Lead Opinion
Defendant David Rey Fierro was convicted by a jury of first degree murder (Pen. Code, § 187)
I. Facts
A. Guilt Phase Evidence
1. The Prosecution
On the evening of January 6, 1985, Sam Allessie was robbed and murdered in front of the small grocery store which he owned with his wife, Trudy, in Glen Avon. Defendant, who was on parole for burglary, was arrested two days later. He was linked to the crimes by eyewitness identifications, fingerprints which he left on the victim’s truck, bloodstains in his car, and money from the robbery found in his wallet. As recounted at trial, the facts of this tragic episode unfolded as follows.
About 6 p.m. on the evening in question, Sam and Trudy Allessie were preparing to close their store for the night. As was their custom on Sunday evenings, they planned to deposit the day’s receipts in the night slot of their bank and then go to dinner. Trudy had placed in her purse approximately $4,000, comprised of checks, money orders and about $1,000 in cash. The cash was in $50 and $100 denominations. Trudy observed Sam look into his wallet, which he carried in his back pants pocket, for money to pay for dinner.
They left through the front doors of the market and approached Sam’s pickup truck. Sam opened the passenger door for Trudy and circled around the back of the truck to the driver’s side. As Trudy lost sight of Sam, she heard loud talking from the rear of the truck. Suddenly she saw a “kid” trying to unlock the driver’s door with Sam’s keys. She became scared and heard Sam holler, “Watch your purse, honey.” Trudy opened her door to join her husband and at that moment was confronted by the same “kid” she had seen moments earlier. He demanded money. Trudy responded, “All right, all
Trudy thereupon started out of the truck and heard a shot.
About the time the Allessies were closing the store, Robert Gonzales was in a telephone booth outside the market talking to his girlfriend. Gonzales heard a gunshot and saw a man with a gun. Several seconds later, he observed the man fire a second shot and then run toward a yellow Pacer. As Gonzales took cover, he saw a figure enter the Pacer, which raced away in the direction of the freeway.
That same evening, Carol DiCenso and her husband, Antonio, were driving on Mission Boulevard in the area of Trudy’s Market. Carol was in the rear passenger seat. As they approached the market, Carol observed three men standing in a group; one was dressed in a white, short-sleeved T-shirt; the man in the center, Sam Allessie, was dressed in dark clothing; the man to Sam’s left was dressed in a black sleeveless tank-top shirt. As the DiCensos’ car drove past, Carol saw and heard a gunshot blast fired by the man in the white T-shirt. Sam Allessie slumped to his knees and fell over. Seconds later, the man in the white T-shirt straddled the fallen body, stretched out his arm, and fired another shot into the victim.
Carol DiCenso then observed the man in the white T-shirt bend over, put his arms around the victim in a “hugging” type motion and reach underneath him. In the meantime, the other man in the dark shirt, who had been standing nearby, started to run away. The shooter followed, running toward a car which had its lights on. Moments later, Benita Watson, who was a passenger in another car travelling down Mission Boulevard, noticed a light colored AMC Pacer with a chrome luggage rack travelling in the same direction. Ms. Watson heard a woman scream and heard shouts to “follow that car.” The Pacer then accelerated and pulled away.
Sam was dead when the police arrived at the scene. His car keys and wallet were missing. Blood spots and a bloody shoe print were observed leading away from the body. Based on the descriptions of the assailant and the getaway car and conversations with local law enforcement officers, Sergeant Turley of the Riverside Sheriff’s Department focused on defendant
Several weeks later, Mrs. Allessie identified defendant from both a photographic and a live lineup. At trial, she identified defendant as the man who had robbed her. Robert Gonzales also picked defendant from a photographic lineup.
A search of Laura Fierro’s house, where defendant lived, revealed several white short-sleeved T-shirts and a pink slip for the Pacer signed by defendant. Human blood was found on the sole of one of defendant’s shoes. Testing could only determine that it was human blood. A search of defendant’s Pacer revealed dried blood in the area of the front passenger door. Testing determined that it was not that of defendant but was consistent with the blood of Sam Allessie.
An autopsy disclosed that the victim died of two gunshot wounds to the chest. One wound was consistent with having been fired from a distance of up to 12 inches while the victim was standing, allowing the bullet to exit through the back. The other was a larger “contact” wound, meaning the muzzle of the gun was in contact with the victim’s clothes. The nature and size of the entry wound, the bullet’s trajectory, the crush-type injuries to the back and the piece of bullet lodged in the back all indicated that the victim was lying on the ground when the shot was fired. Dr. Hunter, who performed the autopsy, determined that the smaller wound was inflicted first, and that the larger “contact” wound was inflicted shortly thereafter. Either wound would have been fatal.
2. The Defense
The defense called several witnesses to show that a person other than defendant was seen leaving the scene after the shooting. Hubert Joubert, who lived across the street from Trudy’s Market, testified that he saw a Mexican
Defendant also called several deputy sheriffs who spoke with Trudy Allessie shortly after the crimes; defendant attempted to impeach Mrs. Allessie’s trial testimony with prior inconsistent statements as to precisely when and where she heard the two shots, and the manner in which the robber took her purse.
Defendant also called two expert witnesses. David Duncan testified that the lack of damage to the bullet recovered from the victim’s back indicated that it had been fired while the victim was standing, rather than lying on the ground. Jules Slaick testified as to various distances at the crime scene and the location of light fixtures.
Defendant did not testify at the guilt phase of trial.
B. Penalty Phase Evidence
The prosecution presented evidence of defendant’s prior violent conduct in connection with a 1982 burglary conviction. The victim of the burglary, Tira Deno, recounted the circumstances of the crime. Defendant stipulated that he pled guilty to burglary with use of a deadly weapon.
In mitigation, defendant testified in his own behalf, denying that he shot and killed Sam Allessie. Six members of defendant’s family also testified as to defendant’s poor relationship with his father, his participation in Little League and school plays, and his close and loving relationships with his siblings, wife and children. Defendant’s aunt claimed that the actual killer was another member of the family defendant was seeking to protect.
A. Guilt Phase Claims
1. Alleged Marsden Error
Defendant contends the trial court failed to conduct a proper inquiry when defendant asserted a conflict with the public defender and erred in denying defendant’s request to appoint a private attorney.
The law governing this area is well settled. “When a defendant seeks to discharge his appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance. [Citation.] A defendant is entitled to relief if the record clearly shows that the first appointed attorney is not providing adequate representation [citation] or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result [citations].” (People v. Crandell (1988)
Defendant complained about his representation by the public defender’s office on three occasions. The first occurred on June 17, 1985, after the preliminary hearing but prior to arraignment on the information. At an in camera hearing out of the presence of the prosecutor, defendant expressed dissatisfaction with the fact that he had been represented by three different deputy public defenders.
The record thus discloses that defendant did not assert either incompetence of counsel or irreconcilable differences with the public defender at the
The second in camera hearing was convened on April 11, 1986, to inquire into an earlier statement by defendant that he was not “comfortable” with his attorney.
Defendant also indicated that he was dissatisfied with counsel because the latter wanted him to take a “deal” which he was unwilling to take. Again, however, defendant was unable or unwilling to elaborate. The court reminded defendant that one week earlier he had asked both attorneys, outside of defendant’s presence, if a disposition was possible. Although counsel indicated that defendant would not plead guilty to first degree murder and the prosecutor stated that he would not accept anything less than life without possibility of parole, the court nevertheless directed counsel to convey the offer to defendant. After a short time, counsel returned to inform the court that defendant would not accept the plea.
The trial court asked defendant if this explanation had helped to “jog” his memory. Defendant responded that “it wasn’t all clear like that” when counsel had spoken to him. Nevertheless, defendant remained adamant that he did not trust his attorney, and complained about counsel’s performance at pretrial motions. Counsel, in response, stated that he had consulted sufficiently with defendant in preparing the case, had adequately investigated the facts and law and was prepared for trial. He acknowledged, however, that defendant did appear to distrust him, explaining that defendant had discouraged his brothers from cooperating with the investigation because he feared counsel would disclose the results to the district attorney. Counsel indicated that he had said and done nothing to cause defendant to distrust him. The trial court assured defendant that there was no connection between the public defender’s office and the district attorney, and observed that his attorney had done an “exemplary” job at pretrial motions. Finally, the court asked defendant if he had any other reasons for seeking other counsel. Defendant responded, “I just want another attorney.” The court thereupon found there was
The record amply supports the trial court’s findings. As outlined above, the court carefully inquired into defendant’s reasons for requesting substitution of counsel, which proved to be either groundless or patently insufficient to demonstrate “such an irreconcilable conflict that ineffective representation [was] likely to result.” (People v. Crandell, supra,
Finally, defendant was accorded a third in camera hearing shortly after the guilty verdicts were rendered and before the commencement of the penalty phase. The purpose of the hearing, according to counsel, was to express defendant’s continuing objection to representation by the public defender. Although defendant was not displeased with his attorney’s performance and had cooperated fully throughout the guilt phase, he did not feel “comfortable” because the public defender’s office “worked for the same employer as the District Attorney’s office.”
Counsel also noted that he had differed with defendant over trial strategy; while counsel had originally advised defendant to admit participation in the crime and direct his defense to the special circumstance, defendant was disposed to deny participation altogether. Ultimately, defendant’s views prevailed. Counsel also advised the court that he anticipated another potential conflict at the penalty phase; contrary to the advice of counsel, defendant did not wish to call members of his family as witnesses “because he feels that they have suffered enough.” When asked if he had anything to add to his attorney’s statement, defendant simply reiterated his displeasure at the fact that he had been represented by different deputy public defenders; he added that he did not desire to change attorneys.
Thus, the record of proceedings at the third in-chambers hearing discloses neither a request for substitution of counsel, nor any credible evidence of a lack of diligent representation or a breakdown in the attorney-client relationship. The record utterly fails to support defendant’s repeated claims that a lack of “trust” between himself and counsel impaired his representation. On the contrary, counsel apparently deferred to defendant’s preferred strategy at the guilt phase, and defendant ultimately followed counsel’s advice to call family members at the penalty phase.
Accordingly, we find no basis for concluding that the trial court either failed to conduct a proper Marsden inquiry or abused its discretion in
2. Prosecutorial Misconduct
Defendant next argues that the prosecutor committed prejudicial misconduct at several points during voir dire and closing argument.
a. Voir Dire
(i) The Adversarial Process
Both attorneys commented on the nature of the adversarial process during voir dire. Defense counsel analogized the upcoming trial to a “game” and observed that each side was seeking essentially the same goal, “each of us is trying to win for our team . . . .” The prosecutor, in response, emphasized that his role was not “strict[ly] adversarial,” that his “client” was the people of the state and that he was thereby obligated to ensure that “people receive fair trials” and not simply “convict those charged with crimes and throw justice and equity out the door.” To illustrate the point, the prosecutor noted that he had “an obligation ethically in seeking justice to make sure [defense counsel] knows about all the witnesses I intend to call, what they are going to say, what they saw, all of those things. [][] This isn’t just a game . . . .” By way of contrast, the prosecutor observed that defense counsel “has no obligation under our system of justice to reciprocate, to tell me where they’re going or what they may do or who they may call.” He is “an adversary,” the prosecutor explained, “pure and simple.” “He must represent his client and his sole obligation within certain ethical grounds is to obtain an acquittal for his client.”
Defendant now contends that the prosecutor’s remarks “grossly distorted” the adversarial process, impugned the ethics of defense counsel and improperly used the prestige of his office to bolster the state’s case. As the People correctly observe, however, defendant failed to object to any of the prosecutor’s remarks, thereby waiving his present objections. “It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety.” (People v. Benson (1990)
Furthermore, the prosecutor’s statements were not objectionable on the grounds asserted by defendant. It is not a distortion but a simple
(ii) Right to Remain Silent
Another area of discussion at voir dire concerned defendant’s right not to testify. In emphasizing that defendant’s silence could not be used against him, defense counsel observed that there might be plausible reasons why defendant, although innocent, would choose not to take the witness stand. Later, the prosecutor also stated that defendant had a right to remain silent and explained, “you can’t hold that against the defendant. You can’t consider that.” Recalling defense counsel’s remark as to why an innocent person might not testify, the prosecutor further observed that “there might be reasons why a guilty man doesn’t want to take the stand also and testify.” However, he then repeated his admonishment not to “even think about this .... It would be totally inappropriate for you to think about . . . this and try to guess about why somebody does [not testify].”
Shortly thereafter, defense counsel, out of the presence of the jury panel, expressed concern about the prosecutor’s remarks and requested an admonition relating to defendant’s right to remain silent. The trial court declined the request, explaining that it had already admonished each juror on the burden of proof and defendant’s right not to testify, and believed that the subject had been adequately covered.
Defendant now contends the prosecutor’s remark prejudicially urged the jury to consider defendant’s silence as evidence of his guilt. While it may have been ill-considered to state that a guilty person may have reasons not to testify just as an innocent person might, we do not believe the prosecutor’s
(iii) Hypothetical Scenario
Defendant next contends the prosecutor improperly influenced prospective jurors to “prejudge” guilt. It is, of course, well settled that the examination of prospective jurors should not be used “ ‘to educate the jury panel to the particular facts of the case, to compel the jurors to commit themselves to vote a particular way, to prejudice the jury for or against a particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in matters of law.’ ” (People v. Williams (1981)
The prosecutor posed a hypothetical scenario to the jury panel and asked for individual responses. Essentially, he asked the jurors to state whether they would be able to vote guilty if, after deliberations, they were persuaded that the charges had been proved beyond a reasonable doubt. Defense counsel objected on the ground that he did not understand the question. The trial court overruled the objection, finding that the question was clear and that the jurors were able to understand it. Thereafter, the prosecutor explained to the jurors that he was “not trying to bias you or trying to get you to believe [defendant] is already guilty . . . .” Rather, he explained, he posed the question simply because some people have difficulty voting guilty regardless of the evidence.
Defendant failed to object to the hypothetical question on the ground now asserted on appeal; thus his objection is waived. (People v. Ratliff, supra,
Defendant also contends the prosecutor impermissibly “indoctrinated” prospective jurors about the “impropriety” of hold-out jurors. Defendant refers to a series of remarks by the prosecutor in which he observed that each juror must “come to your own conclusion,” but also stressed the value of “work[ing] together to try to discover the truth.”
b. Argument
Defendant also raises several instances of alleged prejudicial misconduct during the prosecutor’s closing argument.
The prosecutor concluded his guilt phase argument as follows: “The evidence and the facts in this case, ladies and gentlemen, I submit to you are very clear. This is an outstanding murder case. It was an outstanding murder investigation. [*}[] When you look at all of the evidence in this case and you do your own analysis . . . , thinking back over the witnesses that have testified and their credibility, and then match that with the law that covers the crimes that this defendant is charged with, you, too, will see very clearly and very obviously that the defendant is guilty . . . .”
Defendant contends the prosecutor’s characterization of the case and the murder investigation as “outstanding” placed the personal reputation of the prosecutor and his office behind the prosecution. Impermissible “vouching” may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony. (People v. Heishman (1988)
Defendant failed to object to the prosecutor’s remarks, and thereby waived his objection on appeal. (People v. Ratliff, supra,
(ii) Appealing to Jury’s Prejudices
Defendant next asserts the prosecutor attempted to arouse the jury’s prejudices by implying that defendant was a gang member with a criminal record. He cites the prosecutor’s reference during argument to the fact that Fontana Police Detective Moore had “known [defendant] for all of the years he’s worked in Fontana.” Moore’s testimony that he had recognized defendant from having previously seen him at a little market in Fontana was corroborative of Robert Gonzales’s recollection of having seen defendant at Trudy’s Market several months before the murder. Thus, the prosecutor’s reference to Detective Moore’s testimony was simply to establish that defendant frequented the area of the crime scene prior to the murder. At no point did the prosecutor suggest, either expressly or impliedly, that defendant had a prior record.
(iii) Attack on Defense Counsel
Defendant contends the prosecutor made a number of statements during his rebuttal argument attacking the personal integrity of defense counsel. It is, of course, improper for the prosecutor “to imply that defense counsel has fabricated evidence or otherwise to portray defense counsel as the villain in the case. . . . Casting uncalled for aspersions on defense counsel directs attention to largely irrelevant matters and does not constitute comment on the evidence or argument as to inferences to be drawn therefrom.” (People v. Thompson (1988)
We note at the outset that defendant failed to object to any of the statements in question, thereby waiving his right to object on appeal. (People v. Ratliff, supra,
In one instance the prosecutor’s statement appears to have been clearly intended as a personal rebuke to defense counsel. Counsel had
Although the statement was somewhat ad hominem, we perceive no realistic likelihood that it prejudiced defendant.
(iv) Failure to Testify
Finally, defendant asserts that the prosecutor made improper reference to defendant’s failure to testify. (Griffin v. California (1965)
As the People correctly observe, defendant failed to object to the statement, thereby waiving his present objection. (People v. Ratliff, supra,
Defendant challenges the trial court’s decision to admit an expert’s electrophoretic analysis of dried bloodstains found in his car.
Defendant contends the prosecution failed to meet the standard criteria of reliability under Kelly/Frye: (1) general acceptance in the relevant scientific community; (2) testimony by properly qualified experts; and (3) the application of correct scientific procedures in the case under review. (People v. Kelly (1976)
We have recently held that electrophoretic testing of dried bloodstains is sufficiently accepted in the scientific community to be admissible under the first prong of Kelly/Frye. (People v. Morris (1991)
Defendant also asserts that the particular method of testing utilized in this case, the multisystem method, has not achieved general acceptance in the scientific community. As we recently observed, however, once electrophoresis is deemed to be admissible, criticism of any particular methodology goes to the weight of the evidence, not to its admissibility. (People v. Cooper, supra, 53 Cal.3d at pp. 812-813.) Moreover, the cases have uniformly held that the multisystem method of analysis enjoys general acceptance within the scientific community under Kelly/Frye standards. (People v. Smith, supra,
With respect to the third prong, counsel expressly stipulated at the evidentiary hearing that Springer had used correct and appropriate scientific procedures in the analysis of the blood samples. Counsel further stipulated that Edward Blake, a recognized expert in the field, had reviewed Springer’s notes of her analysis of the blood samples and had agreed that appropriate scientific procedures were followed in this case. Thus, defendant has waived any objection on appeal. (People v. Carrera (1989)
For the first time on appeal, defendant also attacks the electrophoresis evidence as hearsay (Evid. Code, §§ 801, 1200) and irrelevant (Evid. Code, §§ 210, 350), and further asserts that the evidence was more prejudicial than probative. (Evid. Code, § 352.) Defendant’s failure to raise any of these objections at trial constitutes a waiver of his objections on appeal. (People v. Carrera, supra, 49 Cal.3d at pp. 323, 324.)
Finally, defendant claims the court erred in admitting Ms. Springer’s testimony that, based on population frequency statistics, only one-half of 1 percent of California’s general population had the victim’s blood type. Defendant failed to object to the admissibility of this testimony at trial, thereby waiving his objection on appeal. (People v. Rogers, supra,
4. The Motion to Suppress
Defendant contends the trial court erroneously denied a motion to suppress certain evidence, including his wallet and its contents ($650), seized from his girlfriend’s purse. The trial court found that defendant lacked standing to contest the search, that the search was reasonable under the circumstances, and that it was conducted pursuant to a valid parole search waiver. Defendant challenges each of the trial court’s findings.
The evidence presented at the suppression hearing revealed the following: Two days after the shooting, defendant was stopped in his yellow AMC Pacer and placed under arrest. Defendant’s girlfriend, Laura Fierro, and her young child were passengers in the car.
At the conclusion of the conversation, Laura Fierro asked to use the women’s restroom. Bowen pointed out where the restroom was located, and Fierro picked up her purse and started to leave. Because it was large enough to contain a handgun and the murder weapon had not been recovered, Bowen became concerned that the purse might contain a weapon. Accordingly, he asked her if he could search the purse. She responded, “Go—yes, you may.”
Based on the foregoing, we conclude that the evidence amply supports a finding that Laura Fierro voluntarily consented to the search. (People v. James (1977)
The subsequent search of defendant’s wallet after it was removed from Laura Fierro’s purse was also valid pursuant to defendant’s parole search condition.
The foregoing was more than adequate to give rise to a reasonable suspicion that defendant was involved in criminal conduct, and therefore amply justified the parole agent’s decision to authorize the search. (People v. Burgener (1986)
Therefore we conclude that the search was reasonable under the Fourth Amendment. The motion to suppress was properly denied.
5. Shackling of Defendant at the Preliminary Hearing
At the preliminary hearing, defense counsel noted that defendant was dressed in jail garb, that he was handcuffed and that his feet were shackled. Counsel’s request that the handcuffs and shackles be removed was summarily denied. Defendant raised the shackling issue in a subsequent section 995 motion to dismiss, which was also denied. Defendant now asserts that the court erred in refusing to have the shackles removed, and that the error prejudicially tainted the witnesses’ identification of defendant as the perpetrator.
It is, of course, well settled that during a trial “a defendant cannot be subjected to physical restraints of any kind in the courtroom while in the jury’s presence, unless there is a showing of a manifest need for such restraints.” (People v. Duran (1976)
As early as 1871, we noted in People v. Harrington (1871)
Thus, it was recognized early on that the use of shackles in court could prejudically affect the rights of the defendant, not just because of the impact they might have on the jury, but because of their unsettling effect on the defendant and consequently “his constitutional rights of defense.” (Harrington, supra,
We reaffirmed our adherence to the Harrington rule, (supra,
Although we have not previously considered the use of restraints in a preliminary hearing, the reasoning of Harrington and Duran leave no doubt that the same principles would apply in that setting. As we have noted, the Harrington rule of “evident necessity” serves not merely to insulate the jury from prejudice, but to maintain the composure and dignity of the individual accused, and to preserve respect for the judicial system as a whole; these are
No reasons for the shackling of defendant appear in the instant record. The trial court, as noted earlier, simply denied counsel’s objection to the handcuffs and leg restraints without further inquiry. Therefore, we must conclude that it was an abuse of discretion to shackle defendant. (People v. Duran, supra,
The error does not, however, compel reversal. “[Ijrregularities in the preliminary examination procedures which are not jurisdictional in the fundamental sense shall be reviewed under the appropriate standard of prejudicial error and shall require reversal only if defendant can show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination.” (People v. Pompa-Ortiz (1980)
As noted earlier, defendant claims that the physical restraints may have tainted the eyewitness identifications of defendant at the preliminary hearing. Only one witness, Trudy Allessie, positively identified defendant as the assailant. The record of the preliminary hearing, however, does not reveal whether she actually observed the restraints. Her testimony at trial suggests that she did not. On cross-examination, defense counsel asked Mrs. Allessie whether she recalled how defendant was dressed at the preliminary hearing. She responded, “I think he had orange overalls on.” Counsel continued: “And he was handcuffed and shackled at the preliminary hearing, wasn’t he?” She responded: “I don’t know.”
Furthermore, even assuming that Mrs. Allessie was aware of the shackles, she had previously identified defendant at both a photographic and a live line-up. There is no claim that either of these identifications was suggestive. Thus, the record refutes defendant’s claim that the identification at the preliminary hearing was suggested by defendant’s prison garb and shackles. Accordingly, we conclude that the error was not prejudicial to defendant.
Defendant next contends the trial court committed prejudicial error in admitting evidence of Trudy Allessie’s statements to the police under the prior inconsistent statement exception to the hearsay rule. We disagree.
At trial, Mrs. Allessie was positive that she heard two shots fired after defendant left with her purse, but was uncertain about when the two shots occurred. Initially, she testified, “I know I heard one [shot] as he [i.e., defendant] went around the back of the truck. That’s all I know.” She then stated that she heard the first shot while she was still sitting in the truck. She could not be sure when she heard the second shot.
The prosecutor then introduced Mrs. Allessie’s prior statements to Sergeant Turley and Deputy Sheriff McManus. McManus was the first officer at the scene and spoke with Mrs. Allessie within an hour after the shooting. Mrs. Allessie told him that several seconds after the suspect ran off, as she was leaving the truck, she heard two shots, “a pop followed by a louder pop.” Hurley also interviewed Mrs. Allessie following the shooting. She told Turley that she heard the shots after she had exited the truck.
Section 1235 of the Evidence Code makes admissible the prior inconsistent statement of a witness not only to impeach credibility but also to prove the truth of the matters stated. (Clifton v. Ulis (1976)
Generally it is true that the testimony of a witness indicating that he or she does not remember an event is not inconsistent with a prior statement describing the event. (People v. Sam (1969)
Mrs. Allessie’s testimony at trial that she was still inside the truck when she heard the first shot directly contradicted her earlier statements to the police that she was outside and walking toward the rear of the truck
Defendant also claims that admitting the prior statements violated his right of confrontation as guaranteed by the Sixth Amendment. It is settled that admission of a witness’s prior inconsistent statement to prove the truth of the matters asserted therein does not violate the confrontation clause provided that the statement was made by the declarant in testifying at the preliminary hearing, or the declarant testifies at trial. (California v. Green (1970)
7. Photographs
Defendant contends he was prejudiced by the improper admission of several photographs of the victim and the crime scene taken shortly after the shooting. He asserts that the photographs were irrelevant, inflammatory and cumulative.
We disagree. The prosecution’s theory at trial was that the killing was either perpetrated during the course of a robbery or was wilful, deliberate and premeditated. The photographs depicting the placement and nature of the wounds and powder burns clearly supported the prosecution’s claim that defendant first shot the victim while the two were facing each other, and fired a second shot from close range into the victim’s chest while the latter was lying helpless and prostrate on the ground. As we recently observed in People v. Turner (1990)
Nor was the probative value of the photographs outweighed by their prejudicial effect. Although “ ‘murder is seldom pretty, and pictures, testimony and physical evidence in such a case are always unpleasant’ ” (People v. Pierce (1979)
8. Limiting of Defense Experts
Defendant contends the trial court erred in ruling on the qualifications of two proposed defense experts in crime reconstruction and autopsy procedures. As explained below, the court’s rulings were correct.
The prosecution attempted to portray the murder as a particularly vicious, execution-style slaying. The theory was based on the eyewitness testimony of Carol DiCenso, who observed the assailant fire two shots, the first while the victim was standing, the second while the victim was lying on the ground. Ms. DiCenso’s account of the murder was corroborated by the testimony of Dr. Hunter, a pathologist who performed the autopsy on the victim. Dr. Hunter stated that the second bullet did not exit the victim’s back but rather struck a hard, flat surface, i.e., the pavement. He further testified that the second bullet caused an “epithelial crush injury,” which further indicated that the victim’s back was pressed against a hard surface.
To rebut the foregoing testimony and demonstrate that the two shots were fired rapidly while the victim was still standing, the defense attempted to qualify David Duncan, a retired deputy sheriff, as “an expert in ballistics, firearms, examination of physical evidence and crime reconstruction based on physical evidence.” Defendant also sought to qualify Jules Slaick, a licensed private investigator, as a crime scene reconstruction and ballistics expert. At the prosecutor’s request, the trial court conducted an Evidence Code section 402 hearing to explore the nature of the proposed testimony and determine whether either witness was qualified as an expert.
At the hearing, Duncan testified that the absence of “mushrooming” damage on the nose of the bullet showed it had not hit a hard, flat surface but rather a bone within the body cavity. Duncan also stated that the autopsy procedures may have skewed the evidence of the bullet’s trajectory, and that
On cross-examination, Duncan acknowledged that he had no training or background in pathology and had never previously testified as an expert in that field; he had never examined a bullet wound microscopically, conducted tests to determine the effects of a bullet on the human body or removed a bullet from a human body. Nor did he know the meaning of the term “epithelial crush injury.”
The trial court allowed Duncan to testify as a ballistics expert based on his previous experience examining spent projectiles, but determined that Duncan was not qualified to give medical testimony concerning the nature of the victim’s injuries or the trajectory pattern of the bullet.
Although one need not necessarily be a licensed physician to give a medical opinion (People v. Villareal (1985)
Defendant also attempted to qualify Jules Slaick, a licensed private investigator, as an expert in ballistics and crime scene reconstruction. Slaick proposed to testify that, based on his observations of the physical evidence, he believed the victim was standing or lunging forward when both shots were fired. He disagreed with Dr. Hunter’s conclusion that the crush-type injuries to the victim’s back where the bullet tried to exit were caused by a hard surface. Slaick acknowledged that he had no training in pathology and had never attended an autopsy. Slaick’s experience in accident reconstruction was based on his military service 20 years earlier, when he took photographs of plane and car crashes. He had never photographed a crime scene involving a gunshot death. His opinion regarding the effect of the bullets on the victim’s body was based on his viewing of documentary films of men in combat. His purported ballistics expertise was based on his own reading and experience with guns; he had no formal training in ballistics and was not familiar with the term “epithelial crush injury.”
The trial court found that Slaick had not demonstrated an expertise in either crime reconstruction or ballistics, and limited his testimony to his observations of the crime scene. The court’s ruling was plainly correct. By
9. Firearm Enhancement
Defendant next contends that the gun use finding (§ 12022.5) should be stricken as to count 3, the robbery of Trudy Allessie, because there was no showing that defendant displayed or personally used a gun in the commission of the robbery.
To recall, the evidence showed that defendant appeared at the passenger side of the victim’s truck and demanded money from the victim’s wife, Trudy Allessie. Mrs. Allessie opened her purse and handed defendant a bundle of currency. Defendant then grabbed the purse and ran toward the rear of the truck. Moments later, a passing motorist, Carol DiCenso, observed an individual dressed like defendant point a gun at the murder victim, Sam Allessie. She heard a shot and saw a gun blast. The victim slumped to Ms knees and fell over. DiCenso observed the assailant straddle the victim’s body, aim and fire another shot into the victim. After the second shot, the shooter bent over and reached underneath the body of the victim. He then stood up and ran toward a car wMch had its lights on and was parked in the lot of a nearby cafe. Shortly before the incident, Mrs. Allessie observed Sam check Ms wallet, wMch he habitually kept in Ms rear pants pocket.
It is undisputed that Ms. Allessie did not see defendant display a gun when he robbed her. Nevertheless, the prosecutor argued that defendant’s use of a gun, moments later, to rob and murder her husband, Sam Allessie, facilitated the robbery of Trudy by preventing Sam from pursuing or identifying defendant. The prosecutor argued, and the jury was instructed, that a robbery is not complete until the perpetrator has reached a place of temporary safety. Accordingly, the prosecutor argued, and the jury found, that defendant personally used a firearm “in the commission” of the robbery of Trudy. (§ 12022.5, subd. (a).)
In construing the words of a statute, a reviewing court is required to read the statute in the light of the legislative objective sought to be acMeved, and the evil to be averted. (People v. Woodhead (1987)
“[I]t is settled that the crime of robbery is not confined to the act of taking property from victims. The nature of the crime is such that a robber’s escape with his loot is just as important to the execution of the crime as obtaining possession of the loot in the first place. Thus, the crime of robbery is not complete until the robber has won his way to a place of temporary safety.” (People v. Carroll (1970)
Carroll, supra,
Applying these principles to the case at bar, we conclude that the facts are sufficient to support a finding that defendant personally used a
B. Special Circumstance Claims
1. Intent to Kill
Defendant claims that the jury was not properly instructed as to the requisite intent in connection with the special circumstance allegation. The Attorney General responds that any error is harmless under People v. Anderson (1987)
To be sure, we have held that retroactive application of Anderson to pr e-Carlos crimes does not violate due process because the statute was “ambiguous” and provided ample “pre-Carlos foreseeability of a holding that such intent is not required for the actual killer.” (People v. Poggi (1988)
Defendant contends that because the jury was separately instructed in connection with the robbery-murder special circumstance that they must find an intent to kill if defendant was an accomplice or an aider and
The argument lacks merit. The jury was instructed that the special circumstance allegation required findings that the murder was committed while defendant “was engaged in or was an accomplice in the commission or attempted commission of a robbery . . . ; [and] that the defendant intended to kill a human being or intended to aid another in the killing of a human being.” (Italics added.) In summarizing the special finding forms for the jury, the trial court underscored the intent-to-kill requirement in connection with the special circumstance allegation, making no distinction between liability as the actual killer or as an accomplice: “You are going to be asked to make a finding as to whether or not the special circumstance allegation is true; that is, that the murder was committed during the course of the robbery with the specific intent to kill the alleged victim.” (Italics added.)
The prosecutor’s argument reinforced the trial court’s instruction that the jury must find “that defendant intended to kill a human being or intended to aid another in the killing of a human being . . . .” Moreover, defense counsel made clear in his argument that he had requested the special verdict simply to focus the jury’s attention on the intent requirement: “You would want to know in your own mind what you have decided as to who the killer was before you make that special circumstance finding.” Nothing in the argument of counsel suggested to the jury that intent to kill was not a requirement if they found that defendant was the actual killer.
Accordingly, we perceive no reasonable possibility that the jury was misled with respect to the elements of the special circumstance allegation. (People v. Duncan, supra,
2. Motion for Bifurcated Trials
Prior to the commencement of trial, defendant moved to bifurcate trial of the guilt phase and the special circumstance allegation. Relying on People v. Bigelow (1984)
The court’s ruling was correct. The statutory scheme plainly contemplates that, except where the special circumstance alleged is that of a prior murder, the same jury which determines guilt shall also at the same time determine the truth of the special circumstance allegation: “The question of the defendant’s guilt shall first be determined. If the trier of fact finds the defendant guilty of first degree murder, it shall at the same time determine the truth of all special circumstances charged . . . except . . . where it is alleged that the defendant had been convicted in a prior proceeding of the offense of murder in the first or second degree.” (§ 190.1, subd. (a), italics added.)
Defendant’s reliance on People v. Bigelow, supra,
The facts of the present case are not even remotely similar to those in Bigelow. No evidence was presented to the jury during the guilt phase which could be characterized as so “highly prejudicial” (Bigelow, supra,
Defendant also relies on section 190.4, subdivision (c), which provides that the same jury which determines guilt shall also consider any plea of not guilty by reason of insanity, the truth of any special circumstance allegation, and the penalty to be applied, “unless for good cause shown the court discharges that jury in which case a new jury shall be drawn.” As noted earlier, however, defendant did not seek to have a new jury empaneled to hear the special circumstance allegation; he sought only to have the trial bifurcated and the issue tried before the same jury. Thus, even if defendant had shown good cause, under the terms of section 190.4, subdivision (c) (which he did not invoke at trial), he would not have been entitled to the relief requested.
C. Penalty Phase Issues
1. Prior-crimes Evidence
Defendant contends the trial court erred in permitting the prosecutor to present testimony describing the circumstances of his 1982 burglary and evidence of his conviction of the same offense.
Defendant argues that evidence of the 1982 burglary was admissible as either violent criminal activity under section 190.3, factor (b), or a prior felony conviction pursuant to section 190.3, factor (c), but not both. We have rejected this claim on numerous occasions. (See People v. Wright (1990)
Defendant also complains that the trial court erred in admitting evidence of criminal conduct which went beyond the parameters of his 1982 conviction. Defendant was charged with burglary (§ 459), use of a deadly
We have consistently rejected the contention that evidence relating to prior violent activity is strictly confined to the circumstances demonstrating the prior felony conviction. (See People v. Wright, supra,
Defendant also claims that the court erred in admitting evidence of damage to the burglary victim’s house because it did not demonstrate the presence of criminal activity involving the use of force or violence. (§ 190.3, factor (b).) The contention lacks merit. As we recently explained in People v. Cooper, supra,
Relying on People v. Harvey (1979)
Defendant further asserts that use of the evidence relating to the prior offenses placed him in double jeopardy. The contention lacks merit. In presenting testimony relating to defendant’s use of force or violence, the prosecutor was not relitigating the prior acts for purposes of obtaining a new conviction but rather for their relevance as an aggravating factor. We have held that principles of double jeopardy have no application under these circumstances. (People v. McDowell (1988)
Finally, defendant asserts that admitting the evidence of the circumstances underlying the prior conviction violated his rights to due process of law (U.S. Const., Amends. V, XIV), equal protection of the laws (id., Amend. XIV), freedom from an impermissible risk of arbitrary and capricious decisionmaking (id., Amends. VIII, XIV), and reliable penalty determination (ibid.). We have previously rejected each of these claims. As we stated in People v. Benson, supra,
2. Prosecutorial Misconduct
At the guilt phase of trial the prosecutor called defendant’s wife, Laura Fierro, as a witness. In front of the jury, she invoked her privilege against self-incrimination. The prosecutor elected not to proceed with the examination. Thereafter, during cross-examination of Laura Fierro at the penalty phase, the prosecutor asked her whether she had lied to the police to protect defendant.
Defendant now claims that the prosecutor, with knowledge of Laura Fierro’s intention not to testify, committed misconduct by forcing her to claim a testimonial privilege in front of the jury. The result, he asserts, was to impeach unfairly her credibility as a witness at the penalty phase. Defendant also argues that the prosecutor’s cross-examination of Ms. Fierro was abusive and constituted misconduct.
Neither contention is persuasive. To be sure, a prosecutor may not make “a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege.” (Namet v. United States (1963)
However, there is no evidence that the prosecutor here improperly exploited Ms. Fierro’s refusal to testify, and the record does not substantiate defendant’s claim that her intention was known beforehand. Prior to trial, the prosecutor informed the court and counsel that he had subpoenaed Ms. Fierro as a witness for the People. Defendant asserted the spousal privilege under Evidence Code section 971. At a hearing to determine the applicability of the privilege, the prosecutor indicated that Ms. Fierro would testify about her relationship with defendant, the type of clothes he wore, his employment status, the amount of money he had, his ownership of an AMC Pacer and his whereabouts on the night of the crime. The trial court ruled that the spousal privilege was inapplicable under Evidence Code section 972, subdivision (f), and allowed the prosecutor to call the witness and question her on the matters set forth in his offer of proof.
At trial, Laura Fierro invoked her privilege against self-incrimination immediately upon taking the stand. The trial court thereupon dismissed the jury and the prosecutor informed the court that he had not anticipated the witness’s action. After a short recess, the trial court recalled the jury, informed them of the district attorney’s intention not to recall Ms. Fierro as a witness, and admonished them not to draw any inferences as to the credibility of the witness or as to the guilt or innocence of defendant based on her refusal to testify.
Apart from her unsuccessful attempt to claim a spousal privilege, nothing in the record indicates that the prosecutor knew beforehand of the witness’s intention to claim a testimonial privilege. Moreover, the prosecutor made no attempt to exploit the situation to his advantage by asking follow-up questions and forcing the witness to claim the privilege after each question. (See People v. Ford, supra, 45 Cal.3d at pp. 440-441.) Furthermore, the trial court immediately admonished the jury not to draw any inferences with respect to
Nor does the record support defendant’s claim that the prosecutor improperly cross-examined Ms. Fierro at the penalty phase. His questions as to whether she had lied to the police when she told them that defendant did not live with her and did not keep any belongings at her home were within the proper scope of impeachment to show bias and untruthfulness. (Evid. Code, § 780, subds. (e), (k).) His questions as to whether she had received welfare while defendant was living with her and whether defendant had borrowed money from her were admissible to impeach Ms. Fierro’s testimony that defendant was supporting the family. Accordingly, the claim of prosecutorial misconduct must fail.
3. Victim Impact Evidence
Relying on Booth v. Maryland (1987)
The comments in question were made in the context of the prosecutor’s description of the circumstances of the killing, which he argued should be considered as a factor in aggravation. The statement in full was as follows (the specific remarks to which defendant objects are italicized): “So the first thing that you can consider is the actual crime, . . . murder during the course of those robberies. That’s one of the aggravating factors that you will have to deal with. [1] And I submit to you, ladies and gentlemen, that this is an incredibly vicious, an incredibly cold-blooded murder. It is a murder that was motivated by greed during a robbery, it is a murder that’s motivated by an absolute abject viciousness. [ft] It is a murder that is, in plain and brutal terms, an execution. This is not a killing that is done in the heat of some passion, done by a person who has lost control of their senses because of emotional or social trauma. This is not a spur of the moment thing, [ft] This is a brutal killing done in the robbery of two totally innocent people. It is an execution [in] which the victim in this case was shot, and then was shot again, and literally left to die in a pool of his own blood in front of his wife of 50 years who was so traumatized, who was under so much pain at the time, that she could not even go over to her husband and do anything to assist, [fl] That, ladies and gentlemen, is something that this woman will live with for the rest of her life. That man died on the sidewalk right next to the business that
During the pendency of this" appeal, the United States Supreme Court partially overruled its holdings in Booth and Gathers, concluding that the use of victim impact evidence does not offend the Eight Amendment guaranty of an individualized penalty assessment in a capital trial. (Payne v. Tennessee (1991)
The prosecutor’s remarks here plainly fall within this category. His reference to the fact that the victim was brutally gunned down in front of his wife was a simple statement of fact concerning the circumstances of the crime. (People v. Stankewitz, supra,
Defendant objects on the same grounds to the following statement by the prosecutor: “It has been so long since we spoke about Sam Allessie, we have heard so much in the last few days about David Fierro, I want you think about Sam Allessie. I want you to think a little bit about your own family and your own friends, your own neighbors, your own fellow members of society. I want you to think about people like Tim Deno and Sam Allessie,
4. Cross-examination Concerning Gang Affiliation
Defendant next contends the trial court committed prejudicial error by permitting the prosecutor to ask questions of defendant’s mother, Dolores Fierro, implying that defendant was a member of a youth gang. He contends the questions were irrelevant, exceeded the proper scope of rebuttal, were more prejudicial than probative, and violated his constitutional rights to confrontation and due process of law.
Defendant’s mother testified about his family background, relationship with his parents and siblings, educational difficulties and extracurricular activities. She stated that defendant often helped his neighbors with yard work, played Little League baseball, acted in school plays and accompanied his family on picnics; she indicated that defendant was well behaved, was close to his brothers and sisters, and was loved by his wife and children.
Thereafter, the trial court ordered an in-chambers hearing to address defense objections to several areas of the prosecutor’s cross-examination of Dolores Fierro.
The trial court overruled defendant’s objection. The prosecutor thereupon questioned Dolores Fierro concerning defendant’s membership in two “street clubs.” Mrs. Fierro denied, however, that defendant was ever a member of a club based in Fontana called “South Fontana” or “South Fonta” and further denied that a tattoo on defendant’s arm signified his membership in that group; she also denied having seen similar tattoos on defendant’s friends, and disclaimed any knowledge of a group called “Junior Chingones.”
The trial court’s decision to allow the cross-examination was correct. Under People v. Boyd (1985)
The circumstances here are similar to those in People v. Rodriguez, supra,
The prosecutor’s cross-examination here satisfied these requirements. The witness had testified generally to defendant’s good character and offered specific examples of his socially useful activities, including participation in Little League and school plays. The prosecution was entitled to present “a more balanced picture.” (People v. Rodriguez, supra,
Defendant also asserts that the trial court failed to expressly weigh the probative value versus the potential prejudicial effect. (See Evid. Code, § 352; People v. Green, supra,
5. Cross-examination of Defense Witnesses
Defendant alleges several additional instances in which the prosecutor’s cross-examination of defense witnesses exceeded the scope of direct examination or introduced inadmissible evidence of defendant’s bad character and prior criminality.
Defendant’s aunt, Mrs. Cervantez, testified about defendant’s upbringing. She observed, inter alia, that defendant “never was disrespectful” and that he “would never hurt anybody.” During cross-examination, the prosecutor asked if the witness was “aware of . . . [defendant’s] involvement with law enforcement officers in Fontana through his growing up years?” The witness responded that she was. Counsel thereupon objected and the discussion was continued in chambers. Counsel argued that the question exceeded the scope of direct examination and was improper impeachment at the penalty phase. The prosecutor responded that counsel had opened the
Although the objection was sustained, we perceive no error in the prosecutor’s cross-examination. We have previously observed that such impeachment is permissible when character testimony is introduced at the penalty phase. As we observed in People v. Siripongs (1988)
Here, similarly, defendant was not entitled to elicit testimony that he was a “respectful” youth who “would never hurt anybody,” and preclude cross-examination as to whether the witness was aware of conduct by the defendant inconsistent with the witness’s testimony. Defendant does not contend the prosecutor lacked a good faith belief that the conduct of which he inquired actually took place. (People v. Wagner (1975)
Defendant also claims the prosecutor impermissibly cross-examined defendant’s sister, Theresa Sanchez, about certain prior bad acts of defendant. Ms. Sanchez testified on direct that defendant “was incapable of killing a person.” On cross-examination, she stated that she had never seen defendant violent and denied any awareness of violence in his past. Counsel objected that the questions were argumentative but interposed no objection on the ground that they exceeded the scope of direct. Accordingly, the issue is not cognizable on appeal. (People v. Green, supra,
Defendant also complains that the prosecutor exceeded the scope of direct testimony and insinuated that defendant was a bad person by inquiring of Ms. Sanchez whether it was true that defendant did not get along with his brother Rey and sister Tina. Defendant failed to object to the question at trial; accordingly, the issue is waived on appeal. (People v. Green, supra,
On cross-examination of defendant’s aunt, Mrs. Cervantez, and defendant’s wife, Laura Fierro, the prosecutor asked whether it was true that defendant failed to provide financial support for his family; the prosecutor also inquired of Laura Fierro whether it was true that the family was receiving welfare benefits while defendant was living with them. Defendant contends the questions were irrelevant and exceeded the scope of direct testimony. The record, however, reveals that both witnesses testified on direct that defendant was a loving, supportive husband and father, and Laura Fierro stated that defendant did his best to provide financial support to the family. Thus, the prosecutor’s questions were appropriate for purposes of impeachment and rebuttal. (People v. Siripongs, supra,
Finally, defendant complains of the prosecutor’s question to defendant’s mother, Dolores Fierro, as to whether any of her other sons were “in situations where they don’t have the freedom to meet with you on weekends.” Defendant contends the question improperly implied that the witness’s other sons were in prison. However, the record shows that counsel interposed an immediate objection which the trial court sustained. The question was never answered. The prosecutor never mentioned that the witness had other sons in prison or with criminal records. No follow-up questions were asked after the trial court sustained the objection. Thus, we perceive no reasonable possibility that the question, even if erroneous, was prejudicial. (People v. Ramirez (1990)
Defendant’s first witness was his uncle, Rudy Garza. At the end of Garza’s testimony on direct, the following colloquy occurred: “Q: How do you feel about the fact that [defendant] may have to spend the rest of his life in prison? H] A: I shudder at the thought. He has a wife and three lovely children. And that is very, very difficult, to say the least, [f] Q: What—what kind of feelings do you have when—when you think about the possibility that he could be executed in the gas chamber? [f] Mr. Purbaugh [Prosecutor]: I’m going to object as irrelevant. [j[] The Court: Sustained. [][] Q: What would that do to the family? [f] A: Devastate them.”
Defendant contends the trial court erroneously sustained the prosecutor’s objection and thereby excluded otherwise admissible mitigating evidence concerning the emotional impact of a death sentence on defendant’s family. The contention lacks merit. Although the objection was sustained, the record discloses that defense counsel immediately rephrased the question to ask, “What would that do to them,” and the witness responded, “Devastate them.” Thus, regardless of the merits of the objection and the trial court’s ruling, the question was asked and answered. There is no basis for a finding of prejudicial error.
Furthermore, the record shows that four other members of defendant’s family subsequently testified without objection as to the impact of defendant’s execution on his family. Laura Fierro, defendant’s wife, was asked: “What would happen to you and to the children if David were executed in the gas chamber?” She responded: “I wouldn’t know what to do. It would break my heart.” Defendant’s aunt, Mrs. Cervantez, testified that a death sentence “would be a very hard thing” on his family. Defendant’s sister, Theresa Sanchez, stated that defendant’s situation was “breaking [the] heart” of his mother and stated that a death sentence “probably would kill us inside.” Similarly, defendant’s mother, Dolores Fierro, testified that the family would “all be broken hearted” if defendant were given the death penalty. Thus, assuming without deciding that defendant has a right to introduce evidence of the effect of a death sentence on his family (People v. Cooper, supra,
7. Alleged Prosecutorial Misconduct
Defendant identifies three areas of misconduct in the prosecutor’s argument at the penalty phase. He asserts that the prosecutor improperly: (1)
We observe initially that defendant failed to object to any of the statements which he now characterizes as prejudicial misconduct. Accordingly, his claims are waived on appeal. (People v. Bell, supra,
As defendant accurately observes, “[lingering doubt was a substantial theme presented in the case for mitigation.” Counsel stated prior to the penalty phase that he intended to argue to the jury that his client was innocent and that “it would be a tragedy and unthinkable to put an innocent man to death.” Several defense witnesses testified that defendant was not the killer and implied that someone else in defendant’s family was. Defendant himself took the stand and stated: “My kids’ life, I didn’t kill nobody.”
The prosecutor in argument stated that defendant’s claim of innocence was “an incredibly brash, an incredibly cruel statement to make in light of the facts and the evidence, in light of what you folks know happened in this case, in light of the verdict you reached . . . .” He argued that the jury should be “offended” by that defense, and asserted: “if the defense wanted you to hear evidence that someone else did it, or that something else happened, or someone else was involved, the time and the place to do that is in the guilt phase when those people can come forward and sit here in front of you as the judges of facts and judges of truth . . . .” The prosecutor characterized the lingering doubt defense as a “cheap shot” and advised the jury: “You have no obligation to try this case again. You have received no new evidence, the decision you made in the guilt phase was a correct one. Based on all the law and all the facts, you made the right choice.”
Defendant asserts that the prosecutor’s argument effectively “eliminated” lingering doubt as a viable consideration. The argument lacks merit. Defendant plainly had the right to argue his possible innocence to the jury as a factor in mitigation. (People v. Farmer (1989)
We are not persuaded that the prosecutor’s argument effectively precluded consideration of sympathy for defendant’s family. As noted earlier, defense counsel elicited considerable testimony concerning the impact the death penalty would have on defendant’s family. Counsel also argued the issue directly and at length, noting that defendant’s family was “just as innocent as the Allessies” and that contrary to the prosecutor’s assertion, “you do have a right to consider the consequences that this will have on all the innocent victims.” Defense counsel referred repeatedly to defendant’s family, observing: “[Hje’s still a human being. He’s still the father of three lovely children. He still has a wife. [][] He has a family that love him and he loves them. He has children who know him as their father. And I’m sure that he will always be their father.” In concluding, counsel returned to the theme of family, stating: “And I think that his family does need him and his children do need him.”
Thus, the jury heard considerable testimony and argument on the relevance and importance of sympathy for defendant’s family. Assuming without deciding that such testimony and argument is relevant to the issue of mitigation (see People v. Cooper, supra,
Lastly, relying on People v. Coleman (1969)
Under Coleman, supra, 71 Cal.2d. 1159, there appears to be little practical difference between a failure to confess and a claim of innocence; neither should be cited as evidence of lack of remorse. Nevertheless, we do not believe the error here was prejudicial. The remark concerning lack of remorse was brief and transitory. Morever, the prosecutor did not impermissibly characterize defendant’s lack of remorse as an aggravating factor. (People v. Walker (1988)
8. Alleged Caldwell Error
Defendant contends that the prosecutor made several remarks which improperly induced the jury to believe that the responsibility for imposing a sentence of death lay elsewhere. (Caldwell v. Mississippi (1985)
First, defendant notes that the prosecutor mentioned defendant’s right to appeal the penalty verdict during the cross-examination of defendant’s first witness, Rudy Garza.
Defendant contends that the prosecutor’s reference to defendant’s right to appeal falls within the framework of Caldwell. The answer to defendant’s claim may be found in People v. Bittaker (1989)
Several additional statements by the prosecutor in closing argument present a somewhat closer question, however. The statements in question are set forth in full below (the specific remarks to which defendant objects are italicized):
“Starting off first, what exactly are the nature of your responsibilities in this case? How do you go about making a decision on which of two penalties that are available is the appropriate punishment for this defendant’s crime?
“The defense counsel has already argued to you in his opening statement that this part of this case is substantially or totally different than the guilt phase that you have already participated in. In the guilt phase, he argues, you were to base your verdict on the law and the facts as you found them to be. That’s true.
“In the penalty phase, he has argued you need not be bound by the law and the facts. He proposes instead that you may do whatever you like, that you must not be constrained by the law, that you should not—well, that you should do whatever feels good; that sympathy and mercy and the law should dictate or decide your verdict. This is false, very false.
“The defense will tell you, I’m sure, this same thing again in his argument after I conclude. And he will probably go on to tell you and attempt to convince you that since you have total freedom to do whatever you want, or whatever feels good, that thereby when you return the verdict of death in this case, you have total, personal responsibility for that result. This, too, ladies and gentlemen, is false, blatantly false.
*246 “We, as a society, have a very great interest in seeing that our justice system is exactly that, just. We have a very great interest in seeing that this system does not proceed on the basis of whimsy ....
“When you render your verdict in this case, it must be based on the evidence that you’ve heard and the law and instructions that the Judge gives you; that, not whimsy, not caprice, not whatever feels good or feels right must the basis of your decision. That is our system. A verdict based on the facts and the law in this case will be a just and a correct verdict.
“Why would the defense attorney argue those things to you if they are not the law, if they are not correct? And I submit to you that it is a very significant reason why he argues that to you, because he wants to try to get you, as jurors, to take upon you a part of the guilt that belongs truthfully to his client. He wants to make you feel personally responsible for the results of your deliberations, for the results in this phase of the trial.
“He wants to try to make you feel guilty for the verdict that you should render in this case based on the facts and the law. You must not allow this to happen, ladies and gentlemen.
“You will not be doing your duty as jurors if you do allow that to happen. A verdict of death in this case will not be quote your fault unquote, as the defense would like to persuade you.
“It will be the result of this defendant’s actions, his choice to be greedy, his choice to satisfy that greed by committing a robbery, his choice to take a gun along in the commission of that robbery, his choice to select Sam and Gertrude Allessie as his victims. [j[] . . . His display of absolute viciousness, of total depravity in stepping over a mortally wounded Sam Allessie, bending down over the man, pushing the end of the barrel of his pistol into Sam’s chest, and shooting him again, executing him.
“It will be combination of these facts, ladies and gentlemen, of his conduct and his behavior and his crimes, and the law that the Judge gives you that will result in a death verdict in this case.
“It will not be your responsibility, it will not be your fault. The law determines[,] when the facts are applied with the law[,] what penalty is appropriate.
“You are here as representatives of our community to exercise and carry out the law. It is not a personal—it is, of course, a personal decision, but I*247 think you see what I’m saying. It is not a personal responsibility, it is a personal decision to follow the law and arrive at the results that the law calls for. That’s the thing that you must do as jurors in this case.”
Defendant contends that the italicized passages misled the jury to believe that they did not bear ultimate responsibility for the sentencing, but rather that the sentence was predetermined by “the law.” Viewed in isolation, certain of the prosecutor’s statements do appear to support the claim. However, we must assess the challenged remarks in the context of the penalty phase arguments as a whole. (People v. Kaurish (1990)
Indeed, later in his argument the prosecutor forcefully and repeatedly reminded the jurors of their individual sentencing responsibility and discretion. Reading from the court’s instructions, he noted that the jurors were “free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors.” Commenting further, he noted that the “law instructs you that you must be judges, that you must do some balancing and some weighing and some careful consideration of the merits on both sides of this case .... That’s very clear from the law, ladies and gentlemen, that that must be the basis of your verdict.” Finally, the prosecutor emphasized the moral component of the jury’s decision, arguing that “the death penalty verdict in this case is morally right.”
Defense counsel also stressed the jurors’ individual responsibility to weigh the evidence: “Each one of you has a sworn duty to make your own decision,” he stated. “[E]ach one of you has to . . . take that individual responsibility,” he continued, and “you are going to have to live with [the decision] the rest of your life.” Defense counsel also disputed the prosecutor’s characterization of his opening argument, stating: “Now, I’m not suggesting to you that if you decide to vote for death it would be your fault. HD I am talking about responsibility. I am talking about reaching a decision that you are going to be able to live with the rest of your life.”
In light of the foregoing, the prosecutor’s remarks could not have misled the jurors to believe that the responsibility for determining the appropriate
Finally, defendant contends the prosecutor improperly portrayed the weighing process as essentially an inquiry into the moral justification for the crimes, and failed to acknowledge the existence of mitigating factors, suggesting that there were none. (See People v. Crandell, supra,
9. Death Penalty as Deterrent/Future Dangerousness
The prosecutor argued that the death penalty was morally appropriate because “we, as a community, as a larger society and group of people, have [the] . . . right to defend ourselves against this man .... We have the right to live secure against people like David Fierro. On a moral basis, I’m not talking law, I’m talking morality, on a moral basis we have a right to
The prosecutor went on to observe that imprisonment would not protect other inmates from defendant. He described defendant as “a violent man” and observed: “The best predictor of future conduct is past conduct. And especially that is true in this case. You look at the things that David Fierro has done that you have before you and you ask yourselves: will this man be violent again? And the answer to that clearly in my mind is yes. We see a pattern of escalating violence.”
These remarks were not improper. “[W]e have held that argument directed to a defendant’s future dangerousness, when based on evidence of the defendant’s past conduct rather than expert opinion, is proper and does not invite speculation as to the defendant’s possible release. [Citations.]” (People v. Hayes (1990)
10. Alleged Instructional Errors
Defendant contends the trial court committed instructional error in three instances.
First defendant claims the court erred in refusing to give a proposed instruction which provided: “You are instructed that if your decision in the penalty phase of this trial, is that the defendant should be put to death, the sentence will be carried out. On the other hand, if you determine that life without the possibility of parole is the proper sentence, you are instructed that the defendant will never be released from prison.” In response to the court’s observation that the instruction was untrue, defense counsel proposed to modify the instruction to provide that the jurors must “assume that the sentence that they impose will be carried out.” The prosecutor opposed both the original and the modified instruction, noting that the jury had not manifested any concern about the issue. The trial court refused to give the instruction in either form.
The trial court properly refused the proffered instruction. In People v. Thompson, supra,
Defendant’s alternative request to instruct the jury that they should assume the sentence they imposed would be carried out, was not similarly misleading, and, as we have previously observed, should have been given. (People v. Thompson, supra,
Defendant next asserts that the trial court should have instructed the jury, sua sponte, not to double count the instant crimes under section 190.3, factors (a) (circumstances of the crime) and (c) (prior felony conviction). Defendant cites nothing from the record to suggest that the jury was somehow led to believe that the guilty verdict they had rendered in this case qualified as a prior felony conviction under factor (c). Moreover, the jury was specifically instructed that they were not to consider any evidence of any other crime, other than defendant’s prior burglary conviction, as an aggravating circumstance. Hence, we perceive no reasonable possibility that the jury was misled into double counting the instant offense under factors (a) and (c) or, for that matter, factors (a) and (b) (prior violent conduct). (People v. Melton, supra,
Defendant also asserts that the giving of CALJIC No. 8.84.1 erroneously led the jury to double count his prior burglary conviction under factors (b) (prior violent conduct) and (c) (prior felony conviction). Although both the prosecutor and the trial court here informed the jury that they should not consider defendant’s prior felony under both factors, “the jury was entitled to consider the relevance of defendant’s prior felony conviction
Finally, defendant claims that the court’s instructions on his prior assault with a deadly weapon and the lesser crime of battery were flawed because they failed to distinguish between the culpability of defendant and his partner. Defendant also contends there was insufficient evidence to warrant the instruction on assault.
To demonstrate defendant’s prior violent conduct, the prosecutor presented evidence that defendant and a companion entered the home of Tim Deno and assaulted him during the course of a burglary. Deno testified that he was struck at least twice from behind by defendant’s companion. As Deno was falling, defendant struck him in the forehead with a telephone receiver. As a result of the assault, Deno suffered a concussion, a skull fracture and three cuts requiring twenty stitches.
Defendant contends the evidence did not support an instruction on assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a).) On the contrary, the evidence demonstrated beyond a reasonable doubt that defendant committed assault with a deadly weapon; an object such as a telephone may constitute a deadly weapon if used in such a manner as to be capable of producing death or great bodily injury, and the jury was so instructed. (In re Jose R. (1982)
Defendant further asserts that the instructions were flawed because they failed to distinguish between the acts of assault committed by himself and his compatriot. In light of the trial court’s instruction to the jury that they must be satisfied beyond a reasonable doubt that the defendant did, in fact, commit the acts of assault on Deno, we discern no possibility the jury
11. The Modification Motion
Defendant contends the judgment of death must be reversed or the matter remanded for a new hearing on the application for modification of verdict (§ 190.4, subd. (e)) for two reasons: (1) the trial court double counted a burglary conviction as two aggravating circumstances under factors (b) and (c); and (2) the trial court improperly read and considered matters in a probation report.
Defendant’s first contention is plainly without merit. Under section 190.4, subdivision (e), the court is directed to independently review and reweigh the evidence of aggravating and mitigating circumstances, and to determine whether the weight of the evidence supports the jury verdict. (People v. Clark (1990)
For the same reason, however, the court should not have considered the probation report. “Under section 190.4, subdivision (e), the court is directed to review the evidence presented to the jury; a probation report is not presented to the jury.” (People v. Lewis (1990)
The trial court made no reference to any of the potentially prejudicial matters contained in the probation report.
12. Disproportionate Penalty
Defendant contends that he should be given proportionality review on both an intracase and intercase basis. We have held in numerous cases that intercase proportionality review is not required. (See, e.g., People v. Hayes, supra,
As to intracase review, defendant relies on People v. Dillon (1983)
Finally, defendant contends the trial court erroneously failed to exercise its discretion in denying defendant’s motion to strike the special circumstance finding pursuant to section 1385. Section 1385, subdivision (a), provides generally that the court may order an action to be dismissed “in furtherance of justice.”
Defendant made three attempts to set aside the special circumstance finding and penalty verdict. First, he moved for a new trial on the ground that the evidence was insufficient to support the special circumstance finding. The trial court denied the motion, finding that the “evidence as a whole is sufficient to support and sustain the verdicts of the jury in their entirety in this case . . . .” Defendant next moved under section 1385 to strike the special circumstance finding in the interest of justice, arguing that the sentence was disproportionate to his personal culpability. The prosecutor opposed the motion, noting defendant’s history of violence and the brutality of the instant offenses. The trial court summarily denied the motion. Finally, defendant made his application to modify the verdict pursuant to section 190.4, subdivision (e). As noted, the trial court determined that the evidence and law substantially supported the jury’s sentence.
Defendant now claims that the trial court did not “understand its responsibility” under section 1385, and speculates that the court equated the section 1385 motion with the new trial motion, which it denied on the ground that the evidence was sufficient to support the special circumstance finding.
We have not previously determined whether a court has the power to dismiss a special circumstance after the jury has returned a verdict of death.
13. Constitutionality of the 1978 Death Penalty Law
Defendant raises multiple challenges to the constitutionality of the 1978 death penalty law. We have previously rejected each of his claims. (People v. Morris, supra,
Conclusion
The judgment is affirmed in its entirety.
Lucas, C. J., Panelli, J., Baxter, J., and George, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise noted.
Although Mrs. Allessie testified that she heard two shots, she was unsure when the second shot occurred.
defendant married Laura Garcia 10 months after his arrest.
Gonzales stated that he was “not positive,” but identified defendant as the shooter.
The first deputy assigned to the case left the office prior to the preliminary hearing. His replacement, Rick Siref, represented defendant through the preliminary hearing. On June 10, 1985, about three weeks prior to the scheduled trial date, Mr. Siref was relieved as counsel because he too was leaving the office. Siref was replaced by Deputy Public Defender John Morris, who represented defendant throughout the remainder of the proceedings.
defendant’s statement came at the conclusion of a hearing conducted one week earlier on his section 995 motion to dismiss. Defendant asserts that the motion raised a claim of ineffective assistance at the preliminary hearing, thus creating a conflict of interest because counsel at the preliminary hearing was a fellow member of the public defender’s office. The record, however, discloses no such claim. Counsel merely argued that defendant had been prejudiced by the lack of continuity of counsel and observed that he might have handled the preliminary hearing differently.
Defendant correctly notes that one prospective juror indicated she was “bothered” by the question. However, the prosecutor explained that he was not attempting to learn how she would actually vote at trial, but simply whether she could vote guilty if the evidence warranted it. The juror indicated that she understood the question and responded that she would have no problem returning a guilty verdict under those circumstances.
The precise comments to which defendant objects are as follows: “I think similarly that’s why we have a jury. Okay. We have 12 people because all of you have common sense, all of you have life experience and you can help one another in coming up with the truth in a case like this. [5] Now, based on that, I want you to consider a little bit about your role as an individual juror. Certainly you’re individuals and each of you have [sic] to look at this case, the evidence and the law, and come to your own conclusion. That goes without saying. [B We do not want a herd here .... That’s not what we’re looking for. [f] But on the other hand, we’re not looking for 12 quote leaders or 12 strong, rugged individualists that will intentionally fight with the other 11 to try to show how individual they are. [!]••• What we’re looking for is 12 people, individuals who will work together to try to discover the truth. [5] . . . There’s nothing wrong in a juror with being a quote follower if the reason you are following is because you’re seeing that that is the truth and you concur with the truth and you’re going along with the truth . . . . [f] . . . It’s wrong to be a follower to just say, T don’t want to thing [ifc] about this case. You guys make up your minds and whatever you say I’ll go along.’ That, of course, we don’t need. But there’s nothing wrong with being a follower if you’re following based on the truth. . . .”
In responding to one juror who stated that she would work to persuade the other jurors if she were outvoted 11 to 1, the prosecutor stated: “Okay. And that’s a good answer. But I would hope, ma’am, that you would also consider that, say, ‘You know, I have been with these people now three or four weeks. We’ve had lunch together. We sat in the hallway and talked. And they all seem to be reasonable folks. And 11 of them came to a different conclusion than I did. Maybe before I try to persuade them to my view I ought to take the time to consider where they came to a different conclusion than I did, listen to their thoughts and reasoning, see if maybe I missed something. [B • . . 12 individuals not intentionally tugging at each other, but rather working together, if possible, to get at what the truth is and use that truth in arriving at a verdict. [B • • • There is nothing to be gained in our system of justice by having somebody try to prove how much of an individual or leader they are just to show that fact
The specific statements to which defendant objects include the following: “[Defense counsel] has given you a very typical presentation of a defense attorney who has nothing of substance to say.” “[Defense counsel], of course, doesn’t choose to remind you that [he] is on
An analysis was also done on a bloodstain found on one of defendant’s shoes. The blood was determined to be of human origin, but the sample was apparently insufficient to yield any meaningful eletrophoretic test results.
At the pretrial admissibility hearing, defense counsel stipulated that the trial court could rely on the trial testimony of five electrophoresis experts at Kelly/Frye hearings in two unrelated trials, People v. Reilly (1987)
At trial, defendant raised no challenge to the testing procedures employed by the state’s expert. On cross-examination, defense counsel merely inquired whether environmental conditions could degrade the sample, thereby causing unreliable test results.
Shortly before trial, defendant and Ms. Fierro were married. However, at the time of the events in question, defendant and Ms. Fierro were not married.
There is some evidence that the consent extended not only to a search of the purse, but also the wallet. After Laura Fierro gave permission to Detective Bowen to the search of the purse, he opened the purse and noticed a pair of brown gloves. He asked whom they belonged to and she told him, “Those are David’s gloves. His wallet is in my purse also.” Fierro then gave permission to remove both the gloves and the wallet from the purse. Detective Bowen did so, opened the wallet and found defendant’s driver’s license and cash. Thus, although somewhat ambiguous, it could be argued that Ms. Fierro’s identification of the wallet carried an implied consent to search. However, in light of the valid parole search, we need not decide this issue.
Because we conclude that the search of the purse and wallet was valid pursuant to a voluntary consent and a parole condition, we need not address the question of defendant’s standing to challenge the search.
In People v. Cooper, supra,
Tbe instruction in question stated: “If the defendant . . . was an accomplice or aider and abettor, but not the actual killer, it must be proved beyond a reasonable doubt that he intended to aid in the killing of a human being before you are permitted to find that alleged special circumstance ... to be true as to the defendant . . . .”
Defendant requested only a separate trial; he did not ask to impanel separate juries for the guilt phase and special circumstance allegation. In his briefs, defendant implies that he also requested separate guilt and penalty phase juries on the ground that inconsistent defenses would deprive him of a fair trial. In fact, the latter request was based exclusively on Hovey v. Superior Court (1980)
People v. Velasquez, supra,
Evidence Code section 972, subdivision (f) makes the spousal privilege inapplicable in “A proceeding resulting from a criminal act which occurred prior to legal marriage of the spouses to each other regarding knowledge acquired prior to that marriage if prior to the legal marriage the witness spouse was aware that his or her spouse had been arrested for or had been formally charged with the crime or crimes about which the spouse is called to testify.”
At the hearing, Ms. Fierro testified that she was not married to defendant at the time of the crimes in January 1985, and that she was aware defendant had been arrested for robbery and murder and formally charged with those crimes when she married him in December 1985.
Defendant also makes reference to a portion of the prosecutor’s cross-examination of Mrs. Cervantez, defendant’s aunt. The prosecutor asked the witness whether it was true that defendant’s purported reluctance to have his friends and family testify on his behalf was because it was not considered “macho” among defendant’s “associates.” The witness rejected the prosecutor’s suggestion. Contrary to defendant’s assertion, we do not believe the prosecutor’s remarks constituted a sufficiently explicit reference to gang membership to warrant analysis.
In addition to question about defendant’s membership in street gangs, counsel objected to questions implying that several of defendant’s brothers had been or were currently incarcerated, as well as questions relating to defendant’s juvenile adjudications. The court excluded the latter two items but, as noted above, permitted the prosecutor to examine Mrs. Fierro with respect to the gang issue.
Defendant raised an Evidence Code section 352 objection to questions implying that defendant’s brothers were or had recently been incarcerated. Counsel specifically limited his objection to that line of questioning.
The exchange on cross-examination occurred as follows: “Q: Now, you mentioned when you were asked about—the question about the death penalty—H] A: Yes. [f] Q:—that you would like to have him have a chance for an appeal or possibly another trial? [$] A: Yes. [1] Q: Now, you're aware that he’s going to get that opportunity no matter what the jury does, aren’t you? [1] A: Right. [1] Q: He has that opportunity to appeal no matter what the jury decides the penalty? fjQ A: Yes, he has that option, yes.”
The prosecutor’s remarks in this regard were as follows: “That line is established by the factors in aggravation and the factors in mitigation and how you weigh those. [1] That line is the border between your choice of life without possibility of parole and the death penalty. [1] The law says, ladies and gentlemen, that when you cross that line,—when I say you cross the line, I mean in your evaluation of the defendant’s conduct. When you realize that the defendant in his crime had crossed that line, the law says death penalty is the appropriate punishment.”
Defendant suggests that the instruction was necessary because the prosecutor referred to defendant’s right to appeal during the cross-examination of defendant’s uncle, Rudy Garza. As noted earlier (ante, at pp. 244-245, this isolated reference to defendant’s right to appeal in no way suggested that the sentencing responsibility rested elsewhere, and contained no implication that the sentence imposed would not be carried out.
Defendant further suggests that the evidence did not support a finding that defendant struck Deno with the telephone receiver. On the contrary, Deno’s testimony that defendant was holding a telephone receiver and struck out with whatever was in his hand, would support such a finding. In any event, it is well settled that the use of hands or fists alone may support a conviction of assault by means of force likely to produce great bodily injury. (People v. Wingo (1975)
Defendant takes issue with the prosecutor’s statement: “And then as Mr. Fierro used the phone purportedly to call regarding his broken car, Mr. Fierro’s partner smashes Tim Deno in the back of the head and Mr. Fierro smashes Tim Deno in the face, in the forehead, knocking him unconscious.” Defendant argues the prosecutor inaccurately attributed the “knock-out” blow solely to defendant. The statement, however, could reasonably be read to attribute unconsciousness to both blows. In any event, the jury heard the evidence and was capable of distinguishing the actions of defendant and the second man.
The probation report contained information, not presented at the penalty hearing, about defendant’s use of drugs and alcohol, his admission that he participated in the offense and habitually carried a gun, his conviction for being under the influence of heroin while in jail pending trial in this case, numerous disciplinary citations while in custody, and defendant’s “rap sheet” showing several convictions for disturbing the peace and vandalism.
At the time, CALJIC No. 8.21 (4th ed. 1979) provided as follows (defendant’s proposed modification is set forth in italics): “The unlawful killing of a human being, whether intentional, unintentional or accidental, which occurs as result of the commission of or attempt to commit the crime of [robbery], and where there was in the mind of the perpetrator the specific intent to commit such crime, is murder of the first degree, under the provisions of section 189 of the Penal Code, [f] However, the jury may recommend that such a killing be murder of the second degree, based on all the facts and circumstances of the case. The Court would consider such a recommendation if it is made. The specific intent to commit [robbery] and the commission or attempt to commit such crime must be proved beyond a reasonable doubt.”
Concurrence Opinion
Concurring and Dissenting.—I concur in the judgment as to guilt and death eligibility. After review, I have found no error warranting reversal or vacation on either issue.
I dissent, however, as to penalty.
In Caldwell v. Mississippi (1985)
In this case too—which was tried a year after Caldwell —the verdict of death should be set aside and the penalty judgment should be reversed.
Here, as in Caldwell, defense counsel urged the jury to confront its grave responsibility for determining the appropriateness of death.
For example, at one point counsel told the jurors that “each one of you has to make your own decision and take that individual responsibility that you are going to have to live with the rest of your life.”
At another: “Yes, I’m telling you that it’s your individual responsibility. I’m telling you that it’s a responsibility that each of you have to carry on your shoulders. And it’s one that you’ll have to live with the rest of your life.”
Here, as in Caldwell, the prosecutor sought to minimize the jury’s sense of its responsibility—and did so more often and more pointedly than his counterpart in that case.
Thus, at one point the prosecutor told the jurors that it “is false, blatantly false,” that “when you return the verdict of death in this case, you have total, personal responsibility for that result.”
At another, he said that “[defense counsel] wants to make you feel personally responsible for the results of your deliberations, for the results in this phase of the trial.” He urged, “You must not allow this to happen . . . .”
At yet another: “It will be a combination of [the] facts, ladies and gentlemen, of [defendant’s] conduct and his behavior and his crimes, and the law that the Judge gives you that will result in a death verdict in this case.
“It will not be your responsibility, it will not be your fault. The law determines when the facts are applied with the law what penalty is appropriate.
“You are here as representatives of our community to exercise and carry out the law. It is not a personal—it is, of course, a personal decision, but I
The prosecutor’s comments, quoted above, were improper under the Eighth Amendment. On their face, they “sought to minimize the jury’s sense of responsibility for determining the appropriateness of death.” (Caldwell v. Mississippi, supra,
Having reviewed the record, I cannot say that the prosecutor’s constitutionally improper comments were without effect. In the case at bar, death was not a foregone conclusion. The mitigating evidence was significant. True, the aggravating evidence was not insubstantial. Certainly, the crime itself was tragic. But by today’s standards, it was—regrettably—routine. In view of the foregoing, I cannot conclude that the jury’s penalty determination is constitutionally reliable.
For the reasons stated above, I would vacate the verdict of death and reverse the judgment as to penalty.
In passing, I note my firm agreement with the conclusion Justice Kennard arrives at in her separate opinion herein: for purposes of Penal Code section 190.3, the circumstances of the crime must be construed narrowly—and certainly cannot be given the practically limitless scope that the majority purport to discern. My views on the matter, which I expressed in my concurring and dissenting opinion in People v. Edwards (1991)
Concurrence Opinion
The Eighth Amendment to the federal Constitution does not bar consideration of a victim’s personal characteristics to determine penalty in a capital case, but evidence and argument on this subject must be authorized by statute. Penal Code section 190.3 (hereafter section 190.3), a part of our voter-enacted death penalty law, lists those matters that the trier of penalty “shall consider” in deciding whether to return a verdict of death. In People v. Edwards (1991)
This case does present an issue regarding the propriety of a prosecutor’s comments during penalty phase argument about a murder victim’s personal characteristics that were unknown to the defendant. Although the comments were an insignificant part of the prosecutor’s overall argument, the propriety of the comments should be addressed and determined.
The majority concludes that the prosecutor committed no misconduct during argument to the jury at the penalty phase by referring to details of murder victim Sam Allessi’s personal life and to the physical and emotional suffering of robbery victim Trudy Allessi. As I shall explain, the prosecutor remained within statutory bounds when he referred to Trudy Allessi’s suffering and to facts about Sam Allessi that were revealed during proof of the events constituting defendant’s heinous crimes, but the prosecutor exceeded those statutory bounds when he referred to facts about Sam Allessi that defendant could not have known and that were not properly adduced in proof of guilt. The impropriety does not require reversal of the judgment of death, however, because there is no reasonable possibility that the prosecutor’s brief and mild comments influenced the penalty verdict. Thus, I concur in the affirmance of the judgment imposing the penalty of death.
I
The Eighth Amendment to the United States Constitution, which prohibits the infliction of cruel and unusual punishment, imposes limits on the scope of evidence and jury argument in death penalty cases. The Eighth Amendment does not, however, bar evidence of or argument on the personal characteristics of the victim of the capital crime, whether or not those characteristics were known to the defendant at the time of the crime. Nor does it bar evidence or argument concerning the emotional impact of the crimes on members of the victim’s family. The United States Supreme Court has held that these matters demonstrate “the specific harm” caused by the defendant’s capital crimes, and that this in turn is a legitimate sentencing consideration under the Eighth Amendment. (Payne v. Tennessee (1991)
California’s death penalty law, however, limits the scope of evidence and jury argument in a manner independent of the limits imposed by the Eighth Amendment to the federal Constitution. Under our state law, the prosecutor’s case in aggravation is confined to the factors listed in Penal Code section 190.3. (People v. Boyd (1985)
The issue presented is one of statutory construction: Does the term “circumstances of the crime” as used in factor (a) of section 190.3 include personal characteristics of the victim that were not known or reasonably apparent to the defendant at the time of the capital offense and that were not properly adduced in proof of guilt? In construing a statute, a court’s objective is to ascertain and effectuate legislative intent. (People v. Woodhead (1987)
The first step, therefore, is to decide whether the usual and ordinary meaning of “circumstances of the crime” includes within it the personal characteristics of the victim. In performing this task, it is helpful to review certain decisions of the United States Supreme Court. Although the high court’s understanding of the phrase “circumstances of the crime” does not provide an authoritative construction of our state statute, it is persuasive on what the words are commonly understood to mean in the context of a capital sentencing scheme.
In Booth v. Maryland (1987)
Thus, a majority of the United States Supreme Court considered it self-evident that the words “circumstances of the crime” generally did not include evidence relating to the personal characteristics of a murder victim and the emotional impact of the crimes on the victim’s family, although such evidence might be so included in a particular case.
In South Carolina v. Gathers (1989)
The United States Supreme Court overruled these two decisions in Payne, supra, 501 U.S__[
In the course of its analysis, the high court said that the prosecution had a legitimate interest in presenting evidence about the victim’s personal characteristics to counteract similar evidence about the defendant. To illustrate the potential unfairness that would result if evidence about the victim were barred, the court noted that the defendant in the case it was reviewing had presented evidence about himself: “The capital sentencing jury heard testimony from Payne’s girlfriend that they met at church, that he was affectionate, caring, kind to her children, that he was not an abuser of drugs or alcohol, and that it was inconsistent with his character to have committed the murders. Payne’s parents testified that he was a good son, and a clinical psychologist testified that Payne was an extremely polite prisoner and suffered from a low IQ.” (Payne, supra, 501 U.S____[
Nothing in Payne, supra, 501 U.S__[
In People v. Edwards, supra,
Other accepted definitions are somewhat narrower than the one on which the majority relied. For example, a legal dictionary defines “circumstances” as “[ajttendant or accompanying facts, events, or conditions.” (Black’s Law Dict. (6th ed. 1990) p. 243.) A federal court has defined “circumstances” as “ ‘facts or things standing around or about some central fact.’ ” (State of Maryland v. United States (4th Cir. 1947)
But courts must construe statutory language in context, not in isolation; they must harmonize related provisions and avoid any interpretation that makes some words unnecessary or redundant. (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987)
Section 190.3 contains a statutory list of factors relevant to the penalty decision in a capital case. Under the principle of construction mentioned
The majority’s construction of “circumstances of the crime” makes this factor so broad that it encompasses all of the other factors listed in section 190.3.
Is there a reasonable construction of “circumstance of the crime” that avoids or at least minimizes overlap with other listed factors? The statutory list includes matters, such as whether the defendant acted under duress and whether the victim participated in the defendant’s homicidal act, that would seem to fall under even the narrowest definition of “circumstances of the crime.” Yet there is a definition of the statutory factor that substantially
As used in section 190.3, “circumstances of the crime” should be understood to mean those facts or circumstances either known to the defendant when he or she committed the capital crime or properly adduced in proof of the charges adjudicated at the guilt phase. This definition appears most consistent with the rule of construction that listed items should be given related meaning and with the United States Supreme Court’s understanding of the term as reflected in its opinions. (See also, e.g., Franklin v. Lynaugh (1988)
II
In this case, the prosecutor stated in argument to the jury at the penalty phase that robbery victim Trudy Allessi was so traumatized by the crimes, and in such pain, that she was unable to come to the assistance of her fatally wounded husband, murder victim Sam Allessi, and that she would live with this for the rest of her life. These statements were proper. Our cases establish that the suffering of an immediate victim of a crime, as shown by evidence properly received to prove guilt, is a proper subject of argument as a “circumstance of the crime.” (People v. Haskett (1982)
During the penalty phase argument, the prosecutor also mentioned that Sam Allessi died on the sidewalk next to the store he had owned for 40 years and that he had been married to Trudy Allessi for 50 years. Evidence that Sam Allessi owned the store was properly received at the guilt phase to explain his presence at the scene and his possession of the cash taken by defendant in the robbery; therefore, the prosecutor’s reference to Sam All-essi’s ownership of the store was proper.
Defendant was not prejudiced by the improper remarks, however. They were an insignificant part of the prosecutor’s overall argument, which remained correctly focused on the statutory factors. Therefore, I concur in the affirmance of the judgment of death.
HI
Section 190.3 lists the subject matters a jury “shall consider” in a capital case when deciding whether the defendant should be sentenced to death. To determine the meaning of the language used in that statutory list, this court should be guided by neutral principles of statutory construction. The majority has failed to persuade me that a victim’s personal characteristics, when unknown to the defendant and irrelevant to proof of guilt, fall within the statutory factor for “circumstances of the crime.”
When a jury is determining the penalty for a capital crime, should it take into account the personal characteristics of the victim? This is a difficult and controversial question, as shown by the various opinions on this subject by a closely divided United States Supreme Court. What the trier of penalty ought to consider, however, is not the issue before this court. Rather, we must decide whether the electorate, when it voted our current death penalty statutes into law, intended to authorize consideration of these matters. Analysis of the relevant statutory language enacted by the voters, using accepted principles of statutory construction, leads me to conclude that under our state law the jury in a capital case may, and indeed must, consider the victim’s personal characteristics that were known to the defendant at the time of the capital crimes or were disclosed by evidence properly received during the guilt phase. But the presently existing statutory authorization goes no further.
Appellant’s petition for a rehearing was denied February 19, 1992. Mosk, J., and Kennard, J., were of the opinion that the petition should be granted.
The principle of construction that items grouped in a list should be given related meaning is known to legal scholars under the Latin names ejusdem generis and noscitur a sociis. (See generally, 2A Sutherland, Statutory Construction (Sands 4th ed. 1984 rev.) §§ 47.16-47.22, pp. 161-193.) As the United States Supreme Court has remarked, however, “ ‘One hardly need rely on such Latin phrases ... to reach this obvious conclusion.’ ” (Third National Bank v. Impac Limited, Inc. (1977)
These are the section 190.3 penalty factors:
“(a) The circumstances of the crime of which the defendant was convicted in the present proceeding and the existence of any special circumstances found to be true pursuant to Section 190.1.
“(b) The presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.
“(c) The presence or absence of any prior felony conviction.
“(d) Whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.
“(e) Whether or not the victim was a participant in the defendant’s homicidal conduct or consented to the homicidal act.
“(f) Whether or not the offense was committed under circumstances which the defendant reasonably believed to be a moral justification or extenuation for his [or her] conduct.
“(g) Whether or not defendant acted under extreme duress or under the substantial domination of another person.
“(h) Whether or not at the time of the offense the capacity of the defendant to appreciate the criminality of his [or her] conduct or to conform his [or her] conduct the requirements of law was impaired as a result of mental disease or defect, or the affects [r/c] of intoxication.
“(i) The age of the defendant at the time of the crime.
“(j) Whether or not the defendant was an accomplice to the offense and his [or her] participation in the commission of the offense was relatively minor.
“(k) Any other circumstance which extenuated the gravity of the crime even though it is not a legal excuse for the crime.”
This conclusion is consistent with a hypothetical that Justice Souter has provided to illustrate how in a given case victim impact evidence could be admitted to establish the circumstances of the crime: A minister has been robbed and killed by a stranger while walking from his car to his church office. The minister’s wife and daughter are present in the car and witness the stabbing. To explain the victim’s presence at the scene of the murder, the prosecutor introduces evidence that the victim was a minister, a personal characteristic. The victim’s widow and daughter testify as eyewitnesses of the murder, and this testimony inevitably reveals to some extent how they were emotionally affected by the crime. (Payne, supra,