People v. Fauber

June 1992.] S005868. [No. PEOPLE,

THE Respondent, Plaintiff FAUBER, Defendant and Appellant. CURTIS LYNN Counsel Smith, Court,

L. Marshall under and Maureen appointment by Supreme DeMaio for Defendant and Appellant. General, Williamson, Lungren,

Daniel E. Chief George Assistant Attorney General, General, Jr., John Attorney Edward T. Assistant R. Fogel, Attorney Hamanaka, Gorey, William T. and Pamela C. Deputy Attorneys Harter General, for Plaintiff and Respondent.

Opinion Code, (Pen. PANELLI, J. robbery Fauber Lynn convicted Curtis A 459, 460, 462, 667) murder (§§ (a), degree and first 211),1 subd. burglary § committed (§ 187), intentionally true the finding special allegations the murder in the engaged robbery burglary while commission of 190.2, ax) (an (§ (a)(17)) weapon subd. and that he used a deadly personally trial, 12022, (§ in (b)). penalty a committing Following the offenses subd. (§ the returned a verdict death. This is automatic. subd. appeal (b).) is judgment affirmed. Phase Facts

I. Guilt

A. Prosecution Case Mexico, in

Early the summer of defendant New travelled from he where had grown to Ventura visit Brian whom he had up, Buckley, to befriended in while were serving Army. Buckley living both was in his mother’s on Crimea Street. Defendant either in apartment stayed trailer, apartment or a which Buckley’s kept mother the lot near apartment. Illinois,

While mother was Buckley’s away a to defendant and trip Buckley socialized with Mel Buckley’s neighbors, Jan Jarvis and Rowan. (Rowan, who been had delivery convicted of of a controlled substance and Texas, of a burglary habitation in had and violated his parole, using ‘Tim name authorities.) Johnson” to escape detection law enforcement by Jarvis, Rowan, Buckley, and defendant used drugs together.

In June or defendant July and visited Buckley Rowan’s apartment, a bringing shotgun a gram scale. Defendant borrowed a hacksaw and began conversation, to saw off the barrel of the In shotgun. the course of Urell, Jarvis mentioned she had former a boyfriend, named Tom who sold cocaine. Defendant or Buckley asked where he lived. She drew a map showing the location and of Urell’s he layout house said had a lot of Rowan, cocaine a safe. Buckley, and defendant discussed burglarizing house. later,

A week Rowan and Jarvis drove Urell’s by beachfront house Oxnard with defendant and a Buckley, on Rowan or motorcycle, following. unspecified

1Further statutory references are to the Penal Code. “now,” Urell Rowan off” “rip Jarvis out the house. told pointed saw They it some more. a defendant said wanted check out they but At defend- El in Urell’s driveway. Chevrolet truck pickup parked Camino the house. Buckley ant’s he and twice returned out” suggestion, “scope trial, the murder was Defendant did at account of testify only 13etween and one days of Brian four testimony Buckley. provided went on defendant’s Buckley week after the initial defendant and drive-by, midnight. parked It was Defendant motorcycle Urell’s house. about a back- brought from about half a block the house. motorcycle hat, bandanna, and the had bag shotgun or a a pack containing gloves, containing a brought bag at a sawing apartment. Buckley been Rowan’s bandanna, knit hat. One of them gloves, stocking .22-caliber and a pistol, hats, beach, gloves duct walked donned They had roll of down to tape. bandannas, idea to bring and and their It was defendant’s loaded weapons. identified. and the would not be they the to wear bandannas so weapons him kill Defendant told Urell to from might prevent have to Buckley a witness. being Urell, way entered the and led the the bedroom.

They house defendant to bed, false Mexican Using was in woke when a asleep they approached. who accent, defendant Urell not to Urell told them to take anything told move. lie on and him. directed Urell to his wanted not to hurt Defendant they Urell’s wrists stomach. While held the defendant Buckley shotgun, taped room, in the his back. Defendant and the drawers behind searched Buckley he did and defendant asked Urell to the safe. Urell said for combination not know the and the contained valuable. nothing Buckley combination safe dollars in found cocaine rolls and few silver paraphernalia, quarters, baggie Urell’s bedroom. He these in Defendant took a bag. items his put cocaine and a calculator. he was doing

Defendant found ax under the asked Urell what an bed and ax, hands, in with it. Then he Urell the back raised the turned it his and hit thud of the of the neck. who was heard the Buckley, holding shotgun, blow and a if he a hard time coming having sound from Urell as were hissing Defendant breathing. left the bedroom and went into the kitchen. hit Buckley Urell and the noise or a second again hissing Only became quieter stopped. or two have between the first and blows. Defendant hit elapsed may second Urell a third time while Buckley emerged was the kitchen. Defendant from bedroom. He and safe into Buckley discussed Urell’s putting truck. if pickup asked Urell were dead. Defendant re- Buckley bedroom, that he did not know. returned and sponded Defendant to heard Buckley more hits. two drove back Buckley’s loaded the Defendant

They safe onto truck. knocked motorcycle. while defendant’s Defendant Buckley drove apartment, a.m., under- on Rowan’s door for the to the storeroom asking key about him, dressed, neath the Rowan it and went down- apartment. gave got El stairs. He defendant unload the safe from the Camino. helped Defendant told Urell at Rowan returned to Rowan that had been home. Later, and apartment to talk to Jarvis. Rowan went back downstairs the outer told him he had noticed door of the safe was Defendant open. found the went the trailer and was jewelry combination box. Buckley joined defendant and Rowan. a .22-caliber Buckley putting pistol shotgun in the been in the El opening trailer and a briefcase that had cocaine; Camino. Rowan if any they asked had defendant said had they got not. Rowan again returned to his apartment.

Defendant then Buckley took into trailer. Defendant everything Camino, drove away the El while on motorcycle. left defendant’s Buckley of the El disposed Camino over a cliff an area called “The Cross” and returned to the the motorcycle Buckley. with apartment safe,

Defendant began to inner try open of the but presently door stopped due to the noise he was making. Buckley He injected they cocaine had found at Urell’s house.

Rowan appeared and again asked if had at Urell’s anyone been house. Eventually defendant admitted that Urell had been home at and thought he had killed He said him. he had hit had Urell because Urell seen face, his telling Rowan he was not ready to leave Ventura Rowan yet. advised defendant and Buckley to throw away the cash. everything except

The next day, defendant succeeded in the inner the opening door of safe. Inside dollars, were old jewelry, silver and coin gold nuggets, books. Rowan tore the coin up and books threw them away. Jarvis took the jewelry gold and was directed to them away. throw Defendant and took the Buckley safe to Ojai it dumped near Lake Matilija. friend,

Urell’s body was by discovered his Ronald Siebold. Siebold found bed, Urell dead, on lying his with apparently his hands behind his back taped and a pillow name, on off, his head. yelled Siebold Urell’s the pulled pillow and dialed 911.

The police arrived 10 minutes later. Urell’s have room been appeared ransacked. Leaning against the foot bed a A was wooden-handled ax. subsequent search yielded house narcotics paraphernalia. Lovell, for Ventura Examiner the Chief Medical

Dr. Frederick Warren He 1986. July at 7:54 p.m. at the scene body examined County, A subsequent earlier. 22 hours that death had occurred some estimated overlapping premortem the neck a series of four showed that bore autopsy of an ax. the blunt side consistent with rectangular object blows from a or possibly that inhibited the victim’s neck and caused paralysis blows broke death to be the cause of determined breathing. cut off his Dr. Lovell held a (1) pillow someone following ways: caused in one of the asphyxia, head, minutes; the blows to five after over the victim’s face for two to and died of while face down lying move his head the victim was unable to minutes; (3) the blows or the course of two to four suffocation over breathing. the nerve that causes destroyed system 16, 1986, Urell’s house dollars taken from On sold the silver July Buckley Ventura, Barbara with defendant. sharing proceeds to a coin shop Adams, silver dollars she bought testified that employed by shop, identification. military from who showed Buckley, Corporation, Bianco Urell was a construction supervisor employed Camarillo, car. an El Camino as a company and had been assigned located cards, card. a including telephone credit He also had been assigned company 19, 1986, Buckley’s belonging On searched trailer July police name Bianco Corporation’s with maps stamped mother found book and address. 20, 1986, El Camino and reported

On found Urell’s Wolny Paul July to be and found The El Camino was impounded to the discovery police. registered to Bianco Corporation. Simmon, friend, he had card calling Hal gave telephone times. Simmon the card 20 to 25

taken from Urell’s briefcase. Simmon used registered was knew the card stolen he discovered the number was because Florida, in September to a When found Simmon police Tampa, business. book, 1986, had written the in which he or October seized his address they calling card number. 1986, gave

In traffic violation and was arrested for a September Buckley would understanding they statements about the Urell with the killing 1987, for Urell’s be used In was arrested against Buckley him. November month, to move office attorney’s agreed murder. the district following if Buckley degree the court to declare the murder to be of the second Christo- against defendant in the Urell case and truthfully against testified 21, 1987, with talked Buckley Caldwell in case. On December pher another a and of the sheriff’s deputy attorney representatives department district case; On the conversation was regarding tape-recorded. portion 1988, 4, murder. January Buckley entered his of Urell’s plea guilty 1986, In Rowan arrested on a violation and talked September parole Urell returned the Texas to the about the case. Rowan was police defendant under a against grant of Corrections. Rowan testified Department of immunity.

Also in New Mex September Española, was arrested ico, time, on a warrant County. issued out of Ventura At that seized police wallet, contained, defendant’s which other cut from things, among piece (Miran Urell’s rights card. Defendant his Miranda telephone calling waived da v. 384 U.S. 436 L.Ed 2d 86 S.Ct. Arizona 974]) A. L.R.3d and was Defend by Sergeant Larry interviewed Robertson. ant said he remembered Jarvis told him about in Oxnard had someone who had a lot of drugs; she drew a he the man’s house. said diagram and on a Buckley, motorcycle, and drove they followed her Rowan as past defendant, the house. According him Jarvis it out wanted pointed Buckley to it rip off.

Sergeant Robertson and Detective went to Buckley’s mother’s Velasquez apartment October She 1986. turned over to a .22-caliber police gun. B. Case Defense

Attacking Buckley’s defense credibility, presented testimony Frisilone, John an inmate at the County Ventura who testified that jail, was housed in a cell next to him Buckley and talked to the cell through vents. Frisilone testified that him Buckley told two and a handguns shotgun involved, were but that did not tell the the two Buckley prosecutor about handguns because he did not want his testimony Buckley doubted. also said he had placed the over pillow the victim’s head because of the noises he was making. Frisilone also testified if he Buckley believed did not testify, prosecutor had enough evidence him charge with first murder and degree possibly seek the death penalty. felonies,

Frisilone had been convicted of four including forgery grand theft. Frisilone testified he read in jail and had read newspapers about the Urell case. He had previously offered the district office informa- attorney’s tion about other inmates return for a more lenient sentence.

C. Prosecution’s Rebuttal

Buckley denied telling Frisilone that he had a on the placed pillow victim’s He head. testified Frisilone was known a “rat” who as would

816 An attorney. investigator deal with the district information for a exchange in about instances office each testified attorney’s in the district deputy and a information; in for return favorable treatment sought which Frisilone had Frisilone, did his information. not use interviewing they after Jury Issues and Venue

II. Juror Hearing-impaired

A. Exclusion of chosen jury to trial aby he was denied his right Defendant contends hearing-im community of the from a cross-section representative because from the jury panel were excluded systematically individuals paired jurors. to serve as such persons facilities made it for impossible courtroom relief. he is entitled to Defendant has failed to establish hearing- as who identified themselves jurors five Although prospective due to the impairment, were and not excused impaired questioned to the excusal of due jurors claims exclusion of systematic hearing-impaired suffered left ear and unable to hear out of his one who was prospective juror, After medication. which he took vertigo, from Meniere’s disease and for box, the in the jury hear while seated juror’s ability testing prospective excuse. How- hardship trial declined to his accept hearing-impairment court ever, the prospec- it was for defense counsel whether questioned practicable serve, him. tive and the trial court excused juror to drawn jury an impartial A is entitled to trial by criminal defendant (People v. Harris community. from a cross-section of representative Const., 782, 36, 433]; U.S. (1984) P.2d 36 Cal.3d [201 XIV; Const., I, VI, facie 16.) To establish prima Amends. Cal. art. § that: defendant must show fair violation of the cross-section requirement, (1) community; group excluded is a “distinctive” group allegedly reasonable (2) the venires is not fair and jury group’s representation (3) the community; to the such relation number of persons in the such persons is due exclusion of under-representation systematic 357, 364 (Duren U.S. [58 selection v. Missouri jury process. 579, 586-587, 664].) object Defendant did not L.Ed.2d 99 S.Ct. denied that he had been or move to the venire on the basis panel quash of the commu to a drawn from a cross-section right representative (1992) 1 Cal.4th is waived. v. Howard nity; accordingly, point Proc., 225, 1132, 1159 1315]; subd. 824 P.2d Code Civ. Cal.Rptr.2d § 1245, 21, 4155.) (a)(1); ch. p. see former Stats. repealed by § § however, Even if he not be entitled had made a would timely objection, establishing any relief because he has failed to meet his burden of elements of the Duren test.

817 First, constitute a persons he that hearing-impaired does not demonstrate he notes the Although Legislature “distinctive” within the group community. as are to serve recognized competent has with loss persons hearing Proc., 203, link (Code (a)(6)), he not jurors persuasively Civ. subd. does § requirement. that characteristic with the of the fair cross-section purposes 148-149, 137, 162, (Lockhart (1986) v. McCree 476 U.S. 174-175 L.Ed.2d [90 Second, 1758].) he the representation S.Ct. fails to demonstrate that of in the venire small hearing-impaired unreasonably propor persons he short tion to the number of such the falls persons community. Finally, resulted jury of that the lack of on establishing hearing-impaired persons jurors from He fails the five systematic prospective exclusion. to address with of their hearing who were not on basis impairments challenged Indeed, iden it asked that the impairments. only was defense counsel who tified in the box be jury to be seated hearing-impaired prospective juror excused. claim chosen right Defendant’s that he was denied his from a representative cross-section of the must fail. community B. Denial Change Motion Venue of for contends that the trial court erred his motion denying error, contends,

for a change of venue based pretrial publicity. him of his deprived to due to a fair trial an rights process, by impartial jury, unreliable, and to a penalty determination that is as guaran not or arbitrary Fifth, Sixth, teed him the by Eighth, Fourteenth Amendments of federal Constitution.

Change venue is warranted when it there is a reasonable appears likelihood that a fair and trial be held in the impartial county. cannot (§ (a).) subd. The determination consideration of such factors requires offense, as the nature and of the gravity the size the status community, defendant, victim, of the popularity prominence of and the nature and extent of the “On publicity. after a appeal judgment following venue, denial of a change defendant must show both that the court motion, i.e., erred in denying of venue change that at the time of the had, it motion was that a fair reasonably likely trial could not be and that the i.e., error was prejudicial, that it was that a trial was reasonably likely fair fact had. The trial court’s factual these essentially determinations as to will factors be if sustained supported substantial evidence. We indepen dently review the trial court’s ultimate determination of the reasonable likelihood of an unfair trial. v. Edwards [Citations.]” Cal.3d 436].) Cal.Rptr.2d 819 P.2d

Consideration of the and nature of the offense gravity does not compel the conclusion that venue have been changed. Although should

818 murder, offenses, defendant charged with capital most serious of this case lacked “the sensational overtones of other have held ¡killings that been venue, to require change such as an crime ongoing spree, multiple victims often related or acquainted, (People or sexual motivation.” v. Green 1, (1980) 1, 27 Cal.3d 46 468].) 609 P.2d We have often Cal.Rptr. [164 Edwards, denial upheld (See, of venue in change People cases. capital e.g., v. supra, 54 806-809.) Cal.3d at pp.

The size and nature community do not a venue The support change. 619,300, population of Ventura in 1987 was County making it the 13th in largest (Cal. county (27th state. 1987) Statistical Abstract ed. Dept. of Finance, B, 20.) sec. p. Venue are changes seldom from counties granted size; such a large larger local the less it is population, likely that preconceptions about the case have in become embedded mind. public 144, 184, (People (1985) v. Balderas 41 Cal.3d 178 Cal.Rptr. 711 P.2d [222 state, to change venue from Kern in 480] [motion 14th County, largest denied].) properly Defendant argues for a different conclusion because death trials are penalty common in very Ventura and because Ventura County, than, is less urban character for example, Angeles. Los We defend reject (See 932, ant’s argument. Odle Superior (1982) v. Court 32 Cal.3d 938 [187 455, 654 P.2d Cal.Rptr. denial [upholding of venue from Contra change 225] Costa County, rural”].) “as much suburban as we Although have observed that “the ‘adversities of are publicity offset if trial considerably is conducted ” in a 935, populous area’ metropolitan (People (1981) v. Harris 28 Cal.3d 679, 240], 949 Cal.Rptr. 623 People (1976) [171 P.2d quoting v. Manson 61 102, Cal.App.3d 265]), 189 Cal.Rptr. [132 fails to support implicit contention that should capital trials be held exclusively major metropolitan centers experienced such cases. factors,

The third and fourth the community status of the defendant and victim, do not suggest a change of venue should have granted. been is, Defendant makes much of the fact that he and was reported local media as, However, a New Mexico resident. he fails to show that he was associated with any organization or that aroused group (People v. community hostility. 207, (1988) Adcox 47 Cal.3d 233 906].) Cal.Rptr. 763 P.2d [253 victim, Oxnard, although longtime resident of was not prominent, and his death did not engender unusual emotion in the community. v. Balderas, supra, 41 Urell, Cal.3d 179.) at One p. juror “knew of’ but his “hazy” recollections of Urell dated back some 10 to 15 years. The juror stated that his knowledge of Urell would not affect his decision the case. (See People Ainsworth 45 Cal.3d 1017].) P.2d As defendant left juror as an alternate on the jury,

defendant apparently We agreed. are unable to conclude that the juror’s receive a defendant would Urell made it unlikely vague knowledge trial in County. fair Ventura determination, of in for purposes

The most factor the venue significant case, In his venue of coverage. support the nature and extent of news this is motion, articles and several seven newspaper trial counsel submitted change 11-13, The 1987.2 November covering of media news broadcasts transcripts crime, and the defendant’s confession articles and discussed the broadcasts its despite suppres- the death attorney’s pursue penalty district decision to trial, sion, during Media continued Buckley. coverage and the arrest of Brian during arraignment, stations with cameras from local television present examination, Oxnard Additionally, of the trial. preliminary portions cameras in the and Ventura to use still permission obtained newspapers courtroom. venue retro

Posttrial review the denial is change of motion for spective, taking jurors’ exposure pretrial public into account prospective Harris, 949.) in at ity (People supra, p. as revealed voir dire. v. 28 Cal.3d Our had no examination of the record us that persuades pretrial publicity effect. Few of the had recollection prejudicial jurors any 186 prospective media Of those or coverage. hearing seeing coverage who reported case, most had read article. two Only prospec headline or of an only part media; tive had in the were jurors they heard about defendant’s confession case, in excused.3 Of the 12 had heard jurors nothing who decided this 9 media. The three to media remaining jurors exposure minimal reported case, article, coverage. One said she saw an the name of the seeing but on article, she avoided reading it. Another said he read a of an but part stopped when he realized it was he had read remaining juror about this case. said something about it being another but was unsure whether person implicated, In about same case. summary, jurors’ exposure pretrial in this publicity case was less than that found other cases considerably Howard, which we have (See People held venue v. change unnecessary. be 1 supra, 1168.) Cal.4th totally at It is not be p. necessary jurors case; ignorant of the if facts and issues involved it is sufficient they can aside their lay and render a verdict based on impressions opinions Ainsworth, the evidence presented (People supra, court. v. 45 Cal.3d at p. 1002.) in the record the few who had Nothing suggests jurors any Further, did exposure pretrial publicity not do so. defendant used only of his 26 available to select the no peremptory challenges jury expressed 2Jury began coverage selection day November one after the media submitted began. excused, 3One prospective juror, additional likewise defendant’s stated he learned of confession from friends of the victim.

dissatisfaction with the as selected. The failure to exhaust peremptories fair, is a indication that “the were itself so strong jurors and that the defense Balderas, (People supra, 180.) concluded.” v. Cal.3d at p.

The record thus shows did not defendant his pretrial publicity deny Harris, jury. supra, to a fair and right 28 Cal.3d at impartial p. 950.) Defendant’s assertions of other constitutional error the denial of his venue motion must change likewise fail. Affecting

III. Claims of Error Phase Guilt A. Testimony Buckley and Rowan of Summary

1. Defendant contends and trial prosecutor judge improperly vouched for the credibility of witnesses and Rowan and misled the Buckley actions, about the inducements jury received for their Their they testimony. claims, Fifth, Sixth, he violated him the rights guaranteed Eighth, various by and Fourteenth Amendments. Buckley Agreement Admission Plea

2. of At the outset of Brian Buckley’s testimony, again closing argument, the prosecutor read to the the text We jury of Buckley’s plea agreement. init reproduce margin.4 agreement contends that told the jury and the were all prosecutor judge making necessary 4“ ‘This letter is to memorialize Attorney’s position the District on the above-numbered client, against case your Buckley. regarding Brian A. It is based on our recent conversation possible agreement. “ ‘One, 1, Buckley Mr. charged is in the above-entitled as complaint follows: Count murder 16, 1986, of Thomas C. Urell on July in violation of Section 187 of the Penal Code. “ 2, 16, 1986, robbery ‘Count July of Thomas C. Urell on in violation of Section 211 of the Penal Code. “ 3, 1986, 16, burglary ‘Count July the residence of Thomas C. Urell on in violation of 460.1, Section meaning 460(2) 459 the Penal Code within of Sections and 667 of the Penal Code. “ ‘Item two: The Attorney’s District office offers to move the Court to declare the murder turn, to be degree. murder in the second Buckley testify In Mr. must truthfully as a witness against Curtis Fauber and testify as a truthfully any proceedings concerning witness in Christopher A. Caldwell. “ reached, ‘Item three: any agreement Before Buckley can be Mr. to a must submit preliminary interview Attorney’s members of the District credibility. office to assess his “ ‘In the event that the Attorney’s District office Buckley telling decides that Mr. is not truth, then agreement no will be reached and the proceed above-entitled case will to trial. “ interview, course, ‘Any statements by Buckley during Mr. preliminary this will be against used any him in subsequent trial.

821 This, he findings regarding Buckley’s argues, improperly credibility. vouched for Buckley’s credibility.

Defense agreement. counsel made no to the of the objection reading plea Code, (Evid. it Accordingly, may not about complain appeal. 353.) Defendant relieved of suggests for various reasons should be § tiie requirement of He does not us. contemporaneous objection. persuade Nonetheless, us, even if the find claim were before we would no properly reversible error.

As defendant the existence of a is acknowledges, plea agreement relevant evidence impeachment that must be disclosed to the defense be cause it (Giglio v. United States bears on the witness’s credibility. 150, Indeed, 108-109,

U.S. 153-155 763].) L.Ed.2d we 92 S.Ct. [31 have held that “when an testifies for the full disclo accomplice prosecution, sure any agreement the witness is to ensure that the affecting required has a complete of the picture factors the witness’s affecting credibility.” v. Phillips (1985) 41 Cal.3d P.2d 423].) “ ‘In the event that the District Attorney’s Buckley telling office decides Mr. that is truth, the Attorney’s District office will enter agreement through into an with itemized terms 4 7 as set out below. “ four; ‘Item Buckley Mr. plead guilty will to Count 1 in the above-entitled information. He will waive time for sentencing, and his sentencing will be continued the completion until of both the trial of Curtis Fauber and the preliminary hearing Christopher for A. Caldwell. “ Buckley’—I’m ‘Mr. sorry. ‘Item five: Mr. Buckley will make himself available and will testify truthfully any proceedings in prosecution against any Curtis L. Fauber and in proceedings prosecution in the against Christopher A. Caldwell. “ ‘In the event of a dispute, the Buckley’s truthfulness of Mr. testimony will be determined by the judges trial who preside over hearings. these “ ‘Following the conclusion against of the trial Curtis L. Fauber and the preliminary hearing against Caldwell, Christopher A. Mr. Buckley will be sentenced on case number’— that’s left blank. “ Buckley ‘If Mr. complied has with the agreement fully terms of this as as possible as of date, that Attorney’s District office will move the Court to declare the murder to be murder in degree, the second time, Buckley Mr. charge. will be sentenced on that At that remaining counts will be dismissed. “ Buckley ‘Mr. will obligated remain testify remaining in the proceedings specified as above. “ If, however’—‘if, however, ‘Item seven: Buckley Mr. has not complied with the terms agreement, of this the District Attorney’s office will not be bound to move the Court to declare the murder to be murder in degree the second nor will the District Attorney’s office be bound to dismiss the other counts. “ time, ‘At that Mr. Buckley will be allowed to plea withdraw his and case number’—left proceed blank—‘will to trial. “ five, ‘As stated in Item judges trial will hear Buckley’s testimony Mr. in the various

proceedings, any will make necessary findings as to his truthfulness. “ ‘This expires offer Fauber, at the close People’s of the case against in the trial Curtis L. ” 8, approximately January 1988.’

822 se, objection

Defendant’s is not to admission of the agreement per but to the failure to excise certain that he views as for portions “vouching” Buckley’s credibility and as on the trial court rather than the placing jury responsibility to determine whether was the truth. Buckley telling

Defendant first that reference to the district argues attorney’s preliminary determination of as a of the Buckley’s credibility plea agreement condition information, was because it the existence of known to improper implied but prosecutor telling undisclosed to the jury, proved Buckley (United 530, (9th 1980) 536.) the truth. States v. Roberts Cir. 618 F.2d notes that a correctly prosecutor may express personal “ or belief opinion danger witness’s when there is ‘substantial credibility that jurors will this interpret as based on information at the being prosecu ” command, Adcox, tor’s (People other than evidence adduced at trial.’ supra, (1971) 47 Cal.3d at p. People 236 v. Bain 5 Cal.3d 848 (quoting 564)].) agree P.2d We that the agree plea [97 ment’s reference to the district of Buck attorney’s preliminary determination trial, had little ley’s credibility relevancy or no at other Buckley’s veracity Thus, than to that the him suggest found credible. the reference prosecutor should have been excised on a on the timely objection ground irrelevancy. conclude, however,

We under its was harmless presentation jury these circumstances. v. Watson P.2d Cal.2d 243].) The for evidence prosecutor argued Buckley’s based on the credibility trial, adduced at not on the strength extrajudicial information obliquely Moreover, referred to in the sense plea agreement. suggests common will assume—without told—that the has at usually being prosecutor some point interviewed the witness and found his be- principal testimony lievable, note, too, else would not be We testifying. that the requirement that Buckley preliminarily satisfy the as to his “cuts prosecutor credibility both it ways”: not an the suggests only incentive to tell truth but also motive to (United (4th as the testify prosecutor wishes. States v. Henderson 135, Thus, 1983) Cir. 137.) 717 F.2d if even defendant had an preserved objection to admission of the of the challenged portion Buckley plea agree- ment, we would decline to reverse his conviction.

Defendant further argues that the made the trial plea agreement court a truthfulness, monitor of Buckley’s and thereby its behind placed prestige Buckley’s testimony, by that the event providing of a the dispute, “[i]n truthfulness of Mr. Buckley’s will be determined the trial testimony by judges who over these preside He contends this caused hearings.” provision the jury to feel a lesser to an responsibility make determination independent of Buckley’s truthfulness.

823 full supra, Cal.3d People Phillips, requires Our decision in on the witness’s bearing credibility, disclosure to the jury any agreement Full testify truthfully. the to the witness failure to including consequences recitation, however. with verbatim necessarily disclosure is not synonymous or po- Portions of an irrelevant determination credibility to agreement should, be request, to the on tentially misleading jury timely specific Here, to Brian excluded. was crucial that learn what would happen it the jury in trial. But in the he failed defendant’s Buckley testify truthfully event determined precise whereby mechanism his truthfulness would be determina- not a matter its concern. The detailing judge’s for provision tion in carried arguably the event of Buckley’s credibility any dispute confusion, some in it did state what slight explicitly for not potential jury arise, is if within it: that the need a determination would at implicit for such all, in with in sentencing, trying connection not Buckley’s process reasons, defendant’s or guilt objected innocence. For these had defendant admission, its trial it court would have acted correctly excluding relevancy objection.

Nonetheless, we see no that defendant was its possibility prejudiced by admission. The could jury reasonably have understood Buckley’s plea decide, agreement to relieve it of the of reaching the course its duty verdict, whether Buckley’s was truthful. Nor could have testimony jury been misled The by argument. prosecutorial prosecutor argued Buckley had nothing to make gain by lying because the trial court would a determi- nation of his in the credibility event of a The context of the remarks dispute. made it clear if that determination would occur sought to prosecutor repudiate its with agreement after trial defendant’s case. Buckley

Our conclusion is reinforced fact that the trial court instructed the before the jury, start of the closing argument, case and after prosecution’s that “[ejvery who oath person testifies under is a witness.

You are the sole of the judges of a witness and believability weight be given to (CALJIC . . testimony 2.20.) . .”5 No. We presume, record, the absence of any contrary indication in the understood and followed this instruction. v. Modesto Cal.2d statement, 33].) 382 P.2d prosecutor, his opening contention, reject brief, 5We the raised in reply defendant’s that CALJIC No. 2.20 is improper because it states that the jury may consider existence or nonexistence of a “[t]he bias, interest, or other motive” and attitude of the witness action toward this or toward “[t]he the giving testimony.” of argues Defendant permits jury that the instruction to the consider However, extrajudicial facts. bias is simply subject proof. reject another fact to further We his contention that CALJIC No. 2.20 was faulty jury relying because it did not from prevent the prosecutor above, on the the Buckley’s and trial court to credibility; assess as we concluded plea agreement the could not reasonably have the jury led into such reliance. sum, In the as sole the judges credibility. likewise role of emphasized jurors’ error.6 of did not reversible reading Buckley’s plea agreement constitute Immunity Misrepresented Buckley’s Claim That 3. Prosecutor in the guilt issue Buckley’s significant was the most credibility to believe urged jury Buckley of defendant’s trial. The the phase because, prosecutor fear had to as agreement, nothing under the terms he plea of he the misled the prosecutor as told truth. Defendant contends that the long said agreement as to incentives to because the jury Buckley’s testify plea and failed other which to nothing Buckley suspected about crimes of was what, if had any, Buckley regarding with the specify arrangement prosecutor This, contends, him to due process crimes. defendant denied his rights those law, freedom from of to from cruel and unusual to protection punishment, trial a fair and unreliable of the death and to arbitrary penalty, imposition jury. and impartial matter, contends, subject Urell was Buckley from the defendant

Apart (1) his role in and theft of motorcy- for a commercial prosecution burglary cles, lot, in the murder (2) an assault with a vehicle of parking If regarding David Church. there with the these agreement was an prosecutor reasons, if there it never disclosed was jury; episodes, never learned that had other incentives agreement, Buckley no such testify against defendant. in The flaw evidence that Buckley defendant’s is absence of argument Nothing fact feared for the other offenses. record prosecution indicates that with of Buckley charged any was ever connection these crimes, and there is insufficient evidence before to warrant the belief that us was a prosecution reasonable probability. incident,

As to the cross-examina- motorcycle Buckley theft admitted on tion he penalty phase Christopher that the summer Caldwell two stole and that Caldwell was convicted motorcycles offense, but that himself was not no reason charged. suggests trial, why his counsel could not have at either argued, Buckley phase event, remained vulnerable to In any out of this incident. charges arising record contains that he insufficient evidence to enable us conclude feared prosecution. Buckley’s plea agreement penalty phase 6Defendant contends that the reading tainted reading agreement guilt prejudicial, as well. Because the plea phase of the in the was not Buckley again because testified pursuant penalty phase, to its terms at the it follows

prosecutor’s reference to it during penalty phase argument Eighth did not violate defendant’s rights. Amendment incident, during guilt As lot the record indicates that to parking trial, accused of that had been Buckley defense counsel was aware phase lot, had come nothing to run an individual but that trying down parking of the refused counsel to use incident. The trial court to allow properly evidence had violent testimony by showing to that impeach Buckley’s Code, it (Evid. 787), character use as impeach- but counsel to permitted § Counsel did ment the event claimed be a nonviolent Buckley person. to subject not whether he hated violence or was bring up by asking Buckley beaten, sickened Urell no evidence the automobile assault so seeing incident, came motorcycle before the As with the defense counsel was jury. and precluded arguing from to evidence attempting present and the evidence from Buckley was to record lacks subject prosecution, which we can could have been confidently say Buckley prosecuted. Church, murder does

Finally, as to the of David the evidence not support the conclusion that Evidence at the Buckley subject prosecution. penalty indicated that and Caldwell Church from phase removed Buckley’s killed him with an ax Defendant cites apartment drug handle. use during Buckley’s rid party Buckley’s desire to himself of an gatecrasher obnoxious as possible motives for murder. He also notes that the murder The inference from weapon belonged is far Buckley. compelling, however, Buckley had Church’s prosecution killing.7 reason to fear for Defense counsel could have about questioned Buckley guilt phase during murder, his involvement Church but for obvious tactical reasons chose not to do so.

The lack of evidence that either feared for Buckley other prosecution crimes or had some undisclosed offenses agreement regarding those leads us to conclude that defendant has prove failed to misled the prosecutor jury. We also defendant’s conclude—contrary to claim—that he was not denied due process, rights his of confrontation and cross- examination, his right to be cruel protected against and unusual punishment, 7Defendant against also observes that testifying Christopher after Caldwell in the latter’s trial, preliminary hearing, Buckley refused to testify citing at Caldwell’s Fifth his Amendment privilege against 7, 1989) self-incrimination. Caldwell (Sept. [nonpub. B036699 however, opn.].) Notably, asserting before privilege, Buckley his Fifth Amendment indicated willingness if his testify kept name could be out of the newspapers elected to assert the privilege only the trial “gag protect after court declined to issue a Buckley’s order" privacy. Appeal, The Court of in affirming Caldwell’s conviction over a claim of error in admission of Buckley’s preliminary hearing testimony, concluded was a possibility there Buckley’s testimony could have implicated in the need killing. him Church We not revisit the however, validity of Buckley’s of privilege, claim present since the record in the case does not, above, as discussed support the that Buckley prosecution conclusion feared for Church’s murder.

826 determination, fair and by to trial right or his reliable right penalty his to a to the jury.8 Buckley’s plea agreement of the impartial jury presentation VisualAid to Hearing Transcript as Preliminary Rowan 4. Use Opening Prosecutor’s Statement Rowan, significant immunity, provided

Mel under a testifying grant during testimony Rowan’s outlining expected evidence. While corroborative statement, an consisting a poster the prosecutor displayed his opening hearing testimony the of Rowan’s transcript preliminary from enlarged page The prose- made to Rowan. incriminating statements containing hearing Rowan’s preliminary following portion cutor read aloud testimony: Fauber, ‘You Curtis Mel Rowan asked

“As the conversation took place, said, him, ‘Are you T I killed him.’ think didn’t hurt did And Curtis you?’ ‘Yeah, ‘Are he’s you positive I’m sure.’ to be got kidding.’ pretty sure? You left, said, ‘Well, I he when And Fauber don’t tell me he’s dead.’ dead? Just “Well, said, did do it?” you I why a hard time ‘And having breathing.’ said, ‘Well, face, to leave any hurry and I’m not And he he—he saw my ” Ventura County.’ high- to specifically to the form of the objected poster, Defense counsel preliminary He it took of Rowan’s parts of some contended lighting portions. The trial to defendant. out of context and was hearing testimony prejudicial aid an illustrative court ruled that the could be used as poster statement. prosecutor’s opening the poster constituted error because ruling

Defendant contends ad He also now testimony. to believe Rowan’s jury “preconditioned” and was for hearsay the new contained ground poster vances at the argue, prosecutor penalty as the did 8Defendant also contends it was inaccurate to lie, subject perjury Buckley would have been phase, Buckley had no motive to because Allen People argument charges any prior testimony. rejected We a similar if recanted 115], testimony holding that trial P.2d 42 Cal.3d not coerced or unreliable pursuant agreement testimony conditioned on truthful is plea to a subject at trial is preliminary hearing testimony a witness who recants simply because his reasoned, any hearing, we perjury charges. Assuming preliminary the witness lied at the stemmed giving conduct witness to at trial from his own pressure repeat on the lie Here, (Ibid.) agreement. Buckley if had lied in perjured testimony, plea rather than the would likewise be guilt phase testimony, repeat penalty phase his motive to the lie in the conduct, plea agreement. attributable to his own rather than the that, phase, prosecutor reject penalty We also defendant’s contention at the start of the testimony thanking jury “preconditioned” Buckley’s penalty phase by jury believe cured resulting from the remark was guilt phase Any potential for its verdict. harm disregard court’s admonition to the it. Fifth, Sixth, contends, error, he his The violated additional reason improper. Amendment Eighth, rights. Fourteenth in the neither ruling, poster

We find the trial as use of no error court’s vouching. the rule constituted hearsay any species violated nor against “ jury the minds of the to of the statement ‘is to purpose opening prepare force and readily materiality, the evidence and to more discern its follow 209, (1956) 215 (People effect’ .” v. Green 47 Cal.2d [302 . . [citation]. 307].) intended later to be P.2d The use of photographs tape recordings, evidence, (Ibid.; People as visual aids is auditory admitted or appropriate. 345].) (1974) Kirk the Cal.App.3d Cal.Rptr. Similarly, v. 43 929 [117 as improper, illustrative use of an was not Rowan enlarged page transcript the is axiomatic that ultimately consistently testified with It transcript. the nothing an statement is evidence. Had the prosecutor says opening instead of a recited Rowan’s prosecutor, preparing poster, simply preliminary hearing his to the defendant could not testimony opening jury, statement urge a we hearsay objection. agree cannot with defendant that Additionally, the mere of the have been that it caused appearance poster could so “official” the jury to prejudge credibility. Rowan’s

5. Claim Credibility That Prosecutor Jury Misled About Rowan’s

Defendant contends that the prosecutor emphasized improperly said, Rowan’s in his “Mel immunity guilt argument. The phase prosecutor Rowan received immunity this case. Mr. has Farley told counsel] [defense us that he has motive to lie every to but the fact remains that once Mel you, Rowan received that he come immunity, testify could here and as to what up happened the course during of those crimes and go completely protected from any prosecution.” Defendant argument contends this was misleading because Rowan obliged testify to his consistently with preliminary hearing or risk testimony prosecution for perjury.

For the same reasons we rejected argument this as applied Brian ante, we as Buckley, reject (See, 8.) it to Mel Rowan. at fn. p. Allen, supra,

v. 42 1254.) Cal.3d at People p. relies on Morris result, Cal.3d 756 P.2d a contrary for 843] Morris, that but case In is inapposite. prosecutor argued witness had received no benefit from and that the would have testifying, heard fact, it however, about had evidence of such any a benefit existed. In witness had benefited from his in that preliminary hearing testimony, parole violation and other charges had been disposed favorably year (Id. 33.) before trial. at We p. noted rendered the nondisclosure prosecutor’s argument misleading. rejected We contention that People’s witness received a benefit not for was accurate because the had argument witness, we for testimony:

his trial but testimony preliminary hearing noted, debt could an ongoing have believed owed reasonably Here, contrast, fully for prosecutor return his freedom. prosecution event, free In defense counsel was any disclosed the benefit Rowan received. subject perjury Rowan been possibility might out have point hearing testimony. if he with his inconsistently preliminary testified charges Tape-record Buckley B. Failure Interview Prosecutor’s to trial, at testimony moved to suppress Buckley’s unsuccessfully he that the failure to an entire interview contending prosecutor’s tape-record with with access to information to Buckley conducted interfered defendant’s be used for and cross-examination. impeachment the Buckley agreement, Glynn, prosecutor,

After entered into his Don plea Glynn with and were Buckley conducted an interview with him. Present Wiksell, Jarosz, attorney district Buckley’s Buckley’s investigator; attorney; Rudd; Troxel; County Sheriff’s Sheriff and Ventura investigator Deputy had previously requested Detective Odie. Fauber’s defense counsel interview the entire interview. taped. tape-record be Wiksell too wished to however, wanted of the interview to leave unrecorded the first Glynn, part client, for his a In order to obtain a tape only disposition summary. or Wiksell did not interview and one-half three object. lasted two Buckley’s One and one-half the trial who according judge, hours. hours were to taped, listened to the tape.9

Rudd, Odie, Troxel, interview; Troxel pre- took notes the Glynn a written pared report and his notes. destroyed interview, During the unrecorded of the was asked “broad” part Buckley form, he questions, which answered in “narrative” to Wiksell. On according occasions, a who clearly number of was unable to remember made Buckley statement, but after attribute it to a some conversation was able to particular At person. Buckley’s personal least one fact back- concerning ground was discussed but omitted the initial the interview during part the during said he from the taped portion: Buckley discharge obtained homosexual, not Army by falsely stating was a but this statement does concise, in the appear recording. The of the interview was taped portion lacking some of the evident portion. hesitations unrecorded trial, Defendant moved to suppress Buckley’s testimony contending at refusal prosecutor’s to the entire interfered with access tape interview only one-quarter 9Wiksell testified that or was taped. the final one-third of the interview At the information used for and cross-examination. to to be impeachment motion, it had to the tape on the the trial court stated listened hearing Rudd. read and the Odie and summary Comparing Troxel’s notes taken tape concluded that the was not a notes with the trial court tape, interview; rather, it covered “sanitized” of the earlier of the version portion The trial court the same order. generally topics chronological same interview, that, also initial portion found taping The court investigation had followed a reasonable prosecution procedure. witness reasoned that since the has no to prosecution duty tape-record interviews, to dictate the course of the prose- and the defense has no right defense grant cution’s was not investigation, prosecutor required counsel’s entire interview. request tape Buckley’s

Defendant characterizes the refusal allow record prosecutor’s ing of the right entire interview as a denial his Fourteenth Amendment disclosure and of of all evidence as favorable exculpatory suppression evidence (1984) within the 467 prohibition of v. Trombetta U.S. California 413, 479 L.Ed.2d 104 S.Ct. Defendant contends the prose [81 also 2528]. (Arizona (1988) cution did not 51 good Youngblood act faith. v. 488 U.S. 281, 333].) L.Ed.2d 109 [102 S.Ct.

He first that the the should have turned on suggests prosecutor tape recorder, so, or at the of permitted Buckley’s beginning counsel do the interview because counsel’s was and simply timely defense request not, cannot, He burdensome. does and cite direct for that authority proposition.

Next, defendant contends that the actions were tantamount to prosecutor’s defense, willful of evidence he suppression knew would be the helpful 97, thus violated the rule of United Agurs (1976) States v. 427 U.S. 111-113 342, 354-355, L.Ed.2d [49 96 S.Ct. 2392].

We cannot with agree difficulties of that hesitations and recol lection in material, the unrecorded portion of interview amount to evidence, substantial the loss of him which trial. deprived of fair v. 14 Cal.3d 534 P.2d [121 Ruthford 3132].) A.L.R.4th “The mere that an item of undisclosed possibility defense, information have might helped or have affected the might trial, outcome of the does not ‘materiality’ establish the constitutional (United sense.” Agurs, States v. supra, 427 U.S. at 109-110 L.Ed.2d pp. [49 353].) at p. To this meet standard of constitutional evidence materiality, must “both possess an exculpatory value that was before evidence apparent was destroyed, be of such a nature that the defendant would be unable (Cal means.” reasonably evidence other available comparable

to obtain Trombetta, 422].) L.Ed.2d at supra, p. 467 U.S. at p. ifornia in the context Trombetta of deciding, applies without that Assuming, witness, we of of a prosecution an interview tape-record portion a failure finding The trial court’s find no of material evidence. deprivation of statement untaped Buckley’s substance of taped portions did us infer not possess apparent, similar leads untaped portion demonstrated essentially only value. Defendant has independent exculpatory him attack have might helped that a record of unrecorded remarks Buckley’s short of establishing materiality falls Buckley’s credibility; consequently, under constitutional standard. event, elicited Buckley

In defense counsel’s cross-examination of any recollection, out in a fact he difficulty pointed numerous instances of Moreover, was available hesitations argument. Buckley’s evidence of closing the interview. during through testimony persons present remarks resulted untaped We are that the loss unpersuaded Buckley’s error.10 Assistance Buckley;

C. Restriction Cross-examination Ineffective Counsel cross- trial court restricted argues improperly

examination of involvement an Buckley concerning Brian latter’s were with an Defense if to argued Buckley assault automobile. counsel that violence, that he to then counsel should be allowed to testify had an aversion him run down with evidence that he had once to an impeach attempted above, ruled individual a noted the trial lot. As court parking properly of assault if offered to establish a character trait vio merely inadmissible violently lence and invite the on Buckley to inference that behaved thereby However, the occasion of the the court ruled that the assault killing. Urell to content could be used on the of Buckley’s credibility depending impeach Thus, testi testimony. Buckley defense counsel was free to elicit from as to his nature evidence of the mony nonviolent and then introduce assault as He did not impeachment. do so.

Defendant now that the fact had urges Buckley prosecuted never been for the assault showed of willingness police prosecutor disagree 10We also prosecution with defendant’s that the acted in bad faith in contention taping procedure the entire The Buckley employed interview. trial court found that the in this Assuming, reasonable, investigation was supports and the record conclusion. without 51, Youngblood, supra, deciding, rule of v. 488 U.S. to statements Arizona applies of 808, People v. Valencia (see material witnesses (1990) Cal.App.3d Cal.Rptr. 218 823 [267 257]), defendant has not established the necessary predicate for relief.

831 overlook his wrongdoings, Buckley’s which turn showed bias and will- ingness for the in the Urell He did testify prosecutor case. not raise this ground of we find admissibility—which light highly speculative trial, of evidence paucity concerning the incident—at and cannot be heard to do (Lorenzana (1973) so for first time on Superior v. Court 9 appeal. 626, 585, 33]; (1985) Cal.3d 640 People Frye 511 P.2d v. 166 Cal.Rptr. [108 941, event, Cal.App.3d 319].) 950 In since the Cal.Rptr. any jury was [213 well aware of the terms under which was and in Buckley testifying, partic- ular of the differential between the sentences for first and second degree murder, the aware perforce bias and Buckley’s willingness for the testify We are prosecution. that evidence of the unpersuaded parking lot incident would have had a significant assessment of impact jury’s 744, Buckley’s credibility. (People (1988) v. Belmontes 45 Cal.3d 781 [248 126, 755 Cal.Rptr. P.2d [citing (1986) Delaware v. VanArsdall 475 U.S. 310] 673, 674, 680, (89 L.Ed.2d 1431)].) 106 S.Ct. We agree, cannot there- fore, with defendant’s belated assertions that the trial court’s ruling on scope of Buckley’s cross-examination deprived trial a fair and impartial witnesses, due jury, or the process, right to it confront or that him subjected to an arbitrarily or sentence unreliably imposed of death.

Defendant contends counsel’s failure to evidence bring assault before the jury constituted ineffective A de representation. fendant claiming ineffective assistance of counsel has burden of showing that counsel failed to act a manner to be of a expected reasonably competent attorney as a acting diligent (People advocate. Pope (1979) 412, 732, Cal.3d Cal.Rptr. 1].) 590 P.2d 2 A.L.R.4th defendant must also show that it is reasonably probable determination more favorable to the defendant would have resulted in the absence of counsel’s failings. v. Ledesma 43 Cal.3d 217-218 [233 839].) 729 P.2d Defendant’s ineffective-assistance claim fails because it is not reasonably probable a determination more favorable to him would have resulted had counsel the brought lot parking incident to the jury’s attention. The jury was aware already of the terms under which Buckley was he testifying, was subjected to extensive cross- examination, and the value probative of the evidence counsel was possessed it, limited. As counsel explained at an “[Buckley] got angry individual down by Chuck E. Cheese and tried run him to down with a car and was a suspect in a hit and run. The a guy was transient so ever came nothing of it.” Because the incident counsel related does not an inference support that feared Buckley prosecution, we are unpersuaded the jury would have formed a significantly different of impression Buckley’s had defense credibility counsel used it to him. impeach Jury Prosecutor’s Guilt Regarding Trial Court’s to Admonish

D. Refusal Argument Phase in misconduct engaged contends prosecutor admonish the that the trial court’s refusal closing argument, and during comments it was We conclude that the disregard prosecutor’s error. jury misconduct, needed. was that no admonition consequently were not was, course, of of argument thrust defense counsel’s principal closing Rowan. He testimony Buckley should not credit jury in he Urell than was killing that each was involved title argued deeply more He had a selective events memory to admit. contended each willing rebuttal, In testimony. and cited other reasons to disbelieve their question, to address certain argued that defense counsel had failed prosecutor to believe urging jury Buckley had points prosecutor emphasized comments a calling and Rowan. Defense counsel objected, prosecutor’s were a attack.” The determined the comments merely trial court “personal to what defense argument, rehash of the directed prosecutor’s opening he did thus were not say, say, proper counsel did not rather than what Later, the court ruling. rebuttal. The acceded to the trial court’s prosecutor I “I faith and declined to admonish the attribute no bad jury, saying again harm, feel that if . . . .” any don’t there was a whole lot really find it clear that reference to defense coun- repeated We the prosecutor’s a personal failure to address no amounted to way sel’s various points counsel, device. The attack on defense was the nature a rhetorical but jury; did not misleading accuse defense counsel of or prosecutor lying It need be hardly out omissions from the latter’s merely pointed argument. of defense said that the is entitled to comment on the content prosecutor misconduct, there counsel’s was no argument. prosecutorial Since there no basis for an the jury. admonition to

Defendant also the trial court have admonished the contends should defense disregard made wit prosecutor concerning statement It will while the jail ness Frisilone. be recalled that Frisilone met Buckley waiting former was for his four prison felony be sent to the latest of Frisilone said over Buckley pillow convictions. testified that he had placed trial, Urell’s head after him with the denied Buckley defendant hit At ax. so. Defense Frisilone believed doing counsel should be because argued he must have learned reflects that the Buckley. that detail from The record countered: “He do we know—or prosecutor asked us how [defense counsel] Well, he how did Frisilone know in the told what courtroom? happened [f] in us that he read it made a speaking the Defense counsel newspapers.”

833 he although newspa- that Frisilone testified had access to objection, arguing he he The court in he did not had read what testified to. jail, say about pers it the that testimony, stated that shared defense counsel’s recollection of but necessary final word will be the if the feels it’s for jury “the with reporter, The that of Mr. Frisilone’s be read back.” portion testimony prosecutor say that he “did not that read responded, perhaps inaccurately, [Frisilone] item, but had to this trial.” any particular access to the as newspapers Later, the court declined the the had not jury, finding to admonish prosecutor in acted faith and harm been bad no had done.

We cannot defendant’s that the left to jury suppose contention was accept knew, evidence, prosecutor the somehow that Frisilone extrajudicial from had based his what he read in the The testimony exchange newspaper. between court and made it to the the of counsel that record plain jury testimony implication Frisilone’s would for itself. The speak prosecutor’s that Frisilone had his fabricated from items the testimony reported paper was, however, a fair inference the from evidence. trial court’s refusal to admonish was jury not erroneous.

E. to Instruct Accomplice That Rowan Wasan as a Matter Law Refusal

The trial court read a series of instructions on testimony, accomplice that informing jury Brian an a matter of Buckley accomplice as law 3.10, 3.11, testimony (CALJIC required corroboration.11 Nos. 3.12, 3.13, 3.14, 3.16, 3.18.) Defense counsel be requested Rowan, too, instructed Mel was an as a matter law. The trial accomplice refused, court instead decide instructing jury to Rowan’s status.

This, contends, was error.

Section defines an as accomplice “one who is liable to pros ecution for identical offense charged the defendant on trial against cause which the testimony (§ 1111.) of the In is order accomplice given.” be offense, chargeable with the identical be the witness must considered a under principal section 31. (People Hoover Cal.3d 760].) 528 P.2d That section defines include principals to persons concerned in the “[a]ll commission a crime . . . whether they offense, commit directly the act constituting or aid and abet its commission, or, not being have present, advised and its commis encouraged (§ sion . .” 31.) however, . . An is accessory, not liable to for prosecution provides 11Section 1111 part upon testimony conviction cannot be had “[a] an accomplice unless it be corroborated such as other evidence shall tend to connect offense; defendant with the commission of the and the corroboration is sufficient if it merely shows the commission of or offense the circumstances thereof.” 834 Hoover, offense, supra, an (People and so is not v. accomplice.

the identical 879; 32.)12 12 at Cal.3d p. § the unless jury an is a of fact for accomplice question

Whether a is person to be drawn there as to either the facts or the inferences dispute is no 953, (People (1976) Cal.Rptr. 15 Cal.3d 960 Tewksbury [127 therefrom. v. 135, a 1335].) by to prove is the defendant 544 P.2d burden (Id. p. an at accomplice. that a witness is the evidence preponderance 963.) that and indicated Buckley the of both Rowan

Although testimony to the out burglary, pointed Rowan discussions participated preceding and them urged the of the Urell residence defendant and location Buckley off,” of the dispose either it” “blow it and helped to “do at that moment or are from these facts undisputed the inferences robbery proceeds, say 15 Cal.3d at (People Tewksbury, supra, p. an v. would be overstatement. dictate, conclusion that 960.) The record but not the certainly does supports, “ with to the commis regard acted with and intent ‘guilty knowledge Rowan ” crime,’ (Ibid, liability. [quoting sion as is for required accomplice 351, (3 P.2d People (1960) 53 350 Cal.Rptr. v. Duncan Cal.2d 816 murder, had 103)].) no any prior As to there is Rowan suggestion Even to the killing. when as knowledge; told of expressed surprise that Rowan finding the record does not a burglary robbery, compel After initial Urell’s resi liability past shared an drive accomplice. as off,” dence, it clear when defendant to it” or “blow it is not urged Rowan “do when, how, knew if in fact that Rowan even would take burglary place. or Thus, liability burden of Rowan’s establishing failed sustain his law, as an a matter trial court instructed accomplice properly as to decide the jury question. event, In if an any accomplice burglary even Rowan were Corroborative robbery, testimony corroborated. adequately must testimony nonaccomplice evidence come means of the of a 958.) It (People supra, witness. Cal.3d at need Tewksbury, p. v. to which testified or establish the every corroborate fact the accomplice delicti, if with the corpus but is sufficient it tends connect the defendant crime in such a is as to way satisfy accomplice telling P.2d truth. 29 Cal.3d Szeto committed, who, accessory 12Section 32 as been “[e]very person felony defines after has harbors, conceals or principal principal may aids a in such with the intent that said felony, arrest, trial, avoid escape having knowledge or or punishment, from conviction that said felony has principal felony charged committed such or has with such or convicted been thereof. . . .”

835 213].) slight be and entitled to little consider may Corroborative evidence 322, (Ibid.; (1959) v. Wade Cal.2d People ation when alone. 53 329 standing 683, 116].) corrobo testimony P.2d Rowan’s was Cal.Rptr. 348 [1 him (1) that defendant testimony gave telephone rated Hal Simmons’s by (2) to Urell and belonged credit card number was to have proved which by a search of the owned Investigator testimony camper, Velasquez’s defendant, Buckley’s yielded maps Brian and used book mother the with name address of Urell’s stamped employer. Special Kill

F. Circumstance Instruction on Intent to instructed on complains jury erroneously was in the of intent kill the requirement robbery to connection with and burglary 1104, In (1987) 1141- special People circumstances. Anderson 43 Cal.3d 585, 1306], 1147 742 P.2d we earlier Cal.Rptr. overruled our decision [240 79, in Superior (1983) Carlos v. Court 35 131 672 P.2d Cal.Rptr. Cal.3d [197 and held that to kill is the proof required 862] intent under provisions 190.2, (a)(17), of section provisions subdivision when those are read stand alone, When ing there is evidence from find which could jury killer, however, defendant was an aider or abettor rather than actual 1147, (43 court must instruct the on intent to Cal.3d at jury kill. pp. 1149-1150; 190.2, (b).) The in § subd. murder this case was committed after Anderson; our decision but Carlos before that the trial consequently, court had to instruct the that in order to find the jury circumstance special kill, true it must find defendant intended it to whether found acted as a as principal or an aider or abettor. (People v. Duncan 53 Cal.3d 4fn. 131].) 810 P.2d jury instructed that “To find circumstance referred special to in these instructions as murder robbery commission of or burglary is true, one, it be must proved, that the murder was committed while the in, defendant was an engaged was an aider and in the accomplice or abettor two, of a commission robbery or burglary; that the defendant intended to kill a human being or intended to aid another of a human killing being; three, that the murder was committed order or carry out advance the commission of the crimes of or burglary or to facilitate the robbery escape therefrom to (CALJIC or avoid 8.81.17.) detection.” No. Defendant contends this instruction allowed the jury to find the special allegations circumstance true kill, without clearly determining whether defendant intended to and was therefore He deficient. interprets instruction a true if permit finding the jury merely believed defendant intended help Buckley, such as by house, him letting into Urell’s or while holding gun struck Urell Buckley with the ax. have jury there is a likelihood that the would

We not believe reasonable do (Estelle as v. McGuire it. interprets understood instruction U.S. _, _ 385, 399, 475.) In order S.Ct. (1991) 502 L.Ed.2d to find “that the find had allegations, true the circumstance special in another the being kill a or intended to aid defendant intended to human instruction, “in the the a human As defendant reads killing being.” phrase of or We ignored. a reduced to a being” parenthesis, the of human is killing People instruction v. Warren have similar upheld previously 471, 172, 218], subsequent 754 P.2d and Cal.3d 486-488 [247 865, (1992) 1 (see, v. Cal.4th 954-955 e.g., People cases Pinholster 765, essence, In is 571]). argument P.2d defendant’s Cal.Rptr.2d disagreement us, however, convincing with with no Warren. He presents reason that depart from decision.13 abet- aiding for and liability

Defendant contends that the instructions on the possibility jurors appreciate further diminished the would ting certain and that allegation, intent for the circumstance requirement special more made that outcome prosecutor’s of portions argument improper that either likely To the we not believe it probable. contrary, reasonably do such and or the would have had abetting argument instruction aiding and aiding- an His error in the of the intent-to-kill giving effect. claims of must, therefore, rejected. be and-abetting instructions Rereading G. From Testimony Absence of Defendant’s deliberations, for a of two During jury rereading pages its asked of Mel counsel that the court reporter Rowan’s Defense testimony. stipulated two and read the could enter the deliberation room with the jury transcript He did not jury. present. to the The court so. Defendant was pages reporter now him of a of complete contends this record procedure deprived He that trial argues violation of further proceedings, section 190.9.14 him and rights counsel’s denied his of confrontation stipulation representa brief, tion In he lost his thereby counsel. his adds that by competent reply free review of his death sentence and to be rights meaningful appellate from a death unreliably imposed. sentence arbitrarily

His merit. contains no per- contentions are without record Although sonal waiver of has failed to show presence defendant during rereading, the jury committing 13The fact that found used an the crimes personally defendant ax in suggests further that claims. interpreted way it could not have instruction in the defendant 12022, (§ (b).) subd. case, “(a) 14At the time of as In provided part trial in this section in relevant follows: 190.9 any case in which a death be may imposed, proceedings sentence all conducted after courts, justice, municipal, superior including proceed effective date of this in the section chambers, ings (Former reporter present.” shall be conducted on the record with a court 190.9, 1987, 1, 1709-1710, 2.) Stats. ch. pp. ch. Stats. § amended § § him or resulted in the denial of a fair absence any way prejudiced such a his absence showing, trial. Unless makes impartial due concerns. rereading from a does raise testimony process Ainsworth, 1021.) supra, failing any prejudice, 45 Cal.3d at p. Finally, nor there can be neither a denial of effective impairment representation but Amendment Defendant these Eighth rights. acknowledges principles, that he should He establishing prejudice. be relieved of burden argues articulates persuasive reject precedents. no reasons to our Alleged H. Juror Misconduct both occurring phases misconduct argues

the trial him of due a trial an a deprived by impartial jury, fair process, verdict, unanimous and unreliable protection against arbitrary imposi tion of a death claims judgment. rejected The trial court defendant’s prejudicial (§1181, misconduct in for new trial. subd. ruling on motion 3.) Our review of the record the trial court’s determination. supports

Defendant’s first claim of the fact during misconduct centers on that both trial, of the phases a a into the juror brought cellular deliberation telephone so, bailiff, room. Before doing juror from the who sought permission in order approved request need juror’s accommodate to contact his office The bailiff periodically. testified he judge asked trial before giving approval, although the did not recall The used the judge juror the request. breaks, telephone during recesses and mainly to make business calls. Two jurors other used the telephone, one check her child and the other to an cancel There was no appointment. any indication that the case or subject to it was relating ever discussed on telephone. outset,

At the we in no express uncertain terms our of the disapproval practice a cellular allowing into the telephone deliberation room. mischief, Such a practice carries itwith obvious potential for which against section 1128 seeks to guard.15 said, however,

That we do not find misconduct on these facts. The juror brought the into the telephone room after deliberation he believed he only so, had permission to do and defendant offers no evidence to either suggest provides 15Section 1128 part, hearing charge, in relevant may “After the jury either decide in or may court they retire for agree retiring deliberation. If do not without for deliberation, an officer keep must be sworn to together private them for deliberation in some and, deliberation, place, during convenient such permit any person speak not to to or them, himself, court, communicate with nor to do by so unless order of the or to ask them they verdict, whether agreed have upon a and to they return them into court when have so agreed, or by when ordered the court.” or its presence was ever for an that improper purpose used telephone therefore, (See People No arises. jurors. prejudice, distracted presumption P.2d Holloway (1990) 50 Cal.3d 1327].) harassment in the form of sexual

Defendant next claims misconduct motion, new male a female At the on the trial juror juror. hearing a room, once, a male in the deliberation juror female testified crowded wearing her. her as he She cage squeezed past a hand on rib juror placed shirt, She the shirt. accidentally his hand underneath slipped cropped she investigator feel her. a defense did not he had made at She told pass testified juror, felt in the room with the but she being uncomfortable alone jurors. with of the other being any she would have felt uncomfortable alone harassment. establish sexual entirely evidence defendant offered fails to harassment, any to cite Even if it to the defendant fails did rise level of female evidence the incident have interfered with indicating might in deliberations. juror’s participation misconduct occurred contends

Finally, prejudicial concern deliberations when several related anecdotes during jurors personal two that drug jurors stating use. Defendant submitted declarations ing by and that juror drugs another commented on his son’s use of past opined use; that may drug of some of the witnesses have been affected memory by in and a third juror juror another said he had drugs youth; used comments, mentioned who These family he had member was an alcoholic. relied on information jurors extrajudicial showed that urges, to use was a relating drug the issues before them. He observes that pending trial, recurrent credibility permeated theme at and that witness questions of the case. He if even a used single juror contends suffered prejudice extrajudicial ability use its effect on the regarding drug information and recall events.

We find show argument defendant’s He does not unpersuasive. attempt how the use mem- jurors’ family statements alcohol regarding drug by and case, might bers relate to of the issues connection is any this no miscon- None of the cited rises to the level of apparent. statements therefore duct. to their and beliefs about bring gen- “Jurors deliberations knowledge eral find life and matters of law fact that their source everyday do so It experience. they system. That is one of of the is strengths also one of its weaknesses: it has the to undermine determinations potential that should made by parties be evidence introduced exclusively weakness, however, and the must given instructions the court. Such a be tolerated. an . . to be a impossible jury] is standard . require ‘[I]t [the

839 (Ride and freed laboratory, completely sterilized from external factors.’ any 723, 663, 669, (1963) au v. Louisiana 373 U.S. L.Ed.2d 83 S.Ct. [10 Clark, (dis. J.).)” (People v. Marshall 50 Cal.3d opn. 1417] 676].) P.2d for say, To example, of some of memory the witnesses have been affected is to may by drugs say no more than the common affects knowledge ingestion drugs percep tion. Jurors cannot be to shed their expected at backgrounds experiences the door of the deliberation room. Defendant us that persuade any does jurors’ of the statements could have affected the verdict. adversely Penalty

IV. Phase Evidence A. Prosecution Evidence

The prosecution evidence that presented defendant had committed two assaults, additional murders and three all uncharged. Killing

1. Jack Dowdy, Jr. Jr., Jack Dowdy, was a longtime friend of defendant’s. married Dowdy Kim Dowdy became involved with Pam romantically Lester 1985, and left his wife in Kim February 1986 to live with Lester. took care of their son. 11, 1986, On Sunday, May at Dowdy’s parents’ home New Española,

Mexico, Lester overheard a conversation between defendant and Dowdy. Defendant accused Dowdy him ruining things for because had Dowdy him, Kim’s son with Kimso would not with defendant go to Albuquerque. Defendant said he was to take Kim going and kill her the Albuquerque incident, following afternoon. After this and Lester Dowdy drove to Albu- querque, where was Dowdy to attend a union trade school for five days. cousin, had

Dowdy Sumner, arranged to with stay his Jackie from 11May to May 15 while he attended school. Dowdy dropped Lester off at her mother’s house in on the Albuquerque evening May with stayed Sumner that On night. May attended Dowdy school. He never returned to house, Sumner’s clothes, where he had left two boxes of did nor he ever contact Lester again. On May Lester found car Dowdy’s parked at Penguin Lounge, across from the union school. His school books were in the car. Lester had a made key for the car and drove it back to Española. Dowdy school; never finished he $447.42 would have received for attending five days’ training. Davis, Jr.’s, sister,

Jane Jack Dowdy, had a close with her relationship brother. In died, their April 1986 grandfather and the family at their gathered friend, arrived; Defendant, Dowdy best Dowdy’s in house Española.

father’s two men were Dowdy. defendant with Davis later saw left with him. it around left pocket, pulling stuck his hand and defendant arguing, earlier, with a small pistol, seen defendant Davis had his front. Months at the After the incident with him. carry he he was going which said Defendant funeral, gun Dowdy. if he had a pulled asked defendant Davis before after the Friday heard from Dowdy he had. Davis never replied her had he have told He would school Albuquerque. he went to attend gone had Dowdy once before Only a time. long to leave the area for planned telling anyone. weeks—without three away—for he had defendant told Davis Dowdy disappeared, three weeks after Two or had a he had blackout. Kim with a bandanna because Dowdy tried strangle had Ted told Lester a man called After Dowdy’s disappearance, detective. the information to a gave seen Lester Dowdy. David Church Killing

2. his friends and several of David Church Day, Around Memorial a.m., At 12:30 or State Hospital. at a ranch near Camarillo party attended a Jansen, Helmuth, Medrano) and Grace (Fred Laurie Church and three others Buckley Buckley’s apartment. and went to Brian left the ranch party were six other people defendant’s arrival. About honor of having party Caldwell, McCormick, Chris “Alex” Pam apartment, including buying discussed Church and his friends and defendant. boyfriend, Grace’s Church, minutes, cocaine, After 30 cocaine a cigarette. and smoked some Jansen, left; her in the trailer with overnight and Helmuth Grace stayed again. Helmuth never heard from Church boyfriend. He appeared on his bicycle.

Church later returned to Buckley’s apartment enter, Defendant and demanding drugs. to be drunk and tried to repeatedly outside, apartment. back into his Buckley go Caldwell took Church telling while, back inside. After defendant and Caldwell came Buckley complied. tires and had so bicycle had slashed Church’s Buckley they told Defendant and him of the stairs. scared that he was at the bottom waiting car Church’s mother’s keys Caldwell then left Caldwell the to again, taking handle, saw Church never Buckley and an ax defendant some cocaine. taking again. later, returned to

Several defendant and Caldwell daybreak, hours around McCormick, sleeping Buckley’s Pam who had been Buckley’s apartment. cocaine, among bedroom after a lot of overheard a conversation using defendant, Caldwell, of a Buckley. having get and about to rid They talked in the throwing said and about it They something about ammonia body. get and to They finding having ocean. also talked about cocaine on his body rid of his bicycle. in the four testified that he Caldwell

Buckley morning, saw defendant and with tires they bicycle or five hours after had left. He also saw a its 10-speed the slashed and its had to rid of get wheels removed. Defendant stated they knife, could because the tires had cut with his and the bicycle police been Later, the a trace the knife. Caldwell he had put bicycle or defendant said dumpster. later, or three had kill

Two defendant told had to days Buckley they Church because he would if not get have to the he did cocaine. gone police told defendant Caldwell had him Four Buckley told about already killing. or five after the days defendant Caldwell party, spoke Buckley, and later, describing how hard Church said he had to was kill. Still away throw handle ax because there was blood the end of it. Mexico, Defendant also talked about a he had killed killing New saying husband, the husband of a Kim named because Kim was afraid of her girl who had been a friend of defendant’s. wanted back Buckley Defendant go to New Mexico him with it so dig up husband body rebury the animals would not kill get to it. told Buckley could someone have no conscience about it. Church, father,

Eddie Denton David Church’s testified that David owned a model, blue 10-speed a KHS with bicycle, straight Winner thin tires and He handlebars. had purchased the David Inter- bicycle for from California national Cycles. The senior Church never his son after the Saturday saw Memorial Day weekend 1986. 29, 1986,

On July Daniel Berg walking a creekbed Aliso along A Canyon Road. strong odor drew his attention to a of rocks. large pile Berg shoe, sweater, uncovered a pants a leg, and shoulder of a and called the sheriff’s department. Sheriff’s Sergeant Backman The Gary investigated. grave was mound of rocks above creek bottom a dirt in the dry off road canyon. Papers scattered near grave included a Ventura Medical County Center identification card.

Dr. Frederick Warren Lovell inspected grave site subsequently an performed autopsy. body was markedly with the skin decomposed, mass, face, mummified and most of the muscle and internal In organs gone. Dr. Lovell’s opinion, been in body had than canyon more six weeks death. Dr. the cause of deteimine He was unable to

and less than ten months. to cause sufficient to the skull that a blunt-force blow Lovell testified damage mark or a recognizable leave necessarily unconsciousness would not to the skull. the Ventura an from X-ray the skull with X-rays

Dr. Lovell compared patterns Distinctive for David Church. Medical Center files Hospital County that of in the was canyon found body established that the X-rays both David Church. KHS 7, 1986, 10-speed a blue Backman recovered Sergeant

On August fence near the a leaning against found Winner which had been bicycle The serial number in Ventura County. and Ann Streets intersection of Church Cycles. International the sales from slip matched that listed on of the bicycle Dowdy on Kim 3. Assaults from and another couple Kim went with defendant Dowdy

In March all shared They to California. a week-long motorcycle trip on Española involve- Kim she had no romantic but testified on sleeping quarters trip, her belongings she moved On their return to Española, ment with defendant. later, A he moved week her with defendant’s assistance. into aunt’s house assaults three separate She testified to room the same house. spare into after that time. occurring With Gun

i. Assault a soda and then Kim a drive-in for In defendant took mid-April As she the restroom. that she could use drove to another establishment so restroom, seen friend whom she had not she saw a male came out of other, Kim into defendant’s got each back long They hugged time. Seco, a gun Arroyo pulled truck. Defendant drove to a track motorcycle her, her, if have kill her because he could not on and told her that would defendant threat- assault because no one would. She told no one about this ened her to harm son.

ii. With Belts Assault Silk 1986, Kim in her aunt’s house. One at the end of night April sleeping there, instead.) (She at her grandmother’s seldom slept generally staying heir, three silk belts find defendant night pulling That she awoke to above Kim she must have passed around her neck and her. believed trying choke wet the bed. out because she later awoke and she had found With iii. Assault Knife came defendant into Kim’s May

One in the evening early part told her He car around and Jack grandmother’s keys tossed a set of house. wouldn’t bother her more. any later,

A on his pulled up couple days May house, entered, Kim had to leave motorcycle at her and said grandmother’s Kim with him he kill in the followed or would house. Defendant everyone kitchen, knife, She agreed go into the held it to her throat. to picked up and with defendant her and her were in the house. She grandmother because son told her grandmother, to the flower at front of Spanish, go shop uncle, house and call her Her did so. Defendant Tony grandmother Maestas. and Kim shop, demanding left the Maestas ran of the flower house. out know what and going motorcycle was on. Defendant on his drove jumped Kim off. and grandmother’s her uncle returned to her house.

Defendant to meet Kim She telephoned arranged Burger King. at a uncle, her Defendant accompanied by who carried for gun protection. approached their vehicle and told Kim inside the because he go restaurant wanted to talk to Maestas. Defendant knife flipped butterfly open closed, then threw it on the he was seat to indicate unarmed. passenger Maestas told him his him 81-year-old was scared death of mother asked how he would feel if him she dead of over dropped fright coming to terrorize her. Defendant he had no if replied feelings and didn’t care she said, Jr., “I dropped (Jack dead. He even Dowdy, killed Bubs.” was nick- named Bubs.) Defendant went the Burger into to talk to Kim. When King they emerged, defendant ordered Kim to to the her uncle’s go back of truck so that he could with talk Maestas. He Kim told Maestas not to tell anything him, of what he had told and that Maestas was the one whom defendant only had told about Bubs. his knife took from truck Later Maestas’s and left. he day,

moved out of Kim’s aunt’s house and admitted to the himself Veterans’ Administration hospital.

B. Evidence Defense

The defense tried to cast doubt on the prosecution’s regarding evidence the Church Detective killing. Bustillos testified Pam McCormick Ray told him she overheard defendant and Brian about Buckley talking having dumped body Church’s Linda ocean. Wade testified that she received a telephone call from David Church after was to the supposed, according killed; call in the early morning to have came theory, been

prosecution’s hours, Ruiz, slurred, David also person, Church’s voice was and another David for three and Tonya years on the line. Bennett had known Church 17, 1986, her him it was although possible testified that she saw on June him had weeks earlier. been sighting actually caring, forgiv- friends of that he was loyal, Numerous defendant testified defendant had admitted and Koetter conceded ing, helpful, although Amy kill Kim trying Dowdy. conditions neighbors and testified about siblings

Several of defendant’s The in was growing up. the Fauber household while defendant prevailing Mexico, small, lived in house messy Fauber New a family Española, children, 7 of indoor Defendant was the lacking youngest plumbing. stayed Their father and whom survived into adulthood. was unemployed his children bed most of the time. He was abusive and verbally disciplined belts, did not finish high with razor and belt buckles. Defendant straps, in a motorcycle Defendant and Pete were involved school. his brother that, in which Pete After became withdrawn. accident was killed. death, man who her Mrs. Fauber married a drank Following husband’s Later, she divorced him and remarried. heavily. Anne the community

Isabel a researched Wright, anthropologist, social in extreme and lived system school She testified that defendant Española. Also, he was during and suffered Ms cMldhood. poverty neglect abuse rate unsettled moves and deaths. family’s unemployment Espanola’s was 20 percent. Irwin, convict,

John a about the effects and former testified criminologist life in of life on conditions of imprisonment convicted on persons Califorma prisons. Grover,

Edward Vann for three jail visited defendant psychologist, motorcycle hours and reviewed defendant written after a hospital reports accident and after defendant’s self-referral the Veterans’ Admimstration The Dr. Grover six tests. tests hospital. psychological also admimstered intelligence disclosed that defendant and had not been average very was of deficits, involved Ms no showed schooling. They neuropsychological central nervous deficit. One system or test damage, acqmred cogmtive indicated that and some diffi- interpersonal defendant had skills impaired Dr. there culty keeping reality thought might Grover fantasy separated. deficit, be an brain He not rule it orgamc but could not establish that. could out, however, such because the tests he admimstered show only would the time. An administered on electroencephalogram deficit 70 percent 2, 1986, wave be normal. showed defendant’s brain May patterns that, defend- County jail, It was while an inmate at the Ventura stipulated had not acts any ant of violence. engaged

C. Prosecution’s Rebuttal testimony Bennett’s that she prosecution attempted Tonya impeach had to have seen David Church after the he was been night supposed father, Jamerson, murdered. David testified often Tonya’s daughter that lied and her and did He had contact with exaggerated. only they occasional not a close enjoy relationship. Affecting Penalty

V. Claims of Error Phase A. Reopen Voir Dire Refusal trial,

After the jury guilt returned its verdict of but before the phase 190.4, moved, trial began, (c)16 subdivision penalty under section (hereafter 190.4(c)), section dire a new voir or for of reopen impanelment know, for the jury penalty Defense counsel stated he did not when the phase. selected, jury was that Brian against would be defendant. Buckley testifying contended, As a counsel he consequence, had not had an adequate opportu nity to question with a prospective jurors about bias associated coperpetra motion, tor’s The trial court even if testimony. denied the that defense ruling counsel would have conducted knowing voir dire that differently Buckley towas claim testify, any of was and did prejudice purely speculative good establish for cause relief. Defendant now contends the ruling Fifth, Sixth, denied him his under the rights Eighth, and Fourteenth Amend ments of the Federal Constitution. We conclude that the trial court did not err.

We have often 190.4(c) observed that section reflects long-standing legislative for a preference to determine single guilt both jury penalty. 551, (People 628, v. (1991) Nicolaus 54 Cal.3d Cal.Rptr. 572 817 P.2d [286 893]; 719, People (1990) v. Taylor 52 Cal.3d Cal.Rptr. 738 801 [276 1142]; Ainsworth, 1029; P.2d People supra, v. People Cal.3d at v. p. Gates 43 Cal.3d 301].) 743 P.2d Defendant 190.4, (c), 16Section provides part subdivision in relevant as follows: “If the trier of fact which convicted the defendant of a may crime for which he subject penalty be the death jury, was a the same jury penalty shall consider ... applied, good to be unless for cause shown the court that discharges jury in which a case new shall be drawn. The court shall facts support state the finding good of of upon cause and cause record them to be entered into the minutes.” (at least is which this preference concerns efficiency suggests case, dire voir reopening in his because way have given rooted should part) a misunder reflects argument much time. His have consumed would not dire is not to be 190.4(c). Voir section our decisions standing applying of may thereby a new jury cause to good impanel that speculation reopened discovered; rather, to reopening. cause is a prerequisite a showing good be Gates, only has raised 1199.) 43 Cal.3d at supra, p. regard hidden bias some have entertained jurors may that some speculation have they may prejudged a or that ing testimony coperpetrator error, or otherwise. He establish constitutional issue of fails to penalty. the form of misconduct—in that prosecutorial Defendant also complains defense counsel witness—prevented status as a Buckley’s concealment of the trial court Although We disagree. voir dire. conducting appropriate from that representation defense counsel’s argument, for accepted, purposes witness, review of the Buckley prosecution became “surprised” be otherwise might weight events lessens chronology pertinent and arraigned was arrested statement. Buckley accorded to the trial court’s 543 (1988) Cal.3d case; Hovey [244 Hovey (People before the conclusion of 121, Buckley’s 776]) voir dire defendant’s 749 P.2d the first began question was held before counsel hearing preliminary heard, even that he had acknowledged seated and defense counsel jurors; let offer to was going that the prosecution before Buckley’s arraignment, against if testify he would to second murder guilty degree Buckley plead that, of commencement before the shortly It is also noteworthy defendant. dire, his confession to exclude the defendant’s motion granted voir trial court Arizona, Defendant points 384 U.S. 436. supra, the basis of Miranda v. as a Buckley him calling from out that the moved to prosecution prevent self- against Amendment privilege witness order to assert his Fifth remained motion the and that the jury, incrimination the of presence signed that Buckley until after was seated. He also notes the pending statement, made his opening on the the plea agreement day prosecutor negotiations of any the had not disclosed the existence although prosecutor However, to defense circumstances known with counsel, of other Buckley. light de- controlling. Nothing prevented cannot be deemed these facts in hindsight dire in what seems light fense counsel from voir of conducting defend- testify against that would Buckley to have been a realistic possibility to do so.17 ant. He not now about his decision not may complain Penalty Would “Recommend” B. Trial Court’s Statement That Jurors a fair he was of due deprived process, contends and a cruel and unusual punishment, impartial jury, protection against light of the conduct voir dire in 17Appellate suggests counsel that trial counsel’s failure to entirely knowing, of counsel. Due to the Buckley plea bargain, if was ineffective assistance alleged resulting to defendant from trial counsel’s speculative any nature of detriment six of the twelve judge determination because trial told penalty reliable Hovey individual jurors during who decided the guilt penalty phases, dire, that would to make a “recommendation” as to voir be asked they (All were told would be asked jurors they other appropriate penalty. “de- that the word “determine” or “decide” the He also contends penalty.) termination” insufficient to task. jury’s is itself convey ultimacy We disagree. by

A death sentence rest on a determination made may constitutionally a sentencer been led believe for determin- responsibility who has that the (Cald- elsewhere. ing appropriateness of the defendant’s execution lies 239-240, Mississippi well v. 472 U.S. 328-329 L.Ed.2d However, 2633].) 105 S.Ct. review record our of the establishes none could been to the jurors any have under as nature misapprehension defendant, their duty. Hovey Portions of dire the trial voir not cited court’s instructions, and life of counsel that the decision as to arguments emphasized or death was for the Neither nor the trial court jury alone. the prosecutor suggested jury’s decision would be reviewed for correctness We do not trial appropriateness. during believe that the court’s comments voir Hovey dire could have than greater jurors had a on the its impact penalty phase instructions and the We find arguments of counsel. also no merit defendant’s contention that the word “determine” to the jurors conveyed that their task mediate impression rather than final. Webster’s New (2d 1957), International Dictionary ed. at includes among page definitions of “determine” fix “to conclusively authoritatively.” or Defendant was not his deprived body constitutional to a right sentencing fully apprised of weighty its responsibility. Jury’s

C. Unadjudicated Consideration Crimes Evidence 1. Summary

Defendant contends in that the way which the considered evidence of jury previously unadjudicated he crimes committed violated his allegedly rights Fifth, Sixth, under the Eighth, and Fourteenth Amendments to the federal Constitution. he Specifically, (1) asserts that: should have jury been required find unanimously each true allegations of criminal activity beyond reasonable doubt in (2) before them considering aggravation; the trial court in erred admitting evidence of the crimes unadjudicated without first finding beyond a reasonable that doubt defendant committed those crimes.

shortcoming, 72, he fails to show (1990) entitlement to relief. 51 Cal.3d Stankewitz 817, 113 Cal.Rptr. 23].) P.2d [270 793

848 Findings Determining

2. to Make Whether Require Jury Refusal Beyond Proved Doubt Unadjudicated Crimes Were Reasonable delib Defense that the should be instructed to argued jury counsel in crimes unadjudicated erate and make as to each of the five findings the determination evidence. The trial court disagreed, instructing cir whether an unadjudicated activity aggravating to consider criminal as the court cumstance is made each contends individually by juror. erred.

We have in the does not rejected argument past, defendant’s defendant is us to from our decisions. persuade depart prior Although entitled to a unanimous verdict the final determination of jury penalty, law crime any unadjudicated does not a unanimous as to require finding 57, offered Cal.3d aggravation. (People v. Miranda [241 1127].) each 744 P.2d The trial court instructed that Cal.Rptr. correctly make juror proved must an individual determination whether prosecution other criminal considering a reasonable doubt before activity beyond (Ibid.; (1982) 33 Cal.3d activity aggravation. People see v. Robertson 279].) argument, 655 P.2d to defendant’s Contrary unnecessary neither the instruction that it was prosecutor’s argument nor for the jurors discouraged to take a vote on each crime unadjudicated deliberation. Defendant tasks were argues jurors’ complicated and Indeed, were, they difficult. as the deliberative trials processes penalty are. But the received the instructions to ensure uncommonly jurors necessary denied mean reliability of their determination. Defendant contends he is ingful review of his sentence because we cannot know how the appellate much; viewed the evidence. His too courts argument proves reviewing deliberations, can never fact does not probe jurors’ but this inescapable vitiate the appellate process. brief,

For the first time the argument defendant makes reply that the refusal to written require findings unadjudicated offenses specific in the A violated the laws. penalty phase right of equal protection defendant to the under subject of a sentence enhancement section imposition 12022.5 is entitled such a he while a defendant finding, argues, capital against unadjudicated whom offenses are is He fails to alleged recognize not. defendant and the capital subject defendant to the section 12022.5 enhancement are not situated. The enhanced similarly latter receives punish crime; ment for his use of a firearm the a the former commission of receives punishment not for the crimes but for the murder unadjudicated with which he special circumstances of has been found guilty. Unadjudicated Murders Sufficiency 3. of Proof of of evidence admitting the trial court erred contends activity. criminal the Church and to show violent Dowdy killings prior 190.3, circum (b).) in the was shown (§ killings by factor His involvement Tony Brian and Buckley evidence and his own admissions to stantial by He have been excluded because urges Maestas. that the evidence should that defendant did not first a reasonable doubt beyond prosecution prove committed each crime. We disagree.

In when the People v. we observed that Phillips, supra, Cal.3d in the activity seeks to evidence of other criminal prosecution introduce trial, conduct a of it be advisable for the trial court to penalty phase may whether (out of the to determine preliminary jury) inquiry presence there is “substantial evidence each element of the other criminal to prove (Id. 25.) a matter trial activity.” strictly at fn. Such a is p. procedure case, discretion, court The trial such discretion. court this its conducted hearing, a at which the established. killing delicti of each was corpus amply Church, Phillips

As to the murder of David evidence adduced at the similar that later before the hearing—which largely jury— introduced showed that of the summer of while during early part was staying at Brian attended Buckley’s Buckley gave apartment, party defendant, Caldwell, Chris among and others. Church was group people who arrived at the A party about 10 for 10 to 20 minutes. p.m. stayed later, drunk, half hour Church returned alone. Because he was did Buckley Defendant, not want him around. and Caldwell took Church down- Buckley, direction, stairs. At Caldwell’s Fifteen Buckley then returned to party. later, minutes defendant and Caldwell reentered De- Buckley’s apartment. fendant said he had scared Church and slashed his tires with a knife. bicycle and, Caldwell took an ax handle and the keys Buckley’s mother’s car with defendant, went downstairs. saw Church at the bottom of the Buckley sitting stairs. After midnight, he did not see Church The next again. morning, saw a Buckley with 10-speed bicycle slashed tires at the Defend- apartment. ant Caldwell said were they going to rid of the because get bicycle defendant’s knife could be traced from the slashes. the third after the By day party, bicycle was Three gone. after the defendant told days party, Buckley that and Caldwell had killed Church. Caldwell had told already later, defendant, Caldwell, that. A Buckley couple days had Buckley another conversation about the Church killing. Defendant said he hit Church handle, across head with the ax that Church was Caldwell “pretty tough.” later, told how hard Buckley Church was to kill. A week defendant and were Buckley standing outside Buckley’s holding Defendant was apartment. 850 handle,

the ax that he had to it stating throw because there was blood away on it. Helmuth, Church,

Fred a friend of David testified that after the evening the visit to he never saw Buckley’s apartment, Church again.

Dr. Frederick Lovell testified that he examined human remains found under a mound of rocks in a riverbed Aliso near Santa Paula on Canyon July 1986. The was body decomposed, little skin remaining being mummified. Dr. Lovell estimated that the deceased had been dead more than weeks, six to an limit of six ten upper months. After an performing Dr. Lovell autopsy, was unable to determine the A cause of death. compar- study ison of X-rays established that the man dead was David Church. Clearly, adduced at the proof Phillips (supra, 29), Cal.3d hearing apart from extrajudicial defendant’s statements to Brian created a Buckley, reasonable inference that David Church died by criminal and thus agency, sufficed to permit admission into evidence of those statements.

Towler 1253].) Cal.3d 641 P.2d Just statements, as clearly, the weight of must proof, including be described as substantial. trial court allowed correctly go the evidence to to the jury. Jr.,

As to the killing of Jack adduced at the Dowdy, proof Phillips hearing likewise sufficed to permit the introduction of extraju- defendant’s dicial admissions and to warrant of the presentation evidence to the jury. Dowdy’s father testified that he never saw his son after the latter left for where he Albuquerque, was to attend a trade Kim union-sponsored school. Dowdy, dissolved, whose to Jack marriage had not been Dowdy testified about Davis, defendant’s violently possessive behavior toward her. Jane sister, Dowdy’s testified that after a family she saw defendant gathering make a motion toward Dowdy with his hand inside his where Ms. pocket, Lester, Davis knew defendant kept gun. Pam Dowdy’s girlfriend, over- heard the victim and defendant about Kim talking before Dowdy shortly Dowdy’s disappearance. Dowdy to call Lester supposed after the first school, day Sumner, of his trade but did not. Jackie the cousin with whom school, Dowdy was staying while attending last him saw on the early classes; morning of the first of his day he never returned to her home to pick up his clothes. The trade school records showed that attended his Dowdy first classes, scheduled of a week day but did not return thereafter. He would $447.42 have received for completing his classes. evidence,

Based on this the trial court did eir in admitting defendant’s statements to Brian Buckley about his role Dowdy’s That killing. Dowdy that he left his murdered inference from the evidence was was a reasonable with- trade school and behind and without disappeared, completing property a enjoyed or the relatives with whom out ever his contacting girlfriend (See (1991) 233 People Cal.App.3d close v. Johnson relationship. delicti, need evidence 439-442 establish Cal.Rptr. corpus [284 579] [to all death or of negate agency victim’s noncriminal possibilities existence].) victim’s also concluded correctly continued court Buckley, evidence of defendant’s his admissions to guilt, including was Dowdy, with Kim and his assault on Jack relationship Dowdy apparent substantial die enough go jury.18 to to

D. Adoptive Admissions relying contends that the trial court erred

doctrine of Pamela McCormick testimony by admissions to admit adoptive him to the Church linking hearsay objec murder.19 Over defense counsel’s tions, that, the trial court allowed McCormick to on the after testify morning entrance, to which Church she party repeatedly gain had attempted in Brian until her. asleep Buckley’s Feign voices awakened apartment ing she three sleep, recognized the conversation: Chris Cald participants well, Brian and defendant. She had Buckley, they “get heard them say ammonia, rid of his body,” about about something something finding half-gram of cocaine on his She also heard them talk about body. having get rid of his She did not her bicycle. the conversation and open eyes during could not which man made identify of the statements she related. any However, voice, she heard defendant’s as well as Caldwell’s and Buckley’s, during conversation.

The adoptive admission to the rule exception hearsay is expressed Evidence Code section 1221. That statute of a provides “[e]vidence statement offered against a is not made party inadmissible by hearsay rule if the statement is one of which the with party, knowledge of content thereof, has by words or other conduct manifested his or his belief adoption Code, (Evid. its truth.” A 1221.) leading case explicating adoptive § admissions is People v. Preston 9 Cal.3d 308 18There is no merit to unsupported defendant’s contentions that the admission of other- law, crimes evidence in penalty phase denied rights process speedy him his to due to a trial by a fair and impartial jury, to protection against arbitrarily unreliably an imposed death, sentence of by jury and to a trial vicinage of the of the New Mexico offenses. Nor is there merit to his claim that the procedures employed in this trial violated the constitutional prohibitions against jeopardy double and cruel and unusual punishment. 19The trial rejected court the prosecutor’s alternative theory admissibility—that the statements were made by coconspirators—because prosecution it concluded that the had failed produce independent evidence conspiracy. of a Preston, In held

P.2d we a is person having 300]. accused of “[i]f crime, committed a under circumstances him which afford an fairly oppor- hear, understand, tunity and to reply, which do not lend themselves to an inference he was on the relying of silence right guaranteed by Constitution, Fifth Amendment to the United States and he fails to or speak, he makes an evasive or equivocal both the statement and reply, accusatory the fact of silence or be offered an equivocation may as or implied adoptive (Id. 313-314.) admission of at guilt.” pp.

Defendant contends that the statements McCormick related cannot prop- in erly come as adoptive admissions because were they not accusatory statements and called for no particular reply. For admission adoptive however, exception a direct accusation in apply, so words is not many Preston, essential. In for the defendant was with the example, charged murders witness’s mother and The witness testified that stepfather. she defendant, and the along with his were in coperpetrator, the defendant’s “ witness, ‘Suzanne, room. The said to the coperpetrator we went down to house, in, your mother’s trailer and we broke and as we were we leaving, out, in, had everything ready go came and there was an accident they ” Preston, and . . . but they 314.) won’t talk.’ v. supra, 9 Cal.3d at p. “ said, The defendant then looked at the witness and ‘There wasn’t much ” (Ibid.) face, money.’ Although the statements were accusatory on their we concluded accused the in they defendant of the victims’ with being trailer the coperpetrator when the killings took We noted the statements were place. in voluntarily made the course of a in private conversation home. private These circumstances supported inferences that the defendant heard and them, understood the statements and had the opportunity to and that he deny chose to remain silent for an evasive and except statement. equivocal They were, therefore, allowed as properly (See admissions. adoptive People also (1990) Medina 51 Cal.3d 889-891 P.2d Cal.Rptr. [274 1282] and evasive [silence statements defendant in to his response sister’s query why shot were victims properly allowed evidence as admis- adoptive sions, although conversation took while defendant place custody].)

Similarly, this case the indicated testimony that defendant participated without demur a private conversation during which the disposition Church’s remains and bicycle was discussed. The circumstances afforded defendant the opportunity deny responsibility, to refuse to or participate, otherwise to dissociate himself from the he did planned activity; not do so. Defendant complains that McCormick did not testify as to whether he statements, actually heard the but we find it entirely reasonable to infer that fact preliminary from her that he testimony participated conversation. This case is thus distinguishable People from v. Lebell 89 Cal.App.3d Lebell, 840], In on which defendant relies. 779-780 with a murder about his conversation police officer testified telephone Leb The the officer heard called from Lebell’s home and suspect. suspect incriminating in the while the made his suspect ell’s voice background in determining held erred statements. Court of that the trial court Appeal admis that Lebell’s was sufficient to presence support finding adoptive admissions, sion. The heard the suspect’s facts—that Lebell preliminary that there (I established. inadequately was reason or to opportunity respond—were also 780.) at said in this case. Defendant p. same cannot be d. conversation, McCormick, notes that her during who shut kept eyes defendant, such as a would have been unable to a silent response by observe what, look, shocked that she was unable to tell which of the said participants and that she had a lot of cocaine the His observa ingested preceding night. tions to the than her go weight testimony.20 rather admissibility

Moreover, the court admis- appropriately jury adoptive instructed sions, it to view them to defendant’s warning Contrary with caution.21 assertion, the which McCormick jury was not told to view the statements to defendant; rather, testified as admissions after admis- by defining adoptive sions, the trial court were jurors judges instructed that the exclusive they of whether an admission was made and of its truth. Defendant adopted that the trial argues court’s instruction was deficient for failure to require to consider whether there were admissions made that defendant could adopt. Examination of instruction us to compels disagree.

E. Exclusion Evidence Summary

1. Defendant contends the trial court erred certain prejudicially excluding evidence at the He penalty phase. argues that Jackie Sumner should have been permitted (1) had in her testify Dowdy confided that: had life; heard that Kim had Dowdy out a contract on his there was put cross-examination. Because have been made the defendant may conduct manifested his adoption whole or in true. you find that it is true as to uted to statement which the 20Defendant 21 The trial court instructed the jury [D whether an Caldwell, Evidence part. also by [J] adopted his claim lacks merit. of an Caldwell, be an urges If defendant, you in whole or adopted admission was made that, adopted should defendant cannot he was with or belief in the truth thereof. admission should be viewed with caution.” find that the statement was not the extent McCormick testified to statements that admission of the defendant. An knowledge denied his Sixth Amendment part, as follows: “A statement made you may identify any and, of the content if consider that so, whether such statement ^[1] thereof, You made, rights part adopted are the by has words or other which you of confrontation and admission someone other than McCormick exclusive must admission is a you reject find to be is true in judges attrib might it. If himself; (3) he battle custody between Kim and enmity anticipated erred in sustaining over their infant He also that the trial court argues son. whether to a Pam Lester hearsay objection asking prosecutor’s question latter an individual “Ted” had told her he had after the Dowdy called seen defendant contends that the trial Finally, to have supposed disappeared. him an court erred in to allow that he had refused offer refusing testify parole. for a sentence of life without plead guilty exchange possibility We separately. consider each of these contentions Dowdy’s

2. Statements to Sumner cousin, with his Jackie before he Dowdy spent night disappeared Sumner, cross-examination, her On defense counsel at home Albuquerque. if asked Sumner had talked with her about a battle over Dowdy custody son. The trial To demon- hearsay relevancy objections. court sustained Dowdy strate defense counsel made an offer of that Jack relevancy, proof life, Kim there was a had heard that a contract out on his that Dowdy put Kim was great Dowdy deal of between Jack and and that enmity Dowdy, hearsay concerned a custody Regarding about battle over his son. Kim objection, impeach Dowdy, defense counsel offered the statements to who, between had earlier testified that there was no represented, problem her and of their son. they relationship Jack and that maintained a because “unreliable,” sustained the on Finding objection statements trial court both grounds advanced prosecutor.

Defendant now were not but hearsay, contends that statements rather went to state of mind before he We Dowdy’s shortly disappeared. Kim agree. Dowdy statements could not have been offered to that prove Jack, in had fact between Jack put enmity contract out on or that there was Kim, were, however, imminent; that a custody they or battle was relevant suggest attitudes or beliefs that have led Jack to choose to might Code, 1200, (See (a).) without a nonhear disappear trace. Evid. subd. As § evidence say (i.e., relevant to a issue whether was murdered disputed Dowdy or had it should have been admitted unless some voluntarily disappeared), Code, (Evid. 351.) other rule dictated its exclusion. No such rule is § suggested to us. not, however,

Defendant’s trial counsel did raise this ground specifically In these admissibility. circumstances he is from precluded complaining Code, 354, Court, (Evid. appeal. (a); Superior supra, subd. v. § Lorenzana 640; Cal.3d at People Frye, 950.) v. p. supra, 166 at Defend- Cal.App.3d p. ant also in suggests his trial counsel’s this performance respect consti- (See tutionally inadequate. People Pope, supra, 425.) v. 23 Cal.3d at p. We deficient, however, need not decide whether trial counsel was because defendant to relief. cannot event establish the any prejudice requisite Stankewitz, 113.) In the evidence supra, 51 Cal.3d at p. light for effect admitted to three witnesses his responsibility death, it more favorable to Dowdy’s is not that a result reasonably probable him would have resulted excluded testimony. from of the presentation

3. Pam Lester’s Conversation With “Ted” hearsay

Defendant claims error trial court that sustained rulings and relevancy objections to aimed at the out-of-court questions eliciting statements of a man who claimed to have seen after the latter’s Dowdy disappearance. Asked “Did ever hear you anyone from had seen they Mr. Pam Dowdy?,” Lester the affirmative. She testified that responded seen, about two weeks after man Ted Dowdy calling was last himself Ted, seen, visited her. She described whom she had never before some detail, and stated she gave this information to a detective. When defense her, counsel asked Lester what Ted exactly told the trial court sustained the prosecutor’s hearsay objection.

Defendant does not that defense called hear- deny counsel’s for question say, but contends he is entitled ato relaxation of the rules of evidence. We The disagree. proffered lacks indicia of testimony reliability sufficient to its compel admission under the authority Georgia (1979) of Green v. 738, U.S. 95 2150], L.Ed.2d [60 99 S.Ct. in the absence of especially any showing as to Ted’s or identity to relationship Dowdy. we find Consequently, error, otherwise, no event, constitutional or in the trial court’s In ruling. any on cross-examination Lester stated she had met a man who claimed to have seen Dowdy after his disappearance that she had a detec- so informed tive. that, Defense counsel thus succeeded in the suggesting to jury contrary to the prosecution’s theory, was Dowdy still alive.

4. Evidence Plea Offer Defendant’s Refusal

Defendant urges the trial court erred excluding evidence that the offered, prosecutor refused, had and defendant had the opportunity plead guilty murder and testify against Caldwell and in return Buckley for sentence of life without possibility of parole.

Defense counsel sought introduce evidence of defendant’s refusal as mitigating character evidence showing loyalty to his friends. After a series of hearings, the trial court ruled the evidence inadmissible under Evidence Code section 352. The trial court reasoned that the low probative value of

the evidence misleading the of its outweighed by danger confusing The jury. trial court also found a of undue possibility consumption time.

We find no abuse of discretion and of constitutional guaran no violation true, contends, in the While ruling. tees it is as defendant a capital must present jury be allowed to all relevant evidence to mitigating 1, 4 1, 6-7,106 (1986) S.Ct. (Skipper South Carolina 476 U.S. L.Ed.2d [90 973, 989-990, 1669]; (1978) Lockett v. Ohio 438 U.S. 604- L.Ed.2d [57 2954]), 98 S.Ct. the trial first instance and relevancy court determines retains substantially discretion to exclude evidence whose value is probative outweighed by probability that its admission will create substantial Code, 352; danger (Evid. the issues or confusing misleading jury. § see, People v. Allen 1284-1285 e.g., Cal.3d 115].) 729 P.2d refusal trial court’s determination that defendant’s of a offer fell into the evidence plea clearly of excludable was not category wrong. character,

As an indication of was mean- defendant’s refusal itself ingless. disputes argued this conclusion. Trial counsel mere fact of defendant’s he friends. refusal tended to show that was loyal counsel now evidence that de- Appellate suggests additionally showed fendant would well in inno- get along that he believed his own prison, cence, and that was to trust the While it is true willing judicial system.22 of the any may characteristics defendant have been a factor posits refusal, it is also infer possible to other reasons not so reflecting favorably on defendant’s character. The mere declined fact that defendant the plea offer could not have determine the significantly helped appropriate penalty.23 offense, 22He provides further asserts it some insight into the circumstances of the but fails explain might how this be so. Additionally, points up he contends his refusal the difference deliberations, however, between his Buckley’s. Penalty phase character and do not involve a comparison coperpetrators (See of or their People sentences. v. Johnson 47 Cal.3d penalty phase capital 767 P.2d focus a of a trial 1047] [“The case is on the offender.”].) character and record of the individual compares 23Defendant prosecutor’s refusal of the with the plea prosecutor’s offer refusal of defense against witness Frisilone’s offers to He testify defendants in other cases. claims that if (as the latter was relevant to show Frisilone’s bias the trial court instructed the

jury) and excessively was not confusing limiting given, when a instruction was so too was character, defendant’s refusal of the plea unduly confusing. offer relevant to show his and not comparison The is unpersuasive. The fact that prosecutor denies a would-be witness the expected benefits proprosecution testimony of is relevant because the denial makes it more likely than otherwise would be the case against prosecu that the witness will be biased the Code, (Evid. (f).) tion. subd. The mere plea fact that defendant refuses a offer is not § similarly probative any proposition of mitigation. related to refusal, additional inquiry bare fact the To to the of supply meaning Such examina- would underlying required. the reasons have been regarding tion, concluded, mislead and confuse as the court had the potential trial the trial court abused its we cannot jury. Consequently, agree refused the offer. plea discretion the evidence that defendant excluding was because Defendant contends that exclusion of the evidence improper “background,” his refusal “record” and plea part offer was of his such, he could not be inasmuch as it and involved him. it happened urges, As 190.3, (k), in excluded He too much section factor as cumulative. reads into of every that a defendant entitled to evidence implying put jury is before event ever that has to him. happened

Defendant fact the offer was argues also that the made prosecution relevant and admissible do not fact that agree. character evidence. We made, refused, the offer like fact that it was is susceptible alone, numerous inferences. it no on defendant’s char- Standing light sheds acter, and would mislead rather than in its determina- likely assist out, tion. As the an rather People point may leniency such offer reflect than a belief that the defendant crime is less for the Defendant culpable charged. notes that the could have testified to his prosecutor making as reasons for However, could, did, offer. the trial court as it conclude that such properly testimony would have the trial and drawn unduly prolonged jury’s attention to issues having bearing no factors. aggravating mitigating

Defendant asserts that the allowing California Constitution favors defend- offers, ants to evidence present since plea bargains are disfavored. plea (See A 1192.7.) rule § admission allowing rejected by offers which plea defendants capital cases could have avoided death penalty might indeed deter prosecutors from of death using charges threats penalty However, coerce plea bargains. defendant cites no for the authority notion that such extrinsic policy concerns should inform the trial rulings courts’ under Evidence Code section 352. refusal, argues that in excluding evidence of his the trial

court erroneously on him the placed burden of evidence sufficient producing to persuade the jury to return a sentence other than death. His interpretation of the trial court’s is ruling unsupported the record.

E “Multiple Claimed Counting” Aggravating Factors of 8.84.1,

Defendant complains that CALJIC No. as read to the jury, invited improper “multiple counting” of the of unitary course conduct juror He reasonable murder Urell. his of Thomas contends

involved Urell as circumstances of considered the facts of the murder first would have crime, 190.3, (§ (a)), and third as as factor special second circumstances 190.3, (b)). He also (§ argues factor activity instances of other criminal and burglary would “stacked” the robbery have juror improperly reasonable instruction, These in the he circumstances of the Urell crime. defects special Fifth, contends, Sixth, Fourteenth his and Eighth, violated under rights Amendments. in the that the instruc- past, holding have rejected arguments

We same each special invite neither to jurors “weigh” tions as a whole reasonable 713, (1988) 44 768-769 (People [244 circumstance twice v. Melton Cal.3d of the 741]) present 750 P.2d nor to count circumstances Cal.Rptr. (1988) Bonin (a) (b) factors of section crime under both and 190.3 1217]). This case is 758 P.2d 46 Cal.3d decisions, argu- our earlier since governed by nothing prosecutor’s Urell evidence to use of the improper ments invited make the type suggests.24 that defendant Motion to

G. Denial Limit Cross-examination of Defendant his motion to the trial court erred denying contends himself, reasons at the to his for limit cross-examination of penalty phase, course, have determined that plea his of the Of since we rejection bargain. excluded, largely claim is moot. plea evidence of However, offer was this properly him to this denied his ruling right testify, since defendant contends following we make the observations. to his the offer if he only

Defendant wished refusal of testily regarding In could be shielded from to the trial court’s response cross-examination. offer, that he would he defendant ruling why rejected have to explain made, it, offered to that he there testify rejected offer (1) were three reasons for that he stipulate it: did not want to rejecting (2) the rest of his life in he without spending prison possibility parole; friends; did want he testify not considered to be his against people that would be concerned about the rest of his life extremely spending labelled an The trial if state informant. court ruled that defendant so prison testified, the prosecutor then would be entitled to cross-examine friends, on his character traits and helpfulness loyalty including Jack Jr. Defendant did not trial Dowdy, testify, now contends the court’s denied him his ruling his own right testify defense. agree chart, prosecutor’s 24Wecannot with various listing types defendant that use of a may may implied

of murders for which the or penalty improperly death be appropriate, discussion, (See factors seq.) that section are 190.3 to be counted. 860 et post, p. at

859 true, course, It is when a defendant that chooses to on his testify “ behalf, the own self-incrimination serves ‘to the privilege against prevent from the case and effect prosecution questioning upon generally, [him] ” 761, him making (1969) its own witness.’ v. Schader 71 Cal.2d (People 1, 841], (1893) 457 P.2d People Gallagher v. 100 Cal. quoting [80 466, Const., Const., V, XIV; 80]; I, 15; P. Cal. art. U.S. Amends. [35 § Code, 773, see (a).) also Evid. subd. “Such cross- general compelled § examination would only same ‘cruel trilemma of self-accusa pose tion, Com., or perjury recognized Murphy v. contempt’ Waterfront 52, 678, 681, [(1964)], 1594]; 378 U.S. L.Ed.2d 84 S.Ct. it would [12 also deter penalize thereby a defendant’s assertion of his to take the right witness stand to or contradict a of the case explain particular aspect against Schader, 770, him.” v. supra, omitted.) 71 Cal.2d at p. fn. As asserts, the breadth waiver of his is determined privilege testified, of the scope he he he testimony presents. Had as friends, proposed, regarding his reluctance to testify against his the prosecu tion would have been entitled to introduce evidence through cross-examina tion that or explained refuted his statements or inferences necessarily them, be drawn from or that tended to overcome or the effect qualify testimony given (Id. direct 770-771.) examination. at An inference pp. naturally to be drawn necessarily from the fact of defendant’s reluctance to testify against his friends is that he possessed traits of loyalty, helpfulness, or concern toward them. Given the testimony defendant and Jack friends, were Dowdy longtime the trial court ruled that the defend properly ant could be cross-examined matters regarding bearing on his loyalty, help fulness, or concern toward Dowdy, although could not be cross-examined the Urell regarding or Church killings.

H. Lack Requirement Jury That Return Findings Written

Defendant contends that the trial court’s failure to require to make written findings regarding truth of the alleged aggravating circumstances and other determinations violated his rights under the in its choice implicit sentencing

Fifth, Sixth, Eighth, Fourteenth Amend ments contention; federal Constitution. We reject his written findings disclosing reasons for the jury’s penalty determination are not required. Belmontes, (People (9th v. 805; supra, 45 Cal.3d see also Harris Pulley 1982) Cir. 1195-1196, 692 F.2d vacated and remanded on other grounds, Pulley v. Harris 465 U.S. 37 L.Ed.2d 104 S.Ct. 871].) I. Prosecutor’s Alleged Allusion Penalty During Phase Guilt Phase Opening Statement complains in the impropriety prosecutor’s guilt

phase opening statement tainted the jury’s penalty determination. Near the

860 statement, the evidence to outlining expected prove, end of his after what evidence, at the gentlemen, that ladies and the said: “Based on prosecutor Fauber first guilty I will ask find Curtis of you end of the guilt phase, “guilt use of words phase” murder.” Defendant asserts that the the degree the guilt would a that inevitably phase, phase that there be implied penalty failure object. was a Defendant waived the point by merely formality. Green, event, 1, 27.) In supra, we find it meritless. any 27 Cal.3d a of that verdict remotely suggested in the statement Nothing prosecutor’s dire, And, were well jurors after voir the guilt foregone was a conclusion. is called the capital guilt the the initial of case concept part any inured to that phase. Phase Penalty Argument Use Chart During Prosecutor’s

J. of People v. Brown Cal.3d Citing 512 [220 440], were violated rights 709 P.2d defendant contends his constitutional argument.25 use prosecutor’s during phase closing the of a chart penalty murder, with a chart set the statutory categories forth various graphically record, a prepare and could not part parties 25The chart itself not made a the the However, judge saw the chart. regarding settled statement its contents because the trial never during argument. The relevant prosecutor referred in some detail its contents “Now, and argument guidelines. start with In portions of the are as follows: let me some appropriate was an People penalty State of California voted that death provides that penalty some crimes. initiative was enacted into law and the law for That later degree special with circumstances. The law penalty appropriate death is for first murder provides that the is not for less than that. Second penalty appropriate also death murders murder, instance, degree degree for the death First murder appropriate penalty. is not for Only death available. murders special penalty without circumstances does not have the special committed with circumstances. available, provides penalty “And those crimes have the death but law further penalty death For always appropriate special is even for murders with circumstances. instance, you agree robbery think of a young supermarket I would all man committing clerk, panics gun who when the fall goes probably clerk for a and kills the that that would not though into type penalty appropriate the—into the crimes where death would be even it’s available. this, “So graphically I a little here. And this line in the demonstrate have drawn chart point middle this indicates that at which the death is available. All of the crimes above penalty line penalty special would be crimes where the death is available. And it starts with murder By circumstances. Crimes line are where the is not available. penalty below this crimes death you impose penalty. law could not death degree special “First murder. Premeditated murder without circumstances does deliberate degree not have the death murder below and the penalty available. Second is a notch penalty death is not available for that crime. “Now, said, that special as I even the death is available murders with penalty if for circumstance, Now, somewhere, it’s not always appropriate. put up I that line here that all line, special appropriate, murders with circumstances above is penalty this death below this line it’s not over I have out appropriate. And here on the left have drawn—I written aggravating factors pointing top mitigating pointing toward the factors toward the bottom. you “What aggravating the law wants to do is to factors and consider all consider all of these from the death is unavailable legally line those for which penalty separating available, mitigating aggravating which it is and listed legally those for of the chart second line the section through factors. The drew a prosecutor circumstances, separate with to cases depicting degree special first murders from those argued appropriate which he the death would be penalty which it be but legally inappropriate. would available the circum-

The was to consider argued jury’s that the function prosecutor crime, the penalty stances the Urell evidence adduced at of the other-crimes a reason- guilt if it such evidence defendant’s phase proved beyond believed information, doubt, the able and the all of that background. defendant’s From stated, the prosecutor was to decide the jury penalty. appropriate Defendant that the use chart that scales and complains very implied of a lines should used that the is one of determining process be and penalty, We numerical rather than and computation judgment. disagree. evaluation whole, the Taking as a we find it that the argument readily apparent prosecutor care the any took to avoid such mechanistic approaches over, decision. Over and he the sentencing necessity considering of of spoke individual, all relevant factors. he the Repeatedly subjective emphasized nature of the determination. isolates the penalty prosecutor’s Defendant exhortation to “subtract out the the and see mitigating aggravating from chart,” where you end been up this the must have misled. claiming jury cites, however, The was reference language immediately followed by the standard embodied in (“And 190.3 if find you aggravat- section that the factors, ing factors the substantially outweigh you then mitigating may the impose death and a the penalty.”) by reminder that law does not mandate these mitigating factors and mitigating subtract out the and see aggravating from where you up end on this chart. And that you aggravating substantially outweigh if find factors mitigating factors, you may then impose penalty. again, discretionary. death But even that’s Youdon’t have to. “Now, I obviously people think that there are history way up that are on the here chart way out sight. Genghis of Mengele somebody Khan Doctor or or like that. But in this courtroom, you are decide penalty appropriate whether death is for Curtis Fauber and you are to consider the crimes—the crime that guilt phase, he was convicted of in the circumstances of that crime. You are you to consider the that heard in the penalty crimes about phase you doubt, if find them true beyond you a reasonable are to also consider all of this background about the you defendant. So are making your decision based on the crime itself the background of defendant. “Now,this line here up obviously very subjective is thing. you a Each will a have of different point your you particular mind where a that and a crime particular deserves feel the death penalty, that the is penalty appropriate. death all you Not will that same have point. But when we reach point where all that you agree particular defendant with a particular background and particular crime penalty, you deserved the death then will be speaking as the moral conscience particular (Italics community for situation.” added.)

862 You even don’t (“But again, discretionary. death that’s imposition v. People was under to.”). The not erroneous argument have prosecutor’s Brown, to us. Cal.3d or other decision cited supra, any Boyd K. Error Claimed permitted jury improperly contends Boyd evidence. nonstatutory aggravating

consider 782].) alleged The 700 P.2d prosecutor Cal.3d Kim Dowdy. defendant on evidence of three assaults presented the show purpose that “Evidence has been introduced for was instructed following activity: defendant committed the criminal ing that the Kim with a Dowdy gun; In and threaten “(3) he did assault April <6 14, 1986, Kim Dowdy he did and threaten

“(5) On or about assault May with knife . . .” a 190.3, that, (b),

Defendant out be admissible under section factor points to and in- criminal statute evidence must show conduct that both violates a Belmontes, or violence. 45 Cal.3d at supra, pp. volves force 808-809.) He a threats required only finding these instructions complains This, to he de- urges, Kim not a of a Dowdy, penal violation statute. Fifth, Sixth, him the and Fourteenth prived protections Eighth, under Amendments. Quite a contemplate

Defendant misreads the instructions. they plainly, that defendant Kim did finding Dowdy. They both assaulted threatened in not allow mere threats The instructions to be considered aggravation. in aggravation, directing jury recited assaults not specific alleged enumerated, activity, consider evidence of criminal than that any any other as an factor. not have misled aggravating Accordingly, instructions could into a jury considering threatening amounting additional conduct not violation of a penal statute. Maestas,

Defendant also notes that the heard Km jury by Tony testimony uncle, threats Km and her he Dowdy’s relating against defendant’s family; excluded, argues the and should and that testimony hearsay was have been Further, was he trial counsel ineffective not admission. objecting to its threats as told the to consider those jury contends the instructions improperly We Since defendant’s threats aggravating reject evidence. contentions. their exclu- were a rule would not hearsay require admissions party, Code, And, above, instructed not (Evid. 1220.) jury sion. as noted § enumerated criminal conduct other than the aggravation consider any assaults and murders.

L. CALJIC 2.11.5 No. instructing the trial erred contends that court

with a modified version of at the As penalty phase.26 CALJIC No. 2.11.5 given, the read has this instruction as follows: “There been evidence case than have indicating may other the defendant was or been person involved the criminal which activity alleged it is committed. You discuss or as to any why must not consideration give [SD other person is or whether has or will be being prosecuted prosecut cautions, ed.” As the use note this instruction should not be accompanying witness; given when the it alternatively, to whom refers is a person limiting instruction be may eliminate confiision as to appropriate any possible which is person referred that the to. contends of this giving error, instruction was as it the it misled into that could not jury believing consider the fact that the was not for Church Buckley being prosecuted in killing assessing his credibility.

We do not believe the could have been misled. The jury instruction was directed at Caldwell’s in involvement the of David murder Church. To accept defendant’s contention that the jury might have understood the instruction as applying Buckley, to we have would to find that it the ignored court’s instructions on and accomplice testimony disregarded and coun- credibility, sel’s efforts to discredit his v. Buckley closing argument. (People Belmon- tes, 783; supra, 45 Cal.3d at see p. (1991) also v. 53 People Sully Cal.3d 1195, 1218-1219 163].) 812 P.2d the Cal.Rptr. [283 instruc- Reading whole, tions as a we do not believe a have juror reasonable would under- stood them in the way defendant suggests.

M. Requested by Instructions Refusal of Defense

1. Instruction on Lingering Doubt Refusal of People

Citing Terry (1964) v. 61 Cal.2d 137 Cal.Rptr. [37 381], P.2d tiiat the proposed be instructed as jury follows: “Pos sible innocence is a mitigating factor which you may consider in determining 26Defendant also contends it was error to read jury guilt CALJIC No. 2.11.5 to at the the however, phase; a search of the record reveals given guilt that instruction was not at the phase. are to demand a greater this case. You permitted

the appropriate penalty Therefore, death penalty. of the guilt imposition for degree certainty may of Defendant guilt doubt have any lingering you may concerning a factor which to base a sentence be considered as by you mitigating upon instruction, but give than The trial refused to the requested less death.” court that the Defendant contends argument.” commented that “this is appropriate due his to rights refusal to doubt instruction violated give lingering law, cruel unusual punishment, protection against process unreliably imposed, death that is arbitrarily freedom from a sentence by to trial a fair and impartial jury. 351],

In P.2d People v. Cox 53 Cal.3d 618 offering may we that while a defendant not be from precluded concluded at the evidence on doubt arguing lingering mitigation or relevance federal neither and Fourteenth Amendments to penalty phase, Eighth in- be jury Constitution nor the California Constitution require structed to residual as to the extent of defendant’s participa- consider doubt offense, 677.) (53 We tion Cal.3d at except statutorily provided. p. as 137, which Terry, v. 61 Cal.2d holding People supra, noted our relies, an obligation defendant here neither nor imposed contemplated mandate to “Terry instruct on doubt. established no constitutional lingering so; guaranties do and defendant offers rationale for our state interpreting no Cox, more than any stringently federal comparable provisions.” did, however, 678.) matter of supra, 53 at p. Cal.3d We observe “[a]s mandate, of law any must ‘on statutory charge points court issue, thus, [citations]; if it may required to the be pertinent requested’ when give formulated doubt instruction warranted properly lingering 678, Cox, 20.) We the v. at fn. supra, p. evidence.” Cal.3d rejected erroneously the defendant’s instruction in Cox because it proffered in manner. evaluate a prescribed jury lingering particular doubt (Ibid.) the instruc- Assuming argument proffered for sake of that defendant’s the tion suffered similar we are unable to conclude that infirmity, no still Trial court’s caused give prejudice. refusal to the instruction proffered counsel did that decision residual argue any not should base its on jury fact, In doubt as defendant’s Urell. counsel— guilt to of the murder of (see People mindful of the v. perhaps pitfalls lingering arguments doubt Webster 54 Cal.3d 814 P.2d Cal.Rptr. [285 1273] unwise, doubt’ risk ‘Lingering arguments they antagonizing are often for [“ found stated jury already specifically has defendant guilty.”])—twice so, that that issue had decided. without and already been Even comment without he read the text of his instruc- objection, lingering doubt proposed circumstances, tion to the Under these we do not believe defendant jury. would have derived benefit been any requested additional had the instruction given. Mitigating

2. Facts Specific Instruction Refusal of rights Defendant contends the trial court violated his under Fifth, Sixth, the federal and Fourteenth Amendments to Constitution Eighth, as The instruction read by refusing jury instruction special proffered. in to the factors mitigating follows: “Defendant added request [sic] diffi HQ HQ 1. 2. Personal family CALJIC 8.84.1: Defendant’s ties. loving to California culties or 3. waiver of extradition to come deprivations. His HD The to stand trial. 4. His his friends. 5. caring and towards sensitivity H] HD alleged any absence criminal conduct to or after incidences prior [szc] this trial.” The trial court instructed the jury language instead No. court the following CALJIC 8.84.1.27 trial also read instructions requested by defendant: and are pity for considerations

“Mercy, sympathy proper case, determining this should find them to be warranted penalty you under solely the circumstances. Evidence of related factors mitigating H[] the defendant’s and background carefully and character must be weighed as may serve a basis for a sentence death.” less than so, Although court was not it obliged following to do also read special instructions requested by defendant: case,

“In determining this are penalty you obligated weigh defendant, consider evidence that the ‘was a man quote, loving helpful friends,’ in his with relationships his relatives end Such evidence quote. is for your consideration or proper as whether determine to you spare the defendant’s life.”

The trial court err did not in refusing defendant’s give special instruc tion. In large it part duplicated (People Wright other given instructions 1126, 1134 (1988) 45 Cal.3d 1049]); 755 P.2d it also was i.e., flawed in that it argumentative, it merely highlighted certain aspects 8.84.1, portions case, 27Peitinent of CALJIC No. as provide read to the in this as follows: determining defendant, “In penalty imposed which is to be on shall you the all of consider the evidence which has during any been received part you of the trial of case except this as may be hereinafter instructed. consider, factors, “You shall take into guided account and be the by following applicable: if “(k) Any other circumstance gravity which extenuates the it though of the crime even is legal not a excuse any for the crime and sympathetic or aspect other the defendant’s death, character or record that the defendant as offers than basis for sentence less whether or not related to the offense for is which he on trial. “You disregard must any jury given you guilt instruction to in the phase or innocence this trial which conflicts with this principle.”

866 at issue legal further the standards illuminating of the evidence without 842, 375, 44 749 P.2d (1988) 442 (People Cal.Rptr. v. Howard Cal.3d [243 754, 279]; (1990) 804-806 People [276 see v. Benson 52 Cal.3d also 1223, 827, 330]; Cal.3d (1990) Gordon 50 People 802 P.2d v. Cal.Rptr. 451, 251]). The our given, 792 instructions 1276-1277 P.2d Cal.Rptr. [270 view, guid the sufficient theory provided covered defense adequately the ance to jury. sentencing the defendant is that inapplicable

To extent that complaining instructions, the we have resolved already factors were deleted from jury 502, 551 (1989) (People that issue to him. v. Bell 49 Cal.3d unfavorably [262 1, 129].) 778 P.2d Cal.Rptr. Modify

N. Automatic Verdict Application court reversed the trial urges sentence be because before his auto denying read and materials outside the record considered 190.4, The record (§ (e).) the subd. modify matic verdict. application 16, the was held on 1988. hearing application May shows on did not been filed. trial court report Although had probation previously the applica state it had read the before on expressly probation report ruling verdict, it had done modify tion to the record the inference that supports (most so. The trial letters attached to the certainly report court had read the defendant, been of which two had support although were written Church). friends by submitted a relative and of David The trial the verdict court must decide for modification of application course, evidence—which, the basis include the of the does not 190.4, Cal.3d (§ (e); (1988) subd. v. 45 probation report. People Williams 1268, 834, 221].) 1329 Consideration of the Cal.Rptr. proba 756 P.2d [248 for tion or on the report victim-impact ruling application statements before therefore, is, 287 (1990) modification error. Lewis Cal.3d (People v. 50 has 892].) P.2d even when trial court But [266 we considered such extraneous on the ruling information application, court, assume there specific has been no influence on the absent improper 103, 150 evidence to v. Cal.4th contrary. Bacigalupo 559]; Adcox, 274.) supra, 820 P.2d Cal.3d at Cal.Rptr.2d People p. The record in this case demonstrates that the trial court’s review of extraneous resulted in The court information no defendant. prejudice 190.4, indicated its remarks that aware subdivi- through it was well section (e), sion required guided determination be based on evidence referred 190.3. aggravating mitigating circumstances section modification, we find it From the statement of reasons for denying court’s Urell murder clear that the the evidence of the gave greatest weight court feelings killings. Acknowledging expressed and the Church and Dowdy friends, relative in the and the letters from Church’s and probation report said, I than I am heard more by court “I’m the evidence that persuaded by members, on the members one family family letters from comments from and in Mr. other.” Defendant complains side letters of Fauber on the support in fact influenced by this statement indicates the trial court was some and the remark indicates small probation report Although letters. influence, we that the quantum of find no reasonable improper possibility Benson, trial court’s affected 52 Cal.3d at supra, error its decision. v. 812.) p. that, even the United complains after States Supreme U.S. __ [115 Payne

Court’s in (1991) decision v. Tennessee L.Ed.2d 2597], 111 S.Ct. which overruled bar to of certain forms of presentation evidence at the in v. victim-impact recognized Maryland Booth penalty phase (1987) 482 U.S. 496 L.Ed.2d 107 S.Ct. and South Carolina v. [96 2529] 2207], Gathers 490 U.S. 805 L.Ed.2d 109 S.Ct. use of the opinions of victims’ families a verdict modification regarding punishment violates the if we proceeding Eighth disagree. Amendment. We Even were record, able to on this “used” say, trial court of the opinions families, victims’ “the broad holding of Booth and Gathers does not extend to proceedings relating to the modification a verdict application for of Benson, death under 190.4(e).” (People supra, 812.) section at p. 52 Cal.3d O. Reliability Penalty

Finally, complains process which unreliable, sentenced to death was arbitrary Eighth Amend violating essence, ment of the Federal In he argues Constitution. that the prosecutor acted death arbitrarily seeking the him than penalty against rather Brian Buckley, and that a conviction and sentence largely bargained- based on the for testimony of is coperpetrator constitutionally unreliable cannot stand. He also reiterates his claims that occurring various errors both of trial phases undermined the We validity rejected his sentence. have his claims of error prejudicial elsewhere reject this We here defend opinion. ant’s contention that the between disparity his sentence and Buckley’s, itself, or the fact that testified Buckley reflects an pursuant agreement, arbitrary application of the law. That received a sentence lesser Buckley cannot mitigate Belmontes, the gravity of defendant’s (People v. wrongdoing. supra, 45 811-812.) Cal.3d at pp. in this case heard evidence defendant’s crimes and determined that in of his light background

868 He penalty. Urell death was the appropriate role the murder of Thomas him Eighth the consideration guaranteed received the individualized which his in the process by We find no constitutional infirmity Amendment. sentence imposed.

Disposition

The is affirmed. judgment Kennard, J., Arabian, J., Baxter, J., J., Lucas, J., George, and concurred. C. review, I no have found MOSK, J. After judgment. concur the I reversible error or other defect. have erred

I write I that the trial court may because believe separately of plea bargaining when it the motion to exclude evidence granted People’s offered, and had they at the evidence that penalty phase—specifically, first murder degree an rejected, plead guilty defendant had opportunity life under receive a of imprisonment circumstances sentence special Buck- for Brian exchange testimony against without possibility parole irrelevant the offer People’s Caldwell. court found ley Christopher relevant, contrast, but rejection and of it found defendant’s By itself. view, In each determina- my more than substantially prejudicial probative. open tion is to question. with, is relevant: begin plea bargain arguably

To offer of the People’s it defined. This conclusion broadly bears the circumstances of the offense Federal is with the Amendment of the Constitution. plainly Eighth consistent The statu- It under Penal section 190.3. appears compelled Code practically the offense tory provision declares that evidence of “circumstances” of People v. Edwards are In 54 Cal.3d admissible at penalty phase. 436], held P.2d this court Cal.Rptr.2d scope the term the “immediate context of beyond spatial” extends temporal crime to morally, logically’ which surrounds or materially, *“[t]hat [it] . ...” A a crime surround” plea bargain involving “logically must an concerning crime. The is virtually tautological: disposition proposition sure, seem offense concerns To be the evidence does not offense. strongly relevant. But it relevant degree. does seem to some

Next, defendant’s substan rejection plea is bargain arguably more than As the itself tially recognized, trial court prejudicial probative. evidence testimony prof is indeed relevant: with conjunction offer, fered on his reasons for it has to show refusing tendency some course, Character, character for loyalty those considered his friends. (see, a material issue in under Penal Code section 190.3 e.g., is mitigation 762, 1, People Boyd (1985) v. Cal.3d 772-776 700 P.2d 38 [215 782]) (see, (1986) v. South Carolina Skipper Amendment Eighth e.g., 1, 1, 6-7, evidence, too, 4 1669]). U.S. This does L.Ed.2d S.Ct. [90 seem But neither strongly particularly not relevant. does it mischie appear Therefore, vous. it be deemed more than prejudicial probative—and cannot certainly not so. substantially

Although the trial have erred may court under both California law and the United States Constitution when it motion granted to exclude People’s the evidence of reversal be plea bargaining, required. would not actual —and proper—focus penalty of the was defendant and his phase capital noted, crime. As evidence does seem question strongly relevant. Hence, little, Therefore, it would if have added value. marginal anything, any error could not any have affected outcome within reasonable possi bility, must be held harmless beyond a reasonable doubt.

Ashmus 54 Cal.3d 820 P.2d Cal.Rptr.2d [stating 214] the standards for for federal error and prejudice constitutional for state-law error bearing on in a case].) penalty capital conclusion,

In defect, having found no reversible other I error or concur the judgment.

Appellant’s petition for a rehearing September denied 1992.

Case Details

Case Name: People v. Fauber

Court Name: California Supreme Court

Date Published: Jun 18, 1992

Citation: 831 P.2d 249

Docket Number: S005868

Court Abbreviation: Cal.