*1 Aug. S066527. 2008.] [No. PEOPLE, Respondent,
THE Plaintiff and LINDBERG, Defendant and Appellant. GUNNER JAY *5 Counsel Hersek, Defender,
Michael J. State Public under by the appointment Supreme Court, Turner, Defender, E Ronald State Deputy Public for Defendant and Appellant. Brown, Jr.,
Bill Lockyer General, and Edmund G. Attorneys Robert R. Anderson, General, Schons, Chief Assistant Attorney Gary W. Assistant General, Attorney Denault, Rhonda L. S. Cartwirght-Ladendorf Adrianne General, Deputy Attorneys for Plaintiff and Respondent.
Opinion MORENO, J. found jury defendant Gunner Jay Lindberg guilty A Code, (Pen. first degree 187)1 murder of Thien Minh and found § used personally (§ (b)). a knife subd. further found jury true allegations circumstance special defendant committed murder 190.2, (§ commission of attempted robbery (a)(17)(i), former subd. now race, color, subd. (a)(17)(A)) and because of the victim’s national- religion, 190.2, ity, origin (§ (“hate-murder” country (a)(16) subd. special circumstance)). trial,
At defendant’s penalty returned a death jury verdict. The trial (§ court denied 1181) defendant’s motion for new trial and automatic applica- 190.4, tion to modify (§ (e)) verdict subd. penalty and sentenced him to death. (§ This is automatic. (b).) subd. appeal We affirm the judgment. Proceedings
I. Facts
A. Prosecution Guilt Phase Case
1. The Murder Thien Minh Ly *6 Defendant concedes that the he murdered on the prosecution proved Ly Tustin High School tennis courts on January 1996. 28,
The evidence showed that on January between 8:30 and Thien 9:00 Minh left his home in p.m., Ly family’s Tustin his wearing Rollerblades and behind wallet and leaving his car When did not keys. Ly home, return his the next family telephoned police day. statutory All further to references are the Penal Code unless otherwise indicated. Armenta, a.m., a groundskeeper Frank around 7:45 the same morning,
On on one Rollerblades School, lying someone wearing noticed at Tustin High was not Armenta noticed person As courts. he approached, the tennis two his neck. He asked a cut on his shirt and and saw blood on breathing call the police. school nearby employees body, they dead. Next Ly’s found they Ly
When the police responded, at fit locks key Ly’s key keyring. and a on single recovered cap residence. “some (i.e., having A contusion had multiple injuries. pattern suffered
Ly five an area about and linear abrasion marking”) comprising pattern-like face, from extending right Ly’s inches on side by inches four appeared and an abrasion appeared and ear. A contusion his to his cheek right forehead forehead, his mid-nose and a contusion on appeared left side of Ly’s left cheek. had Ly on his and his left Redness was visible eye. area below on the slash wounds and three-and-a-half-inch suffered five-and-a-half-inch neck, had Each of these wounds and left right sides of his respectively. wound, but did not inflict a single irregular edges, suggesting perpetrator had wounds to neck Ly’s cut and then extended the cut. The slash probably had suffered Ly inflicted time to his death but not postmortem. been close in his chest that on the left sides of right stab wounds multiple deep that were consistent with linear abraded areas organs, internal penetrated wound, stab of a knife from a deep penetrating caused being pulling area, arm, and an in his abdominal wounds on his stab wound right upper through wounds penetrated on his hand. Some of the chest right abrasion areas, to his chest and abdominal had 22 wounds Ly suffered about body. Each had been from the back. wound some inflicted from the front some about inch knife or with a blade object inflicted by single-bladed sharp depth in width. The maximum penetration to an inch a quarter in the about 14 times four and inches. had been stabbed Ly about one-half heart, Ly’s lungs, both heart. The stab wounds multiple perforated liver, duodenum, caused to bleed death. had kidney diaphragm, Murder Ly’s 2. Confession Defendant’s IV, testified was Dulaney, also known as Robert Ray Dulaney Walter Dulaney all his life. friend had known defendant defendant’s cousin and and, of first assault and degree burglary had been convicted previously testified, at someone. for shooting in Missouri custody time he *7 8 trial, defendant,
Sometime the five before during years and defend- Dulaney, ant’s brother Jerry2 formed a called the Insane gang (ICP). Criminal Posse In at primarily defendant’s in urging, became involved the White gang movement. power “White By Dulaney meant that Whites were power,” to all other races. superior He said defendant shared this view. who Dulaney, did part Japanese, not consider himself to be any race other than “American.” 29, 1996,
On February Dulaney, living who was in Alamogordo, New Mexico, received a handwritten letter from defendant dated February (the February letter). 23d Defendant had addressed the letter to “Dear Bro, “Oh, ex-con 2/11 Rob” and stated in relevant I killed a a part: while jap I ago. stabbed him to death at tustin I school walked to him High Dominic up was with me I and seen this guy Roller and I had a blading knife. We walked him, in the tennis court where he Iwas walked toup Dominic was right I there. walked right and he up [illegible] him was scared I looked at him said, ‘oh, I I knew and he thought you’ that he wasn’t got happy gona get then I hit him with one of jumped, mother fuckers and he on my feel ground and he said in low voice ‘what the very fuck’ and can ‘you have got.’ whatever I I have nothing only key. You can have I it’ then said ‘you car,’ oh got I knife out a butcher knife! and he said pulled ‘no’ then I the knife to his put throught and asked him ‘Do a car.’ you have And he grabed me, hand that my I had knife in and looked trying get of me so I on his head discription 3 times and each time stomped said ‘stop at me’ looking then he was kinda knocked out Dazzed then I stabbed him in the side about or 8 times he rolled over a little so I stabbed his back about 18 or times then he flat and I slit layed one side of his throught his Oh, vain. jugular sounds the guy were like uhhh making then said, did, Dominic it ‘do and I ‘I again’ said Dude’ it already ‘ya, do so again’ vain, I cut his other said, Dominic said ‘kill him it juggular do I again.’ said, ‘he’s already dead’ Dominic ‘stab him in the heart.’ So I stabbed him about 20 to 21 times in heart and we took off. . . . I wanted to go [T]hen look, back we did he so and was dicing just taking then some bloody air I gasps [illegible] nudged so face with shoe a few then my times I him, told Dominic kick so kicked fuck out of his face and he still knife, has blood all on his shoes over then I ditched the [smiley after face] it clean onto side of the 15 whiping freeway here’s the [smiley face] from the we news were on all the news clippings channels 2/11 paper Insane Loc in a ball tustin wish were . . having you (Errors here. .” original.) brother, Dulaney testified that Jerry defendant at various times used the name of his nickname,
Lindberg, Dulaney,” as well as the name “Gunner “Swiss G.” *8 letter, it to his mother gave stepfather, wife read Dulaney
After on the all of which occurred to police, then the letter gave Alamogordo who Orange to attention the letter day. Alamogordo brought same police Tustin Office and Attorney’s police. District County to defendant Dulaney by telephone spoke The next March day, rush,” a a Better than “like high. who told him the murder “gave [him] his throat that he “slit that he “killed Dulaney Jap,” Defendant told drug.” times,” and that he “couldn’t stop.” whole and stabbed him a bunch [,sic].” he killed “for racial movement Dulaney Defendant told 5, 1996, and Bruce Todd Bullock March Tustin Police Detectives On he received from defend- about the letter had Dulaney Williams interviewed defendant since he had received ant. denied he had with Dulaney spoken trouble than he already he not want defendant be more letter because did about how defendant felt Dulaney When Detective Bullock asked was. know, Asians, talked about it. he not never they said did Dulaney in the early part with his wife. Sometime later moved Missouri Dulaney Missouri, in the stomach by was shot Dulaney while living row, on death here is want to cousin who “You somebody yelled, put your bullet from his but death row.” did not seek medical help, pulled Dulaney he had been trained lug tweezers and a wrench as using stomach himself wound gunshot do in the did not “Young Dulaney report Marines.”3 because, time, of his he not want to violate the conditions that did police and return to parole prison. Waddell, 11, 1997, with an investigator
On Carl April Dulaney telephoned Office, and him that defend- District informed Orange County Attorney’s 24, 1997, motivated. On April ant had told him the murder was racially Detective Thomas interviewed Tarpley Waddell and Tustin Police investigator had that defendant said murder Dulaney in Missouri.4 Dulaney repeated said he had not previ- been “the racial movement.” Dulaney committed for with defendant because told the about his conversation ously police telephone more than he had. he to snitch on defendant was afraid did want testified he [Dulaney] Waddell that “when Dulaney investigator told a dead man.” trial, Fukumoto, pathologist with request, during defendant’s defendant’s Dr. Richard At Office, Dulaney’s Dr. Fukumoto Orange County examined stomach wound. Coroner’s just above the a dime and that of a nickel observed almost circular scar between size of scar was with Dr. Fukumoto testified the size of the consistent beltline the left side. Dulaney been possibility rule out the had shot .38-caliber bullet. Dr. Fukumoto could not a bullet and had cauterized the wound. interview, Dulaney’s wound and believed During Tarpley observed stomach this Detective yet healed. completely it recent that had not “more wound” 11, 1997,
Sometime before he *9 Waddell on telephoned April Dulaney received a letter from defendant while defendant was in trial custody awaiting letter, in this In the “2/11,” case. defendant wrote that were Dulaney’s parents meaning they were dead because had turned defendant and they in. Dulaney defendant also used the term “2/11” to mean “armed robbery” show their was “for real” gang and not “some or After punk gang nothing.” giving defendant’s 23d February letter police, Dulaney afraid defendant would kill him. Dulaney became and admitted to a depressed himself “mental rehab” facility because felt that defendant could responsible receive death received no penalty. Dulaney from either the promises prosecution the authorities in Missouri in for exchange testimony trial. defendant’s
3. Arrest and the His Search Apartment Defendant’s of In the early morning hours of March officers executed a police search warrant at in defendant’s Tustin with the apartment assistance of Orange defendant, Sheriff’s County SWAT team. Department They arrested room, who was in living and Domenic who fled Christopher,5 had through Mix, a window but was quickly Bob who was apprehended nearby. present defendant, apartment was detained and taken to the station. police On a wall the bedroom shared by defendant and Christopher, police officers observed a that read across the “Celebrate Martin Luther poster top, (“Martin read, King Luther Day” King” The bottom of the “If poster). poster more, would have shot four we they could have had the rest off of week from work.” The word “death” was written below “Luther” in “Martin Luther King.”
The seized the items from police following defendant’s bedroom.
A(1) notebook on containing numerous One writing pages. writing Be Blessed Ye Ears meek,” entitled discussed talked exten- “killing death,” “Ex-Con,” about sively “devastation and called Robert Dulaney stated “levels,” that “Dominic” was a “2/11” but member had not reached declared that “Death is in my all members kill the blood apperant eyes, spill of the meek. meek shall inharent shit. The stronge shall survive my (errors tounament death” of in original); Box,”
(2) a box the words “Mixed Fruit” and two bearing “Gunner’s box; on gloves pairs top parties closing argument, Before the made their granted request the trial court defendant’s People Christopher (Super. judicial copies Orange to take notice of of court records Ct. County, 96CF1165), showing Christopher charged by No. had been information with guilty degree murder of Ly. Thien Minh found first The trial court murder jury judicially
informed the of the noticed court records. Gunner to Rambi [illegible] “Presented [ft] a Bible with [][] of White the names cover and listing inside front inscribed Lindberg” leader, a White suprema- a White supremacist organizations, supremacist among pages Inserted on the last several pages. cist newsletter material, including: and printed Bible were various papers (National Ad- Association (a) an for the N.A.A.W.P. application vancement White People); “The Talon Euro-American
(b) a newsletter dated *10 entitled August 1994 movement, “courageously it noting alliance” that described the Aryan offer[s] survival”; the race for only White its hope deadly read a silent and
(c) a “Failure to speak up, piece paper Mohr, a who heads a White Jack General” “Brigadier killer” written by Country,” and an known as “The Crusade Christ supremacist organization defendant, Mohr’s return address that was addressed showing envelope 31, 1994, Mohr and and a letter dated October addressed to envelope address, and letters defendant’s name and return two handwritten showing defendant; from Mohr addressed
(d) a “The of Canada Party Membership form entitled Nationalist printed read, I races with Oath” that “I declare that am a who other racist respects maintenance of my common sense and will and fair towards the good play and racial and I to establish maintain integrity identity, pledge [ft] .”; . constitutional racist state homeland. . and
(e) listing the title “Pro White bearing Organizations,” piece paper Research name and addresses of 12 organizations, including Aryan Klan, Resistance; Aryan the Ku Klux and White Fellowship, LOC,” Loc,” “Insane (4) a cardboard box the words “2/11 Insane bearing swastikas; “I.C.P.,” “O.G.,” and two bolts and lightning helmet a swastika across (5) bearing skull with plastic motorcycle top; bloodstain about size
(6) a T-shirt to defendant with a small belonging of a nickel. Statements to Police
4.
Defendant’s
arrest,
to the Tustin
station.
his
transported
police
After
his
under
rights
advised defendant
Police Detective Todd Bullock
Miranda v.
1602],
During the second conducted Detectives Bullock and Mike Clesceri, defendant admitted that meant “armed robbery” “2/11” and that he “wrote whole letter” to [February Dulaney to boast and impress 23d] cousin. Defendant maintained the meant statements in letter nothing him. said Defendant he had heard about the crime from newspapers television. He admitted he sent one of the articles to newspaper Dulaney with the d along 23 letter as he had written the letter. February proof ethnic,” he Defendant said was interested in the murder it was an “[c]ause wasn’t White person.” acknowledged Defendant his letter to “[i]t details, Dulaney “nice detailed.” He said he made up including the seven or stab he eight wounds inflicted to side and 18 or stab Ly’s back, wounds he inflicted to his acknowledged articles newspaper suffered stab wounds. When asked specified only where “multiple” *11 had heard about Ly’s having defendant said he of it” key, “[j]ust thought and he did learn about this detail acknowledged from or newspaper television Defendant admitted it odd” news. that was that had Ly “[k]ind only key found next to his that in the defendant had written body 23d that said February letter he had but a nothing key.
5. Forensic Evidence DNA were obtained from dried three of the samples bloodstains on areas on right-hand glove black found the box in defendant’s bedroom. One mixed, DNA these was samples containing Ly’s DNA from two sources. DNA was with glove. consistent DNA from all three areas of the sample Defendant’s DNA was consistent with one of the being sources of the mixed was excluded being contributor of blood tested sample. Christopher on the glove. that could be excluded as been percentage population having
source the bloodstains on the was Based FBI gloves 99.999 percent. databases, national with estimates of the which the population frequency DNA on the DNA pattern right-hand found black mixed glove (excluding was one two in in occurred in million the Asian one sample) population, one in million the Caucasian in 10 million the African- population, American and one in three million in the population, Hispanic population. found seized
The bloodstain on defendant’s T-shirt from his bedroom was consistent with but not genetic markings Christopher, Ly. Evidence 6. Prior Acts Reyes-Martinez Robbery Emelio
a. Attempted old, defendant, went and Kenny Harp was 15 years In who October Harp Defendant and to Hispanic people. a field near San rob Diego to in cash. Emelio were paid worked in field knew who Hispanics the field to walking through Reyes-Martinez, Hispanic landscaper, defendant, other boys and three Kenny, approach.6 water and saw obtain a half inches and two and long held a stick about two feet Defendant left with his behind his back. Defendant gestured diameter in his hand right demanding, “Money, moving fingers, towards Reyes-Martinez, hand did not have told defendant he When money, money.” Reyes-Martinez again hit with the stick. Reyes-Martinez him on head money, hit him again he did not have any money, told defendant arm, to the bone causing Reyes-Martinez’s right the stick. Defendant struck protrude. run began was not going Reyes-Martinez
Believing beating stop, followed, at Reyes-Martinez’s Defendant yell help. Harp pulled arms, Reyes-Martinez managed and kicked until he stumbled and fell. him from his face. again, back and started get running bleeding up “hit that if he fell defendant and would Reyes-Martinez again, Harp thought Reyes-Martinez, to a Defendant and continued beat Harp pulp.” [him] attack. $200 $210 hitting Reyes-Martinez him from behind. lost Reyes-Martinez chased defendant and Harp away. friends Reyes-Martinez’s where received 14 to 19 stitches. was taken to hospital, *12 Helen Tillman Attempted Robbery of
b. Ellis, 31, 1990, old and years and both 15 Zachery On October defendant knives, Tillman, woman elderly armed with entered home Helen alone, trial, a man lived and At Tillman testified money. who demanded her $90 Defendant or Ellis took restraining a to her neck while her. held knife leaving, Before defendant that Tillman had her in her bedroom. purse hand, onto her knocking on the side of her face with right stmck Tillman her face and bruise. the counter and to swell causing 1, Officer to Oceanside Police On November defendant admitted a through and had entered Tillman’s residence James Sandifer he Ellis he room while claimed Ellis went into back door. Defendant sliding field, boys in the he testified Although Reyes-Martinez approaching saw about five him only during him Harp and hit attack. defendant remained in the kitchen with Tillman. Defendant held Tillman the back collar her shirt and admitted he her on of her right side face punched knife, he feared might because she Defendant denied but escape. having he and admitted Ellis took from the back money bedroom.
Ellis admitted to Officer Sandifer that was he defendant’s friend and that both knives he defendant had been armed with when they robbed incident, Tillman. Ellis had details difficulty remembering but testified it was defendant’s idea to enter Tillman’s Ellis residence. confirmed that on 11, 1997, June he told Waddell that out defendant came investigator back room hit Tillman.
7. Evidence the Hate-murder Support Offered Special-circumstance Allegation
a. Assault Le Tung on and His Statements Defendant’s
While in Jail Villa, In who had been convicted of and July Alejandro previously crimes, for numerous imprisoned grand commercial theft including burglary, auto, theft, from a theft grand was incarcerated in the same person, petty area of the Orange County jail where defendant was in trial custody awaiting trial, case. At time this of defendant’s Villa charges was facing armed robbery, assault officer and peace emergency personnel, battery on a officer and peace emergency from personnel, jail felony escape force, and possession needles hypodermic syringes. Le, inmate, an Asian
Tung jail same modular placed group arrived, Villa and defendant. Before Le Villa he Le told wanted arrived, excited, be in their When Le put to be group. appeared his hands he rubbing at Le. Defendant told Villa did not together smiling like Le and Le was “a and that he thought fucking “going punk, nip,” times, television, At when get defendant watched Asians on would [Le].” say something. mumble or
While cards in the Le defendant threw wall and playing dayroom, against choked him Le because accused defendant the rules of the following *13 occasion, call, another Le game. On shower defendant choked in the during shower to that Le’s face was and blue and his veins and point purple were When warned defendant he to kill eyeballs Villa that was bulging. going Le, Villa, tell, defendant told he got is to is to rat. I to kill going going “[Le] him. I to kill him.” Villa then defendant off Le. got pulled
inWhile Villa came to believe that defendant hated Asian jail, people based had make. on comments he heard defendant Defendant said Asian .” . . like a fast-forward cassette. “mice talking, sounded like speech to death.” Defendant in “for a stabbing Nip told he was jail Defendant Villa in, and “it kind of sound a—fleshy knife was going as the explained friend, easy me show how you that he told “Let Defendant stated feeling.” “wise and with it.” Defendant also made get to kill a Vietnamese away it is of what had happened about the “best tennis because cracks” being player” tennis on the courts. County receive from anything Orange
Villa denied that he to expected in this in for his case. exchange testimony Office Attorney’s District to and Coworker Rochelle b. Statements Ellis Defendant’s Lopez 1990, 31, robbed on October defendant and Ellis Tillman Sometime before off “got told that he Asians because kicked defendant Ellis disliked as Okinawa.” and Defendant referred to Asians “gooks” Hispanics and “spick[s]” “wetback[s].” 3, 1995, 28, 1996, Rochelle January Lopez
Between November defendant, at store whom knew as a Kmart Lindberg, worked she Jerry lunchroom, On in an African-American in Tustin. one occasion the employee in, hello, then the area. Defendant told came said left employee nerves,” “I to something hate that bitch. She nigger got my supervisor, occasion, into the store that effect. On another some Asians walked 10, said, effect. On gooks,” January defendant “There or words to that goes 1996, half Minh Ly, about two and a weeks before the murder Thien defendant, left and saw who was Kmart with Lopez Christopher part defendant, crowd, an Asian The man asked screaming man. pushing are this to me?” “Why you doing Dulaney
c. Written Statements to While Defendant’s Incarcerated on Another Matter Ly’s Murder Before 1993, wrote, In a letter to November Dulaney postmarked time is to a hult comming its to look to the future this nation “Dog, part, for time is fast comming with the and us. We must choose sides now! niggers .... Party here is an Racial Nationalist of Canada Aryan Unity: address it we’ll bring Write them and some info and littiture ok and get copy [][] Well, address to get the 2/11 war into effect. . . . cuz I wan’t this party [f] info. them own you get your party so can some . . . Tell want you you get own or like and would like littiture to start would part your going (Errors in become OK!” apart your party original.) stated, a letter in part, In dated March Dulaney “Well, Arian its on the I run the W.A.R. here. White group different streets.
resístanse is a action a branch of NVAP National group—were Vastal Arian react, we Party dictate in other words talk—we back them they they .with Oh, violence. were still runnin ours! Its if can handel yes, you you it—I up can, know without you but bustin is the Ask them what probation question. about, there and if violence or nature they say of that know anything you there solid If not don ‘t (Errors fuck with them." in Dogs. original.) 13, 1994, stated,
In a letter Dulaney February dated defendant in “I part, back, hate hole time! wrote I’ve no one the Gun many writes I feel people free, lonely All I lookin forward to is 3rd I’ll be dog! keep Aug then bro Hey I’ll be time the first to fuckin say doing is hard. After while you change, mind relates to life. your just this kind of And that’s not cool I’m because kill, evil All I I pure fucking dog thats no shit. want to do is hurt and think of to hurt the Mt. Vernon And many ways I have one!” people. Defendant (with ended letter with “KILL” written in “K” a style swastika), a Nazi resembling ‘‘kill-kill-kill-kill-kill-kill-kill’’ followed love, “Them (Errors all! with insane Loe for life.” original.) OG Written Statements to Others While in
d. Defendant’s in the Custody Orange County Jail Trial in Awaiting This Case Dresen, wrote,
In an undated letter to “I’m defendant White to the Kelly [<j[] bone. 1/2 1/2 Indian and I’m 100% german against black. trial date is My 21st, now crime convicted of 1st My my got degree partner goes murd[er] back 25th for I feel for him all did May sentencing. sorry was stand there well I’m don’t all (Errors shure want to hear that.” you original.) Overstreet,
In a letter to Jeremie defendant drew two lightning bolts and White,” wrote the “stay by, kong followed “No better them phrase, hong (Errors fuee’s not like might you!” original.) said,
In a letter to herd of Tammy “You Tustin Shoopman, High School? Death got Well a Chino stabbed to on the tennis courts at Tustin roller have a High School while I 187—211—and Hate crime.” Blading. (Errors in original.) wrote,
In an undated letter to “Not Roby, Samantha much has with me in trouble—But this time I did it. I have a changed always really 1st murder hate crime the state of California wants to degree robbery me the errors in give death (Misspellings grammatical original.) penalty.” Defendant “Well Bowl Ly, then detailed murder explaining, Super Dallas over A friend and I were home from Sunday Pittsburg, walking ‘96’ we through work—K-mart—I was a Stocker. And were school walking high *15 stoned, ass, I was kick his if I could dud and asked friend saw this and my one out with him course, and blam I knocked walked and said he did he When for him to get up. we waited [f] know me—And punch—you Mt. Vernon the run from there, I was already at me. looking and was layed get he was trying I thought a shot So gun. some shooting people times, head, me, him over then stabbed I on his so stomped discription charged now I’m was Asian so neck. Then we left guy slashing the Death the want and a hate crime—so murder robbery, with a 1st degree (Errors original.) this time.” big Yah I fucked Penalty. up admitted, Smrekar, in on a “I’m In an undated letter to Vanessa But, and I’m murder, only I’m no thief crime and robbery. hate degree 1st ALiL racist.” (Original formatting.) and White Testimony Supremacists on White Expert
e. Supremacy Beliefs Miller testified Ronald Sergeant Beach Police
Huntington Department Miller White on the subject supremacy. expert prosecution who is oriented toward that a “White is “a racist testified supremacist” race, all others. tend They that it is above believing of the White superiority often [j[] are also They . . . sub-humans. quite to view minorities as as a Jewish [sz'c], label the Holocaust they even to the point Antisemitic world, throughout for the Jews [f] trick to gamer support sympathy on his Based are the two tenets of the White supremacist.” Those major and White supremacy groups, with White extensive experience supremacists letters, with whom own words in his groups defendant’s bolts and the associated, the Nazi “SS” lightning and defendant’s use of a White that defendant was supremacist. Miller symbols, opined swastika Phase Case Guilt B. Defendant’s father, that, HI, in his testified Robert Dulaney’s
Walter Ray Dulaney brag of the time who liked Robert was a liar most opinion, compulsive IQ that he had an of 550 told his father tell For Robert “big example, stories.” Dulaney and Hawaii. Walter between Missouri and had once run a marathon be, not, White any a member of and could testified that Robert was Indian. Walter Robert was Apache because groups Japanese supremacy “in he was when Robert was in jail, put that on one occasion stated Dulaney the nut ward.” He had never defendant’s life. had known defendant all of
Walter Dulaney suggesting and had no information utter racial slurs heard defendant organizations. involved in White supremacy defendant was cross-examination, On Walter admitted Dulaney that Robert had a swastika tattoo and an “S.W.P.” tattoo on his hand and that “S.W.P.” could stand for White Power.” “Supreme Walter became angry Robert and his mother and *16 stepfather because they gave defendant’s 23d letter February police. Walter believed a should not “rat on person Walter had suffered family.” two convictions, prior felony one for someone who stabbing molested his grand- and another daughter for transporting drugs.
Christina worked Colby with defendant7 at Kmart in January 1996. She dated defendant and never heard him use racial slurs or call any Asians by names. derogatory Colby knew defendant for three months. On only cross-examination, testified that Colby she had seen the “Martin Luther King” poster defendant’s bedroom and that defendant told her it had belonged his dead brother. Scharf,
Roger defense, a private investigator retained by testified that the inline skates worn Thien Minh on the night of his death were Rollerblades, murder, model LS At the time of Lightning. Ly’s the skates sold $139. testified,
On the before he night Scharf and another went investigator to the Tustin School tennis High courts to determine whether someone standing inside the courts could be seen aby person walking along sidewalk outside the directly courts and around the Scharf perimeter. attempted simulate the and weather lighting conditions on the night murder. The other investigator stood inside the courts about feet from the eight away outside fence. Scharf testified that the screen around the courts “almost totally blocks your vision under good conditions.” Scharf could not see the investi- gator on the court. standing When Scharf shined his flashlight through screen, he could make out the investigator’s but not his facial features. image him, feet, When Scharf had the move toward to within investigator five could see that the skin was but could investigator’s light not tell his hairstyle racial distinguish features.
C. Prosecution Penalty Phase Case
1. Bowers Assault Randy Around defendant and into Bowers Randy got argument, during the course of which Bowers cursed at mother. defendant’s were police called and warned Bowers to from defendant. In stay away July used, Colby “Jerry Lindberg,” knew defendant as one of several names he as discussed above. Defendant and Bowers Bowers dead. told Bowers he wanted of his Bowers and couple on Hell’s Road. evening one fight agreed driveway, drove onto a As Bowers to defend themselves. friends bats brought truck, The truck shotgun. holding defendant on the tailgate he saw the windshield through the road. Defendant shot on the side of parked When car, eye. the arm and near his right Neal Eubank in striking Bowers’s reverse, friends armed he noticed six of defendant’s Bowers his car in put 22’s.” with bats and “lots of guns, and entered from a resident nearby
Bowers and Eubank sought help Eubank’s arm and called police. house. The wrapped resident’s occupants Meanwhile, defendant, entered the house shotgun, armed with a .410 Eubank, ran away *17 feel now?” Bowers how do “Hey you asked pussy, bat, a barbed wire fence. a but in got caught nearby baseball carrying head. Eventually, his at the back of Bowers’s shotgun Defendant pointed fence, himself, and ran from away over the untangled Bowers jumped chase, heard that sounded like they defendant. Bowers During gunshots fired from a .410 and a “.22 shotgun shotgun.” were Timothy Branham Assault
2. Vernon, Missouri, Timothy December in Mount 17-year-old On waiting Branham and his brother had skateboarded to a local store were Defendant, business to close so could skate on its nearby they property. Branham if he had a Branham said no. standing asked nearby, problem. face, him to fall to the Defendant walked and hit Branham in the causing up in the Defendant took Defendant kicked him three or four times ribs. ground. someone, who returned it Branham’s skateboard but later it to gave Branham. Gari Shooting Nicholas
3. 19, 1992, Vernon, Missouri, On in Mount Nicholas Gari two January bikes in a local Defendant and other were boys friends were their riding park. Gari also in the armed with BB At some guns. point, cap park, bike; and he fell off his Gari saw defendant standing was hit BB wearing Defendant and told defendant that he was son.” “cop’s woods nearby defendant and his two chased him about 30 feet and shot him in the neck. As neck.” Gari did ran “I blew hole his away, friends proclaimed, not know defendant. on his throat. surgeries taken to a and underwent two
Gari was hospital BB, had traveled to Gari’s was unable to remove the which surgeon heart. Prewitt Assault Jeffrey
4. 25, 1992, Prewitt, On January a detention Jeffrey at the supervisor Jasper Missouri, Juvenile Detention Center in County three Joplin, supervising defendant, or four juveniles, After defendant including dayroom. call, finished a he started telephone hitting Prewitt of his head and top on his forehead. Prewitt Another pushed away. called employee Defendant police. Prewitt suffered stopped fighting. knots on his head and a black eye. Brother,
5. Victim Minh Impact Testimony Ly’s Thai Ly ofThien brother, Thai testified Ly he had looked always to his up 24-year-old Ly, who was the oldest of three children. had attended Georgetown University and had returned to California to work with a charity organization helped minorities, murdered, mostly Vietnamese. When Thai heard that Ly had been numb, he felt dead and if he had no life going through him. Since the murder, Thai’s life has lacked direction and inspiration. murder, room, since the
Every day Thai’s mother father go Ly’s untouched, which has remained death also essentially cry. Ly’s has been hard” on his sister. “incredibly His death has affected the deeply lives of *18 family friends. Penalty Phase Case
D. Defendant’s
1. Sergeant Hayes Russell In defendant and lived with Marine Gary Wolfgram Corps Sergeant Russell and his Hayes for one or two months. did not know family Hayes defendant before he moved into the house and later learned that he and cousins, were Wolfgram as defendant had initially represented Hayes. the time During defendant lived with he took Sergeant Hayes, Hayes’s three children to a where young nearby children of other races park played. a friend of Occasionally, Hayes’s would off his at the drop daughter Japanese house. best friend Hayeses’ Hayes’s was African-American man who often visited the house. was not aware of between defendant Hayes any problems and his African-American friend. heard defendant utter Hayes never racial slurs. Found Search Drugs During Apartment
2. of Defendant’s the search of a box found in defendant’s bedroom on the During by police arrest, of defendant’s discovered and a day baggies marijuana police baggie methamphetamine. de Apodaca Roberto Flores Psychologist
3. Clinical Ph.D., examined clinical de psychologist, Roberto Flores Apodaca, defendant from history testified.8 He took four before he days did not defendant. Dr. de Apodaca documents regarding and reviewed other interview. during all believe responses provided tattoo, defendant defendant about his “211” When Dr. de asked Apodaca that it actually “armed but robbery” that he said it meant always responded this to Dr. de understood that lock shall you pay.” Apodaca meant “those up those who toward vengefulness mean defendant could “harbor animosity incarcerate him.” defendant had Dr. de testified history, Apodaca
Based defendant’s tumultuous, a number with family background, “disorganized, dysfunctional” with biological and “breaks in his family notably of “losses” relationships, two old. years father” when defendant was about had drunk marijuana,
Defendant told Dr. de that he smoked Apodaca alcohol, his adoles- during smoked and used cigarettes, methamphetamine in which defendant cence. Dr. de testified he had reviewed reports Apodaca basis, on that made a was referred for treatment for substance abuse and similar diagnosis. de disorder not other-
Dr. defendant with Apodaca diagnosed personality narcissism, and antisocial wise with specified, components dependency, behavior, and The antisocial being secondarily polysubstance dependent. features included of others. victimizing violating rights murder was drug
Dr. de testified that he was not that Ly’s Apodaca opining *19 de out” or in” that induced. Dr. could not Apodaca “rule[] “rule[] a determination would suffered from brain He such damage. agreed assessment. neurological require psychological
II. Guilt Phase Issues A. Asserted Trial Court Error in Evidence Admitting of Defendant’s
Two Prior Robberies Uncharged trial, evidence that defendant Before moved to admit prosecution order to and Tillman robberies in committed the uncharged Reyes-Martinez of only after he had been convicted first agreed Apodaca Defendant to talk with Dr. de degree special and the circumstances had been found true. murder that defendant intended to rob the course of
prove Ly during murdering him. the evidence was admissible under Evidence Code prosecution argued 1101, (b), section subdivision because the crimes shared numerous similari- robberies, ties: in each of defendant had a to assist him prior companion victims; in the he robbed and assaulted the he robbery; was of aggressor assailants; him; the two he attacked a vulnerable victim who awas stranger back; the victim did not fight assaulted his victim whether or not the victim and he had a dual to steal from and assault each cooperated; purpose victim. irrelevant,
Defense counsel the evidence argued more than prejudicial under Evidence Code section probative and impermissible propensity evidence under Evidence Code section 1101. Counsel maintained there was robbed, no evidence had been in that a key was found near his head and no other had been taken. The trial court overruled each of defend- property ant’s and ruled the evidence of objections defendant’s robberies and prior assaults admissible on the issue intent. The trial court also overruled counsel’s additional under Evidence Code section 352 that objections robberies were remote in time and that prior defendant committed those when he offenses juvenile.
On renews his appeal, argument evidence of the robberies should have been excluded under Evidence Code section uncharged (b), subdivision because the no evidence that he prosecution presented him, to rob Ly during course event the attempted murdering any evidence should have been excluded as more than under prejudicial probative Evidence Code section 352. He asserts the admission evidence violated trial, his state and federal constitutional to due fair and a rights process, reliable determination. penalty (a)
Evidence Code section subdivision generally prohibits of evidence act admission criminal a criminal defendant prior against “when offered to his or her conduct on a occasion.” prove specified section, however, (b) Subdivision of that that such evidence is provides issue, motive, intent, admissible when relevant to some fact in such as prove or the existence of a common knowledge, identity, design plan. (1)
“The of other crimes evidence admissibility materiality depends (2) facts to be crimes to sought proved, tendency uncharged facts, those the existence of rule or policy requiring prove *20 312, v. (People Carpenter (1997) of the evidence.” 15 Cal.4th exclusion 1, 708].) be excluded under 935 P.2d Evidence Cal.Rptr.2d may 378-379 [63 352 if its value is “substantially outweighed Evidence Code section probative undue the that its admission would create substantial danger probability
23 v. issues, jury.” (People the or of misleading the confusing prejudice, 224, 208, 895].) 106 P.3d Harrison (2005) Cal.Rptr.3d 35 Cal.4th 229 [25 offenses, case of uncharged is inherent in the “Because substantial prejudice value.” if it has substantial only probative such evidence is admissible 531, 763, 171 P.3d v. 42 783 Kelly (2007) Cal.Rptr.3d Cal.4th (People [68 548].) circumstances under which evidence
We have considered specific (b) of Evidence Code crimes be admitted under subdivision uncharged may identity seeks to the defendant’s section 1101. When the prosecution prove he had committed the offense with evidence charged perpetrator offenses, offenses uncharged of evidence of uncharged admissibility offenses share sufficient uncharged turns on that proof charged inference an A lesser identity. degree distinctive common features raise the existence of a common is to establish similarity required plan v. (People is to establish intent. scheme still less similarity required 646, 360, 289]; Roldan (2005) 35 Cal.4th 705 110 P.3d Cal.Rptr.3d [27 646, v. Ewoldt P.2d People 7 Cal.4th 402-403 [27 intent, misconduct 757].) In order to be admissible to uncharged prove the inference must be similar to offense sufficiently charged support acted intent in each instance. defendant same probably Ewoldt, 783; Kelly, People supra, 42 Cal.4th at v. (People v. supra, p. 402.) Cal.4th at The decision whether to admit other crimes evidence rests p. Kelly, supra, v. trial 42 Cal.4th at (People within discretion of the court. 783.) p. not all the elements of the murder as
By pleading guilty, placed and hate-murder allega well as attempted robbery special-circumstances Roldan, 705-706.) Cal.4th at (People supra, tions in at trial. v. pp. dispute intent, that he intended to On issue of defendant declined to stipulate of his defendant’s intent when Accordingly, permanently deprive Ly property. he murdered a material fact. Ly was Ewoldt, v. v. Guerrero
Citing People
supra,
People
7 Cal.4th
366],
P.2d
first
(1976)
“Robbery taking personal property posses another, will, sion of from his or immediate and his person against presence, (§ of force or fear.” “An 211.) means accomplished attempted robbery direct, intent to commit and a ineffectual act requires specific robbery mere toward (beyond its commission.” v. Medina preparation) (People 187].) 41 Cal.4th 161 P.3d Defendant’s admissions in the 23d letter to establish he February Dulaney committed acts that tended to show he to rob Ly: defendant attempted scared”; he admitted walked at the tennis courts and “was Ly Ly up defendant hit him to fall to the told defendant that he Ly, causing ground; Ly could whatever he but have wanted had defendant asked only key; car; none, if he had a and when said he had knife to Ly Ly put Thus, his throat and asked him whether he had a car. evidence of the again whether, in robberies was and prior logically probative hitting knocking Ly car, to the and to know if had a defendant intended to ground demanding Ly rob him.
The evidence of defendant’s involvement in the Reyes-Martinez fact. attack on Ly Tillman robberies tends this material Defendant’s prove in this case shares numerous distinctive common features with those robber- crime: Defendant him in each ies. assist brought Christopher companion assisted defendant in the attack on and Ellis aided defendant in Ly, Harp Tillman, robberies of In each Reyes-Martinez prior respectively. crime, defendant assaulted his victims and was the of the two aggressor assailants: Defendant knocked to the before to know if Ly ground demanding none; a car and a knife to throat when he said he had Ly’s had put hit, chased, and kicked before he stole Reyes-Martinez Harp in the face as the victim’s and defendant Tillman money; punched elderly he and left her home after her Defendant did not know stealing money. Ellis (alone, victim was vulnerable or outnum- elderly, of the victims. Each any back, whether or not he or she bered), did not and was assaulted fight cooperated. time that the trial court should
Defendant for the first argues appeal reference that defendant assaulted Reyes-Martinez have excluded *22 robberies because evidence Tillman the commission of the during uncharged no value” on the issue of whether he of the assaults had “virtually probative the Because he failed to robbery. request killed Ly during attempted trial of the robberies uncharged by excluding court sanitize evidence prior assaults, however, time references to the he cannot raise this issue for the first 453, 759, v. Elliot appeal. (People (2005) on 37 Cal.4th 472 Cal.Rptr.3d [35 Code, 353, 968]; (a) 122 P.3d Evid. subd. not be reversed shall judgment § [a because of the erroneous of unless there was a timely admission evidence make objection “so stated as to clear the of specific ground objection”].) issue, Even were we to assume that defendant this we properly preserved would his contention. Defendant’s brutal acts of violence towards the reject in the victims and Tillman robberies were of Reyes-Martinez parcel part and, above, those robberies stated shared substantial similarities with his Further, conduct towards in this case. to defendant’s Ly contrary protests his act of victim’s face in the Tillman was punching elderly robbery and “unconnected” to the defendant’s that he gratuitous admission robbery, Tillman because he was fearful she evidence punched might escape v. Hill (See “force or fear” element of the People 17 robbery. 656, Cal.4th P.2d force or fear Cal.Rptr.2d [72 673] [the element of is satisfied if the uses force to retain or robbery perpetrator escape circumstances, with the Under evidence of property].) totality Tillman, defendant’s robberies of uncharged Reyes-Martinez including crimes, evidence he assaulted each victim the commission of during those could assist the reasonably whether defendant assaulted jurors determining Thus, in an Ly to rob him. attempt evidence was of defendant’s probative intent to rob. The trial court did not abuse its discretion in evidence admitting of these crimes. uncharged
We also conclude the trial court acted within its discretion under Evidence Code section 352 in finding value of the evidence of the probative uncharged robberies was not substantially outweighed by potential undue As the evidence had substantial prejudice. explained, value probative to whether defendant intended to rob at the time respect Ly murder. The trial court instructed the this evidence brief so prosecutor keep that it would be neither cumulative nor excessive. Based on our review of the record, we are satisfied the of this evidence prosecution’s presentation Moreover, with the court’s directive. none of the conduct complied uncharged to the manner in which defendant particularly inflammatory compared head, him, murdered brutally his stomping stabbing repeatedly Ewoldt, the veins in neck. (People supra, slicing 405.) v. 7 Cal.4th at p. Further, 2.09, the trial court’s instructions to the under CALJIC No. jury 2.50, admitted evidence for a regarding limited and CALJIC No. purpose, it to evidence advising consider such not to defendant’s prove predisposition to commit crimes but rather to determine whether the element necessary issues, “of confusing
intent to rob was eliminated any danger proven, Code, (Evid. 352.) We followed jury misleading jury.” presume § and Marlow (2004) 34 Cal.4th (People Coffman these instructions. 30].) 96 P.3d of the uncharged
We defendant’s contention that the admission reject trial, to due a fair and a robberies violated his constitutional rights process, trial. have observed reliable at all We adjudication stages capital long *23 rules of evidence does not generally ordinary “[application on a defendant’s constitutional infringe rights.” impermissibly capital 1, 978, 68].) v. (2000) Cal.4th 5 P.3d (People 23 1035 Cal.Rptr.2d [99 Kraft to general Defendant fails to us his case this presents exception persuade rule. for the sake of that the trial court abused its argument
Finally, assuming crimes, defendant’s reversal is not discretion in evidence of admitting prior excluded, had been defendant’s Even if the other crimes evidence required. numerous 23d letter to his February Dulaney, including admissions “2/11,” admitted referred to armed robbery, references to which defendant II.B., (See intended rob evidence defendant to Ly. pt. provided compelling not reasonably a result more favorable to defendant was post.) Accordingly, v. Welch (People of the crimes evidence. absent admission prior probable 203, v. 701, 754]; People P.2d (1999) 20 Cal.4th 750 976 Cal.Rptr.2d [85 reasons, 818, 243].) Watson (1956) any 46 Cal.2d 836 P.2d For same [299 (See v. Chapman a doubt. error was harmless reasonable beyond California 705, v. Cole 18, 824]; (2004) People 24 L.Ed.2d 87 S.Ct. (1967) 386 U.S. [17 1158, 532, 811].) P.3d 95 33 Cal.4th 1195 Cal.Rptr.3d [17 Murder and the Felony Evidence First Degree B. Sufficiency of Robbery Circumstance Special evidence establishes he murdered Ly Defendant concedes sufficient him to the the moment “he hit him and knocked intended to kill from Ly contends, however, to first the evidence was insufficient prove He ground.” because the theory robbery-felony-murder murder on an degree attempted Even there assuming that he to rob Ly. failed to prove attempted prosecution defendant contends he to rob Ly, sufficient evidence attempted circumstance the special evidence nonetheless insufficient support of a robbery commission during that he murdered finding attempted the murder. The insufficiency was incidental because intent to steal any trial, claims, and a evidence, due a fair violated his rights process, Fifth, Sixth, and Fourteenth Eighth under the reliable determination penalty 1, 7, 12, 15, 16 Constitution and sections to the United States Amendments Constitution. article I of the California and 17 of
27 of the evidence to support When a considering challenge sufficiency conviction, in the most favorable to the light we review the entire record is, substantial evidence—that to determine whether it contains judgment reasonable, credible, and of solid value—from which evidence is trier of fact could find the defendant reasonable guilty beyond reasonable 271, 73, 82 P.3d (People (2004) doubt. v. 32 Cal.4th 104 Cal.Rptr.3d Valdez [8 296].) of evidence to sufficiency special When reviewing support “ circumstance, ‘whether, evidence in the relevant is after viewing inquiry could most favorable to the rational trier of fact have light People, ” a reasonable doubt.’ beyond found the essential elements of the allegation 155, 385, v. P.2d (People (1996) 14 Cal.4th 225 926 Cal.Rptr.2d Alvarez [58 801, v. 365], People Mickey (1991) 54 Cal.3d Cal.Rptr. quoting [286 84].) 818 P.2d We the existence judgment every presume support the evidence. (People fact the trier of fact could infer from reasonably 64].) Cal.4th P.3d If the Ramirez circumstances the trier of fact’s reversal of reasonably justify findings, is not warranted because the circumstances also judgment might simply *24 Valdez, v. contrary finding. (People supra, be reconciled with a 32 reasonably 104.) Cal.4th at A court neither evidence nor reevalu- p. reviewing reweighs 1067, v. Guerra credibility. (People (2006) ates a witness’s 37 Cal.4th 1129 118, 321].) P.3d 129 Cal.Rptr.3d [40 above,
As to the discussed be convicted of attempted robbery, must harbor a intent commit and commit a robbery perpetrator specific v. direct but act (People ineffectual toward the commission of the crime. Medina, supra, 694.) 41 Cal.4th at The infer a defendant’s p. jury may intent a crime commit from all of the facts and circumstances specific 1194, v. Bloom (See shown People (1989) evidence. 48 Cal.3d 1208 669, 774 P.2d of mind defendant’s state Cal.Rptr. [259 698] [“Evidence.of circumstantial, is almost but circumstantial evidence is as sufficient inevitably direct conviction.”].) as evidence to support rule,
Under the a murder “committed in the felony-murder perpetra of, felonies, tion or one of several enumerated includ attempt perpetrate” (§ 189.) is first murder. ing robbery, degree robbery-murder The special circumstance to a murder “committed while the defendant was applies of, in . . . the commission commission of’ engaged robbery. attempted [or] 190.2, (§ (a)(17)(A).) subd. a felony-murder special-circumstance prove “[T]o that the defendant had an allegation, must show prosecution independent is, for the commission of the the commission of purpose felony, v. (People incidental to an intended murder.” felony merely Mendoza v. 130,182 485, 150]; 24 People (2000) Cal.4th 6 P.3d see also Cal.Rptr.2d [99 1, 1, Green 468], (1980) 27 Cal.3d 61-62 P.2d overruled 609 Cal.Rptr. [164 834, 826, v. Hall (1986) fn. 3 People on other 41 Cal.3d grounds [226 28 112, 99].) P.2d To circum robbery-murder special 718
Cal.Rptr. prove stance, the intent to steal must formed prove prosecution Valdez, v. at supra, 32 Cal.4th (People before or while victim. killing 105.) p. theorized that defendant approached Ly attempted prosecution death because he was Vietnamese.
rob him before him to savagely stabbing 1, 119, v. Morris (1988) People 46 Cal.3d Relying Cal.Rptr. [249 in In re Sassounian (1995) 843], overruled on other grounds 756 P.2d 446, 535, 543-544, 527], 887 P.2d Cal.4th footnote [37 Green, 52-54, defendant People supra, initially argues v. 27 Cal.3d at pages that, most, occurred because he asked “Do Ly, at a theft or theft attempted be a car?” after he had knocked to the To already Ly ground. have you only clear, “a robbery cannot be sustained in the absence of evidence conviction of committing that the defendant conceived his intent to steal either before act; victim, of that if the act of force commission against during victim, will at taking intent arose after the use of force only against Morris, v. at italics (People supra, a theft.” 46 Cal.3d p. most constitute Green, added, v. 52-54.) Defendant’s citing People supra, Cal.3d pp. however, fails, defend because it erroneously proof argument presumes robbery- attempted is to sustain against Ly ant’s use of force required neither robbery conviction. The crime of attempted requires felony-murder nor the of a theft or the commission of an element of robbery completion Medina, 694; v. People 41 Cal.4th at see also (People supra, assault. p. 697].) In Dillon 454-455 668 P.2d 34 Cal.3d Cal.Rptr. event, below, knife throat against Ly’s discussed pressed a second time whether had a car. asked before *25 evidence We the record contains substantial supporting conclude to rob Ly, attempted robbery-felony- that defendant finding attempted that the murder finding and the circumstance murder conviction special Defendant’s admis- the commission of an attempted robbery. occurred during established, detail, in horrific 23d letter to Dulaney sions in his February handwrit- and murder. The letter was robbery of the attempted circumstances Bro, 2/11, Rob”) a (“Dear large to Ex-con Dulaney ten and addressed 2/11, margin. top of the characters prominently appearing drawing as he he and approached Ly Defendant described to how Dulaney Christopher Defendant saw School tennis courts. Rollerbladed alone on Tustin High that indicated whereby Ly and used a ruse that “was scared” Ly get think “he wasn’t Ly gona he knew in order to have Ly he thought him to the knocking ground. Ly responded, Defendant then hit Ly, jumped.” “ nothing only have what ever I I have got.’ the fuck’ and can ‘you ‘what ” then asked if he (Errors Ly Defendant original.) can have it.’ key—you “No,” said, knife. his pressed After Ly had a car and out his pulled throat, a car. Ly grabbed if he had Ly asked again knife against Ly’s
29 Because defendant looked at him. that held the knife and defendant’s hand on his head defendant stomped his get thought Ly trying description, then at him. Defendant looking to Ly times and each time told stop three with his knife. Ly stabbed fatally repeatedly Near the morning. the tennis courts the next was discovered on
Ly’s body at Ly’s that fit the locks key found a hat and body, single police of the Reyes-Martinez also introduced evidence residence. prosecution intent his assault during and Tillman robberies on the issue of defendant’s Ly. evidence, could have found that this the jury reasonably
Based upon he knocked toLy an intent to steal when Ly’s defendant harbored property car, knife to his whether he had a his put demanded to know ground, (See he had a car. People Rodrigues throat before him whether asking again 235, P.2d (1994) 8 Cal.4th [rejecting 1] [36 defendant’s contention that the “unadorned question—‘where accomplice’s ” it?,’ do have did not reflect an intent steal victims’ you property].) own “was before he knocked him to Ly Defendant’s observation scared” (house) defendant that he could take Ly’s statement to ground, Ly’s car, he had a strongly suggest before defendant first asked him whether key defendant, in a initially Ly accompanied by Christopher, approached Further, defend- manner that communicated tins intent to steal. nonverbally letter Dulaney, ant’s reference to “2/11” at the of his confessional top term that defendant admitted meant armed and evidence robbery, previ- assaulted and robbed and Tillman of their ously Reyes-Martinez money that defendant intended to justified jury’s implied finding permanently of his Ly deprive property. that he
Defendant the evidence was insufficient to argues support finding v. Thompson intended to of his permanently citing People deprive property, (1980) 27 Cal.3d P.2d In Thompson, Cal.Rptr. 883]. the car this court held evidence that the defendant demanded took to the was inadmissible to robbery prove victim belonging uncharged robbery. intent to steal a car from the victim of charged specific *26 320-321.) Cal.3d at Because the evidence v. 27 (People Thompson, supra, pp. to only of the established that the intended uncharged robbery car, after it was shortly use the which was recovered temporarily police taken, intent evidence did not tend to the defendant’s we reasoned this prove (Ibid.) her car in the charged robbery. the victim of permanently deprive Here, and Tillman unlike the evidence of the Thompson, Reyes-Martinez that defendant intended to permanently deprive robberies established turn, evidence, an reasonably victims of their This money. supports rob of his inference that defendant intended to permanently Ly property.
30 further the he at
Defendant
contends
evidence is insufficient
to prove
to rob
because he did not take
from
such as his
Ly
any
Ly,
tempted
property
however,
To find an
Rollerblades.
was not
attempted robbery,
jury
took,
to find that
or defendant
of value.
Ly
anything
required
possessed,
Lee
v.
(People
709,
943].)
P.2d
Under
Cal.App.
general
theft is not
for
attempt principles,
completed
required
attempted robbery.
Medina,
Dillon,
v.
(People
supra,
People
694;
v.
41 Cal.4th at
see also
p.
supra,
crime
Defendant even if record contains sufficient additionally argues evidence to that he to rob finding Ly, support implied attempted evidence nonetheless was insufficient to establish that the murder was committed of an Defendant during robbery. argues commission attempted murder, is, was incidental to the intent to rob any attempted robbery incidental to his intent to kill primary Ly. was Morris, v. People supra, Defendant cites 46 Cal.3d overruled on another Sassounian, re in In supra, 543-544, Cal.4th at footnote ground pages v. v. People Thompson, supra, People 27 Cal.3d In support. Morris, the victim was shot at close in a bathhouse while fatally range public socks and shoes. The witness to the observed wearing only only shooting inside, restroom, in the standing doorway facing firing murder, and then the scene. After the the defendant to use a fleeing attempted credit card to the The defendant admitted to an victim. had belonging that he had “been off ‘dates’ with homosexuals” acquaintance making money and had killed one. The reason defendant only provided killing “ ” Morris, v. (People supra, 11.) ‘he had to kill one.’ 46 Cal.3d at p. We held this evidence was insufficient to sustain the conviction robbery because evidence robbery-murder special-circumstance finding record no insufficient the victim had been robbed—“the prove contained] at the time evidence that was in the victim’s any personal property possession Morris, (People supra, 20.) the murder . . . .” 46 Cal.3d at p. have to the suggested may gone defendant’s admission his acquaintance murder, but it did not bathhouse to committed engage prostitution (Id. at committed a robbery. a reasonable inference the defendant support therefore, 21-22.) failed to reasonable prove beyond The prosecution, pp. (Id. of a robbery. doubt that the victim was murdered commission during 22.) p. *27 supra, v. entered the People Thompson, the defendant 27 Cal.3d
In The at demanded money gunpoint. and a woman and of a man residence did not said that he but the defendant and money jewelry, victims produced downstairs, ordered to go motioned to the victims them. The defendant want (Id. at sit, car keys. and obtained the man’s and demanded them to “ woman, I’m why ‘You know then said to the 310-311.) The defendant pp. ” victims, me,’ the man. killing and shot know who sent you here (Id. at were and the car 311.) keys car “was never moved The victims’ p. (Ibid.) near the victims’ residence. in a park” dropped had an to establish the defendant held the evidence was insufficient We intent to kill and set aside special intent to steal of his independent of a occurred commission during circumstance that the murder findings the victims’ valuables The defendant’s refusal to accept robbery burglary. his them showed shooting and his statement to the victims before just them, gain secondary goal. intent was to kill with property primary Moreover, (People Thompson, supra, defendant’s 323.) at 27 Cal.3d p. viewed in before the immediately shootings, demand for the victims’ car keys context, the car to effectuate his from getaway evinced his desire to use (Id. 324.) evidence he intended. Because shootings prosecution’s p. harbored an intent “at most a that the defendant established suspicion” kill, a determination of guilt steal of his intent it precluded independent the defendant committed the murder a reasonable doubt that beyond (Ibid.) the car stealing keys. advance felonious independent purpose Morris Thompson. As case is from both present distinguishable above, in his 23d letter to February discussed defendant’s detailed admissions Hence, there is no established his intent to rob and kill Dulaney Ly. Morris, record, whether an robbery in the as in about ambiguity attempted occurred, that findings evidence ample supports jury’s implied that and killed him the commission of during to rob Ly attempted attempted robbery. moreover, Thompson, finding
Unlike in no evidence compelled or conceal the murder. to rob in order to facilitate Ly attempted he twice 23d letter to in which he admitted Dulaney, Defendant’s February had a car and threatened with a knife before Ly demanded to know if Ly death, he intended to rob Ly on his head and stabbed him to shows stomped addition, when he had no car to steal. In but then abandoned his said plan Ly infer that defendant harbored an intent to rob Ly a rational could jury to “2/11” intent to kill based on his references multiple his independent letter, interview that during in the 23d his admission February police that he and defendant testimony “2/11” meant “armed robbery,” Dulaney’s the evidence that defendant to mean armed robbery, used term *28 had robbed and Tillman. The evidence therefore previously Reyes-Martinez the conclusion that fully defendant’s served supports attempted robbery Ly an (See and was not incidental to murder. independent purpose merely Ly’s 1215, 838, (2005) v. Carter People 36 Cal.4th 117 P.3d Cal.Rptr.3d [32 that the defendant obtained the murder bank victim’s account 544] [evidence before her the inference that the password fatally strangling supported defendant harbored an intent to rob the victim of his intent to kill independent her].) not
Although argued during an addi- closing argument by prosecutor, tional basis for the murder concluding was committed the commission during an on the record. robbery Defendant admitted in the attempted appears 23d letter that while he a knife to February held throat demanded to Ly’s car, if he know had a he became worried that a was Ly trying get head, him. Defendant on his told him to description looking stomped stop him, at and then stabbed him to death. brutally While in custody awaiting case, trial in this defendant wrote a letter to Samantha in which he Roby, recounted that after to the “we waited for him to knocking Ly ground, get up. there, When he did he at layed was me. I was on the looking already [sic] run from Mt. Vernon some with a shot So I shooting people gun. thought me, head, was so I then trying get discription stomped [sic] times, stabbed him over 51 Defendant his neck.” did not slashing [ric] otherwise his statements about “on the run” for explain being shooting and no evidence that defendant assaulted individuals people, by shooting event, them was In during guilt based on defend- presented phase.9 ant’s concession that he killed to eliminate him a and the as witness trial 8.81.1710, court’s instruction to the under jury CALJIC No. reason- jury could conclude the murder committed ably during was the commission of 9 During penalty phase, prosecution presented previ evidence that defendant had ously (See by shooting shotgun gun. assaulted several individuals at them with either a or BB I.C.3., ante.) I.C.I., pts. 8.81.17, jury The trial court instructed the under modified CALJIC No. as follows: “To special find that a circumstance referred to in these instructions as murder in the commission of true, robbery robbery attempted proved or is it must be that the murder was committed while However, engaged robbery attempted robbery, the defendant was in the commission of a or [ft] robbery the special circumstance referred to in these instructions is not established if the or attempted robbery merely robbery was incidental or commission of murder. A attempted robbery merely purpose is incidental to a murder where there is no for the murder, robbery robbery For attempted independent commission of the or that is [ft] example, objective robbery attempted robbery escape if the sole or was to or facilitate murder, robbery robbery merely attempted avoid detection after the or would be incidental murder, hand, to the On the other if there was an intent at the time of the murder to commit [ft] murder, robbery merely not incidental to the and the murder was committed while engaged robbery attempted robbery, special in the of a the defendant was commission or regardless circumstance is of whether the defendant also intended to kill the victim established robbery attempted robbery.” for some reason unrelated to commission of (See the murder. incidental and the robbery merely robbery 896, 163 P.3d DePriest 42 Cal.4th People (2007) 46-48 Cal.Rptr.3d [63 Gurule 896]; 628-629 28 Cal.4th People *29 v. 224].)
51 P.3d from to forcibly that intended both to steal defendant Finally, “ ‘Concurrent of does our conclusion. kill him because his race not alter a felony felony- and to an will independent support intent to kill commit ” 515, Bolden (2002) 554 (People v. Cal.4th murder circumstance.’ 29 special Raley 931], v. Cal.4th quoting People P.3d Cal.Rptr.2d 712].) P.2d therefore conclude substan We 903 [8 that the murder tial circumstance special finding evidence the supports jury’s during attempted robbery. was committed the commission of on Evidence Other Crimes Assertedly Misleading Instruction C. of 2.50, 2.50.1, 2.50.2) (CALJIC Nos. the conclusion the the trial court instructed guilt jury
At the of phase, introduced other as follows: “Evidence has been regarding crimes evidence for of that the committed crimes other than the defendant showing purpose believed, evidence, that he is if not be considered may for which on trial. character, that he that is a of bad or has by you to the prove person It by only be considered the may you to commit crimes. disposition for it show: The existence determining limited tends to [<j[] purpose of if of a motive the intent which is a element the crime necessary charged, for of charged. commission crime you the limited for which For purpose of evidence, you this must it in the same manner as do may consider you weigh to all evidence in You are consider this evidence other the case. not permitted for other purpose.
“ instructions, the has preceding prosecution Within meaning of that a by burden the evidence proof preponderance of he is on trial. You must committed crimes other than which find this evidence for unless any purpose you preponderance consider [jQ that a other crime. evidence defendant committed the ‘Preponderance than evidence’ evidence that has more force convincing means unable it. If the is so balanced that are you evidence opposed evenly either side your finding find that the evidence on of an issue preponderates, it. be had the burden of You that issue must who against party proving all evidence issue bearing every regardless should consider of the upon 2.50, 1996), (CALJIC (6th it.” Nos. & 2.50.2 ed. italics who 2.50.1 produced added.) above instructions that the italicized
Defendant contends
portions
because it
jury
rendered the instruction
infirm
constitutionally
permitted
to infer the existence of his intent
to rob the victim based on
proof by
preponderance of the evidence that he committed two uncharged robberies as
result,
a juvenile. As a
argues,
instructions as a whole reduced the
prosecution’s burden of
proof
violation of his
right
due process by
allowing
jury
convict him of first degree
murder and find
robbery
true
the attempted robbery
circumstance
special
based
allegation
on facts
part
a mere
proven by
preponderance
evidence.11
Defendant
relies
on the
primarily
decision of the Ninth Circuit Court of
Gibson Appeals
(9th
2004)
There,
Cir.
Ortiz
Viewing instructions as a the court of the interplay above italicized of CALJIC No. 2.50.01 portion and CALJIC No. 2.50.1 unconstitutionally “allowed the to find that jury petitioner] [the committed the sexual offenses a uncharged preponderance evidence and thus to infer that he had committed the charged acts based facts upon 11The People contend defendant forfeited these claims challenge because failed to grounds Although instructions on these at trial. object defendant failed to to the instructions at trial, we nonetheless address merits of his contentions because the asserted instructional errors are (People v. Prieto appeal they rights. reviewable on to the extent affect his substantial 1123]; 1259.) 30 Cal.4th 66 P.3d [133 § doubt, but by preponderance found not reasonable beyond Ortiz, 822.) The court specifically (Gibson supra, v. 387 F.3d at p. evidence.” harmonizing two trial court to offer an failing “explanation faulted the (Id. 823.) The in the at p. instructions.” jury burdens discussed proof under “structural error” reversal requiring instructional error was deemed 182, 113 S.Ct. Sullivan v. Louisiana (1993) 508 U.S. L.Ed.2d 2078] a standard to convict the based petitioner because jury permitted Ortiz, (Gibson 387 F.3d at supra, below a reasonable doubt. beyond proof 825.) p. Gibson, 2.50.01,
Gibson is Unlike No. given CALJIC inapposite. 2.50, below, as from consider jurors CALJIC No. given expressly prohibited of bad other crimes evidence as is ing “pro[of] person crimes.” this instruc character or that he has a to commit Under disposition tion, whether could consider this evidence determine solely jury crime charged, defendant had “the which is element of the necessary intent crime No. or a for the CALJIC 2.50 charged.” motive commission “in had to the other crimes evidence further explained jurors weigh same all other in the and were “not you manner do evidence case” is, jurors to consider evidence for other That purpose.” this permitted that, murder, instructed were first “the regarding degree robbery specific *31 the commission intent to commit commission or of robbery attempted 8.21.) a (CALJIC such crime must be doubt.” No. proved beyond reasonable the were instructed that the bore burden of jurors similarly prosecution the a reasonable robbery allegation circumstance proving beyond special (CALJIC 8.80.1.) doubt. No. The trial court also the standard instruc gave the evidence tions on reasonable doubt and on of circumstantial to sufficiency People v. (See Cal.4th Carpenter, supra, 15 383 prove guilt. p. [rejecting claim, the court’s standard instructions on reasoning identical trial nearly doubt and to reasonable on the of circumstantial evidence sufficiency prove the applied intent made clear the reasonable doubt standard necessary specific the instructions element].) to the intent We find no reasonable likelihood that to as a whole led the to believe that the was not required jury prosecution all elements of murder degree attempted robbery first prove robbery (Estelle v. McGuire (1991) circumstance a reasonable doubt. special beyond 62, 385, People v.Avena 475]; (1996) 112 13 502 U.S. 72 L.Ed.2d S.Ct. [116 301, v. Clair 394, 1000]; (1992) 417 People Cal.4th 916 P.2d Cal.Rptr.2d [53 629, 564, 705].) 2 Cal.4th 663 P.2d [7 2.50.1, to No. which This result is unaffected 1999 revision CALJIC by “If find other were following cautionary you added language: crime[s] evidence, nevertheless cau- you committed are by preponderance reminded any can be found of crime guilty tioned and that before trial, a whole included the evidence as must this charged [or crime] of that guilty a reasonable doubt that the defendant is you beyond persuade crime.” in the to Nothing 1999 revision CALJIC 2.50.1 or suggested implied of omission such rendered the prior version of instruction language infirm.
D. Evidence the Hate-murder Sufficiency Special Circumstance of of Defendant contends the evidence is insufficient to sustain hate-murder color, race, that murdered because special-circumstance finding Ly’s of 190.2, of religion, nationality, (§ (a)(16)). subd. He country origin asserts Fifth, this violates his constitutional under alleged insufficiency rights Sixth, Eighth Fourteenth Amendments to United States Constitution 1,7, 12, 15, 16, and sections 17 of I of the article California Constitution. 1. Applicability Standard Review Independent should Preliminarily, contends this court employ independent standard of review assess whether sufficient evidence supports hate- because, murder finding First special-circumstance assertedly, Amendment rights are case.12 evidence this Defendant claims the implicated artwork, literature, and writings, introduced personal correspondence the hate-murder prosecution prove consti- special-circumstance allegation tutes free under the First Amendment. expression protected S., 485, In (1984) Bose v. Union Inc. U. Corp. Consumers U. S. 1949], L.Ed.2d 104 S.Ct. the United States Court Supreme explained [80 that “in cases First Amendment issues ... an court raising has an appellate obligation ‘make examination the whole record’ in order independent make sure ‘the does not judgment constitute forbidden intrusion on ” the field of free YorkTimesCo. Sullivan expression.’ (Quoting New 710].) 376 U.S. 284-286 L.Ed.2d 84 S.Ct. review “Independent *32 is not the of de novo review ‘in which a court equivalent makes an reviewing of all it original the evidence to decide whether or not believes’ the appraisal (Bose, 514, outcome should have been different. 466 31.) U.S. at fn. supra, p. a Because the trier of fact is in to observe superior the demeanor of position witnesses, review, determinations are not credibility subject independent nor are of fact that are not relevant to the First findings Amendment issue. 499-500; (Id. at Connaughton (1989)] Harte-Hanks v. pp. [Communications [657,] 562, above, 2678].) 491 U.S. 688 S.Ct. noted L.Ed.2d As 109 [105 standard, under the evidence is substantial whether rational question doubt, trier of fact could find the elements a reasonable beyond satisfied legal 12 argument failing Respondent asserting by errs in forfeited this to raise it at trial. every “In appeal, proper the threshold matter to be determined is standard review—the (Lazar Corp. (1999) prism through presented we view the us.” Hertz which issues 69 1494, 368].) Cal.App.4th 1500 Cal.Rptr.2d [82
37 review, exercises its indepen an court under appellate whereas independent (In re rule of law.” satisfy the facts to determine whether judgment dent 620, 61, 1007].) P.3d T. 93 George (2004) 33 Cal.4th 634 Cal.Rptr.3d [16 I, Bose, In re a First George that when plausible we held in Relying raised, review should independently is a court reviewing Amendment defense of evidence determining sufficiency supporting the entire record in threat within the minor made criminal finding court’s that juvenile T, 631-634.) at re (In George supra, pp. 422. Cal.4th section meaning is relevant facts review the constitutionally that independent We explained that a “to ensure First Amendment issues in cases necessary involving of fact’s have not been trier infringed by free rights speaker’s speech threat.” constitutes criminal determination that the communication at issue make 632.) is (33 employed “precisely Cal.4th at review p. Independent falling within government certain what characterizes speech (Id. 633.) does so.” at actually class unprotected p.
Here, line drawn. hate-murder there is no such to be California’s circumstance, 190.2, (a)(16), provides section subdivision special for without for first murder is death or life degree imprisonment punishment killed because intentionally when victim was possibility parole “[t]he color, race, its origin.” By of his or her religion, nationality, country terms, first murder degree this an enhanced penalty provision provides not directed at free committed because of bias motivation and is prohibited Mitchell Wisconsin v. (See, First Amendment. e.g., expression protected 436, (1993) 508 U.S. L.Ed.2d 113 S.Ct. 485-490 [enhance [124 2194] because of ment statute is directed conduct committed prohibited properly violation of the First bias motivation and does not free punish speech re M.S. In Amendment]; Cal.4th 422.7, statutes, hate P.2d one of California’s crime properly 1365] [§ First a defendant’s implicate
sanctions bias-motivated conduct does First Amendment we conclude no Amendment Accordingly, because rights].) case, of the evidence issues are in this review implicated independent is not warranted. finding the hate-murder circumstance special supporting the Hate-murder 2. Substantial Evidence Supports Finding Special-circumstance test, entire we review the the deferential substantial evidence
Applying *33 it most to determine whether record in the favorable the light judgment fact find the from which a rational trier of could contains substantial evidence allegation beyond of the hate-murder essential elements special-circumstance Alvarez, do v. 225.) at We supra, a reasonable doubt. Cal.4th (People p. Guerra, credibility. (People or v. reweigh not evidence reassess witness’s that, supra, 1129.) 37 Cal.4th at we p. note to these Initially, contrary settled defendant views the evidence in a principles, to the light unfavorable and, effect, judgment in urges this court reevaluate the of credibility certain witnesses. 190.2,
Section (a), that subdivision the for a provides penalty found of first death guilty degree murder is or for life without imprisonment of if the possibility trier of fact finds one of the parole special circumstances enumerated under The hate-murder provision. circumstance special ap- if the trier fact plies of finds victim was intentionally killed because of “[t]he race, color, 190.2, his or her religion, (§ or of nationality, origin.” country (a)(16).) subd.
The “because of’ in this statute is to the of language similar language 422.7, M.S., sections 422.6 and at issue statutes in In re supra, 10 Cal.4th “ 698, discussed We above. held that ‘because of’ means the phrase (Id. conduct must have been caused by 719.) bias.” at “A prohibited p. cause is a condition must exist for logically result or conse given (Ibid., to occur.” quence (2d 249.) American ed. citing Heritage 1982) Dict. p. offense, bias be in motivation must a cause fact of the “[T]he whether or not exist, other causes exist. also When concurrent motives multiple [Citation.] must prohibited bias be a factor in substantial about the crime.” bringing (In M.S., 719; re 10 Cal.4th at see supra, also v. p. People Superior Court (Aishman) 10 Cal.4th (1995) 896 P.2d [42 1387] M.S., [applying reasoning on this from In re point similar interpreting 422.75].) language §
In 880], People Sassounian 182 Cal.App.3d Cal.Rptr. the defendant convicted was of the first murder-assassination degree Consul General of the and the found true the Republic Turkey, jury special circumstance that he the victim allegation killed because of his or nationality 190.2, country violation of section subdivision origin, (a)(16). (Sassounian, 373.) at relied p. prosecution primarily testimony inmate claimed the jail who defendant confessed to him that he and others carried out the murder as “an act revenge the Turkish against people (Id. what they years had done before to at 385.) Armenians.” On p. it evidence appeal, noting could as the defendant reweigh urged, Court of rejected defendant’s contention that the evidence Appeal insufficient to the jury’s sustain circumstance on the special finding ground (Id. 408.) fellow inmate’s testimony inherently incredible. p.
The defendant later habeas relief on the sought corpus ground prosecu- tion evidence material on the presented substantially false issue probative the inmate’s that the defendant had penalty, namely, testimony confessed *34 Sassounian, (In claim, re 9 Cal.4th supra, this 547.) at In rejecting p. him. to that, overwhelming inmate’s testimony, the even without this court held to police regarding brother’s statement defendant’s evidence—including the reasonable and feelings views—supported defendant’s anti-Turkish he “was the victim because killed intentionally inference that the (Id. and Turkey.” 11.) & fn. That represented at 548-549 pp. Turkish affect circumstance would not also latter by defendant was motivated an inten- “[tjhere no of because is requirement circumstance finding special killing ‘solely or of country ‘nationality because of’ victim’s tional ” (Id. 11.) fn. origin.’ p. that, we to free should apply in order suggests speech, Defendant protect in In re M.S. and test set out the substantial factor causation rigor” “with was that a bias a “substantial establishing the evidence prohibited require about the murder also bias establish that prohibited factor” bringing unconditional, immediate, “unequivocal, specific.” Specifically, was that, context the substantial factor analysis, argues racial (1) defendant “possessed” evidence should establish: prosecution’s bias; a racial bias members (2) against defendant “specifically possessed belonged”; (3) race to the victim “this bias significant which life”; “this viewed the world led his determining how [defendant] bias murdered explains why [defendant] [the victim].” In re M.S. In a is
Defendant’s reliance on for such proposition misplaced. M.S., re 422.6, In certain contention that section prohibiting we a rejected motive, conduct, bias a threat of violence because of including prohibited it overbroad under First Amendment because unconstitutionally purport- unconditional, unequivocal, failed to the threat be edly require M.S., (In re supra, 711-712.) We construed section imminent. 10 Cal.4th at pp. threat to out the carry 422.6 to require apparent ability proof present state or with a under right intent interfere specific person’s protected M.S., (In re supra, 712-713.) law. 10 Cal.4th at These pp. require- federal ments, reasoned, unconstitutional safeguard we help against application (Ibid.) speech. protected
Here, is of unconstitutional application there no similar risk the hate-murder circumstance to special protected speech, statute defining Amendment: First first degree to conduct it applies only unprotected v. Wisconsin (See committed bias motivation. prohibited murder because Mitchell, Further, supra, the First 487.) we reiterate that 508 U.S. at pp. Amendment use of a defendant’s protected does not prohibit evidentiary Mitchell, (Wisconsin supra, the elements a crime. expression prove reasons, decline to infer 489.) any requirement U.S. at For these we p. causing factor” in bias motivation was “substantial that proof prohibited *35 the hate-murder murder also special-circumstance must establish the bias unconditional, immediate, was and unequivocal, specific.
Here, defendant, could infer from jury reasonably the evidence that White, who is was a follower the White movement and supremacy advocated racial hatred. on Sergeant Miller’s White su- expert testimony and beliefs culture and the materials seized premacy from defendant’s police bedroom—defendant’s Bible with references to White a leader supremacist and organization the last several written and pages, White published materials, helmet supremacy “Martin Luther a derogatory King” poster, swastika, adorned with a and a cardboard box adorned the Nazi with “SS” bolts and lightning defendant identified swastikas—reasonably suggest with White and was motivated to use violence to advance their belief supremacists that the White race is to other superior all races. He in actively participated the White movement. While in supremacy custody Missouri he he bragged that running Aryan (W.A.R.) White Resistance group and was violence to the national He prison using encour- support party. to aged Dulaney start his own but not to associate with group any organiza- tion that did not violence or of that nature.” Defendant “say anything also to write to the encouraged Dulaney Party Nationalist Canada request literature so that he and start own Dulaney could their when he was party defendant, released from In custody. Dulaney, defendant’s brother ICP, formed their own gang, which became involved in “White Power” movement.
Additional evidence showed defendant’s racial animus against particular Asians, Asians. He admitted to Ellis that he disliked because he purportedly Okinawa, Also, was forced leave to to Asians as “gooks.” referred Lopez, Kmart, who with worked defendant testified that within a of months couple murder, of Ly’s defendant referred Asian as to customers “gooks.” In his 23d letter to which February Dulaney, received Dulaney approxi- murder, month mately one after defendant boasted he “killed a Ly’s jap He with the details of he stabbed Dulaney how provided brutally Ly L'z'c].” death and then added that he was a ball in tustin “having you wish were here.” a During on the Dulaney day conversation after telephone letter, received defendant’s confessional admitted he Dulaney killed “for racial movement.” that he “killed the Ly Defendant repeated Jap [sic],” and could not He him. described murder as stop stabbing Ly’s giving “ ” “ ” him ‘a high.’ rush’ ‘like a Villa,
After defendant was arrested and he jailed, bragged fellow inmate, that he was in stabbing Nip [sic] “for to death.” Defendant custody also admitted Villa that told a friend “how it is to kill easy Vietnamese referred to Tammy Shoopman, In his letter with it.” away get this earned him and bragged to Death” got stabbed Ly “Chino [who] . crime.” “a . . and Hate murdered facts, infer that could reasonably a jury
From these country race Ly’s country origin race or because *36 of meaning within motivating killing, was a substantial factor origin M.S., re 10 at supra, In Cal.4th 190.2, (a)(16). (See subdivision section Sassounian, 408.) at That 719; p. 182 Cal.App.3d supra, see also People p. that defendant mur finding additional also the jury’s evidence supports as a witness to the attempted to eliminate him dered because he wanted II.B., the hate-murder special (see ante) does invalidate robbery pt. Sassounian, 11.) & fn. supra, In re 9 Cal.4th 549 (See p. circumstance. hate- jury’s we conclude substantial evidence supports Accordingly, finding. murder special-circumstance White Testimony Subject Supremacy on
E.
Expert
of
him a
its discretion and denied
Defendant contends the trial court abused
Ronald
Sergeant
Beach
fair
Police
by
Huntington
Department
trial
permitting
and to
of White
subject
supremacy
opine
Miller to
as an
on
expert
testify
of his
Defendant asserts violations
that defendant was a White supremacist.
and the presumption
and
Amendment
due
rights
process
Fifth
Fourteenth
(In re Winship
a reasonable doubt
of innocence absent
of guilt beyond
proof
1068]) as
as the Eighth
S.Ct.
well
(1970)
1. Procedural an Evidence Code the trial court conducted Outside the of the jury, presence of Miller’s Sergeant admissibility to determine the section hearing supremacy. of White subject testimony expert testimony as letters written (1) identify intended to call expert prosecutor references containing in his and other material found possession beliefs, White espousing supremacist groups White supremacist beliefs, their and describe (2) identify groups White supremacist objected for defendant Counsel defendant as White identify supremacist. of White grounds subject supremacy on the testimony to the proposed de- writings symbols knowledge, was within the common jurors’ required in his possession letters and other materials in defendant’s picted its outweighed the testimony’s prejudicial impact no interpretation, Code, (Evid. 352). value probative § that,
Sergeant Miller testified at the section hearing over 10 years, he had been involved with White supremacists and one their subgroups, “skinheads,” as a officer police assigned Beach Police Huntington Beach Detail and Department Gang Unit. He had on the developed expertise subject White supremacy through his contacts and interviews with self- White proclaimed and “skinheads” and supremacists his review numerous on the White publications movement. supremacist During course of this work, he became acquainted numerous White supremacist groups believed “the White race is over others.” had supreme Sergeant Miller testified in court five times on the subject White supremacy.
The trial court overruled defendant’s objections found Miller qualified as an on the expert subject “White and their supremacist teachings groups and thinking.” *37 then
Sergeant Miller testified before the a that “White jury is supremacist” “a race, racist who is oriented toward the of White superiority believing it is above all others. tend to view as . They minorities . . sub-humans. [|] Antisemitic, are also They often even quite to label the point they Holocaust as a Jewish trick to gamer support for the Jews sympathy world, throughout Those are the two major tenets of the White [f] supremacist.”
Miller testified that he had reviewed the handwritten last notations several of the Bible recovered from defendant’s He pages recog- apartment. nized the name of a White Church of Jesus supremacy Christ group, Christian, also known as the Nations. is Aryan This based group Hayden Lake, Idaho, Butler, and is led Richard who a by to broad “appeals spectmm movement, skinheads, within the white supremacist Ku Klux including Klan members.” Members the Aryan Nations subscribe to the “Identity belief, Christian” by described Miller as a “pseudo religion” that uses biblical chosen, “to that White are God’s all
passages prove people others [and that] are what would call mud or they sub human.” This believes all people group Jews are descendants of Satan. Mohr,”
Miller recognized “Brig. reference Gen. Jack whom he Mohr, identified as General Jack who as a Brigadier had served colonel in United States Army during World War II had been of war. prisoner Miller knew Mohr had been involved with “Christian Identity” preaching beliefs about White Miller believed Mohr “would supremacy prisoners. have no with violence under the problem against right minorities probably circumstances.” Talon, of the White a newsletter for The a notation
Miller recognized Alliance, is based which Euro-American organization supremacist race should be Milwaukee, advocated that White This group Wisconsin. between, Asians inter-mixing example, any inbreeding, from “kept pure and White Americans.” and White American[s] blackfs] from defendant’s seized the inside of box Miller examined Sergeant graffiti,” multicolored “personal it covered with and observed was apartment bolts. He “SS” (two) lightning and the Nazi the Nazi swastika including the “Stamp members of identified symbol the “SS” bolts lightning explained Nazi “the elite organization “SS” referred to Shuffel [sic: Schutzstaffel].” Jews, extermination of such missions as the Hitler with assigned by homosexuals, the holo- minorities, others during communists and gypsies, defendant had written Miller examined letter of World War II.” caust among case and identified he was in this custody Jeremie Overstreet while “Stay symbol phrase, Nazi “SS” bolts lightning its contents the White,” be “pure.” belief that the White race should kept a reference with the defendant’s Bible found in paper
Miller next identified piece a list of White supremacist “Pro White heading Organizations” comprising based in (1) Research Fellowship, organizations, including Aryan of Justice identified the United States by Department Coquille, Oregon, N.A.A.W.P., or National Asso- as a organization; White supremacist Orleans, based in New for the Advancement of White People, ciation Louisiana, wizard (KKK) Klux imperial and formed former Ku Klan *38 Order, based in (3) the New Duke “to White rights”; David protect people’s Milwaukee, this Wisconsin, Nazi Party; group and successor to the American race” and formerly Adolf as for the or White Aryan views Hitler “the Messiah Klansmen, (4) The Socialist White Party; was known as the National People’s Resistance, KKK; (5) based in Aryan the White a associated with group Fallbrook, California, Tom whom Metzger, and led White by supremacist violence”; a (6) Knights, the White as “oriented toward Miller described Alabama; based in organization, Birmingham, “KKK-oriented” KKK, Klan, Thom a faction of led larger of the Ku Klux Knights Robb, Identity a White and Christian supremacist whom Miller described as preacher. skinheads, that, he had most with the
Miller elaborated exception Resistance, organization “very and the White Metzger Aryan contact with a newslet- Resistance in orientation.” The White Aryan published violent [its] backing illustrations up ter both articles “regularly that feature[d] [and] de- One featured illustration views.” such White [Metzger’s] supremacist with a minority a blasting “a man a double-barrel shotgun White with picted White, it.” As for “If it isn’t waste of rounds” with a caption stating, couple leader, over advocated “White Metzger supremacy” this organization’s Blacks, Asians, site, and all minorities. He maintained a Hispanics, Web board, a bulletin his and the previously computer promoted organiza- Earlier, tion’s “hate views.” had Metzger a cable access produced television called Race and Reason program provided forum White suprema- cists to guests and discuss appear their common beliefs about White skinheads, After began supremacy. Metzger recruiting latter produced called Skinhead Race their own cable access and Reason. program Miller then Sergeant examined three letters defendant had portions written to Robert Dulaney over before murder in year this case. In 10, 1993, letter dated Missouri, March when defendant was incarcerated in wrote, “I run the W.A.R. in here. White Arian group resistance is a action a branch of group—were NVAP—National Vastal Arian we Party they dictate react in other words (Errors talk—we back them with they violence.” original.) Miller that the explained “W.A.R. referred to the phrase group” “White Resistance” and Aryan defendant’s written statement as interpreted “talks,” that when the meaning NVAP defendant’s White Resistance Aryan backs them group violence. up 12, 1993, wrote,
In a letter October postmarked defendant “Don’t worry I love to dog, the WaR zone . . . .” play Miller understood “WaR” as to the referring White Resistance Aryan In another supremacist organization. 14, 1994, letter postmarked February wrote word “Kill” in large block letters near the The letter “K” closing. resembled a Nazi swastika. this, Below the word “kill” seven times in lowercase repeated letters. Miller
Sergeant examined helmet skull photograph plastic found defendant’s bedroom and identified the helmet as a World IIWar Nazi or a military helmet A Nazi swastika replica. symbol appeared front of the helmet. *39 letters,
Based on defendant’s in own words his the with whom groups associated, defendant and use of associated with the “Nazi symbols beliefs,” White of Nazi swastika and supremacist types including “SS” Miller bolts a symbols, believed defendant was White lightning supremacist. the letters Miller considered were two written Among letters while in in One custody awaiting Kelly trial this case. was addressed to Dresen, stated, which “I In in am 100 black.” percent against Overstreet, another letter addressed Jeremie defendant drew two lightning White,” bolts next to the and on “stay wrote “No phrase, separate page, (Errors better not them fuee’s not like in kong you!” originals.) hong might
45
2. Discussion by allowing Sergeant the trial court erred defendant first claims
On appeal, defendant’s found in material that written and printed Miller to testify murder, and after bedroom, Ly’s defendant before written by letters including White supremacist and espoused organizations referred to White supremacist should have been restricted Miller’s testimony Defendant asserts that beliefs. or on “Pro in defendant’s Bible listed organizations identifying list, of recognizing were capable and that Organizations” jurors White the writings or White references overtones understanding any supremacist material. printed of reviewed for abuse testimony A to admit is expert trial court’s decision 1179, 1222 v. Prince (People (2007) 40 Cal.4th Cal.Rptr.3d discretion. [57 543, that the 1015].) discussed below P.3d We conclude for reasons 156 did this by admitting testimony. trial court not abuse its discretion First, on is inadmissible testimony topics although generally expert reach a and education could “so that jurors ordinary knowledge common” on testify subject as as an expert may conclusion intelligently expert, Prince, v. supra, completely ignorant. (People are jurors about which 351, v. McDonald citing People 1222, (1984) 37 Cal.3d Cal.4th at p. People 236, 709], v. another ground P.2d overruled on
Cal.Rptr. 265].) In P.3d Mendoza 23 Cal.4th 914 [98 is testimony, “the determining admissibility expert pertinent question matter, whether, even some of the knowledge subject expert if have jurors Prince, jury.” (People supra, 40 Cal.4th would assist the opinion testimony 1222; Code, (a).) see Evid. subd. p. § Here, state of was relevant to establish defendant’s challenged evidence because of his Ly mind at the time he killed and whether defendant killed 190.2, color, “race, (§ country origin.” religion, nationality, (a)(16).) general knowledge subd. some have Although jurors may possessed nonetheless explained White Miller’s subject testimony supremacy, is racist believes White detail that a White who supremacist some anti-Semitic, the Holo- is “labeling] race is to all other races and superior the Jews caust gamer sympathy Jewish trick support testimony, Without the benefit of expert’s world.” throughout often associated Nazis symbols not have understood that jurors might the Nazi (e.g., found in defendant’s bedroom adorned some the items box) and the “SS” bolts defendant’s lightning phrases swastikas “Pure (e.g., written material were contained in defendant’s letters other *40 White,” W.A.R.”) White by “I mn the were used White Organizations,” “Stay have likely would the jurors to advocate their beliefs. Nor supremacists 46
recognized the of the White names (e.g., leaders supremacist Brigadier Mohr) Christian, General Jack (Church and of Jesus organizations Christ also Nations) known as the Aryan noted in the seized. Sergeant materials Miller’s could testimony jurors assist them by basis information providing determine, about White beliefs and from supremacist tenets which could they bedroom, based on the material seized from defendant’s that defendant subscribed to White supremacist beliefs and tenets. this evidence
Ultimately, could assist the jury determining defendant’s Thus, motive for killing Ly. demonstrated more than expert’s testimony defendant’s abstract beliefs about White and supremacy was relevant to jury’s determination of whether the hate-murder prosecution proved v. Dawson Delaware (Cf. 159, circumstance. (1992) 503 special U.S. 164-165 309, L.Ed.2d 112 S.Ct. of the defendant’s membership [117 1093] [evidence in Aryan Brotherhood that linked to the crime committed revealed only defendant’s abstract beliefs to was irrelevant his capital circumstances, sentencing hearing].) Under these we cannot conclude Sergeant Code, Miller’s testimony (Evid. no assistance to jurors 801, (a)), subd. or would contribute to nothing § common fund of jury’s v. Farnam (People 107, information. (2002) Cal.4th 28 163 Cal.Rptr.2d [121 106, 988].) 47 P.3d
A second basis for the trial court’s decision upholding Miller’s admitting on White testimony culture and beliefs is that have supremacy we admitted v. e.g., People Gonzalez testimony analogous (See, circumstances. expert 932, (2006) 237, 38 Cal.4th 135 944-949 P.3d Cal.Rptr.3d [approv- [44 649] ing admission of expert testimony culture and regarding gang witness v. Ochoa People members]; 398, intimidation gang (2001) 26 Cal.4th 438 324, 28 P.3d the admission of Cal.Rptr.2d [approving expert [110 78] tattoos]; testimony explain significance of the defendant’s gang-related People Gardeley 605, 356, v. Cal.4th 927 P.2d Cal.Rptr.2d [59 [recognizing subject matter of the culture and 713] habits “[t]he criminal street gangs” satisfies criterion of admissible testimony expert Code, 801]; People Champion under Evid. v. (1995) 9 Cal.4th § 922 [39 P.2d Cal.Rptr.2d juvenile gang admission of [approving expert’s 93] testimony defendants’ relevant gang membership establish People offenses]; their identities as see also charged perpetrators Olguin (1994) 31 Cal.App.4th use [“The 596] testimony in the area of is well expert gang sociology psychology established.”].)
Numerous decisions in federal other state cases also have upheld admission of culture and beliefs of White expert testimony explain tattoos, gangs and supremacy groups symbols, graffiti interpret
47 at to the was relevant issues when such evidence these groups associated with 1023, 1025-1026 (8th 1991) [expert 949 F.2d (See v. Cir. Sparks trial. U.S. signs and hand graffiti depicted meaning gang the testimony explaining defendant was arrested in which the the seized from house photographs defendant’s affiliation gang relevant to establish the admitted and properly 1370, (9th F.2d 1990) v. Cir. 922 U.S. Skillman and impeachment]; “ ‘a neo-Nazi type as testimony describing & fn. 4 “skinheads” 1374 [expert . and . . and White power, . . . racial purity tend[s] of group espouse[s] [that] ” to the because it tended establish to be violent’ was admitted properly offense, animus,” intimidating an of the charged defendant’s “racial element color]; United race or rights with because interfering housing person’s 1553, trial court (11th 1983) F.2d 1559-1560 v. Mills Cir. 704 [the States the organization, of a testimony “quasi expert” admitted the properly Brotherhood, a White and activities of the history, Aryan supremacist prison the as to motive and the circumstances of relevant the defendant’s gang, v. contract Skinner alleged killing]; People (Colo.Ct.App. Brotherhood Aryan 720, 722, 2002) did not abuse its discretion 53 P.3d 724 trial court [the be to that defendant’s tattoo could admitting testimony expert explain beliefs]; Wagner v. People viewed as a of White symbol supremacy 125, 671, trial court 27 A.D.3d N.Y.S.2d properly 126-127] [the [811 to and the of tattoos meaning testify on hate crimes expert permitted tattoos; the to White tattoos were relevant the defendant’s respect supremacist to second degree aggravated defendant’s motive intent commit 1995) harassment]; Mason 905 S.W.2d (Tex.Crim.App. v. State [a is a White that Brotherhood testimony Aryan prison gang expert’s that, inmates other recruits White organization among things, supremacist as admitted in contract assaultive behavior engages killings properly v. State dangerousness]; relevant to issue of defendant’s future trial (1995) 78 P.2d Campbell Wn.App. 1055-1056] [the gang terminol- testimony court admitted expert gang explain properly history structure and ogy, gang organizational gangs symbols, intent, and motive to commit relevant to show defendant’s premeditation, murders].) addition, United Court has held evidence Supreme In States be considered may properly of racial intolerance and subversive advocacy is to the issues such relevant sentencing when evidence capital proceeding Delaware, 164.) The court 503 U.S. at (Dawson p. high supra, involved. testimony. could be adduced by expert that such evidence suggested properly 165, 168.) (Id. pp. testimony supremacists Miller’s that White Sergeant
Defendant claims that Antisemitic, they even label point “are also often quite Jews for the trick gamer sympathy Holocaust as Jewish support asserts, because, and inadmissible the world” was irrelevant throughout *42 matter, was not As a Jewish. we preliminary agree with that respondent because, forfeited this claim although defendant to the objected whole, the admission of as a he expert’s testimony failed to object specifi- cally on the ground now advances and trial thereby the court of an deprived Code, to make a opportunity (Evid. 353; informed on the issue. fully ruling § see, v. Geier e.g., People Cal.4th 609-611 161 P.3d defendant’s broad to the pretrial objection [the admissibility 104] DNA evidence did not for that preserve claim the trial appeal specific court erroneously the DNA permitted to to the of the expert testify frequency genetic racial profile among only single rather than for two group additional major racial and ethnic existed].) for which DNA databases In groups any event, defendant’s is without contention merit. Miller
Sergeant described the White two tenets as their supremacists’ belief in the of the White race superiority above all other and their races particular Jews, hatred of who the believe fabricated they gamer Holocaust world- wide sympathy support. comments the White expert’s regarding hatred supremacists’ towards Jews were relevant these tenets and explain their and to the origins jurors with basis of information provide certain found understanding in defendant’s symbols bedroom the “SS” (e.g., bolts) and lightning determining whether defendant’s murder of Ly was Jewish, motivated racial hatred. by Whether or not was these comments were relevant on the general of White subject Defendant’s supremacy. complaint concerns of this weight Miller’s not portion testimony, its admissibility.
Defendant also claims that Sergeant Miller’s testimony regarding Tom Metzger, Resistance, whom Miller identified as the leader White Aryan Miller, irrelevant because Metzger not on trial. According however, “Pro White Organizations” list found in defendant’s Bible Resistance,” contained the Aryan name “White violent” “very organiza- tion led also by Metzger. Defendant referred to White Resistance Aryan in letters he written had over one before Dulaney he killed In year Ly. event, the remarks expert’s concerning gave overview Metzger jurors of White culture and beliefs in order to supremacy context White place concern, too, references found in seized material. This supremacist affects evidence, of this its weight admissibility. Next, defendant claims trial court erred in Miller to permitting Sergeant give his that defendant was a White an issue supremacist, opinion properly reserved trier informed to the of fact. He asserts the was less than the expert jurors they on this because could also consider additional relevant point including evidence on this other witnesses. point, testimony the form of “[testimony section 805 provides Evidence Code it because is not objectionable admissible that is otherwise an opinion (See of fact.” People decided trier by issue to be embraces the ultimate crime scene Prince, expert 1226-1227 40 Cal.4th supra, pp. [an all murders were committed testified that six crimes” analysis “signature abused its discretion cannot that the trial court say the same We person].) defendant was White supremacist Miller’s Sergeant
in finding opinion and determining the evidence evaluating would be of to the jury assistance and the truth charged offenses whether the had prosecution proved *43 no defend stated allegations. opinion circumstance expert special that His opinion or truth of the circumstances. special ant’s the guilt bind on this jurors point was a did not the supremacist White trial court relevant evidence. The considering them from other preclude a of credibility that were the “sole judges” instructed the jurors they all evidence on consider the (CALJIC 2.20), they No. that should witness 2.27), were (CALJIC they and that fact No. depends which of proof any, if to accord weight, expert’s opinion upon free to determine (CALJIC 2.80). for the No. basis considering opinion contends that the value of additionally probative Sergeant Defendant Code, (Evid. effect Miller’s was its testimony outweighed by prejudicial of his 352) right and that admission rendered his trial unfair in violation its § a that he was White to due He asserts the expert’s opinion process. him it him as because
supremacist unfairly jury against depicted poisoned homosexuals, Jews, minorities, an anti-Semite who wanted to exterminate claims, Hitler and This also him Adolf equated gypsies. opinion, “the of the Nazi Defendant further regime.” complains worst excesses of a “a White man with a double-barrel of expert’s description photograph with a of rounds” a White shotgun blasting Aryan a minority couple Resistance publication prejudicial. a court in discretion to
Evidence Code section 352 trial its permits substantially evidence its value outweighed by exclude if is probative a substantial of undue danger its admission would create probability evidence We a trial court’s decision whether exclude review prejudice. 352 abuse of discretion. v. Cox (People to Evidence Code section pursuant 916, 272, 277].) P.3d For this (2003) 70 30 Cal.4th 959 Cal.Rptr.2d [135 “ without to relevance.” regard means uniquely inflammatory purpose, ‘prejudicial’ (Pe 1082, v. Zambrano 41 Cal.4th 1138 ople Cal.Rptr.3d [63 than 4].) probative P.3d “Evidence is more substantially prejudicial to the ... an intolerable ‘risk fairness of proceedings if it poses [citation] (2000) 22 the outcome’ v. Waidla reliability (People or the [citation].” 46].) P.2d Cal.4th Here, of Sergeant admission Miller’s testimony was probative and, thus, defendant’s motive and intent committing murder relevant directly determination jury’s of the murder charge hate-murder We special-circumstance allegation. do not view as prejudicial either the expert’s overview of the general subject White or his supremacy Jews, that White harbor specific testimony supremacists hatred of particular Nazis, associate with and use symbols Nazi-related “SS” (e.g., lightning bolts swastika) beliefs, their racist promote regularly feature racist illustrations in their publications (e.g., of White man depiction “blasting a minority” with a double-barrel As shotgun). defendant has argued, many the items found in defendant’s bedroom and the letters confiscated while he was in trial themselves jail awaiting clearly of racial conveyed messages hatred and anti-Semitism. For example, jurors reasonably could find defend- ant harbored a hatred Blacks and Jews based evidence he displayed his bedroom the racist “Martin Luther an actual or King” poster, possessed front, of a Nazi replica helmet with a swastika across symbol penned a letter to before death that Dulaney Ly’s contained swastika above the words “kill-kill-kill-kill-kill-kill-kin” followed “Them all!” Evidence is not unduly because it prejudicial “merely a defendant *44 strongly implicates v. Robinson light.” (People 592, casts him or her in bad (2005) 37 Cal.4th 760, 632 363].) 124 P.3d Cal.Rptr.3d The trial court instructed [36 properly the to be influenced jury passion, and to sympathy, prejudice the conscientiously weigh consider evidence in the law. Under applying other, circumstances, these where admitted evidence commu- properly plainly attitudes, nicated the defendant’s the jury odious trial court found properly the value of the probative was not expert’s testimony substantially out- by its weighed effect. prejudicial without that defendant’s
Finally, assuming deciding additional constitu v. Partida People 428, tional claims were (see (2005) 37 Cal.4th preserved 644, 765]), 433-434 122 P.3d are without merit for the Cal.Rptr.3d they [35 v. People same reasons we have state rejected (See defendant’s law claims. Prince, supra, 40 Cal.4th at v. 1229; People Kraft, supra, 23 Cal.4th at p. 1035.) p. Penalty
ITT. Phase A. CALJIC No. 8.85 8.85,13
Defendant contends that No. which aggravat CALJIC describes the factors the consider in is ing mitigating jury may determining penalty, 13 8.85, jury language court part, trial instructed in CALJIC No. in relevant as Jay determining Lindberg, which is to be penalty imposed follows: “In defendant Gunner you during any part shall consider all of the evidence which has been received trial in consider, case, may except you this instructed. You shall take account hereafter into [be] inform the jury fails to (1) the instruction flawed because constitutionally (2) the are and which factors aggravating, are mitigating which factors instruction acts as “extreme” “substantial” use of modifiers have We mitigation.14 previously consideration barrier the jury’s Ramirez, supra, v. Cal.4th (People p. challenges. these rejected Eighth do not violate the of CALJIC No. 8.85 language [“instructions sentencing delete by failing inapplicable and Fourteenth Amendments circumstances”]; and mitigating delineate between aggravating factors or 132 P.3d People Perry 235] 38 Cal.4th Cal.Rptr.3d [42 limit unconstitutionally “substantial” do not terms “extreme” and [the v. San Nicolas consider]; People see also may factors mitigating jury 612, 101 P.3d (2004) 34 Cal.4th 675-676 509] [CALJIC mental or emo considering from lesser No. 8.85 does not preclude jurors Sixth, Fifth, as a factor in violation of mitigating tional disturbance Amendments].) no reason Defendant offers Eighth, persuasive and Fourteenth to reconsider our decisions. prior
B. CALJIC No. 8.88 his CALJIC No. 8.8815 violated Defendant contends various aspects Fifth, Sixth, and Fourteenth Amendments Eighth, under the rights Lindberg’s believed to be a moral disturbance. following tion of another offense was committed the defendant Gunner effects relatively conduct less than though disregard any jury an law conflicts with this Cal.4th follows: “It is now Gunner ant’s] the state asserted 15 14 accomplice this Defendant asserts the trial court’s instruction under CALJIC No. 8.85 The trial court instructed the rights of it is 1196, 1214, Jay to in instruction intoxication. prison minor. factors, death, Gunner Gunner the homicidal a such a not a Lindberg’s under the E,Q] requirements person. [*][] for life without whether legal if Jay Lindberg principle.” Jay Lindberg the offense and his instruction your Whether or not the victim was a K, fn. applicable: violates and perfunctory conduct or consented to the homicidal act. Jay Lindberg was under [!](cid:127) nn [][] Eighth Any under excuse for character or record that the defendant offers 11 duty justification [1] or [40 of law was other circumstance which extenuates the H, not related to determine which of the circumstances which defendant Gunner Amendment, given Cal.Rptr.2d [][]... to Whether acted under extreme duress jury J, possibility manner is the crime and provides appreciate Whether or extenuation for in the n [] you impaired participation or D, 456, as in the language the offense no or of not at Whether or the well as state not the influence 892 parole argument as any sympathetic properly criminality of guilt defendant Gunner P.2d the result in of CALJIC No. shall or innocence two participant time for which he is on trial. You not the 1199].) raised. or of mental disease or defense or law” but fails to penalties, *45 or conduct, commission be of extreme mental or emotional authority of the offense under his conduct imposed offense or other (People [f] gravity of as a basis for a sentence phase Jay Jay 8.88, death or confinement the [f] F, in was committed while Lindberg Lindberg reasonably Whether upon of the offense was substantial G, aspect “infringed v. Gionis in support. of this or to identify Whether or not relevant the capacity the defendant of defendant conform Gunner crime, trial was a or not A matter (1995) the state domina- [defend part, which must even [szc] Jay the of as in 9 52
federal and Constitution of provisions California corresponding concedes, Constitution. As defendant we have considered and previously rejected each of these and do so arguments, again now as defendant no offers reason to reconsider our thus persuasive decisions. We hold that CALJIC prior (1) No. 8.88: is not unconstitutional for to advise the failing that if jury mitigating circumstances those in it outweigh is aggravation, required Geier, v. parole (People return sentence life without of of possibility supra, 41 619); (2) Cal.4th at p. is not unconstitutional for failing to inform return jury it a sentence of life may without the of possibility parole v. Moon (People in the of even absence mitigating (2005) evidence 37 Cal.4th 1, 894, 43 591]); (3) 117 P.3d is not Cal.Rptr.3d vague [32 unconstitutionally using “so substantial” standard and mitigating comparing aggravat- Geier, (People supra, circumstances v. ing 619); 41 Cal.4th at (4) and is p. not unconstitutional because it to decide jury whether the death requires “appropriate” (People Carey is “warranted” rather than penalty (2007) v. 109, Cal.4th 743]). 158 P.3d [59 that, case,
Defendant further contends in this CALJIC applied 8.88 No. misled the about jury its discretion to sentence life of impose without determined even if it possibility parole, circumstances aggravation those in or outweighed mitigation mitigation found no whatso In ever. he relies on a letter written two support, purportedly by jurors 16, 1997, filed on October after returned its death and jury verdict before defendant was sentenced. letter This was not admitted into evidence filed, any The circumstances under which it proceeding. which if any, do not on the record. There party, appear nothing is also in the record Continental Co. Baking (See to indicate the had letter been authenticated. Katz 68 Cal.2d P.2d Cal.Rptr. [generally, 889] document must be authenticated in manner it some before is admissible evidence, Jay Lindberg. having Gunner After all having heard after Q] heard counsel, consider, account, arguments you considered the guided by shall take into and be applicable aggravating mitigating upon you factors been circumstances which have instructed, fact, aggravating any attending An factor is condition or event [f] commission guilt enormity a crime which its or injurious consequences increases adds to its is which fact, beyond mitigating above the elements of the crime itself. A circumstance is condition, justification or event does not for the question, which constitute a or excuse crime in may extenuating determining but be the appropriateness considered as circumstance in *46 [jQ penalty. weighing death aggravating mitigating of and circumstances does not mean scale, counting arbitrary a mere mechanical of side imaginary factors on each of an or the assignment weights any assign of of free sympathetic them. You are whatever moral or you appropriate permitted value deem to each and are you all of the various factors to consider. weighing you In determine relevant various circumstances under evidence which circumstances, justified considering penalty by totality aggravating is appropriate of the death, totality mitigating you judgment with of the circumstances. To return each of [SO be persuaded aggravating comparison must that the are so substantial circumstances mitigating parole.” that it instead of life circumstances warrants death without
53 event, 1400, letter Code, 1401.) evidence]; In portions Evid. §§ these which by mental processes relies describe the on which Thus, if even verdict. penalty other reached jurors, jurors, purportedly at evidence (e.g., and admitted into the letter had been authenticated properly trial) from for we are precluded on defendant’s motion a new hearing “ be verdict may considering such evidence on appeal. ‘[A] reasoning pro mental by juror’s subjective into impeached inquiry cesses, the trial or how he understood of what the “felt” juror evidence ” v. Morris (People Cal.3d (1991) 53 instructions is not court’s competent.’ v. Sutter People 152, 720, (1982) 949], P.2d 231 807 quoting Cal.Rptr. [279 Steele People accord, 806, (2002) v. 829]; 819 Cal.Rptr. 134 Cal.App.3d [184 1150, Code, 432,47 225]; 1230,1261 P.3d Evid. § 27 Cal.4th Cal.Rptr.2d [120 (a).) subd. Instruction on the a Sentence Without Meaning of
C.
Life
Parole
Possibility of
Defendant
the trial court
to instruct the jury
contends
was required
that defendant would
of life without the
meant
sentence
possibility
parole
has
He
court
acknowledges
previously
never be considered for
this
parole.
Cox,
v.
People
supra,
967),
at
but
(see
this
30 Cal.4th
rejected
argument
p.
of Simmons v. South Carolina
that we
decisions
light
asks
reconsider these
v. South
133,
2187],
512
154
114 S.Ct.
(1994)
U.S.
L.Ed.2d
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Shafer
Kelly
178,
1263],
Carolina
v.
(2001)
532 U.S.
L.Ed.2d
121 S.Ct.
36 [149
Carolina
670,
726],
South
We
(2002)
D. Miscellaneous Constitutional to California’s Statute Penalty is unconstitutional
Defendant contends California's death law penalty these and defendant We have grounds. arguments, several previously rejected us to reconsider our decisions. prior fails persuade of death- death scheme narrows class California’s penalty adequately Nicolas, v. San (People supra, 676.) p. offenders. Cal.4th eligible “ an form assertedly ‘regular use of capital California’s punishment ” crimes, than as extraordi- numbers rather for substantial punishment’ crimes, Eighth does not offend nary extraordinary punishment *47 54
Fourteenth Amendments international norms of human violating decency. 1370, 368, v. (People (2007) Leonard 40 Cal.4th 1430 Cal.Rptr.3d [58 157 973].) P.3d
Neither the federal nor state Constitution intercase requires proportionality 287, review for (2006) death cases. v. Williams 40 Cal.4th penalty (People 268, 37, 47]; (1984) 148 P.3d v. Cal.Rptr.3d Pulley [52 see Harris 465 U.S. 29, 871].) 50-51 L.Ed.2d 104 S.Ct. [79
E. International Law Defendant contends that death California’s scheme and penalty his indi- vidual death sentence violate article VII of the International Covenant on Civil and Political and the to the Rights Eighth Amendment United States Constitution human by violating “international norms” and rights “evolving standards of decency.” Geier,
We have consistently claim. rejected (People supra, this v. 41 Cal.4th 620; Leonard, 1430; Ramirez, at v. 40 Cal.4th at p. People supra, v. p. People 479; 395, supra, (2005) 39 Cal.4th v. Panah Cal.4th p. People 500-501 672, 469, 790]; 107 P.3d Cal.Rptr.3d People (2002) Hillhouse 27 Cal.4th [25 45, 754]; 40 P.3d v. Ghent People Cal.3d [117 1250].) 778-779 739 P.2d Defendant fails to Cal.Rptr. us persuade reconsider these decisions.
F. Error Cumulative Defendant contends that the guilt cumulative effect of the and penalty errors reversal of his conviction and death sentence even if no phase requires single error reversal. we rejected Because have either on the compels merits defendant’s of error or have claims found assumed errors to be any nonpreju- dicial, we his contention. We likewise reject defendant’s reject contention to the cumulative effect assumed errors. respect
IV. Conclusion is affirmed. judgment Baxter, J., J., Chin, J., J., J.,C. George, Corrigan, concurred. Werdegar, KENNARD, J., Dissenting.—On Concurring morning January 1996, the of Thien Minh found on a school tennis high court. body Vietnamese, stabbed 14 of the Ly, who was had been wounds repeatedly, later, “a About a month entering heart. confessed stabbing *48 After death, racial movement was “for killing [sz'c].” saying jap” arrest, supremacist groups, of White lists names and addresses two of were these describing groups, or by with materials issued together printed murder, and charged Ly’s Defendant was in defendant’s bedroom. found (1) the crime committed allegations: with two circumstance special 190.2, Code, (a)(17)(A)),1 subd. (Pen. robbery of an § course attempted color, “race, religion, of’ his killed because “intentionally the victim (id., (a)(16)). of subd. nationality, origin” country Miller, White witness expert
Police Ronald Sergeant prosecution’s of that some at the of defendant’s trial guilt testified groups, phase supremacy He were anti-Semitic. had interest in which defendant expressed groups On cross- a White “definitely” supremacist. defendant as being described examination, never talked to defendant he had acknowledged Miller of the know White supremacist did not whether belonged Miller had about which testified. organizations and it found murder of guilty degree Ly;
The the first jury a verdict jury found true both circumstance returned special allegations. death. The affirms the I concur the affirmance. judgment. majority however, I view that Miller’s Unlike am of the majority, Sergeant about White groups the anti-Semitic beliefs of some testimony supremacist not have been admitted. was irrelevant in this case therefore should Nonetheless, defendant was not as I below. prejudiced, explain
I at trial the major defense Miller to two of Sergeant Over testified objection, first, in the tenets of White a belief groups: “superiority supremacy others; second, anti- race” and all White bias corresponding against as a so that White “label the Holocaust supremacists Semitism extreme trick to for the Jews gamer throughout Jewish support sympathy called about an world.” to the Responding prosecutor’s organization question Christian, of Jesus handwritten list Church Christ which appeared Bible, Miller that church’s that was entered in defendant’s described groups belief that “all Jews are beliefs as its “pseudo religion,” mentioning right Miller’s the church’s beliefs descendants Satan.” In opinion, “fold[] common White supremacists. into the views among anti[-S]emitic” bedroom, Sergeant box found in defendant’s Examining hand-decorated insignia Miller identified Nazi swastikas the paired-lightning-bolt statutory All further are to the references Penal Code. World War II army’s German elite SS which Miller had corps, been explained “Jews, minorities, ordered Adolf Hitler to exterminate homosexu- gypsies, als, and communists.”
The in found defendant’s bedroom a to police letter defendant from Brigadier General Jack Mohr. In his Miller identified testimony, Sergeant bedroom, Mohr as a White leader. Also found in supremacist defendant’s introduced into evidence by was a of a letter prosecution, copy from Mohr to the Reverend Jerry Falwell. in his prosecutor closing argument to the that in jury, this letter Mohr explained castigated Falwell “too being nice to the Jews.”
At the instructed conclusion the trial guilt court that phase, jury in order to find the hate-murder true allegation it special-circumstance must find that victim was killed intentionally and ... murder was “[t]he race, committed because of religion, of of nationality country origin victim.” that a To crime was committed of’ a prove “because victim’s characteristic, be protected there must evidence of a causal connection between a perception defendant’s of protected which the victim group In re (See and the defendant’s of M.S. belongs infliction on that victim. injury (1995) 10 Cal.4th 896 P.2d [construing 1365] analogous 422.7].) 422.6 and former language § § Although Miller here testified the anti-Semitic Sergeant regarding views held by Nazis various White which defend- supremacy groups interest, evidence, ant had shown considerable there was no as Attorney General acknowledged at oral had ever argument, expressed views, and anti-Semitic there was no evidence that defendant killed aLy, man, Vietnamese because him to be the Jewish faith. perceived Thus, Sergeant Miller’s anti-Semitic views of some White testimony lacked relevance to the supremacists hate-murder special-circumstance murder and should been allegation Ly’s not have admitted into pertaining evidence. to the Miller’s about
According majority, testimony anti-Semitism was ante, relevant to “the of White general subject (Maj. supremacy.” opn., 48.) If Miller’s about White had been p. testimony supremacist groups solely focused on their in the all other belief Whites over racial and superiority ethnic I would that the But I am agree testimony relevant. groups, that Miller’s White hatred persuaded testimony regarding supremacist groups’ hatred Jews establishes of other non-White and therefore Miller’s groups, case, about this anti-Semitism was irrelevant where the specific testimony evidence that defendant killed because of race or country shows M.S., In re (See (conc. Cal.4th at supra, origin. 730-731 pp. opn. Kennard, J.).)
II testimony Miller’s Sergeant by admitting court erred the trial Although the error was groups, White anti-Semitism of some supremacist about harmless, discussed below. as of White was an admirer that defendant showed
Because evidence are groups such many Miller’s testimony Sergeant supremacist groups, defendant had similar infer that caused the jury anti-Semitic have may anti-Semitic defendant was that a show tending views. evidence Although case, evidence overwhelm- here the in another could be highly prejudicial non-Whites who regarded was a racist that defendant showed ingly *50 admission, “for who, murdered victim Ly callously his own subhuman or a “Chino.” thought Ly “jap” because defendant racial movement” motivated racially murder was Ly’s evidence Given compelling crime, testimony of Miller’s erroneous admission hate the trial court’s under any was harmless were anti-Semitic some White supremacist groups of either the the outcome and could not have affected standard of prejudice trial. of defendant’s guilt penalty phase 12, 2008. for a was denied November rehearing petition
Appellant’s