People v. Edwards

S004755. Crim. No. 26000. Nov. [No. 1991.] PEOPLE,

THE Plaintiff and Respondent, EDWARDS,

THOMAS FRANCIS Defendant and Appellant.

Counsel Short, Lisa J. Timothy Foley under Joseph Schlesinger, appointments by Court, Supreme for and Appellant. General, de John K. Van and Daniel Kamp Lungren, E. Richard B. Attorneys General, Iglehart, Chief Assistant Attorney Harley Mayfield, D. Assistant General, Hanoian, Attorney M. Bloom and Jay Louis R. Deputy Attorneys General, for Plaintiff and Respondent.

Opinion case, law, ARABIAN, J. In this arising out of the 1978 death penalty defendant was convicted (Va- of the first murder of degree Vanessa Iberri nessa) and the first attempted degree (Pen. murder of Cartier Kelly (Kelly). 187, 664.)1 Code found §§ that defendant used a firearm personally during (§ 12022.5), commission of in- both offenses and intentionally count, flicted great (§ 12022.7.) bodily injury Kelly. As to the murder 1All further statutory references are to the Penal Code unless otherwise indicated. killed intentionally that defendant true the circumstance jury special found 190.2, trial (a)(15).) The first (§ penalty subd. the victim while wait. lying mistrial, verdict. was unable to reach a ended in a as the trial, The trial the death penalty. the jury imposed After the second penalty People Boyd of error under a new trial because granted penalty court then 782], a case decided 38 Cal.3d 762 A ended with the jury third trial same as the verdict. penalty day penalty time, defendant’s denied This the court penalty. death again imposing modify motion to new It denied the automatic motion for a trial. also 190.4, death. This appeal entered a (§ (e)), judgment verdict subd. and (§ 1239.) We affirm. automatic. Facts

I.

A. Guilt Phase marksman, 19, 1981, defendant, excellent an

On Saturday, September her 12-year-old eyes Vanessa between 12-year-old shot tragically friend, were girls while the the head with a .22-caliber Kelly, pistol Jay campground the Blue to a lunch from walking picnic campsite wound; died her survived. Vanessa Orange County. Kelly 1; Evidence Prosecution in Santa Ana. Coast Gun Club

Defendant was an of the South employee often, weekend.” usually every He the Blue Jay “quite visited campground Around a.m. He at the 19. gun morning September was seen club red Datsun pickup a truck that like defendant’s morning, that same looked half entered the which was about full. campground, at the same were the weekend Kelly camping Vanessa spending the girls Around p.m., with Vanessa’s mother and campground stepfather. earlier they left their have a lunch at a site had selected picnic campsite entrance, Kelly near the As were a restroom morning. they walking by in their Defendant looked slowly saw defendant’s truck drive towards them. direction, the campground then then walked out of girls drove past. towards the site. picnic three minutes

Two other leave the area. Two to girls observed campers later, the camp- defendant drive his truck out of one of the saw campers thereafter, down the ground. walking and Vanessa were Kelly while Shortly road, front, Vanessa to with heard a car and told Kelly coming, Vanessa in Defendant drove over. the of the road.” both moved They said, on side

“get He then fired two shots from “Girls.” the alongside girls, stopped, Vanessa, Kelly. the at the second at a first pistol, forehead, inch to the right in a of an Defendant hit Vanessa the quarter center, of the head. right He hit in the side Kelly above the just eyebrows. run the the truck and to get fell the but defendant out of ground, to saw Kelly truck, defendant in then saw heard slam the back of something back. She away. return the truck cab and drive to meantime, had the girls

In the two who seen including other campers, in some get two trucks driving walk out of the were campground, Ellis, truck, was over a going speed the front driven by Larry firewood. As Vaughn, Charles outside their one of bump just campsite, passengers, defend- saw the Vaughn top portion looked to his left across a meadow. of the van to the truck. He saw defendant run from the front ant’s parked defendant, back, sight then then lost Vaughn back towards front. heard any gunshots. as some trees blocked his view. None of the group Ellis drive Vaughn defendant have been a told Thinking might poacher, in came around a bend they that direction. The second truck followed. When road, his in defendant near the front of standing and Ellis saw Vaughn road, then Defendant the side of the over girls truck. looked towards on truck his shoulder the Ellis truck. Defendant then into his jumped towards driver and drove at Ellis chase while the away high gave speed. a truck aid the after stopped girls. got away second stricken chase, not before Ellis and the license number of high-speed Vaughn got but the truck. It was to defendant. registered

An He extensive manhunt the next failed to find defendant. days over few in the 1981. eventually Maryland September arrested State of Bus tickets dated from with destinations from Los to 27 September D.C., Angeles to were in motel room. Defendant’s Washington, found his truck was later found near a Angeles. camper portion bus station Los of the truck contained Addi- several firearms and of ammunition. quantities tional firearms belonging storage to defendant were found a area of South Coast Gun Club.

Vanessa died of a wound to the forehead. received a single gunshot Kelly grazing wound She remove an accumulation scalp. required surgery to (an hematoma”), eventually of blood underneath the skull but “epidural recovered.

Two .22-caliber were found at the scene Ballistics casings shooting. established that none of the firearms truck or analysis found defendant’s his fired the among club fatal property gun bullet.

A week or two before the sold .22-caliber shooting, Bobby Pamplin to defendant. It could have been the murder but was Ruger handgun weapon, not found after the testified that defendant was an “excel- shooting. Pamplin He Defend- lent shot.” observed defendant fire the at the Ruger firing range. ant hit a the size and of a chicken at a distance of “repeatedly” target shape 50 yards. defendant told January shortly before the trial guilt phase began, he deputy county jail “guilty sheriff that was as sin.” trial, the the viewed crime The scene of

During guilt the scene. phase the shooting relatively halfway was isolated. It was between approximately the Blue More than a Jay neighboring and a campground campground. of a mile the where defendant the the first quarter girls separated spot passed time and the he spot where shot them.

2. Evidence Defense

The defense did not that defendant the two It dispute girls. presented shot evidence that the was but was a suggesting shooting premeditated, not sudden act of violence caused defendant’s recent divorce. by over depression did Defendant not testify.

B. Penalty Phase trial, review,

At the third the one under the penalty currently prosecution the same evidence at the presented essentially concerning guilt crimes as It introduced no additional evidence. phase.

The presented defense evidence defendant’s marital concerning problems him, traits, and their effects on his character good good jail, his behavior and his remorse for the crimes. Defendant did apparent testify. not

II. Discussion

A. Guilt Phase Issues

1. Denial Change Venue of of contends the trial court erred his motion to denying

change venue Orange from County.

The A applicable law is settled. of venue must be change granted that, when the defendant shows a reasonable likelihood the absence of relief, The such factors as a fair trial cannot be had. court considers such offense, the status of the the size of the community, nature and defendant, of gravity victim, and the nature prominence popularity following On a judgment extent of the after publicity. appeal venue, both that the court denial of the defendant must show change motion, i.e., at the time of the venue that erred denying change had, and that it was that a fair trial could not be reasonably likely motion i.e., a fair trial was that it reasonably likely error was prejudicial, determinations as to these fact had. trial court’s factual essentially if evidence. We indepen factors will be sustained substantial supported by review the ultimate determination of the reasonable dently trial court’s (People Cooper likelihood of an unfair trial. 53 Cal.3d 865]; Bonin 805-806 659, 672-673, 1217].)2 recognized,

As trial court offense is most gravity and, alone, if serious venue. Review change considered support would factors, however, of the other that a of venue change conclusion compels was denied. properly 1983,

At the time of the trial in was Califor- guilt early Orange County supra, nia’s second in 53 largest county (People Cooper, v. population. 806, “White,” Cal.3d at fn. p. Defendant claims is too too Orange County trial, and “Republican,” too to afford a fair but no prosperous presents credible The supporting against evidence. size of the county weighed heavily Bonin, 677; a change (People supra, of venue. v. v. People 46 Cal.3d at p. 679, (1981) Harris 28 Cal.3d 949 623 P.2d Cal.Rptr. Defendant was a resident at the time Orange of of crime. County media identified him as at a generally a resident of Costa Mesa employed in gun club In Irvine. contrast to v. Williams 146], 774 P.2d where a of venue was found change necessary, defendant was not an in either a outsider or racial “geographic sense.” there an

Although was understandable of outpouring sympathy for crime, victims immediately after the had no in they particular celebrity status 2Defendant contends that reviewing the trial court’s factual determinations under the Bonin, deferential (People 676-677) substantial-evidence standard 46 Cal.3d at supra, pp. violates the mandate Superior of Maine v. Court 382-383 [66 372], independently that we review the that satisfy entire record to ourselves the defendant received or will contrary, receive a fair trial. On the we review the entire record to assure specific ourselves that the findings court’s factual factually supported, are Bonin, review the question ultimate de novo. As discussed in this conforms to well-settled principles appellate review. requires Maine no more. Indeed, all, were they not residents of but community. Orange County in residents of Riverside who to be neighboring County happened camping In that the Orange County. contending victims’ prominence supported venue, defendant change stresses “their status as children.” This particular status, however, will not with a change change jurors of venue. Prospective would with the fate whether trial were held Santo sympathize girls’ in the Domingo Dominican or other Republic, Orange County, county crime, trial, in California. The horrendous not the locale of evokes sympathy.

Defendant stresses the substantial the crime. After reviewing publicity exhibits, the voluminous defense the trial found “that the news court cover extensive, sensationalism, was age that there was some but that it aspects was not sensational in the overly coverage coverage appeared and that the be Media reasonably finding. fair.” Substantial evidence this cov supports intense, of the crime erage was soon after its commission especially fair, defendant’s arrest. But and not inflamma coverage generally such It with tory. pales we found insufficient comparison publicity change of venue a serial murder case tried compel Orange County. Bonin, (People 46 Cal.3d at that the defendant was [reports Killer,” convictions, illness, had a of mental had “Freeway history prior had been linked to as as 44 and had many killings, had admitted killings, been convicted of 10 already murders Los sentenced to Angeles death].) addition, the court found “time the events has diminished greatly

that were before the The this The public.” supports finding. record also motion to venue denied change about 10 months after the crime. Trial began another six months later. a Passage heavily against of time weighs Bonin, of change (People 677-678.) venue. 46 Cal.3d at As pp. Marcus Aurelius said “All some two millennia is and ago, ephemeral—fame IV, the famous as (Meditations, well.” Court, 386-387, Maine v.

Citing Superior supra, 68 Cal.2d at pages defendant also contends that a venue. political supported change factors There is evidence in the some record that the sheriff criticized the initial defender’s office this The sheriff later ran appearance public case. for reelection. But defendant’s showing, consisting of media mainly reports, Indeed, does not compel change of venue. defendant’s own showed poll that most of the populace remembered about contro- nothing any political . versy dire,

After completion individual renewed his jury voir defendant motion, motion for a change venue. The court denied we “that finding to find influence whatsoever able twelve that will have no [jurors] will be they just ever this case. It wasn’t from read about or heard about anything chal- Defendant does not talking specifically with them.” major problem Trial Our us it was correct. ruling. this review of the record convinces lenge held in was properly Orange County. Jury Selection Issues

2.

a. Waiver Presence Defendant’s trial, absent At the defendant the desire to be guilt outset of expressed After of his to be during jury fully right present, selection. admonished being waived the both right and with his defendant attorney’s approval, personally defendant finding the waiver after writing orally. accepted court if he defendant that “knowingly willingly” rights. waived his It informed mind, Defendant his he could come back into court at time. changed waiver, then A another absented himself selection. week after during jury was held determine whether defendant still wanted to be absent. hearing He did. Defendant was the evidence of trial. during present portion selection right during jury contends to be present essence, cannot be waived. In he that a defendant who does not want argues if to be selection can achieve his wish he present during jury only engages A behavior.” defendant but desires “disruptive “merely who behaves himself cannot, claims, to be he right, absent” be accommodated. We This disagree. self-incrimination, like other rights more fundamental to tes (e.g., against witnesses, all), to have an tify, attorney, to confront and to have a trial at jury A may be waived. defendant need not a court disruptive may grant be before his and excuse him request attending from selection. v. Robertson 48 Cal.3d 18 Robertson, filed waiver closely point. defendant a written

1109] adapted (b)3 from the form set out in waiving section subdivision his right to be at the present hearing sentence-modification imposition case, in sentence. As argued this defendant that his at “critical presence any 977, (b), 3Section provides pertinent part: felony subdivision in “In all cases in which a charged, the accused present arraignment, plea, during must be at the at the time of preliminary hearing, during portions those of the trial when evidence is taken before the trier fact, and imposition at the time of the personally present of sentence. The accused shall be shall, court, court, at all proceedings other unless he a open with leave execute in written counsel, right waiver of his to be personally present, which waiver must then approved by his court; however, be provided, filed with the specifically direct that may that the court personally present defendant be at particular thereof. The waiver proceeding portion or substantially shall be following in the form: form [the follows].” not in of a trial be waived. Based on the “solicitude phase” capital may part shown modern to the to waive the by jurisprudence defendant’s prerogative (48 61), most crucial of Cal.3d at we and held that a rights” disagreed, defendant waive his to be even at critical capital may right stages present (Id. 59-62.) at to proceeding. holding equally This pp. applies It selection. would be anomalous to force a defendant to misbehave before

he could fulfill his be the proceedings. wish to absent from in

Defendant that such a waiver be allowed argues capital should not However, Robertson, in make governing cases. as noted “Our statutes waiver (48 no distinction between and other defendants . . . .” capital felony Robertson, In 61-62.) Cal.3d at we cited sections and 1193. pp. statutes here are sections 977 and 1043. The latter applicable generally “the in that defendant case shall be provides felony personally present 1043, (§ (a).) the trial.” subd. include when the defendant is Exceptions 1043, (§ which (b)(1)) subd. for an offense disruptive “Any prosecution in is not death which the defendant is absent.” punishable by voluntarily 1043, 1043, states, (§ (b)(2).) (d), “Subdivi- subd. Section subdivision also (a) (b) defendant waive his right right sions shall not limit the of a in with be accordance Section 977.” present combination, that mere volun although sections 977 and 1043 provide in the trial without the

tary absence is not sufficient case to hold capital (at be waived least as to personal presence, presence may defendant’s such 977, (b)). in those listed section subdivision proceedings specifically that the of these sections discloses no argues legislative history however, intent to allow such waiver Nothing history, cases. capital suffices to overcome the When statu plain language of statutes. construction, tory language is clear and there is no need for unambiguous, 879, (People (1979) courts should not it. indulge Belleci 503, Robertson, 473].) 598 P.2d We thus adhere to Cal.Rptr. [157 A 48 Cal.3d 18. defendant waive his be capital may right present (We even at stages critical of trial. do not here decide whether a defendant waive may his as to those listed section presence proceedings specifically 977, (b); subdivision Sully see 53 Cal.3d 1237-1240

Defendant also and state” have an interest argues “public independent him compelling to be selection. The present during jury Legislature, however, deemed (Cf. has otherwise. Chadd People v. which pro [upholding § 837]

hibits a defendant consent of from without the capital pleading guilty 820, counsel]; People v. Stanworth (1969) 71 Cal.2d 49, Cal.Rptr. 457 P.2d the automatic [applying appeal provisions [80 889] 1239, (b)].) subd. § 353, People (1985) cites v. Deere 41 Cal.3d 362-368 [222 13, (Deere I), 710 P.2d

Cal.Rptr. where we held that a defendant may 925] not bar attorney his from evidence at the presenting mitigating penalty holding. decisions, however, phase. have undermined” Subsequent this “largely 705, 424, (P eople (1991) v. Deere 53 Cal.3d Cal.Rptr. [280 (Deere 991, II); Lang (1989) see v. 1181] 49 Cal.3d 1030 [264 386, 1194, 627]; 782 P.2d Cal.Rptr. People v. Bloom 48 Cal.3d event, fn. 9 774 P.2d even Deere I allowed the defendant (41 waive a completely penalty jury. Cal.3d at phase pp. 359-360.) A defendant who has “stated an capital intention seek a death Bloom, verdict" waive may right (People his to counsel. supra, 48 Cal.3d 1223.) at Waiver of selection presence during jury “by no means ensure[s] Indeed, defendant, counsel, return of a death (Ibid.) verdict.” through vigorously defended himself at both guilt penalty phases.

Defendant also if argues that even he may waive his legally right be he present, did not do so. the written validly Although waiver was form, in the substantially prescribed defendant it was argues not “execute[d] open court” as section required by (b). subdivision The form was apparently executed between two court held sessions the same It day. was filed at the latter session a full oral accompanied by waiver. This was Robertson, sufficient with the compliance (People statute. 48 Cal.3d at p.

Defendant finally asserts he was “suicidally depressed.” Nothing record, however, suggests defendant was unable to understand and waive his right to be present. Counsel concurred the waiver. The court found it was knowing voluntary. It is not irrational for a defendant represented by experienced counsel to not want to physically endure the jury lengthy selection process. Defendant waived validly his to be right present during jury selection.

b. Public Trial To “minimize” cases, potential prejudice to criminal defendants capital we held in Hovey v. Superior Court 1301], “that portion dire each juror voir prospective

which deals with issues which involve should be death-qualifying jury done and in individually sequestration.” (Fn. omitted.) In with compliance this mandate each prospective juror individ- first trial was questioned rooms, ually one of the room selected be “so that would everyone 812 feel would more jurors out and so that the spread prospective

able to voir dire that the sequestered It was that “tacitly comfortable.” understood during be an open proceeding room . . . was not to jury would occur wander in. . . . could public simply [Mem- which members of or press than any room more jury walk into the or could not press public bers of dire being were the voir walk into chambers would have been able to they held there.” televi- a local of this individual questioning,

Prior to the commencement coverage” “extended media to conduct sion station requested permission & minicamera videotape a “Standard portable the duration of the trial with as to at least The court denied request recorder.” Defendant objected. present media to be request The record reflects no other selection. jury dire, the sequestered or observe report voir and no during specific request in any fashion. questioning trial, in “free case held a press”

After the the United States Court Supreme court, which open dire be conducted voir should presumptively findings by express may only upon specified be overcome presumption (1984) 464 U.S. 501 Cal. (Press-Enterprise Superior Co. v. Court court. discussed (hereafter Press-Enterprise), 104 S.Ct. L.Ed.2d 819] [78 785 Thompson (1990) People [266 857]; Cal.App.3d Daily Superior Court see also Ukiah Journal v. Defendant Journal).) (hereafter Daily Ukiah Cal.Rptr. 673] he Although this case. Press-Enterprise rule was violated contends any media and never asserted objected coverage, to the for extended request own, his he contends the violation requires trial of his further right public (Cf. (1984) 467 U.S. 39 Georgia be reversed. Waller v. conviction to the hearing public a [closing L.Ed.2d 104 S.Ct. suppression 2210] hearing].) suppression over defense a new objection requires Thompson, supra, We considered similar contention Journal, There, Daily Press-Enterprise unlike and Ukiah Cal.3d 134. both to witness the media asked public “neither nor representative this, solely were “concerned (50 Because of we voir dire.” trial,” had that defendant with the a defendant to a and found right public (Ibid., fn. in timely failure it fashion. right by waived that to assert omitted.) dire did voir coverage that here the argues press request extended media coverage He relies on the television for request

proceedings. made cover the trial of the entire trial newspaper request after dire The latter was not a clearly request voir sequestered completed. the general the earlier need not decide whether cover of trial. We portions for extended of entire trial was a request coverage sufficient for request selection, normal of the coverage sequestered jury objection for defendant’s media waived his request right to of the court’s complain ruling appeal.

A defendant his own “may, by right acts or waive his acquiescence, a public him thereby [to of preclude any subsequent challenge by trial] an order excluding Unlike the trial which an public. right requires [citation], express personal waiver guarantee constitutional of a public trial be may waived by acquiescence of the defendant an order of Trial, (5 exclusion.” Witkin & (2d 1989) Cal. Criminal Law Epstein, ed. 2618, 3137, (1988) italics original; People § see also v. Williams 45 1268, 834, Cal.3d 1309 Cal.Rptr. 756 P.2d for request [248 221] [defense dire; Hovey private voir dire waives right to voir no waiver public personal necessary].) 501,

This result is consistent with Press-Enterprise, supra, 464 U.S. dire, where the press won the right to cover voir but criminal conviction Brown, case, of Albert Greenwood in the defendant underlying (See 637, affected. People (1985) v. Brown 40 Cal.3d 512 709 Cal.Rptr. [220 440], P.2d revd. on other grounds (1987) sub nom. v. Brown California 934, U.S. 538 L.Ed.2d 837].) [93 107 S.Ct. Defendant is not entitled to the windfall of a reversal of his conviction because the court may have violated a public right to which he objected. Sufficiency

3. the Evidence Premeditation

Defendant contends there was insufficient evidence of premedita tion and deliberation to support verdict of first degree murder.

“In evidence, reviewing the sufficiency we must draw all inferences of the verdict support that can be deduced and must reasonably if, uphold judgment after viewing all the evidence in the most light favorable to the prosecution, any rational trier of fact could have found elements of the crime beyond a (People reasonable doubt.” v. Miranda 57, (1987) 44 Cal.3d 1127].) Cal.Rptr.

evidence of this case even supports, compels, finding of premeditation.

Defendant relies on the familiar test tripartite set forth (1968) Anderson 942], 447 P.2d which requires us to focus evidence upon (1) planning defendant’s activity (2) kill, to the prior his killing; motive to derived from his prior victim; or relationship conduct with the killing, manner of some indicating preconceived kill in design to a certain all way. Evidence of essential, however, three elements is not to sustain a A reviewing conviction. court will sustain a conviction where there exists evidence all three elements, where there is evidence of “extremely strong” prior planning kill, or where there activity, exists evidence of a motive to with coupled evidence of either planning or a manner of which indicates a activity killing to kill. preconceived design (People Hovey 556 [244 Viewing the evidence most there was favorably prosecution, to evidence extremely strong the most of the Anderson planning, important (People factors. v. Alcala 36 Cal.3d Defendant carried a loaded the cab of the truck. handgun

Before the defendant shooting, girls leaving drove the two as were past they them, looked at and then campground, turned around and followed them. He to them in kill caught up a remote where he could most spot, effectively victims, He drove his said “Girls” to their escape. alongside get stopped, attention, and, while him Vanessa was and was thus an looking straight cool, excellent shot and killed The inference target, her. calculated premeditation is inescapable.

Additionally, manner of between the killing single was exact—a bullet eyes by an marksman. a expert strongly design This implies preconceived kill in that fashion. precisely is, indeed,

Defendant there argues is no evidence of motive. Motive here elusive. This was a apparently random for a reason known killing only defendant, disclose, a reason he has elected not to as is his The right. notes, Attorney General “The aptly reason commit persons despicable crimes is often a in a land mystery where an accused has a Fifth Amendment We privilege.” have never a required prosecution prove specific motive before a affirming even of first A judgment, degree one murder. senseless, random, but premeditated, a verdict first killing supports degree murder. Admissibility

4. Prosecution Evidence

a. Statement Defendant’s

Defendant contends the court erred in evidence of his admitting statement jail. county

At an camera hearing, Sheriff Allen testified he Deputy Gregory was on duty county jail on January 1983. Defendant asked the out," i.e., deputy to “call me him to let out of his cell. This was a “fairly out, common occurrence.” Allen him Deputy let defendant entered “ said, ‘I’m vestibule area. man. I depressed, May light ciga- ” “ ” ‘Yes, go ahead.’ Defendant then made the deputy rette?’ responded, “ record, statement now ‘Off the I’m I I don’t know challenged, guilty. why I’m I shot those two little I’m as sin. what their girls. guilty depressed put for ” families Allen did defendant After through.’ not ask Deputy any questions. statement, the court admitted the it was hearing, finding “spontaneous” “volunteered,” interrogation by and that there “was no the deputy.” Defendant contends that Allen had an to terminate the “Deputy obligation words, conversation immediately uttering Mr. Edward’s upon qualifying record’; ‘Off the Allen’s failure to the statement do so renders inadmissible.” He relies primarily our decision v. Braeseke 384], Braeseke, the defendant was advised of and waived his under rights Miranda v. 384 U.S. 436 L.Ed.2d 86 S.Ct. Arizona [16 officers, A.L.R.3d After some he stated he questioning by 974]. two wanted Later, an attorney, and the questioning ceased. a during booking procedure, the defendant if asked he could with one officer alone and “off the speak record.” The officer and agreed, (25 took a confession. eventually taped 695-696.) Cal.3d at pp. reversed,

We that reasoning after a defendant right asserts his to counsel cease; the interrogation must it not may be resumed without counsel unless “When, compelling evidence of a waiver of the suspect’s rights as appears. here, the defendant has asserted his right to of an that presence attorney burden proving a and knowing [of waiver intelligent rights] is particularly onerous usually discharged only [citations] a that the by showing defendant initiated without reservation the renewed interrogation. [Cita- (25 702.) Cal.3d at tions.]” We held p. that a to ‘off the “request speak record’ cannot constitute a knowing waiver of which intelligent rights include the advisement that can ‘anything be used suspect] says against [a him in a court of law.’ (Ibid.) We also out that the pointed [Citations.]” officer “contributed to defendant’s lack of understanding to the by agreeing request rather than informing defendant that there could be no such as thing an off the (Id. record 703.) discussion.” at p. sentence, this

Citing last defendant argues that Allen was Deputy required to him interrupt Braeseke, as soon the words “off the record” were spoken. 691, however, supra, 25 Cal.3d holds that an only officer cannot affirma- tively agree to take an “off the record” statement before recommencing previously discontinued It interrogation. does not affect the settled rule that volunteered statements not the product interrogation are admissible. clear, “There that police

As Miranda itself made is no requirement who enters a station and states that he wishes to confess stop person police crime, to a or a who calls the to offer a confession or other person police any he kind are statement desires to make. Volunteered statements of not by barred the Fifth Amendment and their is not affected our by admissibility Arizona, (Miranda 384 U.S. at L.Ed.2d holding today.” p. 726], omitted.) at fn. p. Allen he He was asked no listened.

Deputy questions; merely under volunteering no defendant from obligation try prevent statement.

Defendant He did object next contends the statement was irrelevant. trial, (People on this at waived the v. Green ground point. therefore has In any & fn. 8 event, he sin” and “guilty defendant concedes that the admission that was as culpa- the reference to was “an statement of his shooting girls express charge. for the This is relevant to the murder His bility shootings.” obviously real contention seems much to the admissibility not so directed the lying- statement itself as to that it prosecution argument supported in-wait circumstance. With one he failed to such special exception, object (Id. thus the issue. argument, waiving objected argument by as to rebuttal speculative sin,”

using as defendant admitted the elements of phrase “guilty lying-in-wait stating circumstance. The court special objection, overruled that the was “entitled to to convince the what he thinks it prosecutor try jury means.” The court was correct. The had heard evidence that defendant jury him, had been in fully informed of the and had been charges against present when court extensive was the elements of the argument presented regarding lying-in-wait inference special circumstance. This arguably supports prosecutor was urging. prosecution has broad discretion to state its views as what the evidence shows and what inferences be drawn may therefrom. (People Kelly v. 51 Cal.3d Cal.Rptr. 967 [275 516].) 800 P.2d Defendant’s claim that the was was for illogical argument decide. As we have the adverse cannot repeatedly explained, party if the complain reasoning faulty illogical, be and the deductions as such matters are for the Warren ultimately (People consideration of the jury. 471, 485, 218], fn. 754 P.2d therein.) cases cited

Defendant next he contends was rebuttal from “precluded” presenting evidence because the court he refused to admit certain statements hearsay made shortly before and after his arrest on these The correctness charges. 5., post. discussed A. at

the court’s II. Suffice it to this rulings part say that the admission of defendant’s statement did not somehow entitle point him to inadmissible The court never defendant present hearsay. “precluded” with testifying testimony from himself or from other consistent presenting the rules of evidence to this item of evidence. prosecution rebut or other he was his finally improperly “penalized” presence claims for at the court at which hearing regarding lying-in-wait special issues He later argued. circumstance were was not. His with his presence, coupled sin,” he statement that as rise to a relevant “guilty gave possible inference the same and events way give a multitude of actions may relevant find rise to inferences. We no impropriety. Other Prosecution Evidence

b. Defendant contends that other items of evidence were prosecution improp admitted erly because were irrelevant their effect they or prejudicial their outweighed value under Evidence Code 352. probative section general, trial court is wide in determining vested with discretion relevance effect of evidence weighing prejudicial proffered its against probative value. Its rulings will not be overturned on appeal Green, an (People absent abuse of that discretion. 27 Cal.3d at p. 19; v. Pierce (1979) 24

Defendant first objects to evidence his firearms at the regarding gun club where he worked. The court overruled defendant’s to testi objection mony about storage guns, but disallowed as admission of “prejudicial” the weapons themselves. These were within the A rulings court’s discretion. truck, number of were weapons found defendant’s least one was the truck cab at the time the shooting. The prosecution argued this showed the preparation for The shooting. defense established that defendant lived in truck, his and sought to show that he routinely guns his there. Evidence kept that he had an alternate site to guns store was relevant to that he did show in the keep weapons truck out merely necessity.

Defendant also contends the record does not show the court the weighed Green, probative value against any prejudicial (People effect.

Cal.3d at We have never required any engaging formula for particular in the weighing process long so as the record reflects in some fashion that the court has done (People v. Thompson so. 37].) 753 P.2d fact the the admission of court disallowed themselves as its

weapons prejudicial performed indicates court properly function.

Defendant next contends the court admitted evidence erroneously Kelly two victims were friends. Over the court allowed both objection, friends, and Vanessa’s mother sustained to were close but testify girls objections testimony to other This brief questions regarding relationship. was neither with nor It particularly probative prejudicial. provided information it background help surrounding to understand the circumstances the shooting. For it that the were with example, suggested girls preoccupied each other’s and thus were not concerned about the companionship, ap of defendant’s truck. was well proach Allowing slight humanity this touch within the discretion (People trial court. v. Carrera Finally, admitting objec defendant contends the court erred over “ said, T testimony tion after the don’t want to shortly shooting, Kelly ” die. me? Is Vanessa all This Why right?’ testimony preliminary other statements that the as by Kelly sought present sponta prosecution neous under Evidence the latter statements Code section 1240. Ultimately, this, were never statements introduced. Because of the admitted words were of little were kind They any juror relevance. also of statements would circumstances, little, if expect Kelly to make under the and thus had any, discretion, effect. We discern prejudicial certainly no abuse of no prejudice.

5. Exclusion Evidence of Defense 28, 1981,

Defendant was arrested in nine days on Maryland September this, after the murder. time shooting, Some before but after the apparently defendant recorded certain in a he referred thoughts notebook. For example, sick, having feeling headaches and often referred to “Tommy” arrest, third After the person. defendant was interviewed on tape length. He cried at several claimed points, not to remember about anything events, shooting and the immediately surrounding of head- complained interview, aches. He mentioned the having notebook. After the police, warrant, obtained a search seized notebook from defendant’s motel room. trial, At defendant to admit into evidence both the notebook and sought the taped interview without objected himself. The testifying prosecution Later, After a hearsay grounds. the the hearing, objection. court sustained motion, defendant renewed his the asked the read a of transcript court to so, interview. The court did and again objection. sustained the hearsay sustaining objection guilt at the court did not state reasons for the same evidence did sustained a to phase, objection but when it similar not the statements “were the third It found that penalty specifically trial. them trustworthy under which .... given circumstances would make [Bjoth not under where were given they statements were circumstances also found that to seeking be It indicating they trustworthy.” would admit the evidence defendant or presenting psychiatric without testifying defense without ever to on a whole testimony “really attempt put is an subject defendant on stand to cross-examination.” putting He first the notebook argues

Defendant contends court erred. interview, or were as statements of mental though hearsay, admissible We state under Evidence physical either Code sections 1250 or 1251.4 under Code quickly reject the contention Evidence section which that the witness . .” Defendant requires “declarant unavailable as a . . [be] to he and exer certainly Although possessed, not unavailable himself. cised, a not his. He could have testified privilege testify, to choice was had he so elected. As Committee Assembly stated Comment of the the Judiciary to Evidence Code section the section defining phrase witness,” “unavailable “if the as a out-of-court statement is that of the party himself, he a may invoking not create under this section ‘unavailability’ by not privilege to testify.”

Evidence section not aid Assuming, Code 1250 also does defendant. admission, without Evi deciding, qualify that the statements otherwise for dence (like 1251) Code section 1250 Evidence section is to subject Code Evidence Code which “Evidence section of a statement provides, inadmissible under if this article was made under circum statement stances such as indicate its lack of “The trustworthiness.” decision provides: 4Evidence Code Section 1250 “(a) Subject existing to Section evidence of a the declarant’s statement of then state mind, emotion, intent, motive, of or physical (including plan, design, sensation a statement feeling, mental pain, bodily health) or by hearsay is not made rule inadmissible when: “(1) mind, emotion, The evidence is to prove offered physical declarant’s state or action; sensation at that any time or at other time an when it is itself issue in the or “(2) The prove evidence is offered to explain or acts or conduct of the declarant. “(b) admissible This section does make a memory evidence statement of or belief prove the fact remembered or believed.” Evidence Code provides: section 1251 mind, emotion, “Subject to Section evidence of a statement of the declarant’s state of intent, motive, physical or (including sensation design, feeling, statement of plan, mental pain, bodily health) or prior at a time to the made hearsay statement is not by inadmissible rule if: “(a) witness; The declarant is unavailable as “(b) mind, emotion, prove The evidence prior is offered such state physical or sensation when it is itself issue in an the action and the evidence is not prove offered to mind, emotion, fact other than such state of physical or sensation.” 820 the peculiar is the to requires apply

whether trustworthiness court to present with the the individual a broad and deep acquaintance facts of case circumstances mate- ways human conduct themselves beings actually demands, allows, rial endeavor in fact under the Such an exception. 1223, 1251 (1990) (People exercise of discretion.” v. Gordon 50 Cal.3d [270 451, Code, A 1230].) reviewing 792 P.2d Evid. Cal.Rptr. [interpreting § 251] if may finding regarding only court overturn trial court’s trustworthiness 1250-1251; v. (Id. People at Frierson pp. there is an abuse of discretion. 730, 440, 1197].) (1991) Cal.3d 745 53 808 P.2d Cal.Rptr. [280 did “A a criminal The court not abuse its discretion. defendant while testifying case evidence for the not introduce may hearsay purpose 36, (1984) Harris 36 Cal.3d 69 (People cross-examination.” v. avoiding [171 679, Broussard, rule J.).) applies P.2d That by 623 Cal.Rptr. (plur. opn. 240] 1252, Code statements must here. To be admissible under Evidence section manner, under so suspicion, be made a natural and not circumstances declarations are that Such they carry probability of trustworthiness. “ time was no motive when ‘made at a when there only they admissible are ” 375, (1988) 44 405 (People Cal.Rptr. to deceive.’ v. Cal.3d [243 Howard 842, 1730, 279], 1940) (3d Evidence ed. Wigmore, 749 P.2d 6 quoting § 94; 227, (1988) v. 45 Cal.3d 248-249 People Cal.Rptr. see also Milner [246 713, P.2d 753 statements, nine since

When defendant made had days elapsed he had and had wounded a 12-year-old He knew killed one shooting. girl seek to exonerate second. He had a motive to deceive and compelling for, from, the shootings. himself or at least minimize his responsibility ground sincerity” There was defendant’s motives “ample suspect (1990) when (People he made the v. Whitt statements. 849].) The need is for cross-examination Cal.Rptr.

[274 situation, in this exclusion of the strong fully warrants especially (See (1990) also 704-705 People evidence. v. Kaurish hearsay 788, 802 [self-serving tape-recorded statement 278] inadmissible hear- after defendant’s arrest excluded as shortly properly say]; Cal.App.2d 603] Cruz [same].) statements, if even prohib

Defendant next contends that admission of Code, ited disagree. the Evidence We by constitutionally compelled. circumstances, admitted hearsay limited reliable evidence must be if of a even rules of evidence trial state penalty phase capital provide (Green L.Ed.2d Georgia otherwise. U.S. 95 [60 2150]; post, see without Assuming, deciding, S.Ct. II. C. pt. were this rule also these statements might guilt phase, apply

821 a Defendant was allowed to defense. inherently untrustworthy. fully present Rock Arkansas (Cf. have he 483 He could testified had so chosen. no right U.S. L.Ed.2d S.Ct. Defendant has without himself to cross-examina- “address the effectively jury subjecting Whitt, (People a prison of tion.” [evidence excluded].) with the properly interview defendant to the tape Defendant that the did not listen finally court complains clear, we in but themselves. The record this is not recordings regard entirely error, under any need decide it whether there was for was harmless the conveyed” by standard. Defendant that the content argues “emotional tapes ruling por- was crucial to a on their But the emotion admissibililty. trayed on motive to tapes themselves does not obviate compelling interview, deceive that existed it sufficient nor does otherwise add during reliability warrant of the tapes. admission Special Issues Circumstance

B. in Wait Lying

1. The found that defendant killed the victim while “intentionally lying 190.2, in (§ (a)(15).) wait.” subd. Defendant on challenges finding several grounds. The are generally contentions answered our recent by v. Morales decision of 244], Morales is argues distinguishable that

certain respects, and be should reconsidered in others. We disagree. Instructional and Constitutional Contentions

a. Before jury could decide the special circumstance it had to question, find defendant of The guilty degree first murder. first only degree of theory murder which on instructed court a premeditated and deliberate with killing malice.

The court instructed wait as follows: “The term lying ‘lying wait’ a act, defined as waiting and watching victim for an time opportune with the together concealment by ambush or some other secret to take design the victim by surprise. The lying wait need not continue for particular time, period provided its that duration is beyond sufficient to establish doubt, one, the reasonable elements of waiting, or watching concealment design two, other secret to take victim unawares and by surprise; had the kill the defendant intention to wait during period lying victim . . . .5 waiting, watching

“If without period the murder is done suddenly, concealment, in wait is lying not present. circumstance special H] in in that the defendant was a showing term wait’ does not a ‘lying require he standing, He to or and sitting of down. be shown be position lying may not in The of concealment does may stationary requirement be or motion. victim, victim to the nor that the be that the defendant be visible require not may of the defendant. Concealment unaware of the totally physical presence creation6 of either the defendant’s intentional by by be shown an ambush or even by though a where victim is unawares and surprise, situation the taken the defendant. victim sees the true, in

“In wait to be lying you order to find the circumstance of special in wait continued beyond lying up must find a doubt that the also reasonable in of time between killing, lying to the moment of the without interruption wait killing.” and the act of deliberations, it added at

When the court reinstructed the jury during while find that a murder was committed you defense “Before request: may wait, than just to more lying something in the prosecution required prove . . . murder.” degree first Morales, held “an People 48 Cal.3d at we that page murder, (1) a which include

intentional committed under circumstances (2) waiting a and for period watching concealment substantial purpose, thereafter, act, attack an time a on immediately surprise to opportune an a factual advantage, victim from a unsuspecting presents position matrix murder to ‘ordinary’ justify distinct from sufficiently premeditated a We a lying-in-wait finding it as circumstance.” treating special upheld who, view, in a sat his intended victim an against plain defendant behind and waited until the car was a more deserted location before automobile to her and her to death. attempting strangle eventually bludgeoning case were deficient under Defendant asserts instructions of this Morales, supra, Cal.3d 527. As we the actual instructions fulfill explain, cause at this originally phrase great bodily point. 5The court added the “or her harm” deliberations, however, During it deleted and told the it had to find expressly phrase, that kill, merely great bodily an intent to not to cause harm. deliberations, during misspoke, court it apparently 6When the reread these instructions prejudiced used the word “consideration” instead of “creation.” This mistake could not have prosecutor defendant. The court and the read correctly jury originally, correctly instructed the (See v. Heishman this his to argument jury. instruction in 45 Cal.3d are precisely all even legal though always words requirements used Morales (which we since trial surprising same as is not that predated opinion). erroneously only first claims instructions require focuses,

“mere concealment of establish wait. He purpose” lying however, also only one of instructional instructions requirements. act, kill, an waiting and for an time intent required watching opportune interruption lying killing. no of time between wait and Defendant next in the words of require, contends instructions do not Morales, supra, That page advantage.” “position instructions, found in An precise meaning is not but is. phrase a ambush or “situation where the victim is taken and by surprise,” unawares kill, with in combined an intent intended killer a necessarily places of We in did not position advantage. require any particular phraseology Morales, only the substance.

Defendant next contends instructions do a require not “substantial” and period waiting watching. word “substantial” was Again, specific However, not used. that in jury was told wait must be of lying sufficient duration to establish the and waiting, elements of con- watching cealment or other secret take the victim design to unawares and by surprise, and a murder that done and suddenly waiting, without such con- watching cealment is not murder in wait. by lying requirements These necessarily include a substantial temporal element. We never a have certain required time, period minimum a only period not insubstantial. The instructions sufficiently convey this meaning.

Defendant Morales. As rejected also reiterates some in contentions decision, in that explained concealment of physical not a presence require (48 ment in lying 554-556.) wait. Cal.3d at We pp. also held that circumstance, lying-in-wait decisions, special as that and interpreted prior (Id. 557-558; is constitutional. at pp. People Edelbacher accord v. (1989) 47 Cal.3d 1023 1].) 766 We Cal.Rptr. P.2d decline [254 defendant’s invitation reconsider these decisions.

Defendant makes additional contentions not addressed specifically Morales. He claims the lying-in-wait special circumstance impermissibly duplicates special circumstances involving by murder devices explosive 190.2, (§ by poison. (a)(4), (6) subd. People Montiel & (19); see v. Cal.3d However, 39 927 P.2d 1248].) 705 instructions, under the murder a by explosive device or also be poison would by wait if the lying actual only use of the device explosive or poison with, There following, wait. immediately lying or contemporaneously circumstances, certainly these overlap among special is no substantial so much as to invalidate of them. any vague unconstitutionally claims the circumstance is special notice, method to guidance it or provide principled because fails “to death.” On the a are deserving class of murderers that more identify decisions, specific it has in Morales and contrary, interpreted prior as murder sufficiently distinguish lying-in-wait clear which requirements circum- treating special murders to it as degree justify from other first Edelbacher, 557; Morales, v. (People stance. Cal.3d supra, 47 Cal.3d at p. law, and that applying that changed

Defendant also contends Morales contrary, On the this would ex facto post principles. it to case violate (People Webster Morales established law. merely applied 411, 448, fn sua court was argues required sponte

Defendant next unanimously No. that it had to agree instruct the under CALJIC 17.01 “A disagree. require wait. We lying which acts constituted charged that have been ment of to acts could Unanimity applies typically 68, Cal.3d 92 v. Beardslee 53 (People [279 as offenses.” separate first “A a defendant of 1311].) convict jury may however, murder, one of or more without a unanimous choice degree making murder was e.g., that the prosecution, of several theories proposed by a in the course of that it was committed premeditated deliberate and or “ a convinced (Ibid.) juror beyond is sufficient that each is felony.” ‘[I]t murder that is of first as guilty degree reasonable doubt that the defendant ” (Ibid., v. Milan offense is defined the statute.’ by quoting rule federal This passes U.S._,_-_, (Schad (1991) 501 constitutional muster. v. Arizona Scalia, (conc. J.), of 576-578 (plur. opn.), opn. L.Ed.2d 2496-2504, 2505-2507].) The rationale ap 111 S.Ct. same A is in wait. instruction unanimity to the circumstance of plies special lying not required.7 that he was no evidence physi-

Defendant also claims that because there delete sua to required sponte concealed his the court was cally presence, However, full all of from instructions reference concealment presence. and wait were lying appropriate, correct instructions on the elements of charge. of given lying-in-wait 7Defendant also he insufficient notice claims was stage. early at an specious. statutory special claim is with the circumstance charged He was discovery. He does not This was inadequate claim he received sufficient. and have misled the No one was could not there jury. suggested physical concealment, only way, that it was one but not the to establish way, only lying wait.8 Sufficiency

b. Lying Evidence in Wait of of Defendant contends there insufficient evidence to support is lying-in-wait all special disagree. drawing circumstance. We After reason ante, (see 3.), able II. A. find inferences of the verdict we support pt. sufficient support evidence each of elements of wait. The trial lying is apt. court’s “There and from inside the summary watching waiting to the out road. There was a secret take them a campgrounds plan by which was as effective as ambush that he have accom surprise could hiding, from and more he didn’t plished way even so because this perhaps have to wait behind tree or a come his hoping they way. rock would this he able to of way was move his ambush front of point right directly the girls.”

Defendant first claims there evidence is no of concealment to gain sure, position advantage. To be he did not conceal his physical presence, Morales, but 555.) that is not A required. (People supra, Cal.3d at p. concealment if suffices it combined with a attack on an purpose surprise 555, 557; victim unsuspecting from a at position advantage. (Id. pp. Webster, People v. Defendant drove alongside the victims where there were no witnesses and where would be they most vulnerable. While were they he called to them so completely unsuspecting, they would look his way become ideal live After targets. gaining this position advantage, he shot killed.

Defendant next claims there waiting is no evidence of watching. we Again, disagree. Defendant was first seen entering about campground it, three hours the before He then reentered shooting. and observed his the victims in going opposite Rather than when direction. shoot them he first them, around, them, and, saw he turned followed when had reached the they area, most isolated in the He spot struck. knew the well area from prior visits. The could jury reasonably infer defendant waited and watched until the the girls reached place of maximum vulnerability shooting. before This was sufficient. A killer need not his view intended victim the during entire Morales, period watching (See of and People waiting. supra, v. 48 Cal.3d at 555.) p.

There was evidence also of a period watching substantial and waiting. could jury find reasonably that defendant first saw the victims as they 8Defendant makes other summary to the instructions. Since he does challenges develop arguments, the they instructions, and are specious reject of the actual we light them. to the Blue Jay campground, a near the entrance by were restroom walking a a quarter he around followed Since more than and that turned them. and where he shot mile where first saw spot girls defendant separated them, foot, infer that a matter of on reasonably were could they he shot them. minutes defendant first saw them until from time elapsed This was substantial. i.e., wait, kill the lying claims he “while” lying did not attack, position did

wait not “result an moment for provide opportune in a state How- advantage, particular vulnerability.” or the decedent put .ever, in wait might it did these. The evidence that the lying all of suggests furthered it. design; certainly have been it crucial to defendant’s murderous Vanessa, when most was shot between by surprise, eyes victim taken had Kelly, target, the second hearing she looked at defendant his call. upon react, head, her defendant’s aim affecting a brief turned thus moment to Moreover, any “cognizable to survive. occurred without enough shooting legal under standard. in wait interruption” following lying 1000, 1011 (Cf. Superior Court 129 Cal.App.3d Domino Morales, 486], with evidence that reliance on the Defendant also challenges prosecution 11 that morning. truck entering campground his was first seen around it was truck. This The witness he defendant’s testified was sure” “reasonably relevant, evidence, was and the dispositive, prose- alone far from although relied on evidence the special cution it as one bit of properly supporting circumstance. each special

Sufficient evidence element supports lying-in-wait circumstance. Vindictive, Alleged Capricious

2. Discriminatory and Prosecution 22, 1981, On and before defend September days shooting, three after arrest, ant’s filed and for defendant’s arrest was a warrant complaint murder obtained. The first no circum complaint charged degree special but days stance. Defendant was arrested 28. Twelve Maryland September later, 10, 1981, on filed October an amended complaint charging the amend lying-in-wait circumstance. Defendant claims special ment was and discriminatory, unlawful because it was a vindic capricious, counsel, tive assertion the right retaliation for defendant’s tempo his extradition, refusal waive eventual rary his refusal to talk to the police.

827 that the is before us Attorney The General issue not argues properly defendant moved to the amended nor complaint because neither dismiss “[Bjecause We a claim of discrimi objected agree. otherwise on this basis. rests extraneous to natory prosecution upon completely evidence generally offense, facts of the we the issue should not be specific believe charged trial, resolved evidence at instead should be raised . . . upon submitted but (1975) a v. 15 through (Murgia Municipal motion to dismiss.” Court pretrial 286, 293-294, 204, 44].) Cal.3d 4 540 P.2d This rationale fn. Cal.Rptr. [124 (1989) to claims of also Toro applies prosecution. (See People vindictive v. 966, 811, 976 must Cal.Rptr. object 766 P.2d [254 577] [defendant to amendment of objection]; information trial to a lack-of-notice preserve People (1976) Sperl 907].) v. 54 Cal.App.3d Cal.Rptr. 656-657 [126 True, argues he objected lying-in-wait charge. to the repeatedly but not this on basis. He claims he the issue selection during jury also raised time, 1983. At that defendant February requested “proportionality hearing” 1982) under the then Pulley (9th recent decision v. Cir. of Harris 1189, 1196, 692 F.2d Pulley (1984) reversed sub nomine v. 465 U.S. Harris Harris, 37 (In L.Ed.2d 104 Pulley supra, [79 S.Ct. v. United 871]. decision, States Court Supreme ultimately reversed the Ninth Circuit’s held that review of proportionality cases Portions of capital necessary.) argument defense would have been relevant to a claim vindictive claim, however, had prosecution that claim been made. The was never actually made. instant contention is not before us. properly The contention is also meritless. Defendant claims the attorney district amended the complaint retaliation for his exercise of constitutional rights. (See In re generally (1985) Bower 865 Cal.Rptr. [215 [700 1269]; Twiggs Superior Court 34 Cal.3d 360 1165].) He relies largely on media that the sheriff and reports to a lesser extent a district deputy criticized the attorney involvement early defender in public the case.

We start our analysis by observing that or generally informa- complaint 1009; tion may be amended even late (§ as as trial. v. Witt Here, Cal.App.3d amendment was filed arrest, within two weeks of defendant’s even before preliminary hearing, and well over a year before trial. Bower, 874-877, In re supra, 38 Cal.3d at pages Superior Twiggs

Court, 369-374, Cal.3d at pages we found a presumption vindictiveness when were charges increased after the assertion of constitu- tional rights and Bower, had jeopardy supra: attached. As stated in “The after 828 should the action because important prosecutor is

timing prosecutor’s ‘[a] him entrusted to to free trial exercise the broad discretion remain before to An initial deci- interest in determine the extent of the societal prosecution. clear in we made sion freeze future conduct. As omitted.] should not [Fn. (1978) (54 98 S.Ct. Hayes 434 U.S. 357 L.Ed.2d Bordenkircher [v. the extent filed not reflect to 663)], charges by may the initial a prosecutor ([United States v. is subject which an individual to legitimately prosecution.’ 74, 86, 2485)].) (1982) (73 102 S.Ct. 457 U.S. L.Ed.2d Goodwin factor in that important “The court United States v. noted an Goodwin] [in At the pretrial the is the attachment of timing jeopardy. element assessing may the extent of prosecution ‘the assessment of stage prosecutor’s proper contrast, begins—and certainly by In once a trial crystallized. not have fully the much that likely a more time conviction has been obtained—it accused an against has and assessed all of information State discovered information, determination, extent of the basis that and has made a 368, 381, 85), ([457 (73 he L.Ed.2d to which be U.S. prosecuted.’ should 875-876, Bower, at (In re Bower].)” supra, pp. added in italics 74, 102 U.S. 368 L.Ed.2d United States Goodwin quoting S.Ct. crime, days initial was filed within three

The of this case complaint natural, that that It is not suspicious, even before defendant was arrested. all of the informa- not and assessed had “discovered point prosecution Bower, 875.) It Cal.3d at is not (In tion” re against defendant. lying-in-wait did a fully possible not assess surprising prosecution large pressing while defendant was still at and most special circumstance charge special an whether to a Deciding need was obtain arrest warrant. decision, to be rushed. circumstance is one not obviously major ante, in discussed judicial charges. serves weed out inflated As process 1., fully by II. B. circumstance was warranted part lying-in-wait special arrest, within and thereafter evidence. It was of defendant’s charged days hint, less an There is no much consistently effectively prosecuted. showing, affirmative vindictive prosecution. prosecution discriminatory capricious. also claims the situated, asserts, “others,

He were without that evidentiary similarly support, if the not . . .” Even for wait . prosecuted Orange County] lying [in record District does supported Orange County Attorney claim claim of (it not), all cases does this would not state a prosecute lying-in-wait discriminatory prosecution. v. Keenan Cal.3d 478

1081], San we the defendant discovery refusal about upheld grant

829 Francisco Attorney’s capital charging District to aid policies practices a claim charging. of discretion to select those arbitrary “[P]rosecutorial eligible cases in death will be does penalty actually sought which the not and of itself evidence arbitrary capricious capital punishment system an or offend due or cruel and/or principles protection, of unusual equal process, [Citations.] [] n may affect the of punishment. Many litigation circumstances a case include chargeable under death law. These factual nu- penalty ances, evidence, and, strength broad particular, of discretion to show Hence, channeled leniency. one sentenced to death under a death properly scheme penalty by showing cannot constitutional violation that other prove whose were did not receive the death persons superficially crimes similar same decisions penalty. reasoning applies prosecutor’s [Citations.] (id. 505-506.) or pursue charges withhold at the at capital pp. outset.” The district this case as well he attorney prosecuted vigorously, might. crime, Vigorous prosecution is This capricious prosecution. involving effective execution of 12-year-old girl one and the execution of attempted another, is particularly It cannot to other aggravated. compared superfi- be Keenan, cially similar lying-in-wait (See People cases. v. 46 at Cal.3d 506.) There was p. impropriety no this as a prosecuting capital case. Penalty C. Phase Issues Jury

1. Selection

a. Restrictions on VoirDire the trial court limited argues his improperly questioning 11 prospective jurors during selection of the returned the death

verdict now under review. 392, People 317, (1981) Williams 29 Cal.3d 407 Cal.Rptr. [174 628 869], P.2d we held that counsel “should be to ask allowed questions reason ably designed to assist in the intelligent exercise peremptory challenges whether or not such are also questions likely grounds to uncover sufficient to also, however, sustain a challenge for We cause.” expressly intact the “le[ft] considerable discretion trial court to contain voir dire within reason 408; (Id. able limits.” see (1991) v. Mason 950].)9 passage 9The Proposition significantly changed regard. has the law in this (Prop. 115, 7, Proc., 223; codified as Code § Civ. Court Tapia Superior see 53 Cal.3d § 434]; Deukmejian Raven v. allowed a wide Our discloses that court general review record dire, it were within its considerable of and the limits scope imposed voir detail, in has the merits for defendant But we need not discuss discretion. if abuse of discre- failed even we assume an occasional to show prejudice tion. 630, 774 P.2d v. Bittaker 48 Cal.3d 1046 [259

659], regarding jurors court four to the posed questions prospective trial further ques- their towards the death It sometimes asked penalty. attitude tions, (Id. at subject. attorneys did not allow the to ask on questions but restrictive, 1081-1082.) rejected but unduly We found the pp. procedure limitations on voir reversible “Judicial that the error was se. argument per in on selection and jury dire in their severity, impact vary scope should not why of see reason the courts the ultimate outcome trial. We no differences, in which the limit cases recognize those reversals those (Id. jury.” fair and affected defendant’s to a ruling right impartial erroneous 1086.) at p. in of far None

The here restricted counsel less than Bittaker. court actual When defendant in the restrictions sat on the jurors jury. involved Our remaining. he conclu- challenges had 10 accepted jury, peremptory was finally in “When the jury sion Bittaker to this case: applies equally selected, or not did that was was incompetent, defendant not claim any juror (48 p. Cal.3d at We therefore find no error.” impartial. prejudicial b. Denial Challenges Cause of for his for challenge

Defendant next the court erred argues denying cause them the same as those involved as to prospective jurors (many contention). Again, in the our voir dire restrictions discussed the previous failed to review the record no defendant has show discloses error but all 11. on actual prejudice even the court erred as to None sat assuming or was never each was either defendant jury; challenged by peremptorily had when he challenges seated box. The 10 defendant jury peremptory exceeded total accepted jury remaining prospective jurors number unsuccessfully that were chal were involved the restricted voir dire or not dissatisfaction lenged for cause defendant. Defendant did by express jurors with the as inclusion of Any prospective selected. erroneous (Ross therefore harmless. v. Oklahoma 487 U.S. [101 issue, we disposition Because of our this need provision consider the effect of the new case. this 80, 89-91, 2273]; Cal.3d at People Cooper, supra, L.Ed.2d 108 S.Ct. therein.) and cases cited he challenges Defendant claims was afraid to use more for peremptory fear the actual the record panel only get Nothing supports would worse. trial, never claim. He such and never suggested requested concerns Mississippi additional Defendant also cites peremptory challenges. Gray (1987) 481 U.S. 648 the proposition L.Ed.2d 107 S.Ct. for 2045] however, Gray, error is se. the erroneous reversible involves per exclusion of a because of views on the death prospective juror penalty. Oklahoma, 81, which rejects decision of 487 U.S. subsequent supra, Ross v. rule, (See a reversible se jurors. controls erroneous inclusion of per People Cooper, supra, 808-809.) v. pp.

c. Peremptory Penalty Disliked Challenges Jurors Who Death of

Defendant claims the district used his attorney improperly peremp to tory challenges excuse jurors expressed slight who “even prospective est and reservation concern about the death We repeatedly have penalty.” Gordon, rejected the contention. (E.g., People 1263.) v. 50 Cal.3d at p. decision, Defendant us to federal urges follow a district court apparently only court ever to find (Brown (W.D.N.C. 1988) merit in his v. Rice position. (4th 1989) F.Supp. revd. sub nom. Brown v. Cir. 891 F.2d Dixon 490, 496-498, cert. den. 495 U.S. 953 L.Ed.2d 110 S.Ct. [109 2220].) We not are Nor persuaded. was the circuit court that reversed that Dixon, (Brown decision on this very supra.) v. point. We with the agree court, circuit and with the of opinion concurring Justice O’Connor denial of certiorari in an (Brown earlier of the same case. appeal North Carolina 479 U.S. L.Ed.2d S.Ct. 423] (conc. O’Connor, of opn. J.); cf. the Brennan in dissenting opinion Justice case, the same id. at pp. 942-945 L.Ed.2d at pp. 375-377].) 2. Admissibility Prosecution Evidence

a. Evidence the Search for Defendant

Over defense objection, the court admitted evidence that for five after days the shooting, multijurisdictional law enforcement personnel con ducted a but massive futile and ground air search for defendant. Defendant argues that the evidence not was relevant to aggravating factor was However, unduly prejudicial. evidence to the of the relating circumstances 190.3, crime is admissible at the phase. (§ (a); People factor penalty Carrera, supra, 336.) 49 Cal.3d at “The thus remains whether the question relevant, outweighed any its value probative was whether testimony (Carrera, supra, effect.” at p. prejudicial argument, to defendant’s Contrary court acted within its discretion. but, activity by reasonable police did relate merely

the evidence inference, to know jury his own actions. It was relevant for manhunt, mind after the defendant had the major presence despite advance suggests to elude out of area. This shooting slip capture and, remorse, to avoid conse- rather than a cool determination planning claim that defense negate possible of his actions. It also tends to quences momentarily deranged was a affair aby the shooting spur-of-the-moment individual. it claims showed

The evidence was not particularly prejudicial. But that him No doubt. dangerous. proved considered police especially it knew that shooting, only obvious. Once the learned facts defendant was massive efforts would be undertaken That dangerous. relevant, obvious, him was to was less but be What capture expected. There error. that defendant eluded those efforts. was no Photographs the Victims b. of three the admitted evidence objection, photo

Over court into and Vanessa taken at Kelly the while alive—one of both graphs of victims of taken Kelly the the before and two about shooting, the campground night The head. Kelly’s a month later. latter two a bandanna around showed it finding the the two that court admitted initially only photograph girls, roadway. as the It shows girls, “shows the were down arguably, they walking Later, them, the admitted the girls the as the defendant saw court arguably.” She in the five substantially years two had photographs Kelly. grown trial, her between the crime and the third and the showed stature photographs admitted at at the time defendant her. had been photographs shot None the first trial. were and irrelevant.” contends the photographs “inflammatory not,

They were and the court did abuse its discretion them. admitting Carrera, (People the at They v. 49 Cal.3d at victims p. depict crimes, the time the They not as looked at trial five later. Kelly years size, the the vulnerability aided the and properly jury judging. age 718, 372, (People Frank (1990) v. victims. 51 Cal.3d 734 798 [274 1215].) (and the refer- argument Defendant contends the photographs prosecution 4., post) of the crime Vanessa’s II. C. ring impact family—see part (1987) were under v. improper Maryland Booth 482 U.S. 496 L.Ed.2d [96 440, (Booth) 107 S.Ct. South Carolina Gathers 490 U.S. 2529] (Gathers), L.Ed.2d generally 109 S.Ct. which barred 2207] admission of victim evidence and related impact prosecution argument during penalty phase of a trial. of this capital During pendency however, those were appeal, holdings (Payne overruled. v. Tennessee _ 501 U.S. L.Ed.2d (Payne).) Payne, S.Ct. the high 2597] held “if court the State chooses to permit the admission of victim impact evidence and prosecutorial argument on that Amendment subject, Eighth A erects no se bar. per may State conclude that evidence about legitimately the victim and about of the murder on the victim’s impact family relevant decision as whether jury’s or not the death should penalty (Id. be imposed.” 2609].) at L.Ed.2d at p__[115 S.Ct. at It p. p. also held “that a State conclude may properly that for the to assess blameworthiness, meaningfully defendant’s moral it culpability should have before it at the sentencing evidence of the harm phase specific (Id. caused by defendant.” p__[115 L.Ed.2d at S.Ct. at p. We requested received Payne on the supplemental briefing impact of on this case. Defendant now contends that even aside from Amend- Eighth considerations, ment victim impact evidence is inadmissible California because it does not come within any of the factors aggravating listed (See section 190.3. People Boyd, supra, 775-776.) One of the statutory aggravating factors is the “circumstances of crime of which 190.3, defendant was convicted (§ present proceeding . . . .” (a).) factor The issue is thus whether “evidence of the harm specific caused the by (Payne, 735, defendant” supra, 501 U.S. at L.Ed.2d at p._[115 p. at 2608]) S.Ct. p. is a circumstance of the crime under admissible factor (a). We think it generally is. statutes, usual, construing we apply ordinary of the import

language used. (California Teachers Assn. v. Diego Community San College 692, Dist. 817, 28 Cal.3d The word (a) “circumstances” as used in factor of section 190.3 does not mean merely the immediate temporal spatial circumstances of crime. Rather it extends to which surrounds “[t]hat or materially, morally, logically" (3 the crime. Oxford English (2d 1989) Dict. ed. “circum p. stance,” first definition.) The harm specific caused the defendant by does surround the crime “materially, or morally, logically.” Gordon, relies primarily on language People from supra, 50 Cal.3d at pages “In 1266-1267: the general case—and here—the certainly effect of the crime on the victim’s is not family relevant to material these evidence on Obviously, victim. for the Nor is sympathy circumstance. It is them is barred. argument on obviously, Just as is inadmissible. matters The in these Boyd respects.” under remark was improper that the manifest “was, take William did the defendant ‘Not only remark found improper he now wants family, his destroy future and life and his entire Wiley’s due that is rightfully him The too. sympathy from away take sympathy ” 1266.) (Id. at Wiley.’ p. William Gordon, Boyd, of language general cites supra, only 50 Cal.3d it also In the next paragraph, state-law error. supra, finding 38 Cal.3d conclusion (50 at Its under Booth and Gathers. finds error decisions, and overruled these now by on the state-law was colored question court. decisions this by and other light Payne must be reconsidered (1982) 30 Cal.3d v. Haskett People case is leading pre-Booth “to jurors put invited There the prosecutor 776]. victim and murder attempted Mrs. Rose themselves the shoes of [the inflicted the acts suffering imagine murder mother of the two victims] “Although appeals (Id. 863.) We these comments: on her.” at p. permitted at the guilt phase are jury inappropriate or passions sympathy the resolution [citation], decides a jury question at the penalty phase facts, of those moral assessment jury’s but on the only which turns not It death. is not put defendant be reflect on whether should they facts as elements weigh sympathetic but that necessary, jury only appropriate, offend the conscience. may those that background against of defendant’s is the considerations significant In this one of the most process, [Citations.] Code, 190.3, (a).) Hence (See crime. Pen. underlying [factor] nature of the § germane would viewpoint appear assessment the offense from the victim’s 863-864.) (Id. to the task of sentencing.” pp.

Thus, the defend- suffering argument regarding before Booth we found (a) section under factor ant inflicted as a circumstance of the crime proper Haskett, 190.3.10 the mother Although victims, relative of the murder both a victim of crimes and a noncapital her as suffering only could consider nothing opinion suggests the murder victims. a direct victim and not also as a relative of 126, 468, In 536 788 People Douglas 50 Cal.3d [268 “ is, 640], that and then on the ‘What offense prosecutor argued, huge law, Haskett, 841, committed the not the 10The crime in 30 Cal.3d was under 1977 law, 762) restriction. subject Boyd (supra, current and hence to the 38 Cal.3d was not 543, However, (a) (See 575.) of section is Hovey, supra, 44 Cal.3d factor 190.3 People factor, Thus, relevant to that it is inteiprets identical under both statutes. to the extent Haskett this case. that, of what does it do that This is a top person’s family? tragedy, just killed, the but the no person society for . . . We found you family comments, error this “merely and other the finding they emphasized crime, the circumstances inhumane nature of the aggravating namely, the of 537, (id. added.) violent acts inflicted two victims . . at italics p. . 827, In v. Benson 795-797 330], other criminal we argument impact the upheld regarding of conduct the defendant had left upon expressly victims. We open Gathers Booth or whether other would kinds of evidence question prohibit “the such as emotional of such on the victim’s impact activity criminal (Id. family . . . .” at fn. We now know there is no such p. prohibition. Benson that such evidence comes within strongly implies section 190.3, (b), factor If “criminal or violence. victim activity” involving force evidence impact (b), is under permitted factor it should be certainly permit under (a). ted factor Gordon,

The supra, assumption that the “effect at page the crime on the victim’s is not relevant material circum family stance,” cases, is based on Booth suspect these light largely and Gathers. Payne, is no under assumption longer valid which ex “the harm plained, assessment of caused as a by defendant result of the crime charged has understandably been an concern of the important criminal law, both the elements and in determining of the offense determining appropriate punishment.” (501 U.S. at at p__[115 p. L.Ed.2d S.Ct. 2605].) Generally speaking, “victim evidence impact entirely serves legitimate event purposes. that evidence is introduced that is unduly so unfair, prejudicial that it the trial renders the Due fundamentally Process Clause of the Fourteenth Amendment provides (Id. a mechanism for relief.” _ at p. L.Ed.2d at p. S.Ct. at p. reasons,

For these we believe that inflicted is injury generally circumstance of the as crime that phrase commonly understood. We need not divorce the injury from acts. We hold that (a) thus factor section 190.3 allows evidence and argument specific on the harm by caused defendant, on the the victim. including impact holding This family only encompasses evidence that the harm logically shows caused by defendant. We do not now explore outer reaches of evidence admissible crime, aas circumstance of the and we (a) do not hold that factor necessarily 836 allowed argument by and evidence impact forms of victim

includes all _ 720, 111 S.Ct. 2597].11 L.Ed.2d supra, 501 U.S. Payne, evidence on emotional are no limits mean there holding Our also does not Haskett, we Cal.3d at supra, page People and v. argument. cautioned, “Nevertheless, and soberly obligation the must face its jury reign may that emotion given impression and should not be rationally, case, therefore, must strike the trial court In each over reason. [Citation.] theOn the prejudicial. and probative [Citations.] careful balance between hand, though on emotional evidence and argument it allow one should to sway jury reasons to subjects provide legitimate relevant that could hand, irrelevant On the other the ultimate sanction. show or to mercy impose from its attention jury’s rhetoric that diverts the or inflammatory information irrational, be should subjective response an purely role or invites proper U.S. at Payne, supra, p. (See cautionary language also the curtailed.” 2608], _[115 previously.) at p. quoted L.Ed.2d S.Ct. standard, admissible. clearly were the photographs

Under this irrelevant photographs against admitting we have cautioned Although at 45 Cal.3d Thompson, supra, (People at a v. guilt victims while alive phase at a do not therein), apply the same considerations and cited cases p. guilt may determining and prejudicial Evidence irrelevant penalty phase. is established. guilt once relevant judging appropriate punishment be 687-688 Cox 53 Cal.3d (People Whatever in the photographs. Defendant both girls depicted assaulted relevant to of their lives was suggested preciousness

the photographs lives, and at of those taking for one determining punishment the proper 688.) (Id. at p. to take the other. tempting Other Prosecution Evidence

c. objection, erred in over admitting, the court contends about testify mother to evidence. The court allowed Vanessa’s other items of her her seeing daughter her her daughter, search for girls’ friendship, understand aided at the Evidence about the friendship hospital. with each have been preoccupied that the shooting, including girls might Carrera, (See People v. for defendant. presented easy targets other thus at testimony at similar [admitting pp. context, claims concurring dissenting opinion 11By quoting language certain out Mosk, J., (Conc. opn. by post, point.” & dis. Attorney “effectively General concedes the which does not impact “Victim evidence Attorney The went on to state: General in Code section remains under Penal 190.3 statutory aggravating relate to circumstance 762, 772-780.)” Attorney (See, Boyd admissible California. issue; it. accurately did not he stated General concede the instant

837 for her looking daughter The the was guilt phase].) testimony about mother unemotional, the It and was what would was factual exactly jury expect. admissible as a circumstance of the crime. testimony

As with the defendant to guilt phase, objects penalty phase club. For the regarding gun his firearms found area of storage ante, (see, b.), 4. this evidence was reasons discussed at II. A. previously pt. admitted to aid assess the crime. properly at the time objects Defendant to officer that finally testimony by police crime, trial, “small, fragile.” of the unlike the time of This Kelly victims, like testimony, was relevant to the circum- photographs stances of the crime and to defendant’s moral judging culpability.

3. Exclusion Evidence of Defense

At the defendant renewed his motion penalty phase, unsuccessfully admit he his statement to the after his arrest and the notebook taped police ante, (See, 5.) after the compiled shooting. at II. A. Defendant reiterates pt. we have He the court arguments rejected. argues also already violated his federal constitutional at the to have the right penalty phase (See Payne, supra, sentencer consider all “relevant evidence.” mitigating 2606]; Skipper 501 U.S. at p. L.Ed.2d at S.Ct. at v. p. p. 1, 6, South 1669]; Carolina 476 U.S. L.Ed.2d 106 S.Ct. Whitt, 647.) v. 51 Cal.3d at p. him contends that this right present constitutional entitles desires, evidence any relevant he if mitigation form even right prosecution cross-examination is We that the thereby agree defeated. “range of constitutionally (People pertinent mitigation is . . . broad.” Whitt, supra, Cal.3d at But neither p. high this court nor court has suggested that the rule all allowing relevant evidence has mitigating abrogated California Evidence Code.

In Green Georgia, supra, U.S. court considered when high a state’s rules of evidence must yield to the right constitutional to present Green, evidence at the of a penalty phase case. capital defendant attempted to show that he was not an active in the participant murder of he which was convicted. He offered the of a testimony witness that another admitted person killing victim. trial court refused to admit which, law, statement under Georgia law unlike California had no exception to the rule hearsay for declarations against interest. Under these penal (Id. circumstances,” “unique the court found a due violation. process 97.) “Green held that a defendant’s due are violated when process rights excluded, if both is of a trial hearsay capital at the testimony penalty phase testimony ‘highly (1) the excluded conditions are following present: trial,’ (2) there phase critical the punishment relevant to a issue (People v. of the evidence.” reliability assume the are substantial reasons to 97; Green, also Kaurish, at see supra, p. 52 Cal.3d at supra, p. quoting Frierson, supra, 53 Cal.3d at People p. v. were (ante, 5.), II. A. defendant’s statements at previously pt.

As discussed to the a recognized exception to under qualify not reliable sufficiently to admission enough compel were reliable they rule. not hearsay Similarly, 442 95. Georgia, supra, under Green v. U.S. relevant to show were

Defendant contends the statement and notebook contrition, life, moods, emotions, and overall “his mental personality, on these have evidence and as rebuttal. Defendant could presented psyche,” and, if appropriate, He have testified a manner. could subjects proper have This would recollection with the or notebook. tape refreshed his cross-examination, wanted him which the defense apparently subjected also have presented the defense could suggested, avoid. As the trial court for an materials as a basis which could have used these testimony expert 44 Cal.3d 1026-1029 (See People v. Lucero expert opinion. effec- had no right But defendant 750 P.2d [245 cross-exami- him and thereby prevent have someone else for tively testify 644; Whitt, Nye v. People at see also supra, v. 51 Cal.3d (People p. nation. [“Objectionable 372 395] than at the guilt the penalty phase evidence is no more admissible at hearsay phase.”].) and thus poem,” was a “prose

Defendant also contends notebook Harris, at People supra, pages (plur. admissible under v. trial, Broussard, J.). may and therefore He did not make this claim at opn. by Kaurish, 704.) In Cal.3d at (People supra, p. appeal. do so addition, that the reliability did not the indicia of notebook contain (Harris, at supra, of that case. Harris found existed plurality poetry 70-71.) The the statement and notebook. court excluded pp. properly issue, In defendant a related to admit statements sought defense also while the children’s allegedly made his housed regarding experiences ward of a Counsel was argued testimony before hospital shooting. relevant and his to show defendant’s concerns about “observations children hearsay objection and their a to the plight.” court sustained testimony.

Defense counsel but testimony hearsay, argued conceded the it should have been admitted U.S. Georgia, under Green v. 95. The alleged defend- reasons to suspect so the shooting, made were before statements and notebook statement with the taped that exist sincerity ant’s motives Nevertheless, defendant’s testified about witnesses exist. 10 other do not children, who cared for picture person with presenting relationship good how in detail about testified The witness question loved them. this, statements hearsay light her children. defendant was with (Id. at cumulative, issue.” relevant to a critical not “highly have been would Kaurish, Cal.3d at 741]; supra, 52 see also L.Ed.2d p. and no 704.) prejudice. There was no error p. Misconduct Alleged

4. Prosecutorial acts of misconduct. committed various the prosecutor contends disagree. We Booth, rule of violated the He the district attorney first contends 805, 496, Gathers, when he to argued U.S. supra, supra, 482 U.S. 490 go like for to [Kelly] was “You can what the jury, imagine experience The trial it’s like.” and what imagine family You can Vanessa’s through. In any family. reference to Vanessa’s court sustained an to the objection event, overruled and Gathers have been as discussed Booth previously, regard. this regarding engaged “speculation

Defendant next claims the prosecutor Based upon the evidence.” inflammatory supported by inferences not the truck and went to that after the defendant out of testimony shooting got slam, rear, something prosecutor that she heard Kelly’s testimony girls that “suggested] jury going put to [the defendant] argument, The to the objection vehicle.” court overruled defendant’s what believe you, gentlemen, you admonished the “It’s ladies and jury, up The was correct. to be the and what can be drawn.” court facts inferences range permissible The comment came within the broad prosecutor’s to decide. jury Whether the inference was for the argument. was reasonable Warren, 967; supra, v. (People Kelly, supra, v. 51 Cal.3d at p. 485, 1.) Cal.3d at Contrary argument, prosecutor fn. to defendant’s p. the jury. never he had information not available to implied converted “neutral and Defendant next claims the prosecutor improperly trial, He did on this basis at object evidence into not mitigating aggravation.” (1989) Bell 49 Cal.3d (People and thus not raise the issue on v. may appeal. 1, addition, 129].) In the contention lacks 778 P.2d Cal.Rptr. [262 time defendant’s at the argued age—37 merit. that prosecutor properly Beardslee, supra, (People aggravating, mitigating. crimes—was not 53 Cal.3d He of certain also the absence p. properly argued evidence, and commented on the evidence the defense mitigating mitigating (People did v. Caro 1062-1063 present. 761 P.2d “There is no argued, Defendant next contends the prosecutor improperly Edwards; I’m reason for You should to understand Mr. feeling sympathy. try he Again, that But not in terms of suggesting you sympathy.” not shouldn’t. Bell, (People did he object, may appeal. so not raise the issue on addition, 547.) In Although jury Cal.3d at the contention lacks merit. it would is entitled to consider its determination—and sympathy penalty (People be otherwise v. Robertson improper suggest 279])—the to feel required is not argue par murderers. The sympathy prosecution may properly for ticular facts do not warrant the defense may properly argue sympathy; opposite. “execu that the used the word finally complains prosecutor

tion” in This to be an opening shooting. appears his statement to describe event, the crime. In the court sustained an one-word of apt description any harm, the matter has objection. Since an admonition could have cured Carrera, 319-320.) (People supra, been waived Cal.3d at appeal. pp. v. 5. Instructional Issues

a. During Jury Instruction Selection selection, the court

During jury summarized briefly process for the prospective jurors would be involved should be selected they In jury. actual so referred evidence doing, mitigating court sometimes as evidence” “good and evidence as “bad evidence.” aggravating Although time, he did object at the defendant now contends this was an incomplete and hence misleading and factors. explanation mitigating aggravating Defendant is correct that the terms and “bad” do not “good” thoroughly factors, explain the nature of mitigating and but he does not aggravating demonstrate error.

The of these purpose comments was to most of give prospective jurors, whom had little or no with familiarity general penalty phase courts death penalty trials idea the nature particular, general proceed- be, not, ing. comments were not intended to and were a substitute for trial, indeed, full instructions at the end of the court informed the that jurors it would instruct them on how to deliberate after the evidence portion trial. as evidence and “bad" “good” has used terms in the past

This court Brown, supra, (People v. evidence. aggravating mitigating shorthand for 541-542, does selection during jury To do the same fn. 40 Cal.3d at pp. the complete these were—that are aware—as harm as as the long jurors no the trial. end of at the given would be which had to follow they instructions during jury a fuller give explanation If wanted the court to defendant (1990) 51 selection, (See People v. Medina it. he should have requested therein.) 849, 1282], 870, cases cited 799 P.2d 902 [274 He did not do so. on the Deliberative Process

b. Instructions Brown, we found at footnote supra, v. 40 Cal.3d People page were process the deliberative that the then-standard instructions on courts, we stated trial the future misleading. guidance For potentially conform to “would that a modification of the standard instruction proposed the jury instructed (Id. 19.) The court this case our at fn. opinion.” de in Brown.12 Now identical language substantially approved We misleading. is incorrect and fendant contends that Brown instruction supra, 53 Cal.3d (People Sully, have v. already rejected such contentions. 1243-1244; Duncan 53 Cal.3d pp. People Cox, 131]; at pp. 679-680.)

c. Factors Mitigating Instruction on Evaluation of

The instruction gave mitigation substantially court a “catch-all” 858, (1983) Easley identical that 34 Cal.3d People to recommended v. 878, 309, Defendant contends the footnote 10 671 P.2d Cal.Rptr. [196 813]. in Easley erred in The court to an additional instruction.13 refusing give struction, however, full of range the of the jury is sufficient to advise does weighing aggravating mitigating circumstances 12The court instructed: “The of the counting imaginary of factors on each side of an scale or not mean the mere mechanical any of them. arbitrary assignment weights of you appropriate deem to each assign sympathetic “You are free to whatever moral or value factors, weighing the various you permitted and all of the various factors are to consider. In penalty justified appropriate evidence you simply determine under the relevant which aggravating totality mitigating with the of the considering totality the circumstances by circumstances. death, “However, you persuaded that the judgment to return a of each of must be circumstances, it comparison mitigating is so substantial in with the aggravating evidence prison possibility parole.” death instead of life in without the warrants instruct, also “In circum requested mitigating the court addition to those 13Defendant does provided you, mitigating additionally circumstance is that which previously stances

842 evidence, supra, nothing (People Sully, more is v. mitigating required. 1, 1244-1245; Cal.3d at see also Malone pp. v. 525, & properly 54-55 fn. 30 court [252 1249] [trial Indeed, instruction].) the same Court has Supreme refused the United States (1990) (Boyde an narrower instruction. v. upheld arguably California 327-331, 1190, 1196-1199].) U.S. 377-383 110 S.Ct. L.Ed.2d [108 his refusing request Defendant also contends the court erred substantially “If the factors jury, you instruct determine that aggravating factors, death or a may return a outweigh mitigating you finding (Italics added.) In life in finding of without prison possibility parole.” L.Ed.2d at Boyde California, supra, v. 494 U.S. at pages 1195-1196], the an almost diametri high 110 S.Ct. at court pp. upheld if it the death cally opposite jury impose” penalty instruction—that “shall cir concluded that the outweigh mitigating circumstances aggravating in People We cumstances. about the word “shall” expressed misgivings Brown, 544-545, 17, and recom supra, 40 Cal.3d at and footnote pages have never mended that future was in this case. We courts instruct as done The Brown instruction suggested instruction now urged required. was sufficient.

d. and Reasonable Doubt Instruction on Circumstantial Evidence

The that the could jury court refused defendant’s to instruct request draw the under inference based on circumstantial evidence unless lying facts were and the inference is proven beyond reasonable doubt only (See 2.01.) reasonable one. No. Defendant contends court CALJIC erred. First, did contention fails for not sub prosecution two reasons. Wright

stantially rely (People on circumstantial evidence for proof guilt. More fundamentally, the reasonable doubt instruction was inappropriate At a unlike the does not penalty phase. penalty phase, guilt phase, such, engage as but rather determines the factfinding appropriate penalty for the crime or crimes of which the defendant has been convicted. already Although other crimes must be before proven beyond a reasonable doubt (1985) can be considered in 41 they (People Davenport v. Cal.3d aggravation 247, 794, 861]), 280-281 in this Cal.Rptr. none offered [221 case. Aggravating factors other than criminal need not be activity proven a beyond reasonable doubt before the consider them. jury may In People v. Rodriguez Cal.3d 113],

726 P.2d we law rejected claim that a valid death must penalty not legal constitute a justification question, or excuse of the offense in but which in fairness mercy, may be extenuating reducing degree culpability.” considered as or of moral factors . . . beyond aggravating reasonable doubt require “proof in (Id. 777.) like those discussed . . . As we “instructions p. explained, Brown[, in are better [People supra, 40 Cal.3d this given case] v.] admonitions, than are such as sentencing suited to normative task of with traditional urged those which terms associated by appellant, speak (42 Cal.3d at factfinding.” p. “Lingering Doubt” Instruction

e. erred in failing contends the court to instruct could consider a as or the jury lingering premeditation lying-in-wait doubt to defendant claims special Although circumstance its determination. penalty otherwise, he did such an instruction at trial.14 issue is thus request whether there There sua such an instruction. is not. sponte duty give Cox, 1245; (People v. Sully, supra, supra, 53 Cal.3d at v. p. 675-679.) at pp. Instruction to View Admissions With Caution

f. Defendant’s

Defendant contends the court erred instruct the sua failing jury that his die sponte admissions should be viewed with caution. As at guilt him, Allen phase, Deputy testified at the that defendant told penalty phase record, “Off the I’m I don’t I guilty. why girls. know shot those two little But I’m guilty as sin. I’m I about what their depressed through.” families put People

Assuming (see instruction to the applies penalty phase Morales, 569), 48 Cal.3d at its omission could prejudiced not have defendant. “The instruction purpose cautionary jury is to assist if the (People Beagle determining statement was in fact made.” the inferences Although be drawn from defendant’s statement were there was claim that no disputed, Indeed, the statement was not made (Ibid.) or was not accurately reported. counsel, defense arguing mitigation, stressed that words precise defendant used were “an admission of a man with a tortured very soul.”

The defense did not that defendant shot the dispute girls. Telling to view his words with caution might have been more to the damaging defense than to the prosecution. There is no reasonable deliberations, 14During the jury asked for a definition of in wait. When the lying parties mentioned, court discussed the appropriate response, concept lingering the of doubt was the defense reiterated request give its that the court the instruction on circumstantial evidence and reasonable doubt. Defendant never requested lingering-doubt instruction. affected the the instruction cautionary that the failure to possibility give (People v. Brown 46 Cal.3d verdict. penalty 1135].)15 758 P.2d Age Instruction on g. deleted as a factor age the court should have

Defendant contends (People v. Beards contention. rejected to consider. We have the jury for lee, 112; Lucky (1988) 45 Cal.3d supra, at v. p. argu to defendant’s Contrary 301-302 [247 ment, sentencing aggra an all purpose has not been into age “manipulated case, aggravating is an argue age In a given prosecution may vator.” factor, jury It is mitigating. up and the defense it is may argue That is the nature of the adversarial process. decide. Penalty Retrial Instruction on Reasons for

h. selection, defendant asked At of the beginning penalty phase jury verdict that no “that there has been a trial but jury prior court to inform the that, given the concern reached.” Defense counsel expressed on death was trial, think that might the jurors time the crime and the length between Court, I which the Supreme verdict had been “overturned by death prior go against would probably think the court well aware climate today’s defendant that only the first jury panel client.” court informed my murder with the circumstance special had been found previously guilty wait, The court new would determine the penalty. that the lying jury reach a penalty did tell the that the first was unable to jury second panel Some, all, At latter statement. verdict. but not of the actual heard this jurors entire jury, told the the outset of his to the defense counsel argument jury, reach a penalty the first had been unable to objection, jury without verdict. retrial, the summer argues that at the time of the penalty mem involving underway a confirmation election campaign court, attention high, focussing

bers of this and “emotion and rhetoric ran He contends treatment of death penalty appeals.” this Court’s particularly retrial was not the trial court should have instructed the “that the jury reversal, the prejudice result of a California Court Supreme dispel[led] does not argue and emotion He surrounding understandably proceeding.” case, entire of the history the trial court should have informed the harmless error Attorney argues probability 15The standard of General that the reasonable (People Beagle, supra, guilt should That apply. phase. would be correct as to However, of state even to errors possibility applies the stricter reasonable standard Brown, 448-449.) law at the penalty phase. (People pp. 46 Cal.3d at the that a did return a verdict of death but that verdict including jury second the very day was set aside a decision this rendered the because of court ante, (See 804.) at verdict. contention, the

This court twice the reverse that recently has confronted an earlier death trial court told the that we had overturned erroneously jury 453,466-469 (People verdict the case. v. Anderson 52 Cal.3d Whitt, 1107]; 51 Cal.3d at 639- pp. 801 P.2d cases, that the suggested We found no error those but have never trial court the the required jury history prior proceed is to inform event, ings, and not a the court’s comments certainly partial history. the second and defense counsel’s informed panel argument effectively that the had verdict. There is no jury jury first been unable to reach a penalty basis even for have resulted from might verdict speculation jury’s resentment over some reversal this court. presumed by Lying-in-wait

i. Instruction

The court did not on the ele originally jury instruct penalty deliberations, ments of the circumstance. asked for special During the definition of The “lying wait.” court the then-standard gave lying-in- instruction, wait which differed somewhat the court at the gave from one instructions, but, guilt trial.16 Defendant if objected to both lying-in-wait either given, were he preferred gave. one which the court

Defendant reiterates the in wait which we have arguments regarding lying addition, previously rejected. (Ante, a.) In at II. B. 1. to his pt. contrary trial, he position (and now asserts the new instruction current standard instruction, see CALJIC (5th 1989)) No. 8.81.15 ed. than the “[w]orse” previous instruction in that the “mens rea had to be only equivalent ” ‘premeditation (Italics defendant.) or deliberation.’ This was not error. by (People Ruiz instructed, 16The court lying meaning “The term ‘while in wait’ within the of the law of special act, waiting watching circumstances is defined as a opportune for an time to together with a by concealment ambush design person or some other secret to take the other by surprise. lying in wait need not any particular period provided continue for of time that its duration is such as to show a state of equivalent premeditation mind or deliberation. “Thus, wait, for a killing perpetrated to be lying while both the concealment waiting killing watchful as during period, well as the must occur in an the same time or uninterrupted commencing attack no later than the moment concealment ends. “If there is a interruption separating clear period lying period during in wait from which the killing place, takes so killing that there is neither an immediate nor continuous events,

flow of uninterrupted special (CALJIC lethal circumstance No. proved." (4th 1983).) 8.81.15 ed. That j. to Instruct Absence Factor Is Not Mitigating Refusal Necessarily an Factor Aggravating The “The court refused defendant’s to instruct the request jury, absence a factor does not constitute an statutory mitigating necessarily However, factor.” of the aggravating Defendant contends this was error. use (People word would itself have been v. “necessarily” misleading. potentially 44 Melton Cal.3d 750 addition, the instruction had At defense request, little relevance to this case. the court deleted from the instructions the assertedly inapplicable mitigating Malone, 47). factors see v. 47 Cal.3d at (unnecessarily, People supra, p. Although evidence, prosecutor mitigating discussed the absence of certain properly factor, was an no one argued age aggravating suggested the mere absence of factors was There was no mitigating aggravating. itself error.

k. Other Instructions Defendant raises other instructional issues reasonable doubt and involving the burden of that we v. have proof repeatedly rejected. (E.g., 777-779.) Rodriguez, supra, Cal.3d at We adhere to our pp. prior decisions.

6. Accumulated Error Defendant contends the cumulative alleged effect of the errors requires however, was, reversal of the verdict. There little error accumu- penalty to record, late. After reviewing we find reasonable error no possibility Brown, affected the penalty (People verdict. pp. 448-449.)

7. Automatic Motion to Modify Death Verdict

Defendant contends trial court erred his auto denying 190.4, matic motion (e). the verdict under modify section subdivision The court must the evidence of independently reweigh aggravating whether, and mitigating circumstances and then determine the court’s independent judgment, of the evidence weight verdict. supports It must set forth its reasons with sufficient effective allow particularity appellate (People review. Kelly, supra, The Cal.3d at record reveals the court understood and executed its fully responsibilities.

At defense request, the court followed an unusual procedure this case. It allowed the defense a substantial amount of new present motion, Thereafter, expressly denied the it section 190.4

expert testimony. moved Defendant then to the jury. the evidence considering only presented new light to reduce the sentence under sections 1181 and 1385 to consider such it authority doubt that had evidence. court expressed motion, the additional motion. It found it did and denied the but assumed these challenges to the defense. testimony very helpful expert a host of rulings grounds. the mitigating consider fully

Defendant the court did not first contends factors “do mitigating that the evidence. He from context a statement pulls crime,” used the out that court extenuate the of the gravity points not factors, and statutory “extreme” in one of the discussing word statutory evidence it range mitigating the court did not the full recognize claims (1988) 45 People Siripongs v. had to consider. We a similar claim rejected 548, 729, (ante, at As noted above Cal.3d 585 754 P.2d Cal.Rptr. 1306]. instruction on c.), II. the “catch-all” correctly gave C. 5. court pt. 34 at Easley, supra, Cal.3d evidence recommended mitigating an aware- a whole showed 10. The court’s discussion as footnote page evidence, the mitigat- including it had to all the independently reweigh ness 585.) The court did not (See evidence. 45 Cal.3d at ing Siripongs, supra, p. rather, evidence; the “aggravat- it found that fail to consider any mitigating circumstances.” circumstances far ... ing outweigh mitigating a the absence of Defendant next contends the court treated improperly mitigating support factor as an factor. The record does aggravating Indeed, claim. had offered no prosecution the court stated that the expressly evidence other than the the crime. It commented aggravating merely facts of factors, (People v. on the absence of certain which was mitigating proper. Siripongs, supra, 585.) p. the probation

Defendant also contends the court considered improperly (1990) 50 Cal.3d (See People its modification v. Lewis report ruling. that, 892].) On the the court stated contrary, motion, evidence any for of the section 190.4 it had purposes “disregarded other than which at the hear- penalty that was to the presented ing .. . .”

Defendant to consider the argues also the court improperly refused new evidence he The modification hearing. at the modification presented is, however, the evidence to the hearing limited to consideration of presented jury. (People v. Marshall 942 [269 event, modify, motion to after it denied the automatic evidence, court assumed and denied defendant had the new right present new motion to based that evidence. modify upon of the disputes some factual the court made the course points of these rulings. Our review of the record shows court was generally minor; accurate. Any misstatements were there is no reasonable possibility Benson, they affected the (People rulings. Cal.3d at Defendant finally contends the denial of the motion to modify trial, with inconsistent earlier actions of the court. Before third the court wrote that it “believes that an appropriate disposition Edwards case would be to a sentence life in impose without the prison possibility with parole, defendant waiving his right appeal.” stated reason was that an appellate court find might that for the circum- lying-in-wait special stance, there must be physical concealment of which presence, was not present this case. Thus the court which suggested compromise, was not It accepted. is now settled that there need not concealment be physical presence.

Defendant argues that once the court suggested compromise settle- ment, due process and the Eighth Amendment a death verdict. We prohibit The disagree. court believed the case raised a difficult legal that question in might result reversal and a possible fourth trial. It never found the death penalty factually An inappropriate. offer to of a dispose by negotiated case plea offered, does not preclude an ultimate sentence more severe than that 1402, including (Bundy (11th death. v. Dugger 1988) Cir. 850 F.2d 1423 a life sentence [offer before trial does not ultimate preclude imposition 20, the death penalty]; People 35 [171 Szeto 652, 623 P.2d severe sentence after trial 213] [more than offered before trial in case noncapital upheld].) 472, 479,

As in (S.D.Fla. Francis v. Dugger 1988) 697 affirmed F.Supp. _ _ (11th 1990) 705-706, Cir. 908 F.2d certiorari denied U.S. 1696], L.Ed.2d S.Ct. “the trial judge the death imposed penalty after fully considering and aggravating circumstances and the mitigating recommendation, jury’s and he set forth a clear fashion his reasons for the death sentence.” There was no error.

8. Propriety the Death Sentence Defendant reiterates constitutional to the death challenges penalty law which we have long since and which we rejected, continue to reject. (E.g., People v. Rodriguez, supra, 42 777-779.) Cal.3d at pp.

He also contends that him as to the death sentence applied is “arbitrary, discriminatory and We disproportionate.” disagree. of no who were girls, two 12-year-old selected as his victims

carefully him, entire lives ahead of had their threat and who should have possible her, shot the second eyes, killing He victim between the them. shot one head, the trial The evidence supports her. only wounding fortunately and the “intended execution that the crime was an court’s assessment The in wait this lying defendant did intend to leave survivors. not [][] accomplish used to intentionally that the defendant case was procedure and without close range unsuspecting the two into such bringing girls one, have neither would girl he Neither warning hardly so that could miss. facts, run, duck, the death Undér these time or to scream even.” “ ‘ . . that it shocks to the crime . disproportionate sentence “so ’ ” (People v. dignity." fundamental of human conscience offends notions Cox, (1979) 25 Cal.3d v. Frierson quoting Richardson, J.), (plur. opn. by 587] omitted.) italics

III. Conclusion judgment entirety. is affirmed its Lucas, J., J., J., J., Panelli, Baxter, C. concurred. George, KENNARD, Concurring. I judgment concur the affirmance J. the death I am imposing join portion but unable to penalty, I the victim evidence. majority discussing impact of opinion admissibility that the in the victims— agree evidence at issue this of case—photographs I the admitted at the But see no for properly penalty phase. justification majority dicta about the of victim opinion’s expansive admissibility impact in evidence general. law,

Under our state the governs Penal Code section 190.3 of scope evidence and permissible at the of a argument penalty phase capital prose- (a) cution. Factor of that section evidence and about the permits argument “circumstances of the crime.” Whatever the that concept outer boundaries of be, the “circumstances the crime” make may of must include the events that the crime itself and the up facts about the victim known to the defendant at time of the crime. case,

In this the he evidence showed that defendant saw the victims before shot them. the the Because victims’ was a fact about physical appearance crimes, victims known to defendant when he it committed was one “circumstances of the in Penal (a) crime” as that is used factor phrase show, Code section and 190.3. The in were offered question photographs show, did the physical two at the appearance of the victims time of crimes. Because the he showed what defendant saw while photographs crimes, committed the were the “circum- admissible to demonstrate they stances of the crime.”

The use evidence prosecution’s of this no way contrary Eighth Amendment to the federal The Constitution. United States Court Supreme always has held that the Amendment indeed Eighth permits, requires, that the sentencing decision case be least capital part based at on (see “circumstances the crime” Stephens (1983) Zant v. 462 U.S. 235, 251, 2733]) L.Ed.2d held 103 S.Ct. and it has as well that recently

[77 bar, the Eighth Amendment erects no se at the of a sentencing per phase case, evidence capital about the victims’ individual charac- argument 720, 736, U.S____[115 (Payne (1991) teristics. v. Tennessee L.Ed.2d 111 S.Ct. 2609].) (a) majority purports to hold that “factor of section 190.3 allows defendant,

evidence and on the argument harm caused specific by ante, including on the impact family (Maj. victim.” opn., “ There can be no such this ‘the an holding language case because case, must opinion be construed with reference to the facts presented by and the of a with such positive authority only decision is coextensive ” (Brown Kelly facts.’ Broadcasting Co. 406], Superior River Farms Co. v. quoting Court no Cal.App. presents This appeal issue about the of evidence propriety argument or on of a impact capital crime on the family, victim’s or the of evidence or propriety argument defendant,” offered to show the only harm caused and so “specific by there can be no holding those issues. Their resolution must await a case them. actually presents MOSK, Concurring Dissenting. I concur as to judgment J. review, After I guilt. have found no error reversal. warranting

I dissent from the judgment as to For the in penalty. reasons stated my concurring and in dissenting opinion Morales 527, 64, 244], 574-575 I believe that the lying-in- wait special circumstance of the death law penalty is invalid under the Eighth Amendment United States in Constitution. wait Lying was the only special circumstance in alleged and found true this case. Because it should be vacated on federal constitutional the verdict grounds, of death should be set aside as unsupported. I need

Although not consider this any bearing penalty other issue case, particular I write further to address a and substan- question general in California: jurisprudence capital punishment to the importance tial “victim introduction of so-called law allow the penalty Does the 1978 death evidence? impact” must, I of the 1978 death penalty

I with the language shall where begin, law. Its this. background is 155, 1977, Regular Bill enacted Senate No. Legislature statute, 316, (Stats. 1255 et This seq.)

Session. ch. et seq., p. § et as those among seq. other Penal Code section 190 things, repealed stood, was the then and added new their This provisions place. provisions death law. penalty 7, 1978, Election, At the General enacted a statute people November when an initiative the ballot as 7. they approved Proposition denominated on statute, turn, et as those seq. This its Penal Code section 190 repealed stood under Senate Bill and added new provisions provisions No. their This is 1978 death law. place. penalty

Now to the relevant 190.3 declares statutory Penal Code section language. “In evidence pertinent on the part proceedings question penalty, be matter may presented by both the and the defendant as to people relevant to not limited aggravation, and sentence but mitigation, including, to, offense, the nature and any prior felony circumstances of the present conviction or convictions whether or not such conviction or convictions violence, involved a crime of or absence of other criminal presence activity by defendant which involved the or use of force or attempted use violence or which involved the or threat to use force or express implied violence, character, and the defendant’s mental condi- background, history, tion and physical condition.”1

This of Penal Code death language section 190.3 under penalty law derives under evidently directly from former Penal Code section 190.3 the 1977 death law. It is penalty virtually except identical to its predecessor Code, for added words with Pen. dealing convictions. prior felony (Compare Code, 190.3, 190.3 with Pen. § former Stats. ch. pp. § § 1258-1259.)2 1Penal Code language quoted section restates the substance of the above in its list of 190.3

penalty factors. 2Similarly, language of the law that penalty Penal Code section under death 190.3 1978 1, ante, is referred to in footnote former Penal Code section under directly derives from 190.3 penalty death predecessor except 1977 law. It too to its for added virtually identical 852 1, 762, (1985) 700 People Boyd Cal.Rptr. 38 Cal.3d 772-776 [215 782], introduction

P.2d we construed the death law to allow the penalty 1978 issues: following of such evidence as is relevant to one or more of the only crime; (a) (b) (c) activity; the circumstances of the other violent criminal disturbance; convictions; (e) (d) extreme felony mental or emotional prior consent; (f) victim or justification or reasonable belief moral participation extenuation; domination; (h) extreme duress or substantial (g) impairment intoxication; (i) mental disease or defect or status as through through age; (j) (k) an and other matter. accomplice participant; mitigating minor I return whether the death law allows the to 1978 question penalty outset, necessary introduction of “victim evidence. At the it is impact” define the of the evidence and the of the law. coverage scope

First, definition, of “victim evidence. In its scope impact” broadest (1) evidence of this sort to embrace matters: the effect of the four appears victim; characteristics; (2) (3) crime on the the victim’s the emo- personal others); (and family tional of the crime on the victim’s impact perhaps (4) the about the crime and the criminal held members opinions by family U.S___ (and others). (See (1991) perhaps generally Payne v. Tennessee 720, 726-739, 2597, 2601-2611], overruling L.Ed.2d S.Ct. [115 496, 440, (1987) Maryland Booth v. 482 U.S. 502-509 L.Ed.2d part [96 448-452, 2529], (1989) S.Ct. 490 U.S. South Carolina Gathers 805, 876, 882-883, the three 810-812 L.Ed.2d 109 S.Ct. of 2207] [each second, matters]; decisions third and fourth referring wholly mainly or 754, 827, People v. Benson 796-797 [276 matters]; to all four v. Haskett [referring 330] the first [referring 776] matter].)

Next, the coverage of 1978 death law. The issue as to penalty only is, course, which “victim evidence impact” be relevant may possibly circumstances of the But The answer crime. to what does this refer? phrase cannot come an from abstract definitions of dictionary consideration 3 Rather, the individual intent words. it entails an into the inquiry when people they enacted the statute present by approving Proposition Code, Code, dealing prior felony words with Pen. (Compare convictions. Pen. with 190.3 § 190.3, 1259-1260.) former pp. Stats. ch. § § not, ante, 833), 3And certainly majority evidently (see maj. opn., p. as the at from believe historically (1 (2d 1989) xxviii-xxix) most primitive English pp. sense Oxford Dict. ed. Dict., single (3 240) word “circumstance” as in the English reported Oxford English Oxford Dictionary. Why majority English is it that turn to the Oxford Dic tionary—which rarely opinions—instead is cited in our Webster’s Third New International Dictionary—which only commonly? is referred to The reader will soon discover the answer if

853 7—and into the intent the it Senate ultimately Legislature when enacted 155, Bill No. the direct source of the language. operative To its give clear words their the “circumstances of meaning, plain phrase the crime” evidently refers to such facts as are of the crime itself— “part” for the in including, example, manner which the actus reus was performed relates,

and the motive that Put it it underlay differently, mens rea. as were, where, when, “who, what, to what journalism would call the and why” of the offense.

The same meaning arises from the relevant legal context. 153, 859, 883,

In Gregg Georgia (1976) 428 U.S. L.Ed.2d [49 2909], S.Ct. one of the United States Court’s landmark Supreme capital decisions, Stewart, Powell, punishment plurality of Justices opinion Stevens (1937) from the quoted opinion Pennsylvania of the court v. Ashe “ 51, 43, 46, 59], 302 U.S. L.Ed. 58 S.Ct. to declare that [82 ‘[f]or sentences, determination of justice . that there generally requires . . be taken into account the circumstances with the charac- together offense ” ter and propensities (Italics added.) of the offender.’ The italicized phrase however, is not expressly defined. Its meaning, suggested by case law from which Ashe evidently drew the words: it refers—unsurprisingly—to such facts as are (Note of the crime part (1990) itself. L.Rev. Brooklyn 1045, 1073-1076.)

It is reasonable to conclude that such a definition was intended by Legislature Bill enacting Senate Gregg No. 155. stood behind immediately the statute and informed its (See substance. v. Frierson 172-184 599 P.2d see also (plur. opn.); 587] Superior Rockwell v. Court 426-445 It is also reasonable to conclude that the same definition was intended by people enacting the statute present through their approval of 7. Proposition Gregg was and influential there as present (See Frierson, well. People v. supra, at see also pp. (plur. opn.); Court, Superior Further, Rockwell v. 426-445.) at pp. the pertinent language of the initiative derives directly from statute.

In view of the foregoing, circumstances of the crime under the 1978 death penalty law should be deemed to include such facts as are part crime itself.

It is read, argued sometimes that the phrase question can in the be abstract, to reach “victim impact” evidence its I broadest definition. But cannot conclude that the people intended such coverage. he or she notes that the first sense of reported “circumstance” as in Webster’s Third New

International Dictionary is “a specific part ... surroundings or background of an (Webster’s event. . . .” (3d New 1961) Internat. Dict. ed. added.) italics

854 sure, appears victim himself the effect of the crime on the 1978

To be Cal. (See, e.g., bearing penalty. as a factor on firmly accepted have to been Courts, I-A, Court, for the Superior Rules Sentencing former Div. Rules of III, 1, 1977, Jan. 1984 renumbered eff. now Div. eff. July adopted 421(a)(1) Court), rule (hereafter former [“Circumstances Cal. Rules of crime, fact that” the including the include” relating aggravation “[f]acts harm, violence, great threat of bodily great involved great crime “[t]he viciousness or harm, cruelty, a disclosing high degree or other acts bodily .”].) . callousness . . characteristics, impact the emotional

But the victim’s by personal others, crime about opinions and family the crime on the victim’s as received acceptance had not yet held such by persons and the criminal Court, 421 rule supra, [not former (See, Cal. Rules of e.g., factors. penalty in aggravation” matters the defined including among “[circumstances such Indeed, recogni- to receive some began they either or expressly impliedly].) the Criminal Victimand (Hudson, The Crime tion 1980’s. only early L.Rev.—Sympo- A Change Pepperdine System: Justice Timefor Tennessee, sium—23, 51-53; at 501 U.S. — p. [115 Payne see of this that “the admission at p. [stating L.Ed.2d at S.Ct. p. 2606] origin”].) is of recent kind of evidence ... particular Bernette People v. case of regard leading this Significant There, reversed the Illinois Court Supreme N.E.2d. 30 Ill.2d 359 436]. what is now introduction of death of the erroneous because judgment court has In it declared: doing, called evidence. so impact” “[T]his “victim left a the deceased evidence that condemned the admission of consistently to . . . relationship has no as such evidence inasmuch spouse family, defendant], ordinarily but serves to be inflicted upon punishment [the (Id. N.Ed.2d at him in jury.” p. of the only eyes to prejudice p.

Therefore, evidence was novel definition “victim impact” its broadest conclude that There is no basis to when the considered 7. people Proposition basis still to within There is less evidence of this sort was contemplation. who drafted the those Clearly, conclude that it would have been permitted. (See Ballot Pamp., Proposed constitutionality. initiative desired to assure its Const, Stats, Amends, voters, (Nov. Gen. Elec. Cal. with arguments who 35.) Presumably, those 7,1978), to argument against Prop. rebuttal end, was the If constitutionality voted the measure shared that desire. for in this behalf briefing People’s not the means. his novelty law “California General concedes the effectively point: appeal, Attorney . . . .” the full measure of victim information impact does not allow I whether the question Now address death law allows penalty impact” introduction of “victim evidence. The circumstances of the crime as to which this sort be only may possibly constitute issue evidence of they facts are crime They Plainly, relevant. include such as itself. part of the effect the crime on the victim He is the focus very embrace of himself. the defendant’s act and intent. Just as do not reach the plainly, they generally characteristics, victim’s the of the crime on the personal impact emotional others, and the the crime and the criminal family victim’s about opinions held such of the crime. by persons. part these facts are not Typically,

The conclude that the the crime under the majority circumstances of defendant, “the penalty death law embrace caused the specific by harm ante, the including the impact family (Maj. on the victim.” opn., 835.) the To extent hold that the the crime the they effect of on victim material, Otherwise, himself is I I agree. My analysis do not. has shown that the emotional crime on the victim’s impact family generally immaterial.

Indeed, 1223, just a year People v. ago Gordon Cal.3d 251], 1266-1267 unanimously 792 P.2d we concluded “the material only circumstances to the determination of penalty [under the 1978 death are those defined in Penal penalty Code section law] 190.3 . In the ... ... general case effect crime on the victim’s family is not relevant material circumstance.”

The majority now that what assert call Gordon's “is they “assumption” Haskett, 863-864, suspect light of” People supra, 30 Cal.3d Douglas 640], Benson, 796-797, and People v. and “was largely based ante, First, on Booth and (Maj. opn., Gathers.” are They wrong. at p. Haskett holds only that the circumstances of the crime under the death himself; law penalty embraces effect of the crime victim on the Douglas Second, and Benson do not even address a issue. statutory part pertinent and, here Gordon was solely based on the penalty 1978 death law specifi- Penal cally, Code section 190.3—and not at all on Booth or The Gathers. opinion speaks for itself. mind,

theWith foregoing let me the “victim briefly consider impact” issues raised in this case.

First, the admission of the before the photographs of the victims attack— Cartier, survived, Kelly Iberri, who did no Vanessa not. There was who error. evidence was relevant to the on crime. It bore circumstances effect on the of the crime itself: it revealed the crime’s facts that were part themselves. girls revealing girls by summation,

Second, effect of which touched on prosecutor’s course, Of cannot family. present crime and on Vanessa’s one Kelly on Kelly are The comment not argument on issues that not material. about it It related to the circumstances of the crime because misconduct. bore itself, effect on the crime’s facts that were crime part specifically, contrast, It girl. Vanessa’s was misconduct. By family comment about did did it refer to any relate to the of the crime. Neither circumstances Reversal, however, other this basis. The material issue. is not warranted on court struck defendant’s the trial comment was brief neutral. At request, There is any way. remark and admonished the not to consider it the outcome. no that the words affected possibility question reasonable Brown (People v. above, should be judgment reasons stated I am of the view that the

For the affirmed as to and reversed as to guilt penalty. 22,1992. Mosk, J. for was denied petition rehearing January

Appellant’s that the be granted. should opinion petition

Case Details

Case Name: People v. Edwards

Court Name: California Supreme Court

Date Published: Nov 25, 1991

Citation: 819 P.2d 436

Docket Number: S004755. Crim. 26000

Court Abbreviation: Cal.