Lead Opinion
Opinion
A jury convicted defendant Billy Joe Johnson of the first degree murder of Scott Miller (Pen. Code, § 187, subd. (a)),
A. Guilt Phase Evidence
1. Prosecution evidence
a. Events prior to the murder of Scott Miller
Scott “Scottish” Miller was a founding member of an Orange County based White supremacist street gang called Public Enemy Number 1 (PENI), which formed in the mid-1980s. By the mid- to late 1990s, Miller’s status within the gang had diminished, and he had become marginalized.
In February 2001, a local television station aired two news segments about PENI. The segments featured an interview with Miller, who spoke candidly about the gang’s activities, including its use of violence. Although news producers attempted to protect Miller’s identity by disguising his face and voice, PENI gang members immediately recognized Miller by his tattoos, mannerisms, and the objects around him, including his pit bull.
The news segments were considered bad timing for PENI, whose two main leaders were then being tried on charges of conspiracy to commit murder. As a result of the broadcasts, PENI leadership put a “green light” on Miller, marking him for execution. On several occasions during the year that followed, Miller told his girlfriend that he was concerned for his safety. According to one former gang member, however, Miller was still “running around” because no one had the courage to deal with him. Shortly before March 2002, officers in the gang unit at the Costa Mesa Police Department were actively looking for Miller to warn him that they had received credible information that PENI members were planning to kill him.
b. The murder of Scott Miller
On the evening of March 8, 2002, a little over one year after the news segments about PENI, defendant’s cousin hosted a party in Costa Mesa. Several members and associates of PENI attended the party, including Miller and defendant, who had recently transitioned to PENI after a falling out with the Nazi Low Riders, a White supremacist prison gang. Although defendant had known Miller for decades, he had not seen Miller since the news broadcasts had aired. According to the testimony of a mutual friend who also attended the party, Miller and defendant were laughing together and joked about Miller keeping “his guard up.”
Earlier that day, PENI member Michael Lamb had called Christina Hughes at her Anaheim apartment. He was looking for Tanya Hinton, a PENI associate who was staying there. Hughes told Lamb that Hinton was not at the apartment. He responded, “It is important, have her call me when she gets home.” Hughes gave Hinton the message when Hinton arrived at the apartment in the early evening, but told Hinton that she did not want any visitors coming to her place. Shortly before 11:30 p.m., however, Hughes walked downstairs from the upper level of the two-story apartment and saw Hinton with Lamb and PENI member Jacob Rump on the first floor. Both men had recently been released from prison. When Hughes demanded that they go, Hinton assured her the group was leaving, and Hughes went back upstairs. Minutes later, Hughes heard a single shot fired outside in the alley. A neighbor whose home faced the alley also heard a gunshot, followed by the sound of screeching tires. Sometime between 11:30 and 11:35 p.m., Hughes and a friend went to the alley to investigate. She saw the dead body of a man she did not recognize and a large amount of blood.
Police responded to the scene about 20 to 25 minutes after the shooting, and found Miller’s body facedown in the alley with blood coming from the head area. There was a bloody baseball cap and soda can underneath Miller’s head, which suggested he had been surprised by the gunshot and dropped the items where he was shot. In the blood, police found tire impressions that were heading away from the location of the body. They also recovered a nine-millimeter Luger casing on the ground 15 feet from the body.
An autopsy showed Miller had died from a single gunshot to the back of his head, which lacerated his cerebellum and cerebrum. According to the forensic pathologist, Miller probably lost consciousness immediately and death occurred within minutes. The absence of burning, singeing, stippling, or soot at the entrance wound suggested the barrel of the gun was some distance from the skin, not in contact with it.
The day after the shooting, defendant called Miller’s former girlfriend, asking her if she had heard what happened. He told her that “Scott is no longer with us” and something to the effect that if she needed anything, he would be there for her.
Defendant identified Lamb as the shooter. He also told McLachlan that he was angry and upset about the way the killing was handled and had confronted Lamb about it. Describing Miller as a “dear friend,” defendant thought Miller should have been executed by a shot to the face, not to the back of the head. As defendant envisioned the scenario, Miller should have been told to his face, “You had a good run, you ran afoul of the rules, it is time to go.” Defendant explained that Miller had to be killed because of the news interview and “his actions ... in the neighborhood.”
c. The investigation
Three days after the shooting, Lamb and Rump were taken into custody after leading police on a high-speed chase in a stolen car and fleeing into an Anaheim apartment complex. Just before his arrest, Lamb fired a shot at officers from a second-story balcony, then discarded his weapon by tossing it over the railing into a raised planter. A firearms expert concluded that the cartridge found at the scene of Miller’s death had been fired from the gun Lamb fired at officers. The gun had a capacity for 14 bullets in the magazine and one in the chamber. Lamb and Rump were charged with murdering Miller, and were jointly tried in 2007.
When a detective had tried to interview defendant in October 2002 regarding Miller’s death seven months earlier, defendant said he had nothing to say to him. In 2006, however, defendant contacted Lamb’s investigator about the crime, telling the investigator that he was the person who shot Miller, and agreeing to testify at Lamb and Rump’s trial that they had nothing to do with the shooting. At the time he contacted Lamb’s investigator, defendant had just begun serving a prison sentence of 45 years to life in an unrelated case.
Defendant testified on Lamb’s behalf at both the guilt and penalty phases of trial. According to defendant, the first time he saw Miller after the news segment about PENI was at the party in Costa Mesa, but he had been angry with Miller about the interview and other matters for some time. Between
Defendant also testified regarding the firearm that was used to kill Miller. According to defendant, he ran into Lamb in a bar the day after the shooting and gave him the weapon, which Lamb said he needed to protect himself against Mexican gang members. Defendant indicated that the weapon had been in his possession for about six months. However, during cross-examination he said he did not know the location of the gun’s safety, and his answer regarding the number of bullets the firearm could hold was incorrect.
After testifying at the guilt phase of Lamb and Rump’s trial in 2007, but before taking the witness stand at Lamb’s penalty phase trial in 2008, defendant was charged with Miller’s murder, for which the prosecution was seeking the death penalty. Despite the court’s repeated admonitions regarding his right against self-incrimination, defendant continued to maintain that he shot Miller. He told Lamb’s penalty phase jury that he lives by his own laws and that he would kill “anyone like [Miller] that doesn’t abide by the rules.” Defendant testified more specifically that after seeing Miller’s interview on the news broadcast, he knew Miller was a “dead man” because he was giving up secrets “to the enemy” and divulging information that was detrimental to PENI.
d. Other evidence at defendant’s 2009 trial
The prosecutor, joined by the lead detective in the Miller shooting, read aloud to the jury a redacted version of the transcript of defendant’s prior testimony. The prosecution also called several gang expert witnesses who testified regarding defendant’s past and present gang affiliations, and the history, culture, and activities of White supremacist gangs generally and PENI in particular.
Eric Kraus, an Orange County parole officer who specializes in supervising White supremacist parolees, was defendant’s parole officer for about three
In May 2001, Kraus arrested defendant for a parole violation and he was returned to custody. About one week later, Kraus and Costa Mesa Police Lieutenant Clay Epperson visited defendant in prison at defendant’s request. Defendant informed Kraus that another prisoner had cut him with a razor on the back of the neck while they were in the exercise yard. Defendant explained that he had been assaulted for previously refusing to follow a “green light order” to kill his friend and prison cellmate Joseph Govey, but that the recent assault meant he would receive no further discipline for his disobedience. According to Kraus, such an order would have come from a “shot caller” in either the Aryan Brotherhood or the Nazi Low Riders prison gang.
During Kraus’s prison visit, defendant indicated to him that his current gang status was with PENI, “if anything.” Kraus believed that defendant’s self-report was confirmed by correspondence intercepted by prison officials, in which defendant identified himself as a member of PEN 1.
Like Kraus, Lieutenant Epperson expressed the view that defendant was a member of PENI at the time of Miller’s death. In forming that opinion, Epperson pointed to defendant’s statements during their May 2001 prison visit, his testimony at the Lamb and Rump trial, his prior conviction for dissuading a witness for the benefit of a criminal street gang, recorded telephone calls in which defendant issued orders on behalf of PENI, and his many PENI and White supremacist-themed tattoos.
Epperson also provided extensive testimony regarding the history, structure, and culture of White supremacist gangs. He indicated that despite the fact they sport tattoos of Nazi symbols to represent themselves, and are bound together by racial animus, anti-Semitism, and other forms of hatred, White supremacists are not ideologically driven. They tend to prey on their own community with crimes that benefit themselves and the gang, rather than commit hate crimes. The gangs are structured hierarchically, and status within the gang is earned by the amount of crime and violence the member has carried out to benefit the gang. Criminal successes are therefore boasted about and known to other gang members. Respect is an important theme in White supremacist gang culture, and disrespect from gang members and nonmembers alike is met with violence. An act that is viewed as disrespectful of the gang leadership would require even greater sanctions, including being marked for death. The “payback” for disrespecting gang leaders can occur immediately or days, months, even years, later.
2. Defense evidence
The defense called no witnesses or otherwise presented any evidence at the guilt phase.
B. Penalty Phase Evidence
1. Prosecution evidence
The prosecution’s case in aggravation included evidence regarding defendant’s violent criminal activity both in and out of custody, defendant’s prior criminal convictions and prison rules violations, recordings of defendant’s telephone conversations with PENI gang members and associates while he was in custody in the Orange County jail, and victim impact testimony.
a. Violent criminal activity and prior convictions
i. Robberies of Virgil Troutman and Catherine Brandolino
Four witnesses testified regarding defendant’s involvement in the April 1985 residential robbery of Virgil Troutman. According to Troutman, defendant and two other men burst into his Costa Mesa home demanding money and drugs and assaulting him and his friend. Troutman recognized the three intruders because they all had grown up together. After being punched in the eye by one of defendant’s confederates, Troutman and his friend were directed to empty their pockets. Defendant and the two other robbers took various valuables, including a diamond ring, then left the scene, threatening to kill Troutman and his friend if they called the police. Defendant’s parole officer testified that defendant telephoned him two days after the robbery, admitting that he had hit Troutman during the incident. On the parole officer’s advice, defendant turned himself in to police. According to the arresting officer, defendant indicated that he was angry with Troutman for
In connection with this incident, the prosecution presented evidence that defendant pleaded guilty to grand theft from a person. The prosecution also presented evidence showing that, about two years earlier, a jury found defendant guilty of second degree burglary for breaking into and entering a Santa Ana residence with an intent to steal.
Three other witnesses testified regarding defendant’s involvement in a robbery that occurred in April 1989, four years after the Troutman robbery. Catherine Schreiner, formerly Catherine Brandolino, told the jury that the incident occurred early in the morning as she and a girlfriend were returning to their car in the parking lot of a Denny’s restaurant. A man approached her girlfriend, then her, asking what time it was. After a pickup truck arrived and stopped about 10 feet away with its motor idling and passenger door open, the man suddenly grabbed Brandolino’s purse off her shoulder, jumped into the truck, and shut the door. Brandolino and her friend yelled at the men and held on to the truck, hying to open the door, but they jumped back when the truck took off. Brandolino’s friend, Linda Nguyen, gave a similar account of the incident.
Officer Michael Cacho of the Costa Mesa Police Department testified regarding the events that followed the 911 call reporting the purse-snatching incident. According to Officer Cacho, Brandolino and Nguyen provided him with descriptions of the robbers, and the license plate number and description of the truck, which was then broadcast to other officers. One of the officers who heard the broadcast located the truck, stopped the vehicle, and detained defendant, who was driving, and his passenger. Brandolino and Nguyen both identified the truck. At an in-field lineup, Nguyen indicated that she had not seen the driver’s face but believed the checkered shirt defendant was wearing matched the shirt worn by the driver.
The prosecution presented evidence that in connection with this incident defendant pleaded guilty to second degree robbery.
ii. The 1991 killing of Folsom State Prison inmate Clyde Nordeen
The prosecution presented extensive evidence regarding defendant’s involvement in the April 1991 killing of 56-year-old Clyde Nordeen, who was serving a sentence in Folsom State Prison for child molestation. Correctional Officer Marshall Stewart testified that on the day of the incident, he was on
Other witnesses testified regarding the investigation into Nordeen’s killing. For example, a correctional officer documenting the scene at China Hill told the jury that a short distance from Nordeen’s body he found a concrete-filled metal pipe and a wooden pickax handle, both of which had blood on them. He also discovered other evidence nearby that appeared to be related to the crime, including another wooden pickax handle and a wooden handle possibly from a shovel.
Evidence of defendant’s involvement in Nordeen’s death was presented largely through the testimony of Sergeant Steven Vance, who led the prison’s investigation into the incident. Vance related to the jury the information given to him by Ronald Rostamo, one of the inmates assigned to the woodcutting job on China Hill on the day in question. According to Vance, Rostamo told him that around 11:00 a.m., he overheard inmate John Alder say to defendant, “He’s not dead yet.” He then saw Alder pick up a wooden pickax handle and heard him tell defendant there was another one on the ground “that would work.” Rostamo watched as defendant and Alder walked down a pathway toward the rear of the storage shed and disappeared from his view as they passed a small trailer. According to Rostamo, defendant and Alder reappeared two to three minutes later walking together back along the path and checking each other for bloodstains. Rostamo further reported that when defendant and Alder returned to the worksite, defendant said to Rostamo, “Give me your T-shirt, mine has blood on it.” Fearful of defendant, Rostamo went to the shed with defendant where defendant put on Rostamo’s white T-shirt and returned to his work at the wood pile. Rostamo told Vance finally that defendant and Alder hid their T-shirts underneath a small trailer near the shed. An investigator dispatched to that location found the hidden shirts. Rostamo’s account of the T-shirt exchange was further supported by the testimony of the
Nordeen’s killing was referred to the Sacramento County District Attorney but no charges were filed. Prison authorities, however, found defendant guilty of a prison rules violation and transferred him to the administrative segregation unit for 26 months.
iii. Recklessly evading a peace officer in 1994
Tom Dare, an officer with the Garden Grove Police Department, testified regarding an incident in October 1994 involving a driver who led him on a high-speed pursuit in a residential area and eluded arrest by escaping into the backyard of a neighborhood home. Officer Dare related that he was patrolling an area where a number of residential burglaries had recently occurred when he observed a driver make a quick and erratic turn into a driveway but then remain in the car. A check of the vehicle’s license plate showed the car had recently been impounded and released. As the officer made a U-turn to investigate further, the car exited the driveway and Dare followed. When the car ran a stop sign and Dare activated his overhead fights to conduct a traffic stop, the car accelerated to upward of 70 miles per hour, running stop signs and skidding erratically near children playing in a front yard. The driver then pulled into a driveway, slammed on the brakes, fled the car, and jumped into the backyard. Officers searched some of the backyards in the vicinity but eventually called off the search because the residents in the area tended to be uncooperative with law enforcement and it appeared the driver had escaped into one of the homes. When Dare searched the abandoned vehicle, he found on the front seat defendant’s driver’s license and a letter addressed to defendant from the Department of Corrections and Rehabilitation. Dare believed the driver was the same person depicted in the photograph on defendant’s driver’s license.
iv. The 2004 murder of Cory Lamons
During the guilt phase of trial, the jury learned that at the time defendant testified at Lamb and Rump’s 2007 trial claiming that he was the one who killed Scott Miller, he recently had begun serving a sentence of 45 years to life. During the penalty phase, the jury was told that that prison term was a third strike sentence imposed after defendant pleaded guilty to second degree murder for the April 2004 killing of Cory Lamons and that, in a bifurcated proceeding following its guilt phase verdicts, the court found true a third special circumstance allegation, that defendant was convicted previously of
Sara Lenard rented a room in the two-story Huntington Beach apartment where the murder occurred. She testified that around 4:00 p.m. on the day Lamons was killed, she walked downstairs from her second-floor bedroom to find four people on the first level of the apartment whom she had never seen before. Defendant was holding a hammer in his hand and standing with his back against the wall near the door leading to an attached garage. When Lenard asked what was going on, the woman in the group, later identified as defendant’s girlfriend Suzanne Miller, replied, “This isn’t going to be good.” When Lamons then walked into the apartment through the door leading from the garage, Lenard saw defendant strike Lamons with the hammer. According to Lenard, as defendant repeatedly hit Lamons in the head with the hammer, Lamons was screaming, “I didn’t do anything, I didn’t do anything.” Terrified, Lenard ran out the front door. She returned a couple of minutes later after the screaming had stopped. When she came back inside, she saw a lot of blood and Lamons lying motionless on the floor. Lenard left the apartment again, this time with her boyfriend, who had been in the bedroom upstairs during the incident. The couple returned to the apartment several hours later to retrieve their possessions. When they entered, defendant and Suzanne Miller were gone and the blood had been cleaned up, but there were two men Lenard did not recognize, who warned her and her boyfriend to “[kjeep your mouth shut or something like this will happen to you.”
Detective Steven Mack testified regarding the circumstances surrounding the discovery of Lamons’s body and defendant’s arrest two days after the killing. Mack told the jury he was conducting surveillance on a white Ford pickup truck based on information he had received that a group of individuals was trying to dispose of a body. At the time the truck was eventually pulled over in Riverside, defendant was at the wheel and Suzanne Miller was in the passenger seat. In the bed of the truck was a wood pile covered with carpeting. When Mack detected the odor of decomposing flesh and investigated further, he discovered Lamons’s body underneath the wood. It had been wrapped in dark material that was held together with strips of bedsheet.
Detective Mack testified further regarding the condition of Lamons’s body at the time it was discovered in the back of the truck. According to Mack, Lamons’s left eye and lips were swollen, and he had visible bruising on the forehead, knuckles and upper legs. The parties stipulated that the Orange County Coroner’s Division could not determine the precise cause of death due to the high level of drugs in Lamons’s body. The cause of death was therefore listed as “blunt force head injuries with methamphetamine and amphetamine intoxication.”
Lamons’s mother testified briefly, telling the jury that she misses her son every day, and that the worst part for her is knowing that he died a violent death but she was not there to protect him.
The prosecutor and the lead detective in the Miller killing then read aloud to the jury the transcript of defendant’s testimony at the Lamb and Rump trial in which he discussed the Lamons murder. That portion of the prior testimony had been redacted during its presentation in the guilt phase of defendant’s trial for the Miller killing. The jury thus heard defendant admit that he beat Lamons to death with his hands and a hammer and then wrapped up his body. When asked why he killed Lamons, defendant replied that Lamons “had it coming.” Specifically, defendant said it was “gang-type stuff,” that Lamons was “ripping off girls,” and “being a dope fiend . . . stealing things, taking things, whatever.”
v. Violent conduct while in custody
The prosecution presented evidence of numerous incidents involving defendant’s use of force and violence while in custody.
Correctional Officer Mireles testified that in June 1991, she saw defendant attack his cellmate at Folsom State Prison. Defendant stood over the inmate punching him with closed fists until Mireles could separate them by removing the inmate from the cell and closing the door.
Correctional Officer Gomez testified that about one year later, in May 1992, he heard defendant shouting from his cell in the security housing unit at California Corcoran state prison (Corcoran). When Gomez went to investigate, he observed defendant’s cellmate seated on his own bunk, with bloodstains on his shirt. Defendant admitted hitting his cellmate, claiming that he did so after his cellmate said he would “beat my ass” and “took a swing at me.”
A different officer testified about another incident at Corcoran several months later in July 1992. Correctional Officer Schuman was in a tower with a view of the exercise yard when he observed defendant attack another
Defendant had been released from custody at one point but was returned to prison for a parole violation in early 1995. Correctional Officer Wren testified that in May 1995, he responded to a “man down” report in a housing area for gang members in the California Institution for Men, Chino (Chino). Wren told the jury that he observed defendant’s cellmate lying on the cell floor bleeding profusely from deep cuts in his right shoulder, hand, forearm, chest and thigh. After removing the injured cellmate for medical treatment, Wren returned to the cell and observed that defendant had a laceration on his right hand. According to the officer, such injuries were consistent with the use of a razor blade. The prosecution presented evidence that defendant pleaded guilty to assault by a state prisoner and received a second strike sentence of four years to run consecutively to his then-current sentence.
Correctional Officer Hinojos testified that four months later, in September 1995, he responded to defendant’s cell at Chino after another “man down” report. According to Officer Hinojos, he observed that defendant’s cellmate had a head injury and defendant had minor abrasions and bleeding on several fingers.
In May 1996 defendant was back at Corcoran in the administrative segregation unit. Correctional Officer Smith testified that when he searched the cell occupied by defendant and his cellmate, he found on the cellmate’s side of the room two pieces of weapon-grade metal and, on defendant’s side, a handmade handcuff key.
Correctional Officer Priest testified about an incident at the same prison six months later, in November 1996. Officer Priest told the jury that he heard a commotion coming from the cell defendant shared with another inmate and observed defendant standing over his cellmate punching and kicking him in the head and upper torso while the cellmate was on the floor in a fetal position trying to protect himself. Priest ordered defendant to stop and exit the cell, but defendant continued punching and kicking his cellmate until Priest fired a nonlethal rubber baton round at him.
Culinary Officer Nava described for the jury defendant’s conduct during the Chino staff’s investigation into a homicide that had occurred at that
vi. Orchestrating crimes while in custody
The prosecution played a number of tape recordings and presented transcripts of defendant’s monitored telephone calls while in custody in the Orange County jail from 2007 until a few weeks before trial in his case in 2009. The recordings were played at various points during testimony by Sheriff’s Deputy Seth Tunstall, who had monitored and recorded the conversations. Tunstall identified for the jury the participants in the telephone calls and their relationship to the PENI gang, and he described the individuals and organizations referenced in the calls.
In some of the calls, defendant seemed to be coordinating in-custody assaults on members of a rival White supremacist gang called the United Society of Aryan Skinheads (USAS). For example, in April 2007 defendant spoke with Rebecca Mangan, who was Lamb’s girlfriend at the time and an important conduit for defendant’s communications outside the jail. In that call, Mangan told defendant that a PENI gang member named “Stomper” had been stabbed by someone from USAS while in state prison. Defendant told Mangan that if she talked with PENI member “Half P” she should tell him what had happened to Stomper. He also directed Mangan to “[tjell him I said go get one now.” Defendant’s remarks during the recorded conversation indicated that Half P was in custody in the same prison where defendant had been housed before his transfer to county jail, and that there were “four of them,” meaning four USAS members that he and Half P had been “checking on.”
About one year later, in a March 2008 conversation with his friend Andrea Metzger, defendant asked her whether she had sent a letter regarding USAS to another PENI state prison inmate, “Patrick,” and instructed her to tell him “to be on the lookout for them” because they have “jumped . . . three homies
Other telephone calls suggested that defendant was setting up crimes to be committed outside prison facilities. For example, in a series of conversations in late May and early June 2007, defendant spoke with PENI gang members Jason Cary and Jason Jones and to Jill Walker, another woman who helped facilitate his communications outside the jail, regarding what appeared to be a plan for a home invasion robbery. Defendant told Walker to ‘“grab his scooter” and ‘“anything else that ain’t nailed down,” and to ‘“take him down” and ‘“divvy it up when they’re done.” When Walker informed defendant that ‘“the Mexican dudes were gonna take care of it,” defendant asked, ‘“You didn’t tell ’em where it was at or anything did ya?” She assured him she had not. Defendant then instructed Walker to ‘“call the homeboy back right now” so defendant could ‘“set up the fucking guidelines.” He also directed Cary to get in touch with ‘“the homeboy” on a ‘“secure line,” telling him that he “want|ed| to make this thing happen.” In a conversation with Jones, defendant instructed him that ‘“everything goes,” including a $30,000 ‘“scooter.” In a third and final conversation about the apparent plan, defendant told Cary that defendant’s brother wants him ‘“there” on Monday. He also expressed frustration, saying he did not ‘“know why . . . this is so difficult for everybody to understand.” When Cary said it was ‘“just a matter of getting together,” defendant provided him with the names of others who ‘“should be ready.” Defendant then commented that ‘“evidently somebody needed to hear my voice to . . . tell ’em . . . [to] put the pieces of the puzzle together and fucking make it happen.”
In one of the recorded conversations described above, defendant indicated that he already had a cash buyer for the ‘“scooter” and agreed with Walker that he would split the proceeds from the sale with her. The prosecution also played for the jury a monitored call between defendant and his two brothers in which defendant apparently again sought to profit by putting PENI gang members ‘“to work.” In that July 2007 conversation, defendant said he needed to find ‘“some jobs.” He also said that ‘“the dudes will go do it . . . [and] . . . [t]hey tell me they’ll give me a third, right off the top.” Defendant also said he planned to ‘“throw [the money] into mom’s bank account” so that he could access it.
To bolster the monitored calls evidence, the prosecutor read into the record the portions of defendant’s testimony at Lamb and Rump’s earlier trial in
b. Victim impact testimony
As evidence in aggravation relating to the circumstances of the capital crime (§ 190.3, factor (a)), the prosecutor called Scott Miller’s mother, Bonnie Miller, to testify about the impact her son’s death had on her and other family members. According to Ms. Miller, after the murder, Miller’s father suffered a fatal stroke, his older brother Calvin had to be hospitalized after a breakdown, and his elderly grandmother, with whom Miller was very close, nearly died from a heart condition. Ms. Miller testified further that she has full-time custody of Miller’s son, “Little Scott,” who was born shortly after Miller’s death. According to Ms. Miller, Little Scott does not comprehend why he does not have a father like his friends do, and it broke her heart to tell him he would never see his father. She told the jury it also breaks her heart to take Little Scott to the beach to watch the surfers because she realizes that Miller, who was an avid surfer, will never have a chance to teach his son to surf. Ms. Miller concluded her testimony by explaining that part of her died when her son was murdered and, except for her love for Little Scott, she has since shut herself off from the rest of the world.
2. Defense evidence
The defense presented a multifaceted case in mitigation that included character witnesses, expert testimony regarding defendant’s social history and psychological profile, and testimony by the former warden of San Quentin State Prison, who contrasted the day-to-day existence of a death row inmate with that of an inmate at a high security prison. Defendant also testified on his own behalf.
a. Character evidence
Two witnesses who had testified during the prosecution’s case-in-chief at the guilt phase of trial described for the jury a different side of defendant. Shirley Williams testified that she was good friends with defendant and his entire family, and that if she was in trouble in any way, defendant was there
Another prosecution witness at the guilt phase, Donald McLachlan, told the jury he considers defendant “a friend in every definition of the word.” He explained that if someone was having problems with a girlfriend or wife, or needed money, defendant would be there. McLachlan also recounted that on one occasion, defendant intervened to protect McLachlan’s possessions when people started taking things from his residence after he had been taken into custody.
Suzanne Miller’s testimony at the penalty phase reiterated the theme that there were two sides to defendant. Miller, who was defendant’s girlfriend, acknowledged that defendant was capable of great violence. But she described defendant as loving and respectful, and believed his life had value. Miller also characterized defendant as very protective, explaining to the jury that defendant agreed to a sentence of 45 years to life for Lamons’s murder so that she and the other codefendants in the case could receive determinate sentences rather than life terms.
Joseph Govey testified about defendant’s loyalty as a friend. He told the jury that when he and defendant were cellmates 20 years earlier, defendant showed Govey a letter indicating that an Aryan Brotherhood shot-caller had ordered defendant to kill him but defendant refused to do so.
b. Social history and psychological assessment
The defense presented extensive expert testimony by Roberto Flores de Apodaca, Ph.D., a clinical psychologist. In forming his opinions, Dr. Flores conducted two interviews of defendant, administered psychological tests, and reviewed various records provided by the defense team.
Dr. Flores began his testimony by describing defendant’s family background and social development, much of which was reported to him by defendant himself. Defendant’s parents separated when he was 10 years old and he had had virtually no contact with his father since that time. His father’s departure from the family was the point at which defendant started having behavioral problems in school and running afoul of the law. Defendant told Dr. Flores that he was grateful to his mother for working hard and providing for him and his four older brothers. But Dr. Flores was of the view that defendant’s mother was overwhelmed and unable to adequately exercise any authority over defendant. Defendant reported positive relationships with
Notwithstanding defendant’s description of an “idyllic” childhood and adolescence with his siblings, his criminal activities and substance abuse began at an early age. Starting with alcohol use at age 10, defendant had moved on to marijuana, LSD, and cocaine by the time he was 14 or 15 years old. By age 25, methamphetamine was defendant’s “drug of choice.” According to Dr. Flores, defendant’s alcohol and drug abuse were both a cause and effect of his bad decisions that tended toward criminality, choices he was making on his own because he had no real authority figure in his life. For example, at age 10, defendant was arrested for receiving stolen property, specifically, some diamond earrings that he had sold to buy alcohol. Dr. Flores pointed out that defendant, who was 46 years old at the time of trial, had spent about 25 years of his adult life in prison, and he agreed with defense counsel that the prison environment provided defendant with structure and effectual authority figures.
Dr. Flores shared with the jury defendant’s positive comments regarding his two former wives and his two children, 25-year-old Justin and eight-year-old Ryder. Defendant identified his drug use and lengthy incarcerations as the reasons for the marriage breakups, and he told Dr. Flores that he remained committed to his former wives and his children. Dr. Flores gleaned from these and other comments that although defendant can be violent and vengeful when, in his judgment, the situation called for it, he also can be loyal, committed, and helpful in other circumstances. In defendant’s own words, “The two things that cannot be forgiven are [child molesters] and rats, everything else can be forgiven in life.”
Dr. Flores also discussed the results of the intelligence and psychological tests he administered to defendant. He determined that defendant’s intelligence quotient on a nonverbal intelligence test was 92, below the average score of 100 in the general population, but possibly attributable to his having given up on school at such an early age. Defendant’s responses on the personality assessment inventory showed that he was prone to drug abuse, aggression, and violence, and that he had no regard for the rights of others, social norms, or the law. That assessment further indicated that, with regard to defendant’s propensity for aggression, he was irritable and short tempered, and that he sometimes was unable to control his anger. In Dr. Flores’s view, defendant’s drug abuse was both the cause and effect of this impulsivity. Finally, Dr. Flores described the results of the Hare psychopathy checklist, a test that quantifies the subject’s psychopathological tendencies associated
Regarding a diagnosis, Dr. Flores concluded that defendant met the criteria for antisocial personality disorder and that he was not amenable to treatment.
Defendant informed Dr. Flores during the interviews that he wanted to receive the death penalty. In Dr. Flores’s view, defendant’s stated reasons for preferring a death verdict—a more desirable quality of life on death row— was rational and not impulsive. Dr. Flores also believed that the other option for defendant, which likely would be spending the rest of his life in the security housing unit (SHU) at Pelican Bay State Prison, would not be compatible with his mental makeup.
c. Differences between life in a security housing unit and life on death row
Daniel Vasquez, the former warden at San Quentin State Prison, testified regarding the differences between the day-to-day life of an inmate placed in the SHU at Pelican Bay State Prison and that of a death row inmate at San Quentin. As Vasquez explained, the SHU at Pelican Bay is one of the most secure correctional facilities in the country, and prisoners who are documented street or prison gang members are sometimes placed there indefinitely. Inmates assigned to the SHU are locked in their cells almost 24 hours per day. They are allowed three cubic feet of property, including a television or radio. Although inmates in the SHU are allowed to exercise by themselves in a small indoor yard and to shower about three times a week, they have no outside visibility or fresh air and are not permitted face-to-face contact with visitors or other inmates.
Vasquez then described life on death row. According to Vasquez, condemned prisoners in death row’s most desirable area, called the North Seg, can exercise right outside their cell door, and have more time out of their cells than inmates in the SHU. Good behavior is a requirement for assignment to North Seg and there is a long waiting list. Another area within death row, called East Block, is less attractive because the day-to-day existence is mostly repetitive and movement outside the cell is more restrictive. For
In response to defense counsel’s hypothetical question, Vasquez expressed his opinion that it was understandable for a convict with a documented history of prison gang affiliations to express a preference for living out his days on death row rather than in the SHU in Pelican Bay. As Vasquez pointed out, death row inmates have more protection from gang members and enemies and less pressure to align with gangs.
In response to defense counsel’s line of questioning regarding misconduct by prison guards, Vasquez indicated he was aware of an inquiry by the Federal Bureau of Investigations into allegations that in the late 1980s and early 1990s guards at Corcoran staged fights between inmates and bet on them. According to Vasquez, the investigation resulted in indictments against some staff.
During cross-examination by the prosecutor, Vasquez answered questions regarding the records that chronicled defendant’s 20-year history of incarceration in the state’s prison system. He told the jury that the records showed numerous instances in which defendant was briefly released from prison but returned to custody for violating the conditions of his parole. The prosecutor also elicited from Vasquez information regarding defendant’s numerous prison rules violations. Reading from prison records, Vasquez testified, for example, that during defendant’s first prison commitment, he was written up five times for rules violations.
d. Defendant’s testimony
Defendant testified on his own behalf, telling the jury he would prefer being on death row at San Quentin than in the SHU at Pelican Bay. He also spoke about his social history, prison experiences, and gang affiliation, and offered his own perspectives on Miller’s murder and the evidence regarding his other crimes and acts of violence.
Defendant first commented on Miller’s murder. He said that he felt “bad” for Miller’s mother, but that Miller “messed up on laws written by us” and
As he had done during his interviews with Dr. Flores, defendant described for the jury his upbringing, family relationships, and history of drug use. He recalled that as a boy he was involved in all types of sports but did not enjoy school because of the ‘“authority figure” aspect of it. He characterized his father as a strict disciplinarian who would punish him harshly for showing disrespect, but spoke about his fondness for his mother and his two former wives, and his love for his own children. Defendant told the jury that he always had maintained good contact with his older son Justin, even during lengthy incarcerations. He acknowledged that his prison time and drug use had ruined his marriages, and reflected that had he never used drugs he probably would have lived a crime-free life. But defendant also admitted that he ‘“still love[s] drugs” and ‘“will do drugs” until he dies.
Defendant testified that he had grown up through the prison system, and he believed the decades he spent in that environment had produced his violent side. According to defendant, prison is a ‘“kill or be killed” situation, and ‘“everybody can get got, no matter how big you are, how small you are, the bodies hit the floor.” Defendant indicated that he himself almost had been killed when he was stabbed in the neck for disobeying a shot-caller’s order to kill his cellmate Joseph Govey.
Defendant also testified regarding his involvement in White supremacist gangs. He explained that he did not join a gang during his first incarceration because at that time he was ‘“too young, too naive to see that my race needed help.” He eventually aligned himself with a White supremacist gang because he wanted to help the older and younger inmates who were being preyed upon. Defendant indicated that he ‘“lives” for his race, but has no problem with other races ‘“unless they come into my area” selling drugs or burglarizing homes. He does not want ‘“people harassing my people” and would do
Defendant then offered the jury his explanations for some of the crimes and acts of violence that were described during the prosecution’s case in aggravation. With regard to the killing of Folsom prison inmate Clyde Nordeen, defendant guessed that the reason no charges were filed against him was because Nordeen was a child molester. Defendant did not like it that Nordeen got “a little two-year sentence” for raping children. As for the various assaults on his Folsom prison cellmates, defendant explained that the prison had placed known informants in his cell in an attempt to get him to talk about the fatal attack on Nordeen. Defendant also offered his reasons for assaulting fellow inmates in Corcoran. For example, he asserted that a September 1995 attack on an African-American inmate took place in a “gladiator arena.” According to defendant, one of the guards asked if defendant minded him taking home the security camera recording of the exercise-yard fight, so that he could show his children the proper way to “beat somebody’s ass.” Defendant admitted that in November 1996 he assaulted an inmate who had dropped out of one of the gangs. As defendant put it, he “did what I had to do.”
Defendant did not deny having engaged in numerous crimes and acts of violence both inside and outside the custodial setting, including two homicides that were not part of the prosecution’s case in aggravation. He pointed out, however, that he always directed his violence toward drug dealers, addicts, gangsters, and convicts, and never against law enforcement. In defendant’s words, “My actions have hurt people. I am sorry about that, but you know, the people that I hurt knew the job was tough when they took it. They signed onto the same thing that I signed onto.” In this regard, defendant admitted the 1985 burglary of Virgil Troutman’s home, which he described as a drug house. As defendant explained, Troutman was a drug dealer who refused to front defendant some drugs; defendant also had heard Troutman sold drugs to children, which bothered him. Defendant used a similar theme when discussing his involvement in Cory Lamons’s murder, explaining that Lamons was a drug addict who owed defendant money and was stealing from women he knew.
Defendant minimized or flatly denied his involvement in other incidents presented in the prosecution’s penalty phase case, however. Specifically, defendant indicated that he did not know that his “jackass” friend was going to steal a woman’s purse in April 1989, and he claimed he was high on cocaine and alcohol when that crime occurred. Defendant also insisted that he
Defense counsel’s direct examination of defendant ended as it had begun, by eliciting from defendant that his goal was to get the best situation for himself and he therefore preferred to live out the rest of his life on death row.
II. Discussion
A. Guilt Phase Claims
1. Sufficiency of the evidence of lying in wait
The prosecution presented alternative theories of defendant’s first degree murder liability for Miller’s death: (1) that the killing was premeditated and deliberated murder, or (2) that it was committed by means of lying in wait. (§ 189.) The jury found defendant guilty of first degree murder. The jury also found true the associated lying-in-wait special-circumstance allegation. (§ 190.2, subd. (a)(15).) Defendant asserts that his murder conviction based on lying in wait and the lying-in-wait special-circumstance finding were not supported by substantial evidence, and therefore cannot stand. Under the applicable standard for assessing his challenge to the sufficiency of the evidence (People v. Booker (2011)
The capital murder in this case occurred in 2002, subsequent to a then-recent amendment to the statutory provision setting forth the lying-in-wait special circumstance. (§ 190.2, subd. (a)(15).) Like the former version, the amended lying-in-wait special circumstance requires “ ‘ “an intentional murder, committed under circumstances which include (1) a concealment of purpose, (2) a substantial period of watching and waiting for an opportune time to act, and (3) ... a surprise attack on an unsuspecting victim from a position of advantage . . . .” [Citations.]’ ” (People v. Moon (2005)
The prosecutor’s theory of the case at trial was that defendant was not the actual shooter but rather that he aided and abetted the murder by luring Miller out of Costa Mesa on the pretext of buying heroin and driving him to the location where Lamb and Rump were waiting to execute him in a surprise attack. A lying-in-wait special circumstance can apply to a defendant who, intending that the victim would be killed, aids and abets an intentional murder committed by means of lying in wait. (§ 190.2, subds. (a)(15), (c); People v. Bonilla (2007)
Viewing the evidence in the light most favorable to the verdicts as we must (People v. Johnson, supra, 26 Cal.3d at p. 576), we conclude that all of the requirements for the lying-in-wait special circumstance were established in this case. From defendant’s statements to fellow gang member McLachlan the day after the shooting, the jury reasonably could infer that defendant harbored an intent to kill when he aided and abetted Miller’s killing. Defendant told McLachlan that Miller had to be killed because of his news interview and his actions “in the neighborhood.” Defendant had elaborated on the first point during his testimony at Lamb and Rump’s trial, saying that he had been angry at Miller for some time for agreeing to be interviewed for the television news segment and that he would kill anyone like Miller who did not abide by the rules. Defendant also characterized Miller as a “dead man” for giving up the gang’s secrets “to the enemy.”
The record also contains ample evidence that defendant aided and abetted the killing. “[A] person aids and abets the commission of a crime when he or she, acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages, or instigates, the commission of the crime.” (People v. Beeman (1984)
It can be inferred from defendant’s substantial participation in the events leading up to Miller’s death that he knew of the plan to kill Miller, intended to facilitate that plan, and aided Lamb and Rump in committing the killing. Defendant was seen talking and laughing with Miller at the party in Costa
The evidence further established that the actual killers intentionally killed Miller by means of lying in wait within the meaning of section 190.2, subdivision (a)(15). The record reflects that all of the elements of the special circumstance were satisfied. The autopsy showed that Miller was killed by a single shot to the back of the head, from which it could be inferred that he was killed intentionally. (See People v. Burney (2009)
We have characterized similar evidence as a “classic lying-in-wait special-circumstance murder.” (People v. Bonilla, supra,
Defendant does not contest the sufficiency of the evidence of intent to kill, or the sufficiency of the evidence of watching and waiting for an opportune time to act. He argues, however, that there is no substantial evidence of concealment of purpose.
With regard to the element of concealment, we have explained that physical concealment before the attack on the victim is not required. Rather,
Defendant contends that what is lacking in the record is evidence of the required nexus between concealment of purpose and a surprise attack from a position of advantage. With regard to concealment, defendant argues that although defendant may have used the promise of a drug purchase to entice Miller to leave with him, Miller clearly knew defendant’s real purpose. According to defendant, Miller was aware of the potential consequences of having been interviewed for the news report on PENI and was on his guard. Specifically, in the year following the news report, Miller had told his former girlfriend on several occasions that he was concerned for his safety. At the party in Costa Mesa on the night of the shooting, Miller and defendant joked with one another about Miller keeping his guard up. And sometime later that evening, Miller left his former girlfriend a concerned-sounding voicemail message—with defendant’s voice possibly in the background. Furthermore, according to defendant, he had testified at Lamb and Rump’s trial that he told Miller at the party that he was going to kill him. Defendant argues that the only reasonable inferences that could be drawn from this evidence was that Miller knew his gang wanted him killed and that he was concerned he would be killed that night because he was out with defendant. In defendant’s view, the evidence did not show concealment of purpose but rather that Miller, a drug addict, made a bad choice to go with defendant to get drugs.
We reject defendant’s assertion that the record lacks substantial evidence of concealment of purpose. Defendant’s summary of the facts ignores the gang expert’s testimony to the effect that punishment for violating gang rules could be extracted years after the offending act, and McLachlan’s remark that Miller was “still running around” because no one had the courage to carry out the gang leadership’s order to kill him. This evidence suggested that although Miller may have been aware there would be consequences for participating in the news interview, and may have voiced safety concerns on several occasions during the year following the news broadcast and on the night of the shooting, he did not necessarily expect that the execution would occur when he left the party with defendant to obtain drugs. (See People v. Arellano (2004)
Defendant’s challenge to his murder conviction based on lying in wait also fails. We have concluded that the lying-in-wait special circumstance under former section 190.2, subdivision (a)(15) is “ ‘ “slightly different” ’ ” from, and its elements are “ ‘more stringent’ ” than, lying-in-wait first degree murder under section 189. (People v. Moon, supra,
2. Constitutionality of the lying-in-wait special circumstance
Defendant argues that the lying-in-wait special-circumstance finding must be vacated, and his death sentence reversed, because the special circumstance is virtually identical to, and thus indistinguishable from, the lying-in-wait theory of first degree murder and, therefore, fails to satisfy the requirements of the Eighth Amendment to the federal Constitution.
Miller’s murder occurred in 2002. As defendant correctly points out, in March 2000, the voters passed Proposition 18, which changed the definition of the lying-in-wait special circumstance from a killing while lying in wait to a killing by means of lying in wait, mirroring the language of the first degree murder statute. (See Stats. 1998, ch. 629, § 2, p. 4163, enacted as Prop. 18, approved by voters, Primary Elec. (Mar. 7, 2000) eff. Mar. 8, 2000.) He argues that the amendment rendered the special circumstance virtually identical to first degree lying-in-wait murder and thereby eliminated the guidance needed to prevent its arbitrary and capricious application in violation of the Eighth Amendment.
Recent decisions by this court have noted the change to section 190.2, subdivision (a)(15). (See, e.g., People v. Streeter (2012)
In assessing defendant’s challenge to the amended lying-in-wait special circumstance, we are guided by the following constitutional principles. The Eighth and Fourteenth Amendments prohibit a sentence of death “imposed under sentencing procedures that create a substantial risk that the punishment will be inflicted in an arbitrary and capricious manner.” (Godfrey v. Georgia (1980)
Although this court previously has had no occasion to address the meaning and constitutionality of the current version of the lying-in-wait special circumstance, the Fourth District Court of Appeal was called upon to do so in People v. Superior Court (Bradway) (2003)
We agree with Bradway that the voters’ adoption of the “by means of’ lying-in-wait language mirroring section 189’s definition of lying-in-wait murder evidenced an intention to align the special circumstance with lying-in-wait first degree murder in one of the respects that previously had distinguished the two. That conclusion is further supported by the election materials associated with the passage of Proposition 18, as Bradway observed. (Bradway, supra, 105 Cal.App.4th at pp. 307-308.) The voter information guide shows that voters were informed that the courts had interpreted the special circumstance’s reference to a killing “while” lying in wait to require that the murder have “occurred immediately upon a confrontation between the murderer and the victim.” (Voter Information Guide, Primary Elec. (Mar. 7, 2000) analysis of Prop. 18 by Legis. Analyst, p. 33.) According to the Legislative Analyst, this interpretation precluded application of the special circumstance if the defendant watched and waited for the victim, but the killing occurred after the defendant had captured the victim and transported him or her to another location. (Ibid.) The Legislative Analyst explained that the passage of Proposition 18 would replace the special circumstance’s previous language with reference to a killing “ ‘by means of’ ” lying in wait, thereby permitting application of the special circumstance in that previously prohibited scenario. (Voter Information Guide, supra, analysis of Prop. 18 by Legis. Analyst, p. 33; see Bradway, supra, at p. 308.)
People v. Morales, supra,
Indeed, this court’s decisions resolving Eighth Amendment challenges to other special circumstance provisions support the conclusion that the amended lying-in-wait special circumstance would satisfy federal constitutional requirements for death eligibility even were the amendment to have made the special circumstance identical to lying-in-wait first degree murder. In People v. Catlin (2001)
Defendant argues further that even were we to decide that the amended version of the lying-in-wait special circumstance does not on its face offend the Eighth Amendment, the special circumstance provision cannot be constitutionally applied in his case. Specifically, he asserts that because his liability for lying-in-wait first degree murder as an aider and abettor required a showing of intent to kill, there was no meaningful distinction between that theory of first degree murder and the lying-in-wait special circumstance in his case, making it unnecessary for the jury to consider any additional information when deciding the truth of the special circumstance allegation and rendering a true finding inevitable. Defendant’s as-applied challenge is essentially the same argument as his facial attack, which we have rejected for the reasons discussed above. (See People v. Lewis (2008)
As previously mentioned, the prosecutor’s theory of the case was that defendant aided and abetted the murder of Scott Miller by luring him to a deserted alley where Lamb executed him with a shot to the back of the head. In connection with that theory, the trial court instructed the jury on the principles of aider and abettor liability, introducing the theory with CALCRIM former No. 400. As the instruction read at the time of defendant’s trial, the court stated as follows. “A person may be guilty of a crime in two ways. One, he may have directly committed the crime. I will call that person the perpetrator. Two, he may have aided and abetted the perpetrator, who directly committed the crime. A person is equally guilty of the crime whether he committed it personally or aided and abetted the perpetrator who committed it.” (See CALCRIM No. 400 (Aug. 2009), italics added.)
Focusing on the ‘“equally guilty” language italicized above, defendant argues that instructing with CALCRIM former No. 400 violated his right to due process because the instruction misdescribed the prosecution’s burden of proving his liability as an aider and abettor and permitted the jury to convict him of first degree murder based on the culpability of the perpetrator Lamb, without considering his own mental state. As defendant points out, an aider and abettor’s criminal liability may sometimes be greater than, or lesser than, that of the perpetrator. But, he argues, if the jurors concluded that Lamb premeditated and deliberated the murder, they were ‘“duty bound” under CALCRIM former No. 400 to find defendant guilty of first degree murder, even if they believed defendant did not harbor the requisite mental state for first degree murder.
As a threshold matter, the Attorney General asserts that defendant’s claim of instructional error was not preserved for appeal because defense counsel neither objected to, nor sought modification of, CALCRIM former No. 400 at trial. This court has observed that, as a general matter, “ ‘ “a party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.” ’ ” (People v. Castaneda (2011)
As defendant correctly observes, CALCRIM former No. 400 was revised subsequent to his trial. Prompting the modification that appears in the current version of the instruction were two Court of Appeal decisions concluding that CALCRIM former No. 400 was inconsistent with this court’s opinion in People v. McCoy (2001)
In People v. Samaniego, supra,
This court found in Bryant, supra,
First, there was no version of the evidence in this case suggesting that defendant’s mental state was less culpable than that of the actual killer. Defendant’s statements to McLachlan detailing his significant involvement in the killing—including his description of having used the pretext of a drug purchase to lure Miller to the alley where Lamb and Rump were waiting, and later having had words with Lamb for shooting Miller from behind rather than confronting him about his transgressions face to face before killing him—left little question that defendant “share[d] the murderous intent of the actual perpetrator.” (People v. McCoy, supra,
Nor was there anything in the record suggesting that the jurors may have believed the “equally guilty” language in CALCRIM former No. 400 required them to determine defendant’s criminal liability based on Lamb’s mental state at the time of the killing, rather than considering defendant’s own mental state. The court introduced the subject of aider and abettor liability by reading CALCRIM former No. 400. ft then instructed the jury with CALCRIM
In sum, we conclude that, based on the record before us in this case, there was no reasonable likelihood the jurors would have understood the “equally guilty” language in CALCRIM former No. 400 to allow them to base defendant’s liability for first degree murder on the mental state of the actual shooter, rather than on defendant’s own mental state in aiding and abetting the killing. (People v. Clair (1992)
4. Prior-murder special-circumstance finding based on a murder that occurred after the capital offense
After the jury returned its verdicts in the guilt phase of trial, the trial court conducted a court trial on the special circumstance allegation that defendant “was convicted previously of murder in the first or second degree” (§ 190.2, subd. (a)(2)), and found the allegation to be true. The victim of that murder was Cory Lamons, who was killed in April 2004. In June 2004, defendant pleaded guilty to second degree murder for his involvement in that crime.
Pointing out that the murder of Cory Lamons occurred two years after the murder of Scott Miller in March 2002, defendant argues that the prior-murder special-circumstance finding should be vacated because, contrary to federal constitutional requirements, he was not on notice at the time of the Miller murder that he was subjecting himself to death eligibility for a prior murder conviction. Defendant also complains that the prior-murder special-circumstance allegation, as applied to him, is vague and overbroad and bears no relationship to the capital murder itself, in violation of Eighth Amendment commands.
We observe that section 190.2, subdivision (a)(2), was in effect at the time of Miller’s murder. This court long ago explained that “[t]he
Defendant acknowledges that this court has repeatedly rejected constitutional challenges to the prior-murder special-circumstance provision, but asks that we reconsider our prior pronouncements in this regard. Because he provides no new argument or legal developments warranting reexantination of our prior decisions, we decline his invitation to do so. (See People v. Rogers (2013)
B. Penalty Phase Claims
1. Victim impact testimony relating to a murder other than the capital crime
Defendant contends the trial court erred in allowing the prosecutor to present victim impact evidence relating to noncapital crimes, including the noncapital murder of Cory Lamons. He argues that such evidence is inadmissible as a factor in aggravation under state law and that its admission violated his rights to due process, trial before an impartial jury, and a reliable penalty determination guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments and their state constitutional counterparts. We conclude to the contrary that there was no statutory or constitutional bar to admitting the evidence in question.
a. Background
The court, sitting as trier of fact in a bifurcated guilt phase proceeding to determine the truth of the prior-murder special-circumstance allegation, found beyond a reasonable doubt that defendant previously had been convicted of the second degree murder of Cory Lamons. (§ 190.2, subd. (a)(2).) At the penalty phase of trial, the court informed the jury of its finding and the prosecutor called several witnesses to testify regarding the circumstances of that crime as evidence of “other violent criminal activity” pursuant to section 190.3, factor (b).
Prior to trial, the prosecutor had filed a written motion seeking admission of victim impact testimony relating to defendant’s “other violent criminal
With no further objections by defense counsel, the prosecutor called several witnesses to testify regarding Lamons’s murder. Cory Lamons’s mother, Sharon Thompson, was the last of these witnesses. During her testimony, she described how life changed for her and Lamons’s older sister after her son’s death. For example, she stated, she tries not to allow anyone to get close to her because she does not want to ‘“hurt like that again.” She also explained that the worst part for her may be knowing her son died a violent death and that she was not there to protect him. Thompson told the jury that she moved out of the state after her son’s death because she could not cope, that she misses him every day, and that ”[i]t will never get any easier.”
During closing argument, the prosecutor referred to Thompson’s testimony several times, reminding the jury how life had changed for the worse for Thompson and her daughter after Lamons’s violent death, and urging the jury to give weight to the impact of Lamons’s murder on his mother when evaluating the factor (b) evidence.
b. Discussion
Defendant contends that the admission of victim impact evidence relating to a crime other than the capital offense exceeded the constitutionally permissible scope of such aggravating evidence under the principles established in Payne v. Tennessee (1991)
As a preliminary matter, the Attorney General asserts that defendant’s claim is forfeited because defense counsel did not object to the factor (b) victim impact evidence on the ground that the admissibility of such evidence is limited to the circumstances of the capital offense. We hnd to the contrary that defendant’s argument was fairly included in defense counsel’s objection to the prosecutor’s motion to admit victim impact evidence relating to factor (b) criminal activity generally. The prosecutor’s written motion asking the court to admit the victim impact evidence argued that the law allowed jurors to consider not just victim impact evidence relating to the capital murder, but also to consider victim impact evidence relating to the “victims and surviving victims” of defendant’s factor (b) crimes. In a written response, which was captioned “The Defense Objects to Victim Impact Statements of Factor (b) Crimes,” defense counsel maintained that such evidence is not admissible at all unless it is relevant to proving that the incident in question met the definition of factor (b) criminal activity. In a fallback position, counsel’s written motion further argued that even if victim impact evidence is relevant to crimes unrelated to the capital offense, the admission of such evidence should be limited to testimony by the actual victims, not family or friends of the victims. Although counsel raised only the latter point at the hearing on the motion, he submitted the issue on his written motion. On this record, we conclude the claim that victim impact evidence is permissible only as it relates to the capital offense is an argument that was fairly included in defendant’s objection below and, therefore, is preserved for appeal.
We reach a different conclusion, however, to the extent defendant claims that the testimony by Lamons’s mother was highly emotional and prejudicial and thereby improperly influenced the jury. As previously mentioned, the trial court overruled the defense objection to the factor (b) victim impact testimony without prejudice, expressly affording defense counsel an opportunity to raise other objections to the challenged testimony. Counsel did not object to the testimony by Lamons’s mother on the ground it was unduly emotional or prejudicial, either before or during its presentation. Defendant, therefore, has not preserved that issue for appeal. (People v. Mills (2010)
Although defendant did not forfeit his claim regarding the propriety of admitting victim impact evidence relating to crimes other than the capital offense, as we explain, his contention does not succeed.
In Booth v. Maryland (1987)
This court has concluded, however, that Booth and Gathers had no bearing on the admissibility of ‘“evidence or argument relating to the nature and circumstances of other criminal activity involving the use or threat of force or violence or the effect of such criminal activity on the victims.” (People v. Benson, supra,
In Payne, supra,
Subsequent to Payne, this court held in People v. Edwards (1991)
Defendant acknowledges the numerous decisions upholding the admissibility of victim impact evidence under factor (b). He points out, however, that in People v. Boyde (1988)
Defendant’s statutory construction argument is premised on a textual distinction between 190.3, factors (a) and (b). Specifically, he emphasizes that although factor (a) expressly refers to the ‘“circumstances” of the capital crime, no such language appears in factor (b). Defendant points out that Edwards found the commonly understood meaning of the “circumstances of the crime of which the defendant was convicted in the present proceeding” (§ 190.3, factor (a), italics added), included ‘“the specific harm caused by the defendant,” which in turn included the impact on the victim’s family. (Edwards, supra,
Defendant fails to persuade that the textual distinction between section 190.3, factors (a) and (b) compels the conclusion that the electorate intended to preclude victim impact testimony and argument relating to violent criminal activity other than the capital crime. Notwithstanding the difference in text, and as previously discussed, this court has long construed factor (b) as permitting “evidence showing the circumstances of the prior violent criminal activity.” (People v. Brown (1988)
Nor are we persuaded that this court’s decision in Edwards supports defendant’s statutory construction argument. Defendant is correct that Edwards focused on section 190.3, factor (a)’s express reference to the “circumstances” of the capital crime when construing that provision to contemplate the admission of victim impact testimony. This was not the only basis of the holding in Edwards, however. Notably, Edwards also relied on People v. Benson, supra,
We furthermore find no basis on which to conclude that Boyde states the better rule, as defendant maintains. In Boycle, the prosecution presented testimony by eight victims of the defendant’s prior robberies and assaults. When describing the circumstances of those incidents, the witnesses mentioned how the crimes had affected their lives. (Boyde, supra, 46 Cal.3d at pp. 247, 249.) The court in Boyde agreed with the defendant that the “testimony by victims of other offenses about the impact that the event had
Until the present matter, this court’s decisions have largely ignored Boyde’s anomalous conclusion. Its holding, however, is inconsistent with every other pronouncement by this court on the subject, including a decision that was issued in the very same month that Boyde was filed. (See People v. Karis, supra,
We conclude furthermore that evidence and argument regarding the impact of a factor (b) homicide on a member of the victim’s family is relevant to the jury’s penalty determination, subject to the same limitations on its admissibility that govern victim impact evidence as it relates to the capital crime. (See Edwards, supra,
As this court has observed in the context of capital crimes, “[vjictim impact evidence is admissible to establish the unique loss resulting from a murder and thereby to counteract the defendant’s mitigating evidence.” (People v. Suff (2014)
In addition to arguing that the electorate did not intend to permit victim impact evidence relating to factor (b) crimes, defendant asserts that the admission of such evidence in his case amounted to federal constitutional error. He acknowledges that our decisions have consistently held that victim
Some of these out-of-state cases have held that victim impact evidence relating to a noncapital crime is irrelevant under that state’s death penalty scheme, which differs in significant respects from our own. (See, e.g., Sherman v. State, supra, 965 P.2d at pp. 913-914; see also People v. Davis (2009)
We previously have declined to depart from our prior conclusion that the admission of victim impact evidence regarding noncapital crimes does not violate the federal Constitution. (People v. Virgil, supra,
2. Addressing jurors individually during closing argument
Defendant contends that the prosecutor committed reversible misconduct during closing remarks at the penalty phase by addressing his argument to jurors individually rather than as a group. We conclude that defendant has forfeited his claim because counsel failed to object, and that his claim of ineffective assistance of counsel based on that omission is more appropriately raised in a petition for writ of habeas corpus.
Near the end of the prosecutor’s closing argument, he emphasized that defendant himself was the only one to blame—not drug abuse, his family, his teachers, society or the prison system—for “all the agony that he caused, for all the hurt that he caused, for all the violence that he caused.” With regard to the harm caused by defendant, the prosecutor argued that “[¡justice will be served when those who are not injured by crime feel as indignant as those who are. That’s when justice is served. When people who are not directly injured by the crime feel as indignant as those that are.” Continuing with this theme, the prosecutor then addressed each of the 12 jurors individually as follows:
“Are you indignant yet, sir ?
“Are you indignant yet?
“How about you, sir ? Are you indignant yet?
“How about you, sir ? Are you indignant yet?
“How about you, sir ? Are you indignant yet, sir?
“How about you, •-o
“How about you, sir ? Are you indignant yet?
“How about you, ma’am?
“How about you, •-O
“How about you, ma am?
“How about you, ma’am?
“How about you, ma’am?”
Nothing in the record suggests that any juror responded to the prosecutor’s individual query.
Directing his remarks to the jury as a whole again, the prosecutor then stated, “Enough is enough,” and asked jurors whether they feel what the family members of Scott Miller and Cory Lamons feel. “Don’t say yes,” the prosecutor cautioned, “because you don’t unless you have lost a daughter or a
b. Discussion
Defendant argues that the prosecutor committed egregious misconduct by addressing each juror individually during closing argument in violation of his right to due process.
“ ‘ ‘“When a prosecutor’s intemperate behavior is sufficiently egregious that it infects the trial with such a degree of unfairness as to render the subsequent conviction a denial of due process, the federal Constitution is violated.” ’ [Citations.]” (People v. Shazier (2014)
This court’s decision in People v. Wein (1958)
To preserve a claim of prosecutorial misconduct for appeal, however, the defendant must have raised a timely objection and requested that the jury be admonished to disregard the offending remarks. (People v. Linton, supra,
Defendant does not attempt to explain counsel’s omission. Nor does he argue that any of the exceptions to the forfeiture rule are applicable here. Rather, he claims that the failure to object and ask for an admonition constituted a violation of his Sixth Amendment right to the effective assistance of counsel that requires reversal of the death sentence.
The two-prong standard governing claims of ineffective assistance of counsel is well settled. “ ‘ “In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]” ’ ” (People v. Brown (2014)
This court has recognized that counsel has wide discretion in choosing the means by which to provide constitutionally adequate representation. (People v. Ledesma, supra,
Defendant acknowledges that defense counsel was neither asked to provide, nor offered, an explanation for failing to object to the portion of the prosecutor’s closing argument in which he addressed the jurors individually rather than as a group. He asserts, however, that there could be no satisfactory explanation for counsel’s omission. Specifically, he observes that an
Defendant’s assertion notwithstanding, we cannot say “ ‘ “there simply could be no satisfactory explanation” ’ ” (People v. Mendoza Tello, supra,
3. Cumulative effect of asserted errors
Defendant argues that the cumulative impact of the asserted errors at the guilt and penalty phases resulted in a fundamentally unfair trial and unreliable verdicts in violation of his rights under the Eighth and Fourteenth Amendments. Because we have rejected all of defendant’s claims of error, there is nothing to cumulate and, in any event, we reject his claim that any asserted cumulative effect warrants reversal.
4. Constitutionality of California’s death penalty law
Defendant challenges the constitutionality of various features of California’s capital sentencing scheme, alone and in combination. He acknowledges that this court has repeatedly rejected such challenges but urges that we reconsider our prior conclusions. We decline his request to do so. (See People v. Schmeck (2005)
a. Narrowing fimction
Section 190.2, which sets forth the special circumstances that render a murderer eligible for the death penalty, including felony murder and lying in
b. Circumstances of the crime as a factor in aggravation
Section 190.3, factor (a), which directs the jury to consider as evidence in aggravation the “circumstances of the crime,” has not resulted in the “ ‘ “wanton, and freakish” ’ ” imposition of the death penalty, either by allowing the admission of extensive evidence regarding the impact of the murder on the victim’s family members, friends, coworkers, and the community at large, or by permitting prosecutors to argue that the features of the murder, even features squarely at odds with those in other murder cases, are “aggravating” circumstances within the meaning of the statute. (People v. Merriman, supra, 60 Cal.4th at pp. 105-106; see People v. Brown (2004)
c. Penalty phase procedures
The federal Constitution does not require that the penalty phase jury make unanimous findings beyond a reasonable doubt regarding the existence of particular aggravating factors, or that the aggravating factors outweigh the mitigating factors. (People v. Linton, supra,
Similarly, neither the cruel and unusual punishment clause of the Eighth Amendment, nor the due process clause of the Fourteenth Amendment,
“The lack of written or other specific findings by the jury regarding aggravating factors did not deprive defendant of his federal due process and Eighth Amendment rights to meaningful appellate review, violate equal protection of the laws or violate defendant’s Sixth Amendment right to trial by jury.” (People v. Linton, supra,
Contrary to defendant’s assertion, there is no Eighth Amendment requirement that California’s death penalty scheme provide for intercase proportionality review, either in the trial court or on review. (People v. Jones, supra,
Permitting the jury to consider prior unadjudicated criminal conduct as a factor in aggravation under factor (b), and imposing no requirement that the jury unanimously find the defendant guilty of the unadjudicated crimes does not violate a defendant’s right to due process or his Sixth Amendment jury trial right. (People v. Clark, supra,
Use of adjectives such as “extreme” and “substantial” in section 190.3, factors (d) and (g), respectively, does not create a constitutionally impermissible barrier to the jury’s consideration of a defendant’s mitigating evidence. (People v. DeHoyos (2013)
Contrary to defendant’s assertion, the failure to afford capital defendants at the penalty phase some of the procedural safeguards guaranteed to noncapital defendants, such as juror unanimity and written findings, does not violate the equal protection clause. The two groups of defendants are not similarly situated. (People v. Whalen (2013)
e. International law
“Defendant contends that, even assuming that the death penalty itself does not violate international norms of decency, the broad reach of California’s capital punishment scheme and use of the death penalty as a regular form of punishment for substantial numbers of crimes are contrary to those international standards and constitute a violation of the Eighth Amendment. We have addressed and repeatedly rejected the identical argument that California imposes death as ‘ “regular punishment for substantial numbers of crimes.” ’ [Citations.] Defendant presents no new arguments that would prompt reconsideration of our prior conclusion.” (People v. Merriman, supra,
f.Constitutionality of California’s capital sentencing scheme as a whole
As mentioned above, defendant acknowledges that this court previously has rejected all of the arguments he raises here asserting certain constitutional inadequacies in the death penalty law. He complains, however, that this court’s prior conclusions are constitutionally infirm in that they did not take into account the cumulative impact of the asserted defects or consider the functioning of the capital sentencing scheme as a whole. He asks that we reconsider each of his claims “in the context of California’s entire death penalty scheme.”
This court recently has rejected arguments identical to the one defendant presents. We find no merit to his contention for the reason stated in People v. Williams (2013)
III. Conclusion
We affirm the judgment in its entirety.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
Before ruling on the automatic motion to modify the verdict, the court granted the prosecution’s motion under section 1385 to dismiss various prior conviction allegations that
According to Nava, defendant yelled, “Radio, radio, all wood pile, all wood pile and comrades. The sergeants are conducting—are taking interviews in the kitchen so you will not, I repeat, you will not go into the kitchen. And I mean no one. And I mean no one. Thank you,” to which other inmates responded, “Thank you.” Nava explained to the jury that “wood pile” is a reference to White inmates and “comrades” refers to those who are active members of defendant’s “set group.”
Because Bradway was sentenced to life without the possibility of parole, rather than death, his constitutional challenge to the lying-in-wait special circumstance arose as a void-for-vagueness claim under the due process clause. (Bradway, supra,
In relevant part CALCRIM No. 400 now reads as follows. “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. [¶] A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator.” (See Judicial Council of Cal., Crim. Jury Instas. (Apr. 2010 supp.) Bench Notes to CALCRIM No. 400, p. 28.)
CALJIC former No. 3.00 likewise was modified in 2010, making the “equally guilty” language optional. That instruction now states in relevant paid, “Persons who are involved in [committing] [or] [attempting to commit] a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is [equally guilty.] [guilty of a crime.]” The Use Note indicates that in cases presenting the issue whether the aider and abettor’s mens rea suggests his or her guilt may be greater or lesser than that of the actual perpetrator, the court should instruct with the “ ‘guilty of a crime’ ” language instead of “ ‘equally guilty.’ ” (Use Note to CALJIC No. 3.00 (Spring 2010 rev.).)
We disapprove People v. Levitt (1984)
Concurrence Opinion
Concurring.—It is well and widely known in legal circles— and codified in the statutes of this state—that only relevant evidence is admissible. (Evid. Code, § 350.) The rationale for the rule is as simple as it is important: Excluding irrelevant evidence furthers the goal of rational, impartial factfinding and decisionmaking by the jury.
Where the defendant’s life is at stake, the need for reliability is heightened. (Caldwell v. Mississippi (1985)
In distinguishing between what is relevant and what is not, courts must also bear in mind the differing rules governing the admissibility of aggravating and mitigating evidence. Although the jury must be allowed to consider any aspect of a defendant’s character or record that may be offered as a basis for leniency, there is no corresponding requirement that it also be allowed to consider every contention the prosecution might advance as a justification for the death penalty. (Boyd, supra,
I.
Defendant murdered Cory Lamons in April 2004. He pleaded guilty to second degree murder in June 2006 and was sentenced to 45 years to life.
Three years later, defendant was charged with the 2002 murder of Scott Miller, which is the subject of this automatic appeal. At the penalty phase of the proceeding, Lamons’s mother, Sharon Thompson, was called to testify. Thompson was not a witness to her son’s murder, nor did she have any information about the circumstances of her son’s death or about the capital crime that led to defendant’s conviction in this proceeding. The prosecution called her to the stand instead to talk about how her son’s death had affected her life. Thompson’s testimony was plainly genuine—and heartfelt: “Well, first thing you do is you can’t believe that it really is happening to you. And then it feels like the air is being totally sucked out of the whole room. Then you keep thinking it really isn’t happening, that somebody is pulling a joke on you. [¶] Then the rest of your life you keep looking on the street thinking someone has pulled a really horrible joke on you and you are going to see him walking down the street. [¶] His sister helped raise him, and that was really horrible. And then the worst part of it is knowing that they died a violent death. Because you weren’t there to protect them. [¶] I miss him every day of my life. I actually moved out of the state after he died because I just couldn’t take it anymore.”
Thompson added that her grief never gets any better or any easier. When remembering her son’s birthday a week earlier at her workplace, she broke down and cried. And when asked how she had changed as a result of her son’s murder, Thompson reflected, “I think I am more closed up. I try not to let anybody get close to me. I don’t want to hurt like that ever again.”
II.
No one disputes that Thompson’s testimony would have been admissible at the sentencing hearing following defendant’s conviction for her son’s murder. (Pen. Code, § 1191.1.) Nor is there any doubt that her testimony would have been relevant as victim impact evidence at the penalty phase, had this capital proceeding been based on Lamons’s murder. (Pen. Code, § 190.3, factor (a); see People v. Cage (2015)
A.
California’s death penalty statute provides that a defendant’s character and record, including the presence or absence of other violent criminal activity by the defendant, is relevant to the penalty determination. (Pen. Code, § 190.3, factor (b) (factor (b)); People v. Arias (1996)
At the penalty phase in Benson, supra,
We drew a distinction, though, between two kinds of evidence: one kind concerning “the effect of such criminal activity on the victims” (the type of
On the other hand, the grief of those who were neither victims of the crime nor witnesses to it is not relevant evidence of the nature or circumstances of the defendant’s violent activity. The majority does not directly address how the reactions of someone who did not witness or experience a crime could be a basis for making inferences about the nature of the crime. Instead, the
B.
The majority also analogizes Thompson’s testimony about the loss of her son to the victim impact testimony from surviving family and friends of the capital murder victim that the high court authorized in Payne v. Tennessee (1991)
That distinction exists because the choice between death and life imprisonment without the possibility of parole properly rests on two—and only two—categories of evidence: the defendant’s character, and the circumstances of the capital murder itself. (People v. Dyer, supra,
But Payne did not articulate a rationale for the admission of testimony concerning the emotional reactions of those who, while related to a victim of a defendant’s prior forcible or violent criminal conduct, are strangers to the capital crime, and the majority opinion offers none. Just as, in Price, it would not have been appropriate to call the spouses of the peace officers who were locked in their patrol car’s trunk to testify about the effect of their husbands’ ordeal on their own lives, Thompson’s feelings about her son’s murder were not relevant under factor (b) to the determination of the appropriate penalty for Miller’s murder. To be sure, Thompson’s feelings were genuine, profound, and indisputably painful and moving. But they shed no light on defendant’s conduct in killing her son or on the likelihood that the capital murder of which he was convicted was a product of his character rather than an accident of his situation.
It is not sufficient to assert, as the majority does, that factor (b) evidence encompasses “ ‘the circumstances of the prior violent criminal activity.’ ” (Maj. opn., ante, at p. 647.) To be admissible, the particular circumstances sought to be introduced must still be relevant to the jury’s task of fixing the penalty. (Evid. Code, §§ 210, 350; see St. Clair v. Commonwealth (Ky. 2014)
The majority’s reasoning is also at odds with decisions in a number of our sister jurisdictions. (See Sherman v. State (1998)
The Supreme Court of Kentucky reached a similar conclusion in St. Clair v. Commonwealth, supra,
And in Cantu v. State (Tex.Crim.App. 1997)
Indeed, as best I can tell, we are now the only jurisdiction in the country to expand the scope of aggravating evidence in a capital trial to this extent. I recognize that California law allows the family and friends of a murder victim to explain, at the penalty phase of the capital trial, what that loss has meant to them, so as to provide the jury with a full picture of the harm
The majority cites two cases in which the trial court nonetheless allowed relatives to testify about the effect an uncharged homicide had on their lives. (Maj. opn., ante, at pp. 648-649, citing People v. Johnson (2015)
I concur in the judgment, though, because I find that the error in the admission of Thompson’s testimony was harmless. Her testimony about the impact of the murder on her life was quite brief, about two pages in the reporter’s transcript. The jury instructions did not focus the jury’s attention on—or even mention—the impact of defendant’s uncharged conduct on surviving relatives. Finally, the ultimate impact of Thompson’s testimony likely paled in comparison to the voluminous aggravating evidence that defendant had killed three people in separate incidents, had a substantial record of violent conduct in and out of custody, and had attempted to orchestrate violent attacks even while he was in custody awaiting trial. So I find no reasonable possibility that her testimony affected the jury’s decision to sentence defendant to death, which, after all, was the verdict defendant
People v. Edwards (1991)