Lead Opinion
Opinion
A jury convicted defendant Albert Cecil Howard of the first degree murder, mayhem, and robbery of Lois (Roy) Fried (Pen. Code, §§ 187, 203, 211)
As discussed below, we reverse the convictions for attempted murder and attempted mayhem and strike the related enhancement findings. We also strike the finding on the financial-gain special circumstance. In all other respects, the judgment is affirmed.
I. Facts
On May 25, 1982, defendant was visiting friends and relatives in the City of Tulare. Defendant had temporarily left his residence in Compton to avoid retribution from his former employer, whose motorcycle shop he had burglarized.
Early in the afternoon a party began at Eddie Franks’s house, where defendant was staying. At the party were defendant, his mother Paralee Faulk, his aunt Dorothy Haynes, his half brother Johnny Malone, his sister-in-law Pamela Malone, his half brother Ernest (Ernie) Malone, Ernie’s girlfriend Denise Devine, Johnny Washington, and Howard Green. Drinking and socializing continued well into the evening.
Defendant left the party several times with Ernie
Eventually, defendant and most of the other people at Eddie’s house found their way to a second party at the home of defendant’s sister, Lavern Howard. Testimony about when defendant left Eddie’s house was wildly inconsistent. The witnesses’ recollections were vague, openly speculative, influenced in some cases by the consumption of alcohol, and generally impossible to reconcile. According to various witnesses, defendant could have left Eddie Franks’s house as early as 8 p.m., after 10:45 p.m., or at any point in between.
In any event, by 11:30 p.m. the party at Lavem’s house included Lavern herself, her husband Richard Sanders, Johnny Malone, Pamela Malone,
Many of the people at Lavern’s house heard defendant talking about something that had happened earlier that evening. Defendant was “excited” аnd “hyper.” As Lavern later testified, defendant was “boasting” that he had “gotten some money” and “brought somebody down.” Defendant said that he had “stomped” “a dude" with his foot. Ernie had “tried to stop him” but, as defendant told the story, “this old mother-fucker seen me, and he ain’t going to see me no more.” Other people heard defendant brag that he had “stomped” someone, “stomped somebody’s face in from being identified,” or “brought somebody down." Lavern also testified that Ernie, according to defendant, “was supposed to have [done] something to some woman.” Besides Lavern, the witnesses who heard defendant describe the incident included Richard Sanders, Pamela Malone, Denise Devine, and Johnny Washington. Defendant’s mother had recounted a similar statement to the police but repudiated it at trial.
About 1 a.m. the next morning, Ernie Malone arrived at Denise Devine’s apartment. When Denise turned on the lights, she saw a wallet, money, and identification cards on the kitchen table. The cards belonged to Roy and Gladys Fried. Ernie asked Denise to count the money. She counted $540, which Ernie pocketed. Later, about 4 a.m., defendant arrived with Johnny and Pamela Malone. Defendant told Denise that he had bought Johnny’s car. Ernie got upset and told defendant that “he had to leave because he talked too much.” The next morning, Denise put the identification cards in a bag and discarded them in a dumpster.
About noon that same day, defendant visited Pamela. She asked defendant where he had gotten the money to buy her husband’s car. As before, defendant explained that he had “brought somebody down.” Defendant also explained, in more detail, that he and Ernie had “knocked on somebody’s door, and an old man came to the door.” The man “got hit” and grabbed defendant’s leg. Defendant demonstrated with his foot how he had then “stomped” the man.
Roy Fried lived with his wife, Gladys, in a house in Tulare. Eddie Franks’s house was one block away, connected by an alley. Mr. Fried was
About 3:30 p.m. the next day, Leland’s fiance Janice Yagel and her daughter Kim Payne drove to the Frieds’ home. Janice stayed in the car while Kim went in to return Mrs. Fried’s medical card. When no one answered her knock, Kim opened the door and saw Mr. and Mrs. Fried on the floor, lying on their stomachs. Mr. Fried’s walker was on top of his body and his pockets were turned inside out. Mrs. Fried, who was wearing a nightgown, had her arm over her husband’s back. When Mrs. Fried lifted her head to see who was at the door, Kim saw that her face was bloody. Kim yelled for help, and Janice telephoned the police. Mr. Fried’s body was cold and had no pulse.
The police and medical technicians arrived a few minutes later. Mrs. Fried was cold, clammy, and breathing heavily, and her face, eyes, nose, and mouth showed extensive injuries. The ambulance crew аdministered first aid and took her to the hospital. Mr. Fried was pronounced dead. Rigor mortis had set in, and he was lying in blood and other bodily fluids. There was broken denture material on the living room floor. The house had been ransacked. The Frieds’ sons later confirmed that a large amount of cash was missing. Leland had recently repaid a $2,000 loan in cash. The tan, “government-type” envelope into which Mrs. Fried had put the money was lying on the floor, empty. Also missing were Mr. Fried’s wallet, in which he ordinarily kept several hundred dollars, and the purse that Jo Ann had given Mrs. Fried the previous Christmas. An expert on crime-scene reconstruction testified that the crimes could have been committed in as few as eight minutes.
The autopsy showed that Mr. Fried had suffered multiple blows to the head, face, neck, and chest. A blow to the neck had separated the larynx and trachea from the spine. A blow to the right eye had pushed the eyeball backwards and fractured the orbit. Multiple blows to the head had caused intracranial bleeding and bruised the brain. The blows had been delivered with considerable force by a tapering, firm or hard object and were consistent with having been delivered by a shod foot. At several places, the decedent’s face showed a raised, curlicue pattern of small bruises. There were no defensive wounds. The cause of death, which took several minutes, was asphyxia with associated cranial and cerebral trauma.
Mrs. Fried had suffered very similar injuries, including multiple blows to the head, face, and eyes. Her eyelids were so swollen that they had to be
The next day, May 27, defendant went with his sister Lavem to a pharmacy across the street from the Frieds’ home. According to Tavern’s testimony, the clerk was talking about how a friend of hers had been killed. Once outside the store, defendant told his sister that “he had a murder beef and he had to get out of town.” He also said that “we’d be hearing about it on the news.”
Police arrested defendant later that day in the car he had bought from Johnny Malone. Defendant gave a false name. Because he was barefoot and the sidewalk was hot, he told an officer that he would like to have his shoes out of the back seat. Officer Troy Otto went to get the shoes, but put them back because defendant was already in the patrol car. Tater forensic examination showed that the shoes, a pair of black and white, tasselled, plastic, wing tip loafers, matched the curlicue pattern on decedent’s face. Five witnesses had recently seen defendant with such shoes. That same day, police recovered Mr. and Mrs. Frieds’ identification and charge cards, as well as some family photographs, from the dumpster outside Denise Devine’s apartment. The cards were in a bag with a piece of paper bearing the handwritten words “Uncle Ernie.” Police sеized Mrs. Fried’s purse from Denise’s apartment.
Defendant, who testified at trial, denied involvement in the crimes. He explained his statements about “stomping” a man as references to a fight in Compton with John Hughes, his former employer. In April, defendant had burglarized Hughes’s motorcycle shop. Hughes and his brother later attacked defendant with a pipe and broke defendant’s arm. Hughes, who testified at trial, corroborated defendant’s claim that defendant had burglarized the store in April 1982 and later become involved in a fight. Alfred Hunter, defendant’s friend of 15 years who had witnessed the fight, testified that Hughes “was kicking and stomping” defendant. Hunter had previously been convicted of automobile theft and burglary. Booker Beard, who knew defendant well, testified that he had heard Hughes threaten defendant, saying that “if [defendant] didn’t leave Compton he wasn’t never going to leave.” Beard had been convicted of automobile theft and a narcotics charge.
Defendant also explained that he was referring to Hughes, rather than to Mr. Fried, when he said that the “mother-fucker won’t see my face again.” According to defendant, he made the statement because his girlfriend Novalene Taylor, who had remained in Compton, told him over the telephone
Defendant denied telling Pamela Malone on May 26 that he had robbed an elderly man and woman. According to defendant, he did not see Pamela on that day and spent most the afternoon having his car repaired. Melvin Alston, a neighbor who repaired automobiles on the side, testified that defendant slept at Alston’s house while Alston worked on the car. Alston had previously been convicted of burglary.
Defendant testified that the money he used to buy Johnny Malone’s car came from the Compton burglary. He denied that the wing tip shoes in the car belonged to him. He admitted owning a pair of shoes “almost exactly” like those in evidence but said that his were made of leather rather than plastic. Finally, the defense exploited the contradictory testimony about the timing of events on May 25, emphasizing those accounts which portrayed defendant as leaving Eddie’s house for Lavern’s before 10 p.m., when Jo Ann Fried talked with the victims over the telephone.
II. Guilt Phase
A. Wheeler/Batson Claim.
1. Alleged racial bias. Defendant moved at trial to quash the jury panel on the ground that the prosecutor had used peremptory challenges to exclude two Black prospective jurors solely because of their race. (See People v. Wheeler (1978)
What a party must do to establish a prima facie case of group bias under Wheeler is well settled. “If a pаrty believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he
The prosecutor in this case exercised eleven peremptory challenges. His third and fourth challenges were to Black prospective jurors; the remaining nine challenges were to Whites. Defendant objected under Wheeler at the conclusion of voir dire, just before the jury was sworn. Defendant’s Wheeler motion was timely and Black persons obviously form a cognizable group. (Wheeler, supra,
Thus, defendant relied solely on the fact that the prosecutor had challenged the only two Black prospective jurors. Defendant did not make any effort to set out the other relevant circumstances, such as the prospective jurors’ individual characteristics, the nature of the prosecutor’s voir dire, or the prospective jurors’ answers to questions. A showing as limited as defendant’s offers little practical assistance to the trial court, which must determine from “all the circumstances of the case” whether there is “a strong likelihood” that prospective jurors have been challenged because of their group association rather than because of any specific bias. (Wheeler, supra,
In view of defendant’s meager showing, the People argue that this case is governed by People v. Rousseau (1982)
Although defendant’s attempt to show a prima facie case was clearly inadequate, we have not limited our review in such cases solely to counsel’s presentation at the time of the motion. This is because other circumstances might support the finding of a prima facie case even though a defendant’s showing has been no more detailed than in the case before us. Nor should the trial court blind itself to everything except defense counsel’s presentation. Indeed, we have emphasized that such rulings require trial judges to consider “all the circumstances of the case” (Wheeler, supra,
For these reasons, when a trial court denies a Wheeler motion without finding a prima facie case of group bias the reviewing court considers the entire record of voir dire. (E.g., Bittaker, supra,
Prospective juror Betty T, who described herself as a “housewife,” was a nonpracticing registered nurse with a degree in sociology. She had lived in the county for 20 years, was married to a physician, and had 2 grown children. At voir dire the prosecutor asked her, among other things, about her views on the death penalty and about her medical training. Regarding the latter, he explained to her that “[t]he reason [he] ask[ed] those questions [was that] sometimes we run into jurors who have a basic expertise in an area that might be tested in this trial.” Betty T. said she did “not think” that her training would be a problem. Defense counsel did not directly question Betty T. about her degree in sociology but did ask how she would consider
Prospective juror Katie B. was a nurse’s aide who had completed the 10th grade. She had lived in the county for 39 years, was married to a retired gardener, and had no children. During the Witherspoon/Witt voir dire (see Witherspoon v. Illinois (1968)
The trial judge, who presided over the entire voir dire, was in a good position to decide from all the relevant circumstances
2. Alleged gender bias. Shortly before we heard argument in this case, defendant asserted the new claim that the prosecutor challenged one prospective juror solely because of her gender. We reject the claim because it was not raised in the trial court. (People v. Hayes (1990)
The prosecutor exercised 11 peremptory challenges, all to female prospective jurors. The jury as sworn included six female and six male jurors. Defendant did not assert gender bias as a ground for his Wheeler motion. Instead, he argued that two challenges were motivated solely by racial bias and that eight challenges were motivated solely by bias against persons opposed to the death penalty. We have already discussed the first argument. The trial court correctly rejected the second argument because persons opposed to the death penalty do not make up a cognizable class for Wheeler purposes. (People v. Zimmerman (1984)
After the trial court denied the Wheeler motion, the prosecutor submitted a declaration to explain his reasons for challenging the eight jurors whom defense counsel had described as opposed to the death penаlty. The prosecutor stated that he had challenged one prospective juror, Lyn V., not because of her views on capital punishment but because she “was a seductive looking female who [the prosecutor] felt might distract the attention of the male jurors.” Defendant interprets this statement as “an admission of purposeful gender discrimination.”
In Hayes, supra,
Next, defendant argues that it would have been futile at the time of trial to assert a claim based on the improper exclusion of a single juror. This may have been true under federal law because of Swain v. Alabama (1965)
Finally, defendant argues that the prosecutor’s decision to volunteer reasons for challenging Ms. V. makes the issue cognizable on appeal despite Hayes (supra,
Because we had already rejected Swain as a matter of state law at the time of defendant’s trial (see Wheeler, supra, 22 Cal.3d at pp. 283-287), and because Wheeler expressly authorized trial courts to inquire into the validity of particular peremptory challenges (ibid.), Andrews v. Deland, supra, has no bearing on this case. Moreover, nothing in the Tenth Circuit’s opinion suggests that a prosecutor’s decision to volunteer explanations excuses a defendant from the ordinary obligation to raise claims of error in the trial court. Because defendant did not raise the claim below, it is waived. (Hayes, supra,
B. Cross-sectional Representation/Ineffective Assistance Claim.
Defendant next argues that the venire did not fairly represent the Hispanic population of Tulare County. He attributes the alleged underrepresentation to the trial court’s having excused a large number of prospective jurors for hardship. Defendant waived this claim by failing to raise the point below. (Code Civ. Proc., § 225, subd. (a)(1); see former § 1060, repealed by Stats. 1988, ch. 1245, § 21, p. 4155.) For purposes of the appeal, defendant has restated the claim as one of ineffective assistance based on counsel’s failure to challenge the panel. However, such a challenge would not have been meritorious.
Under the federal and state Constitutions, a criminal defendant is entitled to a jury drawn from a representative cross-section of the community. (U.S. Const., Amend. VI; Cal. Const., art. I, § 16; Duren v. Missouri (1979)
To satisfy the third part of the Duren test, a defendant must show that the claimed underrepresentation was “due to systematic exclusion of the group in the jury selection process.” (Duren, supra,
Defendant attempts to find an impropriety in the court’s treatment of the venirepersons’ hardship claims.
In fact, the record does not support defendant’s assertion of impropriety or abuse of discretion. The court evaluated 364 claims of hardship, including 65 by Hispanics. Of these many instances, defendant has identified only three in which he believes the court applied a more lenient standard to Hispanics than to non-Hispanics. Of the three Hispanic venirepersons whose excusal defendant now questions, one thought that jury service would prevent her from being paid, one’s son had multiple doctor’s appointments, and one said
Defendant also restates his contention as one under former section 1059, which at the time of trial would have permitted him to challenge the jury panel based on “a material departure from the forms prescribed in respect to the drawing and return of the jury . . . .” (See former § 1059, repealed by Stats. 1988, ch. 1245, § 20, p. 4155.) Because defendant did not challenge the panel in the trial court, he again presents the claim as one of ineffective assistance of counsel. To fit the claim within section 1059, defendant characterizes the trial court’s apparently lenient standard for evaluating hardship claims as a violation of the Code of Civil Procedure, which authorizes the excuse of eligible persons only for “undue hardship.” (Code Civ. Proc., § 204, subd. (b); see former Code Civ. Proc., § 200, repealed by Stats. 1988, ch. 1245, § 1, p. 4140.) Defendant argues, citing People v. Buford (1982)
It is true that the trial court granted an unusually large number of excuses for hardship. The court disapproved only 7 of 364 requests. We do not necessarily approve of such practices. (See People v. Thompson (1990)
C. Claim of Mental Incompetence.
Defendant contends that the trial court erred on two occasions by not ordering, sua sponte, a hearing on his competence to stand trial. (See Pate v. Robinson (1966)
Defendant claims the court should first have ordered a hearing, sua sponte, on the occasion of his motion for a continuance. Five days before jury selection was to begin, defense counsel informed the court that defendant was suffering from uveitis, an inflammation of the eyes, and could not see well. Defendant also reportedly suffered from other physical ailments such as headaches, dizziness, and tiredness. Defendant’s ophthalmologist testified that uveitis was usually a symptom of a more serious disease and that defendant needed tests and treatment. The ophthalmologist thought that defendant’s other ailments might have been due to anxiety over his medical condition. Counsel moved for a continuance because he feared that defendant’s condition would prevent him from effectively participating in the defense. At the conclusion of the hearing, the trial court continued the trial for approximately three months. Neither defense counsel nor anyone else suggested that defendant was mentally incompetent. Apparently defendant received appropriate treatment; no further complaint about his medical condition appears in the record.
Defendant also argues that the court should have ordered a competence hearing, sua sponte, on the occasion of his motion for a mistrial or change of venue. The motion was based on apparent harassment by jail personnel during the jury-selection phase. Deputy sheriffs assigned to the Tulare County jail had sometimes refused, despite a court order, to permit a law clerk on the defense team to consult with defendant in a private room. On other occasions deputies had kept defendant unnecessarily in a crowded holding tank after court recessed rather than returning him immediately to his regular cell. As a result of these incidents defendant believed that he was “being punished by the staff at the jail.” At the hearing on the motion, defense counsel added that defendant was “angry” with counsel over the jail situation, “so agitated” that counsel “could hardly control him at several points,” and “so emotionally upset by what is going on and [the] treatment that he is receiving that he is not able to really effectively participate in his trial.” Counsel also asserted that his own ability to conduct voir dire was being impaired by defendant’s preoccupation with jail conditions.
Applying these principles to the record before us, we cannot say as a matter of law that the evidence raised a reasonable doubt as to defendant’s mental competence. A defendant is mentally incompetent “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, italics added.) The circumstances underlying defendant’s motion for a continuance indicated that he needed medical attention, and those underlying his motion for a mistrial indicated that the conditions of his confinement were unsatisfactory. However, nothing about either incident remotely suggested that he was mentally incompetent. Thus, the court was not required to order a hearing.
Later in the proceedings, defense counsel expressly questioned his client’s competence. During the penalty phase, at the close of the People’s case in aggravation, defendant decided that he did not want counsel to present mitigating evidence.
Under section 1368, if “a doubt arises in the mind of the judge” as to the defendant’s mental competence, the judge must “state that doubt in the
This is not to say that counsel’s opinion had no importance. To the contrary, the court must order a hearing whenever there is substantial evidence of incompetence (Pennington, supra,
D. Unreported Conferences.
The stenographic record in this case does not include three bench conferences and one conference in chambers. Although the trial judge conducted a hearing to settle the record, he declared himself unable to make findings on the matter for lack of an independent recollection of the unreported proceedings. Defendant contends that the omissions from the record require the judgment to be reversed. In opposition, the Attorney General argues that defendant waived the point by failing to request a reporter at the proceedings in question. We reject the contention not because of a waiver, but because defendant has not shown that the omissions were prejudicial.
The trial in this place took place before the enactment of section 190.9 (added by Stats. 1984, ch. 1422, § 2, p. 4994), which requires that all
The omissions in this case are not prejudicial because the record is adequate to permit defendant to argue each of the points purportedly addressed in the unreported conferences. We have already mentioned the first such conference, which occurred during jury selection. Counsel claims to have informed the court at that conference that defendant was emotionally upset over conditions in the Tulare County jail and that defendant’s preoccupation with the matter was impairing counsel’s ability to conduct voir dire. (See p. 1162, fn. 9, ante.) Counsel argues that he asserted defendant’s constitutional right to be mentally present at trial only in the unreported proceeding. However, we do not read the record so grudgingly. On the preceding day, counsel argued on the record that harassment at the jail was “interfering with [defendant’s] mental state and his approach to this trial, which is really in effect denying him a fair trial.” While the claim lacks merit (see p. 1161 et seq., ante), it is clear that counsel sufficiently preserved the point for appellate review.
The same is true of each of the remaining unreported conferences. In the second conference, defense counsel claims that he moved under Evidence Code section 352 to strike testimony by Albert Fried about his mother’s physical appearance after she was attacked. In the third conference, counsel claims to have objected under the same statute to the prosecutor’s cross-examination of defendant about defendant’s statement that he had once sold stolen coins to a “fence.” Each of these objections appears on the record. Thus, the record is adequate to permit review even though defendant has not renewed the claims on appeal. In the fourth conference, counsel moved in limine to restrict cross-examination of a proposed expert witness for the defense. The expert, a psychiatrist, was aware of matters in defendant’s criminal record that the court had decided not to admit as circumstances in aggravation. Counsel asked the court to bar cross-examination on such matters, but the court denied the motion. Here, too, the record is adequate for
Defendant also argues that, in view of the transcript’s omissions, the United States Constitution requires the judgment to be reversed. However, there is no federal requirement that all proceedings be transcribed. (See Adkins v. Bordenkircher (4th Cir. 1982)
E. Motion to Change Venue.
Defendant moved before trial to change venue on the ground that news coverage of the Fried killing would make it difficult to obtain a fair trial. The trial court denied the motion. On appeal, defendant urges that the court erred and that the failure to change venue caused actual prejudice.
As a preliminary matter, we reject the People’s contention that defendant has waived this claim. Because the trial court initially denied the motion without prejudice, defendant needed to renew it at the close of voir dire in order to preserve the issue for appeal. (People v. Hoover (1986)
Under section 1033, the trial court must grant a motion to change venue if “there is a reasonable likelihood that a fair and impartial trial cannot
The charged offenses in this case were obviously serious. However, every capital case involves a serious charge. While this factor adds weight to a motion to change venue, it does not in itself require a change. (People v. Cooper (1991)
Defendant claims that his status as a nonresident also weighed in favor of changing venue because, in comparison with the resident victims, it cast him in an unfavorable light.
The size of Tulare County, which we have recognized is not a small community, does not weigh substantially in favor of a change of venue. (People v. Hamilton (1989)
In short, the gravamen of defendant’s motion, as well as its asserted basis, was the extent of pretrial publicity. In support of his motion, defendant showed that the local media had given significant attention to the crimes at the time of their commission and in the months before trial. Newspapers had reported that defendant’s half brother had been found guilty as an aider and
Defendant argues that the results of these surveys weighed heavily in favor of changing venue. However, the degree of exposure to publicity that defendant claims was far lower than in other cases in which a change of venue was not required. (See, e.g., Jennings, supra, 53 Cal.3d at pp. 359-363 [72 percent of sample recalled the crime, and 31 percent believed the district attorney had a very strong case against the defendant]; People v. Coleman (1989)
Although defendant predicted in limine that pretrial publicity would affect his ability to obtain a fair trial, on appeal we must consider that forecast “in conjunction with the actual selection of the jury.” (Coleman, supra,
The jurors and alternates sworn to try the case stated that they could and would decide it impartially, based on the evidence presented in court. In view of the survey results, defendant argues that we should view such statements with skepticism. To be sure, the jurors’ assertions of impartiality do not automatically establish that defendant received a fair trial. However, a review of the entire record of voir dire may still demonstrate that pretrial publicity had no prejudicial effect. (Coleman, supra,
Defendant interprets the voir dire testimony of two jurors and two alternates as indicating some exposure to news reports about the case. As to all but one alternate, however, the record does not necessarily support defendant’s interpretation. Juror Main, asked whether he had read or heard anything about the killing, testified: “There are so many that I hear and see on television that I don’t recall that one particularly.” Juror Warren, asked whether he had heard about the trial of defendant’s accomplice, testified: “It seems like the name Malone is familiar, but I don’t know what the connection is.” Warren did not recall any publicity. Alternate Hubler’s testimony was similar: “I have probably heard about them [defendant’s and Malone’s trials] on the news, but it is nothing that I dwelled on or that I remembered.” Hubler did not recall anything about the case. Of all the jurors and alternates, only alternate Babb clearly remembered hearing about the Fried killing. She had read in a newspapеr that “an elderly couple had been robbed and the man had been killed.” However, Babb did not remember anything else about the case and had no opinion on defendant’s guilt or innocence.
In summary, voir dire demonstrated the following about the impact of pretrial publicity on the jury: Ten of the jurors and one of the alternates had no recollection whatever of publicity. There was the barest possibility of exposure for jurors Warren and Main and alternate Hubler, but none remembered anything about the case. Alternate Babb had heard about the crime but remembered nothing other than that an elderly couple had been robbed and the man killed. Neither of the alternates was called upon to serve as a juror.
On this record, we cannot hold that there is a reasonable likelihood that defendant did not have a fair and impartial trial. Vague recollections of news reports by a few jurors do not compel a change of venue. Indeed, a much greater degree of exposure to pretrial publicity would not necessarily have compelled the court to order a change. As courts have recognized, “ ‘[i]t is not required . . . that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of
Under these guidelines, the effect of pretrial publicity on the jury in this case was insignificant. Not only did the jurors and alternates lack an “ ‘impression or opinion of the merits of the case’ ” (People v. Harris, supra,
F. Denial of Continuance.
Defendant argues that the trial court abused its discretion by denying his request for a continuance at the conclusion of the guilt phase. Defendant wished to locate an expert witness and to reopen his case-in-chief for the expert’s testimony, assuming one could be found. The argument lacks merit because defendant did not show good cause for a continuance.
At the time defendant was arrested, there was a pair of black and white, wing tip shoes in his car. Five witnesses had seen defendant with such shoes. During the People’s case-in-chief, two pathologists and a criminalist testified that a curlicue pattern of bruises on the deceased victim’s face and neck could have been made by the shoes’ decorative perforations. While the bruises reflected the shoes’ exact pattern, no expert could positively attribute decedent’s bruises to the particular shoes. Defense counsel’s cross-examination emphasized the experts’ uncertainty. In addition, defendant testified that the shoes were not his. The People rebutted defendant’s testimony by recalling the arresting officers. According to the officers, defendant was not wearing shoes when they stopped him and asked him to get out of his car. Because the sidewalk was hot, defendant asked an officer to retrieve his shoes from the back seat of his car. Those shoes were the shoes in evidence.
After the prosecution completed its rebuttal, the defense requested permission to reopen its case-in-chief for expert testimony about the connection between decedent’s injuries and the shoes. Based on counsel’s representation that he was expecting a witness to arrive “at any time,” the court recessed instead of beginning with closing argument. A few hours later, however,
The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge. (People v. Laursen (1972)
Under this standard, defendant’s attempt to establish good cause was inadequate in two respects. First, defendant did not show that any expert existed who would be willing and able to offer material testimony within a reasonable time. (See Owens v. Superior Court, supra, 28 Cal.3d at pp. 250-251.) Instead, defendant could only offer the prospect of further delay while he searched. Second, the defense had not been diligent in securing an expert witness’s attendance. (See ibid.) The defense had been aware of the People’s experts since before trial and had had an additional ten days after those experts testified to decide whether to present a rebuttal expert. The decision not to do so achieved the tactical benefit of avoiding further expеrt testimony to the effect that Mr. Fried had been kicked to death—testimony that defendant could understandably wish to avoid. Defendant argues that the police officers’ testimony amounted to a change in circumstances that compelled a reevaluation of counsel’s decision. However, the officers’ testimony dealt solely with the issue of who owned the shoes; it had no bearing on the subject matter of expert testimony. On this weak showing, we cannot conclude that the trial court’s ruling was an abuse of discretion.
Nor did the court’s ruling deny defendant his federal constitutional rights to due process and compulsory process. “[I]t is not every denial of a
G. Instructional Error.
1. Instructions on Aiding and Abetting. The trial court instructed the jury regarding the liability of an aider and abettor because there was evidence to show that Ernie Malone accompanied defendant into the Frieds’ home and that Malone, rather than defendant, attacked Mrs. Fried. We subsequently held that instructions of the type given here are defective because they do not explain that an aider and abettor must share the principal’s unlawful purpose or intend to commit, encourage, or facilitate the crime. (People v. Beeman (1984)
Defendant argues that these errors, which the People concede in their brief, require us to reverse his convictions for attempting to murder and attempting to commit mayhem upon Mrs. Fried. Defendant theorizes that the instructions would have permitted the jury to find him guilty of these crimes even if Malone had committed them and even if he had not shared Malone’s intent. Under the circumstances of this case, the claim has merit.
We ordinarily hold instructional error such as this to be harmless when the factual question of intent was necessarily resolved adversely to defendant under other, properly given instructions. (See, e.g., People v. Allison (1989)
The People’s concessions in their brief and at oral argument leave no basis on which we can determine beyond a reasonable doubt that the jury did not base its verdict on the erroneous aiding-and-abetting instructions. (Chapman v. California (1967)
2. Lack of Instructions on Accomplice Testimony. Defendant submitted proposed instructions regarding the weight and effect of accomplice testimony. (CALJIC Nos. 3.10, 3.11, 3.12, 3.18.) The court did not give the instructions, but the record does not show whether they were withdrawn or refused. Defendant claims on appeal that the instructions were necessitated by the testimony of Denise Devine. However, the record does not indicate that defendant made such an argument in the trial court.
In any event, the claim of instructional error lacks merit. An accomplice for these purposes is “one who is liable to prosecution for the identical offense charged against the defendant. . . .” (§ 1111.) Only through bare speculation could the jury have concluded that Devine was guilty of the charged offenses as an accomplice. Although many people attended the party at Eddie Franks’s house on the night the crimes occurred, no witness testified that Devine left the house with defendant and Ernie Malone, the known perpetrators. Malone, Devine’s boyfriend, came to her house the next morning with items stolen from the Frieds. Devine counted some money, hid a purse, and helped to dispose of stolen identification and credit cards. This evidence, however, would at most have made her an accessory after the fact. Mere accessories are not accomplices under section 1111. (People v. Daniels (1991)
Defendant also argues that Devine was an accomplice based on a tape-recorded statement by Mrs. Fried to the effect that an unidentified Black
Even if Devine was not an accomplice as a matter of law, defendant argues that the court should nevertheless have submitted the issue to the jury based on the evidence presented at trial. It is true that a witness’s status is a question for the jury if there is a genuine evidentiary dispute and if “the jury could reasonably [find] from the evidence” that the witness is an accomplice. (People v. Hoover (1974)
H. Yurko Error.
Before trial, defendant admitted the special allegation that he had served a prison term for burglary within the preceding five years. Based on this admission, the trial court enhanced his sentence for the noncapital crimes by one year. (See § 667.5, subd. (b).) Defendant now contends that the special finding must be reversed because the trial court accepted his admission without first advising him, expressly and on the record, of the privilege against self-incrimination. (See In re Yurko (1974)
While the trial court clearly erred, the parties disagree on the applicable standard of review. Defendant argues that Yurko error involving Boykin/Tahl admonitions (see Boykin v. Alabama (1969)
We expressly based our decision in Yurko on the interpretations of federal law set out in Boykin and Tahl. (See Yurko, supra,
As discussed below, we now hold that Yurko error involving Boykin/Tahl admonitions should be reviewed under the test used to determine the validity of guilty pleas under the federal Constitution. Under that test, a plea is valid if the record affirmatively shows that it is voluntary and intelligent under the totality of the circumstances. (See North Carolina v. Alford (1971)
Before Boykin, supra,
The defendant in Boykin had been sentenced to death after pleading guilty to five counts of robbery. In taking the plea, “[s]o far as the record show[ed], the judge asked no questions of [the defendant] concerning his plea, and [the defendant] did not address the court.” (
Our first occasion to interpret Boykin came only five months later, before a substantial body of federal law on the point had developed. The defendant in Tahl (supra,
Although we considered the argument that the state Constitution also required explicit waivers, we expressly declined to base our holding on state law. We chose to rely instead on federal law because “it [was] our view that Boykin necessitate^] a more precise showing . . . .” (Tahl, supra,
Five years later we extended Tahl's requirement of express admonitions and waivers to cases in which the defendant admits a prior conviction for sentencing purposes. (Yurko, supra,
The rule that error under Yurko is reversible per se arose later. Neither Yurko nor Tahl had announced the rule in so many words. To the contrary, in each decision we noted that “there may be other circumstances in particular cases which may warrant the finding of a proper waiver . . . .” (Yurko, supra,
In the 22 years since Tahl, our interpretation of federal law in that opinion has not garnered significant support in the federal courts. Indeed, the high court has never read Boykin as requiring explicit admonitions on each of the three constitutional rights. Instead, the court has said that the standard for determining the validity of a guilty plea “was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant.” (North Carolina v. Alford, supra,
While the high court has never accepted our interpretation of Boykin, the federal appellate courts have expressly rejected it. Consequently, the weight of authority today makes it abundantly clear that “the California interpretation of Boykin announced in Tahl is not required by the federal Constitution . . . .” (United States v. Pricepaul (9th Cir. 1976)
This does not mean that explicit admonitions and waivers are no longer an important part of the process of accepting a plea of guilty or an admission of a prior conviction. Despite the rejection of Tahl as a matter of federal law, explicit admonitions and waivers still serve the purpose that originally led us to require them: They are the only realistic means of assuring that the judge
For these reasons we emphasize that explicit admonitions and waivers are still required in this state. We also reaffirm our caveat in Tahl that trial courts “would be well advised to err on the side of caution and employ the time necessary to explain adequately and to obtain express waivers of the rights involved. At stake is the protection of both the accused and the People, the latter by the assurance that an otherwise sound conviction will not fall due to an inadequate record.” (
We next consider whether the record in this case affirmatively shows that defendant’s admission of the prior conviction constituted a knowing and voluntary waiver of his constitutional rights. For these purposes, we set out the trial court’s colloquy with defendant and his counsel:
“The Court: . . . Now, special allegation on page [two] at the top, is there going to be an admission of that?
“[Defense Counsel]: Yes, this is the prior conviction of burglary in 1980.
“The Court: All right. Mr. Howard, you have a right to present this— any of these allegations, of course, to the jury for their determination as to whether they’re true or not. It is my understanding that you wish to waive that right of presenting it to a jury; is that correct?
“The Defendant: Yes.
“The Court: All right. You realize you have the right to force the District Attorney to prove this and to bring in evidence and witnesses?
“The Defendant: Yeah.
“The Court: And be confronted by them? You wish to waive those rights?
“The Defendant: Yes.
“The Court: And so therefore, you are asking that the special allegation, each time it alleges the prior violation of Section 459 of the Penal Code, on the 2nd of September, 1980, you are—it is your intentiоn to admit that violation?
“Defendant: Yeah."
On this record, the absence of an express waiver of the privilege against self-incrimination does not lead us to conclude that defendant’s admission of the prior was less than voluntary and intelligent. As the Ninth Circuit has explained, “[a] plea of guilty is the most complete form of self-incrimination. By the plea, the defendant admits that he is guilty of the offense charged.” It is, thus, “essential that the defendant know that he has a right not to plead guilty, and that the record show he knows it.” (United States v. Sherman, supra, 474 F.2d at pp. 305-306.) However, when the record demonstrates that knowledge there is “no need to go farther and attach to such knowledge the talismanic phrase ‘right not to incriminate himself.’ ” (Id., at p. 306; see also U.S. v. Henry, supra,
The record in this case affirmatively demonstrates that defendant knew he had a right not to admit the prior conviction and, thus, not to incriminate himself. The court specifically informed defendant that he had a right to force the district attorney to prove the prior conviction in a trial and that, in such a trial, he would have the rights to a jury and to confront adverse witnesses. The admonitions were not empty words because defendant was actively represented by counsel and preparing for trial on charges to which he had pled not guilty. Moreover, there was a strong factual basis for the plea.
I. Erroneous Financial-gain Special Circumstance.
The jury found three special-circumstance allegations to be true: murder during the commission of robbery (§ 190.2, subd. (a)(17)(i)) and burglary (subd. (a)(17)(vii)) and for financié gain (subd. (a)(1)). Because the financial-gain allegation was based solely on the robbery, it was error to submit the allegation to the jury. This is because there was no evidence to the
III. Penalty Phase
Defendant strongly opposed, and ultimately frustrated, his counsel’s efforts to present a case in mitigation. This circumstance underlies several of defendant’s contentions on appeal. Although the contentions lack merit, they do require us to set out the procedural history of the penalty phase in some detail.
The jury returned its verdict of guilty on Tuesday afternoon. On Thursday morning, the trial court heard motions in limine relating to the penalty phase. The People wished to introduce, as circumstances in aggravation, one prior felony conviction for burglary (see § 190.3, factor (c)) and five alleged instances of prior violent criminal conduct (see § 190.3, factor (b)). Included in the latter category were an assault with a deadly weapon (§ 245), a kidnapping (§ 207), an incident involving vandalism and obstruction of a peace officer (§§ 148, 594), and two armed robberies (§ 211). According to the prosecutor, somе of these incidents had caused the state to revoke defendant’s parole. Apart from the burglary conviction, however, none of the incidents had led to criminal charges. Defense counsel, arguing that the People would not be able to prove any of the uncharged acts beyond a reasonable doubt, persuaded the court to exclude them all.
Defense counsel next asked the trial court either to impanel a new jury for the penalty phase or to permit additional voir dire to determine whether or not there was good cause to do so. (See § 190.4, subd. (c).) The court denied the motion.
At that point, defense counsel announced that he and his client did not agree on how to proceed during the penalty phase. In counsel’s words, defendant “does not want me to argue for life imprisonment, nor present any evidence in mitigation. And he—he wants the death penalty. If he were to testify and testifies, he would tell the jury so. We are still in disagreement on
Finally, counsel suggested that defendant’s apparent preference for the death penalty was “an irrational act” tantamount to “suicide” and, on that basis, asked the court to conduct a competency hearing under section 1368. The court, which was “quite impressed with the manner in which the defendant [had] conducted himself’ as a witness, declined to declare a doubt as to his competence and denied the motion. (See § 1368, subd. (a).) As already discussed, this ruling was correct. (See p. 1163 et seq., ante.)
When court reconvened on Friday, counsel reported that he arid defendant were still in disagreement over how to conduct the penalty phase. For that reason, counsel requested permission to withdraw from the representation. The court denied the motion, explaining its understanding of the matter as follows: “Now, if your client wants to get on the stand in this situation and it has happened before, and say what he wants to say in regards to the death penalty, you can still argue whatever you want for his life. There is no question about that. . . . You’re certainly more well acquainted with this file, had a closer insight than anybody that I can think of. And I feel you’ve done a very good job with what you had, and . . . I’ll deny the motion.” The court placed no restrictions on counsel, allowing him to proceed as he thought best under the circumstances.
The penalty phase began on Monday. Defense counsel informed the court that defendant had, after all, consented to the presentation of some mitigating evidence. However, counsel explained that defendant’s earlier refusal to permit such evidence had left him unprepared to begin and that he would need “a couple оf days to line up witnesses.” The court and counsel agreed that the prosecution would begin immediately and that the defense would begin on Wednesday.
Because defense counsel had persuaded the court to exclude all evidence of uncharged criminal conduct, the case in aggravation was limited to a single felony conviction for burglary. The People proved this conviction exclusively through certified records (see § 969b) and the testimony of two foundational witnesses, who identified defendant’s fingerprints and compared them with the fingerprints in the records. Defense counsel conducted a brief cross-examination. The People did not present evidence regarding the circumstances of the prior offense. Because the People had no more witnesses, the court recessed until Wednesday for the convenience of the defense.
In view of the court’s ruling, defense counsel announced that he would not call the witness for tactical reasons. In counsel’s words, “I feel it’s in my client’s best interest even though the [psychiatrist] would be helpful not to present that evidence and open the door to that cross-examination. So at this time we would have no witnesses to present. We are prepared to argue.”
Because the defense rested, the court permitted the prosecutor to begin his argument to the jury. Defense counsel interrupted at one point to object, and his objection led the prosecutor to forgo arguing that the death penalty had deterrent value.
When the prosecutor concluded his argument, defense counsel informed the court that defendant did “not want [counsel] to make any kind of argument on his behalf’ and that, if counsel did argue, defendant would interrupt the proceedings. Counsel did not renew his motion to withdraw. Instead, counsel announced that he would honor his client’s wishes. In counsel’s words: “It would be my position at this time then not to make any argument and see to my client’s wishes at this point. I feel that would be the least detrimental approach at this time.”
At that point, the court engaged in the following colloquy with defendant outside the jury’s presence:
“The Court: Mr. Howard, if Mr. Thommen [defense counsel] did make an argument—is it your intention disrupting—
“The Defendant: Yeah.
“The Court: —and say something to the jury and disrupt what he’s saying; is that correct?
“The Defendant: Yeah.
“The Court: And you understand that he has indicated to you that he feels that he could be helpful in arguing but you don’t want him to do that; is that right?
“The Defendant: I done been railroaded here already, you know, what I’m talking abоut. I’ve been convicted of a murder I didn’t do. It’s no use fighting no more. Let me get to the higher courts and get on out of here.
“The Court: You don’t want Mr. Thommen to argue any further; is that right?
“The Defendant: No.
“The Court: He’s explained what he would do?
“The Defendant: Yeah.
“The Court: If he gets up and attempts anything, you would just disrupt the whole thing?
“The Defendant: Yeah.
“The Court: Is that right? And you prefer that he just submit it right now; is that right?
“The Defendant: Yeah, Yeah.”
When the jury returned to the courtroom, defense counsel made this statement: “Based upon my client’s requests, Cecil has asked me not to make any argument in his behalf. I would submit the matter.” The court then instructed the jury on the law and directed them to begin their deliberations. Forty-seven minutes later, the jury returned a verdict of death.
A. Claims Related to Defendant’s Refusal to Permit Defense Counsel to Present a Case in Mitigation.
1. Improper “self-representation. ’’ As the record demonstrates, defendant strongly opposed, and ultimately frustrated, his counsel’s efforts to
Defendant’s claim of improper “self-representation” is both factually and legally unsound. It is factually unsound because defendant never asked to represent himself and because the record unequivocally demonstrates that counsel continued to function as such during the penalty phase. Among other things, counsel successfully moved to exclude virtually all of the evidence in aggravation, obtained two continuances, conducted cross-examination, and significantly limited the prosecutor’s closing argument.
Defendant’s claim is unsound legally as well as factually because it assumes that, if counsel honors his client’s wishes to forgo the presentation of a case in mitigation, counsel has ceased to function as counsel. We expressly rejected this argument in People v. Lang (1989)
Defendant relies on People v. Bloom (1989)
2. Ineffective assistance of counsel Our holdings in Deere II (supra,
In a reply brief, defendant also questions his counsel’s failure to present additional mitigating evidence after the trial court denied his motion to limit cross-examination of the proposed expert witness. (See p. 1183, fn. 21, ante.) Defendant concedes, however, that counsel’s “control of the defense strategy was short lived” because defendant thereafter resumed his opposition to any case in mitigation. As defendant also concedes, it is clear that counsel “did not present available mitigating evidence because [defendant] desired to be sentenced to death” and that counsel “vehemently opposed [defendant’s] decision not to present a penalty phase defense.” Under these circumstances, defendant may not complain of counsel’s acquiescence. (Deere II, supra,
3. Reliability of the verdict. Finally, defendant argues that the lack of mitigating evidence and argument makes the verdict constitutionally unreliable. We have previously rejected this contention, and no point would be served by repeating at length the reasoning of the opinions in which we did so. (See Deere II, supra,
Defendant asks us to reconsider our holding in People v. Brown (1985)
Defendant also contends that the same law is unconstitutional as applied to him because the court did not give an explanatory instruction on the weighing process (see Brown, supra,
To the extent defendant’s claims are based on the federal Constitution, they are obviated by Boyde v. California (1990)
To the extent defendant’s claims are based on state law, it is our practice to review the entire record to determine whether “the sentencer may have been misled to defendant’s prejudice about the scope of its sentencing discretion (Brown, supra,
According to defendant, the prosecutor’s emphasis on the statutory language was especially likely to mislead the jury in this case because defense counsel did not argue. If defendant had permitted his counsel to argue, counsel might have put the prosecutor’s remarks into context by emphasizing the jury’s sentencing discretion.
It is true that the statutory term “shall,” understood in context, refers only to the result of a “weighing” process. Moreover, it is important to convey the concept of “weighing” to the jury because it connotes “a mental balancing process” that is “incapable of precise description” and, hence, discretionary. (Brown, supra,
Defendant also argues that jury was misled about its ability to consider character and background evidence in mitigation. (Cf. Easley, supra,
In summary, the court’s instructions and the prosecutor’s remarks would have led a reasonable juror to understand that capital sentencing was
C. Davenport Error.
Two years after defendant’s trial we held that it is improper for a prosecutor to argue that a mitigating factor, in the absence of pertinent mitigating evidence, becomes an aggravating factor. (People v. Davenport (1985)
We have rejected many similar claims. (E.g., Jones, supra,
D. Booth/Gathers Error.
Defendant argues that the penalty verdict must be reversed under state and federal law because the prosecutor argued to the jury about the effect of defendant’s crimes on the victim’s family. The federal cases on which defendant relies were decided long after his trial (Booth v. Maryland (1987)
In Edwards, supra,
Of course, to say that the prosecutor may argue about the impact of the defendant’s crimes “does not mean that there are no limits on emotional evidence and argument.” (Edwards, supra,
It is under these standards that we evaluate the prosecutor’s argument. For these purposes, we briefly review the evidence on which the argument was based. We do so only to put the argument into context and to explain its evidentiary basis; defendant does not expressly argue that the underlying evidence was improperly admitted at the guilt phase.
Testimony at the guilt phase established the following: Mr. Fried had impaired mobility and needed an aluminum walker. The walker, which was lying on Mr. Fried’s body, appeared in photographs of the crime scene. Mr. Fried’s two sons, Leland and Albert, helped to establish that a large amount of cash was missing. Leland had recently repaid, in cash, a loan of over $2,000. Both sons testified that their father ordinarily carried several hundred dollars in his wallet. Leland remembered seeing a large amount of cash because he and his father had joked about who had more. Albert remembered seeing a large amount of cash because his father had given him some of it to buy a Mother’s Day present. Because the Frieds’ family members visited the house often, their testimony helped to establish the time of the murder, that the house had been ransacked, and that particular items were missing. In this context Jo Ann Fried, Albert’s wife, mentioned that she knew the Frieds almost as well as her own parents.
Based on the foregoing testimony, the prosecutor commented that Mr. Fried was “disabled,” “a family man,” and “of value to his family” because he “still can joke” and was “still able to render assistance to [his] children.” The prosecutor also used the family members’ testimony, together with defendant’s own reported statements about the murder, to make the following argument about moral culpability: “Mr. Fried is still [of] value, of worth. He’s 74. He’s old. He’s feeble. He’s still of some value, some worth to this community. And he lives in a modest home with his wife who helped him raise his kid—kids in the City of Tulare. And into that swaggers the defendant, Cecil Howard. To do what? To stomp and kick Mr. Fried to death. To stop this family. This small touch of civilization. . . . For what purpose does Mr. Fried die? We know for money. And that’s a base purpose in itself. But for what other reason? Why was it necessary for him to die? Cecil said ‘naw, this old mother fucker done seen me.’ What caused the end of his life? What caused this impact on his family was seeing Cecil. He saw him. So he had his eyes stomped in. He was kicked in the throat. Without mercy. Without compassion. Kicked to death. A 74 year old man who has to get around in a walker. Coldly with thought. Thinking about it. Doing it with purpose. Mr. Fried died as a circumstance of the crime. The total lack of any reason for him to die is a circumstance of the crime.”
Defendant also argues that the prosecutor appealed “to potential xenophobic prejudice” with the remark that “Mr. Fried was a member of our community,” that “[t]he defendant came into it and brutally killed him and robbed him,” and that the jury should impose the death penalty to express the community’s outrage. To be sure, it would have been seriously improper to argue that defendant’s status as an outsider was relevant to the penalty determination. However, the prosecutor did not make such an argument. What the prosecutor did say can fairly be understood as a direct reference to defendant’s own testimony that he had come to Hilare about a week before the murder to escape revenge at the hands of his former employer, whose store he had burglarized. For this reason, we do not lightly infer that the prosecutor intended his remarks to have their most damaging meaning or that the jury drew that meaning rather than the less damaging one. (Cf. Donnelly v. De Christoforo (1974)
E. CALJIC No. 8.84.1.
The trial court instructed the jury with CALJIC No. 8.84.1, the former standard instruction on aggravating and mitigating circumstances.
Although it would have been incorrect for the jury to apply factors (b) and (c) to the guilt-phase offenses, there is no reason to believe that the jury did. The prosecutor did not mention factor (b) at all. Although he mentioned factor (c), he did so only in the context of an argument about defendant’s prior conviction for burglary, which was properly admitted under factor (c). Under these circumstances, defendant’s claim lacks merit. (See People v. Siripongs (1988)
F. Age as an Aggravating Factor.
Defendant contends that the trial court and the prosecutor improperly led the jury to consider defendant’s age as an aggravating factor. We find no error.
The court instructed the jury in correct, statutory language that it was permitted to consider “[t]he age of the defendant at the time of the crime.” (See § 190.3, factor (i).) Based on this instruction, the prosecutor argued that defendant was “31 years old. He’s an adult male. He’s responsible for his acts. This isn’t some kid.” The argument was proper because the statutory term “age” refers to “any age-related matter suggested by the evidence or by common experience or morality that might reasonably inform the choice of penalty” and because it is well established that “either counsel may argue any such age-related inference in every case.” (People v. Lucky (1988)
G. Automatic Motion for Modification of the Verdict.
Defendant contends that the trial court, at the automatic motion for modification of the verdict (§ 190.4, subd. (e)), committed Booth and Davenport error and that defense counsel rendered ineffective assistance. (See Booth, supra,
Defendant argues that the trial court, by hearing this letter, violated Booth (supra,
Defendant also objects, correctly, that a trial court in ruling on the automatic motion may only consider evidence that was presented to the jury. (People v. Jennings (1988)
2. Davenport Error. As defendant argues, the trial court technically mislabelled several sentencing fаctors as “aggravating” in view of the lack of pertinent mitigating evidence. (Cf. Davenport, supra, 41 Cal.3d at pp. 288-290.) However, it is unlikely that the judge was significantly influenced by the lack of evidence on factors (d) (extreme mental or emotional disturbance), (e) (consent of victim), (f) (moral justification), (g) (extreme duress), and (h) (mental disease or defect) because such evidence is typically lacking in murder cases. (See People v. Whitt (1990)
3. Ineffective assistance of counsel. Defendant contends that his counsel rendered ineffective assistance at the hearing on the automatic motion by failing to present argument and by failing to object under Booth (supra,
H. Effect of Erroneous Special-circumstance Finding.
Defendant contends that the erroneous finding on the financial-gain special circumstance (see pp. 1180-1181, ante) requires the judgment to be reversed because the court at the automatic motion, as well as the jury, considered it in determining the appropriate penalty. However, the record does not support the contention. The financial-gain allegation did not result in the аdmission of any additional evidence at trial, and the prosecutor, who mentioned it only in passing, did not argue that it had any significance distinct from the valid robbery-murder and burglary-murder findings. Nor does it appear that the court, in ruling on the automatic motion, gave the erroneous finding any significance apart from the valid findings. Under these
I. Request to Reconsider Previous Holdings.
In prior decisions we have held that trial courts are not required to identify particular sentencing factors as aggravating or mitigating and that the 1978 death penalty law is constitutional despite the absence of such a requirement. (People v. McLain (1988)
J. Cumulative Prejudice.
In his reply brief, defendant contends that particular, asserted errors warrant reversal because of their cumulative effect. However, the claims of error to which defendant refers either lack merit or had no effect on the verdict. These include counsel’s permissible decision to honor defendant’s wish not to present a case in mitigation (pp. 1184-1185, ante), the prosecutor’s proper argument about defendant’s age (p. 1193, ante), the court’s correct refusal to insulate a proposed expert witness from cross-examination (p. 1183, fn. 21, ante), and prosecutorial argument that would have been improper only under the now-overruled holdings in Booth (supra,
IV. Disposition
The convictions for attempted murder and attempted mayhem are reversed, and the related findings under sections 1203.09, 1203.075, and
Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred.
Notes
All further statutory citations are to the Penal Code unless otherwise indicated.
Emie Malone was charged with murder as a codefendant, tried separately, found guilty as an accomplice, and sentenced to life without possibility of parole.
A few days after the trial court denied the Wheeler motion, the prosecutor submitted a declaration explaining his peremptory challenges. Because the trial court did not find a prima facie case, request explanations, or consider the prosecutor’s declaration, we reject the People’s argument that defendant waived the claim by failing to submit a responsive declaration.
Defendant argues that the relevant circumstances include the fact that, four and one-half years after the trial in this case, the Court of Appeal reversed on Wheeler grounds an unrelated case tried later by the same prosecutor. (People v. Granillo (1987)
The Tenth Circuit applied Swain, supra,
Defendant’s motion for judicial notice of the results of the 1980 federal census is granted. (See Evid. Code, § 452, subds. (c) & (h); People v. Williams (1883)
Three members of the pool (Patricia Cardoza, Eleanor Ribiero, and Frank Pedro) have apparently Hispanic surnames that are not included in the 1980 Census List of Spanish Surnames. If one includes these persons, Hispanics made up 16.4 percent of the venire and 12.0 percent of the pool.
AIthough the percentage of Hispanics in the general population did not match the percentage in the venire, defendant has not attempted to show that this disparity resulted from any improper practice.
Defense counsel claims that he also raised the matter the next day at an unreported bench conference. After a hearing to settle the record, the trial court declared itself “unable to make a special finding” on the accuracy of counsel’s recollection. (See p. 1164 et seq. post.) For the sake of argument we assume that counsel’s recollection is accurate.
“Other arguments related to defendant’s desire not to present a case in mitigation are discussed below. (See p. 1184 et seq., post.)
Defendant reiterated his desire not to present mitigating evidence after the prosecutor finished his closing argument. Defendant explained to the court that he had been “railroaded” and wanted to “get to the higher courts and get on out of here.”
Defendant restates his claim as one based on the trial court’s failure to appoint a psychiatric expert to investigate his competence (People v. Campbell (1987)
Because the claim of error has been preserved for appeal, there is no need to consider defendant’s alternative argument that a failure to preserve the claim would have amounted to ineffective assistance.
Defendant makes a related claim involving prosecutorial argument at the penalty phase. (Seep. 1192, post.)
Because we must reverse the conviction for attempted murder, there is no need to discuss the effect of the jury instructions on attempted murder, which were erroneous under People v. Lee (1987)
Accordingly, we need not address defendant’s contention that an erroneous refusal to instruct on accomplice testimony would have impaired various rights under the federal Constitution.
There are lower court decisions holding that Yurko error involving Boykin/Tahl admonitions is reversible per se. (People v. Ray (1990)
The authority on these points can fairly be described as overwhelming. All but two circuits agree, and those two (the First and the District of Columbia) appear not to have addressed the issue.
See, e.g., Third Circuit: United States v. Vallejo (3d Cir. 1973)
The Second Circuit has adopted a standard of strict adherence to rule 11(c)(3) of the Federal Rules of Criminal Procedure, which directs federal district courts to inform defendants of their Boykin rights before accepting guilty pleas. (People v. Joumet (2d Cir. 1976)
Indeed, the People subsequently proved the prior conviction at the penalty phase through certified records and the testimony of foundational witnesses. (See p. 1182, post.)
Defendant does not challenge this ruling on appeal, except to ask that we reconsider People v. Ainsworth (1988)
Defendant challenges this ruling as an abuse of discretion, arguing that the court had power to limit cross-examination under Evidence Code section 352. However, it is axiomatic that an expert witness “may be fully cross-examined as to . . . (2) the subject to which his expert testimony relates, and (3) the matter upon which his opinion is based and the reasons for his opinion.” (Evid. Code, § 721, subd. (a).) Assuming for the sake of argument that the court had the power defendant suggests, there was no abuse of discretion because the court considered defendant’s argument on the record and expressly rejected it due to the probative value of cross-examination regarding the basis of expert opinion testimony.
Defendant also argues that the trial court’s ruling was error of constitutional dimension because it led to the exclusion of mitigating evidence, i.e., the expert’s testimony. However, the court did not exclude mitigating evidence. The court properly declined to shield defendant’s expert from cross-examination, and counsel chose for tactical reasons not to call the expert.
That counsel chose not to object more frequently during the prosecutor’s argument does not demonstrate, as defendant suggests, that counsel abandoned his role. Moreover, the claims that defendant faults his counsel for not raising lack merit in any event. (See p. 1187, fn. 24, post.)
The trial court correctly did not give an antisympathy instruction at the penalty phase. We have never held, as defendant suggests, that the trial court at the penalty phase must expressly countermand an antisympathy instruction given at the guilt phase.
Here, as in the other instances of asserted prosecutorial misconduct, defendant faults his counsel for failing to object to a form of argument that courts had not yet disapproved at the time of trial. Under circumstances like these it is unfair to characterize a failure to object as ineffective assistance of counsel. (Jones, supra,
For the same reason, the prosecutor’s argument did not violate McClesky v. Kemp (1987)
Defendant argues that the trial court should have deleted the inapplicable sentencing factors from the jury instructions, but we have previously rejected that argument. (People v. Ghent (1987)
Defendant concedes that an objection to the prosecutor’s argument in this pre-Booth trial “would have been futile” because the argument “could reasonably have been perceived as acceptable under this court’s decision in Haskett.” (See Haskett, supra, 30 Cal.3d at pp. 863-864.)
Even under Gathers, supra,
Concurrence Opinion
I concur in the judgment as to guilt and death eligibility. After review, I have found no error warranting reversal or vacation on either question.
I dissent, however, as to penalty. Pursuant to People v. Deere (1985)
One issue presented in this case raises a question of general importance and calls for extended discussion—defendant’s admission of a sentence-enhancement allegation.
In Boykin v. Alabama (1969)
The Tahl holding was virtually unanimous. (1 Cal.3d at pp. 129-133; id. at p. 138 (conc. & dis. opn. of Peters, J.).) A single justice dissented, stating only his disagreement with the disposition—which did not depend on Boykin. (Id. at p. 138 (dis. statement by McComb, J.).)
Moreover, the Tahl holding was supported by close analysis. (1 Cal.3d at pp. 129-133.) We recognized that there were “at least two plausible interpretations of Boykin.” (Id. at p. 130.) One would merely ask for “statements and facts in the record from which a reasonable presumption could be drawn that a defendant has been apprised of and has voluntarily waived his rights, and has intelligently pleaded guilty.” (Id. at pp. 130-131.) The other would demand that each of the three basic trial rights “must be specifically and expressly enumerated for the benefit of and waived by the accused prior to acceptance of his guilty plea.” (Id. at p. 132.) We adopted the latter. We reasoned: “While the Boykin text contains no such requirement in express terms, we believe it is not only a fair inference from the opinion . . . but it is the only realistic means of assuring that ‘the judge . . . leaves a record adequate for any review that may be later sought.’ ” (Ibid.)
At the conclusion of the relevant discussion in Tahl, we impliedly raised, but declined to resolve, the question whether harmless-error analysis was available if a trial court failed in its obligations and, if so, what such analysis would entail. (
In In re Yurko (1974)
The Yurko holding was unanimous. (10 Cal.3d at pp. 861-863; id. at p. 867 (conc. & dis. opn. of Mosk, J.).) It was also supported by close analysis. (Id. at pp. 861-863.) We reasoned, in substance, that an admission was ftinctionally equivalent to a guilty plea. (Ibid.)
At the conclusion of the relevant discussion in Yurko, we impliedly raised, but declined to resolve, the question whether harmless-error analysis was available if a trial court failed in its obligations and, if so, what such analysis would entail. (
Be that as it may, if Tahl and Yurko are indeed to be reconsidered, they should then be reaffirmed categorically and unconditionally.
To begin with, the holdings of Tahl and Yurko are supported by persuasive discussion. They are also clear and unambiguous, easy to understand and easy to apply.
Further, the United States Supreme Court has never explicitly rejected either Tahl or Yurko. Nor has it done so implicitly.
Contrary to the majority’s implication, neither Brady v. United States (1970)
In a footnote, Brady states in dictum that “The requirement that a plea of guilty must be intelligent and voluntary to be valid has long been recоgnized. The new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” (397 U.S. at pp. 747-748, fn. 4 [
For its part, Alford states that United States v. Jackson (1968)
I recognize, as I must, that Tahl and Yurko stand against a majority of lower federal court decisions. (See, e.g., United States v. Pricepaul (9th Cir. 1976)
In any event, the dispositive issue is whether Tahl and Yurko were correctly decided. I believe they were: as stated above, the supporting discussion is persuasive.
Although I see no reason for us to reconsider Tahl and Yurko, I do believe that we should consider the general question of the availability and character of harmless-error analysis. This broad issue has never been definitively resolved.
To my mind, automatic reversal should not result on the erroneous omission of one or more express admonitions and/or waivers as to one or more of the three basic trial rights when a guilty plea or an admission is accepted.
In other cases, in which substantial compliance cannot be found, the reviewing court may simply vacate the judgment in pertinent part and remand the cause to the trial court for a limited evidentiary hearing. At such a hearing, the court would determine whether the defendant’s guilty plea or admission was in fact knowing and voluntary. If yes, it would reinstate the judgment. If no, it would strike the guilty plea or admission and allow the defendant to respond to the charge anew.
In accepting defendant’s admission of the sentence-enhancement allegation in this case, the trial court gave express admonitions, and obtained express waivers, concerning two of the three basic trial rights, i.e., jury trial and confrontation. It failed, however, to give such an admonition or to obtain such a waiver as to the third, i.e., the privilege against compulsory self-incrimination. The omission was, of course, error. But it was not fatal. The court substantially complied with its obligations. It explicitly told defendant that he had “the right to force the District Attorney to prove this and to bring in evidence and witnesses[.]” It thereby implicitly told him that he had the right to stand mute at trial if he so chose. Hence, the record shows on its face that defendant’s admission amounts to a knowing and voluntary decision to abandon the privilege.
Compare People v. Sanders (1990)
See generally People v. Ray (1990)
See footnote 2, ante.
I recognize that Boykin can indeed be construed to require automatic reversal regardless of the circumstances. (E.g., Boykin v. Alabama, supra, 395 U.S. at pp. 244-249 [23 L.Ed.2d at pp. 280-283] (dis. opn. of Harlan, J.); see also fn. 2, ante.) But I do not so read the decision.
The majority are apparently in accord. True, their opinion contains language that may perhaps be read to suggest that the relevant choice can be deemed knowing and voluntary even if what is chosen thereby is not itself understood and intended. Such a rule, however, would be unsound. One cannot knowingly and voluntarily choose to face or forgo trial if he does not understand what trial means; and he cannot understand what trial means if he is not aware of the three basic trial rights.
The majority opinion contains language that may perhaps be read to suggest that if a defendant knows he has the right not to plead guilty or not to make an admission but rather to proceed to trial, he must necessarily know he has the right not to incriminate himself at any trial that might ensue. Such an inference, however, would be supported by neither fact nor logic.
I note in passing that the prosecutor’s conduct at several points in the course of trial is troubling. For example, his peremptory challenges against all the Black prospective jurors
Concurrence Opinion
I join the majority in affirming defendant’s conviction and death sentence.
Unlike the majority, however, I conclude that defendant did establish a prima facie case, or a strong likelihood, that during jury selection impermissible group bias was the basis for the prosecutor’s use of peremptory challenges to remove the only two African-American jurors. Once defendant made such a showing, the burden shifted to the prosecutor to show that group bias did not form the basis for the jurors’ removal. (People v. Wheeler (1978)
I.
Defendant, an African-American, was charged with the murder, mayhem and robbery of Roy Fried, and the attempted murder, attempted mayhem and robbery of Gladys Fried, both White. During jury selection, the prosecutor used two of his first four peremptory challenges to remove the only two African-American jurors called into the jury box. Defendant moved to quash the jury panel under People v. Wheeler, supra,
In People v. Wheeler, supra, 22 Cal.3d at pages 276-277, we held that “the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to trial by a jury drawn from a representative cross-section of the community under article I, section 16, of
As a threshold requirement, the objecting party must make a prima facie case, that is, a showing of a “strong likelihood,” that jurors have been excluded because of their membership in a cognizable group within the meaning of the representative cross-section rule. If the trial court finds that such a showing has been made, the burden shifts to the allegedly offending party to show that the challenges were made for constitutionally permissible reasons. If the trial court finds no justification, it must quash the venire, and begin jury selection again with a new venire. (People v. Wheeler, supra, 22 Cal.3d at pp. 280-282; see also Batson v. Kentucky (1986)
The Wheeler court mentioned, by way of example, four types of evidence that would tend to show group bias. As I shall demonstrate, this case has all four types of evidence, which created the appearance that the proseсutor’s use of peremptory challenges was based not on specific bias but on group discrimination.
Illustrative of group bias, we said in Wheeler, is a showing that a party “has struck most or all of the members of the identified group from the venire, or has used a disproportionate number of his [or her] peremptories against the group.” (People v. Wheeler, supra,
Also indicative of group bias, we observed in Wheeler, is the failure of the allegedly offending party “to engage [the challenged] jurors in more than desultory voir dire, or indeed to ask them any questions at all.” (People v. Wheeler, supra,
During the initial stage of the voir dire, when the prospective jurors were individually questioned about their views on the death penalty, the prosecutor asked juror Betty T. only two questions and juror Katie B. only three.
The third element the Wheeler court discussed as being an indicator of a strong likelihood of group bias is the defendant’s membership in the excluded group and the alleged victim’s membership in the group to which the majority of the jurors belong. (People v. Wheeler, supra,
Wheeler suggested a fourth factor indicative of a prima facie case of group discrimination: a showing that the peremptorily challenged jurors share only
Relying on People v. Bittaker (1989)
First, unlike the situation here, People v. Bittaker, supra,
Second, in contrast to this case, there were compelling reasons why the prosecutor in Bittaker would wish to exclude the jurors in question: four of them had expressed significant reservations about voting to convict the defendant of murder or to impose the death penalty,
The majority makes much of the fact that juror Katie B., when asked about her feelings about the death penalty, replied she had “never been confronted with this [question] before” and had not “thought it over.” But unlike the answers of the challenged jurors in People v. Bittaker, supra,
In the case of prospective juror Betty T. too, there was no. obvious reason for the prosecutor’s remоval of her. The majority states that her “professional training” (she was a nonpracticing registered nurse) suggested a basis for disqualification. Yet there was nothing in the nature of the offenses charged to suggest that her nursing background would make her objectionable to the prosecution.
There were, in sum, no immediately apparent reasons justifying the prosecutor’s peremptory challenges against prospective jurors Katie B. and Betty T., the only African-American persons called. The voir dire was similar to that in People v. Snow (1987)
I recognize that in this case the prosecutor exercised peremptory challenges against “only” two African-American jurors, but a single discriminatory exclusion violates a defendant’s right to a representative jury (People v. Fuentes (1991)
In those instances where the record has established a prima facie case of group bias, this court has held that the trial court’s failure to require an explanation for the peremptory challenges in question was improper. (People v. Snow, supra,
II.
As I mentioned аt the outset, the establishment of a prima facie case of impermissible juror exclusion based on group bias merely shifts the burden
After the trial court’s denial of defendant’s Wheeler motion, the prosecutor advised the court that he intended to file a declaration explaining the reasons for the peremptory challenges. The trial court responded: “You may do so. If [defendant] wants to respond, he can.” Thus blessed with judicial authorization,
The prosecutor gave three reasons for removing juror Katie B. First, she was “passive” in the way she answered questions, leading him to believe she might reach a decision that was not well thought out. Second, she was “grossly overweight, appeared unclean and wore an excess of cheap jewelry,” factors he believed might prevent effective interaction with other jurors. Third, her facial expressions and the manner in which she responded “communicated a difficulty in being able to mentally grasp the process of a criminal trial involving the death penalty.”
With regard to juror Betty T., the prosecutor also articulated three reasons for his peremptory challenge of her. First, he was concerned that Betty T’s degree in sociology might lead her to assign “responsibility for a person’s conduct to societal systems, such as economics, and environmental influences.” Second, she was involved in the nuclear freeze movement; because some members of that movement advocate acts of civil disobedience, the prosecutor thought that Betty T. might hold beliefs that would lead her to make a decision not based on the law. Third, Betty T. was dressed in a style that made her look like “an aged hippy,” leading the prosecutor to believe that she might be less willing to follow the law in this case.
Despite the trial court’s invitation to do so, defense counsel made no response to the prosecutor’s articulation of reasons for his peremptory challenges. Defense counsel’s failure to respond gives rise to the reasonable inference that the prosecutor accurately described the facts relating to the challenged jurors’ appearance and behavior that led to his peremptory challenges of them.
Had the trial court found the prosecutor’s explanations for his peremptory challenges convincing, that determination would undoubtedly have been
Peremptory challenges are a significant part of trial by jury. (Batson v. Kentucky, supra,
As I have discussed above, defendant’s failure to rebut the prosecutor’s plausible reasons for challenging prospective jurors Katie B. and Betty T., notwithstanding the trial court’s invitation that he do so, suggests the accuracy of those explanations. I therefore conclude that under People v.
Appellant’s petition for a rehearing was denied April 29, 1992. Mosk, J., was of the opinion that the petition should be granted.
After exercising his first five peremptory challenges, the prosecutor “passed” his next four challenges, expressing satisfaction with the jury as chosen. He later exercised six additional peremptory challenges. Defendant used all of the 26 challenges allotted him.
The dialogue between the prosecutor and Betty T. was as follows:
“Q [Prosecutor]: As I understand your answers to the Judge and the defense attorney, you could vote for the death penalty if the circumstances warranted it?
“A Right. I think I could. It is possible that it would be the right decision to make, but it is also possible that it would not be the right decision to makе.
“Q All right. So you have the ability to weigh those two alternatives and balance them and take into account all the factors that His Honor will give to you, that you can take into account them and choose ,the appropriate penalty?
“A (Juror nods head affirmatively.)
“[Prosecutor]: I’ll pass for cause.”
The dialogue between the prosecutor and Katie B. was as follows:
“Q [Prosecutor]: You understand what his Honor was talking about when he told you about the two different parts of the trial or the three different parts? To determine guilt or innocence first, and then later on the possible penalty?
“A Yes.
“Q You understand that? Okay. Now, do you understand that you determine guilt and innocence first before you ever get to the penalty part? And that you are not supposed to take into consideration what penalty may be faced by the defendant when you are determining guilt. Do you understand that?
“A Yes, I think I do.
“Q You think you can go along with that and not let the fact that the defendant might face the death penalty enter into your deliberations on guilt or innocence?
“A I don’t think that would bother me.
“[Prosecutor]: Okay. No problem on that. Thank you. I pass for cause.”
The record reflects that one juror had a Spanish surname.
As we explained in Bittaker: “Juror Martin expressed considerable doubt whether she could vote for a verdict of first degree murder in a case in which the body had never been found [police were unable to locate the bodies of two of the defendant’s victims]. Juror Weaver initially said that she would automatically return a verdict of life imprisonment; she
This is not to say that a background in nursing would be an unacceptable ground for exercising a peremptory challenge, but only that it is not an obvious or apparent reason for doing so in this case, and thus it is not useful in determining the existence of a prima facie case. Had the trial court found a prima facie case of group bias, the prosecutor could have rebutted the prima facie case by means of a credible explanation that he had challenged Betty T. because of her professional training rather than her race.
The prosecutor in Turner later also exercised a peremptory challenge against a third African-American juror who was called after the defendant had made his Wheeler motion. We noted that this event served to “confirm” the existence of a prima facie case. (People v. Turner, supra, 42 Cal.3d at pp. 719-720.)
Compare People v. Motion, supra,
The prosecutor’s concern with prospective juror Katie B.’s “passivity” and lack of understanding of the nature of the process is reflected in the fact that he challenged several other jurors (Ruth D. and Pamela S.) whose answers seemed passive or who had difficulty understanding the nature of the process.