A San Bernardino County jury found defendant Martin Carl Jennings guilty of the first degree murder of his five-year-old son, Arthur Jennings. (Pen. Code, § 187.) 1 The jury further found true the special circumstance that the murder was intentional and involved the infliction of torture (§ 190.2, subd (a)(18)), but found not true the special circumstance that defendant intentionally killed Arthur by the administration of poison (§ 190.2, subd. (a)(19)). Following the penalty phase of the trial, the jury returned a verdict of death. After denying defendant’s motion for a new trial and his application for modification of the judgment (§ 190.4, subd. (e)), the trial court sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment in its entirety.
I. FACTS
A. Guilt Phase Evidence
1. The prosecution’s case
(a) The torture and murder of Arthur Jennings
Defendant was tried together with his wife, Michelle Jennings. 2 Defendant and Michelle had been together since Michelle ran away from home in 1989, when she was 14 years of age and defendant was 29. Arthur Jennings was bom prematurely to defendant and Michelle on November 16, 1990. Shortly after Arthur’s birth, defendant and Michelle placed Arthur in the care of defendant’s mother, who soon thereafter became terminally ill. Subsequently, defendant’s half sister, Wilma S., who resided in Montana, began caring for Arthur when he was four months old. Although Arthur had several medical problems when he was bom, most seemed resolved by the time he was five years of age.
In early November 1995, defendant telephoned Wilma to tell her that he wanted Arthur back. He informed Wilma that the couple had a newborn
Defendant paid for Wilma and Arthur to travel by bus from Montana to California. During Wilma’s 10-day visit, she warned defendant that Arthur wet the bed, was afraid of the dark, and could be difficult when he did not get his way. Wilma additionally told defendant and Michelle that she would take Arthur back if he proved to be too much of a problem, but she never heard from them again.
When Wilma left to return to Montana, Arthur weighed approximately 64 pounds. He was happy and in good health. Within a few weeks, however, defendant and Michelle began to abuse Arthur. During late 1995 and early 1996, a number of neighbors noticed signs of abuse.
Approximately two weeks before Christmas in 1995, Phillip and Kevin Grand visited the Jenningses’ home. Phillip saw Arthur with two black eyes and a mark on his mouth. Arthur was making an odd sound, rocking back and forth but staring straight ahead. When Phillip inquired what was wrong with Arthur, defendant said Michelle had “knocked him out.” Michelle confirmed to Kevin that she had “socked the damn little brat between the eyes, knocked him out.”
On Christmas day in December 1995, Louis Blackwood went to the Jenningses’ residence for dinner. Blackwood saw Arthur eat two full plates of food and ask for a third, only to be reprimanded. Blackwood also noticed that Arthur’s hand was bandaged. When he asked what had happened to Arthur’s hand, Blackwood was told that Arthur had burned himself by touching the wood stove. On a separate occasion about two weeks later, Blackwood saw Arthur with a bruise on the side of his face from the hairline down to the jaw line, which Blackwood described as “not a normal injury.” Michelle told Blackwood that Arthur had fallen. Blackwood described Arthur as looking “whipped” and unhappy. In February 1996, a few days before the police started searching for Arthur, defendant told Blackwood that Arthur had gone missing in the middle of the night and that he and Michelle had spent three hours looking for Arthur before they finally found him hiding behind a bush in the desert.
Bernard Romaine saw Arthur in early January 1996 and recounted that he looked “pretty beat up.” At the time, Arthur had two black eyes—one in particular that was “real bad” and appeared to require medical attention because it was swollen shut and seeping blood—and a bandaged hand that appeared to have been burned. Arthur also appeared very thin and undernourished.
On January 5, 1996, Michelle telephoned CPS to report that her neighbors were abusing their 18-month-old son. During a subsequent telephone conversation on January 8, Michelle asked the CPS worker, Betty Hocking, if Hocking could find an adoptive home for Arthur. Michelle told Hocking that Arthur had been with them for two months and that she could not manage him. Hocking asked whether Michelle could return Arthur to the relative with whom he previously resided. Michelle responded that was not an option. Hocking then suggested parenting classes and therapy. As a last resort, she gave Michelle an adoption worker’s telephone number. On January 15, the Jenningses went to Hocking’s office to speak with her in person about the neighbors’ situation. With them was Arthur’s baby sister, Pearl, who appeared to be well taken care of and happy. At the end of the conversation, Michelle said, “I wish there was something we could do with our son,” and again inquired whether Hocking might have an adoptive home for Arthur. The Jenningses explained that they could not control Arthur and that they had many concerns about his behavior. Hocking again suggested parenting classes and therapy and gave them the adoption worker’s phone number. Before leaving, Michelle inquired whether anyone had reported the Jenningses to CPS. When asked why anyone would report them, Michelle claimed she was worried about possible allegations by jealous neighbors.
On February 4, 1996, while Michelle was away, Cora Grein, a neighbor, visited the Jenningses’ home. Defendant and Arthur were watching a television program, and Grein joined them. Defendant instructed Arthur to go to his bedroom. Defendant then attempted to kiss Grein, but she resisted. During this attempt, Arthur reentered the room and subsequently was instructed by defendant to return to his bedroom. Grein testified that as Arthur began walking away, defendant grabbed him and struck him on the back of his head with a fireplace shovel. Defendant then picked up Arthur and threw him on the bed. He told Grein that if she said anything she would “see the bottom of a mine shaft.” Grein told defendant she would remain quiet, and left. 3
(b) The sheriffs investigation
On February 6, 1996, two days after Arthur’s death, the Jenningses reported Arthur missing to the San Bernardino County Sheriff’s station. Defendant stated that he last saw Arthur in his bed at about 2:00 a.m., and noticed he was missing at 6:00 a.m. Michelle said she last saw Arthur about 10:30 p.m. Both defendant and Michelle claimed they tried to find Arthur but were unable to locate him. A search subsequently was initiated by law enforcement officers.
When the search party was unable to find Arthur or any indication of recent activity by Arthur, the authorities began to treat the case as a homicide and summoned the Jenningses for questioning. In separate interviews, defendant and Michelle admitted that Arthur had been dead since February 4. They also independently led officers to the mine shaft in the desert where Arthur’s unclothed body was found wrapped in a blanket.
On February 8, 1996, detectives conducted a joint interview of defendant and Michelle, in which the Jenningses detailed their abuse of Arthur. 4 Defendant acknowledged that at various times he pushed, elbowed, kicked, shook, and hit Arthur. After initially blaming Michelle and then Grein, defendant eventually admitted striking Arthur on the back of his head with the fireplace shovel on the day he died. Defendant did state, however, that he did not want Arthur to die. Nevertheless, when later asked whether he ever had attempted to suffocate Arthur, defendant responded, “I don’t know, maybe.”
During the interview, the detectives posed questions regarding incidents that had occurred prior to Arthur’s death. Defendant acknowledged he and Michelle had discussed “killing” and “getting rid of’ Arthur. Michelle said defendant wanted to shoot Arthur in the head, but she suggested returning him to Wilma or giving him to Art, Sr. Defendant admitted that two days prior to Arthur’s death, he and Michelle drove around the desert looking for a place to “dump the body.”
The Jenningses also admitted giving Arthur the drug Unisom, an over-the-counter sleep aid, as well as Vicodin and Valium, both prescription painkillers that had been prescribed to defendant for a work-related injury. Michelle admitted that on the day Arthur died, she gave him one Vicodin and two sleeping pills at defendant’s behest, but claimed any other pills were given to Arthur by defendant. A detective asked defendant, “Did you tell her to give [Arthur] medication, that it would help him?” Defendant responded, “Yeah. I honestly thought it would. We was trying to get him better and he died.” Although acknowledging that Vicodin and Valium made defendant feel “sleepy” and “numb” and claiming that he cut the pills in halves or in quarters before giving them to Arthur, when defendant was asked what he thought the pills would do to “a five-year old that weighted] 35, 40 pounds,” defendant maintained he “didn’t think about it.”
At one point during the interview, defendant acknowledged he was going “to have to pay” for what had happened to Arthur. Defendant admitted he knew he “had to finish [Arthur] off’ once Arthur saw him kissing Cora Grein. When the detectives questioned who killed Arthur, defendant stated, “I probably did” by “abusing him and the medication and stuff.” Nevertheless, defendant claimed he “did not mean to actually kill Arthur” and tried to save Arthur’s life by administering cardiopulmonary resuscitation (CPR) to him.
Following defendant’s and Michelle’s arrests, officers searched their home and found, among other items, a loaded .32-caliber pistol; a fireplace shovel; a box of Unisom; and bottles of the prescription medications carisoprodol, Darvocet, Vicodin, and Valium, as well as prescription-strength ibuprofen. In the course of his testimony, a detective involved in the search showed the jury photographs of the many perishable and nonperishable food items observed in defendant’s home, and of the bloodstains found in Arthur’s bedroom. A criminologist testified that the blood spatter patterns found in 12 areas of the bedroom came from several separate events—most the result of medium-energy impact and a few from low-energy incidents and smearing.
Dr. Frank Sheridan, a forensic pathologist, performed the autopsy on Arthur’s body. Dr. Sheridan testified that at the time of his death, Arthur was 3 feet 10 inches tall, and weighed only 35 pounds. His body as a whole was “severely emaciated and malnourished”; he had almost no body fat or fatty tissue, his muscles were wasted, and he had no food in his stomach when he died. 5 Dr. Sheridan’s examination of Arthur revealed no medical reason why Arthur would not have been eating or gaining weight. The severity of Arthur’s condition indicated it was not something that had occurred over a short period of time.
Dr. Sheridan also testified concerning Arthur’s numerous physical injuries, which he described as “generally painful to varying degrees” and as having required force to inflict. Visible injuries to Arthur’s body included a bruise and an abrasion on the tip of Arthur’s nose, bruising and a laceration in the area between the nose and the upper lip, bruises on the inside of his lips and gums, a lacerated oral frenulum (between the gum and the upper lip), and a slight bruise on the tip of his tongue. These injuries occurred shortly before death and were most consistent with smothering.
Arthur also had two injuries to the back of his head—one injury on the right side that was a few weeks , old and had been sutured, 6 and a second “fresh” injury on the left side that had occurred no more than six hours prior to his death, and possibly as recently as immediately preceding the time of death, but that was not itself life threatening. The remainder of Arthur’s external injuries included a severe bum on his right hand, covering half of the palm and most of the fingers, that probably was several weeks old; abrasions on his left hand and arm, right elbow, and left buttock; “mg bum” abrasions and bmising on his left back; bmises on his chest, shoulders, right elbow and arm, left arm, and left buttock; a major hemorrhage to the right shoulder blade area; and a scar on the back of his lower right thigh.
An internal examination revealed extensive hemorrhaging to the deeper layers of Arthur’s scalp that extended across the entire front of his forehead, indicating some kind of blow or impact to the area. This injury occurred shortly before Arthur’s death but separately from his other recent head injury.
A microscopic examination of Arthur’s lung tissue indicated he had acute pneumonia at the time of his death. Dr. Sheridan attributed this infection to the breakdown of Arthur’s immune system and his overall failure to thrive.
Toxicology tests revealed that Arthur had three drugs in his blood system, all central nervous system depressants. The first drug was a significant amount of Unisom consistent with the administration of two sleeping pills. The dose was sufficient to cause seizures and cessation of breathing. The second drug was a small amount of Vicodin, a prescription painkiller, which would have added to the sedative or depressive effect of the Unisom. The third drug was a small amount of Valium, which would have played a minor contributing role in Arthur’s condition.
When asked whether he had determined “a cause of death or causes of death,” Dr. Sheridan replied, “Causes.” On the death certificate, he listed the “main cause of death” as “combined drug toxicity,” because although the level of Unisom alone was potentially fatal and the levels of Vicodin and Valium alone were not toxic, the three drugs together had a certain “additive effect” on sedation. Under the heading “Contributing Causes”—which Dr. Sheridan explained is “where you can list something else that contributed to death but is separate from the main one”—he listed “acute and chronic physical abuse and neglect.” The term “acute” referred to Arthur’s injuries inflicted shortly before death, and the term “chronic” referred to Arthur’s older injuries as well as to the “very, very severe” emaciation and malnutrition. Also listed as a contributing cause was the acute pneumonia, which was a complication of Arthur’s emaciated state.
Questioned further, Dr. Sheridan gave the cause of death as “the entire problem”—the drugs, the physical injuries, and the malnutrition and emaciation—“all working together,” that brought about the resulting death. He described Arthur as in a “downhill slide” and “very near to the end of his life” because of malnutrition and “the whole body not functioning properly.” Dr. Sheridan testified that even without the ingestion of drugs, Arthur likely would have died within a fairly short period of time if he were
(d) Stipulation regarding expert toxicologist
The parties entered into a stipulation concerning the testimony of Dr. Randall C. Baselt, a toxicologist, which was read into the record. According to the stipulation, if called as a witness Baselt would have testified that the drug concentrations found in the autopsy blood specimen of five-year-old, 35-pound Arthur Jennings, “when taken at face value, were sufficient to account for [his] death.” The Unisom “played the most important role in this drug combination, and, in fact, could have caused death in the absence of the other two agents.” He noted, however, that without analyzing other autopsy specimens, such as liver, brain, urine or stomach contents, “it would be difficult for a forensic toxicologist to offer any definitive opinions as to the timing of the drug administration, the size of the dose or doses and the exact role that the [Unisom] played in the death.”
2. The defense’s case
Neither defendant nor Michelle testified at trial. Defendant called Dr. Joseph Lantz, a licensed clinical psychologist, who testified concerning the results of tests he administered to determine defendant’s cognitive ability, intelligence, and personality profile. Lantz opined that defendant possessed limited intelligence, was severely impaired in his problem-solving ability, had a personality disorder consisting of narcissism and antisocial behavior, and had been abused by his parents. Lantz further explained that a person who is severely abused as a child is much more at risk as an adult to perpetuate a pattern of abuse. He concluded that defendant was angry, hostile, explosive, impulsive, and difficult to deal with.
Additionally, Lantz noted that defendant’s personality problems increased when he lost his job due to a back and shoulder injury. Defendant was in pain, not working, and short of money. When defendant was employed, he was a regular methamphetamine user, but later quit. As Lantz explained, those who quit use of that drug “generally go through a period of agitation.” Defendant stopped using methamphetamine when he developed nausea due to the interaction between the methamphetamine and his prescription medications.
Lantz further testified that the Jenningses had no concept of how to deal with Arthur’s needs. He also opined that Arthur’s behavior had deteriorated to that of a child of lesser age after he was returned to his parents’ care, and that the Jenningses responded by reverting to the disciplinary techniques that had
Michelle called Dr. Nancy Kaser-Boyd, a licensed clinical psychologist, who testified concerning her testing and evaluation of Michelle. The psychologist related Michelle’s history of rape and abuse by her father (resulting in pregnancy and an abortion), betrayal by an older sister and her mother, molestation by a teacher, and abuse by defendant. Kaser-Boyd stated that Michelle was fearful, depressed, and lacked insight, was socially isolated and felt helpless, had difficulty controlling her impulses, had a dependent and schizophrenic personality, and possessed an IQ in the bottom fifth percentile. Kaser-Boyd explained that the characteristics displayed by Michelle are typical of abused and battered women.
Kaser-Boyd further testified that Michelle did not understand Arthur’s seizures—which defendant told her were temper tantrums but Kaser-Boyd, based on her own experience and training, viewed as epileptic—and that Michelle’s response to the seizures was to slap Arthur. Kaser-Boyd explained that Michelle wanted to obtain medical care for Arthur, but did not do so because he had bruises and she was afraid of losing custody of her baby, Pearl. Michelle also told Kaser-Boyd that defendant suggested withholding food from Arthur because hitting him “was not working,” and that Michelle went along with defendant’s plan, but sometimes would sneak food to Arthur.
An adoption social worker, Margret Thomas, testified regarding a telephone call she received on January 18, 1996, from Michelle discussing adoption options for Arthur. During the call, Michelle said Arthur was recently returned to her home, but she was unable to handle him and therefore was considering placing him for adoption. By the end of the conversation, Michelle agreed to consider returning Arthur to Wilma, the paternal aunt with whom he had resided in Montana before being returned to the Jenningses. Michelle never followed up with Thomas.
3. The prosecution’s rebuttal
Sheriff’s investigator Kathleen Cardwell interviewed Michelle on February 6, 1996, and asked her about her relationship with defendant. Michelle
B. Penalty Phase Evidence
1. The defense’s case 8
Dr. Geraldine Stahly, a social psychologist, testified concerning the history of defendant’s family. Most of defendant’s relatives suffered from mental illness and low intelligence, many had criminal histories, and two half brothers were in prison for murder, one on death row. Defendant’s mother, Pearl Jennings, was reported to have suffered from heroin addiction and at some point to have been placed in a mental hospital for schizophrenia. She had 11 children with her first husband, Raymond Foster. The Foster children were sexually abused by their father and physically abused by both parents. Later, however, the Foster sons came to idealize their father because they “remembered him as not being so bad.”
The Foster children also were sexually molested and physically abused by their mother’s second husband, Art, Sr., who was defendant’s biological father. Art, Sr., allegedly killed Helen, one of the Foster children, by smothering her with a pillow when she was five years of age. In 1957, after approximately two years together, the Foster children, as well as Pearl and Art’s newborn baby, were taken from them by the state. The baby was adopted, and the other children were placed in foster homes and orphanages.
Defendant was bom in 1960. He was much younger than the Foster children and was raised as if he were an only child. At that time, the economic circumstances of the Jennings family had improved considerably. Art, Sr., once forced defendant to steal but subsequently did not press him to engage in such activity again, because defendant proved to be an inept thief. The Foster children perceived that defendant was “spoiled” and “had it good.” But defendant reported to Stahly that his mother forced him to orally copulate her when defendant was nine years of age and demanded during the ensuing year that he perform this act a couple of times a week. He also told Stahly that before attaining the age of 13 years, he was forced to orally copulate Art’s girlfriend. Both parents also physically abused defendant, although apparently not to the extent they abused the Foster children.
Joseph Lantz, the psychologist who testified on defendant’s behalf at the guilt phase of the trial, testified again at the penalty phase. In Lantz’s opinion, defendant was seriously affected by the environment in which he was raised. Lantz agreed with Stahly’s testimony, adding that there would have to be “very active intervention both with the child and with the family” for someone who had been seriously damaged by abuse as a child “to turn their life around.” Lantz stated that social isolation, coupled with severe and ongoing physical, emotional, and sexual abuse and neglect, left defendant “to drift” without normal development.
Lantz referred to an incident in which defendant’s arm was broken when his father attacked him with a baseball bat, and another event when defendant was shot during a hunting accident and his father tied him down at home while removing the bullet fragments. Lantz also testified that defendant was incapable of deciding to take Arthur’s life and did not intend to kill Arthur.
James Park, a retired employee of the California Department of Corrections, testified regarding the situation defendant would encounter if sentenced to life imprisonment without the possibility of parole. In Park’s opinion, defendant was unlikely to be a danger to anyone inside the prison.
2. The prosecution’s case
The prosecution presented one rebuttal witness, defendant’s half sister, F.E., who testified that she was sexually and physically abused by her father, Raymond Foster. Her mother Pearl, whom F.E. described as cold and distant, was not abusive, although Pearl knew about the abuse and did nothing to stop it.
F.E. ran away and in 1954 was placed in a home for girls. Nevertheless, F.E. saw Pearl and Art, Sr., on various occasions. In 1960, F.E. visited her mother, who was pregnant with defendant, but left after Art, Sr., beat and raped her. She again visited her mother and Art for approximately six weeks
Wilma S., defendant’s half sister who raised Arthur until he was five years of age, testified again at the penalty phase as a victim-impact witness. Wilma explained that she was given custody of Arthur when he was four and a half months old and that she loved him very much. She had not wanted to return Arthur to defendant and Michelle, but when she sought legal advice, she was told she could not keep him. Wilma further testified that although Art, Sr., sexually molested her and physically abused her and all of her siblings, her mother did not beat her.
II. DISCUSSION
A. Guilt Phase Issues
1. Sufficiency of the evidence
Defendant contends that the evidence presented at the guilt phase was insufficient to establish first degree murder or the torture-murder special circumstance. He further asserts that basing a conviction or special circumstance finding on the insufficient evidence presented at his trial violated the “narrowing” principle of the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution and his right to due process of law under the Fifth and Fourteenth Amendments.
The law governing sufficiency-of-the-evidence challenges is well established and applies both to convictions and special circumstance findings.
(People v. Valdez
(2006)
In the present case, the trial court instructed the jury concerning three alternative theories of first degree murder advanced by the prosecution— murder by poison, murder by torture, and premeditated murder—and the verdict does not specify which theory the jury relied upon in finding defendant guilty. “A jury may convict a defendant of first degree murder, however, without making a unanimous choice of one or more of several theories proposed by the prosecution . . . .”
(People
v.
Beardslee
(1991)
(a) Sufficiency of the evidence to establish first degree murder by poison
Defendant contends he could not have been convicted of first degree murder by poison, because the jury found the poison-murder special circumstance “not true,” and because Michelle, not defendant, administered “the fatal poison” and there is “no evidence” she intended to kill Arthur. We disagree. Reviewing the record in the light most favorable to the judgment, there is ample evidence to support defendant’s first degree murder conviction on the basis of murder by poison.
As we previously have noted, “it is not the case that the elements of the murder-by-poison special circumstance merely repeat the elements that render a homicide a first degree murder when committed by means of poison.”
(People v. Catlin
(2001)
The trial court instructed the jury pursuant to CALJIC No. 8.11 concerning implied malice, as follows; “Malice is implied when: [][] 1. The killing resulted from an intentional act; [f] 2. The natural consequences of the act are dangerous to human life; and [f] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life.”
Defendant does not dispute that the natural consequences of administering three powerful sedatives to a five-year-old child are dangerous to human life, or that furnishing the drugs to Arthur was a cause of his death. The only issue in terms of implied malice, therefore, is whether there was sufficient evidence for a reasonably jury to have found that defendant “ ‘had full knowledge that his conduct endangered the life of decedent, but that he nevertheless deliberately administered the poison with conscious disregard for that life.’ [Citation.]”
(People
v.
Blair
(2005)
The evidence presented at trial reasonably established the following sequence of events. On the morning of February 4, 1996, defendant directed Michelle to go to the store to purchase over-the-counter sleeping pills to give to Arthur. 9 When she returned, Michelle gave Arthur two Unisom sleeping pills, as well as one Valium, at defendant’s direction. Defendant gave. Arthur additional pain pills, which included Vicodin. Arthur died later that day as a result of combined drug toxicity and acute and chronic abuse and neglect.
In the joint interview, defendant altered his story several times and admitted lying to the detectives on numerous occasions. In evaluating the evidence pertaining to poisoning, the jury was not required to accept, and was entitled to reject, the claims that defendant administered the drugs to Arthur in an effort “to get him better,” that defendant did not “know much” about the drugs, and that he “didn’t think” about what effect the drugs would have on Arthur. To the contrary, the jury could have inferred exactly the opposite from defendant’s remarks about killing Arthur, the acknowledgement that Vicodin and Valium made defendant feel “sleepy” and “numb,” his claim that he halved or quartered the prescription pain pills before giving them to Arthur, and the admission by defendant that he “probably” killed Arthur by “[abusing him and the medication and stuff like that.” This evidence was sufficient for a reasonable jury to find that defendant deliberately administered the drugs to Arthur, and directed Michelle to do the same, with full knowledge that such conduct endangered Arthur’s life and with conscious disregard for that life.
Defendant attempts to parse his involvement from Michelle’s role in the administration of the drugs, ignoring the circumstance that he was charged and tried as an aider and abettor, as well as a direct perpetrator.
11
“Aider and abettor liability is premised on the combined acts of all the
The evidence described above was sufficient for a reasonable jury to have found that defendant poisoned Arthur, or that he aided and abetted Michelle in poisoning Arthur, or that both occurred. Therefore, even assuming for purposes of argument that the sleeping pills administered by Michelle were the sole cause of Arthur’s death, and that the additional drugs and torture were not concurrent causes, a reasonable jury still could have found defendant guilty of first degree murder by poison as an aider and abettor. In any event, there is sufficient evidence to support defendant’s conviction of first degree murder on the theory of murder by poison.
(b) Sufficiency of the evidence to establish first degree murder by torture
Defendant claims the evidence was insufficient to support his conviction of first degree murder on a murder-by-torture theory. (See § 189 [“All murder which is perpetrated by means of . . . torture ... is murder of the first degree.”].) He does not contend that the evidence of his physical abuse of Arthur—which included burning Arthur’s hand on the stove, giving him black eyes, hitting him with a two-by-four, violently shaking and banging Arthur’s head against the wall, kicking him in the midsection, duct-taping his mouth and hands, smothering him, and hitting Arthur in the back of the head with a fireplace shovel—was insufficient to establish torture. Rather, defendant contends that even assuming he tortured Arthur, there is insufficient evidence that his torture was the “but for” cause of Arthur’s death, which defendant attributes to the drugs. We disagree. There was sufficient evidence presented at trial from which a reasonable juror could have found that defendant’s acts of physical violence and deliberate starvation of Arthur were concurrent causes of Arthur’s death. 12 As such, the evidence is sufficient to support a conviction of first degree murder by torture.
If a defendant’s acts of torture were a concurrent cause of the death, it is no defense that the conduct of some other person contributed to the death. “ ‘ “When the conduct of two or more persons
contributes concurrently as the proximate cause of the death,
the conduct of each is a proximate cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the time of the death and acted with another cause to produce the death.” ’ [Citation.]”
(People
v.
Sanchez
(2001)
For this reason, defendant’s focus upon “but for” causation, and whether the drugs were the “primary cause” of Arthur’s death, is misplaced. “But for” or “sine qua non” causation provides that “[t]he defendant’s conduct is a cause of the event if the event would not have occurred but for
In the present case, there was sufficient evidence from which a reasonable jury could have concluded that defendant’s torture was at least a substantial factor in Arthur’s death. Dr. Sheridan testified that the cause of Arthur’s death was attributable to “the entire problem”—that it, the drugs, the physical injuries, and the malnutrition and emaciation—“all working together to bring about the resulting death. (Italics added.) Additionally, the expert toxicologist and Dr. Sheridan both concluded that the dosage of Unisom that was administered to Arthur was sufficient to account for Arthur’s death in light of his age and weight. The jury reasonably could have inferred from this evidence that defendant’s physical abuse and purposeful starvation of Arthur contributed to the lethal effect of the pills, and therefore was a substantial factor in his death.
Defendant contends, however, that the jury could not properly consider starvation as an aspect of torture, because there was insufficient evidence that defendant deliberately withheld nourishment from Arthur. We disagree. Wilma S., Arthur’s aunt, testified that when she returned Arthur to his parents in November 1995, he weighed 64 pounds and was in good health. In the weeks leading up to his death, neighbors reported that Arthur appeared thin and undernourished, despite the circumstance that the Jenningses had ample food in their home. When offered food or drink, Arthur “gulped” it down and asked for additional portions, suggesting he had not eaten recently. When he died on February 4, 1996, Arthur weighed only 35 pounds, having lost nearly half of his body weight in less than three months. Dr. Sheridan, who
(c) Sufficiency of the evidence to establish first degree premeditated murder
Defendant contends that he was improperly convicted of first degree premeditated murder, because there is “no evidence” he killed Arthur by means of a deliberate and premeditated act. (See § 189 [“All murder which is perpetrated ... by any other kind of willful, deliberate, and premeditated killing ... is murder of the first degree.”].) As demonstrated above in response to defendant’s claims related to murder by torture and murder by poison, however, there is sufficient evidence from which the jury reasonably could have found that defendant caused Arthur’s death. Additionally, as demonstrated below in response to defendant’s torture-murder special-circumstance claim, there is sufficient evidence from which the jury could have found that defendant intended to kill Arthur. The only remaining question for purposes of the present claim is whether there is sufficient evidence of deliberation and premeditation.
“An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.”
(People v. Stitely
(2005)
In the case before us, the evidence of preexisting motive clearly supports a finding of premeditation and deliberation. After returning to the Jennings residence, Arthur soon proved to be a difficult child with significant problems, and defendant and Michelle quickly found themselves ill-equipped to handle Arthur’s “fits” and were unable to manage or control his behavior. Although Wilma S. clearly had said she would take Arthur back at any time, defendant did not pursue this option, nor did he pursue the course of giving Arthur up for adoption. Instead, he attempted to “discipline” Arthur by inflicting repeated physical punishment that left Arthur’s body covered in bruises, and by purposefully withholding food to the extent that Arthur lost nearly half his body weight in less than three months. The situation quickly deteriorated to the point that defendant spoke about “getting rid of,” “shooting,” or otherwise “killing” Arthur.
The evidence of planning activity also supports a finding of premeditation and deliberation. On the day Arthur was killed but before he was dead, Michelle and Art, Sr., went out at defendant’s behest to survey the mine shaft where Arthur later was found. Two days before Arthur’s death, defendant and Michelle had driven around the desert looking for a place to dump Arthur’s body. A few days before that, defendant devised the story he later would use to explain Arthur’s disappearance, telling a neighbor that Arthur got up in the middle of the night and ran out into the desert, and that defendant and Michelle had spent three hours looking for Arthur before finding him hiding behind a bush. After killing Arthur, the Jenningses went to the sheriff’s station with a similar story, claiming that Arthur had run away in the middle of the night. Moreover, in the days leading up to Arthur’s death, defendant refused to add Arthur to the family’s medical insurance policy, stating, “he wouldn’t be in the house long enough to need it.”
Finally, the manner of killing supports the conclusion that Arthur’s death was the result of preexisting thought and reflection rather than unconsidered or rash impulse. Arthur was systematically starved and continuously abused, and a potentially lethal dose of prescription and over-the-counter sedatives was deliberately administered. This conduct is entirely consistent with a preconceived design to kill, and the jury was not required to accept defendant’s claims to the contrary.
In light of the foregoing, we conclude the evidence presented at trial was sufficient for a reasonable jury to have found that the killing of Arthur was
(d) Sufficiency of the evidence to establish the torture-murder special circumstance
Defendant claims there is insufficient evidence to support the jury’s torture-murder special-circumstance finding. Reviewing the entire record in the light most favorable to the prosecution, we conclude a rational trier of fact could have found true beyond a reasonable doubt the essential elements of the torture-murder special-circumstance allegation.
Under the applicable statute, first degree murder is punishable by death or life in prison if the murder “was intentional and involved the infliction of torture.” (§ 190.2, subd. (a)(18).) Proof of a murder committed under the torture-murder special circumstance requires (1) proof of first degree murder, (2) proof that the defendant intended to kill and torture the victim, and (3) proof of the infliction of an extremely painful act upon a living victim.
(People
v.
Davenport
(1985)
Defendant, focusing entirely on Michelle’s allegedly innocuous intent in giving Arthur the sleeping pills, argues there was insufficient evidence of his intent to kill. The relevant inquiry, however, is whether defendant harbored an intent to kill when he tortured Arthur. The nature of the torture inflicted upon Arthur—the continuous infliction of serious and possibly life-threatening physical injuries while deliberately and systematically starving Arthur to the point of emaciation—is sufficient to suggest that defendant had such intent. In evaluating the evidence regarding intent to kill, the jury was not required to credit, and was entitled to reject, defendant’s repeated claims to the contrary. Defendant admitted that one of his last acts of torture—hitting Arthur on the back of the head with a shovel so hard that it caused a large, gaping wound—might have killed Arthur, suggesting this was his intent. Defendant also admitted he was “more than angry” that Arthur had witnessed defendant kissing a neighbor, and when asked by a detective, “You had to finish him off. True or not true?,” defendant responded, “I guess true.” The evidence further established that prior to the incident involving the shovel, defendant on more than one occasion spoke about killing Arthur, kept him off the
Defendant also argues there is insufficient evidence that Arthur’s murder “involved the infliction of torture.” (§ 190.2, subd. (a)(18).) In resolving above the claim by defendant that the evidence was insufficient to sustain his conviction of first degree murder under a theory of murder by torture, we found sufficient evidence to establish that the torture perpetrated by defendant was a concurrent cause of Arthur’s death. Unlike first degree murder by torture, however, the special circumstance does not require that the acts constituting the torture cause the death.
(Bemore, supra,
Finally, defendant argues that the torture-murder special circumstance is unconstitutional because the acts of torture are not required to be the sole or primary cause of the victim’s death. As he acknowledges, however, we previously have rejected this argument.
(Bemore, supra,
(e) Constitutional challenges to sufficiency of the evidence
Defendant claims that even if there is sufficient evidence to support his conviction for first degree murder, the conviction violates his rights under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. We conclude that the jury’s first degree murder verdict did not violate any of defendant’s constitutional rights.
Defendant argues that his first degree murder conviction makes him “death eligible” in a case in which he did not cause the death and the death was unintentional, in violation of the principle that a state’s death penalty scheme must meaningfully narrow the class of persons eligible for the death
Defendant next argues that any interpretation of the evidence in this case that renders him guilty of first degree murder violates the well-settled constitutional principle prohibiting punishment determined under vague, arbitrary, or illegitimate standards. (See, e.g.,
Kolender v. Lawson
(1983)
(a) Statements made to expert witness
Defendant claims that it was reversible error for the trial court to admit certain out-of-court statements that were made by his wife and codefendant, Michelle, during her interview with the clinical psychologist who testified on Michelle’s behalf as an expert witness at trial. We disagree. Even assuming error, the admission of this evidence was harmless beyond a reasonable doubt in light of the record in this case.
(1) Factual background
Nancy Kaser-Boyd, a clinical psychologist who evaluated Michelle, testified as an expert witness in support of Michelle’s defense that she lacked the specific intent to kill or torture Arthur. In the course of Kaser-Boyd’s direct examination, after she had testified concerning Michelle’s statements regarding defendant’s spousal abuse but before recounting Michelle’s description of Arthur’s seizures, counsel for defendant objected to the admission of any testimony regarding what Michelle told Kaser-Boyd regarding defendant’s actions or statements. This objection was based on Sixth Amendment confrontation grounds.
(Bruton v. United States
(1968)
As is relevant to defendant’s claim, Kaser-Boyd testified concerning Michelle’s account of physical and sexual abuse that occurred during the earlier years of her relationship with defendant. When she was 14 years of age, Michelle ran away from home and went to stay with defendant, who was 29 at the time. Michelle said defendant was nice to her at the beginning of their relationship, but after about three, or four months “he forced sexual attention on her and he also began to be physically violent with her.” During a large portion of their time together, defendant worked as a truck driver and Michelle was with him on the road. She did not attend school and did not contact her parents, because she did not want to be turned in as a runaway. Michelle told Kaser-Boyd that the abuse continued: “She talked about being hit and slapped and punched, having her hair pulled, being choked on several occasions. Being battered until the point at which she told me she no longer—well, I will phrase that a different way. She always did what [defendant] said and then some of the battering eased up . . . about the last two years before Arthur died.”
Kaser-Boyd also testified concerning defendant’s and Michelle’s withholding food from Arthur as a form of discipline. Michelle told Kaser-Boyd “that [defendant] told her that hitting Arthur wasn’t working and they needed to try something else, and that if they didn’t feed him, maybe he would do the things that they were asking him to do.” Michelle said that “sometimes she went along with that, but there were other times when she agreed to sneak him food.”
Finally, Kaser-Boyd testified concerning Michelle’s statement that “[defendant] was talking about killing Arthur, shooting him in the head.”
At the end of the direct examination of Kaser-Boyd, she gave her opinion, based in part upon her interviews with Michelle, that Michelle was fearful, felt helpless, had problems with impulse control, was socially isolated and distrustful, and suffered from dependent personality, posttraumatic stress, anxiety, and major depressive disorders. Kaser-Boyd also testified that in her opinion, the reason Michelle failed to protect Arthur was that, as a result of the extreme child abuse she herself had suffered, she lacked a good role model to follow.
(2) Analysis
Defendant claims that the admission of the out-of-court statements made by Michelle to Kaser-Boyd as described above violated his confrontation rights under
Crawford v. Washington
(2004)
We need not resolve the constitutional claims raised by defendant, because even assuming it was error under
Crawford
or
Aranda
and
Bruton
to admit the disputed statements made by Michelle to Kaser-Boyd, such error was harmless beyond a reasonable doubt.
(People v. Jenkins
(2000)
Defendant focuses almost exclusively on the alleged prejudice he suffered from the admission of Michelle’s statement to Kaser-Boyd concerning defendant’s having withheld food from Arthur as a form of punishment, which he contends is the only evidence indicating that he deliberately starved Arthur. He argues that without this statement, there is insufficient evidence to establish that defendant tortured Arthur by starving him, that without proof of torture by starvation, there is insufficient evidence to support the guilty verdict and special circumstance finding, and hence the judgment must be reversed.
This argument is contradicted by the record. There was overwhelming circumstantial evidence apart from Michelle’s statement, and described in detail above, from which a reasonable jury could have found that the Jenningses deliberately starved Arthur. This includes evidence establishing that in less than three months, Arthur deteriorated from a healthy 64 pounds to a severely emaciated 35 pounds, which Dr. Sheridan testified was “a dramatic weight loss over a short period of time”; that at the time of his death, Arthur had no food in his stomach, almost no body fat—including in
Defendant’s argument, moreover, ignores the circumstance that his entire course of conduct, and not just the act of starvation, constituted torture. There was overwhelming direct and circumstantial evidence establishing that, in addition to purposefully depriving Arthur of food for an extended period of time, defendant also brutally and continuously physically abused Arthur. This includes evidence demonstrating that defendant burned Arthur’s hand on the stove, gave him black eyes on multiple occasions, hit him with a two-by-four, violently shook and banged Arthur’s head against the wall, kicked him in the midsection, duct-taped his mouth and hands, attempted to smother him, and hit Arthur on the back of the head with a fireplace shovel shortly before he died.
Defendant’s trial strategy further contradicts his claim that he was prejudiced by the admission of Michelle’s statement concerning defendant’s withholding of food as punishment. Defendant did not dispute that he starved and physically abused Arthur; instead his defense was that he intended only to discipline the child and did not intend to kill him. In support of this argument, defense counsel specifically alluded to Michelle’s statement about withholding food from Arthur as a form of punishment: “And when the child is misbehaving according to [defendant]—I mean, see, in order to determine state of mind, intent, you’ve got to get into this. So I’m using ‘misbehaving’ in quotes, because that’s what [defendant] is perceiving, the child is misbehaving. What do you do? Well—based upon his personality disorders and his upbringing, what do you do? Well, that’s clear what you do, and that’s what happened to the child. That’s what you do. You spank. If that doesn’t work, you beat. If he’s peeing, pooping, whatever, you withhold food. When nothing else works, you—you heard that Michelle said he said, [defendant] said, ‘I’m going to,’ you know, ‘end this now,’ and he puts the kid’s hand on the flame. Okay? He’s upping the ante to try and—he keeps battering this little child to try to force him into compliance to behave, to behave. And that’s awful child abuse without, you know, any excuse, and he should be convicted of it. The difference, the difference, is, you know, for all those other crimes, it doesn’t require a premeditated, malice intent to kill, a specific intent to kill for those other crimes. Okay? That’s the difference.” If anything, the exclusion of Michelle’s statement concerning defendant’s withholding of food as punishment would have harmed defendant, as it was the only direct evidence supporting his defense.
Alternatively, defendant claims the admission of Michelle’s statement to Kaser-Boyd concerning defendant’s withholding of food violated the Evidence Code prohibition against hearsay evidence. (See Evid. Code, § 1200.) This claim was forfeited, however, by defendant’s failure to make a hearsay objection at trial.
15
Even if we were to assume it was not forfeited and also that the statement was offered for the truth of the matter asserted, any presumed error in admitting this alleged hearsay evidence was not prejudicial, for the same reasons that any presumed
Crawford
or
Aranda-Bruton
error was harmless beyond a reasonable doubt. (Accord,
People v. Gutierrez
(2009)
Finally, because we conclude that defendant suffered no prejudice from the admission of Michelle’s statements to Kaser-Boyd regarding defendant’s withholding of food from Arthur, we also reject defendant’s related claim that the judgment must be reversed on the grounds that the trial court erred in denying his pretrial severance motion and that defendant suffered “important prejudice” and “gross unfairness” because of the joint trial and the resulting admission of this statement.
With respect to Michelle’s statements to Kaser-Boyd regarding spousal abuse, Arthur’s “tantrums,” and defendant’s wanting to shoot and kill Arthur,
(b) Statements made during joint interview with detectives
Defendant also claims that the trial court committed reversible error under Crawford, as well as under Aranda and Bruton, by admitting numerous statements made by Michelle during the joint interview the detectives conducted with defendant and Michelle. As we explain below, because the statements qualify as adoptive admissions, their admission into evidence did not violate defendant’s Sixth Amendment confrontation rights under Crawford, or under Aranda and Bruton. Even assuming for purposes of argument that it was error to admit some of Michelle’s statements from the joint interview as adoptive admissions, any presumed error was harmless beyond a reasonable doubt in the context of the entire joint interview and the record as a whole.
(1) Factual background
After obtaining separate statements from defendant and Michelle and being led to Arthur’s body in the mine shaft, the detectives decided to interrogate the two suspects together. At the outset of the joint interview, the detectives obtained
Miranda
waivers
(Miranda v. Arizona
(1966)
The detectives commenced by focusing on the physical abuse inflicted on the victim, asking defendant about his separate statement that Michelle began “beating on” Arthur shortly after the child arrived at their home and that Michelle was more abusive than defendant, who merely disciplined Arthur with spankings and “time-outs.” Michelle interjected to deny that she ever hurt Arthur, claiming that all she did was spank him. Defendant responded that both he and Michelle probably were “overzealous” in inflicting punishment.
Later in the interview, Michelle accused defendant of dragging Arthur home, throwing him onto the porch, and bruising his forehead. Defendant conceded that on one occasion he had dragged Arthur home, but claimed Arthur hit his head after tripping over a step on the porch.
Michelle subsequently admitted that she disciplined Arthur by spanking him, sending him to the comer, and “smack[ing] him” to bring him out of his
Michelle further accused defendant of knocking Arthur down with his elbow, kicking him in the midsection, making Arthur hold a two-by-four over his head and knocking him down when he dropped the beam, and holding his hand over the stove and burning it. At first, defendant reluctantly admitted committing some of these abuses, conceding that he was “abusive” and that “most” of Arthur’s injuries were caused by defendant. But when Michelle pleaded with defendant “[pjlease tell them” and “[djon’t do this to me,” defendant admitted to all of the abuse Michelle had described—to “everything she’s saying.” Nevertheless, defendant continued to assert that Michelle also was abusive, although not “overly” so, and that some of her conduct may have contributed to Arthur’s injuries, but only in a “very minor” way. Later in the interview, defendant specifically admitted burning Arthur’s hand on the stove and pushing him to the ground.
Defendant also admitted that during one of Arthur’s seizures that took place a few days before he died, defendant shook Arthur so hard that Arthur’s head hit the wall. When Michelle tried to stop defendant, defendant pushed her away. Defendant stated he “caught [his] senses” and only stopped when Michelle began “screaming” that defendant was about to kill Arthur.
Defendant further admitted placing a sock in Arthur’s mouth and also using duct tape to silence Arthur, and conceded he may have used duct tape to bind Arthur’s hands. Defendant claimed he took these actions to keep Arthur from biting his tongue or gouging himself with his fingers during his seizures.
The detectives next confronted defendant regarding his prior statement that he and Michelle, on more than one occasion, had spoken about “killing” or “getting] rid of’ Arthur. At that point, Michelle interrupted, stating that she never wanted to kill Arthur and that she told defendant they could not take such action. Michelle claimed she proposed sending Arthur back to defendant’s sister, Wilma, or leaving him with his paternal grandfather, Art, Sr. She asked defendant, “Did I kill Arthur? Please. Did I kill him,” to which defendant responded, “No.” When the detectives then asked defendant how he planned to kill Arthur, he responded that he did not know. Michelle again interjected, volunteering that defendant talked about shooting Arthur, but that she had responded negatively, stating they should send him to his aunt or grandfather. Defendant admitted that Michelle’s account was accurate. He further conceded that he had spoken about killing Arthur, but claimed he had changed his mind, did not mean to kill Arthur, and did not want Arthur to die.
The detectives next addressed the efforts to conceal Arthur’s death, asking defendant about his prior statements that Michelle had dug the original hole for the body and subsequently had moved the body to the mine shaft. Michelle turned to defendant, asking him, “why are you doing this to me,” and pleading for defendant to tell the detectives who had done these things. Defendant eventually admitted that he did “all of it,” conceding that he had moved the body to the mine shaft because he was afraid that someone would find it, and that he had planned to throw old tires on top of the body to hide it. Defendant and Michelle also admitted having cleaned up Arthur’s bedroom after disposing of his body. Defendant related that there had been blood on the walls, possibly on the floor as well, and admitted that the blood may have been from when he shook Arthur and Arthur’s head hit the wall. He also admitted to burning Arthur’s bed sheets and the gloves used to bury him, and hiding Arthur’s bloody clothes and glasses in a trash dumpster. Defendant said, “I know what I [did] is wrong” and “I know I’m going to have to pay for this.”
Michelle claimed she wanted to report Arthur’s death, but defendant would not let her, claiming they would go to jail for child abuse. When she asked defendant, “Why didn’t you let me report it when I told you I was going to,” defendant replied, “Because I was scared. I was scared of losing everything that we have.” When Michelle further claimed it was defendant’s idea to bury Arthur, defendant confirmed Michelle “went along with everything I said.” Michelle indicated she acceded to defendant out of fear, because defendant once told her he would kill her if she caused him to be arrested. Defendant admitted making that statement, but claimed that was “a long time ago” and that he did not mean it. Michelle also indicated that defendant threatened to hurt her and baby Pearl if she told anyone about what had happened to Arthur, and that defendant had brought a gun when they went to move Arthur’s body. Defendant denied that allegation, claiming, “what I said was,
At one point, defendant volunteered that he and Michelle had administered prescription drugs to Arthur, such as Vicodin, in order to “heal him up” so they could send him back to Wilma. The detectives then inquired concerning defendant’s prior statement that Michelle had administered medication to Arthur, that defendant had attempted to stop her by hiding the medication, but that she had found it and continued to administer the medication to Arthur. Defendant admitted that this story was not true, that they both gave Arthur medication, and that he had told Michelle to do so because he thought it would help make Arthur better. Although claiming he did not consider what the pills would do to a child who weighed 35 pounds, defendant also claimed to have cut the pills in halves or quarters. For her part, Michelle admitted that, in order to protect defendant, she previously had lied to the detectives about administering several pills to Arthur. Michelle claimed she actually gave Arthur only one Valium that defendant instructed her to administer to Arthur to relax his muscle spasms, and two sleeping pills at defendant’s direction in order to put Arthur to sleep.
The detectives inquired why defendant told Michelle that the couple did not need to list Arthur on their medical insurance policy because Arthur “wouldn’t be in the house long enough to need it.” Defendant claimed he “had a change of heart about killing [Arthur]” and was referring to the idea of returning Arthur to Wilma.
The detectives also confronted defendant concerning his prior assertion that Michelle had hit Arthur with a fireplace shovel on the day he died. Michelle again objected, asking defendant whether that was true. Defendant admitted that was a lie, asserting that no one had hit Arthur with a shovel but instead Arthur had hit his head on the kitchen table. Defendant explained that he did not tell Michelle about this incident, because he was afraid to do so. After the detectives persisted, defendant again changed his story, claiming that he was holding the shovel when he sat Arthur down against a wall and that Arthur landed against the shovel. The detectives also refused to believe this story and, after trying to explain how Arthur fell on the shovel, defendant eventually said he could not remember how Arthur hit his head.
When the detectives returned, they immediately asked who had killed Arthur. Both defendant and Michelle initially denied killing Arthur, but defendant eventually admitted, “I probably did” by “abusing him and [giving him] the medication and stuff like that,” but again claimed he did not intend to kill Arthur.
The detectives then resumed questioning the two suspects concerning the shovel incident. Defendant finally admitted that a female neighbor, Cora Grein, had been in the house while Michelle was out with Art, Sr. At this time, one of the detectives took Michelle outside again. In her absence, defendant admitted that Arthur saw him kissing Grein. Defendant claimed that Grein became angry and hit Arthur with the shovel in order to keep Arthur from telling her husband. Defendant claimed that he kicked Grein out of the trailer and tried to help Arthur by cleaning the wound and giving him some drugs, but that Arthur died within an hour.
Under further questioning, however, defendant’s story changed again, and he finally confessed that he hit Arthur with the shovel after Arthur saw him kissing Grein and admitted that he then believed he “had to finish [Arthur] off.” Nevertheless, defendant claimed he did not intend to kill Arthur and, indeed, had attempted to save Arthur’s life by administering CPR, because defendant had experienced a “change of heart.” Defendant further admitted that he caused all the bruises on Arthur’s body, that Michelle never beat Arthur, that defendant was abusive toward Michelle and coerced her.into going along with his actions, that Michelle did not have “much” involvement, and that he was responsible for Arthur’s death.
After defendant’s confession, Michelle was brought back into the room and defendant told her about hitting Arthur in the head with a shovel. Michelle
Prior to trial, defendant moved to sever his trial from Michelle’s trial on the grounds of incompatible defenses and
Aranda-Bruton
issues. (See
Bruton, supra,
During the trial, before the videotape of the joint interview was shown to the jury, defendant renewed his. continuing objection to its admission. The court overruled the objection, incorporating its earlier ruling. The prosecutor then played the entire joint interview for the jury.
(2) Analysis
It is undisputed that defendant’s own statements made during the joint interview were admissible against him, as admissions of a party, under Evidence Code section 1220. (See
People v. Horning
(2004)
The law pertaining to adoptive admissions is well settled. “Evidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth.” (Evid. Code, § 1221.) As this court has explained, “[i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt.”
(People
v.
Preston
(1973)
“ ‘[A] typical example of an adoptive admission is the accusatory statement to a criminal defendant made by a person
other
than a police officer, and defendant’s conduct of silence, or his words or equivocal and evasive replies in response. With knowledge of the accusation, the defendant’s conduct of silence or his words in the nature of evasive or equivocal replies lead reasonably to the inference that he believes the accusatory statement to be trae.’ [Citation.]”
(People v. Silva
(1988)
“Moreover, it is well settled that an adoptive admission can be admitted into evidence without violating the Sixth Amendment right to confrontation ‘on the ground that “once the defendant has expressly or impliedly adopted the statements of another, the statements become
his own admissions,
and are admissible on that basis as a well-recognized exception to the hearsay rule.” ’ [Citation.]”
(People
v.
Cruz
(2008)
It follows that the admission of an out-of-court statement as the predicate for an adoptive admission does not violate the principles enunciated in
Crawford
or in
Aranda
and
Bruton. (People v. Roldan
(2005)
Instructive on this point is
People
v.
Castille
(2005)
With these principles in mind, we turn to defendant’s claim that the court erred in admitting several statements made by Michelle during the joint interview. Michelle’s disputed statements can be grouped into three general categories that cover all of defendant’s allegations of error in this respect. Because Michelle repeated many statements during the course of the interview, some may fall into more than one category, although they are listed below only once.
The first category consists of statements, made by Michelle during the joint interview, that defendant expressly admitted or accepted at the time the statement was made. These statements are clearly admissible as adoptive admissions and include the following: that Michelle did not kill Arthur; that Michelle did not hit Arthur on the head with the fireplace shovel; that defendant had not told Michelle about the shovel incident; that defendant talked about shooting Arthur in the head but Michelle told him not to kill Arthur; that they should return Arthur to defendant’s sister or give him to defendant’s father; that defendant, not Michelle, dug the hole where they first
The second category consists of statements, made by Michelle during the joint interview, that defendant failed to deny or to which he furnished an equivocal or evasive response at the time the statement was made. With respect to these statements, we observe that defendant waived his right to remain silent at the beginning of the interview and never indicated an intention to invoke that right at any point during the interview. In fact, defendant continuously made new admissions throughout the interview. Additionally, on numerous occasions during the interview, defendant clearly voiced disagreement with statements made by Michelle. For example, defendant repeatedly denied ever threatening Michelle with a gun.
Under these circumstances, we conclude statements made by Michelle that were met by defendant’s silence, or by equivocal or evasive responses on his part, properly are viewed as adoptive admissions, and therefore were admissible in evidence.
17
(Fauber, supra,
The third and smallest category are statements made by Michelle during the joint interview that defendant initially denied at the time the statements were made. An examination of the entire interview reveals, however, that when the same or similar statements were repeated later on during the interview, defendant admitted the substance of these statements as well. Although, for obvious reasons, a statement that is expressly denied by a defendant does not qualify as an adoptive admission, we conclude that any error from the admission of such statements in this case was harmless beyond a reasonable doubt, because these statements were consistent with, and cumulative to, other admissions made by defendant during the course of the interview, and thus could not have damaged defendant’s case more than his own admissions. (Accord,
People
v.
Davis
(2009)
Defendant alternatively argues that Michelle’s statements cannot constitute adoptive admissions, because defendant’s conduct at most demonstrates that he was taking the blame for Arthur’s death in order to spare Michelle. In this respect, we agree with the People that defendant benefited from the jury’s having seen the entire interview. If the jury had heard only defendant’s admissions, it would not have witnessed Michelle’s behavior and her efforts to have defendant minimize her role in Arthur’s abuse and death and in the efforts to conceal his death.
3. Admission of out-of-court statements made by Mary Dobson
Defendant asserts a due process violation occurred based upon the allegedly unfair impact of Kaser-Boyd’s testimony concerning an out-of-court statement made by Mary Dobson, a neighbor of the Jenningses’, to investigators. This statement related Dobson’s view “that Martin Jennings controlled Michelle Jennings.” Defense counsel’s objection to the admission of this evidence on the basis of the Sixth Amendment confrontation clause of the United States Constitution was overruled. Defendant claims the trial court erred prejudicially, because Dobson’s secondhand or thirdhand hearsay was contrary to other evidence that suggested Michelle dominated defendant. We conclude any claimed error was harmless beyond a reasonable doubt. Dobson’s statement was cumulative to, and consistent with, admissions made by defendant during the joint interview, from which a reasonable jury could have concluded that defendant controlled Michelle. For example, defendant admitted that he physically threatened Michelle and had threatened to kill her in the past if she ever did anything that sent him to jail, that he manipulated Michelle with love as well as with fear and intimidation, that he was afraid that without having Michelle “under [his] thumb or without intimidating her or putting fear in her . . . she would tell on [him],” and that he was abusive toward Michelle and coerced her into going along with his actions. The single statement attributed to Dobson could not have damaged defendant’s case more than his own admissions.
4. Alleged instructional errors
(a) Failure to instruct the jury concerning accessory liability pursuant to a modified version of CALJIC No. 6.40
Defendant claims the trial court erred in failing to instruct the jury on its own motion concerning accessory liability pursuant to a modified version of
Defendant is correct in observing that “the trial court normally must, even in the absence of a request, instruct on general principles of law that are closely and openly connected to the facts and that are necessary for the jury’s understanding of the case.”
(People
v.
Carter, supra,
To the extent defendant claims the trial court had a duty to instruct the jury on its own motion concerning the crime of being an accessory after the fact as a
lesser included offense
of murder, however, his claim necessarily fails. It is well settled that “ ‘[m]urder can be committed without the murderer being an accessory after the fact,’ ” and “ ‘[t]he latter offense, therefore, is not necessarily included in the former.’ [Citations.]”
(People v. Majors
(1998)
To the extent defendant contends the accessory instruction was required because the crime of being an accessory after the fact is a lesser related offense of murder, his claim fails as well. A defendant has no right to instructions on lesser related offenses, even if he or she requests the instruction and it would have been supported by substantial evidence, because California law does not permit a court to instruct concerning an uncharged lesser related crime unless agreed to by both parties. (Kraft, supra, 23 Cal.4th at pp. 1064-1065; Birks, supra, 19 Cal.4th at pp. 136-137.) Therefore, the trial court was not required to instruct the jury on its own motion concerning the lesser related offense of being an accessory after the fact, whether or not there was substantial evidence supporting a theory of accessory liability.
To the extent defendant argues the trial court should have given an accessory instruction on the theory that being an accessory after the fact is a
defense
to the prosecution’s theory that defendant aided and abetted Michelle in murdering Arthur, his argument still fails. Being an accessory to murder is not a defense to aiding and abetting the commission of murder—it is a separate criminal offense. (See § 32;. cf.
People v. Valentine
(2006)
(b) Instruction pursuant to CALJIC No. 3.41 concerning concurrent causation, and failure to instruct pursuant to CALJIC No. 3.40 concerning “but for” causation
Defendant argues that the trial court failed to instruct the jury properly concerning causation, and that this failure requires reversal. Defendant further contends the jury instructions concerning causation violated his rights under the Fifth, Eighth, and Fourteenth Amendments of the United States Constitution. We conclude this claim is without merit. As demonstrated below, the instructions given in this case correctly stated the law pertaining to causation, were responsive to the evidence, and fully equipped the jury to address the issues presented.
Over defense objection, the trial court instructed the jury concerning concurrent causation pursuant to CALJIC No. 3.41, as follows: “There may be more than one cause of the death. When the conduct of two or more persons contributes concurrently as a cause of the death, the conduct of each is a cause of the death if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the death and acted with another cause to produce the death. [][] If you find that the defendant’s conduct was a cause of death to another person, then it is no defense that the conduct of some other person contributed to the death.”
Defendant argues this instruction incorrectly stated the law concerning causation because it informed the jury that if the torture that defendant committed merely was “operative at the moment of’ Arthur’s death, he was guilty of first degree murder even if the torture did not cause the death. The challenged instruction, however, “is not reasonably susceptible to defendant’s interpretation.”
(People v. Jackson
(1996)
Moreover, instructing the jury pursuant to CALJIC No. 3.41 was . responsive to the evidence and to the arguments made at trial. A concurrent-cause instruction is required when the evidence places at issue two or more causes of the result of the crime.
(People
v.
Bland
(2002)
Defendant alternatively contends that the trial court should have amplified its concurrent causation instruction by defining “operative” and “substantial factor” as those words are used in CALJIC No. 3.41. We disagree. “When a word or phrase ‘ “is commonly understood by those familiar with the English language and is not used in a technical sense peculiar to the law, the court is not required to give an instruction as to its meaning in the absence of a request.” ’ [Citations.]”
(People
v.
Estrada
(1995)
We note that the jury was instructed pursuant to CALJIC No. 8.55, as follows: “To constitute murder or manslaughter there must be, in addition to the death of a human being, an unlawful act which was a cause of that death.” 21 (Italics added.) This instruction is substantively identical to the first sentence of CALJIC No. 3.40.
To the extent defendant argues that the jury additionally should have been instructed pursuant to the second sentence in CALJIC No. 3.40, the failure to request this instruction on causation forfeited any claimed error. “A party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.”
(People v. Lang
(1989)
Defendant contends the trial court had a duty to instruct the jury on its own motion pursuant to the second sentence of CALJIC No. 3.40, as a general principle of law relevant to the issues raised by the evidence in this case. We disagree. The sentence instructs that a cause of death is an act that sets in motion a chain of events that produces death as a natural and probable consequence of the act, and without which death would not occur. (CALJIC No. 3.40.) This instruction is required in cases in which one cause of death is alleged but the evidence suggests that an independent supervening act, separate from the defendant’s act, may have brought about the death.
(People
v.
Pock
(1993)
In the present case, the prosecution argued that the torture inflicted by defendant was an intentional,' direct, substantial, and contributing cause of Arthur’s death. Defendant’s main defenses were that he lacked the specific intent to kill Arthur and that the drugs were the primary cause of death. The causation issue, therefore, was not whether the torture committed by defendant set in motion a chain of events that led to Arthur’s death, or whether giving Arthur a fatal combination of pills was a natural and probable consequence of the torture. The causation issue was whether defendant’s acts of torture, consisting of severe and chronic physical abuse coupled with deliberate and prolonged deprivation of nourishment, were a concurrent cause of Arthur’s death along with the drugs. The evidence at trial thus necessitated instructing the jury pursuant to CALJIC No. 3.41, and did not prompt a duty to instruct on the court’s own motion pursuant to CALJIC No. 3.40.
(c) Failure to instruct concerning the “defense” of accident pursuant to CALJIC No. 4.45, and concerning criminal negligence pursuant to CALJIC No. 3.36
Defendant claims that the trial court committed reversible error by failing to instruct the jury pursuant to CALJIC No. 4.45, concerning the “complete defense” of accident, in violation his rights under the Fifth, Sixth, and Eighth Amendments of the United States Constitution. 24 He further asserts that CALJIC No. 3.36, defining criminal negligence, should have been given along with CALJIC No. 4.45.
With respect to CALJIC No. 4.45, although acknowledging that he did not request this instruction, defendant contends the trial court had a duty to instruct on its own motion concerning accident as an “affirmative defense.” (See
People v. Breverman, supra,
Generally, the claim that a homicide was committed through misfortune or by accident “amounts to a claim that the defendant acted without forming the mental state necessary to make his or her actions a crime.”
(People
v.
Lara
(1996)
In the present case, the claim that Arthur was killed by accident through an overdose of sleeping pills amounts to a claim that defendant and Michelle lacked the intent to kill necessary for first degree premeditated murder and the torture-murder and murder-by-poison special circumstances. As such, instructing the jury pursuant to CALJIC No. 4.45 would have constituted a pinpoint instruction highlighting a defense theory that attempted to raise a doubt concerning an element (intent) of a crime that the prosecution must prove beyond a reasonable doubt. The burden therefore was upon defendant to request that the jury be instructed pursuant to CALJIC No. 4.45, and his failure to do so forfeited any claim of error in this regard. (See, e.g.,
Gutierrez, supra,
(d) Omission of the actus reus element, for torture-murder special circumstance, from CALJIC No. 8.81.18
Defendant claims we must set aside the torture-murder special-circumstance finding, because the trial court erred by deleting certain language from CALJIC No. 8.81.18, thereby omitting the requirement that the jury find that defendant did in fact inflict an act of torture upon Arthur. Although the modification was agreed to by counsel and was recommended by the Use Note to the instruction, it had the effect of eliminating an element of the special circumstance. This omission, however, did not prejudice defendant.
The trial court instructed the jury concerning the elements of the special circumstance of murder involving the infliction of torture, pursuant to a revised version of CALJIC No. 8.81.18, as follows: “To find that the special circumstance referred to in these instructions as murder involving infliction of torture is true, each of the following facts must be proved: [][] 1. The murder was intentional; and [][] 2. The defendant intended to inflict extreme cruel physical pain and suffering upon a living human being for the purpose of
This omission is directly attributable to the Use Note accompanying CALJIC 8.81.18, which states: “Torture murders committed on or before June 5, 1990 will require proof and instruction on element number 3. However, for crimes committed after that date, delete element number 3.” The Use Note, in turn, appears to reflect a misunderstanding of the effect of Proposition 115, passed by the voters on June 5, 1990, upon the torture-murder special-circumstance statute.
The applicable statute provides that the special circumstance applies if “[t]he murder was intentional and involved the infliction of torture.” (§ 190.2, subd. (a)(18).) Prior to June 6, 1990, the statute further required “proof of the infliction of extreme physical pain no matter how long its duration.” Proposition 115, however, eliminated this language. Thus, for all homicides committed after June 6, 1990, there is no requirement under the torture-murder special circumstance
that the victim actually suffer pain.
(See
People v. Crittenden
(1994)
Although the trial court erred in deleting the actus reus requirement from the torture-murder special-circumstance instruction that it gave to the jury, we conclude the omission was harmless beyond a reasonable doubt. (See
“When an appellate court addresses a claim of jury misinstruction, it must assess the instructions as a whole, viewing the challenged instruction in context with other instructions, in order to determine if there was a reasonable likelihood the jury applied the challenged instruction in an impermissible manner. [Citations.]”
(People
v.
Wilson
(2008)
Removing an element of the crime from the jury’s consideration also will be deemed harmless when the defendant concedes or admits that element.
(People
v.
Flood
(1998)
Finally, at no time was it suggested to the jury that the torture-murder special circumstance could be established without first proving an act of torture. To the contrary, the prosecutor’s closing argument confirmed that the torture-murder special circumstance required the infliction of an act or acts of torture: “If you find a first degree murder, and only if you find a first degree murder, then you look to the two special circumstances, and that’s that the murder was intentional and done with either poison or
involved torture.
And I say involved torture. It doesn’t imply torturous acts killed the child but they are a cause. ... To find a special circumstance true, you have to find there was an intent to kill coupled with the poison or coupled with the torture. That’s the difference.” (See
People v. Wade
(1988)
In light of these circumstances, we are satisfied beyond a reasonable doubt that the trial court’s error in omitting the actus reus requirement from the torture-murder special-circumstance instruction did not contribute to the jury’s true finding on this issue.
(People v. Mayfield, supra,
Defendant claims the trial court failed to instruct the jury that it had to find unanimously beyond a reasonable doubt that defendant committed a particular act or acts of torture with the requisite intent, in order to find the torture-murder special circumstance true, and that this failure violated his federal constitutional right to a jury trial on each element of the charge.
29
In support of this argument, defendant invokes
Apprendi v. New Jersey
(2000)
As a general rule, when violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty.
(People
v.
Diedrich
(1982)
5. Jury’s mid-deliberation question regarding torture
Defendant claims he was denied his constitutional and statutory right to be present while the court and counsel discussed how to respond to the jury’s guilt-phase question as to whether starvation could “be construed as extreme physical pain under the legal definition of torture.” As discussed below, because defendant had no right to be present during these informal discussions, we conclude this claim is without merit. Defendant further argues that the court substantively erred in responding to the jury’s question. We conclude defendant waived this claim by consenting to the response given by the court to the inquiry. Even if the claim were not waived, we would conclude it lacks merit.
(a) Factual background
After the jury had been deliberating for several days, it sent the following question to the court: “Can starvation be construed as extreme physical pain
Approximately one hour after the court sent its answer to the jury, the jury alerted the court that it was unable to reach a verdict concerning the torture-murder special circumstance with respect to Michelle. The jury then returned its verdicts on the substantive crimes and the remaining special circumstance allegations, including a true finding on the torture-murder special circumstance with respect to defendant.
(b) Analysis
Defendant contends he was denied his constitutional and statutory right to be present while the court and counsel discussed in chambers how to respond to the jury’s question. “Broadly stated, a criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, the due process clause of the Fourteenth Amendment to the United States Constitution, section 15 of article I of the California Constitution, and sections 977 and 1043. [Citation.]”
(People v. Cole
(2004)
For example, under the Sixth Amendment, a criminal defendant has the right to be personally present if his or her appearance is necessary to prevent interference with the defendant’s opportunity for effective cross-examination. (Kent
ucky v. Stincer
(1987)
Similarly, under the California Constitution, a defendant has no right to be present at discussions that occur outside the jury’s presence, whether in chambers or at the bench, concerning questions of law or other matters that do not bear “ ‘ “a ‘ “ ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’ ” ’ ” ’ ”
(Cole, supra,
With these principles in mind, we conclude that defendant did not have a constitutional or statutory right to be personally present during the in-chambers discussion regarding how to respond to the jury’s question concerning whether “starvation [can] be construed as extreme physical pain under [the]
legal definition
of torture.” (Italics added.) The formulation of an appropriate response to this question was a legal matter, and, as noted, a defendant does not have the right to be personally present during proceedings, held in-chambers and outside of the jury’s presence, concerning questions of law.
(Waidla, supra,
Fisher v. Roe
(9th Cir. 2001)
We additionally note that defendant’s right to be present during the discussion regarding the jury’s question never was affirmatively asserted, nor was any objection posed to his absence. “[T]he fact that counsel did not think defendants] presence was necessary strongly indicates that [his] presence did not, in fact, bear ... a substantial relation” to the fullness of his opportunity to defend.
(People v. Cleveland
(2004)
Defendant also claims the trial court’s response to the jury’s question was erroneous, because starvation cannot constitute torture under section 190.2, subdivision (a)(18), as a matter of law and even if it could, the court should have instructed the jury that the prosecution had to prove beyond a reasonable doubt that the acts of starvation were capable of causing extreme physical pain. Any claim of error with respect to the trial court’s response to the jury’s question has been waived, however, because defense counsel both participated in the formulation of a response and affirmatively approved of the response ultimately given.
(People v. Rodrigues
(1994)
First, defendant argues that starvation cannot constitute torture as a matter of law, because it involves the passive withholding of nourishment instead of the affirmative infliction of external injury. In support of this argument, defendant quotes from
People
v.
Barrera
(1993)
By contrast, the argument now made by defendant was considered and rejected in
People
v.
Lewis
(2004)
Second, defendant asserts that the act of starvation cannot constitute torture as a matter of law, because it is incapable of causing extreme physical pain.
34
We further reject defendant’s contention that the trial court was required, in its response to the jury’s question, to instruct the jury that the prosecution had to prove beyond a reasonable doubt that the acts of starvation were capable of causing extreme physical pain. The jury properly was instructed concerning the prosecution’s burden of proof pursuant to CALJIC No. 2.90 (Presumption of Innocence—Reasonable Doubt—Burden of Proof)
35
and CALJIC
B. Penalty Phase Issues
1. Intracase proportionality review
Defendant argues that intracase proportionality review should result in the reversal or modification of his judgment of death. This court conducts intracase proportionality review to determine whether the penalty is disproportionate to the defendant’s personal culpability. (E.g.,
Riel, supra,
Defendant’s sentence of death in this case is not disproportionate to his personal culpability in light of the evidence that defendant intended to kill Arthur and that the torture inflicted by defendant on his five-year-old son—violently abusing the child and systematically starving him to the point of emaciation—was a concurrent cause of Arthur’s death. The evidence refutes defendant’s contention that the death sentence is disproportionate.
Defendant argues that, under the authority of section 1181, subdivision 7, 37 we should reduce his sentence to one of life imprisonment without the possibility of parole. As we previously have held, however, section 1181 does not confer upon this court the power to substitute its judgment as to choice of penalty for that of the trier of fact. We thus may not reduce a capital defendant’s sentence from death to life imprisonment, unless that sentence is contrary to the law or to the evidence, even if we were to disagree with the jury’s penalty determination. (E.g., People v. Hines, supra, 15 Cal.4th at pp. 1078-1080.) Rather, “[ajbsent prejudicial error or legal insufficiency of evidence, this court must uphold the jury’s verdict of death.” (Id. at p. 1080.)
3. Challenges to California’s death penalty scheme
Defendant raises a number of challenges to the constitutionality of California’s death penalty scheme, based upon the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. As defendant acknowledges, we have considered and rejected these contentions in prior cases. Defendant presents no persuasive reason in the present case to reconsider the conclusions we previously reached. We therefore adhere to those decisions as follows.
Capital punishment is not per se unconstitutional in all cases. (E.g.,
People v. Moon
(2005)
Defendant contends that the
Hovey
voir dire procedure
(Hovey
v.
Superior Court
(1980)
Section 190.2 is not impermissibly overbroad in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. Specifically, the various special circumstances are not so numerous as to fail to perform the constitutionally required narrowing function, and the special circumstances are not unduly expansive, either on their face' or as interpreted by this court. (E.g.,
People v. Jenkins, supra,
Section 190.3, factor (a), does not, on its face or as interpreted and applied, permit arbitrary and capricious imposition of a sentence of death in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments of the United States Constitution. (E.g.,
People v. Brasure
(2008)
Neither the federal nor the state Constitution requires that the penalty phase jury make
unanimous
findings concerning the particular aggravating circumstances, find all aggravating factors
beyond a reasonable doubt,
or find beyond a reasonable doubt that the aggravating factors
outweigh
the mitigating factors. (E.g.,
Fairbank, supra,
“The death penalty scheme is not unconstitutional because it fails to allocate the burden of proof—or establish a standard of proof—for finding the existence of an aggravating factor .... [Citations.]”
(People v. Friend
(2009)
Written or other specific findings by the jury regarding the aggravating factors are not constitutionally required. (E.g.,
People v. Friend, supra,
The trial court was not constitutionally required to instruct the jury as to which of the listed sentencing factors are aggravating, which are mitigating, and which could be either mitigating or aggravating, depending upon the jury’s appraisal of the evidence. (E.g.,
People v. Manriquez
(2005)
Because capital defendants are not similarly situated to noncapital defendants, California’s death penalty law does not deny capital defendants equal protection by providing certain procedural protections to noncapital defendants but not to capital defendants. (E.g.,
Cruz, supra,
We again reject the argument that California’s death penalty scheme is contrary to international norms of humanity and decency, and therefore violates the Eighth and Fourteenth Amendments of the United States Constitution.
(People
v.
Avila
(2009)
Prosecutorial discretion in deciding whether to seek the death penalty in a particular case does not render the law unconstitutional.
(Kraft, supra,
There is no constitutional requirement that California’s death penalty sentencing scheme provide for intercase proportionality review.
(Moon, supra,
Finally, we consistently have held that the delay between the time of judgment and the time of any execution that might occur does not render the death judgment unconstitutional. (E.g.,
People v. Lenart
(2004)
C. Asserted Substantial Cumulative Effect of Errors
Defendant contends the substantial cumulative effect of the asserted guilt and penalty phase errors requires reversal of his conviction and death sentence, even if none of the errors individually is prejudicial. Contrary to defendant’s contention, and as discussed above, this was not a close case concerning the issues of whether defendant caused the death of his son, or whether the homicide was a first degree murder or qualified for a special circumstance. We have found only a few nonprejudicial errors, and no prejudice where error has been assumed in other instances. In light of the extensive and overwhelming evidence of defendant’s guilt and the aggravating circumstances of his crime, we conclude that there was no substantial error and that the cumulative effect of any possible errors does not warrant reversal of the judgment. Contrary to defendant’s assertion, the length of the jury’s deliberations during the guilt phase (seven days) and the penalty phase (three days), and the circumstance that the jury requested that the testimony of certain witnesses be read back to it during these deliberations, does not compel a different conclusion.
For the forgoing reasons, the judgment is affirmed in its entirety.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., Moreno, J., and Corrigan, J., concurred.
Notes
All further statutory references are to the Penal Code, unless otherwise noted.
The jury found codefendant Michelle Jennings guilty of first degree murder, found not true the murder-by-poisoning special circumstance, but was unable to reach a verdict on the torture-murder special circumstance. The trial court declared a mistrial with regard to the latter special circumstance alleged as to Michelle, and later retried that matter without a jury based upon the transcript of the proceedings at the first trial. On retrial, the court found the torture-murder special circumstance not true, concluding that Michelle did not possess the requisite intent to kill. (See
People
v.
Jennings
(2003)
When asked whether she had ever previously witnessed either of the Jenningses strike Arthur, Grein recounted an incident in which defendant had Arthur stand in the front yard of their house holding a wooden beam over his head and. then struck Arthur when he dropped it.
At trial, two videotapes and an audiotape of the joint interview were played to the jury. Each juror also was given a copy of a transcript of the interview.
Dr. Sheridan explained that a healthy person normally stores a layer of subcutaneous fat beneath the skin and that Arthur “had essentially none, or extremely little.” He defined “wasting” as the process of a starving person’s body breaking down muscle for energy after the body fat has been depleted. He further explained that it normally takes a person’s stomach “a period of hours” after eating to be emptied of food.
Defendant admitted in the joint interview with the detectives that he personally had sutured a cut on Arthur’s head.
Dr. Sheridan explained that in the case of an infant, it requires “quite a bit of violence” to produce the amount of injury Arthur had suffered and that with regard to a child who is five years of age, “it would take a little bit more” because they would have good control of their neck and the neck muscles would resist the backward and forward motion of the head.
During the penalty phase of the trial, defendant presented his evidence and arguments prior to the prosecution’s.
The transcript of the joint interview of defendant and Michelle quotes Michelle as stating: “Martin had to go to the store and get some Sominex to put [Arthur] to sleep.” The People contend, and defendant does not dispute, that Michelle in fact stated, “Martin had me go to the store .. . .” The court has reviewed the videotape exhibit of the joint interview that was played for the jury, and it supports the People’s contention. That it was Michelle, and not defendant, who went to the store and bought the sleeping pills, furthermore, is consistent with the testimony of the detective who conducted the separate interview of Michelle. Additionally, although Michelle refers to the Sominex brand of sleeping pills in the interview, other evidence presented during the trial established that the pills actually were the Unisom brand.
Juror No. 1371 submitted a question that read in relevant part: “I would be interested to know what were the dosage instructions printed on the Unisom box used by the Jenningses.”
The trial court instructed the jury pursuant to CALJIC No. 3.00 (principals defined), CALJIC No. 3.01 (aiding and abetting defined), and CALJIC 3.04 (compelling another to commit a crime), as follows: “Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation, is equally guilty. Principals include: [ID (1) Those who directly and actively commit the act constituting the crime; or, [f] (2) Those who aid and abet the commission of the crime, [f] A person aids and abets the commission of a crime when he or she: (1) With knowledge of the unlawful purpose of the perpetrator and (2) With the intent or purpose of committing or encouraging or facilitating the commission of the crime and, (3) By act or advice aids, promotes, encourages or instigates the commission of the crime, [f] A person who aids and abets the commission of a crime need not be present at the scene of the crime. [1] Mere presence at the scene of a crime which does not itself assist the commission of the crime does
The trial court instructed the jury pursuant to CALJIC No. 3.41 concerning concurrent causation, as follows: “There may be more than one cause of the death. When the conduct of
It is well established that the principles of causation, as they apply to tort law, are equally applicable to criminal law. (See, e.g.,
People v. Roberts
(1992)
Although
Crawford
was decided after defendant’s trial and while his appeal was pending, the high court’s ruling applies retroactively to his case.
(People v. Cage
(2007)
Anticipating that we would find this claim forfeited, defendant contends it is still cognizable on appeal under the rubric of ineffective assistance of counsel, based upon his counsel’s failure to object. Defendant may not, however, transform a forfeited claim into a cognizable claim merely by asserting ineffective assistance of counsel.
(People
v.
Riel
(2000)
The jury in
Castille
was instructed pursuant to CALJIC No. 2.71.5, as follows: “ ‘If you should find from the evidence that there was an occasion when a defendant, one, under conditions which reasonably afforded him an opportunity to reply, two, failed to make a denial or made false, evasive or contradictory statements in the face of an accusation expressed directly to him or in his presence, charging him with the crime for which the defendant is now on trial or tending to connect him with its commission; three, he heard the accusation and understood its nature, then the circumstances of the silence and/or conduct on that occasion may be considered against him as indicating an admission that the accusation thus made is true. [j[] Evidence of an accusatory statement is not received for the purpose of proving its truth, but only as it supplies meaning to the silence and/or conduct of the accused in the face of it. Unless you find that the defendant’s silence and/or conduct at the time indicated an admission that the accusatory statement was true, you must entirely disregard the statement.’ ”
(Castille, supra,
129 Cal.App.4th at pp. 878-879, fn. 7.) In defendant’s case, the jury was not instructed pursuant to CALJIC No. 2.71.5. Defendant, however, did not request such an instruction, and the trial court was under no duty to so instruct absent a request from counsel.
(People
v.
Carter
(2003)
In
Jennings, supra,
Section 32, which defines the crime of being an accessory to a felony, provides: “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.” Prior to the 2005 adoption of the CALCRIM instructions, CALJIC No. 6.40 was the recommended instruction for cases in which a defendant was charged under section 32. The instruction provides: “Defendant is accused [in Countfs]]__] of having committed the crime of being an accessory to a felony in violation of section 32 of the Penal Code. []Q Every person who, after a felony has been committed, harbors, conceals, or aids a principal in that felony, with the specific intent that the principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that the principal has committed that felony or has been charged with that felony or convicted thereof, is guilty of the crime of accessory to a felony in violation of Penal Code section 32. [f] In order to prove this crime, each of the following elements must be proved: [J[] 1. A felony, namely,_was committed; Q] 2. Defendant harbored, concealed or aided a principal in that felony with the specific intent that the principal avoid or escape [arrest] [trial] [conviction or punishment]; and [f] 3. Defendant did so with knowledge that the principal [committed the felony] [was charged with having committed the felony] [was convicted of having committed the felony].”
Defendant acknowledges that his trial counsel did not request a jury instruction concerning accessory liability. Anticipating that we might find this claim of error to have been forfeited, defendant argues that the failure to request an accessory-liability instruction constituted ineffective assistance of counsel. We need not address defendant’s ineffective-assistance-of-counsel claim, in light of our conclusion that the trial court was not required to give a jury instruction concerning accessory liability. (Accord,
People
v.
Kraft
(2000)
Defendant additionally claims that CALJIC No. 3.40 should have been modified pursuant to
People
v.
Cervantes
(2001)
The jury also was instructed pursuant to CALJIC No. 8.58, concerning unlawfully accelerating death, as follows: “If a person unlawfully inflicts a physical injury upon another person and that injury is a cause of the latter’s death, that conduct constitutes an unlawful homicide even though the injury inflicted was not the only cause of the death. Moreover, that conduct constitutes unlawful homicide, even if: [][] 1. The person injured had been already weakened by disease, injury, physical condition or other cause; or [|] 2. It is probable that a person in sound physical condition injured in the same way would not have died from the injury; or [f] 3. It is probable that the injury only hastened the death of the injured person; or m 4. The injured person would have died soon thereafter from another cause or other causes.”
The cases cited by defendant do not support his contention that CALJIC No. 3.41 is a proper instruction
only
when given in conjunction with CALJIC No 3.40. In
Bland, supra,
28 Cal.4th at pages 334—335, for example, we held that the trial court had a duty to provide, on its own motion, a definitional instruction when using the term “proximate causation” in instructing the jury concerning sentence enhancements. In analyzing which proximate cause instruction should have been given, we concluded that CALJIC Nos. 3.40 and 3.41 both correctly define proximate causation and, because the evidence suggested more than one cause of death, the trial court should have given an instruction similar to CALJIC No. 3.41 along with an instruction such as CALJIC No. 3.40.
(Bland, supra,
28 Cal.4th at pp. 335-338; see also
People
v.
Autry
(1995)
We similarly have observed that the equivalents of CALJIC No. 3.40 and CALJIC No. 3.41 in the civil context, BAJI Nos. 3.75 and 3.76, “are
alternative
instructions that should not jointly be given in a single lawsuit.”
(Mitchell
v.
Gonzales
(1991)
CALJIC No. 4.45 provides: “When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] [neither] [criminal intent [n]or purpose,] [nor] [[criminal] negligence,] [he] [she] does not thereby commit a crime.” The related instruction on excusable homicide, CALJIC No. 5.00, more specifically provides: “The unintentional killing of a human being is excusable and not unlawful when (1) committed by accident and misfortune in the performance of a lawful act by lawful means and (2) where the person causing the death acted with that care and caution which would be exercised by an ordinarily careful and prudent individual under like circumstances.”
The jury was instructed concerning criminal negligence pursuant to CALJIC No. 3.36, as follows:' “Criminal negligence means conduct which is more than ordinary negligence. Ordinary negligence is the failure to exercise ordinary or reasonable care. HD Criminal negligence refers to negligent acts which are aggravated, reckless or flagrant and which are such a departure from what would be the conduct of an ordinarily prudent, careful person under the same circumstances as to be contrary to a proper regard for human life or to constitute indifference to the consequences of those acts. The facts must be such that the consequences of the negligent acts could reasonably have been foreseen, and it must appear that the death was not the result of inattention, mistaken judgment or misadventure but the natural and probable result of an aggravated, reckless or flagrantly negligent act.”
The jury was instructed concerning involuntary manslaughter, pursuant to CALJIC No. 8.45, as follows: “Every person who unlawfully kills a human being without malice aforethought and without an intent to kill is guilty of the crime of involuntary manslaughter .... HQ A killing is unlawful within the meaning of this instruction if it occurred: HQ 1. During the commission of an unlawful act not amounting to a felony which is dangerous to human life under the circumstances of its commission; or, HQ 2. In the commission of an act ordinarily lawful which involves a high degree of risk of death or great bodily harm without due caution and circumspection. HQ An unlawful act not amounting to a felony consists of a violation of corporal injury to a child, Penal Code Section 273(d). HQ The commission of an unlawful act without due caution and circumspection would necessarily be an act that was dangerous to human life in its commission, [f] In order to prove this crime, each of the following elements must be proved: HQ L A human being was killed; and, 2. The killing was unlawful.”
Defense counsel acquiesced in the trial court’s deletion of element number three from CALJIC No. 8.81.18. Because the alleged instructional error involves the omission of an element of the special circumstance, however, an objection or request for clarification is not a prerequisite to preserving the issue on appeal.
(Catlin, supra,
This change in the law is accurately reflected in the CALCRIM instruction concerning the torture-murder special circumstance, CALCRIM No. 733, which provides in relevant part: “To prove that this special circumstance is true, the People must prove that: [ft] 1. The defendant intended to kill_<insert name of decedent>; [ft] 2. The defendant also intended to inflict extreme physical pain and suffering on_<insert name ofdecedent> while that person was still alive; [ft] 3. The defendant intended to inflict such pain and suffering on_<insert name of decedent> for the calculated purpose of revenge, extortion, persuasion, or any other sadistic reason; [ft] AND [ft] Alternative A—on or after June 6, 1990> [4. The defendant did an act involving the infliction of extreme physical pain and suffering on_<insert name of decedent>.\ [ft] Alternative B—before June 6, 1990> [4. The defendant in fact inflicted extreme physical pain on_<insert name of decedent>.\ [ft] There is no requirement that the person killed be aware of the pain.”
Defendant does not identify the unanimity instruction that he asserts should have been given. CALJIC No. 17.01, the standard CALJIC unanimity instruction, provides in relevant part: “The defendant is accused of having committed the crime of__[in Count_]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] . . . upon which a conviction [on Count __] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] . . . committed any one or more of the [acts] .... However, in order to return a verdict of guilty [to Count 1. all jurors must agree that [he] . . . committed the same [act] [or] . . . [acts] .... It is not necessary that the particular [act] . . . agreed upon be stated in your verdict.”
We previously have assumed, without deciding, that the unanimity requirement applies to special circumstance findings. (See, e.g.,
People v. Davis
(2005)
Section 977, subdivision (b)(1), provides in pertinent part: “In all cases in which a felony is charged, the accused shall be present at the arraignment, at the time of plea, during the preliminary hearing, during those portions of the trial when evidence is taken before the trier of fact, and at the time of the imposition of sentence. The accused shall be personally present at all other proceedings unless he or she shall, with leave of court, execute in open court, a written waiver of his or her right to be personally present. . . .”
Section 1043, subdivision (a), provides: “Except as otherwise provided in this section, the defendant in a felony case shall be personally present at the trial.”
Rather, the issue addressed by the court in
Barrera
was whether section 206, defining the crime of torture, was vague and overbroad.
(Barrera, supra,
14 Cal.App.4th at pp. 1562-1564.) In rejecting this challenge, the Court of Appeal concluded that section 206 embodied the long-standing, judicially recognized meaning of torture set forth in
People v. Tubby
(1949)
In support of the argument that starvation is incapable of causing extreme physical pain, defendant refers to certain medical research, accounts of wilderness survival, accounts of war survival, and recorded observations of individuals involved in hunger strikes. The studies and
The trial court instructed the jury pursuant to CALJIC No. 2.90, as follows: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his or her guilt is satisfactorily shown, he or she is entitled to a
The trial court instructed the jury pursuant to CALJIC No. 8.80.1, in pertinent part, as follows: “The People have the burden of proving the truth of the special circumstances. If you have a reasonable doubt as to whether a special circumstance is true, you must find it to be not true.”
Section 1181, subdivision 7, provides: “When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial.. .[][].. . []□_.. When the verdict or finding is contrary to law or evidence, but in any case wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed . . . .”
Anticipating we would find this claim forfeited, defendant contends it is still cognizable on appeal under the rubric of ineffective assistance of counsel based upon his attorney’s failure to object. As noted, defendant may not transform a forfeited claim into a cognizable claim merely by asserting ineffective assistance of counsel.
(Riel, supra,
22 Cal.4th at pp. 1202-1203 [noting that a claim of ineffective assistance of counsel is very different from a claim based upon the underlying forfeited error].) In any event, “[w]e need not address this contention because even assuming for argument the
[Iiovey]
issue is properly before us, we find no error____”
(People
v.
Gurule
(2002)