People v. Jackson

Aug. S010723. 1996.] [No. PEOPLE, Plaintiff and Respondent,

THE JACKSON,

NOEL Defendant Appellant.

Counsel Defender, Laethem, Supreme under appointment Fern M. State Public Kwan, Court, Public Defend- Ten State Deputy and Susan Matchett Stephen ers, for Defendant Appellant. Williamson, General, Chief Assistant Attorney George

Daniel E. Lungren, General, Schons, M. General, Robert Assistant Attorney W. Gary Attorney Foster, Attorneys Laura Whitcomb Halgren, Deputy William M. Wood and General, for Plaintiff Respondent.

Opinion the murder Jackson was found

MOSK, guilty Defendant Noel J. Niles, commit murder. as well as guilty conspiracy Sonja use of a and of his sentence for possession found true enhancements Code, 12022.5.)1 (Pen. (a); It also found firearm. subd. true one §§ circumstance—that murder and was intentional carried out for special “[t]he 190.2, (a)(1).) it (§ financial subd. At the fixed defend- gain.” penalty phase, ant’s sentence at death. The trial court sentenced defendant This accordingly. is automatic under section (b). subdivision appeal We conclude that the should be affirmed in judgment its entirety.

I. Statement of Facts A. Guilt Phase

Defendant was tried with codefendant Michael Niles before two separate Niles, friend, to the juries. According testimony an old Anthony Piper, contacted on December Niles told Piper 1984. that he wanted to Piper $5,000 have his wife killed and that he would be willing pay person who would that task. Niles said he wanted accomplish her murdered because she had “messed with him when he was (Niles basketball” had been playing and, a college briefly, professional basketball and that she player) had “sent his brother to $5,000 asked prison.” Niles where he would Piper get $100,000. Niles that his wife replied had an insurance He policy would the murderer from pay proceeds after it was policy cashed in. stated that he not Piper was interested. Niles $500 offered to if pay he Piper knew someone who would undertake the murder. said he did not Piper know “hit any men.” and Niles rode around Eventually Piper Piper’s neighborhood in Los and encountered Angeles defendant on the street with a together man named Ernie Sanders. introduced Piper Niles to defendant and told defendant that Niles wanted to discuss the of his wife. After killing with talking defendant, Niles drove later, in search of away He returned gun. an hour that he stating was unable to locate a gun defendant and asking if Piper knew where he they could one. observed get Niles and Piper conferring saw them drive off in eventually Niles’s car. Clark,

Later that Norma night, resident of Corona in Riverside County, car, outside sitting of her house in her attempting theft of prevent her Christmas She lived lights. wife, down the street from Niles and his Niles. The Sonja street were lights on. As Clark sat in her car in the she saw a red car driveway, come down the street and across from her park house. The car were lights off. Clark had seen the car before. She noticed one in the person later, driver’s seat but no one else. Two or three minutes Clark heard a noise the street up that sounded like a or a bulb gunshot light She looked popping. toward the direction of the noise and saw down running statutory 1All further references are to the Penal Code unless otherwise indicated. to be about feet three or four inches she estimated six the street a man whom tall, He ran side wore light-colored pants. directly passenger and who off. climbed in. The car with its still lights car and waiting departed Niles, thereafter, dressed Sonja a Corona officer discovered police

Shortly uniform, near where Clark had wit- officer’s dead lying in a correctional a shotgun, described events. She had been killed by nessed the above head, of her a blasting of which had been the back pressed against muzzle blood, thrust hair and five-inch her forehead. The force through four- to hole matter onto a fence 32 feet away. brain received a call the Corona Police telephone

At 10:50 p.m., Department his wife from work at 9:15 p.m. from Niles. He said he had picked up her his He said he had been calling had to Los to see brother. Angeles gone was been unable to reach her. The dispatcher from Los but had Angeles, Stewart, Detective Dale who was instructed Corona Police Department murder, Niles’s to tell Niles to report questioning, investigating Sonja drove to his home in at his home or at the Niles up either police department. Clark identified that car as a red two-door automobile. Norma Toyota had seen the scene after she had heard the gunshot. police one she leave Niles, be the man to observe and she stated that he looked to asked Clark the street because he had and was long legs whom she saw down running tall, she that he was dark unlike the wearing pants, light-colored pants but observed on the man she had seen running. had nature of his Detective Stewart arrested Niles because of the suspicious call, behavior, was his and Clark’s statement. He phone apparently deceptive effects a with to the Corona Police his card Among taken Department. “No-No,” of a who he claimed interro- during the name and number phone a reverse had murdered Niles. The detectives used Sonja telephone gation to locate the to this number. telephone address directory corresponding detectives, Stewart, later, Detective went to Two several days including residence, address, defendant’s and were met at the door by which was there, sister, her if No” lived Barnes. Stewart asked “No Vicky defendant’s name—“Noel”—and told them he was not home. and she defendant’s gave him at his girlfriend’s She to contact defendant attempted by telephoning if he out Stewart asked Barnes briefly. house and was told that had stepped and began defendant owned a of tan-colored She the door pants. opened pair which were to look She removed of khaki laundry pants through bag. pair unrolled, stains of rolled in a ball. As the were revealed they large up pants on both fresh blood and hair in the area between the ankle and the knee pant which Barnes. legs, surprise appeared greatly call from defend- a telephone Barnes received discovering pants, After home, him to return although and requested to defendant Stewart spoke ant. When in the murder. defend- he was not a suspect him that Stewart assured him of his which home, rights, him and advised arrested Stewart ant arrived the search was the bedroom. While to search He gave permission he waived. met Niles on conducted, defendant. He said he had Stewart questioned being he had to Corona. He said denied that he had ever gone 13th but December 13th and returned home on the night friends in Los Angeles been with he khaki and asked how then showed defendant the pants at 10 Stewart p.m. “You guys matter on them. Defendant responded: had blood and other gotten serious, he had met then told Stewart a different story: are aren’t He you?” wife; Niles; kill his had obtained they Niles had told him that he wanted to Sanders; from Ernie he and Niles had traveled to Corona he together; gun his from at went to wife had waited Niles’s residence while Niles pick up Corrections; with his work when Niles returned home at the Department wife, in uniform and informed he saw that she was a correctional officer murder; involved in the Niles and Sonja Niles that he did not want be following, Niles her out of the house with Niles he observed argued; running them; on the and he followed Niles at the curb and fell down Sonja tripped her; lawn; (defend- Niles the blood on his then fired the shot that killed got ant’s) Niles’s head when she fell Sonja because he was pants standing by and was shot. he Niles ran down the street and Finally, together jumped into vehicle. waiting

While the search of the was Stewart asked defend- apartment continuing, ant if the that in his room. Defendant said was used the murder was gun no. The search uncovered bed a shot- soon under defendant’s pump-action shoes, shells, white stains tennis a box of a towel with gun, shotgun powder and a left-hand The shoes were stained with blood brain matter. glove. Defendant where made was taken to the Corona Police he Department, statement, he another statement similar to his second substantially except stated Niles had told him that his wife was a before guard prison her, defendant had set on and he he had told Niles eyes immediately claimed that he did not want to be He also stated that Niles involved the murder. had Niles drove shot Niles while she was on the He said that Sonja ground. he, Niles, him back to Los and that had blood all over him. Angeles Defendant took the when he was off. gun dropped Hunter, Niles,

Dr. DeWitt testified who performed autopsy Sonja that death was consistent with a caused a massive wound to the head blast. The from the brain shotgun shot traveled back to front forcing entirely from its Laceration of the at the the head indicated a cavity. back of scalp wound, is, contact the barrel of the the victim’s gun pressed against Dr. Hunter instantaneous. opined fired. Death was the shot was head when fence, a high thirty- other tissue on six-foot of blood and the presence inconsistent with the victim’s was body, the murder victim’s feet from two shot, must have been standing and that she the time of the at being prone the of and testified that he examined pair pants erect. He also erect or nearly and found them to have blood the and by prosecution the shoes presented had a bruise on well that Niles Sonja He testified as brain matter on them. inflicted within a few minutes to have been her left arm that upper appeared hard, about to one some instrument straight one-quarter hour before death by inch in width. that he Justice John Abercrombie testified

State criminalist Department and and shoes recovered in defendant’s apartment examined pants victim, but not on them could have come from concluded that blood at the wearing pants from Niles or defendant. He person opined to close relatively have had to have been standing time of would shooting for the to be as but behind her directly pants the victim not necessarily Sham of Justice criminalist Paul stained as were. State they Department to be of the victim testified that removed from appeared shotgun pellets in the of found to contained in a the ammunition sample similar size pellets scene A of wad found at the search of defendant’s piece shotgun apartment. shell. contained in the sample was similar to one of the wads shooting found in he the shotgun He also testified that in of 1985 August inspected to be visibly undamaged capa- defendant’s and determined it apartment Bartho- technician Sidney ble of Corona Police evidence firing. Department he examined the found defendant’s gun apartment, lomew testified that to dried on the muzzle. and found what be blood appeared allegation, pros- In the financial-gain special-circumstance support Niles was that on the of her death day Sonja ecution evidence presented $2,500 in the virtue of her membership covered a death benefit by by (CCPOA), to Association payable California Correctional Peace Officers’ $50,000 son; and dismemberment insurance policy, her a accidental death Niles; $40,000 a to her son and CCPOA and purchased through payable CCPOA, to through payable term life insurance also policy, supplemental Niles; $1,431 the California Public her son and death benefit provided Niles; term life (PERS), a group Retirement Employees’ System payable Niles; $16,453, a PERS- insurance PERS worth policy through payable son; month, her and an $350 administered survivor benefit per payable actual $350 he reach the of 62. No age additional to Niles should payable evidence that the son had received were but there was policies produced, of which he was was due him under the receiving purported payments plans a beneficiary. defendant, Niles, case was that not

The defense theory murderer, from the before the conspiracy had withdrawn and that defendant Police The defense called Corona Officer murder been committed. had Cota, with Niles’s four-year-old who testified that conversation Raymond that Niles and Niles had Sonja on the of the murder corroborated son night he heard his mother had stated had boy been He testified that fighting. at them The defense also and father each other saw screaming “boxing.” Anderson, Norma Clark on the night called Officer who had interviewed running had him that the she saw down the murder. Clark told person feet, feet, he tall and was four inches or six five inches that street six Niles, The height. stipulated resembled who was that approximately parties feet and one-fourth that defendant himself was five eleven approximately inches in his shoes. tall

Defendant did not testify.

B. Penalty The Phase introduced Evidence of defendant’s criminal was activity by prior at that while on Ray duty Correctional Officer Vidales testified prosecution. in Riverside of he inmates County jail August overpowered by 1987 was them, in their to Defend- escape. defendant successful effort present, among in to ant was trial He handcuffed Vidales a metal awaiting case. present standard, mouth, tied removed his wallet a towel around his and volleyball his took key $6 from back in cash. He also Vidales’s handcuff pocket, taking and two jail keys. P. testified in October when was a

Shelley that of she 19-year-old Ashland, at and out State in was sophomore Oregon College Oregon, attacked, assaulted, she and by was jogging early morning, raped con- defendant. She testified to the emotional that the incident has impact to tinued have on her Defendant for and life. was later apprehended rape held in a of and was an He to Oregon jail. charge rape pleaded guilty convicted. The also introduced evidence that in of 1988 prosecution January defendant and another County, jail inmate from the Jackson escaped Oregon, a cell. Defendant through hole battered in the window of the was appre- taxi, hended town in a and day, pleaded guilty charge later leaving also introduced evidence a 1984 escape. documentary prosecution conviction in Los for it characterized as Angeles County felony grand what vehicle, theft, felony and was in a conviction of a which fact for taking Code, 10851). (Veh. § his charac-

Defendant called several members family testify regarding sister, Jackson, ter. lived Defendant’s Brenda testified that children they as Brownwood, Texas, of an town of part impoverished family small In Texas had worked in raised mother. single children to the financial support and other contribute agricultural jobs education special and attended classes. speech He had family. problems When Brenda was Other ridiculed him because of his stutter. children with her and moved in with she her mother’s house 8-month-old baby left defendant, his She who was with her mother. stated that girlfriend living brother, she her and that he had been loving considered defendant to be best to her. one her five brothers had been in trouble She testified that all but with the She knew defendant’s crimes but that he had law. stated she about never admitted to her he committed of them. any Bowers, aunt, was that defendant

Gomelia married to defendant’s testified very a nice kid” the chores the house was who with “regular helped she Claudette Vemer testified had known defendant quiet respectful. he well as a friend of the and that was mannered years, family, very mother, Hill, she a Bonnie testified that both and defend- child. Defendant’s defendant’s father. The father had ant had received at the hands of beatings a was three old. Defendant was slow learner years left home when defendant She said that he with and was into a school. put special speech problems, he was and made financial contributions to the household when working, was he father a She stated that defendant that was the of two and girls boy. a and the to his life. jury not bad asked spare person did not testify. Defendant Jury

II. Selection Issues A. Lists and Venire Discovery Jury of court denied him erroneously

Defendant that the trial contends Owing lists of certain information and regarding jury procedures. discovery denial, maintains, a assert this was denied fair to to he opportunity “ that his drawn from ‘a source fairly representative was not jury panel ” L.Ed.2d (Duren Missouri 439 U.S. community.’ 579, 586, S.Ct. factual back- be understood the against proper

Defendant’s claim must of of over before the commencement In one ground. July year trial, County was made in another Riverside Superior defendant’s finding case, (No. CR-24472) (hereafter Neidiffer), Court Neidiffer the Riverside resulted in the of process jury panels County selecting old, 24 years underselection of to and poor people, Hispanics. people identified: inconsistent were the causes for underrepresentation Several information and dated duplications jurors, for excusing prospective methods not of with those lack follow-up persons in forming jury pool,2 used ad hoc committee consisting repre- summons. An to the jury responding courts, the commissioner’s jury and superior of the municipal sentatives was formed to reform office, defender attorney public the district in the changes made several proce- The committee system. selection jury venires, of a consistent including implementation for assembling jury dures service, more master lists pool jury updating jury of excusal from policy Vehi- of Motor from the Department from obtained information frequently more in the 18-24 and the Voters order to include people cles Registrar issued to not responding revision of letter age group, people for their It also summons to state that a will issue arrest. jury warrant were certain for use while the new procedures interim measures approved challenges, additional being implemented, including allowing peremptory and, imbalanced, to be if the excusing panel appeared to panels appeared commissioner jury be a defendant contact unrepresentative, permitting of the venire from which the ethnic verify composition panel A of individuals ethnicity reporting drawn. determine periodic survey into in order to whether the duty was monitor put place procedural among were the lack of changes implemented representation remedying identified groups. it

In had been filed but before after motion Neidiffer April decided, had been codefendant motion substantially Niles made discovery 1987, in all discovery similar one made that In of the August case. material from Neidiffer the selection and case—jury procedures completed administered nine in room for weeks by forms jury survey prospective jurors 1987, income, March and on the and April of information containing age of the Niles and him to ethnicity venire—was made available to through motion, 1987, defendant. In of filed later Niles a September supplemental defendant, the which access to by things, other joined requested, among of master the and for list for the continued administration present jury pool a detailed in the case. similar to the one administered Neidiffer jury survey the The of to whether recom- purpose changes these was determine requests the intended of by having curing mended ad hoc committee were the effect the found Neidiffer. The trial court denied the underrepresentation sup- in the motion now claims that in its Defendant discovery entirety. plemental 502, 1, 520, (1989) v. Bell explained Cal.Rptr. 3 778 2As in Cal.3d footnote [262 49 jurors for jury ‘pool’ eligible compiled year P.2d “The is the of the or shorter master list 129]: jury period during period possible be persons from which will summoned the relevant for made group jurors service. A ‘venire’ the of from that list and prospective is summoned available, granted, assignment A ‘panel.’ after and been to a excuses deferrals have for will jurors assigned jury the ‘panel’ group is from that venire to a court and from which a try particular be selected to case.” a 1194 in the discovery, discovery in particular

court erred denying requested to test list the administration of new surveys most recent master and race, ethnicity. and age, California, to trial a right by jury It is uncontroverted that “[i]n is community from a cross-section guaranteed drawn representative the Sixth Amendment to the federal Constitu and independently equally 522, 690, 698, (1975) tion Louisiana U.S. 530 L.Ed.2d 95 (Taylor v. 419 [42 I, 692]) (People S.Ct. article section 16 of California Constitution and by 890, 258, 748]).” (1978) v. Wheeler 22 Cal.3d 272 583 P.2d Cal.Rptr. [148 503, 736, (Williams (1989) Court 49 Cal.3d Superior Cal.Rptr. 537].) facie of the fair- “In order establish violation prima (1) show the group cross-section the defendant must that requirement, (2) be is a in the that group community; excluded ‘distinctive’ alleged not from are is of this in venires which selected group juries representation commu fair and reasonable in relation to the number of such persons (3) is this due to exclusion systematic that nity; underrepresentation Missouri, U.S. (Duren selection the jury supra, group process.” 579, been 586-587].) Once a facie case has L.Ed.2d prima made, ‘to to come forward with either a more “the burden shifts the state ex no statistical showing constitutionally significant disparity precise for the which procedure isted or there was compelling justification (1990) 51 in the v. Sanders (People results disparity jury pool.’” here, “[w]hen, ‘a P.2d But as Cal.3d 491 [273 sex, race, neutral with ethnicity, selection criteria are county’s jury respect is to shift the burden to the People. more religion, required criteria of the manner in which those defendant must some identify aspect (2) that is: cause of the are being applied probable disparity, ” 492-493.) (Id. at pp. constitutionally impermissible.’ made facie Here consider whether defendant has a prima we not case, denied the but the of whether defendant wrongly prior question A who to make a case. information such discovery necessary that is not to justify seeks access to this information obviously required Rather, a case of upon a facie by making prima underrepresentation. request a reasonable belief underrepresenta particularized showing supporting of or venire exists as the result of tion in jury pool practices exclusion, must make reasonable effort to accommo court systematic for information to designed verify date the defendant’s relevant requests extent. and its nature and existence of such document underrepresentation 74, (1989) Court 49 Cal.3d (Cf. Santa City Municipal [260 Cruz of 520, arresting force by P.2d of excessive [complaints Cal.Rptr. 222] belief.”].) More defendant “reasonable officers discoverable police upon case, of over, as master lists in this some of the information such sought, are practices, selection policies well as general as jury pools, (See People be available to public. are or should records that judicial 1]; Pantos v. City Cal.Rptr. [261 212 Cal.App.3d Rhodes 258, 262 Cal.Rptr. (1984) 151 Cal.App.3d [198 San Francisco County to ability not defendant was deprived in the case But present noted, County Superior the Riverside As information. discover pertinent case, instituted in the Neidiffer Court, data uncovered in response continu manifestations of to address to enable defendants interim measures These interim measures pro certain classes. among ing underrepresentation raise the issue of continuing vided defendant with sufficient opportunities was to be at the time his jury picked—authorizing in the disparity jury pool to obtain information him to excuse unrepresentative panels apparently There is no indication about the from his were drawn. venires which panels that he lacked the means that he availed himself of these or opportunities, drawn was his whether the venire from which jury panel discover and the Given these interim procedures of the community. representative for defendant’s discovery were they inadequate absence any showing have made in error the trial court may denying purposes, any records was not access to master lists or other public prejudicial. jury pool information necessary His claim that he was denied the to discover ability is therefore without make a facie prima showing underrepresentation merit.

B. Wheeler/Batson Challenges used three of eighteen

Defendant is a Black man. The prosecutor Blacks served on to remove Blacks from the No challenges jury. peremptory the trial court erred in denying defendant’s Defendant now claims that jury. (1978) 22 Cal.3d 258 his motion under v. Wheeler (Wheeler) (1986) 476 U.S. 79 Kentucky and Batson v. 748] (Batson), to L.Ed.2d 106 S.Ct. dismiss jury panel. 1712] Wheeler, not be used to

“In we held that challenges may peremptory bias. We group remove on the basis of solely presumed prospective jurors are biased merely that certain jurors defined bias as group presumption racial, are members of an identifiable group distinguished because they ethnic, The United States Supreme or similar religious, grounds. [Citation.] [Batson), Protection Clause forbids Court held in that the similarly Equal their race on account of jurors solely peremptory challenges potential not be Such challenges may when the defendant is a member of that race. be biased in on the that will they used ‘to strike black veniremen assumption 1196 ” Johnson (People defendant is black.’ v. case because the

a particular simply 569, 1047].) 1215 (1989) Cal.Rptr. Cal.3d Batson, his is if a believes party opponent improperly and “Under Wheeler a he must raise for a challenges discriminatory purpose, using peremptory such discrimination. Once make a facie case of prima and timely challenge shown, come to the other party the burden shifts case has been facie prima related demonstrates a neutral explanation an that forward with explanation The court in Batson noted to be tried. case [Citations.] particular case merely by rebut the defendant’s facie prima the not prosecutor may in his faith good he motive or affirming had a denying discriminatory were as assertions making general accepted individual selections: ‘If these case, “would a defendant’s the Protection Clause facie rebutting prima Equal ’ be but a vain and illusory requirement.” [Citation.] [Fn. omitted.] trial in of the ability “Both Wheeler and Batson confidence the profess Wheeler, In showing. courts to determine the sufficiency prosecutor’s trial courts to we that we will on the of the ‘rely said good judgment bona from sham excuses fide reasons for such distinguish peremptories contrived to avoid acts of discrimination.’ belatedly admitting group [Cita- court, court The trial The indicated likewise Batson. tion.] [Citation.] however, must ‘a reasoned to evaluate the attempt prose- make sincere and known, as cutor’s of the case then the circumstances light explanation of the manner his trial and his observations knowledge techniques, which of the and has exercised has examined members venire prosecutor Johnson, . (People for cause or . .’ challenges peremptorily. [Citation.]” 1216.) 47 Cal.3d at supra, p. case, of the

In motion at the end defendant made Wheeler present Black based of all three venireper- selection on exclusion process, “would hear from sons into box. The trial court stated that it called the jury . .” the trial court made on their use of . . In so doing, People preempts exclusion, at least an of a facie finding showing systematic implied prima each of the challenges. thus the burden to the shifting justify prosecutor (See Cal.3d Fuentes

P.2d exclu- several race-neutral justifications prosecutor proffered the most significant sion of Black For Annie jurors. Hysmith, potential and her reason was the reluctance she jury questionnaire expressed, Verret, dire, death Verdan voir during support impose penalty. death favorable to although prosecution supportive generally bad with the expressed had had several police, penalty, experiences

1197 a Alford the offered Mary prosecutor For credibility. about their doubts felt, that she would feel on her questionnaire, of He based number reasons. defendant, for so would feel sympathy for users” and very drug “very, sorry user; on her toward the death scored “not attitude high” that she drug and would “remember everything,” said that she could she penalty; were clouded whose recollections be of witnesses therefore “hypercritical” time; to too a weight psychiatric of that she might give great the passage been as a who had recently prosecuted she had daughter testimony; theft; and that she office for petty “ap- the district juvenile by attorney’s nervous.” peared quite

At the trial court denied the end of the the prosecutor’s explanations, of the Wheeler motion “on the basis of the representations of Court’s own observations jurors.” particular for some Defendant now contends that the reasons excluding prosecutor’s exclusion was in fact or all Black veniremen were and that pretextual, that, he when the of bias. primarily Specifically, argues responses group stricken to answers to the same are jurors potential compared alternates, of who or as Whites served as questions jurors prosecutor’s are defendant claims that Mary undermined. For explanations example, users, Alford’s testi- drug to questions concerning psychiatric responses from the death were not different those of a mony, penalty, appreciably number of who served A also close on the number had persons jury. jurors offenses, relatives who had been of criminal or had convicted themselves been convicted of such offenses. Defendant contends that this comparative a facade racial racial analysis strips away neutrality expose underlying bias in the selection.

As this court has stated: “If the trial court makes a ‘sincere and reasoned offered, effort’ evaluate the its conclu nondiscrin inatory justifications circumstances, sions are to deference In entitled such an appeal. appellate court will own not reassess faith its good by conducting comparative juror Such court’s analysis. credibility an would undermine the trial approach ‘ determinations and would “the discount factors variety [subjective] ’ considerations,” or manner of including ‘prospective jurors’ body language which a trial decision to answering questions,’ lawyer’s inform legitimately exercise Cal.4th challenges.” (People Montiel peremptory Here, there is no reason P.2d Cal.Rptr.2d to conclude “a that the trial court did not make and reasoned effort” sincere evaluate credibility nondiscriminatory justifica prosecutor’s brief, tions. the trial court’s statement it Although apparently indepen dently assessed the reasons for prosecutor’s challenging peremptorily 1233, (1993) 4 v. Cal.4th 1282 Cummings jurors. (Compare People [18 796, in record for that court concluding 850 P.2d basis Cal.Rptr.2d 1] [no Fuentes, with v. People supra, failed scrutinize the prosecutor’s reasons] of that trial court revealed it had 54 Cal.3d at 720-721 pp. [statements “ ” to attempt’ its to make a ‘reasoned scrutinize responsibility abdicated This court question].) each explanations prospective juror prosecutor’s held not the trial court to conduct has further that Wheeler does require here, if, as it is into the race-neutral prosecutor’s explanations further inquiry or of v. (People from its observations that all them are any proper. satisfied Johnson, 1218.) at We conclude that the trial 47 Cal.3d therefore supra, p. court Wheeler motion. did not abuse its discretion defendant’s denying

C. Denial Motion as “Guilt Phase Indudables” of “the Defendant a motion codefendant Niles to prohibit joined their from about attitudes toward potential jurors prosecution questioning minimal to establish that beyond necessary death inquiry penalty innocence, or determining could be fair and impartial guilt venire-person it there will in fact be a penalty phase; unless or until is determined that of who could jurors fairly ... a exclusion ruling prohibiting potential who never determine or innocence but would consider guilt impartially if was reached.” The trial court for the death phase voting penalty penalty erred, motion, that it in violation of his denied the and defendant now claims under community to a drawn from fair cross-section right jury I, and article section 16 Sixth Amendment to the United States Constitution We disagree. the California Constitution. at the The exclusion of those death opposed penalty categorically United States Constitution of the trial does not offend either the guilt phase 162, 137, (Lockhart (1986) 176-177 L.Ed.2d 149- v. McCree 476 U.S. [90 150, 1758]) v. Ashmus S.Ct. or California Constitution (People 106 112, 214]). As the (1991) 54 Cal.3d 820 P.2d Cal.Rptr.2d 956-957 [2 “or for Court death United States Supreme explained, penalty opponents, attitudes that that matter other defined in terms shared any group solely case, as in a render members of the unable serve group jurors particular basic from service without contravening any be excluded may (Lockhart, U.S. 476 supra, of the fair-cross-section objectives requirement.” 149-150]; Fields at see also at 176-177 L.Ed.2d pp. pp. [90 680].) It is also well settled 35 353 Cal.3d [197 not to an right impartial jury. exclusion does violate defendant’s this Ashmus, 154]; at L.Ed.2d at (Lockhart, U.S. 183-184 supra, p. pp. 957.) Cal.3d supra, 54 at p. true, that social even if extensively,

Thus it were as defendant argues are juries death-qualified science evidence now shows conclusively does not thus that evidence those not qualified, to convict than more prone (Lockhart such death qualification. a constitutional prohibition support 147-148].) claim is McCree, L.Ed.2d at His pp. U.S. at supra, p. without merit. therefore Challenges For-cause

D. Denial of of to exercise four his was contends that he compelled Defendant an unequivocal preference on who professed challenges jurors peremptory death, one life rather than of imprisonment of for a sentence imposing of premeditated on one convicted first degree of parole, without possibility exhausted his eventually Defendant of financial gain. murder for purpose these for- that the denial of wrongful He claims challenges.3 peremptory and fair trial under the to due a rights process violated his challenges cause Constitutions. United States and California the voir of each of four prospec have reviewed record of dire

We their to consider ability answers conflicting regarding tive jurors. They gave them, during but all they agreed, both available to penalty options dire, of life could consider they fairly option voir that prosecutor’s his her initial Each modified or without possibility parole. imprisonment with the willing the death in the abstract stance in favor of penalty strong case, follow the and to ness to consider the circumstances particular law, or re conflicting at the “Where phase. equivocal applicable penalty elicited, jurors’ are the trial court’s determination the prospective sponses (1991) (People of mind on an court.” Beardslee binding states is appellate record, 68, 276, 1311].) “On we 53 Cal.3d 103 806 P.2d this Cal.Rptr. [279 that, law, views capital cannot as a matter of on say jurors’ punishment of their would have or prevented substantially impaired performance (Ibid.; with their instructions and their oath.” duties as in accordance jurors 841, 851-852, 412, (1985) see 469 U.S. 424 L.Ed.2d Wainwright Witt [83 Therefore, 844].) court not its discretion in 105 S.Ct. trial did abuse challenges. defendant’s for-cause denying

Defendant also that one of the jurors professed contends prospective his a bias court for- wrongly racial Black denied against people, his This for removal. challenge cause requiring peremptory challenge, defendant, to of his People argue points prior that at exhaustion 3We note that several argue expressed People it that defendant’s peremptories, satisfaction with the as was. preserve solely to the issue of peremptories exhaustion of his a tactical maneuver order (See 48 wrongful challenges appeal. People v. Bittaker denial of the for-cause 630, peremptory exhaust Cal.3d must 659] [defendant claiming that a challenges, produce good exhausting before peremptories, or reasons not challenge his determine rights].) denial of for-cause violated constitutional Because we case, challenges not the issue the denial of the for-cause was not error in need reach this we preserved had in his challenges. whether defendant fact constitutional too, been raised with He stated that he had conflicting responses. gave juror, He of’ the also that he had out “grown prejudice. but racial prejudice media,” belief, that Blacks were more likely “the his derived from expressed Whites, than but his ability judge a crime professed to have committed answers, we cannot say Given these equivocal each case individually. chal- defendant’s for-cause abused its discretion denying the trial court (1992) 3 Cal.4th (See Cal.Rptr.2d v. Pride lenge. P.2d Excuse “Death Challenges Use Peremptory E. Prosecutor’s Penalty Skeptics” challenges used his peremptory that the prosecutor Defendant claims about skepticism who jurors professed exclude prospective systematically further basis. He for cause on that were not excludable the death but penalty to an the right impartial he was denied due claims that as a result process, under of and to a reliable determination guilt penalty right jury, States Fifth, Sixth, of the United and Fourteenth Amendments Eighth, substantially We have rejected and their California equivalents. Constitution Cal.3d 927 [269 Marshall contentions (People similar 676]), them here. and decline to reconsider P.2d Phase Issues III. Guilt Section 1538.5 Evidence Pursuant to A. Suppression of to evidence claims that his motion suppress Defendant ammunition, vari 12-gauge shotgun, khaki pants, of blood-soaked pair wrongly sister’s home was evidence discovered his other pieces ous denied, right in violation of his obtained illegally and that the evidence was Amendment to the the Fourth search and seizure under unreasonable against I, Consti 13 of the California and article section United States Constitution exceeded its jurisdiction the trial court He further contends that tution. issue before and seizure to the search relitigate permitting trial, prosecution 1538.5, his As will appear, subdivision (j). in violation of section merit. claims are without evidence the above mentioned trial to suppress

Defendant moved before matter at on the hearing The trial court held a to section 1538.5. pursuant sister, Barnes, Dale Police Detectives and Corona Vicky which defendant’s testified, with markedly the court providing and Alex Marmolejo Stewart facts. accounts of the relevant different

. Stewart, to find a Barnes’s home he went to to Detective According “No-No,” the murderer Niles as who had been identified by named person Guitón James by Agent accompanied Special Stewart was his wife. the City three officers from Corrections and police California Department scene, Detective Stewart at At time he arrived Angeles. of Los had believe that defendant him and did not had lied to believed that Niles stated that initial Barnes the crime. questioning, involved in Upon been defendant, left there, but he had to recently referring “Noel” lived visit his girlfriend. to enter the apart- and Marmolejo Detectives Stewart

Barnes permitted mother, who was also Barnes and defendant’s Stewart told ment. Detective asked of the murder. Stewart did defendant suspect he not present, witness had identified any light-colored pants—a defendant owned whether wearing pants. as light-colored from the murder scene running person Barnes, and retrieved a into defendant’s bedroom without went replying, above, she unrolled them the of khaki As recounted rolled up pair pants. down, from the knee legs, that the revealing pant officer’s police presence, matter. Barnes was organic surprised covered with blood and other were shaken revelation and began crying. this visibly occurred, that the Barnes told him after this Shortly phoned. did to warn and wanted to to him. She not attempt were there speak police Stewart, wanted to She who told him he him off. him on the with phone put Thereafter, use telephone him in Stewart person. attempted question hands, out of Stewart’s a search warrant. Barnes the get telephone grabbed it, that he replied the out of her house. Stewart and ordered unplugged police the house. An and to search was search warrant intended obtaining and taken in which Barnes handcuffed eventually altercation ensued was outside. and was that defendant arrived at the house

Stewart also testified when arrested, U.S. (Miranda he rights waived his Miranda Arizona 974]), having and denied L.Ed.2d 10 A.L.R.3d S.Ct. pants, the bloody been Corona. Once defendant was confronted however, Niles to that had story, accompanied he his he changed admitting Corona, the when had been at scene shotgun, had obtained a he they murdered, his when gotten pants Niles was and that the blood had Sonja murder, however, in the the victim fell. He denied direct involvement having learned that Sonja out when he that he had backed initial plan stating bedroom. a search his was a correctional officer. He consented to Niles ammunition, uncovered, shotgun, The search other among things, 12-gauge them. other matter on and a of tennis shoes with blood and pair her Barnes, contrast, inside she did not invite the police testified that whether to check One asked her permission home. officers accompanied and the officer. Upon She defendant was consented present. return, had entered the were apartment found the other officers their she Stewart questioned police activity, to search it. When Barnes beginning Barnes, to Stewart stated that According told her to “sit down and shut up.” which and “tear the son of a bitch apart,” by he would a search warrant get to tear her he would use the search warrant she understood him to mean defendant called and Barnes handed phone home At some apart. point, thereafter, to her would do damage Soon concerned that the police Stewart. Stewart threw Barnes In she unplugged phone. response apartment, her, floor, and removed her from apartment. handcuffed that, about Barnes insisted she although questioned Most importantly, did not know where she had stated that she defendant’s light-colored pants, his much less bag, and at no time checked laundry he his laundry kept to the police. showed pants rebuttal, Stewart’s version confirming testified Marmolejo

Detective events. so, motion, made but in doing court denied the

The trial suppression The court found adverse to the People. factual that were findings potentially pants not found or shown the bloodstained that she had testimony Barnes’s credible, and Marmolejo’s the court chose not to believe Stewart’s to be found, rather, had that the bloody pants of events. The trial court version consent once to defendant’s been discovered the search during pursuant be the consent to The trial court nonetheless found defendant was arrested. obtained, defendant’s motion and therefore denied have been lawfully suppress. later, recon- a motion to “augment filed

Eleven days prosecution Civil Procedure section to Code of pursuant sider” the motion suppress, were, essence, in that for motion (a)(8). The grounds subdivision the trial and that taken the by surprise Barnes’s had testimony prosecution the case of could lead to an eventual dismissal court’s factual findings of an aby transcript The motion was accompanied defendant. against Guitón, the of day and a police report prepared interview with Special Agent both Police Angeles Department, arrest an officer of the Los by defendant’s corroborated Stewart’s account of events and of which contradicted Barnes’s motion, the court and At second on his hearing suppression a Marmolejo’s. Guitón, the Los and two of Angeles heard the of testimony Special Agent scene, confirmed the who who had been on the officers police present the motion trial court granted account of the Corona officers. The police had submitted the over defendant’s the that objection grounds prosecutor evidence, would be served. It the interests of justice as well as that new that Detective Stew- concluding its findings, modified factual subsequently was the correct one. version of events art’s motion was wrongly his denied is contention that suppression

Defendant’s First, he that the trial court exceeded its on three claims. contends predicated 1538.5, hearing under section in the reopening suppression jurisdiction findings and we are bound the trial court’s factual by that subdivision (j), of the search and the lawfulness determining after the when hearing first Second, contends, he those led the conclusion findings seizure. Third, he the court the claims that trial by arrested wrongfully police. concluded, had lawfully first he hearing, after the suppression wrongly room, the of because his arrest tainted wrongful to the search his consented his We not second and third consent. need address supposed subsequent merit. To understand we his first claim to be without claims because find so, in set forth we review scheme briefly statutory this is must why section 1538.5. a comprehensive

As we have stated: “Section 1538.5 provides and seizure issues determination of search exclusive for final procedure defects identified redressing to trial. Its enactment was aimed at chiefly prior of (i) unnecessary expenditure in the existing previously procedures: of a or search legality time and effort allowing repeated challenges (ii) the of time of criminal waste seizure course a proceeding; during trial, since the seizure to be raised questions during search and permitting determination jury; takes outside the presence these issues place obtain (iii) for the prosecution the lack of adequate opportunity adverse decision on a search seizure question review an appellate In accordance before trial commences and attaches. jeopardy [Citations.] [][] a defendant’s motion with these section 1538.5 requires objectives, a of a or of evidence obtained as result return property suppression of a offense felony search or seizure be made at an In case stage. early be at the hearing initiated the motion made may preliminary complaint, held to if defendant is before the Additionally, magistrate. [Citation.] indictment, the is answer at the or the hearing charged by preliminary felony at court defendant is to renew or make the motion superior entitled 471, 475-476 (1980) 26 Cal.3d de novo v. Brooks special hearing.” (People also 1306].) A defendant make suppres may motion did not at if for this sion motion for first time trial “opportunity the motion.” not of the for grounds exist or defendant was aware 1538.5, (§ (h).) subd. is likewise to of evidence contest People’s ability suppression in that: part, by pertinent section 1538.5.

governed (j) Subdivision provides, or is suppression motion return of property evidence] “If defendant’s [for court, if have in the the people, they hearing superior at a granted special at the and not presented special evidence to motion relating additional the evidence cause at the trial why to show right good shall have hearing, at the why prior ruling at the special hearing was not presented seek or the binding, people may appellate should not be hearing special added.) (Italics (o) . . . review as in subdivision provided to statute contrary by that the trial court acted Defendant contends before trial and without motion relitigation suppression permitting 1538.5, other of section subdivision nor (j), any part cause. But neither good us, in which the seek to reopen the situation before People to literally applies be Nor can such an that has been denied. application motion a suppression terms of the statute. of the express in implied, light from can be implied claims that this prohibition nonetheless Defendant 1538.5, 1538.5, states that section (m). That subdivision subdivision section here, the sole and “shall constitute not relevant and several other sections of a unreasonableness to test the to conviction exclusive remedies prior is a defendant in . . . motion making or seizure where the person search or will be offered has been offered thing and the or a criminal case property (m) in subdivision him or her.” The exclusivity language as evidence against however, of which it is a read, of the entire statute in the context must be Cal.Rptr. v. Morris 46 Cal.3d (See People part. which a defendant can the means by 1538.5 P.2d Section governs seizure, and, search from an resulting illegal to evidence move suppress defendant and both the (i), the means which (h), by and (j), in subdivisions Thus motion. a an adverse ruling suppression can challenge the People understood, in subject must be light “exclusive remedies” the term statute, avenues the available to signify matter encompassed on the rulings suppres- relief from evidence and for suppressing unfavorable which the evidence, ruling, of a favorable to a modification sion of not in- Legislature that the is no indication addresses. There statute nowhere 1538.5, tended, modification. such to preclude section (1975) 15 Court v. Superior in Madril our language Defendant quotes a 33], that the determination P.2d Cal.3d 73 in the “whether court a superior 1538.5 motion at hearing section special of jurisdiction that court favor—deprives defendant’s or in the People’s seek to subdivision (j), the matter unless People, pursuant reconsider Cal.3d at (15 pp. cause.” good the matter at trial upon showing reopen 77-78, moved to reopen, prior In Madril the original.) italics “ ‘through trial, claiming been granted, motion that had suppression 1205 ” were not fully explored.’ areas of inquiry and inadvertence important haste lacked for such 74.) In that the trial court jurisdiction at p. holding {Id. reconsideration, in cases asserting dicta earlier we disapproved pretrial motions the to reconsider suppression that the court has inherent power trial for writ review under seeking to the the 30-day period prior expiration 1538.5, 77.) We were (o) (i). (15 Cal.3d at p. subdivisions section by a covered section in with situation explicitly concerned Madril clearly 1538.5, is, a the motion to reconsider granted suppression that prosecution’s no such the trial had motion. Our statement that court jurisdiction the was another means of that conveying reconsideration before trial simply to which the statute trial court had no inherent do that power expressly motion other than as forbade—to reconsider a granted suppression pre- in We in Madril the unusual scribed subdivision did not consider (j). in situation this case which the seeks reconsidera- presented prosecution in a motion. findings suppression Nothing tion of unfavorable factual denied the its in the of Madril us to conclude that trial court exceeded logic compels case. in this jurisdiction the

Because to and reconsider” “augment suppression the motion People’s 1538.5, the motion not section we with governed agree by People Code trial to relief is controlled of Civil the court’s instead ability grant 128, will (a)(8), Procedure section which states that court every subdivision the as have to “amend and control and orders so to make power its process We the of trial recognized them conform to law and have justice." power 128, (a)(8) to courts to Code of Civil subdivision use Procedure section v. correct erroneous in limine criminal cases. Keenan rulings (People 478, 550, 1081]; (1988) 46 Cal.3d see also Cal.Rptr. 620, 528].) (1991) McGee 627-628 Cal.App.3d Indeed, 1538.5, the predecessor of Penal Code section prior adoption (a)(8), Code of was held to be to Civil Procedure section subdivision order. suppression the source of a trial court’s inherent authority modify Beasley (People Cal.App.2d [58 Cal.Rptr. we conclude that Code of Procedure section subdi Accordingly, Civil (a)(8), factual findings gives modify vision court discretion order, or sua sponte, a denied as requested by prosecution suppression court interests of There is no in this case that trial justice. showing its abused discretion make such modification. us, trial we that the court’s

Nor can on record before say, was not bloody Barnes to show finding police pants consented conclusion, that defend based substantial evidence. Given that it follows cause, consent to search subsequent ant was arrested with his probable obtained. We after the was lawfully waiver of his Miranda voluntary rights in defendant’s that the trial court did not err denying therefore conclude motion to suppress.

B. Miranda Waiver Validity of above, was advised of his under rights

As recounted defendant Arizona, those 384 U.S. 436. He waived rights Miranda v. supra, wife, the latter murdered been with Niles when his having confessed a in the murder. He later gave he disavowed any participation although statement, reiter Police essentially second at the Corona Department, taped moved trial to in somewhat detail. He before ating greater the first statement The trial exclude under Evidence Code section 402. both of his statements He now contends that the trial court erred court denied the motion. to be admitted into evidence. these statements allowing made contends on that Detective Stewart appeal Specifically, him him into his incrim- making that deceived material misrepresentations above, at the apartment statements. As Stewart inating explained present Stewart told his sister when defendant telephoned. defendant shared with Corona, he was a investigating him that he was from the City homicide, had that he was when the homicide present that someone had said occurred, he, Stewart, but that did not believe person supplying he wanted him to come back information. Stewart further told defendant in Los He to make a statement while Stewart was Angeles. the apartment him was that he had already to do so. What Stewart did not tell agreed in Sonja the bloodstained and that he had become a suspect discovered pants arrived, and handcuffed and read murder. He was arrested eventually Niles’s Corona, being ever been to but after having his Miranda He denied rights. serious, are aren’t you?” he said: “You guys shown bloody pants, serious,” defendant made was “real at which Stewart that he point responded in, at, direct his his not his though participation statement admitting presence Niles’s murder. Sonja information to a or of false use of communication deception

“‘[T]he involuntary a statement resulting does not alone render suspect, [although it] [citation], of voluntariness. finding . . . is a factor which weighs against ” 50 Cal.3d Thompson (People [Citations.]’ because Stewart had misrep- Defendant contends that murder, resented to him over that he was not telephone suspect statement, and the time he his he did not realize that he was a at suspect gave silent. Defendant his to remain therefore did not waive knowingly right U.S. this case resembles that in further contends that the police deception found the in which the court (5th 1990) Cir. F.2d Rogers invalid when the police to be rights his Miranda waiver of defendant’s and did not criminal he was not a suspect him to believe that led initially statement. at made his incriminating until after he {Id. inform him otherwise into is not called of a waiver 191-192.) suspect’s But the voluntariness pp. case, to lure a when, use a misrepresentation as in this the police question before the suspect the misrepresentation into reveal custody, yet suspect case, Stewart employed by In this the misrepresentation makes a statement. been as in the case—had already exposed —that defendant was not a suspect arrested, statement, he had been made his false. At the time defendant murder, handcuffed, had been shown the bloodstained about the and asked that, aware acutely be to have been He therefore must presumed pants. he was a We him over the telephone, súspect. whatever Stewart had told that he did not knowingly that defendant’s contention therefore conclude is without merit.4 his self-incrimination against waive right Use Juries C. Two trial, trial. both Niles and moved to sever the

Before motion, instead the use of two juries, opposed proposing prosecution evidence, that there was some particularly acknowledging possibility defendant, that not be statements of Niles incriminating might extrajudicial denied the motion for admissible at defendant’s trial. The trial court separate severance and Defendant now contends granted prosecution’s request. trial its for a dual rather than that the court abused discretion opting jury severance, of his under the rights for and that such abuse led to the violation Fifth, Sixth, the United States Con and Fourteenth Amendments of Eighth find, stitution and their under the California Constitution. We counterparts however, that no such abuse of discretion occurred. offense must be tried

Two defendants with the same jointly charged when orders trials. together, separate the trial court its discretion except 1098; 899, 733, (1967) v. Massie 66 Cal.2d 428 (§ People 916 Cal.Rptr. [59 leads to 869].) P.2d An abuse of discretion occurs when the failure to sever state the admission at one defendant’s trial of incriminating extrajudicial be inadmissible in a ments defendant that would otherwise by joint 518, (1965) trial. v. Aranda 63 Cal.2d 529-530 separate (People [47 353, 265]; (1969) U.S. 123 407 P.2d Bruton v. United States Cal.Rptr. 476, 1620].) (1989) L.Ed.2d In v. Harris 47 Cal.3d S.Ct. knowing intelligent 4Defendant further contends that his waiver was not because when Miranda rights additionally he was read his that he could be sentenced he was not informed stated, But, suspected. to death for the crime of has which he was as we have “[d]efendant right consequences charges prior penal no to be advised about that he faces 950, 689, (People v. Clark interrogation.” Cal.Rptr.2d 5 Cal.4th fn. 11 [22 P.2d 619], we held that the 1070-1076 the use of in Bruton and Aranda be solved may addressed problem codefendants, with each to be excused at appropriate juries separate evidence. We various rejected to avoid to inadmissible exposure times dual against jury system constitutional statutory arguments and “is not a basis for reversal concluded that it is “a practice” permissible the manner absence of identifiable from resulting appeal prejudice (Id. 1075.) it is at in which implemented.” p. of such oc

Defendant contends that several instances prejudice First, trial led to a than usual curred. he claims that the greater longer excused for which in turn fair “trigger[ed] number of jurors hardship, articulate, however, what these concerns . . . .” He does not cross-section be, ex or which were concerns might cognizable groups systematically Nor, his such has he carried cluded. even if he were identify groups, race-, class-, and that the use of a dual jury—a gender- burden of proving v. Sand (See People neutral constitutionally impermissible. procedure—is ers, 492-493.) 51 Cal.3d at supra, pp. effect,

Second, served, as a contends counsel in defendant that Niles’s occa- in on a number of second out cross-examination bringing prosecutor, identify any detrimental to defendant. Yet he does not sions testimony have been inadmissible at a evidence elicited Niles’s counsel that would by that the trial. The mere fact that a cross-examination separate damaging instead codefendant’s by could have undertaken was performed prosecution or did not of defendant’s constitutional statutory counsel compromise any rights.

Third, sever defendant contends that the failure to “effectively deprived We have indeed held of the benefit of his codefendant’s testimony.” [him] exon that “the that at a trial a codefendant would give possibility separate Massie, supra, in favor of severance. v. (People erating testimony" weighs Here, however, 917.) 66 Cal.2d at there is no basis for supposing p. Niles, defendant, have whose defense was to would blame place latter’s contradicted defendant at the exonerating himself with testimony trial.

Fourth, his and Niles’s defenses were defendant contends that the fact that Massie, (See supra, also in favor of severance. antagonistic weighs 917.) But “That defendants have 66 Cal.2d at as we stated: p. recently to each other inconsistent defenses and to shift responsibility may attempt [citation], abuse does not severance of their trials let alone establish compel (People Cummings, supra, of discretion juries.” in impaneling separate Here, “the were in defense 1287.) Cummings, positions as at Cal.4th p. was defendants. of the killer disputed the identity because antagonistic however, incident was undisputed, involved That each was to support convicting offered evidence sufficient verdicts had prosecution one not a case in which only . . . was defendants. both [T]his leave did not both and it to charge be The prosecution could guilty. guilty] person.” that the other defendants to convince the jury [the short, not its discretion to sever (Ibid.) by refusing In the trial court did abuse trial, notwithstanding. inconsistent defenses defendant’s and Niles’s D. Absence Testimony Defendant’s the court on from claims that his absence voluntary

Defendant evidence, 15,1988, violated sections 977 the taking December during court that the commit We that he is correct his assertion 1043. conclude from trial during him to absent himself statutory ted error by permitting was not prejudicial. We further conclude that such error taking evidence. case, 15, 1988, its presentation On December during prosecution’s his counsel in the court room with a black eye, defendant appeared a would not make negative a continuance so that defendant requested court continuance. Counsel then The denied the impression jury. himself indicated to the court that defendant to absent from preferred Anthony trial for that The stated that he to prosecutor examine day. planned a initial with Niles. witness who testified to defendant’s association Piper, criminalists, The also to examine two Sham and Aber- prosecution planned crombie, and to continue examination of Detective Stewart. Defendant’s counsel, court, in be right to defendant that he had the to open explained and that these would his absence. He witnesses be present, testifying during that, court, defendant, further clarified explained by prior decision, he not addition- would be cross-examining Piper. prosecutor death that defendant was for the ally emphasized eligible potentially penalty. counsel, In to several from the court and from defense response inquiries defendant made clear that he did not to be in court that day. wish present Indeed, he he in sat with his back to the court and indicated that sit might that manner if he the court’s to were not allowed leave. He declined offer be in chambers and to instead to be taken back hear proceedings, opting to jail.

A defendant has the Amendment of right, under Sixth Constitution, to federal be at trial evidence. taking present during 486, 490, (United 522, v. 470 Gagnon (1985) States U.S. 526 L.Ed.2d 1482]; 1, (1993) 105 S.Ct. Johnson Cal.Rptr.2d 6 Cal.4th 17 [23 Nonetheless, concluded, 593, 673].) as we have “as a matter of 859 P.2d law, state constitutional ... a defendant capital may both federal and (1991) Price at critical of the trial.” stages (People waive validly presence 106, case, In that 1 Cal.4th Cal.Rptr.2d trial, lasted to be absent from the an absence that defendant requested We found “no constitutional in infirmity much of the guilt phase. through decisions in case to defendant’s actions as a the trial court’s accept [that] with the in defendant’s ab guilt phase waiver and voluntary proceed find no constitutional in the (Ibid.) infirmity We similarly sence.” be case with the defendant’s waiver of his voluntary right present present of the trial. day on a single (b)(1), error is another matter. Section subdivision states

Statutory is the accused charged, that all cases which a felony pertinent part “[i]n those “during times including shall be at various during process, present” . . . .” before the trier of fact of the trial when evidence is taken portions be accused shall (Italics added.) That subdivision further provides “[t]he shall, leave unless he or she with at all other present proceedings personally court, court, her to be a written waiver of his or right execute in open 1043 further felony . . . .” Section provides personally present trial,” (id., (a)), but that the at subd. defendant “shall be personally present (1) if defendant persists continue in a defendant’s absence trial may (2) is (id., (b)(1)); subd. behavior after warned being disruptive for an offense which is not punish- absent in voluntarily “[a]ny prosecution waived his (id., (b)(2)); rights death” subd. if a defendant has able by Thus, added). (d), italics when (id., in accordance with section subd. defendant to be absent sections and 1043 capital read together, permit occasions; (1) he has been removed from courtroom on two when only (b)(1), under section subdivision the court for behavior disruptive 977, to section (2) when he waives his voluntarily rights pursuant 977, However, (b)(1), (b)(1). section subdivision the subdivision subdivision defendants, situa- waiver for provides that authorizes felony expressly his to be right present, including tions in which the defendant cannot waive 1043, Section subdi- the of evidence before the trier of fact. during taking to the (b)(2), that its broad “voluntary” exception vision further makes clear at does not to defendants be trial felony present apply requirement court, Thus the trial a nondisruptive capital defendants. capital by permitting evidence, committed error under defendant to be absent during taking sections and 1043. 977 First, although

The to the are arguments contrary People’s unpersuasive. not occasions waiver was we have decided on numerous that voluntary not, notwith- constitutional error we have the People’s contrary implication one of settled the whether a standing, during defendant’s absence question 1211 to be under which he or she is mandated present during the proceedings left that in question open violates that statute. We expressly section 977 696, 787, P.2d (1991) 54 Cal.3d 819 Cal.Rptr.2d v. Edwards People 436], issue since then. Al- statutory not addressed the directly and have defendant who does not want to be we that “a argument though rejected if he in can achieve his wish only engages selection during jury present ” behavior,’ (id. 809), we left undecided whether a at p. capital ‘disruptive trial to . . . to absent himself at “proceedings defendant’s capacity applies 977, 810). (b)” (id. at We are now listed in section subdivision p. specifically of the that a statute meaning capital may plain persuaded his to be listed in right during not waive voluntarily present proceedings taken, 977, trial in which evidence is section those including portions he has been he not be removed from the courtroom unless and that may intended evidently or threatens to be disruptive. Legislature disruptive be that a to waive his to be right defendant’s capital right voluntarily present course, Of we will defer to the trial court in restricted. severely generally when further when a defendant has been or determining disruptive disruption Price, (See be 1 Cal.4th at may reasonably anticipated. supra, pp. 405-406.) The trial or ability court’s remove disruptive potentially (b)(1), defendant follows not from section subdivision disruptive only in but also from the trial court’s inherent to establish order its power Proc., (See courtroom. Code Civ. court has the power [trial § case, however, court].) sanction various In acts contempt present the trial court did not remove nor defendant to does prevent disruption, record reveal that defendant was behavior. We there- engaging disruptive erred, fore conclude that the trial court under sections defendant’s to absent of evidence. granting himself request during taking turn, then, above, We the error As discussed question prejudice. in this case is of a will dimension. We therefore reverse purely statutory if we judgment only can conclude “that it is that a result reasonably probable more favorable to the would have been reached appealing party absence of the error.” v. Watson (People Cal.2d 836 [299 P.2d

No such reasonable in the case. Defense probability appears present stated, waiver, counsel prior securing defendant’s had both they decided not beforehand to cross-examine and therefore defendant’s Piper, absence during was not to affect the outcome of the testimony likely criminalists, Nor trial. was his absence the forensic during testimony cross-examined, who were also not blood tests and the regarding shotgun Niles, Stewart, used to kill Sonja to alter outcome. Detective likely the trial’s testified, who also was recalled when defendant was by the prosecution 1212 that time. court Finally, properly cross-examined at and was

present, been excused for voluntarily good that defendant had the jury informed in We his absence any respect. was not to consider and that the cause error was not prejudicial. that the trial court’s conclude therefore Examination Polygraph Motion to Admit Results Denial E. of of trial, administered to a examination defendant submitted polygraph Before licensed who was a in the Redlands Police Department a sergeant (1) Niles’s whether he had shot asked defendant The examiner polygrapher. wife, (3) had wife, shot Niles’s on the (2) gun the trigger pulled “no,” were to these questions Defendant’s answer seen Niles shoot his wife. was “no,” examiner concluded that and “yes” respectively. trial, results of to have the defendant moved Prior to truthfully. answering on the objected The prosecutor introduced into evidence. the examination 351.1, Code section would violate Evidence that such admission grounds examination results of a polygraph that “the which provides pertinent part . . . criminal any proceeding into evidence . not be admitted . . shall such results.” The prosecutor to the admission of all stipulate unless parties evidence. The the admission of polygraph as to declined stipulate offer of proof polygrapher’s defendant to make an court permitted test. of defendant’s as to the results testified testimony, polygrapher 351.1, the that, section Evidence Code notwithstanding Defendant argued court denied be admitted. The relevant and should testimony polygraph the motion. erred. He claims that the trial court

Defendant contends on appeal consider that, we should 351.1 notwithstanding, Evidence Code section within the examination has gained general acceptance whether the polygraph under the and is therefore admissible princi scientific community relevant 144, P.2d 549 (1976) 17 Cal.3d 24 People Kelly [130 ples 1923) F. 1013 (D.C. App.D.C. States Cir. 293 [54 v. United Frye 1240] (1994) 8 Cal.4th 587 46], v. Leahy [34 reaffirmed in People recently Evidence 663, that because He further contends Cal.Rptr.2d 321]. evidence, it of reliable bars his admission exculpatory Code section 351.1 442 U.S. (1979) Green v. (See Georgia federal due violates process. were 738, 741, 2150].) if argument Even defendant’s L.Ed.2d S.Ct. under abstract, offer of proof failed to make the proper true in the he has as community viewed in the scientific that the is now Kelly/Frye polygraph “ offer proof, to make the proper . . failed Having a reliable technique. ” ruling.’ in the trial court’s error defendant is in no position assign P.2d Cal.Rptr.2d 7 Cal.4th Fudge (People was the police the motion The sole witness testify support test, to as to testify was not competent the who administered who sergeant Defend- community. relevant scientific the acceptance polygraph’s the merit. is without claim therefore ant’s Status Probation

F. Disclosure of Defendant’s must be reversed because that his conviction Defendant contends was on for grand evidence that he probation the received jury mistakenly facts are as follows. his arrest. The pertinent theft at the time of auto defendant’s was a into evidence tape the exhibits submitted Among was The tape after his arrest. the Corona Police made shortly interview with interview, was distributed the which transcript by printed accompanied been played, After the had partly when the was played. tape to the jury tape off, he informed the court be turned counsel the tape defense requested interview in which defendant the to hear the did not wish jury portion the court auto.” In response, on theft being “grand admitted to probation from the jury. prosecutor that the be collected ordered transcripts the from the transcript, omitting portion Detective Stewart read aloud Later, delet- had an edited objected. transcript to which defendant transcript into evidence. The was and submitted ing proscribed portions prepared as exhibit 60 and court ordered that the edited version be identified clerical through unedited version be identified as exhibit 53. Apparently deliberations, error, its the reverse was made. designation During guilt phase that, Defendant because conjectures to see the jury requested transcript. was in fact given of the confusion in the exhibit numbering, learned, and that defendant’s of his prior unedited it transcript, prejudice, conviction and status. probationary record, discern,

We are on the which version of the unable bare We under Evidence must therefore transcript given jury. presume, her official Code section that “the clerk ‘regularly performed’ duty exhibits which they submitted to the the admissible jury only portions any (1992) 1 1056 Cal.Rptr.2d v. Mitcham Cal.4th requested.” (People The fact the numbers clerk transposed two out her to distribute duty exhibits does not mean that she did not carry the edited version. only however, committed, was not Even if clerk’s error was it prejudicial.

“ ‘When, case, it inad- as in considers evidence was this a jury innocently Rather, there is no misconduct.’ all vertently given, appears [Citation.] error, must be is error. ... ordinary ordinary prejudice . [*][].. [W]ith reasonable probability shown and reversal is not there is a unless required that an outcome more favorable to the defendant would have resulted.” 629, 564, v. Clair 2 Cal.4th (People Cal.Rptr.2d case, 705].) In this there was no reasonable of a more favorable probability outcome. reference to his and Passing status his convic- probationary prior tion for a nonviolent offense by was overshadowed considerable evi- defendant, dence against including Piper’s testimony regarding conspir- Niles, between defendant and Clark’s and the acy eyewitness testimony, error, and found in defendant’s bedroom. The clerk’s if bloody gun pants was, error there therefore was not prejudicial.5 G. Admission With Fight Piper of Defendant’s

Defendant filed a for an motion limine order instructing and Niles’s counsel to refrain from into People’s introducing evidence certain his criminal acts on the that were more prior grounds they than and therefore should be barred under prejudicial probative, Evidence Code The trial section 352. court the motion and issued an order granted the introduction of evidence as to the items: defend prohibiting following ant’s from Riverside his false escape County jail, alleged imprisonment correctional officer his of a robbery during escape, carrying concealed his acts weapon Redding, rape, kidnap, escape, burglary trial, criminal mischief in and his affiliation. At Oregon, Niles’s gang during testified, cross-examination of the latter Anthony without Piper, objection, defendant, he had with in which me I him quarrel pushed pushed “[he] and a came and broke it Defendant on couple people claims up.” appeal trial court’s aforementioned order extended broadly prohibit any about his violent trial testimony previous acts. But the court’s order did not bar all such the criminal acts Nor testimony, only above. can specified claim, as he also does that such should have appeal, testimony been barred under Evidence Code section 352 as than more prejudicial because he failed to “In the absence of an probative, object. erroneous ruling on an or objection that a answer be stricken and the request nonresponsive it, Harris, instructed to there is no disregard error.” (People supra, 1089.)6 Cal.3d at p. 5Defendant also contends that the erroneous transcript admission of the unedited violated right

his process, impartial jury, to due an guilt and a reliable determination of under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and comparable provisions in the appears. California Constitution. No federal error constitutional Clair, Certainly (See supra, none is shown pp. defendant. 2 Cal.4th at fn. 10.) fn. 6Defendant also Piper’s testimony rights contends that the admission of violated to due process and a fair trial found the federal and he California Constitutions. Because failed H. Shackling of Defendant

Defendant was shackled on one hand and on his feet trial. during shackle, He the removal of the hand requested which was visible apparently to members of the but his jury, was denied. He claims request prejudicial error from the visible shackling. “ restraints cannot be Physical ‘in the absence of a imposed show- rqcord ” of

ing violence or a threat of violence or other conduct.’ nonconforming 920, (1995) 636, v. Hawkins (People 10 Cal.4th 944 897 Cal.Rptr.2d [42 574].) P.2d The trial court’s decision shackle will be reviewed for abuse of (Ibid.) discretion. No such abuse is manifest here. Defendant was facing recent charges from Riverside escape and false County jail imprisonment of a correctional officer in the process, and had pleaded guilty to another recent from an escape It was Oregon jail. reasonable for the trial court to conclude that defendant presented risk that his security justified shackling. that,

Defendant argues nonetheless even if the was not shackling errone ous, the court failed in its to ensure that duty was done in shackling least visible or obtrusive manner by the hand shackle. removing As we stated 282, (1976) 618, Duran 16 Cal.3d 545 P.2d Cal.Rptr. 1322, 90 A.L.R.3d case where any restraints are physical 1]: “[I]n used those restraints should be as unobtrusive as as possible, effective as although under the necessary circumstances.” We that “shackles or recognized man acles are not hidden easily from the view and do jury’s not wish to [we] imply should not be they used because are simply (Id. obtrusive.” they 291, 9.) at fn. We then p. noted that “less drastic and less visible restraints when, should be employed discretion, the exercise of his the judge concludes it is safe to do (Ibid.) so.” It does not from the appear present record, in light defendant’s escape and violence history correc against tional that the personnel, trial court abused its discretion ordering hand shackling.

I. Admission Photographs

The prosecution victim, to admit 11 sought over photographs defendant’s It objection. withdrew all but four of the subsequently photo an graphs, including The trial autopsy photograph. court denied admission of the autopsy but admitted photograph, into evidence three postmortem pho over the tographs objections Niles’s counsel. These showed photographs Niles’s Sonja and the remains of a corpse mass of brain large matter beside below, raise objections these to the admission of may evidence he not raise them on appeal. (People v. Benson Cal.3d arm, the shotgun which her skull force of expelled her had been from in connection that killed The used these photographs blast her. prosecution on the cause and circumstance with its direct examination of pathologist in admitting now that the trial court erred of the death. Defendant contends and that inflamed the jury’s passions, these he claims photographs; they not, and should their value outweighed probative their effect prejudicial into evidence. Evidence section have been admitted under Code refuted defendant’s they were relevant because primarily photographs evidence, had not into that he admitted subsequently statement police, statement he had been a In that killed Niles but mere Sonja bystander. her, Niles shot that the had been on the when ground claimed victim lying he, defendant, in front of He also claimed that had been her. standing and on which were later discovered by the blood brain matter his and pants, the blast. But were their forward the shotgun the from police, propulsion Niles, her brain beneath lying show that with the matter Sonja photographs murdered, arm, at the time she was could not have in fact been down lying the undermining credibility but was in an position, thereby upright defendant’s statement. and the his own testimony stipulations

Defendant claims that pathologist’s contained in the jury photo- would have the information conveyed “ solely these details prove But not graphs. prosecution obliged ‘[t]he witnesses, how the the was entitled to see from of live and testimony jury ” theory.’ details and prosecution of the scene physical body supported 2 Cal.4th Raley Cal.Rptr.2d (People Moreover, in the that the court clearly engaged the record reveals evi- effect of the value and weighing probative prejudicial process Thus, dence, (See ibid.) on and that basis excluded the autopsy photograph. considerable were had gruesome, they indeed although photographs events, and value version of defendant’s refuting exculpatory probative them into the trial court no abuse of discretion admitting committed evidence.7 claims number of and state constitutional

Defendant also raises a federal These claims in connection the admission of the evidence. with photographic form of Evidence Code are constitutional his merely recharacterizations above, therefore fail. section claim discussed and must also in order photographs converted to and white 7Codefendant Niles moved to have black trial court erred in prejudicial impact. appeal, to diminish their On defendant contends that the imposes duty the trial denying disagree. no on the motion. We Evidence Code section potential to lessen photographic court to order of relevant evidence so as alteration prejudice. Other Evidence Admissibility J. Hunter, a styro- Dr. used for the prosecution, testifying

The pathologist Sonja blast that killed of the shotgun the trajectory to illustrate foam head a wooden probe, by using for the He illustrated the bullet’s path Niles. the front in of the head to the back bullet traveled from showed that the to show was relevant Dr. Hunter’s testimony direction. slightly upward shot, as thereby refuting, she was when standing Niles was Sonja above, did not object statement. Defendant defendant’s contrary explained however, the use of he contends On model. appeal, the use styrofoam the nature of model, to illustrate the use of probe particularly wound, of the victim’s injury depiction was an overly graphic head whatever value probative outweighing prejudice therefore prejudicial—a claim of he failed to his object, have had. Because such an illustration may error is waived. of counsel for counsel’s further claims ineffective assistance

Defendant A defendant seeking to the use of the model. failure to object a deficient ineffective must show both performance establish assistance counsel, reasonable that such performance the and a part probability Hawkins, 10 Cal.4th at supra, p. affected verdict. (People the adversely no undue 940.) ineffective assistance We can discern prejudice No appears. model, on trial in the use of the and no deficient performance styrofoam counsel’s for failure to to such use.8 part object trial, stand beside the bloody defendant was also asked to

During as was codefend khaki that the had discovered in his pants police apartment, Clark, Niles, Norma ant that these fit defendant and not Niles. prove pants be Niles’s murderer who had witnessed the man who was believed to Sonja scene, that he wore and the flee the had reported light-colored pants, rather than Niles who to establish it was defendant prosecution sought that the wore those on the of the murder. Defendant night objected pants him beside the bloodstained outweighed prejudicial impact showing pants court under Code section but the trial any value Evidence probative allowed the demonstration. its discretion in

On defendant claimed that the trial court abused appeal, him to the he contends be shown alongside pants. Specifically, permitting and that therefore the that the fact that he owned the was not in pants dispute federal and state styrofoam 8Defendant claims that the use of the head violated several trial, rights. objections they Because to make these at are constitutional defendant failed Moreover, Benson, 786-787, 7.) (People supra, his claims are pp. waived. 52 Cal.3d at fn. redesignation using nothing prejudicial more effect of than of his assertion that the value, reject. probe head and which we probative model exceeded its below, however, demonstration had little value. The record probative reveals Niles, no on his that the fit him and not stipulation part and that pants he, Niles, remained in that it was question important not who showing Moreover, court, killed Niles. actually the trial Sonja upon examining concluded that were not so discolored pants, they as to grossly prejudice We conclude that the trial court did jury. not abuse its discretion in permit- him to be seen ting alongside pants.

K. to Admit Niles’s Statements Extrajudicial Refusal

Defendant the admission of several of Niles’s requested out-of- court statements. The prosecution have these opposed request, seeking statements heard Niles’s alone. The trial court refused the on request grounds were inadmissible not they within hearsay, any exception. He now claims that the trial court committed prejudicial error so ruling. below, We As will disagree. the trial court appear have erred although may statements, these no completely excluding resulted. prejudice Niles initially from Los telephoned police after the Angeles shortly wife, murder. He to be worried professed about his who he said he had left at home before to Los He told driving he had called her Angeles. police arriving Los and had Angeles, received no answer. He was told to to the Corona Police report In Department his first questioning. taped interview, he he essentially had over the repeated story given telephone. wife, He also told the that he had police no reason to kill his he although admitted to had domestic having When confronted with the quarrels. fact there was altercation, evidence that he and his wife had a he physical altercation,” admitted to having “push but stated that had not they fought within the last two months.

In a second murder, interview taped made the afternoon after the Niles conceded he interview, had lied to the in a police and offered an previous alternative account of events. He said that his $100 wife owed defendant and drugs, defendant had been her about it in the calling weeks. previous Niles ran into defendant in Los after his wife Angeles to work. taking Defendant out a sawed-off pulled and forced Niles shotgun to drive him to the latter’s home. Once there he demanded or gold money. Eventually defendant made Niles his wife at work. pick up Defendant met them on the He street. went “berserk” when he saw Niles in her Sonja correctional officer’s uniform. She to run from him and he attempted killed her. Niles in was the car when the shooting occurred. Defendant then ordered Niles to drive him back to Los after which Angeles, Niles called the police.

In a third interview, taped interview made three hours after the second Niles again conceded that he had withheld the truth in certain He respects. than he had distance away a greater that he had been parked claimed statement, announced his had and that defendant in the second admitted to occur to allow rape wife. Niles was going to Niles’s rape intention let Niles go only for his own life. Defendant subsequently of his fear because him. defendant he would pay Niles convinced because trial, admitted into evidence. to have these statements defendant sought At the mo- opposed after an noncommittal initially position, The prosecution, were inadmissible statements on the that Niles’s grounds extrajudicial tion the statements are Defendant argued, argues appeal, hearsay. First, that Niles’s false and inconsis- two admissible on essentially grounds. of showing could be used for the nonhearsay purpose tent statements Second, Niles’s some of the statements were against consciousness of guilt. therefore an exception in him to criminal liability, interest subjecting 1230. The trial court decided rule under Evidence Code section the hearsay Nonetheless, it into evidence favor. allowed the motion the prosecution’s call to the Niles’s initial telephone police. been of Niles’s statements could have

We that at least some agree portions his demonstrating admitted into evidence for the nonhearsay purpose conceal the truth and his consciousness of guilt. initial showing attempts however, error the trial court made in this cannot be Any regard prejudicial, of the case was not under standard of review. The any theory prosecution’s was not involved in the murder—on the contrary, that Niles prosecution defendant, hired that he drove the getaway that Niles sought prove theory. car. Niles’s recorded statements are consistent with this prior fully Niles told lies and half-truths in order to conceal his central involvement statements, in these his wife’s murder and shift blame to defendant. Nothing whether taken at face value or to Niles’s lack of weakens prove credibility, manner it was defend- case defendant—that any prosecution’s against It not Niles’s ant who fired the that killed Niles. was actually shotgun Sonja found but that of and Clark as well as the evidence testimony, physical Piper in defendant’s to defendant as primarily Sonja apartment, pointed Moreover, Niles’s murderer. the admission of the call recording telephone from Niles made clear to the that Niles was to conceal attempting amply reasons, For failure to admit the other his from the these culpability police. statements, error, recorded to the extent it was harmless.9 L. Police Records Discovery Personnel of trial, to motion to Evi

Prior codefendant Niles filed a pursuant dence Code sections 1043 1045 to discover citizen through complaints objection also initial lack of prosecution’s 9Defendant claims that he relied on the prejudice in planning strategy. out-of-court statements in Yet he shows no such his defense reliance and his claim is therefore without merit. 1220 him, officers who and arrested Detectives interrogated the

against police in The trial court conducted an camera Marmolejo. hearing Stewart 1045, (b), and concluded to Evidence Code section subdivision pursuant in which these two officers were mentioned none of the citizens complaints Defendant now were relevant to the case. contends sufficiently present that the trial court erred in of of these discovery any refusing permit complaints. matter,

As a threshold contend that defendant did not Niles join motion, not claim error on on the therefore discovery may appeal. motion, and defend- join defendant did not Although appear formally absent when it was being argued, ant’s counsel was expressed motion, he too interest in the outcome of the as voluntariness challenged III.B., (See ante.) statements he had made to incriminating pt. police. decide, however, need not whether defendant can be deemed to have We motion so as to the issue on discovery preserve Assuming joined appeal. did, court did not err in not that he we nonetheless conclude that trial in the citizen providing discovery complaints question.

Evidence Code sections 1043 Pitchess v. through codify 897, (1974) 11 522 P.2d Court Cal.3d 531 Superior Cal.Rptr. [113 305]. “The scheme balances two interests: conflicting statutory carefully directly and the defendant’s officer’s claim criminal peace just confidentiality, interest in all information to the defense.” (City equally compelling pertinent 47, 73, (1993) San Jose v. Court 5 Cal.4th Superior Cal.Rptr.2d 621].) achieves this balance legislation primarily through review, (b), in camera set forth section subdivision procedure the trial court can determine whether a officer’s personnel whereby police defense, files contain material relevant to with a minimal any only breach in the of that file. confidentiality case,

In the Niles of citizens com present requested discovery force, and excessive acts racial plaints regarding demonstrating unnecessary and those But when a coercive prejudice, regarding interrogation techniques. coerced, defendant asserts that his confession was discovery request seeks all excessive force officers is arresting overly complaints against broad. v. Memro 38 Cal.3d (People

P.2d “Since the information to bolster his claim sought [defendant] involuntariness who interrogation setting, only complaints by persons (Ibid.) coercive were relevant.” The trial alleged techniques questioning court narrowed its to such and found properly nothing inquiry complaints relevant in either file. personnel

A trial court’s decision on the of material in discoverability police files is reviewable under an abuse standard. personnel (People of discretion

1221 81, 585].) 281, 821 P.2d 311-312 Cal.Rptr.2d Cal.4th (1991) 1 [3 v. Breaux were no complaints that there record reveals of the Our review confessions, and that coerced regarding and Marmolejo Stewart against defendant’s in denying its discretion did not abuse trial court therefore discovery request.10 Withdrawal Argue Failure to Counsel

M. Assistance Ineffective at that length counsel argued defense During closing argument, Niles, withdrew from the kill he to Sonja defendant had conspired although officer, and that correctional that she was a when he discovered conspiracy had that defendant He argued explicitly Niles who killed her. never it was As defendant correctly Niles. an aider and abettor of withdrawn as abettor, he would as an aider and in order to withdraw out on appeal, points from a in a withdrawal more than is required have had to have done case, make an affirmative repudia In the “one need only latter conspiracy. (1988) 45 Belmontes (People tion communicated to his coconspirators.” case, 744, 126, 310].) In the former 755 P.2d Cal.3d and have “done everything would have to his notify accomplices (Ibid.) commission Defendant argues of the crime.” in his to power prevent jury rendered ineffective assistance by arguing that counsel that he with but to failing argue defendant withdrew from the conspiracy, he had to drew as an aider and by failing argue abettor—specifically, of the crime. done in his commission everything prevent power counsel rendered deficient perfor We need not decide whether abettor, for it is clear mance from withdrawal as an aider and failing argue to be the direct that no resulted. The found defendant perpe prejudice jury abettor, trator, used that he had personally and not mere aider and by finding Therefore, no prejudice the firearm within the of section 12022.5. meaning liability.11 from the failure to aider and abettor against resulted argue determination, court’s Pitchess conducting we reviewed the sealed 10In review of the trial According themselves. proceeding, personnel record of the in camera but not the documents direction, hearing held at our representative Department to a of the Corona Police at a 1993 destroyed, department’s policy of personnel these have in accordance with the records been (See Evid. years against police old officers. destroying complaints citizens more than five Code, 1045, old].) (b)(1) years complaints more than five not entitled to subd. [defendant § records, no these and therefore Defendant does not show bad faith in the destruction of (Arizona Youngblood (1988) L.Ed.2d appears. constitutional 488 U.S. error 281, 289-290, 333]; Cal.Rptr.2d v. Memro 831 [47 S.Ct. Cal.4th personal a firearm was not sufficient 11Defendant claims that the instruction on use of finding on an aider and abettor’s personal inform the that it could not make a use based jury, given to the liability instruction principal’s vicarious for the use firearm. But the N. Failure to Give a Instruction Manslaughter

The was instructed on first and second murder. Defend degree jury voluntary theory ant a instruction. His requested manslaughter support statement, the instruction was as follows. to his as well as the According son, of Niles’s there was an altercation Niles and his statement between wife before the Defendant contends that it would have been shortly killing. for the to believe that Niles killed his wife in a fit of possible jury rage, which he could have been convicted of Inasmuch as voluntary manslaughter. abettor, liable believed defendant to have been as an aider jury they would have convicted him as an aider and abettor to The trial manslaughter. instruction, refused the which defendant contends was court prejudicial error.

Defendant’s claim of error has at least one obvious The flaw. prejudicial failure to a instruction could be give voluntary manslaughter only prejudicial to defendant if there was some that the believed defendant possibility jury evidence, on an aider and abettor There is no and defendant guilty theory. contend, not that he could been man- does have found guilty voluntary But, ante, as a as III.M. of this slaughter principal. explained part opinion, the aider and abettor that defendant jury plainly rejected theory, finding Therefore, used a firearm to kill we Sonja reject Niles. must personally defendant’s claim of error for failure to a man- prejudicial give voluntary instruction. slaughter

O. Consciousness Guilt Multiple Instructions

Defendant and the several “consciousness-of- People requested instructions, 2.03, 2.52,12 CALJIC Nos. 2.04 and which the guilt” namely trial court The trial court also instructed the to CALJIC gave. according (5th vol.), CALJIC former No. term of a fire- 17.19 ed. 1988 bound which defines the “use” manner, it, “display menacing intentionally intentionally arm as a . . . in a fire or to strike it,” being reasonably or hit a human with is susceptible interpretation. not to defendant’s Indeed, liability to construe the instruction to render include vicarious for firearm use would meaningless, something juror the instruction we a do. presume must reasonable would not 2.03, given 12CALJIC jury, provides: you No. as “If find that before this trial [the] wilfully deliberately misleading concerning charge defendant made false or statements tried, upon being you may which he is now consider such statements as a circumstance tending to prove guilt prove guilt. a consciousness of but it is not sufficient itself to weight given significance, any, your to be a such circumstance and its if are matters for determination.” provides: you persuade CALJIC No. 2.04 “If find [attempted that a defendant witness to] trial, testify falsely produced may or to fabricate conduct [tried] evidence to be at the such However, by you be considered tending guilt. as circumstance a consciousness of to show significance, any, guilt weight such conduct is not sufficient if prove itself to and its your are matters for determination.” On objection. appeal, defendant’s and over No. at the People’s request 2.0613 in for given were error four instructions that these now contends defendant reasons. various matter, three of the in requesting defendant joined

As a preliminary therefore waived claims of error are instructions. The consciousness-of-guilt 86, 152 (1992) 2 Cal.4th [5 v. Hardy to them. (People with regard claim on that does defendant’s appeal Nor Cal.Rptr.2d to instructions these objecting not by rendered ineffective assistance counsel instructions that these have concluded reasonably merit. Counsel could have Niles lied s of since guilt, Niles' consciousness would evidence of highlight murder, his home for of and fled to fabricated a his wife’s story the police, in some measure Los This in turn could have after the murder. Angeles There to be the murderer. of Niles showing furthered the defense strategy cannot fore, these instructions in performance requesting defense counsels’ to be said be deficient.

Moreover, in instructions. these giving no error committed None have to the instructions. Defendant has three essentially objections merit.

First, impermissi each instructions was an defendant claims that of these by lessening ble his to due process instruction that violated “pinpoint” right (1988) 45 Cal.3d v. Wright burden of In People prosecution’s proof. 1049], between instruc 1126 755 we distinguished P.2d ” “ of and those tions which the defense’ theory properly ‘pinpoint^ evidence certain conclusions from specified which “improperly impl[y] the former an (Id. 1137.) In case as an of example ....’’ at we gave p. it to a defendant if believed alibi instruction which directs the jury acquit (See CALJIC No. him not to be at the time the crime was committed. present of 4.50.) Cal.App. We thus v. Wilson approved 169], a robbery P. in court reversed the conviction of which the (Wright, an alibi instruction. who on an alibi defense and was refused put hand, as 1137.) “argu On the we disapproved Cal.3d at other supra, p. which Wright, the defendant by mentative” the instruction requested immediately commission of a provides: flight person of after the CALJIC 2.52 “The No. crime, crime, guilt, his but is is in itself to establish or after he is of a not sufficient accused which, light proved all -facts may by you be in the other proved, a fact if considered weight circumstance is deciding guilt to which such question of his or innocence. jury for to entitled is matter determine.” you attempted suppress evidence provides: “If find to 13CALJIC 2.06 that a defendant manner, may attempts be against any concealing as such [by evidence] himself in such However, such guilt. you tending as a consciousness considered circumstance show a significance, any, are weight if prove guilt is in itself to evidence not sufficient and its your matters consideration.” evidence, would have instructed the “consider” jury various such pieces masks, wore ski as the fact that all the robbers assessing defendant’s (Id. 1138.) at guilt. p. case,

In the each of the four instructions made clear to the present jury certain or evasive types behavior a defendant’s could deceptive part indicate consciousness of while also that such guilt, clarifying activity was not of itself sufficient to a defendant’s prove guilt, allowing determine the and such behavior. The cau- weight significance assigned .to defense, nature of the instructions benefits the tionary admonishing jury to evidence that otherwise be circumspection regarding considered might 1183, (See (1992) v. Johnson 3 Cal.4th decisively inculpatory. People 1235 702, 842 P.2d No. is of to 2.06 benefit defense Cal.Rptr.2d [14 1] [CALJIC 495, (1992) not People Kelly and Cal.4th 531-532 improper]; 677, 2.03].) 822 P.2d with to CALJIC No. Cal.Rptr.2d respect 385] [same We therefore conclude that these instructions did not consciousness-of-guilt endorse the or lessen its burden of improperly prosecution’s theory proof. Defendant next contends the trial court should have modified these instructions sua to that defendant’s or sponte clarify jury deceptive behavior, evasive while it indicate consciousness of is not may guilt, proba- committed, tive of the defendant’s state of mind at the time the crime was and therefore cannot be used to determine the of murder for which degree instructions, claims, defendant was to failure so limit these he culpable. violates his federal and state due He further contends that process rights. counsel rendered ineffective assistance in to such an instruc- failing request (1988) tion. We these contentions. As we stated in v. Crandell reject People 227, 423], 46 Cal.3d with to Cal.Rptr. respect CALJIC Nos. 2.03 2.06: “The instructions do not address the defend- ant’s mental state at the time of the offense and do not direct or compel drawing inferences in hereto.” We therefore con- impermissible regard warranted, clude that no instructions were of due limiting no violation or ineffective process assistance of counsel results from the failure to administer or such request instructions. to concede that there

Finally, although was sufficient appears evidence to warrant instructing accordance with CALJIC No. 2.03, he that the evidence was the other argues insufficient with to regard three instructions.

CALJIC No. 2.04 instructs that the infer consciousness jury may guilt “if find that a defendant you to or did a witness to attempted testify persuade or tried to fabricate evidence to be at the trial. . . .” The falsely produced trial, contend, construct an to attempt at that defendant's they as did at he out with friends that was by first police—stating when questioned alibi at at 10 an p.m.—was attempt returned home the murder and night ar- Defendant of this instruction. within meaning evidence fabricating to situations it “is limited is because No. 2.04 inapplicable that CALJIC gues lie in a judicial for him induce a witness defendant attempts where a trial or prosecu- evidence when or tries to fabricate otherwise proceeding instruction, partic- We that the language is pending.” agree tion trial,” a limita- at such suggests “evidence be produced ularly phrase (See, 51 Cal.3d 96-97 [270 e.g., People tion. Stankewitz first of certain fictional P.2d fabrication 23] [defendant’s awaiting while in prison to show his innocence narratives purporting person instruction].) of an alibi The manufacture a CALJIC No. 2.04 trial warrants is more addressed is with a crime appropriately before defendant charged 2.03, deliberately false or “wilfully a defendant’s concerning CALJIC No. being which he is now concerning charge statements misleading tried.” instruction, above,

Nonetheless, any stated defendant requested as so, however, we were not to it Even if that is waived appeal. objection No. 2.04 was harmless that the error in CALJIC administering conclude Pride, Cal.4th at page standard. As we stated People supra, under any error in the same instruction: when considering possible giving “[A]t worst, ... it was no to the instruction and there was evidence support was of defendant’s guilt evidence As superfluous. previously explained, circumstances, minor, is tangential point reversal on such a Under strong. not warranted.” 2.06, CALJIC No. to which

Defendant also contends that the instruction in We That instruc- disagree. he was not warranted the evidence. objected, by be inferred from defendant’s tion states that consciousness of can a guilt manner, himself in such as any by to evidence attempt “suppress against Defendant, evidence.” when originally concealing questioned police, trial used to murder Niles was in his room. The denied that gun Sonja on defendant’s concluding response part court did not err in that such a to himself’ and therefore against an evidence “suppress attempt The fact that of a CALJIC No. instruction was 2.06 furnishing proper. or as “false gun qualifies defendant’s concealment also attempted is no No. 2.03 signifi- statement” under CALJIC deliberately misleading statements, of deceptive The latter concerns a broad class cance. instruction of particu- category while the former concerns a narrower but overlapping false designed There no statement why is reason larly telling deceptions. these both of be the basis giving conceal evidence cannot inculpatory instructions.

Finally, argues that there was no evidence a CALJIC supporting No. 2.52 instruction. That instruction states that the jury may consider a defendant’s “after the flight commission of the crime or after he is accused of a crime” as one factor in defendant’s determining Defendant culpability. contends that there was no evidence of the mere flight—that fact that he Corona, drove back to his home with Niles from his sole source of transpor- tation, shows, however, was not evidence of The evidence flight. only not Niles, but, that defendant drove back with according Clark’s eyewitness that he ran testimony, from the scene of the murder down the street car. The was entitled to jury infer reasonably defendant’s from such guilt We therefore flight. conclude the court did not err CALJIC No. furnishing 2.52.14

P. Adequacy Reasonable Doubt Instruction Defendant contends that it was prejudicial constitutional error under the Fifth, Sixth, and Fourteenth Amendments of the federal Constitution and their California to instruct the equivalents accordance with CALJIC 2.90, No. which explains of reasonable doubt. He meaning argues evidence,” the use conviction,” of such terms as “moral “abiding “moral were certainty” ambiguous, rendered the instruction incomprehensible We have average juror. (see, the claim repeatedly rejected People v. e.g., Hawkins, supra, 954-955) 10 Cal.4th at and decline to pp. reconsider it here.

Q. Use Special Findings

Defendant’s was jury asked to make three on the special findings three acts which the asserted were in furtherance prosecution of the murder with which he was conspiracy The found charged. that defendant jury had committed all three acts. The also jury rendered a verdict general on the count, conspiracy defendant finding Defendant now guilty. contends that the use of the 1152, form special findings violates sections 1150 and which that provide a court superior must render a jury general verdict when except it “in is doubt as to the effect of legal 1150.) the facts In (§ such proved.” cases, verdict, the jury may render a special the facts “find[ing] only, leaving the 1152.) to the judgment (§ court.” Defendant claims that the special verdict, converted the findings verdict into a in violation conspiracy special of these statutes. He also contends that the use of the verdict violated special Sixth, Fifth, his to due right and trial under the process by jury and Fourteenth Amendments of the United States Constitution and their Califor nia equivalents. 14Defendant also raises various state and Federal constitutional claims. We conclude that claims, they these based as are on supposed prejudicial giving the court’s error in the four above,

instructions discussed are without merit.

1227 constituted an the special findings is that jury’s mistaken Defendant verdict, of did not cede ultimate judgment jury special improper court, Nor did the rendered a verdict. general trial but his culpability before a reaching findings to make special require jury trial court verdict, (1972) v. Perry troublesome People we found a procedure general 161, (See 756, People also P.2d Cal.Rptr. 129]. 7 Cal.3d 783-784 [103 508, Cal.Rptr. 47 Cal.3d v. Farmer Here, right a of defendant’s findings safeguard use of was proper special charge on a conspiracy ensuring jury deliberating that of due process, that are the basis of his overt act or acts on the same unanimously agree (1985) 41 Cal.3d (See Davenport culpability. and 861].)15 no error under sections 1150 P.2d We find of such with findings conjunction conclude that use

1152. We further federal or state constitutional did not violate defendant’s verdict general or fair trial. to due rights process

IV. Special Circumstances Coverage Insurance A. Admission Evidence Niles’s of defendant’s mur circumstance that special found true out for financial gain.” der was “intentional and carried Niles Sonja 190.2, Niles’s (a)(1).) of defendant’s and subd. As (§ part proof motive, and documents introduced into evidence testimony the prosecution wife’s insurance that was the of his policy Niles showing beneficiary $100,000 on the grounds was to receive her death. Niles eligible objected foundation, and that was lacked hearsay appropriate this evidence evi in the Defendant now contends that such defendant joined objection. motive, of such evidence dence was irrelevant admission prove rule. it violated the best evidence Specifically, unlawful hearsay, O’Connell, an employee that the testimony Nancy contends CCPOA, on a valid business record and therefore not was not based Code, (Evid. rule to the hearsay within the business record exception 1271), did a of the victim’s insurance policy, because she not possess copy § files, in the CCPOA but a of her for insurance merely copy application further insurance. Defendant which that the victim proved only applied con that of the insurance company contends the verification to payments exception in the not within the business records tained victim’s file did fall unanimity on jury recognizing findings may be used to secure special 15While position on conspiracy, we take no of overt acts in connection with a defendant’s commission conspiracy trial. is entitled to a question unanimity whether a defendant instruction People Cal.Rptr.2d (1993) with Cal.App.4th 164] 17 1367 (Compare v. Godinez 645].) People (1987) Cal.Rptr. Cal.App.3d 611-613 [233 Ramirez either, rule because O’Connell lacked any personal knowledge to the hearsay (1978) (See Shirley of the transaction. Cal.App.3d irrelevant, we with defendant that such evidence was Although disagree motive, we that it was at most to recognize tangential proving defendant’s reason, that of codefendant Niles. For this and was more pertinent prove evidence, error, of the insurance even if in was not the admission policy to defendant. The evidence that defendant had committed the prejudicial was based on other evidence: testified murder for financial gain chiefly Piper $5,000 Niles, defendant for the murder of made Sonja to Niles’s offer introduced into evidence to Niles’s offer to attesting statements extrajudicial Moreover, wife’s murder. defendant and Niles were Sonja him for his pay evidence that he murdered her for reason any and there was no strangers, Therefore, if evidence of Niles’s insurance other than financial even gain. admis- we do not reach—its admitted—a coverage improperly question determination against sion was harmless to the circumstance jury’s special defendant under standard any prejudice.16 B. The Financial Gain Instruction with a modified version was instructed accordance jury “To find that the special

CALJIC No. 8.81.1. That instruction provided: circumstance, is instructions as murder for financial gain, referred to in these true, [<]Q(1) That the murder was each of the facts must be following proved: intentional; HQ (3) That That it was carried out for financial gain; [][] the desired financial defendant believe the death of the victim will result in contends that it was error not to instruct jury Defendant now gain.” it it must find the circum if found a mixed motive for the killing special could have found stance untrue. Defendant contends that because aider and abettor theory, of first murder on an guilty degree his wife which since Niles have had a mixed motivation for may murdering abettor, defendant should would be to defendant as an aider and imputed Defendant contends that have received an instruction on mixed motivation. due rights the failure furnish such an instruction violated his process Fifth, the United States under the and Fourteenth Amendments of Eighth Constitution and their California equivalents. matter, an instruction

As a defendant failed preliminary request trial, (People issue on appeal. mixed motivation at and therefore waives the 1 error in the admission contends there was federal or state constitutional 6Defendant also trial, they waived at and are coverage insurance Defendant failed to raise the claims evidence. Benson, 786-787, 7.) supra, find on the appeal. (People pp. fn. We further 52 Cal.3d at v. appears. merits that error no constitutional

1229 to Bell, have responsibility request 49 Cal.3d at supra, p. v. [defendants Further, we have re find they incomplete].) of instructions modification financial-gain special- of the the unadorned language claim “that the jected convey it failed to to jury flawed because instruction was circumstance cause’ of be ‘direct’ or ‘motivating financial gain any requirement 599, (1992) Cal.Rptr.2d Cal.4th (People Noguera [15 murder.” that the must 400, reject jury we Similarly, proposition 842 P.2d for financial to be carried out exclusively the murder had instructed that be 190.2, (a)(1). subdivision under section order for it to qualify gain circum of the special reflects the mandate accurately No. 8.81.1 CALJIC murder pur who commits intentionally that anyone stances provision or life death be for the penalty of financial should eligible gain poses com instructional error was No without possibility parole. imprisonment mitted.

V. Penalty Phase A. Victim Testimony Rape of Defendant’s indi prosecution

At the commencement of penalty phase Shelley intended to call was witnesses it cated that one the penalty phase P., from River had after Oregon having escaped whom defendant raped murder charge. trial on present side where he County jail, awaiting incident so that to P.’s Defendant offered to account stipulate Shelley defendant’s stipulation would not refused testify. prosecution she contends it. Defendant now the court declined to State to accept compel to and a rights process trial him of his due deprived that the court erred Fifth, Sixth, determination and Four Eighth, reliable under the sentencing and their equivalents teenth Amendment of the United States Constitution under the California Constitution. (1988) 46 Cal.3d Karis

We an almost identical claim in rejected People the defendant In that case 638-641 758 P.2d Cal.Rptr. 1189]. with force and rape that he had committed a had offered to stipulate “ ”; violence; to statements to the ‘factual basis surrounding rape’ 638.) In at (Id. to defense. p. to officers the witnesses given police 143, 152 Cal.3d v. Hall the case from distinguishing 826], offered stipulate in which the defendant he was with which as of the offense a status an ex-felon—an element convic of prior evidence introducing stated: “The charged—we purpose not case is at capital tions as factors the penalty phase aggravating A offense. an element of criminal ex-felon status comparable proving to a leading factual findings is not making phase simply penalty In determination of guilt. weighing be- appropriate penalty, deciding tween death and life without of imprisonment possibility parole, jury function, a normative performs the values of the to the applying community decision after the circumstances of the offense and character considering of the defendant. record The evidence which the [Citations.] [*][] to introduce was not the fact of defendant’s sought only convictions or prior offenses, 190.3, the nature of the evidence that come under section may (c), factor but also the fact that these offenses were violent assaultive crimes. 190.3, (b) In of factor section the electorate intended enacting to allow acts, admission of evidence of violent criminal not the fact of simply prior convictions. to the felony Reading the vic- penalty phase jury [Citations.] tims’ and witnesses’ of a crime is not descriptions an substitute for adequate which the testimony during elicit details he believes to prosecutor may relevant (Karis, be to the particularly decision.” 46 Cal.3d at penalty supra, 639-640.) pp. case, in the defendant’s were

Similarly present not an ade- stipulations substitute for the victim’s and the trial quate court did not abuse testimony, its discretion in that the latter was concluding relevant to task of jury’s of defendant’s assessing degree at the culpability penalty phase. Defendant that the be requested informed that he had offered to jury trial, P. stipulate rape Defendant at and now Shelley argued contends, character, that the offer of reflected on his stipulation positively inasmuch as it was intended to relieve his victim of the burden of rape to relive the having crime on the witness stand. trial court refused to so inform the and defendant now claims error.

A defendant has the before the sentencer evidence “right relevant place mitigation (Skipper v. South Carolina 476 U.S. punishment.” 6,1, 1669].) L.Ed.2d 106 S.Ct. This includes of a ‘““any aspect defendant’s character or record and of the circumstances of the offense any ’ ” that the defendant (Id. as a basis for a sentence less than proffers death.” at L.Ed.2d at p. In the the trial well p. case court was present within its discretion that defendant’s offer of did concluding stipulation not reflect on his good character but was more likely self-serving attempt evidence, to lessen the impact that therefore evidence of rapé defendant’s was not “relevant evidence in proffered stipulation mitigation (Ibid.) punishment”

B. P.’s Videotaping Shelley Testimony

On the P. day Shelley testify, prosecution requested that her be testimony It was a student videotaped. explained college she

1231 California, Southern who, local to the other witnesses unlike in Oregon Defendant objected, in the event of a retrial. to locate difficult might prove be the inevitably alone would of this witness the videotaping that arguing her would unduly highlight and by of notice speculation subject Defendant now con- the videotaping. The trial court permitted testimony. Court, rule in Rules of 980 the California the trial court violated tends that the videotaping. permitting or electronic media coverage” request “[f]ilm

Rule 980 provides to be time before the portion proceeding filed “a reasonable be Court, 980(b)(1).) Defendant contends rule (Cal. Rules of covered.” But the notice of the videotaping. failed reasonable to provide prosecution which is to media coverage, of rule 980 pertain above quoted portions or of court broadcasting proceedings in rule to mean “recording defined 980 radio, television, or recording equipment.” the media using photographic, by of media not for the purpose case the was done videotaping In the present evidence, subdi- falls within and therefore but for broadcasting, preserving (d) recording, of rule which other “Any photographing, vision 980 provides: author- unless or of court is prohibited specifically broadcasting proceedings authorized by court.” In case the videotaping ized by present court and therefore did not violate rule 980.

Furthermore, burden of demonstrating specific prejudice defendant has the (Chandler v. courtroom. from the of a camera in the resulting presence 755-756, 740, 560, 101 S.Ct. (1981) 581-582 Florida U.S. [66L.Ed.2d 802]; (1984) 1207-1208 v. People Spring Cal.App.3d 849].) no such here.17 Defendant has demonstrated Cal.Rptr. prejudice C. Evidence Nonviolent Escape trial, of his admission of evidence

At to the objected He that the escape from a asserted jail Oregon January 1988. escape within therefore did not fit involved violence to not to property, persons, 190.3, (b). factor set forth in section of “force or violence” as meaning (b) admission to the that factor contrary permits prosecutor argued favor. in the violent acts The trial court ruled People’s against property. evidence to such Defendant now contends that the court erred permitting which the defendant be admitted because it was not “criminal activity or use of or violence or express involved the use or force attempted of the federal provisions based on several 17Defendant raises claims of constitutional error objection at trial any constitutional and California Constitutions. He did not make courtroom, appeal. any is therefore waived presence of a camera in the claim of error Benson, event, 786-787, People (See 7.) supra, any In he demonstrates pp. 52 Cal.3d at fn. no constitutional error. 190.3, (b); see also force factor (§ threat to use or violence.”

implied Cal.3d 776-777 Boyd erred in without that the trial court Assuming, deciding, admitting (39) State conclude that such error was not Oregon escape, prejudicial. we law the will be considered during prejudicial error occurring penalty phase “ a when is a such an error affected verdict.” there ‘reasonable possibility’ 604, 758 P.2d (1988) v. 46 Cal.3d (People Cal.Rptr. Brown or 1135].) “In whether it is that a error ‘reasonably possible’ given deciding verdict, ‘exclude of combination of errors affected a arbitrariness, we will the possibility “nullification,” the A defendant has like. whimsy, caprice, no luck .... The assessment entitlement to the of lawless decisionmaker the the is of should that decisionmaker proceed assumption prejudice that the standards reasonably, conscientiously, impartially applying or the We therefore that ‘mere’ govern emphasize decision.’ [Citation.] not ‘technical’ an error have affected a verdict will that possibility might Instead, not amounting reversal. when faced with error trigger penalty phase violation, we to a we will affirm the unless federal constitutional judgment (i.e., realistic) that the would conclude there is a reasonable possibility the or errors not occurred.” have rendered a different verdict had error Brown, 448.) 46 Cal.3d at (People supra, p.

We that evidence note “erroneous admission generally escape in (People the determination may weigh heavily jury’s penalty.” 52 Cal.3d Gallego in in

Defendant claims such occurred this case. He prejudice points partic the inadmis highlighted ular to the made the arguments prosecution Most the closing pros sible evidence escape during argument. prominently, I his best argument ecutor stated at one “The point during closing argument: before, briefly can and I have touched on it give believe defense you, That’s best society argument. client will die in will be safe.’ ‘My prison, this, look it will be your is ladies and for My gentlemen, past, response future. Do not do out of do not do out anything spite, anything vengeance, it it earned it. No one seeks do because is do it because Noel Jackson right, I for in I ask I ask for ask this court. do not vengeance vengeance. justice. once, but twice.” . Jackson not of the facts. . . Noel justice light escaped stated, also before this: “Everything shortly [defendant] prosecutor his but a violent thumbing does from date of ... is nothing murder] [the when I nose . ‘I’ll sex when I want. I’ll steal at the . . have community. here, I I’ll I want. What’s the want. And if don’t like it when phase escape it sure does.” itself.’ In the case Noel Jackson ‘History repeats [sic]! remarks demonstrate prejudi- Defendant these argues prosecutorial used; it allowed cial manner which inadmissible evidence escape risk, thereby implanting him as a significant escape the prosecutor depict was the means only notion that the death penalty minds of jurors in the from his future dangerousness. the public of protecting abstract, in the it is be defendant’s argument may plausible Although inadmissible of this case. When the under facts ultimately unpersuasive whole, it cannot be deemed of the record as a is considered light evidence reasons. to be for several prejudicial,

First, evidence of one from escape, there was admissible already in which defendant actively participated through Riverside County jail, The evidence of the second nonviolent restraint and of a robbery jail guard. It is highly unlikely in this case is cumulative. merely escape because, risk merely would have as a significantly greater escape appeared he took of what was advantage evidently in addition to the Riverside escape, and in a window Oregon by breaking the low of a rural security jail words, Oregon in other that the reasonably It is not absconding. possible, to estimation of defend- would have added the jurors’ escape appreciably ant’s future dangerousness.

Second, focus of the the evidence was not the escape principal prosecu- Rather, heinous nature of the murder argument. tor’s he the argued primarily defendant, to at point- itself—the deliberate of a woman unknown killing the financial The blank with a for of range shotgun, promise gain. prosecutor also focused on the of P. while defendant was at large brutal rape Shelley Thus, the murder after the confronted an the Riverside charge escape. jury defendant, crime, valid evidence that unusually aggravated capital plus crime, used the of that thereafter having force to flee penal consequences mitigat- returned undeterred to further violent criminal conduct. Nor was the charac- from members to defendant’s good ing evidence—testimony family record, ter On this there and troubled remarkable. childhood—particularly second, seems no reasonable that defendant’s nonviolent escape possibility assess- from a small-town so influenced the jury’s Oregon jail substantially so ment of his character or his to the as the danger community tip penalty balance.

Third, had was whatever additional the have Oregon escape may prejudice As counsel and the trial court. countered the remarks of both defense said argument: defense counsel stated during closing prosecutor] “[The Mr. those bars slam behind about itself. Once something history repeating Jackson, The he is to remain. ladies and that is where gentlemen, going wires, has towers. And in California has barbed it gun prison system of life without will instruct that if a sentence judge you you impose that that will be assume carried penalty that must parole, you possibility And free.” indeed go out. Noel Jackson is not going whatever you “it assume that make duty instructed that is your penalty it and that will be determination is the and proper appropriate penalty in decide that life without possibility carried out.... If you prison that that will be carried out.” you is the must assume parole proper penalty, case to every comments and instructions not be sufficient may While such evidence, are effect of inadmissible escape they counter the prejudicial one, which, above, as discussed sufficient in cases such as present is at of a and cumulative of the evidence most minor detrimental impact nature. no that admis-

We therefore conclude there was reasonable possibility error, or not affected the evidence whether sion of the Oregon escape verdict. Rape Escape

D. Admission Convictions of Defendant’s trial, case at During penalty phase prosecution’s Ashland, Police Oregon Department Lieutenant Melvin Clements of the first had been with charged rape degree, testified defendant in the He also testified degree, burglary. first escape kidnapping charges escape. prose had pleaded guilty rape sub his documenting charges cution also introduced court records now contends the trial and convictions. Defendant guilty pleas sequent the admission of this evi court error in committed prejudicial permitting 190.3, factor his under section dence to violent criminal activity prove prior (b). immediately we concluded above have Oregon

With regard escape, evidence, error, was of even not prejudicial that admission such if of of fact case. the introduction of evidence Certainly defendant’s does not alter our prejudice for the Oregon defendant’s conviction escape analysis. errpr no of of conviction for rape,

As for the introduction evidence this has concluded: recently prose As a of court “[T]he occurred. majority use or threat of a involving cution conviction crime rely upon prior may involving criminal activity of violence to establish the of presence force or 190.3, of factor or section use or threat of force violence purposes 296, 313, 914 (b).” (1996) v. 13 Cal.4th Cal.Rptr.2d 369 (People Ray [52 J.), in (conc. original.) P.2d of C. italics George, opn. 846] of of of crimes charges we admission Finally, agree prosecution’s (1991) 52 Kaurish (People convicted was error. v. which defendant was not 788, 278].) 802 P.2d In addition to the Cal.3d Cal.Rptr. with in charged of defendant was charges rape escape, kidnapping P., In with the and with of the Shelley burglary. light connection rape as to the circumstances of the there is no reasonable testimony rape, victim’s with that evidence of the fact of being charged kidnapping possibility P. would have been Nor is there reasonable Shelley prejudicial. possibility fact of with an could have that the being charged unspecified burglary defendant. prejudiced

E. Evidence Gun Possession Defendant’s in

When defendant was apprehended Oregon January P., searched, after the his motel room was and a loaded rape Shelley .38-caliber revolver was discovered in his At the suitcase. penalty phase, introduced from a detective prosecution testimony police regarding discovery loaded and introduced the and bullets themselves gun, gun into evidence. Defendant now contends evidence that this was inadmissible 190.3, (b). under section factor threshold,

At the defendant’s claim is barred because he did not make a below the timely objection admission of the evidence in (People question. Harris, 1089.) 47 Cal.3d at supra, p. above, Defendant’s claim also fails on the merits. As section explained 190.3, (b) factor to consider the or absence of permits presence defendant’s violent criminal activity its determination. making penalty Defendant, ex-felon, as an committed a a concealáble felony by possessing 12021). not, firearm (§ circumstance, Such firearm is possession an every act committed with (See, actual or force or violence. implied e.g., People Dyer 45 Cal.3d

assert, nonetheless, that given the factual circumstances the surrounding i.e., possession, the fact that defendant was an from escaped prisoner fleeing a murder at the time he was charge discovered with a can gun, possession said, least, be at the to have been very undertaken with an threat of implied violence, force or and therefore admissible.

The are correct. People “It is settled that a defendant’s knowing of possession a in is admissible .... potentially dangerous weapon custody Such conduct is unlawful and involves an threat of force or violence implied even where there is no evidence defendant used or it in a displayed provoc ative or (1992) 4 threatening manner.” v. Cal.4th (People Tuilaepa 589 1142].) Cal.Rptr.2d a defendant who arms Similarly, himself after from can be to be in having escaped custody presumed his flight legitimate of to assist continued rather than gun

possession lawful Possession under these circum- or some other purpose. self-defense threat of violence” to “substantial evidence an implied amounts stances was, (4 587.) The defendant section 190.3. Cal.4th at p. admissible under course, for an innocent to the that the secured gun free to argue jury error such evidence.18 admitting But the court committed no purpose. Vehicle Code Section 10851 Evidence F. Admission of Defendant’s Conviction of taking or offense guilty

Defendant pleaded Code, (Veh. of the owner. without consent an automobile driving a makes two claims of 10851.) The conviction was for Defendant felony. § error on appeal.

First, Vehicle Code defendant contends that his conviction under prior court not have been admitted because municipal section should make an that had defendant’s failed to independent accepted guilty plea 1192.5; also (§ to the factual basis of the see as inquiry plea. 1571, 1576 “Sec (1992) 6 Cal.Rptr.2d Wilkerson Cal.App.4th before court to determine inquiry, tion a trial by independent 1192.5 requires offense, a whether felony a or nolo contendere plea guilty accepting is to behind the for the inquiry there exists factual basis plea. purpose ‘ defendant, realizes he although situation where against “protect done, that his acts recognize in law to sufficiently what he has is not skilled ”’ is charged.” (People with which he do not constitute the offense Wilkerson, 1576.) con at Defendant here supra, Cal.App.4th p. indepen to make this by failing tends that court violated section 1192.5 as from defense counsel dent and instead bald accepted stipulation inquiry, of defendant’s plea. factual basis of his to the admission made an unspecified objection Although 190.3,” to its admission object “under section he failed conviction prior on those His claim of error of the guilty plea. grounds inadequacy Moreover, if error in even there was is therefore waived on appeal. grounds we question invalidate the plea—a court that would municipal procedure have that the would do not decide—there is no reasonable possibility aof conviction its determination the admission been swayed penalty 1 gun evidence possession of the contends that the erroneous admission 8Defendant also to a trial and a reliable determination rights his and constitutional fair violated federal state trial, they are therefore waived to raise these claims at sentence. Defendant failed Benson, 786-787, Moreover, 7.) supra, because (See fn. appeal. pp. at Cal.3d error, rejected, they are without we have defendant’s contentions based on state law which are merit. theft, of defendant’s given gravity for a nonviolent automobile capital criminal crime and his other violent activity.

Second, defendant contends that the committed misconduct prosecutor theft.” The record his conviction as one for shows mischaracterizing “grand did, fact, twice mischaracterize defendant’s of- that the so prosecutor

fense—the crime for which he was before to a originally charged submitting Defendant did not object, guilty plea—including during closing argument. Harris, and his is therefore waived on supra, claim appeal. (People Furthermore, 1089.) Cal.3d at there was no reasonable that the p. possibility minor error would have the verdict. affected prosecution’s The G. Examination Mother of Defendant’s above, mother, Hill,

As recounted defendant’s Bonnie testified that he was a She also disbelief that “thoughtful helpful” person. expressed he had committed murder. over On cross-examination prosecution, defendant’s “Do asked: know son killed?” The objection, you why your court ruled that she could answer that if she had any question personal from her contacts with him. She that she did not knowledge responded believe that he committed had the crime. Defendant now contends that it, and the trial court erred in because her question improper allowing as to whether or defendant committed the crime was not opinion why relevant to any factors that could be aggravating mitigating considered a penalty determination under section 190.3.

We disagree. cross-examination bore on the prosecution’s directly character, issue of defendant’s it because tended to show Hill’s estima- tion his character relied on a belief in his innocence or diminished error, for the murder. Defendant’s claim of whether framed in culpability terms, state law or federal constitutional therefore without merit. is H. to Admit Niles’s Statements at the Extrajudicial Penalty Refusal Phase III.K., ante,

As discussed above in defendant moved unsuc part at the to introduce evidence of codefendant Niles’s cessfully guilt phase inconsistent prior statements his arrest. He unsuc police following renewed cessfully his at the He now claims that request penalty phase. trial court erred in to admit such His is based statements. refusing argument on the that a defendant has a all principle capital right present (See evidence relevant to at the v. South mitigation penalty Skipper phase. Carolina, 476 U.S. at L.Ed.2d He claims that supra, at p. p. the of his and would have raised once issue again statements

extrajudicial murder, have caused for the and could possibly Niles’s relative culpability reasons disagree. he had the murderer. We For that been doubt jurors above, not tend statements did to shift culpa- Niles’s out-of-court explained Rather, were the statements defendant and toward Niles. from bility away defend- that both Niles and theory consistent with perfectly prosecution’s as and and ant were in the murder—Niles the instigator planner involved its trial therefore did not abuse defendant as direct court perpetrator. as not relevant to the discretion in admission of these statements refusing mitigation punishment. defendant’s

I. Prosecutorial Misconduct which misconduct prosecutorial Defendant claims several instances his death We find no such misconduct. reversal of sentence. require miscon committed the Defendant contends that prosecution L.Ed.2d v. 472 U.S. 320 duct identified in Caldwell Mississippi [86 Caldwell). it was (hereafter Caldwell held that 105 S.Ct. 2633] on determination to rest a death sentence “constitutionally impermissible who has led to believe that responsibility made sentencer been by elsewhere.” of the defendant’s death rests determining the appropriateness error committed (Id. L.Ed.2d at Caldwell be p. may at 328-329 pp. not did and again again they when assures “the prosecutor jurors again them have to ‘shoulder the burden of personal [tells] responsibility,’ is right,’ from what and deciding ‘just the law them again ‘protects’ Milner law.” v. even them to ‘hide’ behind the (People encourage[s] 669].) The fact that (1988) 45 Cal.3d did not make a contemporaneous objection prosecution’s Caldwell error on appeal. does not bar him from a claim of raising remarks Bittaker, 1104.) v. at Cal.3d (People supra, p. occurred, not reach

In whether error do Caldwell has determining “[w]e our conclusion based on statement uttered any prosecutor. single Rather, of both arguments we of the court and consider instructions Milner, at 45 Cal.3d supra, p. and defense counsel.” (People prosecutor 257.) within the overall We also must consider the statements prosecution’s Kaurish, at 52 Cal.3d (See supra, context of its closing argument. 715.) p. during the prosecutor cites statements made by

Defendant several his claim of misconduct. The closing argument prosecutor support 13, 1984, ladies stated toward the end of the “December argument:

1239 know You what Noel Jackson gentlemen, something happened. happened? condemned own himself to death . . . .” “In his hand Also by making your decision, do consideration and must so after consideration of the facts you without for the regard an law No error application consequences.” The was committed. the clos- throughout prosecutor repeatedly emphasized to that the decision was left the discretion the argument of ing jury’s individual and their sense of the the jurors within penalty, appropriate one the this bounds law. At told the that prescribed by point prosecutor jury stated, “one of the most difficult choices of He “The your life.” also case, time ‘must’ the law that in in this ladies and is only appears gentlemen, consider must and then the which you everything give weight you everything believe, consideration, sound your individual and collective it’s ... whole, worth.” as a Because there was no the reasonable likelihood that misled the to that for prosecution’s argument believe the jury responsibility determining elsewhere, appropriateness defendant’s sentence we lay find no committed. that Caldwell error was

Defendant also claims that the made a prosecutor number other mis- statements that amounted to misconduct. He failed to of these object any statements or any admonitions trial court. Nor does it request appear harm from any these statements was incurable objection through Clair, admonition. Therefore these claims are waived on appeal. (People at supra, 685.) Cal.4th p.

These claims of prosecutorial misconduct also fail on the merits. Defend ant contends the prosecutor committed misconduct by informing jury no that it bore the burden of longer defendant’s proving guilt beyond reasonable doubt and that it had no burden of in the proof penalty Not phase. so. As we explained People (1990) Hayes Cal.3d 643 [276 376], Cal.Rptr. the determination of is penalty “[b]ecause essentially [citations], moral and normative and therefore different in kind from determination of there is no or guilt, burden burden of proof It is of persuasion.” course true that the still prosecutor bears burden of with proof regard (See other violent criminal v. Morales activity. 64,770 48 Cal.3d P.2d The prosecutor burden, acknowledged Thus, and the court properly instructed thereon. context, taken in there no is reasonable likelihood that the prosecutor’s statements misled the jury.

Defendant contends that the misled prosecutor with jury statements the effect that defendant’s conviction for murder with circumstances special was by sufficient to merit the death no penalty. prosecutor made itself such misstatements. He at merely focused points nature egregious 190.3, under section consideration legitimate

the murder—a defendant’s discussed (a). argument, prosecutor his Elsewhere factor Furthermore, dis- convictions. as and activity felony criminal prior prior above, discretion in the making the emphasized jury’s he continually cussed a would juror was no reasonable likelihood that determination. There penalty that the death was argument penalty from the closing conclude prosecutor’s been found. circumstances had after special automatic the mis- assertion that prosecutor is there to defendant’s anything Nor to a reasonable he only beyond stated the law that had by claiming prove state; The did “Before you doubt the but not the rape. prosecutor jail escapes that have must show the People consider in aggravation, you anything [sic] that doubt. That crime only crime a reasonable proved beyond applies That the is no burden with to respect penalty.” There involving escape. to that the jury was no doubt intended the by prosecutor convey statement to a reasonable doubt with regard had find guilt prior only beyond to the ultimate determina- penalty criminal rather than with activity respect of from of crime the list tion. The inadvertent omission the prosecutor’s rape beyond to find defendant a of crimes of which the was jury required guilty he the jury was cured thereafter when informed shortly reasonable doubt in a doubt it would have to find reasonable guilt beyond that unequivocally that the the There was no reasonable likelihood jury connection with rape. could have been mislead the statements. prosecutor’s in several misstated the evidence

Defendant contends that the prosecutor he him more than he was. In particular, places, making appear culpable it that defendant’s argue claims that was misconduct for the prosecutor was and that based they sister and uncle were convinced that he not guilty in that The shows that their assessments of his character fact. record part mother, uncle, to disbelieve unlike his did not defendant’s sister purport his and shock at his crimes. There guilt, although they surprise expressed however, have that the would been jurors was no reasonable possibility, was, most, what at a minor mischaracterization of testimony.19 swayed by the the referred to improperly Defendant claims that prosecutor of dire death statements individual voir jurors penalty, during regarding as as to own the death These well his about feelings penalty. personal misstatements, including a prosecutor 19Defendant contends other statement also made did, he Oregon jail. escaped for his an know he escape that he armed himself from “You what got gun escaped.” could have raped impossible he he and he It in of prosecutor’s urges, light in the interpreted statement manner which discovery rape, prosecutor’s detailed discussion elsewhere of events gun, Oregon escape. and the Defendant’s other claims misstate subsequent defendant’s similarly ment of evidence are de minimis and are without merit. remarks, context, a brief or of various summary survey taken in were merely towards death The concluded that penalty. prosecutor common attitudes individually law does not us set our stating that “the allow summary by for own We do not here follow ‘an an .... eye’ judge standards. eye consider to tell what can determination you appropriate is going you case . . . .” The never used his own views or this prosecutor penalty those of the voir dire to should suggest jurors expressed jurors determination other than that standard employ penalty prescribed by law.

Defendant contends that the that there was no prosecutor’s arguments evidence in of mitigation guilt defendant’s was misconduct. The prosecutor He committed no error. did not to that attempt jurors were argue prohibited considering from for defendant in their determi- sympathy making penalty (See 858, (1983) nation. v. 34 Cal.3d Easley 878-879 Cal.Rptr. [196 309, Rather, asserted, effect, 813].) 671 P.2d he that the aggravating evidence in this case As evidence. he greatly outweighed mitigating stated: “When think of for Jackson about Noel think you sympathy Sonja Niles as she there. When think of Noel lay you compassion pity Jackson, her, think her of P. and not to hurt not to her. And Shelley plea rape that, measure ladies and be gentlemen, what called if against may mitigation, Here, there is any.” was prosecutor implicitly that the arguing testimony defense by witnesses to elicit from the “lacked the designed sympathy jury it, mitigating force the defendant claimed for of we have type argument 2 approved.” 917.) (People Raley, supra, Cal.4th at p.

Defendant claims that the committed prosecutor by misconduct reneging on an not to agreement emphasize Sonja Niles’s as correctional occupation officer, which he had made at the time the court to trial decided admit into evidence of the victim’s photographs showed her that corpse—photographs clothed her correctional officer’s uniform taken after the shortly murder. Rather, There was no such agreement. the record reveals that the prosecutor stated it that would be merely not defendant’s that crime involved arguing 190.2, the special circumstance (a)(7): set forth in section subdivision “[t]he victim was a officer . . peace . in the course of the engaged of performance his or her duties . . . .” The nor never did the trial court prosecutor agreed endorse to any refrain from to agreement Niles’s referring Sonja occupation as a correctional officer His during references penalty during phase. closing argument were as a means of circum- emphasizing egregious stances of defendant’s crime and his underscoring dangerousness. future No misconduct occurred.

Defendant contends that the committed misconduct prosecutor by present- ing arguments that do aggravation not relate to any statutory factors, his future dangerousness. about specifically arguments

aggravating defendant’s held that argument concerning We have prosecutorial is in the of a trial not misconduct. dangerousness penalty phase capital future 1, 838 (1992) Cal.4th v. Danielson 720-721 (People Cal.Rptr.2d P.2d claims that the injected religion

Defendant prosecutor improperly or be references religious imagery may into proceedings. Although of a case to during penalty phase capital misused prosecutor than that law prescribed by are standards of other justice there suggest (see follow Cal.3d People Poggi which the should jury case. 1082]), it not thus misused in this was Cain and Abel. The made reference to story prosecutor The prosecutor from the a standard of derived not urge punishment did apply defendant, Bible, had “sent away” but made the who been merely point Cain,” relied not be from and could and had “the mark had escaped prison the familiar passage prosecutor’s quotation remain there. not is what is and unto God what God’s” “render unto Caesar Caesar’s of but rather quite Biblical or criteria using religious justice, an for argument law to judge to use secular standards mandated by the opposite—an appeal defendant. sum, commit case any did not misconduct and

In we find the prosecutor no caused prejudice.20

J. Instructional Error the erred in several instructions delivering

Defendant claims trial court error defendant. No and in to deliver other instructions refusing requested was committed.

1. 8.88 CAUIC No. No. there are flaws in CALJIC

Defendant asserts that numerous instruction, is to the (5th vol.). jury, 8.88 ed. bound as delivered 1988 his constitu prosecutorial 20Defendant also claims that misconduct violated the asserted Fifth, rights jury capital sentence under the process, impartial tional of due an and reliable Sixth, their Eighth, States Constitution and Fourteenth Amendments United they waived equivalents. objections Defendant raise these below and are California failed to Benson, Moreover, 786-787, 7.) (See People supra, at fn. because appeal. pp. 52 Cal.3d i.e., error, prosecutorial federal claims are law these and state constitutional based on state misconduct, to be stated above. we find them without substance the reasons

1243 in the He that term set forth claims the “so substantial” in the margin.21 last of instruction the is under unconstitutionally vague paragraph Eighth such Amendment. We have As we rejected arguments. explained in People 1148, (1992) 146], 2 Cal.4th v. McPeters Cal.Rptr.2d P.2d these words of “plainly convey decision and importance jury’s that a a Far degree certainty is for death verdict. emphasize high required from defendant’s cause at the undermining penalty assisted phase, they task, counsel defense emphasizing jury’s which included gravity as the choice death Defendant also word contends that the penalty.” “warrants” is too believing broad and misleads the into permissive jury that it have may death even when not the We impose penalty. “appropriate” Breaux, (See 316.) that Cal.4th rejected People v. at argument. supra, p. Defendant contends that CALJIC No. 8.88 is flawed because it does not inform it that is life jury required return verdict of imprisonment without it if finds the do not possibility parole aggravating factors It is we outweigh mitigating factors. not. As stated in v. Duncan 53 Cal.3d “The instruc 131]: tion stated that the clearly death could be if penalty imposed only jury found circumstances aggravating was outweighed mitigating. There no need to advise the additionally (i.e., the converse that if mitigating circumstances outweighed then life without aggravating, parole appropriate penalty).”

Defendant also contends that CALJIC No. 8.88 was flawed because it that a death implied sentence was if the factors were compelled aggravating found to outweigh the ones. mitigating But the instruction makes clear the was “free jury to whatever assign moral or value” sympathetic it deemed to each of the appropriate various in factors enumerated the sentencing instruction. The instruction as a whole that the conveyed is weighing process 8.88, case, 21CALJIC No. as your duty delivered in this “It is states: now to determine which the penalties, of two death or the prison confinement state for life without the possibility parole, of imposed shall be on having the defendant. After heard all the HQ counsel, evidence having consider, and after heard you and considered the of arguments shall guided take into account by applicable and be aggravating mitigating the factors of and upon circumstances you which weighing have been aggravating instructed. of [1 mitigating circumstances does not mean a of counting mere mechanical factors on side each of imaginary an arbitrary assignment weights scale or the any of to free of them. You are assign sympathetic whatever moral or you appropriate value deem to each and all of the you circumstances, various permitted factors are weighing you to consider. In the various fiQ determine under the justified relevant evidence penalty appropriate by which is consid ering totality the of aggravating the totality mitigating circumstances with the circum death, stances. return judgment To a of you persuaded aggravating each of must be that the are circumstances so substantial in comparison mitigating with the circumstances that it warrants death life parole.” instead of without 1244 that death is the for the determination juror’s personal a metaphor

“merely Johnson, v. (People under all of the circumstances.” penalty appropriate 1250.) that the is no reasonable likelihood jury at “There 3 Cal.4th supra, p. if it not verdict death did believe that it could return a of thought have would (Ibid.) was appropriate.” penalty was it that No. 8.88 because inadequate also claims CALJIC

Defendant of had burden the jury the the prosecution persuading specify failed a reason- beyond determination penalty it must be convinced of and that “ have contention that consistently rejected But able doubt. ‘[w]e of deter- penalty standard applies process beyond-a-reasonable-doubt 1048, (1993) 6 Cal.4th 1101 (People Berryman mination ....’” have the claim that rejected P.2d we Similarly, 864 Cal.Rptr.2d (People has burden of at the penalty phase. either persuasion party 643.) at Cal.3d Hayes, supra, p. it to inform the because failed also attacks CALJIC No. 8.88

Defendant life imprisonment could codefendant Niles’s sentence of that it consider jury We have its determination. making without penalty possibility parole (See v. DeSantis such arguments. repeatedly rejected 1210], P.2d and cases cited Cal.4th Cal.Rptr.2d therein.) Error

2. Other Instructional “In instruction: this The trial court gave following sympathy or for the defendant the trial consider you may pity, sympathy, mercy part If for him. circumstance mitigating deciding appropriate penalty called or his character to your or an the defendant’s aspect background such as to arouses or sympathy compassion attention evidence act in may death is not the persuade penalty, you you appropriate life on that thereto and without response impose parole punishment it, defendant had substantially requested basis.” This instruction as “or observa your that the instruction called for the phrase except requested “evidence,” tion after be of Noel Jackson” the word requested it rather in thereto. Defendant “may” instructed that “shall” than act response court in not the instruction as being given contends that the trial erred We The above was more instruction disagree. quoted requested. sympathy compassion to inform the that it could consider than adequate jury Moreover, the trial court at the determination. arriving penalty (k) of section 190.3 under the the catchall factor jury had instructed the which extenuates No. other circumstance 8.84.1—“any gravity CALJIC “You are not instruction: of the crime”—and additional gave following it to factors unless is a list of permitted any aggravating specified consider is factors been there however no limitation of you given previously; have what was consider as thus in- you may mitigating.” jury reasonably life, formed that it could act out to defendant’s sympathy spare trial court committed no error in the additional refusing phrases proffered by (See defendant. 6 Cal.4th at People Berryman, supra, p. 1097 [upholding trial court’s refusal to an instruction almost identical to the one re- give defendant].) quested by deliberations,

Prior to its to instructed “reach a guilt phase jury verdict of what the of such just a verdict be.” regardless consequences may Defendant that contends should have been a admonition jury given direct at the to that earlier instruction. He claims failure penalty phase disregard to administer an such admonition sua denied him due fair sponte process, trial, Fifth, Sixth, and reliable under the sentencing rights Eighth, Fourteenth Amendments of the United States and their Califor- Constitution Yet, above, nia as equivalents. closing arguments explained prosecutor’s properly individual that assumed in emphasized responsibility jurors determination, making and the was instructed that it capital sentencing jury could consider for the defendant in such a sympathy making determination. There is no reasonable that the absence an admonition to the possibility earlier ignore instructions” would “regardless-of-the-consequences have caused the jury misunderstand the nature of true its sentencing (See responsibilities. 1337.) People v. Cal.4th Cummings, at supra, p. K. Cumulative Error

Defendant claims that the errors guilt even during phase, though reversal, insufficient require of the guilt reversal death phase require above, As judgment. what explained few errors occurred at guilt phase were A harmless. cumulative assessment of the nature of errors those does not lead us to believe an had on the they either or the impact guilt phase penalty phase.

Defendant also contends that the cumulative effect of the errors commit- ted at the penalty phase as well as the of the guilt requires reversal phase penalty conviction. We find no whether the errors prejudice, minor occurred at the penalty are considered or phase singly together.

L. Unconstitutionality State Death Law Penalty 190.3, Defendant contends that section (a), (b), are (i) factors uncon- under the stitutionally Eighth vague Amendment United States Con- stitution. 967,_[129 are not. They (Tuilaepa U.S. California

1246 Hawkins, 2630, 2637-2638]; 750, 763, People supra, 114 S.Ct. L.Ed.2d 964.) at p. Cal.4th is unconstitu- claims that the 1978 death statute penalty

Defendant also on which unanimously that the agree it fails require tional because it to it and also fails aggravation, require produce factors considered that the reasons for its determination. Defendant claims statement of written to ensure a reliable determination sentencing is thereby inadequate statute We have review under the Amendment. Eighth and adequate appellate 610, (see (1993) Wader 5 Cal.4th argument rejected repeatedly 788, it 80]), P.2d and decline to reconsider Cal.Rptr.2d [20 669-670 here. Review

M. to Conduct Proportionality Refusal verdict, to Bar/ filed a “Motion the death Following based on as The motion was Penalty Strike Death Disproportionate.” Niles, codefendant, that of his difference between defendant’s sentence and of parole. of without possibility who received a sentence life imprisonment trial contends that the denied the motion. Defendant now The trial court erred, and a protection, of due equal court in violation his rights process, Sixth, Fifth, determination and Four under the Eighth, reliable penalty to the Constitution and their equivalents teenth Amendments United States relies No error committed. Defendant under the California Constitution. 390, 668 P.2d (1983) on Dillon 34 Cal.3d People v. 697], constitu held “a violate the may which we statutory punishment if it is cruel and unusual not only tional prohibition [against punishment] method, or but also if it is grossly disproportion inflicted a cruel unusual reliance As for which it is Such is imposed.” misplaced. ate offense understood, review we stated elsewhere: intracase proportionality “Properly is ‘an of whether defendant’s death sentence proportionate is examination on to his irrespective punishment imposed individual culpability, ” Cal.Rptr.2d others.’ v. Hill 3 Cal.4th (People Here, murder there no defendant’s act—a is question he sentence for hire—is not death constitutionally disproportionate received. 190.4, (e) Subdivision Motion

N. Section death to life imprison Defendant’s motion to verdict modify (e), subdivision without to section 190.4 ment possibility parole, pursuant this it erred in making the trial court. He now contends that was denied by its on the relied impermissible because decision motion determination We disagree. reversal. requiring considerations court, him, in the against Defendant out that the evidence reviewing points residence, when he the found he was wait” went to Niles a fact “lying never at trial. But there is no reasonable that this possibility established court its mischaracterization the trial affected determination. by sentencing trial on Defendant also court’s reliance points improper sentencing when considerations it stated: the as to whether or not “Despite arguments deterrent, the is if argument, death would that the penalty you just forget recidivism, is death an absolute and that is some- against penalty guaranty we be how should concerned about often it The thing considering happens.” trial court stated: also “And I consider that when a does certain kinds person hand, of murder for financial and not even in the things, including gain hope later, to of the out insurance is get proceeds be received such not the paid kind of case that the you want defendant back on the street. The same may as is the fortunate Manson benefit of the declaration of unconstitu- got him.” tionality death which had been prior penalty imposed Defendant contends that these kinds of considerations were extraneous to the 190.4, (e) court’s section subdivision review the verdict. court,

These statements the trial which be as by can characterized inter- jections general its on the of the death opinion appropriateness penalty, 190.4, form no basis for defendant’s sentence. Section subdivision reversing (e) that in provides on the the ruling application modify verdict death evidence, consider, account, the shall “review the judge take into and be guided by and to in aggravating circumstances referred Sec- mitigating 190.3, tion shall make a determination as to whether the jury’s findings and verdicts that the aggravating circumstances outweigh mitigating circumstances are to law or the contrary evidence shall presented. judge state on the record the for his reasons Before the com- making findings.” above, ments court quoted trial did review circumstances of the murder, P., the Riverside and the and then con- escape, rape Shelley cluded: “Based on I have everything indicated and all the evidence which was heard on, which I am jury, basing the it comparison appears indeed, me do, that the aggravating circumstances all outweigh from consid- erations, the and that this is a mitigating, case in which the death is penalty truly deserved.” thereafter, court,

Shortly prosecution clarification from sought “Is stating: the court specifically finding jury’s verdict was proper view and that your your even over and above what the independent analysis, found, witnesses, that the court heard evidence any considering [sz'c] demeanor, their manner and everything that in the case happened particular at the guilt penalty phase, your death is the judgment independent The court “That’s I am right, referring verdict?”

appropriate responded: I to the evidence that was to the and that heard presented solely with the and the evidence of what was jury’s hearing seeing concurrent above, As discussed the record revealed that the did in fact judge presented.” review of the evidence and consider the conduct an proper independent Moreover, and circumstances. the court did mitigating although aggravating review, not mention circumstance in its any sentencing specific mitigating we infer that the court found the circumstances— may reasonably mitigating i.e., the defendant’s and the which defendant’s family background sympathy to elicit for him—to be substantial to warrant family attempted insufficiently comment. contends that trial court erred and by reading considering

Defendant also on the modification motion. But although probation report prior ruling the trial court stated that it had read the (mistakenly) probation report, in the record indicates that it considered the in its nothing making report influenced determination. is was not that court sentencing presumed “[I]t irrelevant matters in the absent evidence to the con- probation report, Hawkins, 971.) v. 10 Cal.4th at There was no trary.” (People supra, p. evidence of influence. improper

VI. Disposition For all the is affirmed its foregoing, judgment entirety. J., Kennard, J., J., Brown, J., J., Chin, C. and George, Werdegar, concurred. I concur, course,

MOSK, in the I have for the court. opinion prepared J. (1) I write for two reasons: because method of separately my analyzing (1978) defendant’s motion under v. Wheeler 22 Cal.3d validity People 890, (Wheeler) 258 583 P.2d v. Batson Kentucky Cal.Rptr. [148 748] 69, (1986) (Batson), 476 U.S. L.Ed.2d 106 S.Ct. differs from 79 [90 1712] court, this (2) in order currently accepted by my express with the views set forth in Justice Baxter’s concurrence with disagreement regard admissibility Oregon escape.

I. 1194, (1989) As I dissent in 47 Cal.3d explained my Johnson (Johnson), P.2d it useful and is Cal.Rptr. appro 1047] minority courts “the treatment of priate appellate compare prosecutor’s of Wheeler! nonminority prospective jurors” reviewing validity Evidence of treatment between these two Batson challenges. disparate or the former are for characteristics challenged responses groups—that of bias.” (People in the latter—is go unchallenged “strongly suggestive Hall 35 Cal.3d Such raises about the exclusion analysis comparative questions prospective juror Alford in the case. Mary present Johnson,

IAs stated in in reference to an court’s evaluation of appellate the race of for the reasons offered neutrality by prosecutor peremptorily a cases a challenging minority prospective juror: appropriate compar “[I]n ison of the treatment of prosecutor’s minority nonminority prospective can a jurors be useful tool: when the record shows highly analytical disparate treatment and it remains how else is a court to determine the unexplained, of the genuineness claimed reason? In these circumstances the prosecutor’s inference that the claimed reason is not the actual of the ground challenge reasonable, not be it be may To courts from only may compelling. prohibit that inference in cases will them a valuable drawing tool that proper deny aids them in (Johnson, their duties under discharging Wheeler Batson.” Mosk, (dis. J.).) 47 Cal.3d at supra, 1292 in Johnson p. opn. majority rejected (Johnson, of such validity 47 comparative analysis. supra, so, 1221.) Cal.3d at In this p. doing court itself in the placed distinctly those minority among that have considered this I cited in Johnson question. a number of state and federal cases that have used treatment disparate analysis (47 1293-1294.) Cal.3d reviewing claims. at Batson-type pp. decided, Since Johnson was a number of cases have reaffirmed the validity it, of such analysis, either by expressly or it to endorsing by employing determine the merits of a (See, (9th Batson challenge. e.g., U.S. v. Chinchilla 695; 1989) Cir. (8th 201, 204; 874 F.2d Devose 1995) v. Norris Cir. 53 F.3d (11th 109, 112-113; Hollingsworth 1994) v. Burton Cir. 30 F.3d Jones (3d 1993) 960, 973-974; Ryan Cir. F.2d (6th 1990) 987 U.S. v. Hatchett Cir. 631, 636-637; F.2d 918 1993) Emerson v. State 851 S.W.2d (Tex.Crim.App. 269, 273-274; (Fla. 1042, 1044-1045; 1989) Roundtree v. State 546 So.2d 815, 822; (La. 1989) State v. Collier 553 So.2d State v. Oglesby S.C. S.E.2d 279 [379

That is not to that a say disparate treatment analysis peremptory Wheeler, is a challenges matter. As we simple acknowledged subjective factors, articulable, not on the record or apparent easily may legitimately a critical role in an exercise of a play attorney’s peremptory challenge. (Wheeler, reason, 275.) Cal.3d at For supra, we defer to p. generally of the trial court. findings But the mere fact that are subjective factors sometimes to a key does not immunize a peremptory challenge categorically trial court’s decision on a Wheeler motion from review. Once appellate case,

defendant has made a facie prima prosecutor’s race-neutral assertedly (Johnson, are to a justifications subject higher scrutiny. 47 Cal.3d at supra, Mosk, (dis. J.).) p. opn.

Moreover, discovers, when an court appellate the record scrutinizing otherwise, that the through comparative analysis stated prosecutor’s dubious, objective reasons for its are then peremptory challenges the court Chinchilla, less credence to his may give subjective (See reasons. U.S. Chinchilla, supra, 698-699.) 874 F.2d at In pp. the court concluded that two reasons stated objective by prosecutor two excluding only Hispanic prospective residence and either un- jurors—place age—were the record or did not supported by withstand The court comparative analysis. then concluded that the two reasons given that were prosecutor of verification—that one of the incapable had a prospective jurors poor and that the other’s appearance as a restaurant employment would manager make him less fit as a (Id. that case—had little juror at credibility. p. 699.) As Kozinski Judge the matter: “While recently put factors subjective role may play legitimate in the exercise of [peremptory] challenges, reliance on such factors alone cannot overcome strong objective indicia of discrimination such as a clear and sustained of strikes pattern against discrimination, The minority jurors. evidence stronger objective of more we will of require by way verifiable facts to sustain a trial court’s finding (Burks (9th exercise of upholding 1994) v. Cir. challenges.” Borg 1424, 1429-1430.) 27 F.3d the more that

Accordingly, reasons comparative analysis objective for the exercise of peremptory challenges against minority jurors points toward treatment based disparate on race or on some other cate- improper the less courts gory, should credit counsel’s reasons. This purely subjective is true in cases such principle particularly as the in which the trial present, court’s on the Wheeler motion was brief and ruling conclusory, containing no of fact. Such findings raise the rulings whether the trial court question had in a truly “sincere and reasoned engaged evaluate the attempt Hall, . . . prosecutor’s .” explanation (People 167.) 35 Cal.3d at supra, p. of trial courts to tendency deal with Wheeler motions perfunctorily may understandable, be business, of the court’s given but it also further press underscores the of importance review. “Even the most appellate conscien- tious trial can be misled judge such extraneous a as reluctance by pressures seated, to dismiss the venire after some or all of the have been or a felt jurors urgency in a begin taking trial to be or a testimony expected lengthy, natural disinclination to disbelieve assertions of faith made an good by court, course, court. An attorney open appellate of is removed from such

1251 Johnson, (dis. 47 Cal.3d at p. opn. (People supra, pressures.” Mosk, J.).)1 case,

In the used three prosecutor eighteen peremptory present Black all Blacks thereby excluding challenges against prospective jurors, from the himself Thus a Black defendant was Defendant was Black. jury. Frankfurther tried an all-White As Justice wrote in v. United jury. Offutt 11, 11, 16, 11], (1954) States 348 U.S. L.Ed. 75 S.Ct. must “[J]ustice satisfy the appearance justice.” conclude, As the the trial into the court’s majority correctly inquiry “

prosecutor’s for the constituted ‘at justifications peremptory challenges least an of a facie exclusion. implied finding’ prima showing” systematic (People v. Fuentes 54 Cal.3d

75].) I with the that the reasons for exclusion of agree majority challenging two of the three Black and Verdan prospective jurors—Annie Hysmith Verret—were race neutral: Hysmith had expressed general opposition death and Verret had stated that he had had a penalty, number of bad with the and mistrusted their experiences police testimony.

The exclusion of Alford more prospective juror is Alford was troubling. Riverside, a stable member of the bom and raised in community, as a traffic officer Air employed management at March Force Base. She had been married for over 24 years had children. The prosecutor, relying dire, deal on the good as well as on voir a lengthy jury questionnaires, gave number of reasons for Alford. Two of those reasons excluding seem highly dubious. The stated that “I prosecutor Question have the reference to 82 on the she would feel questionnaire; for users. This case very, very sorry dmg involve, believe, will I Mr. Jackson with to the use of respect drugs.” Question 82 asked “In prospective jurors: how do feel about general, you users of Alford drugs?” need replied: off Her “They help get drugs.” 1My comparative analysis conclusion that necessary is a useful and sometimes tool in the altered, reinforced, Wheeler/Batson review of challenges by is not and is indeed the recent Supreme (1995)_U.S__[131 United States Court case of Purkett v. Elem L.Ed.2d 115 S.Ct. that in a Batson There the court held challenge 1769]. a when defendant has made discrimination, prima out a facie case of racial prosecutor the race-neutral reasons the that (Id. gives to rebut that case do not have to be intrinsically plausible. p__[131 at L.Ed.2d at p. p. only S.Ct. at It is of the Batson step challenge process—the at the third by determination the trial court of opponent peremptory challenge whether of the has proved purposeful racial plausibility prosecutor’s discrimination—that of the are reasons stage, (and to be implausible justifications may considered. “At that probably or fantastic will) (Ibid.) be found pretexts purposeful to be discrimination.” It is thus with consistent Purkett v. Elem to have appellate comparative analysis both trial and courts use an aid to as plausibility determine in the Batson prosecutor’s explanation step at this third process. an does not inordinate for criminals who

response drug are express sympathy users, of those strikingly was fact similar to the of response many who served as Juror Watkins’s to the same jurors. Raymond response need Juror Annette stated that users question “they help.” Risinger drug “have Juror stated users can’t problems cope.” Terry Harvey drug “are and need Juror stated that “need wrong help.” William Clark users drug and to establish in life without Juror counseling positive goals drugs.” Juror Michael stated that users “need Martha Perkins stated Gray drug help.” most users would need “extensive in order to break their drug help” Thus, habit. Alford’s statement that users drug innocuous seemingly drug “need her within the mainstream of of those help” placed squarely opinion who were chosen for ultimately defendant’s jury.

Another reason for her exclusion was that “she a given may too give great On the Alford weight psychiatric testimony.” questionnaire, expressed view, in to a her response question opinion concerning psychiatry that these “could She stated that a counseling, therapies person.” help “sometimes” evaluation be considered in psychological may understanding had human behavior. She further indicated that she had no experi- personal ence with mental health “If counseling. Finally, response question: case, sit as a on this would be to consider you juror you willing psychiatric and/or she stated: on the who is psychological testimony,” “depends person trial, on and the In evidence.” these noncommittal she responses, gave answers that similar to were one chosen as a in this virtually every juror case, that a number much more view except jurors expressed favorable and of diffi- efficacy theories. It is psychotherapy psychological cult how these could imagine responses justified have peremptory challenge.

A third reason had also seems dubious: she given prosecutor quite fact, “scored not In high penalty.” questionnaire death] [the asked jurors were whether or prospective they “generally support" “gener- stated, ally the death and Alford the former. oppose” chose She penalty, to the response whether death or life without worse question are parole are both hard She punishment, “they indicated no punishment.” opinion with to a about respect whether the She question penalty death deters crime. also expressed for the dire. unequivocal support death voir penalty during Others with ambivalent attitudes toward death were openly penalty on the Juror no permitted jury. Agnes Plantenga expressed support crime, death in her penalty stated that it did not deter questionnaire, and voir dire that she would have hard with explained “a time” very imposing death penalty. Juror Michael crossed his Fogerty “generally out support” that he wrote “sometimes the death questionnaire penalty, supports” indicated that he did not believe it to be a deterrent. Juror Perkins did not indicate for the death voir dire considerable support penalty expressed reluctance to administer the A of other indicated number penalty. jurors did not believe the death deterred crime. they penalty The aas further reason for Alford’s exclusion: “This is prosecutor gave about, the woman who had also I bad because she said basically feeling [a] she could remember . . .” He referred to Alford’s to a everything. response rhetorical he voir dire: “Can tell me question during anyone what posed you were four The was asked in doing years ago today?” the context of question that the crime for explaining prospective jurors which defendant was occurred four and that the charged years ago, fact that memories have may faded should not be counted a witness’s Juror against credibility. Alford stated in that she would in fact be able to tell response question what is, she was four that she was doing years previous—that at her working The recalled that present job. prosecutor he was with “how impressed proud of the fact she could remember exactly what she was four doing” [that] years and that he felt “she ago would be of witnesses in this case hypercritical because of the extended time period But the record shows that delay.” Alford never claimed that she could remember what she was four doing years ago, but that she would be able to tell only what she was and not because doing, of an but extraordinary because her life followed a memory routine. Her was clarified response when she admitted that she would not be tell able to “minute to minute” what she was four doing years ago. she said Nothing that her suggested of what knowledge she had been four doing years ago recollection, from direct sprang or that she would be of wit- hypercritical nesses who could not recall nonroutine events such as the circumstances of the murder. as an prosecutor gave additional reason for Alford’s exclusion that

she had minor, indicated that her as a had daughter, recently pleaded guilty to a misdemeanor in connection $100 with the theft of from the bank in which she was Alford employed. characterized her daughter’s case as that a “minor misdemeanor” that would not affect her views of the A case. number of jurors crimes, had close relatives and convicted of charged some serious, of them fairly or had themselves been convicted of a crime. One had incident; a brother arrested in a another’s gang-related had been stepfather murder; convicted of another had been arrested for while under the driving influence; another’s son had been involved in car theft as a juvenile.

Finally, stated that prosecutor Alford to be nervous.” appeared “quite in the Nothing record before us confirms or undermines this impression. In addition to analysis of disparate treatment between stricken minority prospective jurors it nonminority jurors, can also be useful to compare nonminority the stricken with the minority prospective jurors prospective who were also If the jurors nonminority jurors stricken. who prospective were had similar to the challenged characteristics peremptorily minority also then this would the jurors challenged, prosecutor’s prospective support in fact The is case that his were race neutral. inverse also true—a challenges marked between disparity nonminority challenged minority prospective further corroborate unlawful In the jurors bias. may prosecutorial present case, record the the reveals that of non-Black great majority prospective from in an differed Alford Of the jurors important respect. non-Black jurors challenged they either indicated that peremptorily, “generally it, or the death did not or else indicated that life opposed” penalty support without would be a imprisonment possibility parole greater punishment Of the than death. three one a low-income remaining jurors, was prospective woman, one former was a alcoholic who some ambiva- Hispanic expressed lence about the death and one counsel shared with defense an penalty, Thus, for enthusiasm Alford out in juror stood con- gambling. prospective trast to the in her nonminority challenged jurors unqualified prospective for death and her support conventional habits— penalty lifestyle further not confirmation that her exclusion have been race neutral. may

Nonetheless, troublesome, is I cannot conclude with although question that assurance Alford’s exclusion was The fact by motivated race. daughter Alford’s had been of a recently convicted misdemeanor very valid, was office that now this be a prosecuting may case considered her, reason for race-neutral the fact that with excluding some spite prior involvement in the criminal to sit personal were allowed justice system Because the recent conviction of jury. Alford’s Riverside daughter by sound, District was itself a Attorney plausible basis objectively challeng- a the fact that ing juror jurors not all whose members peremptorily, family convictions were stricken from is of prior significance. had less And, the exclusion of even a race is although based on uncon- juror single stitutional and reversal v. Monteil 5 Cal.4th requires (People 1277]), it is more difficult on basis of a Cal.Rptr.2d lone racial questionable to discern exclu- peremptory challenge practice sion, role that given legitimate factors have subjective may prose- I cutor’s decision. am therefore unable to conclude with from the certainty record that present Alford was because of her prospective juror excluded race. I therefore concur in the holding defend- majority’s rejection ant’s challenges Wheeler!Batson does not reversal. require

II. do not address whether the admission of the majority question error, evidence Oregon escape case that it was not concluding any concurrence, Baxter, have court reach would this in his Justice prejudicial. I reach issue, would the that evidence is admissible. and hold the that contrary view. an from escaped Oregon in majority opinion,

As recounted the inmate, the room to break thick furniture the using cell with another jail at the his was unarmed window of cell. Defendant apparently plexiglass with Defendant guard. involved no confrontation any jail time. The escape unarmed, not No force or and did resist arrest. day, was later that captured violence resulted. 190.3, (b) (all references are to statutory Code section factor further

Penal code) to take into account at the phase this directs the jury penalty “[t]he which involved the of criminal the defendant activity by or absence presence or threat to use or use of force or violence or express implied attempted of criminal states that no evidence use force or violence.” Section 190.3 also admitted not at that does meet criteria shall be activity penalty phase convictions). In (b) People forth in factor evidence of (excepting prior set 762, 1, 782], (215 700 P.2d we (1985) 38 Cal.3d Boyd Cal.Rptr. 776-777 of did involve the use force held that evidence of an that not attempt escape of or was not within the criminal against persons scope activity violence (b), inadmissible. In so holding, factor therefore contemplated we an that term or violence” could be construed “force rejected argument as removal of metal to mean the violent to such injury property, stated; “The to an air case. we of the vent that As grating purpose exclusion is to from evidence conduct prevent hearing statutory which, criminal, is which a life or although not of should influence type death If is it is under clearly decision. theft inadmissible—and property we cannot find that ... is statutory damage language—then property 776; (38 entitled Cal.3d at also greater consideration.” see any p. (1991) Cal.Rptr.2d Cal.4th Bacigalupo Baxter not that Boyd’s damage Justice does conclusion dispute property alone criminal admissible under activity is insufficient constitute violent 190.3, concludes, (b). he section factor Rather based on an expansive (b), of factor that defendant’s nonviolent reading language escape nonetheless an of force or violence. I constituted threat” disagree. “implied 190.3, we look first

When an initiative statute such as section construing the statute. “Absent we voters language ambiguity, presume intend the on the face of an initiative measure meaning apparent [citation] it to conform to an and the court not add to the statute or rewrite may (Lesher not Communica assumed intent is in its language.” apparent tions, City Inc. v. Walnut Creek 52 Cal.3d 1256

1, case, 802 P.2d In the it is present that no undisputed actual violence was in against persons committed of the course Oregon We must escape. determine rather whether there was a “threat to use force or violence.” The reveals that the dictionary term “threat” has two primary One is meanings. of an intention to inflict expression loss or harm on another “[an] by illegal means and especially] means coercion or by involving duress of the person (Webster’s threatened.” (3d 1961) New Internat. 2382.) Dict. ed. There is p. threat, no evidence of or any express this sense of the implied, word in connection with the occurring Oregon escape.

The second of the word is meaning its nature “something by very or latter,” relation to another threatens the welfare of the as in “the cmmbling cliff was a constant (Webster’s below." New village [threat] Intemat. Diet., 2382.) at A related supra, p. is “an indication meaning of something undesirable or impending usu[ally] as in “the air held a unpleasant” (Ibid.) rain.” Justice Baxter to mean [threat] that defendant’s appears Oregon words, constituted an escape “threat” this sense. In other implied defendant’s Oregon prison escape something its nature by very others, threatened harm to or that violence was in the impending escape. First, There are two with this problems it is position. that the unlikely word “threat” was used in this being sense. The of the word conjunction “threat” with the “to use force or violence” phrase appears contemplate the more common of “threat” as the usage of a expression menacing intention.

Second, even if section is 190.3 the term “threat” using in both broadly term, senses of that there is still no evidence that defendant threatened the use of force or violence. On the the success of contrary, the escape appeared defendant, unarmed, to be who was premised confrontation with avoiding armed In this jail guards. critical respect, differs from the Oregon escape or escape attempts considered in conspiracies those cases cited Justice (See Baxter of his (1991) support position. v. Mason 52 Cal.3d 909, 166, 955 802 P.2d Cal.Rptr. [277 would have [planned escape 950] been out without impossible carry confrontation with prison guards]; 115, (1990) 679, v. People Gallego 52 Cal.3d 196 802 P.2d Cal.Rptr. [276 in which a [escape conspiracy 169] “shank” was to a v. play part]; People (1988) 212, 46 Boyde Cal.3d 249-250 25] use of a [possession In the possible gun part escape plan].) present case, we have no evidence that violence was or even being planned prepared for, that the merely speculation situation could have turned if violent circum stances had been different. “substantial evidence from Lacking which jury could conclude beyond reasonable doubt that violent criminal activity

1257 587 (1992) Cal.4th Cal.Rptr.2d (People Tuilaepa occurred” 382, 1142], sub U.S. Tuilaepa affd. nom. P.2d California 2630]), we the trial court must conclude L.Ed.2d S.Ct. 967 [129 this evidence. admitting erred in 543, 10 Stanley (1995) v. Cal.4th 823-824 Cal.Rptr.2d

People case, Baxter, 481], is In that cited Justice also inapposite. P.2d by her car of a of terror that against burned his wife’s as part reign the destruction of personal to eventual murder. We found that led her context, “an of integral in that particular part defendant’s] property, [the victim, such an act or threat of control” the and as frighten to attempt 824.) read into (Id. at But no such threat can be p. personal violence. in to effectuate his escape. defendant’s destruction of order jail property “ Baxter’s that an threat implied Justice assertion the escape represented of violence” is based in on the fact that large part “engendered] escape officers by an immediate manhunt which ended in recapture [deféndant’s] Baxter, J., 1258.) (Conc. at But as we firearms.” of brandishing opn. post, p. nonviolent, have stated: “We that all however argument escapes, reject are invite efforts of inherently dangerous they prevention because of custodial and law enforcement officers. The possibility apprehension when, an an only violence can become under the during actuality escape or, case, facts of the violent resistance in his particular escapee attempts in (People efforts to elude himself a reckless manner.” capture, conducts 1372].) There (1971) 6 Cal.3d P.2d is no Lopez in evidence that defendant in such or recklessness this engaged resistance case.2

Nor is the fact that defendant had used violence in to from past escape of the Riverside credible evidence that he “threatened” the use violence jail instance, did To in this he not during Oregon escape. contrary, any behave did intention use violently any persons, toward not express violence, and did for in latter not violence the course escape. prepare It we him violent criminal activity cannot appears elementary impute based mental alone about his state. speculation sum,

In his did not involve an defendant’s from escape Oregon jail violence,” in conventional word threat use sense “implied any course, out, escape “inherently points mere not an 2Of as Justice Baxter fact that is rule, Lopez, dangerous” not felony felony-murder we held does mean purposes as 190.3, activity section may that it never be considered to be violent criminal admissible under Mason, (b). (See Lopez holding supra, 955.) p. factor at But what the does 52 Cal.3d mean, 190.3, (b), setting the context of section factor is that we must review the factual particular escape involved violence and not each to determine whether it actual or threatened possibility escape reapprehension. presume that the was violent because of the of violence Thus, such “threat.” Justice Baxter’s assertion that evidence should escape be admitted because it is to an individualized deter “particularly pertinent Baxter, (conc. mination of the in a case” appropriate penalty capital opn. J., 1262), at is irrelevant. Section does not consider post, permit 190.3 p. ation of all criminal be relevant to individual activity may culpability i.e., but certain of criminal only specific types activity, activity penalty, that at least a threat to use force or violence. We have no warrant to implies the statute’s and to venture the boundaries ignore beyond express prohibition it has on consideration of a defendant’s actions at the imposed past penalty of a trial. phase capital

I would therefore conclude that the evidence should have Oregon escape been excluded.

BAXTER, I concurin the judgment affirming guilt penalty J. However, the verdicts. I also with the bulk of the agree majority’s analysis. decline to decide whether it was error admit defendant’s majority Oregon as evidence at the escape aggravating phase, simply concluding penalty error, that if there harmless. instead was it was I that admission of the had no effect on agree Oregon escape prejudicial However, outcome. I would reach the avoided by penalty question I conclude that because the “involved ... majority. Oregon escape violence,” or threat to use force or its admission was express implied proper (b) under factor of Penal Code section 190.3.3 nature, its from secure confinement demonstrates a By escape desperate readiness to resist lawful and raises a likelihood of confronta- custody high witnesses, It tion with or innocent citizens. thus guards, pursuing police, violence, substantial “threat” of even when no violence was a presents and no hurt. actually specifically planned person Moreover, the demon- facts defendant’s specific Oregon escape amply strate its inherent for violent or encounters. At the time potential threatening fugitive, he broke out of the defendant was Oregon jail, already capital violent faced serious in two felon who escapee, multiple consequences states unless he took extreme measures to his freedom. By great regain determination, exertion and he under circumstances which almost escaped fact, that he would be or In his guaranteed promptly pursued. stopped immediate which ended in his breakout did an manhunt engender recapture officers firearms. by brandishing facts, willing

From these could infer that defendant was readily cost, make his at would resist if the necessity good escape any oppor- arose, and in event had created a situation where the inherent tunity any subsequent statutory 3All otherwise indicated. references are to the Penal Code unless

1259 offense, a criminal The escape, was high. confrontation for violent potential Nothing violence.” force or threat or implied [of] an “express thus presented cases, statute, sense precluded or common our death in the penalty luck, because, by simply that conclusion from drawing sentencer harm menace or any person. not actually did use of crim- the broadest aggravating intends possible section 190.3

That the statute’s is clear from violence or potential actual inal conduct involving that the (b)) aggravat- (factor (b) provides of section 190.3 Factor wording. which the defendant “criminal activity include any evidence may ing or or the express or violence use of force the use or attempted involved “involved” and of the words violence.” Use to use force or threat implied conduct in which all criminal indicates that or threat” implied “express relevant. arose is likelihood of violence specific are those offenses that Thus, does not encompass the statute simply in a terms, “crimes that were perpetrated but includes all in violent defined 829, 851 (1988) 45 Cal.3d v. Grant (People manner.” threatening violent or nonviolent, of a course 444, aspects P.2d And 755 Cal.Rptr. [248 the “context” in order to demonstrate conduct be shown criminal may (People Kirkpatrick conduct took place. which violent or threatening 248]; 988, 1013-1014 P.2d (1994) Cal.4th Cal.Rptr.2d 741]; see v. Melton Cal.3d 90, 771, 809 (1991) Cal.Rptr. 53 Cal.3d 840-841 also v. People Cooper [281 865].) P.2d was his in the Oregon escape that his “violence” only

Defendant urges He stresses and the window. jailhouse destruction of his cell bench armed, was innocent any person he was or that absence of evidence that have been di- conduct could whom “violent” against immediately present 762 (1985) 38 Cal.3d Boyd rected. He notes we held in v. People [215 1, meaning “violent” within P.2d that an is not escape 700 Cal.Rptr. 782] in or destruction (b) property of factor because it involves damage simply (38 Cal.3d at pp. human victims. an area not then by potential occupied 776-777.)

However, on the narrow exclusively ques- and decided was Boyd argued or to constitute “force alone is sufficient tion whether damage property that broader (b). any principle under does not stand Boyd violence” factor conduct, nonviolent unless be considered criminal an must including escape, clear, make As later cases assaulted or menaced. a human was being actually the law is otherwise. 543, P.2d 897 (1995) Cal.Rptr.2d

In v. 10 Cal.4th 764 Stanley People [42 be considered 481], may we held that destruction of property for example, “violent” criminal conduct where it a threat to another’s implies personal (Id. at 823-824 of wife’s car as intimidat safety. pp. “torching” [husband’s later].) to her murder three weeks And we have ing prelude consistently ruled “a defendant’s that of a knowing possession potentially dangerous (b). is admissible under factor Such conduct is unlawful weapon custody and involves an threat of violence even where there is no implied evidence or it in used or manner. displayed provocative threatening 569, (1992) v. (People Tuilaepa Cal.4th Cal.Rptr.2d [Citations.]” [15 added; also, 382, 1142], (1990) 842 P.2d italics see v. e.g., People Ramirez 1158, 286, 965]; 50 Cal.3d 1186-1187 P.2d v. Cal.Rptr. [270 935, (1981) Harris 28 Cal.3d 623 P.2d 962-963 Cal.Rptr. [171 Moreover, decided, since we have demonstrated our understand- Boyd an make it an ing peculiar dangers posed by escape attempt may or force threat or violence” thus “express implied against persons, [of] when, fortune, (b), admissible under factor even no by good person actually Thus, (1988) came in harm’s in People Boyde 46 Cal.3d 212 way. inmate, Moore, 25], 758 P.2d the defendant solicited another Cal.Rptr. him from the roof. Under Moore was leave a help escape jail plan, gun (Id. on the roof for the defendant’s at use if subduing guard necessary. 248.) We con- concluded could find a criminal p. completed violence, and because the met spiracy, it escape plan contemplated possible (b). (46 249-250.) the “force or violence” test of factor Cal.3d at pp. 52 Cal.3d 115 Similarly, People Gallego 169], thwarted an evidenced jail guards escape conspiracy defendant’s note to another inmate in which a “shank” was jail-made (Id. 155.) mentioned. at We refused to the contention that there was p. accept insufficient crime evidence to allow consideration of the any escape plan 196.) (b). (52 under factor Cal.3d at This the rule determination assumed p. i.e., of Boyde, that the defendant’s mere mention of use in connec- weapon tion with the was to “violent” allow its consideration as plan enough conduct. 166, (1991)

In v. 52 Cal.3d 802 P.2d People Mason Cal.Rptr. 950], we held an in which no force was squarely actually escape attempt if, facts, is used admissible on its it a “threat” of violence. While presented retrial, in his defendant Mason twice cut jail awaiting through capital penalty time, the screen on his cell window. Each the cut was discovered before Mason could make his The that Mason’s showed good escape. prosecution route, intended as would well as feasible alternative escape plan, any “almost have involved a confrontation with a Under these certainly” guard. circumstances, the lack of evidence that Mason was armed or despite resistance, were sufficient we found there intended violent specifically of the attempted escape allow violence to consideration indicia potential 954-956.) (52 at (b). Cal.3d pp. under factor violence, course, hold, escape that an

Mason did not “threat[ens]” first the demon- (b), only of factor where prosecution within meaning probable particular a likelihood that confrontation strates specific all, most, if not such a be On the contrary, case. Nor should rule adopted. indicia of violence potential from confinement guarded present escapes or likelihood of to we Mason. “threat” similar those acknowledged is in the itself.2 confrontation inherent breakout violent a reckless a or is a act. It jail risky implies from Escape prison desperate, restraint, to which resistance carries attitude of official and defiant resistance who interfere. Guards em- of violent to those promise consequences to at a secure have direct responsibility prevent any such facility ployed Moreover, all force a successful while necessary. escape, if by escapes, continues, also to it public safety, it a represents particular danger to constitutes direct and affront to the state’s disturbing ability a power Hence, an certainly maintain lawful will almost produce its custody. escape an intense and focused law enforcement effort fugitive, recapture The likelihood of such a all reasonable means force. again by including threat confrontation is sufficient to constitute “an or express implied [of] (See (b). v. force or violence” which be shown under factor may People Mason, 955-956.) Cal.3d at supra, pp. crimes, indicated, Boyd

As itself exclusion of “nonviolent” statutory convictions, intended “to those evidenced is except by “prior” felony prevent criminal, which, is not of hearing from evidence conduct although life (People Boyd, a which should influence a death decision.” or type However, 776.) that one more Cal.3d it is difficult or supra, argue felon into the of “nonviolent” jailbreaks by dangerous fall capital category conduct irrelevant to penalty. 1372], Lopez we 2In 6 Cal.3d 45 declined “inherently dangerous life” escape purposes find the crime of to be to human for the second Mason, (Id. added.) this degree felony-murder explained italics But as we p. rule. at 190.3, (b). reasoning applicable “is not to determinations under section factor Whether felony-murder felony inherently dangerous purposes degree is second rule is of the contrast, viewing felony determined in the abstract. In elements [Citations.] particular implied threat express whether a instance ... or activity of criminal ‘involved 190.3, (b)) (§ by looking force facts only to use or violence’ be determined factor can Mason, 955, added.) Nothing particular (People supra, p. case.” Cal.3d at italics 52 Lopez or of a from a precludes in Mason commonsense conclusion the facts breakout jail or or prison “express implied secure or will most often involve threat” force (b). Indeed, dangerous” by rejecting inherently violence “not rationale under factor

Lopez sentencing supports view. capital purposes, implicitly Mason such a Indeed, the threat of violence represented by defendant’s breakout from a secure is to an individualized determi- facility particularly pertinent nation of the a case. Such conduct in the appropriate penalty capital that, lose, defendant’s raises the inference with further to he past nothing would such a risk in the future if sentenced life without pose possibility circumstances, Under these it seems that the drafters and parole. unlikely of the death law intended to allow consideration of adopters such an penalty if indicia of violence were or if the was episode only specific proved escape evidenced a conviction obtained before commission of the by felony capital 190.3, 144, (See (c); (1985) crime. factor v. Balderas 41 Cal.3d People § Cases in which arise the circumstances of an demon- may escape clearly (Cf. 51-52.) strate no threat of violence. Lopez, supra, Cal.3d People should the defendant from that his unlike Nothing prevent showing escape, most, context, was nonviolent. inBut truly sentencing capital pre- view, are otherwise in where the sumptions my particularly admissibility of (b) evidence is concerned. Just as factor does not that violence require materialized an so the statute does not actually during escape, contemplate subtle debates about how such violence have likely been under may nature, fortuitous of a circumstances case. its from a particular By escape secure a of confrontational violence facility presumes danger within the (b). of factor purview

The facts of this defendant’s illustrate of the factors Oregon escape many Moreover, that make so even when escapes general potentially dangerous. isolation, viewed in incident demonstrates a threat of Oregon specific violence to that we found sufficient in Mason. analogous

At the time of the from Oregon escape, already fugitive California, and he had used capital charges force recently against jail from California guard while trial for the escape custody awaiting capital His offense. confinement in stemmed from that he had Oregon charges committed a further violent in that These facts subsequently state. felony rise to a inference that defendant was to avoid give logical desperate for his serious crimes and would use force or violence punishment multiple (Cf. his v. Ewoldt 7 Cal.4th accomplish goal. 646, 867 P.2d conduct as evidence of criminal Cal.Rptr.2d [prior 757] occasion].) mental state on similar subsequent The circumstances of the itself also demonstrate the threat of escape Baker, Tim violence. a Jackson sheriff’s testified County, Oregon, deputy, that defendant and another inmate the solid-oak backrest forcibly dislodged this four-foot metal The men then used backing. cell bench from its of their window leading a hole in a plate glass oak to four-by-six-inch punch of piece at an intersection which is located of the county jail building, to the exterior of Medford. center” in the City “almost dead and the police departments

Both were considered dangerous, escapees alerted, Ashland, as were businesses were immediately Medford and Oregon and Ashland. A manhunt 5 corridor between Medford the interstate along to a Kenneth Responding tip, several involving police agencies began. officer, observed the enter a taxicab at an Ashland fugitives Savage, patrol as the cab onto the station and followed proceeded an Ashland gasoline After units joined pursuit, police apprehended freeway. backup with drawn. While the driver of the means of a “felony guns cab by stop,” “secured,” out of the vehicle. Savage cab was defendant tried get being could see in the car and his hands where Savage told him to back get keep into removed from the cab and taken them. Defendant was ultimately custody.

Thus, throughout violence specific potential present effort, The method extraordinary strength episode. escape, requiring Moreover, even if no determination to freedom.3 suggests dangerous gain itself, made it observed the central urban location guard escape jail’s window, that the would be seen as crawled likely they through fugitives immediate, and that innocent that law enforcement would be response also in the efforts to reach safety. civilians become might pawns escapees’ course, were soon Of did react and the fugitives authorities promptly, Mason, here, is no located and force. Thus unlike there supra, captured by need to confron- dangerous the mere hypothesize probability potentially or restraining tation between the and those with charged recapturing escapee defendant him. Such a confrontation occurred when the manhunt for actually and his ended with their That by police. partner apprehension “did not resist” when faced with armed force hardly negates overwhelming the inference that the “threat” of violence was present. I evi- Oregon escape am that admission

Accordingly, persuaded (b) For this additional dence was under factor of section 190.3. proper metal on the cell bench was affixed to its 3Deputy Baker testified that the wooden backrest bolts, dislodged by physical force. backing lag appeared the had been and that it backrest quarter-inch laminated a hole in a window made of The backrest was then used to “batter” glass, designed security inmates in mind. safety presumably with the of I, that introduction reason, contention defendant’s majority, reject like the judgment.4 reversal of the penalty warrants objection this evidence over his Brown, J., J., Chin, J., concurred. C. George, 13, November was denied 1996. rehearing petition Appellant’s in order to by instruction that prejudiced the court’s “erroneous" 4Defendant claims he was (a)), (see jury conclude escape must subd. the criminal find § forcible offense violence,” include “the which could his freedom “force or defendant had obtained view, sug instruction In this against property.” force defendant’s application physical escape enough to make an Boyd, against property force was contrary supra, gested, (b). or not the occurred. Whether meaning prejudicial factor No error “violent” within the (see People v. escape of forcible defined the elements of the crime correctly instruction 7.31), 618, 626-628, 612]; (1987) Cal.Rptr. CALJIC No. & fn. 8 Cal.App.3d Lozano before it could all the elements of that offense merely specified that the must find it (b). (See People Boyd, conduct factor aspects the violent of defendant’s under consider 762, 778.) met against property alone implication No arose that force supra, 38 Cal.3d factor prosecutor did not (b)’s “force or violence.” Tlie separate definition of actual or threatened aggravat Oregon escape was itself property during the argue that defendant’s destruction of seen, As we have penalty. in favor of the death ing weighed “violence” which under circumstances “simple” escape, committed clearly guilty of at least the offense of Moreover, general balance of beings. high danger to human implying degree potential circumstances, reason it is not great. Under these aggravating mitigating over evidence was damage property in the legal effect of ably precise instructions about the possible that more (See People v. Brown penalty outcome. Oregon escape would have affected the Cal.3d 446-449 [250

Case Details

Case Name: People v. Jackson

Court Name: California Supreme Court

Date Published: Aug 26, 1996

Citation: 920 P.2d 1254

Docket Number: S010723

Court Abbreviation: Cal.