THE PEOPLE, Plaintiff and Respondent, v. WILLIE DARNELL JOHNSON, Defendant and Appellant.
Nos. S004778, S012228. Crim. No. 26412
Supreme Court of California
Nov. 30, 1992.
1183
THE PEOPLE, Plaintiff and Respondent, v. WILLIE DARNELL JOHNSON, Defendant and Appellant.
PANELLI, J.—A jury convicted Willie Darnell Johnson of the murder of Mrs. Willie Womble (
We affirm the judgment in its entirety.
We dismiss defendant‘s related appeal from a postjudgment order of the trial court (No. 12228).
GUILT PHASE FACTS
A. Prosecution Case
On July 1, 1986, Angela Womble lived with her mother, Mrs. Willie Womble, and her 16-month-old son, Terrance (Tee Tee), at 111 South 42nd Street in Richmond. Tee Tee‘s father was Angela‘s former boyfriend, Terrance (Tee) Henderson. Henderson was reputed to be a drug dealer.
While Angela was Henderson‘s girlfriend, she had held sums of money for him. After their relationship ended in August 1984, she never held money for him.
Angela cashed a paycheck from her job at the Social Security Administration on July 1, 1986. That evening, she set aside cash to pay bills, placing the appropriate amounts in payment envelopes which she put on a curio shelf in her kitchen.
About 9:45 or 10 p.m., Angela heard a knock at the front door. Her mother was talking on the telephone, and Angela went to the door to ask who was there. She heard someone answer, “Ann, this is Allie. Come take me to the gas station.” Angela again asked, “Who?” The man repeated himself. She recognized the voice as that of Allen Duchine, a friend of Terrance Henderson.
Angela sat on the floor for one or two minutes, looking at the men. At trial, she described the lighting conditions in her house at that moment. Although the porch light was off, lights were on in the breakfast nook outside the kitchen and in the bathroom. There was also a street light between the Womble house and the next house to the north. She did not remember whether lights in the kitchen or the living room were turned on.
At trial, Angela described Duchine as wearing jeans, a baseball cap, and a dark-colored jacket. Duchine was carrying a rifle about 22 1/2 inches in length. The other man, whom she later identified as defendant, was wearing a white T-shirt and jacket and a shiny stud earring. He was carrying a shotgun about 20 inches in length. The barrel of Duchine‘s rifle was about the size of a dime; that of defendant‘s shotgun about the size of a 50-cent piece.
After Angela was knocked to the ground, her mother ran to the living room and began to hit defendant, trying to force him to let go of his gun and demanding that he get out of her house. He pushed Mrs. Womble to the ground with his gun. Angela told her mother to stop and sit down.
Duchine demanded that Angela give him her money. She got up and went to the curio shelf, took the money out of the payment envelopes, and handed it to Duchine. Mrs. Womble remained on the living room floor with defendant standing over her.
Angela returned to the living room and sat down. She was able to see defendant clearly. Duchine ordered her to give him all the money. Angela told him she had given him what she had, but Duchine demanded, “Where‘s Tee‘s money?” Angela said she did not have Tee‘s money. Duchine accused her of lying and again asked where the money was.
Angela, carrying Tee Tee, and Duchine went to Angela‘s mother‘s bedroom. Duchine rummaged through the room, looking for money. Angela left the bedroom to return to the living room. Duchine followed her. In the hallway outside the bedroom, he raised the stock of his rifle and knocked the cover from the hole leading to the attic.
Twenty seconds to a minute after Angela returned to the living room, Duchine also returned. Angela did not see where he had gone in the interim,
Defendant pumped the shotgun and fired it into the ceiling. Angela urged her mother to lie down. Defendant again fired up at the ceiling, then pointed his weapon down and fired into the back of Mrs. Womble‘s head. Angela testified that he fired a second time at Mrs. Womble.2
Defendant and Duchine then pointed their weapons at Angela, who also had lain down on the floor. She tried to duck, and felt she had been shot. Ten or fifteen seconds later, defendant and Duchine left the house, closing the front door behind them.
Angela crawled to the front door, but could not open it. Tee Tee pulled the door open for her, and Angela screamed for help. Several neighbors responded. Angela told one of her neighbors she had been shot by Duchine and another man. A police officer arrived and asked Angela who had shot her. She named Duchine and described him, and said she did not know the other man, but gave a brief description of him.
Various neighbors of the Wombles testified to their observations on the night of the crimes. Willa Mae Addison, whose house faced the Womble residence, testified that while talking with her daughter on the telephone on the evening of July 1, 1986, she heard two sounds that she initially thought were firecrackers going off. Then she heard a third sound. Dropping the telephone, she looked out her bedroom window and saw two men emerging from the Womble residence. They ran along the side of the house into an alley, got into a white or cream-colored pickup truck, and drove away.
On hearing the telephone drop, Ms. Addison‘s daughter, Willie Marie Juniel, drove to her mother‘s house. Hearing Angela‘s cries for help, she stopped at the Womble residence to aid her. Ms. Juniel testified that there was sufficient light to enable her to see furniture in the living room. Darlyne Robinson, who also attempted to assist Angela, testified it was light enough in the Womble living room for her to see Tee Tee, who was standing beside the north wall, crying.
Richmond Police Officers deVille and Martin arrived at the Womble house about 10:10 p.m. According to Officer deVille, the living room was well lit and he had no difficulty seeing items inside it. Officers Simmons and Imrie arrived at the Womble residence soon after deVille and Martin. Angela told
Inside the house, Officers Simmons and Imrie could see well enough to make observations without using a flashlight or additional lighting. They found physical evidence including three expended shotgun shell casings beside Mrs. Womble‘s foot, bullet holes in the north wall and ceiling, and bloodstains on the northeast curtain of the living room.
Evidence showed that defendant and Duchine were together on the day of the crimes. Ketcia Hawkins, a friend of Angela Womble who was acquainted with defendant and Duchine, testified she saw the two men between 5 and 6 p.m. in the Easter Hill neighborhood in Richmond. Later that night, Hawkins received a telephone call from Angela‘s cousin, Bobby Jones, who told her about the crime. Between 10:30 and 11 p.m., Hawkins in turn called Zina Sims, defendant‘s cousin. Hawkins testified that while Hawkins remained on the line Sims dialed another party, using three-way calling. Hawkins recognized the third party‘s voice as that of Renee Morgan, defendant‘s sister. After Hawkins spoke with Morgan, Duchine came on the line. While Duchine was on the line, defendant also came on the line.
Zina Sims testified she received a telephone call from Ketcia Hawkins between 10 and 10:30 p.m. but denied placing any calls while Hawkins was on the line. Nonetheless, she testified that after talking with Hawkins, she called defendant‘s mother‘s house and spoke briefly with defendant‘s sister Renee Morgan. Later, Renee telephoned Sims. Both defendant and Duchine spoke with Sims during the latter call.
Richmond Detective Michael Shipp went to the house of defendant‘s mother, Valine Duckett, about 6 p.m. on July 2. He saw a tan pickup truck parked on the property. The truck was registered to Ms. Duckett.
Later on the evening of July 2, Detective Shipp interviewed Angela Womble at John Muir Hospital. She had difficulty breathing and was connected to an oxygen machine. Detective Shipp showed Angela two photographic lineups, each consisting of six photographs. In the first lineup, Angela positively identified Duchine‘s photograph. In the second, Angela identified defendant‘s photograph, saying she was not positive, but he looked like the person who shot her mother. Angela stated that friends and relatives had told her Duchine‘s accomplice was “Willie Johnson.” She described him as dark-skinned, with a round head, a short haircut, and an earring in one ear. Detective Shipp tape-recorded Angela‘s July 2 interview, which was generally consistent with her testimony.
On July 17, Detective Shipp learned that defendant was in custody in Martinez. The following day, he arranged for Angela Womble to view a live lineup. Counsel was appointed to represent defendant at the lineup. Defendant was advised he did not have a right to refuse to participate in a lineup and his refusal could be used in evidence against him. Nonetheless, defendant refused to participate.
On July 22, Detective Shipp showed Angela another photographic lineup that included a picture of defendant taken more recently than the one shown her on July 2. This time she positively identified defendant‘s photograph.
Physical evidence was in most respects consistent with Angela‘s testimony. Bruce Fukayama, a criminalist, testified that he examined the shotgun shell casings, pellets, and wadding found at the scene and the lead projectile fragment removed from Angela‘s arm. He concluded that the lead fragment was from a bullet rather than a shotgun shell.3 Dr. Louis E. Daugherty performed an autopsy on the body of Mrs. Womble. He testified she died of a shotgun wound to the head. Evidence indicated that four shotgun rounds in all had been fired.
No physical evidence linked defendant with the crime.
B. Defense Case
The defense was misidentification. Dr. Elizabeth Loftus, a professor of psychology, testified about factors affecting human perception, memory, and identification. She testified that there are three stages of memory: acquisition, retention, and retrieval. An evaluation of a witness‘s acquisition of a visual memory must consider lighting conditions, distance of the witness from the object seen, and the witness‘s level of stress or fright. Under high
Dr. Loftus described a phenomenon known as “weapon focus“: when a crime involving a weapon occurs, the weapon‘s presence can capture a great deal of the witness‘s attention, which can lead to reduced ability to remember and accurately describe other details.
Dr. Loftus noted there is a tendency for a witness to overestimate the duration of relatively short events, especially complex ones, and women tend to overestimate more than do men.
According to the witness, when it comes to retention of memory, the longer the interval of time that passes before the witness tries to recall information from memory, the less accurate the memory. Moreover, what occurs in the retention interval is crucial: if the witness is exposed to new, suggestive, or confirming information about the event, the greater the potential for contamination of the witness‘s memory.
Dr. Loftus testified that studies have demonstrated there is little or no correlation between the witness‘s confidence in his or her memory, and its accuracy.
JURY SELECTION ISSUES
A. Denial of Defense Challenges for Cause to Three Prospective Jurors
During jury selection, defendant challenged three prospective jurors for cause. The trial court denied the challenges, and defendant later used peremptory challenges to prevent those persons from serving on the jury. When the jury was finally seated, defendant had five peremptory challenges remaining. [REDACTED] He now urges that denial of his challenges for cause was reversible error under the federal and state Constitutions and former section 1073. (Wainwright v. Witt (1985) 469 U.S. 412, 423-424;
In order to obtain relief on appeal for denial of a challenge for cause, defendant must show that the ruling affected his right to a fair and impartial jury. Because defendant exercised peremptory challenges to remove the three prospective jurors whom he had unsuccessfully challenged for cause, none of the three compromised the impartiality of his jury. Therefore, he
Defendant argues that the loss of the peremptory challenges he used to excuse the three prospective jurors prejudiced him. We cannot agree. Defendant had five peremptory challenges remaining when he accepted the jury. He expressed no dissatisfaction with the jurors selected and did not request additional peremptories. (See People v. Bittaker (1989) 48 Cal.3d 1046, 1088.) Defendant‘s belated recitation of dissatisfaction with the jury is speculative. Consequently, he fails to demonstrate that he was harmed by the denial of his challenges for cause. (People v. Gordon (1990) 50 Cal.3d 1223, 1247-1248.)
[REDACTED] Defendant contends he was justified in not exhausting his peremptory challenges due to the method of jury selection employed in his case. The parties stipulated to the use of the “struck system” instead of the more standard “jury box” method. Under the version of the struck system used in this case, prospective jurors filled out questionnaires and were individually questioned and challenged for cause. Next, prospective jurors were randomly assigned numbers establishing the order in which they would be further questioned and called to sit as jurors. They then were questioned in groups of 16 and subjected to challenges for cause. Finally, the remaining prospective jurors were seated in the jury box in the previously assigned order and the parties exercised their peremptory challenges. A prospective juror who was excused was then replaced with the next person on the list. Thus, based on earlier voir dire the parties were familiar with the attitudes of each member of the panel when they were called upon to exercise their peremptory challenges.
Defendant contends he should not have been required to exhaust his peremptory challenges because he knew, when the 12th juror was chosen, that there were at least 5 remaining people on the panel who were objectionable to him. He does not persuade us. Whichever method of jury selection is used, exhaustion of peremptory challenges is a prerequisite to a claim of error in the denial of a challenge for cause. (People v. Morris (1991) 53 Cal.3d 152, 185 (Morris).) The difference between the struck and jury box systems bears no relationship to the requirement that a defendant exercise peremptory challenges to exclude jurors he believes to be biased against him. “Regardless of the system of jury
Defendant also contends Morris and Ashmus are factually distinguishable from this case. In essence, he argues he had fewer peremptory challenges remaining and so was more disadvantaged vis-à-vis the prosecution than the defendant in either of those cases. He cites no authority for the point, and we assign it no weight.
Defendant also makes much of the fact that he exercised all four of the peremptory challenges allotted him in the selection of the four alternate jurors. As defendant sees it, this—together with the fact that one prospective juror whom defendant had unsuccessfully challenged for cause was third in line to be summoned to the jury box after the alternates were sworn—meant that defendant knew he would be unable to improve the composition of the jury with the five challenges remaining to him. However, had he exhausted his five remaining peremptories in the selection of regular jurors, presumably he would have been granted an additional four challenges for the selection of alternates. It would be sheer speculation to assume that had defendant exhausted his peremptory challenges and made use of the additional challenges granted him in the selection of alternates, he would have been forced to trial with a jury unsatisfactory to him.
B. Denial of Defendant‘s Motion to Have His Guilt or Innocence Decided by Non-Death-Qualified Jury
Before the start of voir dire, defense counsel requested that prospective jurors considered for the guilt phase of the trial not be disqualified for opposition to the death penalty. Defense counsel asked that two juries be selected: a non-death-qualified jury to decide his guilt or innocence, and a death-qualified jury to determine penalty, if necessary. Alternatively, counsel proposed to select 12 or more alternate jurors and to postpone death-qualification until after the guilt phase, at which time a death-qualified jury could be selected for the penalty phase by substituting death-qualified alternates for regular jurors who could be excluded for their views against the death penalty. In support of the motion, counsel argued that death-qualification denies the defendant a jury drawn from a representative cross-section of the community. He also argued that such a jury is conviction-prone and focuses unduly on death as an issue rather than guilt or innocence.
Defendant contends the court erred. He concedes that both this court and the United States Supreme Court have rejected various constitutional challenges to the practices followed here. (Lockhart v. McCree (1986) 476 U.S. 162, 174-177; People v. Pensinger (1991) 52 Cal.3d 1210, 1254; Hovey v. Superior Court, supra, 28 Cal.3d at p. 68.) We decline his invitation to reconsider our earlier decisions.
Raising for the first time an Eighth Amendment challenge, he observes that neither we nor the high court has specifically considered the propriety of death-qualification in light of the constitutional interest in heightened reliability of guilt and penalty phase determinations in capital cases. Insofar as our research enables us to say, his observation is correct. However, his Eighth Amendment claim appears to be merely a restatement of his Sixth Amendment claims, and as such we find it to be without merit.
Defendant also urges us to exercise our supervisory authority over California criminal procedure and disapprove the practice of questioning prospective jurors before the guilt phase on their attitudes toward sentencing choices available at a penalty phase. He does not persuade us to do so.
GUILT PHASE ISSUES
A. Angela Womble‘s Pretrial and In-court Identifications
1. Factual Background
Both before and during the preliminary hearing, as well as at trial, defendant sought to exclude Angela Womble‘s pretrial and in-court identifications of him, arguing they were the product of improper, suggestive procedures. The trial court conducted an evidentiary hearing on the issue and considered the evidence adduced at the pre-preliminary hearing motion, testimony given at the preliminary hearing, and transcripts of Angela Womble‘s statements to Detective Shipp during the photo lineups on July 2 and July 22. The trial court ruled the identification testimony admissible. Defendant contends the trial court erred. To assess his claim, we summarize the evidence the trial court reviewed.
Before the July 2 photographic lineup, an investigator received an anonymous telephone call stating that Willie Johnson had been with Allen
Before viewing the second lineup, containing defendant‘s photograph, Angela described the other perpetrator as a “young man, dark-skinned, short haircut, with the earring in one ear.” She also said he was tall. Angela stated she did not know the man, but friends and family had told her he was Willie Johnson. When Detective Shipp showed her the second lineup, Angela examined the photographs for 11 seconds, then selected defendant‘s picture, saying “His face looks familiar . . . [b]ut see, it was dark.” She asked if the person in the photograph was “buff“;4 Shipp said he could not answer that. Angela acknowledged she was not positive about the identification, but the photograph “look[ed] like him.” The person in the photograph, she said, had the same facial features, round head, and forehead structure.
On July 18, Detective Shipp brought Angela to the county jail to view a live lineup. On the way there, Shipp told her they had a suspect in custody; at the preliminary hearing he testified he told her Willie Johnson was in custody, but at trial he could not remember using that name. They entered the jail through the lobby and did not go into any portion of the building where inmates were housed. No lineup was held because defendant refused to participate, despite being told an attorney had been appointed to represent him.
On July 22, Detective Shipp assembled another photographic lineup, using three of the photographs he had used in the July 2 lineup and a more recent photograph of defendant. Two photographs of men not included in the earlier lineup were also used in the July 22 lineup. Detective Shipp testified to the effect that his aim in reusing three of the photographs from the earlier lineup was to avoid the prejudice inherent in defendant being the only person depicted in both lineups. Defendant was dressed in jail clothes in the newer photograph, but his photograph showed him only from the chest upward so that it appeared he was wearing a gold shirt over a T-shirt. The other persons depicted in the lineup photos were not wearing jail clothing. Angela was unaware defendant was wearing jail clothes in the photograph. As with the
Angela used the name “Willie” in talking about defendant, indicating she had heard the name from family and friends. At trial, Angela testified that someone—she could not remember who—had told her Willie Johnson was responsible because he was running with Allen Duchine. She testified, however, that no one described Willie Johnson or told her anything else about him. She did not recognize any of the photographs from the first lineup as being in the lineup she examined on July 22. She identified defendant‘s photograph because she remembered him as the person standing over her with the shotgun.
In December 1986, five months after the crime, Angela met with Detective Shipp and the prosecutor. Earlier she had said the gunman wore a shiny earring in his right ear. However, during their December conversation, while facing the prosecutor she pointed to his left ear. At the preliminary hearing, Angela testified she had no doubt it was in the left ear that the gunman wore his earring. Defendant‘s left ear, not his right, was pierced.
At the conclusion of the evidentiary hearing, the trial court found that defendant had failed to present evidence showing that “the photographic lineup was so impermissibly suggestive as to give rise to a likelihood of . . . irreparable misidentification.” (See People v. Floyd (1970) 1 Cal.3d 694, 712.) Accordingly, the court admitted Angela‘s pretrial identifications of defendant in the photo lineups. Angela also identified defendant as the second gunman at trial, based on her independent recollection.
2. Propriety of Admission of Identification Evidence
[REDACTED] Defendant renews his contention that Angela Womble‘s identifications were irreparably tainted by suggestive information and by undue emphasis on defendant‘s photograph in the July 22 lineup. Specifically, he objects to the fact that defendant was the only person depicted in the photo lineup who was wearing jail clothing and contends that there was an inadequate number of plausible suspects, and that defendant was the only person among the plausible choices who had been in the prior lineup. He also notes that before and after Angela saw the first photo lineup, she was told by family and friends that the second gunman was Willie Johnson,
In People v. Gordon, supra, 50 Cal.3d at page 1242, we articulated the principles that determine whether the admission of identification evidence violates a defendant‘s right to due process. [REDACTED] Constitutional reliability, we said, depends on (1) whether the identification procedure was unduly suggestive and unnecessary (Manson v. Brathwaite (1977) 432 U.S. 98, 104-107); and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the criminal at the time of the crime, the witness‘s degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. (People v. Gordon, supra, 50 Cal.3d at p. 1242, citing factors enumerated in Neil v. Biggers (1972) 409 U.S. 188, 199.) “If, and only if, the answer to the first question is yes and the answer to the second question is no, is the identification constitutionally unreliable.” (People v. Gordon, supra, 50 Cal.3d at p. 1242.)5
“It is unsettled whether suggestiveness is a question of fact (or a predominantly factual mixed question) and, as such, subject to deferential review on appeal, or a question of law (or a predominantly legal mixed question) and, as such, subject to review de novo.” (People v. Gordon, supra, 50 Cal.3d at p. 1242.) Defendant disagrees, contending the United States Supreme Court in Neil v. Biggers, supra, 409 U.S. at p. 201 resolved the issue by employing a de novo standard of review. Defendant overstates his
All of the photographs were of Black males, generally of the same age, complexion, and build, and generally resembling each other. Thus, defendant‘s photograph did not stand out, and the identification procedure was sufficiently neutral. (See People v. Gordon, supra, 50 Cal.3d at p. 1243; People v. St. Germain (1982) 138 Cal.App.3d 507, 520.) Minor differences in facial hair among the participants did not make the lineup suggestive. (See People v. Holt (1972) 28 Cal.App.3d 343, 350.) Nor did differences in background color and image size among the various photographs render the lineup impermissibly suggestive. (See, id. at pp. 349-350.) We cannot agree with defendant that placement of the three “new” photographs in the top row of the display and the three “old” photographs—including the more recent photograph of defendant himself—in the bottom row created two suggestive “subsets” of photos. As the Court of Appeal observed in People v. De Angelis (1979) 97 Cal.App.3d 837, no matter where in the array a defendant‘s photograph is placed, he can argue that its position is suggestive. (Id. at p. 841.)
Contrary to defendant‘s view, the use of photographs from the earlier lineup did not reduce the July 22 lineup to the functional equivalent of a three-person array. Such a measure was, as Detective Shipp reasoned, a reasonable way to avoid suggesting to the witness that defendant was the only person seriously suspected. Defendant complains that even if it was not inappropriate to reuse photos of other men from the first lineup in addition to defendant, Detective Shipp should have used “new” photos of those men as he did of defendant and should not have simply reused the same photos. We decline to impose such a requirement. We note that Angela testified at the preliminary hearing that she did not recognize the three photographs from the first lineup when they were shown her during the second lineup.
[REDACTED] The fact that defendant was the only person depicted in jail clothing likewise was not unduly suggestive under the circumstances present here. There was no evidence that Angela knew what jail clothing looked like when
Defendant also contends that the identification procedure was impermissibly suggestive because Detective Shipp improperly confirmed Angela‘s tentative identification by telling her, en route to the aborted July 18 lineup, that Willie Johnson was in custody. Defendant reasons she must have assumed that she had selected Willie Johnson‘s photograph on July 2 and that Willie Johnson would be in the July 22 photo lineup. This contention fails because Angela did not know, and never before the crime had seen, Willie Johnson. No names were visible on the photographs she viewed during either lineup. No one other than Detective Shipp ever showed her photographs of suspects in the case. No one described Willie Johnson to her. Knowing the name “Willie Johnson” and that “Willie Johnson” was in custody could not have assisted her in selecting the photograph of the second gunman. Defendant contends that Angela‘s greater confidence in her identification after the second lineup reflects Detective Shipp‘s improper confirmation. It more likely stems from the fact that a more recent photograph of defendant was used. None of Detective Shipp‘s communications with Angela, in our view, constituted improper confirmation of her selection.
Defendant also suggests Angela must have understood that she was expected to make a positive identification from the photo lineup on July 22. The admonition, read by Detective Shipp and acknowledged by Angela, belies the contention.
We thus conclude that the identification procedures employed in this case were not unnecessarily suggestive. Accordingly, we need not go on to the second step of the Brathwaite test to determine whether the identification itself was nevertheless reliable under the totality of the circumstances.
B. Admission of “Prior Inconsistent Statement” by Angela Womble
[REDACTED] On July 22, 1986, Angela Womble selected defendant‘s photograph out of a photo lineup, stating she was positive it depicted the person who killed her mother. At trial, defense counsel asked Angela on cross-examination whether she had identified the July 22 photograph “by name.” She replied, “I might have, I don‘t remember. I remember saying this is him, and it wasn‘t by name, it was by his face.” On redirect examination, the
Based on these responses, the prosecutor moved to admit the following preliminary hearing testimony into evidence as an inconsistent statement:6 “[DEFENSE COUNSEL.] When you looked at the second set of photographs, did you feel that the person you identified was the proper person because he looked like a person in the photographs you saw in the first set of photographs? [[] [ANGELA WOMBLE.] No. I remembered him as the one standing over me with the 12 gauge shotgun, that‘s what I remembered.”
Over a defense objection, the trial court allowed the preliminary hearing testimony to be read to the jury. This, defendant contends, was error.
[REDACTED] A statement by a witness that is inconsistent with his or her trial testimony is admissible to establish the truth of the matter asserted in the statement under the conditions set forth in Evidence Code sections 1235 and 770.7 The “fundamental requirement” of section 1235 is that the statement in fact be inconsistent with the witness‘s trial testimony. (People v. Sam (1969) 71 Cal.2d 194, 210.) Normally, the testimony of a witness that he or she does not remember an event is not inconsistent with that witness‘s prior statement describing the event. (People v. Green (1971) 3 Cal.3d 981, 988.) However, courts do not apply this rule mechanically. “Inconsistency in effect, rather than contradiction in express terms, is the test for admitting a witness’ prior statement [citation], and the same principle governs the case of the forgetful witness.” (Id.) When a witness‘s claim of lack of memory amounts to deliberate evasion, inconsistency is implied. (Id. at pp. 988-989.) As long as there is a reasonable basis in the record for concluding that the
witness‘s “I don‘t remember” statements are evasive and untruthful, admission of his or her prior statements is proper. (People v. O‘Quinn (1980) 109 Cal.App.3d 219, 225.)
[REDACTED] Our examination of the record discloses no reasonable basis for a belief that the testimony Angela gave at trial was inconsistent with that which she gave at the preliminary hearing. The statement she made on cross-examination (“I might have, I don‘t remember. I remember saying this is him, and it wasn‘t by name, it was by his face.“) is, despite her momentary expression of uncertainty, essentially to the same effect as her prior testimony: that she identified defendant based on her memory of his appearance as he was committing his crimes. The most one can say about the response she gave on redirect examination (that she identified “Willie Johnson” in the photo lineup) is that it was somewhat ambiguous, not that it was necessarily inconsistent with her prior statement or evasive in any way. Admission of Angela Womble‘s preliminary hearing testimony was, therefore, erroneous.
The error was, however, harmless despite the prosecutor‘s reference to the testimony in his closing argument. Angela identified defendant as the second gunman at trial based on her independent recollection. She also testified that when she identified defendant‘s photographs on July 2 and July 22, she had an independent recollection of what the man who shot her mother looked like. She testified that she never saw any photographs of “Willie Johnson” apart from the ones shown her by Detective Shipp, she did not see any names on the lineup photographs, and no one described Willie Johnson to her. Thus, it is not reasonably probable that admission of the preliminary hearing testimony affected the verdict. (People v. Watson (1956) 46 Cal.2d 818, 836; see People v. Andrews (1989) 49 Cal.3d 200, 211.) Because Angela Womble was subject to cross-examination both at the preliminary hearing and at trial, defendant was at no time denied his constitutional right of confrontation. (See California v. Green (1970) 399 U.S. 149, 155-156.) His other claims of state and federal constitutional error likewise fail.
C. Defendant‘s Refusal to Participate in Lineup
1. Factual Background
On July 17, 1986, Detective Shipp advised defendant, who was in custody, of his Miranda rights,8 and informed him he had been arrested on suspicion of murder. Defendant said he understood his rights and declined to talk to Shipp.
Meanwhile, Attorney Nancy Kramer, who had been appointed to represent defendant at the lineup, had arrived at the jail on the morning of July 18 and sought to speak with him. She was told there was a problem in locating him and was asked to wait while officials determined where he was being housed. Kramer left the jail at noon without having seen defendant. She returned between 1 and 1:30 p.m. and waited in a holding room. She was informed that defendant had been placed in a different module in protective custody, which was why he had not been located earlier. About 30 minutes later, she was told that defendant would not speak with her and was refusing to participate in the lineup.
Detective Shipp and Angela Womble arrived at the county jail about 2:56 p.m. In the jail lobby, Shipp spoke with Kramer and Padilla regarding defendant‘s refusal to participate in the lineup. Shipp and an investigator went to defendant‘s cell. Shipp advised defendant that he had no right to refuse to stand in a lineup and that if he refused, the district attorney could comment about the refusal at trial. Defendant asked, “Well, who do I have standing there with me?” Shipp explained that an attorney had been appointed for him and would be present when the persons for the lineup were selected. Shipp asked defendant if he still refused. Defendant said he did.
Kramer left the jail without having communicated with defendant.
Defendant objected to introduction of evidence of his refusal to stand in a lineup. After holding an evidentiary hearing, the trial court overruled the objection. Defendant contends the trial court erred.
2. Admission of Evidence of Refusal
[REDACTED] Defendant urges that in the circumstances of this case, admission of his refusal to stand in a lineup denied him due process and violated his privilege against self-incrimination and his rights to counsel and to protection against cruel and unusual punishment. (
The privilege against self-incrimination extends to compelled testimonial or communicative disclosures by an accused, but not to “real” or “physical”
[REDACTED] Defendant argues that evidence of his refusal to participate in the lineup nonetheless should have been suppressed because he was denied his right to counsel during a critical stage of the prosecution against him. He bases this argument on the fact that jail authorities failed to afford him an opportunity to meet with Attorney Nancy Kramer when she arrived at the jail asking to see him. He relies on People v. Bustamante (1981) 30 Cal.3d 88 (Bustamante), in which we held that the California Constitution affords a suspect a right to counsel at a preindictment lineup (id. at p. 102), and People v. Houston (1986) 42 Cal.3d 595 (Houston), in which we held that, under the right to counsel afforded by the California Constitution, a suspect in custody must be informed promptly of his attorney‘s arrival at the detention facility, and must then be allowed to see the attorney if he so chooses before questioning begins or resumes (id. at p. 610).
Bustamante, supra, 30 Cal.3d 88, does not assist defendant, inasmuch as counsel was appointed for him in advance of the lineup. Nor does Houston, supra, 42 Cal.3d 595, benefit defendant, since defendant was not subjected to questioning. (See People v. Mattson (1990) 50 Cal.3d 826, 868-869 [Houston rule is limited to the facts of that case.].) In any event, the exclusionary rules in both Bustamante and Houston were abrogated by the passage of Proposition 8, an initiative adopted by the voters of this state on June 8, 1982. Among other provisions, Proposition 8 added
Defendant asserts a violation of his federal constitutional right to counsel, chiefly by way of attempting to distinguish Kirby v. Illinois (1972) 406 U.S. 682 [32 L.Ed.2d 411, 92 S.Ct. 1877] and Moran v. Burbine (1986) 475 U.S. 412 [89 L.Ed.2d 410, 106 S.Ct. 1135]. Kirby held that the federal constitutional right to counsel does not attach until the initiation of judicial criminal proceedings. (United States v. Gouveia (1984) 467 U.S. 180, 187-188 [81 L.Ed.2d 146, 104 S.Ct. 2292]; Kirby v. Illinois, supra, 406 U.S. at pp. 689, 691 (plur. opn. of Stewart, J.) (conc. opn. of Burger, C. J.).) Burbine reaffirmed that the right to counsel attaches with the commencement of judicial proceedings against an accused. In Burbine, the court concluded that police officers’ failure to notify the accused—who was in custody but had not been formally charged—of his attorney‘s attempts to telephone him neither invalidated his waiver of Miranda rights nor impaired his right to counsel. (Moran v. Burbine, supra, 475 U.S. at pp. 421-428.) Defendant attempts to distinguish these cases by noting that (unlike Kirby) he had counsel and (unlike Burbine) he did not waive the right to counsel or his self-incrimination privilege. These distinctions do not make a difference because appearance in a lineup does not implicate the privilege against self-incrimination.
Defendant characterizes his conversation with Detective Shipp, during which he refused to stand in the lineup, as custodial interrogation in
D. Prosecutorial Argument
1. Prosecutor‘s “Testimony” and Asserted Vouching
Defendant contends that several remarks by the prosecutor during his guilt phase closing argument amounted to unsworn testimony or had the effect of vouching for prosecution witnesses, and so constituted misconduct. (See People v. Bolton (1979) 23 Cal.3d 208, 212 [152 Cal.Rptr. 141, 589 P.2d 396]; People v. Perez (1962) 58 Cal.2d 229, 245-246 [23 Cal.Rptr. 569, 373 P.2d 617, 3 A.L.R.3d 946].) He has waived each claim of misconduct by failing to object and request an admonition to the jury. (People v. Sully (1991) 53 Cal.3d 1195, 1235 [283 Cal.Rptr. 144, 812 P.2d 163]; People v. Green (1980) 27 Cal.3d 1, 27 [164 Cal.Rptr. 1, 609 P.2d 468].) His failure to object is not excused: in each instance any harm could have been cured by prompt admonition. Moreover, as will appear, even if defendant had preserved his claims of prosecutorial misconduct, we would find no reversible error.
Defendant first argues that the prosecutor argued improperly regarding the change in Angela‘s testimony about the perpetrator‘s earring. Angela initially stated that she noticed a shiny stud in the second gunman‘s right ear. (Defendant‘s left ear, not his right, is pierced.) In a conversation with Detective Shipp and the prosecutor shortly before the preliminary hearing, however, Angela determined the stud was, in fact, in the perpetrator‘s left ear. Both Angela and Detective Shipp testified regarding that conversation. In essence, Detective Shipp testified that Angela reached toward her own right ear, but then paused and spontaneously pointed at the prosecutor‘s left ear. Shipp testified that he told her she was pointing to her
Defendant contends that the prosecutor injected into closing argument his own unsworn testimony regarding the conversation among himself, Angela, and Detective Shipp. Although defendant‘s contention is not without some force, we conclude the prosecutor‘s line of argument was sufficiently supported by the testimony of Angela Womble and Detective Shipp to avoid characterization as misconduct. The prosecutor‘s use of the term “spontaneity” echoed Detective Shipp‘s testimony as well as Angela‘s testimony that she “did it all on [her] own.” The prosecutor was entitled to express his personal wish that the conversation had been recorded, since defense counsel had implicitly accused the prosecutor of suggesting that Angela change her description of the second gunman; the jury would have appreciated the context of the remark. (See United States v. Young (1985) 470 U.S. 1, 17-18 [84 L.Ed.2d 1, 1055 S.Ct. 1038].) Even if we could agree with defendant that the remarks strayed beyond the evidence, we would find them harmless. The jury had the opportunity to hear Detective Shipp and Angela Womble testify to the circumstances of the interview, and thus could judge their credibility independently of the prosecutor‘s argument.
Defendant further argues that the prosecutor gave unsworn testimony in suggesting to the jury a way to interpret Angela‘s reference to the second gunman as “tall“: that defendant, although only five feet, nine and three-quarters inches in height, was tall compared with Willie Womble. Unfortunately for the prosecutor, no witness had testified to Willie Womble‘s height. To overcome the difficulty, the prosecutor argued the jury could calculate, from the dimensions of the room and the distance of the body from the east wall, that Willie Womble was five feet three inches tall.10 Defendant complains that the method by which the prosecutor derived Willie Womble‘s height was fallacious, and that in effect the prosecutor simply urged the jury to take his word for it that she was five feet three inches tall.
We find no misconduct. The prosecutor avoided the error of stating that the pathologist would have testified that Willie Womble was indeed five feet three inches (see People v. Johnson (1981) 121 Cal.App.3d 94, 102 [175 Cal.Rptr. 8]); instead, he conceded he had not asked the proper questions and made a rather strained argument from other evidence that the jury should so find. If the prosecutor‘s reasoning was faulty, the jury was free to reject it.
Defendant next contends that the prosecutor engaged in misconduct by referring to autopsy photographs not in evidence and by specifically noting with respect to one item, “[Y]ou‘re not going to see a picture of it.” No misconduct appears. The pathologist described Willie Womble‘s injuries as depicted in eight autopsy photographs. The trial court later ruled it would admit three of the photographs in evidence and exclude the remaining five. It would have been apparent to the jury, on retiring to deliberate, that the number of exhibits before them did not correspond to the number of photographs about which the pathologist had testified. We are unpersuaded the prosecutor‘s remark could have led the jury to speculate what else might be shown in the photographs not admitted.
Defendant contends that because there was no testimony either specifically labelling Fukayama‘s analysis “unprofessional” or directly stating that the reason for the reexamination was the incompleteness of the initial examination, the quoted argument constituted misconduct. We believe the prosecutor‘s comments that Fukayama‘s method was “unprofessional” and “incomplete” were fair inferences from the evidence, inasmuch as Fukayama described the deficiencies in his initial analysis and admitted his initial conclusion was wrong. However, the prosecutor went beyond the evidence when he argued that the only reason Fukayama reexamined the evidence was the incompleteness of the initial analysis. Fukayama did not so testify, and the prosecutor, as the person in charge of the proceedings against defendant, was in the best position to know why Fukayama was asked to reexamine the evidence. In effect, the prosecutor “submitted” the point on his own representation. We see no possibility that defendant was prejudiced, however, in light of the admitted deficiencies in Fukayama‘s initial analysis and his testimony that the prosecutor did not apply any undue influence or pressure on him. None of the claimed instances of misconduct, therefore, rendered defendant‘s trial unfair or unreliable. Because we find no prejudice, defendant‘s claim of ineffective assistance of counsel must likewise fail. (People v. Ledesma (1987) 43 Cal.3d 171, 216 [233 Cal.Rptr. 404, 729 P.2d 839].)11
2. Claimed Griffin Error
Defendant argues that the prosecutor improperly drew the jury‘s attention to the fact that he had not testified at trial, violating his privilege
In closing argument, the prosecutor discussed defendant‘s liability for aiding and abetting Duchine in the robbery, noting that the jury did not receive an aiding and abetting instruction with respect to the murder and attempted murder counts because defendant personally killed Willie Womble and shot Angela Womble. The prosecutor argued that defendant committed those crimes to avoid being identified. “Why did he do that? What was the point in doing something like that? . . . I‘m going to talk about it in some detail a little while later when I talk about specific items of evidence, when I talk about the earring, when I talk about the lighting conditions, but you know you have Angela Womble who told you and she certainly should know what the lighting conditions, what the ability to see inside that house was, and I‘ll talk about that and show you a little demonstration and you have a number of other witnesses . . . [T]here was somebody else in that house who knew what the lighting conditions were. There was somebody else in that house who knew Willie and Angela Womble could see and not see [sic]. Somebody else in that house who was concerned about being identified and, therefore, perpetrated this murder and this attempted murder to prevent those persons from coming forward and identifying them for the killing or for the robbery, and based on that, they killed. [¶] There‘s somebody else, ladies and gentlemen, who knows what Angela knows and who killed because of it, and that man is Willie Darnell Johnson. That‘s why there‘s another part of this special circumstance instruction that is important. [¶] The Court instructed you a special circumstance is not established if it was merely incidental to the commission of the murder. . . . [¶] You don‘t have that in this case. [¶] The primary intent, ladies and gentlemen, was robbery. The motive for the murder was to use the language of the law, to avoid detection. To kill witnesses who Angela‘s last words in the tape could identify.”
Defendant contends a reasonable juror would have understood the quoted passage as commenting on his failure to testify. We disagree. The prosecutor was referring neither directly nor indirectly to defendant‘s failure to testify.
Defendant also complains the prosecutor committed Griffin error in arguing that “[t]he uncontradicted evidence is that the defendant was there, that the defendant did kill Willie Womble, that the defendant did shoot Angela Womble. That is uncontradicted.” It is true, as defendant asserts, that a prosecutor errs by referring to evidence as “uncontradicted” when the defendant, who elects not to testify, is the only person who could have refuted it. (People v. Murtishaw (1981) 29 Cal.3d 733, 758, fn. 20 [175 Cal.Rptr. 738, 631 P.2d 446].) If, however, the evidence could have been contradicted by witnesses other than the defendant, the prosecutor may without violating defendant‘s privilege against self-incrimination describe the evidence as “unrefuted” or “uncontradicted.” (Ibid.; see also People v. Miller (1990) 50 Cal.3d 954, 996 [269 Cal.Rptr. 492, 790 P.2d 1289]; People v. Gray (1979) 91 Cal.App.3d 545, 552 [154 Cal.Rptr. 555].) Here, the defense challenged Angela‘s identification testimony, implicitly contending that defendant was elsewhere than at the Womble residence on the night of the crime. However, the defense presented no alibi evidence to support the contention. (People v. Szeto (1981) 29 Cal.3d 20, 34 [171 Cal.Rptr. 652, 623 P.2d 213].) Thus, the prosecutor‘s comment merely reflected the state of the evidence. (People v. Murtishaw, supra, 29 Cal.3d at p. 758, fn. 20.)
3. Prosecutor‘s Statement That He Was “Not Permitted to Discuss” Necessity of Verdicts on Robbery and Burglary Charges
After discussing the special circumstance allegations, the prosecutor discussed the elements of the robbery and burglary charges. He argued, “[D]on‘t think that because I may have already discussed the crimes of robbery and burglary in the context of special circumstances that they are not important—somehow that they are mere surplusages of Counts 3 and 4. For reasons I‘m not permitted to go into right now, they are not surplusages, they are important.” (Italics added.) Defendant now argues that the prosecutor improperly told the jury that its verdicts should be influenced by unstated law and insinuated that legal technicalities might undo the jury‘s verdicts on some charges unless convictions were returned on all charges. This, he contends, violated his rights to personal presence, confrontation, jury trial, assistance of counsel, and due process.
E. Claims of Instructional Error
1. Eyewitness Identification (CALJIC No. 2.92)
Defendant contends that the jury was incorrectly instructed on eyewitness identification factors. Defendant is entitled to an instruction that focuses the jury‘s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence. (People v. Wright (1988) 45 Cal.3d 1126, 1141 [248 Cal.Rptr. 600, 755 P.2d 1049].) The instruction should not take a position as to the impact of each of the psychological factors listed; it should also list only factors applicable to the evidence at trial, and should refrain from being unduly long or argumentative. (Id. at p. 1143.)
The trial court read the jury a modified version of CALJIC No. 2.92, set forth in the margin.12 We have noted that CALJIC No. 2.92 normally provides sufficient guidance on the subject of eyewitness identification
a. Stress
Defendant urges that the portion of the instruction dealing with the influence of stress on identification was erroneous, in that it was confusing and undermined the testimony of Dr. Loftus, defendant‘s expert witness. The instruction directed the jury to consider “[t]he stress, if any, to which the witness was subjected at the time of the observation” (italics added). Defendant contends this portion of the instruction undermined the defense‘s ability to rely on the testimony of its expert witness, Dr. Loftus. We disagree.
Dr. Loftus testified that the degree of stress or fright that a witness would experience during a crime such as occurred in this case would reduce his or her ability to acquire information accurately. That the situation was stressful was undisputed; the prosecutor acknowledged in closing argument that the stress level was “high” even before the first shot was fired. However, we do not view the instruction as casting doubt on Dr. Loftus‘s testimony in any significant way. Rather, it allowed the jury to determine the level of stress Angela experienced during the crime.
b. Certainty of Identification
Defendant further contends that the trial court erred in instructing the jury that the extent to which the witness was either certain or uncertain of the identification was a factor to consider in assessing eyewitness testimony. Defendant asserts that there was no evidence to support this instruction because Dr. Loftus testified without contradiction that a witness‘s confidence in an identification does not positively correlate with its accuracy. As a corollary to this claim, he argues the instruction was improper because it contradicted Dr. Loftus‘s testimony, thereby implying the jury could not rely on her evidence.
We cannot agree with defendant‘s contentions. First, as defendant concedes, the jury remained free to reject Dr. Loftus‘s testimony although it was
We cannot agree with defendant that the jury must have found these two portions of the eyewitness identification instruction confusing. His contention would be valid only if the jury were required to accept Dr. Loftus‘s testimony; as we have seen, it was not.
The trial court did not err, therefore, in instructing the jury on the “certainty” factor.
c. Post-event Information
Next, defendant contends that the trial court erred in refusing his request that the jury be instructed as follows: “Was the witness’ memory affected by intervening time and events? Memory tends to fade over time, and studies show that a witness may subconsciously incorporate into her memory information from other sources.” The trial court did not err. The requested instruction was argumentative, in that it invited the jury to draw inferences favorable to the defendant from specified items of evidence on a disputed question of fact. (People v. Wright, supra, 45 Cal.3d at p. 1135.) As such, it was properly refused. In addition, the concept that post-event information could contaminate a witness‘s identification was adequately covered by other instructions. The jury was told to consider “[w]hether the witness’ identification is in fact the product of her own recollection” and “[w]hether the witness’ memory was or was not affected by intervening time and events.”
d. Suggestiveness
Defendant contends that the trial court erred in refusing to instruct the jury as follows: “Did the witness identify the defendant before trial from photographs? If so, were the photographs suggestive in any way?” Instead, the court proposed to instruct the jury to consider “[w]hether the witness was able to identify the perpetrator in a photographic lineup” and the “fairness of the photographic lineup.” Defense counsel agreed to the use of the word “fairness,” observing, “I‘ve got no problems with that . . . it‘s
Defendant‘s first contention is without merit. Deletion of the word “alleged” from the instruction did not lighten the prosecution‘s burden of proof. The jury was instructed that, for a guilty verdict, it must be proved beyond a reasonable doubt that defendant was the person who committed the crime. (CALJIC No. 2.91.) The jury was also instructed that defendant was not required to prove himself innocent or to prove that another person committed the crime. Moreover, defense counsel himself stated, “I don‘t know why we need the word ‘alleged.’ Perpetrator, I mean, somebody did something—.”
Defendant‘s second contention is likewise meritless. He complains that by changing defendant‘s proposed instruction on “suggestiveness” into one on “fairness,” the court directed the jury‘s attention away from the issue of conscious or subconscious suggestive influences (including those exerted by unofficial sources such as Angela‘s family and friends) and instead focused the jury on intentional bias-inducing conduct by the police. It is unclear why defendant complains about this focus. Inasmuch as the instruction dealt with the fairness of lineups, it necessarily focused on official conduct. The jury‘s consideration of unofficial suggestive influences was sufficiently guided by the instructions to consider “[w]hether the witness’ memory was or was not affected by intervening time and events,” and “[w]hether the witness’ identification is in fact the product of her own recollection.”
e. Multiple Descriptions
Defendant requested that the jury be instructed as follows: “Did the witness give a description of the offender immediately after the alleged crime? If so how well does the defendant fit that description?” The trial court declined to give the requested instruction, concluding that the subject of that request was adequately addressed by two factors listed in CALJIC No. 2.92, i.e., “The witness’ ability following the observation to provide a description of the perpetrator of the act” and “[t]he extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness.” Defendant now complains that the instruction the trial court gave is designed for the case in which the eyewitness gives only one description of the perpetrator, not multiple descriptions as did Angela. Defendant argues that by not acknowledging that the jury should consider whether a description given at the scene of the crime might deserve a different weight than a
Defendant‘s contention is incorrect. The instruction given does not limit the jury to consideration of any one description Angela might have provided. The jury was free to consider the extent to which defendant matched any of Angela‘s descriptions of the perpetrators. In fact, defendant‘s proposed instruction would have been susceptible to the criticism that it lay undue stress on Dr. Loftus‘s testimony that a description given nearer in time to an event is more reliable than one given at a later time. The trial court did not err in refusing it.
In sum, the identification instruction given by the trial court met the requirements set forth in People v. Wright, supra, 45 Cal.3d at pages 1141, 1143: it focused the jury‘s attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence, without improperly invading the domain of either jury or expert witness.
2. Proof Beyond Reasonable Doubt
Defendant contends that certain instructions given the jury in this case undermined the constitutional requirement of proof beyond a reasonable doubt. The trial court instructed the jury that defendant was presumed innocent until the contrary was proved and that the presumption placed on the state the burden of proving him guilty beyond a reasonable doubt. (CALJIC No. 2.90;
We rejected similar contentions in People v. Jennings (1991) 53 Cal.3d 334, 386 [279 Cal.Rptr. 980, 807 P.2d 1009] (Jennings), and while defendant criticizes our reasoning, we are not persuaded to reconsider our holding.
3. Consciousness of Guilt
The trial court instructed the jury, based on CALJIC No. 2.06, that “[i]f you find that a defendant attempted to suppress evidence against himself in any manner, such as by refusing to participate in the lineup, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. [¶] However, such evidence is not sufficient in itself to prove guilt and its weight and significance, if any, are matters for your consideration.”
Defendant contends the giving of this instruction was error for two reasons. First, he argues that it characterized his refusal to participate in the lineup as an attempt to suppress evidence even though his refusal did not demonstrate a consciousness of guilt and its admission into evidence violated the Constitution. This argument is without merit. We have already concluded that defendant‘s refusal to participate in the lineup was properly admitted and supported an inference of consciousness of guilt. (Ante, at pp. 1221-1224.) The giving of the instruction, therefore, was proper (and beneficial to defendant, to the extent that it made clear the refusal did not, in itself, suffice to establish his guilt). (See People v. Sudduth (1966) 65 Cal.2d 543, 546-547 [55 Cal.Rptr. 393, 421 P.2d 401] [refusal to give breath sample]; People v. Huston, supra, 210 Cal.App.3d at p. 218; People v. Roach (1980) 108 Cal.App.3d 891, 894 [166 Cal.Rptr. 801] [refusal to give urine sample].)
Second, he argues that even if the jury could properly have been authorized to consider the lineup refusal as evidence of consciousness of guilt, the instruction was improper because it told the jury that the lineup refusal was only one example of evidence that could be considered as consciousness of guilt. Defendant argues the instruction encouraged the jury to examine all of the evidence—without guidance from the trial court—to determine whether any of it demonstrated an attempt to suppress evidence, regardless of whether such a finding was in fact supported by the law or evidence. This argument is equally meritless. The instruction simply allowed the jury to infer consciousness of guilt if it found that defendant attempted to suppress evidence against himself. Defendant reads too much into the phrase
Defendant contends the instruction violates the rule articulated in People v. Hannon (1977) 19 Cal.3d 588 [138 Cal.Rptr. 885, 564 P.2d 1203]. There we held the giving of a modified version of CALJIC No. 2.06 to be erroneous because the trial judge failed to make the preliminary determination that there was evidence in the record which, if believed by the jury, would sufficiently support the desired inference of consciousness of guilt. Instead, the trial court improperly left that question of law up to the jury. (Id. at pp. 597-598.) By contrast, in this case the trial court, in giving the instruction, implicitly determined as a matter of law that the evidence of defendant‘s refusal to stand in the lineup, if credited by the jury, could warrant an inference of consciousness of guilt if the jury found that the refusal was intended to suppress evidence. (See People v. Crandell (1988) 46 Cal.3d 833, 870 [251 Cal.Rptr. 227, 760 P.2d 423].)
Defendant does not suggest any way in which the jury might have been misled regarding the sort of evidence it could consider as indicating consciousness of guilt. If he believed the instruction required clarification, it was incumbent on him to request it. (People v. Crandell, supra, 46 Cal.3d at pp. 870-871.) He did not do so. Reading the instructions as a whole, as the jury itself was directed to do (CALJIC No. 1.01; see People v. Pensinger, supra, 52 Cal.3d 1210, 1246), we conclude they correctly guided the jury‘s consideration of the evidence.
4. Kurtzman Error
Defendant contends that the giving of an expanded version of CALJIC No. 8.75 improperly skewed the jury‘s deliberative process by precluding deliberation on necessarily included offenses unless and until the jury acquitted defendant of the greater offense. The jury was instructed that “[y]ou must unanimously agree that the defendant is not guilty of first degree murder before you may find the defendant guilty or not guilty of second degree murder” and “[y]ou must unanimously agree that the defendant is not guilty of second degree murder before you find him guilty or not guilty of voluntary or involuntary manslaughter, assault with a deadly weapon or by means of force likely to produce great bodily injury, possession of a deadly weapon with intent to assault, brandishing a firearm or simple assault.”
In People v. Kurtzman (1988) 46 Cal.3d 322 [250 Cal.Rptr. 244, 758 P.2d 572], we held that Stone v. Superior Court (1982) 31 Cal.3d 503 [183 Cal.Rptr. 647, 646 P.2d 809] should be read to authorize an instruction that the jury may not return a verdict on the lesser offense unless it has unanimously agreed that defendant is not guilty of the greater crime charged, but should not be interpreted to prohibit a jury from considering or discussing the lesser offenses before returning a verdict on the greater offense. (People v. Kurtzman, supra, 46 Cal.3d at pp. 324-325.)
There is no reasonable likelihood that the jury understood the instruction as defendant argues. (People v. Clair, supra, 2 Cal.4th at p. 663.) The instruction given in this case complies with Kurtzman, supra, 46 Cal.3d 322, in that it does not preclude the jury from considering or discussing lesser included offenses before returning a verdict on the greater offense; it merely requires the jury to acquit defendant of the greater charge before finding him guilty or not guilty of a lesser charge. (People v. Nicolaus (1991) 54 Cal.3d 551, 580 [286 Cal.Rptr. 628, 817 P.2d 893]; People v. Hunter (1989) 49 Cal.3d 957, 976 [264 Cal.Rptr. 367, 782 P.2d 608].) Indeed, the instruction told the jury that “if you unanimously agree that the defendant is not guilty of the offense of first degree murder and second degree murder charged in Count 1, you must have your foreman date and sign such verdict and return them into court regardless of what may happen in your deliberations on any lesser included offenses. . . .” A reasonable inference from this instruction is that the jury may deliberate on lesser included offenses before it has returned its verdict on the first and second degree murder charges.
Citing portions of the prosecutor‘s argument, defendant suggests that instruction must have misled the jury. He does not persuade us. Defendant notes that the prosecutor at one point said, “I would submit to you essentially what that instruction tells you to do is you address the crime as charged first and if and only if you return a verdict of not guilty on the crimes charged do you even reach the question of the lesser and included offenses. [¶] Your first job is to look at the crimes charged, and, ladies and gentlemen, for reasons I‘m not permitted to go into right now, you are not going to reach those lesser and included offenses.” This portion of the prosecutor‘s argument might support defendant‘s contention. Defendant acknowledges, however, that the prosecutor also argued as follows: “The defendant is charged with murder in the Information in Count 1. I would submit to you your first decision is, did he do it? Was he there? Did he have a shotgun? I‘ll talk about those facts that show you that he did in a moment, but when you reach that conclusion, and I submit to you you will, you have got an unlawful killing of a human being. You have the intent to kill, that‘s malice aforethought. Before you go further because of a legislatively created mitigating circumstance called heat of passion, I submit to you the next place you have to go before you reach the question of premeditation and deliberation is manslaughter, sudden quarrel,
Defendant also contends that the giving of CALJIC No. 8.75 amounted to a violation of
F. Cumulative Effect of Errors
Defendant contends that even if no single error in the guilt phase of his trial warrants reversal of his conviction, the cumulative effect of such errors does demand relief. We have identified as errors only the admission of an assertedly inconsistent prior statement by Angela Womble and one instance of impropriety by the prosecutor in closing argument. Neither individually nor cumulatively do these errors warrant reversal.
PENALTY PHASE FACTS
A. Prosecution Case
1. Prior Manslaughter Conviction
The prosecution introduced certified copies of court records showing that a jury had convicted defendant of voluntary manslaughter with the use of a firearm on August 3, 1981. Dick Tak, a Richmond police officer, testified that he attended the autopsy of the victim, Vernon Hood. The victim had been shot twice, once in the back of the head and once in the back.
Clyde Moore testified that he was defendant‘s parole officer in June 1986. Defendant was paroled from prison on the manslaughter conviction on June
2. Prior Unadjudicated Battery
Tommie Phillips, a Richmond police officer, testified that on July 19, 1980, he responded to a call relating to a vehicle accident. Officer Phillips saw defendant punch a woman in the mouth, and arrested him for battery. As Officer Phillips walked defendant to the patrol car, defendant declared he was not going to jail and ran off. However, defendant returned to the accident scene, and Officer Phillips took him into custody.
B. Defense Case
The defense adduced evidence that Vernon Hood, the victim of defendant‘s prior manslaughter, was a violent man. Gladys Reese, defendant‘s sister, testified that she lived with Hood, who was the father of one of her children, for about three years. When they lived together he took her money and repeatedly beat her and her children. Because of the beatings, Gladys Reese moved to her mother‘s house. Hood visited her there and threatened to kill her and her mother. Defendant was also living with his mother at that time. Defendant‘s mother, Valine Duckett, corroborated that Hood often beat Gladys and her children and took her money.
Renee Morgan, defendant‘s younger sister, described conditions in the family home as they were growing up. There were nine children in the family. Their mother drank. Defendant protected and took care of the younger siblings. Renee was present when Hood beat Gladys and testified that Hood came to their house with guns.
Valine Duckett also testified about conditions of defendant‘s early life. Ms. Duckett left her husband while pregnant with defendant. Defendant‘s father saw his children only a few times, and defendant was without a male role model while growing up. Ms. Duckett remarried and frequently fought with her husband. During their final fight, she killed him in self-defense while defendant and the other children watched.
Despite these problems, defendant did well in school; he was Ms. Duckett‘s only son to graduate from high school.
A. Admission of Evidence of Other Criminal Activity
1. Prior Conviction of Voluntary Manslaughter
As described above, during the penalty phase the prosecution introduced evidence of the facts underlying defendant‘s prior conviction of voluntary manslaughter. ( First, he argues that, on the evidence presented, the prior conviction of voluntary manslaughter constituted an implied acquittal of murder. He reasons that the evidence was, therefore, barred by Defendant‘s argument is flawed as a factual matter: defendant was not acquitted, either expressly or impliedly, of the murder of Vernon Hood, since the information filed in the earlier proceedings charged only manslaughter. Defendant notes that the complaint filed in municipal court charged him with the murder of Vernon Hood rather than voluntary manslaughter, and argues that the facts of the underlying case could have been construed as supporting a murder conviction. In this case, however, the prosecutor never suggested that the jury should consider the killing of Vernon Hood as the equivalent of murder, nor was the jury instructed it could do so. Rather, the jury was instructed on the elements of voluntary manslaughter and was told that before it could consider the killing of Vernon Hood as an aggravating We have also rejected the premises underlying defendant‘s claim as a matter of law. In People v. Melton (1988) 44 Cal.3d 713 [244 Cal.Rptr. 867, 750 P.2d 741], we held that We have likewise rejected identical double jeopardy claims in earlier decisions. In People v. Visciotti (1992) 2 Cal.4th 1 [5 Cal.Rptr.2d 495, 825 P.2d 388], we reasoned that “[t]he presentation of evidence of past criminal conduct at a sentencing hearing does not place the defendant in jeopardy with respect to the past offenses. He is not on trial for the past offense, is not subject to conviction or punishment for the past offense, and may not claim either speedy trial or double jeopardy protection against introduction of such evidence. [Citation.]” (Id. at p. 71; see also People v. Douglas (1990) 50 Cal.3d 468, 528 [268 Cal.Rptr. 126, 788 P.2d 640]; People v. Melton, supra, 44 Cal.3d at pp. 754-755.) Defendant cites People v. Sheldon (1989) 48 Cal.3d 935 [258 Cal.Rptr. 242, 771 P.2d 1330] (Sheldon) and Grady v. Corbin (1990) 495 U.S. 508 [109 L.Ed.2d 548, 110 S.Ct. 2084] (Corbin), in support of his contention that admission of the evidence underlying his prior manslaughter conviction violated double jeopardy principles. Both cases are distinguishable from this one. In Sheldon, a case involving a straightforward application of Defendant also complains that the prosecution was able to “hone” the evidence underlying the manslaughter conviction, and to present only that most favorable to the prosecution (the fact that the victim was shot in the back of the head and the back), while omitting the weaker aspects of the case (the assertedly suspect credibility of unidentified prosecution witnesses). However, defendant cites no authority requiring the prosecution to present all the evidence it adduced in the prior trial when it seeks to establish a prior violent crime under Defendant contends that in light of People v. Guerrero (1988) 44 Cal.3d 343 [243 Cal.Rptr. 688, 748 P.2d 1150] (Guerrero), admission of evidence of the prior manslaughter conviction denied him equal protection of the law and reliability in capital sentencing procedures. Guerrero dealt with the extent to which the record of a prior conviction may be introduced in support of a sentence enhancement under For all of the preceding reasons, introduction of evidence pertaining to defendant‘s prior manslaughter conviction complied with Defendant contends that the trial court erred in admitting evidence that he spent five years in prison on the manslaughter conviction and that he committed the crimes of which he was convicted in the present case six days after his release from San Quentin. That evidence, he argues, relates to no statutory aggravating factor and should therefore have been excluded. (People v. Boyd (1985) 38 Cal.3d 762, 771-776 [215 Cal.Rptr. 1, 700 P.2d 782].) The People contend he waived the issue by not objecting on this ground at trial. Our review of the record discloses that defense counsel objected only to admission of the facts underlying the manslaughter conviction, and to that only on the grounds of collateral estoppel and undue consumption of time under Even if we were to reach the merits of the issue, however, we would find no error. The prosecutor argued the aggravating nature of these facts in the context of the circumstances of the present crimes. ( As noted above, the prosecution presented evidence that defendant committed a battery in an altercation following a traffic accident on July 19, 1980. ( We have repeatedly rejected this contention, as defendant acknowledges. (People v. Heishman (1988) 45 Cal.3d 147, 192 [246 Cal.Rptr. 673, 753 P.2d 629]; accord, People v. Jennings (1988) 46 Cal.3d 963, 981-982 [251 Cal.Rptr. 278, 760 P.2d 475].) Defendant argues that decisions of the United States Supreme Court stressing the need for reliability in capital sentencing procedures dictate a different conclusion. (Johnson v. Mississippi (1988) 486 U.S. 578 [100 L.Ed.2d 575, 108 S.Ct. 1981]; Gardner v. Florida (1977) 430 U.S. 349 [51 L.Ed.2d 393, 97 S.Ct. 1197].) Contrary to defendant‘s claim, the Eighth Amendment‘s aim of ensuring the reliability of penalty determinations is furthered, not frustrated, by the admission of his prior violent criminal activity. (See People v. Douglas, supra, 50 Cal.3d 468, 529-530.) Moreover, the evidence was not particularly stale, the battery having occurred only seven years before trial. Defendant does not suggest specific ways in which the passage of time may have prejudiced his ability to respond to it. (Cf. ibid.) The trial court did not err in admitting evidence of the unadjudicated battery. Defendant makes the following additional arguments in support of his claim that other-crimes evidence should not have been introduced. a. He contends that having the same jury decide both guilt and penalty phases violates rights guaranteed by the b. Defendant urges the penalty determination is unreliable because the sentencing jury was never provided with facts from which it could fairly determine that defendant was the person who committed the voluntary manslaughter of Vernon Hood. The argument lacks merit; the prosecution introduced into evidence certified copies of the verdict and abstract c. Defendant contends the penalty determination violates the Defendant makes several claims of error based on the prosecutor‘s argument at the close of the penalty phase. He failed to preserve the claims by timely and specific objection. (People v. Daniels (1991) 52 Cal.3d 815, 891 [277 Cal.Rptr. 122, 802 P.2d 906].) Even if he had made appropriate objections at trial, however, his claims would fail. First, defendant contends that the prosecutor impermissibly urged the jury to impose a death sentence based on the characteristics of the victim and the loss suffered by the victim‘s family, citing Booth v. Maryland (1987) 482 U.S. 496 [96 L.Ed.2d 440, 107 S.Ct. 2529] and South Carolina v. Gathers (1989) 490 U.S. 805 [104 L.Ed.2d 876, 109 S.Ct. 2207]. Referring to the testimony of defendant‘s mother on his behalf, the prosecutor said, “[B]efore you give [sic] undue love of a mother for her son, then you may want to listen to that tape of July 7th again so you can be reminded of the love that a daughter had for her mother . . . . [I] [W]e have to think about the resident who [sic] he killed and the family who [sic] the perpetrator orphaned.” The tape recording to which the prosecutor referred consisted of Angela Womble‘s interview with Detective Shipp, in which Angela, weeping, said, “I want to finish this, because I want this to stick in court. I want them to pay for what they done to my family.” During the pendency of this appeal, both Booth v. Maryland, supra, 482 U.S. 496 and South Carolina v. Gathers, supra, 490 U.S. 805 were largely overruled. (Payne v. Tennessee (1991) 501 U.S. 808 [115 L.Ed.2d 720, 111 S.Ct. 2597].) We have since held that the injury inflicted by the defendant—including the impact of the crime on the family of the victim—is one of the circumstances of the crime, evidence of which is admissible under Defendant next contends the prosecutor invited the jury to impose the death penalty based on nonstatutory aggravating factors, in violation of the rule of People v. Boyd, supra, 38 Cal.3d 762, 773. His objection is waived for failure to make a specific objection and request for admonition. (People v. Green, supra, 27 Cal.3d 1, 27; see People v. Daniels, supra, 52 Cal.3d 815, 891.) Even if defendant had preserved the objection, however, we would find it meritless. Defendant cites two portions of the prosecutor‘s argument as improper under Boyd. The prosecutor argued: “How do you make that kind of a decision [to return a verdict of death]? You‘ve never—there‘s nobody in this courtroom, I would submit to you, who has made that decision before. How do you do that? What experience do you draw upon to make a decision of that magnitude? [[] It‘s a command decision. You know what I mean by a command decision? It‘s a decision that not even senators of the United States are empowered to make. It‘s the decision that the Commander in Chief charged with responsibility of protecting a country from enemies without has the power to make. It‘s a decision that you, ladies and gentlemen, as the protectors of society from enemies within have to make.” Later, the prosecutor argued: “And now we have to ask ourselves, what do we do about it and why? You could easily say, ‘Well, I‘m not threatened. I‘m not going to state prison.’ None of you are going to state prison. He‘s going Defendant complains that the quoted portions of the prosecutor‘s argument were improper in that they suggested that each juror‘s independent decision should be supplanted by perceived societal needs. The jury‘s determination, he contends, was based on fear and its interest in community protection rather than on individualized sentencing as required by the In support of his contention, he cites Brooks v. Kemp (11th Cir. 1985) 762 F.2d 1383, vacated on other grounds 478 U.S. 1016 (1986), reinstated 809 F.2d 700 (11th Cir. 1987) (Brooks). In Brooks, the prosecutor embarked on an extended comparison of a penalty phase jury with soldiers in war, defendant being one of the enemy, the criminal element in society. (Id. at p. 1396.) The Court of Appeals for the Eleventh Circuit disapproved the argument, reasoning that the jury‘s discretionary function is unlike that of soldiers who are ordered to kill enemies. (Id. at p. 1412.) In the present case, the prosecutor‘s military metaphor was to exactly the opposite effect: he argued that the jury‘s role was to make a “command decision,” one that only the commander-in-chief can make. Thus, the argument in no way “undermine[d] the crucial discretionary element required by the Eighth Amendment.” (762 F.2d at p. 1413.) Although the prosecutor labelled defendant with the epithet “enemy,” we—like the Court of Appeals in Brooks—“do not seriously fault its application to one whose crime is ‘so grievous an affront to humanity that the only adequate response may be the penalty of death.’ (Gregg v. Georgia [(1976)] 428 U.S. [153,] 184 [49 L.Ed.2d 859, 880, 96 S.Ct. 2909].)” (Brooks v. Kemp, supra, 762 F.2d at p. 1412.) The remark was isolated and noninflammatory, and does not appear to have been aimed at arousing the passion or prejudice of the jury. (People v. Pensinger, supra, 52 Cal.3d 1210, 1251.) To the extent that the prosecutor was commenting on defendant‘s future dangerousness, the argument was a permissible inference from the evidence. (People v. Davenport (1985) 41 Cal.3d 247, 288 [221 Cal.Rptr. 794, 710 P.2d 861].) Defendant contends that the prosecutor gave the jury a misleading and erroneous view of its sentencing responsibilities during his penalty phase closing argument. He cites the following remarks: “You do have guidance. You do have experience to draw upon. You heard it for the first time this afternoon. It‘s called the law and it has evolved over time and in its evolution it has given you something. It has given you factors. It has given you guidelines to show you the direction you should take in determining whether or not the death penalty is appropriate under the circumstances of this case and it is no place other than the law I submit to you, that any of you, any of us are going to be able to find the answer to the question, is the death penalty the only appropriate sentence in this case?” He also cites the following statement, with which the prosecutor ended his argument: “I do know this, actions speak louder than words. I do know that you have a command decision, and it‘s time to take action, and I, in summation, can only submit to you, because that‘s what the law does, that there is but one appropriate sentence in the facts and circumstances of this case, and that is the imposition of the death penalty.” Defendant contends the cited remarks constitute error under Caldwell v. Mississippi (1985) 472 U.S. 320 [86 L.Ed.2d 231, 105 S.Ct. 2633] (Caldwell) because they urged the jury to rely on the “law” in reaching a sentencing decision. The argument is without merit. The prosecutor did no more than urge the jury to follow the law, as they were bound to do. Unlike Caldwell, supra, 472 U.S. at page 325 [86 L.Ed.2d at page 237], the prosecutor never suggested that the jury‘s decision was not final and that its decision would be reviewed. (People v. Clark (1992) 3 Cal.4th 41, 167 [10 Cal.Rptr.2d 554, 833 P.2d 561].) Consequently, no Caldwell error is shown. The trial court read the following modified version of CALJIC former No. 8.84.2 to the jury: “It is now your duty to determine which of the two penalties, death or confinement in state prison for life without possibility of parole shall be imposed on the defendant. After having heard all the evidence and after having heard and considered the arguments of counsel, you shall consider, take into account, and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. The weighing of aggravating and mitigating circumstances does not mean a mere mechanical counting of factors on each side of an imaginary scale, or the arbitrary assignment of weights to any of them. You are free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors you are permitted to consider. . . . [[] In weighing the various circumstances you determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the totality of the mitigating circumstances. If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you may, but need not, impose a sentence of death unless you are persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it warrants death instead of life without possibility of parole. If you conclude that the mitigating factors are equal to or outweigh the aggravating you must return a verdict of confinement in the state prison for life without possibility of parole.” The trial court adapted the foregoing instruction from the standard CALJIC instruction, after discussing with counsel the effect of our decision in Brown, supra, 40 Cal.3d 512. Defendant rightly notes that the italicized portion of this instruction is confusing. To make logical sense of the instruction, the jury had to draw certain inferences about the extent of its discretion. Defendant contends that a reasonable juror would most likely have understood the instruction to mean that if the juror (a) concluded that the aggravating circumstances outweighed the mitigating circumstances and (b) was persuaded that the aggravating circumstances were so substantial in comparison with the mitigating circumstances that death rather than life without possibility of parole was warranted, then the juror was required to return a This interpretation, defendant contends, does not accurately state applicable law and violates the rule of People v. Brown, supra, 40 Cal.3d 512. The instruction was erroneous, defendant reasons, because it authorized the jury to return a verdict of death whenever aggravation was deemed to outweigh mitigation, even when the jury was not persuaded that death was the appropriate punishment. He contends the jury likely would have concluded that the weighing process was supposed to be an “objective” one, not the normative, moral, individualized one required by Brown. Theoretically, it is possible to read the italicized sentence, in isolation, to imply such a proposition. However, we review an assertedly erroneous instruction not in isolation, but in the context of the entire charge. (People v. Haskett (1990) 52 Cal.3d 210, 235 [276 Cal.Rptr. 80, 801 P.2d 323].) Keeping in mind this principle of construction, we have considered the instructions as a whole. We conclude that the instructions adequately conveyed that the weighing process is merely a metaphor for the juror‘s personal determination that death is the appropriate penalty under all of the circumstances. (People v. Hayes (1990) 52 Cal.3d 577, 642 [276 Cal.Rptr. 874, 802 P.2d 376].) First, it must be noted that the challenged portion of the instruction emphasized the discretionary nature of the jury‘s penalty determination. The jury was told that if it found that aggravating circumstances outweighed mitigating circumstances, it “may, but need not,” impose a sentence of death. True, the instruction may have been understood to imply that the jury possessed less discretion in the event it found that aggravating circumstances were so substantial in comparison with the mitigating circumstances that death, rather than life without possibility of parole, was warranted. But in that sense the instruction was merely tautological: it directed the jury to return a verdict of death if it found death to be warranted. It did not thereby compel a death verdict in contravention of Brown, supra, 40 Cal.3d 512, or the statute. We cannot accept defendant‘s complementary contention that the instruction invited the jury to return a verdict of death even though it did not believe death was warranted, merely because aggravating circumstances outweighed mitigating. There is no reasonable likelihood that the jury would have thought it could return a verdict of death if it did not believe that penalty was appropriate. (People v. Clair, supra, 2 Cal.4th at p. 663.) Moreover, any ambiguity was not exploited by the prosecutor in argument. Both defense counsel and the district attorney emphasized the serious, discretionary nature of the determination and the necessity that the jurors be persuaded that death was the only appropriate penalty before they returned the corresponding verdict. Defendant also contends that the instruction was unconstitutionally vague, especially in its use of the term “substantial.” We recently rejected a similar claim in People v. Breaux (1991) 1 Cal.4th 281, 315 [3 Cal.Rptr.2d 81, 821 P.2d 585], and defendant does not persuade us that we erred. Defendant asked the trial court to instruct the jury as follows: “It is appropriate for you to consider in mitigation any lingering doubts you may have concerning defendant‘s guilt. Lingering doubt is defined as that state of mind between a reasonable doubt and beyond all possible doubt.” On defendant‘s initial request, the trial court declined to give the proffered instruction, believing it to be unsupported in law. On his renewed request, the court refused it as essentially unsupported in fact. The trial court did, however, instruct the jury to consider “[a]ny other circumstances which extenuates [sic] the gravity of the crime even though it is not a legal excuse for the crime. [[] And, any sympathetic or other aspect of the defendant‘s character or record as a basis for a sentence less than death, whether or not related to the offense for which he is on trial. [[] You must disregard any jury instruction given to you in the guilt or innocence phase of this trial which conflicts with this principle.” (See Despite the trial court‘s refusal of the requested instruction, defense counsel argued the issue of lingering doubt to the jury, immediately after discussing Defendant contends the trial court erred in failing to grant a mistrial when, during its penalty phase deliberations, the jury declared itself at an impasse. He contends that the trial court further erred in not responding to a note from one of the jurors or inquiring into the possibility of jury misconduct. Defendant does not persuade us. At 10:50 a.m. on the third day of its deliberations, the jury sent the trial court a note, signed by the foreman, that read, “We have come to an impasse and have not been able to reach a unanimous verdict.” The trial court advised both the prosecutor and defense counsel that it planned to call in the jury to ask whether there was anything the court could do to assist them. The trial court also proposed to ask the jury to state what the split was without disclosing which way they stood on the issues, and to determine whether the jury had taken a number of votes, whether the votes had changed, and similar matters. When asked whether they had any suggestions or comments, both counsel responded in the negative. In the presence of the entire jury, the trial court asked the foreman the numerical split of the jury, stating “I am not interested in your telling me how many jurors stand for what particular proposition.” The foreman The trial judge candidly told the jurors he had two possible responses to what they had told him: either discharge the jury or ask them to recommence deliberations. The judge noted it is not unusual for juries reporting a deadlock, given additional time for deliberations, to reach a verdict, although the opposite result is also not unusual. Based on his observations and the jurors’ responses, the judge decided to ask the jury to recommence deliberations. The jury then recessed for lunch, agreeing to return at 1 p.m. During the lunch break, the bailiff informed the trial court that Juror Metz had given him a note that read, “Bill, I need to talk to the judge. Mary.” The trial court discussed the note with the prosecutor and defense counsel. Both attorneys suggested the court ought to talk privately with Juror Metz about her concerns, with only the court reporter present. The trial court countered by proposing that, before implementing their suggestions, it would have the bailiff provide Juror Metz with a note asking her to write down the general nature of the concern so that the trial court could determine whether it would be proper to talk with her about it. Both counsel agreed to the court‘s alternative suggestion. A few minutes before 1 p.m., the trial court sent Juror Metz a note that read, “Mary, would you please write out the general matter you wish to speak to me about so I can decide whether it is legally permissible for me to talk with you.” At 1:05 p.m., Juror Metz sent back a note that read, “Judge, I feel 11 of us have come to a decision, and one has not. It is not only myself but others feel this one person does not believe or ever did in the death penalty. Can she be disqualified?” After conferring with counsel, the trial court sent back a note that read, “Mary, it is not legally permissible for me to talk with you about your concerns at this time. You are requested and ordered to keep your communications with me to yourself.” The jury continued its deliberations that afternoon. The following morning, the jury requested a readback of the testimony of Ketcia Hawkins and Zina Sims. The next day, at 9:45 a.m., the jury returned its verdict. Although he concedes the Brasfield rule is not a matter of federal constitutional law (Lowenfeld v. Phelps (1988) 484 U.S. 231, 239-240 [98 L.Ed.2d 568, 578, 108 S.Ct. 546]), he urges that in the circumstances of this case the trial court‘s inquiry violated his federal constitutional rights to a fair trial and an impartial jury. (Locks v. Sumner (9th Cir. 1983) 703 F.2d 403, 406.) Specifically, defendant suggests the inquiry motivated Juror Metz‘s note disclosing that 11 jurors favored a death verdict, and was thus coercive, albeit inadvertently so. We infer that the trial court‘s inquiry in fact motivated Juror Metz‘s disclosure. Even so, however, this circumstance does not persuade us to depart from our many decisions allowing inquiry into a jury‘s numerical split. (People v. Breaux, supra, 1 Cal.4th 281, 319; People v. Morris, supra, 53 Cal.3d 152, 226-227; People v. Rodriguez, supra, 42 Cal.3d at p. 776.) Nothing in the trial court‘s comments remotely can be construed as implying a desire that the holdout juror capitulate to the majority. Defendant argues that by failing to indicate that Juror Metz‘s concerns were inappropriate, but instead allowing further deliberation by a jury which it then knew to be leaning in favor of a death verdict, the trial court effectively conveyed to Juror Metz and other jurors that their concerns could not be remedied by law and that they would have to take matters into their own hands and deal with the holdout juror in the manner they thought best—thus coercively affecting the jurors’ deliberations. Defendant‘s concerns are entirely speculative. We must presume that Juror Metz followed the trial court‘s admonition not to reveal their communications to the other jurors. (People v. Frank (1990) 51 Cal.3d 718, 728 [274 Cal.Rptr. 372, 798 P.2d 1215].) Nor can we agree that by requiring the jurors to continue deliberating, the trial court “validated” the views of jurors favoring the death penalty. After announcing the deadlock, the jury continued to deliberate for a day and a half (during which time it requested and heard a readback of Defendant further contends the trial court erred when it failed to inquire into possible jury misconduct after reading Juror Metz‘s note. Defendant interprets the note as hinting misconduct might be occurring: some of the jurors may have been discussing the case in the absence of the other jurors, and Juror Metz or others may have been coercing the dissenting juror into abandoning her position. Both assertions are entirely speculative and without foundation in the record. In any event, jurors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means. To probe as defendant suggests, in the absence of considerably more cogent evidence of coercion, would “‘deprive the jury room of its inherent quality of free expression.‘” (People v. Keenan (1988) 46 Cal.3d 478, 541 [250 Cal.Rptr. 550, 758 P.2d 1081], quoting People v. Orchard (1971) 17 Cal.App.3d 568, 574 [95 Cal.Rptr. 66].) Consequently, the trial court was not required to make the inquiry for which defendant now argues. Moreover, any such inquiry could in itself have risked pressuring the dissenting juror to conform her vote to that of the majority. (See People v. Keenan, supra, 46 Cal.3d at p. 533.) Defense counsel presumably was aware of the potential for such an outcome, and for that reason might have declined to request such an inquiry. Defendant also contends that, on receiving Juror Metz‘s note, the court had a duty to determine whether the jurors’ statements that the deadlock might be broken were based on a misunderstanding of the court‘s offer to assist, i.e., that the dissenting juror could be disqualified. That contention is easily disposed of: there is no evidence that any juror other than Ms. Metz wondered whether the dissenting juror could be removed, and after reading the trial court‘s reply Juror Metz herself could not reasonably have entertained such a belief. Defendant contends that the cumulative effect of errors during the trial requires reversal of the penalty. Having found in the penalty phase no error of law, and in the guilt phase only the minor errors described above, we disagree. Defendant raises a variety of challenges to the constitutionality of the 1978 death penalty law. He contends the statute is unconstitutional because After judgment was entered in defendant‘s capital trial and his automatic appeal was taken, defendant moved the trial court for an order for preservation of materials offered or received into evidence in the capital trial, materials offered or received into evidence in the earlier trial that resulted in defendant‘s conviction for voluntary manslaughter, and “all law enforcement reports, notes, tape recordings, or other memorializations or fruits of law enforcement investigation or witness interviews, all scientific or forensic reports or notes and underlying documentation, all photographs, and all other items of evidence” related to the capital trial or to the prior manslaughter trial. The trial court denied the motion, concluding it lacked jurisdiction due to the automatic appeal pending in this court. Defendant unsuccessfully petitioned this court for a writ of mandate contesting the jurisdictional determination. He then filed, in the Court of Appeal for the First Appellate District, a notice of appeal from the trial court‘s order denying his motion. We transferred that appeal to this court ( We shall conclude that the trial court‘s postjudgment order did not affect defendant‘s substantial rights, and that the purported appeal must therefore be dismissed. ( Relying primarily on As further authority for his position, defendant cites several appellate decisions recognizing trial court jurisdiction to enter particular types of postjudgment orders. (Hays v. Superior Court (1940) 16 Cal.2d 260, 266-268 [105 P.2d 975] (Hays) [holding that trial court had jurisdiction, pursuant to former In requesting an order for preservation of the fruits of law enforcement and forensic investigations in the capital case and the prior manslaughter To the extent that defendant‘s motion sought an order for preservation of items admitted into evidence, or offered but excluded from evidence, in the capital trial, it was unnecessary. Such items are by law maintained as part of the record of a criminal proceeding. ( Defendant also suggests that the trial court was required to issue the requested order in order to preserve his right to meaningful state and federal habeas review of his conviction and sentence. He cites no specific authority for this point, and we do not find it persuasive. It follows, then, that because the trial court lacked jurisdiction to require preservation of investigative materials in the equivalent of postjudgment discovery proceedings, and because the other materials whose preservation defendant sought were already a part of the record, the trial court‘s order denying his motion did not affect his substantial rights. Under The judgment in No. S004778 is affirmed. The purported appeal in No. S012228 is dismissed. Lucas, C. J., Arabian, J., Baxter, J., and George, J., concurred. MOSK, J.—I concur in the judgment. After review, I agree with the majority that the judgment in No. S004778 (Crim. No. 26412) should be affirmed and that the appeal in No. S012228 should be dismissed. The seminal case on “lingering doubt” is People v. Terry (1964) 61 Cal.2d 137 [37 Cal.Rptr. 605, 390 P.2d 381]. In that case, we held that the California death penalty law did not permit a capital defendant to “attack . . . the legality of the . . . adjudication” of guilt. (People v. Terry, supra, 61 Cal.2d at p. 145.) Our conclusion “rest[ed] upon the self-evident prohibition of any attempt to relitigate the . . . conviction.” (Ibid.) But we also held that the statutory scheme did indeed allow capital jurors to “conclude that the prosecution has discharged its burden of proving defendant‘s guilt beyond a reasonable doubt but . . . still demand a greater degree of certainty of guilt for the imposition of the death penalty.” (People v. Terry, supra, 61 Cal.2d at pp. 145-146.) We explained: “The jury‘s task, like the historian‘s, must be to discover and evaluate events that have faded into the past, and no human can perform that function with certainty. Judges and juries must time and again reach decisions that are not free from doubt; only the most fatuous would claim the adjudication of guilt to be infallible. The lingering doubts of jurors in the guilt phase may well cast their shadows into the penalty phase and in some measure affect the nature of the punishment. Even were it desirable to insulate the psychological reactions of the jurors as to each trial, no legal dictum could compel such division, and, in any event, no statute designs it.” (Id. at p. 146.)1 In the almost 30 years that have passed since we decided Terry, we have firmly adhered to its teaching. (See, e.g., People v. Coleman (1969) 71Cal.2d 1159, 1168 [80 Cal.Rptr. 920, 459 P.2d 248]; People v. Haskett (1982) 30 Cal.3d 841, 866 [180 Cal.Rptr. 640, 640 P.2d 776]; People v. Thompson (1988) 45 Cal.3d 86, 134-135 [246 Cal.Rptr. 245, 753 P.2d 37]; People v. Cox (1991) 53 Cal.3d 618, 675-679 [280 Cal.Rptr. 692, 809 P.2d 351]; People v. DeSantis (1992) 2 Cal.4th 1198, 1238-1240 [9 Cal.Rptr.2d 628, 831 P.2d 1210].) It might perhaps be argued that the California death penalty law, as it now stands, does not allow capital jurors to entertain, and act on, “lingering doubt.” Such an argument would prove unpersuasive. In pertinent part, the statutory scheme today is substantially similar to its predecessor at the time of Terry. Then, it provided: “Evidence may be presented at the . . . proceedings on the issue of penalty, of the circumstances surrounding the crime, of the defendant‘s background and history, and of any facts in aggravation or mitigation of the penalty.” ( To be sure, in the years following Terry, the statutory scheme has experienced many changes. Most prominent for purposes here is the addition of a list of factors that the jury is required to “take into account,” “if relevant,” “[i]n determining penalty.” ( As a general matter, whether or not to expressly instruct on “lingering doubt” must be entrusted to the trial court‘s discretion. An instruction of this Under certain circumstances, however, the trial court is required to expressly instruct on “lingering doubt.” As shown, the California death penalty law allows capital jurors, in determining penalty, to entertain, and act on, such doubt. The court is obligated to give an express instruction on the matter when there is a reasonable likelihood that, in the absence of such an advisement, the jury will labor under a misconception in this regard. A reasonable likelihood of this sort would compel a finding of error. (See generally People v. Clair (1992) 2 Cal.4th 629, 662-663 [7 Cal.Rptr.2d 564, 828 P.2d 705].) Error, of course, must be avoided.3 I now turn to the case at bar. As stated, defendant claims that the trial court erred by refusing his express instruction on “lingering doubt.” The point proves to lack merit. To begin with, the trial court was not required to expressly instruct on “lingering doubt.” “Lingering doubt,” in defendant‘s own words, was one of his “most central themes” at the penalty phase. The People made no suggestion that such doubt was in any way immaterial. Further, the trial court‘s charge did not preclude “lingering doubt.” Quite the contrary. Specifically, it directed the jurors to consider certain factors in In view of the foregoing, there was not a reasonable likelihood that, without an express instruction on “lingering doubt,” the jury would labor under any misconception in this regard. (Compare People v. Raley (1992) 2 Cal.4th 870, 918-919 [8 Cal.Rptr.2d 678, 830 P.2d 712] [arriving at a similar conclusion on a similar record for similar reasons]; People v. Price (1991) 1 Cal.4th 324, 488-489 [same]; People v. Sully (1991) 53 Cal.3d 1195, 1246 [283 Cal.Rptr. 144, 812 P.2d 163] [same].) Because the trial court was not required to expressly instruct on “lingering doubt,” it had discretion to do so or not. Its decision not to instruct cannot be deemed an abuse of discretion. Its implicit assessment that the possible benefit was not worth the potential cost was not unreasonable. Accordingly, having found no basis for doing otherwise, I join the majority in affirming the judgment in No. S004778 (Crim. No. 26412) and in dismissing the appeal in No. S012228. Kennard, J., concurred. Appellant‘s petition for a rehearing was denied January 20, 1993.3. Miscellaneous Contentions
B. Prosecutorial Argument
1. Booth-Gathers Error
2. Boyd Error
3. Claims of Caldwell and Brown Error
C. Refusal to Give Lingering Doubt Instruction
D. Jury Coercion
E. Cumulative Effect of Errors
F. Constitutionality of 1978 Death Penalty Law
CASE NO. S012228
DISPOSITION
Notes
We disagree. Miranda warnings, which advise the suspect that anything he says may be used in evidence, do not contradict an admonition that a suspect has no right to refuse to stand in a lineup. Defendant was expressly warned that he had no right to refuse to participate and that his refusal could be used against him at trial. In light of that warning, his refusal was not unreliable as an indication of his consciousness of guilt. Therefore,
We also reject defendant‘s assertion, citing People v. Boyer (1989) 48 Cal.3d 247, 273, footnote 14, [256 Cal.Rptr. 96, 768 P.2d 610], that admission of his statements represented an arbitrary abrogation of a state-created right.
“In determining the weight to be given eyewitness identification testimony, you should consider the believability of the eyewitness as well as the other factors which bear upon the accuracy of the witness’ identification of the defendant; including, but not limited to any of the following: The opportunity of the witness to observe the alleged criminal act and the perpetrator of the act including but not limited to any of the following:
“A. The length of time the witness saw the perpetrator;
“B. The positions and distances between the witness and the perpetrator at various times;
“C. The lighting conditions;
“D. The presence or absence of any circumstances that might focus or distract the witness’ attention;
“The stress, if any, to which the witness was subjected at the time of the observation;
“The witness’ ability following the observation to provide a description of the perpetrator of the act;
“The extent to which the defendant either fits or does not fit the description of the perpetrator previously given by the witness;
“The witness’ capacity to make an identification;
“Evidence relating to the witness’ ability to identify other perpetrators of the criminal act;
“Whether the witness was able to identify the perpetrator in a photographic lineup;
“Fairness of the photographic lineup;“Whether a perpetrator was familiar to the witness;
“Whether a perpetrator was unfamiliar to the witness;
“Testimony of any expert regarding acquisition, retention, or retrieval of information presented to the senses of an eyewitness;
“Whether the witness’ memory was or was not affected by intervening time and events;
“The extent to which the witness was either certain or uncertain of the identification;
“Whether the witness’ identification is in fact the product of her own recollection.”