, that defendant return suggested if he was re- jail defendant he would rather be sponded dead than in and that he did not feel he jail, would receive a fair trial because he was African-American. Defendant said he did not know how his sheets to be at the residence happened Sacramento, who were persons killed. When reached they defendant told Kronen to let him out of the truck. Kronen did so and contacted the police. foot, Later that defendant, after a brief day, chase on the police apprehended who was a water carrying at the time. pistol
The trial court admitted evidence of two subsequent escape attempts defendant, on the solely issue of as evidence of flight consciousness of guilt. 26, 1988, defendant, an at 1127c.) still inmate Butte On
(§ September section, Corbin, a into defendant’s grabbed Jim guard, County jail, pulled throat, him cell chest and and slammed bars. against him around break,” came to his rescue. A and two officers say, “jail Corbin was able “shank,” blade, a hacksaw and three stuffed jumpsuits made of gun soap, cellblock, the bars on one cell door were inside defendant’s discovered After defendant’s transfer to Placer County that block had been sawed. motion, on to that on defendant’s of venue jail change county following 9, 1989, defendant had cut the plaster March it was discovered that through cells, the hole with in the of one of the jail patching tape ceiling Defendant, he wished to in order ceiling stating get through toothpaste. inmate how to through from the had instructed another grind to escape jail, wall, as a tool to make a hole in a using the brick. Defendant had attempted a vent he had removed.
B. The case defense $3,000 in financial aid during period Defendant received over student Widmon, who delivered Paul a newscarrier to December 1986. September of the Chiapellas’ Bee the neighborhood the Sacramento newspaper residence, and January one between January testified that early morning 17, 1987, truck past man drive a pickup he noticed a dark-complected *27 truck. did not own or a pickup residence. Defendant possess Chiapella had Laughlin testified Bob Attorney One of the officers investigating 13, 1987, had the Chiapellas him the afternoon of January informed that on office, three to from his located 3:15 and 3:20 p.m. between departed p.m. residence. from the Chiapellas’ and ten minutes automobile by four miles was residence and the Chiapella The distance between defendant’s apartment route between those timed the shortest miles. A defense investigator 2.6 minutes, bicycle vehicle it took to 10 by that points, determining minutes, distance. to 40 minutes to traverse that and on foot 39 13, 1987, wife, Diana, defendant and that on January testified
Defendant’s After,” film, at a “The Morning of the attended the 8 p.m. showing she at Chico, had been shown the film confirming in the theater manager theater son, that the Chiapellas’ Detective O’Hem testified that time on that date. on January to Katherine told him he last had spoken Dr. Joseph Chiapella, or 1987. above, the found defendant jury the evidence described
After hearing (with that the murder special findings of two counts of first degree guilty committed the course of a during and and murders were willful premeditated for with two enhancements use of and robbery), personal deadly weapon, of one count of also true four robbery, charged finding special- guilty The also jury guilty circumstance found defendant the of- allegations. from fenses and escape jail kidnapping. Penalty
II. Phase Evidence did in The additional evidence The prosecution present aggravation. was instructed to consider the circumstances of aggravation jury murders and as robbery kidnapping, battery well as the the prison guard. defense
The evidence in In presented following mitigation. February (brain an EEG and examination a BEAM (electroencephalogram) electrical examination were on defend- activity performed mapping procedure) The ant. EEG abnormal of sei- demonstrated electrical indicative activity, zure disorders. Defendant had in the frontal physiological abnormalities brain, and the and region frontal central right regions temporal to be believed defect. of the brain These areas developmental gauge level of emotional to a situation. These abnor- appropriate response given malities had been more than one present year. Neurological testing defendant, performed March revealed a that probability defend- high ant suffered organic brain it not be damage, could established although he had whether brain two damage years Defendant’s previously. “significant brain mild” him to damage in which he could not subjected lapses function normally. 1987, there
During were from escapes Butte County jail, during 1988, from that escapes facility. Throughout period, jail experi- conditions; enced overcrowded it was understaffed had an inadequate *28 physical plan.
The testimony defendant’s school and given by football high college coaches and school high basketball coaches stressed that defendant was and an sportsmanlike excellent as well as player, cooperative, helpful, polite, well and A respectful, very with children. teammate fur- respected, good nished similar testimony. teachers,
The one testimony school provided high defendant’s an aide, instructional and a adviser defendant as cheerleading portrayed respect- student, leader, ful and and cooperative, good and outstanding player. Defendant had summer at a any presented disciplinary youth problem minister, Defendant’s job-training camp. a fellow and a churchgoer, family considerate, and a regular defendant as polite, respectful, friend portrayed defendant, lived with defendant’s family A friend of who had churchgoer. school, their fond- reported and the friend’s parents during high for a year him a member of their family. stated considered defendant and they ness for was friends testified defendant polite, of one of defendant’s Another parent considerate, and respectful. him, wife, Diana, him as to her love for describing testified
Defendant’s sensitive, sincere, honest, and extremely thoughtful, loving, compassionate, Air football or to join Defendant had wanted play professional generous. to her and had influenced Force. He had introduced Diana Christianity brother, love and testified to his the church. Defendant’s Bryant, join Defendant had assisted and their good relationship. admiration for defendant with the subject psychology. with school assignments, particularly Bryant defendant, Gwen, sister, his describing encouragement admired Defendant’s Defendant’s mathematics homework. with her of her and his assistance warm, kind, He Chris, and testi- defendant as helpful. described stepfather, of a close and was a member had had a childhood fied that defendant happy Mae, mother, Pearlie Defendant’s and that he loved defendant. family, with his childhood and got along had had a happy defendant reported She churchgoer. and a frequent, willing Defendant was religious siblings. Sharon, sister, love testified to her also loved defendant. Defendant’s dearly and had a good was a athlete good that defendant for defendant reported had denied in which he had sent her letters of humor. Defendant sense a number photo- The defense also produced the murders. committing as such functions attending with his family defendant graphs depicting graduation. school high at death. fixed the penalty the jury of the penalty phase,
At the conclusion
Discussion Issues I. Selection Jury motion Wheeler court’s denial
A. The trial of defendant’s motion, his erred in denying the trial court Defendant contends 890, 583 Cal.3d v. Wheeler pursuant venire, commence mistrial, jury and to 748], the jury P.2d quash *29 chal anew, a exercised peremptory on the the ground prosecutor selection venire, Mrs. Casey. African-American in the juror the sole to excuse lenge her his or has exercised a A exists that prosecutor presumption (1992) 2 v. Clair manner. (People in a constitutional challenges peremptory
115 629, 564, 705]; Wheeler, Cal.4th 652 828 v. P.2d Cal.Rptr.2d People [7 258, Nonetheless, 278.) 22 Cal.3d it is well established the supra, that use challenges to remove on the basis of a peremptory prospective jurors solely bias, a based in vio presumed group cognizable upon membership group, (Batson (1986) lates both the federal and state v. Constitutions. 476 Kentucky 69, 1712]; Wheeler, U.S. 22 79 L.Ed.2d 106 S.Ct. v. People supra, [90 “ 258.) Cal.3d bias is a that are biased ‘Group jurors merely presumption ’’ an because are members of identifiable on they group,’ distinguished race, such as Garceau grounds or v. religion, ethnicity, gender. (People 140, (1993) 664, 664]; 6 Cal.4th 862 170 P.2d v. Cal.Rptr.2d People [24 707, 792, 75]; 54 (1991) Fuentes Cal.3d 713 818 P.2d see Cal.Rptr. [286 __, 89, 101-104, (1994) J.E.B. v. Alabama 511 U.S. L.Ed.2d 114 [128 1419, 1425-1427]; 400, S.Ct. (1991) v. Ohio Powers 499 U.S. 407-410 [113 422-425, 411, L.Ed.2d 1364].) 111 S.Ct.
“ ‘ “If a party believes an is opponent improperly using peremptory for a a challenges purpose, that must make discriminatory party timely and a facie are objection showing excluded on the prima being jurors case, basis of bias. To establish facie group a the moving prima [Citation.] second, should first make as a record as party complete moving possible; must establish that the party excluded are members of a persons cognizable third, group; moving must show a likelihood that such party strong ’ ’’ are being because of persons challenged association.” v. group (People Garceau, 140, 171; (1994) Cal.4th supra, People v. Turner 521]; 164-165 P.2d Cal.Rptr.2d [32 Howard 1315]; 1153-1154 824 P.2d Cal.Rptr.2d Fuentes, 707, 714; 54 Cal.3d Johnson supra, see P.2d Batson v. Kentucky, 87-89].) 476 U.S. L.Ed.2d 96-98 [90 alia,
A make party inter may showing likelihood” “strong by, out “that his struck all of has most or the members of the pointing opponent venire, identified from the or has used a number of group disproportionate his He against also demonstrate that peremptories group. may jurors share this one characteristic—their in the question only membership in all group—and that other as as the respects they are heterogeneous Next, as a whole. community be when may showing supplemented as appropriate by such circumstances the failure his engage opponent dire, these same in more or them jurors than voir indeed to ask desultory any questions at all. ... if member of excluded Lastly, is a [defendant if, addition, his victim is a of the group], especially member alleged to which the these facts group majority may remaining jurors belong, Wheeler, also be called court’s attention.” Cal.3d (People 258, 280-281, omitted.) fn. *30 motion, that his defendant the emphasized prosecutor
In of support clear, African-American in venire. It is the the only juror had excused however, the did circumstance that defendant not the rely solely upon that was the African- directed toward challenge only prosecutor’s peremptory set forth other relevant circum made an effort to American defendant juror; Garceau, 140, 171; 6 Cal.4th (Cf. stances. evidence, Howard, 1132, 1154.) He presented compiled from that Casey of 50 Mrs. jurors, information biographical prospective in status (58 (housewife was her years), employment terms of typical age home), of residence in the com with outside the prior employment length 2 adult (1 status children (17 and marital munity years), marriage, in had served in the armed forces. Defendant children), and that her husband that, like 24 other Casey, also a list Mrs. showing prospective compiled with, to, or views concerns had expressed suggesting opposition jurors that, in an earlier indicating Defendant evidence death penalty. presented defendant, the same trial in Butte an African-American involving County African- the one challenge had a peremptory against prosecutor employed for-cause in venire after remaining American prospective juror that Casey Defendant also Mrs. emphasized had been exercised. challenges African-American, the victims were were whereas and defendant both Caucasian. not had
The on the that defendant court denied motion ground case, dire voir a facie the court that determining during established prima she could not decide whether Mrs. had indecisiveness and shown Casey a a trial court denies would able to follow the law.2 be “‘[W]hen bias review case of motion without a facie finding prima group Wheeler other dire. As with the entire record voir [Citations.] court considers ing prima not facie denying gentlemen. “I’m motion And I do find a 2 The court trial stated: prima by announcing that there is a go that this matter further case. I realize I could into [¶] to, case, I because of explanation of the Prosecutor. But choose [¶] facie and receive the at that we prima My notes the time fact I don’t that there is a facie case. [¶] that believe that we interviewed juror—and impressions—revealed very that at the time interviewed this a my my in is: This is a case where Wheeler motion Casey, quotation
117 fact, we examine the record for evidence to the trial findings support Because Wheeler motions call upon court’s trial ruling. judges’ personal observations, rulings we view their with “considerable deference” on appeal. If the record which the “suggests grounds upon prosecutor might [Citations.] ” have we reasonably challenged” jurors affirm. question, [Citation.]’ Garceau, 140,171-172; Howard, (People supra, 1132, 1155; 471, 498, v. Sanders Cal.3d P.2d see Batson v. Kentucky, 476 U.S. 88, 98, at at 89].) fn. L.Ed.2d pp. pp.
When Mrs. was asked court how she felt about Casey by serving time, on a for the first she “Not it jury good,” that “was responded, to do she never had done before. When asked scary” something whether she to would decline find first murder even if the degree had estab prosecutor crime, that lished out of fear of to decide whether to having death apply death, she stated she was penalty, initially to against persons being put as answer,” well as against is “people That hard to killing people. then [] in the responded also negative, to the responding negative question whether she would refuse to vote on the issue of if special circumstances these were shown. When asked whether she could conceive situations in which she vote for the death if might first murder penalty degree and special established, circumstances were she answered in affirmative. counsel,
Upon questioning defense Mrs. reiterated she did not Casey believe in the death and also did not penalty, believe in “nobody killing either,” so she anybody that was “in-between or whatever.” She also stated she could conceive of a case in which the death would be penalty appropri- ate, if the circumstances of the case were “awful bad” and if she “believed it.”
Upon questioning by Mrs. prosecutor, reiterated that she Casey truly did not believe in the bad, death and stated: “But if penalty, it is it really [is] that, bad I and felt know—I you hate death. I don’t know how to express myself, But I hate see really. really to be to death. And I hate anybody put to see someone take a I life. don’t care itwho is. So—it is—it is hard me to could, me, to, it. But express doubt, crime, I if to proven [¶] no that it awas then I don’t I think would hesitate.” She she indicated did not know whether was prosecutor views; at a disadvantage because of her she “couldn’t say but would fully,” be attempt about completely objective open issue. When the prosecutor asked whether she believed she honestly could vote for a chamber, verdict that would cause defendant to be sent to the gas she “I But, can’t sit here replied: and really say for sure if I could. if it is me, me, proven it, truly and I feel proven down inside he did deep asked, “You think could?” you I I could.” When the prosecutor I could. think said, “Yes, I think I This is all new to me. I have to could. say Mrs. Casey further stated that her feelings concerning I with it.” She very So am upset *32 it) in would make it difficult for (that she did not believe the death penalty or no” to decision on that issue. She could say “yes to make a her her substantially her about the death penalty might impair whether feelings She to the death all the evidence fairly pertaining penalty. to evaluate ability that, believed in the death she her not believing penalty, indicated despite that it if she heard facts and circumstances vote in favor of she could it, fully, “I can’t can’t come out and say warranted but then stated: say—I no, couldn’t, or, the circumstances.” I because I don’t know I could yes, statements, her Mrs. informed the court that family these Casey Following automobile, which her husband used when not carpool- one only possessed The trial could not automobile transportation. and that she depend upon ing, for-cause to Mrs. challenge Casey, premised court denied the prosecutor’s and the did not believe in the death her statement that she penalty, upon to excuse this a challenge prospective later employed peremptory prosecutor juror. dire, the voir he was in a had over all of
Because the trial judge presided circumstances whether a strong to determine from all relevant good position solely had Mrs. challenged Casey by that the likelihood existed prosecutor Howard, 1 Cal.4th supra, association. v. (People reason of her group dire, voir could consider the nature of 1156.) prosecutor’s He properly of her a investigation but rather reflected thorough which was not desultory views, (People the death as to her concerning penalty. especially feelings to, Howard, 1156.) Mrs. Casey’s apparent opposition 1 Cal.4th supra, about, to the pertaining and contradictory responses uncertainty repeatedly the law in that be unable to her indication she might apply death penalty, for the first at on a serving jury her regard, apparent general apprehension trial, time, to the court over her transportation as well as her concern which the prose grounds upon there were race-neutral legitimate, indicate Garceau, supra, (People her. challenged have reasonably might cutor 1156; Howard, 140, 172-173; 630,774 P.2d 48 Cal.3d v. Bittaker 659].) above, to the court in an other matters defendant
As indicated presented that Mrs. Casey His demonstration to make a facie showing. attempt prima the community, member of to be an otherwise typical generally appeared consideration, did not of circumstance the subject although properly that showing Defendant’s evoked her by responses. obviate the concerns to, had jurors suggesting other views or prospective expressed opposition concern over the death does applying, not establish a evidencing penalty, case, all facie because one these were prima except prospective jurors (almost excused all and the failure to prosecutor), excuse prosecutor’s must be viewed in of the circumstance that remaining juror juror light was called later in the when the prosecutor’s remaining proceedings, pe- Johnson, (See were few. People remptory challenges 1194, 1220-1221 did not take into [comparison jurors account prospective as the such factors prosecutor’s remaining challenges peremptory Moreover, view].) number of with prospective jurors point particular law, her indicated juror understanding willingness uphold *33 her reservations. despite had, defendant’s that the an
Assuming in unrelated showing prosecutor defendant, case an African-American exercised involving a peremptory in order to challenge excuse an African-American is prospective juror 258, (22 relevant under Wheeler Cal.3d 285-287 defendant need not show [a that same has excluded a prosecutor all members of cognizable group time]; a 88, over of long period Batson v. 476 Kentucky, supra, U.S. at pp. 81-82, 84-88]; Howard, at 92-96 L.Ed.2d see also v. 1 pp. People [90 supra, 1132, 1156, 4) Cal.4th fn. this is not showing very of the probative, light (cf. Turner, isolated nature of the conduct v. prior People 8 Cal.4th supra, 137, 162, 168) and the record introduced the trial court of the circum- excusal, stances surrounding that indicating prosecutor excused validly on the of prospective juror basis the juror’s legal training. Although prosecutor’s excusal all members of a particular rise to group may give an inference of if the defend impropriety, especially inference, ant to the observed, same that belongs as we have group, is not Howard, 1132, 1156; v. (People 1 dispositive supra, v. Sanders, 471, 500.) Moreover, supra, 51 Cal.3d in the case present is inference of less weight, because the excused prosecutor only single circumstances, member of that In of all group. light the relevant the trial court could find that properly defendant had not made a facie show prima and, did ing, the burden not shift accordingly, to prosecution establish case, a neutral explanation, related to the for particular the peremptory Turner, 137, 164-165; challenge. v. (People supra, 8 Cal.4th v. Wheeler, 258, 22 supra, 281.) Cal.3d
We also reject defendant’s claim his that under the Sixth right Amendment to an was impartial jury violated. defendant has a Although to a drawn right jury from a fair as cross-section of a means community his or her ensuring right to an he or she has no to a impartial jury, right
120 (Holland composition that reflects the racial community. jury 474, 480, (1990) U.S. 482-483 L.Ed.2d 110 Illinois Garceau, 173; 803]; see also Taylor S.Ct. 690, 702-703, U.S. L.Ed.2d S.Ct. Louisiana 692].) claim of a of his right
Defendant’s violation to equal protection because, merit explained laws under the Fourteenth Amendment lacks as above, failed the trial finding the record court’s that defendant supports on the excluded showing juror make a facie this was prima prospective (Hernandez York U.S. 363-367 basis of bias. New group 408-411, 111 S.Ct. see Batson v. Kentucky, [114 L.Ed.2d 81-82, 87-88]; at cf. Johnson v. U.S. at L.Ed.2d pp. pp. 96-97 [90 (9th 1993) 1327.)3 3 F.3d Cir. Vasquez The trial denial motion excuse jurors
B. court’s defendant’s cause defense contends the court denied mo improperly Defendant trial who to excuse for cause two did prospective jurors unequivocally tions *34 death and who thus would vote for the automatically penalty, state not they to These two prospec into their be fair and ability impartial. called question however, excused having following never were been jurors impaneled, tive of them. Defend challenges defense counsel’s exercise against peremptory to that the trial failure exclude these prospec ant nonetheless court’s argues the for his to an under Sixth tive cause violated right impartial jury jurors under to the States Constitution and the and Fourteenth Amendments United I, 16), (art. to due of law under the process California Constitution his right § I, 15), 7 & (art. and the California Constitution Fourteenth Amendment §§ Eighth reliable determination under and his to a right penalty 15, I, 7, (art. & and the California Constitution Fourteenth Amendments §§ he of full exercise of his 26 17), peremptory because was deprived his for cause. due court’s in denying challenges to the trial error challenges Constitutions a criminal Both the federal and state guarantee Garceau, 6 Cal.4th a v. (People supra, defendant trial an impartial jury by Appeals decisions should follow several United States Court 3 defendant asserts we defendant, according prima showing under is made whenever holding, that Batson a facie challenges against more all members a peremptory has exercised one or prosecutor 229; 226, (United (8th 1989) Iron F.2d United defendant’s race. States v. Moccasin Cir. 878 (10th 436, 441; (8th 1989) Eagle 867 v. Chalan Cir. v. Roan Cir. F.2d United States States 1302, 1314.) conclusion 1987) These us alter the we persuade 812 F.2d decisions do not above, and, occasions, by not bound prior have we are reached as we observed on have (1989) courts, (People v. Burton 48 questions. federal even on federal decisions lower 80, 843, 184, 1270]; (1969) 1 Cal.3d Bradley 86 Cal.Rptr. People 854 771 P.2d v. [258 Cal.3d 457, 129].) Cal.Rptr. 460 P.2d [81
121 140, 173-174; 612, (1991) Mickey see v. 54 Cal.3d 683 People [286 801, 84]; 72, (1990) v. 51 People 818 P.2d Cal.3d 104 Cal.Rptr. Stankewitz 817, 23]; 659, (1988) P.2d Bonin 46 Cal.3d 793 v. 679 Cal.Rptr. [270 687, 1217]), P.2d made who will jurors 758 up [250 mitigat vote for the death but who will consider the automatically penalty, 729, 719, (1992) (Morgan evidence v. Illinois 504 U.S. ing presented. 502-503, accord, 505-507, 2222]; 733-736 L.Ed.2d 112 S.Ct. [119 256, 278-279, (1989) 492 U.S. L.Ed.2d 109 Penry Lynaugh 319 [106 2934].) S.Ct.
Whether the is to exclude contention that trial court failed erroneously bias, who exhibited a or excluded prospective jurors pro-death prospective bias, who exhibited an anti-death the same has held to jurors standard been (1992) Pride (People v. Cal.4th 227-228 apply. Cal.Rptr.2d [10 643]; 833 P.2d People Mincey 456 Cal.Rptr.2d 388]; Johnson, 1194, 1224.) 827 P.2d People v. Under supra, standard, a juror be for cause based his or her may challenged upon views concerning punishment if those views would or capital only “prevent substantially duties as defined impair” performance juror’s court’s instructions oath. v. Witt U.S. juror’s (Wainwright 841, 851-852,105 L.Ed.2d S.Ct. v. Mincey, 408, 456.) If a defendant contends that the trial court denied a chal wrongly cause, he or she lenge must demonstrate that the to a fair and right Garceau, was impartial jury thereby affected. (People supra, Cal.4th 140, 174; Bittaker, 1087-1088.) Cal.3d Initially, defendant must establish that he or she exercised a peremptory challenge *35 remove the in juror question, exhausted the defendant’s chal peremptory lenges, and communicated to the trial court the defendant’s dissatisfaction with 152, the jury selected. v. Morris (People 53 Cal.3d 184 [279 720, 949]; Bittaker, 1046, 807 P.2d Cal.Rptr. v. People Cal.3d supra, 1087.)4 he can show that an actually his to was right impartial “[I]f jury affected he because was of a which he deprived would peremptory challenge case, have used to reversal; excuse a sat who on his he is entitled to juror he 4 Therecord against discloses that peremptory challenges defendant exercised jurors these reflect, however, challenges. and exhausted his peremptory It does not that defendant (See expressed any the jury People trial court with Raley dissatisfaction as sworn. v. Morris, Cal.Rptr.2d Cal.4th People supra, 904-905 830 P.2d v. 152, 184; Bittaker, Therefore, People supra, 1087-1088.) Cal.3d v. 48 Cal.3d defendant may complain appeal not as composition People on to the jury. language of the In view of Bittaker, 1046, 1087-1088, supra, v. suggesting express 48 Cal.3d an statement of dissatis unnecessary faction is if challenges, a defendant peremptory exhausts his or her and the consequent counsel, difficulty identifying this issue as ineffective assistance we shall review the ruling despite procedural trial court’s this deficiency. that the outcome of the case itself would have been not have to show
does 1087-1088; cf. v. Mason (48 Cal.3d at pp. People different. [Citations.]” Amend, 802 P.2d (1991) 52 Cal.3d 950] [6th to exclude exercise of peremptory challenges prospective claim obviated by cause, this court on other for without comment by not excused jurors claims].) constitutional potential in which the trial court denied is to examine the context
Our duty the trial decision that the in order to determine whether court’s challenge, not beliefs would juror’s “substantially impair performance [the (See Mincey, duties” is the record. v. juror’s] fairly supported by Johnson, 408, 456-457; 47 Cal.3d supra, supra, answers to 1224.) conflicting questions Where a juror provides prospective the trial court’s determination as that his or her impartiality, concerning is court. (People true state of mind binding upon appellate person’s 195, 229; Pride, 2 Cal.4th People Mincey, supra, Bittaker, 456; 1089.) case, indicated juror Carrington initially In present prospective deliberate, first mur that if a defendant had committed degree he believed der, this form of or should receive the death punishment he she penalty, or and that a defendant’s background was not imposed frequently enough, his decision to the death life would not affect impose penalty. experiences indicated, however, aside that he would be able put Mr. also Carrington that those views would views the death penalty, his personal concerning weighing his to conduct ability required process, substantially impair without the in favor of life imprisonment that he would be able to vote in light if that were the penalty parole appropriate possibility evidence, would weigh evidence introduced at penalty phase, if were death defendant not vote in favor of the automatically penalty would intentional, circumstances murder with special found premeditated guilty cause, this noting prospec The trial court denied the challenge present. the facts of the he would consider tive had indicated quite strongly juror earnest case, and was an the death automatically, would not apply penalty whose intention was to follow the law. person *36 indicated Roberts to written prospective juror In his responses questions, crime. deterrent and decreased the death served as a he believed penalty he would vote he did not believe this stated juror When asked initially, he would do but then indicated in of the death favor automatically penalty, of the death would vote in favor penalty, When asked whether he so. Mr. background, as to defendant’s what evidence was presented regardless that, and stated “could either go way” subsequently Roberts indicated he information, this he would not considering background vote automatically of the death Mr. Roberts stated that he would follow the penalty. favor the court and consider such factors as provided by defendant’s guidelines and that he could be neutral at the of family, age inception penalty cause, this for the court to In alluded phase. denying challenge prospec- tive to initial understand certain juror’s struggle concerning questions whether death he favored the his lack of a consistent penalty, viewpoint favor of the death his that he would follow penalty, the court’s responses instructions, his demeanor and toward both forthright neutrality defense and the prosecution positions.
The trial court did not err in defendant’s for cause denying challenges these two Neither views an prospective jurors. juror indicative of expressed unalterable preference in favor the death such that their penalty, protes- tations that would follow the law they (Cf. would not “rehabilitate” them. Illinois, 719,733-736 492, 505-507, Morgan 504 U.S. L.Ed.2d [119 Moreover, 2222].) 112 S.Ct. because both re- jurors provided conflicting to their views the death sponses relating as indicated concerning penalty, above, mind, the trial court’s determinations as to their state based in part demeanor, their are The upon binding this court. upon prospective jurors’ statements did not demonstrate that their views would substantially impair performance (See their duties as People v. jurors. Mincey, supra, 408, 457; Johnson, 1194,1224; supra, Cal.3d cf. People v. Coleman 46 Cal.3d 763-764 759 P.2d Bittaker, 1088-1090.) II. Guilt Phase Issues
A. Admissibility
postarrest statements
of defendant’s
Defendant contends that his
“Did
I
question, postarrest,
you say
could
have a lawyer?”
counsel,
constituted an invocation of his
and that
right
trial court erred in ruling that subsequent statements made
him in the
course of police
interrogation were
obtained in violation of Miranda v.
At the defendant preliminary hearing, moved to exclude evidence of his Miranda; statements based this upon alleged violation of after the motion denied, trial, was he renewed it prior the evidence again relying upon at motion, received In preliminary hearing. of his defendant support evidence; presented at on following approximately p.m. January 1987, three officers went to police defendant’s apartment purpose *37 warrant as to the and an arrest warrant on premises a search
serving home, Not defendant at to search the finding they proceeded defendant. residence. Defendant arrived and entered the but discover- apartment, upon officers, arrest, he one of the and informed was under defendant being ing officers, by out of the The other two summoned backing began apartment. arms, third, held him wall of against defendant’s outer grabbed him, for him arrest and handcuffed he was under informing apartment, arrest, Defendant, stomach murder. who was struggled during placed on the floor of the apartment. down inter- but was
One of the officers Miranda began reciting warnings, defendant, At one times who was and loud. agitated point, several rupted him his defendant to “shut so the officer could read the officer told up” he was arrested. Defendant Defendant asked repeatedly why being rights. several times that he was arrested for the murder of the was informed being one the officer referred to the occurrence of the and at point Chiapellas, he had an murders on of the week. Defendant responded Tuesday previous date, he his had been at a all day. alibi for that because and girlfriend party “check it out.” The officer cautioned defendant that the would police defendant’s to remain right The officer read the advisements concerning silent, would be used him a court against that he said could and anything wished, law, if he and his to an before right attorney any questioning, one, that if if he could not afford to hire to have an attorney appointed and not answer any decide at time to exercise “you any your rights I Defendant or make statements—and at that gave up point.” questions any him, said, I The officer told “yes, then “Did could have you say lawyer?” The if and remained silent. he wanted one.” Defendant did respond defendant at that time. did not ask any questions police and, on the Defendant was to the Chico Police Department transported to defendant 21), at read same day (January approximately p.m., police advisements, counsel Miranda his to have present the full including right in the event defendant and to have counsel during appointed questioning he under- not afford an Defendant also was asked whether could attorney. to waive them. Near the stood and wished to waive his rights, proceeded interview, asked to at 8:40 defendant conclusion approximately p.m., so, told him he could do but forgot comply use the An officer telephone. A second interview was conducted from 9:10 p.m. with defendant’s request. interview, he had At the end of the second when asked whether to 10:08 p.m. him, asked when a would be appointed defendant any questions, lawyer *38 him Both inter- during arraignment. and an officer told that would occur were in total.5 views tape-recorded to in of
The statements that defendant exclude were the nature sought In he making admissions. addition to statements had exculpatory denying residence, committed the murders or ever had been to the Chiapellas’ to his of a check made out to him cashing defendant attempted explain by $3,000 Katherine in the amount of on the the minders. He day following 9, 1987, on as asserted that on a number of occasions January prior during and the of he had been early by fall Katherine part paid to sexual acts. Defendant claimed he and Katherine had perform Chiapella to a room the Lodge. at Thunderbird Defendant that gone particular reported occasion, others, on this as well as on sexual devices were which employed, Katherine in the trunk of also her vehicle. Defendant claimed transported that he had borrowed his roommate’s fix knife order to his own stereo antenna, and insisted that a number of months he had not worn the bloodstained shoes found at his trial apartment. The court determined be- yond reasonable doubt that defendant’s statements were made. voluntarily
1. Whether to at renew his motion trial precludes defendant’s failure review his Miranda claim appellate matter, that,
anAs initial the Attorney General contends by failing to renew the Miranda motion in Placer defendant waived the County, issue. moved, Defendant unsuccessfully his during preliminary hearing exclude his statements on the were obtained in ground they violation of Miranda. In March to the commencement of trial in Butte prior County, defendant his renewed motion to exclude the on statements Miranda The grounds. court denied the motion. In March following change of venue to Placer defendant County, moved to these state again suppress ments, time this on the that the that their ground admission probability would defendant prejudice their substantially value. outweighed probative (Evid. Code, 352.) at that did Although time defendant not renew his § Miranda, objection on the expressly basis the Placer County judge observed, after the advised him that the in Butte prosecutor judge County statements, had ruled already upon that the Butte admissibility following day 1987), (January upon being 5 The speak advised defendant wished to them, interview, police again. officers met with defendant At the outset of this defendant asked when lawyer he would see again his was advised that one would be provided arraignment. at police repeat The did not obtain the Miranda advisements or during very defendant’s waiver this inquiry brief interview. defendant formed the This 1,1989, basis seeking for his March ground motion on suppress certain later statements Miranda, they were obtained in violation of appeal but contention on is present defendant’s solely 21,1987. related to the during January statements elicited conducted on interviews *39 admission of the that Miranda did not bar had ruled expressly court County remaining then stated that only The Placer County judge statements. and whether they were relevant whether the statements were questions sanitized, this assessment.6 counsel with agreed and defense should be the statements at the time renew his objection Defendant did not specifically admitted into evidence. were above, did that, defendant the circumstances described under
We conclude not be true that a will judgment It is the Miranda issue. not waive unless been admitted erroneously, that evidence has reversed on the ground “ to exclude or to strike to or a motion of record an objection ‘there appears to make clear the specific made and so stated as that was timely the evidence ” (1990) 50 v. Mattson (People or motion . . . the objection ground of Mattson, 802, 983], italics in 826, P.2d 853-854 789 Cal.Rptr. Cal.3d [268 Code, 353, both to enable (a).) is subd. “Specificity required Evid. quoting § to or on the motion objection to make an informed ruling the court in the evidence. to cure the defect the evidence enable the party proffering Mattson, 854.) “Miranda-based Cal.3d at 50 p. v. (People [Citations.]” must rule is that a defendant rule. ‘The general this governed by claims are in order to at the trial level on Miranda grounds objection make a specific ” (1988) v. Milner (Ibid., People on quoting a Miranda claim appeal.’ raise 713, was 227, motion 753 P.2d [pretrial Cal.Rptr. 669] 45 Cal.3d [246 542, 548 21 Cal.3d Rogers v. ruling]; People to obtain a pursued (1992) 2 732, 1048]; Visciotti see also People P.2d Cal.Rptr. [146 495, 388]; (1992) 1 Kelly P.2d People Cal.Rptr.2d Cal.4th 54 [5 385].) 822 P.2d 519 Cal.Rptr.2d [3 addition, on a claimed a ruling have held that pretrial In we reconsider is subject Fifth Amendment rights of a defendant’s violation to the court, Fifth Amendment grounds an on the trial objection ation by when the at trial waived if not made of the evidence is admissibility 983, 1005 (1989) 47 Cal.3d v. Edelbacher evidence is offered. (People (1988) 46 Cal.3d Jennings cf. 766 P.2d Cal.Rptr. through stipu preserved 760 P.2d Cal.Rptr. 475] [issue 975-976 [251 trial]; v. Boyer at new binding would be ruling lation that earlier 270-271, P.2d 610] fn. 13 it he “The court: I take was as follows: court and counsel 6 The conversation between the already We right. That’s anything [¶] [Prosecutor]: in. counsel]: doesn’t want [¶] [Defense statements, No, have I? that, on these I haven’t ruled though. I The court: ruled on mean—[¶] did. Judge Gilbert counsel]: The court: Oh. Judge [Defense Gilbert did. [¶] [¶] [Prosecutor]: But counsel]: out. [Defense to throw this statement [¶] We had a motion [¶] [Prosecutor]: admissibility—he ruled that The Miranda The court: Judge Gilbert did in context—[¶] in these what is relevant question next is coming from in. The prohibit does not these Miranda That’s correct.” Yes. they counsel]: and should be sanitized. [¶] [Defense statements because Miranda claim tied preserved binding ruling, pursuant [issue occurred, 1538.5, that no so trial detention at would have objection § futile].) been 152, 189-190,
Nonetheless, Morris, Cal.3d we that if motion to a concluded exclude evidence is made specific raising evidence, directed to identifiable at objection, particular, body *40 the of or trial a time when at the trial can determine beginning during judge context, for in its is evidentiary the issue question preserved appropriate the for is without need a further at the time the evidence objection appeal met, case, to be introduced. In the are sought all three criteria present Moreover, the motion was made to in trial. as was the case although prior Morris, no event occurred after the in limine before the evidence ruling was received at trial “that so to a context as constitute basis for changed (Id. 189.) reconsideration of the at ruling.” p. addition,
In in (1991) v. Wharton 53 Cal.3d 549-550 [280 290], that, 809 P.2d we relied upon Morris to conclude met, because the three criteria outlined in Morris were the defendant had not where, waived the issue in of in a question purposes appeal pretrial motion, the defendant had moved to exclude evidence based upon and did psychotherapist-patient privilege not at to of object trial admission Further, the evidence on that ground. (1992) v. Clark 41 561], defendant, Cal.Rptr.2d we [10 P.2d considered whether the made a having motion a having obtained on the hearing pretrial issue whether to Miranda, exclude his statements to was entitled to pursuant another on the hearing Miranda issue during trial. We concluded the defendant was not a entitled to second based in hearing, part upon of Morris reasoning that such in limine hearings concerning admissibility of evidence should be conducted to the of separately, prior introduction (Id. at 119.) evidence trial. at p. case,
In the present comments of the Placer he County judge suggest Moreover, considered the of the earlier ruling to be it judge would binding. inconsistent appear to that require defendant renew his objection such at evidence trial or lose his to raise the issue right on while appeal, nevertheless, concluding, that he is not entitled to further any on the hearing (See Clark, objection. People 119.) Cal.4th at we Because have p. held a defendant is not a obligated renew motion is pretrial that based upon be statutory privilege, it would to subject anomalous a defendant a claim raising under the arising Constitution a different rule. Accord- we conclude ingly, defendant this issue for preserved appeal. his Miranda rights invoked
2. Whether defendant “ review observed our scope We have recently ‘[t]he We accept nature is well established. must constitutional claims of this inferences, evaluations facts and and its trial court’s resolution of disputed However, we substantially supported. if are credibility, they [Citations.] facts, properly and those undisputed determine from must independently court, illegally was whether the statement challenged found the trial 1, 25 6 Cal.4th Johnson (People obtained. [Citation.]”’ 247, 263.) P.2d People Boyer, supra, Cal.Rptr.2d 405, 440 v. Sims As we stated 992], P.2d the familiar requirements Cal.Rptr.2d “[u]nder Fifth Miranda, of the federal Constitution’s to assure designed protection under coercive’ ‘inherently self-incrimination privilege against Amendment circumstances, to custodial interrogation be subjected suspect may *41 to remain has waived the right and intelligently unless he or she knowingly counsel in the event silent, and to of an attorney, appointed to presence 436, Arizona, 384 U.S. supra, Miranda v. is indigent.” (Citing the suspect 706-707, 694, 722-723].) “Once 444-445, having L.Ed.2d 473-474 [16 to further interrogation by ‘is not subject these the accused invoked rights, him, unless the made available to counsel has been the authorities until communication, or conversa initiates further exchanges, accused himself ” 440, Edwards v. at (5 p. citing tions with Arizona police.’ 385-386, 1880]; 378, 477, 101 S.Ct. L.Ed.2d (1981) 451 U.S. 484-485 [68 171, L.Ed.2d U.S. 176-177 (1990) 501 [115 see also McNeil v. Wisconsin 675, U.S. 167-168, 2204]; (1988) 486 158, v. Roberson 111 S.Ct. Arizona 712-714, 2093]; 704, Mosley v. Michigan 108 S.Ct. L.Ed.2d 680-682 [100 If, 313, 321, 321].) 104, 96, 96 S.Ct. fn. 10 L.Ed.2d (1975) 423 U.S. [46 initiate a no break in custody, police there is assuming subsequently, counsel, statements are presumed in the absence of suspect’s meeting trial, if even inadmissible evidence at as substantive and are involuntary considered voluntary would be a waiver and the statements executes suspect 171, Wisconsin, 501 U.S. (McNeil v. supra, standards. under traditional (1990) 158, 167-168]; 494 Harvey v. Michigan see 176-177 L.Ed.2d [115 302, 344, 293, 1176].) 110 S.Ct. 350 L.Ed.2d U.S. [108 stage process,” and at any indicates “in manner any If a suspect with an to consult he or she wishes or that to prior during questioning, Arizona, (Miranda supra, v. not be interrogated. the defendant may attorney, added; 706-707], id. at italics pp. L.Ed.2d at U.S. at 444-445 pp. 384 pp. [16 722-724, 725-727]; 721, v. 472-474, People 470, L.Ed.2d at 477-479 pp. [16 793]; 1, see 375, P.2d 491 (1971) 6 Cal.3d 383-384 Cal.Rptr. Burton [99
129 27; Johnson, 1, 6 Cal.4th v. 48 Cal.3d supra, People Boyer, supra, v. People 247, 271.)
We observed that no form of words or conduct have previously particular is a order his necessary right on the in to invoke or her part suspect 948, 658, (1970) remain silent v. Randall 1 Cal.3d (People 955 Cal.Rptr. [83 114]), 464 P.2d or and the invoke this words suspect may by any right conduct inconsistent with a to discuss the present willingness reasonably Burton, 375, case 382.) and Cal.3d (People supra, v. freely completely. Earlier have decisions this court the Courts indicated Appeal for counsel not be preclude need order to request unequivocal question 950, (See (1993) v. ing by police. Clark 5 Cal.4th 990 [22 689, 1099]; 134, v. (1990) 857 P.2d 50 Cal.3d Cal.Rptr.2d People Thompson Randall, P.2d Cal.Rptr. [266 Johnson, 27-28, 955.) As we stated California decisions concluded have that defendant invoke con may as; stitutional such right counsel diverse statements or questions “ “ ” ” think ‘Do we an you need and T we need a attorney?’ guess lawyer’ (People Superior (1975) Court (Zolnay) Cal.3d 735-736 [125 “ truth, 1390]); 542 P.2d ‘Tell me the it be if I Cal.Rptr. wouldn’t best ” had an with attorney (People (1984) me?’ v. Hinds 154 Cal.App.3d “ 104]); ‘I don’t if Cal.Rptr. know I should have a or here lawyer what ....’” Russo (People v. 1176-1177 Cal.App.3d “ 466]); ‘Well, I should talk maybe my attorney, ” Mr. Corbin’ (People 83 Cal.App.3d 995-996 [148 Munoz *42 165]). Cal.Rptr. Defendant relies these and similar California upon decisions in that the trial court erred in contending admitting evidence his to statements the police.
Nonetheless, as we have previously to recognized, subsequent I, of article adoption (d) section subdivision of the California Constitu tion, we federal standards in apply a defendant’s claim or reviewing that his her statements were in Sims, elicited violation of Miranda. v. (People supra, 405, 440; (1989) v. Markham 67-71 [260 1042].) Edwards, P.2d to in its decision Subsequent United States Supreme Court observed that rule of applies “[t]he [Edwards] when the only his wish for suspect expressed’ sort of particular ‘ha[s] assistance that lawyerly is of Miranda. It subject at a requires, [Citation.] minimum, some statement that can be construed to be reasonably expression of a for desire the assistance of an in with custodial attorney dealing (McNeil Wisconsin, interrogation by police.” 501 U.S. supra, 158, 168-169], L.Ed.2d omitted.) italics [115 _
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In the present Moreover, he declined but asked a question. wanted an attorney, simply he entitled to an the advisement that was when the police repeated respond Clark, 1, 29; Johnson, 6 Cal.4th (See attorney. context, 41, 121.)7 defendant’s statement simply Viewed the officer whether he had heard wished to ascertain indicated defendant *43 did defendant informed that he had heard correctly, correctly. Upon being an be construed to be expression make a statement “that can reasonably U.S._ 362], States, high also the court supra, 512 L.Ed.2d [129 7 In Davis v. United that, ambiguous reference to although may clarify suspect’s to a police indicated the seek People counsel, (Id. cf. v. p._[129 p. L.Ed.2d at they required are not to do so. at Johnson, 1, falling of a ambiguous remarks short supra, suspect “expresses a 6 Cal.4th 27 [if talking with him for rights,” may officers “continue or invocation of his Miranda clear waiver People invoking rights”]; v. waiving those purpose clarifying whether he is or the limited of case, Clark, 950, 991.) responded to defendant’s supra, present In the the officer 5 Cal.4th one.” This attorney “if he wanted that could have an question by repeating defendant Johnson, supra, (see right People v. “open the door” to an assertion that repetition tended to 1, 28-30), respond. but defendant did not
131 in for the assistance of an with attorney dealing of a desire custodial Wisconsin, (McNeil supra, the 501 U.S. 178 interrogation by police” States, 158, 169], omitted; see Davis v. United supra, L.Ed.2d italics [115 U.S._,_[129 512 371-372]), L.Ed.2d but remained silent. merely that, We in conclude view of the entire defendant’s record—including statements and his conduct as a whole and disruptive during immediately (which the arrest contributed to his failure hear following to apparently the advisements), officer’s initial the completely nature interrogatory an defendant’s reference to officer’s of the attorney, immediate repetition advice that had been and given, defendant’s failure to respond thereto— there was substantial evidence support to trial court’s determination that defendant’s statement did not an constitute invocation of his to right counsel. Therefore, it is us to determine whether unnecessary evidence obtained in asserted violation of Miranda to the prejudicial was defense.8
B. Admissibility photographs victims Defendant contends trial court erred in into evidence admitting (22 of which were inches) to 8 inches of the photographs enlarged by bodies of Katherine and William The include views Chiapella. photographs discovered, victims’ bodies at the locations were their respective they heads, bludgeoned faces and Katherine’s unclothed with a partially body knife it from and her with protruding its contents out purse nearby, spilled clothes, William’s covered body by blood-soaked William’s with body addition, 8 In a review of those upon previous California decisions based rule that even equivocal may statements rights— constitute an invocation of a defendant’s constitutional upon decisions which defendant attempting relies in to establish that an invocation occurred present case—reveals that in those cases various factors indicative of an invocation present (Cf. were and Superior that none of those are present factors here. Court (Zolnay), supra, [equivocal 735-736 statements were direct result of interrogation that stage had reached the suspects’ appeared where choices limited to confes silence, counsel]; sion or suspects requested specific and recommendation as to Hinds, 154 Cal.App.3d interrogation 234-235 progress, suspect was in [while had request to that rights, “softly he be advised of his spoke Miranda the officer indistinctly,” without inquiring suspect’s understanding suspect’s as to prior or waiver questioning the attorney present]; People officer whether it would be best if an were Munoz, Cal.App.3d interrogation, suspect [at 995-996 commencement of attorney commenting counsel].) named his perhaps speak he should In cases other defendant, cited suspect’s attorney the statements present indicate an should be belief (see, e.g., People Cal.App.3d v. Pack you Cal.Rptr. ‘I think 240] [“ ought .’”]; somebody protecting right have me now . . . v. Duran Cal.App.3d 490-492 I 595] ‘Well then think it’s better that I have an [“ *44 here,’ attorney got ”]), and you attorney right present, ‘have an here close?’ or at least the Russo, suspect’s contemplating attorney (see, e.g., whether an present People should be v. 1172, supra, Cal.App.3d 148 ‘I don’t if I lawyer 1176-1177 know should have a here or [“ ”]). what. . . .’
132 knife recovered from inside it held next to the and views of body, tightly bound wrists and blackened fingernails. Several taken photographs prior show of the unclad with autopsy portions bodies wounds that had been cleansed, and two black and white autopsy photographs traumatic depict head injuries.
The defense moved in limine to exclude these on photographs grounds relevance, character, their lack of cumulative and (Evid. effect. prejudicial Code, 350, court, 352.) The trial defense hearing with arguments respect §§ to each of the considered these three bases for as to photographs, objection trial, each and overruled each Later photograph after objection. during court, counsel and comment the court admitted the 24 argument by by photographs. Alleged
1. lack relevance evidence, In determining admissibility we photographic apply well-established admissible (Evid. rules. relevant evidence (17) Only is Code, 350; Garceau, 140, 176-177; v. People supra, 6 Cal.4th v. § 69, (1988) and, 253]), Babbitt 45 Cal.3d 755 P.2d Cal.Rptr. [248 statute, as otherwise except by all relevant evidence is admissible provided Code, (Evid. Const., I, §351; §28, (d).) see also Cal. art. subd. Relevant “ evidence, defined in Evidence Code section 210 as evidence ‘having any in reason to or tendency fact that is of conse prove disprove any disputed ” “ action,’ to the determination of the quence tends ‘logically, naturally, intent, reasonable inference’ to establish material facts such as or identity, Garceau, 140, 177.) motive. v. (People Cal.4th The [Citations.]” trial court has broad discretion in of evidence determining relevance Babbitt, (ibid.; 681), 45 Cal.3d but lacks discretion to (Ibid.; (1986) admit irrelevant evidence. 41 Cal.3d People Burgener 1251].) 714 P.2d Cal.Rptr. [224 Defendant contends of the victims were photographs wholly irrelevant because were were they matters that probative only (See Anderson dispute. 1306].) 742 P.2d The circumstance that defendant did not
contest the of the medical examiner and testimony others who located and bodies, however, irrelevant; examined the did not render the photographs rather, the exhibits served to photographic clarify testimony. (People 101].) Thomas 828 P.2d Cal.Rptr.2d The tried the first murder on the theories that prosecution degree charges the murders were or committed in the course of a premeditated robbery,
133 The involved torture. photographs depicting of William the murder relevant to to the bodies were and blunt trauma knife wounds various killed, the nature including the victims were manner in which establish the (1992) 3 (See v. Wilson People victims’ wounds. of the placement Pride, 259, 1212]; 926, v. People 838 P.2d Cal.4th Cal.Rptr.2d 938 [13 Anderson, 195, 243; 1137.) v. 43 Cal.3d supra, 3 Cal.4th supra, People bodies, of the including and condition The of the location photographs also were relevant to were bound and manner in which the victims gagged, Garceau, 6 deliberation. v. (People supra, the issue premeditation Clair, 629, 660; 140, 180-181; 2 Cal.4th v. People v. People supra, Cal.4th 1350].) In 737 (1987) 43 Cal.3d 594 P.2d Cal.Rptr. Hendricks [238 William, addition, as well wounds inflicted upon the nature of the nonfatal relevant to were as shown in the as his facial expression, photographs, necessary intent to cause the cruel suffering demonstrate the perpetrator’s (See Raley, supra, involved torture. establish that the murder 870, 896-897.) Cal.4th “ these details from solely
The ‘was not obliged prove prosecutor or to stipulations of live witnesses’ testimony accept antiseptic [citation] to see how the lieu of evidence. was entitled jury photographic ‘[T]he details of the scene and the supported prosecution physical bod[ies] ” Pride, 3 Cal.4th supra, theory degree (People [first murder].’ reason, was relevant as to 243.) For the same the evidence thereby provided v. Cox (People crimes and aggravation appropriate penalty. Sanders, 53 Cal.3d P.2d 471, 514.) 2. Code Evidence section
a. undue Alleged prejudice relevant, even if these were photographs
Defendant contends that exclude them as the trial court committed reversible error in failing to Evidence Code section 352.9 unduly prejudicial pursuant victim lies within the broad The admission of of a photographs made that are unduly discretion of the trial court when a claim is they 938; Wilson, or (People gruesome inflammatory. 106, 821 P.2d (1991) Cal.Rptr.2d v. Price if may exclude evidence provides: 9 Evidence Code section 352 “The court in its discretion (a) outweighed will substantially probability that its admission probative its value is (b) danger prejudice, of undue consumption time or the substantial necessitate undue create issues, confusing misleading jury.” or of *46 134 of The court’s exercise that discretion will not be disturbed on appeal
610].] unless the value of the is probative their photographs clearly outweighed by Wilson, 926, 938; effect. v. 3 Cal.4th prejudicial (People supra, v. People 612, 655-656; Sanders, 54 Cal.3d v. 51 Mickey, supra, People supra, Cal.3d 471, 514; Mason, 909, 944.) v. 52 Cal.3d People supra, wounds,
The the two victims’ the photographs showing including were as to the kind and autopsy photographs, highly probative degree victims, malice, and, case, force used on the indicative of in William’s establish the intent to cause cruel and the causation of extreme suffering The with which the victims pain. photographs depicting thoroughness of, issues, had been bound were other highly probative among planning executed, and deliberation with which the offenses were because tended they to establish that defendant took care to great render his victims helpless, from his own having brought from which he fash apartment pillowcase ioned the bindings. Similarly, locations and photographs positions deliberation, of the bodies were demonstrative of highly premeditation that defendant had the two victims and establishing, example, separated had moved William to the bedroom before him. The killing photographs Hall, illustrate and corroborate the Dr. testi helped testimony supplied by the factual mony bases which the established provided upon prosecutor and other relevant matters. foregoing The value of the was not probative photographs clearly outweighed by their effect. We have described the referred prejudicial “prejudice” into Evidence Code section 352 as evidence that characterizing uniquely individual, tends to evoke an emotional as an while bias against party value with to the issues. v. having only slight probative regard (People Garceau, observed, 178.) 6 Cal.4th As we have supra, previously victim and other items of evidence in murder cases photographs graphic Hendricks, 584, 594.) are v. 43 Cal.3d always disturbing. (People supra, that, Our review convinces us al independent photographs or are are not though unduly shocking photographs unpleasant, they Nor do include similar views. inflammatory. they very multiple exposures Wilson, that, 926, 938.) v. 3 We conclude (People supra, admitting Cal.4th Evidence the trial court did not abuse its discretion under photographs, Code section because it could determine that the reasonably probative value of the effect. their photographs outweighed potentially prejudicial Wilson, 938; v. v. 3 Cal.4th at (People supra, p. People Mickey, supra, 612, 656; Cox, 618, 666; v. Benson Cal.3d 53 Cal.3d People supra, People 330].) 802 P.2d We Defendant also contends the were cumulative. photographs merely victim must often have the contention that of a murder rejected photographs also has been intro- because testimony cumulative simply be excluded as (See, are intended establish. the facts that the photographs duced to prove 938; Wilson, v. Raley, supra, People supra, e.g., 489, 524; Thomas, 870, 897; Cal.4th Cal.4th Price, 441.)10 *47 demonstrate that it weighed
b. The trial court’s alleged failure probative value against prejudicial effect on the the trial court erred in to state failing
Defendant contends that, in record it had weighed preju admitting photographs question, When a defendant to evidence objects dice value. against probative pursuant must demonstrate affirmatively to Evidence Code section the record in fact value. weigh against that the trial court did prejudice probative Clair, 629, 660; 54 v. 2 Cal.4th v. People Mickey, supra, (People supra, 656; Edelbacher, 1016-1017.) Cal.3d v. 47 Cal.3d People supra, “ Nonetheless, ‘the trial need not judge expressly weigh prejudice against ” he has done so.’ v. (People value—or even state that expressly probative Clair, 629, 660, added; 54 2 Cal.4th italics v. supra, People Mickey, supra, 612, 656; 870, 897.) Cal.3d see v. People Raley, supra, We do not error in the trial court’s failure to detailed perceive any provide it in as to each precise descriptions weighing process engaged Code 352. At the time of the to Evidence section photograph, pursuant evidence, motion in which defendant to exclude this limine pretrial by sought reviewed, de- as each was in most instances prosecutor, photograph scribed what each an linking depicted, frequently offering explanation of a with relevant Prior to the trial subject testimony. particular photograph court’s in limine on the for ruling, justifications elaborated prosecutor above, the trial several As noted admitting categories photographs. court heard defense as to each was made aware argument photograph, clearly of defendant’s contentions as to the nature of each arguably prejudicial and knew it in the photograph, weighing process was required engage Garceau, (See Evidence Code section 352. v. 6 required by People supra, 140, 178-179; 870, 897; Cal.4th v. v. Raley, People Cal.4th supra, Edelbacher, 983, 1016-1017.) 47 Cal.3d supra, appeal, right photographs 10 On defendant also asserts that introduction of the violated his penalty Eighth pursuant a reliable determination to the and Fourteenth Amendments to the trial, any object upon
United States Constitution. At defendant failed to based federal Clair, Therefore, supra, (See provision. constitutional this claim is waived. Benson, Nonetheless, 6; 754, 786, 7.) even Cal.4th fn. fn. error, court, if the claim had been made in the trial constitutional we would find no federal (People view of our photographs determination that the admitted in evidence. properly were Hardy 781].) Cal.Rptr.2d 825 P.2d review, the course of the in limine the court also excluded a
During that another Katherine at nearly duplicated photograph depicting photograph scene, withdrawn, other the crime ordered several ordered that photographs as well as the the two of William’s face be photographs photograph autopsy white, and, in black and ordered that a be presented example, photograph to illustrate wounds inflicted William’s without also body cropped upon his face. Several other showing photographs apparently depicted (See wounds in more detail were withdrawn graphic prosecutor. Cox, 618, 666.)11 People Cal.3d addition, In moved at the time defendant to strike the before photographs evidence, their introduction into the trial court commented on five of the it had determined that these were not photographs, generally indicating why instance, In one court excluded a view of Katherine it unduly prejudicial. *48 evidence, earlier had allowed and excluded several new photographs of one of the offered the because were by they duplicative prosecutor, record, The the comments of the earlier submitted. photographs including court, trial establishes that the court the value sufficiently weighed probative effect, of each and considered Clair, its photograph against potentially prejudicial 2 the of defense counsel. v. rejected arguments (People 629, 660; Edelbacher, 983, 1016-1017.) 47 Cal.3d People C. Torture-murder issues special-circumstance torture-murder 1. Denial motion set aside pretrial special circumstance Defendant, that the evidence at the prelimi maintaining presented in was insufficient to establish that the murder of William nary hearing torture, his motion volved contends the trial court erred in denying pretrial 995) of the torture to section to set aside the allegation special (pursuant circumstance.12
First, at we with defendant’s claim that the evidence disagree presented the as the nonfatal indicative of torture did preliminary hearing injuries to that allegation. not cause to hold defendant to answer as supply probable Second, rever even an erroneous denial of a section 995 motion justifies is able to demonstrate sal of a of conviction when a defendant judgment only bindings of Katherine’s appears photograph depicting 11 It that one the neck and the back head, over defend originally by prosecutor, withdrawn later was admitted into evidence cumulative; substantially objection. photograph but nor was it ant’s This was relevant prejudicial probative. more than 1988, 25, days following his more than 60 12 Defendant filed his motion on March 22, 1987, pretrial entitled to review writ arraignment September on and therefore was not 1510.) (§
137 from the show inadequate evidentiary at trial flowing purportedly prejudice 604, (1984) v. Alcala hearing. (People at the ing preliminary 775, 1126]; (1980) P.2d v. Pompa-Ortiz 685 Cal.Rptr. People 627-628 [205 941].) 612 P.2d Defendant has not Cal.3d 529 Cal.Rptr. 27 [165 Where the evidence at trial made such a here. showing produced amply the evidence at whether produced supports jury’s finding, any question cause is rendered hearing finding preliminary supported probable “ commitment, moot. Even there is insufficient evidence to support “[i]f the defendant cannot be said to be where sufficient evidence has prejudiced ’ ” been introduced at. . . trial” as to the charge support jury’s finding (1984) or as to the truth of the v. Moreno 158 (People Cal.App.3d allegation. 17]; (1987) 114 v. Moore 185 Cal.Rptr. Cal.App.3d [204 237]; (1982) v. Hunt 1017-1018 Cal.Rptr. Cal.App.3d [230 197]; (1981) 552-553 People Fagalilo Cal.Rptr. Cal.App.3d [184 , 698]; 532 fn. 3 Cal.Rptr. People Hampton Cal.App.3d [176 Chambers Cal.Rptr. Cal.App.3d Therefore, because, discussed, 815].) as post, evidence received at trial is sufficient to that the finding alleged support true, circumstance of murder torture was defendant’s special involving contention with to the section 995 motion is without merit. regard
2. instructional error as to burden torture Alleged proof special *49 circumstance
Defendant contends the trial court erred in the as to instructing jury the elements of the torture-murder circumstance. defend special Specifically, ant contends the trial court did not instruct the it must find that jury extreme, cruel, defendant did in inflict and physical pain suffering upon fact because, a human living being, orally the to a instructing jury according defendant, modified version of CALJIC No. 8.81.18 offered the court by extreme, cruel, stated that Mr. Crittenden did in fact inflict physical pain “If duration, and a human no matter how its suffering upon living being long awareness of the deceased is not a element of torture.” pain by necessary (Italics added.)
The written version of the instruction the trial court informed provided by circumstance, as follows: “To find that the jury referred to in special torture, true, these instructions as murder infliction of is each of involving facts must be a reasonable doubt: 1. Mr. following proved beyond [¶] to, Crittenden intended and did kill a human 2. The did being. killing [¶] constitute murder in the first 3. and from degree. Separate independent [¶] kill, the intent to Mr. Crittenden intent to torture the also had the specific victim. 4. In this the intent to torture means a intent regard specific [¶] extreme and
inflict a human for the prolonged pain upon living being extortion, of or for sadistic revenge, 5. purpose persuasion any purpose. [¶] Further, intent to torture must be established a specific beyond reason willful, able doubt to have been a deliberate and intent to premeditated inflict extreme and In this the word willful means prolonged pain. regard, intentional. The word deliberate means formed or arrived at as a result of careful and the considerations for and thought weighing against proposed course of action. The word means considered beforehand. premeditated [¶] extreme, cruel, Mr. 6. Crittenden did in and physical pain suffering fact inflict human no matter how its upon living being long duration. Awareness pain (Italics added.) the deceased is not a by necessary element torture.” noted, As the instruction to the added the trial court reading jury, word “if’ before the italicized The trial court’s inadvertent misread- passage. error, of the instruction does not to be because no reasonable ing appear would have understood the instruction to relieve the juror jury a determination that defendant did in fact inflict ex- necessity making treme, cruel, First, oral William. physical pain suffering upon not, defendant, instruction did as omit the element that defend- suggested by extreme, cruel, ant did in fact inflict physical pain suffering upon indicated, rather, fact, human but found that living being, jury if awareness of was not an element torture. pain
Second, (as defendant) received the correct modified version jury Garceau, (See of CALJIC No. 8.81.18 in its written form. People court’s omission of of CALJIC No. 189-190 3.19 portion [trial form]; written held harmless because received correct instruction in jurors (1989) v. Andrews Cal.3d 215-216 Cal.Rptr. 285]; P.2d v. Heishman 45 Cal.3d 163-165 753 P.2d see also v. McLain *50 97, 111, 630, fn. 2 757 P.2d were jurors Cal.Rptr. [presumption [249 569] instructions].) written version of The oral and written of guided by rendering the instruction also advised the that intent to inflict jury specific specifically extreme was an element of the circumstance. pain special addition, whether, counsel,
In we consider in of the may light argument the trial court’s of the instruction could have been slight misreading preju 411, (See (1991) dicial. v. Webster 54 Cal.3d 451-452 Cal.Rptr. [285 31, 814 P.2d am prosecutor’s argument exploited possible 1273] [whether 375, instructions]; (1988) in v. Howard 435-436 biguities 279]; (1991) 52 P.2d cf. Cal.3d People Pensinger Cal.Rptr. [243 counsel dis 1254-1255 805 P.2d Cal.Rptr. [278 899] [neither instruction].) In the cussed issue that was addressed in present inadequately case, stated: has closing argument, prosecutor “Finally, jury during did, cruel physical pain that Mr. Crittenden extreme fact, find inflict human no matter how its duration and that being long suffering upon living the victim is not a element of the necessary awareness of the pain by the evidence tend- (Italics added.) torture.” The also emphasized prosecutor William did extreme from the neck and to demonstrate that suffer ing pain the trial court’s this misreading, back Rather than injuries. exacerbating served to reinforce the correct written version of the instruction. argument Const., VI, 13.) (Cal. error art. We conclude was any nonprejudicial. § 3. evidence torture Sufficiencyof to the submitting
Defendant to contend that the trial court erred in appears that Wil- over defense circumstance jury, objection, special allegation torture, murder contend that the liam’s involved the infliction of and to evidence is insufficient to of the truth of that support jury’s finding circumstance. defendant was rendered Although special death-eligible circumstances, found true the other and there- jury’s having alleged special fore the or absence of the torture would presence circumstance have special we at this to review impact only upon penalty phase, proceed juncture of the evidence circumstance sufficiency supporting special finding. evidence, “In to the the re reviewing challenge sufficiency court must determine from the entire record whether a reasonable viewing trier of fact could have found that the sustained its burden of prosecution determination, a reasonable doubt. In the review proof beyond this making court must consider the evidence to the ing in a most favorable light the existence of fact the trier could judgment presume every reasonably deduce from the evidence in The test is whether support judgment. fact], substantial evidence of the trier of supports [conclusion whether the evidence a reasonable doubt.” proves guilt beyond (People 408, 432, Mincey, Hayes Cal.3d citing People 802 P.2d v. Johnson Cal.Rptr. Cal.3d 575-577 606 P.2d 16 A.L.R.4th 1255].)13 applied by 13 The standard ruling upon judgment acquittal a trial court a motion for
pursuant applied by appellate to section 1118.1 is the same as the in standard an court conviction, is, reviewing sufficiency the support of the evidence to that “whether from the evidence, therefrom, including any all reasonable inferences to be drawn there is substantial (People v. Ainsworth evidence of the charged.” existence of each element of the offense (1988) People Mincey, supra, Cal.Rptr. 45 Cal.3d 755 P.2d see [248 408, 432, 2.) 2 Cal.4th fn. a. Evidence extreme pain of infliction of
Defendant the failed to that evidence urges prosecution produce the five claimed to been would wounds have torturous demonstrating 190.2, caused William extreme We have observed: “Section pain. have (a)(18), if was subdivision circumstance murder provides special ‘[t]he For the of this intentional and involved the infliction of torture. purpose no section torture of the infliction of extreme physical pain requires proof ” matter how its duration.’ v. Wade 44 Cal.3d long (People 794], added; P.2d v. Davenport italics see People Cal.Rptr. 861].)14 (1985) 41 Cal.3d 710 P.2d case, the the relied In the during argument jury, prosecutor upon present of the three knife to the front of William’s neck and the injuries presence to his lower back to establish that William’s murder involved two injuries each of these injuries, torture. The forensic testified that pathologist (with the of the exit wound of the addition to the other injuries exception knife), but did not would have caused William she pain, testify expressly Nonetheless, forensic that William suffered extreme pain. pathologist’s themselves and of considered with the of the injuries testimony, photographs William the determination that William’s facial expression, amply support circumstance The instruction on this suffered extreme pain. jury special “extreme, cruel, it is clear a referred to the infliction physical pain,” caused could determine that the cumulative pain reasonable jury caused these including injuries, successive premortem injuries, particular mortal involved incurring William to suffer extreme pain beyond pain 870, 889.) (See 2 Cal.4th Raley, supra, wounds.
b. Evidence torture intent to demonstrate that the evidence is insufficient Defendant contends Defendant relies upon to cause William extreme pain. defendant intended torture, claim, murder by in the context of first degree asserted frequently the condition of torture was derived from that the evidence of intent to only is not of the victim’s wounds victim’s and that the severity body, torture, because even presence determinative of intent necessarily of violence” as with consistent with “an severe wounds be as may explosion 870, 888; v. Mincey, 2 Cal.4th (See People Raley, supra, torture. 247, 268.) 408, 432; People Davenport, supra, 6, 1990, section on June amended passed by the California electorate Proposition 190.2, circumstance), proof (a)(18) (torture requirement of special to delete the subdivision herein Because the offenses physical pain on the victim. that a defendant inflicted extreme 190.2, version of section January applicable standard is the committed in were (a)(18), 115. predating Proposition subdivision *52 As we have observed similar evaluating claims made the context of torture, to convictions for first challenges degree murder intent is by a state which, mind unless established (or defendant’s own by statements another witness’s of a defendant’s behavior in description committing offenses), must be the circumstances proved by commission surrounding of the offense v. Proctor 4 Cal.4th (People Cal.Rptr.2d _ 1100], 842 P.2d affd. in Tuilaepa v. 512 U.S. California 433; L.Ed.2d 114 S.Ct. 2 Cal.4th People Mincey, supra, People Pensinger, 1239), nature which include the and of the victim’s severity wounds. (People Mincey, supra, 433.) case,
In the of the present circumstances of the crime totality amply demonstrates defendant’s intent to torture William and neither an suggests violence,” nor, wounds, in the case of “explosion the nonfatal inadvertent careful, excessive, victims, infliction. The even and binding gagging effort, considerable involving of time and such as expenditure occurred in case, is present inconsistent with the generally an theory “explosion William, of violence” occurred. been so as having thoroughly incapacitated resistance, to be unable to offer even the and slightest been moved at having chair, some bedroom, still bound point, to the from the into the study suffered several neck injuries (including puncture wounds and a longer, wound) cutting and back injuries wounds) (consisting puncture caused by the knife. A number of these were cuts that were not fairly superficial clearly intended (as to be lethal also to be the case appeared with regard William’s fractured lower but jaw), were apparently meant instead to per- suade Katherine to time, execute a check to defendant. At payable the same their given nature and placement, these wounds could not have been inflicted All of inadvertently. them to have appear fatal chest preceded injury head These injuries. nonfatal injuries are consistent an only intent to with inflict extreme pain, provide substantial evidence the deter- supporting mination that this element of the circumstance was special proved.
c. Causal between relationship torture and death
Defendant contends the failed to prosecution establish a causal between the relationship Bittaker, acts of torture (See and death. Cal.3d 1101-1102 issue].) to decide the Defend [declining ant is mistaken as to the nature of the to establish the proof necessary of torture so presence as to of the torture-murder justify finding special 190.2, circumstance. Section (a)(18), subdivision for this provides special circumstance where murder was intentional and involved the “[t]he infliction (Italics added.) torture” Unlike section which defines the crime of
142 torture,” murder murder means of. . first torture as . degree “perpetrated by of a causal between the tortur thereby positing requirement relationship Proctor, 499, 530; 4 v. ous act and death v. Cal.4th (People supra, People 1210, 1239; 41 52 Cal.3d see Pensinger, supra, People Davenport, supra, 247, 190.2, 267), (a)(18), Cal.3d section subdivision does not its terms (1985) such a causal v. Hoban 176 require (People Cal.App.3d relationship. Cal.3d cf. People Pensinger, supra, [221 causation, that statute defines torture because requires [§ murder, murder torture].) as Because of murder means of’ other “by types murder, such as are as of the premeditated also defined murder first degree, we believe the section broader Legislature, by employing language 190.2, (a)(18), subdivision (within intended to the torture-murder encompass frame, circumstance) special ácts of torture within a time occurring larger (Ibid.)15 those that including would not have caused death. We conclude the was not of torture inflicted prosecution that acts required prove upon Therefore, William were the cause his death. we also defendant’s reject related contention that the on torture im circumstance instruction special failed to there be a causal between properly require relationship torture and the victim’s death.
D. Instruction as to reasonable doubt
1. CALJIC No. 2.90 definition
Defendant contends that the of reasonable doubt con 1096, 1096a), tained in CALJIC No. inasmuch as it contains (§§ 2.90 dilutes references to “moral evidence” and “moral certainty,” impermissibly a reason burden prosecution’s constitutionally imposed proof beyond _ (1994) able doubt.16 In Victor v. Nebraska 511 U.S. L.Ed.2d [127 155,185-186 1239], 114 S.Ct. v. Sandoval 4 Cal.4th affirming 862], 841 P.2d the United States Court Cal.Rptr.2d Supreme California is constitutional. concluded that the reasonable doubt instruction 190.2, (a)(18), to kill. require 15 Section subdivision does that the defendant act with intent Proctor, 499, 535; (People Davenport, however, not, 271.) requirement That does establish that the torture must cause the death. doubt, provides possible 16 The that a doubt is “not a mere because instruction reasonable affairs, evidence, open to some everything relating depending human on moral is which, possible imaginary comparison the entire or doubt. It is that state the case after evidence, they jurors the minds of in that condition that consideration of all the leaves conviction, charge.” of the say they abiding certainty, cannot feel an to a moral of the truth that, light pending review before the United States requested Defendant of the then (cert, (1993)_U.S__[125 sub nom. Sandoval v. California granted L.Ed.2d Supreme Court 40]) constitutionality doubt instruction 114 S.Ct. of California’s reasonable (CALJIC 2.90), briefing granted on that issue. We permitted supplemental No. he be to file request. defendant’s (See v. Freeman 501-505 Cal.Rptr.2d 249].) 882 P.2d
The court in Victor the reviewed use of the term “moral evi- initially dence,” that, doubt,” in the was noting defining “reasonable the phrase jury affairs, told that moral to human on “everything relating depending evidence, court is to some or The open possible high doubt.” imaginary words, other in . . . absolute is unattainable explained: certainty “[I]n sentence, evidence, only matters to human affairs. Moral can relating in this — intro- mean evidence offered to the such matters empirical prove proof Nebraska, U.S._,_[127 (Victor duced at trial.” L.Ed.2d supra, 511 583, 595].) The court observed was reinforced high that this conclusion other instructions that the the facts from the requiring jurors determine only trial, evidence, evidence received at the nature that defining and requiring — the not to jurors allow themselves to be or swayed by pity prejudice instructions that directed the correctly jurors’ attention to the facts of the them, case before and not to the ethics or of Sandoval’s criminal morality (Ibid.) acts.
The court also high reviewed the “moral phrase certainty,” concluding that, abstract, in one although that is in the the respect phrase ambiguous other instructions in the provided case lent content to the inasmuch phrase, “ as the were conviction, told jurors must have ‘an they to moral abiding ” of the certainty, truth of the and “an instruction cast in charge,’ terms of an conviction as to abiding without guilt, reference to moral certainty, correctly states the government’s U.S____[127 burden of (511 proof. [Citation.]” L.Ed.2d 596].) The court observed: had informed judge already “[T]he the that jury matters relating human affairs are moral evidence proven by [citation]; giving same meaning the word moral in this of the part instruction, moral can mean certainty only with to human certainty respect instruction, therefore, affairs. As used in this are we satisfied that the reference to moral in certainty, with the conjunction conviction abiding ‘ language, the factfinder impress the need to reach a upon [ed] subjective state of near U.S___ certitude of the (511 guilt accused.’ [Citation.]” _[127 that, L.Ed.2d 596].) The court further in view of the explained additional instructions to determine the concerning jurors’ facts duty from the evidence at trial and their not to be or duty swayed by pity it was prejudice, understood the words moral “reasonably likely jury either as certainty a standard of lower suggesting than due proof process or as requires allowing conviction on factors other than the government’s _ (Id. at proof.” 597].) L.Ed.2d at p. p. case,
In the present received on jury instruction reasonable doubt in a form identical Moreover, to that provided Sandoval. also jurors determine the facts they standard instructions requiring
received the at trial and that not allow themselves they from the evidence presented solely 1.00, (CALJIC 1.03) Accordingly, or Nos. to be swayed by pity prejudice. no error. we conclude there was evidence instructions on circumstantial
2. CALJIC contends that four other instructions provided Defendant also beyond of proof case undermined the constitutional requirement present instructions, sufficiency In which to the a reasonable doubt. these pertained (CALJIC No. (1) the offenses evidence to prove charged of circumstantial (CALJIC 2.02), (3) No. 2.01), (2) special mental state required *55 mental (CALJIC 8.83), (4) the No. required circumstance allegations 8.83.1), No. (CALJIC the circumstance allegations state as to special that, evidence of the if one the trial court informed jury interpretation be un to and the other interpretation to to be reasonable you “appears reasonable, reject interpretation must the reasonable you accept unreasonable.” that, to of their duty informing jurors defendant urges by
Specifically, as long defendant’s establishing guilt of the evidence an accept interpretation reasonable, instructions (emphasized to be as that interpretation appears had a that the presented to the argument jury prosecution prosecutor’s to determine evidence) the jury of the permitted reasonable interpretation the reasonable less than that mandated by based guilt upon degree proof 368, 358, 364 L.Ed.2d (see (1970) U.S. In re 397 Winship [25 doubt standard U.S. 375, 1068, 1072]; (1990) 498 39 see also v. Louisiana Cage S.Ct. 90 thus 339, that the instructions 328].) Defendant urges L.Ed.2d 111 S.Ct. [112 unconstitutional, conclusive presump- mandatory, functioned to an convey 263, 265-266 (1989) U.S. (See [105 Carella v. 491 tion of guilt. California 442 221-222, 2419]; (1979) 218, v. Montana S.Ct. Sandstrom L.Ed.2d 109 45-46, 510, 39, 2450].) S.Ct. 515 L.Ed.2d 99 U.S. [61 v. Noguera (People contentions. analogous have rejected We repeatedly 400, 1160], 599, 842 P.2d (1993) 4 Cal.4th 633-634 Cal.Rptr.2d [15 702, 1183, 842 P.2d (1992) Cal.Rptr.2d 1234-1235 3 Cal.4th [14 Johnson 942-943; Wilson, Jennings 1]; 1009].) When P.2d 807 (1991) 385-386 Cal.Rptr. 53 Cal.3d [279 context, the remaining with only read in is phrase the questioned instructions, with related but also together each instruction within language instruction, was the jury it is clear that doubt the reasonable including the evidence and unreasonable interpretations only reject required evidence. with the was consistent that a reasonable interpretation accept 334, 386.) v. Jennings, supra, (People Penalty III. Phase Issues
A. error reversal Alleged guilt phase requiring determination penalty Defendant contends that error at the law any if state occurring guilt phase, error, would reversal of the determination if there is require penalty reasonable that the would rendered possibility jury have a different verdict absent the (1988) error. v. Brown (People Cal.3d 446-448 1135].) P.2d Defendant also contends if error any nature, occurred of a federal constitutional then an even standard of stricter (See reversal should Yates v. Evatt apply. 500 U.S. 402-405 [114 432, 448-449, L.Ed.2d S.Ct. Chapman, California 705, 710-711, U.S. L.Ed.2d 1065].) 87 S.Ct. 24 A.L.R.3d Defendant asserts that admission into evidence of his statements to improper victims, and of police of the photographs murder and erroneous submission of the torture special-circumstance consti allegation jury, tuted error prejudicial at the penalty of defendant’s trial. As phase indicated above, we have concluded that no error occurred with to these regard aspects guilt phase the trial. Accordingly, these claims afford no basis for reversal of the penalty determination.
B. Alleged prosecutorial misconduct Defendant raises a number of contentions related to the prosecutor’s comments defendant’s lack concerning of remorse. During presentation of defense evidence in at mitigation the penalty defendant’s sister phase, testified she her, had written letters to defendant. While cross-examining prosecutor letters, Williams, “In inquired: of those any Mrs. did Mr. Crit- tenden ever express you remorse for any Defense killing Chiapellas?” counsel on the objected basis of The was overruled. relevancy. objection “ Defendant’s answered, sister No. He responded, didn’t. He never said like this, that. He anything told me he always did not commit and I believe brother.” my
The then prosecutor commenced his After argument. closing commenting that the defense witnesses had been for the sole presented purpose defendant, that, arousing sympathy commented before prosecutor “investing cause, one scintilla of sympathy” defendant’s should jury ever, “once, consider whether defendant had expressed single feeling remorse about the annihilation of this After elderly couple.” defining remorse, concept that its value is commenting recognized universally, several times that no repeating witnesses testified that defendant had ex- remorse, pressed any the prosecutor concluded on this “And it would point: under a Mr. Crittenden to live consider allowing me that before you seem to ask to see at least of parole, you’d life without the possibility sentence of of these Mr. Crittenden for the perpetration remorse from some evidence of crimes.” that, admo timely objection because a we have concluded
Generally, remarks a prosecutor’s improper nition would cure harm from any flowing referred to improperly or to the a claim argument prosecutor jury, during is not made waived if an objection defendant’s lack of remorse is Code, 353; (Evid. raised on appeal. the trial on the ground specific § 271, see, 335-336 Cal.Rptr.2d v. Roberts 2 Cal.4th [6 People e.g., 86, 208; 274]; People 2 Cal.4th People Hardy, supra, 826 P.2d 522, 593; Cal.3d Wharton, v. Bell People 129], (1989) 48 Cal.3d v. Allison 778 P.2d Cal.Rptr. Cummings see also 771 P.2d 902-903 [258 Therefore, 1].) 850 P.2d (1993) 4 Cal.4th Cal.Rptr.2d claim that the (other than the prosecutor claims described below defendant’s not relevant to the penalty evidence to consider prejudicial invited jury determination) have been waived.
Nonetheless, object that counsel’s failure claim in view potential the state his under denied him rights on urged appeal on the specific grounds counsel, review we effective assistance Constitutions to the and federal (See Hardy, on the merits. these claims 208-209.) claim Doyle
1.
*57
under
error
committed
that the prosecutor
Defendant contends
91, 98,
610,
Defendant contends the references prosecutor’s cross-exam during ination and closing to defendant’s lack remorse violated argument (1965) v. established 380 609 principles L.Ed.2d U.S. [14 Griffin California 106, 1229], 85 a S.Ct. decision from that prohibits prosecutors a failure defendant’s to commenting upon testify. above, as indicated comment
Although, prosecution upon may refer remorse, defendant’s lack in so it doing not to the defendant’s may (See 1233, 1329; failure to v. testify. People Cummings, supra, 86, 209; Breaux, v. 2 People Hardy, 1 supra, Cal.4th People supra, 281, 313; 68, (1991) v. Beardslee 53 113-114 People Cal.3d Cal.Rptr. [279 Bell, 1311]; 502, 548; 806 P.2d Cal.3d supra, People (1989) Morales Cal.3d 570-571 770 P.2d Cal.Rptr. [257 v. Keenan 46 Cal.3d 758 P.2d Cal.Rptr. 1081].) we Similarly, have recognized that a that a prosecutor may urge defendant’s failure take the stand at the phase, order to confess penalty his guilt after been having found guilty, demonstrates lack of remorse. 1210, 1270-1271; (People Pensinger, see People v. Keenan, 509; Cal.3d v. Coleman Cal.2d 248].) 1168-1169 P.2d case,
In the present brief cross-examination prosecutor’s and subse- comments quent during closing argument lack of cannot concerning remorse be fairly to refer interpreted to defendant’s failure The reference testify. cross-examination during occurred as part prosecutor’s inquiry whether, her, defendant’s sister letters to had writing defendant ever remorse. The expressed prosecutor’s comment during closing argument referred to simply defendant’s callous after behavior and oc- killings curred during prosecutor’s review of the circumstances and nature of these crimes (See defendant’s activities their after commission. *58 Breaux, v. People supra, 313.) The reference to prosecutor’s defendant’s of lack remorse was not a his comment failure to upon testify the or to during trial take the the stand confess his guilt guilt following that, but was a phase, legitimate reference to the circumstance in communi- individuals, cations with numerous defendant never con- expressed regret 1233, 1329; the murders. cerning v. Cal.4th (People Cummings, supra, Keenan, v. 509.) 46 Cal.3d supra, determination Reliability penalty 3. the comments defendant’s prosecutor’s upon
Defendant contends relevant the to consider evidence not jury prejudicial lack of remorse invited Eighth under the determination and thus violated his the right penalty Mississippi (Johnson v. to a reliable determination penalty. Amendment deter [sentencing U.S. 578 L.Ed.2d 108 S.Ct. 1981] [100 factors]; v. Zant totally not be irrelevant may predicated upon mination 862, 884-885, 887, (1983) 462 fn. 24 L.Ed.2d Stephens U.S. discussion, 254-255, 256,103 in we 2733].) As S.Ct. indicated the preceding consideration, remorse have concluded that lack of is a relevant repeatedly Accord is as a factor. because the of remorse regarded mitigating presence it consider defendant’s the to the that suggestion jury ingly, prosecutor’s did render the determination unreliable. lack of remorse not penalty claim Boyd 4. during
Defendant contends the references cross-exam prosecutor’s constituted ination and to defendant’s lack remorse argument prohibited v. factor in In People Boyd references to a nonstatutory aggravation. 782], that P.2d we held a prosecutor
In no evidence additional prosecutor presented present assertion, the question of the trial. to defendant’s Contrary penalty phase of any expres- the absence subsequent argument eliciting, emphasizing, did the commission of offenses sion of remorse on defendant’s after part factor in but simply of a nonstatutory aggravation, suggest presence (see lack of remorse as a factor mitigation, underscored the of evidence 115, 197.) Gallego, claim Davenport 5. defend- emphasizing claims the prosecutor’s argument defendant
Finally, People Davenport, supra, rule in ant’s of remorse violated lack *59 247, 288-290, that the that the absence of prosecutor Cal.3d may argue the of an factor constitutes factor. Neither mitigating presence aggravating the nor his referred to ab- argument the prosecutor’s question subsequent sence of remorse as a factor in defend- aggravation; they merely emphasized ant’s lack of remorse—an whose we have emphasis propriety repeatedly Sims, (See, 464-465; endorsed. supra, People e.g., 86, 210; Hardy, Ashmus supra, People v. Keenan,
992-993 820 P.2d Cal.Rptr.2d 478, 510; Allison, 879, 902-903.) Cal.3d cf. Cal.3d C. Denial motion to modifyjudgment of
1. lack remorse Defendant’s of of During consideration the automatic motion to the modify judgment 190.4, to section pursuant (e), subdivision the trial court reviewed the 190.3, (a) (the evidence pertinent section factor circumstances the offenses). victims, The court noted the advanced the that William was age defenseless, partially that the victims were handicapped, rendered the bru- wounds, tality (some victims’ chest the wounds multiple clearly nonfatal) faces, inflicted the upon victims’ heads and the nature of the mouth, nonfatal wounds inflicted on William’s the jaw needless inflic- stomach, tion of pain upon Katherine wounds to the through lip and the caused the removal indignity by of Katherine’s if underclothing that oc- (or curred to her prior death if of that act depravity occurring after her death), the planning defendant in engaged by to the scene and transporting William, using knife to inflict slaughtering torture of injury, stabbing the sophistication (evidenced of the offenses by defendant’s having brought from his victims, own home a used to bind the pillowcase as well as his care in not evidence of leaving his presence), circumstance that defendant was motivated offenses, financial gain, callousness defendant’s at repeated attempts and the escape, of Kronen. kidnapping In the factors, course of this recitation of the trial court stated: “Eleven. Lack of remorse. The defendant wrote on both bathrooms the epitaph William and Katherine Chiapella that horror visited on the Chiapella household was ‘just This beginning.’ statement was not used to show any future Also, nor dangerous tendencies is it considered as such here. although lack an remorse is not factor in the aggravating scheme of aggravating factors, is a mitigating it circumstance of the crime which bemay properly considered on the bearing issue of the circumstances the com- surrounding [*]Q mission of the crime. Additionally, defendant conducted himself as his normal self within happy, minutes of the He went killings. with his
150 walk, dinner, future, for a then to talked about the and happily girlfriend the His conduct such that a total of conscience went to movies. was lack on he held the in is the defendant’s is demonstrated. That victims part contempt the of Mrs. as an lurid and obscene object exhibited use of by Chiapella fabrications.” contends the court’s use defendant’s post-
Defendant trial of conduct, conscience,” offense defendant’s “total lack of and defendant’s “lurid and fabrications” Katherine was involving impermissible 762, obscene 772-776, rule in 38 People Boyd, supra, under the v. Cal.3d expressed in not be that evidence matter may aggravation bearing upon nonstatutory considered, and was under the set forth in People also impermissible holding 247, 288-290, v. 41 Cal.3d that the of a Davenport, supra, mitigat absence factor be considered a factor in ing may aggravation. not 190.4, section in an for modi
Pursuant to ruling upon application of a the the court must fication verdict death trial imposing penalty, reweigh of the evidence and circumstances and independently aggravating mitigating whether, of determine in its the the judgment, weight then independent 190.4, v. (e); evidence verdict. subd. (§ People supports jury’s Diaz 353, 495, 1171]; 834 (1993) People P.2d v. Cal.Rptr.2d [11 787, (1991) Edwards 54 Cal.3d 819 P.2d Cal.Rptr.2d (1989) 49 Cal.3d 782 P.2d Lang Cal.Rptr. “consider, account, 627].) The trial must into be guided court take and by” referred section and circumstances to in 190.3. mitigating aggravating above, remorse, lack As indicated in the discussion because it factor, deemed factor in the absence of a is a relevant mitigating suggests to whether in those aggravation outweigh determination as the factors jury’s in cutor, is thus an comment mitigation, subject by prose appropriate as she does that lack of remorse constitutes a so he or not long argue court, in a motion for factor in Because trial aggravation. ruling upon verdict, is with that determination modification a death charged reviewing guided jury, in same factors light aggravating mitigating committed in consideration to was the trial court by giving no error proper (See lack Marshall 50 Cal.3d defendant’s of remorse. 676].)17 P.2d Cal.Rptr. 943-944 [269 case, comments that it it is clear from the trial court’s In present lack could be considered as a factor aggrava- court, understood of remorse that the the circumstance argument, tion. defendant’s Contrary threatening (e.g., at of the offense 17 Remorseless conduct or comment the scene mirrors) aggravation pursuant may considered in message written defendant on the be 452; Webster, 190.3, (People (a) Gonzalez 54 Cal.3d section factor 1159]), although P.2d we have 1231-1232 [275 (Id. 1232.) may p. considered. at post-offense held that lack of remorse not be *61 offenses, the circumstances discussed the evaluating post-offense remorse, of that was indicative of a lack of does not behavior defendant the trial court defendant’s lack of remorse as suggest actually employed either circumstance in The behavior noted the court occurred aggravation. commis- the offenses or within a few of their immediately following days sion, its and court’s consideration of that behavior followed logically err, of in the consideration the nature the offenses. The trial court did not offenses, reflecting briefly course of its review of the circumstances in to upon evidence relevant the absence of factor. mitigating 2. Consideration probation report of defendant’s
Defendant contends the trial court considered the improperly pro bation in for report modification of the verdict ruling upon application that, death. We have held in previously an automatic motion for ruling upon modification of the the trial court consider the evidence penalty, may only before the and that therefore it is error to jury, consider the probation report, Clark, 950, 1038; a matter before the 5 v. jury. (People supra, Cal.4th 610, v. (1993) 788, Wader People 5 Cal.4th 665 854 P.2d Cal.Rptr.2d [20 80]; 792, (1992) 2 People 24, v. Fauber Cal.4th 866 831 Cal.Rptr.2d P.2d [9 Nonetheless, 249].) in the event the trial court has considered the we report, assume the court was not influenced absent improperly thereby, evidence in 1048, the record to the v. contrary. (People Berryman (1993) 6 Cal.4th 1106 867, 40]; Clark, 864 Cal.Rptr.2d P.2d 5 [25 v. Cal.4th People supra, 1038-1039; Fauber, People 866; v. supra, Cal.4th see v. People Brown Cal.4th 862 P.2d cf. Cal.Rptr.2d v. Lewis 50 Cal.3d 786 P.2d 892].)
The record in the case present reveals that the trial court reviewed the in factors aggravation and mitigation and then denied the automatic motion for modification. The court thereafter to sentence defendant. proceeded Immediately prior sentencing, the court noted that it had considered the probation reports for both the murder and the offenses. kidnapping
Because there nowas recess between the at which the proceedings trial court considered the motion to and the at which it modify proceedings sentence, imposed it that at the appears time it reviewed and ruled upon the application modification the penalty the court had read and already considered the probation report. That circumstance did not result in any defendant, prejudice however. The court did not allude to probation report its during review and determination of the motion modify death verdict. The court reviewed each of the and potentially aggravating mitigat factors, of, ing to, determining nature attributable weight each the evidence
factor, during based presented detailed reasons upon articulated the court made its determination discloses that Our review the trial. trial, weight upon at placing great evidence submitted upon reliance 950, 1038.) Clark, 5 Cal.4th supra, (People of the crime. circumstances in consid error that the court’s apparent reasonable There is no possibility Wader, (People supra, its decision. affected the probation report ering 866-867; Fauber, 610, 666-667; Gonzalez, 1238.) any Nor do we detect *62 to the trial court that would remand error justify federal constitutional the motion. reconsideration of Code section 190.3 Penal Constitutionality
D. of discretion Prosecutorial 1. law is unconstitutionally that the death penalty
Defendant contends of in powers, and violates the principle separation and arbitrary capricious whether his or her decision district attorney, through that it to each delegates decide which defendants effectively the death penalty, power to seek to death. We disagree. will be sentenced those discretion to select we have explained, prosecutorial
As previously not, does in will be sought in which the death actually cases penalty eligible itself, system, capital punishment evidence an and arbitrary capricious and of due underlying process such discretion transgress principles nor does laws, cruel and law, against or the prohibition protection equal 988, 1024 (1994) 7 Cal.4th [30 v. (People Kirkpatrick unusual punishment. 478, Keenan, Cal.3d 818, 248]; 46 supra, P.2d v. People 874 Cal.Rptr.2d 932, Ashmus, we 505; accord, 980.) Similarly, 54 Cal.3d v. People supra, constitutional not violate the law does conclude that the death penalty Const., Ill, 3) (Cal. by delegating art. of powers of separation principle § to decide that entity’s power to the prosecution through sentencing authority all at sentencing power because ultimate the death penalty, whether seek 7 Cal.4th Kirkpatrick, supra, v. (People remains in the branch. judicial times 988, 1024.) and other safeguards,
2. lack Alleged procedural defects lacks for the death statute penalty Defendant contends 1978 providing We defects. previ- contains numerous substantive safeguards procedural decline defendant’s of such claims and have the majority ously rejected however, below the nature we to reconsider our rulings; specify invitation no that there is have concluded them. We the claims denying previously 153 190.3) that the statute define which factors are (§ aggravating requirement are and the need be labeled as exclusively which factors mitigating, 877, (1993) or v. 5 Cal.4th Montiel 943 aggravating mitigating. (People [21 1148, v. P.2d McPeters Cal.4th Cal.Rptr.2d 146].) 832 P.2d is no that the There Cal.Rptr.2d requirement that, death, fix find court instruct the before it at it must jury may penalty a reasonable that the beyond outweigh doubt circumstances aggravating circumstances, doubt the and that death is a reasonable mitigating beyond 569-570; Diaz, (People v. 3 Cal.4th penalty. supra, appropriate Clark, 170; Cal.4th v. Livaditis 2 Cal.4th supra, People 297]; McPeters, 831 P.2d see People v. Cal.Rptr.2d supra, 1148, 1195.) it The trial court is not that instruct the required jury must find true factor a reasonable doubt any aggravating beyond (People Livaditis, 759, 785; 54 Cal.3d People Mickey, supra, 701-702; Benson, 807-808), nor is there is any requirement that the true jury unanimously find the circumstance or circumstances its verdict. aggravation (People v. support Bacigalupo *63 cert, 103, (1991) 335, 1 559], Cal.4th 147 820 Cal.Rptr.2d P.2d granted [2 U.S._[121 5, and vacated v. (1992) Bacigalupo 503 L.Ed.2d California 32], 113 S.Ct. on (1993) remand v. 6 subsequent opn. People Bacigalupo 808, Cox, 808]; Cal.4th 457 P.2d 862 v. Cal.Rptr.2d People supra, [24 53 618, 692; Andrews, 200, Cal.3d v. People 233.) 49 Cal.3d The supra, court need not that the require jury submit written as to findings aggravat which circumstances it relied in ing the death v. upon imposing (People penalty. Livaditis, 759, 786; 2 931, Cal.4th supra, People Kelly v. 51 Cal.3d 160, 970 800 P.2d Cal.Rptr. v. Medina 51 People [275 Cal.3d 1282].) 909-910 799 P.2d No constitutional infir arises from mity permitting prosecutor to peremptorily challenge pro to, spective jurors over, who indicate or concern opposition death because both penalty, sides may on the basis of employ challenges juror Pride, attitudes toward (See capital punishment. v. 3 People supra, Cal.4th 195, 227-228; Livaditis, 759, 771-772; 2 People v. supra, Cal.4th v. Edwards, 54 supra, 831.) Cal.3d claims,
Defendant also without or argument citation of that the authority, death law is penalty unconstitutional because it does not contain a presump- tion that life without is the possibility sentence. parole appropriate Generally, we do not consider contentions unsupported by or argument Clair, authority. 629, 653, 2; v. 2 (People Cal.4th supra, fn. v. Roberts, 2 supra, 340-341.) Cal.4th from this we Apart infirmity, reject the substance of Johnson, defendant’s claim. v. 3 (People Cal.4th supra, 1183, 1256; Visciotti, People supra, 79.)
Lastly, combination of the deficiencies foregoing by asserted defend- ant does establish for basis the death collectively rejecting law. penalty (See Clair, 17.) fn. death-eligible to narrow the class
3. Failure defendants Amendment’s Eighth proscription Defendant urges basis a meaningful which requires cruel and unusual punishment, against from is in which the death penalty properly imposed the cases distinguishing 420, (1980) 446 U.S. (Godfrey Georgia in which it is not those 398, 409-410, by not satisfied S.Ct. is opn.)), (plur. L.Ed.2d 1759] found guilty the class of defendants that fails to narrow death law penalty for the death penalty. murder who are eligible first degree subjecting of murder categories contends that the In defendant particular, to the have been expanded for the death penalty to eligibility a defendant narrowing the mandated law does not perform that the death penalty extent asserts, of an original is reflective defendant development, function. This law, to of the proponents apply harbored purpose, by unconstitutional claim, In of this defendant case of murder. death every support penalty , be, are, are of murders or likely that the most common types asserts relies Defendant also upon circumstance covered by special provisions. the constitutionality lying-in-wait this court’s decision upholding Morales, 557), as well circumstance (People special law certain [adding as the voters Proposition passage 190.2, officer (a)(7) (murder of a peace subd. enforcement personnel § 190.2, subd. duties]) 115 (adding in official and Proposition engaged § instrument]). (a)(17)(xi) with a foreign [rape *64 6 Cal.4th Bacigalupo, supra, in v. People As we recently explained 457, 465, distinction between Court has drawn a the United States Supreme of sentencing, describing and “selection” capital the “narrowing” aspects “ of the circum definition’ as to a state’s ‘legislative “narrowing” pertaining for the death class of eligible a defendant within the persons stances placing 235, 862, L.Ed.2d 462 U.S. 878 (Zant supra,] v. Stephens[, [77 penalty. 398, 420, L.Ed.2d 250-251]; 446 U.S. 428 Georgia, supra, v. Godfrey [64 Amendment, the 406].) To with the of the Eighth requirements comport the scheme that serves definition of a state’s punishment legislative capital the class of eligi function must ‘circumscribe persons requisite ‘narrowing’ 862, 878 (Zant v. 462 U.S. Stephens, supra, [77 ble for the death penalty.’ basis 250-251].) it must afford some objective L.Ed.2d at Additionally, pp. from been a case in which the death has imposed for distinguishing penalty 446 U.S. has not. v. (Godfrey Georgia, supra, cases in which it many ‘some 409-410].) A definition lacking 433 L.Ed.2d at legislative pp. [64 for the death class of eligible to limit the persons narrowing principle’ is deemed to be for review no basis having objective appellate penalty v. Cartwright Amendment. (Maynard under vague Eighth impermissibly 356,] v. [(1988) 486 L.Ed.2d 108 S.Ct. Godfrey U.S. [100 406].)” v. at at p. (People U.S. L.Ed.2d Georgia, supra, p. 457, 465.) 6 Cal.4th Bacigalupo, supra, death
As we further under the 1978 explained Bacigalupo, statute the role a death circumstances penalty special requiring doubt, verdict be a reasonable premised jury finding, upon beyond “ circumstance, one truth of at least the death special ‘thereby limiting] murders,” sentence a small subclass’ is identical to their role essentially law, under California’s 1977 death which the United States penalty Supreme Court in Pulley v. Harris 465 U.S. and footnote 13 upheld 29, 40-41, L.Ed.2d (also 184 S.Ct. that California’s noting 1978 death 871] law penalty greatly circumstances). number of special expanded (People California, 467.) Bacigalupo, 6 Cal.4th “In supra, circum special ‘ ’ ’ ‘ discretion, stances serve to “guide” “channel” jury ‘by strictly ” confining class of offenders death eligible penalty.’ [Citation.] (Ibid.; 1015.) Kirkpatrick, supra, Cal.4th
In of his that the circumstances support theory nonetheless inade- special narrow the class of death quately defendant asserts that eligibles, “[p]robably the most common of murders in California are types those occurring arising deals, from drug robberies and/or and domestic all of burglaries disputes,” fall, fall, which or are or likely within one another of category Wader, enumerated circumstances. special In contention, the defendant made virtually same which we ob- rejected, states that serving: all these of murders types “[Defendant] are likely as crimes under a qualify capital circumstance. But special defendant has record, demonstrated on this or sources of through which we might take notice, judicial accurate, that, that his claims are or were empirically they if correct, this would require the invalidation (Id. the death law." penalty at p. added; Brown, 322, 339, italics see 16.) fn. We find defendant’s contention in the case present for the same unpersuasive *65 reasons.
We also have the specifically rejected contention broad assertedly of application the lying-in-wait special circumstance negates the function of the death law penalty narrow the designed class of defend- death-eligible (See Wader, ants. People 610, 669; Roberts, v. 5 supra, Cal.4th v. People supra, 2 322-323.) Moreover, Cal.4th of statutory addition several victims, of subcategories the murder of whom now the basis may provide and allegation circumstance, of a finding special occurred subsequent the commission of the offenses present and has therefore no bearing upon constitutionality the death statute penalty to defendant. applicable
156 however, this we believe the statutory Even into account taking expansion, not of California’s law does death-eligibility component capital punishment bounds. we defendant’s contention. Accordingly, reject exceed constitutional 4. to channel the discretion in Alleged jury’s penalty failure determination brief,
In his defendant also contends the phase supplemental penalty as required by instructions failed to channel the discretion jury’s sentencing Amendments. U.S. v. 503 (Stringer and Fourteenth Black Eighth 1130].) 222 112 S.Ct. he that of L.Ed.2d Specifically, complains [117 (a), factors in factor the circumstances of the the section 190.3 aggravation, crime, (i), the are In and factor defendant’s age, unconstitutionally vague. 762-763, U.S._,_[129 v. L.Ed.2d California, supra, Tuilaepa 2630], the United States Court affirmed the Supreme validity S.Ct. of the crime the defendant’s the factors circumstances and comprising 599, 648-649; (See v. v. Cal.4th age. People Noguera, supra, People (1992) 4 842 P.2d Cal.4th 594-595 Tuilaepa Cal.Rptr.2d Proctor, 499, 550-551; see also v. v. Cal.4th 1048, 1096-1097; People Bacigalupo, supra, Berryman, supra, 457, 478-479.) Defendant also contends it was error for the trial Cal.4th court, death the automatic motion for modification ruling upon verdict, (a). this factor is factor Because assertedly vague rely upon we defendant’s claim. reject unconstitutionally vague,
5. and Alleged arbitrary, discriminatory, disproportionate application penalty
Defendant contends that of the death is arbi penalty imposition under the due trary, discriminatory, disproportionate process equal clauses and violates the cruel and unusual prohibitions against protection re set forth the California and federal Constitutions. He punishment court, court, that the trial and now that this undertake a quested requests sentence review. comparative
We have observed on review occasions that intercase prior proportionality Harris, is not the federal Constitution. 465 U.S. (Pulley required by 29, 40-51]; 50-51 L.Ed.2d People Mincey, supra, 476; Moreover, 645.) this court Hayes, supra, under has held that such review is not mandated our state consistently *66 in Constitution order to ensure due and nor is it process equal protection, in order to avoid the infliction of cruel or unusual required punishment. 408, 476; Lewis, 2 v. Cal.4th v. (People Mincey, supra, People 50 supra,
157 660, 262, 285; Babbitt, 725.) v. 45 Cal.3d In People supra, Cal.3d particular, defendant, by premised we have now made previously rejected argument that sentence review” under upon equal protection principles, “disparate 1170, (f), must be in cases. v. capital (People section subdivision performed 1222, Cox, 618, 691; 53 Cal.3d v. Allen 42 Cal.3d supra, People 849, 115].) P.2d 1286-1288 729 [232 event,
In unless a defendant demonstrates that the state’s any capital manner, law in an and the circum punishment operates arbitrary capricious death, stance he or she has been sentenced to be while others who may sentence, situated have received a lesser similarly does establish dispro Eighth violative of the Amendment. v. portionality (McCleskey Kemp 279, 287-288, 262, U.S. 481 306-307 L.Ed.2d 107 S.Ct. v. People Visciotti, Moreover, 77.) supra, Cal.4th afforded the opportunities and, prosecutor discretionary action particular, discretionary leniency defendants, toward do not render particular capital sentencing provision or v. arbitrary Kemp, 481 U.S. 307-308 & capricious. (McCleskey supra, 262, 288-289]; Marshall, fn. 28 L.Ed.2d v. People supra, Cal.3d 946-947; Keenan, v. People supra, 505-506.) Cal.3d referred,
We have considered the material which defendant has consist of defense counsel’s case ing summaries for prosecutions involving defendants in a death-eligible arising area Butte and 6-county including Counties, Placer offered at the time defendant’s motion for modification of the death verdict Even pursuant section 190.4. assuming accuracy (which established), the summaries is not otherwise the penalties sought (and reflect other than imposed) exercise of nothing prosec appropriate utorial discretion in light factual circumstances of each unique case. We conclude that the to invalidate California’s type showing required Morris, (See death law has not been penalty made. supra, 25; Marshall, 946-947; Cal.3d fn. 50 Cal.3d McLain, 121.)
Defendant also that this court an requests intracase perform propor review, tionality that the urging sentence was imposed disproportionate of defendant’s light and age background and the circumstances of this case. We have previously concluded that the of a death is sentence imposition review, to such because a sentence subject to the grossly disproportionate offenses for which it is may violate the cruel or imposed prohibition against Const., I, 17; unusual (Cal. art. punishment. People Mincey, supra, § 408, 476.) The evidence the defense in presented mitigation, prima- emphasizing the love rily defendant had in his respect engendered family peers, *67 offenses, commission of the
was not insubstantial. At the time of the present months, and 4 and the did prosecution defendant’s was age only years certain evidence present Although suggesting evidence of prior criminality. defense, it defendant mild brain was offered damage by suffered from was he neutralized of various witnesses that testimony sympathetic student, assisted others an and the with schoolwork and was above-average circumstance that a state at the time of the he was enrolled at university offenses. however, circumstances, the evidence
Far those outweighing mitigating defendant, that related to the commission of the offenses established and selected his vulnerable victims having prepared having particularly advance, entrance to the victims’ and them in gained overpower destroy them, victims from rendered the home on the of accepting job pretext and committed deliberate acts of exceptional cruelty, helpless, completely and to his unnecessary in their death—acts wholly gratuitous culminating refutes The evidence to the offenses utterly to rob them. pertaining plan contention that his death sentence was arbitrary, discriminatory, defendant’s (See v. Alcala 4 Cal.4th 809-810 People and disproportionate. 1192]; 2 Cal.4th 842 P.2d v. People Mincey, supra, Cal.Rptr.2d 476-477; Edwards, 848-849.) Cal.3d People to determine each murder E. Failure separately penalty for against In the due clause and the prohibition reliance upon process Fourteenth contained in the Eighth cruel and unusual punishment Amendments, in the California Constitution as well as their counterparts Const., I, 7,15, 17), the trial court erred (Cal. art. defendant contends §§ verdict, life to render a either of imprisonment by instructing jury single victims, death, rather or with reference to both without possibility parole verdict as to each victim. than to render a instructing jury separate to the also maintains that the court erred in delivering jury only Defendant forms, rather than four forms reflecting two one each possible penalty, as to each victim. the two possible penalties occurred, that, in error it was invited by we observe the event Initially, 610, 657-658; Wader, (See counsel. defense P.2d Cooper 202). court was in When the Gallego, supra, Cal.3d forms, that the verdict defense counsel requested process preparing counsel court verdict forms to the defense jury; approved two present only on the court’s that each be presented single suggestion possible penalty for both form. the trial court handed counsel parties Subsequently, copies
159 later, these forms for when the court to whether approval, began inquire “ forms, both had read the defense counsel The verdicts. interjected, parties Yes, are fine.” At the time the trial court the forms to the provided they jury, court, counsel, comment the the without from defense incurring any repeated observation that there were two forms for the two only possible penalties. event,
In any no error occurred. it is Although proper employ separate verdict forms (see, when there is more than one murder victim v. e.g., People Sandoval, supra, Cal.4th death verdict returned [separate as victim, one murder life without of separate imprisonment possibility parole victims]; verdict returned as to each of three other murder People Beard- slee, supra, death verdict returned as to each of [separate victims]; Bittaker, 1046, 1106, 1110, two murder supra, Cal.3d fn. 34 victims]), death verdict as to each of [separate five murder no the authority compels rendering verdicts as to each separate penalty victim.
Moreover, as suggested defendant’s contrary in argument People Sandoval, 155, 197, that verdict forms separate penalty should not have been the use of a form provided, single verdict encompass- for the ing penalty murder more than one victim conceivably may promote determination as to whether comprehensive the death is penalty case, in a without appropriate particular undue placing emphasis upon characteristics and status of the individual victims or their number.
Nonetheless, that, defendant asserts in the absence verdict separate victim, form that, each murder it pertaining is for possible example, only six jurors concluded defendant should receive the death for Wil- penalty murder, liam’s while the six remaining determined jurors defendant should receive the death penalty earlier, Katherine’s murder. weAs observed in applying provisions verdict, section so 190.3 as to arrive at a death each must evaluate the jurors evidence and then determine unanimously that factors, the aggravating factors outweigh but no mitigating there is that the requirement jury agree factors upon employed reaching (See Sims, decision. 462.) The murders of Katherine, William and murders, and the circumstances attendant those upon matters were 190.3, considered appropriately (a) (com- under section factor prising crimes). circumstances of the Because there is no requirement that the jury unanimously determine which factors aggravating outweigh those in mitigation, there can be no obviously that the requirement jury unanimously determine which facts within a of the factors single category 190.3, described section such as (a), factor justify imposition death penalty.
IV. Disposition is affirmed in its entirety.18
The judgment J., Baxter, J., Kennard, J., Arabian, J., Lucas, J., and Werdegar, C. *69 concurred. in the that
MOSK, J. generally opinion concur the judgment I for the court. Justice has George prepared I have not been persuaded
I write to make this statement. separately enacted, law, as it was originally death penalty defendant that the 1978 Constitution, States on its face Amendment to the United violated the Eighth him, subject define the class persons by failing properly or as applied not, however, I arrive at a more positive do to the ultimate sanction. law, (see, been construed as it has subsequently conclusion. Certainly, (1989) 48 Cal.3d 554-557 v. Morales e.g., People 114), 244]) (initiative measure (Prop. approved, P.2d and amended 115), 1990); measure (June (Prop. approved, initiative Elec. Primary it now Whether (June 1990)), has become problematic. Elec. Primary is a in its definition of death-eligibility Amendment contravenes Eighth I need not and do not reach. question 16,1995, and the was denied rehearing February for a petition
Appellant’s to read as above. was modified printed opinion contending corpus, that petition defendant filed a for writ of habeas 18 We also note that proceedings, throughout of counsel counsel rendered ineffective assistance defense occurred, shackling during jurors improperly considered defendant’s misconduct that the juror guilt conclusion of the (undermining reliability of the verdicts reached at the trial trial), penalty was decision to seek the death prosecutor’s and that the penalty phases Crittenden, (In re S034783.) discriminatory. petition was denied on October 1994. That notes [¶] Mrs. exact guarantee cannot that she is indecisive and that inappropriate, because the fact would be that, mean that would way. my language in that does not vote a And [¶] she would certain or not she would couldn’t decide whether way, a on the facts. But that she vote certain based And, frankly, I do transcript, in as well. [¶] That is reflected her be able to follow law. [¶] put pattern I pattern—and would would be difficult to establish a not see because this it black, jury is on the only Casey, is Mrs. who Because there quotes challenges. of—of [¶] expected peremptory I why reasons would have there are abundant other panel. But And, such, indicated to wrestling with these issues particular matter. as her challenge on this for, challenge that[,] challenge certainly peremptory although that a was not called me cause made prima case been any I don’t that a facie has going expected be event. think [D was stated, reason, I deny that have as I it. For those reasons reasons. And for out those record transcript her in the actual apply throughout the record well as the reasons that will [sic][,] is the motion denied.”