People v. Hardy

12, 1992.] Crim. No. Mar. [No. S004607. 23533. PEOPLE,

THE Plaintiff Respondent, REILLY, HARDY MARK Defendants JAMES EDWARD ANTHONY Appellants. Counsel Defenders, Laethem, Zall

Harvey R. and Fern M. under appoint- State Public Court, Brooks, ments Peter M. R. Silten and Supreme Philip Deputy Defenders, Keith, State Public and Maxwell S. under appointment by Court, Supreme for Defendants and Appellants. Millman, Andrews,

Michael G. K. R. S. Kathryn Jean Karen Sternberg, Kenwood, Neoma D. as Schryver, Andrew S. Love Suzi Alexander Amici Curiae on behalf of and Appellants. Defendants General, John K. de Van and Daniel E. Kamp Steve Lungren, Attorneys White, Williamson, Richard Iglehart B. Attor- Chief Assistant George General, Jr., General, neys Edward T. Fogel, Attorney Assistant Carol Wen- Pollack, General, Johnson, delin Acting Assistant Attorney Linda C. Susan Frierson, L. John R. Gorey Roy Preminger, Attorneys C. Gen- Deputy eral, for Plaintiff and Respondent. Opinion

LUCAS, C. J. Edward and Mark were each Hardy Anthony Reilly James convicted Los Angeles County of (Pen. two counts of first murder degree Code, 187; all further § references statutory are to this code unless otherwise stated) from resulting the stabbing death of and her Nancy Morgan eight- son, year-old Mitchell. Both defendants were also convicted of one count of conspiracy to commit (§ 182.) murder to collect life insurance proceeds. addition, the jury sustained six of eight charged special-circumstance allega defendant, tions for each finding that each murder was committed for murder, financial gain, that defendants committed a and that multiple they 190.2, killed while in (§ wait. lying (a)(1), (3), (15).) & subds. Defendant 653f, was also found guilty (§ of soliciting (b).) the murders. subd. trial, After the penalty phase the the jury set death for both penalty defendants. This (§ (b).)1 automatic. appeal subd. below,

For the reasons stated we conclude one multiple-murder special- circumstance finding must be set aside for each defendant but the judgment as to each defendant should be otherwise affirmed in its entirety. briefing addition to by parties, 1In we the have received substantial brief on the merits from the California Appellate Project as amicus curiae support Reilly. Hardy defendant

joins majority in the by of claims raised amicus curiae. For simplicity, we will refer to claims 118

Facts

Guilt Phase Nancy in Van from Cliff and

Jack lived across the street Nuys, Parsons 21,1981, from On an call Morgan. morning telephone he received May early Nevada; Morgan him call Morgan City, an Cliff Carson operator asking Mor- had Parsons called recently moved Nevada for business purposes. his wife since who concern he had been gan, telephoning because expressed to check seven the but no answered. asked Parsons morning Morgan one nothing if did so but saw anything wrong. his house to see Parsons amiss, He responded reported no one to his door. although pounding back then lift certain open this window, who instructed Parsons to Morgan, inside, door, and check the inside of reach unlock the back line. Parsons house. did so while waited on the When Morgan Parsons returned, I got now. to call Morgan, got hang right told “You up Van back to his hung up immediately driving police.” Morgan began Nuys home. Parsons, home and Morgan

Summoned arrived at police son, wife, their eight-year-old discovered the bodies Morgan’s Nancy, entered through Mitchell. Police determined that the house had been cut with cutters. front door on which the chain lock had been bolt security aid, fact.) In (As this an did not reveal latter investigation police publicly addition, it had light bulb been rotated porch light appeared break the connection. 45

Later had stabbed times with Morgan tests showed been Nancy knife stiletto-type body. Experts about hours before Parsons discovered the time death Mitchell had been placed Morgan around a.m. times, Morgan stabbed with the same knife. Because probably Nancy not cut a police below the that an pelvis, expert opined accomplice probably Also, held her legs while the actual killer stabbed her. because the second victim being would almost have run while the other was certainly away killed, the same believed that at least two committed expert people crime.

Cliff arrived home six his conversation with Morgan about hours after Jack Although Parsons. he inform that several distraught, managed police to stolen, had well had of a guns been as as a coin collection that been on top however, officers, cabinet. that the cabinet was cov- (Investigating noticed ered awith there was indication heavy layer any type dust and no by clear Reilly, Hardy, raised either curiae as raised “defendants” unless it is amicus from the only making briefs that one defendant is the claim. had later police container been the cabinet told had recently.) Morgan a discovered diamond was also ring missing.

The James Mr. following received call from day, police Sportsman. Debbie, defend- 18-year-old dating stated that his Sportsman daughter, Mark in their Reilly ant and that was a dinner home. Reilly frequent guest Mr. recalled the effect that Sportsman remarks made 1981 to Reilly April he had a friend named who his wife killed in order Morgan wanted have mother, to collect on some insurance Mrs. Debbie’s policies. Sportsman, $25,000 recalled that said he if “hit Reilly would receive he could find a time, job. man” to do the At the it talk.” thought “just Mrs. Sportsman however, Police investigation, revealed a between complex conspiracy Reilly, defendant James and Cliff kill codefendant Hardy, Morgan victims order to obtain insurance benefits. The when conspiracy began met Morgan while Reilly They both were to become auto studying salesmen. became friends were eventually assigned to the same auto as dealership sales trainees. would Reilly often time at home this spend Morgan’s during period.

In January life Life Morgan began selling insurance for Equitable wife, Insurance Company suggestion of his who was Nancy, thereafter, secretary Shortly there. took out life insurance Morgan policies on himself, and his An Nancy, son expert Mitchell. testified that the policies were an unwise investment because the would be more than premiums $10,000 annually, or more than 25 percent Morgan’s projected annual gross commission, however, income. Deducting first for the premium $5,261, year would be only only fraction of that amount was due before June 1981. Under the Cliff policies, Morgan would receive more $850,000 than should both and Mitchell Nancy Morgan die.

Debbie Sportsman met Reilly 1981 and became April intimate with him. She testified that her Reilly told about kill his wife Morgan’s plan and child. Reilly agreed said he to find Morgan someone to do the actual return, killing. In Morgan promised to a bar for open Reilly manage, allow Reilly to live in Morgan’s home. told Debbie he knew a kick-boxer who knew someone in the Mafia who would do the killing. Reilly told also Debbie he gave some and a money ring (supplied to the by Morgan) was, turn, kick-boxer who give money to Mafia hit man. money killed and the killer himself went when the hired was plan awry stolen.2

Later, Calvin to an acquaintance, told Debbie he tried convince Reilly money up for Reilly Boyd the told Debbie that asked Boyd, killing. to do incident with the no more cash after the Reilly Morgan front but said had was she assumed killings, Boyd kick-boxer. After Debbie learned of the two if her her it not and that it was better for Reilly Boyd the killer but told had identity. Reilly given did know real learned Boyd she not the killer’s stop to Reilly that was the killer and warned impression Debbie the Boyd spreading such rumors. crime, reveal the name Reilly the to days following Boyd pressed the killed the Hardy him he and

the killer. told that Reilly eventually actual Later, victims, Hardy knew. Boyd but asked not to tell Boyd Hardy many and said had been too Boyd asking questions. confronted with associating Hardy to According Sportsman, Reilly began Debbie private around She that the two men had May many 1981. testified On drugs together. this often drank and took period conversations and during met with Debbie killings, evening May night on the Morgan latter’s with Hardy Reilly Reilly spoke and at the apartment. if killing. and him he wanted with the telephone go through asked asked was in that he did. When Morgan, Reilly who Carson answered City, Mitchell, must his necessary, what to do with said if it was son Morgan also be he did her after 10 o’clock killed. told Debbie not want around Reilly that night.

When the next she day, Debbie read about murders the newspaper him with became She found there hysterical Reilly’s apartment and went her Hardy; drinking. was calm and both were and told Reilly laughing Reilly to behave so would was amiss. people suspect something normally her admitted to revealing identity Reilly Without of his crime partner, home, that he the front had with another unlocked gone person Morgan’s Costello, nightclub 2The as a bouncer. Costello kick-boxer Marc who worked in a local by to know apparently Reilly Morgan money simply pretending defrauded and assassin, money alleged merely someone passing in the Mafia. Instead of to the Costello $2,000 latter pocketed ring. gave and the also Costello a coin collection and the Reilly been Morgan sent it his mother to When the assassin had sell. Costello told stolen, an money killed they suspicious pressed and the became Costello more explanation. allay telephoned from suspicions, prearranged To their Costello them a time voice, pay phone, disguised pretended be When his someone in Mafia. contacted Police police, ring Costello said he lost some of the diamonds from the down sink. ring apparently recovered coins and were drainpipe. one diamond from sink’s Morgan same “robbery.” items claimed were stolen in the door, house, cutters, cut the chain lock with bolt and entered the his security when he heard partner bedroom. said that apparently entering Reilly life, Nancy Morgan for her he went to wait outside. His pleading partner, killer, actual emerged “just and told him wouldn’t die.” eventually Nancy told Reilly “you just Debbie that don’t know how it feels” to stab someone. friend, He Mitch- encouraged Debbie to to and Colette speak Hardy another ell, $100 to gave order coordinate their He then her a few alibi stories. bills that he had from Morgan. received

Debbie work Sportsman went to work the next but was too to day upset friend, left and before She her Kim Mrs. noon. went the home of H. called her Sportsman arriving Debbie there and asked come home. On home, Debbie found waiting They Detectives Jamieson and Bobbitt for her. her the crime questioned about and she told them about desire to Morgan’s interview, kill his wife but did not reveal After the she Reilly’s involvement. returned to Kim H.’s there him called her and she told apartment. Reilly He police inquiry. became and they went to local to talk. upset park When she revealed she Reilly told the about became police Morgan, livid, “Debbie, exclaiming, if he goes—you goes don’t understand. If Cliff down, I down.” He go then endeavored to learn Debbie had everything revealed so as to conform He story his to hers. also mentioned that he would speak Hardy and Colette Mitchell to their coordinate alibi stories. Reilly was subsequently arrested but later He again released. and Debbie went ato park to talk. He was drinking from a of scotch crying. bottle He admitted that he had used their friend Mike Mitchell’s car drive to the Morgan home and that he used bolt cutters to cut the He chain. said he stayed in the hallway while his entered the accomplice bedroom and stabbed Nancy with fish Morgan knife. said he hear Reilly crying could Nancy saying, “Please kill don’t me.” He ill became and went outside to When wait. him, his accomplice joined how hard kill accomplice described it was to the victim. said he Reilly became sick again. When Debbie asked about of Mitchell slaying Morgan, Reilly became defensive but admitted the boy was killed first.

Later, Reilly told Debbie that Morgan called and said there would be a delay payment because the insurance company investigating the killings. Reilly said crime partner understood about the delay. revelations,

After these Debbie Sportsman’s feelings changed and she went eventually police told them everything she knew. Reilly was rearrested and the booking officer noticed what to be appeared bloodstain on the tip of Reilly’s shoe. Reilly said it was blood that had showed the meat he had Later tests purchased. of package

leaked from stain was human blood. other wit- corroborated

Much Debbie was Sportsman’s testimony of and Hardy, many Kim testified she knew Reilly, For H. example, nesses. Mitchell, friends, dated. She said she whom she had their Mike including killed the insurance he his wife for once heard wanted to have Morgan say killings to told her admitted Reilly and also testified Debbie had money her. he Mitchell) testified had

Mike Colette Mitchell no relation to (apparently in an roommates killings they Prior were Reilly known for to years. the auto him a coworker at Reilly on Vose Street. told about apartment Reilly told money. wanted to kill his wife for the insurance who dealership killing but a kick-boxer to do ring him he had some coins and a to given Mitchell out to Mike Reilly pointed Hardy the deal fell One through. day, and Reilly lived next door killing. Hardy and said would do the Hardy Mike Mitchell. 20, 1981, Sharon Mike Mitchell and his night girlfriend

On the of May Cliff went to Morgan) no relation to codefendant Morgan (apparently around apartment p.m. returned to the Vose Street game. They baseball Reilly nor Hardy and When retired for the neither night, went to sleep. they however, later, in hour was When Mitchell awoke about an apartment. Mitchell with Colette drinking smoking both defendants were and present, Rice, friend, to the Reilly/ and Steve who lived next door possibly another until Hardy Reilly again Mitchell Mike Mitchell did see and apartment. in he heard the the next sometime the middle of the day, although night he wet The found some morning, shower and two male voices. next running bathroom, that night. towels someone had taken shower indicating if ask night told Mike Mitchell that should about Reilly anyone murders, he all Reilly Hardy apartment night, should that and were say having a with Colette. party She met grant immunity. Hardy

Colette Mitchell testified under a brother, him her Ron She began Leahy. 1981 and with early living he in some sort of understood was Hardy going participate from endeavor, criminal he make it like a something would steal look as a result. robbery, money and that someone would collect some insurance he said would use cutters to to the house Hardy gain entry bolt 1, 1981, crime be the insurance policy must committed before June because would expire. 20, 1981,

On cocaine night Colette drank beer snorted May with fell out Hardy, eventually asleep passed and Steve She Reilly, Rice. next It morning. and did not until o’clock the apartment Rice’s awaken then and that Hardy expected that Colette learned the murders only her him the discussed the an alibi for two provide previous night. the murders but matter of an alibi several times. denied Hardy committing later on the occurred. night said had been to the home Morgan they told her that “the was not boy” Morgan) supposed Mitchell (presumably killed but he was in his so he killed. When Colette be mother’s bed asked he what had said. Hardy boy, Reilly about confirmed brother, in jail,

While to retrieve Hardy Hardy, told Colette have his John an M-l carbine rifle and Hardy from Steve Rice’s of it. apartment dispose he told Colette that obtained the rifle from and because rifle Reilly that stolen, was should neither show it nor handle it with their they anyone to (Cliff bare hands. told an M-l carbine rifle was one of Morgan police that Later, house.) the items stolen from his had discovered hearing police home, at the footprint Morgan Hardy destroy asked Colette retrieve and a certain in pair of boots his She in a throwing closet. boots complied, can. garbage

Either Reilly or told while in Hardy they jail Colette that were awaiting trial, their insurance money was Cliff collecting Hardy Morgan interest. said was not worried because his 12% money earning was interest while percent he in jail. was examination,

At Hardy’s preliminary Mitchell Hardy Colette testified that 20-21, was with her the entire night and morning May 1981. This trial, however, was testimony consistent with Hardy’s statement At police. she admitted having lied the earlier in order to hearing protect Hardy, whom she She loved. testified at trial that she loved him. longer no She admitted that she fell or asleep out around a.m. on the passed night and question thus did if not know her Hardy was with the entire night. Reilly her, however, later admitted to he that had left the apartment that after night she had out. passed

Although innocent, told Hardy Colette Mitchell he that was he told her stories, inconsistent often admitting several incriminating facts to her. For he example, once told her that he went night home on the Morgan and question knew the victims were alive because he them could hear time, Another snoring. he told her that were the victims when already dead he arrived. He Once, also reported that Reilly was control of the crime. when Colette spoke of the crime and assumed there was more than one killer, exclaimed, Hardy “Where do they When Colette get ‘they’?” replied that she had involved, heard retorted, “No, there were two people I Hardy know for fact it was one.” brother, he lived with Colette and Mitchell’s testified Leahy,

Ron Colette in jail about 60 Leahy Reilly met them. visited Hardy Reilly through times, Hardy. Although with Colette while she usually spoke accompanying crime, admitted Reilly stories about Reilly Leahy conflicting told several victims, crime he participated him he knew who killed the robbery. like to make it it that he was look up, by setting supposed $30,000 but was participation said he had been for Reilly promised also arrested and he had been to ask for twice that amount because going Morgan harassed. him in came to Reilly

Sean He testified Fitzgerald Reilly’s friend. knew, he, willing be would anyone asked whether April man where he worked who kill said he had met a money. Reilly someone the hired killer kill said wanted to his wife for the insurance money. $30,000. him but referred thought Reilly crazy would receive Fitzgerald Costello, the Mafia. Marc he had connections to to a coworker believed later, Shortly About heard about two Fitzgerald slayings. six weeks unannounced, thereafter, nervous. appearing very arrived at his home Reilly murders, told where Fitzgerald admitted he was involved Reilly located, he tell about what would Morgan expressed home was and concern if police questioned. 11, 1981, at again appeared Fitzgerald’s

Around June Reilly unexpectedly Restaurant, him where he home. He asked Fitzgerald Tip’s to accompany he “the men met money said would obtain some from husband.” two Morgan Cliff at him the and Reilly the restaurant and sat with at bar. Morgan returned, with went to the left together they Fitzgerald restroom when said, a wad of Reilly. Reilly As drove home he “Look at this” and produced it; $2,500. money. it was Fitzgerald counted later,

Sometime the Red Onion restaurant. Fitzgerald joined Reilly at woman, kill had to stabbed Reilly said it was difficult to that she be times, several and that the was killed was his boy trying protect who mother. demonstrated how kissed Reilly grabbed boy, his accomplice said, forehead, him on the “I’m tilled asked Fitzgerald and then him. sorry” Reilly whether he was at the when the was killed. Morgan boy home first replied negative but later admitted he was there but outside stayed the house. Laughlin was Truck Lines Carson

Harley president Laughlin City, Nevada. He testified that hired as his May Morgan he Cliff sales asked he would be general manager. Morgan Laughlin willing whether this thought to consider him or investor in the firm. Laughlin as a partner odd he money. Morgan replied as said had no previously had Morgan he of May would soon a lot of On afternoon money. acquire ill home go early. Laughlin said he was and would Morgan feeling “kind Morgan clammy sweaty.” observed that appeared green Parsons, bodies, he testified that neighbor Jack who discovered the When the killings. chatted with Cliff about three weeks before the Morgan wife, turned commented that Morgan conversation to the death of Parsons’s died, When when his own wife all his would be solved. Parsons problems “I’ve said would Nancy probably Morgan replied, got outlive Morgan, feeling she I before do.” going go Yockel, sister,

Judy that at the time Cliff and Nancy Morgan’s testified married, Nancy Cliff claimed he would retire 55. When she age often asked him he any how could afford as he had not made early to retire came, provision such a he that when time replied plan, simply funeral, provisions would be made. At Cliff mentioned Nancy Morgan’s Nancy’s aunt that would “be worth of a million dollars and three-quarters . . . have to work another life.” He also mentioned [would day not] [his] the amount of the anticipated insurance mother-in-law. benefits

Margaret Maddux was one and Nancy of best friends with Morgan’s spoke her around Easter 1981. Nancy having told Maddux that she and Cliff were problems marital In were about a talking divorce. getting April Maddux’s the family joined Morgans on a camping everyone, front trip. Cliff remarked in Morgan a manner due an joking to insurance policy, moment, was worth more him Nancy dead than In more alive. private Morgan asked whether Maddux ever had killing about her husband. fantasy “no,” When she replied he admitted he had fantasized about killing Then, 10, 1981, Nancy. on May just 10 days killing, before the told Nancy Maddux that she was “really thinking of getting divorced" because Morgan had their Van put home sale Nuys up for without her knowledge.

Cliff Morgan was 56 old at the time of years trial and testified in his own defense. He denied mentioning anything killing about his wife for the insurance proceeds to Debbie Kim He Sportsman or H. stated he loved his wife and son. He admitted knowing but denied him Reilly asking arrange the murders. He also denied giving Reilly his diamond ring as partial murder, the payment claiming was his most ring prized possession. He admitted Reilly him introduced to Marc Costello but denied helping Costello plan He killing. also admitted meeting Reilly and Fitzgerald 11,1981, cash, Restaurant Tip’s on June $250 but said he in gave Reilly only $2,500 he Reilly described. said Fitzgerald Morgan gave not the He denied him for it to make a car money Reilly payment. because asked killing Nancy. Maddux about speaking Margaret detention, in he and were pretrial that while both Morgan Reilly testified succeed, Nancy, find kill did not attempted admitted he someone to Reilly knew, Cliff Morgan out As far as backed endeavor. eventually He denied killings. participating had to do with the Hardy nothing kill his wife and son. conspiracy friends, Morgan, including

Several witnesses testified of Cliff support All, ex-wife, to varying degrees, his and his other children. neighbors, Mor- Cliff relationship Nancy described the between apparently loving son, and between Cliff and Mitchell. gan, violent was not a

Reilly produced four witnesses who testified that with One that could be said defense witness stated that all person. expert died about was that the victims scientific confidence the time of death 1981. May sometime at 6 a.m. period ending within 18-hour game night Sharon had been to on the testified that she a baseball Morgan Mitchell/ 20 with her Mike returned to the May boyfriend, They Mitchell. night. around 11:45 that Reilly apartment on Vose Street and she went to bed lot She had because there was a of noise falling trouble asleep took She voice in the When she apartment. recognized apartment. Reilly’s Mike car to work next it was the same parked Mitchell’s morning, had been they had left it the before and there was no indication it place night during used the night. did and did not testify. rested on state of evidence Hardy any witnesses at the trial.

present guilt phase Penalty Phase

Three they police the two victims as when photographs depicting appeared discovered were a defense the bodies admitted at the over penalty phase objection. guilt These were not admitted at the photographs phase trial. 6,1980,

On August Officers Hansen and to a a responded report Wicks domestic They disturbance. a Hardy marching pose found assuming military a He he holding rifle. unaware of his appeared surroundings. Although down, with Hansen’s to move complied request Hardy rifle refused put from his away it. At Hansen’s removed two knives from Hardy also request, and next to the then a nun- waistband them rifle. Hardy produced placed chaku3 stance. directed fighting Although and assumed a Officer Hansen in Hardy place on the remained a ground, Hardy fighting nunchaku He put stance for five ten minutes. down his eventually agreed if nunchaku Officer Wicks down his revolver. When Wicks put service in surrendered and he had been a complied, Hardy explained just peacefully The rifle family Hardy guilty loaded. later quarrel. pleaded misdemeanor he disturbing of nunchakus and possession peace; placed probation. mother,

Carolyn testified that she after Hardy, Hardy’s telephoned police Hardy his neck. punched gold brother John chain off John’s pulled Hardy When realized his had he her police, mother called the kicked down door. she Carolyn Hardy ingested told was concerned that had police Hardy phencyclidine, (See as & angel otherwise known PCP or dust. Health Saf. Code, 11383.) § said

Carolyn Hardy the nunchaku his other Hardy belonged brandished brother, Robert. She had told he explained Robert his intended to family commit suicide but defendant did not believe him. When Robert Hardy threat, carried out his defendant blamed himself for Robert’s death. The day death, mountain, after Robert’s defendant threw himself broke off both his legs, and was bedridden for Hardy six months. believed Carolyn defendant needed psychiatric help.

Carolyn testified Hardy that defendant Hardy had participated pro- Bound, gram called Outward which involved camping hiking Colo- rado. He was chosen for the program because of his high scholastic poten- tial. Defendant Hardy no other presented affirmative mitigating evidence the penalty phase. Buffalo,

Father Bonaventure Jezierski testified that he knew Reilly New York, when the latter served as an altar boy. Father Jezierski stated that Reilly child, was well-behaved and well-liked as a that was raised alone, mother time, always she brought Reilly to Mass on neatly dressed.

Joseph Dotterweich testified that he was a friend of childhood Buffalo and that the two of them many shared interests. He never knew 3A sticks, “nunchaku" clubs, is defined “an as instrument consisting of two or more bars or handles, rods to cord, wire, chain, be used as rope, connected a design or of a weapon used in connection with the practice system such as karate." self-defense 12020, (§ (c)(3).) subd. he saw activity although Reilly and any to be involved with criminal

Reilly 1978, beer, In moved from drugs. pair never him drink saw take College. Angeles Angeles City and enrolled at Los Reilly Buffalo Los When Dotter- returned New and the two corresponded. Dotterweich York accident, supportive. was Reilly very weich was involved a serious car Reilly for visit returned to Los Angeles Dotterweich had known. always Dotterweich the same affable caring, person apparently said he intended to return to school. working and Morgan’s with Cliff Reilly, he was tried Although jointly Hardy it when was trial from the two defendants was severed other penalty phase He died of natural causes he suffered from incurable bone cancer. discovered his trial could be held. before penalty

Discussion Jury Issues Challenges Peremptory

1. Allocation of selection, that, to former Prior to ruled jury pursuant trial court 1070.5,4 have 26 and Cliff would Hardy, Morgan sections 1070 Reilly, challenges jointly.5 which must be exercised among them peremptory addition, be exer- each would have five could challenges peremptory statute, prosecutor cised Also the court decided the individually. pursuant 15) All (26 have 41 total at his challenges plus disposal. would peremptory exhausting three without their accepted jury defense attorneys eventually with were not challenges, they allotted satisfied explaining although decided it make further composition, changes that was unwise to jury they that he would disposal because the had so prosecutor many challenges after had exhausted their essentially choose the himself the defense that, pertinent are part 4Former section 1070.5 stated in “when two more defendants jointly tried number of felony], the state and the defendants shall be entitled to the [a 1070, challenges prescribed by challenges on of the defendants must part Section which challenges jointly. be exercised defendant also be to five which Each shall entitled additional may challenges equal be separately; exercised the state shall also be entitled additional now, separate challenges (See the number of all the Code additional allowed defendants.” Proc, (a).) Civ. subd. § granted 5We note that a recent peremptory challenges amendment reduced number (Stats. capital Legis. defendant from 26 to 20. ch. No. 7 Adv. Deering’s § Service, Service, 5322-5323].) 11 West’s Cal. Legis. pp. [No.

129 All three defense that the challenges. attorneys system complained in the unfairly weighted favor. prosecutor’s argues challenges that the allocation

Reilly statutory peremptory fun violated his constitutional due rights protection, process, equal arguments damental fairness. He relies on the raised on entirely almost in 45 People (1988) defendant v. Cal.3d 984 appeal by Ainsworth [248 568, 1017], 755 P.2d of a Cal.Rptr. copy appends portion in in opening rejected defendant’s brief that case. We these contentions and have Ainsworth declined to reconsider the matter cases. subsequent 411, 31, (People (1991) 54 v. Webster Cal.3d 814 P.2d Cal.Rptr. 439 [285 1194, 1273]; People (1989) v. Johnson 47 Cal.3d 1222-1223 [255 1047].) P.2d 767 Ainsworth, supra, claims 45 distinguishable Cal.3d because case, only two defendants were tried in jointly any implying unfairness possible it three magnified case because involved Thus, defendants. here 41 prosecutor had not 36 but total peremptory We challenges. and find disagree no in the sheer significance number Webster, jointly (See defendants tried. 54 Cal.3d at p. 439 [applying Ainsworth in a defendants].) case four involving

Reilly also argues it is him 5 fundamentally grant unfair to chal- only while lenges the prosecutor 41 challenges. has We disagree premise with because defendant overlooks the fact also 26 additional possessed challenges; the mere fact those be challenges must exercised does not jointly necessarily mean were they not reasonably to him. available

2. Witherspoon/WittError dire,

After extensive voir the prosecutor successfully challenged juror prospective Bracamente for cause. Defendants contend that in granting the challenge, the trial erred court under the set principles forth Wither spoon (1968) v. Illinois 391 U.S. 510 L.Ed.2d 88 S.Ct. [20 1770].

Wainwright (1985) v. Witt 469 U.S. L.Ed.2d S.Ct. [83 however, (Witt), 844] supersedes Witherspoon and requires a trial court to determine “whether the juror’s views would ‘prevent substantially impair the performance of his duties as a juror accordance with his instructions ” (Witt, and his oath.’ supra, at L.Ed.2d 851-852].) “Under pp. Witt,therefore, our duty is to ‘examine the context juror’s] surrounding [the exclusion to determine whether the trial court’s juror’s] decision that [the beliefs would “substantially impair performance juror’s] duties [the ” . . .” was fairly supported by (People record.’ Miranda

130 594, 57, 1127], 744 Darden v. quoting P.2d Cal.Rptr. Cal.3d 94 [241 168, 144, 154, 106 S.Ct. (1986) U.S. 176 L.Ed.2d Wainwright [91 477 con- are ... 2426].)6 juror’s responses equivocal the prospective “[I]f of mind binding determination of state juror’s the trial court’s flicting, 771, Cooper (1991) Cal.3d 809 (People [281 an v. 53 appellate [on court].” 865].) 809 P.2d Cal.Rptr. on voir dire dem answers

We find Bracamonte’s prospective juror or substantially his views would capital “prevent onstrated on punishment with his as in accordance performance. juror of his duties impair at (Witt, 424 L.Ed.2d supra, pp. his 469 U.S. at p. [83 instructions and oath.” to the death 851-852].) penalty He times expressed opposition several and him from fair being prevent and three times stated his views would he occasion at was confused on guilt Although impartial phase. extent, after much questioning rehabilitated defense counsel to some by death for the penalty stated he would not vote unequivocally discussion short, In we find no error. of the facts regardless presented.

3. Dire Restriction Voir ability restricted their

Defendants the trial court argue improperly each decided to ask jurors prospec voir dire. trial court question during Illinois, Witherspoon on v. juror tive a set of four standard based questions fifth moved to add a supra, 510 Defense counsel (Witherspoon). 391 U.S. one of the (or to include the fact that modify the fourth question question) he had no child. The stated prosecutor murder victims was an eight-year-old it would affect he would be able to also ask whether objection, provided juror’s actually participate decision if one of the accused did not prospective Cliff theory because it was the killing (presumably prosecutor’s murders). judge did The trial Morgan physically participate individual both said that sides could ask rejected suggestions and both during voir dire. questions general

We find had opportunity question prospec- no error. Both sides an Although tive voir dire. jurors during general particular subjects the reduced their limited jurors by defendants claim to excuse ability statute, that factor did number of to them peremptory challenges allocated event, as we jurors not limit their to excuse for cause. ability any 128-129, ante, defend- the trial decision explained pages requiring court’s error. Finding ants to was not no jointly peremptory challenges exercise Witt, trial, argue they 6Because U.S. defendants’ it would decided after Witt previously rejected We fundamentally apply be unfair to here. have standard 290]), (People Wharton P.2d claim 53 Cal.3d 587-588 present persuasive why we reconsider that decision. defendants fail to should reasons error, we address suffered they prejudice decline to defendants’ claim that dire Witherspoon proceed- from trial court’s refusal to voir expand ings. Reopen Witherspoon

4. Failure to Voir Dire dire, the Witherspoon juror voir Following completion prospective court, Brown sent letter the tenor general to the that from explaining him voir dire of other seemed that defense jurors, unlikely it to prospective would him Brown in the permit jury. explained counsel to remain letter that his and the female cousin had been murdered San Francisco addition, In killer never in his at a nephew presence found. his slain The killed the other man party. nephew shot and one of the assailants but was never Brown’s had been murdered apprehended. aunt uncle also too, during burglary. Finally, residential There the killers were never found. Brown was to man in a when talking bar the man was murdered. Brown heard that the killer was found and sentenced to life imprisonment.

The parties went chambers to discuss the letter. Both sides asked Brown several questions about how these to incidents would affect his ability incidents, remain impartial. Despite these Brown consistently affirmed instructions, to remain ability impartial, to vote for a obey court’s to Stone, verdict based on the evidence in court. counsel for Cliff presented counsel, Morgan, and Demby, Hardy’s defense moved to the Wither- reopen Brown; spoon motion, voir dire for did not immediately court rule on the “Well, instead remarking, we are outside jurors.” of the other presence counsel, After some additional questions, Richard Lasting, Reilly’s trial asked Brown whether he would favor “one the other in a over punishment case where someone is convicted of stabbings of two multiple people.” prosecutor objected, saying, “That’s I think Witherspoon again. already we covered that.” The “All judge replied, He right. has indicated he is [Brown] to be fair in the going penalty phase.” additional response questions, another, Brown reiterated that he did not favor one over penalty and that could base his decision on the evidence He presented given. instructions court, was later subjected to a searching inquiry open questions including about the five killings that touched his life. None of the three defense lawyers challenged Brown for cause or with a peremptory challenge. clear,

As this record makes the trial court did not violate defendants’ constitutional rights by refusing Witherspoon reopen voir dire. Con- trary arguments, defendants’ the trial neither reserved judge the voir dire for himself nor failed to permit follow-up ambiguous questions queries. 1083-1084

(See People v. Bittaker 48 Cal.3d dire 659].) an extensive voir subjected P.2d Brown was Further, defendants although and defense counsel. prosecutor, trial judge, they had had more passed would not have complain they rejected have the basis of at their we challenges disposal, peremptory contention, ante, at 128-129. pages

Guilt Issues Phase

5. Alleged Counsel’s Interest Conflict of a Bardsley, was his examination Hardy represented preliminary shortly until representation defender. continued his deputy public Bardsley defender, time, Demby, after At another public Hardy’s arraignment. in as the Hardy’s attorney. During pretrial proceedings substituted trial case, rights this he was denied his trial Hardy being speedy complained in an continuances effort Demby sought prepare because numerous familiar with the trial. believed that more Hardy apparently Bardsley case have needed continuances. many and would not as (People

The a Marsden motion complaint trial court treated as Hardy’s 156, 44], (1970) 2 and appointed Marsden Cal.3d 118 465 P.2d Bermann, attorney, the a independent private counsel to matter. investigate The grounds. moved the on trial Hardy speedy on behalf of dismiss case trial denied the motion 1983. February court On March filed a se of conflict of interest Hardy declaration pro asked for The declaration stated appointment another attorney. Demby “is the court” and that Demby failing to before put [certain facts] investigate “failed to The trial held Marsden evidence.” court [relevant] and then denied the hearing motion.

On March in The trial jurors. were parties process selecting court time filed at this became aware that had se Hardy pro complaint $5 million negligent representation seeking federal court alleging legal the defend- Demby Because lawsuit named as one of compensation. ants, moved se to him due to conflict of Hardy replaced alleged have an pro Littlefield, (Also the Los interest. named the suit were Wilbur Bardsley, Defender, Office Angeles County Public and the entire Los Angeles County Defender.) Public asked trial court to defer action on Demby motion until he read the federal and conferred with complaint superiors. agreed trial court selection continued.

On March court: following discussion occurred open Demby: with my I have office matter of lawsuit discussed “Mr. I Bardsley. have it with Mr. Littlefield and with Mr. Mr. discussed Hardy. my diligent feel that the facts of lawsuit would not interfere with They I I it feeling up defense of Mr. have that and believe would be Hardy. also make court to any ruling. I I ruling. don’t know if I have mean there is a to make “The Court: civil will suit I don’t taken. You pending, any think there is action be H] be I That represented, assume. Mr. has filed this lawsuit. adequately Hardy his prerogative. Demby: I

“Mr. do not believe that will interfere with my the lawsuit representation Mr. Hardy.

“The you Court: Do want Mr. say Hardy? anything, Hardy: I in feel that it’s direct with Mr. and Demby conflict “Defendant in direct conflict with the Public Defender’s Office this action having against them. that, I I understand sir. No. think on Mr. Demby’s based

“The Court: statement, also his I reputation, think he an you is afford going adequate defense due your will not be process rights impinged.” During preparation of record this parties appeal, stipulated that the trial court denied the motion to relieve read Demby without having the federal complaint.7 Hardy now claims that he entitled is of reversal his convictions because he was forced to to trial with an go burdened attorney by conflict of interest. issue,

Before that addressing we first discuss filed with motions this court by both and the Hardy People, urging that we take notice of the court judicial file of the federal lawsuit.

a. Judicial Notice

Both respondent and moved take Hardy judicial this court to notice addition, contents of the court file in lawsuit. In Hardy’s also Hardy asks we that notice the contents of the court file in the of that case as appeal stipulation 7The considering states: and eventually rejecting appellant Hardy’s “[I]n con tention that a direct of by against conflict interest was Hardy created the civil suit had filed court, Demby in federal the trial court did complaint not read the contents of the filed that in lawsuit.” 134 its accompanying appeal in filed and

well the court file another lawsuit as we both motions of Although granted to the Ninth Circuit Court Appeals. this our reasons at explain we deem it instructive to argument, to oral prior time. may in 452 “Judicial notice pertinent part:

Evidence Code section states (2) (d) any . court be matters . . . Records . . following taken of (a), subdivision record the United States.” Evidence Code section notice reviewing judicial does court take permits require but judicial 452. notice Although Evidence Code section specified matters case, against judicially thus have cautioned permissible this several courts general court. matters that were not before trial noticing “[A]s if, notice [judicial] upon rule the not take . . . court should [appellate] record, has not been of the entire it that matter appears examination (People instance.” the trial the first presented to considered court 828]; People (1977) v. Preslie 493 Cal.App.3d Cal.Rptr. 70 [138 Preslie]; (1984) [following Cal.App.3d Cal.Rptr. [208 576] Meza 858, 863 Thoroughbred (1984) Cal.App.3d v. Del Club DeYoung Mar [same]; Supp. People Cal.App.3d v. Hamilton [206 28] Preslie].) rule prevents 21-22 Such a [following Cal.Rptr. 894] an flow one side to issue press unfairness would from permitting 22.) (Hamilton, supra, was not theory Supp. raised below. appeal authorities, led us to conclude these several considerations Despite foremost, First, both notice was case. judicial this appropriate notice the federal defendant ask that we respondent Hardy judicially Moreover, There should neither side the other’s motion. opposes lawsuit. thus be no unfairness to either side.

Second, 459, certain (d), provides Evidence Code section subdivision By when notice.8 procedural safeguards reviewing judicial a court takes in special judicial for rules for situations which a seeks providing party in the notice included of information “not received court not open Code, 459, (d)), Code (Evid. record of the the Evidence action” subd. § situations, that, at court will contemplates reviewing least some a clearly trial notice even when was not to the grant judicial the information presented 1, 94, 91, (See People court. 11 2 (1974) Cal.Rptr. v. Belcher Cal.3d fn. [113 520 record judicial P.2d notice of matters not made [granting part 385] trial].) at taking judicial 8That section states: notice of matter determining propriety “In , specified any reviewing in section . . . if the source of information 452 court resorts action, open reviewing court

received in court or not included in the record of the . . . party judicial shall each opportunity afford reasonable to meet such evidence before notice may matter be taken.”

135 Third, the facts are not both motions reasonably open dispute; court notice of certified judicial append copies pertinent photocopies files.

Thus, notice of granting judicial rule cautions although general against court, in this matters not to the trial other considerations presented present circumstances, suggested case Under these contrary judicial conclusion. notice was the fact that noticed were not the documents appropriate despite presented to the trial court.

b. Interest Conflict of

We recently this issue explained general principles governing 465, People v. 53 (1991) Jones Cal.3d 1115 811 P.2d Cal.Rptr. [282 757]. Constitutions, “Under federal and state right a criminal defendant has the Const., Amend.; I, Const., to the (U.S. assistance counsel. 6th Cal. art. 15.) These guarantees § constitutional entitle defendant ‘not to some bare assistance rather (1987) but 43 (People assistance.’ v. Ledesma effective 171, 404, 839], Cal.3d That original.) 729 P.2d italics Cal.Rptr. [233 entitlement includes the right to free conflicts of representation is from (Wood 261, 230, interest. v. Georgia (1981) 450 U.S. L.Ed.2d [67 1097]; 101 S.Ct. People (1989) v. Bonin 47 Cal.3d [254 298, 765 460].) P.2d It applies to a defendant who retains his own counsel as well to a as defendant who is represented by appointed (People counsel. Bonin, 834; Cuyler (1980) v. Sullivan 446 U.S. 344-345 [64 333, 344, L.Ed.2d 1708].) 100 S.Ct. interest, counsel is burdened an

“[W]hen actual conflict of prejudice arises, however, presumed; the if presumption the defendant demon ‘only strates that counsel “actively represented conflicting interests” that “an ’ actual conflict of interest adversely affected his lawyer’s performance.” (Strickland 674, 696, v. Washington 466 U.S. L.Ed.2d 2052], Sullivan, 104 S.Ct. citing Cuyler v. 348.) supra, 446 U.S. at p. “Conflicts of in may interest arise various factual settings. Broadly, they to, ‘embrace all in situations which an attorney’s on loyalty efforts behalf of, a client are threatened his by responsibilities to another client or third a person Bonin, or by his (People own supra, interests.’ v. 47 Cal.3d at (Jones, p. 835.)” 1133-1134, supra, 53 at added.) Cal.3d pp. last italics “most Although conflicts of interest in seen criminal arise litigation out a co-defendants, lawyer’s dual representation of the constitutional principle is not narrowly confined to (United instances of type.” that States Hurt v.

136 Thus, omitted.) 166], a fn. 1976) F.2d (D.C.Cir. 177 App.D.C. of his that the caliber “whenever counsel is so situated conflict exist may omitted; v. Lockhart (Ibid., fn. Smith diluted.” substantially services bemay 1314, 1320.) (8th 1991) F.2d Cir. case, an actual by

In claims was burdened Hardy Demby this in federal Hardy’s defendant he was named as a conflict of interest because result, ineffective assistance Demby provided As a contends Hardy lawsuit. in one’s by defendant a lawsuit We named as a agree being of counsel. her are loyalties in a where his or client can an situation place attorney Hurt, supra, appellate in 543 F.2d United States v. divided. For example, representa inadequate on that trial counsel alleged appeal provided counsel libel, sought the latter When trial counsel sued counsel appellate tion. The district court due conflict of interest. excused from the case to a be and judgment vacated the denied the but the circuit court of appeals motion case, little to had counsel although appellate remanded the explaining (cf. Civ. privilege fear libel suit because of a judicial proceeding from the Code, 47, the suit at risk and (b)), believed was sincerely subd. counsel § (Hurt, client appeal. him his on actively thus from prevented representing 167-168.) at supra, pp. Court of Circuit Eighth is a recent decision directly point

More Lockhart, criminal defendant supra, F.2d Smith v. Appeals. in federal court in action lawsuit (Smith) state court filed a class Arkansas and the trial (a judge, part-time judge), as defendants his naming attorney Smith and to deprive others. The lawsuit the defendants alleged conspired the effective their trial and to other criminal defendants of rights speedy lawsuit, judge the state trial assistance of counsel. Despite pending of interest new found no conflict expressly refused to counsel appoint ” “ sued, existed, (Id. Smith.’ T care Mr. you’ve don’t who exclaiming 1320.) p. court appellate

The district court denied a writ of habeas but corpus reversed, attor “A the defendant stating, against federal lawsuit pitting ‘a attorney personal divided ney certainly suggests loyalties gives independent interest he conducted defense—an interest way [Smith’s] of, with, obtaining some conflict interest respects [Smith’s] ” Lockhart, (Smith F.2d at judgment acquittal.’ 121, 136.) (D.C. 1985) Douglas v. United States 488 A.2d quoting Hurt, 162, in and Smith supra, As 543 F.2d explained both United States v. Lockhart, 1314, of supra, v. suffer a conflict attorney may 923 F.2d an in a if as a defendant attorney interest client names the attorney’s 137 here, a possibility collateral there was conflict Although lawsuit. thus in several factors us existed this case. lead to conclude that no actual conflict First, in unlike cites in Mr. desired to Hardy support, Demby cases his that he continue He stated oh the record representation. unequivocally had reviewed the of the with his and believed superiors contents lawsuit court, aware it would not inhibit his legal representation. apparently trial in the of both Mr. his Demby’s representation and reputation quality case to that at point, this face value. accepted explanation Lockhart, contrast, 1314, in

By supra, Smith v. 923 F.2d defense attorney Marquette his expressed misgivings continuing representation about Hurt, (Id. 1318.) defendant. at in 543 p. Similarly, United States v. 162, him, F.2d himself appellate attorney citing asked court to relieve Indeed, (Id. 7.) a conflict of interest. at & there was but p. although 164 fn. libel, “tiny risk” that was vulnerable attorney charge court reversed reviewing and relied on the attorney’s representations, noting, 167, (Id. “There is no reason whatever to fn. sincerity.” doubt counsel’s omitted.)

The United States noting Court has addressed this Supreme point, “trial courts in necessarily rely measure faith and large upon good good 335, judgment of (Cuyler (1980) defense counsel.” 446 U.S. Sullivan 347 “ 346, L.Ed.2d 1708].) [64 100 S.Ct. A in criminal defense ‘is attorney the best position professionally and to determine when a conflict of ethically ” interest exists or will probably develop (Holloway the course of a trial.’ 426, 435, (1978) 1173], v. Arkansas 435 U.S. L.Ed.2d 98 S.Ct. [55 State quoting v. Davis 1027].) Ariz. P.2d Demby’s considered opinion that the lawsuit full prevent would his active representation Hardy thus a factor when significant determining whether an actual conflict existed.

Second, our examination of the contents of the court files in Hardy’s basis, federal lawsuits reveals that had no they legal legitimate thus validat- evaluation ing Demby’s that the suits would not to defend impair ability lawsuit, In Hardy. the first Hardy alleged Bardsley Demby engaged addition, unprofessional and unethical although conduct. the complaint counsel, mentions due process of law and the right effective the allega- tions were stated in terms. The conclusory was received complaint 10, 1983, district on court March and dismissed for lack of federal jurisdic- 15,1983. tion March Hardy When sought forma appeal pauperis, motion, district court denied the noting the was not taken in proposed appeal (see good faith 1915(a)) (28 U.S.C. 753(f)). was frivolous U.S.C. § § The Ninth Circuit Court of denied Appeals motion to file forma Hardy’s docket fee for failure to pay and dismissed

pauperis eventually appeal 19(b).) Cir.), (U.S. (9th Ct. former rule to the district court. Cir. Rules lawsuit, the same May alleged second federal filed on Hardy’s the same were essentially defendants violated his civil The rights. allegations found, suit, however, recom- first so magistrate as the federal complaint. well as an dismissal the initial as amended mending complaint of An of this action finding. The district court the magistrate’s appeal adopted lawsuit, again court did the district Hardy’s met with the same end as first faith. noting suit was frivolous taken bad his Demby’s representation considered decision to continue with Viewing filed as well in the collateral lawsuits any of as the lack of merit Hardy, it is not there existed actual conflict of difficult to conclude no Hardy, was on posed interest here. of conflict Although possibility facts, of Appeals: these we the sentiments Circuit Court Eighth echo of the defendants can “We of recognize danger any holding implying their attor by initiating against manufacture conflicts of interest lawsuits brought by against A patently lawsuit neys. [Citation.] defendant frivolous not, alone, new may appointment or her counsel cause his constitute of complaints Trial defendants who judges wary employ counsel. must be (Smith as motive.” about counsel tactics for some other invidious dilatory Lockhart, added; Holloway v. F.2d at fn. italics cf. p. Arkansas, supra, [suggesting L.Ed.2d at pp. U.S. 486-487 436] need trial court relief where is made for dilatory purposes].) motion grant The case made a Marsden at bar illustrates this amply point. Hardy court, motion and the trial solicitous counsel rights, appointed private Bermann’s investigate the motion. After motion possible grounds for denied, to dismiss was raised a second motion. After Hardy se Marsden pro later, another was Three filed hearing, Hardy that motion also denied. days circumstances, the first of his federal Under it two frivolous lawsuits. seems clear that was Hardy merely possible manufacture attempting conflict of interest We conclude no actual conflict try delay his trial. of interest is shown these facts. Duty

c. Inquiry if contends that even show actual conflict of Hardy has failed to an interest, there the trial court sufficient evidence of a conflict require record, however, into the inquire potential basis problem. shows trial court into inquired was solicitous of contention and Hardy’s its basis. We conclude any duty inquiry satisfied.

139 relief, that reversal namely, we final basis for Finally, reject Hardy’s ante, at is because of the of As required appearance impropriety. explained, 135, an a on the of showing relief for conflict of interest is page premised conflict, actual the mere of a conflict. appearance Coconspirator Hearsay 6. to the Exception Rule clear, is much evidence at the guilt As of the adduced defendants against who, of their the at various trial consisted of phase testimony persons times, were The trial held coconspirators. lengthy hearing court a pretrial determine of these statements under Evidence Code section admissibility 1223, rule. After coconspirator exception hearing, to the hearsay admissible, court ruled the disputed finding statements were Debbie Mitchell, Colette Sportsman, Leahy, Ron and Calvin were Boyd coconspir- ators. Defendants raise a number Before challenges ruling. court’s however, addressing the particular arguments, discussion background some is appropriate. Code, (Evid. evidence is of

Hearsay course inadmissible. generally 1200.) however, statements nevertheless Hearsay by coconspirators, may § if, threshold, be admitted against at the party party the offering presents “independent evidence to establish facie the existence of . . . prima [a] (People (1975) conspiracy.” v. Leach 15 Cal.3d 430 [124 296], 541 P.2d cert. den. sub nom. (1976) Kramer U.S. 926 California 1137]; L.Ed.2d People (1950) [47 S.Ct. see v. Steccone 36 Cal.2d also, sufficient]; P.2d facie [prima evidence is see Evid. 17] Code, 1223, (c).) subd. § Once of a independent proof has been conspiracy shown, three facts preliminary “(1) must be established: the declarant declaration; was in a participating (2) at the time conspiracy that the declaration was furtherance of the objective of that conspiracy; that at the time the declaration the whom party against the evidence offered was or would later participating participate conspiracy.” (Leach, 430-431, supra, at pp. 10.) fn.

a. Conspiracy Existence to Commit Insurance Fraud The trial held court there facie prima evidence of a conspiracy fraud, commit insurance and that the at the time of conspiracy ongoing trial. This ruling permitted prosecution to admit into evidence hearsay statements made by uttered after but coconspirators before killings trial. first contends the trial erred in court concluding that the time of facie that there existed at showing established a People prima proceeds.9 to obtain insurance conspiracy fraudulently trial that, filed Morgan five the Cliff a days slayings, It is after undisputed victims, with the insured the lives of the companies claim two insurance that owing Reilly benefits under those insurance seeking allegedly policies. claims, however, claim such a filing that there was nothing fraudulent companies dead and the insurance Nancy Morgan because and Mitchell were someone, either Cliff out legally were the benefits obligated pay the and Morgan. or heirs of Mitchell Morgan Nancy find evidence We and instead the substantial disagree People presented showing the of prima from which trial court could have found facie 556, (a),10as it insurance fraud. Insurance section subdivision Former Code committed, unlawful at the time were “It is to: read the murders provided: the (1) payment . fraudulent claim for Knowingly any. false or present. [f] 1979, 557, 1, (Stats. loss under a 1764- pp. of a contract of insurance.” ch. § rule, kills 1765.) As who the unlawfully general beneficiary (Beck West Coast insured cannot recover benefits under the policy. Life 544, (1952) (Beck); Ins. Co. 643 26 38 Cal.2d P.2d A.L.R.2d [241 979] 729, 300]; (1982) Estate 732 Cal.App.3d Cal.Rptr. [182 Mize of Jeffers 487, 491, v. Reserve Ins. Co. fn. Cal.App.3d Life Annot., 848]; Affecting see as Killing by Beneficiary of Insured generally, Proceeds, 802-807, Life and Insurance Its 27 A.L.R.3d cases § Annot., Insured].) cited of for Killing By applying [hereafter the him benefits under and Morgan knowingly falsely represented policies, self as a terms of the person legally able to receive the benefits under the policy. lawfully re- although Morgan Cliff could not counterargues benefits,

ceive the were nonetheless companies insurance insurance Thus, to pay thereby liable the existence of fraud. “the “somebody,” negating insurer is not liability relieved of because of the disqualification (Beck, at supra, 645), 38 Cal.2d principal beneficiary” p. “[u]nless otherwise, expressly provides proceeds the insurer must still policy pay in accordance the contract of as disqualified with insurance though had beneficiary or was predeceased incapable insured otherwise taking (4 (2d or disqualified taking from Couch on Insurance proceeds.” concedes, 9He at argument, adequate least for this there was evidence of the existence murder, commit conspiracy of a c.onspiracy necessarily but ended contends discussion, post, (See 143-145.) death of the victims. pp. at 1), (see 10Former Insurance Code repealed section 556 Stats. ch. § recodified and provisions renumbered. The substantive are now in Insurance Code found section 1871.1. Annot., 27:158, 1984) Couch]; Killing ed. see 855-856 pp. § [hereafter Insured, nonsensical; 7[a], 813.) merely This argument § because be entitled of the insurance lawfully proceeds someone may benefits was Morgan’s does not alter the fact that for policy application fraudulent.

We find For Reilly’s legal support theory wanting. also reasons public courts have fraud distinguished involving between cases policy, obtaining a life insurance decides to policy, beneficiary cases where murder the one insured after the insurance. As purchasing explained commentator, “An the rule that the of the insurer is not exception liability by affected the the insured when beneficiary’s unlawfully killing may arise the is beneficiary also of fraud with to the insurer. For guilty respect it example, is established that conceived the idea murder- beneficiary if of ing prior the insured procured to the time the insurance was and with that in thought mind the himself ... so that the beneficiary procured policy was, effect, insurance policy inception, actual at its contract between beneficiary and the insurance as from a contract company, distinguished between the innocent insured and the the insurance company, company may defeat on liability ground of recovery fraud. Under this principle 27:160, barred even by (Couch, of estate the insured.” at p. § omitted, added; Rest., Restitution, fn. italics see generally, 189(1), com. § (e)(2) 778.) at

California has adopted foregoing (see rule West Coast L. Co. Ins. (1943) 58 384]), 773 Cal.App.2d P.2d as has virtually [138 Crawford every jurisdiction (See, that has considered the New e.g., England issue. Mut. (E.D.Mo. 940-941, Ins. Co. v. 1976) Calvert 410 and cases F.Supp. Life cited; Chute v. Old American Ins. Co. P.2d Kan.App.2d 734, 738-739]; Fidelity Flood v. 1981) & Guar. Ins. Co. (La.App. Life So.2d 608; Annot., Insured, cert. den. 399 So.3d of Killing supra, 27 A.L.R.3d, 13[a], 825-826.) at § pp. case,

In this the evidence showed Cliff Morgan purchased large of amount life insurance shortly after work beginning Life Equitable Insurance Company. Experts it was an opined unwise investment due to the high as premiums compared Morgan’s annual Evidence also salary. second, showed that the victims were killed before shortly and more substantial, Also, premium installment was due. told Colette Mitchell Hardy 1, 1981, that he kill must the victims June or the insurance would expire. Thus, there was evidence that the timing was not killings coincidental. premise Reilly’s argument is thus unsound: the facts establish that Cliff Morgan, lives, at the time he purchased policies the insurance on their so, If have may companies

intended to kill his wife son. the insurance anyone. been absolved benefits to obligation pay case, if and the insurance even assume is correct Reilly we any someone, involve- benefits to obligated pay Morgan’s were companies and his beneficiary in the eliminated him as a potential ment murders thus false and fraudulent. benefits was application was also evi- In addition conduct there Morgan’s part, to fraudulent Hardy conclude that dence from which the trial court could admis- For to commit that crime. participated conspiracy example, receive several thou- sions of both defendants reveal they expected actions Reilly’s sand dollars as a result of life insurance Morgan’s policies. Costello, active first then and then demonstrate hiring Boyd, Hardy, knowledge exhibited enterprise. Hardy involvement the criminal the victims insurance fraud to Colette Mitchell that by admitting intended 1,1981, had be killed June when the second premium payment before Most, all, hearsay, being if were due. of these statements admissible Code, (Evid. 1220.) Accordingly, admissions the defendants themselves. § demonstrate sufficient facts to we contention that there lacked reject Reilly’s a facie of insurance fraud. showing a to commit prima conspiracy

b. Evidence Fraud Insurance of Insufficient evidence to

We defendants’ there was insufficient reject also claim the fraud. Viewing conviction for to commit insurance support conspiracy (see in a v. Johnson People the facts most favorable to the light respondent 431, 738, (1980) 26 Cal.3d 606 P.2d A.L.R.4th Cal.Rptr. 576 [162 1255]), we trier fact have a beyond conclude rational could found the that Defendants strongly reasonable doubt essential elements of crime. there no for argue was evidence a false fraudulent showing application benefits, (a). as by former Insurance Code section subdivision required above, however, As discussed evidence Cliff ample showing there Morgan, he was the under the knowing ineligible policies to collect benefits murders, because of fact his involvement with the concealed that when for the There was evidence the applying support benefits. thus sufficient to conviction.

Defendants argue Reilly also that cannot be because guilty conspiracy he was not with Cliff at the the the acquainted Morgan procured time latter We policies question. killing That the idea of disagree. Morgan formed wife before he met was no is irrelevant because there until conspiracy Morgan Reilly—the original two members the conspiracy—agreed to Moreover, kill after this agreement, the Nancy Morgan for insurance money. Costello, scheme, first Marc then soliciting Reilly actively the participated Calvin the Boyd, finally Hardy killing. perform the covering

Defendants also there were insurance policies several argue lives these showing Morgan procured victims and there was no irrelevant, however, other with fraudulent That is point intent. policies application because evidence he made a false and fraudulent showed listed in the there was companies information. We conclude sufficient evidence for insurance supporting conspiracy the conviction commit fraud. Continuing Conspiracy

c. that, next there existed assuming

Defendants argue conspiracy fraud, commit insurance the trial erred by finding conspiracy court claim, ongoing at time of defendants court ruling, trial. so trial and, the life of improperly prolonged concomitantly, the conspiracy of the ability to the prosecution rely exception coconspirator rule. Defendants find the with hearsay urge us to ended the death conspiracy of the victims.

The general rule is comes to an end when “conspiracy usually the substantive crime for which the tried either are is coconspirators being attained or (People Saling defeated.” 7 Cal.3d 852 [103 610].) 500 P.2d insurance would normally conspiracy “[An] . . . (Leach, upon receipt terminate[] insurance proceeds.” 436.) Cal.3d at “It the trier of fact—considering unique circumstances and the nature and of the each purpose of case—to conspiracy determine precisely when the (Saling, has ended.” conspiracy supra, at 852; p. People v. Humphries (1986) 185 1334 Cal.App.3d 536].)

The in evidence this case primary goal reveals the conspiracy was the of acquisition money through of the insurance receipt Leach, benefits. This case is thus unlike supra, 15 Cal.3d which we cautioned that a to conspiracy commit murder does not entail “necessarily [] a second conspiracy to collect the insurance which will be proceeds as paid a matter of course upon the successful of commission the contemplated Instead, (Id. 435.) offense.” at p. (and the evidence reasonable inferences therefrom) drawn reveals Cliff Morgan, and others Reilly, Hardy, embarked on an intricate plan to two (See insurance Humphries, companies. defraud supra, 185 at Cal.App.3d p. 1333 objective gain, [“the was not the monetary of removal another person”].) 403, the trial section Evidence Code a to holding hearing pursuant

After a conspiracy facie demonstrated prima the evidence court concluded addition, defraud that the conspiracy In it found commit insurance fraud. The conspiracy agree. We continuing was a one.11 companies the insurance Instead, for not, death of the insureds. end with the argue, did as defendants case, received the coconspirators it continued until of this purposes 436), or Morgan at (Leach, supra, p. 15 Cal.3d insurance proceeds victims, him from disabling thus homicide of unjustifiable convicted of 1 Cal.3d (Saling, supra, the insurance legally collecting proceeds. defeated].)12 the insur Because crime is ends when substantive [conspiracy trial, the conspiracy at the time of had not out yet paid ance companies one, made statements hearsay of the introduction continuing permitting trial, to Evidence Code pursuant the crime and the the time between during 1223. section find the trial invitation to defendants’ we decline to holding, accept so the introduc to permit extended the life of the conspiracy

court improperly fully We are them. against statements hearsay tion of their coconspirators’ “the looseness admonition that Jackson’s cognizant eloquent of Justice which inherent dangers the doctrine conspiracy] present of pliability [of sought wherever it is background judicial thought be should (Krulewitch case.” particular meet the exigencies extend the doctrine to 790, 797, S.Ct. 716] L.Ed. v. United States 336 U.S. 449 [93 Leach, Jackson, Cal.3d J.], with quoted approval opn. [conc. at trial of 435.) presented evidence Considering independent at p. however, we conclude the insurance companies, to defraud conspiracy conspiracy purpose wife for the insurance.’ was for the of that accompli[], Witkin & although existence at the time of the murders of critical—but conspiracy Leach and was evidence that the insurance was an unwise investment court continued: 11The court stated: “It would Finally, After 12Reilly objective primary conspiracy, noting of his defense at trial was that he withdrew from Epstein, Saling the court is ‘Kill does not now contend that (see this explicit purpose I feel objective the fact that Cliff People conspiracy purposes “It would and all the cases purpose this the Cal. Criminal Law my ruled objective of that wife, conspiracy ^[1] Lowery of that of this It seems to set the that, was to obtain the insurance then we’ll collect appear of conspiracy, as I have heard the obtaining of that “Inasmuch as this Court appear Morgan bought conspiracy is still in existence.” cited, mind, particular hearing (2d conspiracy, this Nancy anyone attempted in 200 the insurance ed. me, Court—again, is.” 1988) Cal.App.3d tone for the Carol if a that there is sufficient the insurance insurance,’ Elements of Morgan person . . . not for the murder of proceeds.” proceeds, the termination conspiracy, to considering his income , finds that testimony conspiracy. indicates or and Mitchell is much different voluntarily while a trainee 1220 Crime, there was a and if [246 here, independent that is not § you withdraw Raymond objective and date is [the will, purpose and that there conspiracy than ‘Kill pp. further, victims] as to what obviously 200-201), yet level, from the evidence Morgan. 443]; with fait my but the 1 no We also of occurred here. note improper conspiracy liability inflation in a “vehicle provide this case conspiracy theory pressed solely was not defendant.” using otherwise inadmissible evidence hearsay against Instead, (Leach, 435.) were supra, Reilly Hardy Cal.3d at both p. under with and of of charged conspiracy convicted the substantive offense section 182.

d. Statements Made Conspiracy “in Furtherance”

Reilly also that certain statements apparently hearsay contends admitted at made exclusively, but not those statements trial—principally, after in “in Hardy Reilly pretrial were detention—were not made Code, 1223, furtherance the objective” (Evid. subd. conspiracy. § Instead, (a).) he claims the statements were made to conceal only in the case coconspirators’ involvement He thus characterizes his conspiracy. as in one which the trial court an improperly implied “secondary found conceal, which conspiracy” existed after the ended. primary conspiracy Not every conspiracy to achieve a criminal is objective necessarily Thus, followed by a secondary to conceal the first conspiracy conspiracy. Leach, that, People v. supra, 15 Cal.3d we are explained “conspiracies not be deemed still act operative merely because conspirators ” concert avoid (Id. ‘detection and at punishment.’ p. part quoting 853; States, Saling, supra, 1 Cal.3d at p. see also Krulewitch v. United at 794].) U.S. at p. L.Ed. Reilly’s claim trial court admitted the state challenged meritless, ments proscribed “implied secondary theory conspiracy” however, because it is based on his that the assumption primary conspiracy ante, ended with the death of the victims. As we explained, pages 143-145, the goal primary conspiracy was the fraudulent collection of Thus, insurance proceeds, not the death of the state victims. hearsay ments Reilly now challenges were made to the pursuant primary conspiracy made, that was ongoing at the time the statements were an implied secondary conspiracy conceal the first crime.

Hardy contends hearsay numerous were erroneously statements admitted at trial because the statements were not made “in objec- furtherance Code, tive” of the (Evid. criminal 1223.) In he conspiracy. de- support, § scribes several individual statements Reilly made to Mr. and Mrs. Sports- man, H., Debbie Sportsman, Kim and Calvin For both Boyd. example, James Sonja home, testified Sportsman that when their mentioned a man named Cliff killed in Morgan who wanted to have his wife

146 that also testified Sportsman order to the Mrs. proceeds. collect insurance Sports- the Debbie Reilly killing. intended to to a “kick-boxer” about speak man by Reilly attesting related numerous and admissions damaging scheme, he the in that was at involvement the his admission including and Morgan crying the heard Morgan night killings Nancy home of the and had her that Reilly for her life. Kim H. testified Debbie told pleading him had Boyd Reilly approached admitted his to her. testified complicity in admitted and that after the killing, slaying Reilly about the participating had and committed the murders. Hardy cases, In made after many coconspirator apprehen a statement of a in rather sion sense further the criminal but enterprise, “does any 209 (People Luker Cal.2d 476 frustrates it.” v. 63 [47 or 9].) “furthering” P.2d Such statements are the antithesis of often the reveal secret actions objective they criminal because “advancing” coconspirators which law enforcement can use prevent conspirators however, that no reemphasize, from their criminal We realizing objective. in exist in whether made are rigid rules this area statements of the analysis totality furtherance of a an conspiracy depends on facts case. 1 Cal.3d at 852 (See Saling, supra, p. and circumstances has ended on the circumstances” conspiracy depends “unique [whether case]; [same].) Accord Humphries, supra, Cal.App.3d p. it held narrate ingly, “[a]lthough merely past has been that statements which conspiracy events are not to be deemed in furtherance as made [cita tions], supra, Cal.3d (Saling, such a rule be applied mechanically.” cannot 8.) at p. fn. case, fraud hinged this to commit insurance conspiracy

Cliff for the because of the Morgan’s ability being killings to avoid blamed rule on the precluding beneficiary collecting who murders the insured from policy. killing The evidence showed Hardy Reilly’s payment victims insurance dependent ability was on Cliff to collect the Morgan’s Should revealed proceeds. be before Morgan’s complicity killings insurance paid objective the criminal company policy proceeds, entire If conspiracy—insurance Reilly fraud—would be thwarted. either revealed, would Hardy’s guilt disclosure of Cliff involvement Morgan’s surely follow because their intertwined with Mor complicity fatally Thus, gan’s. made statements to Debbie Calvin Sportsman, Boyd, Kim H. (all found to secrecy be an to maintain coconspirators) attempt and avoid discovery of the furthered criminal conspiracy objective, their namely, (See enabling Cliff Morgan policies. collect on insurance Saling, supra, 8.) 7 Cal.3d fn. at Leach,

This case is thus People from cases like distinguishable Cal.3d which statements were made the termination of the after

147 cases, In the criminal objective objective— criminal of the such conspiracy. the victim—had achieved and the ended. Statements killing been conspiracy in made an to thus could not have furthered apprehension avoid attempt (Saling, supra, criminal it 7 objective, having already been accomplished. 853.) Cal.3d at when uttered conspiracy ongoing Because p. most the insurance of the statements now and because Hardy challenges, had companies yet Hardy we conclude most of the statements paid, were made in and thus the challenges attempt secrecy an to maintain the viewed, were integrity they criminal So it follows that enterprise. made in furtherance of the within the of Evidence Code meaning conspiracy 1223, (a). section subdivision however,

We agree, challenged that one of the statements was not Thus, in made furtherance of the unlike conspiracy. Reilly’s conversations alibis, with Sportsman Debbie which their they attempted to coordinate victims, his solicitation of Calvin kill Boyd to rum Reilly’s gratuitous blings to James and Cliff find Sonja Sportsman Morgan’s about desire to man hit cannot be “in deemed furtherance of’ the conspiracy.

Because this evidence did not need not directly implicate Hardy, apply we Chapman standard of (Chapman (1967) review. U.S. 386 18 California Leach, 1065]; L.Ed.2d supra, S.Ct. see A.L.R.3d Instead, Cal.3d 446.) order to determine whether admission this harmless, statement was we decide must whether it is reasonably probable that would Hardy have achieved a different result in the absence of the error. Leach, (People 243]; v. Watson 46 Cal.2d P.2d 836 [299 15 Cal.3d at p. Watson].) 445 [applying

We conclude the admission of Reilly’s statements to the Sportsmans was harmless in light the numerous times in the Hardy implicated himself killings Colette Mitchell. For her told used bolt example, Hardy home, cutters gain entry into the Morgan fact not made public by addition, investigating In officers. (i) admitted Colette he had Hardy been to the Morgan home the (ii) that he hear night killing, could Nancy Morgan snoring, (iii) that the killing had to occur before June 1981, because the life (iv) insurance would that Colette should expire, an dispose of M-l rifle and some boots his apartment because it could link him to the crime. Strong circumstantial evidence also linked to the Hardy crimes, such as the facts that he was with before and after the Reilly just killing, and that Reilly told Mike Mitchell had Hardy agreed to commit murders. statement furtherance clearly conspiracy, Reilly told Sportsman Debbie speak so could their Hardy they coordinate alibis. the “an enormous number of admission of

Reilly challenges also “in were made further ground they statements” on the that not extrajudicial Code, (a).) subd. (Evid. ance of the of objective conspiracy.” § [the] First, his own challenges that as he He cites two he describes “illustrative.” “I do it.” This to one can to Dempsey get [Hardy] statement Joe that (Id., as admission. Reilly was introduced an against statement properly Second, 1220.) Hardy’s should not have admitted complains he court § of the charge operation. comment to Colette Mitchell Reilly alibis, how were to coordinate their Because coconspirators attempting ever, as made in we statement characterized fairly conclude this can be other challenge furtherance of the To the extent intends to conspiracy. enumerate, argument. he fails we reject individual statements that admitted erroneously if we were hearsay Even assume some statements him, him evidence took the form of own most of the against against admissions, which introduction of clearly were admissible. erroneous (Watson, hearsay manifestly additional statements was thus harmless. 836.) at p. 46 Cal.2d which they

Defendants a list of individual statements or acts provide least, or, excluded were admitted at could have been claim improperly claim the acts They to Evidence Code section 352. statements pursuant trial, was after all occurred after the arrests but claim period they before find no error. had terminated. We have reviewed list and conspiracy uttered and were thus Hardy Reilly Some statements were either acts, admissions as to them. Other as Colette Mitchell’s false testimony such claims, of the insurance preliminary hearing, Morgan’s filing of the rifle “stolen” were Hardy’s attempt dispose allegedly Morgan, from status of actor. clearly probative guilt irrespective coconspirator others, Still such Mitchell’s York Morgan’s as Mike move to New and Cliff failure to for the victims’ funeral were relevance pay expenses, marginal if clearly even improperly harmless admitted. if even we the trial have some of the

Finally, assume court would excluded listed statements and acts Evidence Code defendants pursuant section failed to object and thus waived the ground appeal. claim Coconspirator

e. Status when, the trial

Reilly contends court erred after holding hearing Mitchell, on the it subject, declared Debbie Colette Ron Sportsman, Leahy, and Calvin were Boyd coconspirators. there no support, argues showing evidence the four kill any of intended to the victims. “To offense, sustain a conviction for conspiracy particular commit but agree that the intended to prosecution only conspirators must show (People intended commit the of that offense.” they also elements 1300].) Horn 524 P.2d Cal.3d By coconspirators that none of the mentioned arguing above kill, objective intended to loses of the fact that the Reilly again sight Thus, the intent to was not to kill but to commit fraud. conspiracy insurance kill is irrelevant this context. The true is whether Debbie Sports inquiry man, Mitchell, commit Colette Ron Calvin intended to Leahy, Boyd insurance fraud.

We with begin Sportsman. conspir- Debbie not a member Although outset, from acy she and contributed to its success. For willingly joined crime, she advised example, Reilly on how to out the carry suggesting he use Mike Mitchell’s car instead of could be linked to easily one that more him. She helped cash a check he to the bolt Reilly money buy so would have occasion, cutters. On one she to Nancy Morgan conversation engaged Cliff allow Morgan and to to room and Reilly go another discuss some murders, details of the After planned killing. Reilly she collaborated with to coordinate his alibi story with other Most coconspirators. important, she intended to share in the her he that when proceeds: Reilly promised received his share of the insurance he her a car and proceeds, would new buy take her to either Hawaii or We there ample Tahiti. thus conclude was evidence to find Debbie a Sportsman was coconspirator.

We reach the same conclusion when we Like consider Colette Mitchell. Debbie Sportsman, there is no original evidence Colette was an member of Her conspiracy. main contribution to the later when she conspiracy came attempted to prevent from police discovering evidence that have could Thus, implicated Reilly or she Hardy. testified at Hardy’s falsely preliminary examination, supporting alibi that he was home with her entire arrest, night of the After killings. Hardy’s she with his instructions complied and disposed of the rifle and boots that have could linked him to the addition, murders. In she acted with Ron to Leahy attempt persuade to crime, Calvin and Boyd Debbie Sportsman to about the stop talking so going far as to threaten them with physical harm. She thus assisted other clearly conspirators to keep the from police the true learning nature of the conspir- acy. Unlike Debbie there no in- Sportsman, was direct evidence Colette tended to personally share obtained fraudulently insurance benefits as a Nevertheless, result of her involvement. reasonably trial court could infer from of her depth involvement that she in the expected share profits from the criminal enterprise through her boyfriend, defendant Hardy, and that she thus shared the criminal intent the other coconspirators commit insurance fraud. to kill the member of the early conspiracy, agreeing

Calvin was an Boyd $1,000 rifle received a some At point, Boyd victims for cocaine. one backed out Boyd ultimately Cliff as (provided by Morgan) payment. partial $1,000, because when could not Morgan Reilly apparently Cliff raise Marc through hire “Mafia hit man” they money had all their spent trying he knew if what Costello. After the not to reveal killing, Boyd promised justice. Reilly from fugitive to reveal that was a promised Boyd in return (or Mm at a price) later car sell it to low give Boyd promised showing Boyd evidence for Ms silence. We conclude there sufficient coconspirator. problem- is more coconspirator The evidence Ron was a showing Leahy Hardy’s Reilly, plan atic. There is no indication knew of Morgan, mostly helping fraud. consisted commit insurance Leahy’s participation evidence or of criminal secrecy by destroying maintain the Reilly plot Colette, sister Leahy’s Unlike Debbie or threatening Sportsman witnesses. however, infer he intended to share there is evidence wMch we may no from con- from scam. His actions resulting a successful insurance profits for murder. mainly sisted defendants avoid conviction helping fraud is thus a Ron shared the intent to insurance Leahy Whether commit close question. if Leahy coconspirator,

Even we was considered erroneously assume however, would entitled to relief unless the admission defendants not be of the evidence from hearsay statements them. Most Leahy’s prejudiced however, him. recounting Reilly Hardy what told consisted Ms Leahy, Such defendants as statements were introduced hearsay against properly Code, (Evid. 1220.) Leahy said was NotMng particularly admissions. § ruling even if trial erred in damaging we thus conclude that court was a Leahy the error harmless. coconspirator, Right f. Due Process and Confrontation Mm Reilly briefly that admission of statements argues hearsay against 1223 way of Evidence Code section violates coconspirator exception Const., XIV; Ms (U.S. state and federal Amend. Cal. right due process. Const., I, 7, (a).) art. than the argument, subd. Other a brief mention of § however, he does the issue either expand argument with citation authority. (Wharton, relevant We thus 53 decline to address the issue. 563; 992, Cal.3d at p. People Blankenship (1989) v. 995-996 Cal.App.3d 141].) Cal.Rptr. [262

Both also contend the Hardy hearsay admission evidence under Evidence Code section 1223 violates their confront right VI, XIV; Const., Const., (U.S. art. against the witnesses them. Amends. Cal. I, 15.) rejected and the United Court have Both this court States Supreme § Brawley (1969) this argument (People Cal.3d 286-291 [82 361], 461 P.2d den. 400 U.S. cert. sub nom. Baker v. 993 [27 California 462]; Bourjaily L.Ed.2d 91 S.Ct. v. United States 483 U.S. 144, 157-158, 2775]), L.Ed.2d and neither defendant 107 S.Ct. reject reason we We therefore presents any should reexamine the issue. why this as well. argument Jury

g. Instructions

(i) CALJIC No. 3.16 “If instructed with a variation of CALJIC No. 3.16: crimes listed the information were committed the witnesses by anyone, named below were an their as a matter of law and accomplice testimony subject to the rule corroboration: Colette requiring Debbie Sportsman, Mitchell, Leahy, Ron Hardy, Fitzgerald, John Calvin and Marc Boyd, Sean Costello.” Defendants contend this instruction created an irrebutta ble that a presumption existed. reason that murder was a conspiracy They information,” crime “listed in the that it was were obvious that victims murdered, Since, the thus named were in persons accomplices. this context, accomplices are identical to the named essentially coconspirators, Therefore, claim, persons were coconspirators. defendants a must conspiracy have existed. instruction, isolation,

Even were we to the agree that viewed could be manner, interpreted this we conclude no juror reasonable would have so interpreted the instruction the light of other instructions. For the example, jury specifically was instructed that “Each defendant ... is individually to, receive, entitled and must whether he your determination was a member of the alleged As each conspiracy. defendant must determine whether you he awas conspirator by whether he deciding willfully, intentionally knowingly joined with other any or others in the alleged conspiracy." light instruction, of this direct and specific we conclude no reasonable would juror have interpreted CALJIC No. 3.16 the manner now argued by defendants. (Wharton, supra, 53 Cal.3d at instruction as a interprets [court would juror].) reasonable

By of parity we reasoning, also reject based on argument—apparently the Fifth Amendment—that CALJIC No. 3.16 defendants of the “stripped” presumption of innocence. We note that the jury instructed specifically that criminal “are defendants presumed to be innocent until the contrary is violation, no Amendment despite we Sixth

proved.” Similarly, perceive the jury’s portion that CALJIC 3.16 removed argument defendants’ No. on their to a trial. right jury factfinding thereby infringed function “little, any, if jury with Reilly argues also CALJIC No. 3.16 left defendants,” because apparently the named alternative but to convict least one of the be unless at “accomplices” seven named could not persons In his crime. charged actual defendants charged perpetrator brief, evidence con that there was insufficient complains also reply John or Costello were Hardy, of law that Fitzgerald, clude as matter accomplices. however, shows, attorney, Lasting, specifi- that Reilly’s

The record trial instruction, argue so he could the challenged presumably cally requested (See be viewed with distrust. of the named should testimony persons Indeed, in his 3.18.) argument made precise CALJIC No. this Lasting legitimate had a Lasting it is manifest that closing statement. Because instruction, error was any this we conclude tactical reason for requesting from the correctness of precluded invited and challenging 315, 353 (1988) 47 Cal.3d (People instruction on appeal. Hernandez 1289].) 763 P.2d (ii) Conspiracy Termination to instruct by failing

Defendants also the trial court erred argue been jury sua to determine when the ended. Had sponte conspiracy claim, instruction, with such an it have concluded provided they might and that to commit insurance fraud was not charge conspiracy proved, of the statements could not be consid many by alleged made coconspirators clearly We reject argument gave ered. this because the instructions jury Further, the the the jury jury choice of untrue. finding conspiracy charge that, act or that was told “No declaration of a is committed conspirator made after the his cocon binding has been terminated is conspiracy upon and are was spirators they criminally liable for such act.” any thus of had ended and that the given finding that the option conspiracy statements made after such held the former against termination could not be conspirators.

Defendants next contend the have determined as a trial court should law, matter of ended no later than jury, instructed that conspiracy Cliff it day Morgan’s “constitutionally arrest. offensive” They argue trial, to hold that a conspiracy can be at the time of but refer us to ongoing no authority holding. so We reiterate that the its continued until conspiracy attained, objective criminal of the insurance was or the (receipt proceeds) 436; (Leach, goal was defeated. Saling, supra, 15 Cal.3d at 7 Cal.3d 852.) arrest, at p. Defendants admit that at the time “a determi- Morgan’s nation had been made him proceeds paid insurance would not be unless and until the issue of an killer was whether intentional resolved.” Implicit this statement is the that the decision possibility Thus, whether to was still had not been pay conspiracy yet pending. defeated or frustrated at the time of permanently trial.

(iii) Elements Conspiracy to Commit Insurance Fraud The instruction on to commit insurance fraud conspiracy provided fraud, prove order to insurance “1. That a person must show: People presented or caused be a false or presented fraudulent claim payment insurance, [IQ a loss covered by 2. That such acted with the person intent specific to defraud.” Defendants that this instruction is argue definition, defective because it does not include the ele legal precise ments, of the terms “fraud” and intent There “specific to defraud.” are two First, answers this claim. the terms challenge defendants are words thus, common use and of common their knowledge; definition is not neces (See sary. People Taylor v. (1953) 116 806-807 P.2d Cal.App.2d [254 “fraud,” “artifice,” “trick,” necessary [not to define 179] and “device” for Second, correct, jury].) because the given instruction it was incumbent on defendants to request clarifying language. Their failure to so waived do (People issue. Sully (1991) 53 Cal.3d 163].) 812 P.2d

h. Summary We thus conclude the trial court correctly Reilly, ruled that Cliff Hardy, Morgan, and others fraud, engaged a conspiracy to commit insurance the conspiracy was a one continuing that did not end with death of the victims, and that statements by coconspirators killings made after the but before trial could be admitted at trial pursuant to Evidence Code section 1223 to the extent the statements were made in furtherance of the conspiracy. one Although statement was admitted that was not uttered in furtherance of the conspiracy, its admission was harmless. even if we Finally, assume the trial court erred in finding Ron Leahy was a that error coconspirator, was harmless.

7. Error Griffin

It is a bedrock principle our that one jurisprudence accused of a crime cannot be Const., to compelled testify against (U.S. oneself. Amend.

154 Const., I, V; 15.) an accused not be penalized Cal. art. order that § comment on may of the neither right, invocation this fundamental prosecutor infer from such the urge jury guilt defendant’s failure to nor to testify a 106, 85 S.Ct. U.S. L.Ed.2d (Griffin silence. v. 609 [14 California (Griffin); Hovey (1988) v. Cal.3d People [244 1229] 776].) committed prosecutor Defendants contend the 749 P.2d during closing argument. Griffin error trial, Reilly that told Leahy Mitchell and Ron testified both Colette

During he reveal that murderers and would identity them he knew the of the true the closing argument, prosecu- when the time was right. During information if not actual suggested Reilly tor referred to this testimony killer, to save himself. he would have revealed his information already . . yourself ques- “Ladies and . ask prosecutor gentlemen, continued: it, tion, I it was Cliff.” come out and didn’t do [Reilly] just say, doesn’t why constitutionally This as defendant was comment was error clearly Griffin requires Such error entitled to be free of such adverse comment. doubt. beyond we was harmless reasonable reversal unless can conclude it (United Hasting (1983) v. 461 U.S. 507-509 L.Ed.2d States [76 18; 105-106, 386 U.S. 1974]; Chapman California, 103 S.Ct. court, we ask Hovey, supra, 572.) Cal.3d To p. paraphrase high at whether, is it testify, failure Reilly’s absent reference prosecutor’s returned a verdict clear doubt that the would have beyond jury reasonable 107].) L.Ed.2d at (Hasting, supra, of 461 U.S. 510-511 guilty? pp. doubt. We error a reasonable beyond conclude the was harmless an interlock guilt consisting The evidence of Reilly’s overwhelming, of of including evidence ing persons, web admissions from numerous Reilly’s own The evidence of comments to Debbie Reilly’s admissions. There was strong. particularly confession—was Sportsman—essentially home, that evidence that cutters to to the victims’ Reilly entry used bolt gain (a knife), he weapon slayings he knew the used fish type Fitzgerald accompanied had human blood his shoe when arrested. Sean prom where Cliff some Reilly Morgan gave Reilly restaurant at the money. jury guilt ised We also note that the trial court instructed fact of the trial not inference of from the any guilt to draw adverse phase circumstances, is clear that the Reilly testify. did Under these it from the have convicted even refrained Reilly would had prosecutor reach argument. (By by so we need not concluding, argument prohibited if did and that failing object, defendants that not waive the issue did, defense ineffective assistance provided constitutionally counsel by failing object.) counsel Testify Failure to

8. Counsel on Comment Codefendant’s Defendants’ were violated when rights Defendants contend their Fifth Amendment for their silence trial. during counsel codefendant commented on Morgan

a. Facts During closing

Jack Stone codefendant Cliff at trial. represented Morgan argument, Stone nature of the evidence emphasized circumstantial there, stated, “All He then those that against Morgan. got up witnesses Debbie, Calvin, Costello, were of Cliff but they only [Morgan] accusers not they [Reilly], accused Mr. had a chance Lasting got [Reilly’s up, counsel] every cross-examine and, one of them—.” point, Lasting objected At that Mr. out “There is the that jury’s presence, opined, implication clear testified, not [Reilly] has that Cliff didn’t have the to cross- opportunity I I examine think it’s it [him]. think it’s an refers to improper. implication, ... the fact I that didn’t call him a Lasting, joined as witness.” immediately then by Demby, moved for a mistrial. Jonas,

The prosecutor, Mr. stated he believed that it was improper anyone to comment on a defendant’s silence. Stone indicated he did not intend to pursue argument line of he disagreed but with the prosecutor, case saying law supported right to comment on a failure codefendant’s and, testify.13 The trial court sided with the directed prosecutor impliedly, Stone to refrain from on commenting Reilly Hardy’s and failure to It testify. then denied the mistrial motion and further denied that the Demby’s request admonished, jury be saying jury instructions adequately covered the point.

Later Stone’s closing he argument, the testimony described concerning a lunchtime between meeting Morgan which two Reilly allegedly discussed the killing. Morgan testified he how much told insurance he Reilly had purchased effect, for his family then something said “One kill could his wife for that amount money.” gist Stone’s argument was that Morgan did not killings, initiate idea of the but that researched and Shepardized prosecutor or the court could not comment witness stand until one for them to say that it’s improper, I believe it’s not never found a case in this has 13“Andwhen the attorney supports always [sic] been, couldn’t comment in the improper me about has Griffin time for a not always comes, state only came Griffin prosecutor, been, inferences but it supports me I I believe that the case law along any through the federal defense federal and made but you Mr. Jonas is it’s jurisdiction it. can comment on definitely his own ^[1] It only change courts never said right when client And not supports me as well improper says think anything in the law which defendant not I cannot in the as the says for me to only that about cases where state’s, sense it’s comment. I can that, improper comment” taking and I have but I have comment, says the law ^[1] but So 156 lunch time “During with Stone continued: Reilly.

the idea originated conversation, Cliff there. only people we there. There were two weren’t and [<¡[] witness stand Morgan Cliff on the Reilly. got up and Buck Morgan side at what Mr. guess Reilly’s his of it was. We have to told what side you that he initiated that we know of that conversation was other than fact was There money.” off for the insurance Nancy Morgan thought knocking objection. no immediate later, If you Cliff told us. “All we know is what [f]

Still Stone remarked: hide, and he tells he on that witness stand nothing gets know a man has up there, he He let Mr. got in mind. And what did. up what’s that’s Cliff you whacked attorneys him three the other two away days, Jonas whack for and you, he soul in front of days, at him for three and then bared his away did for crime he jail years man for two that’s the soul of a who’s been commit; he frus- mentally, he and and is not has wasted away physically him him to tell what accusing But he the one that’s get trated. can’t person before, there he As way went on. That’s Mr. looks the does.”14 why Morgan thereafter, the was adjourned immediate objection. proceeding no Soon for lunch. later, and Lasting

On a few both hours resumption proceedings motion, com- Stone claiming improperly renewed their mistrial Demby they silent. right particular, mented on their clients’ to remain respective hide, that, gets “If man he you nothing cited comment know a has Stone’s he in his mind and that is what you that witness stand and tells what is up hide” “nothing Cliff did.” The court that the disagreed, explaining trial Mr. not Hardy testify. comment innuendo that did “an Mr. why All hide that’s Morgan nothing got he is that Mr. has saying motions, on the witness stand and testified.” The court denied the mistrial up its belief that it would be error for reiterating anyone—prosecutor, Griffin trial or codefendant’s comment on a defendant’s failure judge, counsel—to to testify. Waiver

b. The assert that neither People Hardy Reilly adequately first nor to the for objected appeal. error thus waived the issue alleged Griffin 41 P.2d (People Cal.3d Ratliff 665].) We and moved disagree. Hardy Reilly objected Counsel both for a mistrial when Stone alluded to their silence implying vaguely he was not able to cross-examine true accusers. issue Morgan’s prior had Stone’s Morgan apparently pounds 14Cliff lost about 30 in the 3 or weeks Mr. argument. 609, attorney U.S. comment an for Griffin, supra, applied by whether 380 time, discussed at the trial court ulti- thoroughly a codefendant was Hardy, Stone did Reilly, prosecutor. with the views of and the mately siding im- subject. return immediately Although subsequent, allegedly not the matter was taken provoke objections, comments did not proper, prompt their mistrial shortly thereafter chambers and the defendants renewed up record, Reilly objected motions. From the it is thus clear that Hardy Stone’s remarks via their mistrial motion of the upon resumption proceed- case, ings after the lunch Under the of this break. circumstances particular we find preserved defendants the issue for adequately appeal.

c. Comment on by a Silence Other Than a Prosecutor Defendant’s discussed, ante, 153-154,

As we at a pages prosecutor may a (Griffin, 609.) comment on testify. supra, defendant’s failure to 380 U.S. concede, Defendants argue, the rule is not limited to People Thus, codefendants, prosecutorial joint comment. a trial of multiple comment an by on the attorney representing one defendant silence a codefendant violates the codefendant’s to freedom from right constitutional adverse comment on his at (People (1970) silence trial. v. Jones 10 237, 243-244 Cal.App.3d trial court Cal.Rptr. [affirming ruling [88 871] prohibiting silence]; defendant from on codefendant’s v. commenting People 478, 481 Haldeen 267 Cal.App.2d [affirming grant [73 102] 988, of new ground]; (9th 1989) trial on this U.S. v. Castro 887 F.2d Cir. 997 error]; 1522, (11th U.S. v. 1989) [harmless Mena Cir. 863 F.2d 1533-1534 [same]; 1495, (9th [same]; U.S. v. 1987) Patterson Cir. 819 F.2d 1506 United 1186, [same]; States v. (9th 1979) Cir. 595 F.2d United 1187 Moreno-Nunez (7th States Alpern [same]; v. 1977) Cir. 564 F.2d De Luna v. United (5th States 1962) Cir. error]; 308 F.2d 140 reversible 75A [pre-Griffin; Trial, (rev.) 180-181; Am.Jur.2d (8th but pp. § see U.S. v. Anderson Cir. 1989) 879 F.2d 4fn. [declining issue].) to resolve When occurs, improper comment on a defendant’s silence re- error quires reversal of the judgment unless a reviewing court concludes the error beyond harmless a (United reasonable Hasting, supra, doubt. States v. 461 U.S. at 105-106]; pp. 507-509 L.Ed.2d Hovey, pp. supra, 572.) Cal.3d at p. Although it is error either the prosecutor or counsel for a silence, codefendant comment aon defendant’s we recognize that identity speaker can make a difference when an determining whether Thus, remark improper was harmless beyond a reasonable doubt. a comment to the silence alluding of defendant that would if reversal made require by a prosecutor may be deemed harmless—or even not error—if made aby codefendant’s Two attorney. factors convince recognize us to this difference.

First, freedom from Amendment right defendant has a Fifth although a silence, has concurrent Sixth a codefendant adverse comment on these two balancing defense. to a full and Courts right vigorous Amendment a “indirect” references concluded that rights “oblique” have thus silence, reversal. do not require to defendant’s while improper, codefendant Castro, reference deemed (U.S. 887 F.2d at [“indirect” Patterson, harmless]; only at supra, F.2d 1506 p. U.S. v. 819 [“statements harmless]; error deemed to testify”; referred to defendants’ failure indirectly and oblique 564 F.2d at 761 Alpern, supra, p. United States v. [“isolated v. stand”]); United States his failure to take the reference to codefendants’ 772, be may references (4th 1971) [oblique 454 F.2d Cir. Shuford words, counsel codefendant harmless].) In “[improper by comment] other and the reference is indirect not reversible error where the does constitute there is substantial are not or where positions antagonistic, defendants’ Trial, (rev.) (75A Am.Jur.2d evidence all defendants.” incriminating against omitted.) p. fns. §

Thus, that his a to the emphasize jury the rule codefendant to permits to cross- is he took the stand and submitted strong because credibility addition, a if or refers to argument indirectly obliquely examination. such silence, in For harmless. generally example, codefendant’s the error is found Patterson, Patterson, supra, v. for defendant U.S. 819 F.2d counsel “ testified, in the other defendants who is different than argued: ‘[Patterson] is but the one reason among many, this case. He’s different for one reason to he He’s allowed himself has taken the stand and faced his accusers. in obligation country. be cross-examined. He has no to do that this [][]... The I am . . you gauge is that when . point making [3[] [Patterson’s] stand, you nervousness that testimony taking any courage seen, testifying. to him in the in which is may you put have have context He has He is and he is at the totally mercy you no protection. exposed ’’ (Id. 1506.) people.’ p. The Patterson court ruled that while counsel’s were improper, comments indirectly did not the line of “they only cross reversible error. The statements referred not defendants’ failure to do benefit testify. They [other] any at the Nor stress expense they Patterson the other defendants. do inference to remain that the defendants were because chose guilty they Patterson, (U.S. 1506.) jury silent.” v. F.2d at After supra, noting p. was infer the failure to the court properly testify, instructed from guilt concluded the error harmless.

A a defend- second reason comment a codefendant’s counsel on why is a ant’s silence different from is the role by prosecutor unique comment prosecutor criminal “Given the institutional plays trial. prosecutor’s role, when the an prosecutor ‘comments’ the failure of accused to merely testify, the reference encourage jury all likelihood calculated to finding silence with thus equate guilt; economy reasonable judicial permits (such reversible error. When the from an as ‘comment’ comes actor codefendant) counsel for a in the without an interest defendant’s institutional however, guilt, it would find as be reversible error a matter inappropriate Instead, of course. actually court should ask whether the comment (U.S. Mena, invited implicitly to infer from guilt silence.” 863 F.2d at italics original.)

We agree with the Mena court’s assessment and those apply princi ples (“Mr. Stone’s comments in Lasting this case. first comment got had a up, chance them—”) to cross-examine everyone arguably aimed at insinuating that codefendant he Morgan disadvantaged was because was unable to question Reilly, one of his principal Lasting’s accusers. however, objection, Stone in prevented from the finishing thought chambers, subsequent in discussion the trial made court clear that Stone was prohibited from commenting on Under Hardy’s Reilly’s any silence. standards, then, the first challenged Griffin, statement did not run afoul supra, 380 U.S. 609.

Stone’s next questionable remark concerned his inability to know Reilly’s version of the lunchtime conversation with Morgan. the comment Although (“We have guess to at what Mr. side of that Reilly’s conversation was .”) . . . arguably alluded to the fact that did not Reilly testify, the reference is that, clearly tangential and indirect. We if conclude even improper, Moreover, comment does not require reversal of Reilly’s conviction. because all, Hardy was not mentioned at remark this does not implicate rights his Griffin, under supra, 380 U.S. and its progeny.

The most troublesome statement Stone made in his closing argument was hide, “If this: you know a man nothing has gets to he that up on witness stand and he tells what’s you on his . . mind. . But [Morgan] can’t get one person that’s him accusing to tell him what went on.” This statement most clearly illustrates difference between prosecutorial comment and comment another by defense If the attorney. challenged statement was made by the because, it prosecutor, might constitute reversible error as to Reilly15 from coming a prosecutor, the probable meaning of the is statement a call to the jury to infer improperly from guilt silence. from Reilly’s Coming a it prosecutor, might be difficult to conclude the error was harmless beyond reasonable doubt. 15Because the person one question statement to accusing [Morgan]” refers “the that’s

(italics added), comments it seems clear that Stone’s to Reilly only Hardy. refer and not to however, here, We uttered a codefendant. by lawyer was for

The remark intended the necessarily prohib- so conclude Stone thus cannot be to quick Instead, plausible subject equally inference. the comment is ited he because Morgan’s testimony should believe jury that interpretation Indeed, cross-examination. subjected took the stand and himself to the remark. interpreted how the trial court circumstances, ask the comment actu- should whether

Under such “[we] Mena, (U.S. infer silence.” ally implicitly invited from jury guilt did not It is clear Stone original.) 863 F.2d at italics of his silence. to infer because actually Reilly guilty ask the jury hide, Instead, he on that gets up “If nothing he said know man has you And did.” and he what’s his mind. that’s what witness stand tells you Cliff added.) (Italics Morgan After was cross-examined emphasizing man jail Stone “that’s the soul of a who’s been continued: prosecutor, commit; away he he wasted physically for a crime did not has years two accusing get person he he the one that’s mentally, and is frustrated. But can’t way he why Mr. does.” Morgan him to tell him what went on. That’s looks Thus, infer (Italics added.) guilty rather than urging to embel- used silence testify, Reilly’s because he declined Stone instead drawn lish and that was looked why was frustrated point Morgan and haggard. draw the implicitly jury can we conclude Stone’s comments invited

Nor conceivably to hide” “nothing inferences. the comment prohibited Although silence, inter- an the could be construed as comment on improper Reilly’s Moreover, vocal are to Stone’s privy is a tenuous one. we not pretation result, interpretation inflections or we must on the gestures. rely As of a meaning who and to discern the true judge, present trial better able (Cf. record. ambiguous statement which on the face of the cold appears P.2d v. People Sanders 51 Cal.3d [273 venire, the we “consid- grant on motion to ruling quash jury 561] [when “ observation, erable deference” to trial because of ‘their of judges powers their judicial of trial and their broad understanding techniques, experi- ”].) ence’ trial was sensitive defendants’ Significantly, judge—who the and on silence—found claim directed Stone not to comment their Griffin Stone was not defendants were because remained insinuating guilty they Instead, silent. the court “All he is that Mr. has Morgan concluded: saying nothing to hide and stand and testified.” why got that’s on witness up We implicitly and conclude the did agree challenged urge statement facts, then, we find no prohibited to draw inference. On these jury Griffin error.

Even were we to find must any regard some this impropriety, misstep (United Hasting, be considered harmless States v. beyond a doubt. reasonable 105-106].) To U.S. at L.Ed.2d at pp. pp. paraphrase 507-509 [76 court, whether, the high Hardy we ask absent Stone’s allusion to and Reilly’s failure to is it would testify, beyond jury clear a reasonable doubt that the 107].) (Id. have returned a guilty? verdict of at 510-511 L.Ed.2d at pp. ante, We we question must answer that the affirmative. As explained, 154, the evidence page guilt consisting testi- overwhelming, other, who, mony of numerous witnesses each by large, complemented their Both reinforcing credibility. Hardy admitted their guilt others. There was physical evidence that was with the stories of consistent shoe, knife, cutters, (fish various involved persons blood on the bolt coin collection, rifle), ring, diamonds from the evidence opportunity (Hardy’s alibi was undercut when Colette her Mitchell changed story), evidence of (several intent knew people of the insurance with policies, first attempt $2,500 Costello), Marc (Sean and payment out Fitzgerald counted Morgan gave Reilly). Significantly, trial court instructed the at the guilt phase of trial not to draw adverse inference of any guilt from Patterson, fact that neither (See nor Hardy Reilly testified. United States supra, 819 F.2d at p. 1506 trial court’s [citing admonishment this point support its conclusion harmless].) the error was Under these circum- stances, we find any error harmless.

Because we find it beyond certain a reasonable doubt that the jury would have convicted even defendants absent the error committed Griffin prosecutor any comments, error admitting Stone’s we also conclude that, considered together, error was any harmless. We also reject Hardy’s further contentions that the challenged remarks violated his right to a fair trial under the Sixth Amendment and the due clause of Four- process Amendment, teenth and his to a right reliable determination penalty under the Eighth Amendment.

9. Lying in Wait

a. Jury Instructions The jury was presented with two theories first degree (1) of murder: murder, and premeditated (2) deliberate and murder in perpetrated by lying wait. Prior to it deliberating, was instructed according to CALJIC No. 8.25

(4th ed.), which defines the of in concept wait.16 lying Both Hardy and Reilly contend this jury instruction was deficient because it did not also 16The instruction reads: “Murder immediately which is preceded by lying in wait is murder of degree. the first Tying The term in wait’ [J] is defined as a waiting watching and for an act, opportune together time to with a by design concealment ambush some or other secret take the person by other surprise. The lying in particular wait need not any continue for period

162 As a killing. find and deliberated they premeditated require jury result, right due the instruction denied them their process contend they (In (1970) Winship element the crime. re every have the determine of 368, 375, 358, 1068].) U.S. 364 L.Ed.2d 90 S.Ct. [25 thesis, 189. defendants on the of section rely wording of their support committed, section, in stated it time the crimes were That as read at the a “All means of destructive by murder which is part: perpetrated pertinent wait, torture, by any in kind other lying device or explosive, poison, of deliberate, first killing, murder of the willful, premeditated and ... is 1456-1457, 771, 3, added.) Defendants (Stats. ch. italics degree.” pp. § in lying reveals highlighted language that a construction of proper claim murder, not a as a “kind” or subset of deliberate premeditated wait as Thus, was committed killing for it. claim that the proof substitute they independently premed- in wait does not relieve the of People proving lying itation and deliberation. law, criminal

This has a noted adopted by authority been precise theory for proving premeditation who contends that wait is not a substitute lying ‘wilful, deliberation, of is as a illustration merely “employed specific but (3d Law (Perkins murder.” & Criminal Boyce, deliberate and premeditated’ however, court, this 1982) omitted.) interpreta- rejected ed. fn. This of proof “as the functional of equivalent tion and instead views wait lying (People and intent to kill.” deliberation Ruiz premeditation, Thus, 854], cited.) P.2d and cases Cal.3d proving of necessity separately pre- wait obviates showing lying deliberation, of indepen- meditation and “imposition requirement kill a matter dent deliberation or intent to would be proof premeditation, (Ibid.) legislative argu- consideration.” Defendants no present persuasive ment and we thus their first reject decided why incorrectly Ruiz argument.

Defendant CALJIC set forth Hardy accurately contends No. 8.25 fails he objects provides, the law. the instruction to which key portion of need time “lying provided wait not continue for any particular period that its of mind equivalent premedita- duration such as to show state added.) (Italics tion or the words Claiming “premeditation” deliberation.” Hardy and “deliberation” have different claims instruction meanings, should not have been in the phrased disjunctive. time its a provided equivalent premeditation

of that duration is such as to show state mind of added.) (Italics or deliberation. be, “To to the aforesaid by lying constitute murder means of in wait there must in addition defendant, bodily by upon conduct an killed of harm person intentional infliction a involving high degree it and which shows wanton probability of that will result in death disregard for human life.” Ruiz, This in in similarly supra, Cal.3d 589. As point rejected case, “We think it is could unlikely phrasing have misled .... addition,] in Legislature adopting lying-in-wait provision only [In that the mind which required defendant be shown to have exhibited a state of to,’ Thus, to, is and not identical or deliberation. ‘equivalent premeditation in disjunctive CALJIC No. 8.25 was neither phraseology inappropriate (Id. 615.) nor at misleading.” p. submits in

Hardy be reexamined on this we erred point, arguing Ruiz “the concluding a defendant need harbor an intent Legislature” required only Instead, which was the “equivalent” premeditation and deliberation. claims this Hardy notion originated with the drafters CALJIC instruc- states, tion he is now challenging. In “All notes that section 189 support, wait, murder which is by means . in . perpetrated of. . . . or lying any willful, kind of other deliberate and murder premeditated killing, ... of degree.” (Italics the first added.) it Although is true that it was not techni- “the cally Legislature” that directed a defendant need have only a mental deliberation, state that is (and identical) equivalent and premeditation Ruiz, courts have consistently (see section this manner interpreted cited) Cal.3d at and cases and the Legislature has not amended the statute to reflect its in the interim disagreement despite other circumstances, recent amendments to section 189. Under these we conclude the Legislature has acquiesced the above interpretation.

b. Sufficiency the Evidence Lying Wait of

Defendants contend CALJIC No. 8.25 should not have been given because there was insufficient evidence of in wait. lying Murder perpetrated by lying wait an requires intentional murder “committed under circum stances which (1) include (2) concealment of a substantial purpose, period of watching act, and waiting an time opportune (3) immediately thereafter, a surprise attack on an from unsuspecting victim position . advantage . . .” (People v. Morales 48 Cal.3d 557 [257 244].) 64 770 P.2d Defendants argue the facts this case fail demonstrate any period Instead, watching and waiting. they claim the evidence most reveals a plan to kill the victims at a prearranged time and it place, is not reasonably inferable from the evidence that they waited watched the victims before their fatal knife attack.

We disagree. evidence shows defendants drove to the Morgan home hours, in the early morning on a side parking street so as to avoid drawing The infer that chose reasonably they could jury attention to their activities. asleep. would it could the victims be this time of because be night expected gain Morgan silently The from Cliff key defendants used a obtained addition, access, rotated chain with cutters. cutting they door lock bolt Thus in the connection. cloaked porch light bulb in the to break light darkness, killed the victims. to the bedrooms and they hallway traversed the evidence, defendants con- reasonably conclude jury From this could from and surprise intention and struck a position cealed their murderous in a murder wait. by lying which are the hallmark of factors advantage, the victims showing actually sleeping on a that defendants watched Insisting in literal fashion. a reads the law too a attacking and waited moment before case, Ruiz, In that is illustrative. People Cal.3d in the were They and were found buried yard. defendant’s wife stepson in in head in Both were shot bedding. clothed bedclothes and wrapped that insuffi- appeal from defendant claimed on there was range. close of the sort waiting cient a secret or concealed watchful “indicating evidence claim, (Id. “From 615.) rejected noting, the statute.” We required by evidence, infer that defendant watched such could reasonably them." executing waited until were before sleeping helpless his victims (Ibid.; People v. McDermand Cal.App.3d see also lying killed while wait they slept; victims Cal.Rptr. 773] [defendant sustained].) are from the indistinguishable present and McDermand Ruiz reading case. there was sufficient evidence to support We therefore conclude there was substantial CALJIC No. 8.25 to the and further conclude jury, on to the extent it relied regard evidence to verdict this support jury’s first murder. theory degree this convict defendants of 10. Hitch/Trombetta time, At police arrested and booked on 1981.

Reilly May noticed what to be a bloodstain on left shoe. appeared explained a package the stain was caused animal from by dripped blood Mann, meat Lee he Police tested the shoes. purchased. confiscated and criminalist, human but was police found the stain was caused blood A, B, (i.e., O) unable to determine “the stain blood because type was not concentrated a result that could be enough give interpreted.” that, Mann testified at the motion to hearing Reilly’s suppress general, “frozen refrigerated blood would better if it sample be preserved would better had been yet.” refrigerated be When asked whether the shoes locker, the police (He Mann noted property my knowledge.” “Not replied, that the not yet shoes were frozen did probably department because unit.) have freezer

165 cross-examination, On Mann went on note that the between delay 26) 9) so (May testing (July long confiscation was not as preclude good successful and that “some of still be enzymes blood should typing, admitted, however, in a He that had been per- two-month tests period.” shoes, after deter- formed seized the likelihood of immediately police redirect examina- mining “might the blood have been increased.” On type tion, he have Mann that even with a could opined long delay, probably evidence, determined the stain was human After the trial hearing blood. court denied Reilly’s motion to evidence the bloodstain. suppress

Reilly contends his federal due violated when process rights were police failed to In adequately the blood on shoe. preserve sample People (1974) relies v. 12 support, largely Hitch Cal.3d 641 [117 9, Hitch, (hereafter 527 Cal.Rptr. Hitch), P.2d and its we progeny. 361] held the violate a criminal due if People right defendant’s to federal process fail to they evidence in their when there adequately preserve possession exists a “reasonable been possibility” evidence would have material and violation, favorable the defendant. To redress the constitutional the results 215, (1983) test could be (People excluded. v. Moore 34 Cal.3d 404, 223-224 419].) [193 666 P.2d Cal.Rptr. Hitch,

After we decided the United States Court addressed Supreme the same due issue and formulated process a different test. to our Contrary Hitch, relief, decision court high order to opined gain defendant must show the “evidence . . an value possessed] . exculpatory that was apparent before the evidence was and . . such destroyed, . [was] a nature that the defendant would be unable to obtain evidence comparable other reasonably (California available means.” v. Trombetta 467 479, 422, U.S. 489 L.Ed.2d Trombetta].) 104 S.Ct. [81 2528] [hereafter Trombetta supersedes (People Douglas (1990) Hitch 512- 50 Cal.3d 530 640]), 788 P.2d even applies to cases—like the present one—where the crime occurred to the enactment of prior the so- called Const., “Truth-in-Evidence” (Cal. our provision of state Constitution. I, see, Johnson, (d); art. subd. § e.g., 47 Cal.3d at applies case].) [Trombetta

Application of Trombetta to this defeats claim in Reilly’s case two First, ways. it is not clear that failure to from refrigerate sample May 26 (when it seized) (when to July tested) it resulted actually denigration of the quality of the blood so as to sample prevent blood-typing. Mann testified that he failed to obtain results because stain was not concentrated, “concentrated enough,” and that if it were sufficiently a blood could be type determined even two months later. The most Mann could say seized, was after the shoe immediately is had the been performed that test been increased.” “might a successful test have of getting the likelihood Thus, evi- added.) destroyed evidence (Italics negligently the that police thin.17 extremely dence was the integrity the if police negligently compromised

Even we assume shoe, is no evidence to or freeze the there failing refrigerate by bloodstain an exculpatory realized the “possess should have bloodstain police [ed] at (Trombetta, supra, 467 U.S. the destroyed. value” before bloodstain was to 422].) appeared police the it no doubt contrary, L.Ed.2d at To p. p. [81 that, evidence against if additional the bloodstain would anything, provide Reilly. might it refrigerated, that had the shoe been

Reilly disagrees, claiming claims, he This is important, been to determine the blood type. have possible B; was type type blood Náncy Morgan’s because his blood is O. type the There O blood found at type was O. was no Morgan’s type Mitchell scene, however, to that had he been able argues crime B. only type Reilly O, he was argued that the stain on his was could have type establish shoe outside, or, least, with consistent story at the crime he waited scene to argument fails some of statements. convoluted extrajudicial Reilly’s his O, the evidence that type consider that because Mitchell blood was Morgan’s case, In O exculpatory. any stain was would not have been type particularly the we as it is on the mere say Reilly’s theory, possibility cannot based blood, was O imbued the shoe with an type exculpatory stain bloodstained compro- storage allegedly value was before apparent police procedures We Trombettatest. satisfy mised the of the stain. He thus fails integrity conclude trial denied the blood- correctly suppress court motion stain evidence.18 determining type 17If the stain was or where the blood degraded point contaminated however, Reilly was still impossible, logical the most inference is that it occurred while night killings, possession deposited of the If we on the shoes. assume stain day we until arrest May may possession conclude was in of the shoes from that days dirt or bacteria four later. Mann testified at trial that contamination of bloodstain degraded obtaining type have are results. components responsible could which blood quite quality sample It thus of the possible environmental contaminants affected the police possession before took of the shoe. Trombetta, high supra, 467 U.S. recently 18The court modified the test set forth in 479. 333], Youngblood S.Ct. the court held 488 U.S. 51 L.Ed.2d [102

Arizona part “that unless a can failure police, criminal defendant show bad faith on (Id. preserve potentially process of useful evidence does not constitute a denial of due law.” Trombetta, 289].) at p. Reiilly’s L.Ed.2d at Because claim fails under defendant law, to consider which was more favorable to the defense current there is no need than Youngblood, supra, impact of case. this Severance 11. trial, three moved to (Reilly, Hardy, Morgan)

Prior to all defendants Cliff sever their trials from the Because the trial court was respective others. conflicting antagonistic concerned that three defendants would rely defenses, counsel, it held in camera wherein each defense hearings sepa- After informed the their defense rately, judge theory. trial expected trial, a but not the court initially granting Morgan separate a separate jury, held three single reversed itself and ruled a trial would be for all joint defendants.

Reilly contends the court its by denying trial abused discretion result, severance motion. As a he was to endure a trial claims forced which was unfair under state law and the federal Con fundamentally both below, stitution. weAs explain Reilly’s contention is meritless. 1098, that,

We with begin section which states more “When two or offense, defendants are jointly with whether charged any felony public misdemeanor, they must be tried unless the jointly, court order separate (Italics added.) trials.” Our a Legislature has thus “expressed preference 212, joint 83, trials.” (People Boyde (1988) v. 231 46 Cal.3d Cal.Rptr. [250 25], 758 P.2d Boyde (1990) affd. on other grounds sub nom. v. 494 California 316, U.S. 370 1190].) L.Ed.2d [108 S.Ct. trials are Separate permitted court, however, discretion the trial whether a trial court’s denial of a severance motion an constitutes abuse of that discretion is judged on facts as they appeared at the time the court ruled on the (People motion. v. Boyde, 232; supra, 302, at p. People (1984) v. Turner 37 Cal.3d 312 [208 196, Cal.Rptr. 669].) 690 P.2d

A trial court’s discretion to order guided trials is separate by principles first set down People 733, v. (1967) Massie 66 Cal.2d 899 Cal.Rptr. Thus, 428 P.2d “The court 869]. should the trial ‘in separate of codefendants confession, the face of an incriminating association with code prejudicial fendants, likely counts, confusion from resulting evidence on con multiple defenses, flicting or the at possibility that a trial a separate codefendant ” would give (Turner, 312, exonerating supra, testimony.’ 37 Cal.3d at p. Massie, quoting p. omitted.) at fns. considerations,

Of these Reilly relies on the that it solely fact that all anticipated three defendants would present antagonistic and conflict ing defenses. At the aforementioned in camera hearings, counsel for Reilly stated he would present the defense that Reilly withdrew from the conspir acy. Hardy’s counsel opined that argue he would that Hardy was not present scene, Reilly and that crime did participate conspiracy, that he counsel stated Morgan’s have committed the murders. must

Morgan killed the victims would and some unknown third argue person order to Morgan. blackmail committed “common having defendants with charged

Because were Keenan (People and victims” v. involving crimes common events 1081]), this was “classic 758 P.2d Cal.3d 500 [250 evidence the trial trial. there was some before joint Although case” for de- conflicting possibly that defendants would different and present court fenses, (Ibid.) unfair. necessarily under is not joint trial such conditions existence of have that the several California decisions stated “Although trials, has none conflicting may defenses severance codefendants’ compel (People this an or reversed a conviction on basis.“ abuse discretion found If added.) conflicting the fact of Cal.3d at italics Boyde, supra, trials, the it negate or defenses would separate alone antagonistic required be “would appear for trials and trials legislative joint separate preference 312-313.) (Turner, supra, in 37 Cal.3d at mandatory pp. almost case.” every Moreover, length discussed at it no California case has although appears defense,” have almost an the federal courts “antagonistic what constitutes Thus, de very “[antagonistic that doctrine uniformly narrowly. construed severance, or if are do even the defendants hostile per require fenses not se (4th Becker Cir. (United the States v. cast blame on each other.” attempt 50, 707, 703, S.Ct. 1978) cert. den. 439 U.S. L.Ed.2d 99 585 F.2d 1080 [59 defenses, “Rather, it 862].) ground conflicting severance on the obtain defenses prejudicial must be demonstrated that the conflict is so that [the] irreconcilable, alone are the will infer that this conflict jury and unjustifiably (1st 1980) (United that are v. Cir. 623 guilty.” demonstrates both States Davis 188, 194-195; also, (D.C.Cir. 1976) F.2d see United v. 546 States Ehrlichman 910, 604], F.2d cert. 429 U.S. 1120 L.Ed.2d A.L.R.Fed. den. [39 [51 “ 1155].) exists antagonism’ only 97 S.Ct. Stated another ‘mutual way, where the one will acquittal defense acceptance party’s preclude 281, 285, (United (7th 1979) 601 F.2d cert. Ziperstein other.” States Cir. 701]; den. 444 Wright, U.S. 1031 L.Ed.2d S.Ct. see generally, (2d 1982) Federal and pp. Practice Procedure: Criminal ed. 799-802 § & cited.) fn. and cases

Here, their although technically “conflicting” defenses were expected all three defendants denied and one or both culpability speculated the other defendants was their defenses were not responsible, particularly it as that term is For is “antagonistic,” used the federal courts. example, others perfectly Reilly involving consistent withdrew from a conspiracy but that not reliance on Morgan’s one of Hardy coconspirators. Reilly that he was in when and that City alibi Carson the murders occurred and an fatally contrary unknown third committed the crimes not person claim claims Reilly’s Morgan that he withdrew from the because conspiracy; if actually not have been he could know withdrew from present, not claims Morgan left before crimes were committed. conspiracy involvement; not to have known of were thus Hardy’s their defenses not antagonistic at all.

Moreover, defenses, there existed despite specter of also conflicting “realistic (Keenan, benefits from a trial.” 46 Cal.3d at consolidated defendants, 500.) The trial court ruled that the three as well as Debbie Mitchell, result, others, Colette were As Sportsman, coconspirators. their statements were whether respective against joint admissible others trials were separate held. evidence thus trial presented joint would largely (The mirror that trials. lone presented separate exception of the crime photographs Although against Hardy scene. admissible Reilly, this evidence was held against Morgan inadmissible Cliff because manner of killing was relevant guilt.) to his facts, of these light we conclude jury confusion was potential

low. Each presented defendant himself theory of case that absolved guilt and focussed blame the others. The with presented was thus straightforward choice regarding credibility various defendants.19 no Significantly, defendant and implicated confessed another defendant. (Massie, supra, 66 Cal.2d at p. 919 defendant’s confession [one implicated defendant; second failure to sever People trials ruled see v. prejudicial]; (1965) 353, Aranda 63 Cal.2d 518 265].) 407 P.2d Nor one did [47 defendant present a defense that necessarily implicated another defendant. (See People v. Wheeler 32 455 Cal.App.3d Cal.Rptr. 26] [one crime; defendant claimed second defendant forced him in participate to erroneous failure to sever harmless].) cases all the circum Considering case, stances of this we conclude the trial did not court abuse its discretion by denying Reilly’s severance motion.

Reilly’s alternate reliance on the federal Constitution is similarly In unavailing. he support, (5th cites Wainwright 1981) v. Cir. Panzavecchia Supreme 19Asthe Kentucky Court of opined: antagonistic defenses nor fact “[NJeither . amounts, itself, . . one defendant incriminates the by other to prejudice. unfair . . . That alleged different defendants to have been in the involved same transaction have conflicting it, non, versions of place, what took they participated the extent to in which vel is a reason for rather than against joint a trial. If one is it is to lying, easier the truth be determined if (Ware all are required together.” 1976) to be tried (Ky. v. Commonwealth 537 174, added], Dawson, S.W.2d 177 quoted [italics in Joint Trials in Criminal of Defendants Cases: Analysis An Prejudices (1979) 1423.) and L.Rev. Mich. of Efficiencies (5th 889.20 1980) 616 F.2d Both Wainwright F.2d Cir. Abbott a state court’s a corpus cases affirm issuance of writ of habeas because In in trial. resulted a unfair grant fundamentally failure to severance Panza- vecchia, involving joinder charges, 658 F2d a case supra, to learn joint jury from the fact that the trial enabled flowed prejudice in inadmissible a felony a conviction that would have been prior about Abbott, trial deemed F.2d was joint trial. separate exculpatory testimony would have joined given unfair because codefendant Thus, in in testify joint but invoked not to trial. separate right trial his cases, have trials presented separate both the evidence would been joint different than that trial. demonstrably presented contrast, case, admissible most of the evidence was By present The federal charge. all defendants as of the conspiracy three a result against his to due are we conclude rights cases cites thus Reilly distinguishable compro- fair Amendment were not and a trial under the Fourteenth process the trial denial his severance motion. mised court’s he irrelevant to much evidence which claims was Reilly disagrees, citing his fail to how the guilt jury’s but defense. We prejudicial perceive case. For example, of this irrelevant information undermined his receipt not have Hardy’s lifestyle evidence of character flaws and of could Morgan’s influenced defense that withdrew from unfairly reject Reilly’s Moreover, dealings evidence of business conspiracy. Morgan’s criminal details of the insurance relevant to policies probably prove relies, Morgan’s Other evidence on which such as conspiracy. Nancy made, medical and some statements she were too trivial be history hearsay Moreover, such evidence. objection there was no defense prejudicial. rights of his Finally, Reilly also contends several federal constitutional (i) number joint were violated because the nature of the trial reduced the of (ii) his peremptory challenges, rebutting his defense counsel from prevented codefendants, (iii) the of arguments counsel for counsel permitted Morgan’s trial, (iv) to comment on silence and the Reilly’s prosecutor’s at reinforced Thus, regarding 20The rule to our rule. severance trials in federal court similar state “It is within sound of judge the discretion the trial as to whether the defendants should be 84, 101, 109, together severally” (1954) (Opper tried v. United States 348 U.S. L.Ed. [99 95 14, 158, Crim.Proc., 1308]; U.S.C.), 75 S.Ct. 45 see rule 18 generally, A.L.R.2d Fed. Rules grant “a only and conviction will be if the court to relief was a reversed refusal trial Criminal, 227, clear abuse at (Wright, supra, of discretion.” Federal Practice and Procedure: § 854, severance, cited.) cases When a federal district denies criminal defendant court seeking appeal joinder sufficiently prejudicial reversal on must show that the initial (U.S. right outweighed economy. his to a fair trial v. paramount judicial the concern of 443, (9th 1987) 449.) Vaccaro Cir. 816 F.2d 171 the the theory conspiracy ongoing reliance on allegedly improper the time trial. We these of this parts opinion. of discuss issues other

We the did not the denying conclude that trial court abuse its discretion did motion to sever and the decision not violate regard court’s this Reilly’s under the federal rights Constitution.

12. Alleged Prosecutorial Misconduct witnesses, the of the During various questioning prosecution prosecutor affirmatively elicited them that could have used from facts been defense to their impeach testimony. prosecutor For had Colette example, Mitchell reveal on direct lied hearing examination that she at the preliminary Also, when she said she had night been with the entire crime. Hardy her, when Debbie could not told Sportsman something Reilly remember had her had refresh her prosecutor by referring recollection to transcript instances, her preliminary hearing testimony. Reilly these other claims the committed prosecutor by personally vouching misconduct for the 1235; credibility (See Sully, supra, witnesses. v. People 53 Cal.3d at p. 229, (1962) 569, 617, 58 Cal.2d 3 245-246 373 P.2d Cal.Rptr. Perez [23 946].) A.L.R.3d failed

Reilly object to the seek alleged misconduct or a curative circumstances, admonition. Under such he waived the issue for appeal. (Wharton, 566; 1, 53 People (1980) Cal.3d at p. v. Green 27 Cal.3d 34 1, 468].) 609 P.2d Cal.Rptr. [164 contends we should overlook his record, failure to object (1) because there was error” “plain face i.e., “highly prejudicial error rights” (United that affects substantial v. States (9th 1363, Lancellotti 1985) Cir. 1367), (2) 761 F.2d his counsel provided ineffective assistance by failing object (see People v. Ledesma 171, 404, 43 Cal.3d 839]; 215-216 P.2d Cal.Rptr. People [233 Jennings (1991) 53 Cal.3d 1009). P.2d Reilly’s Green, first claim is foreclosed by supra, 27 Cal.3d and its Moreover, case, progeny. the claim of ineffective counsel is baseless. In this the prosecutor never even an approached improper expression of per- Instead, sonal opinion as to the credibility of the various witnesses. merely pointed out inconsistencies testimony witnesses’ prevent defense from impeaching witnesses with the same information. This was clearly (See permissible. People v. Washington(1969) 71 Cal.2d 479].) 458 P.2d We conclude the issue was waived and that counsel was not deficient there because was no misconduct.

Defendants raise 32 instances of separate alleged prosecutorial misconduct that they claim We have require reversal. reviewed their claims in behavior. questionable

and find that the sometimes prosecutor engaged dis- leading questions and For he asked example, occasionally improper He also insinu- from such conduct. the trial court’s order to refrain obeyed evidence when question- times his interpretation ated at various own witnesses, that he to all the evidence ing that was not able suggesting present occasions, by claim- On he defense counsel subtly denigrated existed. some prosecutor truth. time the ing duty it was their obfuscate the Another in open Mitchell to ask a defense cross-examination of Colette interrupted Hardy thought ask Colette whether she court whether would be allowed to guilty. instances, moved for a In more of defendants of these one or the many The trial admonished repeatedly motions were denied but the court mistrial. strike, you time him: is twice. Third cautioning the one “This prosecutor, instance, in of order In when the out prosecutor spoke be out.” another may admitted, Lasting’s the trial court granted that certain documents be asking We Code section 352. to exclude the evidence to Evidence pursuant motion in agree attempting prove the overzealous prosecutor periodically guilt. defendants’ misconduct, however, by are not borne out

Most claims of prosecutorial assertion, Colette Mitchell the record. For to defendants’ example, contrary in a polygraph she had questioned way suggested undergone was not addition, the did misconduct in opposing test. the not commit prosecutor his of the case theory severance motion severance would make by claiming prosecutor, several claims impossible prove. Hardy presents counsel. of the three defense closing argument, questioned honesty record, however, more than an reveals that these amount to little statements witnesses. the inconsistencies of various exploration testimony instances, In other there was no to the claimed miscon- objection defense argue duct. For defendants committed misconduct example, prosecutor musical, when he played song from the “The Best Little Whorehouse Texas,” than being to illustrate his that defense counsel were less point was, however, There the recording, honest. no to the objection playing 34.) The waiving (Green, supra, thus at point for Cal.3d appeal. same be may said for criticism of a defense prosecutor’s expert for officers. prosecutor’s praise the work ethic of investigating police Most of the claims raised 29 additional misconduct prosecutorial brief fall this Hardy’s supplemental category.21 into reply We do here the of misconduct claims attempt catalog plethora defendants raise. them we conclude the Considering together, prosecutor supplemental argued argument, Hardy 21In brief and at oral counsel times, prosecutor Leahy committed Ron referring misconduct fact that various occasionally times of that pushed advocacy, crossing the limits many proper line, inflame the passions such as when he to improperly attempted whether knew that Mitchell jury by asking Debbie she repeatedly Sportsman Although would have old that the Morgan years day. prosecutor’s been restraint, nevertheless conclude performance any was a model we occurred the and was misconduct that could not have contributed to verdict thus harmless in of defendants’ light overwhelming guilt.22 evidence addition,

In or alleged none of misconduct is of such alone severity, can together, that we conclude it resulted an unfair trial in contravention of defendants’ law right process state and federal constitutional to due 431, v. (Donnelly (1974) 416 642-643 L.Ed.2d U.S. [40 DeChristoforo 1868]; 94 S.Ct. People Harris Cal.3d confrontation, counsel, 619]), 767 P.2d or their fair to right and impartial jury, self-representation. Alleged

13. Juror Misconduct

a. Juror’s ato Witness Gift Cliff During it Morgan’s light came to that one of the testimony, jurors, Bobbitt, Lipman, gave gift of some fruit cocktail to Detective one of investigating police officers and a Lasting, witness. trial prosecution Reilly’s counsel, moved to have with an Lipman replaced juror. alternate Counsel for Morgan (Stone) and Hardy (Demby) The joined motion. trial court one, stated it believed the act was an innocent prompted by Bobbitt’s attractiveness and not by intent on to any show Lipman’s part favoritism the prosecution. Jonas,

The motion, prosecutor, opposed noting gift that was done addition, open stated, court In right next Demby. Jonas “there was no conversation Lipman [between I’m Detective aware of.” Bobbitt] Later, said, “There have been no made. There been statements has no sought Mike Mitchell the advice of an attorney. prosecutor also mentioned that Mike Mitchell record, advised point one attorney. appears consult an It from however, the prosecutor merely reiterating testimony that was admitted without objection case, during the trial. any even argument’s if we assume for sake that comment United States v. McDonald improper (see (5th 1980) Cir [finding 620 F.2d 559 such error]), comment reversible properly preserved it was appeal, we fail perceive how such Hardy’s right comment comment affected to be on free the exercise of his Sixth rights Amendment comment prosecutorial since there was no exercise of his right to counsel. We reject thus the point 22Significantly, was instructed that “Statements made attorneys during the evidence,” trial are not and “You must never true any suggested by assume be insinuation a question asked a witness.”

174 conversation, this has jury the court that and I can indicate to personally or contacts with of its to or make comments gone things out discuss way I with that.” None of attorneys agree and think the defense would anybody The assertion. trial court attorneys the three defense contradicted Jonas’s motion, denied been a contact noting, personal “Had there eventually Bobbitt[,] The court with that would have been a different situation.” Miss of contact with of jury duty “any any later readmonished the its avoid defendants, in this matter.” or witnesses attorneys, misconduct

Reilly Lipman’s juror contends actions constituted Juror the trial court to conduct an requiring inquiry question Lipman. (47) (1990) People we held in v. 51 Hedgecock He is mistaken. As recently 803, 1260], defendant Cal.3d P.2d “when a criminal Cal.Rptr. 795 misconduct,[23] new the trial moves for a trial based on allegations determine the truth hearing court has discretion to conduct an evidentiary stress, however, is not entitled to allegations. We that the defendant Rather, held such as matter of a should be hearing hearing a a such right. court, discretion, evidentiary that an only when trial its concludes material, (Id. fact.” at is to resolve issues of hearing necessary disputed Also, 415.) a “should held when the defense has come p. hearing only be prejudicial with evidence a demonstrating strong possibility forward evidentiary hearing Even an showing, misconduct has occurred. such a upon will be evidence material generally unnecessary parties’ presents unless (Id. 419.) that can at at hearing.” p. conflict be resolved such a only Hedgecock, to the facts of this supra, Cal.3d Applying case reveals Because material factual is meritless. no Reilly’s position court, dispute was to the trial it did not abuse its discretion presented Moreover, hold the mere only declining hearing question Lipman. Detec speculation giving bias Lipman expressed pro-prosecution by tive this Bobbitt fruit cocktail informed defense contention. Because falls of the “strong required by short misconduct” possibility” “prejudicial Hedgecock, supra, find no of discretion. page we abuse accordingly Reilly contends he is entitled to the jury also reversal because misconduct raised a that was left unrebutted presumption prejudice by Miranda, (See, prosecution. 117.) 44 Cal.3d at We e.g., disagree. rebutted, alia, a reviewing be inter presumption prejudice may determination, record, court’s that there no upon examining the entire (Ibid.; that the substantial likelihood suffered actual harm. complaining party People Holloway Cal.3d 1108-1110 [269 trial, 23In motion for part a new relied in on the trial court’s failure replace Juror with Lipman an alternate. The motion denied. 1327].) Juror contact with Detec- Lipman’s 790 P.2d unauthorized Although tive his misconduct de minimis under the circum- Bobbitt was was improper, stances There even of this case. was no evidence that Lipman spoke astutely Bobbitt the As trial court or that fruit cocktail was from him. the discerned, any this would be different had there been evidence of a case Considering contact” between and Detective Bobbitt. the “personal Lipman misconduct, trivial nature the we of presumption of conclude the prejudice was rebutted on amply this record.

b. Newspaper Articles sworn, after the Shortly jurors and alternates were three articles newspaper were published referring to “cases and A Los Times jury Angeles selections.” assertedly article made the following comment: “For Robert example, Judge D. Fratianne entering is now the sixth week selection of for Van jury Nuys trial of three men accused of two ago. murders two Fratianne nearly years started with jurors. have been eliminated. The has judge personally questioned jurors, but the perhaps trial is a month Fratianne is away. convinced at least two or three weeks could be off if lengthy shaved trials the jury selection is process reformed. ‘But still have to take into you [][] trial,’ account the overall of due picture process and fair Fratianne ‘In said. defense, deference to the prosecution and the you give have to them chance ’’ to make sure the is jury composed of rational jurors.’ addition, In the jurors and were attorneys aware articles apparently of two in the appeared Los Angeles Daily News.24 Both articles present opinion of several commentators that court reform necessary, although neither article refers defendants’ trial or crime. Fra- Significantly, Judge tianne, trial, the judge over presiding defendants’ is the first article. quoted “ It reads: ‘Even with the problems number of of magnitude done,’ problems, run long justice said Robert D. Fratianne Judge of ‘And, Van Nuys Superior Court. that’s the problem. It would be better if justice were done the short run. But the are problems not insurmount- H[] able,’ addition, Fratianne said.” Judge Fratianne’s in the picture appears first article. The second article does not quote Judge Fratianne or refer to defendants’ trial.

The trial judge that he led explained to believe that his would remarks be not published Moreover, for six months. he stated without contradiction article, however, 24Unlike the Angeles Los Times these were articles not read into the record on appeal have, however, part otherwise made appellate record. Defendants provided this court photocopies with grant We articles. defendants’ motion to take judicial notice of these articles (h), under Evidence Code sections subdivision 459. trial, which present he did mention about anything reporters dire a voir of the judge was then then conducted pending. had either (and jurors) 10 of 12 all 6 the alternate jurors discovered that concerns jurors general heard of Three expressed read or had the articles. a mistrial was too Defense counsel moved for judicial system slow. cause, misconduct, and for jurors one for juror due to removal of criminal justice system dismissal due to alleged politicization All were denied. One attorney’s prospective the district office. the motions due to her (Katz) was then challenged peremptorily, apparently alternate read the article having question. to read newspaper

“It is well settled that it is misconduct for juror supra, 50 (People Holloway, accounts of a case on which he sitting.” is 1108.) well misconduct juror Cal.3d “It is settled such equally that no by proof raises a be rebutted presumption prejudice may case here. None of (Ibid.) Such the prejudice actually resulted.” trial, of defendants’ question the articles contained accounts newspaper most, presented else of a At the articles anything prejudicial nor nature. as whole. We criminal arguments concerning justice system the generalized arose, it was even if we assume conclude that a presumption prejudice find the of the rebutted the evidence. we actions amply Accordingly, Sixth, did the and Four Eighth, not violate defendants’ under jurors rights teenth Amendments to the federal Constitution. spoke

Because there is no evidence in the Fratianne Judge record case, claim that we must reporters similarly reject about defendants’ we the Conduct, (See reverse the for misconduct. Cal. Code Jud. judgment judicial cases, 3A(6) canon on but not [judges commenting from prohibited pending of the from the prohibited “explaining public procedures for information court”].) Jury

c. View the Crime Scene trial, the During prosecution moved to the view the crime scene. jury have the relevance of view was the home had been Morgan because disputed vacant two and the The trial never- years changed. conditions had court motion, theless the granted that the would be told how the scene noting jury had changed (Parsons, title that discovered intervening neighbor years. bodies, had testified that had been sanded already the front door addition, it prevent from ordered that there would sticking.) court be demonstrations; talking, no would testimony, jury or questions, physical merely silently premises gain understanding view a better circumstances of crime.

Defendants from the view jury three present arguments arising First, claim an alternate they juror reversal is because procedure. required violated trial order at the view. talking court’s that no allowed view, back side of the front During the an alternate asked to see the juror commented, “The sun door. The trial closed the door and the judge juror it,” must technically have or that effect. warped Although violating words to allowed, the court’s order that no would be the violation questions talking dewas minimis and no prejudice resulted. reasons,

For similar we defendants’ claim that trial court was reject matter; obligated to hold a decision not to hold a hearing the court’s well hearing (Hedgecock, supra, within its 51 Cal.3d at discretion. 415-416.) pp.

Second, object they defendants what characterize as an improper one “experiment.” juror Because was allowed to observe the back side of the door, closed, front as well as the door it was seeing opened agreed by defense all attorneys that the would jurors be do so. Defendants permitted that this the complain gave a false the fit the jury sense how well door however, doorjamb, potentially issue in had important jury, the case.25 and, heard already testimony that the door sanded since the killings, had been it knew clearly two full had the On the years passed examining since crime. record, entire we find no reasonable suffered actual probability defendants (Miranda, supra, prejudice 117), if Cal.3d at even we assume defend- p.

ants adequately preserved the issue appeal.

Third, the jury observed a the handprint on the wall and stain on carpet in the bedroom. Defendants argue that these stains were made with possibly blood and prejudicially inflamed passions jury. Because Detective testified, however, Jamieson later that the stain were handprint carpet murders,” not “a result of the crime scene at time of the we assume the Moreover, disregarded evidence. later jury was to see permitted actual photographs of victims in the It is extremely bedroom. thus unlikely that viewing handprint stain was carpet prejudicial.

14. Right to Presence

Reilly contends his right constitutional to be personally present at First, trial was violated and alleges three Reilly violations. was absent from 25Reilly speculated Morgan drove down City from Carson and committed the murders suggested himself. It was that the front door emitted opened, possibly stuck and a noise when enough loud to wake the victims. Reilly speculated Morgan thus have Nancy must known her killer she stayed because in the opened. bedroom door when the Second, February session voir dire on 1983. preliminary

a six-minute voir absent during preliminary from an 18-minute session Reilly again (Both processing dire 1983. sessions involved routine February on Third, excusáis.) he two of conferences during days was absent hardship guilt Reilly while counsel and trial discussed instructions. judge phase 977) did (see purport did not execute a written of his but presence waiver § 16,1983. February waive his for the afternoon of orally right present to be additional We have addressed several times recent years this issue absences, how he explain For his fails to explication unnecessary. his presentation failure observe prejudiced personally (1990) 51 excuses. We v. Medina (People no hardship perceive prejudice.26 1282.) Although Reilly Cal.3d 902-903 799 P.2d right executed a waiver of strenuously argues validly never written (Ibid.) find even a waiver. As may be we error harmless without present, any claim, had and thus no to the third the conference involved issues legal only (Wharton, supra, 53 impact Reilly’s ability against charges. to defend 602.) Cal.3d Alleged

15. Discovery Violations

Defendants reversal is because the required prosecu next contend three with a order to discovery tion failed on occasions to comply standing material, addition, claim they evidence. produce potentially exculpatory, the failure to with the order violated their constitutional comply discovery Fifth, Sixth, Amendments to the under the and Fourteenth rights Eighth, Defendants, however, federal have the of demonstrating Constitution. burden (People with the v. Sewell noncompliance discovery order prejudicial. 1231].) 574 20 Cal.3d 646 P.2d Cal.Rptr. [143 instance, taken the first cited reveal it had the failed to prosecution The book of an from a club. possession appointment book racquetball nine for a although indicated that Marc Costello had a o’clock reservation murders, did This evidence night court the he not show racquetball up. could have been used to alibi he his girlfriend, Costello’s and impeach Purvis, Nancy the of the murders. played racquetball night motion, The trial denied marked Reilly’s court both and mistrial Hardy’s evidence, the book and said it counsel to appointment as would permit counsel, 26Reilly required also raises the claim that reversal his defense related because a Lasting, Although was absent from this the characterized as denial proceeding. brief claim is standard, Reilly’s right requiring application constitutional se reversal per to counsel of a the claim is more akin to one there was no of ineffective assistance of counsel because state Instead, preventing Lasting’s action in absent. appearance. apparently he chose to be Under circumstances, even we Lasting provided representation by absenting if assume deficient proceeding, himself from the prejudice we find no resulted.

179 (See People Reyes reopen cross-examination Costello Purvis. addition, 225].) In (1974) P.2d Cal.3d conduct, the court ruled although with the clearly displeased prosecutor’s the ap- that the did withhold evidence of intentionally prosecutor book, evidence showed crime oc- pointment expert that because a.m„ curred 1 and Costello played between 5:30 whether question (or 10) at even racquetball agree. o’clock was not relevant. We particularly evidence, Because defendants were given an to address opportunity event, which was not we find the failure to particularly probative any with the comply (Sewell, supra, order was harmless. 20 Cal.3d discovery 646.) instance, In the second about Joe prosecutor questioned Dempsey regarding argument information had an between alleged Hardy Black man over use of in the counsel gun murders. Defense planned objected, this claiming information had not been disclosed. The previously information, however, had been for the first time to the disclosed prosecutor just minutes Although before. then should have disclosed prosecutor stand, information to defense calling counsel before to the defense Dempsey called, objections avoided any prejudice. By the time defend- Dempsey motion, ants had their The discovery. trial court denied a mistrial properly and no prejudice resulted from this technical the continuing violation of discovery order.

Finally, defendants complain the should have revealed the prosecution contents of some notes Detective Jamieson used to refresh his recollection when The testifying. prosecutor objected, notes were his work claiming detective, however, product. that he had replied the notes prepared himself at the prior testifying preliminary Reilly’s examination. motions denied, for mistrial and to recuse were as was the prosecutor prosecu- tor’s motion to admit the document as evidence.

Defendants claim the notes would have “that the shown witness’s memory of certain key events have may been altered or the by influenced prosecutor.” testified, however, Detective Jamieson that the notes prepared himself. circumstances, Under these we assume the aware that the detective jury was was referring to his notes. Counsel was thus free use that fact in closing to argument in short, an attempt diminish Jamieson’s even if credibility. order, there awas violation of the discovery the harmless. misstep was 16. Shackling ante,

As discussed at the page moved the prosecution permit jury to view the crime scene. Both if the defendants stated that motion was right viewing. exercise their attend the personally would

granted, they trial, ruled been the court Although during neither defendant had shackled the crime scene. Both jury be handcuffed the view of they during would In the unnecessary. and claimed was Lasting objected shackling and Demby in, alternative, or could be called either additional sheriffs Lasting suggested the could handcuffed but that shackles Reilly during transport, should be car from removed travel separate be on arrival. Demby suggested Hardy be lieu could made jurors. Stone suggested videotape premises if he The free of restraints jury Reilly view. court stated could remain crime inside the sheriff’s van while travelled scene but remained The took the viewed the scene. these alternatives. court jury rejected Counsel matter under submission. view, ruled jury

The trial for a granted People’s court later motion The during viewing. would handcuffed in front of his Reilly body be court, the had restrained in court commented that not been although Reilly date, a later the court danger greater would be at the crime scene. At flight in front. behind instead of apparently Reilly body ordered handcuffed at the There was on this decision. defendants hearing appeared no latter Both view in shackles. jury process rights.

Defendants their due argue shackling violated Medina, (see disagree. We no violence Although history had Reilly 897), Cal.3d in concluding the trial did not its discretion court abuse Moreover, the danger of outside the courtroom. flight escape greater there is no drastic indication the court failed to consider less alternatives. (Ibid.) and Stone and the trial court took Lasting suggested options matter under submission. We thus assume the trial court considered can matter before ruling.

We also the claim that the decision to handcuff back rather reject than front violated his due de minimis right process. change and, if worked to benefit the restraints less anything, Reilly’s rendering Indeed, noticeable to the jury. judge the trial commented the restraints were so innocuous that “it like did not have looked [the defendants] on.” we on the Finally, defendants’ based reject argument, [hand]cuffs Amendment, Eighth that their view crime shackling during scene resulted in an unfair trial. inherently penalty phase Jail Cell Search

17. trial, Reilly, granted cocounsel status at some moved to dismiss because legal in his cell had papers jail been viewed a lockdown by during officials motion, states he and search. In a accompanying Reilly declaration return, he and others were their for On his forced to vacate cells 50 minutes. his his legal by jail found strewn about cell. He claimed this action papers authorities his due and “self- right process, violated equal protection, representation.”

The trial judge Reilly informed that he had with someone spoken my sheriff’s the matter “would take department Reilly, you about and asked he word for what me?” “Sure.” The then related Reilly judge told replied, there an was that the sheriffs were for a emergency, looking suspect (who module) had since been and that was found a placed discipline reason the lockdown. The then asked “Were of judge Reilly, any your cell, taken out of the removed?” he unsure. private papers said was Reilly At point, this Lasting testify asked have witness to make record documenting the circumstances the lockdown. The judge replied, “Just moment. your This is Mr. He Reilly’s motion. It motion. ... has accepted my statement officer here with the at the [sergeant checked jail].” The then denied judge the motion. now he argues was of his under the federal deprived rights

Sixth and Fourteenth Amendments the warrantless search his cell. jail shows, however, As the evidence the search of cell his was made for reasons of institutional security, concern that right an inmate’s outweighs (Hudson 393, privacy. v. Palmer 468 U.S. 517 L.Ed.2d 104 S.Ct. [82 3194]; People Burgener (1986) Cal.3d [224 1251].) P.2d Reilly admitted he did not know if any were papers missing. there Significantly, was no evidence the search instigated by the prosecutor, or otherwise designed (See the prosecution’s enhance case. United States (2nd v. Cohen 1986) Cir. 796 F.2d cert. den. 479 U.S. 854 L.Ed.2d 107 S.Ct. [pretrial detainee raise Fourth Amend may 189] ment objection to jail search instigated by Under prosecutor].) these circum stances, we find no constitutional violation.27

18. Alleged Improper Admission Evidence

Defendants contend their trial was marred admis by the erroneous First, sion of certain evidence. they contend evidence their showing bad character, such as their drug use dissolute lifestyle, inadmissible Second, character evidence. they contend uncharged evidence of acts bad 27Although Reilly argues precluded the trial making adequate court him from an record to claim, above, support as noted defendant—acting capacity in his as cocounsel—indicated accept would the trial court’s statement of purpose jail lockdown search. Third, trial erroneously court they argue admitted. erroneously including Morgan’s on variety topics, Nancy

admitted evidence hearsay defendants Cliff extramarital affairs. Finally, over unhappiness Morgan’s and assert light, to evidence the victims a sympathetic point portraying Defendants evidence character evidence. good that constituted improper of evidence that direct our attention to of allegedly pieces dozens improper were admitted at trial. however, issues,

We need these the record reveals not resolve because neither of defense at trial of the evidence objected any the three attorneys 353, Code, (Evid. The issues thus waived appeal. now are for challenged. § Moreover, (a).) even were subd. if we assume the issues preserved review, it little of evidence appears very prejudicial appellate reject evidence we defendants’ light Accordingly, strong guilt. Sixth, Fifth, and rights claim tiie trial court their under violated Because was no Fourteenth Amendments to the federal Constitution. there we their the trial should have excluded objection, reject also claim comt 352. the same challenged evidence to Evidence Code section For pursuant reason, we misconduct suggestion their committed reject prosecutor (Wharton, supra, 53 Cal.3d eliciting evidence defendants now challenge. 566.) at p. Alleged

19. Instructional Errors trial. Defendants contend numerous instructional errors occurred at Intoxication, a. and Capacity, Voluntary Instructions Diminished Lesser Included Offenses instruct, failed erroneously

Defendants contend the trial court degree sua on the lesser included offenses second murder sponte, as voluntary well as the defenses of diminished manslaughter, capacity at trial voluntary they point intoxication.28 to evidence adduced support, indicating both drank beer cocaine the Hardy night and snorted funnel- murders. used a “beer described as a (They apparently bong,” device type which enables the user to beer down his throat and pour directly stomach.) into his Even if we assume was sufficient evidence there instructions, such we support the contention because record reveals reject defendants’ trial made a decision these attorneys forgo each tactical Legislature 28The crimes in this case of dimin occurred before the abolished defense 404, 22, Code, (See capacity [rewriting ished state. p. in this Stats. ch. Pen. § § Code, intoxication]; 404, §4, regarding voluntary [enacting ch. Pen. Stats. defect].) abolishing capacity diminished mental based on disease §

183 defense on which instructions because were inconsistent with the they defendants relied.29 trial, trial counsel met in chambers with the

During judge During to discuss for the jury guilt phase.30 instructions discussions, these neither instructions on Lasting Demby requested nor intoxication, either diminished on the forms capacity voluntary or or lesser murder, (second criminal homicide of degree voluntary manslaughter) could result the jury should the be convinced defendants acted without requisite attorneys criminal intent because of their intoxication. Both con ceded that the defenses of diminished intoxication voluntary capacity were inconsistent with the their clients relied. defenses which they 29Defendants both claimed did not participate Reilly alleged in the murders: withdrew conspiracy, Hardy from the the proffered general while denial. Under circum stances, only possible way jury they guilty killing were an could find unlawful other degree than first murder was voluntary to find either diminished or intoxication capacity negated the formation of Consequently, question malice. whether the trial court should have instructed on these together question defenses is treated with the whether it should have instructed on lesser included forms homicide. proceedings 30These meeting were not recorded but the was reconstructed and described in 7, a settled part appeal by May statement made of the record on order of court on this 1990. argue Defendants the settled improper regarding statement is its Last because conclusions ing’s Demby’s thoughts strategy beyond purview May trial were of our 7th order. Moreover, they claim counsel’s strategy is not included in a statement under properly settled 36(b), rule California Rules of Although Court. opposed defendants settlement of record below, prior hearing to the they did not seek to correct record in this court after the trial Rules, Court, (See Therefore, court filed its 12(b).) statement here. Cal. rule settled statement is now properly part (1988) of the appellate (People record. v. Cal.3d Williams 44 883, 336, Cal.Rptr. 395].) 921-922 addition, 751 P.2d [245 incorrect, inaccurate, argue defendants the settled supported by statement is evidence, (and substantial and generally process) unfair violative due because memo parties ries of the involved had They faded with time. contend be also the record cannot settled because the parties disagree over what We reject judge occurred. these claims. The trial appointed to settle the record impossible produce could have concluded it was a settled 580, statement but did 584-585, not choose option. (People (1982) 32 Cal.3d Gzikowski record, 2 Cal.Rptr. fn. 1145].) 651 By choosing [186 P.2d to settle the the court necessarily possible it concluded was proceeding. to reconstruct the A court has “broad discretion accept reject representations counsel’s in its assessment of their credibility” and settlement of primarily question the record “is of fact to be resolved (People trial court.” (1991) v. Beardslee Cal.Rptr. 53 Cal.3d 806 P.2d [279 1311.) being There showing (Pollard no judge the trial acted arbitrarily v. Saxe & YollesDev. (1974) 374, 376, Co. 12 Cal.3d 88]), fn. 1 Cal.Rptr. [115 525 P.2d the trial court’s ruling Although is final. disagree defendants In Armstrong and cite re Cal.App.3d support, is distinguishable 902] case in Armstrong because the entire trial was unreported. We reject also the claim that provided trial counsel constitutionally representation deficient because he allegedly could not accurately remember the details in-chambers conference question. statement, conference, settled this according At same in-chambers be to the given should thinking “Mr. about what instructions Lasting with his theory be in accordance he wanted the instructed jury, [and] way effective Mr. did not think it would be the most Lasting of the case. tactical He made a the case to inconsistent defenses to the argue jury. argue (Italics added.) the in-chambers Finally, “During this respect.” decision in instructions, between agreed Judge on it was guilt phase jury discussions Fratianne, would be Mr. and Mr. that no instructions Lasting Demby jury voluntary on intoxication.” capacity diminished given [or] included “The trial instruct on lesser sponte duty court has a sua as to whether all when the evidence raises a question offenses there is evidence elements of the offense were and charged present (Cooper, supra, lesser 53 would a conviction of such a offense.” justify instruction, however, 827.) at A trial need not deliver the Cal.3d court to the objecting where defendant a deliberate tactical expresses purpose 115, (1990) 182-183 (Ibid.; People Gallego Cal.3d [276 instruction. 52 679, such a 169].) 802 The record shows Cal.Rptr. clearly P.2d did indicated that he not waiver as to whose counsel Reilly, unequivocally intoxication because voluntary want instructions on diminished capacity in the guilt defenses defense Reilly’s those were inconsistent proffered .with phase. to the

Reilly argues merely Lasting acquiesced the settled statement shows instructions, actually omission of the additional but does not show to them. Such a would elevate form over sub- objected requirement rigid record, read, the issue fairly Lasting stance. The reveals that debated offenses, explain- decided he did not want the instructions on lesser included People the tactical reason for his As stated v. Avalos ing position. we 549, (1984) 37 Cal.3d 229 P.2d “Here defense Cal.Rptr. 121]: [207 to the objection counsel’s actions taken as a . . that his lack of whole . show Con- instruction was than mere proposed acquiescence.” more unconsidered where trary Reilly’s silently accepted this is a case counsel argument, the decision to omit the instruction. the evidence of to the instructions

Although Demby’s objecting purpose is less we conclusion with straightforward, nevertheless reach same regard Hardy. settled statement reveals that the conference chambers, Judge Fratianne and that “no instructions Demby agreed be would given capacity voluntary diminished intoxication.” Because [or] the pros and cons of whether to had been give disputed just instructions Fratianne, discussed all thoroughly parties (Judge Demby, present we conclude to the omission of particularly Lasting), Demby’s acquiescence assessment of Lasting’s the instructions indicated with tactical agreement circumstances, that Demby’s the situation. Under the we are confident tactical reasons agreement omission of the instructions was “for (People not out of Cal.3d ignorance or mistake.” v. Wickersham 311].) 650 P.2d [185 Beck objections, Defendants also counsels’ v. Alabama argue despite (1980) 447 U.S. 625 L.Ed.2d 100 S.Ct. nevertheless required 2382] the trial is distin- give court to lesser included offense instructions. Beck however, prohibited guishable, because it involved an Alabama statute Moreover, lesser included offense capital instructions cases. Beck does a criminal prohibit forgo defendant from such instructions for choosing reasons, (U.S. as strategic Lopez (1st 1987) was the case v. Cir. here. Andino 1164, 1171, 605, 831 F.2d cert. den. 486 U.S. 1034 108 S.Ct. L.Ed.2d [100 2018]; 4, (1st v. 1984) 9.) Look Amaral Cir. 725 F.2d

Although did not Reilly right waive his to the on personally instructions offenses, lesser included such a (Cooper, waiver was not personal required. supra, 53 827.) Cal.3d at Cooper did not p. Reilly argues address the “in the question capital-case Cooper, context as a matter of federal law.” however, was a capital case. record, deliberate,

On this we conclude both Reilly Hardy expressed a tactical decision to forgo jury instructions diminished capacity result, voluntary intoxication. As a waived their they right have trial addition, court deliver such instructions to the In jury. because only way the jury could convict of degree defendants second murder or voluntary manslaughter was to find their negated intoxication the formation of either malice, express or an premeditation, awareness that their acts involved a high degree result, of probability that death we find would also the trial court correctly declined to instruct the jury as to these find Finally, crimes. we no Fifth, Sixth, violation defendants’ constitutional rights under the Eighth, and Fourteenth Amendments to the federal Constitution. 3.00,

b. CAUIC Nos. 3.01 To enable it to understand aiding and liability, the abetting jury was instructed with former CALJIC Nos. 3.00 and We have 3.01. held these because, instructions are defective although inform a they jury an aider and abetter must act with knowledge intent, of the perpetrator’s instructions fail to require jury determine whether the aider himself also harbored the “intent purpose or of committing, or encouraging, the com facilitating mission of (People the offense.” v. Beeman 35 Cal.3d 561 [199 1318], added.) argument, Reilly’s italics Contrary P.2d

Cal.Rptr. reversal; instead, however, we must require automatically the error does not a reasonable doubt. beyond was harmless misstep determine whether the 1]; 753 P.2d see (People Dyer (1988) 45 Cal.3d v. [246 710- L.Ed.2d at Chapman California, pp. 386 U.S. 711].) beyond

The flawed instructions were harmless clearly record reveals the murder, of first convicting Reilly degree doubt. addition to reasonable was expressly him to commit murder. It jury conspiracy convicted find “entered into to find a it must conspiracy, instructed that order intent to . . . specific with more with the agreement persons one] [an (Italics added.) was later unequivocally offense.” public commit as alleged goal conspiracy public instructed that one offenses murder, the jury to commit convicting Reilly conspiracy was murder. By to commit specific he entertained the intent thus concluded that necessarily murder. crime, Reilly

This with of which reveal that is consistent the facts the crime, accompanied partner- the solicited Hardy’s participation, planned home, in the actually Hardy slaying, in-crime to and either assisted Morgan’s The murders. jury waited while committed the actual Hardy outside alone which it was rejected Reilly’s spe- thus defense—on necessarily proffered before Reilly conspiracy instructed—that withdrew from cifically scenario, then, must were killed. either it clear that victims Under is Beeman error have intended to kill we conclude the Accordingly, the victims. 64.) (Dyer, supra, 45 at p. was harmless a reasonable doubt. Cal.3d beyond c. CALJIC No. 2.27 that, which was instructed pertinent part “Testimony (See believe one witness sufficient fact.”

you given by any is of proof instructed, 2.27.) CALJIC No. It also “A defendant cannot be found an unless guilty testimony testimony based of such upon accomplice defendant corroborated other evidence which tends connect such with 3.11.) (CALJIC of the offense.” No. Defendants contend commission two reversal. inconsistency requires between these instructions We this years. (E.g., have addressed issue a number times recent 507-508; Douglas, supra, (1989) Andrews 49 People Cal.3d at v. pp. 200, cited; 583, 285], Cal.3d 216-217 776 P.2d and cases Cal.Rptr. [260 (1988) People v. 762 P.2d Cal.Rptr. Moore 47 Cal.3d 86-89 [252 1218].) inconsistency, the two raise a technical we Although instructions the error harmless after as considering have found the instructions invariably whole, juror a reasonable CALJIC No. reasoning recognize would 2.27 rule and the general accomplice testimony sets forth instruction on 508.) (Douglas, supra, sets forth an to it. Cal.3d at exception p.

We reach the forth same conclusion here. In addition to the instructions set above, the court seven named were accom- also instructed: that witnesses 3.16), as (CALJIC a matter of law others could be plices adjudged No. with accomplices, that evidence of corroboration must connect the defendant (CALJIC 3.12), crime commission No. that corroboration could (CALJIC from 3.13), come other No. and that the accomplices testimony Thus, (CALJIC 3.18). should be viewed No. accomplices with distrust “The emphasis on the need with placed for corroboration the caution which the jury should consider accomplice testimony demonstrates amply that the jury was how adequately testimony instructed on to evaluate [the (Moore, 87; the various accomplices].” People see 47 Cal.3d also 39 Cal.3d 705 P.2d Chavez 372] [also finding this factor important].) addition,

In the prosecutor mentioned the need for corroboration several times in (Moore, 87-88.) his closing argument. supra, 47 Cal.3d at For pp. example, prosecutor argued a Cliff M-l gun Morgan’s (presumably rifle, carbine which received from Hardy served to corroborate the Reilly) addition, testimony of some accomplices. pointed “property” (pre- sumably Morgan’s coin collection and the ring) diamond corroborated Marc Costello’s the testimony regarding first unsuccessful hire to attempt hit man through Costello’s alleged Mafia connection.

Defendants disagree and claim the informed the prosecutor jury closing argument that the admission of a coconspirator that a conspiracy existed was alone true, sufficient to show a existed. While that conspiracy is the prose- cutor limited that comment to the of proving existence of conspiracy, contrast, which there was ample evidence. By the on prosecutor numerous occasions argued that the testimony of various accomplices adequately whole, corroborated. the Viewing argument as a a reasonable would juror have understood that accomplice testimony corroboration. required

Hardy contends we should discount the prosecutor’s argument because at points several the prosecutor improperly urged the find an jury to accom- plice’s testimony was corroborated the by of testimony another accomplice. mistaken; He is the prosecutor was the merely highlighting fact that on several important points, same, the of several the testimony accomplices was underscoring his argument that—if corroboration was found—their proper

188 with witnesses. other enhanced because it consistent credibility was circumstances, find error was harmless. any Under these we No. d. CALJIC 6.11 6.11, which CALJIC No.

The was instructed pursuant unintended acts by for the is liable conspirator vicariously explains object conspiracy, if acts are in furtherance of the such coconspirators object conspira are and natural consequence or the reasonable liability extended his this instruction cy.31 Reilly improperly contends unaware, as as acts that he had well acts of which was by coconspirators Mitchell’s He identifies two such actions: Colette not authorized. personally examination, instructions Hardy’s his and defendant at perjury preliminary brother, M-l Hardy, dispose to have his John retrieve Colette rifle him. carbine that Reilly gave of conspiracy. law instruction states the correctly long-settled challenged 285, Cal.Rptr. 299 eople (1985) Garewal 173

(P Cal.App.3d [218 v. 690]; (2d 1988) 1 & Law ed. Witkin Cal. Criminal Epstein, see also Crime, 202.) regarding we p. explained Elements of As § (1985) in People Croy v. aiding abetting liability situation of analogous whose liability 1 “a defendant Cal.3d P.2d Cal.Rptr. [221 392]: [710 as aider need not have intended on status an and abettor predicated by or committed particular ultimately facilitate offense encourage intended, and that an which is criminal was knowledge His act perpetrator. facilitated, are his action taken with the intent that the act encouraged be him foreseeable offense liability sufficient to impose any reasonably encourage as a It is the intent by committed consequence perpetrator. criminal, is an specific intent that bring about conduct that is (Id. target offense, jury.” element which . . . must be found added; People fn. italics Luparello Cal.App.3d see case].) Croy in a [quoting conspiracy 832] People cites two in neither case In Reilly cases but is support persuasive. Garewal, v. supra, 173 the trial court instructed the Cal.App.3d jury with No. CALJIC 6.11 but embellished the instruction to pattern permit provides: 31CALJIC No. a liable each conspiracy 6.11 “Each member of criminal is for act every conspiracy and bound each of of the if said act or declaration other member said object conspirator declaration is in of the act of one conspiracy, furtherance of the The ft] common design pursuant conspiracy to or of of the is the act of in furtherance the all conspirators. conspirator a Every legally responsible conspirator for an act of that follows though probable consequences object conspiracy as one of the natural of the even the of present part original though it was intended as a the he was not at the plan of even time of the commission of such act.” a in even if the liability acts furtherance of the coconspirator’s conspiracy (173 act was as “actually forbidden of the part original agreement.” omitted.) at italics court held that this Cal.App.3d p. Garewal reversed, addition was an “how asking, incorrect statement of the law and can one as a of anticipate ‘probable object and natural consequence[] the an act which was as of conspiracy’ ‘actually forbidden part agree- Worse, ment’? addition a mild extends form relatively [the instruction] of vicarious liability, one which is at limited by least the reasonable contem- , plation of defendant . . . to acts which not contem- are specifically much plated, (Id. 299-300.) less intended.” at Because the addition to the pp. case, in instruction Garewal was not given present Garewal is inapposite. also relies People Terry (1970) 2 Cal.3d 362 961],

466 P.2d but that case is Terry, similarly inapposite. defendant claimed the trial court erred by refusing give instruction that proposed provided coconspirator is not for an responsible act “which is neither furtherance of the of object the. . nor . . the natural and conspiracy probable consequence of an (Id. to attain attempt object. 18.) . . fn. .” We found the instruction stated the law correctly but affirmed trial it, court’s refusal give there reasoning were insufficient facts to support obvious, the instruction. As is Terry does not aid cause because he is Reilly’s about complaining acts by of which he coconspirators un- allegedly aware, although the acts clearly were the conspiracy. We of furtherance conclude the trial court correctly instructed the jury regarding vicarious liability of conspirators.

Thus, so long (1) as Reilly intended his coconspirators act achieve the of object conspiracy, such acts were “the natural and probable consequences act any to further the co-conspirator object (CALJIC conspiracy” 6.11), No. it is that he irrelevant was unaware of particular some act they committed in furtherance the conspiracy. Because the object fraud, of the conspiracy, insurance had not been it accomplished, was probable that coconspirators would act to conceal order plot the criminal goal could be achieved. We thus conclude the trial court correctly instructed the with CALJIC No. 6.11.

e. CALJIC No. 2.11.5 that,

The jury was instructed “There been has evidence in this case indicating a person other than a defendant or may have been involved in the crime for which the defendants are on trial. You must not [][] discuss or give any consideration as to why the other person is not being

190 he will prosecuted.” in this or whether has been or be trial prosecuted this instruction (CALJIC 2.11.5.) correctly giving Defendants that argue No. the considering from jury could have the prevented was error because it (1989) (People v. Carrera the various had to lie. coconspirators incentive cited; 121], and cases Use 777 P.2d Cal.3d 312-313 is to be (4th rev.) ed. instruction not Note CALJIC No. 2.11.5 [“This to or the prosecution if the a witness for either the person used other is defense”].) however, Carrera, “The such a potential

As in 49 Cal.3d 313.) The (Id. jury minimal.” was . . . misunderstanding appears it was instructed to to consider the instructions as whole and instructed interest, bias, motive” or or other consider existence nonexistence “[t]he 2.20.) No. (CALJIC jury when the of a witness. evaluating credibility (CALJIC with distrust No. accomplice testimony was also instructed to view 3.11.) 3.18) (CALJIC No. must and that such be corroborated. testimony in where closing argument passage prosecutor’s Defendants to point or motive not bias allegedly suggests possible should consider jury but, contradictory is confusing of the various witnesses.32The statement context, read in to that while trying say prosecutor apparently (i.e., in the their role should “the involvement of these jury people” consider will not these coconspirators it should not consider whether or conspiracy), case, solitary, In conclude this be later we cannot prosecuted. any themselves statement, closing argument, lengthy embedded within ambiguous the jury to the direct to jury cautioning sufficient undermine instructions with testimony consider the of the witnesses to view accomplice bias distrust. the jury’s

To the extent defendants CALJIC No. 2.11.5 prevented claim immunity, consideration the fact certain were we granted witnesses note himself mentioned fact. prosecutor

Moreover, defense counsel invited the consider Lasting expressly of bias or motive when of witnesses. possibility evaluating credibility For argument, Lasting argued at one example, point closing in mind that he evaluating “you keep Marc Costello’s have to testimony, case, does avoiding have some bias and interest this and that is his own trustworthiness, prosecution.” describing Lasting Colette Mitchell’s also going give regard you 32“And the an should or you court’s instruction with whether they your judgment against seeing should not utilize if police attorney or the district made a correct you determination. What I’m is that the instruction said are saying consider the involvement other or 25 You are consider people. people responsibility involvement of these their matter.” legally what in this said, get “She has made wanted to rid conflicting numerous statements. She short, it although She wanted herself.” pressure. protect police 2.11.5, to instruct with CALJIC No. we conclude error was error harmless.

20. Additional Closing Argument Stone, trial, defense Cliff wit-

During Morgan, counsel for questioned in a closing nesses manner Marc Costello was the killer. At suggesting however, argument, argued Stone that defendants were the killers. Defend- ants to the as argued prosecutor trial court that Stone acted a second and that lacked notice he intended to When their they accuse them. motion for denied, mistrial was defendants trial court correct certain requested misstatements Stone closing made The argument. request was appar- ently denied.

Defendants now contend that moved for additional they closing argument correct perceived factual errors Stone made in his closing argument, that the trial court’s denial of such violated their motion record, however, constitutional right to a fair trial. fails to either reveal Indeed, Lasting or Demby made such a Lasting motion. the record suggests believed had no such right. reject We thus the claim.

Special Circumstance Issues Lying-in-wait

21. Special Circumstance Defendants assert the jury’s decision sustaining the lying-in-wait special- 190.2, circumstance allegation (§ (a)(15)) subd. is flawed because of instruc- tional error and because there were insufficient facts to support finding. These ante, claims are identical to those we have at rejected 161-164. pages stated, For the reasons there we reject also arguments. present Defendants also claim the lying-in-wait special circumstance “fails to notice, provide guidance any principled identify method to a class of murderers that are more deserving death” violation of the Eighth Fourteenth Amendments to the federal We Constitution. addressed and Morales, rejected this precise issue in People v. supra, 48 Cal.3d page and defendants no provide reason to persuasive overturn that decision.

22. Multiple-murder Special Circumstances

a. Excessive Special-circumstance Allegations concede, argue,

Defendants and the People that we should strike one of the two multiple-murder special-circumstance findings each de fendant as duplicative. We agree. supra, 53 (Jennings, 388.) Cal.3d p.at

b. Intent to Kill circumstance, that, special

The “To find the was instructed jury convictions, true, is it referred in instructions as murder these multiple [j[] convicted of That the defendants in this case have been must be proved: in the or degree.” Reilly more than one offense of murder first second finding failed to a require this instruction was flawed because it contends the agree kill if in murder. We that he intended to he aided the only element, find the error omitted intent-to-kill but instruction the improperly harmless. Hardy to Reilly

There evidence suggesting accompanied was some home, enter, Hardy him then outside while Morgan stayed the but helped committed which a jury the When there evidence from murders. was a mere aider could its verdict on the that a defendant theory base murder, it must find the the jury abettor a the trial court must instruct defendant, killer, v. (People if intended to kill. not the actual nevertheless 257, 419]; (1989) 765 P.2d Cal.Rptr. Garrison 47 Cal.3d 789 [254 People Anderson Cal.3d 1149-1150 [240 v. instruct, however, if 1306].) reversal require

742 P.2d Failure to so does concludes, here, beyond harmless a court as we do that the error is reviewing 789; Chapman California, (Garrison, supra, a at see reasonable doubt. p. 710-711].) supra, 386 U.S. L.Ed.2d at pp. that, Morgan,

The in “If was instructed this case defendant jury killer, a beyond was not the actual it must be Reilly Hardy proved he ... the actual intentionally reasonable doubt that aided abetted [and] (Italics added.) in killer the the murder in the first degree.” commission of 190.2, (§ also sustained the circumstance jury financial-gain special (a)(1)), killing subd. a which the to find the finding jury expressly required combination, in the required was “intentional.” Considered these instructions killer, to find either that actual or that jury himself was the The latter intentionally aided the actual killer an intentional killing. error in doubt. finding any beyond renders this case harmless reasonable Garrison, People v. In that point. 47 Cal.3d illustrates this case, error, i.e., trial court committed an a failure to instruct identical jury that a aider and multiple-murder finding for an special-circumstance however, abettor kill. The sustained requires showing jury, intent to 190.2, witness-killing (§ (a)(10)), finding circumstance subd. special victim was killed to a crime. “In intentionally because she was witness the defendant an convicting killing, as to an intentional accomplice must have found act and that he necessarily ‘aiding’ that he committed i.e., to kill for did so with criminal knowledge perpetrator’s purpose, of the manner preventing testimony. victim’s Because purpose defended the aided any way which defendant case—denial that he killing—there way killing only is no for the find that he ‘aided’ the jury to ” (47 790.) We thus Cal.3d at concluded ‘accidentally’ ‘unintentionally.’ p. (Id. kill at Garrison that failure instruct on intent to was harmless. 790-791.) pp. If

We reach the same found was of two or result here. one jury Reilly killers, kill If more actual the failure to instruct on intent to was not error. abettor, however, he necessarily found was an aider and it he jury found killer, intentionally aided and abetted actual who was himself motivated the intent kill. by Reilly Because claimed he withdrew from the conspir- and thus was acy present at home when the victims were Morgan killed, “there is no way jury killing to find that he ‘aided’ the only ” ‘accidentally’ (Garrison, 790.) or ‘unintentionally.’ supra, 47 Cal.3d at p. circumstances, Under these we may confidently conclude the necessar- jury found ily intended kill. We thus his attack on the reject validity the remaining multiple-murder special-circumstance finding.

Penalty Phase Issues

1. Faretta verdicts, After the returned guilt its phase but seven days before counsel, start of the penalty moved phase, Hardy to have his trial Demby, relieved and a new attorney When the trial court denied appointed. motion, Hardy stated he wished to exercise his right self-representation at the penalty discussion, After phase. some that motion was also denied.

Hardy now contends the trial court’s denial of his motion to repre sent himself at the penalty phase erroneous and reversal. requires

A criminal defendant has a federal constitutional right represent himself without an if attorney voluntarily so intelligently chooses. (Faretta v. (1975) U.S. 806 L.Ed.2d 562 S.Ct. [45 [95 2525] California Faretta]; Moore, supra, 79.) [hereafter 47 Cal.3d at In p. People v. Windham (1977) 8, 1187], 19 Cal.3d 121 that, [137 560 P.2d this held Cal.Rptr. court “in order to invoke the constitutionally mandated right unconditional self-representation a defendant in a criminal trial should make an unequiv ocal assertion of that right within a reasonable time to the prior commence “However, ment of (Id. trial.” 127-128.) at pp. once defendant has chosen counsel, to proceed to trial represented by demands such defendant that he be permitted to discharge attorney and assume the defense himself 128; (Id. People court.” be addressed to the sound discretion of the

shall 698].) 774 P.2d (1989) 48 Cal.3d Cal.Rptr. v. Bloom [259 phase A made delibera during guilt motion for self-representation (1988) 45 Cal.3d (People in a v. Hamilton untimely. tions trial capital 1109].) It fortiori that Hardy’s 753 P.2d follows a 369 [247 returned, motion, was also had been guilt made verdicts phase after untimely. case but argues is “mindful” of our decision Hamilton

Hardy v. Missouri Bullington decided because it is inconsistent with wrongly 270, 101 Bullington, (Bullington). 451 U.S. 430 L.Ed.2d S.Ct. 1852] chose a life faced a death sentence but the jury criminal defendant possible the defend judge granted the When the trial sentence as appropriate penalty. trial, a he intended to again ant’s motion for new the announced prosecutor of the The court ruled the double clause penalty. high jeopardy seek death the death seeking the Constitution the from precluded prosecutor federal hearing,” “presentence apparently on retrial because the Missouri penalty “was a the issue of punishment.” similar our itself trial on penalty phase, Thus, hearing “was (Id. 279].) presentence at L.Ed.2d at the p. p. 438 [68 the guilt protection like the trial on the of or innocence question [and] also is acquitted by jury the a by Jeopardy afforded Double Clause one 284].) at (Id. p. available to at 446 L.Ed.2d p. [68 [the defendant].” That trial be trial” for capital “separate the of a a penalty phase may however, clause, necessarily of the double does not purposes jeopardy made, was that we conclude Faretta motion require Hardy’s post-guilt-phase (Windham, a “within reasonable time to the commencement of trial.” prior 127-128.) Bullington in was supra, high swayed 19 Cal.3d at court pp. that, in a choice of jury given the fact the the was by penalty phase, Missouri (Bullington, supra, two verdicts at L.Ed.2d at only p. pp. 451 U.S. 438 [68 278-279]), that the reasonable doubt standard hearing governed by the (id. of life 280]), at 441 initial verdict p. jury’s L.Ed.2d at and that the p. [68 the functional of an for the defendant equivalent “acquittal” (id. 280-283]). greater at 441-446 at None penalty pp. L.Ed.2d pp. these relevant the timeliness of particularly determining considerations is a Faretta motion. contrast, Hamilton, People several in

By reasons our decision support is if made the supra, untimely Cal.3d at that Faretta motion page “First, middle of the has no guilt phase penalty phase the trial. ... trial. separate unitary capital formal existence but is merely stage Second and more of a phases capital the connection between the important, 369.) (Hamilton, For supra, trial substantial and not formal.” merely p. must determine jury guilt penalty the same determines example, 190.4, will be (§ (c)), presented guilt phase and the evidence at the subd. 190.3, 190.4, (§§ (a), factor considered at the by penalty phase. (d).) Bullington We is not on point.33 subd. conclude grant whether to untimely, Because Faretta motion was Hardy’s (Hamilton, supra, within motion was the sound discretion of the trial court. 369; Windham, 128.) Cal.3d at Under such supra, Cal.3d at p. circumstances, defendant’s reasons inquire the trial court should into the the court other factors to be considered “Among request. trial are the assessing requests quality such made after commencement of defendant, the prior proclivity of counsel’s defendant’s representation of counsel, length to substitute the reasons for the stage request, and the proceedings, reasonably which be disruption delay might expected (Windham, follow the of such a motion.” granting p.at quoted Hamilton, 368-369.) with approval supra, at pp. First,

We these apply considerations here. we note trial court its expressed opinion quality “the court Demby’s advocacy, saying, has observed Mr. Demby. Mr. has been forceful in defense. Demby very your He made has ... the He in proper motions. has been forceful very bringing forth to the jury all that could in in aspects be favor and possibly your your Obviously, defense. he has conducted in adequate this defense an manner.” Hardy disputes the trial court’s Demby’s of representa- characterization tion, Demby saying no evidence at “presented guilt whatsoever either the true, of penalty phases” the trial. defense of Although Hardy’s was one denial, and simple Demby’s strategy credibility was to undermine the the of addition, People’s witnesses. In he failed to call mother as although Hardy’s witness, a penalty this phase is explainable by the fact that the prosecutor first, called her her asking to the verify details of defendant Hardy’s prior confrontation with police. Hardy also claims Demby’s cross-examination consisted of merely the repeating prosecutor’s In the questions. absence of 33Hardy 174, (1986) also cites Maryland Grandison v. U.S. 873 L.Ed.2d 479 107 S.Ct. [93 Marshall, J.) (opinion Grandison, by support. 38] in In Bullington, Justice Marshall relies on 430, supra, 451 U.S. a capital conclude rights defendant’s exercise of his Faretta at the guilt phase necessarily does not imply a of sentencing waiver counsel at the phase of trial. “decision,” however, That merely certiorari, was a dissent the from denial written Justice Marshall and joined by Justice Brennan. A denial of certiorari is not a decision on the 288, merits and thus has precedential no (Teague (1989) value. Lane v. U.S. 489 [103 1060]; L.Ed.2d 109 S.Ct. Maryland see also v. Baltimore Radio Show 338 U.S. Frankfurter, addition, L.Ed. [opn. by 70 S.Ct. J.].) “opinions [94 accompa 252] nying the denial certiorari have cannot the same as (Teague effect decisions on the merits.” Lane, supra, p. v. 346].) L.Ed.2d at We Maryland, supra, [103 thus find Grandison v. is not controlling Hamilton, and instead adhere supra. to our decision in however, evidence, we was Demby attempt- assume any direct exculpatory in of the various witnesses. Given ing to for inconsistencies the stories probe case, was strategy the we cannot this coconspirators say number of this circumstances, the clear defer to trial court’s Under these we deficient. this defense in an manner.” Demby adequate statement “conducted Second, noting stage proceedings,” the court commented on “the to determine whether were about the trial they begin phase impor- this was an disagrees death on defendant. impose penalty Hardy consideration, denied a Faretta motion cannot be contending tant correctly Joseph (1983) 34 (See People charge. because of seriousness timely [involving 671 P.2d 843] Cal.3d 944-945 was concerned Faretta motion].) the trial court Although suggests record court death would receive the possibility Hardy penalty,34 about his Faretta motion very late in was also concerned that Hardy making for the time to attorney given prepare the trial and that his had been already the trial meaning court’s comments as We trial penalty phase. interpret change such a change, delay had far to make a with all progressed too the trial court’s broad would Such a decision well within engender. which is raised on a motion not ruling self-representation discretion timely fashion.

This is the court’s references to the numerous interpretation supported by trial, court delay times twice lawsuits federal Hardy attempted filing jury, represent yourself—there penalty here which because opportunity would to relieve that it appreciate death [Faretta] self-representation. “Defendant “Defendant “The Court: You have “The Court: “The Court: “The Court: 34Therecord “Defendant “The Court: No. “Defendant what to penalty? would enable phase of that and rights. Demby, the obviously you to present not you where Hardy: Yes. Hardy: Hardy: Yes. Hardy: situation, prepare You understand And Do Obviously, Very quickly, really to you your you to the prepare obviously Denied. No entirely asked adequately I ask the court to Yes. be fl] understand what face either life is a lack, must gone through fair to jury, you All adequately.” strong possibility clear represent many stages Mr. obviously, that, at right. appreciate. this you for stay. Hardy, you sir? would That motion is your stage this to act in The matter is We imprisonment himself. The that stay your of technical point. It is a defense at the of the be of the many the placing yourself [Faretta] understand that your When very proceedings proceedings proceedings. times; you might own behalf. You denied. following colloquy without the serious situation. I feel that if set. knowledge rights penalty phase. trial court that correct? you until I can face are? have what ^[1] possibility such as have been advised the We have given to how to we denied obviously death a I are dangerous position appeal occurred: don’t think the Hardy’s penalty. going got parole attorneys argue the issue of have a situation into you motion I think got to or the your stay is did the an to a defendant, be as and times Demby asking Demby several naming Indeed, instance, far to relieved. in one the went as appoint trial court so trial speedy counsel for to a motion dismiss separate Hardy make grounds. (7th an

Hardy Silagy 1990) relies on v. Peters Cir. 905 F.2d out-of- state case in which granted post-guilt- the trial court defendant’s capital phase grant Faretta motion. That a trial court retains the discretion to such motion, however, that, does undermine this case our conclusion circumstances, the the did considering totality of trial court not abuse its discretion by untimely Faretta motion. denying Hardy’s Morgan’s

2. Absence the Penalty From Phase Prior to the holding penalty trial court was informed that Cliff phase, ill was Morgan too to continue. It ruled that the proceed would penalty phase if without Morgan did not his health before the end regain trial penalty Hardy would be allowed to return its Reilly, jury as them verdict and would then be dismissed as Neither Morgan. defendant At objected. beginning penalty the trial court phase, instructed the jury that would not due to medical Morgan attend reasons that it should not permit his absence affect their deliberations in any way.

Defendants contend they were denied their constitutional to a right fair and reliable Cliff penalty determination because was Morgan absent from the penalty phase of trial. They that the speculate jury would naturally be it could not upset Morgan, alleged punish mastermind claim, the conspiracy. As a would consequence, they jury be likely more impose severe punishment on them.

We reject the argument at threshold because the record reveals no objection or motion for a mistrial based ground. on this Accordingly, issue was not preserved for review. the issue appellate Assuming however, preserved, unfounded; we find defendants’ speculation instructed not to consider Morgan’s absence their penalty determination and we assume the jury followed that (People instruction. (1988) Bonin 46 659, Cal.3d addition, 699 Cal.Rptr. 1217].) 758 P.2d [250 the prosecutor echoed that thought in his We closing argument. reject thus defendants’ argument as pure speculation.

We likewise reject defendants’ related claim the Morgan’s absence at penalty phase, with the coupled prosecutor’s closing violated their argument, constitutional right under the Eighth Amendment to an individualized pen- alty determination. on Although they rely the comments prosecutor’s during

198 all in the crime of three involvement argument describing the closing defendants, harsher impose asked the jury penalty never prosecutor Instead, the prosecutor actions. Morgan’s on because of Hardy Reilly 190.3, (§ (a)), factor of the crime described the circumstances merely of Morgan. crime that included participation Lasting’s Proceedings From Some 3. Absence counsel, Last his trial

Reilly required contends reversal because these alleges ing, proceedings. Reilly did not attend four penalty phase left him no at these representation” proceedings absences with “viable the federal his under the Sixth Amendment to violation of to counsel right were no Lasting missed of proceedings Constitution. Because four defense, find of to counsel. right we no violation his Reilly’s consequence one actually The first three which were Reilly complains proceedings for on 1983. At that hearing, occurring September hearing, attorneys trial (Stone) and and the court Hardy (Demby), Morgan prosecutor, whether Cliff be from the Morgan penalty phase discussed should severed nor due The neither evidence presented medical condition. parties meet- an informational argued point; hearing merely was apparently make a motion for ing. Although right Stone and both reserved the Demby trial, him from for a new moving a new absence did not Lasting’s prevent motion, new trial eventually trial. The record shows made lengthy a new ground he did not illness as a trial. although rely Morgan’s Reilly this in what terms hearing, parties engaged Later same the hearing, on the notice absence from “argument aggravation.” Lasting’s however, Hardy’s The notice concerned inconsequential. disputed prior notice, This confrontation with when he the nunchakus. police possessed defective, even if could not have affected trial. Reilly’s penalty phase also was absent from a 19th discus complains Lasting September “discussion,” however, sion penalty instructions. consisted phase the trial court it informing that would not instruct about parties (See (1984) Governor’s People commutation v. Ramos Cal.3d power. II); Cal.Rptr. 689 P.2d v. Ramos People [207 430] [Ramos I].) Cal.3d 639 P.2d Lasting’s 908] [Ramos defense, however, did not Reilly’s absence affect it is unreasonable because to assume would the Ramos Lasting argued giving have favor instruction. held

Finally, Reilly was absent from a at a Los argues Lasting hearing, hospital, at which the trial court of Angeles took evidence in Stone’s support this would hearing mistrial motion. It is unclear how at Lasting’s presence hearing inasmuch Stone’s Reilly’s have affected defense as the motion, deteriorating the the motion—Morgan’s physical of grounds condition—were unrelated to defense. Reilly’s sum, did not hearings

In we find absence at Lasting’s foregoing these Reilly of Sixth Amendment counsel. deprive right 4. Allegedly Improper Special-circumstance Failure to the Strike Findings strike, the trial court erred the argues penalty phase at by failing the sponte,

sua due to instruc lying-in-wait special-circumstance findings addition, tional error of evidence the In insufficiency finding. supporting he claims the court should likewise have stricken the multiple-murder special-circumstance because to find findings jury was not instructed discussed, 191-193, intent to kill. As ante at these claims reject we pages with sole exception that each defendant could be one only convicted of however, find, multiple-murder We special circumstance. that there is no reasonable that the of this “extra” possibility jury’s consideration special circumstance affected (Jennings, supra, verdict. 53 Cal.3d penalty 390-391.) at pp.

5. Admission Photographs

Defendants argue they were denied a fair by trial penalty admission three of the victims photographs they as were discovered One police. All showed victims each three photograph clutching other. pictures graphically portrayed bloody crime scene. claim the Defendants admission of these served to photographs inflame passions against them and diminished the reliability penalty phase. The decision whether to admit within the sound photographs is discretion “ disturbed,

of the trial court and its will be ruling ‘unless the probative ” value of the photographs is clearly outweighed by their prejudicial effect.’ (Wharton, supra, Carrera, 53 Cal.3d p. quoting Cal.3d at 329.) have We examined the and conclude that photographs although they are indeed gruesome, they are not horrific so that we can shocking conclude the trial court abused its in admitting discretion them. The jury was, all, after familiar with the very facts of the crime. conclusion,

We thus conclude there was no error. this we light also find the admission of the did photographs not violate defendant’s right to the federal Amendment to

reliable determination under the Eighth penalty Constitution. discretion,

Moreover, even were the trial court abused its we to conclude the of photographs we it was the admission say reasonably possible cannot (1988) 46 Cal.3d (People altered the result of the v. Brown phase. penalty 604, test possibility 447-448 758 P.2d Cal.Rptr. 1135] [reasonable [250 empha- The phase].) prosecutor strongly for state-law error the penalty that the order pictures sized to the that he did not want them to view jurors Instead, they opined or they might “enrage[d]” become “inflame[d].” the brute force should at the because pictures they look “show[] violence but of to only willingness perform not the act the [defendants] any that act.” The before the intention prosecutor jury thus disavowed instead but should they swayed should be the emotionally by photographs, 190.3, (See them crime. take to show more the circumstances of the fully § (a).) factor harmless, need not error in the was we any admitting

Because photographs defendants, failed address the raised that the argument, by prosecution also the photographs. that it intended to introduce provide adequate notice Impact 6. Victim Evidence Con

Defendants their under the state and federal rights contend the revealing stitutions were violated the of irrelevant evidence by admission (We of the evidence good complained character victims. note the trial, admitted at the guilt penalty phase. at the phase however, the consider this evidence at the prosecutor, urged jury penalty phase.) reject We notion that the Amendment Eighth prohibits (Payne (1991) _ U.S. _ [115 admission of such evidence. Tennessee L.Ed.2d (Payne).) S.Ct. State may properly 2597] “[A] conclude that for the defendant’s moral assess meaningfully blameworthiness, it at sentencing should have before it culpability phase (Id. evidence of harm specific, by p. __ caused defendant.” 735].) L.Ed.2d at p. [115

Defendants Payne, supra, _ U.S. _, contend inapplicable First, two reasons. its limit claim trial court breached they duty “irrelevant information or rhetoric diverts the atten- jury’s inflammatory irrational, tion from its role invites an proper purely subjective response.” (People v. Haskett 30 Cal.3d P.2d however, 776].) defendants, Much of evidence identified relevant at the guilt murder. phase prove circumstances conspiracy

201 other, the phase, the such jury guilt To the extent heard irrelevant evidence at the kittens time she as the fact that was her cat’s Nancy Morgan raising Moreover, murdered, we find no we conclude was harmless. the misstep rheto- “inflammatory prosecutorial that could be characterized as argument ric,” now argument nor did either part defendant object any identified as improper.

Second, evidence claim on nonstatutory aggravating defendants reliance Payne. error under state law of the rule in and takes this case outside 1, (People 782].) As Boyd (1985) v. 38 700 P.2d Cal.Rptr. Cal.3d 762 [215 above, stated most of the evidence now was admissible under challenged 190.3, (a), section factor which of the circumstances consideration permits of the crime. evidence was harmless. Admission of balance of the _ _, we find Accordingly, Payne, supra, fully the decision U.S. applicable. Alleged

7. Brown Error

Both contend the Hardy penalty phase instructions misled the into it jury believing was to return death legally obligated sentence. Specifically, jury statutory was informed of aggravating and mitigating factors and then “If you aggra instructed: conclude circumstances, vating circumstances im outweigh you shall mitigating pose sentence of (Italics added.) death.” language of this instruction essentially tracks wording section 190.3. Thus,

We have addressed this issue often recent in People cases. Sanders, 471, v. supra, 51 Cal.3d “In People [(1985)] we explained: v. Brown 40 Cal.3d 512 440], Cal.Rptr. [220 709 P.2d reversed on another issue sub nomine v. Brown 479 U.S. 538 L.Ed.2d 107 California 837], S.Ct. we concluded use of the word in the statute ‘outweigh’ ‘connotes a mental balancing but process, which certainly one calls for a mere “scale,” mechanical counting of factors on each side of the or the imaginary arbitrary assignment of “weights” any juror of them. Each free to assign whatever moral or sympathetic value he deems and all appropriate each consider, 190.3,] various factors he is permitted to including [section “k” factor as we have interpreted it People Easley (1983) v. Cal.3d 858 [in (196 813)]. 671 P.2d By directing that the “shall” impose the death if it penalty finds that factors aggravating “outweigh” mitigating, the statute should not be any understood to require juror to vote for the death unless, penalty upon completion of “weighing” process, decides that death is the appropriate under all the penalty (People circumstances.’ v. Brown, supra, omitted]; at p. [citations].) [fns. reversal depends requires

“Whether the unadorned ‘shall’ instruction ‘must examined on its own each individual case. case be Every the facts of whether, context, have misled been may merits determine the sentencer under sentencing to defendant’s about the of its discretion prejudice scope Brown, 17; fn. (People law.’ 40 Cal.3d at [cita- tion].) jury whether the Our us to consider inquiry appeal requires instructions, in adequately read with the conjunction prosecutor’s arguments, decision-making responsibility.’ informed the of and jury ‘its weighing 635, 44 751 (People (1988) Cal.Rptr. Cal.3d 1148 v. Williams [245 901]; [citation].)” 521-522.) (Sanders, supra, P.2d 51 Cal.3d at pp. in significant It is begin scrutinizing

We the instructions. by jury instruc this case that the trial did not limit itself to the standard jury court instructions, (1) that it could jury tions. In addition to the court told the those (2) the simply consider and it should not mercy sympathy phase, penalty factors, (3) count the number of and aggravating mitigating applicable “[t]he in not the relative final the relative the circumstances weight test of unlimited, number,” (5) (4) the of circumstances was mitigating number decision be sufficient to any single mitigating support circumstance “may punishment.” that life without the of is the appropriate possibility parole Thus, (See misleading. the instructions considered as a whole were not Beardslee, 114; 44 People (1988) Melton supra, People v. 53 Cal.3d at v. p. 741].) Cal.3d P.2d 750 Cal.Rptr. [244 noting Defendants the closing arguments, emphasize prosecutor’s that at “Once the you one referred to chart and remarked: cross point line, member you obligated society jury are as members of this and as of this to, shows, if I you of conclude as do that the state of evidence so you are obligated by bound and law and the commitment that made when by you (Italics added.) you first took an oath as a to return a verdict death.” juror, comment, however, to, Just jury “weigh after this urged prosecutor all “to be merciful.” things noting opportunity it had an carefully,” record, On this we led cannot conclude a reasonable would have been jury above, in astray by the sole view of additional passage quoted especially jury instructions that discretion. scope jury’s described the clearly reasons,

For similar (and we additional reject Hardy’s apparently separate) claim that the instructions jury prevented jury giving independent “from mitigating weight all relevant evidence” in violation of his mitigating rights Eighth under the and Fourteenth Consti- Amendments to federal tution. because we find the was not Finally, misled instructions jury case, argument this we to reconsider People’s decline the invitation 440], People Brown v. 40 Cal.3d 512 709 P.2d Beardslee, light Boyde California, (See supra, 494 U.S. 370. 114.) Cal.3d at Alleged

8. Other Instructional Errors

a. Sympathy Instruction

Prior to at the closing arguments penalty given phase, trial, I following instruction: “At the first instructed phase you this However, were not to be you swayed by this sympathy. part sentiment, trial the law permits to be you by mercy, influenced sympa thy—but prejudice opinion—in at the public arriving proper penalty this case.” Defendants this it contend instruction was erroneous because permitted the to consider jury sympathy determining the victims 858, (See appropriate penalty. People Easley, v. 34 Cal.3d 886 [conc. Mosk, J.]; 163, of opn. (1984) v. People Lanphear 36 Cal.3d 170 [203 122, Mosk, Cal.Rptr. J.].) 680 P.2d of opn. 1081] [dis.

We find no error because is defendants’ of the instruction interpretation “A flawed. reasonable juror would have understood the language question to allow consideration of (People Mickey (1991) v. sympathy for defendant.” 612, 801, 54 Cal.3d 695 [286 818 P.2d We Cal.Rptr. original].) 84] [italics thus no error perceive under either state or federal law.

b. Failure to Delete Assertedly Inapplicable Factors

Defendants argue trial court erred by failing to delete from the penalty phase instructions assertedly We inapplicable reject factors. “it well claim: settled that the trial court has no duty assertedly to delete inapplicable 262, mitigating (People (1990) factors.” v. Lewis 280 50 Cal.3d 834, Cal.Rptr. 892].) [266 786 P.2d

Hardy suggests prosecutor Davenport committed (People error Davenport 247, 41 Cal.3d 288-290 710 P.2d Cal.Rptr. [221 861]), because he suggested] “clearly should find this jury they crime to be an one aggravated because none of these four types inappli- record, cable mitigation however, existed here.” The does not disclose that the prosecutor engaged in such argument.

c. (b) Failure to Clarify Factor In determining the appropriate was instructed penalty, jury to “consid- er (b) . .. The presence or criminal activity absence of each defendant or the ex- use or involved or of force violence attempted

which the use 190.3, (b) (See factor or threat to use force violence.” pressed implied § errors related (b)].) factor Defendants claim several instructional [hereafter to this provision.

(i) Alleged Robertson Error to a new penalty phase first claim are entitled they

Defendants it should not trial failed to hearing jury because the court instruct were guilty unless it defendants consider evidence of other crimes found (1988) 46 Cal.3d beyond (People crimes a reasonable doubt. v. Caro those 1035, 1057 680]; (1982) 33 People v. 761 P.2d Robertson Cal.Rptr. [251 opn.], opn. 655 P.2d [plur. [conc. Cal.3d 279] Broussard, J.].) other alleged evidence particular, they point aggravating concluded were erroneously crimes that could have factors.35 however, crimes,” or irrele- were trivial of these “other so

Many alleged consider- jury’s vant to a determination of an that the appropriate penalty should have them if we the trial court ation of was harmless even assume Brown, at (People a 46 Cal.3d supra, delivered Robertson instruction. 446-449.) to speak Reilly’s For refusal to pp. example, Sportsman’s Debbie not have had or Cliff to bribe a witness could investigator Morgan’s attempt even a effect on the deliberation. marginal jury’s penalty evidence, her

Other as threat to Reilly’s alleged Sportsman, such Debbie others, find no and was more We nevertheless parents, slightly substantial. the part conspiracy error because the other crimes were either of alleged (such evidence) the inextricably as the of or intertwined with destruction of which defendants the Significantly, prosecutor crimes were convicted. the in summary mentioned threats connection with his of file circumstances crime, i.e., 190.3, of He did present (a).36 the under section factor invite to the of a explicitly jury the consider threats as evidence separate Mitchell, Morgan’s alleged plan tion to threat investigator; car. submit attempt after to defendants after. 35Defendants 36After prevent with Ron to and John Sportsman’s you her noting (9) Leahy from testifying; identify Hardy’s resort Was there remorse the falls Hardy”; special parents; to to further violence to cover directly 10 instances efforts to Colette throw blame on (3) (2) circumstances, defendant (5) in the Mitchell”; possible dispose of Cliff or of lap sorrow? Was other Morgan’s Hardy’s attempt Reilly; of Mr. “witness (8) some crimes: the Debbie Reilly, (7) boots; prosecutor up tampering alleged there “Hardy’s (1) Sportsman’s after the threat to previous wrongful repentant attempt dispose (10) careful alleged involving stated: Mike Mitchell’s sale to refusal to bribe of consideration kill Debbie attitude? Was improper “The Joe gun; to talk to Dempsey, conduct act? (4) communica witness; Sportsman an that there ^[1] there Reilly’s alleged of the And I of his Mike (6) an

205 (b).37 Robertson factor under factor To the extent a instruction aggravating (Brown, supra, its at omission was harmless. Cal.3d required, 446-449.) pp.

(ii) Overlap (a) (b) between Factors Defendants the trial erred instruct the argue failing jury court (b) factor referred to crimes than of which the of violence other those in (Melton, supra, defendants were guilt phase. convicted Cal.3d “However, 763.) think in we statute any ambiguity language current instructions will have rarely caused Absent prejudice. improper argument, jurors are crime unlikely to the circumstances the current give greater weight be they determination because penalty simply appear ” (Ibid.; included two separate categories statutory ‘aggravation.’ Peo- ple v. Miller Cal.3d 790 P.2d 1289].)

Defendants do not direct our attention any this improper argument claim, however, and we have regard found none. that three They photographs of the victims were admitted at the their relevance to penalty phase based on (b). factor The record shows the prosecutor sought admission pictures to enable better understand force and violence that clear, however, to kill the necessary victims. It is that the photographs 190.3, i.e., were admitted under section (a), factor “The circumstances of the crime of which the defendant was convicted the present proceeding.” circumstances, Under the we find there is possibility no reasonable failure to clarify (b) of factor scope could have affected the outcome (Brown, the trial. 447-448.) 46 Cal.3d at pp.

(iii) Specifying Evidence

Defendants next contend the prosecutor and the trial court should have specified what evidence could be considered the under factor by jury (b). We faced an analogous (1985) situation in 41 People Phillips Cal.3d 423], [222 P.2d where the defendant claimed the trial this, was an attempt work, after to resort at or least to it to see it feel out if would based in, upon the difficulty that he found himself which included the solicitation of at least threats possible or the Sportsman. murder of Debbie Debbie testified to the threat of harm to the [?] ” parents, and if I recall quote accurately, the parents ‘Your should be afraid of me.’ 37Defendants prosecutor—at claim the point another his argument—encouraged jury to view the threats as comments (b). evidence under factor We have reviewed those find the prosecutor’s meaning was very ambiguous. unlikely It jury seems would have drawn impermissible an inference vague argument. from such light jury of the fact that the factors, instructed not to merely count the aggravating argument we conclude that even if this was improper, there was prejudice. no sua on the the other crimes. sponte court should have instructed elements of notion, that “a tactical consider We that defendant for rejected explaining with a series ations want the instructions overloaded penalty phase not may crimes, of alleged perhaps of instructions on elements other lengthy undue result in the jury placing because he fears that such instructions could central of crimes than on the significance question on such other rather (Id. 72-73, 25.) reasoning The same whether he live die.” fn. should pp. jury the evidence the here: because detailed instructions applies delimiting defendants, a could consider other crimes could be detrimental concerning trial court is under no sua to so instruct. sponte duty actions which of their argue by

Defendants also failing identify consider, the trial constituted “other crimes” that could jury properly court evidence encouraged nonstatutory aggravating to consider jury of the form bad did involve or the threat acts that violence prior (See Boyd, 775-776.) jury Inasmuch as the violence. 38 Cal.3d at pp. if it involved only instruction consideration evidence explicitly required violence, violence or the threat we claim. reject (b) interest— liberty We also the notion that factor created a reject court’s due was violated trial complete process with protections—that find (b). failure to on the of factor We thus fully scope more instruct defendants’ v. Helms attempted analogy Hewitt unavailing U.S. 460 L.Ed.2d 103 S.Ct. 864].

(iv) Prior Felony Convictions

Defendants failed inform the complain jury instructions 190.3, (c) it could (prior not consider the crimes under section factor present convictions). felony error this was harmless: Any regard instructional had a felony informed the that neither defendant prosecutor clearly prior conviction this fact was We thus have no occasion mitigating. to determine whether the instructional error violated defendants’ alleged Fifth, federal rights under the and Fourteenth Amendments Eighth, Constitution.

(v) Elements Other Crimes instructed,

Defendants court should have sua argue trial (b). sponte, alleged the elements of the other crimes within factor falling Although (Miranda, supra, defendants concede such not the law Cal.3d 99), at (and outlining characterize Miranda other as they precedents) Thus, limits of state law. failure to on the elements of they contend instruct under the federal to due rights other crimes violates their Constitution trial, and a determination. penalty reliable process, equal protection, jury Const., V, VI, VIH, (U.S. XIV.) Amends. have may

As we a criminal defendant tactical previously explained, forgo alleged reasons to on the elements other crimes. lengthy instructions 72-73, (Phillips, supra, 25.) forcing at fn. We fail to see Cal.3d how pp. his consti capital defendant to this tactical vindicates federal forgo option if rights. Phillips, supra, tutional we made clear in a defendant requests As issue, an crimes he is instruction the elements of the other explaining entitled to (Ibid.) have the so instructed. jury

(vi) Jury Unanimity Other Crimes instruct,

Defendants also the trial court erred complain by failing sua that the sponte, jury unanimously must conclude defendants were guilty of the other crimes reject before those crimes. We the claim considering under both (Sully, supra, 1246-1247) state Cal.3d at federal pp. constitutional law (People v. Benson 52 Cal.3d 810-811 [276 330]). 802 P.2d Background d. Evidence as Mitigating Only complains that trial have court should instructed the jury that evidence of his background could be as mitigating considered evidence him, claims, only. court’s failure to do so he because there prejudiced was much evidence presented at the guilt phase frequently often unemployed, abused alcohol and illegal led a drugs, general dissolute and aimless life. We find no prejudicial error.

Reilly correctly asserts that evidence of background can be only a mitigating factor because the limited permissible factors are aggravating those listed in (Keenan, 518; section 190.3. Boyd, 46 Cal.3d at p. supra, 38 775-776.) erred, Cal.3d at if pp. Even we assume court however, we see no reasonable that the possibility consid improperly ered evidence of Reilly’s life-style as an circumstance. aggravating Signifi cantly, the jury was instructed that the enumerated mitigating circumstances that, were merely limit examples “you should not your consideration of mitigating to these circumstances specific may factors. You also consider any other relating circumstances to the Reilly... case or to as reasons defendant imposing (Italics the death added.) sentence.” No instruc comparable tion regarding aggravating factors was no given. Similarly, instruction au thorized consideration of evidence of Reilly’s life-style as an aggravating urge the jury the his did Finally, prosecutor closing argument

factor. use, find aimless aggravated unemployment, drug the case was by Reilly’s There was no prejudice. thus life-style. Ramos

e. I, the supra, with our Cal.3d parties Consistent decision Ramos the commutation the would not be instructed on Governor’s agreed jury also, (See and the oral instructions conformed to this power agreement. II, 136.) On written of the instructions Ramos Cal.3d the copies was out. Defendants provided jury, offending to the the blacked paragraph the the describing contend are entitled to because they passage reversal was, they obliterated and totally Governor’s commutation was not power allege, readable. was passage fails to claim that critical

The record bear out defendants’ case, the oral instruc- That we followed legible. being assume Bonin, (See tions those were readable. written instructions that clearly instructions].) supra, 46 Cal.3d 699 to follow [jury presumed 9. Lack Remorse when, in

Hardy committed misconduct prosecutor complains In he his crimes. referred to lack of remorse for closing argument, Hardy’s it (1) such was because particular, Hardy impermissible contends comment him at trial unreasonable to remorse when claimed expect express innocent, (2) he was comment his failure remorse express on 609), have (supra, (3) error 380 U.S. the trial should instructed court Griffin any Hardy’s sua to draw inferences from failure jury, sponte, not adverse trial, (4) at the testify penalty phase prosecutor, urging remorse, jury to return a death verdict based to show Hardy’s failure factor, relied on improperly nonstatutory aggravating prosecu remorse, tor’s reliance on first time in closing lack of raised Hardy’s argument, violated evi aggravating his due to notice of the process right brief, dence. reply Hardy ground: prosecutor’s raises a sixth statements of a closing the absence argument equated mitigat improperly ing factor as an at aggravating (Davenport, supra, circumstance. Cal.3d Fifth, 288-290.) pp. Hardy generally relies on the Fourteenth Eighth, Amendments to the federal Constitution.

We first note that failed to the Hardy object prosecutor’s trial statements. Because a have timely objection any and admonition could cured statements, harm flowing from the we challenged Hardy conclude waived (1989) issue for 49 Cal.3d appeal. (People this v. Bell [262 claims, however, failure to 129].) 778 P.2d that counsel’s Cal.Rptr. Hardy him denied object thereby constituted ineffective assistance of counsel and rights his under the federal state and Constitutions. conten

Rather than confront the ineffective assistance of counsel tion, we consider conclude Hardy’s they remorse claims on the merits and in People are baseless. The never condemned prosecutor made the argument 248], Coleman 71 Cal.2d 1159 459 P.2d that “defendant’s failure confess after he . found guilt guilty to . . [was] Instead, (Id. 1168.) his lack of at p. remorse.” prosecutor demonstrate^] that simply Reilly noted had remorse after the crimes but that expressed Keenan, (See Hardy 509.)38 had not. supra, Similarly, 46 Cal.3d at p. never prosecutor that the consider the fact that suggested jury Hardy should that, did not testify at the The comment “Not once do phase. penalty you ever type (italics added) have that of response from Mr. refers to Hardy” immediately preceding comment remorseful comments concerning Reilly’s Thus, to Debbie Sportsman. reasonably comment can be construed as comment on the fact that for Hardy never to his his sorrow expressed friends crimes, and not that failed to such trial. We cannot express remorse at say counsel was deficient in object to at that failing point. the trial

Although court failed to draw jury any reinstruct to adverse inference from silence it had no Hardy’s at penalty phase, duty (Morales, do so. 570.) 48 Cal.3d at Inasmuch as prosecutor never invited the to draw an Hardy’s inference from impermissible silence, there is no occasion to reconsider this rule. factor, lack

Although is remorse not a statutory prosecu- a aggravating tor may direct the jury’s attention to evidence which a reveals defendant’s 38“The thing one that be can said for days Mr. is that at one point time few after off, attitude, that crime there was some sense shedding, getting least repentant it with a perhaps terrible; a wish in his mind that it hadn’t happened; have it it that was was horrible occurrence, something that he cope couldn’t rid it ‘You get way. with had some don’t know what it’s like to stab somebody,’ attempt get type some of solace or comfort else, somebody from is a which natural human response. “Not you And, once do ever have type of response Hardy. from Mr. ladies and that, gentlemen, I to you submit is extremely frightening things, because it shows two one a total lack of care from himself as being, a human a lack of care for himself as entity, an you if yourself, don’t care for it’s very difficult to care from someone else. And secondly, that shows total lack respect for the human as an go individual. And he can off jump a cliff. go He young can stab a boy. He can stab the He mother. can make love to And Colette. it’s all conscience, the same. It’s all the There no same. is no remorse. ‘It’s what I want do. It’s do,’ my what attitude tells me to ‘I’mor mad going about this. This is what I’m do. This going doing what I’m to take. I’m it.’ I “And submit to you, gentlemen, ladies and provides that our law type of attitude.” case, 966-967.) (Williams, any Cal.3d at supra, pp. lack of remorse. “[Rjemorse deemed a factor relevant was no is universally there prejudice. life likely experience, to The its common sense and penalty. jury, applying sentencing in the its constitutional to consider that issue exercise of broad 510.) (Keenan, 46 Cal.3d at supra, p. discretion no matter what it is told.” was akin the remorse Hardy prosecutor’s argument regarding also claims him an notice and to new evidence without presenting penalty phase giving argument regarding to rebut the evidence. opportunity prosecutor’s remorse, however, already pre- comment the evidence fair simply to right We that the violated his reject Hardy’s argument sented. thus claim the notice of evidence. aggravating at supra, Cal.3d

Finally, Davenport (Davenport, we no error. perceive remorse, Instead, the absence of 288-290.) prosecutor merely the noted pp. (Carrera, supra, aggravating and did not such was an factor. suggest absence 339.) the impermissible 49 Cal.3d p. Finding nothing prosecutor’s at by we trial was not deficient closing argument, Hardy’s conclude counsel the remorse. failing prosecutor’s regarding statements object 10. Other Alleged Prosecutorial Misconduct in his Both defendants contend of the comments several prosecutor’s Because neither defend- closing argument constituted misconduct. prejudicial of objected alleged ant an the instances any admonition requested misconduct, at (Sully, waived the 53 Cal.3d they appeal. issue 1247.) waived, are

Even had the issue the claims of misconduct not been statement that the prosecutor’s baseless. Defendants first of the complain district Defend attorney mitigating had evidence. obligation present argue ants this statement was misstatement and informed impliedly of law that defendants defendants jury mitigating had no evidence. Because both presented mitigating evidence and it emphasized closing argument, however, the if of little conse true—was prosecutor’s implication—even (We there several quence. also note were prosecutor argued case, factors shown his including evidence that mitigated Reilly’s remorse, the his expressions of lack of evidence of violence any past, convictions, lack prior endured.) We felony and the difficult childhood thus reject of their first premise argument.

Second, defendants a brief point both passage beginning where “I’ve at this prosecutor’s argument arriving he stated: contemplated [sic], upon a determination based point making profession based upon I office commitment as to what policy my based own upon personal would mind and where my upon aggravation mitigation resolve based advising each the defendants stand.” prosecutor Defendants claim of his We deserved death personal opinion they penalty. A entire reveals he was disagree. reading argument the prosecutor’s evidence, the merely that based on the saying aggravating mitigating addition, the appropriate disagree was death. we that penalty prosecutor thesis, was he relying evidence outside the record to his or that support on the trading prestige of the district office an attorney’s attempt convince the to return a verdict death. jury of

Third, defendants contend the to return a death prosecutor urged the jury context, verdict because defendants led life-style. had a hedonistic Read however, the prosecutor was merely saying although that extreme emotional crimes, disturbance would mitigate very defendants had led relaxed life-style.

Fourth, Reilly contends the the lack prosecutor argued evidence any extreme mental disturbance or moral was an factor. justification aggravating not, however, (Davenport, supra, 41 288-290.) Cal.3d at The record is pp. reasonably to this susceptible interpretation; the noted the prosecutor merely absence any such evidence. mitigating

Fifth, Reilly argues the prosecutor referred to several improperly aspects crimes, including threats to the and his Sportsmans request Debbie Sportsman lie for him. Reilly claims these facts constituted nonstat- utory aggravating evidence in violation of the rule established in People Boyd, supra, mistaken; 38 Cal.3d at pages 775-776. He is such facts consti- tute “[t]he circumstances of the crime of which the defendant was convict- 190.3, (§ ed.” (a).) factor

Sixth, Reilly we find urges prejudicial misconduct the prosecutor’s statement that the jury was “obligated as members of this society as members of this jury” to return a death verdict if it the aggravating found evidence outweighed the mitigating evidence. We have concluded already statement, this instructions, considered with the did not mislead the jury about scope of its sentencing discretion.

We also reject Reilly’s claim that argument this tended the jury’s to diffuse sense responsibility (Cf. for its verdict. Mississippi (1985) Caldwell v. U.S. 320 L.Ed.2d 2633].) S.Ct. Significantly, prosecutor immediately cautioned the jury “weigh all of the without things carefully, clear did not It is that the prosecutor’s argument occur.” may biases verdict lay believing into responsibility

mislead elsewhere.

Seventh, he personally remark that prosecutor’s Reilly challenges he from him had withdrawn sought against would not have the death penalty kill the Marc Costello after the aborted to have attempt conspiracy We statement improper. victims.39 this remark was agree probably however, argument was brief and was followed immediately he after an withdraw blameworthy opportunity had because conclude the hire and did not. We unsuccessfuly attempted to Costello supra, 53 Cal.3d Reilly. (Sully, could not have misstep prejudiced 1249.) end of his told the defendants of a the Eighth, story prosecutor complain reporter a The a conversation between closing argument. prosecutor related asked how who an execution. When county a sheriff had witnessed just felt, said, he he “I I asked to explain, the sheriff feel feel When good. right." included, far more this defendant system, gave “Because our replied, myself claim these remarks gave chances . . . than the victims.” Defendants in non-statutory factor “emphasized aggra- were because prejudicial they law, vation, i.e., the victims the were due of while given process defendants were not.” to prosecutor sought convey.

Defendants the the misinterpret message I said: “And submit to Immediately story, after this the relating prosecutor in this received you every that one of the defendants case every [has] argument law.” The concluded opportunity prosecutor afforded find The did the the provision thereafter. not ask shortly prosecutor due an Nor aggravating prosecutor emphasize factor. did the process fact or otherwise that We find no misconduct. Even build on idea. thus if with we assume the its story, some the impropriety, brevity coupled rather obtuse us message, convinces misconduct harmless. any sum,

In even we excuse defendants’ failure to assuming object may misconduct, are alleged the their claims of misconduct prosecutorial meritless. prosecutor myself 39The in asked “Reilly point said: hires Marc Costello. At that time I’ve case, People given Mr. Reilly would the under the of this if that were all that circumstances in; Costello, People,

became involved he went out and would would I hired Marc penalty? ask individuals I came to conclusion that to return death And personally arriving I do you difficulty would not that. But I to know had a at that want that I lot determination, no, you I honestly but made the determination and I want to know it was yes [Morgan Hardy] way as to the other two the line.” all down 11. New Trial Motion

Defendants the trial court its discretion denying contend abused due their not their they motion for new trial. claim were afforded They a fair were “tried a milieu of overwhelm process right trial and instead In the trial failure to ing prejudice.” they rely grant on court’s support, severance, of Cliff Stone’s closing argument, allegedly prejudicial impact condition, misconduct, and, Morgan’s medical the alleged prosecutorial We decision to trial from theirs. especially, Morgan’s penalty phase sever address the first earlier in alleged impact two this points opinion. Morgan’s medical jury’s guilt condition view of defendants' innocence was if negligible, Morgan’s deteriorating even we assume health somehow affected his credibility jury. before

The trial court did necessarily decided that misconduct any prosecutorial trial, not require new that court was a better to make that position decision. Because the have no wrong,” decision was we occa- “plainly sion it. upset (People 27 Cal.2d P.2d Sarazzawski 934].) Finally, defendants did not object to decision sever Cliff event, from Morgan penalty phase. any that decision could not have affected the jury’s deliberation at the guilt phase of the trial.

Defendants also claim their constitutionally counsel was deficient for to failing marshal to facts show Cliff medical Morgan’s condition affected is, their however, to ability obtain a fair trial. There on penalty nothing this Indeed, record to indicate such evidence was available. to the extent defend- ants claim the prosecutor took advantage Morgan’s medical condition to conscience, suggest he had guilty that have inured may to defendants’ benefit inasmuch as Morgan’s defense was that was not involved and that words, must have done the In killing. other the extent Morgan’s to undermined, credibility claim killer Reilly’s Morgan that was the enhanced.

Defendants also counsel argue were move incompetent failing for to for a mistrial when they learned Cliff Morgan would be severed from the penalty phase. (Reilly observes Lasting that was not even at the present hearing when evidence was taken regarding Morgan’s condition.) As severity stated, ante, we at page we assume the jury followed the instruction to consider Morgan’s absence from the penalty We thus find no phase. sum, apparent prejudice (i) defendants from Morgan’s absence. find we the trial court did not abuse its discretion when it denied defendants’ motion trial, for (ii) a new neither nor Lasting deficient Demby provided represen- tation for failing marshal facts to either support a mistrial or a new trial

motion, (iii) representa- deficient Demby neither nor Lasting provided when, be severed from the learning penalty on case would Morgan’s tion for they failed move a mistrial. phase, Penalty

12. the Death Constitutionality of law is unconstitu- we Gad the death urge penalty Defendants are factors (i) phase which distinguish penalty tional because it fails: “non-statutory unspec- (ii) which are to exclude mitigating; aggravating factors”; of the existence (iii) require findings ified written aggravating (iv) to require proof death penalty; factors aggravating supporting doubt; (v) to require a reasonable beyond each factor aggravating factors; (vi) to require propor- unanimity dispositive aggravating on the these rejected courts. We have previously review tionality by appellate 1250-1251, cited) and and cases (Sully, supra, claims 53 Cal.3d pp. we reconsider do not reasons should provide any why defendants by is mandated alleged decision other than to each suggest requirement federal Constitution.

13. Other Claims claims, the parties We reviewed the additional raised following have curiae, and find them meritless: amicus

(i) rights and statutory The trial court violated defendants’ constitutional and the reasons “to make an record of venire by failing adequate pool of hardship.” the basis excusing prospective jurors (ii) to fair jury Failure to increase fees violated defendants’ juror “right (See Cooper, drawn from a cross-section of the representative community.” 808.) at p. 53 Cal.3d (iii) due because the information Reilly’s rights were violated process charged two objects distinct of conspiracy.

(iv) The trial court’s failure to instruct the when the jury conspiracy were not terminated to consider statements that permitted jury many made in furtherance of the conspiracy.

(v) CALJIC No. to convict defendants permitted jury 6.10 right in of their to due conspiracy “any public commit offense” violation of law. process

(vi) The at the ongoing trial court’s conclusion that the conspiracy witnesses, time of into jurors trial converted the crime unconstitutionally their remain thereby compromising ability impartial.

(vii) The prosecutor committed that the by suggesting jury misconduct be would proceeds. whether Cliff collected the insurance deciding Morgan (viii) Due the trial court sua instruct the process required sponte that the issue of of the insurance was not before it. payment proceeds

(ix) The prosecutor’s argument numerous remarks in that “no closing explained” one certain Reilly’s evidence violated Fifth aspects rights. Amendment Stone,

(x) Additional by comments both the counsel for prosecutor Morgan, Cliff constituted error. Griffin

(xi) The trial court’s failure to limit of CALJIC No. 2.62 application (1979 rev.) to Cliff Morgan violated number of under Reilly’s rights federal Constitution. 2.01, 2.02,

(xii) CALJIC (4th Nos. (1979 rev.)) and 2.90 ed. undermined the jury’s understanding reasonable doubt violation of defendants’ Fifth, Sixth, rights under the Eighth and (Jennings, Fourteenth Amendments. 385-386). 53 Cal.3d pp. (xiii) (4th (1979 CALJIC No. rev.)), 3.34 ed. establishing a presumption mind, that defendants were of sound violated defendants’ to due right process by impermissibly shifting defendants burden to disprove (See intent. Mickey, supra, 54 669-671.) Cal.3d at pp.

(xiv) The between interplay (4th (1979 CALJIC Nos. 2.21 and 2.27 ed. rev.)) undermined jury’s understanding reasonable doubt violation of defendants’ rights constitutional permitting jury to credit portion of a witness’s even testimony, where that witness had false given testimony in other so respects, long as the jury concluded a preponderance of the evidence supported veracity of the witness.

(xv) The prosecutor engaged argument undermined jury’s understanding of reasonable doubt and impermissibly shifted the burden of proof to Fifth, Sixth, defendants violation of rights defendants’ under the Eighth and Fourteenth Amendments.

(xvi) The trial court should have Juror replaced Save or held a hearing upon learning that the juror a spoke to spectator.

(xvii) Jurors committed misconduct by reading articles newspaper discussed other trials.

216 with

(xviii) discussing by Alternate committed misconduct juror Segal Services. an for the of Social job investigator Department other her as jurors court (xix) due were violated when the trial rights Defendants’ process issue, after in hearing an camera severance permitted prosecutor held each the three defendants. hearings the court had such (rial defendants (xx) a new trial because granted The court should have of evidence relevant to were the admission of a amount large prejudiced in trial Morgan’s separate Cliff that would not have been admitted guilt defendants. against

Conclusion reasons, one multiple-murder special- For the we conclude foregoing and guilt defendant. circumstance should be vacated as each finding be should otherwise Reilly of both defendant penalty judgments Hardy affirmed their entirety. J.,

Panelli, Arabian, J., Baxter, J., J., George, concurred. review, error I have found no MOSK, J. concur After judgment. I reversal. requiring

I I majority’s analysis write with the separately disagree because Anthony Mark claim of error that defendants Edward Hardy James 106, raise U.S. 609 L.Ed.2d [14 under v. Griffin California 85 S.Ct. 1229]. grants every

The Fifth Amendment to the United States Constitution This right appli- self-incrimination. is person privilege against compelled Amend- cable to the of the Fourteenth through states the due clause process 659, S.Ct. (Malloy Hogan (1964) ment. U.S. L.Ed.2d course, 1489].) It that seeks to operates, agent when the government But well in that Such others compel. it functions as when others are position. include, here, as Cole- joint (E.g., relevant codefendants criminal trial. 48]; (D.C. 1969) man v. United App.D.C. States Cir. 420 F.2d 625 [137 Housing (3d 1949) United States v. America 176 F.2d Foundation Cir. 666.) Compulsion directly violates the privilege. In Griffin, the United States Court held that self-incrimina- Supreme tion testify comment on a defendant’s failure to privilege prohibits any therefrom, trial that invites or allows the to infer whether guilt

217 (380 form of an instruction the court or a remark U.S. by prosecution. at 108-110].) 611-615 L.Ed.2d at of this pp. indirectly Comment sort pp. [14 violates the “It privilege. imposed exercising is ... a consti- penalty tutional It cuts down on the its privilege. privilege by making assertion (Id. costly.” 109-110].) 614 at L.Ed.2d at p. pp. [14 After Griffin, self-incrimination prohibition against com privilege’s ment on a judge defendant’s silence has been held to reach beyond 237, prosecutor People to v. (E.g., (1970) codefendant. Jones 10 Cal.App.3d 871]; 243-244 Cal.Rptr. People v. [88 Haldeen 267 Cal.App.2d 102]; 568, 575; (5th 1989) U.S. v. Kane Cir. 887 F.2d see Israel, 23.4, 3 LaFave & generally (1991 Criminal Procedure pocket supp.) § p. fn. 28 [stating “the also one codefend principle applies Griffin ant’s comment on the failure of the other to but see v. testify”]; U.S. (8th 369, 379, 1989) Anderson Cir. 4 [declining F.2d fn. to address the issue].) The reason for the extension of is “It fact comment plain. Griffin

rather than the source of comment that denial right.” (People effects Haldeen, 481; supra, accord, Kane, Cal.App.2d p. U.S. v. 575.)

F.2d at p. The extension of anticipated by John Minor Wisdom Judge Griffin his seminal opinion for the court De (5th 1962) Luna v. United States Cir. 308 F.2d “If 140. comment on an accused’s silence is forjudge and improper prosecutor, it is because effect on the jury, just because the Indeed, comment comes from representatives of the State. effect on the jury comment by a co-defendant’s be more harmful if attorney might than it comes from judge prosecutor. A with judge, high keeping degree trial, responsibility to conduct a fair would give be expected bal- anced, moderate explanation of the inferences be from drawn silence. but to Similarly, a lesser degree, a prosecutor would be expected recog- nize his responsibility for fair comment. But much less restraint can be expected from an zeal, attorney to whom no little latitude is allowed when emotion, and the eloquence, advocate’s afflatus take hold of a jury argu- (Id. ment.” at p. omitted.) fn. noted,

As Professors LaFave and Israel have “Courts on agree the standard to be applied determining whether a comment should be viewed as impermissibly referring defendant’s silence—‘whether the language used was manifestly intended or was of such character would naturally necessarily take it to be a comment accused’s failure to ” testify.’ (3 Israel, LaFave & (1991 Criminal Procedure pocket supp.) 23.4, 28.) fn. § Stone, bar, who was counsel for in case at Jack his summation the prosecutor and interest of Cliff assumed the role Morgan,

codefendant in prove their order to guilt and and to Hardy Reilly, attempted prove against his client’s innocence. there, “All v/itnesses that got up

At Stone remarked: those one point, Calvin, Costello, Debbie, but only they were of Cliff they accusers had a got up, Mr. was [Reilly], Lasting Reilly’s counsel] accused Buck [who was not them—.” The sentence every one of chance cross-examine objection. an Lasting interposed because completed in Mr. this Morgan At “What the defense of another Stone said: is point, meet, Buck in when and Morgan Reilly Sometime back Cliff April case? all starts. Buck told at lunch. There is where it there is conversation statement, knock he ‘You could this conversation made during police that lunchtime money.’ During . . . your off wife for that amount of conversation, Cliff There there. only we weren’t there. were two people and told and Buck Cliff witness stand Reilly. Morgan got Morgan up Reilly’s at Mr. side of guess his side of it We have to what you what was. we know that he initiated that conversation was other than the fact that (Para- money.” Morgan for the insurance knocking Nancy off thought omitted.) graphing nothing

At “If a man has you Stone declared: know yet point, another hide, mind. he what’s gets on that witness stand and he tells up you there, And let Mr. that’s what Cliff did. He he Jonas got up [who attorneys whack at him for the other two prosecutor] away days, three him he bis front of whacked for three and then bared soul away days, crime for a you, jail years and that’s the soul of man who’s been for two commit; and he did not he has away physically mentally, wasted him But he him to tell get accusing frustrated. can’t the one that’s person what went That’s Mr. why way on. looks the he does.” Morgan did, as he Stone committed

Hardy by arguing now claim that error. Griffin comment, “manifestly

As to the first intended” Stone’s language refer Reilly’s failure or would it have been testify “naturally necessarily” taken to reference? carry such a That “had negative. answer is counsel a chance to cross- Reilly’s

examine of’ his on his every any one “accusers” does not bear silence significant way. comment,

As to was Stone’s the second intended” to language “manifestly refer failure Reilly’s testify or would it have been and “naturally necessarily” taken to such a carry reference?

Here, the answer is role and “prosecutorial” affirmative. Recall Stone’s conversation, interest and the core of his remark: lunchtime we “During that weren’t there. There were Buck only people two there. Cliff Morgan Reilly. Cliff on the Morgan got witness stand and told what his side up you of it was. We guess have to at what Mr. side of that conversation Reilly’s was than other the fact we that know that he initiated the thought off knocking Nancy for the Morgan (Paragraphing insurance omit- money.” ted.)

The message Stone sent and the received was: “We know what jury Morgan’s story is because he testified. His tale showed his innocence. By contrast, we don’t know what is because he didn’t We Reilly’s story testify. know, however, do he conceived the insurance fraud scheme. silence His suggests guilt.” comment,

As to the third was Stone’s language intended” to “manifestly refer to Reilly’s failure to testify would it have been “naturally necessarily” taken to carry such a reference? too,

Here the answer is affirmative. “If you know a man has nothing hide,” Stone, remarked “prosecutor” “he on that gets up witness stand and you tells what’s in his mind. And that’s what Cliff . get did. . . But he can’t the one person that’s accusing him”—namely, tell him Reilly—“to what went on.” sure,

beTo in part message sent and received unobjectionable: “An innocent man testifies. That’s But in Morgan.” it “A part, improper: guilty man refuses to testify. That’s Reilly.” passing Hardy Reilly’s mistrial, related motion for the trial court stated that the former sense only was apparent. The words Stone used—even if considered from his apart “prosecutorial” role and interest—are to the contrary.

Thus, error was committed in this case: the second and third Griffin comments indirectly violated the self-incrimination privilege. error, however, reversible, is not automatically but is subject

Griffin harmless-error analysis under the “beyond-a-reasonable-doubt” standard. (United States v. Hasting (1983) 461 U.S. 507-509 L.Ed.2d [76 105-106, 103 S.Ct. [dealing 1974] with comment aby Chapman prosecutor]; 710-711, 18, 24 87 S.Ct. L.Ed.2d 386 U.S. [17 California [same].) 24 A.L.R.3d 1065] error, it clear beyond “is must asked Absent be is: question guilty?” a verdict of have returned that the would

reasonable doubt 107].) p. 461 U.S. at L.Ed.2d (United Hasting, supra, States v. the evidence inculpating is: Yes. Whereas must be given The answer that voluminous, them was exculpating literally Hardy Moreover, were isolated comments improper nonexistent. virtually the outcome. that determined It was the evidence relatively brief. marginal no significance. remarks were of not, however, error was conclude that majority their part, For Griffin

fact, error and issues of separate reasoning committed. Their implicates conflation and a of two. prejudice with, be given codefendant must to one begin majority say,

To seem an- of (undefined) privilege to violate the self-incrimination some latitude to Sixth Amendment exercise his under the right other order to own a defense. present notwithstanding manifestly,

It is undisputed—and indisputable—that Amendment, directly the self-incrim- one codefendant not violate may Sixth An suffers no accused by compulsion. ination of another privilege applying Like the a defense as a result. undue restriction of his to right present he free to his altogether attempt prove coparty’s remains to prosecutor, violating not the latter’s guilt—only by directly privilege. Amendment, may one codefendant notwithstanding the Sixth

Similarly, comment- not indirectly by violate the self-incrimination of another privilege An ing on his failure This is testify. proposition hardly problematical. to must, course, substan- accused his defense to subject myriad present rules, tive and local court including policies practices procedural all, A if arrangements. rise above the level of barely, “housekeeping” fortiori, privilege, he must do so to self-incrimination subject coparty’s his suffers no which is an accused Again, of federal constitutional dimension. Like the undue of his a defense as a result. right present restriction remains free to prosecutor, altogether attempt prove coparty’s guilt—only violating privilege. the latter’s indirectly (9th Cir. reasoning to the on U.S. v. Castro contrary, majority rely 1989) (9th F.2d F.2d United 1987) U.S. v. Patterson Cir. 819 1977) Alpern (7th States Cir. F.2d and United States v. Shuford (4th 1971) Cir. These implied—establish F.2d 772. cases—it “balancing” one legitimacy privilege codefendant’s self-incrimination another’s Sixth Amendment a defense against right by undertaking present such an endeavor. Not so. None of the cited decisions even purports address the question “balancing.”

Next, the majority seem to court must be say, reviewing given some (undefined) latitude after applying analysis harmless-error one codefend- ant has violated the self-incrimination of another order to privilege protect the former’s Sixth Amendment defense. right present definition,

But by harmless-error analysis considers whether the codefend- ant whose self-incrimination has privilege violated suffered prejudice. Immaterial to the is benefit that the codefendant who violated question any the privilege may have derived therefrom.

Lastly, the seem majority the distinct of error and say, questions end, must be prejudice intertwined. To this (11th U.S. v. Mena they rely on 1989) There, Cir. F.2d 1522. the court declined to apply “manifestly intended/naturally and necessarily taken” standard on the it ground that “is derived from cases which the comment was made allegedly improper by a role, prosecutor. Given the prosecutor’s institutional when the prosecutor merely ‘comments’ on the failure of an accused to the reference is in testify, all likelihood calculated to encourage jury equate silence with guilt; reasonable judicial economy permits thus a of reversible error. When finding the ‘comment’ comes (such from an actor as codefendant) counsel for a an however, without institutional interest in the defendant’s it would guilt, be Instead, inappropriate to find reversible error as a matter of course. the court should ask whether the comment actually implicitly invited the omitted, infer from guilt (Id. silence.” at p. citations italics original.) however, issues of error and prejudice, are indeed separate should accordingly not be conflated.

Further, when given it is meaningful Mena scrutiny, to be proves unpersuasive.

The Mena court does not adequately justify its conclusion that there should be a stricter standard for a prosecutor’s comment and more tolerant standard for a codefendant’s. There is a tendency juror, as for anyone, to infer guilt from silence. Virtually any significant allusion to a defendant’s absence from the witness stand—no matter who the speaker—is enough below, trials, Indeed, counsel such as many joint culpability.

suggest and interest” role assumes an “institutional for one of codefendants similar to prosecutor’s.

Also, the Mena its of error and intertwining prejudice, even from apart its Contrary plain implication, indeed wrong. is mischievous and opinion (See reversible. simply presumptively error prosecutor Griffin L.Ed.2d at pp. Hasting, supra, 461 U.S. 507-512 pp. United States v. 105-108].) I reasoning, I majority’s as it even if were to follow the may,

Be that in this indeed error was committed would nevertheless conclude that Griffin case. silence? guilt to infer from there an “actual” or “invitation” “implicit”

Was comment. an the second there was at least invitation Clearly, implicit and the core of his role and interest Recall Stone’s again “prosecutorial” noted, remark, what Morgan’s was: “We know message above. As quoted contrast, we By His showed his innocence. is because he testified. tale story know, We do he didn’t story testify. don’t know what is because Reilly’s however, silence suggests fraud scheme. His conceived insurance his guilt.” still, in the third there was at least invitation implicit

More an clearly hide,” remarked nothing “prosecutor” comment. “If Stone, know a man has you he what’s in his mind. you “he that witness stand and tells gets up on that’s person Cliff did. . . But he can’t the one get And that’s what . True, in part tell him what went on.” accusing him”—namely, Reilly—“to Mor- man That’s unobjectionable: “An innocent testifies. message testify. “A That’s gan.” guilty But it was man refuses part, improper: Reilly.” conclusion, found no other—that having any requires error—or Griffin

reversal, I concur the judgment.1 KENNARD, J. concur in and in most of the majority’s the judgment I I holding dissent from that reasoning. part opinion only majority 527, my concurring dissenting opinion People v. 48 Cal.3d 574 1In and Morales 244], theory as a of first Cal.Rptr. my lying 770 P.2d I set out view that in wait [257 Code, degree (Pen. establishing a special murder and in wait as circumstance lying 189 § 190.2, (id., (a)(15)) waiting, watching, eligibility penalty require for the of death subd. each § expressly as to the physical impliedly theory actual concealment—I did as to the so special concealment simply, distinguished circumstance. Put as from purpose concealment of counsel for made no reference Morgan trial codefendant to defend- improper ante, at 159-160.) ant decision not to trial. Reilly’s testify (Maj. pp. opn., used defendant statements prosecution Reilly’s out-of-court to make its case against codefendant failure to Morgan. Commenting Reilly’s stand, take the witness “If Morgan’s argued counsel to the know a jury: you hide, man has he nothing up on that witness stand and tells gets you what’s on mind. . .. But can’t the one that’s [Morgan] get person him to him accusing tell what went on.” The concludes that this majority did statement not invite the to infer from his silence Reilly’s guilt I disagree. trial.

I A defendant in (U.S. a criminal compelled case cannot be to testify. Const., Amends.; Const., I, Thus, 5th 14th 15.) Cal. art. who § those innocence, wish to rely on the presumption which our system justice crime, affords every person accused of a can do having so without to take the witness stand.

To ensure that juries will not treat a defendant’s decision not as testify an admission of guilt, thereby penalizing the defendant for exercising silent, constitutional right to remain the United States Court Supreme v. (1965) 380 U.S. 609 L.Ed.2d S.Ct. [14 1229] Griffin California prohibited [hereafter prosecutors and from com- judges adversely Griffin] cases, menting on a defendant’s silence. Later simi- applying Griffin, have larly prohibited comments one codefendant’s counsel on another defend- (See, ant’s failure to De testify. e.g., (5th 1962) Luna United States Cir. 140, 141; 308 F.2d People v. Jones (1970) 10 Cal.App.3d 871]; People v. Haldeen 267 Cal.App.2d 481 102].) cases, however, These have not clearly established whether on limits adverse comment on defense imposed are as as attorneys great those imposed prosecutors and judges.

One recent federal case holds that when the reference ato defendant’s silence is made aby codefendant’s attorney, reversal is if required only comment or “actually” “implicitly” invited the to infer jury the defendant’s of the person enough. is not “I continue to adhere to personal that view as a matter of belief. succeeded, however, I have not persuading my colleagues my of the soundness of position. reflection, After Morales, I have decided not to a rataplan.” beat (People supra, p. v. at (conc. Mosk, fn. 1 & opn. dis. J.).) 1Morgan, instigator plot (his to kill son) the two victims in this case wife and together tried with Reilly during defendants and Hardy guilt phase. He is to party not a appeal. this 1522, 1534 1989) F.2d (11th (U.S. Mena Cir. from silence.

guilt prose- “Given the Mena].) its view: As the Mena court explained [hereafter role, on the ‘comments’ merely when the prosecutor institutional cutor’s to likelihood calculated the reference is all testify, accused to failure of an the ‘comment’ with When guilt.... to silence encourage jury equate an codefendant) without institu- (such for a from an as counsel actor comes however, to would be inappropriate it guilt, interest in the defendant’s tional Instead, should ask the court a matter of course. find error as reversible guilt infer from invited the to actually implicitly jury or the comment whether (Id. original.) italics p. silence.” at Mena, majority F.2d on this passage

Relying latitude greater allowed codefendant should be that counsel for a concludes testify. failure to to on a defendant’s judge or comment prosecutor than evaluating that in such the majority, arguing with disagrees Justice Mosk on the defense counsel should be drawn between no distinction comments I no to resolve on the see reason judges one other. hand and prosecutors here; even was improper I the comment at issue explain, this as shall dispute the majority. established by under the more standard permissive II outset, Reilly’s defendant I used prosecution

As mentioned Morgan. codefendant against to its case prove out-of-court statements following comment counsel made Morgan’s Against background, nothing “If a man has failure at trial: know testify you regarding Reilly’s hide, his mind he tells what’s on you on that witness stand and gets up him him tell accusing that’s [Morgan] person .... But can’t the one get error” what went on.” The concludes this comment was majority “Griffin infer Reilly’s “actually” jury because it did not invite “implicitly” ante, 160.) I disagree. from his silence. guilt (Maj. opn., if to hide” he Reilly “nothing to the defendant had arguing jury testified, did jury would have counsel in effect told the Morgan’s hide, Because have silence with something thereby equating Reilly’s guilt. from guilt counsel’s comment invited the to infer “implicitly’’ Reilly’s trial, it under the less stringent his failure to even testify improper standard articulated by majority.2 Hardy made counsel 2Defendants contend that two other statements testify at trial. I Morgan impermissible

codefendant were comments on their decisions not to ante, (Maj. agree majority improper. opn., with the that neither of those two statements was 159.)

225 the comment Although violated Reilly’s right constitutional self- against incrimination, concludes, reversal required. is not As the majority the evi- dence of ante, Reilly’s guilt (See was overwhelming. maj. opn., 160- pp. 161.) evidence, In light of that counsel’s comment improper was harmless beyond reasonable (Chapman doubt. U.S. California 705, 710-711, L.Ed.2d 1065].) S.Ct. A.L.R.3d 14, 1992, Appellants’ petitions for a rehearing were denied May and the opinion was modified to read printed as above.

Case Details

Case Name: People v. Hardy

Court Name: California Supreme Court

Date Published: Mar 12, 1992

Citation: 825 P.2d 781

Docket Number: S004607. Crim. 23533

Court Abbreviation: Cal.