*1 S015384. July [No. 2010.] PEOPLE,
THE Plaintiff and Respondent, TOBIN, RICHARD LACY LETNER CHRISTOPHER ALLAN Defendants and Appellants.
Counsel Seaman, Jr., J. and R. under Thomas Bowden Clayton appointments Court, Letner. for Defendant and Richard Supreme Appellant Lacy Laethem, Hersek, J. State Public Fern M. S. Coffin and Michael Lynn Defenders, Court, under Alison Pease Supreme appointment Defenders, Turner, for Defendant and Ronald F. State Public Deputy Appel- lant Allan Tobin. Christopher Brown, Jr.,
Daniel E. Bill and Edmund G. Lockyer Attorneys Lungren, Anderson, General, R. Chief Assistant Williamson and Robert George General, Graves, General, A. Jo Assistant Ward Attorneys Mary Attorney Christoffersen, Cate, Eric L. John G. McLean and Matthew L. Campbell, Johnson, General, Mark A. for Plaintiff Attorneys Respondent. Deputy Opinion Allan
GEORGE, Richard Letner and Lacy Christopher C. J.Defendants Code, (Pen. 187),1 burglary Tobin were convicted of first murder degree § 664, 261, 459), 212.5), (§§ (a)(2)), subd. (§ (§§ robbery attempted rape Code, 10851, (a)), from the (Veh. and theft of an automobile subd. arising § Visalia, California, on March murder of Ivon Pontbriant in her home defendant, the found true three circumstance As to each special 1988. committed in the course of the burglary, the murder was allegations—that 190.2, (C), (G))—and (§ (a)(17)(A), subd. attempted rape, robbery court, defendants’ of death. The trial denied having returned a verdict the verdicts and the automatic to modify motions for new trial applications 190.4, defendants to death and to consecutive (§ (e)), prison subd. sentenced for the offenses. This is appeal terms of six months years eight noncapital each defendant (b).) affirm the as to (§ judgment automatic. subd. We in its entirety.
I. Facts Phase
A. Guilt
1. Prosecution Evidence Gilliland, Pontbriant, with lived with Walter age, then years Ivon involved, located at 804 North residence romantically whom she was 2, 1988, Ted On March Wednesday, in Tulare County. Jacob Street Visalia Blevins, had became concerned because Ivon Pontbriant’s parents, and Ida 1 unless otherwise indicated. statutory are to the Penal Code All further references *15 them as she had That the Blevinses evening, telephoned planned. cousin, Cantrell,
contacted Pontbriant’s Jack and with him went to the house on North Jacob Street. After knocked on the door without they receiving any a Pontbriant Cantrell looked window and saw response, through sprawled the floor of the room. living arrived,
When the found Pontbriant’s facedown in police they body lying of blood on the floor between a and a pool couch coffee table. She was unclothed for her socks and a that was down to her except brassiere pulled waist. Her hands were tied behind her back with a cord that also telephone was around her neck. The cord was tied to have made looped tightly enough ligature marks her neck and A cut wrists. on the back of her upon large, deep neck had severed her cord and lacerated including several blood vessels spinal carotid right her death. Death from the severed artery, causing cord spinal instantaneous; could have been she would have bled to death essentially within minutes. Pontbriant also had suffered three stab wounds to her neck— vessels, two on left and one on the right—that missed her blood narrowly and three lacerations on the superficial side of neck. Had these other right arteries, wounds severed Pontbriant’s carotid she would have lost conscious- ness almost and would have died within immediately, minutes. Pontbriant’s trauma, face had sustained severe blunt force as though she had repeatedly alive, been kicked or in the face punched while and there were defensive wounds on her arms. Portions of her hair had been out of her head. A ripped bottle, it, Heineken beer which had fecal matter on was wedged between buttocks, Pontbriant’s near her A genitals. of found in the pile clothing living room included a and underwear that also had fecal matter on pair pants them, and a sweater that to have been cut or There appeared ripped open. no blood on the Several clothing. hairs were found on Pontbriant’s chest.
An on the coffee table contained ashtray several Marlboro and Camel cigarette butts and a Lowenbrau beer bottle coffee table cap. top had a cut that could have been made a knife into it. by stabbing Nearby was of Pontbriant with a hole photograph in it that matched the cut in the table. floor; Two of Pontbriant’s were on the purses the entire contents of one purse floor, had been on the and the contents of the other dumped which purse, checkbook, contained Pontbriant’s had been removed. The only partially checkbook did not contain $18 but more than any money, in bills and change were found at the bottom The kitchen area purse. have appeared down, been and in the wiped bathroom was a to have washrag appeared had blood on it and to have been rinsed. A distinctive wine bottle of a opener sold at a local type store was on the kitchen counter. Gilliland testified liquor bedroom, he never had seen the bottle in the house. In the which opener was in found a blue disarray, baseball blood smears on a police cap, dresser, on the bed and on a pillow doily on semen stains on the automobile, Fairmont, Pontbriant’s a red-and-white Ford carpet. was missing. found on a the front seat of her car was that Pontbriant used to cover A quilt the car side door would be when location where the passenger’s bush near the very testified that Gilliland Pontbriant driveway. was parked car; else to drive it. anyone her would she allow very rarely protective earlier, morning Sunday, on the testified that three days Gilliland car 28, 1988, residence in a drove to the Jacob Street February than a month For more to Tobin’s somewhat girlfriend. said belonged *16 a two or three days Letner had worked for Gilliland to that Sunday, prior the house. Gilliland behind garage him appliances week helping repair Letner; that he re- Pontbriant told people had befriended and Pontbriant Pontbriant morning, gave her her son. On that Sunday minded of Marlboro and a of cartons a bottle of Kahlua couple and Gilliland liqueur and had coffee with Pontbriant inside the house Defendants went cigarettes. that he was Gilliland mentioned In defendants’ presence, and Gilliland. him that Pontbriant reminded Modesto to visit his family. to to go planning $340 in cash. soon, her and Gilliland gave approximately the rent was due her the checkbook inside purse. her checkbook and the cash in put She placed one hour. Defendants left after approximately friends. had known They close very
Letner and Tobin were long-standing, school in the high City Napa, while attending each other for several years Visalia, 1984, and where he met Tobin moved to during California. Sometime and Mayberry Tobin with Jeanette Mayberry. involved romantically became Street, shared with Crenshaw which at 248 South lived in a residence at the house for approxi- Letner also stayed and Mike Kinnett. Darlene Jolly to an and moved Mayberry Tobin during one month. Sometime mately Street, them. After and Letner later joined East Murray at 301 apartment Street, in March building Murray to a different relocating apartment Street. was Mayberry on Stevenson the three moved to an apartment of 1987 after the of that Soon year. and birth in May with Tobin’s child gave pregnant A bom, couple Street Murray apartment. back to was Letner moved baby Street, later, Mayberry to while Murray moved back Tobin also of months testified Mayberry Street. Bridge at 720 North moved to an apartment their relation- with of Letner’s interference because she and Tobin separated however, other, and in each to see and continued Mayberry Tobin ship. Street Bridge apartment. Tobin moved December that manufactured for a company begun working Tobin had May In for the same company started working Letner buildings. prefabricated 1988, however, had and off near the beginning were laid June. Defendants car, Defendants, who did not own time. after that no steady employment Sunday, February around. On car to get Mayberry’s borrowed occasionally meet to attend local 28, 1988, swap her vehicle lent defendants Mayberry the car that Letner returned items. When sell various attempt order afternoon, he told that Tobin was with Tobin’s ex-wife at a Mayberry meeting nearby park. Mayberry angered by this and twice confronted report, Tobin and his ex-wife that At one day. threw point Mayberry angrily away Tobin had engagement ring given her. 29, 1988,
On the next day, Monday, February returned to her Mayberry and discovered that the bedroom apartment window was broken. She sus- that Tobin had pected broken the window in order to enter the apartment, because she had removed his house from his after key their keyring quarrels moments, on the Within a previous day. (who few Tobin intoxicated) Letner arrived at the Tobin and apartment. Mayberry began argue, Tobin struck her and out some of her pulled hair. Letner insults at yelled Mayberry encouraged Tobin to continue to strike her. After Mayberry Tobin, managed get from away she ran to an upstairs apartment. neighbors admitted her and called the When the informed police. neighbors summoned, defendants that the had been police Tobin broke the room living windows of Mayberry’s retrieved his apartment, and used it to break shotgun, *17 the windows of her car in the lot. He then parking reentered the apartment, sword, obtained his ornamental and with Letner. Tobin returned departed the next apartment to search for his day driver’s license and to apologize to Mayberry. Mayberry did not Tobin’s and left. accept apology Mayberry returned apartment following after the had day, Tuesday, windows been Tobin’s repaired. were personal belongings still there. be- Mayberry lieved Tobin reconcile; would return and would they he had not mentioned anything regarding moving away.
Meanwhile, also on Sunday, Gilliland February and Pontbriant had a disagreement, and Gilliland decided to leave for Modesto. He arranged motel, meet his son at a so that his son could drive him to Modesto. Gilliland’s son him picked early next and up morning, drove to the they residence on Jacob Street. items, Gilliland testified that he retrieved several a including toolbox and a and that Pontbriant puppy, was while he was asleep at the house. Gilliland’s son drove with Gilliland to Modesto and dropped him off at his ex-wife’s house. Reid testified that
Marilyn Gilliland with a Sunday evening, appeared Letner, suitcase at the Break there, Room Bar in Visalia. who already Gilliland; later, talked and drank beer with they at the same time. departed 1, 1988, On March Tuesday, Pontbriant her drove friend Flourene Gentry for groceries, as she shop did on the first of the always month. Later that times, evening, Pontbriant three telephoned Gentry her that she telling (Pontbriant) returned, was concerned because Gilliland had not and a person who had a stove purchased from Gilliland had come the residence to complain. call, testified that Gentry the third during at telephone approxi- mately individuals, 9:30 Pontbriant told her p.m., two one of whom house, son, and and were her entering her her had arrived just reminded that she was “feeling all Pontbriant also mentioned right. would be everything no pain.” drinking together Reid saw defendants Marilyn that Tuesday evening,
On between 7:30 p.m. sometime They together at the Break Room. departed from the across street directly was located Frank’s p.m. Liquors 9:30 store, defendants because who recognized A clerk at the liquor Break Room. store, (which he one working night customers frequent 1988), one of the two in Mar. when as a identify only night could wine, beer, a bottle of inexpensive a of Heineken six-pack purchased at Pontbriant’s later found bottle type a distinctive wine opener a and bought six-pack returned later night house. The same person beer. Lowenbrau of angry and Letner made series Pontbriant evening,
Later that Tuesday wife, law Kathy and his common to Edward Burdette calls telephone take the dog Burdette of Gilliland Pontbriant accused helping Coronado. to “kick Letner threatened to Letner. belonged toolbox apparently In not returned. if Letner’s tools were and to harm Burdette ass”
[Gilliland’s] and at one while calls, point, increasingly Pontbriant became upset, the later returned. if the tools were not “He will hurt me” Coronado that told crying, and Coronado Burdette threatening, obscene and the calls were Because their telephone. ultimately unplugged Alan Police Officer Visalia midnight, the same night approximately
On *18 Ford he a red-and-white car when observed was in his patrol Wightman car was facing The on Garden Street. sign automobile at stop Fairmont car. in front of south, patrol east on Main Street the driver turned and on Bridge The car turned south in his vehicle. followed Wightman Officer Avenue, onto State and then continued west Street, King west on Mineral Letner was a vehicle stop.2 conducted Wightman Officer 198. Highway Letner told seat. was in the front passenger the car and Tobin driving Pontbriant, owner, in order Ivon the car from that he had borrowed officer to his were going told the officer they Tobin drive Tobin home. separately named Street, a woman he resided with where South Crenshaw home on license, there was no registration have a driver’s Letner did not Jeanette. Street, Jacob lived on North that Pontbriant Letner said card in the vehicle. Officer number. or her telephone the exact address did not know but that he 2 vehicle legality of the challenging the motions pretrial defendants’ trial court denied the car initially suspected he hearing that suppression at the Wightman testified stop. Officer intoxicated. Officer stolen, might have been the driver suspected and later might been have defendants’ jury. We address presented was not stop for the Wightman’s explanation post, part U.A.3. stop, challenges to the traffic renewed name,
Wightman with Pontbriant’s but obtained provided police dispatcher her only office box and address. post prior vehicle,
At the time the officer he noticed a approached six-pack container with four green bottles located behind the front unopened passen- car, seat. After ger’s Tobin out of the Officer got Wightman saw opened bottle half filled with beer under Tobin’s seat. He also conducted a brief search of trunk of the vehicle for other containers of alcoholic any open beverages. Officer conducted a Wightman of Letner and found a patdown folding in Letner’s pocketknife which the officer pants pocket, temporarily confiscated while defendants. Because Letner smelled as if he questioning had been an alcoholic consuming Officer conducted a beverage, Wightman series of tests. sobriety Officer determined that Wightman Letner was not under the influence of alcohol to the that his degree driving was illegal, therefore the officer issued a merely citation for without a driving license. Nonetheless, drive, because Tobin in a to be condition to Officer appeared Wightman told defendants to lock the vehicle and continue on foot. Defendants walked west along highway. Officer noticed that Wightman Pontbriant’s vehicle remained alongside when he parked highway drove on his past a.m., home way 4:00 Wednesday also when he returned to work at 5:30 p.m. evening. murder,
Upon receiving of Pontbriant’s Officer report Wightman contacted car, officers and investigating them to her guided which subsequently trunk, and searched. impounded The items found in the which included sword, several bags, some and a clothing, to be the appeared same items that were in the trunk the when previous night Officer Wightman conducted a brief search for open containers of alcohol. Tobin’s shotgun, which earlier, Officer Wightman did not remember also seeing was found in the trunk. After the vehicle was a more search was impounded, thorough conducted which the during also found on the floor police of the car a white that had blood rag bottles, on it. One Heineken and three Lowenbrau beer all were found behind the unopened, seat. The passenger’s bottle that had opened under been the seat was a Heineken bottle as well. *19 2, 1988,
At 4:00 a.m. on approximately March Wednesday, Pamela Loop heard her and dogs then noticed two men barking in her front One of yard. the men said that John was to Novotny give them a ride to work supposed and asked where he resided. told the men that Loop Novotny’s house was hers, behind and they began in that direction. walking the Loop telephoned residence, and told Novotny Denise who Novotny, was awakened by Loop’s call, time, that two men telephone were on the to her way house. At the same observed the shadow of a Novotny her person front door. She approaching Letner, looked out of the window and saw whom she from recognized picnics After hosted the that had her husband and defendants. company employed outside, them a Letner told her wanted John to they give Novotny stepped ride to Letner should known John was work. have Novotny responded out of Letner told her John assignment. might town on work believed they have Another could Novotny give returned man asked whether she early. work, them a ride to and offered to her for the cost of give money gasoline.3 refused, insistent, When more and said it was man became Novotny could not them. Eventually, continued to she drive “emergency.” Novotny say decision, said, man, Letner to make and looked at other appeared The men “Okay, that’s fine.” then departed. Reno, 3, 1988,
On made a collect call from March Letner telephone Bluffs, Iowa, Nevada, he was in Council and told her grandmother to his her on contrary, to Iowa to seek employment. Despite urging coming Bluffs. her had they March Letner and Tobin arrived in Council told They Reno, of all on the belongings hitchhiked from and had been robbed their clothes, them some drove them to Iowana way. gave Letner’s grandfather Motel, for one rental of a room on their behalf. and week’s paid Bothwell, Iowana, there.
Earl then at the met defendants who was staying business, Bothwell, hired some who owned a Tobin to contracting perform wanted for work At some defendants for him. mentioned point, California, he could them in obtaining and asked Bothwell if assist murder in had false identification. When Bothwell later asked Letner what happened, Ford $12 $14 had a red-and-white Letner that he stolen and explained Iowa, car he would have driven the vehicle from a woman. Letner stated During driving erratically slowly. had him for or too stopped the police conversation, room, when whether Tobin entered the and Bothwell asked this “Yeah, murder, the old bitch” I killed he wanted for Tobin replied, to call the Tobin confirmed yelling threatening because she was police. he her. told Tobin $12 $13 from Bothwell they had taken approximately no Tobin that had work for day. following responded hours of early morning day, police
During Motel involving to a a disturbance at the Iowana report warrants, murder outstanding police defendants’ Discovering Bothwell. arrest, a “buck” had At the time of Letner in his pocket arrested them. his seen Wightman to be the as the one Officer knife that same appeared that Letner regularly murder. Jeanette testified Mayberry night knife him. carried that with 3 Novotny believed he during the conversation. Novotny could not see other man leave, him, Tobin, profile his as he turned description her husband’s upon based trial, however, unable to Novotny was always being together. At reputation for defendants’
identify positively as other man. Tobin *20 and arrived in Iowa returned with Tobin County from Tulare
Investigators hired to to California. A extradition to escort Letner private company Texas, however, California. Letner van escaped by stealing While in he one which and several were More than prisoners being transported. other truck, later, Letner, at a week who was a stolen was arrested driving pickup border after officer a known with patrol providing checkpoint checkpoint alias The Tulare recorded in information to wanted pertaining persons. to County jail then Letner back California. While in investigators transported trial, Garrard, inmate, another awaiting Tobin told Gregory of.all him, evidence Tobin was most concerned about a found against bloody rag Pontbriant’s car. trial, identified, defendants,
At belonging Jeanette as most Mayberry the items found trunk of The Pontbriant’s car. items included three of stolen and bags cosmetics hair care all Letner. belonging to products, also Mayberry identified to Letner blue baseball belonging found cap in the bedroom of Pontbriant’s house. testified that Letner Mayberry usually smoked Camel but that Tobin smoke. cigarettes, did not death,
At the time of her Pontbriant’s blood-alcohol content was 0.29 Based percent. of her it was estimated upon lividity body, she had been killed late on the Three evening Tuesday, March 1. of the hairs found on Pontbriant’s chest matched hair obtained from Letner. Two of these samples them, hairs blood to have on and have been appeared removed forcibly from his head. other Two of the hairs found Pontbriant’s on chest could have hairs,” been “fringe meaning would have come from an area near donor, pubic region of the but these hairs were distinct sufficiently confirm their or source. The other on or type hairs found near Pontbriant’s hair, were not body of human or matched be origin, Pontbriant’s or could not identified. of the hairs had Many forcibly to Pontbriant been belonging removed. Six hairs found inside the blue baseball recovered from cap bedroom also matched Letner’s hair. The blood on the and on pillowcase bedroom, doily recovered from Pontbriant’s blood on the found rag car, her with consistent both and Gilliland’s Tobin’s blood type. semen stains found of the bedroom manifested carpet antigenic them, activity, therefore consistent with having Tobin’s deposited he because was a “secretor” blood in his It could antigens bodily fluids. confirmed, however, not be whether the contained the antigen semen same secreted, that Tobin nor when the semen been had Letner deposited. Gilliland were not secretors.
The cuts in the table and coffee could have been made by photograph addition, Letner’s buck knife. In that knife could have inflicted the stab neck, wounds to the side of Pontbriant’s larger but the was that a probability knife had been used render the fatal wound back of her neck. cutting *21 Evidence
2. Defense defenses, their to discredit the In both attempted primarily who had during witnesses evidence the provided incriminating prosecution’s the Defendants whose experts case. also presented opinions In evidence with the opinions forensic conflicted prosecution’s experts. addition, defense, he Tobin testified in his own to the effect that essentially the and Letner were both at Pontbriant’s house on the night present murder, Letner, and, than (Tobin) but he left earlier when Tobin departed, had not been harmed. Pontbriant Concerning Evidence Walter Gilliland
a. Gilliland, that Walter Gilliland’s son from his testified Jerry prior marriage, a minutes after he and his father at the Jacob Street residence few stopped Modesto, and like he heard a woman what sounded way yelling loudly, did a taking thrown the walls. Gilliland not recall being against Jerry objects when he and his father took to Modesto. trip dog murder, Walter Gilliland told him that after the Mendoza testified
Danny them, with in resulting Gilliland found defendants in an and alley fought Mendoza, had a to Gilliland’s and ribs. Gilliland According head injuries time, and lied. was drunk most of the drinking consistently bad very problem, Loan, custodian of records at Coast and Savings Sandra Saulque, occurred, bank during in which the murder Gilliland’s testified period $55, $40 in exceeded and a withdrawal the amount of account balances never time to 1 was the withdrawal made close in the murder. on March sole case, the lead in this Logan, Police Detective Richard detective Visalia that were several statements testified that Gilliland had provided police For initially with his at trial. example, somewhat inconsistent testimony Pontbriant rent having given money Gilliland did not mention his when he did mention the and in interviews subsequent defendants’ presence, involved. inconsistent accounts of amount assertedly he money, provided house, rather he met Tobin in the than in garage, Gilliland also said that on the kitchen counter so left the to her car normally keys and that Pontbriant needed it. Gilliland inconsis- could use the car whenever he that Gilliland also which certain events Gilliland transpired. identified dates on tently defendants, he to kill and was reluctant help wanted told police them himself. he to catch defendants punish because wanted police value, a including items of testified in addition several Logan Detective recorder, coins, $18 just over and a videocassette a jar television murder. in her house after the remained cash found Pontbriant’s purse, watch, removed from a had been earrings ring, pair Similarly, body. Pontbriant’s Office John Johnson of the Tulare District
Investigator County Attorney’s had waited in testified Gilliland told him that on Tobin Sunday, February while Letner the Kahlua and inside Jacob garage brought cigarettes *22 Street residence. Gilliland also to that Pontbriant had been stated Johnson when Gilliland the house on his to Modesto. way asleep stopped
b. Evidence Earl Bothwell Concerning Webb, Letner’s defense Cliff testified that Bothwell informed investigator, (Bothwell) him had him with details of the investigator Johnson provided Dunham, murder to him. Tobin’s James interviewing investigator, prior that after testified Bothwell said he avoided involved intentionally becoming arrested, defendants were because he feared defendants and believed he might be held for not defend- responsible promptly contacting police regarding ants’ admissions. Bothwell also had refused to allow Dunham to record the Dunham, interview. Bothwell also told him that According investigator Johnson had briefed Bothwell the facts of the case thoroughly regarding prior to taking his statement. arrests,
Detective testified that Logan on the after the Bothwell day checked out of the motel where he and had been When staying. Logan arrived in Iowa he observed that the local media in Council Bluffs had some provided coverage defendants’ arrests. surrebuttal,
In Tobin’s case in testified that Mercedes Brasel she wrote 28, 1988, check on March payable Bothwell for work she had payment hired him to do on A her house. of the check was admitted into copy which, evidence. Part of the work included a painting project, according Brasel, Tobin on the she wrote the check. that completed day Brasel testified house, after Bothwell off Tobin at her Tobin started the work. dropped Bothwell him that when the work was picked evening up completed. case,
During Bothwell had testified that Letner and Tobin prosecution’s 28, 1988, confessed to the murder on March and that Bothwell had told Tobin is, that Bothwell did not have for him that any day—that according work Bothwell’s Tobin would not have testimony, Brasel’s house on painted day.
c. Evidence Concerning Mayberry Jeanette ex-wife, Williams, Tobin’s to Visalia on Cheryl testified she traveled 27, 1988, so that their February could visit with Tobin. When daughter Jeanette confronted Tobin and Williams at the Mayberry following park morning, and was foul Mayberry extremely screaming using upset Tobin, Williams, their and Williams’s friend drove daughter, When language. car, an unsafe followed them in her driving from the away park, Mayberry manner, and Tobin out of the car and walked. When Williams until Tobin got time arrived at Mayberry at a different later day, met for the second park and tried to attack Williams. park a distur- McIntosh report Police Officer Jeff responded Visalia Street Bridge and Tobin at involving Mayberry apartment bance did not to be injured He testified that Mayberry appear 29. Monday, February Tobin, and, had she said Tobin merely to file wishing charges against her face. slapped Flourene Concerning Gentry
d. Evidence *23 him the tele- Frame testified that told Gentry Visalia Police Officer Jay of the murder occurred from Pontbriant on the night calls she received phone that to her She told Frame testimony. other than times given at times recollection, call, third Pontbriant which during the best of her telephone house, occurred at men were then her entering approximately mentioned two testified, however, that Gentry Logan Detective morning. one o’clock call made between certain that the final was 9:00 told him she was telephone her been very distraught during and that had Gentry and 10:00 p.m., p.m. Officer Frame. earlier interview with Garrard Concerning Gregory
e. Evidence denied that Garrard told him Tobin Dunham testified Defense investigator case-in-chief, In the in Pontbriant’s murder. prosecution’s having participated he “had that Tobin said investigator had he told a defense Garrard testified however, testified, that when had do with it.” Johnson Investigator nothing Garrard, had he had did not tell him that Tobin said Garrard he interviewed to do with the murder. nothing
f. Forensic Evidence office, was Cortner, General’s Attorney at the California a criminalist Gary sweater, Letner, that most of Pontbriant’s and testified called as a witness for determine all,” a knife. He could not not cut with “if not had been ripped, in that area cut or a hole the neck had been ripped; the area near whether through having a thumb or other object poked have been made by could unable to distinguish he testified that generally fabric. Cortner also each Tobin because from Letner and collected between the hair samples head. That circum- hair on his “tremendous range” types defendant had a found at of the hairs any to match inability accounted for his stance also however, scene to that a with more defendants. Cortner agreed, person and a he had more than one used experience powerful microscope might reach a different conclusion. Sims,
Letner also called as a witness a criminalist hired Gary defense, he who testified when Letner’s buck knife was disas- present knife sembled and examined. Tests for the of blood on the presence parts debris found in the knife were negative. addition, Malone,
In Letner re-called Michael hair analy- prosecution’s sis who testified that one of the hairs identified as expert, belonging Pontbriant had been broken in the while mounted on slide. laboratory being Malone had testified that a break in a hair indicates that the hair previously has been removed force from a person’s body. Testimony Plans to Leave Regarding Defendants’
g.
California Arnold, Burt who for a of time shared the period Murray apartment defendants, murder, Street with testified that three weeks to the defend- prior Midwest, ants where Letner had spoke moving family. Jacklynn Tobin, mother, murder, Tobin’s also testified that Tobin said he prior *24 murder, to Iowa with Letner. thinking going Jeanette Following found, Mayberry Street Murray unmailed letter written apartment, Letner to his how would feel he grandparents, asking they if moved to Williams, however, Iowa. testified that had not Cheryl she heard anything Tobin’s to leave California. plans
h. Testimony Tobin’s Defendant Tobin testified in his own defense. to his According testimony, Monday, (the February 29 after his day fight with Jeanette from his Mayberry, arising Williams), visits with he and Letner went to the Cheryl Street Bridge so that Tobin could to reconcile apartment with attempt Mayberry. Finding unlocked, inside, the apartment went and several later minutes Mayberry returned to the Tobin apartment. During ensuing argument, merely which he did Mayberry, because she had kicked him in the slapped groin. admitted, however, Tobin that he broke a window in the apartment it, a throwing hammer a through broke window in car with Mayberry’s his shotgun.
Tobin testified that Letner had been to Iowa for some time go planning and, after his with Tobin decided to him. fights Mayberry, accompany the next Accordingly, March Tobin returned to the day, Tuesday, Bridge him. but refused to admit Mayberry to retrieve his clothing, Street apartment Room another man at the Break Later that Tobin saw with day, Mayberry shirt, At which Tobin somewhat. angered Bar. The man was Tobin’s wearing the belong- had all of given away Tobin assumed that Mayberry point, Street he had left at ings Bridge apartment. Letner he and night, that at 6:30 p.m.
Tobin testified approximately call. Letner said received a at the Break Room when Letner telephone left the bar him over to her house. They had called and invited that Pontbriant house, At drank a number of beers. some to her where they and proceeded beer. He rode his bicycle in order to more Tobin departed purchase point, one Frank’s purchased six-pack the Oval Store—not Liquor Liquors—and wine or any and Heineken beer. He did not purchase each of Lowenbrau bottle opener night. left, taking because Gilliland had that Pontbriant was upset
Tobin testified Later, made a she and Letner money. their and all of their dog with him named “Ed.” calls to someone number of angry telephone de- again when the stock of beer to Tobin’s testimony, According another six-pack the Oval Store purchased he returned to Liquor pleted, house, to the When he returned and Heineken beer. each of Lowenbrau each other. with their arms around on the couch Pontbriant and Letner were kiss, Street bicycle Murray left and rode his Tobin they began When he soon after on the He fell way. asleep of beer purchasing quart apartment, arrived at apartment. later, him to woke him and asked Letner up
Tobin testified that sometime he was taking car. Letner said into Pontbriant’s belongings load Letner’s help Letner and Tobin them there while house to store the items to Pontbriant’s Tobin, Letner had asked earlier that night According were in Iowa. *25 In belongings. car to over his bring borrow her whether he could Pontbriant Letner’s, and his shotgun his sword Tobin put to the items that were addition Kinnett, who Tobin Mike to to sell them to try he in the car because planned Street. En route South Crenshaw at the house on living still was believed however, them over. Wightman pulled Officer the apartment, after leaving the side of the highway, leave the car on directed them to After the officer Hotel, consumed where they bar at the Marco Polo defendants walked Pontbriant to Letner telephone Tobin testified he suggested more beer. and went to a telephone Letner where the car was parked. advise her call, one had answered Letner said no returning on to but appeared place bar, leaving residence. After at Pontbriant’s the telephone they it Finding unoccupied, Street. South Crenshaw to the house on walked there, the floor. the night sleeping back door and spent forced open next went to Denise house they Novotny’s Tobin testified that the morning, Goshen, not for a ride to work. and asked her for a ride to the bus station declined, to the bus station. Tobin purchased After hitchhiked Novotny Sacramento, Reno, using tickets from Sacramento to bus tickets to then severance from his last pay job. anyone
Tobin testified that he never told Earl Bothwell he had killed Motel, Bothwell’s California. the altercation at the Iowana Tobin took During him, Bothwell. Tobin denied ever embarrassing from shotgun angering Street to the night been in the residence on North Jacob having prior killed, Pontbriant he Gilliland Pontbriant give asserted never saw murder, Tobin testified he had to do with Pontbriant’s any money. nothing and did take her he visited her house. not from when plan anything
3. Prosecution Rebuttal Evidence Wood Terry testified that in when he was incarcerated with Tobin at him (Tobin) the Tulare Tobin told that he and Letner County jail, had been Pontbriant’s house on of the murder. In contrast to Tobin’s trial night that he had left testimony Pontbriant’s house on his own and Letner later car, arrived at their with her Tobin told Wood he had borrowed apartment Pontbriant’s vehicle to move did some items. Tobin he had say departed from Pontbriant’s house the car. prior borrowing Johnson denied Bothwell details
Investigator giving any Pontbriant murder before him. Johnson also testified Wood interviewing informed him that Tobin told he had at her Wood borrowed Pontbriant’s car residence.
Jeanette Mayberry testified she had with Tobin when he was in spoken jail murder, following his arrest. Tobin told that on the he Mayberry night beer, left the twice house one of Heineken on the buy purchasing six-pack first and one of Lowenbrau on the second Tobin told her he trip, six-pack trip. later returned to the Street Letner woke him two or Murray apartment. up later, three hours him had them telling Pontbriant loaned the car to travel Iowa. Tobin had Letner he advised wanted to sell Tobin’s before shotgun for Iowa. departing *26 case, examination,
In his defense direct Tobin had testified that he during Wood, did not make statement and that foregoing Terry Mayberry’s inaccurate, heard it statement was “because probably wrong.” [she] Penalty Phase B.
1. Prosecution Evidence of numerous instances evidence in consisted aggravation prosecution’s conduct, violent criminal admitted of defendants’ unadjudicated pursuant 190.3, (b). victims was admitted concerning against section factor Evidence two defendants; victim was admitted solely both evidence one other concerning Tobin, was admitted solely and evidence five other victims against Letner. against Incidents Both Involving
a. Defendants defendants when he lived in Napa testified that he knew David Bendowski for a dated Tobin’s ex-girlfriend period and 1979. Bendowski sister, Julie testified that Bryant, approximately time. Bendowski and his residence and entered defendants at Bendowski’s June of appeared and Tobin kicked hallway, confronted Bendowski force. They face, Bendowski he was his nose. Tobin told Bendowski bloodying that Bendowski had been Tobin’s dating ex-girlfriend. angry John, later, defendants, Letner’s brother accompanied by Several months Letner asked Bendowski to come Bendowski’s residence. John returned to talk, be no trouble. When Bendowski there would outside to promised outside, however, if he did not get threatened to beat him up went defendants vehicle, out of and Letner drove them their car. Bendowski entered the into dates with that Bendowski them for his town. Defendants demanded pay she was act like gonna Tobin told Bendowski that Tobin’s ex-girlfriend. “[i]f whore, told him they treat like one.” Defendants was gonna [her] [Tobin] him a tree and beat him from hang out of town so that could taking they were at a traffic light, when the car Bendowski to escape stopped him. attempted door closed before he succeeded. the defendants slammed the car but one of out of town and left 10 to 15 miles took Bendowski eventually Defendants the road. him on the side of 20, 1979, at Bendowski’s residence. defendants again appeared
On January was not Julie, told them that Bendowski then was 14 years age, When who check to make sure there, over” if she did not threatened to “work Tobin [her] so, that Bendowski was told them again in the house. She did he was not for looking tell Bendowski Defendants told her to not at home. him. he saw defendants home when walking Bendowski was day, Later him in their defendants followed to run but away, in a car. He tried driving in an attempt talk to defendants Bendowski decided to vehicle. Eventually, car, demanded again entered their After he avoid assaulted. being *27 with Tobin’s and on this ex-girlfriend, that Bendowski them for his dates pay Defendants occasion threatened to break his if he did not them. fingers pay off Bendowski near his home. eventually dropped 29, 1986, at a station in On November William Healer was gas Napa, he was fuel for the truck he was when getting driving, approached pickup Healer, had some defendants. who ran an auto body shop, performed repair work on a vehicle owned Tobin’s mother. Healer had not completed repair defendants, the work when he moved his apparently repair shop, believing Healer had to avoid purposefully attempted completing mother, work even he had been Tobin’s though already paid by “going to take care . of this in their . . own Defendants ordered Healer to drive way.” them in truck his store where Tobin’s mother worked. On the way, Hlobick, defendants their friend Dan needed a picked who ride order to up store, drugs. they When arrived at the Tobin took the purchase keys truck and ordered Healer to with him go inside. Tobin’s mother Learning there, was not defendants ordered Healer to drive to another store where she drive, Healer, worked. Letner threatened and said he should not During store, have “burned” mother. Tobin’s When arrived at the Tobin entered they mother, to locate his and while in the truck Letner continued to threaten returned, Healer. When Tobin Letner the truck door next to Healer opened him, and struck him in the face. After Healer defendants not to hurt begged defendants asked him whether he or his had family any money. arrived, Healer,
When Tobin’s mother who was to her crying, apologized for any misunderstanding her car. Mrs. Tobin said there was no and asked him he misunderstanding why was so When Healer ex- upset. car, what had him Mrs. Tobin offered to drive home in her plained happened, but Healer declined he because was afraid defendants steal valuable might intervened, Healer, tools truck. Tobin had struck denying anyone would let him leave. After the men stating they Mrs. Tobin left and drove however, Letner told Healer to them not to away, again order give money further, be hurt and he demanded Healer he did Healer’s wallet. When said him, him not have it with Tobin accused him of and ordered lying pull truck, over and out of the truck. get Outside the Letner kicked Healer in the chest and continued to demand the wallet. When Healer said he give would house, him money his all reentered the truck. they As Healer was Letner said he needed to driving, gun stop pick up he Healer because was afraid do when reached his might something they house. Letner ordered Healer to drive to the address where the gun was drive, located. Tobin the back of Healer’s head and During grabbed Letner him in the face. Tobin Healer’s neck and began hitting grabbed address, choked him. When arrived at struck Healer again *28 At and who would inside to retrieve the this go gun. several times discussed truck, unlocked, ran to a Healer noticed his door was exited point car, to let on the hood of the he with the driver Pounding car. nearby pleaded in, me. to kill me.” The driver let going him me. saying, “Help Help They’re after the car on foot him in and drove One of the defendants chased away. later, realized that a house before the driver accelerated. Moments Healer The was he knew. driver they stopped passing occupied persons house, called the car and Healer ran to the whose let him in and occupants to his throat and chest. Healer was treated at the for hospital injuries police. and he had emotional “disfigured,” ongoing His ribs were permanently from the incident. arising problems
b. Incident Tobin Involving Warren and a of friends went to Sometime in May Kenny group an altercation that had house to confront defendants concerning Letner’s Warren’s had an with ongoing dispute occurred earlier in day. group with them. defendants and had been involved several fights previously door, kicked of Warren’s knocked on and Letner’s After member group he ran away, the house fired a door. As shotgun through someone inside heard one or two additional shots. Warren later, Warren was Tobin and two weeks approached
Approximately store. Tobin told Warren to come outside Robert Nance in an auto parts talk inside because he him. Warren told Tobin could they attempted punch him he went outside. After Tobin assured afraid he would be if “jumped” was outside, Once outside the agreed. if went Warren would nothing happen store, Nance in the face. Tobin said Warren should fight Nance kicked Warren Nance, one,” kicked him turned to confront Tobin “one on but when Warren now, back, fucker.” When Warren in the “It’s two on one saying, attempted Tobin and Nance kicked Warren repeatedly run Nance tackled him. away, chest, hair from the back of handfuls of the head and and Tobin pulled wallet, $85 contained in cash. which head. Nance took Warren’s Warren’s the wallet and dared Warren Nance held out get After Warren allowing up, but Nance and tried to run away, the wallet from to take it. Warren snatched him and again Nance resumed kicking tackled him. Tobin and Nance again wallet, car. Richard him toward a nearby and Tobin began dragging took his store, Warren in the Baker, kicking saw Tobin of the auto parts employee face, if ever shot at anyone threaten to kill Warren and heard him head to the car Warren and returned Tobin dragging his house When again. stopped what he “got Baker that Warren Tobin told waiting, in which Nance sustained a broken house. Warren he had shot Tobin’s deserved” because attack, his and lost and other injuries contusions nose and several wallet and money. Letner Involving Incidents
c. received Frame, school in Napa, attended high who In June Stephan Letner, ass.” was “after who said he [Frame’s] call from a telephone lot, him and Letner approached the school’s parking following Monday, affirmatively, When Frame responded he Steve Frame. whether inquired face, unconscious. momentarily Frame him in the rendering Letner punched with consciousness, him in the face *29 Letner kicking was When Frame regained a him to As asked stop. Letner ceased after Frame repeatedly his work boot. concussion, nose, a broken attack, for a Frame was hospitalized result of the a cheekbone. broken Emberton, an Andrew 11:45 p.m., On July approximately officer, when Berkeley Avenue in University was driving off-duty police be hitchhiking. who to a in the road standing appeared he noticed person the lane. was blocking had to his vehicle because person Emberton stop be Letner—to move turned out to Emberton motioned for person—who car and became confronta- Letner out of the street. When approached so, tional, he did Letner hit the side Emberton decided to drive As away. stance, Letner, a karate assuming his car. When Emberton stopped again, to but fight, said he did not want Emberton to him. Emberton challenged fight to Letner continued wanted Letner to move onto the sidewalk. merely Emberton, An on-duty police twice him in chest. challenge pushing arrest, arrived, Letner During officer then and Letner was arrested. struggle and the other officer had to resisted to the extent that both Emberton with him in order to handcuffs. apply 14, 1985, his Alexander McAdams visited
On the afternoon of January and Letner at a restaurant in Benicia. McAdams Susan girlfriend Forsythe after restaurant leaving had a confrontations. Moments history physical truck, truck on the McAdams saw Letner his driving pickup in his pickup at- truck. McAdams side of the road toward McAdams’s wrong straight Letner, drive lanes and continued to to avoid but Letner changed tempted to drove his truck reverse at McAdams. McAdams directly Eventually, truck, Letner, When bumper bumper. avoid but Letner hit McAdams’s field, rifle, a McAdams drove across open Letner exited his truck carrying several shots as he drove hearing away. the incident. Evidently station to report
McAdams went to a police whereabouts, went officers Letner’s concerning police information possessing arrived, Letner’s the officers first When Anthony Hockney’s apartment. later, there, one hour it when returned they approximately truck was not but the door told A who answered in front of the woman was parked apartment. alone, in the back of the heard noises but when they the officers she entered and found on the bed next apartment they sitting to a Hockney Letner, .44-caliber rifle. said the rifle Ruger Hockney who had belonged arrived, been in the when the but entered. apartment police departed minutes officers went outside but did not find Letner. Approximately later, however, Letner returned to his truck and drove without away activating followed, his it now dark. A headlights, although officer police arresting him a short distance Letner was confrontational with the away. verbally officers, said, and after his arrest “You think me because you got you’ve got But clean.” The my gun. my gun’s officers had not mentioned anything gun Letner’s comment. Letner also told the officers that prior soon, “I’ll be out of this and then I’ll Alexander McAdams.” At the get police station, Letner admitted with McAdams over a having dispute girl, head on into McAdams’s truck. Letner denied driving Although using, rifle, officers found a for possessing, owning receipt purchase rifle in Letner’s pocket.
Sheila W. met and became involved with Letner in romantically July 27, 1987, On December 1987. when had an Letner hit her in argument, back, the back of her head and on her neck and and choked her until she 1, 1988, became unconscious. On and Letner had another January Sheila Letner but he argument. on made sexual departed, returning repeatedly Sheila, advances to which she Letner forced her rejected. onto Eventually, floor and had nonconsensual sexual intercourse with her. Sheila did not report the incident Letner. because she was afraid of police 16, 1988, Mike
On Mohrhauser was his truck from El April driving pickup Paso, Texas, Cruces, Mexico, hitchhiker, to Las New when he picked up who to be Letner. Letner had from the of an recently custody proved escaped extradition that was with him to California. charged returning company house, Mohrhauser invited Letner to at his and the two the next stay “partied” two the homes of Mohrhauser’s relatives. On second nights evening, house, Letner, when to Mohrhauser’s who was over returning driving, pulled Mohrhauser, intoxicated, so that who was could urinate. When Mohrhauser truck, out of the Letner struck him on the head with an got object, rendering awoke, he facedown in a lying him unconscious. When Mohrhauser hit by ditch 30 feet from where he was watery irrigation approximately truck, wallet, and watch had been taken. When Letner. Mohrhauser’s $3,000, truck, tools, were Mohrhauser recovered the his worth approximately missing. Evidence
2. Defense Mitigation
a. Letner’s Case in alcoholic. their father was an testified that Letner’s brother John younger alcoholism, while family moved their father frequently Because of his drinking, eventually over his Their fought boys growing up. parents beverages always Alcoholic age. when Letner was 19 years separating home, the time drinking consistently and Letner was were present but John was not Letner smoked marijuana, he was 15 also years age. he constantly When Letner was drugs. growing up, aware of his other using At one his his point, was teased other children appearance. him cosmetic having undergo surgery improve considered parents face, John father decided not to proceed. of his but his ultimately appearance that Letner acted suicidal several occasions. believed because Frame and two John testified that Letner assaulted Frame Stephan beat in school and threatened to other had confronted John boys previously incident, their because he knew him John did not inform Letner of the up. John, and would beat father would Letner to do something protect expect however, out, and John overheard Letner if he did Letner found nothing. leave John alone. According call Letner told Frame to which telephone during him, confronted Frame Frame told Letner that if Letner to John’s testimony, Letner once he had the chance. would shoot when David the first incident during
John testified that he was present *31 testified that no one forced Bendowski was with defendants in their car. John them in order to drink beer into the vehicle—he willingly joined Bendowski than discuss other money and smoke Tobin and Letner did not marijuana. According them for money marijuana. to remind Bendowski that he owed Bendowski; John, he chose not to no threatened abandoned simply one back to town with them. ride and became close that Letner and Tobin met
John also testified and other fights types began engage frequent friends. After they trouble, John from Tobin. Eventually, told Letner he should stay away John Letner ended Letner unless Letner that he no wanted to be around longer told his with Tobin. friendship similar lines along testified on Letner’s behalf
Other witnesses Bothwell’s and Tobin. Earl preliminary between Letner relationship that Letner to the effect which was read to the was jury, hearing testimony, W. also to idolize him. Sheila for Tobin and things appeared various bought that defendants Burt Arnold testified that Letner idolized Tobin. testified other, had sometimes confrontations each physical with and it was Letner addition, who would back down. In usually heard Bothwell’s preliminary hearing testimony indicating in the motel during fight arrested, room to defendants’ prior being Tobin had threatened to shoot Bothwell with his but Letner removed shotgun, the ammunition from the gun. so, Bothwell believed that had Letner not done Tobin have shot him. might John Letner testified that defendant Letner him in late 1987 and telephoned said he wanted to leave Visalia because Tobin was “acting crazy” was murder, him. In after scaring Pontbriant’s Letner John April telephoned and their mother several times and said he had “done but nothing wrong” doubted he would be of Pontbriant’s murder. John told Letner acquitted not to contact them unless he was to turn again willing himself in to the authorities.
Derrin testified he was Clenny with Letner at the time of the hitchhiking incident Officer involving Emberton. Emberton According Clenny, was did not hit aggressor—Letner Emberton’s car and merely acting defen- sively throughout confrontation. stated that Letner did not Clenny resist the officers at the time of his arrest.
Letner testified on his own behalf. Regarding incident with Stephan Frame, Letner testified he assaulted Frame because father had told Letner’s John, him that he either must confront Frame to or find a new protect place to reside. Letner testified he when Tobin entered David present Letner, him Bendowski’s house and kicked in the face. he and According vehicle, Tobin never forced Bendowski to enter their and never threatened him or demanded money because Bendowski had dated Tobin’s ex-girlfriend. Moreover, testified, town; Letner did not abandon him outside of they Bendowski had he said wanted to walk back. Letner testified that he Healer once
Similarly, merely William slapped mother, while him to meet and Letner hit driving Tobin’s have may him on one other occasion because he did not like Healer. Letner he asserted did not to obtain from Healer to harm him. attempt money by threatening
Letner testified Officer Emberton hit Derrin when *32 nearly Clenny Emberton his car over to the side of the road. Letner claimed that pulled vehicle, when Emberton left he was and very aggressive grabbed his arm. Letner arm Emberton away, swung When Emberton’s Clenny’s slapped back, at him. Letner hit him Emberton to the Then two knocking ground. arrived, cars and Letner was arrested. police Letner, to on the of the incident Alexander involving
According day McAdams, Letner drove Susan to work at a restaurant. On the way, Forsythe collision, avoid signal. traffic To through
he saw McAdams drive red Later, accelerate, he saw when signal. the red Letner was forced to despite McAdams, asserted he to scare him. Letner drove toward him in order Letner Letner shoot at McAdams. not have with him and did not did a rifle named Hockney he neighbor Anthony had left his rifle with a explained was in Hockney’s apartment. and had learned that the rifle Rodney, since he for him at the time left searching Letner did not the police know why Hockney’s apartment. 27, 1987, he December became
Letner testified that on night Sheila while he W. slept, intoxicated and lost consciousness. At some point her, Letner Letner and reacted not was startled poked eye. punching sexual inter- Letner admitted realizing having what he exactly doing. 1, 1988, it with but believed was consensual. January course Sheila on Mohrhauser, Letner testified incident with Mike Mohrhauser. Mohrhauser’s who had heroin that had been beaten up by consumed night, home, and drive. Letner drove he brother was unable to When Mohrhauser with not Mohrhauser his having during fight Letner for punched helped truck, Letner, leave the when Mohrhauser told Letner to brother. According and drove away. Letner and instead Mohrhauser out the truck stopped pulled Letner did not wallet or watch from hit Mohrhauser remove Mohrhauser’s Mohrhauser his items were in the truck when he left on already those person; the side of road. and
Letner also that Tobin killed Pontbriant. Letner Tobin testified alone her, with on the of the murder to drink beer went Pontbriant’s house night calls Burdette. and he and made to Ed After Pontbriant several telephone beer, the couch and Tobin left to more Letner and Pontbriant sat on buy and had sexual inter- kissed each other. Letner and Pontbriant had hugged murder, on but night night course three occasions to the prior Letner to console Pontbriant. merely acted he, Tobin, on the second
Letner testified that store liquor went returned, When asked him to occasion to more beer. Letner Pontbriant buy hour. there for one Tobin go tell Tobin outside remain approximately the front Letner and Pontbriant yard. took several beers and went outside to couch, did but not have sexual inter- disrobed were “intimate” minutes, Pontbriant were After Letner and course. while approximately Tobin had not Pontbriant became because angry Tobin reentered. dressing, told he knew what inside the house. Tobin her that been invited come back already Letner he had and Letner were then asked whether doing, she *33 asked to borrow Pontbriant’s car.4 Pontbriant became angrier and slapped Letner, back, who her reflexively her slapped knocking onto the couch. When bathroom, Letner went to use the he heard Pontbriant threatening to call the room, After Letner police. returned to the he living observed Tobin kicking Pontbriant’s arm as she sat on the couch. Letner attempted Pontbriant pull to safety by her hair. grabbing Letner,
According Tobin tried to remove Pontbriant’s sweater. Tobin knife, somehow had obtained Letner’s buck which have fallen out may Letner’s pants when he sat on the pocket couch. Tobin cut the collar of the sweater and off the remainder of the ripped garment. Tobin removed Pontbriant’s and pants observed that she had defecated. Pontbriant laughed Tobin, who then out some of pulled Pontbriant’s hair and forced her down the floor. He upon then removed a cord from his telephone and tied it pocket around her wrists and neck. Tobin had his foot on Pontbriant and was her with the strangling cord when Letner intervened by with Tobin. wrestling head, Tobin bit Letner on the of his and Letner hit top his head against nose, Tobin’s it to bleed. causing Letner noticed that his buck knife was stuck kitchen, table and retrieved it. Tobin went into the returned with a knife, butcher’s and threatened to kill Letner if he interfered Letner again. then watched Tobin stab the back of repeatedly Pontbriant’s neck. dead,
After Pontbriant was Tobin forced Letner to clean the house help up and remove their At some Tobin fingerprints. the beer bottle in point, put Pontbriant’s buttocks and kicked the bottle. Tobin retrieved the car keys from said, “Well, Pontbriant’s purse we don’t have to steal car now.” The men, two with the departing beer and the murder remaining weapon, pro- ceeded to the Street Murray After apartment. they knife and disposed car, loaded their into belongings Pontbriant’s drove off but soon afterward were Officer stopped by Wightman.5 Blak,
The final witness on Letner’s behalf was Dr. Richard a psychologist. Dr. Blak interviewed Letner and several members of his family, per- formed a number of examinations. In Dr. psychological Blak’s opinion, Letner, who was to above average suffered average intelligence, from chronic alcohol depression, dependence, re- polysubstance dependence, from a “borderline sulting (BPD) disorder” personality Letner had at a Dr. Blak developed very early age. testified that of BPD symptoms 4 Letner he planned testified had to ask to borrow transport Pontbriant’s car to and sell some beauty products he had stolen. 5 cross-examination, letters, During prosecution questioned Letner several murder, describing the Danny Payne, that he had written to another inmate at the Tulare County jail. Certain testimony, although letters contradicted his trial others were more detail, post, testimony. greater consistent with his letters are discussed in in part II.C.2. *34 self-damaging impulsiveness, unstable relationships,
include interpersonal control, suicidal with an absence anger behavior swings, mood aggressive behavior, feelings chronic self-image, empti- an unstable or self-mutilating Blak’s boredom, abandonment. In Dr. experi- and and extreme fear of ness ence, and reality may a distorted sense of may a BPD also have with person and In wrong. sense of right threats with imagined act upon inappropriate Dr. Blak ob- all of these Dr. Blak’s Letner exhibited opinion, symptoms. he in a when that a head car accident injury served Letner had suffered form an concerning any but Blak unable to years age, opinion seven records existed of effect brain because no functioning, Letner’s resulting upon a the accident. In to following hypothetical any testing performed response Letner’s testimony, murder to that recounted in a similar describing question such an a to intervene event during Dr. Blak testified that failure person’s a be with such BPD. person’s having would consistent Tobin’s Case in Mitigation b. Letner, Tobin, and
Dan Hlobick that he William testified accompanied their Healer on excursion to discuss with Tobin’s mother work repair Hlobick, Healer had on her car. to Letner Healer According slapped performed meet hit or a “few times” on the to Tobin’s mother. Tobin did not choke way mother, After the truck ran Healer. left Tobin’s Healer they simply stopped for no did Healer or reason. Letner and Tobin not threaten away apparent to from mother obtain him. Tobin’s also testified Healer attempt money did not when that Healer day. to be met She testified appear upset they her call that the reason he had told the during told a subsequent telephone lesson, Tobin him Tobin but that Healer had assaulted was to teach police brother-in-law, would be Tobin’s charges. Dudley, dropping Raymond that he Healer and Tobin’s testified overheard similar conversation between sister, in which said in order to Healer he had again complained police lesson, charges teach Tobin a but would be because Tobin had not dropping Letner had hit Dudley, done Healer said anything According improper. Healer, but him to Tobin had told stop. Dean car when Letner and Tobin picked
John testified he was driving Dean, struck, threatened, no one According David Bendowski. up demanded from Bendowski. money Hernandez, County
Robert an inmate the Tulare testified Letner jail, that he Pontbriant’s house told him and a named went to Christopher person killed $300 in said he Pontbriant to steal cash and other items. Letner had her to Hernandez how he had used knife and he demonstrated keep quiet, that, Pike, on her neck. another inmate at the testified jail, contrary Leo with each other. Letner’s Letner Hernandez testimony, occasionally spoke father, mother, Tobin’s sister each testified that loved him and would a verdict hoped reach of life without imprisonment possibility parole.
II. Discussion
A. Pretrial Issues
1. Failure to Set Aside the and Burglary Charges Special (Letner, Tobin)
Circumstance Allegations the Following of the and filing complaints amended a complaints, prelimi- hearing was held. At the conclusion nary of the the hearing, magistrate to declined hold to answer on defendants the and burglary charges the burglary special allegations, circumstance the did not finding evidence establish that defendants intended a to commit when entered felony Pontbriant’s house. The held magistrate defendants answer on the remaining of charges murder, vehicle, and theft robbery, of a and the attempted rape, remaining circumstance special allegations. court, however,
The information filed in the included subsequently superior the charges and burglary burglary special allegations, circumstance despite 995, the ruling. earlier Defendants each filed a motion under section seeking the to set aside and burglary charges special allegations circumstance in the information on the ground magistrate’s determination was a factual finding precluded refiling charges. The trial court burglary motions, denied their “there was sufficient evidence to finding hold the defendants answer on all and on charges, all Tobin allegations.” special the trial court’s denial of his motion a challenged by seeking writ of from the Court but denied the prohibition that court Appeal, petition. did Letner file such a On defendants contend the petition. appeal, magistrate’s ruling prosecution refiling from precluded burglary We do not reach the merits of the whether the trial charges.6 court question motions, erred denying section because defendants cannot estab- 995 lish that error in any regard this prejudicial. 6 present In the claim and in their others on contend appeal, most of the asserted rights. error denied state and or misconduct them various federal constitutional As we stated in 412, 441, Boyer (2006) People v. Cal.Rptr,3d 38 Cal.4th footnote 17 133 P.3d [42 581] instances, (Boyer), subsequent cases: “In most insofar as raised issue at all defendants] court, [they] arguments failed to make the constitutional explicitly trial some or all of instance, indicated, (1) [they] In it appears now each unless otherwise that either advancef]. (e.g., affecting claim is to instruct appellate sponte; kind failure sua erroneous instruction rights) required substantial no trial court action defendants’] defendants] it, (2)
preserve
arguments
legal
do not invoke facts or
standards different
new
from
trial
apply,
merely
those the
court
itself was asked to
but
assert
the trial court’s act or
court,
omission,
wrong
actually
had the
presented
insofar as
for the reasons
to that
additional
Cal.Rptr.
In
People
rule announced
we reconsidered
P.2d
(Pompa-Ortiz),
941]
225],
we
which
P.2d
Elliot
Cal.Rptr.
to conduct itself in the manner it is said to have acted in prescribed, excess of jurisdiction.’ 216, (2010) v. Lara (People 48 Cal.4th 224-225 [Citations.]” “ 208, 322].) 226 P.3d Cal.Rptr.3d [106 cannot be jurisdiction ‘[Fundamental waiver, conferred by consent . . .’ ‘an estoppel, act in excess of [whereas] aside, jurisdiction is valid until set be from parties may precluded setting ” waiver, (Id. it aside such things or the of time.’ estoppel, passage at claims, 225.) Defendants’ p. which to raise at trial required by way of their section 995 motions in order to (see 996), them preserve cannot be § considered as raising challenge trial court’s fundamental jurisdiction over the (Cf. 970, case. v. Lewis and People (2006) Oliver Cal.4th 990-991 140 P.3d the denial of a section 995 775] [“Errors motion claiming of the evidence are insufficiency jurisdictional sense.”]; fundamental People v. Mattson 50 Cal.3d 873 [268 Indeed, 983].) P.2d Cal.Rptr. we observe that a magistrate’s ruling sustained, to section pursuant certain charges have not been even if law, that decision is properly the facts and the supported by does not absolutely deprive prosecution opportunity bring charges issue. As as the restrictions of long section 1387 on the number of times satisfied, be charges may dismissed refiled are the prosecution move may to dismiss the case and either file a new that includes all the complaint which charges, would lead to a second or seek an preliminary hearing, indictment (See, grand jury. Burris v. e.g., Court Superior *37 1012, 876, Cal.4th 276]; 1019 103 P.3d Cal.Rptr.3d Ramos v. Superior [22 26, (1982) 622, Court 32 Cal.3d 589].) 29 648 P.2d Cal.Rptr. [184 Accordingly, to the rule we set forth in pursuant on Pompa-Ortiz, appeal defendants are to establish not that the required only denial of their section 995 erroneous, motions was but also that such error. prejudiced by so, Letner and Tobin cannot do because the jury convicted them of the burglary and found the charges circumstance true burglary special allegations which, discussed, after H.B.2.C., a trial in post, part prosecution sufficient evidence presented (See as to those matters. v. Crittenden People ‘ “ 83, (1994) 474, Cal.4th 9 137 885 P.2d Cal.Rptr.2d [36 887] [“Even ‘[i]f commitment, there is evidence to the defendant support insufficient cannot be said to be where sufficient evidence has been introduced prejudiced ’” at. . . trial’ as to the or as to the truth support jury’s finding charge We therefore allegation.”].) conclude defendants’ claims are without merit.
2. Failure First Charge Degree Felony Information (Letner, Tobin) Murder Defendants were with charged murdering Pontbriant willfully and with unlawfully malice in violation of section Defend aforethought, 187. ants were not with charged first murder in violation of specifically degree
141
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189,
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section
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Defendants raise
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murder pursuant
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separately
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We
to section 187.
189,
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have rejected
previously
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v.
(See People Morgan
decisions.
reason to reconsider those
no
753,
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593,
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616-617
Cal.Rptr.3d
129]
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the indict
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defendant
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information
murder
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instructed
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notice of
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case];
v.
27 Cal.4th
369-370
People Hughes
[116
(1983) 34
the claim that
v. Dillon
People
P.3d
(Hughes) [rejecting
432]
People
P.2d
overruled
implicitly
Cal.3d 441
Cal.Rptr.
697]
928],
murder with malice
P.
which held that
Witt
when Officer light Supreme the United constitutionality stop. This assertion fails in States S.Ct. decision in Brendlin v. 551 U.S. L.Ed.2d 249 Court’s California 2400].
a. Background The evidence considered in ruling motions to was as upon suppress follows.8 Officer the downtown area of Visalia Wightman patrolling 1, 1988, night March in a marked vehicle. At Tuesday, police approximately Officer westbound on Main midnight, Wightman traveling Street, its with approaching intersection Garden Street. As Officer Wightman Street, drove to the comer of Main he a red saw Ford Fairmont traveling southbound on Garden Street also the intersection. Officer approaching attention was drawn to the Wightman’s Fairmont because its exterior was beaded with water. it had rained earlier that the rain Although heavily night, and other vehicles on the roads stopped traveling 9:30 approximately p.m., water, were not beaded with whereas exteriors of cars nearby parked car lot and on the street were still wet. Wightman Officer testified he became “somewhat because beaded water on the Fairmont indicated suspicious” to him that it had been driven a short distance from it had been only where earlier, when it had been and he parked raining during hours was aware that criminal three months there had been within that past “heavy” activity area of downtown. This area included 10 car approximately dealerships had filed numerous of a “considerable amount of vehicle reports tamperings and stolens and vehicle car lot burglaries general areas [Vc] Indeed, downtown.” a Ford with several car and a lots dealership body-repair incidents, in the immediate area had a few” shop including reported “quite the theft of a vehicle from one of its lots about one week earlier. The reports of criminal in the area were summarized in bulletins that Officer activity daily received at work. Officer testified that “there was a used Wightman Wightman Center, Ford car lot at between Garden and that we’ve had numerous Bridge, with as far as vehicle and his “first burglaries,” problems tamperings was this car was removed from that lot because all the other thought being cars that were on the at the time were free of moisture.” traveling roadway
After the Fairmont turned in front of Officer into the eastbound Wightman Street, lane of Main he made a U-turn and followed as it to turn proceeded Avenue, south on Street and then west on Mineral before Bridge King trav- State The Fairmont entering Highway westbound 198. on-ramp made at the eled “consistent with” the limit and speed appropriate stops stop on the the circumstance that the traffic streets. signs signals city Despite testified, was, to build long enough as Officer on-ramp Wightman “quite danger oncoming to enter the as not make freeway, proper speed [so to] faster,” the Fairmont entering highway pro- traffic is going upon hour, ceeded at well below the limit of 55 miles 40 miles per posted speed *39 8 motions, testimony ruling would consider parties agreed upon that in trial court hearing, Wightman’s as well as Officer presented suppression and other evidence hearing. testimony preliminary from the that the Fairmont’s engine hour. Officer also noticed Although Wightman
per he he did not believe sounded as it was testified though “running rough,” for the mechanical accounting the sound of the indicated engine problems testified the “main slow on the Officer highway. Wightman vehicle’s speed of the vehicle he was more about the becoming occupants reason” suspicious forty and were traveling only was that turned onto “they [Highway] for own.” Officer my miles an hour with no other vehicles in sight, except because, were aroused based further testified his also Wightman suspicions indicated that his Fairmont’s slow upon experience, speed possibly officer, which driver was intoxicated. his of service as During years patrol familiar common involved “hundreds” of “DUI” traffic he became with stops, drivers, which at an driving of intoxicated one of was signs symptoms slow for no reason. abnormally apparent speed Fairmont,
As he followed the Officer radioed a Wightman police dispatcher to check its and was informed that Pontbriant was the registration, registered owner and that the vehicle had not been stolen. After the Fairmont reported mile, had traveled on the one at 40 miles hour for highway per approximately Officer initiated a traffic his vehicle’s Wightman activating stop by patrol and the Fairmont over. When emergency lights, pulled questioned at the on the motions to Officer prosecutor hearing Wightman suppress, that his that the the “main reason agreed driver was intoxicated was suspicion for the but it was the case that his concern- “[absolutely” stop,” “suspicions theft of that vehicle of the reason he ing why” possible part [were] it. stopped
Officer identified the driver and the as Letner and Wightman passenger Tobin, his defend- During concerning why respectively. subsequent inquiries car, ants were in of be and whether Letner had been while driving possession under the a brief influence of alcohol or Officer conducted drug, Wightman car, search of and the uncovered to belonging which items defendants, beer bottles of the same brands later found at the murder victim’s house, knife, buck which Letner in his carrying Letner’s pants Leber told Officer that the Fairmont to Ivon Wightman belonged pocket. Pontbriant, drive it. Letner bat and that she had him said given permission Street, claimed but he he did not know the exact Pontbriant lived on Jacob addition, or her number. In defendants each made inconsis- address telephone tent and untruthful statements their destination. When apparently searched, a rag the car and more thoroughly subsequently impounded Letner, blood, a hat with blood on it consistent with Tobin’s belonging also were found in the car. “there was finding
The trial court denied defendants’ motions suppress, based on be of the circumstances testified totality reasonable suspicion, *40 officer, all, the First of the Court believes that the officer had a be right to [f] area, about in that suspicious movement cars in which he first encountered the Ford Fairmont in which the defendants were riding.” court noted that the bulletins issued daily police department reported record, car “numerous thefts” the area. it was not Although part area, court noted its own that various car lots were in the knowledge personal Visalia, it that was “obvious that this is in downtown that this is not an area in which there is in which to be their housing you expect people leaving residences and to other There are no going places, supermarkets, [f] the—so what are left with is the downtown area in which there are you in the bars and some car lots.” In the trial court’s probably couple vicinity, view, “that in itself wouldn’t have the officer to this car. given any right stop But he had to it.” The court certainly right follow stated Officer every however, “did Wightman, reasonable based slow develop suspicion The—we have had a lot of speed. testimony diagrams [regarding [I] area], and this Court has come onto the at the location which these freeway followed, it, defendants went on and which the officer That is a rather [f] onto the There’s to long descending ramp freeway. adequate opportunity accelerate from that and the—the point, through Mooney overcrossing, up observed, the location which these defendants were speed, plus originally [at] the fact that in would have had to my plus opinion opportunity didn’t, this car but and the—the fact that the get officer was up speed opportunity-— n area, aware of ... all thefts officer reasonable gave reasonable car. And then the this once suspicion stop stopped, [][] he grounds observations made of driver more than gave adequate he did.” as proceed
b. Discussion matter, As an initial we observe that the evidence and arguments defendants at the to establish presented pretrial proceedings attempted that the reasons Officer offered for the Wightman merely primarily stop contended that Officer had a Wightman pretextual—essentially encounters, them from them when grudge against recognized prior intersection, Fairmont turned in front of the car at the decided to first patrol encounter, and that the them at the officer beginning emphasized stop intoxicated that the car had been stolen and the driver had been possibility Court, however, his conduct. The United States justify Supreme pretexts Amendment based a claim challenges has since made clear that Fourth upon Whren (See are without merit. that a seizure or search was “pretextual” 1769].) United States (1996) 517 U.S. L.Ed.2d 116 S.Ct. Defendants, renew their contentions of a pretextual do not on properly, appeal *41 extent, however, To the contend Officer
stop.9 they Wightman it, had abandoned the notion the car before subjectively was stolen stopping and that therefore we must evaluate the reasonableness of the solely stop the basis of whether there was the driver of the reasonable suspicion intoxicated, Fairmont was this contention is without both a matter of merit First, fact and of law. Officer testified that when he Wightman ultimately initiated the traffic he harbored of both an intoxicated driver stop, suspicions Second, and a stolen car. action is ‘reasonable’ under the Fourth “[a]n Amendment, mind, of the regardless individual officer’s state of ‘as long as circumstances, viewed objectively, action.’ justify [the] [Citation.] officer’s motivation is irrelevant.” subjective (Brigham City (2006) v. Stuart 398, 650, 1943]; Whren, 547 U.S. 404 L.Ed.2d S.Ct. see 126 also supra, [164 517 U.S. 814 Fourth p. Amendment’s concern with ‘reasonableness’ [“the circumstances, allows certain actions to be taken in certain whatever officer]; 318, intent” of the subjective (2003) v. 31 People Sanders Cal.4th 630, 496].) 73 P.3d Cal.Rptr.3d [2
“In ruling on a motion to the trial court must find the suppress, facts, law, historical select the rule of it to the facts in order apply determine whether the law as been has violated. We review the applied court’s resolution of the factual under the inquiry deferential substantial- evidence standard. The on whether the ruling law to the applicable applies facts is a mixed of law and fact that is question subject independent 1129, review.” v. (People (2006) Saunders 38 Cal.4th 1133-1134 [45 66, 859].) 136 P.3d Cal.Rptr.3d On we consider the correctness of the appeal trial court’s not the ruling itself, correctness of the trial court’s reasons for reaching 929, its decision. v. 4 Cal.4th (People Zapien 976 [17 “ ‘ 122, 846 P.2d Cal.Rptr.2d trial court’s is correct ruling “upon 704] [if case, of the any theory law it applicable must be sustained regardless of the considerations which may have moved the trial court to its conclu ’ ”]; 691, sion” v. Braeseke People 25 Cal.3d 700-701 Cal.Rptr. [159 384].) 602 P.2d
“The Fourth Amendment unreasonable searches and protects against seizures. ‘A detention is reasonable under the Fourth Amendment [Citations.] that, when the officer can detaining articulable point facts consid specific circumstances, ered in of the light totality some provide objective manifestation that the detained be involved in criminal person may activity.’ traffic are Ordinary treated as detentions for stops investigatory [Citation.] which the officer must be able to articulate facts specific justifying that a crime is committed. . . suspicion being . Law [Citations.] [f] [f] 9 court, rejecting The trial stop defendants’ claim that was pretextual, found that car, Wightman recognized Officer had defendants when turned patrol in front of the consequently did not know who was in stopped the Fairmont until he the vehicle. ‘draw on their own experience specialized officers may enforcement cumulative deductions about the make inferences from and training untrained well elude an “might person.” information available to them (2008) 45 Cal.4th (People Hernandez [Citations.]’ [Citation.]” 806].) P.3d “The reasonableness of Court has stated: As the United States Supreme determined its intrusion ‘by balancing under the Fourth Amendment is seizure *42 its of Amendment interests against promotion on the individual’s Fourth (Hiibel Judicial Dist. v. Sixth interests.’ legitimate government [Citation.]” Nev., 177, L.Ed.2d (2004) 542 U.S. 187-188 Humboldt Cty. [159 Court of of intrusion 292, has that level 2451].) recognized 124 S.Ct. This court “[t]he a brief vehicle is inconvenience involved in stop of personal privacy street,” on a than search’ ‘embarrassing police public less considerably [an] “ of traveling of vehicles regulation capable and that ‘in light pervasive a reduced of individuals have generally expectation on the highways, public thoroughfares.’ a vehicle on while driving public [Citation.]” privacy 8, 1078, P.3d 136 (2006) 38 Cal.4th 1087 Cal.Rptr.3d v. Wells (People [45 810].) sense, v. Terry standard of the reasonable suspicion
Even in a general 889, a S.Ct. is not (1968) particularly U.S. 1 L.Ed.2d 88 Ohio 392 1868] [20 instead, one, is, than of wrongdoing less “considerably proof but demanding (1989) (United v. Sokolow States a of evidence.” by preponderance 1, 1, 1581].) S.Ct. “In reviewing propriety U.S. 7 L.Ed.2d 109 490 [104 conduct, studies dealing not have available empirical an officer’s courts do behavior, we cannot reasonably inferences drawn from suspicious with officers where or law enforcement from certainty judges demand scientific Thus, must be based reasonable suspicion the determination of none exists. (Illinois behavior.” v. and inferences about human judgments on commonsense 570, 119, 673].) 120 S.Ct. 124-125 L.Ed.2d (2000) 528 U.S. Wardlow [145 innocent Further, has explained, possibility as the court high repeatedly not necessar a officer does the factors relied upon by police for explanations activity. of criminal a suspicion reasonable ily preclude possibility 740, 266, L.Ed.2d 122 S.Ct. 274 (2002) 534 U.S. (United States v. [151 Arvizu Terry] of acts ‘perhaps each of the series (Arvizu) [“Although [in 744] that, ‘warranted further itself,’ taken together, they we held innocent in that Sokolow, that factors ”]; [holding U.S. at 490 9 supra, p. investigation.’ gave travel” collectively consistent with innocent themselves were “quite 354, 11 Cal.4th Glaser see also People rise to reasonable suspicion]; conduct is consistent P.2d person’s 373 902 Cal.Rptr.2d 729] [“that [45 of reasonable defeat the existence not necessarily behavior does with innocent of innocent is not the absence What is required to detain. cause [Citation.] which, taken facts and articulable the existence of ‘specific but explanation, facts, warrant reasonably from those rational inferences with together ”].) intrusion.’ In whether a determining search or seizure was a supported “ reasonable of criminal suspicion ‘the relevant activity, is not inquiry whether conduct is particular “innocent” or but the “guilty,” degree ” that attaches to suspicion (Sokolow, of noncriminal particular acts.’ types Indeed, 10.) U.S. at supra, the United States Court has p. Supreme acknowledged by allowing to act based conduct that police upon “ambiguous of an susceptible innocent the court in explanation,” Terry (Wardlow, “accepted] risk officers may innocent stop people.” supra, 125-126; see, U.S. In re pp. e.g., Raymond C. 45 Cal.4th 306-308 P.3d officer had [police reasonable 810] to conduct a suspicion traffic on a vehicle no rear stop license displaying or a plate window, temporary in the operating permit rear despite circumstances that the vehicle otherwise was driven being in lawful manner and there was a temporary permit window].) front case,
In is, present relevant facts—that aside the setting irrelevant issue of Officer Wightman’s beliefs subjective justification for the stop—are follows. When Officer first Wightman *43 observed the Ford Fairmont at the Streets, intersection of Main and Garden exterior, its area, unlike other cars water, traveling was beaded with it had although stopped raining hours before. A reasonable officer could from this suspect circumstance that the car had been until parked nearby fairly Officer recently. Wightman knew that in the immediate area were a number of car that had dealerships vehicle reported tamperings, burglaries, Indeed, and thefts in the preceding months. the Ford to dealership adjacent that intersection had the reported theft of a vehicle one week approximately earlier. It was on a midnight Tuesday, when relatively few are persons working or otherwise from away home and hence when vehicle thefts from a car more dealership readily might be committed. Officer Wightman, following car, Fairmont in his marked observed that after the patrol vehicle entered (at that highway a it point freeway), accelerated to a of 40 speed only hour, limit, miles well per below the and traveled at that speed for speed mile, is, one approximately for more than one minute. In these circum stances, a reasonable officer might the driver of the suspect car was attempt to avoid contact ing with the (See U.S. v. police. (5th 1998) Villalobos Cir. 285, 161 F.3d 291 deceleration in the of a car presence [“noticeable patrol can contribute to reasonable even drivers often suspicion, though slow when see they law enforcement U.S. personnel”]; (10th 1994) v. Cir. Lopez-Martinez 25 F.3d 1486 a [“maintaining slow noticeably of speed presence officer police .”]; . may suggest nervousness . v. People Gibson 220 Cal.App.2d Cal.Rptr. fact that a driver [33 at a proceeds 775] [“The slower than the speed limit under speed circumstances where he might at the normally proceed higher also is a factor speed an appearing justify officer’s We investigation.”].) therefore conclude Officer Wightman pointed that, facts considered in specific light totality articulable circumstances, or both of “some manifestation” that one objective provided activity, the individuals in the Fairmont have been involved criminal may automobile, theft of avoid including attempting apprehension. that, contend, diminish the Defendants to various details point facts above. For Officer nature the articulable listed suspicious example, learned traffic that the had not been had to the Fairmont Wightman stop prior (not to a registered person dealership). stolen was reported private on the might highway also assert that the car have been traveling Defendants difficulties, at of mechanical made apparent a slow because speed unsafe road the sound of the engine “running rough,” possibly officer by had because the night, because of the rain that fallen earlier or conditions when the an reduction in limit speed driver was anticipating upcoming above, however, ended. As such innocent possible expla mentioned freeway do that it observations conclusion nations for officer’s preclude afoot. for the that criminal suspect activity reasonable officer “ ‘Indeed, is to resolve [police] investigation function principal in fact . ..’ illegal. whether is very activity legal establish ambiguity 224, 233 9 Cal.4th (People [Citation.]” Souza Arvizu, 982]; totality-of-the- see also 534 U.S. supra, p. P.2d [the under a “divide-and-conquer analysis” circumstances standard precludes that are to an innocent explanation which factors “readily susceptible [are] Moreover, the cited case ”].) to ‘no several weight’ present entitled A reasonable do not of criminal suspicion activity. circumstances undercut surmise that the Fairmont Officer circumstances Wightman’s might officer in *44 minutes, time the dealerships had within the at a when been stolen previous , be and that therefore it would were closed and most were asleep, persons theft, it to the owner had the let alone reported police. the discovered unlikely not to a did The that the Fairmont registered private person circumstance might taken a dealer dealership—the it could not have been from that signify records, the or not the yet ownership have it and recently purchased updated There was no evidence car have been at the for dealership repairs. could (as cars that the roads opposed parked at the presented hearing suggesting be the it would area) wet or unsafe to where point in the downtown freeway significantly on the at a for a driver travel necessary prudent of the Fairmont’s engine, to the performance reduced as Similarly, speed. that the did not indicate to him that its sound Officer testified Wightman hour a than 40 miles per of achieving speed greater vehicle was incapable to the no evidence on the defendants presented it was traveling highway, addition, that driver of it might In although appear contrary. streets driving city when on the had been to avoid officer trying
Fairmont officer in these circumstances a reasonable freeway, entering before on the freeway nonetheless that at a slow traveling speed might suspect reflected an avoid contact with driver to attempt police. reasons,
For these we conclude trial court found that properly that, Officer was aware articulable facts in their viewed Wightman specific that the of the Fairmont totality, reasonable supported occupants suspicion be might activity, criminal his action engaged justifying stopping stated, vehicle. As the United States Court brief has Supreme stop “[a] individual, in or to suspicious identity order to determine his maintain the information, status while more be most quo momentarily obtaining may (Adams reasonable in of the the time.” facts known officer at light 612, 1921].) Williams 407 U.S. L.Ed.2d 92 S.Ct. The [32 trial court denied correctly defendants’ motions to the evidence suppress obtained as a of the result vehicle stop.
4. Denial Sever Motions to Trials the Guilt Defendants’ (Letner, Phase Tobin) Each defendant filed a his trial motion to sever at the pretrial guilt defendant, from of the phase that other that their defenses be arguing would antagonistic and that their be rights constitutional to confrontation would violated by the admission of their statements each incriminating (See other. Bruton v. States United U.S. 123 L.Ed.2d 88 S.Ct. [20 1620] nontestifying extrajudicial codefendant’s statement incriminates [a both inadmissible]; himself or herself the other defendant is v. Aranda People (1965) 63 265].) Cal.2d 518 407 P.2d As defendants Cal.Rptr. observed, made Tobin to his Jeanette statements mother and Mayberry murder, he admitting was at house on the Pontbriant’s but night unharmed, he left before Letner and at a time asserting when Pontbriant was whereas Letner asserted in the letters written Danny to inmate Payne, Johnson, Hernandez, Pike, statements made to investigator Robert and Leo that Letner was when killed Tobin Pontbriant. trial court denied present motions, the severance with the be understanding would not prosecutor permitted to introduce statements an Aranda/Bruton posed problem. Defendants contend denial of their motions appeal abuse of discretion that violated their statutory rights, as well their state and federal constitutional rights.10 *45 ‘When
“Section 1098 two or more provides pertinent part: offense, defendants are or charged any with whether jointly public felony 10 Letner, pretrial Tobin a penalty phase also filed motion to sever his trial from that of and points during penalty During renewed that at several the phase. presentation motion witnesses, penalty phase Letner also made oral motion to remainder penalty sever the of the phase appellate challenges trial. Defendants’ to the trial court’s denial of those motions is discussed, post, II.C.l. part 150
misdemeanor, must be tried unless the court they jointly, separate order[s] Our has a for trials.’ joint trials.’ thus Legislature ‘expressed preference discretion, But the court in its order trials ‘in may, separate [Citation.] confession, of an with incriminating face association codefend- prejudicial counts, ants, on confusion from evidence likely resulting multiple conflicting defenses, that give or the at a trial a codefendant would separate possibility We trial court’s denial of a exonerating review a testimony.’ [][] [Citations.] they for abuse of based on the facts as severance motion discretion appeared time the on If the at the court ruled the motion. court’s joinder [Citation.] made, a may at the time it was a court reverse ruling reviewing proper ‘ that “resulted in unfairness’ only showing joinder ‘gross judgment ’ ” to a denial of due Avila 38 Cal.4th amounting (People v. process.” 1, 491, (Avila).) 574-575 P.3d 133 Cal.Rptr.3d 1076] [43 abused its To extent defendants contend trial court discretion severance, defense cases were not so by finding conflicting require “ ‘ it observed was a “classic Initially, are incorrect. must be that this they ’ ” trial, for a because defendants with the charged case” joint mutually crimes from the same events. v. and Marlow (People same arising Coffman 710, 1, (Coffman).) 34 Cal.4th 40 96 P.3d Cal.Rptr.3d 30] [17 to fix blame on each other might attempt circumstance that Letner Tobin “If the fact of conflicting did not itself trials.11 require separate trials, it would negate defenses alone antagonistic separate required to be for trials and trials ‘would legislative joint separate preference appear ” 86, (1992) 2 Cal.4th in almost case.’ mandatory every (People Hardy P.2d concluded that a 781].) Accordingly, we have Cal.Rptr.2d [5 court, severance, conflict abuses its discretion when the only trial denying alone demonstrate to the that are guilty. between will If, instead, against moving “there exists sufficient evidence independent defendant, or her it is not the conflict alone that demonstrates his guilt, do not severance.” 34 Cal.4th (Coffman, supra, defenses antagonistic compel 41; (2008) 44 see v. Carasi Cal.4th 1297-1298 People also p. ‘ is where “the only P.3d trial joint prohibited 616] [“a irreconcilable, defenses are and the jury conflict is so prejudicial [the] that both infer that this conflict alone demonstrates will unjustifiably [defend ’ Avila, 575-576.) ”]; Cal.4th at supra, are guilty” pp. ants] 11 observe, however, establishing guilt of rely upon did not We Tobin’s defense Letner, departed and that Tobin but instead that the victim was unharmed when Tobin asserted knowledge to her. subsequently happened no what had testify guilt at the ultimately Letner chose not We also observe that the circumstance that murder, instead attacked the did accuse Tobin of the but of the trial—and therefore phase not affect our resolution contention sufficiency of the evidence—does prosecution’s court denying pretrial motions. The trial court its discretion in severance abused it, clearly open the the record before which left necessarily ruling upon based its properly having murder. might accuse committed the that Letner Tobin possibility *46 sever, on the the
When the trial ruled in the case motions to court present evidence before at the testimony hearing— it—the presented preliminary demonstrated not that the conflict between the defenses alone was potential that to lead the reach The evidence likely guilty to verdicts. established jury both a car defendants knew Pontbriant was alone at her house and possessed and the cash for the rent. Both defendants were found out of town in traveling murder, victim’s car on the in and their were found night belongings the trunk. both of where They accounts were provided conflicting going. inside, car, the their and They abandoned subsequently possessions leaving Moreover, fled. evidence the forensic discovered at scene and in the victim’s car in the both toward each defendant’s involvement pointed Finally, murder. defendants made the statements from self-incriminating (apart defendant). excluded the of the statements that incriminated other As portions People Turner in P.2d Cal.3d Cal.Rptr. 669], in which no in we found abuse of discretion trial of permitting joint defendants, trial when the court ruled on motions to sever case, was faced present “the court with two men with charged [a] murder[] under which all circumstances the events surrounding crimes reasons, ultimate arrests involved them did jointly.” For these the trial court not abuse its by denying discretion their to sever. motions
To the extent defendants assert that grounds additional presented trial court demonstrate the trial resulted joint amounting unfairness gross law, a denial of due we are not process persuaded.
Both severance because the urge prosecution required one, trial to a weak take employed joint join case with and to strong of a association” We advantage between two defendants. “prejudicial disagree. each defendant Notably, against asserts the evidence him was weak conclude, evidence compared his codefendant. We stronger against however, was, that the evidence each defendant at presented against trial general, similar weight. strengths weaknesses the prosecution’s nature, witnesses, its circumstantial case—considering credibility and the force of the evidence—for the most were the for physical part same both say defendants. We cannot that the of the evidence quantity quality one implicating defendant to the other was so dissimilar that the compared convicted jury likely both defendants based of the evidence strength upon against one of only them.
Similarly, we do not discern reliance any inappropriate upon prejudicial nature of the association between the two defendants. Defendants observe it acknowledged to the was difficult prosecutor point evidence that established the each defendant definitively role of in the crimes Pontbriant, committed but the nonetheless that the against argued prosecutor *47 152
evidence, defendants’ of close demonstrated history friendship, they including that reject argument were We defendants’ contention this equally culpable. to the to consider association”—an “guilt by improperly appealed jury that could been avoided severance of defend consideration have improper trials.12 will involve ants’ A association severance prejudicial justifying the defendant make it circumstances in which evidence one regarding might and, further, convict more charges the would that defendant likely jury find a the between the two guilty codefendant based likely upon relationship (See than evidence the codefendant. implicating rather the upon separately 23, (1964) v. 231 Chambers 29 People Cal.App.2d Cal.Rptr. 551] [41 that defendant fastened with vicarious [concluding respon the “was probably codefendant],” the of and that the for sibility long-continued brutality [the the defendant based a “notion moral likely upon joint convicted jury (1967) than Massie 66 Cal.2d guilt]; People rather v. responsibility” personal 899, 733, [citing & 428 P.2d Chambers 917 fn. 19 Cal.Rptr. [59 869] sever warranting association with codefendants” concerning “prejudicial 290, ance]; (1961) v. People Biehler 198 298 Cal.App.2d Cal.Rptr. 862] [17 the mass as was had in the instant case are vices inherent in a trial such [“the the find more guilty charged will one or defendants as danger jury .”]; . v. People Cummings of his with evil men . see also because association 796, 1286 850 P.2d Cal.4th Cal.Rptr.2d 1] [“Since [18 murder, in of the robberies and the crime several partners factor.”].) with a is not a association codefendant prosecu prejudicial was and Tobin the case—that it Letner argument tion’s present probable concert, not an history appeal because had a so—was doing acted association, argument but rather was based guilt by proper upon to find it heard. the draw from the evidence had jury reasonable inferences could Cal.4th (Cf. People Champion 921 of defendants’ introduction of evidence P.2d prosecution’s 93] [the to prove “guilt by in a criminal street was gang attempt membership association”; evidentiary “formed a significant evidence of gang membership Moreover, the crimes”].) link jury in the chain of them to tying proof that it must was at conclusion the guilt phase instructed repeatedly and reach a evidence each defendant verdict consider separately against him. Although the evidence admitted against to each based solely upon are is instructions of trial that such “reality Letner asserts the practice” ineffective, these (Coffman, supra, we followed instructions. jury presume 43-44.) gross did not result in argument The prosecutor’s 34 Cal.4th pp. rendered following aside verdict setting unfairness would warrant trial. joint 12 trial, object during prosecutor’s defendants did not We also observe that jury required example, a reminder argument request an admonition—for noted, however, post, (As guilt. defendant’s separately question each
consider instructed). ultimately was so
Letner also that severance because Tobin acted as a required asserts “second burden its prosecutor,” reducing prove thereby prosecution’s Letner, against case as well as Letner’s adversely affecting ability present own his defense. For the most this claim be a variation of the part, appears *48 we claim have the for severance already necessity rejected, becaúse of conflicting defendants’ defenses. Tobin’s allegedly presentation evidence to did the tending incriminate Letner not lessen prosecution’s burden, or in result unfairness to a denial of due gross amounting As process. we have there because was sufficient explained, independent evidence guilt, conflict between defendants did not lead itself to Letner’s by conviction, and therefore severance was not required.
Further, the record does not confirm Letner’s contention appeal he that chose not to at the of a testify guilt because concern related to phase trial; his Letner and joint his offered for this attorney ambiguous explanations addition, decision.13 In the assertion that Letner chose not to because testify he was tried with Tobin jointly is contradicted Letner’s by penalty phase that testimony the reason he did not at the was that he did testify guilt phase want not to have a “rat Even if jacket” the record established that prison. Letner chose not to because of some concern testify related to his trial joint Tobin, with that, Letner does not offer any authority his claim supporting trial, of the despite proper joinder strategic decision he was to required make between testifying silent resulted in a remaining gross unfairness amounting to a denial of due process and other him respects denied his “ observed, constitutional As rights. we have ‘The criminal ... is process with situations replete “making of difficult requiring judgments” which course to follow. a defendant Although have may right, [Citation.] dimensions, chooses, even constitutional to follow whichever course he ” Constitution does not that token by forbid him always to choose.’ requiring (People Caro 1035, v. 757, 46 Cal.3d 761 P.2d Cal.Rptr. [251 McGautha [quoting 402 U.S. L.Ed.2d 680] California 1454]].) 91 S.Ct. Similarly, Letner’s contention that held jury against him his failure to testify guilt even phase, though trial court so, instructed the not to do lacks any in the record. support 13 counsel, According to testify his Letner’s decision “is the decision reached evidence, defendant as a result of the of the regard state and the evaluation and with Court, possible impeachment testimony might brought which rights be before the His with [f] regard to testifying have been explained to him. He feels testifying uncomfortable at this [f] stage, due to the joint fact it is a trial. Due fact may may some evidence or not be trial, may admissible in this trial that single have been in a admissible He wishes—he’s [f] [|] always moved for purpose, testify. way so that he could things But the turned have out case testify.” this he’s chosen not to stated, testify Letner they “the reason I didn’t promoted because all these And liars. Q] there, get up they’re just I going to hear all this stuff.” sum, In failed court abused its defendants have to demonstrate that trial their to sever their trial on the issue of denying joint discretion motions trial, when consid- joint Nor have shown guilt. any aspects amounting ered resulted in unfairness separately cumulatively, gross denial of their to a reliable due or a violation of constitutional process rights and individualized verdict. (Letner) Dire Jury
5. Use Brace Restraints Voir Leg During court, 1989, the trial concluded indi- On November Monday, having dire of vidual voir dire of the voir those jurors, began group prospective had not been excused. Before proceedings began, who prospective jurors that, however, defendants for the first time during proceedings, objected *49 leg the the two defendants to wear brace sheriff’s had deputies required told the sergeant restraints under their A with the sheriff’s office court pants. Letner, the because normal wearing that had concerns while security deputies restraints, inmate, to assault another and both defendants had attempted had (We the been seen martial arts kicks in exercise also jail’s yard. practicing that, above, while being note described Letner had from custody escaped the The found that extradited California to face trial court charges.) to present restrictive, be easily the did not to could not leg unduly braces be appear seen, The court “not to create likely any possibility prejudice.” to the it “defer” to the decision deputies’ apply stated therefore would restraints. the trial court noted
The after the had been following day, jury empanelled, the use of day permitting for the record that after its the ruling previous restraints, The had was unusable. court leg damaged Tobin’s brace been no it had determined that other restraints should be imposed, stated the not be for the remainder of trial. therefore defendants would restrained the brace leg on that him wear appeal requiring Letner contends 20, 1989, and federal under the state rights on November violated his counsel, and to a present due to the assistance of Constitutions to process, “ rule is that is defense. His contention unpersuasive. applicable ‘[a] kind in the be restraints any defendant cannot subjected physical a showing there is a unless jury’s presence, courtroom while imposition physical for such restraints.’ ‘The manifest need [Citation.] a threat of a of violence or the absence of record showing restraints. constitute an will be deemed to nonconforming other conduct violence or Constitution, the federal Under abuse of under state law. discretion’ [Citation.] defendant, wear without justification, a ordered a adequate where court a reason the the state must prove beyond were seen by jury, restraints that the did verdict. not contribute shackling able that the unjustified doubt ‘The trial court not to law enforcement the may delegate personnel [Citation.] Ervine a v. (People decision whether to shackle defendant.’ [Citation.]” (Ervine).) 47 Cal.4th 220 P.3d [102 820] Letner’s there no evidence in the contrary, is Despite speculation record that of the were able his any leg to see brace. prospective jurors Indeed, court, trial during record settlement found that the proceedings, addition, brace was not leg visible to In Letner was prospective jurors. restrained on to that on day jury which the and it is prior empanelled, unclear how if many, any, jurors who served ultimately jury would seen the have brace day. contends, however, court’s decision in Deck
Letner
that under the
high
Missouri
2007],
There also is no in the evidence record that the brace so leg was physically or restrictive uncomfortable his ability Letner’s assist in attorney voir dire of the conducting was Letner’s reliance prospective jurors impaired. v. Mar our decision in People upon (2002) 28 Cal.4th claim, (Mar), in 52 P.3d of of support this his is aspect unavailing. 95] First, belt,” that case concerned the use of a a “stun device worn around the “ waist, 50,000-volt defendant’s of ‘an capable delivering eight-second, elec tric if a shock activated remote by transmitter which is controlled officer. The shock attending enough contains to immobilize amperage and muscular person temporarily cause weakness for 30 to 45 approximately minutes. The wearer is knocked to the the generally shock and ground by shakes Activation cause uncontrollably. may also immediate and uncontrolled urination, and the defecation and belt’s metal leave welts on the prongs may wearer’s skin long as as six months to heal. An requiring jolt electrical of this magnitude causes and debilitating may cause some wearers to temporary pain ” (Id. 1215.) at is suffer or seizures.’ There no irregularities heartbeat p. the created a remotely evidence that brace worn Letner leg comparable humiliation, ability level and such that Letner’s injury, of potential pain, might in the trial have been proceedings similarly concentrate participate the adverse concerning any possible affected. sole evidence in record trial of brace Tobin’s statement court the effect the was physical brace “very” he wore was uncomfortable. witnesses, defendant, in Mar
Second,
including
credibility
issue,
stated
the stun
wearing
was
and the defendant
record
key
added
think
and that it
clearly
significantly
belt “made it difficult for him to
was
to his
the trial
that defendant
nervous
anxiety,
transcript
confirm[ed]
Mar,
(Mar,
supra,
1224.) In
trial.”
28 Cal.4th at
p.
while
testifying
therefore,
could
affected a critical
aspect
use
the stun belt
have
whether
defendant was
defense case:
jury’s perception
case,
no
his
In the
there is
evidence
testimony.
truthful
in
present
in any
was affected
record
that Letner’s
demonstrating
ability
participate
brace,
(a
single
his
wearing
proceeding
question
manner by
leg
dire)
voir
of the same critical
to Letner’s
importance
day
jury
defense in Mar.
in his
the defendant’s
own
testimony
participation
erred by
to conclude that
the trial court
even were we
Accordingly,
of the leg
to the sheriff’s
use
deputies
permitting
“defer”
choosing
(Ervine,
error was
harmless.
any
plainly
brace for one
of the
day
proceedings,
supra,
of a
shackling
defendant
is
unjustified
B. Guilt Phase Evidentiary Rulings Erroneous Assertedly
1. *51 TobinAs Against Admission Letner’s Statements a. of (Tobin) Admissions Adoptive by admitting against trial abused its discretion Tobin contends the court him when the officer Wightman, Letner to Officer the statement made car, was “taking [my] that Letner the vehicle of Pontbriant’s stop conducted court, asserts, that the statement was he did the trial friend home.” Tobin as Code,14 that there was an the Evidence under section 1200 of hearsay 14 as “evidence of a hearsay that evidence—defined provides Code 1200 Evidence section that testifying hearing the is by a while at that was other than witness statement made by law. except provided as the stated”—is inadmissible prove offered the truth of matter to foundation the to applicable
insufficient for it under admitting exception Evidence section 1221.15 As the admissions” under Code “adoptive prosecu- trial, however, trial not tor and the court observed the statement was or an and therefore whether not it constituted admission” hearsay, “adoptive he under the statute is of moment. statement was “taking no Letner’s home” Mend was not offered to that Tobin [my] “adopted” demonstrate asserted, rather, lie, truth of the matter but because the statement was a of statement guilt. demonstrate consciousness This false was relevant because (and evidence), it was made could infer its from other and not jury falsity because it was a true statement statement. Because the was not inadmissible rule, under the it to establish it fell within hearsay whether unnecessary v. Curl (See, e.g., People hearsay rule. adoptive-admission exception 537, Cal.4th 207 P.3d Cal.Rptr.3d [93 2] [the Code, inconsistent-statement hearsay under Evid. 1202 does not exception § to a statement for admitted of apply nonhearsay showing purpose of People Noguera guilt]; consciousness Cal.4th 624-625 1160].) 842 P.2d The Mai court did not err by overruling Tobin’s objection. Tobin
Although has failed articulate the either in the point adequately trial court the statement should have admitted appeal, arguably been as Letner’s, Tobin’s, evidence only guilt. consciousness of Mai view, court touched on the subject, noting in its the statement’s admissi- fact,” Tobin bility against was a and the “question court offered to instruct “when can somebody be deemed to or not adopt adopt admission like that if one.” you want No instruction given such during Officer Wightman’s or at testimony the conclusion of the Even guilt phase. Tobin did not assuming forfeit claim that trial court failed erroneously Letner, to instruct jury the statement could be considered only we conclude that any error was possible Wightman harmless. Officer also testified that Tobin told himself Tobin home Wightman they taking the house on South Crenshaw where he resided with woman named Jeanette, it although was established at trial that Tobin had not resided there
for some time. had before it evidence Accordingly, similar from Tobin himself revealing consciousness potential guilt.
b. Cross-examination Tobin Regarding Property Stolen (Letner, Tobin) Mai, Prior to trial informed the court it intended to prosecution present evidence that Letner had stolen a local indicating from beauty parlor bags *52 15 “[ejvidence provides Evidence Code section against that of a statement offered a party not the by hearsay is made inadmissible rule statement of which party, if the is one the thereof, knowledge with of the content other adoption has words or conduct his manifested or his its truth.” belief in after the The of found in Pontbriant’s car murder. beauty products prosecutor the that the theft of items was relevant to establish that defendants had argued the with the car in to to sell them to raise items them in order brought attempt of this for their Defendants admission evidence money escape. objected that on the it constituted irrelevant “other-crimes” evidence ground improp- would were the of individuals who committed erly imply type The such as the offense in the case. trial court burglaries, charged present demonstrate, that the would admissible to as the prosecutor ruled evidence be consciousness of reflected in a facilitate defendants’ guilt argued, plan The of this admitting court found that the effect possible escape. prejudicial was in view the nature and advised that it charges, evidence of of slight instruct the that the evidence was admitted for a limited would jury purpose.16 case-in-chief, testified that the Mayberry Jeanette During prosecution’s Letner, he and that he told her stole the bags beauty belonged products from a in Visalia. a the trial court refused objection, items store defense Upon that he but admonished the “as to whether stole testimony to strike these, not an before shouldn’t you, you or didn’t steal them is issue or of the crimes guilty guilty consider that to whether are not [defendants] no other evidence which are they charged.” prosecution presented with its case-in-chief. during the stolen concerning beauty products examination, that knew the bags his Tobin testified he During direct He also testified on had been Pontbriant’s car. beauty products placed house that on South night direct examination after defendants spent Crenshaw, to go to the car but Tobin “didn’t want Letner wanted to return cross-examination, Tobin number near the car.” On asked prosecutor initial In to an question beauty products. response questions answered, items, he Tobin Letner had said had stolen whether regarding have,” he Letner had told after more stated “He but several may questions “hot,” had been stolen. Neither items were meaning him only Later, on cross-examination objected prosecutor’s questions. defendant Letner drove onto highway, Letner’s Tobin testified when attorney, inside the stolen items regarding of his concern Letner hoping—because 16 has guilt phase: “Evidence gave at the conclusion The court such instruction for he is on a crime other than that which showing that a defendant committed introduced been received, evidence, believed, may by you to not be considered if trial. Such [5D character, disposition to commit or he or she had person is a of bad prove defendant received, by you only for may be considered evidence was crimes Such ....[$ two, show, one, flight, to facilitate determining if motive for purpose it tends limited flight from crime.”
159 the vehicle—that the car would them.17 Tobin also police stop following did to testified that the reason” he not wish to return Pontbriant’s car “major inside, the stolen were and thus he and was because still beauty products Letner decided to abandon the vehicle.
On defendants contend that the trial court erred appeal, by permitting the to the Tobin been prosecutor question beauty having products stolen, and that the admission this violated defendants’ constitu testimony tional assert that defense counsel rights. Initially, incorrectly elicit that objected knowledge to the to Tobin’s the questions seeking beauty been had stolen. To the both defense products contrary, attorneys objected when—after on from the issue of the only moving knowledge Tobin’s stolen, items were and Tobin the that also toolbox questioning regarding asked, found in Pontbriant’s car—the Letner “Would Richard take prosecutor stolen items meet sell them The trial court swap regularly?” sustained objection. this Defense counsel when the again objected prosecutor later where the tools sold defendants at the meets came inquired swap from, and those sustained. objections again were Defendants therefore for feited their appellate challenges regarding beauty stolen products by v. Ledesma (People failing during examination. object prosecutor’s 641, (2006) 326, Moreover, Cal.4th 657].) 140 P.3d Cal.Rptr.3d [47 even that defendants’ assuming objections to the offer of pretrial prosecutor’s the stolen in proof concerning constituted an limine beauty motion products nature, to exclude evidence of this defendants were to renew their required trial, at when the would objection trial court have the to evaluate opportunity their in (People Brown objections light of the actual evidence presented. (2003) 31 Cal.4th 73 P.3d general 1137] [“[t]he rule is that ‘when an limine ruling evidence is admissible has been made, the seeking exclusion must at such time as evidence is party object offered to for actually issue of a preserve appeal...’”].) requirement case, is contemporaneous objection especially applicable present because to trial defendants prior objected prosecution’s presentation case-in-chief, the evidence its testimony challenged appeal case, elicited in the course of Tobin own cross-examining his defense during (1) his on direct examination that he following testimony establishing knew car, had (2) been Jeanette beauty Mayberry’s products placed stolen, indicating the items trial court’s testimony admonition to consider with Mayberry’s testimony regard v. Morris the thief. (People identity 53 Cal.3d 190 [279 17 Tobin, “Now, those, asked Counsel also as to whether or not that’s not an stole [Letner] answered, you they . today, issue But . . believed that were stolen After Tobin property?” [f] “Yes,” him, least, [Letner], “And property, counsel asked believed were stolen as far as answered, you again knew?” Tobin “Yes.” *54 motion, P.2d in limine a without Cal.Rptr. contemporane 949] [an trial, at is an for ous sufficient to objection preserve objection appeal only “(1) when a for exclusion is and legal ground subsequently advanced specific raised the directed to a identifiable on motion is appeal; particular, body evidence; (3) the time trial of and motion is made a before or when during the trial can determine the in its evidentiary question appropriate judge Indeed, context”].) one conclude Letner and Tobin reasonably might purpose cross-examination, to in the fully object hope chose not to the prosecutor’s of the stolen character of the items to defendants using why evidence explain house, (rather drove onto the than to Pontbriant’s where highway they them, when followed were to store their the officer purportedly belongings) (and and abandoned the car their on the side the belongings) why they road traffic the challenge after the Because defendants stop. appeal argu of Tobin’s based their admissibility testimony primarily pretrial upon to ments the trial court’s and because their failure to the ruling, object and the denied the cross-examination testimony during prosecutor opportunity the in to admission in of the state of evidence at that the light point its justify trial, the the trial to decide this issue in first and denied court an opportunity event, instance, claims are In based the record before any their forfeited. upon us, the its the by allowing we cannot conclude trial court abused discretion Tobin a that Tobin in subject brought up to prosecutor question his 14 Cal.4th testimony. (People Mayfield own P.2d can a explore (Mayfield) [cross-examination 485] and, the detail than direct greater testimony, defendant’s testimony wide].) is very the of cross-examination general, scope permissible Assertedly 2. Evidence Insufficient case-in-chief, moved
At of the defendants pursuant the close prosecution’s to forcible attempted rape, robbery, to section 1118.1 dismiss the charges related circumstance based allegations, upon and the burglary special the motions. The trial court denied On evidence. alleged insufficiency of the evidence. sufficiency renew their challenges appeal, below, is to we the evidence sufficient support As discussed conclude allegations. circumstance findings special convictions and regarding the convictions and sufficient to sustain all of Because there was evidence death must be vacated if that their sentences findings, defendants’ contention circumstance is reversed also findings the convictions or any one of special fails.18 18 by denying that the erred their appeal To defendants contend on trial court the extent case-in-chief, this contention prosecution’s at the motions made conclusion of acquittal for presented the evidence explain, upon solely our review
is without merit. As we shall based case-in-chief, jury’s verdicts on support evidence is sufficient prosecution’s the motions Accordingly, properly the trial court denied for charges allegations. all of contend that have been sentenced initially
Defendants
because
death,
Amendment
we are
United States
Eighth
required
claims,
Constitution
review to their
rather
“heightened”
a
standard of
apply
cases,
than the standard
routinely
we
both
apply
capital
noncapital
which
entire
light
is “review
record in the
most favorable to
[of]
is,
to determine whether
it
evidence—that
judgment
discloses substantial
reasonable,
credible,
evidence that
solid
is
and of
value—from which
reasonable trier
could
defendant
of fact
have found the
guilty beyond
*55
v.
1158,
Cole
Cal.4th
(People
(2004)
reasonable doubt”
33
1212
[17
532,
811]),
the
the
95 P.3d
in
of
Cal.Rptr.3d
“presuming]
support
judgment
existence
deduce
reasonably
of
fact the trier could
from the evidence”
every
978,
1,
v.
68]).19
(People
(2000)
23 Cal.4th
5 P.3d
1053
Cal.Rptr.2d
[99
Kraft
Defendants are
As the United
Court
held in a
mistaken.
States
has
Supreme
context,
similar
“the
of federal
standard
review for determin
[constitutional]
whether
ing
a state court has violated the Fourteenth Amendment’s guarantee
against
of
is
wholly arbitrary deprivations
liberty
equally applicable
the
safeguarding
Amendment’s bedrock
the
Eighth
guarantee against
arbitrary
(Lewis
or
v.
of the death
capricious
(1990)
imposition
penalty.”
Jeffers
764,
606,
497 U.S.
L.Ed.2d
782
110 S.Ct.
the standard
[applying
[111
3092]
v.
560,
Jackson
established in
Virginia
(1979)
U.S.
443
307
L.Ed.2d
[61
2781],
99 S.Ct.
to federal constitutional
of the state
of
finding
review
court’s
in a
aggravating
case].)
circumstance
As the
capital
high court observed
Jeffers,
is,
the
the
a
of
facts to the law at
state court
the
application
trial—that
determination of
the
whether
evidence is sufficient to sustain the charges—is
law,
a
of state
question
to the extent
the
of
except
determination
sufficiency
issue was
or
under the
arbitrary
federal due
capricious
process
or cruel and unusual
clause. The
of
punishment
application
state law
the
of the
determining
sufficiency
evidence will be considered
and
arbitrary
violation,
and
a
capricious,
therefore
federal constitutional
“if and
if no
only
reasonable
fact
supra,
sentencer
could
concluded.”
(Jeffers,
have so
[or
finder]
We also for the observe most the part, dispute persuasive them, value of the evidence that was admitted to various against pointing and inconsistencies in the of several inadequacies witnesses and testimony evidence. our limited In role on even physical appeal, “[conflicts which testimony is do not subject justifiable the reversal suspicion justify (See (2008) 1269, People acquittal. 295, v. Harris Cal.Rptr.3d 43 Cal.4th 1286 P.3d [78 185 1118.1, a judgment acquittal 727] [“On motion for under applies section trial court standard appellate reviewing sufficiency evidence.”].) same as an court of the 19 cases, capital reviewing In this apply sufficiency we same standard in of the evidence supporting (People special findings. both the and the v. Rowland convictions circumstance 238, 377, 897].) Cal.Rptr.2d 4 Cal.4th 841 P.2d [14 a it trial for the exclusive judgment, province judge is of a witness and the truth or of the facts falsity upon determine credibility credibility which a determination We resolve neither depends. [Citation.] conflicts; look for substantial evidence.” (People evidentiary issues nor we 561, Further, 342, 1].) Maury (2003) 30 Cal.4th 68 P.3d Cal.Rptr.2d [133 “if findings, may the circumstances reasonably justify jury’s judgment be might reasonably be reversed because circumstances also simply 107, (People v. Farnam reconciled with 28 Cal.4th contrary finding.” 988].) we do 47 P.3d need not—and Accordingly, evidence, all of or their not—address defendants’ assertions of conflicts theories that should been drawn alternative inferences have regarding evidence. from the the evidence for rational trier fact
In sufficient general, presented evening Ivon was murdered in her residence during find that Pontbriant at her home March that defendants arrived Tuesday, hours alive together while she was from the house together night departed *56 challenges her car after she was murdered. Defendants’ focus upon evidence) what (or of the evidence the asserted lack of to establish adequacy is, the evidence occurred while were at the victim’s house—that whether of defendants to enable the to find that each the two jury sufficient commit, of, commission and did or aid and abet in the intended to offenses, and true the allegations to find related circumstance charged special as to each defendant. Tobin) (Letner,
a. Attempted Rape case- contend the evidence prosecution’s Defendants presented establish that an forcible attempted rape in-chief was insufficient committed, and, which of the defendants even if the crime was committed or an and abettor. We disagree. either as aider participated perpetrator forcible proof “Conviction the crime of rape requires of attempted and of formed the intent to commit crime rape defendant specific act, leading mere a direct ineffectual beyond but performed preparation, The elements of the crime the commission of a toward rape. [Citations.] with a are ‘an act of intercourse accomplished person forcible sexual rape . . . . . . . it is accomplished of the . . spouse perpetrator [f] [w]here [f] force, duress, menace, violence, or fear of will means against person’s (§261, of another.’ injury and unlawful bodily person immediate 76, Rundle Cal.4th (a)(2).)” (People subd. [74 (Rundle).) 224], felony-murder The P.3d fns. omitted 190.2, circumstance, (a)(17), subdivision requires “[t]he section special in, or was engaged the defendant was committed while murder was in, of, of, the commission commission or the immedi accomplice attempted ate after to commit” one or flight committing, more attempting murdered, enumerated At the felonies. time Pontbriant was the law provided that, killer, as to the actual “intent to kill not an element of the [was] circumstance; but when the defendant an aider felony-murder special [was] killer, rather than the actual intent must be before proved abett[o]r trier fact can find the circumstance to be true.” v.Anderson special (People (1987) 43 Cal.3d 742 P.2d 1138-1139 Cal.Rptr. 1306] (Anderson).)20
To summarize the evidence all reasonable inferences in (drawing favor Pontbriant’s was found unclothed for her prosecution), body except brassiere, waist, which was around her and her Her had socks. sweater been bottom, cut at the neck and the rest of the down to the but the ripped way back, sleeves intact. Because her hands were tied behind her condition of her sweater indicated she was bound after been un- having dressed. Her and underwear had fecal matter on them. had pants Pontbriant beaten, been severely several of her hair had been from clumps pulled hairs, head, her head. Several of Letner’s which had been out of his pulled and several hairs that could have been hairs from an unidentifiable pubic donor, were found on Pontbriant’s when her chest was rolled over. body Tobin, Gilliland, Semen that could have been but not Walter deposited by Tobin’s, bedroom, blood consistent with were found in the with a along baseball that contained several cap of Letner’s hairs. A beer bottle was tightly between wedged Pontbriant’s legs, near her This evidence was genitals. sufficient for the to find that jury Pontbriant. attempted rape also *57 could have reasonably found the murder was committed for the of Pontbriant from purpose preventing reporting attempted rape authorities, and had occurred accordingly while defendants were engaged the commission of the or their immediate after commit- attempted rape, flight 190.2, ting (§ (a)(17); crime. subd. 45 Cal.3d People Guzman 915, 467, 917].) 952 755 P.2d Cal.Rptr. [248
Defendants out that there was no evidence of point sexual or activity Defendants, course, trauma on Pontbriant’s genitals. of with an charged not a attempted and thus the rape, absence of evidence that completed rape, Pontbriant actually was does not of raped finding guilt. Further- preclude more, to defendants’ contrary there is no that the suggestion, requirement 1990, murder, 115, subsequent In adopted Proposition modify Pontbriant’s the voters ing liability felony-murder aider-and-abettor under the special provide circumstance to that “a person subject other than the actual killer penalty is to the death or life without if that parole person major was a . .. and either intended to kill or acted participant underlying felony (People v. Cleveland with reckless indifference to human life.” 32 Cal.4th 752 [11 190.2, 302]; Cal.Rptr.3d (c) (d).) 86 P.3d see subds. § & Nonetheless, was unsuccessful.21 establish an why attempted rape prosecution that the to have sexual trier fact could have found plan a rational of had defecated in her abandoned because she intercourse with Pontbriant was of Thus the lack of evidence and had fecal matter on her body. clothing in contrast be body reasonably may explained, sexual on Pontbriant’s activity of a have considered the lack of evidence to those cases in which we prior did not occur. that an or rape as an indication attempted rape sexual assault Rundle, that the absence of (Cf. [recognizing 43 Cal.4th supra, p. inferences suggesting rebut other may evidence of a sexual assault that, victim, but holding contact with the intended to have sexual perpetrator the decom- case, (because the evidence the inconclusive nature of in that had whether a sexual assault body) concerning victim’s position inferences].) did not rebut such occurred the unclothed state have held that
Defendants observe that we previously itself, is, rape attempted a murder victim insufficient prove 1, 41 (1993) 6 Cal.4th (See v. Johnson has occurred. People rape however, case, a number of 673].) In the P.2d present circumstances, Pontbriant’s total nearly with conjunction other considered found could have reasonably verdict. The jury nudity, jury’s support her, undressed defendants forcibly support- had been bound after Pontbriant be to her that would something to do the inference that ing they planned unclothed, not be a willing and in which she would her being facilitated by addition, that could have in the bedroom In sperm presence participant. Gilliland), found on Pontbriant’s (but the hairs Tobin been deposited her chest, genitals her near legs that was between wedged and the bottle of defend- a sexual component as evidence of could be viewed reasonably ants’ actions. estab- no direct evidence that there is are correct in asserting
Defendants (other than act Pontbriant against which which one of them lishing performed her, to do with what nothing happened that he had Tobin’s testimony circumstantial reliance upon The jury’s the jury clearly rejected). which evidence, in from that to be drawn reasonable inferences evidence and the *58 demonstrate, as were does guilty, both defendants whether determining Rather, the the result of speculation. that the verdict was defendants urge, that finding inferences the jury’s adequately support and the ensuing evidence and of intention- to Pontbriant of attempting rape defendants both were guilty crime. committing in engaged her while were they ally killing 21 (Rundle, supra, 43 Indeed, attempt that the failed. prove need not prosecution also 663, attempt to 138, of an a defendant can be convicted section fn. 28 p. [“Under Cal.4th fact, crime, completed.”].) though the in a crime even commit had a in acting
The evidence established that defendants history resided in together concert. had been friends for several They years, they Visalia, various their time in and dwellings during they engaged together meet, karate, in activities such as items at the local selling swap practicing was, fact, at the Bar. There Break Room drinking conversing criminal evidence each other in activities: they demonstrating supported Jeanette that while Tobin her at the Mayberry testified assaulted apartment murder, Letner, Street two before Pontbriant’s in addition to Bridge days insults at yelling encouraged Tobin to continue her. Mayberry, striking evidence with that defendants went together reasonable inferences established murder, her together Pontbriant’s house on of the left night together killed, car after she was both lied to Officer where Wightman regarding they fled to Iowa going, were arrested together, eventually together. Visalia, Neither of them had or steady jobs and both employment prospects of them had tenuous living arrangements: were soon to be evicted from they rent, Street for and Jeanette Murray failing apartment pay Mayberry had thrown Tobin out of the Street after a just Bridge dramatic apartment fight between them. Forensic evidence could be indicat viewed as reasonably that both ing defendants were involved in directly attempting rape hairs, head, victim: Letner’s which had been removed from his forcefully blood, were found on Pontbriant’s and semen and consistent with body, Tobin, come having from were found in the bedroom. Although attack the of the evidence significance and offer alternative for explanations existence, its we cannot that no rational trier of fact say could have defendants, determined that the evidence finding acting supported to a according common to attack Pontbriant and steal her car in plan order town, leave committed an that Pontbriant’s murder occurred attempted rape, the course of the during and that defendants shared an intent attempted rape, (See to kill her in order to facilitate their escape. [defining principals § in a crime all who commit the crime aid or and abet in its persons commission]; v. Richardson 959, People 43 Cal.4th 1023 [77 (Richardson) 183 P.3d ‘An aider and abettor is one Cal.Rptr.3d 1146] [“ who acts with both knowledge of the criminal and the perpetrator’s purpose intent ”]; People encouraging facilitating commission of the offense.’ Rodrigues (1994) Cal.4th 885 P.2d 1] [the evidence was sufficient for the to infer that attackers’ actions were coordinated to a pursuant joint plan].) Robbery (Letner, Tobin)
b. Defendants’ to the convictions and cir challenges robbery special cumstance lines similar to their findings along challenges proceed witnesses, mini charges: credibility attempted rape dispute evidence, mize the significance of and contest the inferences that physical But, be drawn the evidence to their may from establish as we have guilt. *59 166
observed, witnesses, we do not the trustworthiness of judge on appeal evidence, of the or assess for ourselves which reweigh interpretation in the evidence was the evidence is the one. conflicts “right” Resolving and cannot that no rational trier of fact jury, say we province robbed Pontbriant. could have found defendants of reasonably guilty having Moreover, of Gilliland and even were we discount Walter testimony do, Bothwell, would conclude a rational Earl as defendants us we still urge and trier of fact could find defendants of Pontbriant intention- guilty robbing her while in that ally murdering engaged robbery. ‘the felonious of taking is
“Robbery personal property possession will, another, or immediate and against from person presence, [her] [her] (§ must be 211.) means of force or fear.’ The intent to steal by accomplished of the act of force.” v. (People formed either before or commission during 651, (2008) 44 Cal.4th 189 P.3d Wallace Cal.Rptr.3d 911] [81 (Wallace).) find that defendants were in could jury reasonably possession car, after murdered. Based this violently
Pontbriant’s she was shortly upon could infer that defendants removed reasonably itself—the evidence—by jury her, and car her will thus a killing committing robbery Pontbriant’s against in a 27 Cal.4th robbery. (Hughes, supra, an intentional murder while engaged one another and takes substantial at have stated that ‘when kills p. [“We victim, the killing from the it is reasonable ordinarily presume property ”]; Navarette 30 Cal.4th was for robbery.’ People purposes true that one 66 P.3d it bemay 1182] [“While scene, one first arrives on the cannot rob a who is dead when already person and then killing taking one can rob a certainly living person by person above regarding his or her For same reasons expressed property.”].) it was reasonable for findings, defendants’ challenges attempted rape Pontbriant, kill and that both defendants intended to rob and to find jury it Defendants that was argue each other in so. doing aided and abetted killed her. “The car after only they decided to take Pontbriant’s possible however, steal], does after-formed intent to existence of this possibility [of 1078; at (Wallace, Cal.4th supra, p. not render the evidence insufficient.” that the 357-358 27 Cal.4th Hughes, supra, pp. see [circumstances home, that there was in victim’s defendant left other items of value formed, did not the intent to steal was evidence when suggesting “slim” We robbery].) that the defendant committed finding render unreasonable verdicts jury’s was sufficient to support therefore conclude evidence related circumstance and the robbery charges special on the findings allegations. taking have found reasonably that the could not
Tobin urges fear, force or her will against accomplished Pontbriant’s property
167 at to the of unconsciousness have been intoxicated point because she might could have clearly trier of fact the We A rational disagree. the time of theft. that, defendants would drinking, unconscious from found had Pontbriant been hair, her, bind her arms her beat out severely not have needed to pull Further, a rational lost consciousness at some point, behind her back. had she during remained in that condition could find that she could not have juror above, defendants might the circumstance that such an assault. As mentioned to actually taking or killed her prior have rendered Pontbriant unconscious the offense that committed finding they to her car did keys preclude (See also the intent to steal. so formed robbery, long they previously P.2d Cal.4th 959 Frye Cal.Rptr.2d 956 People [77 183].) evidence, additionally claim Letner
In his of insufficient presenting testimony of Walter Gilliland’s asserts that the presentation prosecutor’s he rent to Pontbriant defendants’ that establishing gave money misconduct, knew because the constituted prosecutor presence prosecutorial had not this was false. Even if Letner or should have known testimony court, to it in the trial it lacks merit. forfeited this contention raise by failing could have concluded that the various inconsisten prosecutor properly issue cies in Gilliland’s statements created testimony credibility pretrial has doubts as to the truth for to resolve. “When ... jury prosecution trial, any of a statement it intends to at it must to the defense present disclose But, false. material evidence the statement is suggesting question doubts, those still the statement notwithstanding may prosecutor present 208, 242 to the . . . .” v. Harrison 35 Cal.4th jury (People 895].) 106 P.3d (Letner, Tobin) Burglary c. evidence,
Similar to their other challenges sufficiency finding they to evidence contradicts point assertedly entered the intent to commit a and committed felony Pontbriant’s home with (See the murder while in the commission of the engaged burglary. § who enters house . . . with intent to commit or [“Every any grand petit person above, however, As discussed burglary.”].) is larceny any felony guilty find that we have concluded there was sufficient evidence for the Pontbriant. As the defendants robbed and attempted rape prosecution to infer from the circumstance that it is reasonable argued jury, crimes that the intent to do so they defendants committed these possessed time entered Pontbriant’s house. A rational could juror reasonably lead to find that a social visit to a friend’s house did not spontaneously purely murder of the hostess. The circum and brutal robbery, attempted rape, defendants into her house is stance that Pontbriant have invited may willingly (Wallace, 44 Cal.4th at crime of no consequence. supra, p. [“The however, intent; burglary, with the requires only entry entry requisite (italics omitted)].) need not be force.” The circumstance accomplished by that defendants waited some of time apparently period attacking prior Pontbriant, which the three of them during consumed alcoholic beverages, *61 could be viewed anas to make defendants’ task easier attempt by reducing Further, that Pontbriant would be able to possibility resist. Letner’s in the calls to Edward Burdette and Coronado participation telephone Kathy could indicate he was not concerned in turn whether would they eventually house, inform the he had been in Pontbriant’s because he police present believed either that the with whom Pontbriant on the person speaking there, that, when defendants first arrived knew that Letner was or if telephone him, were to for he be begin looking nonetheless would able to police to Iowa. that could find Letner escape Alternatively, jury reasonably in the or joined calls without simply telephone anger impulse, reflecting sum, In a we observed upon possible consequences. recently regarding similar ... of challenge, stolen from victim’s home “possession goods after the shortly crimes is circumstantial evidence strong [defendant] harbored the intent to commit when he entered her larceny home. [Citation.] Moreover, is no better entered the proof ‘[t]here [defendant] [victim’s with intent to commit than a he did in fact commit robbery showing house] after his 41 Cal.4th robbery entry.’ (People v. [Citation.]” Abilez (Abilez).) 161 P.3d we conclude Accordingly, 58] the evidence was sufficient defendants support jury’s finding committed a and killed Pontbriant while burglary intentionally engaged burglary.
d. Premeditation and Deliberation Defendants also of the evidence challenge sufficiency supporting verdicts, first murder to the extent these verdicts were based jury’s degree “ and deliberated murder.22 ‘We need not theory upon premeditated claim since reversal is not when the court can necessary consider this determine from the record that the verdict rested on a which is theory can, sufficient evidence. We by supported properly [Citation.]’ [Citation.] do, 141.) (Rundle, make that determination here.” 43 Cal.4th at As supra, p. discussed, ante, that defend- finding the evidence was sufficient to support therein, felony ants entered Pontbriant’s residence with the intent to commit a her, that, robbed her and to section pursuant attempted rape murdered in the of these crimes. The also found Pontbriant was course true the that defendants murdered Pontbriant allegations circumstance special each of the while to commit engaged committing underlying attempting felonies, found the elements of first which indicates jury necessarily 22 degree guilty it of first jury’s specify verdict did not whether found felony murder or murder. premeditated and deliberated Therefore, need not decide we had been murder
degree felony proved. addition, that Pontbriant’s whether, evidence to prove there was sufficient (43 Cal.4th and deliberation. murder was the result premeditation 141.) p. sufficient evidence that even if there was
Defendants also contend deliberation, should murder convictions their first degree premeditation the felony-murder theory have relied be reversed because the jury may upon which, assert, evidence. We sufficient was not supported of liability, however, concluded, was established liability that felony-murder have sufficient evidence. (Tobin) Circumstances
e. Mental State Special for *62 law, there can be no a matter of California special Tobin contends that as killed the victim a defendant’s having circumstance based finding upon cannot further the He asserts that such a killing an during attempted rape. a dead a because it is legally impossible rape of committing rape, purpose Rundle, supra, 43 Cal.4th the identical claim recently rejected We person. 155-156, to revisit that conclusion. and have no reason pages Misconduct
3. Asserted Prosecutorial guilt prosecuto Defendants claim several instances of asserted phase the state and federal misconduct denied them their under both rights rial warrants Constitutions. As we shall no misconduct prosecutor explain, law, a “Under California prosecutor their convictions sentences. reversing if he or she makes use of ‘deceptive commits reversible misconduct court or either the trial methods’ when attempting persuade reprehensible misconduct, that without such and it is jury, reasonably probable the defendant would have resulted. outcome more favorable to [Citation.] Constitution, that does not result Under the federal conduct by prosecutor a com rights—such the denial of the defendant’s constitutional specific remain silent—but is invocation of the right ment the defendant’s upon condemnation, violation unless is not a constitutional worthy otherwise ‘ make the the trial with unfairness as to action “so infected challenged ’ (People Riggs conviction a denial of due resulting process.” [Citation.]” (Riggs).) 187 P.3d (2008) 44 Cal.4th 363] misconduct to all of the instances of asserted Defendants did not object “ ‘ defendant may complain appeal raise on they appeal. “[A] on the same unless in a fashion—and timely misconduct prosecutorial misconduct and defendant made an assignment requested ground—the ’ be admonished to disregard impropriety. [Citation.]” the jury [Citation.]” (Riggs, supra, 298.) notion, Cal.4th at We have p. previously rejected defendants, advanced by that the trial court had a to intervene responsibility behalf, on their such that the failure to an admonition object request each act (Ibid.) regarding alleged of misconduct is excused. Defendants no present reason to revisit that decision. compelling We shall address on a basis claim-by-claim defendants’ contentions that their failure to to a object instance of particular asserted misconduct and to an admonition is request excused because their done so would have been futile having or ineffective. “Because, below, as discussed we conclude that the committed no prosecutor misconduct, it follows there prejudicial was no misconduct pervasive otherwise excused failure to object to individual instances defendants’] (Ibid.) of misconduct” raise on appeal.
a. Cross-examination Tobin Term “Instant Regarding (Letner, Tobin) Death” case-in-chief, During prosecution’s notified the trial prosecutor court that she intended call as witnesses two who knew defendants persons in the late 1970’s. These witnesses would that defendants Napa testify of and were seen spoke martial arts practicing technique causing “instant death” of a victim the sides and by stabbing base of victim’s neck. The contended this should be admitted prosecutor testimony as circum- *63 Pontbriant, stantial evidence to demonstrate that tending defendants murdered because her wounds could have been inflicted someone to by attempting that, cause this manner of “instant death.” Defendants on the objected ground Code, to section 352 of the Evidence pursuant the value of the probative on the of “instant would testimony subject death” be grossly outweighed by time, the of undue risk and the the prejudice because consumption nature the that defendants such prejudicial testimony indicating practiced acts, (2) the remoteness of the to which the would testify, events witnesses the circumstance that these were witnesses “enemies” of defendants and therefore were of a trial questionable credibility, necessitating essentially within a trial the various incidents that caused the rifts between concerning them and The defendants. trial court sustained defendants’ to the objections that the evidence tend to had “a testimony, finding would establish defendants murderer’s and that the method was not so sufficiently disposition,” unique that the evidence was of value in establish- particularly compelling probative of Pontbriant’s killer. ing identity
Later, case, he Tobin’s defense after he had testified knew during nothing murder, asked two during Pontbriant’s prosecutor questions cross-examination the term “instant death.” The ex- regarding following occurred: change death,
“Q [by prosecutor]: known as instant that is There is a term karate isn’t there? Honor, I’m going object Your attorney]: Tobin’s
“[Objection by question.
“The Court: Overruled. not. know there is or I don’t if
“[Tobin]: caused being heard of instant death “Q You have never [by prosecutor]: or veins?” neck near arteries major in the side of their at or sticking someone and the trial court recessed objected, Counsel for both defendants again of the outside the jury. to discuss matter presence proceedings “subterfuge,” Defense counsel that the argued prosecutor engaging from testimony an render excluded admissible previously attempt instant death the two defendants’ with the familiarity witnesses concerning would from Tobin that then be eliciting impeached denial technique, by trial court’s ruling argued prior witnesses. prosecutor of the concerned to be presented part prosecution’s evidence proposed case-in-chief, of the evidence that the context in which the admissibility had he do nothing would be determined shifted once Tobin testified had however, court, trial its that Pontbriant’s with murder. The restated finding unusual, and that therefore concern- wounds were not particularly questions of the “instant death” would not be At the conclusion short ing permitted. recess, attorneys, trial court admonished the statements jury evidence, that the should not assume including jury their questions, if the truth in a and that objection insinuated anything question, sustained, might at what the answer should not guess question *64 court, however, the trial did Tobin’s answer to first have been. The not strike it do The was no defendants that so. by question—there request prosecutor then moved to a different subject. on the guilt at the conclusion of argument the
During prosecution’s opening in that the of the wounds to Pontbriant’s the course of nature asserting phase, the stated: the “a calculated killing,” neck showed that murder was prosecutor Walter, wounds, through “The these to Dr. were location of stab testified vessels and arteries that almost over vital blood strategically, placed very the That is known to something take blood from head. blood and supply away death,’ [(j[] if the are stricken. actually cause called ‘instant arteries what’s At then the about the cord. that location testimony And we had spinal vital, neck it’s—it’s a vital area. And can very one that also death very cause Neither defendant quickly.” to the objected statements. prosecutor’s On defendants contend the appeal, committed misconduct in prosecutor questioning Tobin the “instant concerning death” and then mention- technique ing that term during the conclude argument We there was no jury. misconduct warranting reversal of judgments.
Assuming defendants’ trial during assertions that the prosecutor engaging were sufficient to “subterfuge” for a claim of preserve appeal cross-examination, misconduct regarding prosecutor’s defendants have failed to establish that misconduct occurred. do not any We view as unreason able, court, even it though was rejected by trial conten prosecutor’s Tobin, tion that the stand and his taking involvement denying murder, the door cross-examined being opened concerning possibility that Pontbriant’s wounds reflected a martial arts with particular technique (Mayfield, which he familiar. at supra, 14 Cal.4th p. permissible [the of the cross-examination scope defendant is testifying generally very Freeman wide]; People 8 Cal.4th
882 P.2d [“merely to which sustained asking question objection is 249] Indeed, misconduct”].) briefs, does not itself show in their defendants mis characterize the record. The trial court never ruled that the prosecutor’s questions as asserted defendants. The court excluded improper, evidence of the “instant death” from the subject technique case-in-chief, but overruled prosecution’s to the objection prosecutor’s first (that had question permitted Tobin’s answer he the term heard of “instant death”) stand. What the court made clear in its subsequent ruling outside the of the was would not be presence jury prosecution that he did permitted to Tobin’s answer attempt impeach by demonstrating Therefore, know of the term “instant death.” because Tobin had he testified had no death” there knowledge “instant was no technique, simply further area of The trial inquiry regarding subject open prosecutor. court also it informed that was not to jury rely upon prosecutor’s as evidence that the “instant death” existed or that Tobin question technique was aware of it. reasons,
For these same if we even were to conclude that the prosecutor misconduct, had such could engaged any misconduct not have been evidence was that prejudicial. only admitted the trial this issue Tobin had not heard of the “instant term death.” to defendants’ Contrary assertions that the would have been unable to follow the court’s trial *65 to there admonition not consider the evidence that questions prosecutor’s it, was such a and that Tobin was familiar with we the technique presume (Avila, not at supra, jury followed the court’s instructions to do so. 38 Cal.4th that, not had the 610.) prosecutor There no reasonable is probability p. Tobin, a different would have reached this with the jury broached subject verdict, (which were two brief nor can we conclude that these questions trial court’s a Tobin the proper followed by negative response by trial. law) denied defendants a fair admonition the concerning applicable the by ques In that the was jury prosecutor’s arguing prejudiced tions, (1975) 13 People Wagner our in Letner’s reliance decision upon 105], P.2d That is Cal.Rptr. misplaced. Cal.3d. 619-620 [119 to the in which a impeach case involved a situation prosecutor attempted a series asking moral character by defendant’s his testimony regarding good criminal activities asserted concerning specific of detailed highly questions the the offered no (not convictions) defendant for which felony prosecutor to each negative evidence. The defendant answered independent (Id. to rebut 616-617.) that the at We concluded attempting question. pp. in was and that the evidence a manner improper, defendant’s character such defendant had cured the circumstance that the was not impropriety admonished the “no” and the trial court later had answered to each question observed, a not to statements as evidence. As we attorneys’ view the jury of ‘for the may “interrogate solely getting not witnesses prosecutor purpose therein, before the the facts inferred with the insinuations jury together contained, than answers which rather for the suggestions inevitably ” addition, (Id. 619.) matter subject be at In we noted that the might given.’ p. Wagner (the resolving in was credibility) at issue defendant’s crucial of guilt and that the evidence of and was charges, against finding favor (Id. 621.) closely balanced. p. extent
The effect of any possible prosecutorial impropriety not case was in no of present way comparable: questioning part character; moral matter subject Tobin’s asserted attempt impeach good (whether Tobin of the “instant death” did technique) knew questions focus instances criminal or involve activity not upon unproved specific trial; limited; the extent quite critical of the aspect questioning balanced; was not and it evidence defendants’ innocence guilt closely regard that the without questions does asked appear prosecutor be. we no reasonable what Tobin’s answers discern might Accordingly, that Letner was possibility probability questions prejudicial. remote, is of the circumstance light even more prejudiced knowledge never asked Letner’s any questions prosecutor technique. next
Turning during argument observation prosecutor’s blood in the victim’s in a that cuts the vessels stabbing way someone ” death,’ we note “is known to called ‘instant neck cause what’s something *66 that defendants did at trial to this comment. object An on the objection that, ground for referred to facts example, argument not in evidence (e.g., defendants’ of the death” knowledge “instant with a technique), together admonition, for an request would not have been futile or ineffective. There- fore, defendants have forfeited their claim of In misconduct. appellate any event, no misconduct occurred. did, fact,
The in had prosecution’s pathology both of expert testify neck, Pontbriant’s carotid arteries been severed the stab her wounds in “a loss of would have very consciousness been almost A quick, immediate. [][] death on how define But depends you death. the actual of brain cessation [][] function and the heart action have taken several occur.” may minutes to The also that the expert agreed cord in severing spinal in the area which Pontbriant was cut could cause death to occur The instantly.” “basically, could prosecutor reasonably from this wounds argue testimony inflicted Pontbriant could have what the an upon caused called instant expert death, and that was evidence this of calculated murder rather than of merely Even haphazard actions. were we to conclude prosecutor improperly the jury refer back to the cross-examination of attempting Tobin regarding of the “instant death” and to in subject facts not evidence technique, argue (that there was a martial arts called “instant death” with which technique familiar), Tobin was there is no of Such possibility prejudice. oblique reference to a that had been mentioned subject very midst of briefly trial more than a earlier was not even to attract notice. likely jury’s week Moreover, above, that, as mentioned we even had the presume jury recog- reference, nized the it would have the trial followed court’s instructions not to consider the of attorneys’ statements and as evidence fact. any questions there is no reasonable that in Accordingly, the absence of the possibility comment would have reached a verdict favorable prosecutor’s more defendants, nor a fair trial. deprived b. Failure to with History Provide Criminal Defendants Tobin) (Letner, Prosecution Witness Jeanette Mayberry 25, 1990, witnesses, On January during presentation penalty phase Letner’s the trial notified court that defense had discovered that attorney Jeanette had an for her prosecution Mayberry witness warrant outstanding arrest on a from a misdemeanor theft petty charge neighboring county, had two Tulare criminal matters court. arrest pending County warrant stemmed charge from misdemeanor theft filed petty trial, Fresno In to the commencement of defendants’ County. May prior for County felony in Tulare with a Mayberry separately charged writing checks, bad and a misdemeanor for the theft of from a clothing department store. In of that she to the Tulare July year charge theft pleaded guilty *67 check charge the bad July, Also in days jail.
was sentenced to 30 She misdemeanor, in August. guilty to which she pleaded to a reduced execu- August, In incarceration. days’ sentence of 30 received an additional 3, 1990, and on that date until January was stayed tion of both sentences 6, 1990. February further stayed the that he had been deprived on the basis moved for a mistrial
Letner
criminal
these
pending
Mayberry
to cross-examine
opportunity
testi-
her guilt phase
had upon
have
they might
and
influence
any
matters
trial to
that
in the
point
it was impossible
The trial court observed
mony.
matters,
the court would
and therefore
these
the failure to disclose
remedy
in their
the trial. Both
conclusion of
revisit
the issue after
to disclose
failure
new trial raised
prosecution’s
motions for
subsequent
motions,
that Mayberry’s
finding
trial court denied
these matters. The
defendants’ guilt,
material” to establishing
“was not
testimony
terribly
character
extremely questionable
matters were “of
further that the undisclosed
defendants contend
prosecutor’s
value.” On appeal,
as to impeachment
their federal constitu-
matters to the defense violated
failure to disclose these
L.Ed.2d
Maryland
v.
(1963)
“In the United States Court Brady, Supreme an accused request evidence favorable to upon sion prosecution or to either to guilt where the evidence is material violates due process bad faith of the prosecution.’ of the faith or good irrespective punishment, such to disclose duty court has since held high [Citation.] the accused no even there has been though request evidence exists as well as [citation], evidence the duty impeachment encompasses to evidence [citation], extends even duty evidence and that exculpatory Such and not to investigators prosecutor known only police [citation]. ‘ that, had the reasonable material “if there is a probability evidence is defense, would the result of proceeding evidence been disclosed ’ therefore, with Brady, In order to comply have been different.” [Citation.] favorable evidence any has a to learn of duty ‘the individual prosecutor case, including behalf government’s known to the others acting (2005) 35 Cal.4th (People the police.’ [Citations.]” Salazar (Salazar).) P.3d 14] “ to any used to refer “Brady term violation” is sometimes ‘[T]he is, to evidence—that exculpatory breach of the broad to disclose obligation “Brady material”—although, strictly speaking, of so-called any suppression was so “Brady unless the nondisclosure a real violation” there is never serious that there is a reasonable probability evidence suppressed would have a different produced verdict. There are three of a true components Brady violation: The accused, evidence at issue must be favorable to the either because it is or because it exculpatory, is that evidence impeaching; State, must have been either suppressed by willfully inadvertently; prejudice context, must have ensued.’ Prejudice, this focuses on [Citation.] ‘the materiality evidence to the innocence.’ issue of guilt [Cita- mm, Materiality, more than a that the requires showing tions.] suppressed *68 evidence would been [citation], have admissible that the absence of the evidence suppressed made conviction [citation], ‘more likely’ or that using the evidence to discredit a suppressed witness’s have testimony ‘might the outcome changed of the trial’ A defendant instead ‘must show a [citation]. ’ “reasonable aof different probability (Salazar, result.” supra, [Citation.]” Cal.4th at 1042-1043.) We pp. review the independently whether a question occurred, Brady violation has but give great to trial weight any court findings of fact that are supported by (Salazar, substantial evidence. 1042.) at p.
Defendants have satisfied the first two Brady analysis. of the components As the herself prosecutor motions, admitted at the on the new trial hearing there was an obligation disclose to the the defense information concerning matters, the even if she and the pending were investigators unaware of them failed to them. inadvertently disclose And the circumstance that a prosecu- matters, tion witness faced criminal pending some of which were being the prosecuted by defendant, same district office attorney’s prosecuting defense, constitutes evidence “favorable” to the in that a could view this circumstance as negatively impacting credibility testimony by court, witness that was to the helpful Like the trial prosecution. we are not convinced, however, that the evidence was material. parties significance of dispute Mayberry’s view testimony
of the total sum of the evidence at the presented guilt trial. phase Defendants assert her whereas the testimony very significant, Attorney General that the urges testimony was cumulative of other evidence primarily before the A correct jury. assessment lies somewhere between these two observed, extremes. As the trial court Mayberry’s some testimony provided evidence establishing motive—that defendants were to leave Visalia ready because of their and because of the that took unemployment, fights place between Tobin and on the Mayberry the murder. day night preceding also Mayberry evidence provided concerning defendants’ with relationship other, above, each as mentioned including, the circumstance that Letner Tobin encouraged to continue her at the striking during fight apartment, testimony establishing lied when told Officer they Wightman where when were going they victim’s car. stopped trial, at the its impor had some significance
Although Mayberry’s testimony acknowl in which we have those circumstances tance is not comparable would be evidence impeachment edged suppression possible “ been found to evidence has Brady. under ‘In general, impeachment material linking evidence only the witness at issue “supplied be material where crime,” [citations], or where defendant(s) likely impact undermined element of the have a critical pros would credibility witness’s ” (Salazar, case, 1050.) Neither 35 Cal.4th supra, p. ecution’s [citation].’ testimony. of these circumstances Mayberry’s applies Further, concerned a that Mayberry’s testimony even were we to conclude case, the trial we would with agree critical element of the prosecution’s her that the undisclosed information pending court’s assessment credibility any significant matters not have undermined her criminal would from the circumstances The inference defendants would draw degree. misdemeanor, execu- (2) reduced to a Mayberry’s felony charge after her she was testimony, tion of her sentences was until postponed *69 that is neighboring county, not arrested on the misdemeanor warrant from other) benefits from the (and in order to receive those possibly prosecution, she chose to testify untruthfully. against Mayberry we observe that none of the
Initially, charges serious, and therefore the not have found jury might compelling particularly trial in order that herself at defendants’ theory Mayberry capital perjured her own matters. In to obtain some minor benefit relatively pending addition, that the would have had material charges impeach- possibility ment declaration submitted with the value is contradicted by Mayberry’s trials, for in which she stated she did defendants’ motions new opposition or not with the about the did not charges, expect speak prosecutor pending her as a result of testimony receive benefits for did not alter any testifying, matters, (and ordered) the court had that her and had pending requested be in the while defendants sentence be so she would not jail suspended jail there. We that had she been before also were incarcerated presume questioned matters, her have been to the same testimony these would jury concerning effect. altered her in return testimony
More the notion that Mayberry importantly, in her criminal matters is belied the circumstance for favorable treatment to the theft that her several months hearing testimony, given prior preliminary her trial in Tulare was consistent with County, and bad check filed charges Indeed, intro- had defendants to impeach Mayberry testimony. attempted matters, have her her then could presented ducing pending prosecution she (and gave other statements hearing testimony possibly preliminary arose, before motive to lie any consistent statement made as police) prior (b) sections 1236 subdivision pursuant Evidence Code—a bolstered, that have strategy actually might rather than her impeached, had before it credibility. Finally, jury already evidence that have might observed, as the trial negatively impacted Mayberry’s credibility: court her obvious, bias Letner was personal against evidence presented that the account demonstrating of her with Tobin that she fight provided officer was somewhat inconsistent with her trial responding police testimony.
Defendants, fashion, ain for the summary urge first time on appeal convictions for theft and Mayberry’s bad checks bear petty writing directly witness, her as a because those upon credibility offenses were “traditional (the crime of At examples the time of falsifying). crim[i]n[a] falsi[]” trial, defendants’ we had People Wheeler decided in yet Cal.4th 841 P.2d 8’s truth-in-evidence Proposition 938] eliminated the the use of misdemeanor provision proscription against offenses nonetheless, (Wheeler, 295.) evidence. at impeachment Assuming, p. trial, this holding had in defendants’ we also take note of applied our conclusion in Wheeler that misdemeanor convictions are inadmissible under furthermore, rule and with reference to the hearsay underlying facts offenses, misdemeanor that trial courts retain the to exclude such authority evidence under section 352 of the Evidence Code if of those presentation confusion, facts would create undue out- prejudice, delay, substantially (Wheeler, 296-300.) their value. In the weighing probative pp. present case, court, because defendants failed to raise this issue in the trial that court determine was not called to exercise its discretion to whether upon any part admitted, of such evidence should have been and the record fails to provide *70 us with information any facts offenses. concerning underlying Mayberry’s Therefore, defendants’ bare the offenses would allegation themselves have had value in is In impeaching Mayberry’s testimony unsupported. Wheeler, addition, as we observed in “a misdemeanor—or other conduct any not to a a less forceful indicator of immoral character amounting felony—is (Id. 296.) a than is at dishonesty felony.” p. sum,
In failed defendants have to demonstrate that there is a reasonable that had the disclosed to defendants the then probability prosecutor pending criminal matters before the called her as a facing Mayberry prosecution witness, would have reached a result more favorable to defendants. jury defendants have not established that their constitutional Accordingly, rights were violated. (Letner, Tobin)
c. Guilt Phase Closing Argument Defendants contend committed several instances miscon- prosecutor duct her Neither defendant during guilt argument jury. objected phase misconduct, have been futile of the nor would such objections any alleged claims of miscon- defendants have forfeited their
or ineffective. Accordingly, event, occurred. duct. In no misconduct any prejudicial mention of the We have defendants’ claims that the rejected prosecutor’s misconduct, ante, II.B.3.a. term “instant death” was prejudicial part Defendants also contend the “slandered” them by arguing, prosecutor of Earl Bothwell’s to defense counsel’s attacks the credibility responding upon criminal, Bothwell was an admitted could testimony, although jury that witnesses associated with defendants would be upstanding expect citizens, with because defendants could be “to be around hanging expected other criminals.” Defendants contend there was no evidence at the presented To the the evidence guilt contrary, establish were criminals. phase and that Letner demonstrated Tobin assaulted Jeanette Mayberry, pos- Moreover, course, sessed stolen evidence was estab- presented property. car, that defendants murdered Pontbriant and stole her and then fled to lishing Iowa to was escape prosecution. argument permissible prosecutor’s comment the evidence. upon without merit are defendants’ contentions that the
Similarly prosecu tor “embellished the evidence” that Walter Gilliland’s improperly by arguing evidence,” backed and that the blood testimony other “essentially up by found in the and on the car was fresh. These bedroom from Pontbriant’s rag statements, too, view forth reasonable permissible arguments putting infer evidence. “Prosecutors have wide latitude to discuss and draw ences from the evidence trial. Whether inferences [Citation.] v. Dennis (People draws are for the to decide.” reasonable is prosecutor 1035].) 17 Cal.4th P.2d Tobin also contends the “dwelled” the evidence upon prosecutor improperly his with because that evidence fight Mayberry, assertedly determination irrelevant whether involved in Pontbriant’s Tobin was murder, but as a violent man who instead was designed “portray appellant contention without merit. The com- beats women.” This is up prosecutor *71 mented the in the context of the of Tobin’s fight attacking credibility upon the that he and Letner had been for several testimony days prior planning reasons, but, did not decide to murder to move to Iowa for largely unexplained until the of the murder. The argument leave night prosecutor’s permissible and in no that the with established Tobin’s way fight Mayberry asserted for violence women. committing against propensity 4. Asserted Instructional Error (Letner, Tobin) Aiding Abetting
a. the the given by Defendants raise three related instructions challenges trial to the the criminal an aider and abettor: concerning liability court jury the (1) the instructions did not inform the that in order to find jury special true to a defendant it found to be an aider circumstance whom allegations abettor, that defendant intended Pontbriant the must find the jury particular killed; the would be the instruction regarding “natural-and-probable- the of aider-and-abettor failed to theory liability identify consequences” offenses”; the “target natural-and-probable-consequences applicable we Although agree of aider-and-abettor is unconstitutional.23 theory liability that, two the instructions challenges, given with first regard misun- we conclude there was no reasonable likelihood ambiguous, jury defendants’ third derstood or them. We have already rejected misapplied and do so here. challenge, again the trial court allegations,
With to the circumstance regard special 8.80, No. as follows: with a modified version of CALJIC instructed of murder in the first “if find that a defendant in this case is you guilty must then determine if one or more of following special degree, you true: Whether the murder was done during circumstances are true or not [<J[] or commission of or robbery, burglary, rape. commission attempted [][] circumstance, have the burden of the truth of the special
The People proving circumstance is If have a reasonable doubt as to whether a special you [f] true, a reasonable doubt true, you beyond must find it to be not you ffl] If find abettor, killer, you the actual or an aider and but was either defendant which, a reasonable beyond decide then must also you are unable to find either kill a human or to aid being, that the intended to doubt defendant the special a human order killing being another find hand, beyond you to be true. On the other circumstance [][] if find killer, need not you was the actual reasonable doubt that the find defendant in order to being special intended to kill a human that the find defendant instruction, as to be trueT24 added.) The flaw in this circumstance (Italics 23 mentioned, U.B.5., error, post, failing to transcribe all of the trial part Because of guilt phase jury instructions—we shall the conference proceedings—including appeal. To the challenges raise on preserved all of the instructional assume their substantial instructional errors violated extent that defendants contend these asserted 1259, even if these claims were pursuant to section rights, we also review their claims forfeited. 24 concerning aiding-and-abetting liability for gave an The trial court earlier instruction to be highlighting requirement charges language included similar substantive liable, theory, and abettor need not an aider natural-and-probable-consequences pursuant crime, applicable to but rule of law is not perpetrator “[t]his share the same intent as *72 observe, that, is that it failed to instruct under jury explicitly law,
then an aider and abettor have had the intent existing must victim be killed in order for the circumstance to be true. special allegation (Anderson, supra, 1138-1139.) 43 Cal.3d at The was told that if it pp. jury killer, determined one of the defendants was the actual intent to kill was not and that it if could not decide whether one of the required, defendants was the abettor, actual killer or an aider and it must find intent to kill in order to make however, a true finding. was not informed jury, what was required event the jury determined that a defendant was an aider and particular abettor.25 The omission of this third alternative made the instruction ambigu- ous. Accordingly, we with the Court disagree conclusion Appeal’s People Snead 922], Cal.App.4th the same instruction made “unmistakable” that an aider and abettor must it. kill, have the intent because the instruction compares requirement when the cannot applicable jury decide between actual killer and aider and abettor, with—“on the other hand”—the does decide situation when the jury circumstance, an actual killer. upon “hands,” In this there are three not merely words, the special charged. circumstances you In other if find that a defendant [][] was an aider killer, which, and abettor you’re or the actual but unable to you decide then must find also beyond a reasonable doubt that defendant intended being, either to kill a human or to aid killing another in the being of a human in order to find the special circumstance to be true.” 25 The standard unmodified CALJIC applicable instruction to murders that were committed 6, 1990, 8.80, prior to June CALJIC No. is as follows: you “If find defendant guilty [the] in this case degree, you [a] of murder of the first must then determine if following or more special [one of] true or not circumstance[s]: [is] [are] true:_,_,_, [__ and_]. “The People have proving the burden of special the truth of a you circumstance. If have a true, reasonable doubt as to whether a special you circumstance is must find it to be not true. you beyond find “[If reasonable doubt that the defendant co-conspirator] was [a [or] [an aider or abettor, actual co-conspirator] abettor] [either you [the killer] or an aider or [a but are which], unable to you decide then beyond must also find a reasonable doubt that the defendant with intent [participated to kill co-conspirator as a an actor in with] [or] [aided [and abetted]] commission of the degree, murder in the first in order to find special circumstance to be hand, you beyond other if true.] [On find a reasonable doubt that the defendant was the killer, you actual need not find that the defendant intended to kill a being human in order to special find the circumstance to be true.]” The deficiency “[, in the pattern instruction is that there should be an in the third or]” paragraph between aider or “[an actual co-conspirator] abettor]” “[either [the killer] [a abettor, you which],” an aider or but are unable to decide so that in present a case such as the one, the trial court would jury, you instruct the beyond “If find a reasonable doubt that the abettor, abettor, defendant an aider or or either the actual killer you or an aider or but are which, unable to decide you beyond then must also find a reasonable doubt that the defendant with intent to kill aided and abetted an actor in the commission of the murder in the first degree, in order special to find the circumstance to be true.” We language observe that the instruction, corresponding different, CALCRIM significantly No. is clear makes that intent abettor, to kill must be proved jury when the finds defendant was an aider and well as when the cannot decide whether the defendant is the actual killer or an aider and abettor. *73 182
two, what intent an aider and and the instruction left the to surmise jury Snead, v. 20 People supra, abettor was to have. We disapprove required it inconsistent with this opinion. 1088 to the extent is Cal.App.4th trials,‘not every ambiguity, inconsistency, “With to criminal regard due violation. a instruction rises to the level of a process or deficiency jury “ ... so infected the entire is ‘whether the instruction ailing question “ ” violates due trial that the conviction resulting process.’ ‘[A] [Citation.] isolation, but must a not be in artificial may judged instruction to single jury ” as a If the charge.’ charge be viewed in the context of overall [Citation.] “ there is a ‘reasonable is whether ambiguous, whole is question instruction in a way’ likelihood that the has jury challenged applied ’ 38 Cal.4th Huggins the Constitution.” (People violates [Citation.]” 995]; Mayfield, 131 P.3d see also supra, instructions, there is a the test is whether Cal.4th at ambiguous p. [“For the instruc likelihood that the misunderstood jury misapplied reasonable record, conclude, that there is no tion.”].) We based our review upon or this instruction. misapplied reasonable likelihood the misunderstood jury the intent of an concerning the instruction’s meaning we conclude Although “unmistakable,” draw from could certainly jury aider and abettor was not inference and abettor was a that an aider required the instruction as whole addition, a correct and In to have an intent to kill. prosecutor presented the trial court’s the law in her arguments following statement of complete Indeed, a bank robbery discussed hypothetical instructions. prosecutor driver, contrasting special- a robber and involving getaway properly each (essentially, intent-to-kill for participant circumstance requirement in the the robber who shoots someone intent to kill was as to required no bank, to the driver who with respect but that intent to kill was required occurs). the shooting in the car when waiting is merely Moreover, was confused jury there is no reasonable likelihood case, any felt to resolve because it is unlikely compelled present for an aider and abettor. with to the intent regard required ambiguity possible that one of a reasonable doubt a finding beyond The best evidence supporting therefore, was an (and, merely the other the actual killer the defendants was in robbing, that he was uninvolved abettor) Tobin’s testimony aider and Pontbriant, to Letner as the thus pointing and murdering attempting rape, scant There was testimony. this obviously rejected actual killer. The jury that one particular have sufficiently proved that could evidence remaining Indeed, did not killer. the prosecutor was the actual defendant of the two Pontbriant, exclu- argued killed but instead defendant as having one identify had the intent to demonstrated both that the evidence sively to that kill that the jury, pursuant never argued Pontbriant. The prosecutor killer, to kill need not find intent an actual addressing instruction part therefore, received sufficient The jury, the two defendants. as to one of instruction the law to the evidence: “If find you beyond applicable killer, a reasonable doubt that the actual or an aider and defendant was either abettor, which, you but are unable to decide then must also find you beyond reasonable doubt that the defendant intended to either kill a human being, *74 to aid another in the of a human order to find the killing in being special in the instruc- circumstance to be true.” Accordingly, despite ambiguity tion, there is no reasonable likelihood that the found one defendant was jury killer, the actual and then circumstance as to the findings based its special other defendant an erroneous notion that an aider and abettor need not upon the intent to kill. possess
With to the instruction con- regard “natural-and-probable-consequences” offenses, an aider cerning and abettor’s for the substantive we liability conclude the the trial similarly given instructions court case present were but ambiguous, there is no reasonable likelihood the misunderstood jury the law. The trial court misapplied instructed “One who aids and jury: abets is not crime of the to his only guilty knowledge his particular confederates are he but is also liable for the natural and contemplating, criminal probable any act that he and intention- consequences knowingly abetted, aided and You ally must determine whether the defendant is [f] so, of the guilty crimes and if whether the crimes originally contemplated one, two, three, five, charged counts four and and the included lesser offenses natural and of such contem- probable consequences originally crimes.”26 The trial court never plated identified which offenses have might observe, been “originally As defendants the second contemplated.” sentence of this instruction could be as that the “crimes interpreted meaning originally (often offenses”) referred to contemplated” were not “target crimes, but undefined charged were some other crimes that have might given rise crimes. It charged the instruction have been intended appears may the notion that convey could find that one of the jury charged crimes—for murder—was the natural and example, probable consequence therefore, if, another of the charged crimes—for robbery—and for example, Pontbriant, one of the defendants intended to rob that defend- example, only ant still could be hable for her murder case, to defendants’ asser prosecutor contrary present tions, doctrine; did not rely upon natural-and-probable-consequences rather, she the evidence established that both repeatedly argued 26 incorrectly opening Defendants state in their briefs that the trial court’s instruction oral court, fact, varied from the written The trial instruction. realized it had made an error and jury. reread the entire instruction to the 27 We concerning subject, observe that the current instructions this CALCRIM and Nos. 402 3.02, require 403 and CALJIC No. explicitly jury the trial court inform the which originally contemplated might liability crime or crimes form the a particular basis of for charged offense. crimes, commit and both intended to kill intended to all of the charged that one defendant intended only Pontbriant. The never argued prosecutor crime, commit committed a one but that other defendant particular crime, different which was the natural probable consequence first, both defendants of the second making guilty commission of the thereby natural-and-probable- offense. instruction Accordingly, Prettyman was not actually (People doctrine consequences required. (Prettyman).) P.2d 14 Cal.4th 1013] Nonetheless, the trial court . . . Prettyman, as we also observed in “once rule, it chose to instruct the on the ‘natural probable consequences’ each describing had a to issue instructions duty identifying potential (Ibid.) we conclude Accordingly, offense the evidence.” target supported 3.02; (Cf. CALJIC No. instruction was error. ambiguous that giving *75 402, the target the trial court to define CALCRJM Nos. 403 [directing offenses].) however, conclude the Prettyman, the reasons as in we
For same many harmless, the there is no reasonable likelihood jury error was because out, do, defendants that the misunderstood or. the law. To as point misapplied “ the to in ‘indulge unguided instruction could have led jury ambiguous ” the 267) concerning 14 Cal.4th (Prettyman, supra, p. speculation’ offenses, a reasonable likelihood does not establish target unspecified above, the did not rely upon did so. As mentioned prosecutor jury doctrine, but that both defend- argued the natural-and-probable-consequences (See offenses. id. at intended to commit all of the charged p. ants and no reference to the ‘natural probable made parties [“[b]ecause unlikely it is jury, highly doctrine in their arguments consequences’ .”].) There also is it defendant . . relied on that rule when convicted jury to kill that each defendant intended doubt that the determined jury little conceded, Pontbriant, because, no clear evidence there was prosecution above, killer, and, actual as discussed which defendant was the establishing that in order to in such circumstances the trial court’s instructions required must find each defendant circumstance allegations, jury sustain the special Thus, true on the findings special the jury’s intended to kill Pontbriant. relied that the jury essentially negate possibility circumstance allegations in defend- convicting doctrine the natural-and-probable-consequences upon murder, would have such findings—otherwise ants of which reliance—absent doctrine under the circumstances of that likely been the most application sum, likelihood the misunder- jury there is no reasonable case. In present the instruction. stood or misapplied of the natural-and-probable- contend the application
Finally,
due
because
case is a violation of
process
doctrine in a capital
consequences
charges
of the substantive
to convict the defendant
it
the jury
permits
he had the
a need to decide if
“without
allegations
circumstance
special
intent,”
otherwise
and would authorize “a death
requisite
sentence based on
vicarious
negligence theory
in violation of the
Amend-
liability,”
Eighth
contentions,
ment. We have
these
to
rejected
decline
revisit our prior
(Richardson,
supra,
Coffman,
1021;
supra,
decisions.
43 Cal.4th at
see also
p.
v. Garrison
People
108;
746,
b. Accomplice Testimony(Letner)
Letner contends the trial court erred under state law and violated his state
and federal constitutional
rights
to instruct on its own motion
by failing
accomplice testimony
guide the
Tobin’s
jury
evaluating
guilt
phase
Letner
the trial court
testimony. Primarily,
urges
should have instructed
distrust,
to view
jury
accomplice testimony with
examine it with care
and caution in
of all the
light
evidence
in the case.28
presented
Although
trial court was
required
give
instructions
case to
accomplice
present
the extent
that Tobin’s
to incriminate Letner (Coffman,
tended
testimony
supra,
Letner contends in his brief that evidence reply corroborating was “the inadequate because facts are consistent with entirely appellant’s status as a bystander the homicide.” The during corroboration required however, need accomplice testimony, connect the only defendant to the crime sufficiently that we may conclude the jury could have been reasonably 28 Letner’s primary focus is upon trial court’s failure to pursuant instruct to CALJIC No. 3.18: “You testimony should view the accomplice of an with distrust. This does not mean you may that arbitrarily disregard testimony. give that testimony weight You should that you think it examining deserves after it light with care and caution and in the of all evidence in the case.” Letner also required give contends court was related accomplice (defining instructions—CALJIC Nos. accomplice), 3.10 (requiring accomplice 3.11 that testimony corroborated), be (describing sufficiency evidence), 3.12 corroborating and (instructing 3.16 law)—to that Tobin was an accomplice as a matter of provide context for the requiring instruction testimony Tobin’s be viewed with caution. Moreover, the corroborat that the the truth. telling satisfied accomplice itself, circumstantial, and related weight by be of little evidence ing may (1987) v. Miranda (People testimony. one merely part accomplice’s 1127].) Tobin’s testimony 744 P.2d Cal.3d Cal.Rptr. [241 murder night question Letner at the scene of the placing indeed, corroborated; Letner was was no there sufficiently dispute the extent Tobin’s this testimony The jury obviously rejected present. by relating all blame for the murder Letner upon testimony placed implicitly and went home. left Letner and Pontbriant alive well that Tobin that, to that of Tobin’s testimony, we conclude with regard part Therefore harmless; found it the jury apparently absence of instructions was accomplice instructions, and there is no in the absence of the accomplice incredible even corroboration for the whether there was adequate need for us to evaluate testimony question. sum, that the of instructions directing
In there is no likelihood absence that incriminated testimony distrust the of Tobin’s to view with jury portion have Letner, of Tobin’s could testimony, it to find corroboration requiring Letner’s guilt. affected the decision jury’s Tobin) (Letner,
c.
Intoxication
Voluntary
the signifi-
instructions concerning
contend the trial court’s
Defendants
failed to
because
intoxication were
voluntary
inadequate
cance
an aider
the mental state of
that condition could affect
to the
how
explain
our decision in
People
Defendants rely upon
and abettor.
Mendoza
(Mendoza), in which we
P.2d
Assuming Mendoza, supra, (See error was harmless. any subject inadequate, instruction the relevance at all on any Cal.4th at the court gives p. [“If that the consider [citation], may instruct might jury of intoxication it simply an aider and abettor a defendant tried as intoxication in whether determining circumstances, we “review state.”].) had the mental In these required it ‘reasonably likely jury as a whole to determine whether is instructions the intoxica- considering’ the instructions as it from misconstrued precluding error Any in and aiding abetting liability. tion evidence deciding [Citation.] and defense evidence is thus excluding subject would have effect of if it also finds only usual standard state law error: ‘the court must reverse for affected the to defendant.’ adversely a reasonable the error verdict probability (Id. 1134-1135.) intoxication voluntary Although pp. [Citation.]” did not did not mention aiding abetting, instructions specifically whether preclude evaluating use of evidence of intoxication jury’s abetted, is, whether, to the trial court’s defendants aided and pursuant instructions, criminal other one defendant knew of the other defendant’s aided of the crime. Nor did the the commission purpose intentionally intoxication in that the could not consider prosecutor argue jury voluntary aider and abettor of the crimes whether a defendant who was an determining formed the mental for There is abetting. nothing state required aiding understood that the mental record to indicate the would not have jury could both to states set forth in the intoxication instructions voluntary apply the mental of a direct and to those required states required perpetrator Moreover, a voluntary aider and abettor. neither defendant actually argued reasons, error in the instruc- intoxication defense to the For these jury. any evidence, did of defense nor is it tions consideration preclude jury’s have resulted in a that different instructions would reasonably probable verdict more favorable to defendants. “defendant” in this and singular
Defendants also use of challenge instructions, “erroneously encouraged jury other because this assertedly court, however, in- treat them as entities.” The trial fungible specifically used in the instructions structed the that the word “defendant” was entitled to your order to that “each of these defendants ... is emphasize consideration, to each of individual and that is why apply instructions] [the *78 reminded the that it them The trial court also individually.” jury separately and each defendant individu- was to the evidence for weigh against required There is no an verdict as to each of them. to reach ally independent reasonable likelihood that the misunderstood or the instruc- jury misapplied because of the “defendant” in the tions use word singular. (Tobin) Admissions
d. Adoptive motion, Tobin contends the trial court was on its to own instruct required, admissions, to CALJIC No. 2.71.5 for jury pursuant concerning adoptive of Officer Letner’s purpose evaluating Wightman’s testimony regarding statement as to where Letner was Tobin in Pontbriant’s car.29 As taking discussed, ante, H.B.l.a., Letner’s statement was not it part hearsay, and not to that was offered Tobin believed and admitted that Letner’s prove statement true. was to CALJIC Accordingly, instructing jury pursuant No. 2.71.5 would have been inappropriate confusing.30 (Letner, Tobin)
e. Possession Stolen Recently Property of Defendants the trial court’s instruction to the to challenge jury, pursuant 2.15, CALJIC that it infer from of recently No. could defendants’ possession stolen that committed a but that such an inference was robbery, property in the not sufficient to establish defendants’ of that offense absence guilt evidence Defendants contend instruction violated corroborating guilt. their constitutional because it constituted an instruc- rights improper pinpoint tion that was beneficial and shifted the burden of prosecution proof defendants, and an irrational inference because the promoted possession itself, stolen does not establish whether property, by property obtained a theft. We have merely by rejected robbery previously claims, in our similar and do so for the same reasons again expressed prior The instruction did not shift the burden of and was not an decisions. proof instruction for the benefit—the instruction pinpoint prosecution’s improper benefited defendants in that it notified the that it could not convict them jury 29 presently you “If should find from the evidence This standard CALJIC instruction reads: (1) reasonably that there was an occasion when defendant under conditions which [a] [the] false, an to make a opportunity reply; afforded [him] [her] [failed denial] [or] [made accusation, statements,] contradictory expressed directly face of evasive or an [him] charging which defendant presence, or in with the crime for this [her] [his] [her] [him] [her] commission; that tending now is on trial or to connect with its [her] [he] [she] [him] nature, circumstance of heard the accusation and understood its then the [his] [her] [silence] indicating may against be considered occasion [and] [conduct] [him] [her] accusatory for that the accusation was true. Evidence of an statement is not received admission truth, only meaning purpose proving supplies its but as it [silence] [and] [conduct] you accused in the face of it. Unless find that defendant’s [silence] [and] of'the [a] [the] true, you accusatory must at the time indicated an admission that statement [conduct] 2.71.5; (CALJIC 357.) No. entirely disregard the statement.” No. see also CALCRIM 30 ante, H.B.l.a., concluded, limiting instruction part the absence of We also Tobin, prejudicial, because the could find Letner’s statement was himself, Wightman. told a similar lie to Officer
189 their of the evidence establishing possession based robbery solely upon the irrational inference The instruction did not invite Pontbriant’s property. finding defendants had robbed Pontbriant without that the could find jury the jury used force or fear to obtain her because separately they property, theft, and there was no robbery instructed the elements both regarding all of that the need not find that instruction suggestion challenged jury (or theft) had been reasonable robbery beyond elements proved 782, v. Holt (People 619, 677 (1997) doubt. 15 Cal.4th Cal.Rptr.2d [63 Parson 332, People 213]; P.2d 44 Cal.4th 355-356 see also v. [79 v. Prieto People 269, 226, 1]; 187 P.3d 30 Cal.4th Cal.Rptr.3d [133 (Prieto); Smithey People (1999) 20 Cal.4th 66 P.3d Cal.Rptr.2d 1123] (Smithey).) P.2d 975-978 1171] (Letner, Tobin) f. Consciousness Guilt Defendants contend the instructions that evidence of jury informing defendants’ consciousness of rise to an inference of guilt may give guilt their (but that it is insufficient itself to violated their constitutional guilt) prove because the instructions were overbroad and rights, argumenta- impermissibly tive.31 that evidence of Defendants assert instructions failed to state consciousness of must be considered to each defendant guilt individually. mentioned, however, As we the trial court instructions previously gave that each defendant was entitled to the consider- emphasizing jury’s separate ation of the evidence him. that the instruction against urge Defendants also false statements was because the statements at issue did improper murder, not “concern” or “relate” to and therefore it was Pontbriant’s irrational to draw an inference of of the crimes based defendants’ guilt upon their unrelated lies. The untrue statements made defendants to Officer and to Denise defendants’ travels “concerned” Wightman Novotny regarding the crimes committed Pontbriant in the sense tended to establish against they that defendants were crimes and to flee before conceal those attempting were This inference drawn from evidence was not apprehended. irrational.
We have defendants’ contentions in numerous rejected remaining prior cases, The no reason to reconsider those decisions. perceive to find jury instructions did not consciousness-of-guilt improperly permit state, nor did instructions by that defendants mental these possessed specific find of all of the charged themselves allow guilty (Rundle, instructions argumentative. offenses. not impermissibly supra, 152-154.) 43 Cal.4th at pp. 31 (willfully jury pursuant The trial court instructed the to CALJIC Nos. 2.03 false
statements) evidence). (attempt suppress 2.06 *80 Facilitate, Other Crimes As Motive or to
g. for, Flight (Letner, Tobin)
The trial court instructed the ato modified version of CALJIC jury, pursuant 2.50, No. that evidence concerning defendants’ commission of crimes other admitted than those in this case had been charged for limited of purpose either motive for or facilitation demonstrating flight flight.
not to consider that evidence for other such as permitted any purpose, defendants’ to commit crimes. Defendants contend the predisposition giving of this instruction was constitutional error. without the trial Again considering court’s instruction that the case each defendant was to be considered against claim reiterate the have found initially defendants we meritless— separately, that the instruction failed to between them. distinguish
Second, contend that the instruction was erroneous because it failed to which other-crimes evidence had been admitted. identify precisely This contention is We have held that in avoid order to confusion misplaced. in a case which evidence of a defendant’s criminal includes not activity convictions admitted to the defendant’s own but also only testimony, impeach 1101, (b) other-crimes evidence admitted under section subdivision Code, Evidence the trial court must which evidence is referred to in specify (2001) the CALJIC Catlin 26 given No. 2.50 instruction v. jury. (People 81, 31, 357]; Cal.4th 26 P.3d v. Rollo Cal.Rptr.2d People [109 109, 123, Cal.3d fn. 6 P.2d instruc- Cal.Rptr. [141 771] [“CALJIC are neutral and but in certain clarity tions circumstances properly objective, be made to refer to the facts of the case before they requires specifically case, court.”].) There was no of such confusion in the possibility present Therefore, no evidence offered. the trial because criminal impeachment court’s instruction remained neutral and not objective” by referring “properly crimes. particular at defendants attack the the instruction
Finally, giving propriety all. Letner in a fashion that the instruction was argues conclusory that, or To the evidence for contrary, establishing “logical” “permissible.” Tobin—with Letner’s Jeanette encouragement—assaulted Mayberry example, and vandalized her and car before Pontbriant was only day apartment murdered, car on a and that defendants were found Pontbriant’s driving town, tended to demonstrate that defendants had out highway leading is, filed (that reason to leave Visalia of criminal charges being possibility in order to them), and that had robbed and murdered Pontbriant they against a rational could find that the juror facilitate their departure. Similarly, defend circumstance that Letner was in of stolen which possession property, car, in the was evidence to demonstrate tending ants took with them victim’s Pontbriant, they after because robbing murdering town fleeing their travel to sell it to pay merchandise with them order this brought not have evidence should Tobin’s other-crimes argument—that expenses. entirely offenses—is charged admitted because it was not similar been v. Ewoldt People acknowledged the mark. The we off requirements which 867 P.2d (upon 7 Cal.4th 402-403 757] of- relies) charged between degree similarity Tobin intent, a or identity, and the other crimes evidence to prove fenses required case, because common are design present plan, inapplicable People (See not admitted for of those any purposes. evidence issue was *81 407, 1, Demetrulias 137 P.3d (2006) Cal.4th 15 39 229] [“the [45 motive does not of other-crimes evidence on the issue of probativeness crimes, and uncharged between the charged on similarities necessarily depend nexus”].) as the offenses have a direct long logical so Tobin) (Letner, h. Motive familiar of the trial constitutionality
Defendants raise two to challenges 2.51, instruction, court’s CALJIC No. significance to pursuant that of motive in the determination of defendants’ or innocence: jury’s guilt the instruction the burden of to defendants to their shifted proof prove innocence, and failed to that motive alone is insufficient clearly explain 44 (Riggs, supra, establish We have these claims guilt. rejected previously at their merits. 314) Cal.4th and discern no reason to revisit p. Doubt Standard
i. Asserted “Dilution” Reasonable of Tobin) (Letner, contention, a claim that we As with raise previous again have of the trial court’s instructions uncon- repeatedly rejected—that several “diluted” the reasonable doubt standard.32 This claim remains stitutionally 315.) 44 (Riggs, supra, without merit. Cal.4th at p. Mental State an Actual Killer to Establish Required
j. Tobin) (Letner, Circumstance Special Allegations instructions, In defendants’ final challenge guilt phase jury that, Amendments to the federal contend under the and Fourteenth Eighth Court’s decisions in Tison v. Constitution and the United States Supreme 127, (Tison) 137 L.Ed.2d 107 S.Ct. (1987) 481 U.S. Arizona [95 1676] 1140, Enmund v. Florida 458 U.S. L.Ed.2d 102 S.Ct. 782 [73 3368] that, (Enmund), the trial court was to instruct jury support required 32 2.01, 1.00, jury pursuant Defendants take with instruction of the to CALJIC Nos. issue 2.21.2, 8.83, 2.02, 2.22, 2.51, and 8.83.1. true allegations, finding regarding felony-murder special-circumstance that evidence trial must establish reasonable doubt a defendant beyond was, minimum, who was the actual killer of the victim at a a major in the and acted with a “reckless indifference to underlying felony participant words, human fife.” In other defendants claim that it was although permis- sible for the trial court to instruct the that it need not find that actual jury victim, killer had the intent to kill the it was error not to further instruct the must, however, find that the actual killer was a jury major and acted with reckless underlying disregard participant felony life, is, human that he acted with a mental state” with regard “culpable the killing.
Defendants assert that we have “never confronted the squarely however, “[ejvidence We held a decade that the defendant ago, question.” . ‘a degree is the actual killer and murder . . establishes guilty felony sufficient under the Amendment defendant’s Eighth permit culpability ” 1016; Hayes (Smithey, supra, People execution.’ 20 Cal.4th at see also v. p. 874, 376]; P.2d People (1990) 52 Cal.3d Cal.Rptr. [276 Belmontes 755 P.2d 45 Cal.3d Cal.Rptr. 310] *82 clear that United States Court has made murderers Supreme felony [“The in who killed be to the death may subject penalty personally properly conformance with the Amendment—after consideration of Eighth proper and circumstances—even where no intent to kill is aggravating mitigating v. People Young (italics omitted)].) More in 34 shown.” recently, 112, 487], Cal.4th P.3d we the claim rejected 1204 105 Cal.Rptr.3d [24 defective under the and Eighth that “CALJIC No. 8.80 is constitutionally it a of death finding eligibility Fourteenth Amendments because permits defendant either intended to kill the the absence of a that the jury finding or, victim in the exhibited major underlying felony, participant reckless Taylor (See 48 Cal.4th People indifference to human life.” also [citing Young Hayes].) P.3d and To the 661 229 12] issue, we reiterate extent there could be doubt this any continuing that, in find a felony-murder that the should not be instructed order to true, find that a defendant who it it must allegation special-circumstance in the felony, killed the victim was a major determines actually participant mental related to the killing state any culpable specifically possessed victim, to human life.” “reckless indifference including court’s high in reliance contrary, upon
Defendants’ assertion Enmund, decisions in Tison cases concerned the is Those misplaced. and abettors who not of the death to aiders application penalty (Tison, U.S. at 138 supra, question actual killers of the victims. p. [“The in the events leading up is whether the petitioners’ participation presented the sentences of four members of a makes family the murder following although the Arizona courts constitutionally permissible of death imposed by inflicted kill the victims and neither intended to neither petitioner specifically Enmund, wounds.”]; at supra, granted 458 U.S. p. the fatal gunshot [“We certiorari, [citation], whether presenting question Enmund’s for petition Amendments for one death is a valid under the and Fourteenth Eighth penalty life, life, life.”].) The take nor intended to take who neither took attempted in Tison as follows: hold that its holding simply court stated ultimate “[W]e committed, indiffer combined with reckless major participation felony the Enmund life, ence to human is sufficient to satisfy culpability requirement.” (Ti Enmund, turn, son, 158.) at held as follows: supra, 481 U.S. p. “Enmund did kill or intend to kill and thus his is plainly culpability killed; them alike the robbers who the State treated yet different from of those who killed the Kerseys. and attributed to Enmund the culpability (Enmund, supra, under Amendment.” Eighth This was impermissible that the court concluded in Tison 798.) U.S. at circumstance p. indifference crime with reckless major underlying coupled participation death to be to human life was for the penalty imposed culpability sufficient an aider and that the court concluded—or signify high abettor does not upon in all necessary even are circumstances cases to establish implied—such as, death such for when the defendant is the actual killer. eligibility, example, observed, As our decisions have it has been the law that long past proof a defendant who is murder was the actual killer of the guilty felony itself—establishes victim—by degree impose culpability required Enmund, concerns, Tison the death which addressed different do penalty. Indeed, cases, not alter that established those viewed principle. properly, Tison, (See, reinforce that rule. supra, e.g., 481 U.S. pp. 149-150 dealt with two of all murders . . . : distinct subsets [“Enmund explicitly felony scene, [(1)] the minor actor in armed not on the who neither robbery, intended to kill nor . was found to have had mental state . . any culpable [and *83 killed, kill, (2)] murderer who or intended to felony actually attempted kill.”].) v. Estrada (1995) reliance our 11 People
Defendants’ decision in upon Cal.4th 568 P.2d likewise is In misplaced. [46 1197] case, that we review ... to resolve a conflict in the Courts of “granted Appeal a over whether trial court has a sua to define the ‘reckless duty phrase sponte indifference to human life’ when a a instructing jury regarding felony-murder the actual a defendant who is not special-circumstance allegation against 572.) killer.” We concluded the trial have no such at Our courts duty. p. {Id. that the California death law had been amended to recognition satisfy penalty (Estrada, the Tison 575-576) for nonkillers at did not reflect requirement pp. a view that the to actual killers had death-eligibility requirements applicable not—address in Estrada been had no did changed. We occasion to—and Tison, whether, under it must be that an actual killer acted question proved human with reckless indifference to life. in Hopkins Reeves
Similarly,
court’s decision in
relying upon
high
1895],
5.
Defendants
contend their
under state law and the federal
rights
the trial court’s failure to order
Constitution were violated by
transcriptions
made of all
trial
Defendants
out
total of 62
proceedings.
point
*84
and counsel were made “off the record” during
discussions between
court
trial,
instructions.
a conference
including
guilt phase jury
record
discussions violated
Defendants are correct
that the failure to
these
190.9,
(a)(1),
that all conferences and
section
subdivision
which requires
“
a
case must be conducted
‘on the record with a
in death penalty
proceedings
held, however,
an error
have
that such
court
We
reporter present.’
previously
se;
defendant
not
instead the
must demonstrate prejudice.
is
reversible per
110.) Defendants have
43 Cal.4th at
(Rundle,
p.
supra,
[Citations.]”
that holding.
reason to revisit
a compelling
presented
“
to
“adequate
record
only
appellate
entitles a defendant
law
‘[S]tate
in the appeal.
raised
[Citation.]
to argue”
points
or
permit
her]
[him
and equal
The due process
are similar.
Federal constitutional requirements
the state to furnish
Amendment require
of the Fourteenth
clauses
protection
and effective
adequate
a
sufficient to permit
defendant with record
an indigent
rever-
Amendment
Eighth
requires
Similarly,
review.
appellate
[Citations.]
risk
to create
substantial
is
deficient as
where the record
so
only
sal
manner.
arbitrary
capricious
in an
is being imposed
death penalty
the record is
showing
inadequate
the burden of
The defendant has
[Citation.]
(Rundle, supra,
review.
meaningful
[Citation.]”
to permit
appellate
[Citation.]’
110-111.)
Cal.4th at
pp.
discus-
to transcribe the
that the failure
Defendants have not established
review
and effective appellate
has
adequate
sions at issue
prevented
More-
was arbitrary
capricious.
a substantial risk
judgment
created
itself,
190.9,
did not
over,
(a)(1), by
subdivision
the violation of section
under Hicks v. Oklahoma
interest”
“liberty
defendants of
deprive
175,
2227],
Illinois
343,
(Rivera v.
L.Ed.2d
100 S.Ct.
447 U.S.
346 [65
1446,
_
320,
Due
L.Ed.2d
129 S.Ct.
1454] [“The
556 U.S.
[173
instruct,
obser-
Clause,
not the meticulous
safeguards
Process
our decisions
elements of
‘the fundamental
but
vance of state
prescriptions,
procedural
107, 121, fn. 21
”];
(1982) 456 U.S.
in a criminal trial.’
v. Isaac
Engle
fairness
‘mere
that a
recognized
have long
L.Ed.2d
1. Denial Defendants’ Tobin) (Letner, motions to sever their denying the trial court erred Defendants contend why two reasons essentially their trials. They present penalty phases *85 196
the trial court’s (1) decision was erroneous: the joint trials allowed penalty to conflate the prosecution evidence each defendant against so that the prosecutor’s arguments that both defendants deserved the death penalty them of the deprived “individualized constitutionally required consideration” (2) trial, appropriate penalty; course of the joint each defendant evidence in presented that was harmful mitigation potentially defendant, other but which would not have been admitted as properly vein, aggravating evidence had been tried In a similar separately. Letner also that the argues amount of greater evidence that aggravating was pre- sented Tobin had an against effect that improper “spillover” prejudiced consideration jury’s of Letner’s punishment. observed,
As we have there previously is “undisputed statutory for a trial preference joint (§ a similar trial of penalty following 190.4).” guilt 271, (1992) 276, v. Roberts 2 (People Cal.4th 328 826 P.2d Cal.Rptr.2d [6 (Roberts).) The trial court must exercise its broad discretion to 274] resolve motions to sever the tried penalty phases jointly codefendants v. (People 48, (2000) 623, Ervin 22 Cal.4th 96 (Ervin)) 990 P.2d Cal.Rptr.2d [91 506] a manner consistent with “the need for individualized consideration as constitutional requirement (Lockett death sentence” imposing v. Ohio 973, Ervin, 2954]; 438 U.S. L.Ed.2d 98 S.Ct. see supra, [57 95-96). Cal.4th at We conclude for the pp. following reasons the trial court’s decision in the case not to sever the present penalty phase discretion, defendants’ trial not an abuse of and did not deprive individualized required consideration of the appropriate to which each was entitled. penalty did not that the prosecutor argue need not improperly jury defendant; consider the sentence for each instead
separately she properly that each argued defendant was in the crimes committed equally culpable Pontbriant, and that against those crimes warranted the death for each penalty defendant. To the extent either defendant’s evidence have might portrayed other defendant in a bad did not light, prosecutor improperly exploit addition, defendants’ cases in In mitigation. the trial court in respective structed the that it must consider the evidence each jury separately defendant, must not consider evidence admitted for a limited in favor purpose defendant, of or one defendant in against for the other deciding penalty and must reach a verdict as to each defendant. The trial separate court also set forth in the specifically instructions which criminal exactly activity each defendant could be considered in and instructed the aggravation, jury evidence, that it could not consider other criminal any activity aggravating case, from unrelated to the and the including custody, burglaries sale escape and use of narcotics. The is to have the trial followed court’s presumed instructions in the absence of indication it was or unable do any unwilling so. 43 Cal.4th P.3d (People Lewis
197 1155, Taylor 1173-1174 People Cal.4th 947]; (2001) [113 26 v. Ervin, 95-96.) The record supra, at
827, 937]; pp. 22 Cal.4th 34 P.3d penalty, each defendant’s consider did the jury separately demonstrates it had the court that notified deliberations it days because after several reach a defendant, unable to at that time was but a as to one reached verdict Roberts, supra, [concluding at 328 2 Cal.4th (See p. as to the other.33 verdict verdict” of its penalty “careful consideration and the jury’s that the record determination individualized received an that the defendant demonstrated a reached Moreover, that the jury the circumstance in light culpability].) defendants, a even less of possibility we discern both death verdict as to one defendant’s attempt based assigned upon the jury culpability improperly his accountability by shifting of his own actions mitigate seriousness Ervin, supra, there [concluding 22 at 96 (See Cal.4th p. codefendant. undue culpability the jury assigned in the record suggesting “nothing evidence”]; cf. Foster v. codefendants’ mitigating defendant after his hearing 670, in a case in Commonwealth 1991) [concluding, 683 827 S.W.2d (Ky. verdict, reversal of the death did not receive a which the codefendant errors” of the “accumulated as a result of death sentence was required that was evidence mitigation prejudicial the codefendant’s admitting of a verdict].) showing “In the absence did receive a death defendant who to assess unwilling indepen- were unable or that the in this trial jurors joint codefendant, can find no abuse of each we dently respective culpability in to sever failing defendants’ constitutional rights] discretion violation of [or (Taylor, supra, 1174.) at the trial . . . .” 26 Cal.4th p. another Letner raises argument, brief filed to oral
In a supplemental
prior
the motions to sever.
trial
erred by denying
basis for
that the
court
claiming
v.
Kennedy
in
Court’s decision
the United States
Relying upon
Supreme
525,
2641],
Louisiana
S.Ct.
he
L.Ed.2d
128
(2008)
Equity Superior v. Cal.2d Cal.Rptr. [20 937]; Rodriguez de 369 P.2d Quijas Shearson/Am. Exp. see also U.S. L.Ed.2d 109 S.Ct. of this precedent [“If 1917] case, has direct Court application yet to rest reasons appears rejected *87 decisions, other some line of the should follow the case [lower courts] controls, which to directly leaving this Court the of its prerogative overruling decisions.”].) own
2. Assertedly Cross-examination Letner Improper Regarding of (Tobin)
Letters He the Concerning Wrote Crimes Letner, the During direct of he examination testified five briefly concerning letters murder that he to regarding Pontbriant’s wrote fellow inmate jail that Danny Payne were which and Letner would part plan by Payne offer information to the in return for favorable treatment. On prosecution cross- examination, the Letner at questioned length prosecutor concerning letters, primarily focusing inconsistencies between the letters and upon Letner’s penalty testimony the murder. This phase regarding cross- examination was the letters supported display enlarged copies before the and Letner’s aloud from of the placed jury, reading portions letters. letter, In first Payne Letner told that Tobin decided to kill Pontbriant beer, while Letner was out but that Letner arrived when back purchasing account, at the house he found her in In stabbing Tobin the neck. this Tobin Letner that he told killed Pontbriant because she had refused his sexual letter, advances. Letner in the not tell testified that first he did Payne “truth,” because he did not to admit to and letting want a coward Tobin being (Letner) kill Pontbriant while he watched. to merely According Letner’s murder, testimony, did not believe this and Letner Payne version wrote several more letters “the exact truth.” subsequently recounting These n additional letters consistent Letner’s trial with generally testimony. Letner, however, also he had to wrote that to Pontbriant’s house steal gone car and to she her have sexual relations with her so that would him give He further he did money. stated that have sexual intercourse with her on the to trial and that also had demanded to (contrary testimony), couch his Tobin however, Pontbriant, have sex with her. became and threatened to call angry Letner, which a heated both Tobin and triggered response by police, it her. although murdering was Tobin who went extreme unexpected did not letters that Tobin had to kill him if Letner mention threatened testified, however, he Letner content of these interfered. some of murder, had told Payne’s which Letner to letters version of Payne into the letters. incorporate introduc- testimony Letter’s for a mistrial based
Tobin twice moved
upon
that was not con-
Tobin
concerning
information
assertedly
ing
prejudicial
letters,34
object
prosecutor’s
but did not
specifically
tained
Moreover, Tobin’s attor-
concerning
Letner
the letters.
cross-examination of
letters.
Letner
concerning
also cross-examined
ney
however,
contends,
elicited by
the testimony
Tobin
On appeal,
it
because
concerning the letters
improper
cross-examination
prosecutor’s
(2) violated section
of inadmissible
(1)
hearsay,
the introduction
precipitated
Code,
the introduction of
inappropriate
the Evidence
352 of
precipitated
evidence,
constitutional
confront
right
denied Tobin his
aggravating
Tobin, however,
claims
him.
forfeited his appellate
the witnesses against
extent Tobin contends
raise
in the trial court. To the
them
failing
one of the
hearsay,
testimony
Letter’s
based
objection,
upon
*88
claim,
is
he
hearsay
was sufficient
to
Tobin’s
preserve
appellate
letters
this
did not foreclose
Even if Tobin’s failure to
join
objection
mistaken.
which,
claim,
by
Payne,
Letter’s
concerned a letter written
Danny
objection
wrote,
stated,
truth
Payne
the
not offered for the
of what
as
was
prosecutor
is,
did in
that
write
but for the
of
what Letner
explaining
response,
purpose
the
the letters
the murder. The trial court
overruled
regarding
properly
Moreover,
that
have no
the issue
bearing
the contents of
letter
objection.
upon
the
the letters written
prosecution’s
concerning
whether
cross-examination
to
Letner introduced
evidence as
Tobin.
hearsay
improper
event,
are
In
Tobin’s
claims
without merit.
any
appellate
the letters
a proper
cross-examination
prosecution’s
explored
the
of
to rebut Letter’s
which included
subject
basis
which
upon
testimony,
can
supra,
letters.
Cal.4th at
the
(Mayfield,
p.
[cross-examination
in
detail
than the direct testimony,
defendant’s testimony
greater
explore
and,
broad].)
of
is very
in
the
cross-examination
general,
scope
permissible
extent
to the denial of the motion
challenge
To the
this claim restates Tobin’s
stated,
trials,
to
we
a claim for the reasons
reject
sever
such
penalty phase
ante,
of
Tobin’s constitu
in
II.C.l. Use
the letters also did not violate
part
him,
to
even
we to
with
right
against
agree
tional
confront
witnesses
were,
that the letters
to some
the statements
degree, actually
his assertion
did not
Letter
that the letter
Payne,
testify.
who
testified
Danny
Although
was
from the
writing
leniency
prosecution,
supposedly part
plan
gain
a law
Payne
acting
is no evidence in the record
that
was
suggesting
there
Therefore,
did
in this
the statements in
letters
agent
process.
enforcement
defined
evidence as that term has been
after
not constitute “testimonial”
Washington
v.
(2004)
States
decision
United
Court’s
Supreme
Crawford
34
(Tobin)
Napa,
that
had
and
Letner
that Tobin told Letner
he
killed someone
mentioned
during
argument at
Earl
the Iowana
Letner testified that Tobin
about to shoot
Bothwell
Motel but that Letner was able
disarm Tobin.
177,
1354],
3. Assertedly Erroneous Admission Unadjudicated Prior (Letner, Tobin) Offenses Defendants contend the admission at trial of evidence concerning their violated unadjudicated prior rights offenses their to due and a process time, reliable determination because of the penalty passage supposed evidence, of the and the that the unreliability circumstance that consid ered whether the offenses had unadjudicated been had found proved already case, this guilty charges thereby assertedly eroding of innocence. presumption Assuming this claim constitutes a challenge statute, of the death constitutionality defendants therefore penalty may raise it for first time claim nonetheless fails. We appeal, *89 have concluded that the that such previously unadjudicated requirement offenses be a reasonable doubt the proved beyond before consider jury may them in is sufficient to a defendant’s aggravation protect rights. constitutional 268, 605, v. Valencia (People (2008) 43 Cal.4th 311 180 P.3d Cal.Rptr.3d [74 Smith (2005) 351]; 334, 554, People v. 35 Cal.4th 368 Cal.Rptr.3d [25 v. 229]; 1016, People (1999) 107 P.3d Carpenter 21 Cal.4th 1060-1061 [90 153, 607, 531]; People Williams (1997) 988 P.2d v. Cal.Rptr.2d 16 Cal.4th 239 123, 710]; 764, People Stanley P.2d 940 v. 10 Cal.4th Cal.Rptr.2d [66 543, 481].) 822-823 P.2d Defendants have not Cal.Rptr.2d 897 persuaded [42 us that this conclusion is incorrect.
4. Asserted Prosecutorial Misconduct During Penalty Phase (Letner, Tobin)
Closing Argument Defendants contend the committed misconduct at the prosecutor by stating, to the “Lastly, conclusion of her ladies and closing argument jury: gentlemen, remember that the the this Remember Jesus thief on cross forgave proverb. who, him, next to his own admission was condemned. He justly gave thief a thief die in But the still had to for his crimes. In place paradise. California, name of of the death you the State I ask to return [P]eople penalty.”
201 to cite Bible as a basis religion impose “A not or may prosecutor hand, not have it is suggested On the other we the death penalty. [Citations.] fear who jurors might the benefit of argue, religious to for impermissible otherwise, does to secular law according death that application penalty [citations], not contravene society’s or that the Bible shows biblical doctrine v. Zambrano (People historical capital punishment [citation].” acceptance (Zambrano).) 1082, 297, 163 P.3d (2007) 41 Cal.4th Cal.Rptr.3d 4] [63 to argument by attorneys have that references made We biblical recognized that their verdict if tend to convince the jury are would the jury improper from what is stated be or other should based legal principles apart upon 215, 261 v. Wash (People (1993) 6 Cal.4th court’s instructions. [24 trial 421, Bible vice in referring 861 P.2d primary Cal.Rptr.2d 1107] [“[t]he ‘diminish the argument may jury’s other is that such authority religious another, law . . . higher for its verdict and responsibility imply sense cases, law in the court’s instruc be should applied capital displacing [Citations.]”].)35 tions.’ statement, be or to request
Defendants failed
object
ás
rather
admonished to follow the law
set forth
the court’s instructions
objection
than a biblical
Because we cannot assume that an
proverb.
ineffective,
have
futile
defendants have forfeited
admonition would
been
(Zambrano,
1169;
supra,
their
claim of misconduct.
41 Cal.4th
p.
appellate
477,
People
Slaughter
Cal.Rptr.2d
Cal.4th
[120
(Slaughter); People
v. Wrest
(1992) 3 Cal.4th
47 P.3d
262]
event,
1020].)
biblical
prosecutor’s
839 P.2d
In any
did
constitute
misconduct.
reference
prejudicial
Zambrano,
that,
his
although
In
we concluded
the prosecutor prefaced
concerns
any
remarks
he was
religious
allay
explaining
attempting
for
death
would be
juror might
contrary
have
voting
penalty
his
that concern
addressing
biblical
actual remarks went
teachings,
beyond
instead
demanded that
the death
be
penalty
asserted that
Bible
has
quoted
when
defendant
committed murder.
imposed
prosecutor
*90
9,
man,
“(‘whoever
by
Genesis
verse 6
sheds the blood of
man shall
chapter
man’)” (Zambrano,
supra,
shed,
blood be
for
God make
image
his
in
did
[H]is
two
1168),
Cal.4th
and told the
that “this stood for
concepts:
at p.
jury
the
is
for murderers is
to
necessary
preserve
‘The first
that capital punishment
35
explicitly
rendered
decisions
We observe that defendants’
trial occurred before we
our
jury’s
responsi
the
condemning
argument
in
that lessen
sense of
biblical references
counsel’s
that set
court’s
bility
imply
jury
that the
should follow some law other than
forth
trial
argument
“postdates
that
and
Accordingly,
prosecutor’s
we are not faced with a
instructions.
more
deliberately
holdings
might]
the
in
a
contravenes
those decisions
[which
constitute^
warranting
penalty phase judgment.”
form
misconduct
reversal
prosecutorial
serious
of
(People
v. Vieira
fn. 11
Defendants contend the biblical reference in the prosecutor’s present which her constituted statement the penultimate to jury, improper because it contrasted the seriousness of defendants’ with offenses those of crucified, the thief who was that were more implying deserving sentence, a death and (2) lessened the of a death verdict significance afterlife, that defendants could implying forgiven be for their crimes in the be more to such if might likely obtain forgiveness they sentenced General, hand, death. The Attorney on the other asserts that the prosecutor’s comments be viewed as might simply contrasting of secular concepts reference, and religious and that the brief accountability forgiveness, biblical which followed extensive under prosecutor’s arguments why, regarding law, statutory the death not applicable penalty justified, would have been jury argument as an that the Bible or afforded interpreted religion sentence, reasons to this or lessened the impose jury’s responsibility a death verdict. weighing
Even
for the
assuming
sake of
biblical
argument
prosecutor’s
references
bounds
overstepped
we
proper
penalty phase argument,
conclude
do
reversal of defendants’
In the
require
judgments.
present
Zambrano,
case,
as in
“the
biblical comments
‘were
prosecutor’s
part
longer argument
focused
factors
properly
upon
aggravation
”
(Zambrano,
supra,
Moreover,
1170.)
41 Cal.4th at
mitigation.’
in contrast
p.
Zambrano,
at issue
comments
here did not tell the
prosecutor
that the Bible “makes it man’s
duty
death
impose
penalty]
[the
Vieira,
(Ibid.;
supra,
of human life.”
Cal.4th
sanctity
see also
preserve
references,
which
pp.
[concluding
prosecutor’s
296-298
biblical
included
that under
doctrine
Judeo-Christian
stating
religious
punish
“capital
life,
ment for
is
necessary
sanctity
murder
in order
of human
preserve
and . . .
the severest
of death can
severity
underscore
only
penalty
*91
Slaughter,
life,” were not
supra,
203 than if the minds the jurors more in of prominent have been somewhat might the statement the of that if argument, fallen middle it had somewhere margin a much narrower by the it did so argument crossed line of improper these error For we found the harmless. than in other cases in which have have reasons, would is no the jury we there reasonable possibility conclude the not made had prosecutor favorable to defendants reached verdict more 405, v. Williams People Cal.4th (See the biblical references. 466-467.) Jury’s Sentencing Options Instruct the Concerning Failure to
5. Tobin) (Letner, trial their by denying requests
Defendants contend the court erred in its the the that the sentence it chose instruct jury regarding probability different out. requested slightly verdict would be carried Each defendant instructions, which, the by as we were refused both of shall explain, properly trial court. instructions, the trial
We
held that the
which
jury
have
standard
long
case,
the
meaning
court
inform
gave
jury
the present
adequately
the
the sentences that are
when
has found
legally permissible
jury
Abilez,
(See,
defendant
murder.
e.g.,
has committed
circumstance
special
527-528; Prieto,
People
supra,
supra,
270;
v.
statement indicating that the Governor’s commutation to both power applies sentences but that it would emphasizing be violation of the juror’s duty to consider of such possibility commutation in determining appropriate sentence. When the issue is not raised expressly [Citation.] [f] it jury, is a close question whether it is for the court preferable give such instruction cautionary on the that some assumption jurors might otherwise be aware of the it, of possibility commutation and consider improperly whether such an instruction is more simply the matter likely bring to the and, matter, jury’s attention as a be practical difficult to follow.” We therefore (as concluded that when case) issue, present does not jury raise the trial court has no an duty give instruction concerning subject its motion, (Id. own but must do 159, so if the defendant one. at requests p. 12.) fn. Ramos,
In the wake of we have addressed numerous claims of error from the trial arising court’s refusal to give instruc defense-requested jury tions that sought to convey that it jury should not consider the possibility some future event might the fulfillment prevent sentence it One clear rule imposes. that, that has from the cases emerged is the trial although court generally must give instruction when the defendant one, the trial requests motion, court is not to do so on required its own and of it course should not an instruction give that is incorrect. v. Gordon (People 1223, (1990) 451, 50 Cal.3d 1275 P.2d Cal.Rptr. 792 is of [270 251] [“It course axiomatic virtually that a court may give such only instructions as are Further, correct law.”].) statements of the we have held that is as “[i]t incorrect to tell the of death or life penalty without possibility will be parole inexorably carried out as it is to need not take suggest they their because the determination responsibility seriously ultimate of penalty rests 86, elsewhere.” (1988) (People Thompson 45 Cal.3d 130 [246 245, 753 P.2d Cal.Rptr. see also (Thompson); v.Ashmus People 37] 932, Cal.3d 994-996 820 P.2d Cal.Rptr.2d (Ashmus).) In the [2 214] case, the trial court present therefore refused to properly give following instruction defendant requested by Tobin: “A sentence of life without possi bility parole means that MR. TOBIN will remain in state for the rest prison of his life and will not be A paroled anytime. sentence of death means MR. TOBIN will be executed in the chamber.” We reiterate that gas such an instruction is an (See incorrect statement law. People v. Lindberg 45 Cal.4th 664]; 190 P.3d Thompson, supra, 130-131.) Cal.3d at pp.
We must that our acknowledge cases have some displayed inconsistency instructions akin one following Letner: “You requested by are to that if a defendant presume is sentenced to life without the possibility he will parole, rest of his life in state spend You are to prison. [][] death, that if a defendant is sentenced to he presume will be executed in the *93 would Ramos, an instruction suggested appropriate chamber.” In we gas commutation that the Governor’s indicating consist of a “short statement a violation that it would be but to both sentences emphasizing power applies of such commutation the the to consider juror’s duty possibility of 159, (Ramos, 37 Cal.3d at supra, p. the sentence.” determining appropriate not instruct that a trial court should 12.) fn. In after Thompson, holding out, we what suggested—in will be carried inexorably that the sentence jury 995)—that at (Ashmus, 54 Cal.3d p. in Ashmus as dictum supra, we described would the defendant’s request a of the law to be given upon correct statement circumstances that might or not there were instruct the “that whether jurors from without of parole either the death or life possibility preclude penalty out, for of assume it would be carried out purposes carried should being defendant . . . .” (Thompson, sentence for this determining appropriate instruc- 131.) at some defendants requested 45 Cal.3d supra, p. Subsequently, not” of our statement Thompson tions that omitted the “whether or part similar to Letner’s would have told the in a manner jury, proposed simply instruction, it will be must “assume” that the sentence imposes the jury 426, 173, (1991) In Fierro 1 Cal.4th 250 Cal.Rptr.2d carried out. v. People [3 instruction, as (Fierro), P.2d we concluded that such an compared 821 1302] inexorably to one that tells the that the sentence it chooses incorrectly jury and, out, as we have will be carried “was not similarly misleading, previously observed have been Thompson], given.” should [in decisions, however, of to have concluded that telling
Some our also appear misleading to assume the sentence will be carried out is jury 770, 92, (1996) incorrect. v. Arias 13 Cal.4th 172 (People Cal.Rptr.2d [51 “an instruction that the P.2d trial court refused to give 913 properly 980] [the executed, defendant would be must assume a sentence of death meant jury meant while a sentence of life without possibility parole imprisonment in state and will will the rest of his life confined prison spend ‘[defendant] 43, ”]; (1992) 4 Cal.4th not be time’ v. Hawthorne any People paroled 133, claim that trial court had 75-76 841 P.2d [rejecting Cal.Rptr.2d [14 118] a death that it must assume on its own motion to instruct duty jury out, “misstates the will be carried because such an instruction sentence law”].) that a instruction that would have We also have concluded proposed that a sentence of life in without possibility parole told jury prison and that therefore means the defendant never will be released on parole, “ not be in this case defendant will ‘must assume in jury determining penalty ” ever,’ (1998) Roybal was incorrect. 19 (People released from prison 487, 481, 521].) recently, P.2d More Cal.4th 524-525 966 Cal.Rptr.2d [79 272, 277], 70 P.3d v. Cox 30 Cal.4th People Cal.Rptr.2d [135 at the defendant’s the trial court erred by giving, we addressed a claim that “ that a verdict of death is find you instruction providing: request, ‘[I]f will be without must assume that such penalty imposed,’ appropriate, you giving similar instruction a sentence of life regarding without the possibility We concluded the trial parole.” court did not err in so instructing jury verdict, a death because regarding “it would be erroneous to instruct although verdict, that if it returns a death jury sentence of death will inexorably out[,] be carried the trial court such an instruction at the may give defendant’s (Cox, supra, 967; v. Williams People 30 Cal.4th at request.” see also p.
43 Cal.4th P.3d that “to [observing 1035] instruct it must assume that a sentence of life without means the defendant possibility will be for the rest of parole imprisoned *94 his or her life is inaccurate it because fails to that the Governor acknowledge commutation”].) retains the power
It that the tension our appears among decisions apparent regarding this subject stems from the evolution of the instructions that we have reviewed, which have not reflected the basic to be served always by purpose Ramos, supra, such instructions. As we observed in 37 Cal.3d at a page should not “consider that are jury matters both and that totally speculative not, event, should in influence any determination.” the Accordingly, [its] of an instruction to the the that the purpose jury concerning possibility it selects will or will not punishment be carried out is to inform actually the that such future which jury concerning events—of no speculation possible evidence been has at the trial—is and should not presented improper play any deliberations the part jury’s regarding appropriate penalty. Telling that it should “assume” or that the sentence will be carried jury “presume” out obscures Such instruction. an instruction also is purpose that, in the sense misleading although other presumptions assumptions that are instructed to juries consider have their bases in logic experience, is, fact, a or that the sentence will be carried out in presumption assumption aware, contradicted the real of which some be that jurors may possibility, the sentence will be carried We not out. therefore conclude the trial court did not err Letner’s instruction. by refusing give proposed future,
In the if in a case the and the trial court decide particular parties that an instruction on this issue would be the court instruct appropriate, might as follows: “It is to decide which is jury your responsibility penalty in this case. You must base decision evidence appropriate your upon you court, in have heard informed the instructions I have You must given you. not be influenced than those considerations other by speculation by any which I have instructed you.” upon conclude,
Even to the extent we
of our decisions in
might
light
Fierro,
such
that in the
case the trial
failure to give
cases
court’s
present
error,
error was harmless
instruction
Letner was
such
requested by
any
“[Ajbsent
evidence to
suggest
jury
under
standard.
any
any
would
about the issue or concerned
sentence^]
confused
[defendants’]
out,
deemed
cannot be
prejudicial.”
not be carried
the failure to so instruct
confusion
(Fierro,
250.)
There was no evidence
supra,
1 Cal.4th
p.
case,
defendants’ arguments
nor do we accept
or concern
the present
are confused or concerned
establish that jurors typically
studies”
“empirical
(See
issue.
bring
these
even when
do
expressly
up
with
questions
487.)
have rejected repeatedly
Boyer,
38 Cal.4th at
We also
supra,
p.
meaning
that the
of an instruction
contention
absence
violates
sentence of life
without
possibility
parole
imprisonment
court’s decisions
federal constitutional
under
rights
high
defendant’s
v. South Carolina
L.Ed.2d
114 S.Ct.
Simmons
Tobin contends the trial court erred and his *95 motion, on its own instructions rights by giving, accomplice Letner testified at the of the circumstance that testimony, light penalty claim that the trial of the trial. This claim Letner’s phase parallels guilt phase of the trial guilt court should have similar instructions given during phase addressed, ante, a claim that we based Tobin’s upon testimony, part trial, n.B.4.b. “In both the and the court guilt penalty ordinarily phases [(to No. view an must instruct sua with CALJIC 3.18 jury sponte caution)] care with and when out-of-court statements accomplice’s testimony are admitted into We have evidence. police accomplices [Citations.] however, when the testi recognized phase accomplice exception, penalty relates to an offense of which the defendant has been con mony already 1166, 553, v. Carter (People (2003) victed.” Cal.4th 1223 30 Cal.Rptr.2d [135 981].) 70 P.3d Even in the event the failure to give accomphce-testimony mentioned in Carter did not is, if the (that instructions was error exception “the extent of his case because Tobin contested apply present culpabil was, (ibid.)), error in instructions as with give such ity” any failing claim, under standard. The jury obviously Letner’s harmless guilt phase any because it also sentenced him to death testimony, despite discounted Letner’s the victim of a murderous his that Pontbriant was testimony rampage addition, Tobin, there which Letner had tried to In prevent. adequate Tobin. Tobin corroboration of Letner’s to the extent it incriminated testimony he was had testified that he was at Pontbriant’s house already night; murder, and he fled with Letner to Iowa. A found in the victim’s car after the evidence found rational could find that this juror testimony, plus physical car, at the house and in the Tobin in the crimes. implicated 208 the Constitutionality
7. brnia’s Death Challenges of Calif (Letner, Tobin) Statute Penalty Defendants raise a number of constitutional to California’s challenges that, death law have been they acknowledge, penalty rejected repeatedly by court. this no reason we should reexamine our They provide persuasive why decisions. prior 846, (2010)
As we
observed in
v.Alexander
Cal.4th
recently
People
938
190,
(Alexander):
P.3d
reiterate that the
[113
873]
“[W]e
death
statutes
narrow the class of murderers
for
eligible
penalty
adequately
overbroad,
the death
are not
or
and do not
vague
penalty,
impermissibly
result in an
or ‘wanton
freakish’
‘arbitrary
capricious’
penalty
determination.
also have held that the statutes do not
that the
require
[We]
at the
burden of
or
prosecution carry
proof
persuasion
penalty phase,
make
or reach
decisions regarding
written
unanimous
jury
findings
factors,
find
or that
reasonable doubt
aggravating
jury
beyond
(1)
(2)
factors have been
factors
aggravating
proved,
aggravating
factors,
(3)
death
is
sentence.
outweigh
mitigating
appropriate
(2000)
L.Ed.2d
120 S.Ct.
Jersey
v. New
aggravation, 198.) (Rundle, offenses. 43 Cal.4th at unadjudicated supra, p. instructions, statutes, of terms such
“The use in the and in the standard jury ‘extreme,’ ‘substantial,’ believed,’ the and ‘at time ‘reasonably as the factors does not limit offense’ in forth setting mitigating impermissibly or otherwise result in an or arbitrary evidence mitigation capricious statutes, The as translated into those standard jury determination. penalty instructions, and describe the which jury adequately properly process at jury its determination. There is no need to instruct is to reach penalty 190.3, to section (1) a burden of regarding proof, except penalty phase (2) of (b) (c), regarding and or the absence of burden proof, factors (3) that factors can be considered mitigating of the term meaning ‘mitigation,’ aggravat- that if the evidence mitigating outweighs only mitigation, evidence, of life without the possibility must sentence impose ing the death even is not penalty that the jury required impose parole, evidence. The evidence outweighs mitigating if it finds the aggravating factors that trial court need omit from the instructions any mitigating not (Alexander, not to to the defendant’s case.” 49 Cal.4th supra, appear apply 938.) p. court engage
“There is no that the trial court or this requirement a death verdict. A sentence intercase review when proportionality examining of death that with and federal and constitutional law statutory state comports norms, Amendment to the does not violate international law or or the Eighth 938-939.) (Alexander, United States Cal.4th at Constitution.” supra, pp. (Letner, Tobin) D. Asserted Cumulative Error effect the asserted errors have Defendants contend cumulative sentences, even if raised reversal of their convictions appeal requires none of the errors is We this claim. In those individually. reject prejudicial few instances in which we have found error or assumed the existence of error, combination, we have concluded that error was harmless. In these any do errors the conclusion that defendants were denied a fair trial. compel Disposition
III. judgment as each defendant is affirmed in its entirety. Baxter, J., Chin, J., J., concurred. Corrigan, J., WERDEGAR, Late inthe of March Concurring Dissenting. night 1, 1988, a red-and-white Ford Fairmont with rain traveled through speckled deserted downtown Visalia. Police Officer Alan Visalia Wightman area, aware of recent auto thefts in the saw the car and had a Department, hunch the driver was involved in some so he followed it. illegality, Wightman confirmed radio that car had not been stolen. Still suspicious, reported influence he that the driver be under the or alcohol imagined might drugs and, officer, like a trained followed the car but observed no properly peace offenders, violations of the traffic laws common to such nor did he see either the driver or the imbibe an The car beverage. eventually alcoholic passenger left the downtown area and entered the Officer freeway, Wightman whereupon *97 miles observed that it was 40 hour on a stretch of traveling highway per where the limit 55. At that effected a traffic Wightman was speed point stop; detained and the driver and defendants Richard briefly questioned passenger, Tobin; Letner and Allan and conducted a visual scan Lacy Christopher quick later, of the car’s interior and trunk. Several hours after the of Ivon discovery murder, it, located the car and additional finding Pontbriant’s searched police evidence.
210 Kennard,
As Officer lacked reason- Wightman Justice fully explained law, able had cause believe driver of Ford Fairmont violated any effect, and the officer thus had no reason to detain—in legally justifiable seize—defendants. I therefore of Justice Kennard’s dissent- join portion and ensuing that concludes Officer traffic ing opinion Wightman’s stop (See opn., post, detention violated defendants’ Fourth Amendment dis. rights. below, 217-220.) But I this constitu- as because conclude pp. explained doubt, it tional violation was harmless a reasonable does beyond require I concur decision to affirm the Accordingly, majority’s reversal. judgment.
I. rule, As a violations of the United States Constitution general require reversal of the criminal unless the error can be found resulting judgment v. (Chapman (1967) a reasonable doubt. 386 U.S. beyond harmless California 18, 705, 824].) 24 L.Ed.2d 87 S.Ct. This standard review stringent [17 v. North Carolina Amendment. (Bumper the Fourth to violations of applies Rich 543, 797, v. 1788]; People U.S. 550 L.Ed.2d 88 S.Ct. [20 960]; People P.2d 45 Cal.3d Cal.Rptr. [248 case, 19].) In Jasmin (2008) 167 this Cal.App.4th traffic obtained two of evidence from categories unjustified stop: People itself, the detention and evidence from a search of evidence obtained during below, the the car the next As evening. explained inculpatory power evidence as a direct result of the traffic was and its negligible, gathered stop search, thus harmless. As for the later car because defendants admission was vehicle, not chal had no interest recognizable may possessory at trial the evidence thereby the search or to the admission lenge object obtained, significance nor in event was evidence any particular case, the evidence of Chapman recognizing this prosecution. Applying extensive, admitting I conclude the error guilt defendants’ traffic a result of Officer challenge Wightman’s defendants now evidence harmless a reasonable doubt. beyond stop
II. defendants resulted in the decision to and detain Officer Wightman’s stop their criminal trial: evidence admitted them in against following being he conducted a of a common buck knife when (a) Wightman’s discovery Letner; (b) observation of Heineken of defendant Wightman’s patsearch {ibid.); (c) statements concern- beer bottles in the car defendants’ Lowenbrau (d) observation and identifi- night; Wightman’s their destination ing of Pontbriant’s car hours just defendants as the driver and passenger cation of directly came to the the crimes. Because all this evidence People after *98 that, traffic seizure in Justice exploiting stop, Kennard’s explained dissenting reasonable cause to believe the driver opinion, unsupported by post, (dis. was in violation of 218-219), law the evidence any opn., pp. should have been under Fourth Amendment to the United suppressed “ ” Sun v. United (Wong States Constitution as ‘fruit of the tree.’ poisonous States 441, see People 407]; 371 U.S. L.Ed.2d S.Ct. [9 Sims 5 Cal.4th 992].) 853 P.2d if Only the admission of this evidence can be found harmless a reasonable beyond doubt can we affirm the judgment.
We may discount quickly first two for lack items value. probative The of knife Officer found in type Wightman defendant Letner’s pocket not uncommon or unusual and anwas otherwise legal nor was the implement, blade Moreover, matched to the wound suffered by the victim. when police disassembled the knife and experts examined its found component parts, they blood, that, no suggesting given amount of blood copious spilled by victim due to the of her carotid severing Letner’s buck artery, knife was not the murder weapon.
Nor was Officer Wightman’s observation of the beer bottles in the car particularly and, The bottles were inculpatory. of common brands although scene, those brands were linked to the murder the evidence of the officer’s observations was cumulative to other evidence: discovered the police same car, bottles in their later search of the and defendant Tobin testified at trial that he had both Heineken bought and Lowenbrau beer and shared it with Letner and the victim she night was murdered. Neither Wightman’s of Letner’s discovery knife nor his observation of the beer bottles could have been significant to the decision. jury’s also introduced into People evidence certain statements defendants had detention,
made during but none illegal was of significance. particular Officer Wightman testified at trial that Letner told him the Ford Fairmont he Pontbriant, was driving Street, to Ivon belonged that she lived on North Jacob but that he did not know the exact address. But as Wightman testified at the suppression hearing—and could presumably have testified at trial—before he defendants he had stopped received already information via radio that police the car to Pontbriant. belonged
Officer Wightman also testified at trial that at the time of the Letner stop home, said he was Tobin taking whereas Tobin said that Letner was taking Crenshaw, him home to Tobin’s house on South where he lived with *99 “Jeanette” his Jeanette the girlfriend majori- (presumably Mayberry). Despite characterization of defendants’ statements this detention as “incon- ty’s during ante, 143), sistent and untruthful” at no (maj. p. inconsistency apparently opn., is and the would not have the occasion given statements apparent were believe that defendants evasive.1 being
The most evidence the obtained from the inculpatory People unjustified Pontbriant’s traffic was the of defendants as identity persons driving stop circumstances, car was But considering after she murdered. all shortly below, defend- this evidence of little in connecting detailed was importance a bar An of Letner’s placed pair ants to the murder. acquaintance and killed. Tobin evening between 7:30 9:30 Pontbriant was p.m. p.m. he and Letner left to go also testified were at bar but evening, house. The three of them the evening drinking together, Pontbriant’s spent and Letner calls to Burdette and Kathy Pontbriant made Edward phone had called him Burdette corroborated that Pontbriant Letner Coronado. around 8:00 or later. Forensic determined that night p.m. experts killed late Sometime after and before midnight, Pontbriant was that evening. the now Officer observed two challenged traffic making stop, Wightman radio by White men a red-and-white Ford Fairmont and determined driving the evidence of that the car’s owner was Pontbriant.2 aside registered Setting then seen around a.m. that same traffic were 4:00 stop, foot, access to a at Denise home. without Novotny’s Apparently morning, car, work, a ride it was if her them give saying asked husband could they with defendants and Novotny recognized was emergency. acquainted them, thereafter fled told them her was out of town. Defendants but husband (See People under circumstances suggestive guilt. city suspicious P.3d 41 Cal.4th 521-522 58] Abilez That even- guilty an inference logically permits knowledge].) [flight Iowa, Once in found defendants’ in Pontbriant’s car. ing property police Bothwell, Earl defendants confessed their new employer, from a had taken a red-and-white Ford wanted for murder California and Iowa, law Letner being escaped woman. After apprehended temporarily custody. enforcement knife, sum, of defendant Letner’s buck Wightman’s discovery
In Officer car, defend- recounting his of the beer bottles in his observation statements, inculpa- considered or were not together, particularly singly ants’ testimony to the Although Wightman’s placing tory prosecution. important was, contrast, the victim’s after she killed defendants in car shortly this information was useful to undoubtedly prosecution, presented 1 inconsistencies, hearing but testimony at the revealed few more Wightman’s suppression jury. these were not heard 2 victim. point yet did know that Pontbriant a murder The officer at this
jury by other means as well. Wightman’s observation of two White men legal in Pontbriant’s car that with the later night, coupled discovery by police Fairmont, defendants’ in the abandoned Ford belongings sufficiently placed Thus, defendants in the car at that critical time. when weighed against web murder, of other evidence defendants to connecting Pontbriant’s *100 admission of the evidence obtained from Officer Wightman’s improper detention of both defendants was a harmless reasonable doubt. beyond
III. after the traffic evening returned to stop, police Pontbriant’s Ford Fairmont, it, which was still where parked defendants had left and searched it car, for clues. In the discovered a white police rag evidence of blood bearing and some trunk, bottles of Heineken unopened and Lowenbrau beer. In the found police some stolen cosmetic and hair care items identified witness by (Id. Jeanette Mayberry as belonging defendant Letner. 121.) Police p. also found in the trunk a sword and a that defendant shotgun Tobin testified belonged to him. These items were evidence that significant defendants had and, been in the car had inferentially, in Pontbriant’s murder. participated Defendants contend the items should have been as tainted suppressed by initial States, Sun illegality traffic stop. (Wong v. United unjustified supra, 371 488.) U.S. at But p. because neither defendant owned or legiti- mately found, the car possessed which this evidence was are they foreclosed from challenging of the car’s legality search.
“ ‘Fourth which, Amendment are rights personal rights like some other constitutional rights, not be may asserted.’ A vicariously person [Citations.] who is aggrieved by search and illegal seizure only through introduc tion of evidence secured damaging a search of a third by person’s premises has not property had of any his Fourth Amendment rights infringed. [Cita And since the rule exclusionary tion.] is an to effectuate the attempt guaran Amendment, tees of the Fourth [citation], it is proper only permit defendants whose Fourth Amendment have been rights violated to benefit from the rule’s (Rakas Illinois (1978) 128, v. protections.” U.S. 439 133-134 387, L.Ed.2d 421].) S.Ct. 99 [58 voter of approval 8 in Proposition “[S]ince 1982, June state and federal claims relating exclusion of evidence on grounds of unreasonable search and seizure are measured the same v. standard.” (People Camacho 824, (2000) 23 Cal.4th 830 Cal.Rptr.2d [98 232, 878].) 3 P.3d “A defendant has the burden at trial of a establishing legitimate expectation searched or the privacy place seized.” thing v. Jenkins (People (2000) 900, 22 377, Cal.4th 972 997 P.2d [95 1044]; see also Rawlings v. Kentucky 98, 448 U.S. 104 L.Ed.2d [65 2556].) 100 S.Ct. who, A a the rightful with borrows vehicle from owner person permission, it for a exercises control over time thereby legitimate temporary period Leonard a in the car. (People has recognizable expectation privacy However, 757].) mount a Cal.Rptr. Cal.App.3d “[t]o vehicle, show, a must other things, to a search of among challenge it, basis for such as from owner. legitimate permission being Defendants who have a for car legitimate being do not basis [Citation.] object that is in the name of the car’s cannot any registered occupants (U.S. v. Ponce (2d 1991) F.2d of the vehicle.” Cir. search Here, 649.) Letner if Tobin testified that had asked Pontbriant he although car, could Letner told him borrow her Officer testified that Wightman Pontbriant, the car was self- testimony had borrowed from Tobin’s both witnesses’ and thus inadmissible hearsay statements serving, Gilliland, contrast, for the matter who lived with truth of the stated. Walter *101 Pontbriant, and involved with testified she was of romantically was protective the her allowed to drive it. In absence of solid evidence anyone car and rarely it had her defendants or with they driving Pontbriant loaned car to her and in I conclude defendants light of Gilliland’s permission, testimony, lacked contents. Consequently, a of car’s legitimate expectation privacy admission of the evidence discovered defendants not the may challenge therein.
But defendants that Pontbriant had even were we assume established a interest lent car and that at one time had it them her possessory contents, in its legitimate any sufficient to create a privacy expectation it. Officer Wightman such had ceased the time searched police expectation Because challenged shortly midnight. effected the now traffic after stop intoxicated Letner a license and Tobin too did not have driver’s appeared drive, the side defendants to the car on Officer instructed leave Wightman time the car had to retrieve road. Although ample Fairmont, Ford recalled red-and-white Wightman seeing following day, it, 5:30 had left hours later at' many p.m. still where defendants parked that time By next did not the car until around p.m. Police seize 9:00 evening. owner, Pontbriant, and identified as murder victim police the car’s had been Given of the Fairmont. had determined that she was the owner Ford car, any that defendants had abandoned of time indications passage night have had in car the interest they may previous temporary possessory v. Smith (See People time it. had searched police expired 409 P.2d reasonable Cal.2d 800-801 Cal.Rptr. [no [48 222] car]; People Shepherd abandoned rental expectation privacy of privacy 828-829 expectation 458] [no Cal.App.4th truck].) in a abandoned in stolen purse event,
In even were any I conclude defendants could challenge evidence,3 admission of this its admission A particularly damaging. forensic of the analysis bloody could not match the blood rag definitively to defendant; either the blood was found to be consistent with defendant merely blood, Tobin’s as it was also with Gilliland’s blood. Because Gilliland co- car, habitated with the victim and had access to her presumably because the victim’s blood was not found on the force of the rag, persuasive forensic evidence of the even bloody rag negligible, considering Tobin had told fellow allegedly inmate Gerrard he Gregory was worried about the discovery The diminished rag. value of the is probative rag clear when we it to the evidence found at the compare murder scene: police (a) bloody hair; hairs on the victim’s that matched defendant body Letner’s (b) blood on (consistent a pillowcase with both defendant Tobin’s and Gilliland’s blood); (c) a semen stain on the consistent with Tobin’s carpet (and antigenic Gilliland’s); evidence, inconsistent with activity (d) strong Tobin’s including own that both testimony, defendants had much spent with the evening victim.
Police found a Heineken beer bottle and a Lowenbrau beer bottle at the cap scene, crime some lending significance to the bottles of beer of the same brand found police in the Ford Fairmont when they searched it. But these brands of beer are and, event, not particularly distinctive or unusual in any *102 Tobin testified he had some purchased Heineken and Lowenbrau beer and drank it with the victim the night she was murdered. Accordingly, evidence from the car was merely cumulative and hence not particularly inculpatory.
The balance of the evidence found by Pontbriant’s car police is of even less Jeanette importance. identified the stolen Mayberry cosmetics and hair care items found police in the trunk as defendant Letner’s but there property, 3 question A presented may whether having is defendants be viewed as abandoned only Pontbriant’s car Wightman illegally because Officer stopped the car and detained them. (See, e.g., U.S. v. Ienco (7th 517, 529, 1999) Cir. 182 F.3d fn. 12 police left in a car [evidence by an following illegal arrestee abandoned].) arrest cannot be held voluntarily to have been Because more than elapsed Wightman’s 18 hours had between Officer stop traffic and the search, however, police and the parked car was left on a public street and was not situated so suggest as to possessory (such defendants retained a being interest in it parked private as in a driveway garage), or to conclude defendants intended to abandon Pontbriant’s car and its contents, irrespective car, moreover, stop, of the is reasonable. Defendants’ abandonment of the distinguishes (Dis. this case from the authorities opn., post, cited in the dissent. 220-221, event, 2.) pp. any fn. In we need not resolve whether the subsequent car search was because, by below, tainted illegal stop explained traffic the evidence found in the car very could not have significant jury’s been guilty, decision to find any beyond error was thus harmless a reasonable doubt. doubt with the she murdered: night was little Letner was victim was testified, Tobin so and both Burdette and Coronado defendant Edward Kathy Pontbriant) that Letner with had made a aggres- testified series of (together calls This night sive to them on evidence telephone unequivo- question. Letner home at the victim’s on the murder. Nor cally night places trunk, found in the car’s signifi- either sword the shotgun, by police him, Tobin testified and neither belonged cant: the items was used crimes. and admitted with the victim on the Finally, being Tobin testified she was killed. night sum, even entitled challenge
In were I to conclude defendants were car due interest fleeting warrantless search of Pontbriant’s to some possessory it, in the car was of little value or inculpatory the evidence found either car cumulative to other The of the evidence from the evidence. admission was thus harmless a reasonable doubt.4 beyond above,
For the reasons I with Justice Kennard’s although agree stated that Officer traffic dissenting Wightman’s stop supported opinion cause, I to affirm reasonable concur in the decision majority’s judgments of conviction. J.,
Moreno, concurred. case, a car late KENNARD, J., In this officer Dissenting. police stopped limit, Because the car was below the traveling posted at night. speed The day the driver of intoxicated. after being stop, officer suspected (the driver and defendants in this discovered that the his passenger police car owned who had been murdered case) had been in a a woman traveling I of the detention. majority legality before shortly stop. upholds disagree.
I *103 1988, 1, Officer Wightman March Visalia Police Alan midnight Around on Visalia. It had rained through a Ford downtown traveling saw Fairmont earlier; cars in the area were in that area a of hours heavily couple parked wet, the had blown off. vehicles were because many moving dry drops while wet, it Wightman the Ford Fairmont’s exterior was Officer suspected Because months, the the three recently. until In nearby previous had been parked 4 unnecessary additional that because defendants’ claim This conclusion renders it address not, below, hearing possessory a rely at on defendants’ lack of People suppression did car, (See theory right appeal. forfeited the to raise that People have interest 1554, may People People v. Wilkinson Cal.App.4th 501] 163 1574 [78 [“the original suppression hearing”]; at see also theory a new not raised . . . tender 585, 33].) Superior Court Cal.Rptr. Cal.3d 511 P.2d 640 [108 Lorenzana vehicle had of vehicle theft and
police many received reports tampering earlier, used car A week lots in downtown Visalia. one approximately lots, lot,” officer as a car had a which the described “used Ford reported stolen, car be theft. that the Ford Fairmont might Wightman Suspecting laws) followed it no through (breaking the car as traveled town and turned onto an to State on which cars were traveling no other on-ramp Highway at the a time. A call-in soon revealed that the car was owned by Wightman Pontbriant, it Ivon and that had not been stolen. private party, reported At the the car State it was a freeway, where entered point Highway awith maximum limit of miles But after a hour. short speed per very half, distance, Officer which estimated at “a three of a Wightman quarters mile, closer mile a a to a it became with maximum maybe,” highway speed limit of 45 hour. The traveled at per miles car 40 miles hour on the short per stretch freeway; the officer then where the car limit stopped speed He did so because he the driver dropped. primarily being suspected intoxicated, that in his intoxicated drivers tend explaining experience to drive for slowly no reason. apparent
In the (the driver) car were defendants Richard Lacy Letner Christopher Allan (the Tobin Letner told had passenger). Wightman Officer that he Pontbriant; Tobin, drunk, borrowed the car from Ivon Letner and who was made inconsistent statements their destination. Officer regarding Wightman down patted Letner found a buck knife in his he also pants pocket; saw beer opened bottle in the car. When a plain view Letner could not produce license, Officer Wightman ordered the two to walk home. murder,
The next after day, of Pontbriant’s learning officers searched police found, the car and in addition to personal belonging to both property defendants, a with blood on At rag it consistent with defendant Tobin’s. house, the Pontbriant’s found beer the same police bottles of brand as bottle opened that Officer had seen in the car at the Wightman time of night. stop previous
H enforcement agents may briefly moving “[L]aw automobile stop criminal investigate reasonable that its are involved in suspicion occupants activity. a car and Although its stopping detaining [Citation.] occupants Amendment, constitute a within seizure of the Fourth meaning governmental interest in an officer’s reasonable based investigating suspicion, *104 facts, on and articulable specific may the Fourth Amendment outweigh interest of the driver and in from secure the intrusion. passengers remaining 218 (United Hensley 221, States v. U.S. 226 L.Ed.2d 469
[Citation.]” 604, Here, below, the 675].) 105 S.Ct. as at the time of car stop explained in- Officer lacked a reasonable that defendants were Wightman suspicion activity. volved in criminal car, car, the marked being traveling
That while followed a police the limit of 55 State Highway miles hour below maximum per speed car did not to a reasonable that the driver had stolen the give suspicion rise It is at all and was therefore to avoid contact with not trying police: car, to a of unusual for a driver slow down upon seeing police irrespective Here, the down when Officer suddenly driver did not slow any wrongdoing. Rather, driver did not acceler- following the car. Wightman merely began ate to the maximum limit after speed entering freeway. case, of
Four come to mind as to under circumstances this why, reasons First, if, as Officer slowly freeway. a driver have driven on the might testified, a Visalia were still wet from cars downtown Wightman parked wet, rain, that the too was still freeway recent it is reasonable infer heavy most down because of road slippery which would lead motorists slow Second, a it is at all for drivers not to accelerate to conditions.1 unusual here, when, only drive at that for just maximum limit can speed speed Letner, a mile a limit. If defendant about before of drop posted speed miles had immediately of at 40 hour on the freeway, instead driving per limit 55 miles hour after entering accelerated to the maximum of per speed minute only have for a before he could maintained freeway, speed became a fell to 45 miles hour. limit on the stretch that highway per speed Third, late drive slower at midnight; night, occurred many people stop Fourth, car’s Officer testified visibility. Wightman because poor fear a might a driver “running rough”; problem engine experiencing and decide not to drive at the maximum posted speed mechanical problem limit. decision on the legality there is no California
Although published limit, speed it is below maximum traveling car because simply stopping that such lacks requisite courts in other states have concluded stop criminal engaged activity to believe that the driver is reasonable cause Faunce State (See circumstances. unless there are other suspicious fact that the defendant 2004) 884 So.2d (Fla.Dist.Ct.App. [“the to a reasonable give alone rise case was is not sufficient driving slowly this v. Brown State fact 1993) N.W.2d mere (N.D. [“The suspicion”]; 1 Motor Department the California’s published California drivers A handbook for per hour on wet roads. speed by their five 10 miles recommends that motorists reduce Vehicles Vehicles, (2010) p. 67 <http://www.dmv.ca.gov/pubs/ 2010 Cal. Driver Handbook (Dept. Motor 29, 2010].) July dl600.pdf> [as
219 that a driver is at a slower than traveling usual on a not speed does roadway itself create a reasonable under the influence suspicion driving alcohol or of other illegal (2007) State v. Bacher activity.”]; 170 Ohio App.3d 727, 864, 457 867]; Ohio 867 N.E.2d (2006) State v. Rincon 122 Nev. [2007 233, 236-237]; 1170 P.3d 2000) Richardson v. State [147 39 (Tex.Ct.App. 634, 640; 386, S.W.3d Raulerson v. State 223 556 S.E.2d Ga.App. [479 387]; 424, v. Rotkvich People 256 124 Ill.Dec. Ill.App.3d 888, 892]; N.E.2d (5th 163, 165; see also U.S. 1992) Cir. 977 F.2d Diaz U.S. v. (D.N.M. 1991) Abdon-Limas Here, 780.) F.Supp. there were no suspicious circumstances tending to show that the of the car occupants engaged illegal activity. rain,
Because of the recent Officer found Wightman it significant that of water droplets were still on the car. This led him to that the car had suspect been stolen from most, one of the car however, lots in downtown Visalia. At presence on the car indicated that it had raindrops not been driven a long distance. It did not carlot; indicate that the car had been stolen from a the car could have been parked downtown area before it was driven to the freeway. learned, And once car, Officer Wightman stopping before that it was registered to a dealer, owner private rather than a car it was no longer reasonable for him to believe that the car had been stolen from a carlot. however,
According majority, Officer Wightman sus- reasonably pected car was stolen from a car lot in downtown VisaHa. To explain why this suspicion was reasonable even after Officer Wightman learned that the car dealer, was owned not a car but aby private (Pontbriant), the party majority asserts that “the dealer have might recently purchased [the car] records, yet updated or the ownership car could have been at the ante, for dealership repairs.” (Maj. 148.) at opn., These p. hypothetical are assertions too speculative support majority’s conclusion of reason- able suspicion by officer that the car had been stolen from a car lot.
The majority that, also cites three cases to its conclusion support because the car in question traveling miles hour below the maximum per limit of “a speed reasonable officer might the driver of the suspect car to avoid attempting ante, contact with the police.” (Maj. at opn., 147.) p. These three cases are distinguishable, however. case,
The first (5th U.S. v. 1998) Villalobos Cir. 161 F.3d states that “noticeable deceleration in the of a car presence can contribute patrol reasonable even suspicion, though drivers often slow when see law enforcement (Id. 291.) decelerate-, personnel.” But here the p. car did not rather, it failed merely to accelerate maximum 55-mile-per-hour speed limit when it entered the freeway. *106 case, 1481, U.S. v. Lopez-Martinez 1994)
The Cir. 25 F.3d (10th second the a states that a slow “maintaining noticeably speed presence police (Id. 1486.) . . . at But in that two may officer nervousness case suggest p. border, both cars were the at a far the traveling near Mexican below speed (30 limit hour when the limit 55 miles was posted speed per posted speed weather, miles hour) in broad and in when no other cars per daylight good road; the for slow were on there was no the cars’ apparent explanation speed. Here, (40 the driven Letner faster going car defendant significantly and, zone) as miles hour in a when per 55-mile-per-hour stopped explained 218-219, ante), (see earlier the circumstances the surrounding pp. stop at for indicated that the car was that valid reasons. traveling speed v. Gibson third People (1963) case on which the relies is 220 majority 775], a which states: “The fact that driver 15 Cal.App.2d Cal.Rptr. [33 at the under where he a slower than limit circumstances speed speed proceeds is higher at the also a factor might normally speed appearing proceed (Id. Gibson 20.) at But in investigation.” detaining officer’s justify p. vehicle two minutes after slow-moving learning officers observed within street, a.m.) (4:00 of a the same at a time when no other cars were robbery on car, street; a motion . . . while the officers “observed following like in the back something which looked to them ‘someone trying put ” (Id. 18.) car’ or ‘someone car.’ moving something p. part facts lacking Such are here.
When, case, a court denies a motion erroneously in this trial suppress Fourth Amend- evidence obtained in violation of federal Constitution’s ment, a “beyond if the court can reviewing say error is harmless only did that the not contribute to” the complained reasonable doubt evidence 154, 667, (Franks v. Delaware U.S. L.Ed.2d conviction. 438 162 [57 North Carolina 2674]; also U.S. Bumper S.Ct. see Here, 1788].) midnight L.Ed.2d 88 S.Ct. Officer Wightman’s Pontbriant, in a to Ivon belonged observation of both defendants car was murdered earlier indicating with evidence Pontbriant together role in the case. key Although prosecution night, played prosecution’s I say cannot tending guilt, beyond also other evidence show presented did not contribute Wightman’s testimony reasonable doubt that Officer verdict.2 jury’s 2 Wightman’s concurring dissenting opinion agrees with me that Officer Werdegar’s Justice the car that certain evidence found in illegal.
detention of defendants was But she concludes notwithstanding against and was admissible linked defendants to the murder legitimately possessed neither owned or illegal reasons: defendant detention. She “[B]ecause found, challenging legality from are foreclosed car in which this evidence was above,
For the reasons I given would reverse both defendants’ murder convictions judgments of death. for a
Appellants’ petition was denied rehearing 2010. September Kennard, J., was of the that the should be opinion petition granted. *107 (Cone. J., ante,
the car’s search.” opn. 213.) & dis. of Werdegar, at p. part Based in on this conclusion, she reasons that the trial court’s erroneous denial of defendants’ motion to suppress the seized beyond evidence was harmless a reasonable disagree. doubt. I agree I do search, that defendants challenging are foreclosed legality from of the car because the car was not owned defendants but murder victim Pontbriant. But at issue search; legality here is not the of the legality at issue here is the preceded detention that the search. “If physical evidence found in the was the fruit of the defendants’ vehicle[] detention, unlawful it suppressed,” must be though even possessory defendants lacked a (U.S. (10th 1491, 1499-1500; interest in the 1996) vehicle. Cir. 100 F.3d see also 6 Shareef LaFave, (4th 194-196; 2004) 11.3(e), Search and Seizure ed. pp. People § v. Glick Here, Cal.App.3d 315].) Cal.Rptr. 799-800 linking [250 seizure of the evidence detention, defendants to the murder Wightman’s illegal followed Officer after he ordered both car, evidence, defendants to Thus, leave the which still incriminating contained the by the road. that seizure was a fruit Wightman’s illegal (see of Officer Wong detention of defendants Sun v. United States U.S. 407]), 487-488 L.Ed.2d 83 S.Ct. and the items found in the car suppressed. should have been