Lead Opinion
Opinion
I.
Introduction
By information filed in San Mateo County Superior Court, defendant Láveme Johnson was charged with two counts of murder (Pen. Code, § 187; all further statutory references are to this code unless otherwise indicated), and one count of arson of an inhabited dwelling (§451, subd. (b)). The information alleged the murders constituted a special circumstance of multiple murder (§ 190.2, subd. (a)(3)).
The jury found defendant guilty on all three counts, finding true the special circumstance allegation. The jury subsequently returned a death verdict, and the trial court sentenced defendant to death. This appeal is automatic. (§ 1239, subd. (b).) We note that on April 15, 1993, defendant filed a habeas corpus petition with this court. We denied the petition on September 15, without issuing an order to show cause.
As will appear, we reject defendant’s claims of prejudicial error and affirm the judgment in its entirety.
II.
Facts
On January 15, 1986, police officers and firefighters were summoned to a house fire in Daly City. Inside the house, the officers found the bodies of Maria Victoria Holmes, aged 52, and her daughter, Luisa Anna Castro, 32. The evidence indicated that two fires (one upstairs, and one downstairs) had been intentionally set, probably through the use of some flammable liquid. Victim Holmes evidently had been severely beaten and kicked. Her body showed extensive contusions and abrasions; her face was swollen and bloody. An autopsy indicated she died from 12 or more blows to her head
Further investigation revealed the following facts: Victim Holmes was a hotel manager who wore expensive jewelry and possessed an extensive collection of gold jewelry from Central America. She shared her home with her daughter, victim Castro, a nightclub security guard, who was currently dating defendant, a customer of the club. Castro also had a collection of gold jewelry and frequently boasted of it. On the night of the murders, Castro had prepared dinner for defendant at her home after they had driven her children to a babysitter. Later that evening, someone murdered the two women, stole their jewelry, and set fire to their home in an apparent attempt to cover up the crimes.
Defendant was arrested after a girlfriend, Roshaun Fuller, told police that he had admitted assaulting the women and taking their jewelry. According to Fuller, defendant stated he “knocked out” Castro and, when victim Holmes came upstairs to investigate, he knocked her down and kicked her in the head. Defendant had been seen wearing, and later pawning, some gold jewelry, although it could not positively be traced to the victims. Defendant also admitted to the investigating officers some facts regarding his relationship with Castro, including sharing dinner with her at her home on or about the night of the murders. According to defendant, he left the house after Castro had become intoxicated and fallen asleep. Although defendant denied killing the women, at one point he told the interrogating officer that, “I probably did do it, but you are not going to get me to say I did do it.”
The defense offered an alibi (defendant was seen engaging in a bar fight on the day in question) and evidence to cast doubts on Fuller’s testimony, which was frequently contradictory and inconsistent. According to a defense investigator, Fuller admitted lying to police regarding defendant’s admission that he assaulted both women.
At the penalty phase, the People admitted evidence of defendant’s prior crimes, including four prior felony convictions for robbery, burglary, disorderly conduct (transmitting a false alarm), and theft, and numerous unadjudicated offenses including rapes, oral copulation, robberies, batteries and assaults.
The defense relied primarily on background and character evidence, including testimony regarding defendant’s troubled childhood, his lack of parental guidance, and the likelihood he would succeed in a supervised
A defense psychologist, Dr. Fricke, testified regarding defendant’s sociopathic personality. On rebuttal, a prosecution psychiatrist stressed defendant’s antisocial and manipulative personality, and his potential dangerousness.
III.
Guilt Phase Contentions
A. Discharge of Juror Solano
Defendant first contends the court erred in discharging Juror William Solano after trial had commenced. In a related contention, defendant asserts he was wrongfully excluded from the in camera hearing held to determine whether Solano should be excused. We conclude neither contention has merit.
Near the close of the prosecution’s case-in-chief, the court called for an in-chambers conference and revealed the following facts and observations: Juror Solano did not appear to be paying attention to the witnesses; instead, he was either watching the judge or defendant, or was “doodling” in his notebook. Solano “consistently smiled” at defendant, “to the extent that the teeth are showing.” On many occasions, defendant smiled or nodded back at Solano. In addition, the court noted that Solano had been late in arriving at the courtroom at least three times, and that he tended to close his eyes and possibly “nod off” during court proceedings. The court further indicated that police records revealed Solano had been arrested for possessing narcotics, contrary to his jury questionnaire response that his only arrest was “for being out late while under age.”
The court questioned the two courtroom deputies, who confirmed that Solano appeared to be paying no attention to the proceedings. Deputy Kutch read from his logbook, which indicated Solano had “nodded off” three times, had doodled for fifteen minutes on one occasion, and had nodded or smiled at defendant seven times during the trial. Deputy Steiner confirmed that Solano had closed his eyes for a short time on several occasions, and had frequently smiled at or greeted defendant before lunch breaks.
The prosecutor asked that Solano be examined regarding his fitness to remain on the jury. The prosecutor observed that on one occasion he noticed
Defense counsel objected to the hearing, noting that several other jurors had also either closed their eyes during testimony or smiled at defendant. Counsel also requested that defendant be present at any further hearing on Solano’s status as a juror. The court denied this request on the basis that the hearing was not part of the trial, did not involve defendant’s guilt, and bore no reasonable relation to defendant’s opportunity to defend himself. Additionally, according to the court, defendant’s presence might intimidate Solano and make it more difficult to extract accurate responses from him.
Defense counsel indicated that, in order to avoid alienating Solano, he too would not attend the hearing. The prosecutor likewise elected not to attend. The court thereupon questioned Solano in his chambers on a variety of subjects. When asked about his response to the questionnaire inquiry regarding prior arrests, Solano acknowledged he had been arrested when cocaine had been discovered nearby, and had also been arrested for public intoxication. When asked why he had failed to reveal that information, he replied that “I was just trying to get through with this questionnaire as soon as possible. It just didn’t seem that important to me.”
Solano also acknowledged he had closed his eyes occasionally during trial, and had nodded or smiled at defendant from time to time. According to Solano, these gestures and smiles were “just a reaction [to] someone smiling at me . . . .1 smile back.”
The court ruled that Solano should be excused because of his concealment of his prior arrests, and because of his sleeping during the course of the trial. The court replaced Solano with one of the alternate jurors, Samuel Ybarra.
1. Defendant’s absence from hearing
Before examining the propriety of discharging Solano, we must determine whether the court erred in refusing to allow defendant personally to attend the in-chambers hearing regarding possible discharge of the juror.
The defendant has a constitutional (Cal. Const., art. I, § 15) and statutory (§§ 977, subd. (b), 1043, subd. (a)) right to be personally present at his trial. (See also United States v. Gagnon (1985)
Although the broad language of the foregoing section appears to grant the defendant an unqualified right to attend all in-chambers conferences, we have held that the defendant’s absence from various court proceedings, “even without waiver, may be declared nonprejudicial in situations where his presence does not bear a ‘reasonably substantial relation to the fullness of his opportunity to defend against the charge.’ ” (People v. Garrison (1989)
We initially reject defendant’s assertion that the Solano hearing was one involving the presentation of evidence to “the trier of fact" within the meaning of section 977, subdivision (b), thereby compelling his presence under the terms of that section. It seems clear the foregoing “evidence presentation” provision has no application to in-chambers hearings on collateral matters held outside the jury’s presence.
Accordingly, under the foregoing cases, in determining whether defendant was prejudiced by being excluded from the Solano hearing, we must inquire whether defendant’s presence bore a “reasonably substantial relation to the fullness of his opportunity to defend against the charges” against him.
In situations similar to the present case, although occurring prior to the enactment of section 977, subdivision (b), we have indicated that the defendant would have no right to attend such hearings. (In re Lessard (1965)
Defendant relies on various federal and sister-state cases which indicate a criminal defendant has a right to attend in-chambers conferences regarding a juror’s impartiality, qualifications or possible misconduct. (E.g., Walker v. Lockhart (8th Cir. 1988)
As respondent observes, many of defendant’s cited cases preceded the decision of the United States Supreme Court in United States v. Gagnon, supra, 470 U.S. at pages 526-527 [84 L.Ed.2d at pages 490-491], wherein the high court made it clear that due process principles do not entitle the defendant to appear at every encounter between judge and jurors. As Gagnon explains, the central inquiry in such situations is whether the defendant’s presence at the hearing reasonably could have assisted his defense of the charges against him. (Ibid.)
As we have discussed, defendant fails to convince us that his presence could have assisted his defense in any way. Thus, we conclude that, although defendant may have had a statutory right to attend the Solano hearing, his exclusion therefrom did not amount to prejudicial error because it is unlikely
As stated in People v. Dell, supra, “appellant does not claim she was actually prejudiced from the substitution of jurors nor does it appear she could reasonably make such an argument. Alternates are selected from the same source, in the same manner, with the same qualifications and are subject to the same challenges. Alternates have an equal opportunity to observe the entire proceedings and take the same oath as regular jurors. [Citation.] In this case, appellant had ample opportunity to voir dire the alternates and use her allotted peremptory challenges. [Citation.] Nor is there any allegation the alternates were either incompetent or biased." (232 Cal.App.3d at pp. 256-257.)
The foregoing authorities seem apposite here. Accordingly, we conclude that no prejudicial error occurred by reason of defendant’s exclusion from the Solano hearing.
2. Defense counsel’s absence from hearing
Defendant next contends that his counsel’s absence from the Solano hearing deprived him of the right to counsel at a critical stage of the proceedings. The contention lacks merit.
As previously discussed, defense counsel made a tactical decision not to attend the hearing. Counsel indicated he wished to avoid alienating Solano should he remain a juror in the case. Although defendant argues that such a decision required his personal consent, our decisions indicate that trial counsel has discretion to make “an informed decision as to the necessity of attending” in-chambers proceedings. (People v. Medina, supra,
3. Solano was properly discharged
Defendant next contends the court erred in discharging Juror Solano. As previously noted, the court discharged Solano for two reasons, namely, (1) his sleeping during the trial, and (2) his untruthful or incomplete responses to the jury questionnaire.
Defendant contends there was no evidence that Solano was actually sleeping. He cites cases indicating that jury verdicts will not be overturned in the absence of “convincing proof" that a juror actually slept during trial. (E.g., Hasson v. Ford Motor Co. (1982)
The present case does not involve a claim of juror misconduct sufficient to overturn a verdict. Instead, we must determine whether the trial court abused its discretion in discharging one juror and substituting an alternate. Under section 1089, the court, upon “good cause shown,” may discharge any juror “found to be unable to perform his duty” at any time during the trial. (See also Code Civ. Proc., § 233.) The determination of “good cause” rests in the sound discretion of the court (People v. Abbott, supra,
Here, there was ample evidence indicating that on one or more occasions Solano had actually fallen asleep during trial. The court, its two deputies, and the prosecutor each stated on the record that they had observed defendant exhibiting various physical indicia of sleep, including eye closures, head nodding, and slumping in his chair.
In a related contention, defendant suggests he was denied due process by the discharge of Juror Solano without a showing of “legal necessity.” He suggests he had a constitutional right to be tried by the first jury impaneled to try his case. None of the cases cited by defendant in support of this argument indicates that due process principles would forbid substitution of an alternate juror under the circumstances presented here. (See, e.g., U.S. v. Bates (9th Cir. 1990)
Defendant also argues he was denied due process by the trial court’s “ex parte” manner of investigating Juror Solano’s suitability as a juror. In defendant’s view, the court “abandoned its role as a neutral arbiter” by secretly observing Solano, recording his conduct, and examining his questionnaire responses and arrest record, before announcing to the parties the court’s doubts as to his suitability.
Defendant cites no cases suggesting the trial court, in the course of investigating whether good cause exists to replace a juror suspected of misconduct or inattentiveness, must reveal its concerns to the defendant or his counsel before conducting further investigation. It is doubtful that such a limitation on the court’s discretion under section 1089 is necessary to protect any of the defendant’s legitimate interests. (See People v. Keenan (1988)
We conclude the court properly discharged Juror Solano.
Alternate Juror Samuel Ybarra was chosen to replace Juror Solano. Although defendant had not previously objected to the selection of Ybarra as an alternate, nonetheless, once he was substituted as a juror to replace Solano, defense counsel moved for a mistrial. Counsel represented that Ybarra was unacceptable to defendant and would have been challenged earlier had defendant been allowed to exercise another peremptory challenge. (The court had allowed both sides only one challenge “per seat” for the four alternate jurors, and defendant had previously used his challenge for the seat ultimately given to Ybarra.) The motion was denied.
Defendant now argues he should have been given “a number of peremptory challenges equal to the number of alternates selected and unencumbered by any restriction to any particular seat.” The objection to the court’s allocation of peremptory challenges comes too late. Objections to the jury selection process must be made when the selection occurs. (See People v. Caro (1988)
C. Admissibility of Defendant’s Statements
Defendant contends the court erred in admitting certain statements he made to police officers on March 28 and April 3, 1986. We conclude the statements were properly admitted and, in any event, any Miranda error was harmless beyond a reasonable doubt.
1. March 28 interview
On March 28, 1986, defendant was interviewed by Officers McCarthy and Keate concerning the murders of Castro and Holmes. Officer McCarthy told defendant the purpose of the interview, and defendant replied, “fine.” When McCarthy brought out a tape recorder, defendant objected, stating “No tape recording, I don’t want to incriminate myself.” The recorder was not used.
Officer McCarthy thereupon read defendant his Miranda rights (see Miranda v. Arizona (1966)
Defendant, stating “This is off the record,” next asked Officer McCarthy if a 10-year sentence was possible for the murder charges. McCarthy replied that the matter of sentence was up to the district attorney, the court and defendant’s counsel. Defendant acknowledged he was worried about receiving a death sentence. (As explained below, the foregoing “off the record” discussion about sentencing was ruled inadmissible.)
Defendant next asked Officer McCarthy to “Tell me what you have and I might make you a proposition.” McCarthy replied that he customarily did not disclose evidentiary details. Defendant indicated that he would not “say” anything “without some kind of arrangement.” He also declared that “I probably did do it, but you are not going to get me to say I did do it.” Defendant then asked McCarthy to approach the district attorney and negotiate a 10-year sentence for the murder charges.
2. April 3 interview
On April 2, Officer Quinn received a phone call from a person identifying himself as “Antonin.” (Defendant was also known as Antonin Capriano.) Antonin indicated he was confined at the San Mateo County jail and wished to speak to the officer. Officers Quinn and McCarthy visited defendant and again read him his Miranda rights. Defendant again confirmed he understood" these rights and wished to talk with the officers.
At one point in the interview, the officers asked defendant to tell what happened in regard to Castro and Holmes. Defendant insisted the discussion be “off the record,” stating that he was not going to incriminate himself by telling what happened. He added that he would plead guilty to manslaughter “for two years.” After terminating the interview (“I don’t want to say anything else”), he called the officers back and told them to see if the district attorney would “go for twenty straight years for the case.”
According to the Attorney General, and not disputed by defendant’s appellate counsel, none of defendant’s statements at the April 3 interview was introduced at trial. Accordingly, it is apparent that defendant could not have been prejudiced by any asserted Miranda errors occurring during that interview, and we do not discuss defendant’s claims in that regard.
Defendant moved the trial court to suppress his statements, asserting that the interviews continued after he had invoked his rights to remain silent and to consult with an attorney. The court disagreed, finding that defendant had voluntarily waived those rights, and did not reinvoke them. The court also ruled, however, that in light of defendant’s “off the record” assertions during the course of both interviews, any statements immediately following these assertions would be inadmissible. The affected statements related to possible plea bargains or potential sentences for the murders.
4. Discussion
As we stated in People v. Boyer (1989)
a. “No tape recorder” remark
Defendant contends he invoked his right to remain silent at the outset of the March 28 interview by remarking: “No tape recorder. I don’t want to incriminate myself.” The trial court found that this remark was ambiguous and did not necessarily disclose an intent to “cut off’ all questions, as opposed to merely expressing an objection to the use of a tape recorder to memorialize defendant’s responses. In the trial court’s view, defendant’s remarks indicated only a “partial restriction” on his willingness to speak to the officers. Accordingly, they were entitled to continue the interrogation once they clarified the situation by giving Miranda advisements and obtaining defendant’s express consent to be interviewed. We agree. As indicated previously, the advisements, and defendant’s agreement to talk, occurred immediately following his “no tape recorder” remark and clearly confirmed his general willingness to speak to the officers.
Defendant asserts his remarks showed he was unwilling to “freely and completely” discuss his case with the police. (See People v. Burton (1971)
Defendant contends that prior cases have held a suspect’s refusal to permit a tape-recorded interview constitutes an invocation of his right to remain silent. (See People v. Hinds (1984)
In the present case, by contrast, the trial court found no such clear intent on defendant’s part. Although defendant asked that the proceedings go “off the record” at various points during the interviews, he expressed no general expectation of privacy covering the entire interview. (We discuss in a subsequent part of this opinion defendant’s separate contention that his requests for “off-the-record” treatment required the officers to terminate further questioning.) As another recent case observes, “it was for the trial court to determine whether [the defendant’s] refusal to . . .be recorded was in fact an invocation of his right to silence. The court found [the defendant] in fact had understood his rights and waived them, and his conversations with the officers were therefore voluntary. Such a conclusion was reasonable, and we will not disturb it on this appeal. [Citations.]” (People v. Maier (1991)
Defendant observes that he linked the “no tape recorder” remark with the explanation that “I don’t want to incriminate myself,” a statement defendant deems an explicit invocation of his self-incrimination privilege. But the trial court reasonably could find that the remark, being linked to defendant’s insistence on “no tape recorder,” merely expressed his assumption that only recorded statements could incriminate him at trial. Immediately after defendant made this remark, the officers read defendant the Miranda advisements, and asked defendant if he wished to talk to them. These advisements included the unqualified admonition that anything defendant said to the officers could be used against him in a court of law. The trial court reasonably could find that this admonition cleared up any possible misconception defendant previously may have entertained regarding the admissibility of his unrecorded statements to the officers.
b. Defendant’s references to securing a lawyer
Midway during the March 28 interview, Officer McCarthy indicated (as he had already done several times during the interview) that murder charges would be brought against defendant. He replied that “My mother will put out money for a high price lawyer out of New York.” McCarthy asked for the name of defendant’s lawyer, but he refused to furnish it, stating, “I don’t want you talking to my lawyer.”
Thereafter, following a discussion (initiated by defendant) of the possible penalties that might be imposed for the murders, including death or life without possibility of parole, defendant stated, “Give me a minute, I might tell you something you want to hear.” After a few moments of silence, defendant then said, “Maybe I ought to talk to my lawyer, you might be bluffing, you might not have enough to charge murder.” Officer McCarthy immediately asked defendant if he wanted to talk to a lawyer before answering more questions, and defendant simply repeated that he thought McCarthy was bluffing. He made no further mention of lawyers during this interview.
Defendant contends that each of the foregoing references to lawyers invoked his right to counsel and should have induced the officers to terminate the interview. The trial court ruled that defendant’s initial remark regarding his mother securing a “high price" lawyer was “not an expression of an intent to terminate the interview at that time, but instead related to a future trial and not to present questioning.” We agree.
The cases hold that if a defendant indicates in any manner that he wishes to consult with an attorney, the interrogation must cease. (Miranda v. Arizona, supra, 384 U.S. at pp. 444-445 [16 L.Ed.2d at pp. 706-707]; People v. Boyer, supra,
Yet we have found no case suggesting that a suspect’s statement concerning the possible retention of a lawyer for future proceedings would require termination of a police interrogation. (See Zolnay, supra,
Defendant’s second remark, “Maybe I ought to talk to a lawyer,” is considerably more troublesome. The trial court ruled that the word “maybe” rendered the statement equivocal, and that in context the reference to a lawyer was not intended as an invocation of defendant’s right to remain silent. Defendant’s intent to continue the interview was confirmed by his failure to respond to McCarthy’s immediate inquiry as to whether defendant wanted an attorney, and by defendant’s subsequent request of McCarthy to “Tell me what you have and I might make you a proposition.”
As previously indicated, the courts have found Miranda violations despite considerable equivocation by the defendant. We briefly review the apposite decisions.
In Zolnay, supra,
The present case is factually distinguishable from Zolnay, supra, in several respects. Initially, on this record it is highly unlikely that defendant’s reference to an attorney disclosed his confusion or uncertainty about continuing the interview. A reading of Officer McCarthy’s notes of the interrogation reveals that from start to finish defendant maintained a confident, “cocky” attitude, verbally sparring with the officer, expressing doubts about the strength or admissibility of the evidence against him, negotiating with McCarthy for a possible reduced sentence, and bragging about his good looks, his various girlfriends, his ability to produce an alibi for “any date you want,” and his mother’s ability to hire an expensive lawyer. As McCarthy noted, defendant appeared to “almost relish[] his role as the focus of our attention . . . .” Unlike the situation in Zolnay, supra, defendant never asked the deputies to recommend an attorney, and he declined to respond to McCarthy’s attempts to learn his lawyer’s name or to determine whether he in fact truly wanted to speak to an attorney.
In People v. Munoz, supra,
The Munoz court, citing our Zolnay decision, supra,
In People v. Hinds, supra,
The Hinds court, explaining that “ ‘Ambiguous statements are to be construed as invocations . . . ,’” found that the suspect’s initial inquiry was
People v. Bestelmeyer, supra,
The Bestelmeyer court found that the suspect’s initial remark was too ambiguous to amount to an invocation of his right to the presence of counsel, and that substantial evidence supported the lower court’s finding that the suspect knowingly waived that right. (166 Cal.App.3d at pp. 527-528.)
Turning to the present case, we think that in light of the whole record, including defendant’s overall conduct and demeanor during the interrogation, the ambiguous and tentative nature of his reference to an attorney, Officer McCarthy’s immediate attempt to clarify defendant’s remark, and defendant’s refusal to respond thereto, there was substantial evidence to support the trial court’s determination that defendant did not invoke his right to counsel. Accordingly, it is unnecessary to determine whether the asserted Miranda error was prejudicial. (See pt. III. C.4.d., post.)
c. The “off-the-record” request
As noted above, at one point in the March 28 interview, after Officer McCarthy had assured defendant that he was not “bluffing" about charging defendant with murder, defendant abruptly stated, “This is off the record.” McCarthy replied, “You’re doing all the talking, don’t let me stop you, go ahead.” Defendant thereupon asked McCarthy, “Can you get me 10 years?” The ensuing discussion concerned possible penalties that might be imposed. (All of these “sentencing” discussions were excluded at trial.) Soon thereafter, defendant asked McCarthy, “Tell me what you have and I might make
Immediately thereafter, defendant again said, “This is off the record,” and McCarthy told him to go ahead. Defendant then directed McCarthy to go to the district attorney and “get me ten straight. . . years, and I will give you something you want.” The remaining discussion concerned possible arrangements for reduced sentences in return for defendant’s statement about the murders.
The trial court found that defendant’s “off the record” requests pertained only to the sentencing and plea bargain discussions which immediately followed those requests, and that accordingly any statements not pertaining to sentencing were admissible. The court ruled that only the sentencing discussions would be inadmissible at trial.
Defendant contends that all statements following his initial “off-the-record” request should have been suppressed, because McCarthy never informed him that the interview was no longer “off the record.” He cites no cases imposing such a rigid requirement, and we have found none so holding. The main inquiry should be whether defendant knowingly and intelligently waived his right to remain silent. Here, the trial court found the waiver remained valid as to discussions not involving sentencing. (See People v. Silva (1988)
It could be argued that defendant’s request that the interview proceed “off the record” disclosed his confusion about the admissibility of his statements
Braeseke, supra,
d. Prejudice
The principal inculpatory statement made by defendant after he indicated he “maybe” needed counsel and requested “off-the-record” treatment was his statement that “I probably did do it [kill victim Castro], but you are not going to get me to say I did do it.” The prosecutor emphasized this statement in his closing argument to the jury. The statement, though somewhat softened by the word “probably,” nonetheless reasonably could be viewed as a confession or admission of guilt. We note, however, that (as disclosed to the jury) during the same interview defendant repeatedly denied his guilt of either murder. In context, the jury could have viewed defendant’s “probably guilty” remark as more of a taunt to the interrogating officer than an outright admission of guilt.
Under federal law, the test of prejudice for admitting a coerced confession is the Chapman test, requiring reversal unless the error was harmless beyond a reasonable doubt. (See Arizona v. Fulminante (1991)
Was any Miranda error in this case harmless beyond a reasonable doubt? On this record, we believe it was. Defendant, before suggesting that he “maybe” should see his lawyer, and before asking to go “off the record,” admitted to Officer McCarthy that he knew Castro and had visited her on or about the night of the murders. According to defendant, on the last such visit, he drove Castro’s children to a babysitter, ate dinner with her, had “sex” with her and drank with her until she became intoxicated and fell asleep. Her mother, victim Holmes, called from downstairs to inquire of Castro, and defendant told her Castro was asleep. All this evidence of defendant’s involvement with the two victims on or about the night they were murdered was seemingly untainted by defendant’s subsequent claimed invocations of his Miranda rights.
In addition, defendant’s girlfriend, Roshaun Fuller, testified at trial that defendant had admitted to her that he “knocked out” victim Castro, “hit” victim Holmes on the back of her head, and thereafter stole $200 and a ziploc bag of heavy gold jewelry from them. Other witnesses placed defendant with Castro on or about the night of the murders, and later observed him wearing expensive gold jewelry and new clothes.
Significantly, other than pointing to flaws and inconsistencies in witness Fuller’s testimony, the defense failed to rebut the foregoing evidence or to raise any credible defenses to the murder charges. In light of the strong incriminating evidence that was properly admitted at trial, we conclude that admission of defendant’s equivocal statement that he “probably did it” was harmless beyond a reasonable doubt.
D. Testimony of Denise Lancaster
Defendant contends the court erred in allowing witness Denise Lancaster to testify at the guilt phase that defendant had threatened to kill her and had told her he had killed before. At an in limine hearing, Lancaster testified she had picked up defendant in March 1986 while he was hitchhiking. (The charged murders occurred in January 1986.) He raped her, threatened to kill
Defendant asserts Lancaster’s testimony that he had killed before was irrelevant because the statement was not linked to the charged murders. (Cf. People v. Hamilton (1985)
We think that defendant’s admission of a prior killing or killings, made soon after the charged murders were committed, was relevant to the ultimate question of defendant’s guilt. The. jury was entitled to infer that defendant was referring to the killing of Castro and Holmes. The fact that he could have been referring to an unrelated killing goes more to the weight of his statement than to its admissibility. Moreover, in light of the other evidence of defendant’s guilt, outlined above, any error in admitting Lancaster’s testimony concerning defendant’s admission of a prior killing was harmless.
We note that defendant does not argue the inadmissibility of Lancaster’s recital of defendant’s threat to kill her. Although this evidence seemingly would have little relevance to the issue of defendant’s guilt, it is at least arguable the threat confirmed defendant’s intent or state of mind to kill those who opposed him. (See People v. Lang, supra, 49 Cal.3d at pp. 1013-1016.) In any event, any error in admitting the statement was undoubtedly harmless in light of the remaining evidence of guilt.
E. Ineffective Counsel Claim
As previously noted, victim Castro was strangled with a wire wrapped around her neck. The wire was examined by a prosecution expert, Mario Soto, who testified at trial the wire was a telephone cord that had been cut, rather than tom, from the wall. According to Soto, prior to forming the foregoing conclusion, he purchased some telephone wire and tried cutting and breaking it to duplicate the ends of the wire found around Castro’s neck. The cut wire more closely resembled the wire found at the scene. Defense counsel made no objection to this testimony.
Defendant now contends counsel was ineffective in failing to object to Soto’s testimony on the ground that no proper foundation was laid to
On the present record, we find no basis for concluding that counsel’s failure to object reflected his incompetence. As a general rule, failure to object to specific items of evidence “involves tactical decisions on counsel’s part and seldom establishes counsel’s incompetence. [Citation].” (People v. Jackson, supra,
F. Evidence and Instructions Relating to Burglary
As previously indicated, the jury found defendant guilty of two counts of first degree murder. The murder charges against defendant alleged both premeditated murder and felony murder. To establish the latter, the People attempted to prove defendant committed an underlying burglary (§ 459), based in part on his possession of jewelry recently stolen from the victims. (The People also attempted to prove an underlying rape was committed [§ 261], as discussed post, pt. III. G.) Objecting to any instructions on the offense of burglary, the defense noted the absence of evidence indicating defendant entered the victim’s home with the intent to steal the jewelry.
The trial court nonetheless instructed the jury regarding the crime of burglary, and additionally instructed, based on CALJIC No. 2.15 (5th ed. 1988), as follows:
“Conscious possession of recently stolen property is not in and of itself sufficient to permit an inference that the defendant committed the crime of burglary. Before guilt may be inferred, there must be corroborating evidence tending to prove defendant’s guilt. However, this evidence need only be
Defendant now raises a variety of claims of error arising from giving the foregoing instruction. We find no merit in any of them.
1. Evidence of burglary
First, defendant asserts the instruction was improper because there was insufficient evidence a burglary had in fact occurred. (Cf. People v. Morris (1988)
Examination of the record indicates there was sufficient circumstantial evidence of a burglary, and of defendant’s intent to steal the victims’ jewelry when he entered the victims’ home. (See People v. Earl (1973)
We conclude that, in light of the foregoing record, there was sufficient evidence of a burglary, including a preexisting intent to steal. Accordingly, the court did not err in giving CALJIC No. 2.15.
2. Evidence of possession of stolen jewelry
As previously noted, under People v. Morris, supra,
Several witnesses described in detail various items of the victims’ missing jewelry, including a large “coin-type” medallion worn by victim Holmes. Witness Constance Smith testified that this medallion could have been the same one she saw defendant wearing following the murders. As previously noted, defendant was seen wearing gold rings, bracelets and necklaces, and was also seen pawning some gold jewelry. He told Roshaun Fuller that he assaulted and “robbed” both victims after ransacking their rooms and taking their jewelry. We conclude the record contains sufficient evidence of possession of stolen property to justify the instruction.
3. Presumption of burglary
Defendant asserts that CALJIC No. 2.15 created ah improper presumption of burglary arising from the mere fact of possession of stolen property. But the instruction does not so state. Indeed, it relates a contrary proposition: a burglary may not be presumed from mere possession unless the commission of the offense is corroborated. (Defendant suggests the instruction allows corroboration merely by evidence of the charged offense of murder, but we think it clear that, read in context, the instruction requires corroboration of the underlying burglary, and not the murder itself.) Moreover, as the People observe, the ultimate question whether or not a burglary "occurred, and the subsidiary question whether defendant possessed the requisite preexisting intent to steal, were left to the jury through the usual instructions regarding the elements of that offense. Thus, contrary to defendant’s assumption, CALJIC No. 2.15 did not remove the issue of intent from the jury’s consideration. (See People v. Figueroa (1986)
Defendant nonetheless contends that CALJIC No. 2.15 is a “permissive presumption” of a kind justified only if the evidence is “sufficient for a rational juror to find the inferred fact beyond a reasonable doubt . . . .” (Barnes v. United States (1973)
Having concluded that the court did not err in giving CALJIC No. 2.15, we need not address defendant’s further contentions that the purported error was reversible per se, and that the error cannot be rendered harmless by reliance on the prosecution’s alternative theories of premeditated murder or rape/murder (see Griffin v. United States (1991) 502 U.S._[
G. Evidence of Rape
As previously indicated, the People, in attempting to prove that defendant committed first degree murder as to both victims, relied on both a premeditated-murder theory and a felony-murder theory. The latter theory was based on defendant’s commission of the underlying offenses of burglary (previously discussed, ante, pt. III. F.) and rape or attempted rape. Defendant contends there was insufficient evidence of rape or attempted rape to support a felony-murder finding as to victim Holmes. Consistent with our prior holdings, we agree. We also conclude, however, that the insufficiency as to the rape/murder theory was harmless in light of the valid alternative theories of premeditated murder and burglary/murder that were presented to the jury with respect to both victims.
To determine sufficiency of the evidence, we must inquire whether a rational trier of fact could find defendant guilty beyond a reasonable doubt. In this process we must view the evidence in the light most favorable to the judgment and presume in favor of the judgment the existence of every fact the trier of fact could reasonably deduce from the evidence. To be sufficient, evidence of each of the essential elements of the crime must be substantial and we must resolve the question of sufficiency in light of the record as a whole. (People v. Barnes (1986)
The People relied on the following evidence to support a felony-murder (rape or attempted rape) theory as to victim Holmes:
Some physical evidence indicated that victim Holmes may have been sexually assaulted in the course of her murder. Her body was dressed only in a sweatshirt and bra; she was wearing nothing from the waist down. (Cf. People v. Jennings (1991)
Defendant correctly observes that no evidence was introduced to indicate any sexual trauma, seminal traces or other evidence of penetration, forced or otherwise, as to victim Holmes. The People argue, however, that a felony-murder charge could be sustained on a finding of attempted rape, and the jury was so instructed. (See § 189; People v. Hillery (1965)
But other than the inference that defendant may have raped victim Castro, the only evidence of his rape or attempted rape of victim Holmes was ‘her partly unclothed body. Defendant cites prior cases of this court to support his position that the unclothed or partly clothed condition of the victim’s body is insufficient to establish an actual or attempted sex offense. (See People v. Anderson (1968)
In Craig, the defendant, earlier in the evening, had expressed his general desire to “have a little loving,” and he subsequently quarrelled with a woman in a bar (not the victim) who refused to dance with him. Later that night, he attacked and killed the victim by strangling her and by beating her 20 to 80 times. The victim’s body was found in a service station, lying beneath a jacked-up automobile. She had apparently been dragged across the ground about 25 feet, and 2 nearby cars were spattered with blood. She was wearing a raincoat over a nightgown and panties. Her raincoat had been ripped open, and her nightgown and panties were likewise tom so that the “front part of the body was exposed.” (
A divided court (four to three; maj. opn. by Carter, J.; dis. opn. by Spence, J.) held that because of the lack of evidence of the defendant’s specific intent to commit rape, such as blood on the fly qf his trousers or any other evidence that a sexual act or attempt took place, felony-murder-rape charges could not be sustained and, accordingly, the court modified the judgment to second degree murder. (The court had also found the evidence insufficient to show a premeditated murder.) The majority stressed that although the defendant’s clothing was generally spattered with blood, no blood was found on the front of his trousers, fly or undershorts, making it unlikely a sex act was accomplished or even attempted. The open position of the victim’s legs “loses significance when it is recalled that the body had been dragged some 20 to 25 feet.” (
In People v. Anderson, supra,
Relying on People v. Craig, supra,
We have cited both Craig, supra,
There are, of course, some factual distinctions between those cases and the present one. Here, unlike Craig, supra,
But Anderson, supra,
Other than victim Holmes’s partly clothed body, there was no evidence of a sexual assault on her. We conclude that, under Anderson and Craig, the
Accordingly, we may apply the rule that if one of the prosecution’s alternative theories of criminal liability is found unsupported by the evidence, the judgment of conviction may rest on any legally sufficient theory unaffected by the error, unless the record affirmatively demonstrates that the jury relied on the unsupported ground. (See Griffin v. United States, supra,
H. Sua Sponte Instruction on Provocation
Defendant next contends the trial court erred in failing to instruct sua sponte, based on CALJIC No. 8.73, that the jury, in deciding whether defendant could be found guilty of second degree murder of victim Castro, could consider evidence of any provocation that played a part in inducing the homicide, even if that evidence was insufficient to reduce the offense to manslaughter. The record discloses that the court instructed the jurors generally on the subject of second degree murder, telling them that such a finding would be appropriate if the killing was intentional, and was committed with malice aforethought, but was neither premeditated nor deliberate.
At counsel’s request, the court also instructed that provocation could reduce the offense involving victim Castro to voluntary manslaughter. (The court found no substantial evidence of provocation as to victim Holmes, and declined to so instruct as to her death.)
As defendant observes, a sua sponte instruction on provocation and second degree murder must be given “where the evidence of provocation would justify a jury determination that the accused had formed the intent to
The problem with defendant’s analysis is that there was insufficient evidence of provocation to justify any instructions on that subject. Thus, the trial court’s instruction on manslaughter was inappropriate and unnecessary, though obviously not prejudicial to defendant.
Defendant introduced no evidence whatever to support a defense of provocation, or to indicate he was relying on one. Instead, he attempted to mount an alibi defense, to cast suspicion on another acquaintance of Castro, and to impeach witness Fuller’s incriminating testimony. A provocation defense would have been inconsistent with the foregoing denial of guilt. Under such circumstances, no sua sponte instruction was required. (People v. Wickersham, supra,
Defendant observes, however, that at an in-chambers conference with the court at close of trial, his counsel indicated he would also rely on a provocation defense, a defense that the jury might accept despite rejecting the alibi defense. Counsel cited the testimony of interrogating officer McCarthy that, according to defendant, Castro first became intoxicated and then became emotional and upset, complaining about being mistreated by men, “hollering” at defendant, and “knocking things over,” before finally going to sleep.
Significantly, nothing in the portion of defendant’s statement that was summarized by the testifying officer indicated any relevant effect on defendant’s state of mind resulting from Castro’s words or actions. Indeed, according to his statement, defendant was not provoked into killing Castro. Thus, the foregoing evidence would have given the jury no basis whatever for concluding that defendant “formed the intent to kill as a direct response” to Castro’s conduct as required by Wickersham, supra,
Defendant contends that because the trial court instructed on provocation/ manslaughter, there must have been evidence to support a provocation/ second degree murder theory. We have previously rejected similar contentions. (People v. Payton (1992) 3 Cal.4th 1050, 1061 [13 Cal.Rptr.2d 526,
We conclude the trial court did not err in failing to instruct sua sponte on a provocation/second degree murder defense. In light of our conclusion, we need not consider whether defendant was prejudiced by the failure to instruct. We observe, however, that the evidence overwhelmingly supports a finding that both murders were premeditated, deliberate, and Unprovoked, being committed to facilitate a burglary of the victims’ home, and to prevent them from identifying defendant as the burglar. (See, e.g., People v. Pride (1992)
I. Intent to Kill
In Carlos v. Superior Court (1983)
Presumably, the foregoing constitutional concerns would likewise apply to the multiple-murder special circumstance alleged here. The Attorney General does not contend otherwise. Indeed, the People concede that Carlos error occurred here, and they contend that such error was harmless. (See People v. Harris (1989)
Although defendant asserts that Odle, supra,
Our review of the record confirms that the court indeed failed to instruct the jury that an intent to kill was a prerequisite to finding true the multiple-murder special circumstance. Moreover, we cannot necessarily infer such a finding from the jury’s verdict or findings based on the court’s other instructions. (See, e.g., People v. Duncan, supra,
But as we explain, the evidence of defendant’s intent to kill both victims was overwhelming, and the jury could have had no reasonable doubt on that
The dissent herein relies on Yates v. Evatt (1991)
“[T]he issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption. Since that enquiry cannot be a subjective one into the jurors’ minds, a court must approach it by asking whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the presumption." (500 U.S. at pp. 404-405 [
In the present case, the jurors were not told to apply any improper presumptions as to the intent-to-kill issue. Accordingly, the test of Yates v. Evatt, supra, seemingly would be inapplicable here. But, as will appear, even were we to apply that test, we would conclude that the evidence before the jury was so overwhelming as to leave it beyond a reasonable doubt the verdict would have been the same had the jury been instructed regarding the necessity of finding an intent to kill.
1. Victim Castro’s murder
Defendant strangled Castro to death with a telephone wire and set her room, and probably her body, afire. The method of execution itself precludes any inference the murder was accidental or unintentional. As we have repeatedly held, “this method of killing [strangulation] is indicative of at least a deliberate intent to kill. [Citations.]” (People v. Hernandez, supra,
The jury’s first degree murder finding reflected the jury’s determination that Castro’s murder was either (1) premeditated, (2) committed in the course of a burglary, requiring a preexisting specific intent to steal, and/or (3) committed in the course of a rape. On this record, the only reasonable conclusion one can draw from the evidence and the jury’s findings is that defendant intentionally murdered Castro to facilitate his escape and preclude his apprehension after raping her and/or stealing her jewelry. Defendant, relying on an alibi defense, introduced no evidence which would have justified a finding of unintentional homicide.
2. Victim Holmes’s murder
As for Holmes, defendant admitted that she became aware of his presence in the house with Castro on the night of the murders. According to witness Fuller, defendant admitted “hitting” Holmes after she came upstairs to inquire about Castro, who was already unconscious from defendant’s assault on her. The evidence shows that defendant stole Holmes’s jewelry and beat her to death by kicking her 10 to 12 times in her face and head. As we have explained, there was no substantial evidence that Holmes provoked the assault. Once again, the methodical method of execution would preclude any inference the killing was accidental or unintentional. (See People v. Pride, supra,
We conclude that the error in failing to instruct on intent to kill with respect to Castro and Holmes was harmless beyond a reasonable doubt.
Penalty Phase Issues
A. Instruction on Witness’s False Testimony
At the penalty phase, the court instructed the jury, based on CALJIC No. 2.21 (4th ed. 1979), that the testimony of a witness who makes a willfully false statement on a material point could be disregarded in its entirety, unless “the probability of truth favors his testimony in other particulars.” Defendant contends such instruction, commonly used at the guilt phase to assist the jury in its fact-finding function (see, e.g., People v. Allison (1989)
Although we have found no cases expressly approving the use of the foregoing instruction at the penalty phase, one case implicitly recognizes that the instruction would be appropriate at both phases of a capital trial. (See People v. Gates (1987)
In the present case, the People presented an array of penalty-phase witnesses attesting to various prior violent acts by defendant. The defense likewise called witnesses to testify to factual matters, including additional facts to rebut the prosecution’s “other crimes” evidence, and testimony concerning defendant’s childhood and background. We see no reason why an instruction based on CALJIC No. 2.21 should not be given to assist the jury in appraising the credibility of penalty phase testimony, where appropriate under the evidence.
B. Failure to Instruct on Elements of Other Crimes
At the penalty phase, the prosecutor introduced evidence of numerous prior unadjudicated offenses by defendant. (See § 190.3, subd. (b).) The record indicates that defense counsel joined the prosecutor in stipulating that, for tactical reasons, it was unnecessary to instruct the jury regarding the
First, on this record, any error in failing to instruct regarding the elements of defendant’s prior crimes would be deemed invited error. (See People v. Cooper (1991)
Second, we have held that, because defense counsel might not want the jury to place undue emphasis on the defendant’s prior offenses, the court is not required to give such instructions sua sponte. (See People v. Phillips (1985)
C. Failure to Instruct Sua Sponte on Use of “Other Crimes” Evidence
Defendant contends the court erred in failing to instruct sua sponte (based on CALJIC No. 2.50) that the penalty phase jury should not use the “inference of criminal propensity drawn from proof of one incident of unadjudicated conduct as proof of the truth of the allegations of another such incident.” (See People v. Thompson (1980)
Generally, the court owes no obligation to instruct on the limited purposes for which evidence of prior crimes is admissible. (See People v. Collie (1981)
In the present case, the jury was told that (1) evidence of various specified criminal acts had been presented, (2) before the jury could use evidence of
We also reject defendant’s related contention that counsel’s failure to request a limiting instruction on the prior offenses reflected his incompetence. As previously indicated, counsel may have deemed it tactically unwise to call further attention to defendant’s prior offenses .by requesting special instructions. (See People v. Phillips, supra,
D. Failure to Instruct Sua Sponte on Meaning of “Aggravating" and “Mitigating”
Defendant asserts the court erred in failing to define the terms “aggravating” and “mitigating” to assist the jury in determining penalty. We have held that the court need not give such instructions, even on defendant’s request. (See People v. Malone (1988)
E. Failure to Give Timely Notice of Aggravating Evidence
Defendant contends the prosecutor delayed unduly in presenting the defense with the required notice of aggravating evidence the People intended to rely on during the penalty phase. (See § 190.3.) The record shows that the prosecutor initially filed such a notice on December 22, 1986. Defendant observes that this notice referred to nine prior unadjudicated offenses and four prior felony convictions. Thereafter, on June 2, 1987, after the case was assigned for trial but before jury selection, the People filed an “addendum,” adding 10 more incidents of prior criminal activity. On September 23, 1987, one week prior to commencement of jury selection, the People filed an “amended notice,” adding 20 additional unadjudicated incidents, but referring to only 3 prior felony convictions. Finally, on September 25, the People submitted its “second amended notice,” adding a reference to the fourth criminal conviction.
According to defendant, the three notices filed after March 5, 1987, when the case was assigned from the master criminal calendar for trial, were
The People are required to notify defendant of the intended penalty phase evidence “within a reasonable period of time as determined by the trial court, prior to trial.” (§ 190.3.) We have held that the phrase “prior to trial” should be construed as “before the cause is called for trial." (People v. Daniels (1991)
In any event, the People observe that defendant failed to object to any of the notices at issue, or to object to any penalty phase evidence on the ground of untimeliness of the notice thereof, omissions which bar appellate consideration of the issue. (See, e.g., People v. Mickey (1991)
F. Admission of Evidence Underlying Prior Offenses
Defendant contends the court erred in allowing the admission of evidence regarding defendant’s prior offenses (see § 190.3), including (1) evidence underlying a prior robbery conviction, and (2) evidence of two unadjudicated offenses on which the statute of limitations had run. Defendant realizes we have repeatedly rejected similar contentions (see, e.g., People v. Jennings, supra,
G. Failure to Instruct on Sentencing Discretion
Defendant contends the court erred in failing to instruct the jury that it could impose a sentence of life imprisonment without parole even if it found no mitigating evidence whatever. (See People v. Duncan, supra,
The jury was instructed that it should consider, take into account, and be guided by the applicable aggravating and mitigating factors; that the weighing process 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”; and that the jury is “free to assign whatever moral or sympathetic value you deem appropriate to each and all of the various factors . . . .” The jury was further told to “determine under the relevant evidence which penalty is justified and appropriate by considering the totality of the aggravating circumstances with the mitigating circumstances. ... To return a judgment of death, each of you must be persuaded that the aggravating circumstances are so substantial in comparison with the mitigating circumstances that it [sic] warrants death instead of life without parole.”
First, defendant does not suggest the foregoing instructions were incorrect, but only that they were inadequate. Yet defendant failed to request clarifying instructions, an omission which bars appellate review of the issue. (See, e.g., People v. Hardy, supra, 2 Cal.4th at p. 153; People v. Sully (1991) 53 Cal.Sd 1195, 1218 [
In any event, we believe the foregoing instruction adequately advised the jury of its sentencing responsibilities. No reasonable juror would assume he or she was required to impose death despite insubstantial aggravating circumstances, merely because no mitigating circumstances were found to exist. Indeed, it seems unlikely the jury would conclude that mitigating circumstances were entirely lacking in this case: the defense introduced substantial evidence in mitigation.
H. Death Penalty Statute Not Unconstitutional
Defendant asserts the 1978 death penalty law is unconstitutional in a number of respects. We have repeatedly rejected each of the arguments
I. Consideration of Additional “Other Crimes” Evidence
During the penalty phase, evidence was introduced, without objection by defendant, regarding certain prior criminal activity that did not qualify as aggravating evidence under section 190.3, subdivision (b). For example, mitigating “background” testimony by defendant and his relatives was rebutted on cross-examination by eliciting from these witnesses the fact that defendant had committed numerous burglaries before reaching age 16.
Because the foregoing evidence of defendant’s juvenile burglaries was not admissible under section 190.3, the trial court instructed thé jury that this evidence could be considered only in rebuttal of defendant’s mitigating evidence “or as evidence of the absence of mitigating or extenuating circumstances raised by the defendant . . . .You may not consider evidence of such other criminal acts for any other purpose.”
Defendant first contends the foregoing instruction was too broad, permitting the jury to consider defendant’s nonviolent misconduct even though it did not truly “rebut” evidence of defendant’s troubled childhood. (See People v. Rodriguez (1986)
Next, defendant contends the instruction improperly allowed the jury to consider his juvenile burglaries as evidence of the absence of mitigating evidence, contrary to the rule in People v. Davenport (1985)
In the present case, defendant does not suggest the prosecutor either committed Davenport error or urged the jury to use defendant’s juvenile burglaries for any improper purpose. We conclude the court did not err in giving the challenged instruction.
J. Ruling Denying Modification of Sentence
After the jury returned its death verdict, defendant moved the court to modify the sentence to life imprisonment without parole. The court denied the motion, stating in part that defendant’s purported mitigating background and character evidence did not extenuate the gravity of the crime, and that “any sympathetic or other aspect of defendant’s character could not in any way be considered a moral justification or extenuation for his conduct, or serve as a basis for a sentence of less than death.” The court also found that “there were no factors in mitigation,” and that “the absence of these factors weighs against a finding the offense is . . . less serious than normal.”
Defendant contends the court’s foregoing remarks indicate it erroneously (1) believed defendant had introduced no mitigating evidence in the case, and (2) failed to consider defendant’s proffered mitigating evidence in ruling on the motion to modify sentence. We disagree. The court carefully outlined its obligation to consider all the evidence submitted to the jury, and expressly acknowledged that defendant had introduced “background” evidence intended to mitigate the offense, including the fact he was raised in a poor and culturally deprived environment. But the court determined that such evidence failed to extenuate or mitigate the sentence. Read in context, the court’s words merely reflect its view that no significant mitigating evidence had been adduced, and that such evidence was insufficient to extenuate defendant’s crime or justify a life sentence. We have frequently rejected claims of error based on similar remarks by trial courts in denying motions to modify sentence. (See, e.g., People v. Stansbury (1992)
Panelli, J., Kennard, J., Arabian, J., Baxter, J., and George, J., concurred.
Concurrence Opinion
I concur in the affirmance of the judgment of guilt as to the murder of Luisa Anna Castro and Maria Victoria Holmes and the arson of their residence. I also concur in the affirmance of the judgment of imprisonment for the arson. After review, I have found no error or other defect that requires reversal on either issue.
I dissent, however, from the affirmance of the judgment in other respects, specifically, the multiple-murder special-circumstance finding and the sentence of death which depends on that finding’s validity.
In its charge at the guilt phase, the trial court failed to instruct the jury that in order to find the multiple-murder special-circumstance allegation true, it was required to find that defendant acted with intent to kill. At that time, intent to kill was an element of the multiple-murder special circumstance. (People v. Turner (1984)
The trial court’s instructional omission of an element of a special circumstance is subject to harmless-error analysis under Chapman v. California (1967)
“The Chapman test is whether it appears ‘beyond a reasonable doubt that the error complained of did not contribute to the verdict [or finding] obtained.’ ” (Yates v. Evatt, supra, 500 U.S. at pp. 402-403 [
Thus, the focus under Chapman is what the jury actually decided and whether the error may have tainted its decision. “[T]he issue ... is whether the jury actually rested its verdict [or finding] on evidence [and instructions] . . . , independently of the” error. (Yates v. Evatt, supra,
As a consequence, the focus under Chapman is not what a reviewing court might itself decide if it looked to the entire record.
First, the reviewing court is not the proper decisionmaker. (Sullivan v. Louisiana, supra,_U.S. at pp._-_[124 L.Ed.2d at pp. 188-190, 113 S.Ct. at pp. 2081-2082].) The Yates court disapproved as “not.. correct” the “statement” in Rose v. Clark (1986)
Second, the reviewing court is not automatically entitled to consider the entire record. The Yates court rejected the broad “assumption” in various decisions, including Clark (which, however, it did not expressly cite on this
By its very terms, of course, Chapman precludes a court from finding harmlessness based simply “upon [its own] view of ‘overwhelming evidence.’ ” (Chapman v. California, supra,
Neither is the focus under Chapman what a reviewing court might conjecture the jury would have decided in the absence of the error. The “hypothetical inquiry” whether, if the jury had not been exposed to the error, it would have made the decision it did “is inconsistent with the harmless-error standard announced in Chapman .... While such a hypothetical inquiry ensures that the State has, in fact, proved [the fact in question] beyond a reasonable doubt, it does not ensure that it has proved [it] beyond a reasonable doubt to the satisfaction of a jury.” (Yates v. Evatt, supra,
Lastly, the focus under Chapman is not what a reviewing court might speculate concerning “what effect the . . . error might generally be expected to have upon a reasonable jury . . . (Sullivan v. Louisiana, supra,_U.S. at p--[
In determining whether the trial court’s omission of an instruction on intent to kill as an element of the multiple-murder special circumstance was harmless beyond a reasonable doubt under Chapman, we may look with profit to Yates itself.
The error reviewed therein involved an instruction incorporating a mandatory rebuttable presumption of malice for the crime of murder: “Malice is . . . presumed” both “from the willful, deliberate, and intentional doing of an unlawful act without any just cause or excuse” and “from the use of a deadly weapon"; but “that presumption is rebuttable, that is, it is not
The Yates court established the following analysis for an erroneous instruction incorporating a mandatory rebuttable presumption of a necessary fact.
“[T]o say that an instruction to apply [such a] presumption did not contribute to the verdict is to make a judgment about the significance of the presumption to reasonable jurors, when measured against the other evidence considered by those jurors independently of the presumption.
“Before reaching such a judgment, a court must take two quite distinct steps. First, it must ask what evidence the jury actually considered in reaching its verdict. . . . Did the jury look at only the predicate facts, or did it consider other evidence bearing on the fact subject to the presumption?
“Once a court has made the first enquiry into the evidence considered by the jury, it must then weigh the probative force of that evidence as against the probative force of the presumption standing alone. To satisfy Chapman’s reasonable doubt standard, it will not be enough that the jury considered evidence from which it could have come to the verdict without reliance on the presumption. Rather, the issue under Chapman is whether the jury actually rested its verdict on evidence establishing the presumed fact beyond a reasonable doubt, independently of the presumption.” (Yates v. Evatt, supra,
The Yates court went on to suggest an even more “restrictive” analysis for an erroneous instruction incorporating a mandatory irrebuttable or “conclusive” presumption of a necessary fact. (Yates v. Evatt, supra,
It follows that an analysis more restrictive still would be required for an erroneous instruction omitting a necessary fact altogether.
Such an instruction removes the “ultimate fact” from the jury’s consideration without leaving behind any “predicate facts” to be found. If a mandatory irrebuttable presumption “tend[s] to deter a jury from considering any evidence for the presumed fact beyond the predicate evidence” (Yates v. Evatt, supra,
“Therefore,” reasoned the United States Court of Appeals for the Ninth Circuit in United States v. Gaudin (9th Cir. 1993)
In a situation in which the necessary fact that is omitted is an element, prejudice appears as a matter of law: “[U]nder Yates,” held the Gaudin court, “when an element... is removed from jury consideration, that error cannot be harmless.” (United States v. Gaudin, supra,
Turning now to the case at bar, I am compelled to conclude that the trial court’s omission of an instruction on intent to kill as an element of the multiple-murder special circumstance was not harmless beyond a reasonable doubt under Chapman. The rule stated above controls the result: the instructional omission of an element, like that here, cannot be harmless.
In arriving at my conclusion, I do not overlook the strong evidence of intent to kill. The majority view that evidence as “overwhelming." (Maj. opn., ante, at pp. 45, 46.) I tend to agree.
But generally, as explained above, the presence of “overwhelming evidence” is insufficient. The majority seek to avail themselves of an exception
Moreover, in the specific situation here disclosed, the presence of “overwhelming evidence” is completely immaterial. “Under the guidance of Yates, we may no longer consider the strength of the evidence and determine whether it is so clear that the jury would have found the element to exist had it been properly instructed . . . .” (United States v. Gaudin, supra,
I recognize that in People v. Odle, supra,
I also recognize that in Odle this court accepted and applied the broad “assumption” in Clark, among other decisions, that the “harmlessness of an error is to be judged after a review of the entire record.” (Yates v. Evatt, supra,
Appellant’s petition for a rehearing was denied January 12, 1994. Mosk, J., was of the opinion that the petition should be granted.
Notes
In passing, I state my view that there was no Miranda (Miranda v. Arizona (1966)
It might perhaps be argued that the rule that the instructional omission of an element cannot be harmless allows of one or more of the following “exceptions”: (1) the element pertained only to a charge rejected by the jury; (2) the element was admitted by the defendant; and (3) the element was necessarily found by the jury under other, proper instructions. Support for such a position may be found in People v. Garcia (1984)