Lead Opinion
Opinion
A Los Angeles jury found defendant Randy Eugene Garcia guilty of crimes stemming from two home invasions committed the night before Mother’s Day, 1993, in the same neighborhood in Torrance. The most serious incident, in which the victims—a married couple with children—were home during the burglary, resulted in convictions for the first degree murder of Joseph Finzel (Pen. Code, § 187, subd. (a)),
After a penalty trial, the jury fixed the penalty at death. The trial court declined to grant a new trial (§ 1179 et seq.), and denied the automatic motion to modify the death verdict (§ 190.4, subd. (e)). The court pronounced a death judgment for the special circumstance murder. Sentence also was imposed and stayed on the noncapital felony counts, including life with the possibility of parole for attempted murder. This appeal is automatic. (Cal. Const., art. VI, § 11, subd. (a); § 1239, subd. (b).)
We find no prejudicial error at defendant’s trial. The judgment will be affirmed in its entirety.
A. Prosecution Case
1. Events Surrounding the Charged Crimes
On May 8, 1993, the day before Mother’s Day, defendant and his friend, Edward “Bruce” Pierce, drove in Pierce’s car from Portland, Oregon, to Torrance, California. In Torrance, they planned to stay with George Aguirre, another friend of defendant’s, and to buy marijuana for sale later in Oregon. Pierce testified at trial that the trio sampled “Mexican weed” in Aguirre’s apartment that day. Aguirre confirmed this account.
According to Pierce and Aguirre, defendant announced between 9:00 and 10:00 that night that he wanted to do “a job,” meaning he wanted to steal something. Aguirre offered to drive defendant, using Pierce’s car. Defendant put on a black turtleneck shirt, and wore jeans and black Nike shoes. He also carried a fanny pack around his waist. The fanny pack contained a small chrome handgun and a pair of black gloves.
A short time later, Aguirre dropped defendant off about one mile from the apartment. Aguirre waited 15 minutes and then drove home. On the way, he saw defendant walking on the street, carrying something he did not have before—a multicolored leather-like bag that closed with a rope. Defendant entered the car and said the bag held “a bunch of change.”
Aguirre drove several blocks and defendant exited the car again, leaving the bag behind. This time, he jumped over a wall at a dead end on 180th Street.
Aguirre went home with an uneasy feeling, arriving no more than one hour after he left with defendant. There, Aguirre spoke with Pierce about “cops all around.” Pierce said he would leave for Oregon alone if defendant did not return to the apartment by 3:30 a.m.
2. The Kozak Burglary
Prosecution evidence established that between the time defendant first left the car and the time Aguirre saw him carrying the multicolored bag of “change,” defendant burglarized a nearby home belonging to Archie and Winona Kozak. The Kozaks had locked the house and left for Las Vegas on May 6, 1993. Mrs. Kozak testified that when they returned late on May 9, Mother’s Day, the house had been ransacked. The police found no fingerprints—only glove marks and fabric particles.
3. The Finzel Crimes
Around 11:15 p.m. on May 8, 1993, L. was in the master bedroom of her home on 180th Street, not far from where Aguirre last saw defendant exit the car and jump over a wall. L. was dozing in bed, after having turned the lights off and left the bedroom television set on. The window blinds were closed. L. testified, however, that anyone standing in the backyard could see into the bedroom through gaps in the blinds.
L.’s husband, Joseph, was socializing elsewhere with a friend and was expected to return home soon. The only other person in the house was the couple’s infant daughter, Brinlee, who was sleeping in a bassinet at the foot of the bed near L. Joseph’s son from a prior marriage, Garrett, lived with the Finzels, but was spending time elsewhere with his mother.
Awakened by a banging noise, and sensing movement nearby, L. looked up and saw defendant standing in the doorway, holding a small silver gun. She positively identified him at trial. His face was clearly visible in the available light.
Without warning, defendant grabbed the bassinet and told L. not to scream because he had an armed accomplice outside, and because he would “hurt the baby.” Defendant wore dark clothes, black gloves, and a fanny pack. He carried a pack of Camel cigarettes in his pants pocket and smelled of cigarette smoke.
In the first of two such episodes, defendant forced L. to engage in sex acts. He made her remove her shorts and orally copulate him while she sat on the bed. He then told her to stand and insert his penis into her vagina from behind. She tried to comply but could not do so, because he did not have an erection. When he asked if “it [was] in,” she said “yes.”
Next, defendant grabbed L.’s arm and took her into the hallway. There, he opened the door of Garrett’s bedroom, and was told by L. that the room belonged to her stepson, who was not home. When they returned to the
According to L., subsequent events became more frenetic and deadly. Defendant demanded access to the “money,” “jewelry,” “safe,” and “gun.” L. said there was no money or safe, but told him where to find her gold watch and jewelry. She also said that her wallet and credit cards were located in Brinlee’s diaper bag. Though L. sought to prevent defendant from finding her husband’s .357 Magnum handgun, and falsely said it was not on the premises, defendant nonetheless found the weapon in a bedroom drawer. At that point, he stuffed a sock into L.’s mouth and tied a pillowcase around the gag. He also used a pair of nylons to bind her wrists and feet together behind her back.
Defendant then shifted his focus and asked L. about her husband’s whereabouts. L. indicated (once her gag was loosened) that Joseph was at a local restaurant. Defendant partially closed the bedroom door so that only a five-inch opening remained. The next thing L. heard was Joseph’s truck outside the house. She estimated the time at 11:30 p.m.
Once inside, Joseph opened the bedroom door, turned on the light, and looked at L. lying bound and nude on the bed facing him. Defendant stood slightly behind her, apparently holding the .357 Magnum pistol in his hand. Suddenly, Joseph and L. each screamed, followed by gunfire. L. saw blood flowing from Joseph’s abdomen, and then felt pain in her stomach and arm. She too had been shot. Defendant fled the room as L. begged him not to “leave us like this.” Brinlee cried in her bassinet. L. testified that defendant shot across and over the baby to hit Joseph.
Defendant stayed in the Finzel home for two or three hours after the shootings. He reentered the master bedroom three times. First, he disabled the phone when L. tried to dial 911. The second time, as she pretended to be dead, he tapped her on the head. During his third visit, he raised and then dropped L.’s arm, saying “she’s dead.” Meanwhile, according to L., she pressed down on her bullet wounds to slow the bleeding. The bed—a waterbed—was leaking. She moved her head to prevent water from entering her nose.
By the time defendant left the house, L. had loosened the nylon wrist ties and pulled the gag away from her face. Dizzy and weak, she crawled over her husband, and stumbled through the house and yard to the neighbor’s porch. She knocked on the door and collapsed.
When police and paramedics arrived a short time later, L. was in shock and near death. She was rushed to the hospital. At the Finzel home, Joseph was found dead on the bedroom floor, his body partially blocking the door. His pants pockets had been turned inside out. Brinlee was unharmed. Her bassinet was resting on Joseph’s leg, between his feet.
4. Investigation of the Murder Scene
The Finzels’ home, which was neat before the crimes, was in disarray afterwards. Torrance police officers found cabinets, closets, and drawers open in various rooms. L.’s purse was on the living room floor, its contents strewn nearby. The back door stood ajar. A diaper bag was in the backyard. Gates in a side yard were open. One set of car keys was found on the ground near the garage. Another set was in the ignition of the Finzels’ Corvette. The car battery was dead.
The investigation disclosed that a bullet fired from inside the master bedroom passed through the door and became lodged in a living room cabinet. Two expended bullets rested on or near the bed. In the hallway near the master bedroom, the police tested for fingerprints, and found only glove marks. There were two Camel cigarette butts—one on the back porch, and the other at the rear of the property, near footprints and crushed weeds.
Property missing from the Finzels’ home included L.’s gold watch and other jewelry, and Joseph’s truck. Police later found the truck parked near Aguirre’s apartment, where defendant was staying at the time. Credit cards belonging to the Finzels were found inside the truck. Police retrieved a Camel cigarette butt from beneath the driver’s door.
5. Defendant’s Return to Aguirre’s Apartment
Between 3:00 a.m. and 3:30 a.m., Aguirre and Pierce heard defendant enter the apartment. Defendant said he was “going straight to hell.” Aguirre recalled defendant also saying that he “shot two people,” while Pierce thought that the word “killed” might have been used. Defendant displayed a .357 Magnum handgun, attributed it to his “second job,” and expelled empty casings onto the floor. He was carrying a woman’s purse and another cloth bag. He dumped jewelry from the purse onto a coffee table.
6. Aguirre’s Cooperation with Police
While watching a television newscast on May 9, Aguirre realized that defendant might be linked to the Finzel crimes. He contacted the Torrance police, and began cooperating with the lead investigators, Detectives Mason and Nemeth. Though reluctant to admit he had driven defendant around town the night of the crimes, Aguirre gave police all relevant information and physical evidence in his possession. Such items consisted of those left in Aguirre’s apartment by defendant when he departed for Oregon, including bullets and expended casings, black clothing items (turtleneck shirt, gloves, and Nike shoes), and Camel cigarettes.
7. Defendant’s Return to Oregon
While driving with Pierce to Oregon in the early morning hours of May 9, defendant described the shootings that he had admitted before to both Pierce and Aguirre. Defendant said he shot the male victim because he saw defendant’s face, and that he shot the female victim because she “freak[ed] out.” In Oregon, defendant gave the .357 Magnum handgun to Pierce. Pierce gave it to his mother.
On May 10, defendant contacted his friend, Antoin Jackson, in Oregon, and stayed overnight at Jackson’s house. On May 11, defendant communicated with someone by page and phone. Afterwards, he seemed nervous, and made incriminating statements to Jackson. Defendant said he was going “to hell” and to prison for “life” because he had “killed someone.” The victims were a “bitch” who “scream[ed] too loud,” and a man who “walked in” while defendant was burglarizing a house. Defendant told Jackson that he stayed in that house for “a few hours,” and was “real high” at the time. Defendant identified the murder weapon as the .357 Magnum handgun he gave to Pierce, and admitted trying to steal a car during the crime.
Meanwhile, on May 11, sheriff’s detectives in Washington County, Oregon, learned that an arrest warrant had issued in the present case, and that the Torrance police sought help in apprehending defendant. Hence, that same day, the Oregon detectives contacted Pierce, who cooperated in the investigation.
Through Pierce, Oregon detectives contacted defendant’s friend, Suely Caramelo. She gave them items she had received from defendant after his Torrance trip—items that were given, in turn, to the Torrance police. They included a woman’s gold and diamond ring and a multicolored cloth bag with coins inside. Caramelo also said that defendant was at Jackson’s house.
Defendant was arrested a short time later at Jackson’s house. Items found in his possession included a fanny pack with a small chrome pistol inside, and a bag of jewelry. Defendant was wearing a gold and diamond ring at the time.
After being told about the murder warrant in Torrance, and read his Miranda rights (see Miranda v. Arizona (1966)
8. Physical Evidence
Property recovered in Oregon had been stolen not only during the Kozak burglary, as noted above, but also during the capital crime. The ring defendant wore when arrested was Joseph Finzel’s wedding ring. It was on Joseph’s finger when he was shot. The ring defendant gave Caramelo was L.’s. L. identified other items seized by arresting officers, including the gold watch that defendant left in Pierce’s car.
Based on ballistics tests, a criminalist with the Los Angeles County Sheriff’s Department determined that the expended casings found in Aguirre’s apartment were fired from the .357 Magnum handgun retrieved from Pierce in Oregon. The witness reached a similar conclusion as to the expended bullets found in the Finzels’ bedroom.
9. Medical Testimony
Dr. Carlos Donayre testified that emergency surgery was required to save L.’s life after the shooting. One bullet entered the side of her body,
Dr. Susan Selser, the medical examiner who performed the autopsy on Joseph, testified that he sustained two gunshot wounds, each of which entered the chest and exited through the back. One struck the lung and aorta, and the other pierced the heart. Both were fatal.
B. Defense Case
Defendant presented no evidence at the guilt phase.
H. PENALTY EVIDENCE
A. Prosecution Case
1. Prior Felony Conviction
In 1989, before he committed the capital crime, defendant was convicted in Oregon as an adult of a felony, theft, also known as receiving stolen property.
2. Circumstances of the Capital Crime
George Aguirre testified that one month before defendant and Pierce drove to Torrance on May 8, 1993, when the capital crime occurred, defendant visited Aguirre there alone. While smoking marijuana one night, defendant said, “I wonder what it would be like to rape a woman at gunpoint.” He seemed serious at the time. Nothing more on the topic was said.
The only other prosecution witness at the penalty phase was L., who described the effects of the capital crime, as follows: When the murder occurred, her daughter, Brinlee, was about two months old, and Joseph’s son, Garrett, was seven years old. Joseph was 29 years old when he died. He was an only child. His death devastated his parents.
L. and Joseph met in March 1990, fell deeply in love, and married in May 1992. They enjoyed outdoor activities together. To prepare for marriage, they
L. testified that she and Joseph enjoyed spending time with Garrett. Together, the couple sometimes walked Garrett to and from school. Garrett played a key role in their wedding ceremony. L. had many fond memories of that day. Wedding photos were introduced at trial.
According to L., she and Joseph planned to have more children and to move to the country where they could ride horses and motorcycles. Meanwhile, Joseph worked for a computer company, and L. was a homemaker. They ran a small business bringing pets and a pony to children’s birthday parties. Photographs of these events were introduced.
L. described the support Joseph provided during her pregnancy, including his presence in the delivery room when Brinlee was bom. The umbilical cord was wrapped around Brinlee’s neck, requiring medical treatment. Joseph surprised L. afterwards with 100 red roses. One month later, the family, including Brinlee, went camping together. Photos of family trips and outings were introduced.
L. recalled the terror she felt during the capital crime. While hospitalized afterwards, she had tubes in her throat and could communicate only by writing notes. She read the notes in court.
After the murder, L. and Garrett became estranged. L. has no permanent home and lives with different relatives. Medication and therapy have not eased her fear, guilt, and grief.
L. testified that she visits Joseph’s grave twice a week. The cemetery is near other special places, such as the hotel where the couple spent their wedding night. She described markings on the headstone, as well as the various mementos that were buried with Joseph or placed on his grave later.
Following L.’s testimony, the jury watched an 11-minute 45-second videotape. The videotape shows L. from the shoulders up, talking in front of a plain gray backdrop. Her voice also is heard describing video clips and still photographs that appear on the screen. Both the narration and images concern the joy L. and Joseph shared as a couple (e.g., getting married, raising children, relaxing at home, and enjoying the outdoors), and the loss she experienced from his death (e.g., emotional turmoil, estrangement from Garrett, and a gravesite visit with Brinlee on Christmas Day).
The videotape departs from the foregoing format in only two respects. First, at the beginning, white lettering silently appears on a black screen,
B. Defense Case
Various relatives, friends, juvenile justice officials, and mental health professionals testified on defendant’s behalf. He did not take the stand.
1. Family History
Defendant’s mother, Suszanne, married Adolpho “Rudy” Garcia when she was 18 years old. Defendant was one of three boys bom in fairly quick succession during the marriage. However, defendant and his older brother, Fred Garcia, are not related by blood to Rudy, and were each fathered by different men. Only the youngest boy, Teodi Garcia, is Rudy’s biological son. Defendant, who was bom in 1970, did not learn this fact until age 13.
By the time defendant started kindergarten, Suszanne and Rudy were divorced. Though Rudy had legal custody of the three children, Suszanne decided to keep them with her. She and the boys moved several times over the next few years, living in Idaho, Texas, Alabama, and Washington. Suszanne had a series of romantic partners during this time, including her second husband, Frank Poleta. Defendant’s younger brother, Teodi, testified that Suszanne was a loving mother.
After defendant finished the third grade, Suszanne left the children in Georgia at the home of her first husband, Rudy, who “they thought was their father.” They lived with Rudy and his new wife, Cecelia, for two years. Teodi and Fred testified that Cecelia punished all three boys harshly. She made defendant, who wet the bed at night, stand outside wearing his soiled underpants on his head, holding a sign stating that he was a bed wetter. Once, when defendant accidentally hit Cecelia’s hand with the car door, she slammed the door on his hand.
As a fifth or sixth grader, defendant left Rudy’s home in Georgia and reunited with his mother, Suszanne. She lived in Oregon and had a new
Before defendant entered the seventh grade, Suszanne met Tim Tugg, who became her third husband. Tim had no interest in raising defendant, Fred, or Teodi, and doted on his own children, including a son, Matthew, whom he had with Suszanne. Suszanne testified that Tim was “physically and emotionally abusive to me and my kids.” Tim and Suszanne used marijuana and cocaine at home, and gave drugs to the children. Tim drank alcohol every day. Tim told defendant that Rudy Garcia was not his biological father. That night, defendant stole property and was arrested.
Defendant’s biological father, Patrick Grandchampt, testified that he became acquainted with defendant during the capital case. Grandchampt read two letters from defendant seeking to develop a father-son relationship. The witness testified that he cared about defendant, and chose not to disclose his true identity earlier for fear of “destroy[ing] everything.”
2. Juvenile Delinquency
Beginning in 1983, when he was 13 years old, defendant came under the authority of the juvenile justice system in Oregon. A probation officer, Larry Tomanka, testified that defendant’s homelife was dysfunctional, that family counseling was not likely to succeed, and that placement outside the home eventually occurred.
3. Mental Condition
Dr. Arthur Kowell, a neurologist, performed a brain electrical activity mapping (BEAM) study of defendant before trial. Defendant’s performance
Dr. Nancy Kaser-Boyd, a psychologist, interviewed defendant and various family members, conducted psychological tests, and reviewed school, medical and probation records. In her opinion, defendant was a highly manic person, predisposed as an adult to committing criminal acts and suffering from mental illness and drug abuse. Dr. Kaser-Boyd determined that defendant suffered from ADHD as a child (evidenced, in part, by his bed-wetting), that the condition was likely inherited from his parents (including Patrick Grandchampt), and that he suffers from an adult version of the disorder (attention deficit disorder residual). Other risk factors for adult dysfunction included mental and physical abuse, as well as sexual molestation, as a child. On the latter point, Dr. Kaser-Boyd testified that she was told by Fred Baumgarte, defendant’s grandfather, that Rudy Garcia had “touched” defendant’s genitals “in a sexual way” when defendant was three or four years old. Rudy was married to Fred’s daughter, Suszanne, at the time.
C. Prosecution Rebuttal
Fred Baumgarte confirmed that he saw a sexual fondling incident similar to the one that Dr. Kaser-Boyd described. However, as discussed further below, both Fred and his wife, Dorothy Baumgarte, testified that they did not remember discussing the matter with Dr. Kaser-Boyd. Amy York, a defense paralegal, prepared a report before trial indicating that defendant’s older brother, Fred Garcia, told her that Tim Tugg physically abused only his wife Suszanne—not defendant and his brothers, Fred and Teodi.
III. PRETRIAL ISSUES
A. Grand Jury Selection Process
Defendant contends that the judicial nomination process long used in Los Angeles County to select prospective grand jurors—a process that led to the random draw of the grand juries that indicted defendant and, presumably, countless other persons—involved intentional and invidious discrimination, and resulted in the substantial underrepresentation of women and Hispanics in the grand jury pools. The claim is based upon the equal protection clause of
1. Trial Court Proceedings
On June 3, 1993, the Grand Jury of Los Angeles County returned an indictment, which was filed in superior court, charging defendant with the Finzel crimes.
On May 23, 1994, defendant moved in writing to dismiss the indictment. At the hearing on November 4, 1994, defendant argued that the grand jury selection process discriminated against women and Hispanics, and thus violated the equal protection guaranteed by the Fourteenth Amendment of the United States Constitution, as set forth in Castaneda v. Partida (1977)
Extensive evidence was admitted at the hearing through (1) live witness testimony, (2) documentary exhibits, and (3) other voluminous materials that the court judicially noticed from the record in an unrelated criminal case.
Unlike trial jurors, who are randomly summoned from Department of Motor Vehicle lists and voter registration rolls, grand jurors perform a voluntary public service and are not, in Blankenship’s word, “draftees” of the court. A full-time commitment is involved. Grand jurors serve for one year.
Blankenship alluded to certain statutory eligibility requirements for grand jury service. Some, she noted, also apply to trial jurors (e.g., being a citizen age 18 or older, knowing the English language, and having no felony convictions). However, only grand jurors have a one-year county residence requirement, and cannot hold elective office.
According to both witnesses, all grand jurors are first nominated by a superior court judge. At the time of Blankenship’s testimony, there were 238 judges on the Los Angeles County Superior Court. Each judge is allowed to nominate up to two persons a year. However, nothing prevents any judge from nominating only one person or making no nomination at all.
Blankenship made clear that there are two ways to be nominated: (1) “be known to the judge or make yourself known to the judge and ask to be nominated” (direct nominees), or (2) “volunteer to be a candidate for a nomination” (volunteer candidates). Either way, the person completes the same standard application, which the nominating judge eventually signs. It gives applicants the option of disclosing race or ethnicity, and seeks a brief biographical statement. The jury commissioner hands or mails an application to every person who requests one. It can be returned by mail or in person.
For volunteer candidates (as opposed to direct nominees), submission of an application triggers a formal interview process. The person meets, at random, with one of the judges serving on the court’s grand and trial juror committee
Copies of all applications submitted by volunteer candidates are distributed for nomination purposes to every judge on the superior court. As with direct nominees, a volunteer candidate is nominated when any one judge signs the form.
A tentative list of grand jury nominees is published in the newspaper, and circulated to the entire superior court to lodge any objection. In Blankenship’s experience, such objections are rare, and typically involve conflicts of interest, such as when a nominee is related to a sitting judge. (See ante, fn. 11.) Once this process is complete, a final list of nominees is compiled, filed, and published. According to Blankenship, the grand jury pool typically consists of 150 to 175 nominees. Many are volunteer candidates.
The next step is a random blind draw from a jury wheel of the names of 40 prospective grand jurors and 10 alternates. The sheriff’s department conducts criminal record checks of these 50 individuals. The names of those nominees who survive this check are again placed in the jury wheel. Another random
Both Blankenship and Gomez described the superior court’s ongoing campaign to recruit grand jurors from a broad cross-section of Los Angeles County residents. In Blankenship’s words, “substantial affirmative efforts” are made to attract Hispanics and members of other minority groups. Every year, a press release circulates to over 100 newspapers and media organizations, including most Spanish-language outlets. Public service announcements run in both English and Spanish on television and radio stations. Recruitment letters are sent to community groups, public officials, and consulates countywide. Judges personally consult with Hispanic community groups on the issue.
In a related vein, the record includes a sample “Nomination Form.” Consistent with Blankenship’s testimony, the form asks grand jury applicants to disclose their race or ethnicity (e.g., “Caucasian,” “Black,” “Hispanic,” “Asian,” or “Other Minority”), and states that such information is “optional” and “voluntary.” The following explanation appears nearby: “Recent Supreme Court decisions place added emphasis on the ethnic makeup of the pool from which Grand Jurors are drawn. Your answer will assist the Judges of the Court in establishing full compliance with these decisions.” On an adjacent line, applicants are asked to specify whether they were “Male” or “Female.”
In addition to information about the nominating process, defendant introduced statistical evidence. Regarding women in the grand jury pool, one chart indicated that, based on the 1990 census, women comprised 50 percent of the population of Los Angeles County 18 years and older. Another chart showed the gender of grand jury nominees from the 1986-1987 term through the 1993-1994 term. The percentage of women in the pool ranged from a low of 34 percent one year, to a high of 50 percent another year. However, for five of the other eight years, grand jury nominees were 40 to 45 percent female. At the hearing, defense counsel used an “absolute disparity” measure, which calculated the difference between the percentage of adult women in the population and the percentage of women in the grand jury pools. Such disparity ranged from zero to 16 percent at each extreme, and otherwise hovered mostly in the 5 to 10 percent range.
By comparison, certain absolute disparity figures gleaned from the testimony of Dr. William Clark—10.5 percent—and Dr. Dennis Willigan—11.4 percent—were similar to, but somewhat higher than, Dr. Bolton’s figure. Dr. Clark and Dr. Willigan based these results on the percentage of the Los Angeles County population who were Hispanic voting age citizens and who spoke English “well” (as opposed to those who spoke only “some” English or who spoke English “veiy well”). Both of these witnesses also used the six-year period from 1986 through 1992 to calculate the average percentage of Hispanics in Los Angeles County Grand Jury pools. Dr. Willigan opined that the various disparities might be attributable to judges not knowing, and therefore not nominating, persons from “certain racial or ethnic groups.” He admitted, however, that “whatever goes on in the nomination process,” or “how or why it does, I don’t know.”
After considering the foregoing evidence, the trial court rejected the grand jury challenge on the ground defendant had not presented a prima facie case of unconstitutional discrimination. In describing the principles and authorities used to make this decision, the court explicitly “agreed with the People’s position.” Based on the above described arguments of the parties, the court apparently believed that Duren, supra,
On appeal, defendant renews his argument that the judges of the Los Angeles County Superior Court violated equal protection guarantees by purposefully discriminating against women and Hispanics in selecting nominees for the pool from which his grand jury was drawn. We first summarize the statutory scheme which regulates this process, and which gave rise to the challenged procedures. The grand jury scheme, which codified prior law, has been in effect for decades. (See § 888 et seq., added by Stats. 1959, ch. 501, § 2, p. 2443; see also Stats. 1959, ch. 501, § 20, p. 2458; People v. Superior Court (1973 Grand Jury) (1975)
Each county must have at least one grand jury drawn and impaneled every year. (§ 905; see Cal. Const., art. I, § 23.) The grand jury consists of “the required number of persons returned from the citizens of the county before a court of competent jurisdiction,” and sworn to inquire into both “public offenses” within the county and “county matters of civil concern.” (§ 888; see § 888.2 [specifying “required number” of grand jurors based on county size]; see also §§ 904.4-904.8 [authorizing “additional” grand juries depending on county size].) This general authority over both criminal and civil matters involves three functions: (1) weighing criminal charges and deciding whether to present indictments (§ 917), (2) evaluating misconduct claims against public officials and deciding whether to formally seek their removal from office (§ 922), and (3) acting as the public’s “watchdog” by investigating and reporting upon local government affairs. (§§ 919-921, 925 et seq.; see McClatchy Newspapers v. Superior Court (1988)
In California, unlike other jurisdictions, the grand jury most often plays the civil oversight role. (McClatchy, supra,
As shown by the testimony here, grand jurors must be citizens age 18 or older and have resided in the county for at least one year immediately before their service begins. (§ 893, subd. (a)(1).) A person who serves on this body also must have sufficient knowledge of the English language to perform the grand jury function (id., subd. (a)(3)), and be “in possession of his natural faculties, of ordinary intelligence, of sound judgment, and of fair character” (id., subd. (a)(2)).
The Legislature has vested the superior court with responsibility for selecting grand jury members. (See 1973 Grand Jury, supra,
After receiving and filing the list of prospective grand jurors, the jury commissioner publishes it in a newspaper of general circulation, along with the name of the judge who selected each person on the list. (§ 900.) The jury commissioner then randomly draws the names from the “ ‘grand jury box,’ ” using one of two methods. (Id., subds. (a) [folded slips of paper], (b)
Against this statutory backdrop, and based on the evidentiary record, defendant contends the trial court erred in concluding that he failed to present a prima facie case that the grand jury nomination process violated federal equal protection guaranties. He insists all essential elements were present under Castaneda, supra,
In Castaneda, defendant Partida was indicted and convicted of a felony in Hidalgo County, Texas, near the Mexican border. In seeking a new trial in state court, he claimed his federal equal protection rights had been denied because of the historical underrepresentation of Mexican-Americans on grand juries in the county when he was indicted in 1972. Besides testifying about racial discrimination in the area, Partida introduced evidence from the 1970 census showing that 79.1 percent of the county’s population was Mexican-American, and that the group was underprivileged by various socioeconomic measures. Partida also showed that the average representation of Mexican-Americans on grand jury lists over an 11-year period, from 1962 to 1972, was 39 percent. In rebuttal, the state offered no evidence to show that the alleged underrepresentation and discrimination had not occurred. Ultimately, the motion for a new trial was denied, and the conviction was affirmed on appeal. (Castaneda, supra,
Partida renewed his equal protection claim on habeas corpus in federal district court. This time, the state outlined some of the procedures used to select grand juries in Hidalgo County, as follows: A state district court judge
The federal district court declined to grant habeas corpus relief on grounds the prima facie case of discrimination was weak, and sufficient rebuttal had occurred. The court surmised that the statistical evidence overstated the racial imbalance on the grand jury lists, and that it ignored the role of Mexican-Americans as a local “governing majority” who held prominent posts in the community. (Castaneda, supra,
However, the federal circuit court of appeals rejected this analysis and reversed the district court’s decision. The court of appeals placed little weight on the “governing majority” approach, and otherwise found that Partida’s prima facie showing of a constitutional violation had not been adequately rebutted by the State. (Castaneda, supra,
The United States Supreme Court granted a petition for certiorari by the State of Texas, through the Sheriff of Hidalgo County, challenging the equal protection theory on which Partida had prevailed in the federal court of appeals. In a five-to-four decision, accompanied by three dissenting opinions, the Supreme Court upheld the lower court ruling invalidating the state’s grand jury selection process. (Castaneda, supra,
At the outset, Castaneda embraced the venerable notion that equal protection precludes a defendant from being tried under an indictment issued by a grand jury from which persons “ ‘of his race or color’ ” have been
In evaluating how the key-man system was applied in Hidalgo County, Castaneda set forth the requirements that a criminal defendant must meet in order to establish a prima facie equal protection violation. “The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. [Citation.] Next, the degree of underrepresentation must be proved, by comparing the proportion of the group in the total population to the proportion called to serve as grand jurors, over a significant period of time. . . . Finally, [the court noted], a selection procedure that is susceptible of abuse or is not racially neutral supports the presumption of discrimination raised by the statistical showing.” (Castaneda, supra,
Under this test, Castaneda held, Partida had presented a prima facie case. First, Mexican-Americans were “a clearly identifiable class.” (Castaneda, supra,
Second, Castaneda found the statistical showing clearly sufficient for prima facie case standards. Partida had established a 40 percent disparity between the percentage of Mexican-Americans in the county’s population and the average percentage of Mexican-Americans summoned as prospective grand jurors over an 11-year period before he was indicted. (Castaneda, supra,
In the final analysis, Castaneda determined that the state did not rebut the showing of intentional discrimination that Partida had made. The court emphasized the “barren” state of the record as to both the “motivations and methods of the grand jury commissioners.” (Castaneda, supra,
The United States Supreme Court has referred to Castaneda, supra,
Against this backdrop, we are not entirely certain of the elements of a prima facie equal protection violation sufficient to shift the burden of proof from the defense, and to require rebuttal from the state. On the one hand, Castaneda, supra,
On the other hand, it is difficult to conceive of a grand jury selection system—including one less unfettered and more objective than Castaneda’s— in which no meaningful discretion guides the nominating process, and which would survive constitutional scrutiny under the foregoing view, assuming the requisite statistical showing was made. As reflected by the statutory requirement of personal interviews for grand jury nominees, and by the individualized screening process that the county used here, it seems inherent in the grand jury itself, and in its civic oversight role and strict schedule, that persons nominated and selected to that body not only be eligible and qualified to serve, but that they also be willing and able to do so. For this pragmatic
We now determine whether defendant’s motion to dismiss the indictment was properly denied. We begin by noting the parties’ agreement that women (see Duren, supra,
Regarding Castaneda’s second “prima facie” prong, as to which considerable evidence was admitted below, the significance of defendant’s statistical showing is less clear. Here, as under the Sixth Amendment, the United States Supreme Court “has not yet spoken definitively on either the means by which disparity may be measured or the constitutional limit of permissible disparity.” (Bell, supra,
At bottom, none of the disparities shown for either women or Hispanics in this case approaches the 40 percent mark in Castaneda, supra,
However, we need not resolve these statistical issues. The same is true as to whether defendant has met Castaneda’s third “prima facie” prong by showing that the grand jury selection procedure was “not racially neutral” (Castaneda, supra,
To recap the process, grand jurors are randomly selected from a group of persons nominated by the judges of the Los Angeles County Superior Court. The original pool of applicants for nomination includes both volunteers from the community and individuals personally known to the judges. The superior court determines “by personal interview” whether prospective grand jurors meet the eligibility requirements under section 893, subdivision (a). (§ 896, subd. (a).) Section 893, subdivision (a) ensures that such persons have, among other things, the basic capacity to perform the grand juror function. Elsewhere, the scheme defines such function in terms of the responsibility to conduct criminal and civil inquiries, most of which concern investigating and reporting on the financial, administrative, and legal affairs of government agencies and officials. The relevant statutes further assume that this service, which is largely uncompensated, demands a high level of personal commitment from those sworn to perform it. Thus, in addition to determining eligibility and qualification to perform the grand jury function,
The evidence in this case showed that the Los Angeles County Superior Court had adopted standard procedures and written guidelines to implement the foregoing rules. The jury commissioner gave the same application to all persons who wanted to serve as grand jurors, whether or not they were known to any judge. Similarly, the interview system used to nominate grand jurors was not limited to persons known to the judges, but was extended to everyone who volunteered to apply. To ensure that all applicants and interviewees were evaluated in a uniform and proper manner, the court used written guidelines focusing on statutory eligibility rules, relevant background and experience, and time and service requirements. Nominating responsibility was shared by the entire superior court bench, which consisted at the relevant time of 238 judges serving in courthouses located in different communities throughout Los Angeles County.
Contrary to defendant’s view, nothing in these rules or procedures authorized, encouraged, or established that the judges nominated grand jurors in a manner that discriminated against women, Hispanics, or any other distinct group. Rather, the criteria used to select nominees were gender and race neutral, and clearly sought to test qualifications without reference to any impermissible subjective factor. Far from seeking to exclude members of minority groups from the pool of nominees, the superior court operated under a prodiversity policy. It engaged in a widespread campaign to recruit grand jury volunteers from all segments of the county population. These efforts targeted Hispanics and other minority groups. (See People v. Burney, supra,
In a related vein, the neutral selection criteria used by the Los Angeles Superior Court, consisting of statutory requirements and its own guidelines, were rationally related to the grand jury fiinction. The pool of persons who were eligible, qualified, and willing to serve as grand jurors was not unlimited. Hence, in evaluating nominees, the court considered any traits, skills, and experience that would assist the grand jury in conducting its investigations and preparing its reports. The testimony indicated that these standards were broadly inclusive and did not seek to eliminate persons based on occupation or education. (See People v. Brown (1999)
Finally, in implementing the screening process, the Los Angeles Superior Court was evidently aware of its constitutional duties in selecting grand jurors, including the requirement that no one be excluded “ ‘because of [their] race or color.’ ” (Castaneda, supra,
Thus, unlike Castaneda, on which defendant so heavily relies, the present record is filled with—not devoid of—evidence of the nondiscriminatory “motivations and methods” of the judicial officers who selected the grand jury pool. (Castaneda, supra,
B. Trial Jury Selection Process
Defendant maintains the trial court erred by excusing, for cause, a prospective juror who expressed “pro-life” views, and by rejecting his claims that the prosecutor’s peremptory excusáis of three female prospective jurors were improperly motivated by gender bias. All such contentions lack merit.
1. Overview
We summarize the process used to select the trial jury in this case—context that defendant fails to provide in challenging such procedures on appeal. The process began with 160 prospective jurors. After a prehminary screening, which resulted in numerous excusáis on hardship grounds, a pool of 75 prospective jurors remained. All 75 persons completed an 18-page questionnaire, which they were required to sign under penalty of perjury. The written questions were the product of substantial collaboration between the court and counsel. About 25 percent of the questions concerned the death penalty.
2. Challenge for Cause
Defendant claims the trial court erred in granting the prosecution’s challenge for cause to D.G., who was one of the first 18 persons to undergo voir dire. He argues here, much as he did below, that the ruling violated Wainwright v. Witt (1985)
The record discloses that D.G. expressed personal opposition to capital punishment on her questionnaire. She indicated that she “strongly agree[d]” with the statement that “[ajnyone who commits murder, attempted murder and sexual assaults should never get the death penalty.” She explained her answer to this and other questions—including one soliciting her general views on the death penalty—by writing, “I do not believe in the Death Penalty.” She also wrote that no one “should die at the hands of the Death Penalty,” and that her preferred outcome in cases involving violent crimes was “jail for life.” When asked to identify cases in which the death penalty
On voir dire, the trial court first inquired whether D.G. held strong views on punishment. Echoing her questionnaire, D.G. said, “Right. I just don’t believe in the death penalty.” When the court noted that D.G. had circled “NO” in response to written questions about rejecting death or life imprisonment without parole in appropriate cases, she exclaimed, “Oh, I can vote for life.” The court next asked whether there were “any circumstances you can imagine that you think death might be appropriate.” D.G. replied—again, tracking her questionnaire—“no.”
An exchange then occurred in which the trial court explored possible exceptions to D.G.’s apparent refusal to impose death in any case. When the trial court mentioned “Charlie Manson, serial killer,” D.G. acknowledged hearing about the case on television, but twice said, “I don’t know” in response to the court’s question about the appropriate punishment. D.G. was also asked whether she could vote to impose the death penalty on Jeffrey Dahmer, another notorious serial killer who sexually assaulted and tortured his victims, among other things. D.G. indicated that she was familiar with the Dahmer case, but replied, “No, I couldn’t [impose death]. I am just one that don’t [sz'c] believe in the death penalty.” The court then posed its final inquiry along these lines, asking whether it was “possible” to reject life imprisonment without parole and vote for death if the aggravating evidence substantially outweighed the mitigating evidence. D.G. essentially answered in the negative, as follows: “It would be hard for me to, you know, vote that way. But again, I just don’t believe in the death penalty. That is just my belief. I believe that we are put here on this earth to remain here unless otherwise, you know, from an illness or some other act we are taken away from here. I just can’t see it. I just don’t believe in it.”
Defense counsel’s followup examination consisted of a series of “yes” or “no” questions. At the outset, D.G. answered affirmatively when asked if she understood that defendant was entitled to jurors who held a diversity of views, that the law did not require any juror to vote for death in a given case,
The prosecutor posed only a few questions. All of them confirmed D.G.’s personal feelings that she could not vote for the death penalty regardless of the circumstances of the case. At a sidebar conference, the prosecutor challenged D.G. for cause. Defense counsel objected on the ground D.G. gave appropriate answers to, i.e., “walked through,” counsel’s questions about following the law and instructions, and considering the death penalty. The trial court disagreed, saying, “I don’t think she walked through it. She was carried through it ... . Even [so], she slipped out a little burst of independent thought there that she was not in favor of the death penalty. [(J[] I think her feelings are clearly strong enough to interfere with following the court’s instruction.” The challenge for cause to D.G. was granted as a result.
Based on the foregoing developments, defendant contends that D.G. showed no disqualifying bias, and should not have been excused for cause, because her personal opposition to the death penalty would not have prevented her from imposing death “under any circumstances.” Defendant relies heavily here, as below, on defense counsel’s examination of D.G.
In Witherspoon v. Illinois (1968)
In a related vein, trial court findings regarding a prospective juror’s views on capital punishment are entitled to substantial deference on appeal. (People v. Avila, supra,
Applying this deferential standard here, we find ample evidence to support the trial court’s determination that D.G.’s opposition to the death penalty would, at the very least, “ ‘substantially impair’ ” the performance of her duties as a juror. (Witt, supra,
Contrary to what defendant implies, D.G. never “state[d] clearly,” in her own words, that she wa.s willing or able to set aside these personal views and reject a sentence of life imprisonment without parole. (People v. Avila, supra,
3. Wheeler/Batson Claim
Defendant insists the trial court erred in denying his motion for a mistrial after the prosecutor allegedly displayed gender bias by using her first three peremptory challenges against female prospective jurors. He argues here, as below, that such conduct violated the state constitutional right to a representative jury (People v. Wheeler (1978)
As noted, after the 75 members of the jury pool completed their questionnaires, the court called 18 of them into the jury box. During the ensuing voir dire, the parties stipulated to excuse one woman, K.M., based on her past experience with violent crime and the court system. The prosecutor also dismissed another woman for cause, D.G., as discussed above. The parties then took turns exercising peremptory challenges against the 16 prospective jurors left on the panel. Critical here is the prosecution’s use, at that time, of peremptory challenges against M.E., T.B., and N.F.—all three of whom were women. Defense counsel, in turn, struck one male and one female prospective juror. Seven more people were called into the box. The court and counsel questioned one of them, G.C., who answered mostly at the bench, outside the hearing of other jurors.
Immediately after G.C. returned to the jury box, and shortly before the court session ended for the day, defendant moved for a mistrial. Citing Wheeler, supra, 22 Cal.3d 258, defense counsel simply said, “The three peremptories that were exercised by [the prosecutor] were all women.”
When voir dire resumed the next day, the court and counsel continued questioning the panelists who had been newly seated in the jury box near the end of the prior session, including G.C. During this process, the parties stipulated to the excusal of one female prospective juror, and a female replacement was called and questioned in the box. The court also acted on several challenges for cause. Once peremptory challenges against the remaining panelists began, defendant excused a woman. The prosecutor exercised the next peremptory challenge—her fourth overall—against M.D., who was a man.
Defense counsel responded by “renewing” his Wheeler motion from the previous day, and by also invoking Batson, supra,
As before, the trial court found no Wheeler/Batson violation because there “clearly [was] no prima facie case.” However, consistent with its prior comments about handling such motions, the court invited the prosecutor to “list [her] reasons” for the disputed strikes anyway. As discussed further below, the prosecutor complied with this request as to two of the women, M.E. and N.F., and as to the Hispanic male, M.D. However, regarding the third woman in the excused group, T.B., no reasons were given for her peremptory challenge. The prosecutor explained that she left her notes from the previous day “upstairs,” and that she could not independently recall why she had excused T.B. The court denied defendant’s motion for “lack of a prima facie case.”
Defendant renews his Wheeler/Batson claim on appeal. He maintains that by using “all of her early peremptory challenges against women,” the prosecutor created a “statistical” scenario amounting to a prima facie Wheeler/Batson case. Because the trial court reached a contrary conclusion, and found no grounds for soliciting or analyzing the prosecutor’s reasons for all of the disputed strikes, defendant insists we must either reverse the
At issue are the requirements for establishing a prima facie case of group bias in the use of peremptory challenges. In this first stage of any Wheeler/Batson inquiry, the defendant must show that “ ‘the totality of the relevant facts gives rise to an inference of discriminatory purpose.’ ” (Johnson v. California (2005)
Other core principles guide the manner in which we review a finding that no prima facie case arose under Wheeler/Batson. First, in Johnson v. California, supra,
Second, in conducting this independent review and determining whether such an impermissible inference exists, we have the benefit of “the entire record” created on voir dire. (People v. Yeoman (2003)
Contrary to what defendant contends, no prima facie case arose based on the sheer number of peremptory challenges underlying the present WheelerlBatson claim. Here, as elsewhere, the “ ‘absolute size of th[e] sample’ ” undergoing such scrutiny is “ ‘small.’ ” (People v. Bonilla (2007)
A broader statistical view also undermines the present WheelerlBatson claim. We recently declined to disturb a ruling that no prima facie case arose where our review of the entire record showed that the percentage of prosecutorial strikes in issue did not exceed the percentage by which the relevant group was represented either in the jury pool or on the actual jury that was impaneled. (See Bonilla, supra,
Here, the prosecution’s approach to the cognizable group (females) seems even more favorable than in the foregoing cases. Women comprised 56 percent of the jury pool (42 of 75). They also represented 72 percent of the first panel called into the jury box (13 of 18), and 68 percent of the same panel after challenges for cause occurred (11 of 16).
Finally, the record contains gender-neutral reasons supporting each of the three peremptory challenges contested on appeal. In explaining her dismissal of M.E., a young Hispanic woman, the prosecutor noted that M.E. disclosed, both orally and in writing, that numerous friends had been killed in violent gang activities; that other friends were confined at the time on serious charges stemming from driveby shootings, including attempted murder; that her ex-boyfriend was jailed on pending drug charges; and that her brother had been falsely accused by the police of drug possession and was eventually acquitted by a jury of the crime. Such potentially negative contacts with the criminal justice system gave the prosecutor ample reason to excuse M.E. without regard to her gender. (See People v. Lewis and Oliver (2006)
We likewise see nothing discriminatory in the prosecutor’s stated reasons for excusing N.F., a 57-year-old Caucasian woman. This prospective juror stated on voir dire, consistent with her questionnaire, that she had previously served on a jury that deadlocked over “intent” in a felony case. She acknowledged that she was one of the persons responsible for the hung jury, that she felt harassed by other jurors during deliberations, and that she learned from that experience to avoid being swayed by the views of others. When asked by the trial court about imposing the death penalty, N.F. indicated that “intent” could again play a key role in her decision. N.F. further indicated that it might be “easier” to vote for life imprisonment than for death even where aggravating evidence outweighed mitigating evidence. In short, we see no gender bias in the prosecutor’s express concern about N.F.’s possible closemindedness and reluctance to impose the death penalty. (See, e.g., Bonilla, supra,
We reach a similar conclusion as to T.B., the prospective juror whose peremptory challenge the prosecutor had no chance to explain. (See Bonilla, supra,
IV. PENALTY ISSUES
A. Victim Impact Evidence
Defendant claims the trial court erred in admitting victim impact evidence. He asserts violations of his rights to due process, effective representation, and a fair and reliable penalty determination under the Sixth, Eighth and Fourteenth Amendments of the federal Constitution, and under parallel provisions of the state Constitution. No error occurred.
In January 1995, after the guilt verdict was returned and before the penalty trial began, defendant moved orally and in writing to limit victim impact evidence on constitutional grounds similar to those raised on appeal. He also claimed the evidence was unduly prejudicial under Evidence Code section 352. At the hearing on the motion, which occurred at various times on different days, the proffered evidence underwent review. The court and counsel watched the entire videotape, which was prepared by L. around January 1994. Certain parts were then rerun frame by frame. The prosecutor also described, in detail, the testimony, photographs, and documents she sought to present through L. on the stand.
After considering argument on both sides, the trial court denied the motion. The court disagreed with defendant that the victim impact evidence was irrelevant and inflammatory because it was not limited to circumstances occurring “right after the event.” The court also rejected defendant’s claim that L.’s testimony and the videotape were cumulative. Focusing on specific features in the videotape, the court encountered only two instances of “dramatization,” namely, an echo effect heard during the Finzels’ wedding ceremony (when Joseph says, “until death do us part”), and the background song about a “hero” and “villain” that played at the end of the videotape. However, the court found that the videotape was not substantially more prejudicial than probative, noting that it seemed “less emotional” than L.’s testimony at the guilt phase. When asked to reconsider its ruling later, shortly before the prosecution began presenting evidence in its case-in-chief, the court declined to do so.
State law is consistent with federal law in this regard. “Unless it invites a purely irrational response from the jury, the devastating effect of a capital crime on loved ones and the community is relevant and admissible as a circumstance of the crime . .. .” (People v. Lewis and Oliver, supra,
Defendant first challenges the penalty testimony and related evidence presented by L. because it was not limited to the “ ‘immediate injurious impact’ ” of the capital crime, or to effects “known or reasonably apparent” to defendant at the time it was committed. Under this view, any victim impact evidence that exceeds such bounds is impermissible, particularly where the events occurred “many years before or after the victim’s death.”
We have rejected similar claims before and do so again here. (People v. Lewis and Oliver, supra,
In the present case, the challenged evidence was presented by a single witness, L.—a direct surviving victim of defendant’s violent acts. She summarized the positive traits, favorite pastimes, close relationships, and future aspirations of her murdered spouse. In portraying Joseph as a “unique” individual (Payne, supra,
We also disagree that certain details were too inflammatory and prejudicial to include in any valid victim impact presentation. For instance, L. could properly describe the concern Joseph showed in the hospital during Brinlee’s birth, including any complications that arose at that time. Such evidence showed the nature of the family bond, and the corresponding loss of Joseph as a husband and father. (See People v. Hartsch (2010)
Finally, defendant claims the trial court erred in admitting the videotape because such evidence contained “special effects” that prejudiced the jury against him. He complains on appeal, much as he did at trial, about “repeated flashbacks to scenes from Jo[seph] and L[.]’s wedding, a photo montage, including pictures of Jo[seph] as a young boy, one with him fast asleep on a couch next to a sleeping puppy; music; lyrics; echo effects; and voiceovers.”
Videotapes may be used for victim impact purposes in capital penalty trials. We have said, however, that trial courts must take care in
Kelly seems highly relevant here. There, the defendant was convicted of robbing, raping, and murdering a 19-year-old woman, Sara, who was a Native American and who had been adopted as an infant into a Caucasian home. At the penalty phase, Sara’s mother described Sara’s life and the pain her death had caused family and friends. Over defendant’s objection, the prosecution also played a 20-minute videotape that Sara’s mother had prepared. It consisted of video clips and still photographs spanning Sara’s life, with the voice of her mother calmly narrating events in the background. The music of Enya played through most of the video, but the volume was soft and the lyrics were faint. On screen, Sara was seen singing with a school group, including the song, “You Light Up My Life.” Other images showed her swimming, horseback riding, and interacting with family and friends. Near the end of the videotape, Sara’s mother stated that she does not dwell on the “terrible crime.” (Kelly, supra,
Rejecting the defendant’s contrary claims, Kelly held that because the presentation was relevant and not unduly emotional, it was permissible. (Kelly, supra,
At most, only two questionable elements emerged—the background music by Enya and the horseback-riding scene from Canada. Kelly made clear that
No different result is warranted here. After reviewing the videotape, we agree with the trial court, which conducted its own careful analysis, that there is nothing objectionable about the manner in which the videotape was edited and prepared. The “flashbacks” to which defendant objects “were simply photographs being shown,” in the words of the trial court. The complained-of “voiceover” is L. speaking in a somber, almost flat, tone about scenes from her everyday life with Joseph. For the reasons discussed above, the images themselves are factual and relevant. Though L. is seen wiping tears away while describing some of these events, she never loses her composure on tape.
As noted, two audio features caught the trial court’s attention—the echo effect accompanying the phrase “until death do us part” in the Finzels’ wedding ceremony, and the “hero/villain” song that played during the photo montage at the end of the videotape. Though more dramatic than factual, these features seem fairly unobtrusive in context, and do not fundamentally alter the subdued tone of the presentation. In any event, we need not decide whether the contrary is true, because any error was clearly harmless. For the reasons set forth in Kelly, supra,
Defendant contends the trial court erred in denying him a continuance near the end of the penalty trial to present surrebuttal testimony by Dr. Kaser-Boyd. He claims violations of his right to counsel, to present evidence, to due process and a fair trial, and to a reliable penalty determination under the Sixth, Eighth, and Fourteenth Amendments of the federal Constitution, and under parallel provisions of the state Constitution.
1. Background
During the People’s case-in-chief, and outside the jury’s presence, the trial court denied the prosecutor’s request to prevent Dr. Kaser-Boyd from testifying that defendant was sexually fondled as a child by his mother Suszanne’s first husband, Rudy Garcia. Contrary to what the prosecutor claimed, the court found sufficient evidentiary support for this incident, namely, information Dr. Kaser-Boyd had obtained from defendant’s grandfather, Fred Baumgarte, who saw the fondling. The court explained that prosecutorial concerns over the details of the incident, and the circumstances under which it was conveyed to Dr. Kaser-Boyd, merely affected “the weight,” not the admissibility, of her testimony, and could serve as “ammunition” to challenge her expert opinions in court. The prosecutor confirmed during the hearing that she planned to “get the grandparents here,” meaning, to call both Fred Baumgarte and his wife, Dorothy, as rebuttal witnesses.
As noted, Dr. Kaser-Boyd testified for the defense that child sexual abuse heightened the risk of criminality and dysfunction in defendant as an adult. She reported being “told” by Fred Baumgarte that defendant was “touched in a sexual way” by Rudy Garcia at age three or four. On cross-examination, Dr. Kaser-Boyd admitted that she had prepared no written report for defense counsel, and that her testimony was based on her memory of interviews with
During the cross-examination of Dr. Kaser-Boyd, the trial court expressed concern over scheduling and the length of the trial. Outside the jury’s presence, the court noted that “our time estimate originally is way off, we have lost two alternates, we are down to four . . . [and there is] a lot of restlessness [and] squirming on the part of the jury.” The court promised to clear its calendar and to prevent further delay. Counsel were told that jury deliberations should begin soon, preferably that same week.
After Dr. Kaser-Boyd was excused as a witness, the defense rested its case. The prosecutor indicated that she was prepared to begin her case in rebuttal. The trial court expressed its preference for a “short” presentation. After a 10-minute recess, the prosecutor called her first rebuttal witness, Fred Baumgarte.
When asked about the fondling incident described by Dr. Kaser-Boyd, Fred Baumgarte testified that he saw defendant at age three or four standing on a table without any underpants, while Rudy held defendant’s penis between his thumb and finger. Rudy may have been preparing defendant for a bath, and Fred did not think the touching was sexual at the time. Fred realized that Rudy’s conduct was wrong only years later, after listening to media reports about child sexual molestation. Also, Fred recalled that the incident occurred when he and his wife visited defendant’s family in their trailer home, rather than when the family visited the Baumgartes’ house. Fred further testified that he remembered meeting personally with Dr. Kaser-Boyd in the presence of his wife and daughter, but did not recall talking to the doctor about the fondling incident either in person or on the phone—a point he repeated on redirect examination. On cross-examination, after Fred confirmed he had a hearing problem, defense counsel asked, “Your wife talked to you and then your wife talked back to the doctor?” Fred said, “Yes.”
The prosecution’s next rebuttal witness was Dorothy Baumgarte, Fred’s wife and defendant’s grandmother. After the defense sought an offer of proof, the prosecutor stated outside the jury’s presence that Dorothy would testify
After another witness testified on a different matter, the prosecution rested its rebuttal case. Outside the jury’s presence, defense counsel sought an unspecified amount of time to locate Dr. Kaser-Boyd to confirm that her conversations with the Baumgartes did occur. Otherwise, counsel argued, “every single underpinning” of Dr. Kaser-Boyd’s testimony and credibility was in doubt.
The trial court denied a continuance to the extent it would “shut down the trial.” The court noted that, at most, the jury would infer that “we have two elderly people who really don’t remember the conversations.” The court also observed that Dr. Kaser-Boyd was on the stand for several days, and that she was thoroughly examined by both parties about her conversations with everyone involved in the case. The court saw no reason to delay trial to rehash what the witness “has already stated.”
A discussion then ensued over exhibits and instructions. In the process, defense counsel said he believed that Dr. Kaser-Boyd was present in the courthouse and that he needed time to locate her so that she could testify on surrebuttal. The court did not reject the request. Instead, the court urged counsel to “find her, get her back in here” before closing arguments began.
After a brief recess and further discussions about other matters, counsel conceded that he had been unable to find Dr. Kaser-Boyd and that he again sought a “slight delay” in order to do so. The court declined to grant a continuance, but noted that “if at some point you find her, you can let me know and we will see where we are and if there is something we can do.”
After the jury received its instructions, and before the prosecutor finished presenting her closing remarks, the court granted a defense request to admit into evidence Dr. Kaser-Boyd’s handwritten notes of her interviews with the Baumgartes. The notes, which appeared on a single sheet of paper, bore the Baumgartes’ names, their telephone number, and the date of the telephone call. Dorothy’s name was circled, and Fred was said to be hard of hearing. Consistent with the testimony of both Dr. Kaser-Boyd and Fred Baumgarte, the notes further indicated that Fred reported seeing defendant, at age three or
2. Analysis
Defendant claims the trial court erred in not granting his request for more time to find and call Dr. Kaser-Boyd as a witness, after she was excused by the defense, to rebut the Baumgartes’ testimony concerning their contact with her before trial. Defendant insists he was denied the opportunity to “rehabilitate” Dr. Kaser-Boyd on this issue, and that her credibility suffered as a result.
A criminal trial may be continued only for good cause (§ 1050, subd. (e)), and the trial court has broad discretion in handling the request. (People v. Doolin (2009)
First, the trial court did not act arbitrarily in managing the proceedings. The defense was never barred from returning Dr. Kaser-Boyd to the stand. Instead, the court merely declined to grant an open-ended continuance after it became clear that the end of testimony was near, and that the jury was anxious to deliberate. As defense counsel predicted, between the time that Fred and Dorothy Baumgarte each testified for the prosecution, Dr. Kaser-Boyd could not be located, and no surrebuttal testimony was forthcoming within a reasonable period of time.
Second, no dispute ever arose in connection with the requested continuance as to the substance of the information that Dr. Kaser-Boyd relayed at trial. The Baumgartes’ testimony, along with Dr. Kaser-Boyd’s notes, confirmed her account that Rudy Garcia touched defendant’s genitals when he was a young boy, that Fred Baumgarte witnessed the event, and that Dr. Kaser-Boyd consulted with the Baumgartes in preparing such testimony. Any impeachment of Dr. Kaser-Boyd concerned purely collateral matters as to the circumstances under which the fondling information was conveyed, and the nature of peripheral details that Fred described at the time. Thus, while the prosecutor questioned in closing argument whether the act Fred saw amounted to “sexual molestation,” no claim was made that Dr. Kaser-Boyd exaggerated or fabricated their conversations.
C. Prosecutor’s Closing Argument
Defendant argues that the prosecutor committed misconduct in closing argument, and thereby violated his due process and confrontation rights, and his right to a fair and reliable penalty determination. These claims rest on the Sixth, Eighth, and Fourteenth Amendments of the federal Constitution, and on parallel provisions of the state Constitution. We disagree.
1. “Animal” References
The prosecutor spent much of closing argument asking the jury to focus rationally on the aggravating evidence, which she said was “overwhelming,” and to impose death because no meaningful basis for mercy in defendant’s background or character was shown. After asking jurors to dismiss any suggestion that defendant was not the “worst of the worst” compared to other capital offenders, and reminding them of defendant’s calculated violence against the Finzels, the prosecutor insisted he should be held accountable for his “animalistic action.” The prosecutor, who was nearing the end of her argument, referred a few more times to defendant as an “animal” and a “predator” who pursued “sadistic passions.” Meanwhile, defense counsel objected twice at the bench that such argument was “improper” and constituted “misconduct.” Both objections were overruled.
Defendant now insists the prosecutor improperly waged a “personal attack” against him. The challenged remarks allegedly served no purpose other than to “denigrate and degrade” defendant before the jury.
The claim lacks merit. Prosecutorial argument “may include opprobrious epithets warranted by the evidence. [Citation.] Where they are so supported, we have condoned a wide range of epithets to describe the egregious nature of the defendant’s conduct.” (People v. Zambrano, supra,
Here, defendant broke into the Finzel home late at night, while armed with a gun. One month earlier, he had expressed an interest in raping a woman at gunpoint. The evidence suggested that he stood in the backyard, smoking, and peered through gaps in the bedroom blinds before entering the house. After seeing, perhaps, that L. was the lone adult inside, he waited until her most vulnerable moment to strike—while in bed with a baby by her side. After sexually assaulting and hog-tieing L., defendant positioned the bedroom door to ensure that Joseph, whom defendant knew might be arriving soon, would be shot by surprise with his own gun. Defendant then shot L. to prevent her from summoning help. He stayed in the house for hours collecting valuables, repeatedly checking on her condition and waiting for her to die. The property he stole from the couple included the wedding ring on Joseph’s finger and anything else found in his tumed-out pockets as he lay dead or dying on the floor.
The epithets used by the prosecutor were not unreasonable or unfair in light of this evidence. We therefore conclude no misconduct occurred.
2. Victim “Letters ”
Near the end of closing argument, the prosecutor referred to defense evidence at the penalty phase showing that defendant had “two fathers”—his “stepfather,” Rudy Garcia, and his “real father,” Patrick Grandchampt—with whom he could communicate. Jurors were reminded that defendant had deprived Garrett and Brinlee, as youngsters, of the same benefit by murdering their father, Joseph. The prosecutor asked the jury to consider the emotional pain Garrett felt after his father’s murder. Referring to the letters that defendant wrote during trial to Patrick Grandchampt, the prosecutor also asked jurors to imagine how Garrett might describe such pain “if he could write a letter” to his father. Defense counsel sought a bench conference, and insisted that any reference to a hypothetical letter from Garrett was improper. The court overruled the objection, and prosecutorial argument resumed.
On appeal, defendant complains that the prosecutor served only to stir the passions of the jurors by asking them to place themselves in the position of the murder victim’s children and to judge defendant harshly. He also suggests that jurors were thereby invited to speculate about irrelevant future events, and to consider matters outside the trial record.
In closing argument, prosecutors have wide latitude in asking jurors to draw reasonable inferences from the evidence. (People v. Lewis and Oliver, supra,
Moreover, the substantive point being illustrated was permissible under the victim impact principles set forth above. Jurors were simply asked to draw reasonable inferences from evidence of the family’s close relationship and favorite activities about the long-term effects of Joseph’s murder on his children. Indeed, having threatened Brinlee in her bassinet and peered into Garrett’s bedroom, defendant knew about both children when he fatally shot their father and tried to kill their mother. The “letters,” which were not particularly artful, contained no information that could not otherwise have been properly conveyed to the jury. Hence, we reject the present misconduct claim.
D. Victim Impact Instruction
Defendant argues that the trial court erred in failing to instruct sua sponte on the proper use of victim impact evidence. He alleges violations of his rights to due process and a reliable penalty determination under the Sixth, Eighth, and Fourteenth Amendments of the federal Constitution, and under parallel provisions of the state Constitution. No error occurred.
At the penalty phase, the trial court gave standard instructions defining the aggravating and mitigating factors (CALJIC No. 8.85), describing the process of weighing such factors in order to reach an appropriate penalty verdict (CALJIC No. 8.88), and prohibiting jurors from being influenced by bias or prejudice against defendant or swayed by public opinion or public feelings (CALJIC No. 8.84.1).
Relying solely on out-of-state cases, defendant insists the trial court should have given an additional instruction on its own motion, as follows: “Victim impact evidence is simply another method of informing you about the nature and circumstances of the crime in question. You may consider this evidence in determining an appropriate punishment. However, the law does not deem the life of one victim more valuable than another; rather, victim impact evidence shows that the victim, like the defendant, is a unique individual. Your consideration must be limited to a rational inquiry into the culpability of
However, we have previously considered similar claims regarding a substantially similar instruction, and have concluded that it need not, and should not be given. (People v. Zamudio, supra,
We adhere to these principles and authorities, and reject defendant’s instructional claim.
E. Constitutional Challenges to Death Penalty Law
Defendant raises numerous challenges to the death penalty law under the Sixth, Eighth, and Fourteenth Amendments to the federal Constitution, and to the manner in which it was applied to him. He mainly seeks to preserve and litigate such issues later. (See People v. Schmeck (2005)
Section 190.3, factor (a), allowing consideration of the circumstances of the capital crime, does not license the arbitrary and capricious imposition of the death penalty. (People v. Gamache (2010)
The death penalty law, and standard instructions based thereon, are not flawed insofar as they fail to require proof beyond a reasonable doubt as to whether (1) aggravating factors were present, (2) the aggravating factors
There is no constitutional requirement to instruct either on any burden of persuasion regarding the penalty determination, or on any presumption that life without the possibility of parole is the favored or appropriate penalty. (People v. Taylor, supra,
Standard instructions are not flawed insofar as they allow a death verdict if aggravation is “so substantial” compared with mitigation, such that death is “warranted.” (People v. Russell (2010)
Under the relevant law and instructions, the trial court did not err insofar as it failed to (1) delete assertedly inapplicable sentencing factors, (2) instruct as to which sentencing factors are aggravating and which are mitigating, or (3) instruct that the absence of mitigation in certain statutory categories was not aggravating. (People v. Stitely, supra,
California’s automatic appeals process is constitutional even though it affords no intercase proportionality review. (People v. Anderson, supra,
F. Cumulative Error and Prejudice
Defendant complains about the cumulative effect of alleged errors at his penalty trial. We have individually rejected his claims of error and/or have
V. DISPOSITION
The judgment is affirmed in its entirety.
Cantil-Sakauye, C. J., Werdegar, J., Chin, J., Corrigan, J., and Kane, J.,
Notes
All further statutory references are to the Penal Code except as otherwise stated.
Aguirre testified that defendant smoked cigarettes, and that he had Camels in his possession on May 8, 1993.
Consistent with a prior ruling of the trial court, L. held Brinlee in her lap on the witness stand while identifying her to the jury. Immediately thereafter, L. evidently handed Brinlee (who said “bye-bye”) to the prosecutor, who was standing nearby. It appears the child was then promptly given to someone else located in the spectator section of the courtroom.
On cross-examination, Fred Garcia noted that Rudy and Cecelia were both Filipino, but that Rudy was raised in the United States and Cecelia was not. Fred opined that “upbringing or culture” may have explained their disparate parenting styles, with Cecelia being “the one with the backbone.”
On cross-examination, Tomanka disclosed certain criminal acts that defendant allegedly committed as a juvenile. Some of these allegations were dismissed following defendant’s favorable performance on probation (e.g., burglary, unauthorized use of a motor vehicle, and possessing alcohol). Others led to adjudications of guilt (e.g., theft, assault, criminal trespass, and being a runaway). Penalty instructions prevented the jury from considering evidence of any crime in aggravation unless it either involved force or violence or resulted in a prior felony conviction. (See § 190.3, factors (b), (c).)
Dr. Kaser-Boyd alluded to another sex act that Rudy Garcia allegedly committed against defendant as a child. Offering few details, she noted that the incident differed from the one reported by Fred Baumgarte, that it involved oral copulation, and that it was disclosed to her by defendant’s uncle, Reginald Baumgarte. Reginald did not testify at trial.
The indictment contained seven counts and related allegations. The first six counts ultimately produced the guilty verdicts we have described: first degree murder of Joseph Finzel with special circumstances (count I), attempted premeditated murder of L. (count II), burglary of the Finzel residence (count HI), robbery of L. (count IV), attempted forcible rape of L. (count V), and forcible oral copulation of L. (count VI). Count VII of the indictment alleged an additional act of forcible oral copulation against L. The latter count was dismissed at the People’s request at trial.
The judicially noticed items are included in the instant record on appeal. They consist of 19 volumes, or nearly 5,000 pages, of transcribed testimony and documentary exhibits from
Gomez personally testified in this case that she worked as the manager of juror services for the Los Angeles County Superior Court, and was familiar with the manner in which both grand and trial jurors were selected. She had held that post for about two and one-half years before the hearing. Gomez’s predecessor, Blankenship, ran the court’s juror management division from 1988 through 1992. Blankenship’s testimony was admitted in transcribed and judicially noticed form.
The one-year period in Los Angeles County runs from July 1 through June 30. Defendant was indicted on June 3, 1993, during the 1992-1993 grand jury term.
Defendant introduced two sets of Committee guidelines in the present case. The first document, called “Guidelines [for the] Selection of Grand Jury Nominees,” lists the statutory eligibility requirements for grand jury service, including a criminal background check. These guidelines also describe the time and service commitments required of grand jurors, such as the restriction on personal involvement in political campaigns during their term, the need for a written release from any employer if job demands would conflict with grand jury duties, the inability of grand jurors to take extended vacations or to miss any meetings in July, and the modest fee and mileage costs paid for such attendance. The last item in this document describes groups whose nomination would appear to raise a conflict of interest (e.g., relatives of any nominating or sitting judge, county employees, and active peace officers).
The second document, “Guidelines for Interviewing Prospective Grand Jurors,” advises that candidates be told about the time, service, and pay standards for grand jurors, and about the criminal background check. It further suggests questions on the candidate’s knowledge of the grand jury function, past experience and level of responsibility in community affairs, special interest in or qualification for grand jury service, and specific skills (e.g., accounting, communications, report writing, and interviewing). The interviewer is asked to rate the candidate, and to note the rating on the application (i.e., “exceptionally well qualified,” “well qualified,” “qualified,” and “uncertain”).
For instance, every volunteer candidate who applied for the 1990-1991 term (excluding those who later withdrew or missed the interview) was nominated as a grand juror. That year, such volunteers comprised 40 percent of the pool.
Regarding these outreach efforts, the trial court admitted into evidence, among other things, a photocopy of a newspaper announcement titled County Seeks Grand Jurors, dated Monday, November 27, 1989. The item invites qualified persons to apply for the upcoming grand jury term, lists the basic conditions of service, and describes how to obtain an application. In addition, the then presiding judge of the Los Angeles County Superior Court is quoted as seeking a grand jury pool that “ ‘reflects] the diverse makeup’ ” of the county, and urging interested “ ‘[B]lack, Hispanic or Asian’ ” citizens to volunteer.
Gomez, who managed jury services for the superior court when the instant hearing occurred, testified that Los Angeles County did not, at that time, maintain a “second,” or additional, grand jury under statutes providing that option.
For instance, the grand jury investigates and reports on operations, accounts, and records of county departments and districts (§ 925), housing (§ 914.1), unindicted prisoners (§ 919,
Conversely, someone is not eligible to act as a grand juror if he or she is serving as a trial juror, has been discharged as a grand juror within the preceding year, has been convicted of a felony or other specified offense, or is serving as an elected public official. (§ 893, subd. (b).) Certain exemptions and excuses also apply to grand jury service similar to those regulating trial jurors. (§ 894; see, e.g., Code Civ. Proc., § 219 [restrictions on peace officers as jurors].)
An “alternate” grand jury nomination procedure exists. (4 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Introduction to Criminal Procedure, § 32, p. 48.) In this system, the jury commissioner, applying written standards adopted by a majority of the superior court, furnishes the judges annually with “a list of persons qualified to serve as grand jurors.” (§ 903.1.) From this list, a majority of judges may select persons who, “in their opinion,” should serve as grand jurors, provided they are “suitable and competent,” as required by law. (§ 903.3.) However, the judges “are not required to select any names from the list returned by the jury commissioner.” (§ 903.4.) Rather, they may, “if in their judgment the due administration of justice requires, make all or any selections from among the body of persons in the county suitable and competent to serve as grand jurors.” (Ibid.)
As noted, Castaneda echoed older cases that required a defendant asserting an equal protection claim to show that the challenged procedure resulted in the substantial underrepresentation in the grand jury pool “of his race or of the identifiable group to which he belongs.” (Castaneda, supra,
We also cannot ignore intervening developments that could complicate application of Castaneda's prima facie test here. As noted by the trial court in this case, the high court held in Duren, supra,
In deciding whether the latter element exists under the Sixth Amendment and Duren, this court has declined to “infer]]” or “speculate]]” from a mere statistical showing of substantial underrepresentation in trial jury venires, plus identification of a feature of the selection process that might have produced the disparity, that a constitutional flaw affected the selection process or caused such disparity. (People v. Bell (1989)
At the time of trial, Code of Civil Procedure former section 223 stated: “In a criminal case, the court shall conduct the examination of prospective jurors. However, the court may permit the parties, upon a showing of good cause, to supplement the examination by such further inquiry as it deems proper .... Voir dire of any prospective jurors shall, where practicable, occur in the presence of the other jurors in all criminal cases, including death penalty cases.” (Added by Prop. 115, as approved by voters, Primary Elec. (June 5, 1990).) Effective January 1, 2001, the statute was amended to give counsel for each party an expanded, though not unlimited, right to examine prospective jurors through direct oral questioning. However, the provision regarding group voir dire remained unchanged. (Code Civ. Proc., § 223, as amended by Stats. 2000, ch. 192, § 1, p. 2216.)
Here, as in other capital trials, defendant was “entitled to 20 and the people to 20 peremptory challenges.” (Code Civ. Proc., § 231, subd. (a); see id., § 234 [allowing each side “as many peremptory challenges to the alternate jurors as there are alternate jurors called”].) As indicated below, neither party exhausted its allotment of peremptory challenges in choosing the actual and alternate jurors.
Less adamant were certain written responses showing how D.G. might apply her sentencing views in a capital case. For instance, she answered “no” when asked if she would “always” vote either for life imprisonment without parole or for the death penalty, regardless of the evidence, in a first degree murder case involving a felony-murder special circumstance. She indicated that she would consider all of the circumstances of the case before deciding between the two available penalties, and that she could not see herself rejecting the death penalty or, conversely, life imprisonment without parole “in the appropriate case.” D.G. gave no answer when asked to identify significant or meaningful factors in deciding the appropriate penalty.
Though not mentioned in his briefs on appeal, defendant made six other Wheeler/Batson motions, all but one of which involved selection of the 12-member jury rather than the six alternate jurors. Such motions concerned the prosecutor’s peremptory challenge of persons with various ethnic backgrounds, including V.D., whom defense counsel described as coming “from a Baltic state.” Each time, the trial court denied the motion after finding no prima facie case. At one point, the prosecutor complained about the numerous males excused by the defense, including Asian and Hispanic men. The court viewed the latter comment as a “warning” about a possible Wheeler/Batson motion by the prosecutor—a motion that was never made. (See Wheeler, supra,
Women also outnumbered men on all but one of the other six panels called into the jury box to undergo voir dire. At the high end were the fifth and sixth such groups, which each started with 12 women and six men. At the other end of the spectrum was the third 18-person group, which held an equal number of women and men, i.e., nine each. Men never outnumbered women on any panel.
Not surprisingly, the panel of six alternate jurors was also largely female. Four of the six, or 66 percent, were women. Like the defense, the prosecution exercised two peremptory challenges in selecting the alternate jurors, only one of which involved a woman. Thus, as with the actual jury, the prosecution used only half of its peremptory challenges against female prospective alternate jurors.
As noted, Brinlee briefly appeared on the witness stand when L. began testifying at the penalty phase. (See ante, fn. 3.) Defendant argues here, as he did unsuccessfully below, that there was no need for Brinlee to be seen in court, and that her presence was unduly prejudicial. However, we see no reasonable possibility that this fleeting event affected the verdict. Nothing supports defendant’s claim that the prosecutor “cradlfed]” Brinlee in an ostentatious way. Also, the prosecution showed through testimony, photographs, and videotape evidence that Brinlee was one of two young children whom Joseph, the murder victim, would never be able to see grow up, thus depriving him of the challenges and joys of parenthood. The jury could not have discerned anything from seeing Brinlee in person that it could not otherwise have inferred from the evidence.
The Attorney General argues that defendant never asserted any violation of the federal or state Constitution in seeking a continuance at trial, and therefore has failed to preserve such claims on appeal. Based on settled law, we disagree. Here, as in certain other instances in this case, it appears that either “(1) the appellate claim is of a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting defendant’s substantial rights) that required no trial court action by the defendant to preserve it, or (2) the new arguments do not invoke facts or legal standards different from those the trial court itself was asked to apply, but merely assert that the trial court’s act or omission, insofar as wrong for the reasons actually presented to that court, had the additional legal consequence of violating the Constitution. To that extent, defendant’s new constitutional arguments are not forfeited on appeal.” (People v. Boyer (2006)
The hypothetical Garrett letter was delivered, in full, as follows: “Dear Dad, I love you very much. I miss you so very much. I know some day I’ll see you again. But in the meantime, I remember how you were my best buddy, how you tucked me in at night, how we played together, camped together, and how you wanted to ride motorcycles together with me, and how you and Mom included me in everything. I remember the wedding. And I remember Christmas’s [sic] with you. I remember when you and Mom took me to my first day of school. You were always there, Dad. Then Randy Garcia took you away from me one weekend when I
The hypothetical Brinlee letter was delivered, in full, as follows: “Dad, I am so sorry that I never even got to know you. I will only get to know you from photographs and stories that Mom and other people tell me about you. I will only know you from videos and things that Mom had saved, but I know how much you loved me. I can tell from those stories and from those photographs. Mom’s made it clear how much you loved me. I wish I even had one hour with you that I could remember. But I have no memories at all because Randy Garcia took your life as I lay by you in my bassinet. I will never have you to walk me to school at all. I will never have you to walk me down the aisle and to give me away at my wedding. You will never know my children. Dad, why does Randy Garcia get to meet his dad and have a relationship with him when I’ll never get that same opportunity?”
Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Concurrence Opinion
I join in affirming defendant’s judgment of death. I write separately because, although I agree with the majority that defendant’s challenge to the grand jury selection process lacks merit, I reach that conclusion by using a somewhat different analysis.
In June 1993, the Grand Jury of Los Angeles County returned an indictment charging defendant with, among other things, the murder of Joseph Finzel. Thereafter, defendant moved in superior court to dismiss the indictment, alleging that the process used to select the grand jurors discriminated against women and Hispanics in violation of the equal protection guarantee of the federal Constitution’s Fourteenth Amendment. The trial court held a hearing at which both the prosecution and defendant submitted evidence, after which the court denied the motion. On this appeal, defendant argues that the trial court erred in so ruling.
Although the prosecutor argued in the trial court that defendant’s equal protection claim is controlled by the United States Supreme Court’s decision in Duren v. Missouri (1979)
Under Castaneda, a defendant raising an equal protection claim regarding the selection of grand jurors must make a prima facie case of purposeful discrimination. “The first step is to establish that the group is one that is a recognizable, distinct class, singled out for different treatment under the laws, as written or as applied. [Citation.] Next, the degree of underrepresentation
Here, the majority says it is “not entirely certain of the elements of a prima facie equal protection violation.” (Maj. opn., ante, at p. 735.) Because of this uncertainty, the majority declines to determine whether defendant made a prima facie case of purposeful discrimination as to either women or Hispanics. (Id. at p. 737.) I do not share the majority’s uncertainty about the elements of a prima facie case. As the quotation in the previous paragraph shows, the prima facie case has two elements—the existence of a distinct, identifiable class, and a statistical showing of substantial underrepresentation over a significant period of time. (Castaneda, supra,
Both women and Hispanics form distinct, identifiable classes for purposes of equal protection analysis, so it is undisputed that defendant here established the first element of the prima facie case. (See maj. opn., ante, at p. 736 [stating that “the first prong of Castaneda's ‘prima facie’ test is met”].) Regarding the second element, the statistical showing of underrepresentation, the majority does not decide whether defendant presented sufficient evidence. (Id. at p. 737.) I conclude that defendant’s statistical showing was sufficient as to Hispanics but not as to women.
Regarding women, the record shows that from 1986 to 1994, 41.2 percent of the grand jury nominees in Los Angeles County were women, while women constituted 50.6 percent of the population. This translates to an absolute disparity of 9.4 percent, which is insufficient to raise an inference of purposeful discrimination. (See Swain v. Alabama (1965)
Regarding Hispanics, the record shows that from 1986 to 1992, only 6.6 percent of the grand jury nominees in Los Angeles County were Hispanics, while voting-age Hispanic citizens who spoke at least some English constituted 19.1 to 19.4 percent of the population. These numbers reveal an absolute disparity around 12.7 percent and a comparative disparity around 60 percent. Considering both absolute and comparative disparities (see Berghuis v. Smith (2010)
This presumption was supported by evidence that, when the grand jurors who returned the indictment against defendant were selected, Los Angeles County used a grand juror selection system that was “susceptible of abuse” (Castaneda, supra,
Nevertheless, despite the potential for abuse inherent in the system, I agree with the majority that the prosecution adequately proved that the underrepresentation of Hispanics on the grand jury did not result from any purposeful discrimination. Particularly persuasive is the evidence that (1) substantial efforts were made to persuade members of the Hispanic community to apply for grand jury service; (2) from 1986 to 1991, the percentage of Hispanic applicants was identical to the percentage of Hispanics nominated for the grand jury, showing that the nomination process did not reduce Hispanic representation; and (3) during the same period, trial judges nominated 73 percent of the interviewed applicants who identified themselves as “Hispanic,” compared to only 46 percent of interviewed applicants who identified
On this basis, I concur in affirming the judgment.
Appellant’s petition for a rehearing was denied October 12, 2011.