Lead Opinion
Opinion
A jury convicted defendant of the first degree murder (Pen. Code, § 187),
We reverse the kidnapping for robbery conviction and kidnapping-murder special circumstance and otherwise affirm the judgment.
I. Facts
A. Guilt Phase
1. Prosecution Evidence
The evidence showed that sometime during the night of March 8 or the morning of March 9, 1991, defendant and his brother, Lonnie Hillhouse, drove the victim, Brett Schultz, to a location in the Chico area, where, according to Lonnie, defendant stabbed him to death. Defendant and Lonnie took the victim’s truck and other property. Lonnie was originally a codefendant in this case, but he pleaded guilty to second degree murder and testified at trial.
a. Lonnie Hillhouse’s Testimony
Lonnie testified that on the evening of the crime, he and defendant went to the Madison Bear Garden, a bar in Chico. There they met the victim, Schultz, who purchased the three men a pitcher of beer, paying for it with a $100 bill. They also met Janice Murphy, who joined the group. Eventually, the group decided to leave the bar. Lonnie heard Schultz ask defendant to drive and saw him hand him some keys. The four left and entered Schultz’s pickup truck. Defendant drove. Soon defendant started to drive the wrong way on a one-way street. Upset about this, Lonnie got out of the truck and walked to his apartment, leaving the other three behind. Christine Hoover and Debbie Dodge were in the apartment.
Later that night, Lonnie saw defendant and Schultz sitting in the same truck outside his apartment. Shortly after that, defendant came to speak with Lonnie in the apartment. Defendant asked Lonnie if he “wanted to be with the big boys,” to which he responded yes. Defendant said, “[T]his guy’s got some money out here and I
As they were driving, defendant asked Lonnie to “check his pockets.” In response, Lonnie took some money—about “three or four bills wadded up”—from Schultz’s pocket and gave it to defendant. The three stopped at a gas station in Paradise, where they purchased gasoline. When Lonnie paid for the gasoline, he wanted to tell the clerk to call the police, but he was afraid to do so. Then they continued driving. Schultz’s condition was unchanged. At some point, Schultz “started coming to, and asked where we were going.” Defendant told him they were going to his “wife’s house to get some pot, and we would be back to Chico by morning or before work.” (Defendant was unmarried.) As they kept driving, Schultz seemed to become more concerned about where they were going, and he asked defendant to turn the truck around. Defendant turned around and drove in the opposition direction. Schultz then asked to “pull over,” so they stopped.
The three got out of the car. Schultz started urinating. Defendant walked around the back of the truck and approached Schultz. Lonnie testified, “[Defendant] said something that I didn’t catch and [Schultz] said, ‘Don’t fuck with me while I’m peeing,’ and [defendant] said, T ought to kill you.’ And I heard a thunk and [Schultz] started gasping for air and I turned away.” Lonnie observed Schultz “leaning against the door [of the truck] trying to keep from falling with his hands on his chest.” Defendant “grabbed him and threw him to the ground.” Lonnie seized Schultz by the arm and rolled him over. He observed blood on Schultz’s chest and on defendant’s hand. Defendant “said, ‘Why let him suffer,’ and stuck [i.e., stabbed] him a couple more times.” Lonnie heard Schultz again gasping for air.
Defendant asked Lonnie to help drag Schultz’s body behind some trees. The two dragged the body until defendant said “this is good.” Defendant then repositioned the truck so its headlights illuminated the body, and they moved the body a “foot or so” further up a hill. During the dragging, the body made no more sounds and did not move on its own. At defendant’s request, Lonnie checked one of the body’s pockets; defendant checked others. Lonnie did not remove anything and did not see defendant remove anything. The two drove back towards Paradise. On the way they stopped at a gas station—a different one than before—to wash their hands of blood. Defendant then drove to some friends’ house. Defendant entered the house but returned to Lonnie in the truck about 10 or 15 minutes later. Defendant said they would have to return later in the morning “because he was told that he had a wife and kids and that he didn’t want to be bothered or something
The two brothers commenced driving again, now towards Chico. On the way, defendant asked Lonnie to throw a knife out of the truck. In response, Lonnie took a knife from the seat where defendant had placed it and threw it from the car. Eventually the two drove to a friend’s apartment in Chico. They parked the truck a couple of blocks away and, at defendant’s direction, wiped fingerprints from it. They then went to sleep.
Lonnie was present when the police arrested defendant. Defendant said to him at the time, “Remember, Lonnie.” Lonnie considered the statement a threat.
Lonnie admitted that he lied to the police and prosecution at first to protect himself and his brother, but he said he was telling the truth at trial.
b. Other Evidence
Schultz’s body was found in the Sterling City area. The physical evidence indicated it had been dragged to its final location. It appeared the body had been placed where it would be difficult to see from the road. Schultz died of multiple stab wounds, including four in his chest.
Debbie Dodge testified she shared an apartment with the Hillhouse brothers for about a week around the time of the killing. Based on her observations of their interactions, she believed “Lonnie was really afraid of [defendant].” Defendant was the more dominant of the two. He was “more controlling.” Lonnie “would jump whenever [defendant] spoke, he’d jump, do whatever he wanted.”
Schultz’s employer testified that he had given Schultz five $100 bills in payment shortly before his death. After he died, four $100 bills were found in his bedroom. Janice Murphy testified that she was with the Hillhouse brothers and Schultz at the Madison Bear Garden the evening of the killing. When the group left to go elsewhere, defendant drove Schultz’s truck. On the way, Lonnie became frustrated with defendant’s driving and left on foot. Eventually, Murphy went with defendant and Schultz to go home. Schultz was quite intoxicated. Defendant had been drinking, but she “didn’t see anything really wrong” with him. She drove Schultz’s truck, but when she arrived at her home, she gave the keys to defendant. Schultz was “passed out” on the passenger side of the truck.
Around 4:30 on the morning of the killing, defendant visited the home of Teresa and Keith Schulz (no relation to the victim, Schultz), located about two miles from the road near which the body was found, and asked to speak with Keith. Teresa saw that defendant was driving a truck like the one that belonged to Schultz, but she could not tell if anyone else was in it. Defendant asked Keith for some money to get gasoline. Keith told him he was a “family man” and asked him to leave. Defendant appeared intoxicated to Keith; he “just seemed real nervous when I told him I couldn’t help him.” Defendant then left.
Around 1:30 on the morning of March 10, 1991, i.e., during the night following the killing, Debbie Dodge observed defendant alone near a pickup she identified as similar to Schultz’s truck. Defendant “got out of the truck, took a rag and went around to the passenger side and wiped off the window.” He told her “that if I didn’t see him by daylight, I never saw him or the truck before.” When the truck was later examined for fingerprints, “it appeared that the windows, and the interior rear view mirror had been wiped down.”
Around 3:30 that same morning, defendant went to Gary Keep’s home and woke him. Defendant was “real hysterical” and said he needed help. Keep saw Schultz’s truck with a toolbox in the back. Defendant said he had bought the truck in Oklahoma
Keep’s testimony, the testimony of an employee of the pawnshop, and pawnshop records, confirmed that Lonnie, with defendant and Keep, later pawned some Makita tools that had belonged to Schultz. The pawnshop employee testified that defendant tried to pawn the tools himself. He did not have an adequate photographic identification, so his brother did it instead.
Blood was found on the passenger door and doorjamb of Schultz’s truck and on a pair of blue jeans found in Dodge’s apartment. The evidence of who wore the jeans was inconclusive. Lonnie testified that he wore blue jeans and defendant wore “grayish and blue jeans” the night of the killing, but Christine Hoover testified during the defense portion of the case that Lonnie wore “black acid wash” jeans. Janice Murphy testified that defendant was wearing blue jeans the night of the killing; Teresa Schulz testified he was wearing jeans when she saw him shortly after the killing.
Dodge testified that shortly after the killing she noticed that a knife that Lonnie said was similar to the one used in the killing was missing from her kitchen. Defendant had cooked in that kitchen and occasionally used her knives.
Gary Reep testified that a few days after the crime, defendant called him on the telephone. Defendant told him that the tools they had pawned had belonged to a “dead man,” but he had told the sheriff he bought them from Reep. He said the sheriff would come to see Reep about the tools, and asked him to say they had belonged to him. Janice Murphy testified that she called defendant after she saw a picture of Schultz on television. Defendant discouraged her from calling the police. He said that “as long as we don’t say nothing nobody has to know we were with him.” When Murphy called him again later, she asked him what he had done with Schultz. He “was rather evasive and wanted to change the subject.” Two witnesses confirmed that when defendant was arrested, he told Lonnie to “remember.” Dodge testified that after his arrest, defendant told her on the telephone that “there was no way” anyone could “get him for the murder, because there was no evidence of them ever being there,” i.e., they could not place him at the scene.
2. Defense Evidence
Defendant presented evidence of some of Lonnie’s prior inconsistent statements. Even after defendant had said to him, “Remember, Lonnie,” Lonnie denied that defendant had threatened him.
Christine Hoover, who lived in the apartment with Dodge, testified that the night of the killing, she saw defendant in a truck outside the apartment with two other persons, a man and a woman. Lonnie was outside the truck. Lonnie, but not defendant, came back inside the apartment. Lonnie told her he was going with defendant to take the others home. Later that morning, she saw both defendant and Lonnie in the apartment.
3. Rebuttal
The prosecution presented evidence of prior inconsistent statements of Christine Hoover. One officer testified that when he interviewed her, she seemed very “mixed up” about the events the night of the killing.
B. Penalty Phase
1. Prosecution Evidence
The prosecution presented evidence of various other crimes involving force or violence that defendant had committed. Defendant raped a college student in Oklahoma in 1980. Later he and a cohort sexually assaulted her again at knifepoint. He repeatedly assaulted a woman with whom he had a relationship in the 1980’s and members of her family. He assaulted his landlord in 1986, knocking out several teeth and sending him to the hospital. For this incident he was convicted of battery. He assaulted two men in New Orleans in 1988, for which he was convicted of battery and disturbing the peace. He assaulted two women in Montana in 1989, giving one a concussion and hitting the other with a gun. Later he assaulted one of the women again, breaking her jaw. As a result, he was convicted of assault in Montana. He threatened an Arizona police officer and tried to kick him, for which he was convicted of disorderly conduct in Arizona. He raped and beat a woman in Washington State in 1990. He assaulted his aunt and cousin repeatedly when he was young, once with nunchakus. He committed lewd acts with his sister, for which he was convicted in Oklahoma of “indecent or lewd acts with a child under fourteen.” When she yelled for help, defendant threatened the family with a .22-caliber rifle. Other evidence indicated he once assaulted a friend of his mother with a brick, requiring stitches. He also committed crimes against his brother, Lonnie, including sexual assaults.
2. Defense Evidence
Defendant’s mother testified about his troubled childhood. His father, Donald, abused her repeatedly, sometimes in front of their children. Donald never cared for the children, including defendant. Defendant did poorly in school and dropped out in the ninth grade. He abused alcohol and drugs. Kenneth Hillhouse, defendant’s brother, testified that their father victimized the family and never showed the children any affection. Defendant started drinking alcohol and smoking marijuana when he was 12 years old. Defendant’s sister testified that he was a father figure to her until the lewd act incident leading to defendant’s conviction when she was 12 years old. A cousin of defendant’s testified Donald abused defendant’s mother. She believed Donald was an alcoholic.
Four mental health experts testified about defendant’s mental condition. Dr. John Wicks, a medical clinical psychologist, tested defendant extensively and believed he had “a pattern that suggests organic brain damage.” Defendant’s overall IQ was in the 80’s, which “put him in the low normal or dull normal range of intelligence.” Some of defendant’s mental functions were impaired, including “the ability to inhibit impulses, ... to make the good judgment, ... to put yourself in the place of another person and intuitively feel
Dr. Gretchen White, a clinical psychologist, studied defendant’s life history and believed that he “is an individual with multiple problems of his own who came from a severely dysfunctional family, who showed problems in the family and multiple risk factors throughout.” She said “the deck was pretty much stacked” against defendant.
Dr. Stephen Pittel, a psychologist, testified that defendant has long been an alcoholic. “He experiences major personality changes while under the influence of alcohol” and has reported blackouts. Because of his background and neurological problems, he is particularly vulnerable to substance abuse.
Dr. Judy Brislain, an expert in diagnosis and treatment of learning disability, testified that defendant’s poor performance on various standardized tests indicated defendant had organic brain damage and a learning disability. She also believed that defendant probably “stopped developing psychosocially between the ages of five and twelve.” Nevertheless, she believed that defendant could learn if placed in a “very structured environment.”
II. Discussion
A. Jury Selection
Defendant argues the trial court erred in denying his challenges for cause to five prospective jurors. However, he has not preserved the issue for appeal. He exercised only 11 peremptory challenges, leaving him with nine remaining when he accepted the jury. (Code Civ. Proc., § 231, subd. (a).) “To preserve a claim of error in the denial of a challenge for cause, the defense must exhaust its peremptory challenges and object to the jury as finally constituted.” (People v. Millwee (1998)
Defendant also argues that one of the five persons that he challenged was not only a prospective juror but ultimately an actual juror. This circumstance does not change the rule. Defendant could have used a peremptory challenge to remove this juror but chose not to do so. Accordingly, defendant may not now complain that he was an actual juror. (People v. Danielson (1992)
Even if the issue were cognizable, defendant would not prevail. As to the four individuals who did not sit on defendant’s jury, “[defendant could not possibly have suffered prejudice as a result of the court’s refusal to excuse them at his request.” (People v. Millwee, supra,
A party may challenge a prospective juror for actual bias, defined as a state of mind that would prevent that person from acting impartially and without prejudice to the substantial rights of any party. (People v. Ayala (2000)
In the juror questionnaire, the juror wrote that due to information about this case he read in newspapers, he “believe[d] the defendant is guilty, it’s a matter only of 1st or 2nd degree.” He also stated that the prosecution investigator in the case “is a friend from the Elks.” As might be expected given these answers, the court and parties questioned the juror extensively in court regarding his ability to be impartial. The juror gave some answers that certainly would have warranted the court in removing him. He gave other answers, however, warranting the conclusion that he could be impartial. He made clear that he had preconceptions about the case, but he also understood he had to base his decision on the evidence at trial rather than what he read in newspapers, and he said he would try to be impartial. He summarized his feelings: “I think the defense attorney has an up-hill battle, if I were asked to make a judgment today I already stipulated what that judgment would be [i.e., guilty], but as I hear conflicting information I think I could be fairly impartial to listening to that.” (Italics added.) The court assured the juror that he would not be asked to make a judgment that day but only after hearing the evidence.
On this record, the trial court could reasonably conclude the juror was trying to be honest in admitting to his preconceptions but was also sincerely willing and able to listen to the evidence and instructions and render an impartial verdict based on that evidence and those instructions. Indeed, a juror like this one, who candidly states his preconceptions and expresses concerns about them, but also indicates
B. Guilt Phase Issues
1. Issues Regarding Witness Lonnie Hillhouse
Defendant raises a number of interrelated evidentiary and instructional issues regarding Lonnie, a key prosecution witness. He argues that Lonnie should not have been allowed to testify because the plea bargain by which he pleaded guilty to second degree murder was coercive. Defendant did not object to the testimony at trial, so the issue is not cognizable on appeal. (People v. Riel (2000)
When Lonnie pleaded guilty to the reduced charge of second degree murder, he signed an agreement that he would “testify truthfully if subpoenaed to so testify at the trial of Danny Ray Hillhouse in this matter.” The agreement said nothing else regarding the content of Lonnie’s testimony. Nothing in this agreement was coercive or otherwise improper. Although an agreement compelling the witness to testify in a particular fashion would be improper, an agreement that only requires the witness to tell the truth is valid. (People v. Riel, supra,
Defendant argues that even if the agreement purported only to compel Lonnie to tell the truth, Lonnie understood it to compel him to testify in a particular way. Even assuming that such an understanding, as distinct from the actual terms of the agreement, could invalidate the agreement, the record does not support defendant’s claim. After Lonnie agreed to the plea bargain, he gave a statement to a prosecution investigator. His subsequent testimony at the preliminary hearing and at trial was consistent with this statement. Defendant claims that Lonnie understood the plea agreement to compel him to testify consistently with that statement. However, the agreement could not have compelled Lonnie to testify in accordance with the statement, for the statement came months after the agreement. Moreover, nothing in the agreement or the statement suggests the prosecution expected Lonnie to testify in any particular fashion other than truthfully.
In arguing to the contrary, defendant relies largely on testimony defense counsel elicited from Lonnie on cross-examination. Defense counsel asked: “[W]as it your understanding by the time you were testifying a month or so later [after making the statement], at this preliminary hearing,
Defendant also argues that Lonnie’s testimony was too incredible to believe. As in the similar situation in People v. Riel, supra,
Defendant also argues that “even the prosecutor questioned Lonnie’s credibility.” On the contrary, the prosecutor argued that Lonnie’s basic testimony was credible. She did additionally argue, as a backup position, that even if the jury disbelieved him and believed that he, not defendant, had been the actual killer, then defendant was nonetheless guilty of murder on an aider and abettor theory. Such argument is entirely appropriate. Moreover, even if the prosecution had questioned Lonnie’s credibility on some points, defendant would have had no basis to complain. As we explained in People v. Riel, supra, 22 Cal.4th at pages 1181-1182, the prosecutor was not present at the crime scene and therefore did not personally know whether or to what extent Lonnie might be lying at trial. “The prosecution simply presented its evidence and allowed a fully informed jury to evaluate it.” (Id. at p. 1181.) Allowing Lonnie “to testify subject to cross-examination
Over defense objection, the trial court ruled that Lonnie’s prior statements that predated his plea agreement and were consistent with his trial testimony would be admissible as prior consistent statements under Evidence Code section 791. Accordingly, it admitted part of a statement Lonnie made several months before the plea bargain. Defendant contends the court erred. We disagree. Evidence Code section 791, subdivision (b), provides that a prior consistent statement may be admitted to support a witness’s credibility if “[a]n express or implied charge has been made that his testimony at the hearing is recently fabricated or is influenced by bias or other improper motive, and the statement was made before the bias, motive for fabrication, or other improper motive is alleged to have arisen.” Here, as the trial court noted in its rulings, defense counsel cross-examined Lonnie extensively regarding the plea agreement and at least implied that Lonnie was testifying as he did because of that agreement. Arguing to the contrary, defendant asserts, “No new motive for fabrication is engendered by the plea bargain.” This assertion contradicts his argument, discussed above, that the plea agreement was so coercive as to be illegal. As we have explained, the agreement was valid in the sense that it did not disqualify Lonnie from testifying. But the defense was entitled to, and did, use it at trial to try to cast doubt on Lonnie’s credibility. This circumstance made the consistent statements predating the agreement admissible to support his credibility.
Defendant argues that Lonnie had a motive to minimize his role in the crime even before he made the prior consistent statements. This is no doubt true, but defendant also implied at trial that the plea agreement provided an additional improper motive. A prior consistent statement logically bolsters a witness’s credibility whenever it predates any motive to lie, not just when it predates all possible motives. Accordingly, under Evidence Code section 791, “a prior consistent statement is admissible as long as the statement is made before the existence of any one of the motives that the opposing party expressly or impliedly suggests may have influenced the witness’s testimony.” (People v. Noguera (1992)
Defendant also argues the court misinstructed the jury regarding how to view Lonnie’s testimony. The court told the jury that Lonnie was an accomplice as a matter of law and gave the then standard instructions regarding accomplice testimony, including that it must be corroborated and should be viewed with “distrust.” (CALJIC Nos. 3.11, 3.12, 3.18 (5th ed. 1988).) The only substantive difference between the instructions the court gave and the current standard instructions is that currently, the standard instructions tell the jury to view accomplice testimony that incriminates the defendant with “caution,” rather than “distrust.” (CALJIC No. 3.18 (1999 rev.) (6th ed. 1996); see People v. Guiuan (1998)
As noted, the court instructed the jury to view Lonnie’s testimony with “distrust.” Defendant asked the court to add that the testimony should be “received with care, caution, and suspicion for the reason that its very source is tainted. You must not accept the words of an accomplice at face value, or with any presumption of truthfulness, or judge them by the same standards as that applied to other witnesses. ftQ An accomplice may have many self-serving motives that may influence his credibility, such as the hope or expectation of leniency in return for testimony which would help to convict another.” The requested instruction was argumentative and would have been inappropriate. (See People v. Ochoa, supra,
Defendant also complains of an instruction informing the jury it may reject the testimony of a witness who testified falsely “unless from all the evidence you believe the probability of truth favors his or her testimony in other particulars.” (See CALJIC No. 2.21.2.) He argues the phrase “probability of truth” impermissibly lowers the prosecution’s burden of proof. We rejected a similar argument in People v. Riel, supra,
2. Limitation on Cross-examination of a Witness
Gary Reep testified for the prosecution about defendant’s attempts to hide the truck and defendant’s role in pawning the victim’s tools. On direct examination, he testified that he had discussed the case
We agree the court erred under state law in sustaining the relevancy objection. A witness’s refusal to talk to a party is relevant to that witness’s credibility because it shows the possibility of bias against that party. (People v. Hannon (1977)
“ ‘[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby, “to expose to the jury the facts from which jurors . . . could appropriately draw inferences relating to the reliability of the witness.” ’ [Citations.] However, not every restriction on a defendant’s desired method of cross-examination is a constitutional violation. Within the confines of the confrontation clause, the trial court retains wide latitude in restricting cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citations.] California law is in accord. [Citation.] Thus, unless the defendant can show that the prohibited cross-examination would have produced ‘a significantly different impression of [the witnesses’] credibility’ [citation], the trial court’s exercise of its discretion in this regard does not violate the Sixth Amendment.” (People v. Frye (1998)
The trial court’s sustaining of this single objection did not violate the Sixth Amendment under this standard. The court generally allowed the defense full scope to cross-examine Reep. Although the disallowed question was relevant to credibility, refusing to talk to an attorney is not a prototypical form of bias. A witness may choose not to talk to an attorney for many reasons unrelated to bias or favoritism. Reep may have been only a reluctant witness. Having given a statement to the police, which was discoverable by the defense, he simply may not have wanted to give yet another statement to an attorney who would be cross-examining him. Not allowing the jury to consider that refusal did not produce a significantly different impression of his credibility.
The error under state law was harmless. Although Reep corroborated some of Lonnie’s testimony, he was not a critical witness. Nor was his credibility particularly suspect, even considering that he did not want to talk to defense counsel. It is not reasonably probable the result would have been different had the jury considered Reep’s refusal to talk to defense counsel. (People v. Watson (1956)
3. Exclusion of Evidence of the Victim’s Marijuana Use
Lonnie testified that while he and defendant were driving Schultz to their eventual
Later, the defense sought to question Lonnie regarding marijuana use the night of the crime. Outside the presence of the jury, Lonnie testified he did not smoke marijuana and did not see Schultz or defendant do so. He denied telling anyone anything different. The court ruled the defense could ask the same questions in front of the jury. Defense counsel also represented that Lonnie had made inconsistent statements to a defense expert. The next day, the prosecutor represented that the defense expert had told her he had not asked Lonnie anything regarding marijuana use. Defense counsel argued that Lonnie’s testimony and the alleged inconsistent statements tended “to corroborate the whole subject matter of the plan for marijuana, reference of marijuana during the course of that evening. . . . [I]t tends to corroborate or make more valuable the information that we have that Mr. Schultz had some marijuana metabolites within his blood system after his death.” The court ruled the defense could question Lonnie regarding marijuana use and impeach him with any inconsistent statement, but it could not present evidence of marijuana in Schultz’s system. In front of the jury, defense counsel asked Lonnie if he or defendant had smoked marijuana that night and whether he had told the defense expert that he and defendant had “shared a joint,” eliciting a negative response to each question. The defense did not present any inconsistent statement.
Defendant contends the court erred in disallowing evidence that the toxicology report showed the presence of marijuana in the victim’s system. He argues the evidence was relevant to show that the purpose of the drive was, indeed, to get some marijuana rather than something more nefarious. However, the ruling comes within the “broad discretion” the “trial court enjoys” under Evidence Code section 352 “in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.” (People v. Rodrigues (1994)
Here, Lonnie testified that defendant told Schultz they were driving to get some marijuana. Evidence of actual marijuana in Schultz’s system may have explained why defendant would try to reassure him by saying they were going to get some marijuana. It may further have helped show that Schultz liked the idea and maybe even that getting marijuana was his purpose for the trip. But Schultz’s purpose
4. Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support the judgment in several respects.
a. General Insufficiency
Defendant argues that Lonnie’s testimony, even if admissible, was insufficient to support any of the convictions. We disagree for reasons similar to those we stated in rejecting similar arguments in People v. Riel, supra,
Lonnie’s testimony was not all that incriminated defendant. Although Lonnie alone provided the details of exactly who did what that night after the truck stopped, other evidence connected defendant with the crime. Independent evidence showed that Schultz was with defendant in the truck when last seen alive by someone other than the Hillhouse brothers; crime scene evidence supported Lonnie’s testimony that the body had been dragged; Dodge saw defendant wiping fingerprints off the truck alone in the middle of the night; defendant had access to the knife missing from Dodge’s kitchen that may have been the murder weapon; defendant wanted to sell Schultz’s truck and then hid it; he attempted to sell and, with Lonnie’s help, pawned some of the victim’s tools; he also acted suspiciously and made
b. Kidnapping for Robbery and the Kidnapping-murder Special Circumstance
The jury convicted defendant of kidnapping Schultz for robbery and found true a kidnapping-murder special circumstance. The trial court also instructed on kidnapping as a theory of first degree felony murder. As the court instructed the jury, the kidnapping count was not based on the movement in the truck, for there was no evidence that movement was against Schultz’s will. Rather, the kidnapping charge was based solely on the dragging of Schultz after he was stabbed. The evidence showed defendant and Lonnie dragged him around 100-150 feet to a place difficult to see from the road.
Section 209, subdivision (b), makes guilty of kidnapping for robbery “Any person who kidnaps or carries away any individual to commit robbery . . . .” “Kidnapping for robbery, or aggravated kidnapping, requires movement of the victim that is not merely incidental to the commission of the robbery, and which substantially increases the risk of harm over and above that necessarily present in the crime of robbery itself.” (People v. Rayford (1994)
There can be no doubt that, like rape (People v. Kelly, supra,
The evidence regarding whether Schultz was dead or alive when defendant dragged him is inconclusive, but most of it indicates he was probably already dead. Lonnie testified that all the stabbing occurred by the truck before the movement and said that the body never moved on its own or made a sound during any of the dragging. Dr. Gwen Hall, the pathologist who performed the autopsy, provided the most important testimony. Schultz died of four stab wounds, each of which independently could have been fatal. The injuries themselves indicated Schultz could have survived “minutes, perhaps twenty minutes to an hour at the most.” This testimony alone would suggest that Schultz might have survived during part or all of the dragging. But Dr. Hall also testified that a certain head bruise caused by hitting something like a car door or the ground (i.e., likely caused when Schultz fell after the stabbing) occurred “at or about the time of death.” More importantly, abrasions on the back, obviously caused during the dragging, showed no signs of bleeding.
Citing Dr. Hall’s testimony that she could not be certain exactly how long Schultz lived, the Attorney General argues that “the absence of bleeding under the abrasions on [Schultz’s] back is not conclusive evidence that he was dead at the time of the dragging.” But, as defendant notes, the question is not whether the evidence conclusively proved Schultz was dead, but whether substantial evidence supported a finding he was alive. We see no such substantial evidence. Moreover, even if we assume Schultz was dying but not yet dead when the dragging began and died during the dragging, before receiving the bloodless abrasions, no evidence supports a finding that the movement “substantially increase[d] the risk of harm . . . .” (People v. Rayford, supra,
Accordingly, the kidnapping for robbery conviction and the kidnapping-murder special circumstance cannot stand. Finding that defendant dragged Schultz’s body after, rather than before, he killed Schultz does not minimize the heinousness of defendant’s deeds. It does, however, mean he was not guilty of kidnapping in addition to murder and robbery.
Defendant also argues that because the court instructed the jury on kidnapping as a theory of felony murder, we must also reverse the first degree murder conviction. We disagree. As we explain, the evidence supported the robbery and robbery-murder special-circumstance findings as well as the lying-in-wait special-circumstance finding. These findings show the jury necessarily concluded the killing was committed in the course of a robbery and by lying in wait. Thus, we know that the first degree murder verdict rested on at least one correct theory. (§ 189; People v. Kelly, supra,
c. Robbery and the Robbery-murder Special Circumstance
Defendant also argues the evidence was insufficient to sustain the robbery conviction and robbery-murder special-circumstance finding. He essentially argues that at most there was a theft, and the use of force, i.e., the killing, occurred either before or after any taking and was not accompanied by an intent to steal. (See People v. Green (1980)
d. The Lying-in-wait Special Circumstance
The jury found true the special circumstance of murder by means of lying in wait, and the court also instructed the jury on lying in wait as a theory of first degree murder. Defendant contends the evidence was insufficient to support either the special circumstance finding or the first degree murder instruction. We disagree.
“The requirements of lying in wait for first degree murder under Penal Code section 189 are ‘slightly different’ from the lying-in-wait special circumstance under Penal Code section 190.2, subdivision (a)(15). [Citation.] Defendant challenges the sufficiency of the evidence as to both. We focus on the special circumstance because it contains the more stringent requirements. [Citation.] If, as we find, the evidence supports the special circumstance, it necessarily supports the theory of first degree murder. [10 The lying-in-wait special circumstance requires ‘an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) immediately thereafter, a surprise attack on an unsuspecting victim from a position of advantage . . . .’ [Citations.] ‘The element of concealment is satisfied by a showing “ ‘that a defendant’s true intent and purpose were concealed by his actions or conduct. It is not required that he be literally concealed from view before he attacks the victim.’ ” ’ [Citation.]” (People v. Carpenter (1997)
We find sufficient evidence of each of these elements. Lonnie testified that defendant told him at an early stage of an intent to kill Schultz. Defendant concealed his purpose from Schultz until he struck. The evidence shows a substantial period of watching and waiting for an opportune time to act—which arose when Schultz asked defendant to stop the truck and got out and urinated. Immediately thereafter, while the victim was still urinating— and hence particularly vulnerable—defendant attacked from a position of advantage. He took Schultz by surprise with no opportunity to resist or defend himself. Defendant notes that earlier opportunities existed for defendant to kill an unconscious Schultz in the truck. However, “[a]s long as the murder is immediately preceded by lying in wait, the defendant need not strike at the first available opportunity, but may wait to maximize his position of advantage before taking his victim by surprise.” (People v. Ceja (1993)
Citing Lonnie’s testimony that defendant said something inaudible, Schultz responded, “Don’t fuck with me while I’m peeing,” defendant said, “I ought to kill you,” and only then stabbed, defendant also argues the evidence shows that the stabbing was a spontaneous reaction to a “roadside disagreement with Schultz.” The jury, however, could reasonably have concluded otherwise—that defendant planned the killing to rob Schultz, and he waited and watched for the opportune moment to strike, which presented itself when Schultz was urinating.
Defendant also argues, and the concurring and dissenting opinion would find, that defendant’s comment that he ought to kill Schultz precludes the jury from finding
5. Prosecutorial Misconduct
Defendant contends the prosecutor committed various acts of misconduct during both the guilt and penalty phases.
Moreover, this record discloses no misconduct. Defendant claims the prosecutor improperly denigrated defense counsel. Although the prosecution may not attack defense counsel’s integrity, it may, and the prosecutor here did, vigorously attack the defense case and argument if that attack is based on the evidence. In turn, the defense may attack the prosecution case and argument, as defense counsel did here. (People v. Hill, supra,
The two occasions on which the defense did object do not demonstrate misconduct.
6. Instructional Issues
a. Instruction on Motive
The trial court instructed on the mental states required for the various charges, including that murder requires malice or a killing during the commission of robbery or a kidnapping “for the purpose of robbery,” that robbery requires the “specific intent permanently to deprive [the] person of the property,” that the force or intimidation required for robbery “must be motivated by the intent to steal,” that kidnapping for robbery requires the “specific intent to commit robbery,” which must exist when the movement commenced, that kidnapping for robbery requires the “purpose” of robbing, and that the special circumstances of robbery murder and kidnapping murder include the requirements of robbery and kidnapping for robbery. The court also instructed, in accordance with CALJIC No. 2.51, that “[m]otive is not an element of the crime charged and need not be shown.”
Defendant argues that telling the jury that motive is not an element of the crimes contradicted the other instructions, because motive is an element of the various crimes. The Attorney General counters that the issue is not cognizable because defendant failed to object to these instructions at trial. We disagree to the extent defendant argues the court erred in giving CALJIC No. 2.51. A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial. (E.g., People v. Hart (1999)
Turning to the merits, although malice and certain intents and purposes are elements of the crimes, as the court correctly instructed the jury, motive is not an element. “Motive, intent, and malice—contrary to appellant’s assumption—
Defendant notes that the court instructed the jury that the force or intimidation “by which the taking is accomplished in a robbery must be motivated by the intent to steal. . . .” (Italics added.) This language did not transform the requirement of an intent to steal into a motive; it merely meant that the force had to be accompanied by the intent to steal. No reasonable juror would consider the use of the word “motivated” in this context as negating the other instructions regarding the necessary mental states. To the extent defendant argues that that single word was ambiguous or confusing, we agree with the Attorney General that this limited argument is not cognizable. If defendant thought a different word than “motivated” in that instruction would have been clearer, he should have requested the change. He did not.
b. Reasonable Doubt Standard
Defendant argues that certain instructions regarding circumstantial evidence, including references to an interpretation of the evidence that “appears” to be reasonable, undermined the reasonable doubt standard and created an impermissible mandatory presumption of guilt. We have rejected these arguments and continue to do so. (People v. Ray (1996)
c. Instruction Regarding the Readback of Testimony
Defendant contends the “trial court impermissibly restricted the jury’s right to request to have testimony reread by instructing them that in order to hear the testimony the court must first deem it ‘material,’ and that if any portion of a witness’s testimony was requested, the entire testimony had to be reread.”
In People v. Frye, supra,
We have doubts that People v. Litteral, supra, 79 Cal.App.3d at pages 796-797, and People v. Butler, supra, 47 Cal.App.3d at pages 283-284, correctly allowed a defendant to assert a violation of the jury’s right to readback of testimony. In general, a defendant may assert, and thus may forfeit, his own rights, but not someone else’s. (See People v. Edwards (1991)
On the merits, the court did not violate section 1138. It did not refuse to provide any rereading of testimony; indeed, the jury did not request any. Defendant contends the instruction improperly discouraged the jury from doing so. Generally, he claims the instruction was “an unwarranted modification of CALJIC No. 17.43,” the standard instruction regarding the rereading of testimony. The CALJIC instruction, however, did not exist until 1993, after the trial in this case. (CALJIC No. 17.43 (1993 new) (5th ed. 1988).) Specifically, defendant challenges the instruction in two respects.
First, defendant objects to the court’s implication that it would not permit the rereading of immaterial testimony. It is hard to evaluate this question in the abstract, for it is hard to imagine a jury
Second, defendant argues the court erred in advising the jury it would hear the entire testimony of any given witness. This portion of the instruction did not violate section 1138. That statute mandates the readback of testimony at jury request, but it does not forbid giving the jury more than it requests so it also receives the context. Defendant speculates the jury may have wanted a rereading of some part of Lonnie’s testimony but chose not to request it because the entire testimony was lengthy. Because any request to rehear some of Lonnie’s testimony would likely be directed to the direct testimony, we doubt defendant would have complained about rereading the entire testimony, the bulk of which was cross-examination. But in any event, the court made clear it would provide any requested rereading of material testimony. Merely informing the jury of the time it may take for rehearing testimony is not impermissible jury coercion. (People v. Anjell (1979) 100 Cal.App.3d 189, 202-203 [
C. Penalty Phase Issues
1. Evidence of Unadjudicated Criminal Activity
Defendant contends that introducing evidence at the penalty phase of unadjudicated criminal activity violates various state and federal constitutional rights. We have repeatedly rejected the contention and continue to do so. (E.g., People v. Smithey (1999)
The trial court instructed the jury on the 11 statutory factors it should consider in making its penalty determination. (§ 190.3, factors (a)(k).) Defendant originally requested the trial court also to instruct the jury that “factors (a) through (c), and (i) which I have just Usted are the only factors that can be considered by you as aggravating factors.” When the court and parties discussed the instructions, however, defense counsel stated that “based upon a case entitled [People v. Gordon (1990)
Defendant contends this latter instruction erroneously allowed the jury “to consider as aggravating factors sentencing factors which, as a matter of state law, were relevant solely as mitigators.” The Attorney General responds that any error was invited. (See People v. Wader (1993)
On the merits, we find no error. Defendant is correct that “[a] majority of the 11 statutory factors can only be mitigating. (See, e.g., People v. Gallego (1990)
The court did not define which of the statutory factors could be aggravating and which were only mitigating. It did not need to. The aggravating or mitigating nature of the factors is self-evident within the context of each case. (People v. Musselwhite (1998)
Moreover, even if the instructions could be considered ambiguous in this regard,
Defendant interprets the prosecutor’s argument differently. He notes that at the outset, she argued that he was “simply too dangerous to live.” Argument of dangerousness is proper when based, as here, on the defendant’s past conduct. (People v. Ray, supra, 13 Cal.4th at pp. 352-353.) The prosecutor did not suggest that the evidence defendant presented of his mental state was itself aggravating. As defendant notes, the prosecutor did discuss this defense evidence; indeed, she discussed it extensively, as she probably had to given the emphasis the defense placed on it. We have reviewed that argument, including the excerpts defendant cites. The prosecutor argued that for many reasons the evidence regarding his mental state was not mitigating under the circumstances. But she did not argue the reverse— that the evidence was actually aggravating. In addition, as noted, the court instructed the jury that the absence of any
In short, we see no reasonable likelihood the jury interpreted the instructions as allowing it to consider in aggravation the evidence defendant presented of his mental state. (People v. Kelly, supra,
3. Miscellaneous Contentions
Defendant reiterates various arguments that we have rejected. We see no reason to reconsider our previous decisions. The lying-in-wait special circumstance adequately distinguishes between first degree murders that are death eligible and those that are not. (People v. Carpenter, supra,
Neither intercase proportionality nor disparate sentence review is required. (People v. Riel, supra,
4. International Law
Defendant contends his death sentence violates international law. He claims that the alleged errors, “which denied [him] a fair trial and constitutional penalty phase, also violated customary international law as informed by the Universal Declaration of Human Rights, the International
Defendant also argues that “the death penalty, as applied in the United States and the State of California, violates customary international law as evidenced by the equal protection provisions of the above mentioned instruments as well as the International Convention Against All Forms of Racial Discrimination.” He does not have to turn to international law for protection from racial discrimination. Both the state and federal Constitutions and various statutory provisions prohibit the state from engaging in racial discrimination. Defendant has not shown, under the state or federal Constitution or international law, that “his rights to due process of law and to be free from invidious discrimination on the basis of race have been violated.” (People v. Jenkins, supra, 22 Cal.4th at p. 1055.) International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements. (Ibid.; see also People v. Ghent (1987)
5. Effect of Partial Reversal
We are reversing the kidnapping for robbery conviction and kidnapping-murder special circumstance. This partial reversal, however, does not require setting aside the death judgment. The jury properly considered all of the evidence. It was well aware of the circumstances of Schultz’s murder. It would not have given significant independent weight to the kidnapping conviction itself rather than the overall circumstances of the capital crime and the aggravating and mitigating evidence. (People v. Kelly, supra,
III. Conclusion
We reverse the kidnapping for robbery conviction and the kidnapping-murder special circumstance and otherwise affirm the judgment.
George, C. J., Kennard, J., Baxter, J., Werdegar, J., and Brown, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
As to some of these contentions, defendant also argues the trial court erred in denying his motion to acquit for insufficient evidence. (§ 1118.1.) This argument merely repeats the same insufficiency argument in a different form. (People v. Crittenden (1994)
Defendant also argues that the court erred in responding to a jury question regarding the kidnapping charge. Because we set aside that charge on other grounds, we need not consider the contention.
Although this claim involves both the guilt and penalty phases, we consider the entire claim here because the arguments are intertwined.
The court instructed as follows: “In argument counsel have made reference to refer to transcripts or check the transcript. Let me clarify one thing. You will not have any transcript in the jury room to refer to during your deliberations. If you want readback of testimony, and I find it to be on a material point, then I’ll direct the court reporter to go in and read back testimony, ft]] And when you ask for a witness’ testimony to be read back, the entire testimony of that witness is read back so that everything is in context. I think that you will find that once you get back there and start your deliberations, that the twelve of you collectively will have a pretty good recall of what took place in this courtroom. ft[] The procedure for readback is the court reporter comes in and reads the testimony without comment and then leaves. And if you request it and I find it to be on a material point, you certainly will have that available to you.” (Italics added.)
To avoid any possible ambiguity in the future, we suggest that, on request, the court merely tell the jury it may not consider in aggravation anything other than the aggravating statutory factors.
Concurrence Opinion
Justice Moreno in his concurring and dissenting opinion disagrees with the majority that substantial evidence supports the lying-in-wait special circumstance. Although the evidence is not strong, I agree with the majority that it is sufficient to support this special circumstance. I reiterate
Because I agree with the majority that substantial evidence supports the lying-in-wait special circumstance, I need not here explore the differences between the special circumstance and lying in wait as a form of first degree murder.
Concurrence Opinion
I concur in the majority opinion, except that I would reverse the lying-in-wait special-circumstance finding, because it is not supported by substantial evidence.
“As construed by the United States Supreme Court, the Eighth Amendment requires that a death penalty law ‘rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not’ [citation], and establish ‘rational criteria that narrow the decisionmaker’s judgment as to whether the circumstances of a particular defendant’s case meet the threshold.’ [Citation.]” (People v. Holt (1997)
In California, this narrowing function is performed by requiring a finding that the murder involved special circumstances before a defendant is eligible to receive the death penalty. (Pen. Code, § 190.2) “[T]he special circumstances serve to ‘ “guide” ’ and ‘ “channel” ’ jury discretion ‘by strictly confining the class of offenders eligible for the death penalty.’ [Citation.]” (People v. Bacigalupo (1993)
One special circumstance is that “[t]he defendant intentionally killed the victim by means of lying in wait.” (Pen. Code, § 190.2, subd. (a)(15).) We held in People v. Morales (1989)
This court held there was sufficient evidence of lying in wait, despite the circumstance that the victim was aware of the defendant’s presence prior to the attack, “based on defendant’s watchful waiting, from a position of advantage in the backseat, while the car was driven to a more isolated area, and his sudden surprise attack, from behind and without warning . . . .” (People v. Morales, supra,
The evidence in the present case does not satisfy the third prong of the Morales test. Defendant’s brother and accomplice, Lonnie Hillhouse, testified that defendant stated he planned to rob and kill the victim, who was passed out on the front seat of the victim’s truck. With defendant driving and Lonnie seated next to the victim, they drove out of Chico into a less populated area. At defendant’s direction, Lonnie removed money from the victim’s pockets and gave it to defendant. The victim woke up and, at his request, they turned around and headed back towards Chico. They pulled over at the victim’s request, and Lonnie walked to the back of the truck. The victim walked a couple of feet from the truck and began urinating. Defendant approached the victim and said something that Lonnie could not quite hear. The victim responded: “Don’t fuck with me while I’m peeing.” Defendant, who was standing in front of the victim, said: “I ought to kill you.” Lonnie then “heard a thunk” as defendant stabbed the victim in the chest. The victim began “gasping for air.” Lonnie turned away, but looked back when he felt something hit the truck and saw the victim leaning against the door with his hands on his chest. Defendant grabbed the victim, threw him to the ground and stabbed him three more times.
It is undisputed that defendant concealed his purpose to kill the victim until he felt the circumstances were conducive to committing the crime, but that is not enough to constitute lying in wait. If it were, most premeditated murders would involve lying in wait and this special circumstance would not perform its function of narrowing “ ‘the class of persons eligible for the death penalty’ ” and so “afford some objective basis for distinguishing a case in which the death penalty has been imposed from the many cases in which it has not.” (People v. Bacigalupo, supra,
In the present case, unlike in Morales, defendant did not surprise his unsuspecting victim from behind. Defendant approached the victim, spoke to him, and said that he ought to kill him, before he stabbed the victim in the chest. This evidence thus does not establish the third prong of the Morales test, i.e., “a surprise attack on an unsuspecting victim from a position of advantage.” (People v. Morales, supra,
Accordingly, I would reverse the lying-in-wait special-circumstance finding. In all other respects, I concur in the majority opinion.
Appellant’s petition for a rehearing was denied May 15, 2002.