People v. Hill

Crim. 1992.] S005169. No. CR26427. Nov. [No. PEOPLE,

THE Plaintiff and Respondent, HILL,

MICHAEL Defendant and Appellant.

Counsel Sonnenschein, Rosenthal, Miller, Nath & &Starr and Michael J. Regalia Hassen for Defendant and Appellant. General, Williamson,

Daniel E. Lungren, Attorney Chief Assistant George General, General, Attorney John H. Sugiyama, Assistant Attorney Dane R. Jacobson, General,

Gillette and Don Deputy for Plaintiff and Attorneys Respondent.

Opinion BAXTER, J. Michael Hill was convicted of two first degree Code, (Pen. 187) Code, murders and one (Pen. 211) count of robbery § § with the personal use aof firearm. The found to be true the jury special circumstances that the murders were (Pen. committed during robbery Code, 190.2, (a)(17)(i)) subd. § that defendant was guilty multiple Code, 190.2, (Pen. murders (a)(3)). subd. The jury § returned a verdict of Code, 1239, death. This (Pen. appeal automatic. (b).) subd. We affirm § the judgment in its entirety.

Guilt Phase Facts

I. The police investigation 15, 1985,

On August Brice, the bodies of Anthony (Brice), Sr. and his son, Brice, four-year-old Anthony Jr. were found (Anthony), by on the police floor of the Oakland, store jewelry Brice in operated by California. Each victim had been shot in the head at close with a range .38-caliber The gun.

appearance of the crime scene there suggested had been a robbery. Within a week after the killings, the Alameda County Board of offered a Supervisors $5,000 reward for information resulting the arrest and conviction of the killer(s).

Oakland Police Department Sergeant Gerald Medsker was the primary investigator assigned 22, to the Brice killings. He first learned on August Sergeant 1985, following day, involvement. defendant’s possible salesman, in Brice’s Fox, who had been a jewelry Robert Medsker contacted Fox identified lineup, a photographic Based on killings. of the day store while Fox there. in the store having defendant as been 1985, Medsker investigation, Sergeant further after

On September allowing police Court an order County Superior from the Alameda obtained department in Santa Rita to jail police the county defendant from to transport violated having for (Defendant jail headquarters questioning. Brice killings. to the unrelated for a conviction prior

terms of his probation killed.) On September Brices were when the jail He had not been police informed that and was was taken to headquarters defendant written waiver Defendant signed Brice killings.

were investigating 694, 86 L.Ed.2d (1966) 384 U.S. under Miranda rights Arizona 974], three statements with police and provided S.Ct. 10 A.L.R.3d McCray, Michael his acquaintance He incriminated audiotape. recorded on dealer. an illegal drugs con- 11. He evening September on the McCray arrested police automobile, of jewelry, found a pouch and police a search of his

sented to McCray’s With game. in a poker them he had won McCray which told consent, found residing. They where he was searched the room also police three base- shotguns, two chains an gold envelope, assorted twenty-eight ammunition, rifle, bats, .38- empty shotgun, pistol ball an assortment of shells, When interrogated and narcotics paraphernalia. and .44-caliber as follows: by asserting incriminated McCray

police, Brice killings, of the day $600 On the had for cocaine. McCray owed McCray and ammunition. handgun defendant a .38-caliber loaned McCray he intended defendant had said with the because gun provided defendant afternoon of house the McCray’s in Defendant returned to

use it a robbery. dozen gold at least three containing with a brown killings paper bag cash, $300 in Defendant also had about

chains and one dozen watches. $150 McCray He gave taken from a store. jewelry which he claimed to have $450. in cash and worth about jewelry charges

II. The criminal May information on charged by defendant was investigation, After further Code, 187), 19, 1986, count of (Pen. one of murder § with two counts Code, 211), circumstances—multiple (Pen. statutory special two robbery § Code, 190.2, during murder committed (Pen. (a)(3)) and murder subd. § Code, Code, 190.2, (Pen. firearm (a)(17)(i))—use of a (Pen. subd.

robbery § Code, (Pen. 12022.5), bodily injury and infliction of great 1203.06 and §§ 12022.7). 1203.075 and The information also that defendant had alleged §§ been convicted of the for sale. previously possession of narcotics

Defendant and denied pleaded guilty circumstances special other He allegations. amended his to admit the subsequently plea allegation of a criminal prior conviction. amended the information prosecution

striking allegations great bodily injury.

III. The trial prosecution’s

A. The case The prosecution’s of the theory case was that defendant and killed robbed the Brices because defendant was under pressure to debt to repay drug Michael McCray. also contended prosecution was defendant’s McCray accomplice as a result of having loaned the gun to defendant with knowledge that defendant intended to use it to commit a Several robbery. persons testified regarding defendant’s actions and statements during the period shortly before and after the Brice killings.

Derek Agnew testified that he knew Brice and had him entrusted with cash in the keep store’s safe. On August two days before killings, Agnew went to the gave $150 store and Brice an additional for safekeeping. inwas at $550 store that time. Agnew had about already being in that,

kept store’s He safe. testified I “As started I counting my money know, like say, you he inwas my business.” [defendant] Fox,

Robert the costume salesman who had jewelry identified previously (see to police ante), p. (Fox) testified that he had been Brice’s store on about 10 occasions before the Fox killings. purchased Brice, costume notation, from jewelry who engraved it with the false “14k.” Fox sold the “slum,” fake known jewelry, as for about double the amount

had paid Brice for it. Fox inwas Brice’s store about noon on the of the day killings. Fox noticed that Brice had a large amount of currency his pocket. store,

While Fox was defendant knocked on the door and was allowed to enter. Fox did not see a gun on defendant. When Fox left about 15 minutes later, the the store persons were defendant and the Brices.

Denine Houston testified that in August 1985 she was in a living house on 23d Avenue in (the Oakland house) with her group and boyfriend several other persons 13, 1985, including defendant. On the morning August of defendant inwas her room watching television. She heard defendant tell her boyfriend that defendant “had a lick at a up slum “Lick meant a shop.” up” Houston, According meant to jewelry “Slum a fake store. robbery. shop” and he can get a of 38th defendant that “It was slum on Foothill off shop said have money and he had to some he know the real people good, because ” at (Brice’s store was located being jewelry ‘cause was tired of broke. Dartez, testi- Sam also Oakland.) boyfriend, and 38th Foothill Houston’s lick that “He a got a defendant said killings, fied that or two before the day and he’s to have some money.” up going that, defendant August

Houston testified on the of morning further take his to care of [gun], going “was his talking going get piece about later with gun an hour or two a business.” Defendant returned about 4-A, a as similar to exhibit No. .38-caliber being People’s

Houston identified being & told he was tired of Smith Wesson revolver. Defendant Houston hours with a left and about three or four later broke. Defendant returned and fifteen to five or six inches paper bag square brown (approximately full of jewelry,” “pockets “a bunch of slum eighteen high) containing inches and an ball of cocaine.” money,” “eight [one-eighth ounce] Smith, lived

Three Annie Mae who also similarly. other witnesses testified house, defendant at the testified that on 15 she saw August group gun house. “He a some and a bag money gun.” had jewelry, into to the Smith & Wesson introduced

substantially similar .38-caliber said, get “This is the toway evidence as exhibit 4-A. Defendant People’s No.

yours.” house, Wilkins, another is defendant’s

Rudolph resident of group He into cousin. that on the defendant came morning August testified bedroom, Wilkins’s him similar People’s showed a .38-caliber revolver 4-A, had no exhibit No. and asked for some .38-caliber bullets. Wilkins and a bag bullets. Defendant left returned midafternoon with brown paper gold-colored full of He also had a “wad of his money” pocket necklaces. $30. over jewelry Wilkins Defendant said that “he had knocked a repaid

store and he had snuffed somebody.” Daniels,

Marta had Michael for McCray years who lived with several sister-in-law, his law” testified that on the morning “common she he told he had killings asked defendant to her a dollar and that her give no would have “when he with lick.” To money got through but one Daniels, “scam,” “con,” thing “lick” meant a or kind of “robbery,” “any where Later that same you something doing something day, get wrong.” $50 “fan gave money” Daniels some He had a buy cocaine. that Daniels estimated to be He “that he had to “about dollars.” said later, have his and he was and this is Three going days it what he get got.” she observed defendant on a corner watches. selling street jewelry

Sam Dartez two to three weeks before moved into house about group had three and sold killings. years Dartez known defendant for to four leaving slum with him. On the Dartez was jewelry August afternoon (to cocaine) he the house court on a when saw appear charge of possessing “big defendant down 23d Street toward the house. Defendant had a coming chains, watches, bag" “slum a whole bunch of grocery containing jewelry, chains.” Dartez never jewelry. had before seen defendant with so much Dartez, “Man, do,” Defendant told we Dartez that got meaning work to $20 needed to they sell Dartez cocaine. jewelry. gave buy some, house, He bought brought it to the and consumed it with group defendant. Dartez then left for He his court returned later than appearance. house,

afternoon. Someone cocaine to the and brought for paid He had

drug. “a lot of a money ... wad.”

Wilbert Winchester testified that he had defendant many years known for that, two, shortly after the Brice killings, day or a perhaps maybe week, afterwards, defendant him approached on an Oakland street and asked if he wanted buy a .38-caliber Winchester did not see a He pistol. gun.

declined the offer because he did not want because he was on pistol parole. Bennett, addict,

Ranee a methadone testified that she first met defendant 19, 1985, August while she was out” at a “hanging taco restaurant Pittsburg, “He California. said he was to down some and a trying pills [sell] gun.” waistband, She could see the gun tucked into his and he said it was a .38-caliber. It resembled the gun introduced as exhibit No. 4-A. People’s Defendant left but returned later that to the day restaurant. He told Bennett he had no place to and she stay, offered to let him her stay at residence. They drove to her home. He no had the longer .38-caliber On gun. or about August 30, she him told she had been hearing him things asked about a robbery and murder. “He said he had did I it but—and him asked did he why shoot the kid and he said because they knew him. He ... said it was a jewelry store. It ... was Oakland. It ... was a man and his son. . . . [Defend- Said it was a robbery. ant] . . . The robbery to have been supposed done with a I .38. ... just I Q: stunned. just kept And asking why.

what did he say? A: He said ‘cause they knew him.” Bennett told defendant that he should surrender himself to the police.

The prosecution also introduced by two testimony jailhouse informants.

Arthur Allen was incarcerated in September 1985 at the Santa Rita jail

receiving goods stolen and was defendant’s Allen cellmate. testified: “He said he shot two Q: [defendant] and robbed people store. Did he jewelry

say why had shot the two A: He people? shot the one—the older man because I guess he thought he was going for a gun kind or some of weapon, him.” On recognized have could boy he because just boy but shot [the] cross-examination, “there was blood defendant had said Allen asserted that that no testified (A officer at the store. jewelry police all the counter” over earlier custody from counter.) Allen was released blood was found on defendant’s admission. his informing jailers normal after than 1985, at which time in June met defendant orMay Turner

Clifford in August Turner was arrested IXirner a gun. to sell defendant offered inmates risk high a building Greystone, incarcerated at Santa Rita Rita, he was placed defendant arrived at Santa When informers.

including Brice and he had robbed Defendant admitted that cell next to Turner’s. In Decem- Mike.” knew him as Uncle “the little boy killed because Anthony two counts of of robbery, to three counts guilty Turner pleaded ber While theft with a conviction. prior and a deadly weapon petty assault with a offering attorney, letter to the district Turner wrote a awaiting sentencing, his me, I’m if not still if willing help . the state is the state . . “help time, Turner was “very office.” At Attorney’s the District willing help at defendant. angry” in- his regarding Medsker testified Sergeant Department

Oakland Police of defendant on interrogation his the circumstances of vestigation, including state- of defendant’s (Those facts and the substance 1985. September below, claim that with defendant’s in connection are forth detail ments set 979-981, defend- Portions of post.]) involuntary. pp. statements were [See into evidence were introduced ant’s three statements tape-recorded for the jury.

played Harris, testified Sergeant Jerry Medsker’s Sergeant investigative partner, on the basis of September that Michael was arrested on McCray a then made McCray defendant. day by the statements made earlier that of those as to portions statements. Harris testified Sergeant series of taped $600 McCray Harris that defendant owed statements. told McCray Sergeant in the after- house McCray’s early and that defendant came to for cocaine gold more 36 or bag containing 15 with a brown August paper noon of $300, $250 to Defendant also counted out about chains and watches. about two gave Defendant he he had taken from a store. jewelry

which said drug $150 of the payment to McCray dozen chains and six watches and which Smith & Wesson pistol, had a .38-caliber debt. also there sure” “pretty unloaded. McCray

removed from his waistband and the gun had McCray given taken from the gun. were three shells empty in it because five of ammunition earlier that to defendant with rounds day robbery.” that he was going pull defendant had “said Brice death of that the cause of

Dr. Thomas testified Rogers, pathologist, Rogers their heads. Dr. wounds to Anthony gunshot and his son head. Chester Anthony’s extracted from Brice’s head and one from slugs two criminalist, had slugs testified that all three been Young, police department 4-A fired introduced exhibit No. from a .38-caliber as gun. gun People’s have fired the that could handguns one of four brands of .38-caliber slugs.

B. The defense Brices and was McCray defense was that Michael had killed the Defendant tes-

attempting exculpate incriminating to himself defendant. tified on his own He contended several of the witnesses behalf. prosecution were either and He or mistaken as statements actions. lying alleged to had known Brice and Brice about and was a friend of both his son years Anthony. Defendant went to their the 15 to morning August get store some slum and to to sell videocassette recorders jewelry some attempt (VCR’s). He knocked on the door was let the Robert shop by into Fox.

Brice and were in the Fox then left Brice asked defendant Anthony store.

to buy some He himself the cigarettes. used the door to let out of store keys and went to he was the street get cigarettes. As down to walking he

grocery, McCray saw a car across the from Brice’s parked intersection store. As defendant was McCray from called out to returning grocery, him, and he was in the approached McCray. McCray asked who jewelry store and whether Brice had any money. Defendant told both Brices McCray there, store, were and defendant returned file keys to to reenter. He using told Brice about the conversation he had had just McCray. with later,

About 10 minutes there knock was a at the door. Defendant looked window, out a saw McCray, and told Brice that was at the McCray door.

Brice threw keys to him defendant and told the door. open McCray Brice, entered and out a pulled gun, went behind and fired Defend- gun.

ant ducked and fled the store. He heard a second shot while fleeing.

Defendant paid to drive him passing motorist from the A away scene. out, few street, blocks he got he away, as was walking down he saw Hill, time, Alonzo a friend to whom he had sold VCR’s. At this Hill Alonzo paid $650 for the VCR’s. As this was drove happening, McCray inup his McCray car. gave defendant like grocery bag of slum that jewelry he had seen Brice’s store. did Defendant not want the jewelry because stolen,

knew it but he took it anyway.

Defendant began walking toward the house where he was group residing. there, On the he came way across Sam him Dartez. asked Defendant help sell the slum Dartez jewelry. $20 declined. him gave buy Dartez then the cocaine. and smoked went house They group cocaine. Later that at the house. remained and defendant

left for a court appearance, $150 for afternoon, Defendant paid delivered to the house. more cocaine was Defendant gave the house. Daniels came to 4:30 Marta drug. p.m. About earlier he had obtained the jewelry and about one-half of bag her the grocery McCray. from day later on witnesses testified on cross-examination Several prosecution times house several group came to the McCray evening August his shit.” said he “wanted McCray looking defendant. he made that several statements on cross-examination

Defendant testified he had false and that 10 were his during interrogation September to police was defendant involvement because McCray’s alleged concealed initially McCray. afraid Phase Issues

Guilt police to the Admissibility statements I. of defendant’s section Penal Code motion under

The trial court denied defendant’s to the his statements 402 to suppress 1538.5 and Evidence Code section arrest of an illegal were the result Defendant contends the statements police. contentions. reject and were We both involuntary.

or detention arrest or detention Alleged illegal

A. interrogate in when needed jail police Defendant was the Santa Rita head- at police the questioning Medsker to conduct Sergeant preferred him. it and thought the case there he had more information about because

quarters On of defendant. a examination necessary polygraph be to conduct might order from Medsker a removal obtained September Sergeant from defendant’s transfer Court that directed County

Alameda Superior next day Defendant was transported Santa Rita to police headquarters. at interrogated headquarters.

and was Rita was to an Defendant his transfer from Santa equivalent contends at the suppression Medsker testified (Sergeant arrest without cause. probable that, he had sufficient he did not believe as of hearing September defendant.) interrogation evidence Defendant does not contend to arrest if conducted at the or detention it had been would have constituted an arrest none, for and we are aware of Rita Defendant cites no jail. authority, Santa was an arrest or his conclusion that his transfer from one another facility detention that cause. required probable People Boyer relies on 48 Cal.3d 267-268 [256 610], 768 P.2d for the that he was under arrest at proposition

the time of the transfer in because reasonable his would not person position course, Boyer have felt free to leave. free is Of defendant was not inapposite. He leave. was an unrelated That already properly custody for offense. his why argument must fail. The transfer from to another did not jail one

effect a seizure of defendant that he already obvious reason was Likewise, lawfully “An custody. arrest is into taking person custody, Code, and in (Pen. 834.) case the manner authorized law.” Because §

defendant already was he not taken lawfully custody, custody” “into transferred, he when was and the transfer was an arrest.

B. Whether voluntary statements were 11, 1985, During his interrogation on three September gave tape-recorded statements In police. motion in limine to suppress them, statement, well, he contended the third the second as perhaps

involuntary because the interrogation was and coercive. On unduly long admitted, he appeal challenges the third statement—in which con statements, trary to his prior that he was at the time of the present robbery and killings. Our task is to examine the facts and determine indepen whether dently the prosecution met its burden of a proving by preponderance

of the evidence that defendant’s (People statements were v. voluntary.

Thompson (1990) 50 857]; 785 P.2d Cal.Rptr. Cal.3d People Markham 49 Cal.3d 775 P.2d 1042].) Defendant’s contention of involuntariness is not supported by

record.

Defendant arrived at police headquarters at 9:22 a.m. and in an was placed interview room. He was left alone for about three minutes and at his request was then taken to the He restroom. was returned to interview room.

Sergeant Medsker identified himself and he explained that was investigating the Brice killings. Sergeant Jerry Harris was present. also Defendant was Arizona, advised orally of his under rights supra, Miranda v. U.S. 436 (Miranda), and he signed a written that he had acknowledgment been so advised. He also indicated in that he writing nevertheless wished to speak with the police. minutes,

Defendant was interrogated for about 50 time during which Sergeant Medsker took written At notes. 10:35 a.m. Sergeant began Medsker an audio recording of defendant’s statement. Defendant asserted that he first learned of the Brice while killings watching television evening news

August 15. The taping session lasted 27 minutes—until 11:02 a.m. Defend- minutes, ant was then restroom, left alone for a few to and returned taken he whether wished interview room. Medsker asked defendant Sergeant said, eat, “Yes,” him food at brought and Sergeant Medsker He not while he ate. questioned 11:35 a.m. willing if he was take Sergeant

At 12:04 Medsker asked defendant p.m., defend- readvised agreed. examination. Defendant examiner polygraph ant rights, signed acknowledgment of his Miranda and defendant an then and continued until

advisement. The examination polygraph began initial interview 1:22 when defendant was returned to the shortly p.m. before Harris, In of defendant and Medsker Sergeants room. the presence had the examina- examiner that defendant explained “passed”

polygraph tion. defendant and con-

At Medsker resumed p.m. Sergeant questioning 1:58 This hour and fifteen minutes. session p.m., period tinued until 3:13 of one later, left the minutes was not Medsker room. Four tape-recorded. Sergeant door, and they spoke defendant knocked on the Medsker Sergeant responded, until Medsker left the room and did not return 3:52 Sergeant briefly. again p.m. returned, Sergeant

When he Medsker showed defendant two photographs, later, room, began Three left the returned at 4:18 minutes p.m. session with a third set of taping given

second defendant. was not He he knew the warnings identity Miranda before this session. asserted that who killed was false police the Brices and that first person story killer, I because he did not want to on the don’t “snitch” “so [defendant] get killed next.” The second session until 5:15 about recording p.m., lasted 54 minutes. Medsker left in the and returned

Sergeant defendant alone interview room about 15 minutes later to him to the On the walk back take restroom. room, thought

interview defendant stated that he the killer’s surname was Medsker returned defendant interview room and “McCray.” Sergeant to the left to a At 5:48 Medsker came photograph p.m., Sergeant obtain of McCray.

back with a “hot of Defendant identified the print” McCray. photograph as the Brice subject responsible killings. photograph being person

At 6:50 a resumed at given Questioning was sandwich. p.m. and readvised of

7:10 continued until 10:05 Defendant was not p.m. p.m. of rights. Sergeant Miranda Medsker the latter this tape-recorded portion statement, In session—from 9:16 to 10:05 this third recorded p.m. p.m.

defendant admitted for he was in Brice’s jewelry the first time that present session, interrogation store at the time of the After robbery killings. and this defendant was returned to jail. and Michael

The had arrested morning, questioned next after police For the defendant. sought again interrogate Medsker McCray, Sergeant time, first defendant invoked his Miranda rights. his interrogation.

Defendant does not of foregoing chronology dispute contends, rather, eight interroga He hours of actual approximately (in sessions) unduly tion over a separate period lengthy five twelve-hour coercive, Defend and thus recorded statement. rendering involuntary his third is, in ant time authority length cites no for the that such of proposition itself, The of a must be tested unfairly coercive. voluntariness confession “the of all the the characteris

by totality surrounding circumstances—both (Schneckloth tics of the v. interrogation.” accused the details of the 854, 862, 2041]; (1973) 412 Bustamonte U.S. L.Ed.2d 93 S.Ct. 166; LaFave,

People Thompson, Proce supra, 50 Cal.3d Criminal 6.2(c), dure (1984) 444.) other p. no circumstance than points § of his length interrogation. We are aware of no time authority would limit on support specific cases, interrogation that would to all facts. of their apply regardless Drawing such line for all bright cases would be to the of the contrary “totality course, Of circumstances” test. custodial continue interrogation for so might long as to become coercive under the of a unduly particular circumstances 1192, 1199, case. (Ashcraft v. Tennessee 322 U.S. L.Ed.

64 S.Ct. [suspect interrogated for 36 hours without or rest sleep 921] This, however, relay teams police officers is not lawyers].) such a case. The 12-hour period on 11 was September not one continuous sessions, interrogation. actual interrogation, which was divided five into only about comprised hours. The between were eight breaks sessions not of insignificant duration. Nor was period interrogation unduly lengthy under the circumstances. It took normal place during waking hours—from approximately 9:30 a.m. until 10 p.m. Defendant was promptly provided food, with beverages, (He and restroom breaks whenever them. requested was fed shortly before the final session to which he now The final objects.) session lasted three hours. record does not that defendant reflect distressed unduly or or subjected interrogation abusive improper techniques.

Most never important, defendant once in the break interro- requested any gation or asked that it be terminated. weighs This his claim heavily against of excessively long He questioning. given was twice warnings, Miranda which he in acknowledged both times writing. record reflects that he aware he fully could terminate the at time. interrogation any For the next example, when morning, September Medsker Sergeant at- tempted to resume questioning, rights. defendant invoked his Miranda Inter- rogation ceased immediately.

982 indicate interrogation the nor circumstances of defendant’s length

Neither statement, statements, third final the and including that of defendant’s any to did in defendant’s motion denying The trial court not err involuntary. suppress. rights waiver Alleged

II. Miranda of ineffectual 11 of under rights his waiver his September Defendant contends Miranda, he was not supra, specifi 384 U.S. was ineffectual because death if found of he receive the penalty informed could cally possibility We for two reasons. reject of Brice the contention guilty killings. his of argument support

Defendant failed raise the ineffective-waiver to Miranda, is therefore supra, argument under 384 U.S. 436. motion Code, 353, (Evid. (a).) waived. subd. § Miranda, supra, Under reject

We also the contention on the merits. he “that a custodial must be warned suspect prior interrogation

U.S. silent, as he does make be used may has a to remain that statement right him, attorney, he an presence evidence and that has a against right 706-707].) (Id., or at L.Ed.2d at pp. either retained appointed.” p. [16 view the Miranda no court his that acknowledges adopted has In Colorado warning should be to include expanded possible punishment. 851], the court

Spring U.S. 564 L.Ed.2d S.Ct. was invalid defendant’s contention that his Miranda waiver rejected he be might he had advised of crimes about which because not been all “The know does that a criminal suspect Constitution not questioned. require Amend understand a waiver of the Fifth consequence every possible never Constitu ment .. have read the privilege. ... . .[][].. *[W]e [f] with a flow of information require supply tion that the police suspect him calibrate self-interest whether to or stand help deciding speak his Here, information could affect rights.’ additional [Citation.] waiver, knowing essentially

wisdom of Miranda its voluntary nature. . . . that holding specifically required This Court’s Miranda [S[] inform he to remain silent and police suspect right a criminal has anything against be used him. There is no says may qualification (Id., at this broad at 574 and 576-577 L.Ed.2d warning.” explicit pp. 966-968], omitted.) If need brackets and italics fn.

pp. original, suspect him, not be informed there is no basis for possible charges against that he must advised for those concluding punishment be of the possible if suffi charges proven. constitutionally Defendant’s waiver was Miranda cient. jurisdiction Magann

III. Trial court’s over Juror with Court was County Superior Defendant contends the Alameda Marie jurisdiction jurors, Magann, out this case because one of the try in Clara time of trial and was therefore not resided Santa at the County within jurisdiction. reject the trial court’s We contention. the examination informed the court

During jurors, Magann of prospective in Hill Morgan and counsel that she of (Magann) residing was then town in had re- County. Santa Clara This was undisputed. Magann apparently ceived a summons for because she had resided jury duty previously but Motor

Alameda she had not Vehicles County, Department notified however, (DMV) her change Magann, of her had crossed off address.

former had written her County Alameda address on her driver’s license and Hill Morgan address the back the license. court, following then colloquy ensued chambers between

Magann, counsel: far as not it having changed “Court: As [with DMV], you have time certainly might something long said office but at ago, this it’s too late I want to point you. get to excuse didn’t Magann: into Court: As any trouble. as we know? then long Magann: Okay. [Magann left the chambers It’s for the record my understanding Court: conference.] excuse; neither side wanted to challenge issue for cause her an is any give or correct, that right? Prosecutor: right. your That’s Defense counsel: That (Italics added.) honor.” 203,

Code of Civil Procedure (a)(4) section subdivision includes within the categories ineligible jurors, who are residents of the “[p]ersons not jurisdiction wherein are they summoned to serve.” contends Respondent there was no error under section 203 in serve as a allowing Magann juror because the evidence inwas conflict as residence. This asser- Magann’s tion is belied record. stated that she was Magann unequivocally residing Santa Clara County at the time of trial had changed and that she her address on her accordingly driver’s license. The she had fact that not timely notified the DMV of her address did her a change not render resident of Alameda County, neither the trial court nor counsel for either party made such assertion.

Respondent also asserts no error because county residency require- ment Civil Code of (a)(4) Procedure section subdivision was not enacted until trial in (Stats. 1987. ch. 1988—after 4144.) p. Defendant responds § that section 203 codified law and existing trial, thus to his but he applied does law” to which identify “existing 984 law, of incorrect. Code Civil

he is If he means he is referring. statutory 198, to current section statutory the predecessor Procedure former section 203, a resident of the “. . . shall have been that a competent juror provided immediately before year the one county city county state and or and of 3748, 1748, 29, 1971, (Stats. p. ch. returned . . being § selected and . .” 1975, however, added.) In amended section 198 Legislature the italics 1975, 172, 1, 317.) (Stats. p. ch. residency § the

deleting county requirement. Code of Civil the the amendment to language history Both the of 1975 the intended to delete Procedure section 198 make clear the Legislature in Assembly residency presented The amendment county requirement. if he

Bill “A act as a be: 1. juror as is to person competent No. 501 follows: ZZ'MZZZZZZZZZZZZ A of who age years citizen of United States of the 18 /^y<fWZMZ^ZZZV4ZZZMZZfZZW/WZtMZZWZZWZ<MM)WWAAZZZAZZZZZZ ZZMZ$ZZ0ZZZZZZZZZZZfyZZWMZ/ZZZZZZZZZZZ residency require- meets the (Assem. (1975-1976 Bill 501 Reg. state . .” No. ments electors this . . of of 1, deleted, added.) Sess.) language with marks italics strike language § The Digest “Existing pro- law Legislative explained, requires Counsel’s or county city to a resident of the state and of spective juror be returned. This year for one selected and

county immediately being before [][] bill that with that respect residency, provides repeals provision, requirements act as a if he

person competent juror residency is meets 501, 2 Bill No. of of Assem. (Legis. Dig., electors this state.” Counsel’s Sess.) 45.) (Reg. Summary Dig., p. Stats. 1975 the jurisdiction that a must be a resident of juror present requirement 2, 1988, 1245, (Stats. 4144.) The

did until 1988 reappear p. not 1988. ch. § because, amendment was law at existing statutory not codification of trial, a trial juror

time of defendant’s there was no statutory requirement 203, reside of trial. Because Code Civil Procedure section county of course, trial, we, (a)(4) subdivision was not enacted until after defendant’s do or in this to the extent we have except not construe statute case apply noted that it juror residency requirement does not reflect any statutory at time of defendant’s trial. existing trial, however, is law at the time of statutory dispositive his challenge

defendant’s claim error. he does not frame Although terms, Magann vicinage right Juror constitutional “The common law trial or the state county selected from the by jury vicinage implied (Hernandez (1989) Municipal v. Cal.3d Constitution.” Court (Hernandez), citing People 781 P.2d Powell 547] Hernandez, 481].) supra, Cal. 354-360 In 49 Cal.3d P.

713, we the Sixth Amendment to the right also considered under vicinage that, federal and held California the boundaries of Constitution “[i]n (Id., county.” at vicinage p. are with the boundaries coterminous added.) right constitutional

italics Defendant had a federal state in where trial was held. to a trial who resided the the by jurors county however,

Defendant, his The trial court right. waived vicinage specifically challenge asked counsel whether he to Magann, defendant’s wished Moreover, did having extensively questioned

counsel declined. he so after counsel, even on We made a defendant’s Magann voir dire. have clear that client, waive objection vicinage over the of his the explicit may properly 467, 915, (People (1988) v. 45 755 right. Cal.3d 937 Cal.Rptr. [248 Guzman 917].) P.2d

We also have held a long objection juror’s compe- to trial, first (People made on tency, cognizable after is belated and not appeal. 206, (1899) 1024]; 124 (1903)

v. Evans Cal. 210 People P. v. McFarlane [56 481, 138 568].) Cal. 490 P. not to this subject Defendant contends is rule in because cases the after prior was not discovered until incompetency trial, the in whereas this case he and the of the fully trial court were aware juror’s no in incompetency. argument has basis common sense or precedent. (or counsel) Defendant asks us to conclude that a defendant his to, who failed but should a juror’s have discovered incompetency, pre- trial, cluded from the raising after objection but that defendant who the juror accepted despite knowing of the juror’s is allowed to incompetency so object. 29,

Such is In (1872) not the law. People v. 43 Cal. a defendant Sanford convicted of murder objected time appeal first on to a juror’s ground on the competency that the juror’s name was not on the tax property assessment rolls. We rejected objection. “It duty was the defendant in the first have place to examined him his juror] as to competency [the

the respect to referred at the time the He seem jury impaneled. does not afterwards, to have made objection his to even competency but took his him trial before awith knowledge that his name was on the tax poll fact list only, not on the real or tax list. personal property Having deliberately verdict, taken his chance aof favorable he cannot heard object be now juror that a own his choosing lacking of this qualification (Id., 31-32, technical character.” at added.) italics We more pp. forcefully reiterated this People view v. Mortier 262: Cal. ‘“To permit themselves, verdict, to avail prisoners after of preexisting objections to the unreasonable, competency jurors, as a matter of would right, be but most mischievous its A consequences. knowing ... or prisoner willfully remaining ignorant of of a would incompetency juror, take

chances of a favorable verdict with him and if the upon jury; verdict adverse, necessary make the affidavit enough would readily should be ” added, Commonwealth (Id., at italics p. quoting avoid its effect.’ need (Va. 1859) 648.) depart We no from

Bristow 15 Gratt. see

well-established rule. use his all by failing peremptory waiver compounded of the jury, of the complain composition

challenges. appeal “[T]o (People v. Coleman must have exhausted those challenges.” 1260].) This rule has P.2d (1988) 46 Cal.3d If his case to be had desired genuinely foundation: pragmatic defendant could have tried did not include Juror jury Magann, that by Having exclude challenges Magann. one of his to peremptory exercised so, complaint on cognizable ground failed do defendant has fair or to no appeal. right

In had no to statutory at the time of trial defendant summary, his in the He did have a constitutional those who of trial. jurors county resided Magann by it as to Juror jurors, to such but waived vicinage right not a resident her full that she was object despite knowledge declining challenges. of the and to exercise all his county failing peremptory by if the trial court’s vicinage right,

Even defendant had not waived his His not been reversible error. her to sit on would have allowing jury in the Nothing on voir dire. Magann counsel Juror extensively questioned defendant, remotely against record she held or bias suggests any prejudice Thus, and inclusion Magann’s jury he does contend otherwise. and . . the death jury particularly apt impose penalty,

“. did not result was there which defendant was tried jury is no indication that before Coleman, supra, 46 Cal.3d (People other than fair and anything impartial.” 749, 768.) McCray

IV. Daniels Exclusion statements prosecutor’s Defendant erred in sustaining contends trial court testimony extrajudicial defendant’s as hearsay objection against proffered him Marta statements made to witness allegedly by McCray prosecution correct, error Daniels. Defendant’s contention is but the trial court’s partly was not prejudicial to defendant. Alleged by McCray

A. statement testified that he The defense was that killed the Brices. Defendant McCray began shooting. at store when entered present jewelry McCray McCray he fled the store he saw shortly Defendant also testified that after car, Boulevard, on and that he Foothill that driving McCray stopped when grounds with objected hearsay defendant. spoke prosecutor offer proof defendant’s counsel asked what had said. Defendant’s McCray him, that handed a and told McCray bag jewelry had to defendant like sell jewelry. “Here’s Would sell it?” or “Would you something you I want to sell it.” The trial sustained the jewelry? you prosecutor’s court objection. hearsay

Defendant contends the statement was not offered for alleged being the truth of the matter asserted but was nonassertive material background explained that mind defendant’s state of and conduct. Such extrajudicial Code, 1200; statements are not (Evid. hearsay. People v. Roberson § 666]; Jefferson, Cal.App.2d P.2d Bench- Cal. Evidence 1.4, (2d 1982)

book 58.) ed. illus. does not p. Respondent dispute § the proffered would have testimony showing, been relevant to such a but argues state mind was not a material issue. has the better view. To undercut defendant’s killed contention that the McCray Brices, the prosecutor introduced evidence that several witnesses had ob served defendant with large of like quantity jewelry that taken from Brice’s store. Defendant rebut this evidence attempted damaging showing that by he had taken the jewelry McCray McCray because defendant knew from

the killer and feared that if would kill him he did McCray not follow McCray’s commands. state

Defendant’s of mind and ensuing conduct—more the particularly, alleged reason he why took the from jewelry McCray—were disputed intermediate facts. “An intermediate fact of consequence an action is a fact from which the ultimate may fact be reasonably inferred. Interme diate facts include such the facts as state-of-mind . . . similar facts from which it may be inferred person possessing particular state of mind or emotion conducted himself in conformity with that state mind of Jefferson, (1

. . . .” 21.3, Cal. Evidence (June Benchbook 1990 supp.) p. § 199.) If the believed jury defendant’s assertion that he took from

jewelry McCray because defendant feared for his own safety, the jury could have reasonably rejected prosecution’s implication defendant store, had taken the from the jewelry which pointed to defendant implication as the killer. The reason defendant had some of the from jewelry Brice’s store was therefore an intermediate fact of consequence.

McCray’s alleged statement to defendant was relevant to this intermediate fact. (Respondent otherwise.) does contend “Proffered evidence rele- vant to prove evidence, or disprove disputed [j[] fact if: [][]... [s]uch sense, has, reason, reasonable by or common light logic, experience,

the inference, Jefferson, (1 fact.” disputed or such disprove tendency prove Code, 198; Benchbook, 21.3, 210.) Evid. supra, § p. Evidence § Cal. statement, have tended to would jury, if believed by McCray’s alleged jewelry. of the he had why possession defendant’s explanation prove relevant, nonhearsay was therefore McCray statement alleged testimony proffered erred in excluding The trial court

evidence. statement. McCray’s alleged

as to however, error, court sustained After the trial was not prejudicial. as follows: testify nevertheless allowed to defendant was objection, hearsay Did Michael give said to you. what Michael “Q: [McCray] You cannot say Yes, at that Q: What did he give you A: he did. at that time? anything you me tell Q: Did he tell what—don’t you A jewelry. time? A: of costume bag Yes, Q: he did. what do with it? A: he did but did he tell [say], you what Yes, Q: Did you I did. . . . A: jewelry? Did take this of costume bag you Yes, Q: I And where did. that kind of A: you jewelry? as best can recognize shop.” At Anthony’s before? A: jewelry [Brice’s] had seen that you type jewelry he received the his contention that support Defendant was allowed state- alleged trial excluded the court McCray. Similarly, although from as to testifying why from precluded ment defendant was not by McCray, jewelry. to sell stolen afraid of or McCray why attempted record, that a result reasonably the entire it is not light probable

Finally, reached in the absence of defendant would have been more favorable to 243].)1 P.2d (People v. Watson 46 Cal.2d

error. Daniels Alleged by

B. statement Marta Daniels, with for McCray Marta who had lived Prosecution witness sister-in-law, testified on direct was his “common law” several years defendant to give she asked morning killings examination that on “when he her he had but would have one money her a dollar and that told no Daniels, a “lick” meant a “robbery,” he with his lick.” To got through

“scam,” “con,” something doing or kind where for thing you get “any 15, defendant Daniels gave Later that same something wrong.” day, August later, $50 defendant with to some cocaine. Three she observed buy days and watches. jewelry 15, came Daniels to August

Defendant testified that on the afternoon of made a hearsay the house where defendant was staying. prosecutor law, to do so appears 1Defendant makes no direct claim of error under federal but he however, If, indirectly contending opportunity present he was denied a full to his defense. by violation, require would reversal prejudice there were a federal constitutional we find no that 705, 710-711, 18, Chapman (1967) under the rule of v. 386 U.S. L.Ed.2d California S.Ct. 24 A.L.R.3d 1065]. his when the substance of conver- defendant was asked to recount

objection was, offer “She proof [Daniels]

sation with Daniels that Defendant’s day. if I jewelry].)”

asked me had sold the stuff trial court sustained [the objection, being that Daniels was hearsay alleged inquiry explaining her offered that had told prove implied McCray truth of assertion he given had to defendant. jewelry Daniels as whether alleged question by contends had nonhearsay being sold the because it was not jewelry (i.e., McCray’s offered to the truth of the matter prove implicitly asserted of the jewelry) but rather to defendant’s state of mind and

ownership explain conduct of the We giving part jewelry to Daniels. the contention reject

two reasons.

First, in his offer of proof to the trial court defendant contended Daniels alleged inquiry by was not it the form of hearsay because was rather than a question statement. Defendant did not assert that the alleged was in inquiry relevant way state of mind or conduct. To an preserve alleged error for an appeal, offer of must inform the trial proof court of the “purpose, (Evid. and relevance of the excluded evidence . . .”.

Code, (a).) subd. This is accord § with “the rule that general questions relating to the will not admissibility of evidence be reviewed in the appeal absence of a specific and in the timely objection trial court ground

on the sought to be urged (1978) on appeal.” (People Rogers

21 Cal.3d 1048], added.) 579 P.2d italics

Defendant’s present contention as to his state of mind too comes late.

Second, Daniels’s alleged inquiry was irrelevant. Defendant contends

Daniels’s alleged inquiry would her help explain why gave he He jewelry.

seems (1) to reason as follows: Evidence that Daniels gave jewelry to

suggested to the jury that defendant had obtained the jewelry thus was killer; the Brice the alleged Daniels would have inquiry by contra-

dicted this implication, apparently by suggesting gave that defendant her jewelry because he knew she was a friend of McCray and that defendant was afraid of McCray because the jewelry to rather belonged McCray than to The defendant. first prong of this reasoning is not by the record. supported

Daniels did not that testify defendant her gave To the jewelry. contrary, she testified that he never gave her jewelry. At the time of offer of defendant’s there proof, was no evidence he given had jewelry to Daniels. The reason he

why gave her allegedly the jewelry was irrelevant. Moreover, the subsequent record makes clear that the alleged inquiry was being introduced for a hearsay After purpose. the court excluded trial

evidence, he Daniels given approxi- testified had defendant himself that from had obtained allegedly of that defendant jewelry one-half mately to contrary which was testimony, The of this purpose obvious McCray. gave that defendant suggest jury

Daniels’s was to to testimony, to rather than her friend belonged McCray, to Daniels it to because jewelry assertion, turn, to support would have tended That defendant. implied robbery killings. claim committed McCray defendant’s that the truth of therefore to by prove of the Daniels was alleged inquiry

purpose than to to rather belonged McCray assertion that the implied jewelry of jewelry Defendant’s own as to transfer testimony defendant. that Defendant’s contention

Daniels was meant to exonerate himself. of on his transfer implication alleged needed to refute harmful based evi- the fact defendant himself introduced to Daniels that jewelry ignores err defendant’s excluding dence of the The trial court did not transfer.

testimony as to the Daniels. alleged inquiry by have if excluded would testimony

Even were correct that the he gave mind why demonstrated his or his conduct—the reason state inquiry as to Daniels’s testimony alleged to Daniels—exclusion jewelry her the was that he testify gave was not allowed prejudicial. he did The choice why and he could have further testified as to so.

jewelry, Moreover, of proof, do so was own offer according not to his. was whether defendant had sold alleged

Daniels’s question simply have almost to defendant’s nothing This would added jewelry. question that he afraid of It is not reasonably probable contention McCray. would the entire that a favorable to defendant record result more

light if had been admitted into evidence. have been reached the alleged inquiry Watson, 818, 837.)2 46 Cal.2d (People supra, accomplice Admission without extrajudicial by McCray

V. statements cross-examination answer He refused to

McCray by prosecution testify. called against questions, invoking constitutional self-incrimination. privilege with and both prosecution provide McCray immunity, declined to rendered McCray’s invocation of his parties acknowledged privilege Code, 240, him re (Evid. (a)(1); a witness. In legally unavailable as subd. § 229].) They Weber Cal.3d 523 P.2d agreed also of his statements declarations many extrajudicial were alleged McCray, 2As with the statements defendant makes no of error under direct claim If, however, violation, law. prejudice federal there were federal constitutional no we find 18, require Chapman California, supra, that would reversal under v. 386 24 L.Ed.2d U.S. [17 (Fn. ante.) 710-711].

991 the and as an to exception his interest were thus admissible against penal Defendant, Code, (Evid. 1230.) rule in hearsay light unavailability. of his § however, in the moved to permission McCray jury’s presence. for question The motion was denied. McCray’s extrajudi-

Defendant contends on that the admission of appeal the violated defend- cial statements without cross-examination opportunity Const., (U.S. constitutional him. right against ant’s to confront the witnesses Amend.; Const., I, 15.) 6th Cal. He in arguments support art. makes three § of this contention. As we shall there no error. explain, was reversible right jury’s

A. No in the require privilege to invocation the of

presence

We reject denying defendant’s contention that the trial court erred his motion to to invoke in his require presence jury McCray against The an privilege self-incrimination. trial court conducted in limine counsel, at which hearing McCray, who was was sworn as a represented by defense, He briefly witness. both questioned by but prosecution except for that he knew him in admitting identifying defendant and

courtroom, refused to answer Brice McCray questions regarding the It killings. clear would his McCray continue to assert privilege.

Both the prosecution defense declined to continue him. questioning

No valid would purpose have been served by McCray to reassert requiring here, “Where, his privilege the presence jury. of the it as is apparent

the witness would have offered no to testimony response posed, questions it is not for the trial improper court to determine that fact in advance and excuse the witness.” (People Cornejo (1979) Cal.App.3d instance, 238].) “In such require renewal of the invocation

the privilege before jury would amount to a merely meaningless ritual.” (People v. Johnson 545].) Cal. The Cal.App.3d Rptr lack of any purpose such a ritual is in this especially apparent case.

only conceivable reason for requiring McCray invoke his privilege would jury’s presence have been to inform them of the reason he did why court, however, not testify. that, The trial informed the “The jury court notice

taking judicial of and hereby advising jury that Michael McCray was called as a witness in this case outside the presence and that jury, Michael McCray with advice of his counsel testify, basing refused to upon his constitutional privilege against (Italics refusal self-incrimination.”

added.) The jury was clearly adequately informed the reason why did not McCray testify. jury was not left to as to speculate why McCray’s statements were admitted into evidence without his having

992 in the jury’s presence his privilege to invoke testify. Requiring McCray purpose. would have served no proper

Rather, the jury the before invoking privilege purpose the only apparent is, to allow that question, into McCray’s credibility would have been to call very were unreliable extrajudicial infer that his statements jury weAs his testimonial invoking privilege. reason that he was subsequently however, Evidence by such inference is prohibited recently explained, 408, 913, 2 (1992) Cal.4th (a). (People Mincey v. Code section subdivision 822, (1991) 388]; 53 Cal.3d People 441 P.2d v. Frierson 827 Cal.Rptr.2d [6 440, 1197].) P.2d 743 808 Cal.Rptr. [280 law, People in v. Chand- relying a conflict California on Defendant asserts His reliance is (1971) misplaced. ler 17 798 Cal.App.3d [95 146]. Johnson, (Johnson), supra, in 749 cor- People Cal.App.3d

The court v. 39 no pretestimo- as court held that rectly Chandler follows: explained “[T]he of the privilege is in order to the invocation required nial hearing precipitate however, Chandler, 804-805). not at That does (People supra, holding, pp. not be held hearing may that such a proposition pretestimonial

stand for in entitled the privilege.” order to determine whether or not the witness is italics.) The court (Johnson, Johnson supra, original 39 Cal.App.3d observed, however, Chandler, the court in supra, Cal.App.3d 17 in in the jury’s had dictum that the should be invoked suggested privilege court, 749, that supra, 39 Cal.App.3d We with the Johnson presence. agree 804-805, Chandler, in at supra, pages suggestion Cal.App.3d and we Chandler to that extent. disapprove unpersuasive, a decision extensively by Pennsylvania

Defendant relies even more 391].) (Commonwealth A.2d Court. v. Sims 513 Pa. Supreme court, Like we support the trial conclude that Sims does case, the defendant a murder trial claimed present

view. As (Id., at innocence and contended one of his accusers was the killer. p. accuser, Hilton, 395].) at The from granted immunity A.2d p. The attorney and testified at trial the defendant. defense

prosecution against Hilton to his by to cross-examine Hilton as to communications sought by These communications were from disclosure attorney. protected contended, however,

state’s The defendant statutory attorney-client privilege. that the witness have “to claim his ‘attorney-client should been compelled (Ibid.) The “. . . the privilege’ jury.” agreed front of the court because jury reasonably provided invocation of that before the could have privilege the basis for that tribunal to that witness question accusations made however, case, (Ibid.) against jury present accused.” against

informed that had invoked his self-incrimination. McCray privilege in the unfairness that concerned the Sims arise potential court did not present case. court, 391],

More the 513 Pa. 366 A.2d supra, Sims important, [521 decision, limited not draw inference noting its that explicitly jury may of “. . here we are from a witness’s exercise a constitutional and that . right rather that is of not concerned with a constitutional but one privilege 377, (Id., 396].) fn. 1 at A.2d at statutory origin.” p. p. privilege [521 is, course, On its against constitutionally self-incrimination mandated.

face, Indeed, Sims defendant’s claim. after Sims was does support decided, Pennsylvania’s intermediate court rejected precise appellate A claim made defendant. called to the defend- by testify against witness was ant, case, in the present against but as the witness invoked his privilege in self-incrimination when questioned Relying outside jury’s presence. Sims, held,

part on “We find court no merit contention that appellant’s he was denied the of confrontation refused to right because trial court allow DeLeo’s invocation of self-incrim- privilege against [the witness’s] 356, (Commonwealth (1988) ination before the v. jury.” Yabor 376 Pa.Super. 67, 69].)

361 A.2d [546

We hold that the trial court did not err in refusing to require McCray

invoke his privilege against self-incrimination of the presence jury.

B. No right to McCray cross-examine trial at

Defendant contends his constitutional to confront the right wit nesses against him was violated because he was not allowed to cross- examine McCray regarding extrajudicial statements that were admitted into He evidence. (1972) relies principally Chambers v. 410 Mississippi 297, U.S. 284 L.Ed.2d 93 [35 S.Ct. for the court’s observation that the 1038] right of cross-examination “is in the implicit constitutional right confron (Id., tation . . is, . .” at 309].) 295 p. L.Ed.2d at That [35 p. principle

course, indisputable under both the federal and California Constitutions.

(Delaware 673, (1986) 674, Van Arsdall 475 U.S. 678 L.Ed.2d [89 682-683, Const., 1431]; I, 106 S.Ct. Cal. art. 15.) The question raised §

defendant, however, is whether his right constitutional to confront the wit nesses him against supersedes witness’s constitutional right against self-incrimination. The answer is In Washington clear. v. Texas 388 1920], U.S. L.Ed.2d [18 87 S.Ct. the court held federal constitutional right process compulsory (U.S. for obtaining witnesses Const., Amend.) 6th applies to the states through Fourteenth Amend cautioned, however, ment. The court “Nothing this should opinion be construed as disapproving testimonial privileges, such privilege as the against (388 . . . .” U.S. at fn. 21 at p. L.Ed.2d p. self-incrimination 1025], added.) italics Defendant was not entitled to have McCray deprived of McCray’s constitutional right against self-incrimination. statements McCray’s extrajudicial Admission

C. characterization, objection main his own

By defend admission violated is that their statements extrajudicial McCray’s defined as and cross-examination of confrontation rights ant’s constitutional L.Ed.2d 126-127 (1968) 391 U.S. v. United States Bruton Cal.2d (1965) 479-480, v. Aranda (Bruton), People S.Ct. 1620] 353, is (Aranda). 518, principle 407 P.2d 265] Cal.Rptr. 528-530 [47 self-incrim extrajudicial codefendant’s nontestifying well established: “[A] unreliable generally is defendant other inculpates statement that inating of confrontation right defendant’s violative of that inadmissible as and hence (People v. cross-examination, given.” if instruction is limiting even and 585, 1306], 1104, P.2d 742 Cal.Rptr. 1120 (1987) 43 Cal.3d [240 Anderson added.) italics it within the “Bruton-Aranda” bring arguably might of this case

The facts Aranda, 123; 518). 63 Cal.2d supra, U.S. (Bruton, supra, 391 proscription self-incrimination, did not against invoked his having privilege McCray, an status as McCráy’s view that There for the authority at trial. is testify consequence. is of no rather than as a codefendant uncharged accomplice 199].) (1976) Cal.Rptr. 194 Cal.App.3d [135 Coble 65 (People v. defendant, clearly inculpated to the police statements

McCray’s extrajudicial apparent There is no other otherwise. and does not contend respondent need and do We not introduced the statements. reason why prosecution however, decide, excluded should have been whether the statements not Bruton-Aranda on the objected if and timely specifically defendant had grounds. however,

Defendant, his waiving present objection, thereby made no such above, to the introduction response contention. As explained cross- have been to subjected was that should McCray statements

McCray’s or, his Fifth Amendment to invoke required examination been alternatively, he on defendant contends appeal, Even now jury’s presence. privilege have should McCray, McCray was denied the to cross-examine right at a minimum to and that testify, been granted immunity compelled the jury. invoke his before privilege should have been McCray required inadmissible on Faced with evidence that is These miss the mark. arguments statements, is to exclude the objection Bruton-Aranda grounds, proper If the declarant is properly the declarant to cross-examination. subject cross-examination, in the first no Bruton-Aranda arises subject problem instance. on Bruton- specifically

The record not show that defendant objected does timely Aranda to admission of statements. “Absent a grounds McCray’s his objection on the defendant now asserts

specific ground appeal, (1992) (People contention deemed waived.” v. Mitcham Cal.4th waiver of 824 P.2d Bruton-Aranda Cal.Rptr.2d [finding 1277] 754, 786, People fn. 7

objection]; Benson Cal.3d 330].) 802 P.2d defendant his to the objection Not did withhold statements, to, their sought, defendant himself indeed admission. agreed After McCray was called as a witness and made clear that would invoke Fifth Amendment his defense privilege, prosecution agreed was unavailable as a witness under Evidence Code 1230 and

McCray section that his extrajudicial they statements could be admitted to the extent were court, In against declarations interest. a discussion with trial penal stated his

prosecution understanding that wished to such introduce otherwise, statements by McCray. Defense counsel did not contend and in fact, thereafter, shortly he confirmed his intent introduce McCray’s state ments. court,

The trial prosecution, and defense to review proceeded McCray’s in statements detail to determine which of them were admissible as declara against tions penal interest. Defense counsel informed the court the only that disagreement would be as to which of were McCray’s inculpatory statements and therefore against his At interest. no time this did penal during process defense counsel object to of statements in whole or McCray’s part based on the Bruton-Aranda rule. Defendant has Mitcham, waived any objection on that ground. (People supra, v. Cal.4th 1027, 1044.)3

Even raised, if the objection had been timely the record demon- amply strates that of admission McCray’s statements was not to prejudicial (Chapman California, defendant. supra, 386 U.S. L.Ed.2d

710-711].) The most an telling sign of absence of is that defendant prejudice 3Defendant respondent contends on appeal that alleged has conceded the Bruton-Aranda error respondent because does not that respondent’s address issue in brief to this court. We reject this above, novel contention three (1) for reasons: explained As is the one defendant who waived the alleged by Bruton-Aranda failing (2) error to it in raise the trial court. In bis brief, own opening primary argument against McCray’s the admission of extra judicial statements was McCray testify should have been to subject forced and be Respondent cross-examination. fully respond did argument, to that and defendant does not (3) contend otherwise. We decline to find a nothing waiver based respondent’s on more than to respond failure to defendant’s argument, Bruton-Aranda which was itself raised for the first time on appeal. Such rule would require party respond opponent’s every to his argument, subargument, allegation, no briefly matter how meritless or A made. failure respond opponent’s matter, to an argument may be unwise aas tactical but such failure does law, not warrant the inflexible rule proposed by defendant. That is and we disapprove brief and unsupported suggestion to the contrary People v. Adams Cal.App.3d 290].) 992 [192 the obvious large part, statements rely McCray’s himself sought him. When the help exculpate would thought they reason that defense and the prosecution, were reviewed with the trial court statements stated, much “I have too of a problem foresee that we won’t really counsel interest, against penal which are what are

deciding penal declaration[s] made few very Defense counsel correct. prediction proved interests.” that, “The fact He contends on appeal to the admitted objections portions. not constitute made does by McCray used certain statements

appellant Defendant, however, even fails made by McCray.” waiver of all statements were allegedly McCray’s which statements identify portions now to effect, to which In this court to as speculate defendant asks prejudicial. allegedly admitted and which were portions prejudicial wanted

portions to him. It is not incumbent on us to do so. defendant, however, we have carefully

In an abundance of fairness to the jury that were admitted to reviewed the statements portions McCray’s that, with reflects and the which were admitted. record process by they or actively sought acqui- two minor defense counsel either only exceptions, were Trial counsel’s esced without to all admitted. objection portions desire—or, minimum, the jury such evidence to at a willingness—to put that the evidence was against prejudicial. claim on weighs heavily appeal Moreover, the few raised objections the trial court considered carefully

counsel, result, statements to McCray’s and as a two brief portions One was as follows: the were admitted over defendant’s police objection. now, do, I Michael

“Q: What did tell to er mean you Anthony defendant] [the he He it. He said gonna pay to do the bill he owed A: was regarding you? “Q: was: objection

was to cash.” The other admitted over going pay portion Did Mike of the day on that occasion you give gun [the [defendant] No, he had it. I don’t when he came A: When he came killings] by? by? Q: if him Mike it you

know he had it on then or not. Did back to give No, he he tried to Q: it back to Mike? A: Then? Yeh. A: after came you give defend- against it to me.” In the extensive other evidence give light back of ant, were we conclude these two isolated of statements portions McCray’s not have contributed beyond they harmless reasonable doubt because could 18, 24 L.Ed.2d (Chapman California, supra, to the verdict. v. 386 U.S. [17 705, in 710-711].) the The fact that defendant or requested acquiesced admission much arguably damaging portions more extensive and more statements further our conclusion.

McCray’s supports accomplice McCray

VI. Absence instruction that was defendant’s the instructing Defendant contends the trial court erred not sua sponte “if in the Brice that it determined jury appellant participated [defendant] an as a matter law and his robbery/murders then was McCray accomplice There reject must viewed with We the contention. testimony be distrust.” error, no and there no was was prejudice.

Defendant testified that he the locked store and McCray entry allowed into that shot the Brices. Defendant admitted he knew when he McCray opened the that contended this McCray going prosecutor door was to rob Brice. it for

testimony, although shooting seemed to shift blame the actual

McCray, gave rise to an additional of defendant’s theory culpability murders, that of an aider and abettor. an instruction prosecutor requested that was as a matter The trial court McCray accomplice defendant’s of law.

sustained objection to instruction. proposed

A. No error that,

Defendant contends had a trial court despite objection, sua sponte duty give the instruction he it now advocates. He asserts

different from the instruction at trial instruc proposed because present tion have would to find that was an required jury McCray accomplice jury determined that participated robbery if defendant himself and killings. Even if the two were meaningful instructions different conclusion, respect, dubious the trial court had no sponte give sua duty the instruction defendant now for the first time. proposes argues effect, incorrect, not that the instruction which he objected but instruction now been proposes would have more accurate based on the “ rule, however, facts. The ‘A is that party may complain on appeal an instruction correct law and responsive to the evidence too general or incomplete unless party has am requested clarifying or appropriate plifying language.’” (People Sully (1991) v. 53 Cal.3d 1218 163], 812 P.2d Cal.Rptr. quoting People Lang 49 Cal.3d 627].) 782 P.2d

Moreover, the proposed instruction have been more might harmful than to helpful The defendant. of gist (1) defendant’s argument that: the jury if crimes, believed that he participated (2) the was McCray accomplice, and McCray’s be testimony should viewed with distrust. The point of this contention seems if to be that the viewed jury McCray’s with testimony distrust, would have they concluded that defendant was not the actual however, shooter. To reach this point, the had jury would first have

conclude under the instruction that defendant himself in the participated That killings. conclusion seems to us far more than damaging the mere Moreover, admonition to distrust McCray’s testimony. informing the by jury that McCray (rather accomplice than defendant Mc- being Cray’s the accomplice), instruction led might have to believe that jury well the reason (That be may of the two. defendant was the more culpable best, instruction.) At the instruc- never such trial counsel why requested worst, us); it could at as it (just perplexes have confused the jury tion would We decline McCray. the acts of defendant based on have led them to convict of an instruction conjure up duty on the trial court a sua sponte to impose such dubious benefit. at decisions defendant’s own of no error is reinforced

Our conclusion as to jury how to instruct The trial court considered carefully trial. in the court’s counsel concurred and defendant’s testimony,

accomplice the point: demonstrates following excerpt instruction. proposed we went over 3.10. This is one

“The Court: Next we have [CALJIC] in that each side where—unusual because this is a situation quite—again, was an accom- McCray an that a sense accomplice, feels the other was McCray Hill an of accomplice defense that standpoint, from the plice has, course, store], discussed this him in The court of Brices’

letting [the H[] the accomplice which we decided is that things at and one of the length, of accom- in weighing testimony instructions are meant to assist the jury The defense the need testimony accomplices, and to corroborate plices ffl statements, from only not to distrust obviously jury McCray’s wants stand- Attorney’s an and from the District what it here is says accomplice also from the of the but gun giving part proceeds, and point giving shot, we in and So he thinks he’s the one that did it and went standpoint can theory argued have neutralized extent to show that either be to some give

I I’m to do is going will leave it to each of What you argue. that, ‘or the conclusion of 3.10 and add the clause at following [CALJIC] offense,’ because the act such personally constituting himself committed under the of the other accomplice the coactor would each be an obviously here, free to you argue facts which we have So that leaves each one fit] is the accom- the District that Attorney’s standpoint obviously McCray from Hill, him thereafter the proceeds and shared plice having given gun so, standpoint him doing and knowing intentionally from defense standpoint he McCray accomplice, is an but

argue from an [McCray] really did it and that Hill let him in and was therefore himself accomplice, give necessary accomplice court would thereafter [f] 3.11, them judging carefully, instructions about corroboration [CALJIC] 3.12, 3.14, and it was agreed 3.18. The court is 3.13 intentionally giving were about one not corroborate another. they talking may accomplice case, Both sides felt that did not this correct? counsel: apply Defense Yes, added.) (Italics The your your That’s correct honor. Prosecutor: honor.”4 in the court’s that defendant concurred trial foregoing shows colloquy peculiar crafted to instructions that fit the give carefully attempt accomplice facts of this case.

In accomplice of defendant’s to the initial instruction light objection by crafting the trial court proposed acquiescence participation is basis accomplice ultimately given, instructions there no on principled which give to conclude that the trial court had a sua sponte duty instruction now defendant.

unique by proposed

B. No prejudice

Even if stretch of imagination some we were able to find (which error do), we decline we be would unable to find any prejudice above,

defendant. As instruction have been explained proposed would Moreover, dubious benefit to defendant. based on the versions of competing facts, (Defend was the McCray of defendant. possible accomplice ant not otherwise.) does contend instructed that defendant jury fully could not be found on guilty based an without accomplice’s testimony corroboration and that an should be viewed with accomplice’s testimony distrust. Finally, considerable other and evidence in damaging more addition to McCray’s testimony to defendant as the killer. It is not pointed reasonably that a verdict probable more favorable to would have defendant been reached if the instruction had given been the form If had there been requested.

error, Watson, it would have been harmless under any (People standard. v. 818, 836;

supra, 46 Cal.2d Chapman California, supra, 386 U.S. 705, 710-711].) L.Ed.2d Alleged spectator

VII. misconduct Defendant contends three instances of remarks mandate reversal. spectator “We have found no California cases which reverse a because of judgment spectator 1006, 1023, misconduct.” (People v. Lucero 44 Cal.3d fn. 1342].) 750 P.2d This will not the first. be Any and,

objection waived, to the event, remarks spectators’ in any they were isolated, prejudicial. three instances were brief and of them two innocence, were unrelated to guilt or and the jury was properly admonished to disregard spectator remarks. 4The instruction ultimately given was: “An accomplice is who subject one prosecution identical charged against offense trial. To be an accomplice person aided, must have promoted, encouraged instigated by or act or advice the of such commission knowledge offense with of its purpose unlawful person who committed offense or himself personally committed constituting the act such offense.”

1000

A. Waiver of spectator neither to of the three instances objected any disregard jury the trial court to admonish requested

remarks nor of the remarks. failed for a mistrial after remarks. He also to move action waived Ms ameliorative Defendant’s failure to request appropriate object A defendant’s failure to to the remarks. appellate challenge waives misconduct a curative admonition for

request alleged prosecutorial cured the if would have the issue for and admonition appeal objection 495, 1, (1992) 2 Cal.4th (People Cal.Rptr.2d misconduct. v. Visciotti 79 [5 1248; 1195, 388]; v. Green People 53 Cal.3d People Sully, supra, 825 P.2d v. 1, 1, 468].) no reason

(1980) 609 P.2d We see 27 Cal.3d 34 Cal.Rptr. [164 Indeed, misconduct. spectator the same rule should not why apply alleged as a authority does not wear the same cloak of official spectator because will be more likely easily most instances of misconduct prosecutor, spectator misconduct curable than those of a Prior decisions on prosecutor. spectator the issue on appeal. that a defendant cannot first raise implicitly suggest granted has been whether the trial court should have invariably

question misconduct. defendant’s motion for a mistrial based on alleged spectator 1006,1022; Lucero, 44 (1987) supra, People 44 v. Miranda (People v. Cal.3d 57, 594, 1127]; 86 People Craig Cal.3d 744 P.2d v. Cal.Rptr. [241 676]; (1975) 52 People v. Slocum Cal.Rptr. Cal.App.3d [150 442]; (1984) 154 People Spain v. Cal.App.3d Cal.Rptr. 882-883 [125 555]; (1945) 70 People cf. Cal.App.3d Horowitz spec P.2d Cal.App.2d object particular 833] [failure In cases was the tator’s waived issue on none of those presence appeal].) issue raised for the first time on appeal. A defendant’s

We now make what has been clear. explicit long implicitly alleged failure to to and a curative admonition for object request spectator if misconduct waives the issue for and admonition appeal objection below, would have cured the misconduct. As mis- explained spectator cured) (and by appropri- conduct tMs case was curable fact was easily His claim ate admonition. Defendant tMs case no amelioration. requested waived. misconduct is spectator prejudice B. Absence of issue,

Aside from defendant’s waiver of the Ms claims of reversible misconduct are baseless. spectator

1. First remark Mrs. Brice trial, Dr. Thomas who was the first witness at Rogers, pathologist testified that had been found Brice’s urine A morpMne during autopsy.

woman, mother, as Brice’s the follows: interrupted questioning apparently “Q: Mr. Do have idea kind it have that you may what of substance been any Brice he had had taken? Most this would have been heroin unless likely, A: a on in son has never used been for—Woman Audience: prescription My needle. He’s never used a needle. The Court: Ma’am. Remain outside. Well, know, in The

Woman Audience: he never needle. Court: you used We’ll take a moment recess Ask the witness to outside till please. step [sic] she will to after this composes Spectator herself. have remain outside until is I in testimony believe. She come back afterwards.” completed may

This brief comment was and on the first of a trial that day guilt phase more than 24 calendar had to spanned days. nothing The comment do with guilt or the innocence. court’s order for to leave spectator the courtroom made clear to the her remark jury was More- inappropriate.

over, trial, at end the of the first of the court admonished the day adequately that, “We jury did have a brief statement of who somebody audience occasion, second, said something one I certainly on a maybe admonish them and will continue to all admonish the audience not persons to if say And anything. you did hear any words or noticed any anything, reaction I by spectators, tell you must not in let any tilings these affect way you. disregard Now Completely them. someone the audience obviously

not under oath and their have value you reactions no as the whatsoever finders of fact. As I say, hopefully, there will be further like things no

occurring, but please just In disregard them.” of the nature and light circum- it, stances of the comment and the court’s forceful admonition to disregard there is even basis on plausible which we could find prejudice

defendant.

2. by Remark spectator unidentified trial, Brice,

Later on the first day of Darlene who was Brice’s wife mother, and Anthony’s being “Q: was examined prosecutor. When

was funeral? What date funeral of your son husband? your 21st, A: August I Q: believe. August A: 21? Yes. Member the Audience (unidentified): Twenty-first.The (Italics added.) witness: Yes.” This is barren in which ground to root a claim of prejudice. This momentary, two-word utterance did not refer to defendant or the circumstances the crime. date,

Defendant contends mention “made it clear that members audience were very close We are case.” not persuaded. and, true, assumption is if questionable even fails to prejudice. show

Moreover, that, the trial court cautioned “I immediately heard something from the audience. made a Somebody statement as to the answer to

question, but somebody the audience must not speak out in way, above, or form.” And admonished at shape firmly as explained jury the end of the day disregard spectator remarks. during closing argument

3. Remark

During closing guilt argument, defense counsel phase Hill, as follows: Michael to his interrupted according testimony, “[Counsel:] and, know, evidence, never you how the had the depends you interpret intent specific permanently to such of the deprive person [the victims] Where in in the evidence do see him the property. you depriving—where evidence do see Hill you anywhere of Michael himself that intent having if he he permanently deprive possessor says of his does what property see, I’m did? You Michael Hill everything saying being is conditioned on that, an (unidentified): aider—Member the Audience make him Don’t it like of kids, I killing my all had. The Court: Ladies and Gentlemen—Member of record, (unidentified): Audience I That was all For the ladies had. Court: someone in the gentlemen, audience has left the courtroom and was left, saying some words as she in I tears and realize it’s apparently upset.

difficult but must lock that from in you minds and consideration all your continue, ways, and forms. I’m shapes for the You sorry interruption. may (Italics added.) counsel.”

The record does not establish the of the identity Both spectator. respon- mother, dent and defendant state that she was Brice’s the same who spectator trial, spoke out on the first day of and the nature of remarks support

conclusion. We will therefore assume it to be correct for the purpose however,

discussion. Her does not affect Even if identity, our analysis. somehow

jury surmised from her (on comments and her prior interjection mother, trial)

first day she was Brice’s In there was no prejudice. Lucero,

People supra, Cal.3d we a claim rejected of prejudicial case, spectator misconduct on facts far more in egregious than here. As this the mother of a murder victim became hysterical during guilt phase closing argument. Her outburst was far more extensive and chilling case, and, as it did

(relating screams) to the victim’s than we present as it, the trial put (Id., court’s admonition was 1021-1022.) at We “cursory.” pp. case, abbreviated,

found no In the prejudice. present the outburst was and the that, jury promptly admonished. We “In thoroughly reiterate such [i.e., Indeed, cases spectator prejudice it is presumed. misconduct] admonition, assumed generally that such errors are cured unless

record demonstrates the misconduct resulted miscarriage justice.”

(Id., 9.) at p. fn. record this case establishes no prejudice. Issues

Juror Selection prospective jurors

I. Exclusion cause Defendant contends the trial court erred granting prosecutor’s request jurors to exclude three from the for cause based on prospective panel their stated reluctance (Witherspoon the death v. Illinois impose penalty. 510, 516, 776, 781, 785,

(1968) 391 U.S. fn. 9 & fn. 21 L.Ed.2d

S.Ct. [Witherspoon] and Wainwrightv. Witt 469 U.S. 1770] 841, 851-852, 844].) L.Ed.2d 105 S.Ct. We find no error. Prospective

A. juror Harry Kreisler

Defendant has waived his objection Harry to the exclusion of Kreisler. record reflects the between the court and following colloquy counsel after Mr. Kreisler “The I immediately was excused for cause: court: wanted just to make the record clear their actions that felt that by both sides where something he should probably be excused. Mr. Selvin [defense record, Yes.Mr. Anderson I [prosecutor]: counsel]: For the did the impose I challenge. don’t if know it was I picked Levy for the record but did. Mr. up Think of the he great arguments [defense could have had with the counsel]: (Italics other jurors.” added.)The record is Defense counsel unequivocal. in

joined the request to excuse Mr. Kreisler for cause. The objection comes too late.

Even if the objection were we would it. defend timely, reject “[A] ant’s Sixth and Fourteenth Amendment to an right impartial jury is not compromised the by excusal of a whose views about prospective juror capital punishment the ‘definite give that impression’ those views would ‘ or “prevent substantially the in impair performance juror of his duties as a ’ ” Visciotti, accordance with his and instruction his oath.” 2 (People supra, v. 1, 45, Witt, 412,

Cal.4th quoting Wainwright v. 424 supra, 469 U.S. [83 841, 851-852].) L.Ed.2d More the determinant specifically, is “whether the juror’s views about capital punishment would or prevent juror’s impair return ability to a verdict of death juror.'” in the case (People v. before Visciotti, 1, 45, supra, 2 Cal.4th added.) fn. italics After exten sive questioning, case, and being informed nature of the crimes this Mr. Kreisler was pressed by for an prosecutor unequivocal position.

“You’re to have going to have if situation where you are either not [sic] court, foreman but on the jury panel you’re to be asked this going by the your true and original verdict. You’re to have going to look at the and lawyer defendant, face, maybe family say, yeah, I’m condemning you to die. That’s the bottom line. my You are dying 1004 Now, me decide I want A: don’t know. You could do that? you

verdict. now, A: Q: Judge Byers’ question. I Either for or my question

right guess. Well, longer, the matter bit I I The trial court then pursued couldn’t.” guess verdict the death penalty “Could concluding question: you impose with this be, state, that knowing individual verdict and if need that is true and yes, my death?” Mr. Kreisler responded, it will mean that this will be put person “No, would clear that his views I think I could.” Mr. Kreisler made don’t There was no t his case. the death impair ability impose penalty 1, 45, Visciotti, 16.) Even viewed most fn. (People supra, error. Cal.4th defendant, of Mr. Kreisler’s answers the best that could be said generously determination to The trial court’s is that were they conflicting equivocal. (1989) 47 (People him v. Johnson binding

excuse is therefore on this court. 1047]; People v. Morris P.2d Cal.Rptr. Cal.3d 152, 186, 949].) fn. 807 P.2d 53 Cal.3d Prospective juror Scott Moore B. he whether could also sufficient doubts as to

Scott Moore raised he would not He began by stating the death this case. impose penalty death and went on to explain vote automatically against penalty it,” but that had against earlier he had been years ‘totally

about 10 to 15 After told being it for serial murderers. come to believe that was appropriate case, in he was defense counsel. by the nature of crimes this questioned this, or the other? leaning way “As about do have one you’re thinking you know, I in I earlier even came A: You should have about this before thought here, micro to into the speak to tell truth. . . . admonition you [Court could, know, I if I the choice of through don’t know phone.] honestly you get I I if could life him don’t know getting honestly without without out. parole if I I don’t know really the death be honest with penalty, you.

vote for to Q: is—A: Q: question to know. A: Yeah. But the okay you could. It’s for mean, but, know, the rest hearing I I can do life without without parole, you case, could, know, I if I vote for the death you penalty.” of the don’t know he in further defense could questioning Mr. Scott then stated to response “consider” the death penalty. one then Mr. Scott. “Were we to use a scale of prosecutor questioned it ten . . that one is a would almost never assuming impose . who person would, death sometimes and ten we have most strident penalty],

[the advocate of the a numerical you yourself death can see penalty, placing Yeah, That classification of where would stand? it would be the one. you A: most, know, In he would be the to further you yeah.” response questions, that, “I “I if I stated don’t know could repeatedly really [impose death]” answer, he re- definitive I When for a more think could.” pressed don’t IIf can’t I no then. guess now. right want a or no answer yes “You sponded, I that’s the answer.” guess be positive, asked, mind for one or your open “Can you keep the trial court

Finally, the one other, not be may that other one have to be able to vote for you but . . . the death penalty. I think I vote for want? A: don’t could you I have have a or no. A: No.” yes

Court: have had almost clear that would Mr. Scott’s answers make amply He was properly the death difficulty penalty. insurmountable imposing 16; Visciotti, People fn. supra, Cal.4th (People excused for cause. v. 152, 186, Morris, 4.) fn. supra,

v. Cal.3d Prospective juror Soper

C. Colleen that, Colleen initial to the court’s Soper’s response questioning “I feel she Although equivocated would about the death uneasy penalty.” doubts as to further she

response expressed significant questions, repeatedly “I say to whether she the death for can’t example, could vote for penalty,

I then would want see die whatever reason.” Ms. anyone Soper the death “Q: defense counsel. beliefs with questioned by regard Your Yes, I have to are based on A: would penalty, they any religious principles? it and against are

say yes. My parents they’re totally Jehovah Witnesses trial, I I I told them that this sort of thing, was involved this sort of just don’t feel well I very myself about it. don’t have a chosen belief really Ibut don’t feel right about it After further examination personally.”

court, Ms. the death twice made clear that she could not vote for Soper in this case. Her make excused penalty properly answers clear that she was 16; Visciotti, 1, 45, (People People for cause. fn. v. supra, Cal.4th Morris, 152, 186, supra, 4.) 53 Cal.3d fn.

II. peremptory challenges Prosecutor’s exercise of

Defendant contends the exercise of chal prosecutor’s peremptory to six lenges jurors alternate) one who held reserva prospective (including as tions to of the death violated his constitutional propriety penalty rights to a fair and and because the impartial jury equal protection procedure resulted in a him necessarily more to execute than not to do so. jury willing Defendant waived in to the object error this to regard by failing Morris, 152, 186.) prosecutor’s challenges. (People supra, v. 53 Cal.3d

Moreover, defendant admits that California law of his contrary is to Morris, 186; 152, claim of error. (People supra, People v. 53 v. Cal.3d 1006 269, 676]; 907, P.2d (1990) 790 Cal.Rptr.

Marshall 50 Cal.3d 927 [269 690 P.2d 315 People v. Turner 37 Cal.3d Anderson, 669], supra, in v. Cal.3d People on another overruled point on which 1115.) He federal district court decision also admits that the (W.D.N.C. Rice (Brown he reversed on this point. relies was as appeal to. 381, 393, (4th 1989) in Cir.

1988) and part part affd. revd. F.Supp. us he 490.) authority, urges Despite any supporting

891 F.2d the lack of to do so.

reconsider our We decline position.

Penalty Phase Facts prosecution

I. The heroin in in March 1978 of a the sale of felony, Defendant was convicted received a sentence Health and section He Safety violation of Code 11351.

of probation. Turner, at who jailhouse

Clifford informant incriminated that, (see ante), he was incarcerated with

guilt testified while phase p. Sampson (Turner) defendant at the Santa Rita he beat inmate Ronald jail, up defendant, who said at defendant’s Turner request. reported beating 20,1986, January Sheriff David testified that on “Right Deputy Wysock on.” he bleeding day at the inmate duty jail found Sampson inmates, he did not room. said had been beaten three but Sampson Turner had in the with at Sampson them. been room identify custody day the time of the attack.

II. defense cousins, sister, defendant’s his wife’s family Several of members—a three a psychiatrist uncle and a “foster auntie”—and a clinical social worker and and had family setting testified that defendant was reared a dysfunctional He father deserted the a difficult childhood. was bom out of wedlock. His He and were raised by when defendant was his sister very young. family mother, had medical a colos- problems including their who several serious The mother obesity. (She morbid tomy weighed pounds.) roles, rooms renting herself on the welfare by staying public supported with assistance. selling often

prostitutes, illegal dmgs, he age Defendant first consumed when seven and marijuana years was when he He also a series of began selling committing it was eleven. began crimes, theft, other he had when was and e.g., petty by age He committed assault with a out of school around deadly weapon. dropped and He when he was 19 legal the 11th . obtained his first grade employment He begat thereafter held a series of He continued to sell jobs. illegal drugs. The first children He was married twice. by

a number of a series of women. annulled, his from marriage was either or divorced separated second wife at the time of his arrest this case.

The aunt described defendant as husband of defendant’s second wife’s with his being having relationship “beautiful “beautiful” person,” child his second wife. by

A “fiancée” testified woman who described herself as being that, that defendant children and since his incarcera- relates to “beautifully” case, in this tion she and defendant have discussed some starting type children out She said defendant has a

program help stay good of trouble.

mind. She him intends to his death marry despite penalty.

Dr. Richard D. who King, physician practices psychiatry, gave on the effects that opinion defendant’s “God awful” had on his upbringing personality portrayed defendant as “a who doesn’t being person just have one core that there personality type, fragments.” are other personality King Dr. admitted on cross-examination that he was not board certified

psychiatry. Kormos,

Dr. H. R. a board certified testified about psychiatrist, possible effects of toxic psychosis caused cocaine and that a opined under the person influence of cocaine has the conse- difficulty assessing of his quences actions. Dr. Kormos had never examined defendant.

Penalty Phase Issues

I. Prosecution misconduct in closing argument Defendant contends the prosecutor’s penalty phase closing argument con- stituted prejudicial (1) misconduct The respects: two prosecutor urged the death

jury impose penalty foreclose that defendant possibility be might someday released from prison. relied prosecutor repeatedly on biblical as passages support for the death Defendant’s first penalty. taken, well

contention is but to a erred in up point. prosecutor events, future relying speculative but the error was not prejudicial.

Defendant’s challenge to the waived religious references was by failing at trial.

object Speculation

A. as to release prison future from Defense counsel’s psychiatric Richard expert, Dr. testified that King, defendant had revealed a dream in which he taken from prison to During Reagan. Ronald then-President and was pardoned

White House evidence of this dream as first referred to the closing argument, prosecutor how you shows just inflated sense of self-importance, “[This] shot, is, Defendant did the real shot.” big he the real big feels important to the limited reference error to this not not now ascribe object and does dream. to the as began arguing when the prosecutor

The arose problem in and life prison the death penalty the choice between jury’s future effect of that the you remind just want to without the opportunity parole. “[I] right in this case getting pardon and dreams hopes has from of defendant Now, that he has any hopes asking you Pm Reagan. President of foreclose added.) Defense counsel (Italics I out. mean he has getting hopes—.” ever means “L-WOP without parole] the objected ground, promptly [life L-WOP,” jury seeking persuade that the prosecutor but were the death penalty from unless prison be released might of refer to the “powers not to The court admonished the

imposed. prosecutor whatsoever,” objection. the defense otherwise overruled but any authority he has these indicating, “As I was The resumed his argument, prosecutor what miracles I mean who knows getting dreams of out. someday hopes occur. revolutions do in do occur. Social Earthquakes can the future. happen ever saw many you He out. How getting Even wars occur. has hopes took con which Lee Marvin Dozen Dirty movie [in] [actor] war, in fought Germany, went off and demned men the time of during men, and fought. and went out some field commissions got

condemned I of the discussion. scope This is object. going beyond Defense: in can’t modern happen Who’s to say

Court: Overruled. Prosecutor: that can’t in Middle Who’s to say times due to the chaos East today? that he to the gave A verdict him the same gives hope death

happen? penalty Brices and that’s none at all.” defendant might did state that explicitly

Even though prosecutor of the prosecu- receive a the obvious pardon, implication fact presidential the death to foreclose jury impose penalty was that the had to argument tor’s remote, be released might that defendant somehow albeit possibility, from purpose apparent or other means. No other by pardon from prison Reagan the references to President argument, the face of particular a combat mission

the motion which convicts picture military accepted understood court itself apparently trial hope obtaining pardons. remarks, him to desist admonishing be the of the point prosecutor’s this to from to the whatsoever.” referring “powers any authority People

In was error under argument several this of the respects portion (Ramos), in Ramos Cal.3d 136 689 P.2d 430]

1009 the use of which we condemned as invalid under the California Constitution that a life the for jury opportunity parole instruction sentence of without Instruction”). (Id., (the the at might “Briggs pp. be commuted Governor instructional, 153-155.) the error in was we see no reason Although Ramos when, a similar should be treated why argument any differently prosecutorial case, inas this the trial court a defense to the objection argument. overrules The court’s act of the the court’s very overruling objection imprimatur put

the and thus tended to mislead the does not argument jury. Respondent contend otherwise. indeed either preclude "Ramos its rationale would court or counsel from advising regarding Governor’s commuta jury tion and the have which power, prosecutor any argument should avoided have might diverted the whether defendant jury’s attention to question 543, might (1988) some be day (People Hovey 44 Cal.3d paroled.” 121, 776].) The P.2d same with reasoning applies equal

force to references to a presidential pardon. Ramos, 136,

The first prong analysis supra, our 37 Cal.3d was the Briggs Instruction was a misleading half-truth because it failed to inform jury the Governor could commute a death sentence well as a as sentence of life (Id., without opportunity 153-155.) for at The parole. pp.

implied suggestion of a was even more presidential pardon misleading because it was untrue. The President “shall have power grant reprieves Const., pardons for offenses against (U.S. United States . . . .” art. II, 2, 1.) cl. The President does § not have the power those pardon defendant, like persons, who are convicted of crimes under state law.

(Young v. United (7 Otto) States 97 U.S. L.Ed.

999-1000]; (W.D.N.Y. 37, 38; Tribe, In re 1943) Bocchiaro 49 F.Supp. American 4.12, (2d 1988) Constitutional Law 10.) ed. fn. Defend- p. § ant’s dream to the contrary perhaps understandable light of his plight and his however, status as a layman little education. The prosecutor, with had Constitution, no excuse for misrepresenting whether his so doing was a matter of oversight or opportunism. The prosecutor’s argument was Ramos, 136,153-155. and therefore misleading error under supra, 37 Cal.3d The was argument also error because it invited “. . the jury . to consider not, event, that are matters both totally and that speculative should influence (Ramos, the jury’s determination.” supra, 136,155.) 37 Cal.3d

prosecutor’s argument was preposterous. asked the prosecutor jury “miracles,” revolutions,”

consider possibility of “social “earthquakes,” “wars,” and fantastical motion picture plots. Because the argument Moreover, it

speculative, was error under Ramos. to the extent the argument suggested future behalf, presidential intervention on defendant’s it further violated Ramos by tending “to diminish the sense of jury’s responsibility (Ramos,

its action.” supra, 37 Cal.3d at p.157.) not error. None three reasons why argument asserts Respondent are contends there was no error because first persuasive. Respondent Ramos, did refer to the Governor’s commutation

prosecutor power. references to supra, finely prohibit 37 Cal.3d cannot be so as parsed Second, gubernatorial power. but to allow references power presidential invited the respondent argument by introducing asserts that the defense dream of a We

psychiatrist’s testimony pardon. disagree. as to defendant’s extent, it That dealt defendant’s mental state. To that testimony only with Indeed, the prosecution was for the to address issue. proper prosecution however, so, and the did later went defense not object. prosecution, did issue, a far that limited there was beyond implicitly suggesting possibility third contention is might Respondent’s defendant’s dream become a reality.

that the in terms of defendant’s argument was because it was couched proper Moreover, such future This is not the record. dangerousness. supported by context, if in Ramos argument, this would eviscerate because accepted events, might could that future

prosecutor easily speculate e.g., pardon, in One result the defendant’s release and that he would then be dangerous. course, in of Ramos is that “One lies premises principal difficulty, 10, like what a defendant is to be some

attempting predict particular likely 15, in 20 or more the future when commutation be considered.” years may short, 156.) (Ramos, supra, 37 at In fails to us persuade Cal.3d p. respondent that the argument was not error. generally “Ramos is reversible.” correctly notes that error 746, 257,

(People (1989) v. 765 P.2d Garrison 47 Cal.3d Cal.Rptr. added; 1047, 419], People (1989) italics v. Harris 47 Cal.3d 1101-1102 [255 352, reversible, however, 619].) 767 P.2d is not the Cal.Rptr. Being generally same as se In cases in which we have reversed for being per reversible. those error, Ramos the trial court has an affirmative instruction as typically given (Ramos, Governor’s commutation was power, prejudice plain. 136, 155; 910, supra, 37 Cal.3d People (1985) v. Montiel 39 Cal.3d 928 [218 cases, 1248].) In 705 P.2d such no extended discussion of was It is clear that Ramos prejudice required. nonetheless error is not reversible se. We must determine whether the error was per prejudicial, more whether there is a reasonable the error specifically, affected the possibility Coleman, jury’s penalty (People supra, determination. 46 Cal.3d

780-782; People v. Pinholster Cal.4th 918-919 Cal.Rptr.2d 571].) 824 P.2d entire

Respondent’s is that prejudice argument little very “[T]here evidence, credible if in mitigating any, whereas the evidence aggravation was simply overwhelming.” this naked assertion Although is singularly our unpersuasive, review of the record independent convinces us that the error prejudicial.

We have first considered in those factors that defendant’s favor on weigh the prejudice question. are Before the They slight. penalty arguments phase instructions, an unidentified handwritten juror submitted the following note to the court: “Does life without chance of mean prison parole exactly what it Is there says? chance of is This to know parole? important

order to make the decision.” The court informed all counsel of the note and its contents and advised the “I did receive a subsequently jury, note from one of the jurors asking question nature and it primarily legal something here, that we’ll—I don’t know who wrote it but whoever wrote the note

will be addressed I’m my instructions and sure both We may counsel.” assume, discussion, for the purpose that the prosecutor’s subsequent argúment as to a presidential pardon other “miracles” have exacer- may bated the concern of the juror who submitted the note. concern, however, nascent

Any was eliminated. After the prosecutor’s argument, improper counsel defense to the “Let me correctly argued jury: remind you just what life prison without the possibility of means. parole it Frankly, means just that. You’ve been instructed as to that. You’ll be defendant, Hill,

instructed . again. . . The Michael will be imprisoned thereafter, the rest of his life The period.” court at defendant’s request, instructed the jury accordingly: “Life without the possibility of means parole what exactly it the says, defendant will be imprisoned for the rest of his life. . . . For you to conclude otherwise would be to on rely conjecture and speculation and would be a violation of oath your as trial jurors.” Jurors are presumed to follow the court’s (People Hardy (1992) instructions. v. 2 86, Cal.4th 208 781]; Coleman, Cal.Rptr.2d 825 P.2d People v. supra, 46 Cal.3d 782.) This pinpoint instruction made clear to the that it jury must reject the prosecutor’s suggestion to the contrary.

We also find that the nature of the prosecutor’s argument by itself assuaged any possible concern a juror might have had. Put the bluntly, argument was patently hyperbolic incredible. His primary was a support fictionalized motion picture account of convicts War fighting World II. It seems unlikely that any reasonable juror would have been persuaded the prosecutor’s hyperbole. farfetched tenor of the argument had the likely unintended effect of demonstrating to the jury that there was no realistic possibility defendant would ever be released from if prison he were sen- tenced to life without Ramos, opportunity for parole. error under supra, 37 Cal.3d was not prejudicial.

B. Prosecutor’s religion references

Defendant contends at some length that the prosecutor improperly relied on biblical references urging the jury the impose death penalty. references, to these object failed to his trial counsel

Defendant concedes His He is correct. direct appeal.” review of this issue on which “precludes 306, Cal.3d (People Poggi v. is waived. objection miscon- 1082].) a claim of prosecutorial P.2d To preserve request object defense must both phase,

duct during penalty Moreover, defend- (Ibid.) Defendant did neither. curative admonition. jury failed Trial counsel waiver is an understatement. ant’s concession of for not imposing the Bible as length support relied at but he object, death penalty. waiver, alleg- that the argues prosecutor’s to avoid his

Perhaps irrel- of the severity improper, references “. . . illustrate edly improper subject- jury which appellant’s arguments evant and unconstitutional 335.) explain Defendant fails to (See People Poggi, supra, 45 Cal.3d ed.” “un- with the unidentified connection the biblical references had how asserts, references challenge to those but arguments” constitutional Ramos, supra, 37 under brief with error dealing

set forth of his portion somehow argument is that biblical suggestion Cal.3d 136. Perhaps so, for three If fails argument under Ramos. prejudice exacerbated and the the Ramos error (1) There nexus between logical reasons: is no For unrelated. entirely The two matters are biblical references. prosecutor’s seen, see, connection the could not have jury we do not and example, no (2) prejudice We have found and “The Dozen.” Dirty between the Bible a prejudice have exacerbated could not argument under Ramos. The biblical concedes, to the biblical (3) challenge the As defendant that did not exist. evade the attempting Defendant to be appears was waived.

argument in a different argument the merely casting effect failure to object by of his that the argue if defendant means to is (Similarly, This light. permissible. Ramos, we that reject under were improper

biblical references themselves because, concedes, waived.) For all these is objection as he argument reasons, argu- biblical allegedly improper we the contention that the reject increased under Ramos. ment somehow created or prejudice verdict modify motion to death

II. Automatic under application on the automatic hearing At the outset of the verdict, 190.4, (e) the the trial modify Code section subdivision Penal the officer’s probation report.” that it had “read and considered court stated We the reject error. claim contends this procedure prejudicial for two reasons. is to defer

Defendant is correct that “the the preferable procedure reading automatic until after on the modifica- ruling application probation report 262, (1990) 50 Cal.3d 287 (People Cal.Rptr. tion of verdict.” v. Lewis

1013 834, 1268, 892]; People (1988) 786 P.2d v. Williams 45 Cal.3d 1329 [248 834, 221].) 756 “In the limited to making ruling judge P.2d the (People consideration of evidence that was before the v. penalty jury.” Visciotti, course, 2 supra, 78.) The Cal.4th was not probation report, out, however, admitted into evidence. As respondent points

assertion of error at the the fails threshold because he failed to at object hearing (His one the limited except challenge specific portion report. sustained.)

objection Defendant’s present objection also fails on merits. Absent a contrary record, indication we assume the trial by court was not influenced Lewis,

report ruling (People application. supra, v. 50 Cal.3d

267; People v. 2 Livaditis Cal.4th Cal.Rptr.2d 29].) P.2d record this case shows that the trial court relied only on evidence, Moreover, not the probation report. the court carefully reviewed evidence, circumstances, including and aggravating mitigating concluded, found jury that the “[The] is death. This appropriate penalty decision was based on the law and the evidence the received. The court jury independently agrees, having weighed aggravating mitigating factors, the court finds the independently factors aggravating substantially error, outweigh mitigating.” “There was no and certainly no prejudice.” Livaditis, (People 759, 787; Visciotti, v. supra, People Cal.4th supra, 1, 78.) Cal.4th

III. Allegedly disparate sentence

Defendant contends his death sentence is “cruel and unusual” and thus prohibited federal Constitution because his death sentence is widely to the disparate absence of any punishment on Michael imposed Const., (U.S. McCray. Amend.) 8th Defendant’s factual premise is that McCray legally responsible for the murders as either an or accomplice coconspirator but was never charged with crime related to the robbery trial, and murders. At the prosecutor conceded as We will much. therefore (but

assume only for the discussion) of purpose the correctness defend of ant’s factual premise. We reject nevertheless defendant’s that we argument must conduct an “intracase review.” proportionality

Defendant relies primarily People (1983) on v. Dillon 34 Cal.3d 441 [194 390, Cal.Rptr. 668 P.2d however, As we have 697]. subsequently explained, Dillon does not mandate the of type intracase review In sought by defendant.

People (1988) v. Adcox 55, 47 Cal.3d 207 906], Cal.Rptr. [253 763 P.2d

defendant contended his sentence was disproportionate to his individual

culpability because two other in the participants crime received lesser sen- tences and because there was as to uncertainty his personal We culpability.

1014 “ mis on Dillon is wholly that his ‘reliance rejected argument, noting ” Dillon, Adcox, 34 274.) supra, at supra, p. v. Cal.3d (People 47 placed.’ 441, with of sentence not defendant’s any comparison Cal.3d does mandate crime, or not. charged in the whether be they those of other involved persons 274; Adcox, 207, McLain People v. (People supra, 47 Cal.3d v. 569].)

Cal.3d 757 P.2d understood, review is “an examination intracase proportionality Properly his individual of whether death sentence is proportionate defendant’s (People others.” on irrespective punishment imposed culpability, case,

Adcox, in In this supra, original.) 47 Cal.3d at italics p. trusting have murders of two personally was found to committed heinous friends, child, in “[N]othing the course of a including robbery. young court, courts, federal suggests decisions of this or of the

prior ‘the of- is ‘the offense’ or punishment constitutionally disproportionate ” (Id., 275.) The Amendment the federal Constitution p. Eighth fender.’ at determination any does not us to into our require incorporate proportionality culpable person, defendant’s sentence with that of another comparison of (1984) 465 U.S. (Pulley whether or v. Harris charged uncharged. 29, 42, “any absence of

L.Ed.2d California’s [upholding S.Ct. 871] review”].) Defend- requirement practice comparative proportionality or (Even if we were consider ant’s to his crime. punishment proportionate unchanged.) would remain our conclusion culpability McCray, delay IV. excessive Alleged appeal aside at that his death must be set argues length penalty capital process prohib

because the inherent constitutes delay appeal Defendant, Const., Amend.) (U.S. ited cruel and unusual 8th punishment.

however, even the cannot—allege slightest does not—and faith good undue in this case. final until December delay Briefing state 20, 1991, we were brief after reply able to obtain defendant’s The numerous extensions of time to defendant’s counsel. granting appellate necessarily very of defendant’s therefore is linchpin argument renders existence of a the death unconstitutional. capital appeal penalty is, course, an is constitutionally Because

argument specious. appeal mandated, validity is in a frontal attack on the argument reality an under of the death all cases. existence of automatic penalty appeal defect; law is a state is not constitutional it constitutional safeguard.

(Gregg Georgia (1976) v. 428 U.S. at 199 L.Ed.2d p. 895-896, Stewart, J.) 211 (lead of at p. (cone. 96 S.Ct. and opn. opn. 2909] White, J.).) People

Defendant relies on Anderson 6 heavily Cal.3d 628 [100 880], in held 493 P.2d which this court California’s death

1015 I, article section system then-existing was unconstitutional under penalty in the that Anderson relied California is correct Constitution. (At in on the the sentence. delay capital pp. inherent of a

part appeal is, however,

649-650.) reliance on Anderson for two unavailing Defendant’s First, the federal challenge only reasons. defendant bases his on

obvious Constitution, court its decision on solely but the Anderson based explicitly Second, by the California Anderson was promptly repudiated Constitution. voters, the to make clear

California who amended California Constitution the

that death and its related do not constitute cruel penalty scheme statutory (Cal.

or unusual other state punishment any or violation of the Constitution. Const., I, 27.) art. including The Anderson court’s its reliance on reasoning, § I, have when delay, ceased force or effect article section appellate

became effective. We decline to find a violation based federal constitutional law, the partial

on a decision under which no reasoning of state decision is longer operative. here,

To extent we have addressed the federal claim raised previously In reasoning People

our contrary v. Chessman position. 679],

(1959) 52 Cal.2d 467 P.2d we rejected argument confine

ment for more than while sentence years a death was “uncon appealing

stitutionally (Id., 499.) cruel punishment.” or unusual p. at

Defendant’s claim suffers A also from a lack of federal federal support.

court recently rejected a defendant’s that “fulfillment contention

sentence after sixteen on death years row would constitute cruel and unusual in punishment violation of eighth fourteenth amendments. We [Fn.] know of no either decision the United Supreme States Court or this

circuit that has held a accumulation of time spends

death row during of his accrue prosecution can into an appeals indepen

dent constitutional (Richmond (9th . . . .” 1990) violation v. Lewis Cir. 933, 949.) Indeed,

F.2d We are similarly unaware of any authority. such

longest in postconviction “delay” most accumulates capital cases during courts,

defendant’s collateral in attacks federal to our knowledge, courts—which, course,

those have the in last word matters of federal

law—have never a set aside death sentence based on “inherent delay”

either an appeal or challenge. collateral

Indeed, the case, inherent-delay argument is untenable like this capital

one, in which the judgment as to the defendant’s guilt death-eligibility,

i.e., circumstance, are statutory special affirmed on appeal. Such a defend-

ant faces two outcomes possible as to or penalty—death life prison aside,

without If parole. the death sentence is there set is no conceivable

basis on which to claim that how delay—no matter lengthy—resulted for understanding imprisonment “By the defendant. common

prejudice (Biddle (1927) U.S. life a death.” v. Perovich is less than penalty if the 832].) Conversely, S.Ct. 52 A.L.R. L.Ed. affirmed, long—benefit- the no matter how delay—again,

death sentence is him delay prolonged rather because the ted defendant than prejudiced

life. reasons, of which delay” all we that the “inherent foregoing

For the hold that either the death finding penalty defendant is not a basis for complains itself or it is cruel and unusual leading punishment. the process appeal

V. Preservation issues for federal of of for the seven issues briefly purpose sets forth additional federal if he our the challenge judgment them chooses to preserving are They rejected.5 courts. are They preserved.

Disposition is affirmed its entirety. judgment Arabian,

Lucas, J., J., J., J., Panelli, 1, Kennard, con- George, C.

curred. review, I

MOSK, J. agree my After with judgment. concur in the I or defect reversal requires that there no error or colleagues other vacation. of the trial: the disturbing

I to note a aspect write separately merely assertedly “sanctioning reference summation to Bible verses prosecutor’s like the in cases this.” ... death penalty religious for a to invoke prosecutor purported

It is of misconduct course this Argument the of death. of imposition penalty law support government offends California statutes sort representative (1) alleged inapplicable are failure delete sentenc preserved 5The issues as follows: factors, (2) alleged designate mitigating and which are

ing failure to which instructions are (3) alleged beyond aggravating, appropriate failure to find that death was sentence doubt, (4) aggravation outweighed mitigation the alleged reasonable failure to find that doubt, beyond (5) alleged jury of the trial court to instruct the that the reasonable failure (6) parole sentence life without will never be considered parole, means alleged activity," ambiguous language regarding of the instructions “criminal alleged felony use of a improper robbery count. decisions, which law of this state as

judicial positive, establish the secular (see People Mincey rale governing choice between life and death (1992) & (cone. Cal.4th 827 P.2d Cal.Rptr.2d 483-484 388] Mosk, J.)). opn. dis. of It also violates the United States California

Constitutions—including their clauses establishment respective concerning I, Const., I; Const., (U.S. 4), and unusual religion Amend. Cal. art. cruel § VIII; Const., Const., I, (U.S. 17), due Amend. art. punishments Cal. § Const., XIV; I, Const., (U.S. 15). of law process Amend. Cal. art. §

The prosecutor here came close the line mis- perilously crossing into conduct, reason, but not I actually did do For that need say so. no more—

other than strongly caution against argument such future.1 improper for a

Appellant’s petition rehearing January denied 1993. 1I note in that passing has preserved prosecutorial claim misconduct regard. this That means that is not require entitled to that we as a point review right. matter of It does not that we mean are somehow undertaking barred from such review ex Plainly, mero motu. albeit impliedly, the California us obligates Constitution reverse

judgment miscarriage results from a justice. Any less rule of than stature constitutional may be prevent Code, construed to (see, us from discharging e.g., our duty Evid. §§ 354) said, is invalid to that miscarriage extent. That there was no justice here.

Case Details

Case Name: People v. Hill

Court Name: California Supreme Court

Date Published: Nov 19, 1992

Citation: 839 P.2d 984

Docket Number: S005169. Crim. CR26427

Court Abbreviation: Cal.