*1 S004718. Nov. [No. 1990.] PEOPLE, and Respondent,
THE Plaintiff KELLY, and Appellant. EDWARDS Defendant HORACE *8 Counsel Laetham, Defenders,
Harvey Zall Fern M. State Public under Schulman, Court, H. Chief Deputy Edward appointment Supreme Goldsmith, Defender, State State Public Richard Avila and Sandra Deputy Defenders, Appellant. Public for Defendant and General, Chief Attorney Van Richard B. Iglehart, John K. de Kamp, General, Attorney D. Harley Mayfield, Assistant Attorney Assistant *9 General, Corona, Jr., General, Attorneys Deputy and Rudolf Jay M. Bloom Respondent. Plaintiff and for
Opinion of death. ARABIAN, judgment an automatic from a appeal This is J. first of one count of Kelly guilty Edwards was found Defendant Horace Code, to be true two jury special also found (Pen. 187);1 murder degree § the com- during that the murder was committed circumstance allegations 190.2, subd. (§ commission of a kidnapping mission or attempted a firearm in the that defendant used allegation as well as an (a)(17)(ii)), (§ 12022.5). of the murder commission
Facts
I. Evidence Guilt Phase 11-year-old Danny O. was Thanksgiving Day,
On November The to this County leading up in the of Riverside. events shot and killed Danny family On the and his were question, were as follows: date tragedy An dinner. Thanksgiving relatives in Riverside for the traditional visiting dinner, 13-year-old Danny after the families finished hour or two P., cousin, nearby in a to walk to a convenience store Shannon decided left the buy candy. It was dark when the two children center shopping house. to walk home. Danny proceeded
After their and Shannon purchase, and onto a dirt path Their took them a 7-Eleven lot through parking route rise, a man they they Avenue. As saw adjacent approached to Limonite man them from the direction. As the walking opposite passed, toward uniform,” “in “like a ranger Shannon noted that he was dressed a sort of because, recalled, the The children to walk faster as Shannon cop.” began something.” man like he was up “looked weird her to run. Danny telling next Shannon remembered was thing The back and saw and Shannon followed. She looked Danny path ran down ran, on noticed a van parked that the man was them. As she she pursuing She noted running. traffic. The van’s facing engine the side of the road that it had distinctive on the side. stripes statutory indicated. All are to the Penal Code unless otherwise further references neck behind, around the her grabbing from man Shannon caught side, and saw looked down hard at her something his arm. She felt
with meantime, middle of the run into the had in the Danny, it was a pistol. *10 a flag to down in an effort “stop” and yelling his arms waving and was street over brother “get Shannon to The man told car for assistance. [her] passing so, man As she did Danny. to Shannon called out she was. to where” van. her toward drag and to began her neck against the gun placed avail. but to no into the ground, her heels by digging to resist Shannon tried van. moved closer to the They man this. The doing he was why he the man Danny asked approached
As him, money?” you “Do want Shannon asked him to “shut up.” told He “No, the hell money. up.” Just shut your I The man don’t want replied, then, Danny Just to the van. Shannon closer drag pull continued to and man, grasp. from his and drop escape Shannon to down enabling kicked the reached a brick wall. As she and started to climb She ran feet perhaps She gunshot. jumped a heard a she looked back and saw flash and the top, Then she heard There was a pause. and heard another shot. off the wall regis- A third shot way.” I’ll die this Danny say, again. “Don’t shoot me nearby house. at a eventually ran and obtained assistance tered. Shannon a Hayden, lived on Virgil the same who Shortly evening, after on p.m. Avenue, a ciga- of his house for Limonite outside stepped street parallel and It had exhaust large pipes rette and saw a van across the street. pull up had his head that the driver Hayden a distinctive red Mr. noticed stripe. mirror, to the rear of looking as he was though cocked toward side minutes, and run out of the van get vehicle. After a few he saw the driver and, after to his house Hayden back toward the 7-Eleven. Mr. returned minutes, When backfiring. three noises like the sound of a car several heard outside, gone. he went back the van was later, motorist on Danny’s body discovered a passing
A short time was street, on its body lying in the middle of the Limonite Avenue. The was back, but did not body respond The was still warm arms outstretched. taken to a The victim was eyes. CPR. There was a bullet hole between the arrival. but was dead on pronounced hospital, a detailed descrip- with evening, provided police
Later that Shannon sheriff p.m., deputy her and his distinctive van. About tion of assailant officer, who was Cornejo, Detective the vehicle and radioed another spotted Cornejo took her Detective parents. at the crime scene with Shannon and by; she observe the van as it drove Shannon to a where she could point evening. earlier that it vehicle involved the assault identified as the defendant, driver, Shannon identified the immediately van and stopped was her as assailant. Defendant was a tan shirt with a wearing badge security guard on the sleeves. He leather patches wearing gear was also yielded a baton. A search eight magnum rounds of .357 ammunition in defendant’s trouser pocket.
Defendant County the Riverside Sheriff’s transported Department booking (The for facts of interrogation. interrogation will be set separately forth A van below.) subsequent search of the revealed a tool box containing magnum blue steel .357 caliber live .357 pistol, magnum rounds and casings. dozens of .357 Forensic tests on expended magnum two bullets found at the scene conclusively they crime showed had been fired from defendant’s Blood on the barrel gun. gun consistent *11 Danny’s with blood and inconsistent with that defendant. Gunshot resi- due was found on defendant’s hands.
An victim; bullet autopsy revealed two wounds to the the first shot entered the right boy’s back; side of the chest and the through exited the eyes second through entered between the and exited the left side of the The primary brain. cause of death was the passed bullet which through brain. Gunshot burns and residue on the victim powder indicated that the was four to six from the gun boy inches when the was fired shot between his eyes.
The gun Danny used to kill O. had been from a purchased gun in shop San Bernardino two earlier. The months dealer’s record of sale indicated it had been sold to defendant. Penalty II. Phase Evidence
A. Prosecution Evidence
The prosecution evidence of two instances presented of criminal prior 190.3, activity involving (§ defendant’s use of force or violence. factor (b).) Both related to homicides San had Bernardino that occurred one week before the Danny Early murder of O. morning on the of November a.m., between 4 and 5 Ms. Sonia Reed off dropped an ac- Gardens, in an quaintance area of San Bernardino Waterman called near defendant’s place history Ms. of drug residence. Reed had a use and had smoked cocaine earlier that She been morning. had once arrested for solicit- an act of ing prostitution. Gamboa,
About 5 that Mrs. Irene morning, who lived at 10th Street and Avenue, Waterman banging was awakened sound. Several muifled “Oh, God,” minutes say, later she then heard someone a minute or two Reed body of Sonia morning, Later that bang. heard another later she The nearby memorial business. at a behind a headstone discovered contact autopsy An revealed two from the down. body was nude waist back, through victim entered the wounds; the first shot gunshot neck; inflicted while the latter wound was the back of the through other tests head. Forensic the victim’s against was pressed of the gun barrel from her were fired defendant’s killed that the bullets which established .357 magnum pistol. woman, 17, 1984, body of another morning,
The next November Houser, Avenue and alleyway Highland in an near Ursula was discovered her had been above pulled up D Street San Bernardino. victim’s skirt body ap- had been ofi".The ripped and her panties pantyhose waist An a contact some distance. revealed dragged autopsy have been peared Ms. The bullet entered similar to that inflicted on Reed. wound gunshot brain, causing through the back of the head and traveled through that the bullet which definitively death. Forensic tests established instant .357 recovered magnum pistol Ms. had been fired from the killed Houser van. from defendant’s
B. Evidence Defense mem- family in Several mitigation. Defendant called numerous witnesses bers, testify poor friends and school were called to to defendant’s officials Carter, family for Margaret and abused childhood. a friend of defendant’s years, “dominating.” “brutal” and over described defendant’s father as nine, The father died when defendant was and thereafter defendant worked various as jobs family. at odd to the She described defendant help support members, family and moth- shy including Several defendant’s introspective. er, father. also recalled that defendant was abused and terrorized his actions, Many they shock which believed were expressed over defendant’s as consistently inconsistent described defendant personality. They with unusually authority educationally retarded. subservient and disability a social
Two school a and psychologists, learning specialist high in presented testimony performance worker defendant’s concerning that Their and of time indicated period school. tests observations from that that defendant or learning impairments, had serious disabilities perceptual IQ that grader, he functioned at the level of a fourth fifth his overall school also average measured considered low to borderline. The officials as that his development noted defendant had been born that prematurely, delayed, an infant that his limited his social learning disabilities interaction in him frustration and loss of self-esteem. school and caused witnesses, mother,
Several including defendant’s wife and testified that defendant suffered from chronic who headaches. Two dentists examined defendant his arrest a following attributed headaches to structural prob- lem in which joint bone. hinges jaw
Finally, presented testimony defendant of a number of expert medical Hunt, witnesses. Dr. neurologist, the results of series of neuro- presented defendant; administered logical tests these included a CAT-scan and an (EEG) to test brain The EEG was electroencephalogram functioning. with- limits; normal the CAT-scan revealed evidence of brain atrophy however, upper and frontal lobes. Dr. Hunt temporal explained, psy- effects, if chological dysfunction any, and the of brain organic damage on behavior be could not determined from CAT-scan results: can “[Y]ou have is damage quite bad and the still not have patient obvious trouble . . . .” addition, Kanzler,
In Dr. a clinical neuropsychologist, presented battery results of a tests he His administered defendant. findings indicated that IQ defendant had an overall considered to be in the normal as range, as well cerebral “deficits” consisting borderline/dull attention, impaired memory and deficient flexibility.” Dr. “cognitive Kanzler concluded these . . dysfunc- deficits were with . brain “compatible tions,” necessary but noted there was no correlation brain damage between and cognitive dysfunction.
Finally, Hoyle, Dr. a clinical testimony psychologist, presented based upon his one interview with and a defendant review of defendant’s school Hoyle and medical Dr. records. administered a standard MMPI (Minnesota Multiphasic Personality Test) as a and characterized defendant “schyzotyp- *13 al” personality, exhibiting of social occasional symptoms isolation and bi- zarre or strange thoughts, but not He also concluded defendant psychosis. disorder, had an attention-deficit characterized of impulsive- symptoms ness, in difficulty sleeping distractibility. and cognitive Defendant’s symp- consistent, view, toms in Hoyle’s were Dr. with neurological the tests re- vealing organic brain damage atrophy.
Discussion
I. Guilt Phase Issues
A. Denial Motion to Suppress of Defendant’s claim of principal error concerns the introduction at trial of contends Defendant the a taped confession to the police. was the because the confession reversible se per evidence was of this use 384 U.S. v. Arizona (Miranda Miranda multiple product violations and impermissibly 974]) A.L.R.3d S.Ct. L.Ed.2d below, the contention we conclude As explained tactics.2 police coercive merit. lacks
1. Facts earlier, placed and defendant was van was identified noted defendant’s As transported and He was searched shooting. arrest within hours of under a sample where blood County Riverside Sheriff’s Department, to the He a suit. jail jump and with and his clothes were seized replaced taken de- No interrogation. a office for questioning then moved to detective’s time. took this place during fendant commenced 11:27 tape- at and was interrogation p.m.
The of defendant Fergu- and Cornejo Present Detectives interrogation recorded. at the were informed the homi- investigating Defendant was that the officers were son. that committed 11-year-old boy having of an and he was suspected cide them, The read his he rights, the offense. officers then defendant waived any in the steadfastly denied involvement close response questioning as job crime. He that he had left the site where he worked explained 7- van to a security p.m. evening, at that drove his guard approximately job for a to his Defendant Eleven store of coffee returned site. cup denied the van at time or denied seeing other repeatedly stopping place, road, girl the side of denied accosting two children walking denied Defendant that he did drink or take shooting boy. stated not He admitted he owned a .357 he drugs. magnum pistol kept that which day. the back of the van had fired the gun but denied that he a.m, At 12:05 about 30 officers inter- questioning, after minutes of interrogation to have additional taken of rupted photographs certain defendant. Defendant had stated that on was the upper leg a bloodstain scratch; result of a were photos present. to document no cut was later, 12:38 Cor- interrogation The resumed half an hour at a.m. Detective People argue should treat the that we statement as an admission rather than confes *14 Miranda, thereby invoking event sion in the we determine it was a reason inadmissible under per doubt rather than a se able reversal standard. v. Murtishaw 29 Cal.3d 446]; People McClary (1977) 631 P.2d however, clearly appear, qual As will defendant’s statement Murtishaw, (See People it ifies as a confession we shall treat as such. 29 Cal.3d at p. participation confession is a of the intentional in a criminal declaration defendant’s [A crime.].) applicable must include all of the We need not stan act and elements consider the case, however, properly prejudice in this conclude the dard of inasmuch as we statement was at trial. admitted nejo if asked defendant remembered the admonitions that were read to him whether,
earlier. Defendant stated that he did. The detective then asked mind, those in having rights defendant wished to continue to talk to them. Defendant “I’ll talk.”3 responded, narrative,
In a disjointed somewhat defendant proceeded explain events of the prior He stated that evening. he suffered from severe- frequent, ly painful headaches and that he explained had such a experienced head- site, day. ache that job After he leaving found himself with a in his gun one, hand and firing recalled “[pjrobably two or three times.” He “I stated: boy think the ran I and fired shots at him.” He boy remembered that the had his in hands front of him as he lay ground. on the He couldn’t remem- ber why he fired. He recalled that he told the girl get the van because he home; wanted to take her he denied intent to He rape. stated that he done, sorry for what he had and cried several times during questioning.
Defendant also that he acknowledged wearing security guard children, uniform when he accosted the and that his shirt contained both badge patches on the sleeves. later, a.m.,
An hour at 1:42 the officers stopped the interview to allow defendant call his wife and to drive defendant to the scene of the shoot- Defendant’s ing. remarks at the crime scene were not recorded. Detective testified, however, Cornejo that defendant him told he his van pulled over to the side of the shoulder, road when he saw the children on walking exited the van and to walk proceeded back toward them. initially Defendant thought mistake, both children were girls. When he realized his he grabbed the girl, to her put gun head and started to drag her to the van. He intended to rape girl. boy When the ran into the street he shot him. fell, shot, missed, boy When the “I I I shot and I him.” again got scene, their visit to Following the crime the officers and defendant re- turned to the station house for a third and final In interrogation session. response to somewhat leading essentially defendant questions, repeated the story he had told at the scene of the The shooting. interrogation ended shortly thereafter. colloquy preceding resumption interrogation of defendant’s consisted of the fol
lowing: Cornejo: your you Detective your “Remember admonishments. Do still remember admonishment?” Kelly: “Who?” Cornejo: you your rights?” I “Remember read Kelly: “Yeah.” mind, Cornejo: “Having rights you those do still want to talk to us?” Kelly: “I’ll talk.” *15 trial, on the taped statement suppress moved to
Prior defendant to and that his defective given he was were warnings the Miranda grounds that court The trial denied of tactics. police was the coercive product confession rights, motion, advised of defendant was ruling properly voluntary beyond were waiver and confession finding that defendant’s doubt. reasonable
2. Discussion above, was errone- ruling the trial court’s As noted defendant contends First, here, below, he asserts essentially as is twofold: argument ous. His and mis- warnings given by inadequate that the Miranda officers were second, rights he of Miranda and subsequent claims his waiver leading; in involuntary. light were We assess each contention of confession common following principles.
In a claim that a statement or confession is inadmissible considering rights of a under Miranda because it was obtained violation defendant’s Arizona, 436, of accept v. 384 U.S. we the trial court’s resolution inferences, if credibility, facts and and its evaluation of disputed supported by Boyer (1989) substantial evidence. Cal.3d (People 610].) 768 P.2d court must de Although independently this facts, termine from and those found the trial undisputed properly court, the challenged illegally whether statements were obtained we (ibid.), “may to the ‘give great weight considered conclusions’ a lower court that has previously Jennings the same evidence.” (People reviewed 475], Miller Fenton quoting 405, 412, (1985) 474 U.S. L.Ed.2d 106 S.Ct. 445].) Because case charged offenses in this occurred after the addition of section Constitution, I (d) subdivision article of the California the voluntariness defendant’s waiver and his confession must be established subsequent of the evidence. Cal.3d 63 preponderance Markham 273, 775 P.2d mind, assignments With these turn to several we defendant’s principles of error. Warnings
a. The Miranda At the interrogation, commencement defendant’s collo- following quy transpired: you any
Detective “Before I ask I have read Cornejo: questions can you your you I attention.” rights. pay want close *16 “Okay.”
Defendant: Detective Cornejo: “You have the to right remain silent. Anything you say can and will be used in against you a court of You law. have the to right talk to a lawyer and have him you while are present being If questioned. you cannot lawyer, afford to hire a one will be appointed you to represent wish, any Horace, before you if question you did understand each of [fl] these rights I’ve explained you?”
Defendant: you “What have read? Yes.” Cornejo: mind, Horace, Detective “Having these in rights you do wish to talk to us now?” “Well,
Detective Ferguson: you can stop talking anytime you want to and you don’t have to any you answer question do not want to but there’s every two sides to story. And for us to your you hear side have to acknowl- your edge have been rights you read to you your and that waive rights.” “Well,
Defendant: say, what do I I don’t know.” “Well, Detective Cornejo: you I’ll ask you If question. want to answer it, answer it.” “Oh, okay.
Defendant:
Yeah.”
Defendant contends the officers
him
misadvised
of his Miranda
First,
rights
three respects.
he claims that Detective Cornejo’s admoni
tion, “You have the right to talk to a lawyer and to have him
while
present
you are being questioned,” was
because it
inadequate
failed to indicate that
he had the
right
however,
counsel
prior
questioning Defendant ignores,
the officer’ssubsequent warning:
you
“If
cannot
lawyer,
afford to hire a
one
will be appointed to represent you
any
you
if
question
(Italics
wish.”
before
notes,
added.) Although, as defendant
it would have been more accurate to
say “before any questioning,” we do not doubt that—as given—the advice
adequately informed defendant that his right to counsel attached before any
questioning commenced. The United States
Court has well
Supreme
ob
served that the Miranda warnings serve a
(Michigan
prophylactic purpose
182, 194,
Tucker (1974) 417 U.S.
L.Ed.2d
(Pe v. Sanchez ople remark, to 74]) Ferguson’s your you “for us to hear side have acknowledge your you that have read and that rights you been waive us, effect, your Defendant asks to infer construed rights.” that defendant this “story” statement as a veiled threat that his never be told if he would excessively talk We failed to with the officers. find this to be interpretation had he previously right strained. Defendant been advised that had silent, remain he said be him in a court of against could used anything law, that he had the to consult an and that if he could not right attorney an “to him. It is attorney appointed afford one would be self- represent” very rights evident such are afforded for the purpose preparing entirely an effective defense to the While not free of presenting charges. remark, context, simply officer’s viewed fails resonate ambiguity, with the coercive force defendant. urged we
Accordingly, hold that defendant properly advised of his Miran- da rights.
b. Voluntariness Defendant also contends that the of his Miranda rights waiver and subse- involuntary. confession were He quent claims that his will overborne tactics, through combination coercive police including trickery, psycho- coercion, logical promises advantage and A “softening up.” careful and *18 independent review of the a record as whole reveals the contention to be
without merit.
The litmus test of a valid
or
waiver
confession is voluntariness. “The
of
right
the
must have
relinquishment
voluntary
been
in the
that it
sense
intimidation,
was the
of
product
a free and deliberate choice rather than
coercion,
or deception.” (Moran v. Burbine
475 U.S.
421
410, 421,
L.Ed.2d
Defendant focuses first on the exchange between himself and Detective noted, Cornejo following the reading rights. his As defendant’s initial “Well, was: response say, what do I I don’t know.” (Italics added.) Cornejo “Well, it, I’ll responded: you ask If question. you want to answer answer “Oh, it.” okay. Defendant replied: Yeah.”
Defendant argues that the italicized language reveals an inadequate ap- abandoned, preciation rights being invalid; the which renders the waiver knowingly one cannot waive what one does not understand. Having listened conversation, however, to the tape recording of are foregoing we per- suaded that defendant’s of this interpretation exchange is flawed. As the “ court, waiver, ‘Well, trial observed: what I I analyzing say, do don’t words, know.’ In I other how I proceed? do don’t know to proceed, how [if] says: And then Cornejo you Detective ‘I’ll ask if question, you want to it, ‘Oh, answer says, it.’ okay, yeah.’ answer Which to me [Defendant] like, fine, I you’re sounds now that proceed, understand how going yes, I We proceed; understand.” with trial agree court’s conclusion that but rights, nature of about the not expressing was defendant confusion conclude them. We as how waive seeking rather was clarification and uncoerced. intelligent knowing, was therefore that waiver of trial penalty phase from the focuses on evidence Defendant next range, borderline in the low normal to his overall was indicating IQ tissue, from a he and that suffered of brain CAT-scans revealed atrophy disabilities, deficits, attention-deficit including learning of cerebral variety however, evidence, foregoing None of the impulsivity. disorder Moreover, evi standing alone such hearing. at the presented suppression As United involuntary. waiver was does not establish that the dence Fifth has “The concern Court sole Supreme explained, States based, Amendment, coercion.” governmental Miranda was is on which 473, 486, L.Ed.2d 479 U.S. Connelly (1986) (Colorado rejected In the court 515], added.) Connelly petitioner’s S.Ct. italics involuntary merely by rendered rights claim that his waiver of Miranda he “the voice of God” when allegedly obeying of the fact that he was reason *19 (Ibid. Here, at simi p. 487].) his L.Ed.2d rights waived and confessed. standing larly, intelligence psychiatric symptoms, defendant’s low alone, involuntary. do render his waiver of Miranda rights not oc-
Defendant next that several instances of misconduct police asserts which, conjunction in with his low interrogation curred the course of the voluntary He combined to his free will and choice. intelligence, undermine his that repeats warnings misleading earlier claim the Miranda were stated, to already we find this contention be deceptive. For reasons wholly unpersuasive.
He also claims that the on two occasions utilized police separate first methods to vulnerabilities.” The designed exploit “psychological session, in which allegedly these occurred the initial during interrogation defendant, rigorous under denied involvement questioning, repeatedly session, following the crimes. Toward the end of that transpired: “ Detective . . .I on that Ferguson: you keeping denying can’t understand you you you did this all the Do believe in when evidence said did. [fl] Jesus?”
Defendant: “Yes I do.” you someday you’re go
Detective “Do believe that to Ferguson: going heaven?” “Yes.”
Defendant: your you upbringing?” Detective “Did mother a Christian Ferguson: give Defendant: “Yes.” you your
Detective “Well then realize Ferguson: actions denied your [szc], you’ve violated Christian with upbringing state law and along everything else.” “Yes,
Defendant: I understand that.” Detective Ferguson: your “How is mother feel going when she finds out you’re for the murder 11-year-old arrested of an boy?” “Well,
Defendant: she’s to feel . . . .” going pretty upset Detective you’re “Is that what Ferguson: afraid of?” “That, yeah, Defendant: wife.” losing my think Detective “I it’s a Ferguson: going be a foregone conclusion you’re to be in I going prison years. for lot of if your don’t know wife is going you. Okay. to stick around and for you’re wait something That’s going to have to work out her . . .” with .
Defendant: “I . . .” feel bad . Detective Cornejo: you “How do think the feel?” parents *20 “Well, I Defendant: they’re, they’re understand upset.” you Detective Cornejo: “How do think little girl feels?” Defendant: “She’s upset, too.” all,
Detective Cornejo: you’re “And not at you?” are upset Defendant: “No sir. I I anything Because didn’t... haven’t wrong done that I know of . . . .” coercion,
In a claim of evaluating . . . psychological “question posed is whether the influences to bear brought accused were ‘such as to upon petitioner’s overbear will bring freely to resist and about confessions not 815, Hogan self-determined.’” v. (People (1982) Cal.3d 841 [183 817, Cal.Rptr. 647 P.2d v. 93], quoting Rogers Richmond 365 U.S. 760, 768, 544 L.Ed.2d 81 S.Ct. or 735].) singly together, Viewed we are satisfied that none of the so as foregoing coercive to questions cause” of motivating “a free will or constitute defendant’s overcome 327-328 Thompson (1980) confession. subsequent Brommel 883]; People 611 P.2d 632 has been sure, religious anxieties suspect’s of exploiting
To be the tactic 987- Cal.App.3d v. Adams (See People condemned. justly interrogating officer where suppressed 990 [192 290] [confession to references repeated as and made the same church defendant attended sin, too So has “reprobate mind”].) guilt, apostasy, defendant’s with cooperate fear if she failed to of a mother’s exploitation shameless many years. States (United her child for young she would not see police Tingle 1332.) Cir. 658 F.2d (9th 1981) however, Tingle, none of the Unlike at issue in Adams and the remarks to exploit particular comments to have been calculated appear here police defendant; anxiety no sense vulnerability religious of acute or psychological not and defendant was guilt partic of from apparent prior questioning, Indeed, at ularly family, to either the victim’s his own. appeals moved remarks, adamantly denied the conclusion of the officers’ defendant Thus, of the officers’ regardless propriety involvement in the crimes. statements, they do not to have been a cause appear motivating simply behind defendant’s confession. subsequent (People Thompson, supra, 328.) Cal.3d at p. during
A second instance misconduct occurred a break alleged police sessions, when defendant was interrogation between the first and second he taken be Detective Bowen testified that when observed photographed. clothes, “I how defendant remove his he commented: don’t understand .... must strong you 11-year-old boy someone as as could hurt an [I]t officer, have been you.” According someone else inside defendant ” said, it, ‘yes, “looked around and I have these terrible headaches.’ that’s immediately say nothing Bowen told further until he could defendant *21 recommenced, de- Cornejo. interrogation with Detective When speak in fendant admitted his involvement shooting attempted kidnapping. remark,
Defendant claims Detective “it must now that Bowen’s you,” sugges have been someone inside of constituted an impermissible else relies mentally tion that he committed the crimes while ill. Defendant 31 case in People Hogan, on v. Cal.3d the seminal principally supra, that police questioning “repeatedly suggested which this court condemned from guilty to he and that he suffered appellant unquestionably that single, mental Detective reference (Id. 843.) oblique illness.” at Bowen’s p. 954 short, however, state of falls egregious defendant’s mind well of the in Hogan, anxiety
misconduct where the defendant repeatedly expressed that be “crazy” he that weakness might police exploited promis- (Id. at ing psychiatric treatment. comment pp. 836-838.) single, passing coercive, reasonably at issue cannot be as or be here characterized said to motivating constitute a cause defendant’s confession. subsequent final Defendant’s two claims misconduct need not detain us police v. 154 long. People Hinds Citing Cal.App.3d 104], Ferguson leniency he contends Detective made an improper offer of if “advantage” defendant did not his “side of the suggesting speak, earlier, however, story” never be As would told. noted the contention is Furthermore, There, Hinds is implausible. deliberate- inapposite. police ly misled him telling anything the defendant he said “doesn’t neces- can sarily against you, you,” held it be held threat- help and further [szc] attorney ened that if he called his they “could not help [the defendant] anymore . . .” (Id. . at record here pp. 230-231.) The is barren such gross misconduct. also
Defendant to characterize statement attempts Detective Bowen’s defendant, you,” “it must have been someone else inside of as inappropriate (See Honeycutt conversation. Cal.3d “softening-up” People 1050]; Jackson above, As this single noted even perhaps remotely comment—while ill-advised—does not resemble the egregious freely misconduct that we have condemned elsewhere. Moreover,
Hogan, Cal.3d at 841.) p. People Honeycutt, supra, relies, There, 20 Cal. clearly 3d on which defendant is distinguishable. 30-ininute, the police deliberately in an engaged unrecorded suspect conversation, pre-Miranda mutual discussing acquaintances, past events the victim. finally No misconduct of that nature here. occurred we hold that motion to denied. Accordingly, suppress properly B. Venue Change of
Defendant next trial contends the court erred his motions for denying change of venue. on
The salient review of a motion for of venue are principles change “A well change settled. of venue must be when the defendant shows granted relief, in the trial cannot reasonable likelihood that absence of such a fair *22 be had. for Whether raised on writ of mandate or on petition [Citations.] conviction, appeal judgment reviewing from of the court must independent- is a fair trial or was whether de novo and determine examine the record ly are nature and the be considered The factors to obtainable. [Citations.] of the size oifense, coverage, of the news and extent the the nature of gravity the community, and in the the defendant community, the status of v. Harris of the victim.” and prominence popularity v. Wil see also 240]; 623 P.2d Cal.3d 146]; Odle 774 P.2d liams Cal.3d 455, Court v. Superior mind, to determine have examined the record With we these principles ne- We find the record pretrial publicity. for from the potential prejudice jury. a and impartial was denied fair any likelihood defendant gates trial, four before citing a of venue change Defendant moved for of were reports Most reports. and five radio and television newspaper All fact based. year at over a earlier. were shooting, filed the time of the life, his cousin’s young the victim in saving Several credited the heroism of court, The after a inflammatory no matter. trial but otherwise contained motion, dated and noting that the hearing, pretrial publicity denied the mild, unusually heavy not media atten relatively that the case had elicited tion, County a diverse and large that Riverside contained and population, victim a member the communi particularly that the was not of prominent notoriety he had attained some due to the circumstances of ty—although his death. his for of change upon completion
Defendant renewed motion venue jury voir dire. The was denied. In addition to the factors noted motion above, the trial court observed that the voir dire had confirmed process Of ability jury. jurors defendant’s to obtain a fair and the twelve impartial selected, absolutely case; had had knowledge vague six no of the five prior they incident recollections but assured the court that could decide any case based on the facts at to the presented prior trial exclusion one, Brunner, only Juror knowledge; anything resembling indicated too, however, facts; memory objec- clear of the she swore that she could be Hence, exclusively tive and decide the matter on the evidence at trial. court trial concluded that “fair obtainable this case.” [was]
That The manifestly pretrial decision was correct. was neither publicity inflammatory. community, extensive nor Riverside Coun- particularly ty, is victim this was large Although sympathetic, diverse. any more age particular prominence attributable and heroism than enjoyed community. Finally, dispelled he in the the voir dire itself Six jury. fair of the ability impartial doubt as to defendant’s to receive a *23 956
jurors any had not been and none of the exposed pretrial publicity, anything remainder remembered to defendant or held damaging opin- ion or innocence. Each attested that he or she could concerning guilt exclusively render a fair and verdict based on the evidence impartial pre- sented at trial. however, jurors
Because six recalled the defendant vaguely shooting, jury contends the could not be fair and We As this court impartial. disagree. “ observed, has ‘It not . . . jurors totally is that the be of required ignorant swift, days the facts and issues involved. In these of and widespread diverse communication, methods of an case can be to arouse important expected vicinity, scarcely any interest of the and of those best public to serve as not qualified jurors will have formed some or impression opinion of the merits of the case .... It is if juror lay sufficient can aside his and render a verdict based on the impression opinion presented evidence ” Harris, 949-950, in court.’ 28 Cal.3d at Irvin (People pp. quoting 717, 751, 755-756, v. Dowd 366 U.S. 722-723 81 (1961) L.Ed.2d S.Ct. [6 1639].) guidelines, Examined under these the record leaves no doubt that defendant was afforded a fair and trial. impartial Sufficiency
C. Evidence
Defendant next contends the first murder conviction must degree be reversed because the evidence was insufficient as a matter of law demonstrate premeditation deliberation. “ sufficiency
When the of the evidence challenged, is ‘the relevant whether, question is after viewing light evidence most favorable to any rational trier of fact prosecution, could have found the essential ” beyond elements of the crime reasonable doubt.’ Johnson (People 557, 431, 738, 26 (1980) Cal.3d 576 606 P.2d 16 A.L.R.4th Cal.Rptr. [162 307, 1255], Jackson v. quoting Virginia (1979) 443 U.S. 319 L.Ed.2d [61 560, 573, 377, 2781]; 99 S.Ct. accord v. Guerra 40 Cal.3d People (1985) 374, Cal.Rptr. 1252]; People (1984) Caldwell Cal.3d [220 274].) jury P.2d With to a respect deliberation, finding we premeditation have observed that the “true test premeditation] is not the duration of time as much as the extent of [of cold, may reflection. Thoughts follow each other with great rapidity may calculated . . . .” judgment be arrived at v. Thomas quickly (People 7]; P.2d accord v. Robertson 33 Cal.3d 49-50 evidence 279].) P.2d type this court has found to be sufficient falls into three basic categories: plan motive, ning, and manner. Anderson 26-27 550, 447 *24 hand, the at find that facts we to the these principles
Applying There and deliberation. of finding premeditation a supports record amply Shannon, sexually motivated attack. well-planned, of a strong was evidence strategi van was recalled that defendant’s young the victim’s companion, idling. the motor children with the shoulder ahead of the cally on parked fe which was deliberately children to observe past Defendant the walked behind, .357 male, the barrel of a from placed then attacked the girl head, waiting the and her feet toward dragged her magnum pistol against “No, I want he don’t money, replied, asked if he wanted van. When she up.” shut hell your money. Just the moreover, first and deliberate. Defendant
The was calculated killing, “brother,” of run to the middle her who had demanded that Shannon call car for assis- flag the street and to a desperately attempting passing was returned, defendant, to enabling he Shannon Danny tance. When kicked distance, and turned a flash a perceived gunshot, She ran some and escape. Danny “Don’t me say, followed another shot. She then heard shoot way.” I’ll this a a third shot again, pause, registered. Autopsy die After Danny in the squarely forensic revealed that the first round struck evidence second, back, missed; Danny on his the lay chest. The fired as helpless third, inches, a four him the fired from distance of to six struck between eyes and caused instant death. (cf.
It is that this no random indiscriminate assault plain People was Anderson, 70 Cal.2d defendant immobilized his victim with the supra, 15); shot, missed, first fired then his four to six inches again and placed pistol the head eyes. from victim’s and fired bullet between his Defendant never- theless insists that the facts do not or preconceived demonstrate a plan kill, intent to but at most an intent to the for the of a kidnap girl purpose asserts, sexual assault. The he not shooting, premeditat- deliberate ed, but the inexplicable “explosion rather result of an of violence” more homicide consistent a lesser than grade degree with first murder. Robertson, 21, however, As in we not need is . . . that “determine whether the evidence sufficient [demonstrate] defendant had contemplated possibility killing victims from outset, jury for . . . the still on record that killings could have found (Id. premeditated added.) jury were and deliberate.” at italics p. reasonably here formed a could have concluded that defendant considered intent to Danny’s kill when actions threatened to reveal his plan kidnap girl, immediately and he out his intent rape young carried finding such occurrence. prevent Accordingly, supports evidence willful, beyond deliberate and a reason- killing premeditated able doubt.
D. Corpus Delicti
Defendant also the first challenges degree murder conviction on the ground that the prosecution theory relied on an alternative improperly felony murder. He that the argues felony delicti of the corpus underlying *25 this case (in must be attempted rape) established evidence of independent extrajudicial defendant’s statements. The contention plainly lacks merit. It is well settled that “the need not establish the People delicti of the corpus underlying felony before introducing a defendant’s extrajudicial statements.” (Pe 672, 792, ople (1973) Cantrell 8 Cal.3d 680 504 Cal.Rptr. [105 1256], added; 375, P.2d italics accord v. Howard 44 People (1988) Cal.3d 842, 414 749 P.2d Cal.Rptr. 279]; v. Memro 38 People (1985) Cal.3d [243 658, 697, fn. 46 700 Cal.Rptr. 446]; P.2d People Mattson (1984) [214 Thus, 37 Cal.3d 93 Cal.Rptr. 887].) defendant’s [207 statements to the officers that he indicating intended to the little rape girl constituted a sufficient basis for a finding degree felony of first murder. Mattson,
Defendant’s reliance on People supra, is mis- Howard, As in placed. explained we People Cal.3d at 415: page rather, did not Mattson-, of Cantrell's disapprove holding con- we “[W]e cluded that an to the exception Cantrell approach required by the 190.4,” of specific language section which provides felony that the underly- ing special circumstance “shall be allegation charged proved pursuant to the general law to the applying trial and conviction of the crime.” 190.4, (§ subd. (a).) Defendant here was not charged with a circum- special Therefore, stance of attempted rape. the prosecution was not required establish the delicti corpus of that offense independently defendant’s statements.
E. Instruction on Lesser Included Offense
Defendant further claims the trial court erred in refusing his requested felony instruction on false imprisonment.
Charged with the special circumstance of murder in the commission or attempted commission of the crime of defendant kidnapping, an requested instruction on the lesser necessarily included offense of felony false (§ 236; CALJIC imprisonment. No. The trial 9.60.) court denied the re- quest, observing evidence rendered such an instruction “su- We perfluous.” agree. is, course, cases,
It axiomatic that “in criminal even of a request, absence the trial court must instruct general on the principles of law relevant to the issues raised the evidence. . . . That [Citations.] included on lesser instructions giving held to include has been obligation ele all of the whether as to raises a question the evidence when offenses there is but not when [citations], offense were present the charged ments of v. Sedeno charged.” (People less than the offense was evidence that no Thus, it has 913].) Cal.Rptr. (1974) not, instruct if requested, need even the trial court settled that been long offense if the included of a lesser and definition the existence and jury on all, defendant, guilty at guilty if that the evidence was such 798, 810 Cal.App.3d v. John offense. greater 375, 379 Cal.App.3d v. Hulderman 340]; People 707, 713 228 Cal.App.2d v. Morrison 223]; Here, kidnap intended indicated that defendant all of the evidence *26 on the of the children a distance ahead He his van short children. parked young girl He assaulted the road; engine running. of the the was shoulder some distance behind, her dragged a to her head gun from placed the He said along ground. her heels van; by dragging resisted toward the she he intend- occasions that money. He admitted on several he didn’t want her sexually assault- the scene for the away purpose from girl ed to drive her. ing evidence, and defendant’s testimony eyewitness, of an
The physical Defend an attempted kidnapping. all point indisputably own statements forcibly was to only that his argument purpose ant offered no evidence or asserts, true, that he made It is as defendant detain the victims at the scene. concerning during interrogation statements equivocal police several merely intended to take he stated that he points intent to at several rape; assumes, however, there must mistakenly that victims “home.” Defendant or before a simple kidnapping be an intent to commit an crime underlying contrary, On the can be found to occur. attempted kidnapping another, con giving forcibly capable carries and person transports who sent, will, good “however or his or her is against guilty kidnapping . . . .” (Peo be may motive or intent otherwise innocent [the defendant’s] 761, 865, 361 P.2d Cal.Rptr. v. Oliver 765-766 (1961) ple [12 25 797 593]; (1972) Cal.App.3d see also People Apo 242].) felony properly false imprisonment instruction on requested
denied. Challenges
F. Cause for overruled his erroneously challenges trial court Defendant contends the claims, whom, made it clear he jurors nine each of for cause to prospective of the death “would penalty ‘prevent that his or her views favor substantially juror of his duties as a accordance impair performance . . .” v. Witt 469 U.S. (Wainwright with his oath’. [or her] 841, 851-852, 105 S.Ct. see also v. Coleman 844]; People L.Ed.2d The contention Cal.3d 764-771 lacks merit. have been juror
To on that should complain appeal prospective cause, excused for the defendant must have exercised and exhausted his Stankewitz peremptory challenges. (People Coleman, 23]; Cal. 3d at 770- supra, pp.
771.) jurors ultimately Of the nine here in six were prospective question, jurors, called to sit as three of the six were removed defendant’s use of and one was dismissed as a result of the peremptory challenges, prosecutor’s Defendant failed to two peremptory challenge. challenge remaining jurors, the fact that he had eleven notwithstanding peremptory challenges Thus, he never exercised. even remaining assuming arguendo which cause, trial erroneously court denied defendant’s for the error challenges noted, harmless; as defendant cannot on complain appeal objec tionable him jurors were forced where he could have had them ex upon Coleman, cused 46 Cal.3d at peremptory challenge. (People pp. 770-771.) *27 contends, however,
Defendant error that harmless rule should not in a case. We an v. apply capital recently rejected identical claim People 451, Gordon 50 (1990) Cal.3d 1247 Cal.Rptr. 251]. Defendant no or a presents persuasive reasoning authority to warrant re- consideration of our holding.
Furthermore, our review of the record discloses that although pro jurors in spective question gave conflicting concerning answers to questions their views on a under certain capital punishment—expressing preference ultimately circumstances for the death of them confirmed penalty—each that he or she would follow the court’s instructions and an mind keep open life concerning without of as an alternative possibility parole disposition. 589, 618, v. Ruiz 44 (See People (1988) Cal.3d 619 749 P.2d Where are elicited on conflicting equivocal or responses dire, voir the trial court’s is impartiality generally binding determination of Coleman, 619; 767; on this court. 46 (Id. at Cal. 3d at p. People p. P.2d People (1987) Ghent conclude, therefore, 1250].) We that the trial court’s failure to excuse the prospective jurors was not error.4 peremptory challenges, jurors’ In view of defendant’s failure to exhaust his and the they impartially sentencing options,
affirmance that would consider both we need not address Penalty Issues II. Hoyle Dr. Cross-examination
A. of objection an overruling court erred in the trial Defendant contends con Hoyle, Dr. of a defense expert, cross-examination prosecutor’s to the the sex offender psychologi that defendant matched possibility cerning that the cross- grounds error on the predicates Defendant “profile.” cal intro examination; (2) of the direct scope exceeded the examination: evidence; an founda lacked adequate inadmissible character duced area of as an in the Hoyle qualified expert because Dr. had not been tion not shown to be accepted such had been profiles, and profiles personality 24, 30 Kelly 17 Cal. 3d community (see the scientific 1923) Cir. 1240]; Frye (D.C. United States Fed. 1014).5 of solely foregoing for the
Assuming, argument, sake merit, could have been claims has it is clear nevertheless that defendant not by Dr. a clinical testimony. Hoyle, psychologist, prejudiced disputed by one of mental health defendant at the experts penalty several called His a review of testimony, based on an interview with defendant and phase. records, history defendant’s school social and tests other performed makeup—characterized indicated defendant’s experts, psychological low normal to borderline distorted IQ, impulsiveness, perceptions reality, and with “schyzotypal” personality—was showing consistent tests brain organic damage atrophy.
During
Hoyle,
cross-examination of Dr.
at one
prosecutor
point
“Doctor,
covered,
just
they
asked:
these items that we
don’t
fit
profile
offender,
a sex
A
objection
defense
to the
overruled.
rapist?”
question “Well,
all,
*28
Hoyle
Dr.
then
as
you
follows:
first of
it seems like
responded
mentally
said
sex
sex
maybe
disordered
offender
or
but let’s with
rapist
go
[szc],
offender
neither of those terms are
rapist,
diagnosis
psychiatric
committed,
know,
Kelly
you
I’m not aware that Mr.
had ever
acts of
erroneously
stringent
applied
defendant’s additional claim that the
court
the
With
trial
more
erspoon
(Witherspoon
standard
v. Illinois
Pressed to consider in the and also had defendant’s thetically, past he had committed rape loner, he had the fact that was psychosocial background—particularly Hoyle and was married to an older woman—Dr. limited sexual experience, two, know, “Well, you say I have to that those again, would responded: time, you At the same diagnoses. me are not you gave psychiatric labels that know, if he man is someone say obviously raping I’d have to capable had, ... I don’t the mere fact that he marries an older woman fact but nor is the fact that he had limited feel is to make that conclusion adequate conclusion, fact that he’s nor is the sexual to draw experience adequate a loner.” offender, label as a sex
Stymied stereotypical in his defendant attempt retreated from this line of His next inquiry. question the prosecutor quickly have been years you practicing, “I then that in the four was: assume violent sex offenders?” The you many haven’t worked with who were people certainly that he had not: “That wasn’t readily acknowledged witness the cross-examina- my focus of treatment.” After several further questions, was completed. tion discloses, Hoyle Dr. fail to only respond
As the record thus not did the so-called sex affirmatively when asked whether defendant matched result, notion. As a flatly rejected prosecutor offender he “profile,” there is no reasonable Accordingly, to abandon the compelled inquiry. have resulted might that a result more favorable defendant possibility testimony absent the Allen question. (People P.2d 115].) Photographs B. the guilt
Defendant next contends he at both prejudiced At the by the admission of certain phases improper photographs. penalty victim (Danny O.), these consisted of five of the guilt phase, photographs *29 scene, still alive.6At the penalty one of the crime and one of the victim while of the of the victims photographs introduced four phase, prosecution of Houser), of one photo San Bernardino homicides of Reed and three (one 6 Danny including prosecutor photos, that of while apparently The showed several of the alive, argument. during still as slides
963 addition, In scene, still alive. of Houser while one photograph the crime and body at crime scene Reed’s slides—three of four showed prosecutor argument.7 Danny phase O.—during penalty of autopsy and one photo irrelevant, and cu- inflammatory were the photographs Defendant claims mulative. at of point dispute not irrelevant. The principal
The were photographs willful, and Danny’s was deliberate killing turned on whether guilt phase The photo or of a violent outburst. spontaneous the result premeditated, clearly of and bums powder the wounds graphs depicting placement and theory that the murder was cold-blooded prosecution’s supported 867, 713, 741 (1988) Cal.Rptr. v. Melton 44 Cal.3d (People intentional. 50 v. recently P.2d observed in Turner 741].) People 750 As we “The not 887], prosecution Cal.3d 668 was witnesses, solely testimony of live to these details from the obliged prove jury and the was entitled to see how the details of the scene physical body theory 706; People . . . .” at accord supported (Id. p. the prosecution Melton, 741; 44 at v. Hendricks 43 Cal.3d supra, p. Cal.3d People P.2d of old 737 The Chinese proverb There states it well: “One is worth more than a thousand words.” picture fore, Danny hold the irrelevant we were neither nor cumulative. photos
Nor was the value of the probative question outweighed photographs by their effect. is seldom prejudicial Although pretty, pictures, “murder testimony and evidence in are physical always such case unpleasant” v. Pierce (People our
91]), they review of the us not independent photos were persuades Turner, unduly gruesome inflammatory. 50 Cal.3d at supra, (People Melton, 706; 741-742; v. Hen p. People Cal.3d at supra, pp. dricks, supra, 594.) Cal.3d at p.
The Danny necessary alive was not photograph while still establish the identity of the no as that issue— dispute victim—there was only and was relevant to marginally young that the victim was show whole, thus constituted no threat to defendant. On the photo probably Hendricks, have should been excluded. error, however,
594.) any, if not a must be deemed harmless. This was close case which for have sympathy might jury the victim led the convict; the evidence of clear and improperly culpability defendant’s Danny photo pen Defendant asserts that the also while still alive was introduced at show, however, alty phase. particular photo The record not this reintroduced does penalty phase. at the *30 of the does not photograph
uncontradicted. the introduction Accordingly, (Id. 594-595.) warrant reversal. at pp.
We reach the same conclusion with
to the
intro-
photographs
respect
the crime scenes lent
duced at
of the victims and
penalty phase.
photos
sexually assaulted the
theory
credence to the
that defendant
prosecution’s
eliminate
deliberately
any
them to
witnesses to
two women and then
killed
Melton,
v.
44 Cal.3d at
Nor were the
(People
supra,
p. 741.)
crimes.
Hendricks,
unduly
594.)
Cal.3d at
photos
gruesome. (People
supra,
p.
Finally,
that the
of the
reject
photo-
we
defendant’s assertion
admission
unduly
alive
Danny
O. and Ursula Houser while still
graphs
prejudicial
Maryland (1987)
and constituted reversible error under Booth
440,
C. Rebuttal Evidence next
Defendant contends the trial court erred permitting below, to introduce certain rebuttal prosecutor explained evidence. As contention lacks merit. wife, Kelly, testify
Defendant called his Christine to his virtues as a Thereafter, objec- husband and father to their infant over loving daughter. tion, Kelly the court to call Mrs. as a rebuttal prosecution allowed defense, correctly witness. The court for the testifying noted Mrs. Kelly had not to be a testify against waived her witness or to her privilege Code, ruled, however, subd. The court further spouse. (Evid. (a).) § that the would not be into confidential prosecutor permitted inquire Code, marital communication. As a result of the court’s (Evid. 980.) § Kel- ruling, defendant entered into the Christine following stipulation. “[I]f witness, ly testify Saturday, were called as a she would that on November 17th, 1984, her have been marked rings the defendant showed two which ring No. 114 and No. 115. The defendant her the People’s People’s gave 18th, 1984, [||] day, Sunday, marked No. 115. The next November People’s in Los Angeles she the defendant to her mother’s residence accompanied her mother where the defendant sold the second No. ring, People’s *31 Brown, Houser’s Ms. John called subsequently $10.” The prosecution for to the victim. belonged had both rings testified who boyfriend, “The admission of rebuttal evidence rests largely within the sound discre tion of the trial court and will not be disturbed on in appeal the absence of ‘palpable abuse.’” (People v. Carrera (1989) 291, 49 Cal.3d 323 [261 348, Cal.Rptr. 777 P.2d 121].) The record here does not support a finding that the trial court committed “palpable abuse” in ruling that the evidence was unavailable to the prosecution for presentation during its case-in-chief. As to whether the evidence was within the proper scope rebuttal, of al though a closer question, it does not appear the court palpably abused its discretion in admitting the sale of the ring to rebut defendant’s evidence in mitigation that he was a simple and soul, innocent honest and hardworking. discre the sound largely rests within of rebuttal evidence
“The admission in the be on absence appeal and not disturbed trial court will tion of 291, 323 Carrera 49 Cal.3d (People error.’” ‘palpable a finding The here does not support P.2d record 121].) Cal.Rptr. ruling in that the evidence trial committed error” “palpable that the court its case-in-chief. during for presentation to the prosecution was unavailable rebuttal, al scope evidence within the proper As to whether the in palpably not the court erred appear closer it does though question, mitigation of the to rebut defendant’s evidence admitting ring the sale soul, hardworking. honest was a and innocent simple that he Other D. Crimes unadjudicated of the two homicides
Defendant contends introduction under County rights in San violated his constitutional Bernardino charged consti- He also that he was Amendments. claims Eighth Fourteenth from decide the tutionally jury phase entitled to have a different penalty People We identical claims guilt rejected phase. which decided 480], P.2d Balderas 41 Cal.3d Rodriguez 777-779 reasoning no persuasive has us with presented Defendant 113]. in those cases. authority holdings from our departure warrant on E. Instructions Other-crimes Evidence sponte instruct sua failing the trial court erred in
Defendant asserts had the burden of with other-crimes prosecution proof respect that the evidence, innocent of such presumed charges. and that defendant was proved must be jury uncharged that the homicides trial court instructed is ade- that such an instruction doubt. We have held beyond reasonable 247, 280-282 Davenport (1985) quate. urged in the nature those Further instructions *32 required. were not
defendant Alleged Prosecutorial Misconduct
F. misconduct the committed prejudicial Defendant contends prosecutor in three argument respects. during penalty phase separate First, victim’s he the made reference to the prosecutor improper asserts in Booth 482 U.S. Maryland, violation of v. supra, characteristics personal Gathers, v. 805 L.Ed.2d and Carolina 490 U.S. supra, South and The in consisted of two question separate 109 S.Ct. remarks 2207]. age The first as follows: “You can consider the isolated comments. was defendant, in to the the de population, most of probably relationship got was he Danny is old. He’s in his mid 20’s. How old when fendant not that remark, Danny, also concerned came somewhat killed.”8 The second which trait, boy “But that little exhibited following: later and consisted of commendable, would something hope good, that I would that we consider inter everyone society—”. if in our Defendant something thereupon that overruled, an and the continued: prosecutor which was posed objection Danny if had just “We all have that. And the defendant one what percent no one be had would killed.” that persuaded we are nevertheless arguably
While inappropriate, penalty had no affect on the appreciable comments here prosecutor’s Gathers, involved, intro respectively, verdict. Unlike Booth which prosecu duction at victim statement and extensive lengthy impact trial of character, remarks and civic these religious torial comment on victim’s to the mild; they pertaining contained no details relatively were brief or his and made suffering family, actual inflicted on the victim impact Thus, to as we concluded only reference the victim’s character. passing Ghent, effect of the prosecu v. Cal.3d People supra, prejudicial Cal.3d “undoubtedly (43 tor’s here was minimal or nonexistent.” comments error, beyond a any, if was harmless 772.) at We are p. persuaded Adcox, 259-260; People at (People supra, pp. reasonable doubt. Cal. 3d Ghent, Malone, 38-39; 43 Cal.3d supra, at pp. at pp. 771-772.)9 Danny’s object age request a instruction. Defendant to the curative did not reference
Accordingly, may appeal. v. Green disputed not be raised on the first remark argument, prosecutor erred apparently In an contends the somehow related defendant have many background and pointing people out defendant’s social and economic share remarks, objectionable nothing in these equal to than We find or lower defendant’s. IQ’s commented on improperly the prosecutor next asserts
Defendant
violence, as follows:
acts of
of prior
evidence
produce
failure
defendant’s
he
because
physically
with the defendant
something wrong
there was
“[I]f
the violence
years
it take 25
to show.
baby why did
a premature
ffl] [I]f
common,
consistent,
why
so
so
great,
him was so
directed towards
that was
objection
An
age?”
in him at an earlier
the same
signs
didn’t we see
overruled.
for
calling
“speculation”
remark as
prosecutor’s
on
comment
constituted
foregoing
improper
contends the
Defendant
evidence,
in violation of
failure
defendant’s
to produce
California
Griffin
agree.
We do not
L.Ed.2d
85 S.Ct.
Milner,
Beivelman,
245;
G. Failure to Delete Factors Inapplicable by failing sponte Defendant contends the court erred to delete sua instruction, all factors from its factors inapplicable mitigating specifically 8.84.1.)11 former No. We have (e), (f), (g) (j). (CALJIC previously rejected substantially identical claim. v. Miranda Indeed, recently 104-105 have we observed that “the better for a court to instruct on all the practice [is] *34 factors, statutory jury the to be those that are penalty directing guided 907, on the v. Marshall 50 Cal.3d applicable (People record.” 269, 790 P.2d Defendant has advanced no 676].) persuasive authority to cause us to reconsider our argument prior holdings. H. Extreme Mental or Distress as a Mitigating Emotional Factor 190.3,
In accordance section factor former No. (d) (CALJIC with 8.84.1) jury was instructed to consider or not the offense was “[w]hether committed extreme mental while defendant was under the influence of or emotional disturbance.” Defendant asserts that to “extreme” referring conditions, lesser precluded instruction consideration of disturbance. Ghent,
The contention lacks merit. In v. 43 Cal. 3d we People supra, in may held that of the “catchall” instruction that the consider light jury “any other circumstance which extenuates the of the crime” gravity (former 190.3, 190.3, factor now factor that it could (j), (k)), jury was aware § § provided: “(e) participant 11These factors Whether or not the victim was a in the defend (f) offense ant’s homicidal conduct or consented to the homicidal act. Whether or not the [][] reasonably was committed under circumstances which the defendant to be a moral believed justification (g) acted under or extenuation for his conduct. Whether or not the defendant [H] [j[] (j) person. extreme duress or under the of another . . Wheth substantial domination [f[]. accomplice participation er or not the defendant was an to the offense and his in the commis relatively sion of the offense was minor.” “which, deemed not though perhaps mental condition account a take into Cal.3d (43 of the offense.” ‘extreme,’ the seriousness mitigates nonetheless 957, 987-988 v. Hunter 776; accord People at p. 270; Adcox, at p. 47 Cal.3d supra, 608]; P.2d People 45 Cal.3d v. Babbitt People
253].) this, At defend- however. beyond jury to the went given
The instructions that, statutory penalty in addition the court instructed ant’s request including mitigation, factors, factors consider additional jury could birth,” “cir- premature and effects the “circumstances [defendant’s] father,” his by his as a child of his abused being and effects cumstances background religious “his background experiences,” “educational addition, the prosecu- In both condition.”12 and “his physical experiences,” to defendant’s argument counsel devoted considerable tor and defense of psychological impairment. claims counsel, we
Thus, arguments instructions and the of the court’s light any mitigating to consider jury permitted that the was properly conclude emotional disturbance. mental or alleged to defendant’s relating evidence Babbitt, Hunter, 987-988; supra, People 49 Cal.3d at pp. 296-297 720-721; Lucky (1988) 45 Cal.3d at pp. Cal Rptr. Doubt as to Beyond on a Reasonable I. Failure to Instruct Proof Circumstances Aggravating *35 error, by court erred contends the
In his next
of
defendant
assignment
fix the
at death
they
penalty
the
sua
could
failing
jury
sponte
to instruct
circum
beyond
aggravating
if
found
a reasonable doubt that the
only they
and that
substantially
stances
circumstances
outweighed
mitigating
this
rejected
We have previously
death was the appropriate punishment.
895,
Cal.Rptr.
v. Bonillas
48 Cal.3d
argument. (People
(1989)
v.
777;
844];
Rodriguez,
People
771 P.2d
v.
Defendant next claims that
it relied
jury detailing
upon
statement from the
the evidence
which
written
We have determined that
penalty.
and its reasons for
the death
imposing
necessary
and are not
such
are not
law
findings
required
written
v.
Amendment
Eighth
rights. (People
a defendant’s due
protect
process
Jackson,
777-779;
42 Cal.
at
Rodriguez,
supra,
3d
pp.
Cir.
692 F.2d
316-317;
Pulley (9th
1982)
Cal.3d at
see also Harris
pp.
1189, 1195,
v. Harris
Pulley
other
sub nom.
grounds
revd. on
29,
K. Prejudice “Cumulative” errors at alleged contends that viewed the various together,
Defendant
rejected
reversal
the verdict of death.
Having
penalty phase compel
merit, however,
there is
utterly lacking
bulk of defendant’s claims as
From our review
no basis for the assertion of cumulative
simply
prejudice.
record,
a fair and untainted
of the
we are
that defendant received
persuaded
trial. That is all the Constitution
Williams
requires. (People
Finally, defendant contends the trial court committed error prejudicial 190.4, (§ (e)) failing on the automatic modification motion subd. ruling 190.3, felony to consider that defendant had no convictions. factor (§ prior (c).) verdict, modify on the automatic motion to a death ruling
“[I]n
novo penalty
trial
function is not to make an
and de
judge’s
independent
determination,
the evidence of
independently reweigh
aggra
but rather
whether, in the
circumstances and then to determine
vating
mitigating
weight
the evidence
judge’s
judgment,
supports
jury
independent
991, 1045
Lang
verdict.
[Citations.]”
court,
in so
must
627],
italics.)
ruling,
original
*36
effective appellate
set forth its reasons with sufficient
to allow
particularity
147,
45
199-201
(1988)
Cal.Rptr.
review.
Heishman
Cal.3d
(People
673,
Rodriguez,
793-794.)
Here, court of and the record reveals that the trial was aware 190.4, with (e), partic executed its under section subdivision responsibilities analysis by its expressly ular care and attention to detail. The court prefaced circumstances in duty aggrava- that its was “to consider each of the noting
971 then to review The court proceeded independently.” and mitigation tion had factors that mitigating and statutory special factors of the penalty each each, that was to pertinent the evidence cataloging the jury, been read to cut, ultimately and in which the evidence as the direction stating its views to by only supported are and verdicts not findings that “the concluding jury’s evidence, all the in review of independent but the Court its weight the of the or contrary not to the law findings are jury the verdicts and evidence finds evidence.” the on the circumstances of aggravating weight
The judge placed primary 190.3, cold-blooded particularly factor which evidenced (§ (a)), crime activity involving criminal prior and the killing, presence calculated by two San Bernardino homi- as evidenced (factor (b)), use of violence de- by evidence offered psychiatric cides. The court found that the expert were defendant was fendant did not that the crimes committed while show (factor (d)) or disturbance under the influence of extreme mental emotional his criminality of his acts or conform capacity appreciate or to mental disease or by behavior to the of law was requirements impaired Nevertheless, latter be a (factor (h)). defect the court considered the to felony convictions), (e) factor. court found factors mitigating (c) (prior The (victim (f) (moral justification), (g) (duress), (i) participation consent), (whether was an to be (the age defendant), (j) accomplice) defendant With other circumstance inapplicable. (k) (any factor which respect crime), extenuates the of the factors gravity special court found to be requested mitigating.13 defendant correctly judge (c)
Defendant observes that the trial mislabeled factor The (the felony convictions) absence of as prior “inapplicable.” judge were, course, felony free to as a jury view the absence of convictions prior factor v. Crandell 46 Cal. 884-885 mitigation. 3d (People However, 423].) P.2d the court was plainly aware felony clearly defendant had not not prior suffered conviction and did factor be a (c) aggravation. (Cf. misconstrue factor Hamilton People Moreover, 730].) judge on the brutal and cold-blooded nature of placed primary emphasis makes not murders. court’s statement of decision clear that it did Thus, any consider the issue of to be a close error in the trial penalty one. analysis court’s with this one factor was harmless respect penalty Hamilton, 1186-1187; standard. Cal.3d at applicable pp. v. Brown 12, ante, page See footnote 969. *37 972
Conclusion We either find no error at prejudicial guilt penalty phases The judgment entirety. defendant’s trial. is affirmed in its Lucas, J., Panelli, J., J., Kennard, J., C. Eagleson, concurred. MOSK, review, I concur After judgment. J. I have found no error warranting reversal. however,
I my write separately, disapproval of serious express strong police during interrogation prior misconduct to defendant’s confession: statement, in an effort to secure officers deliberately played on defend- ant’s religious beliefs violation of the First principles underlying Amend- I, 4, ment to the States United Constitution and article section of the California Constitution. trial,
Prior to defendant moved suppress his confession. One of his claims involuntary was that statement was it because was obtained by viz., the exertion improper influence the police, on his playing motion, alia, religious beliefs. The court denied the inter determining, the confession voluntary beyond reasonable doubt.1
The
is applicable
law that
here is clear and well settled.
involuntary
An
confession is inadmissible under the
process
due
clauses
of both the Fourteenth Amendment to the United States Constitution (e.g.,
368,
908,
(1964)
Jackson v. Denno
378 U.S.
385-386
L.Ed.2d
84 S.Ct.
[12
1774,
I,
15,
1
1205])
A.L.R.3d
and article
sections 7
the California
415,
Constitution
v.
(e.g., People
(1962)
Ditson
57 Cal.2d
438-439 [20
165,
Const.,
Cal.Rptr.
369 P.2d
under the
of Cal.
predecessor
714] [decided
I,
212,
art.
Boyde
v.
15]). (See, e.g., People
46 Cal.3d
238
(1988)
§
[250
83,
P.2d
Cal.Rptr.
25],
Boyde
affd. sub nom.
(1990)
California
316,
U.S. 370
L.Ed.2d
973 759, 231, 576, 80 P.2d 354 Cal.Rptr. 54 583 Trout Cal.2d (1960) v. [6 ‘ any by it “was “extracted of due when process 1418]) guaranties A.L.R.2d violence, promises, direct or by any implied of obtained sort threats [or] ’ ” (Hutto of by improper the exertion slight, however influence[]” [or] 194, curiam)). 28, S.Ct. (per 30 L.Ed.2d 97 429 U.S. (1976) v. Ross 202] [50 286, 97].) 51 P.2d v. Berve Cal.2d 290 People (1958) (See “[C]oercive [332 is not that a confession necessary finding activity predicate is police 157, 479 U.S. 167 Connelly . . .” ‘voluntary’ (1986) . (Colorado [93 473, Amend law under the Fourteenth L.Ed.2d 107 S.Ct. That is the 515].) view, I, law, article sections 7 my It is under (Ibid.) ment. also the 15, of the California Constitution. by meaning conduct
A is within governmental confession “obtained” if only if and conduct guaranties of the federal and state due process linked, were, certainly This is causation. confession are as it “proximate” must be more for federal The causal connection true right. requisite Ross, 429 (Hutto than for”: is insufficient. “but causation-in-fact “If U.S. at 30 at the test was whether p. curiam).) L.Ed.2d p. (per [50 197] conduct, statement been but for the law enforcement would have made virtually be voluntary give no statement would deemed because few people in the kind official action.” incriminating statements absence some 1363, 1366, fn. v. Leon Cir. 847 F.2d (U.S. (9th 1988) 1.) Guerrero true It foregoing is also for the state is the rule in California that right. conduct be “a motivating must cause of confession.” Brommel 909, 56 added; 632 (1961) 845], italics Cal.Rptr. [15 accord, 31 Cal.3d People Hogan (1982)
P.2d Manifestly, the rule is rooted in that are of state principles constitutional dimension.
Finally, determination on trial is sub- appeal the court’s voluntariness U.S. ject (E.g., review. Davis v. Carolina independent North 895, 898, S.Ct. federal [reviewing 741-742 L.Ed.2d consti- 1761] claim]; tutional v. Sanchez 571-572 People 642, 451 of review of both federal [apparently speaking 74] and state claims].) constitutional
I now to the at bar. exerted police turn case It is that the plain improper influence to obtain a con- during interrogation on defendant an attempt demonstrate, fession. As the facts out the officers majority played set beliefs, fashion. Such religious on defendant’s and did so in a deliberate conduct altogether improper and—sepa- under First Amendment I, rately article of the California Con- independently—under section stitution. In v. Adams Cal.App.3d 290], the it are not matters Court of thus: beliefs Appeal put “Religious *39 by be used governmental say authorities to a to manipulate suspect things she say. he or would otherwise not The without fear is too right worship a for us an precious freedom to tolerate invasion and state manipulation by individuals, religious officials beliefs of those including accused (Id. crime.” at p.989.) sure, majority evidently are of the view. be opposite they agree To beliefs, may police
that the not play religious on “the tactic of stating a exploiting suspect’s religious justly anxieties has been condemned” Adams, ante, citing People v. 970. at Cal.App.3d (Maj. opn., p. 953.) they But disagree that officers this case acted improperly: of the “none comments here have police appear exploit been calculated to a particular psychological vulnerability defendant; religious no acute anxiety or guilt sense of . . from . .” apparent questioning (Ibid.) prior Perhaps no religious sensitivity evident earlier in the But interrogation. did, it became evident in plainly its course. And as soon as it it was purpose- ly exploited.
Although exerted influence on police improper defendant deliber- beliefs, ately on his on playing religious this record the confession cannot be held to have been obtained exertion of such influence. I recognize misconduct, inference the evidence allows an that but for the officers’ defendant would not have confessed. simply But it does not allow an infer- ence of causal connection that is more direct and substantial. And as above, explained causation-in-fact is insufficient.
Therefore, review, after I independent conclude that trial court did not err when it determined voluntary that defendant’s confession was be- yond reasonable doubt.
Accordingly, having no error found on this no error point—and on other warranting reversal—I concur in judgment.
Broussard, J., concurred. Appellant’s for a petition rehearing February was denied 1991.