People v. Marshall

Aug. S004557.Crim.No. 23189. [No. 1996.] PEOPLE,

THE Plaintiff and Respondent, MARSHALL,

GEORGE EDWARD Defendant Appellant.

Counsel Mintz, Riordan, Lincoln Nathan Dennis P. L. Schaffer and B. E. Dylan Court, under Bergesen, appointments by Defendant and Supreme Appellant. General,

John K. Van de and Daniel E. Kamp Lungren, Attorneys Steve Williamson, General, White and Chief George Assistant Robert R. Attorneys Anderson, General, Keller, Assistant Attorney Eddie T. Raymond II, Ceranowski, Prahl, Brosterhous Eileen Robert J. Jibson and William G. General, for Attorneys Plaintiff and Deputy Respondent.

Opinion Following a WERDEGAR, mistrial declared when a was unable to jury J. on second convicted defendant Edward guilt, Marshall agree George Code, 187; counts of first (Pen. of three murder all further degree statutory § are to the Penal Code indicated) references unless otherwise and one count 664/187), (§§ murder attempted and as to each count found defendant 12022.5). used a firearm the commission of the (§ offense during Following trial, the same sentenced defendant to death. The trial court penalty found the murder verdicts constituted true jury’s multiple findings multiple-murder and denied defendant’s special-circumstance allegations 190.4, motion to (e).) the verdict. subd. This is automatic. modify (§ appeal (b).) error, subd. (§ no reversible we affirm the Finding judgment.

Facts

I. Guilt Phase and Arrest. Crime Scene

A. Defendant’s Marshall, wife, 1, 1981, Cynthia of defendant’s On the morning January boarder, Thomas, Lee, at were to death shot Henry her brother and a Jeffrey visitor, in A Annette was May, Street Modesto. defendant’s Locust residence wounded, awith sought refuge but a bedroom window and escaped through who summoned neighbor, police. open. the front door of the residence slightly officers found

Responding on the saw or semiautomatic lying living Inside an automatic they weapon in of in a of blood lay room floor. The Marshall body Cynthia pool kitchen, one of the bedrooms. and that of Thomas on a waterbed in Henry brim, Defendant, a a blue suit a white hat with black was leisure and wearing bedroom, of body in the two small children. The found master holding bedroom. Lee inside the door to master 13-year-old Jeffrey lay just down.” told had come in here and fell Jeffrey Defendant an officer “just was and and out of the house. Defendant arrested escorted down hallway where Thomas’s Henry body lay, Defendant neither looked into bedroom was view. To one nor lifeless it body, commented on wife’s although officer, dazed or in a state of shock. defendant appeared station, told an officer he being

While to the defendant police transported was tired had home few minutes before the and arrived very shootings. back bedroom his two children when he Defendant stated he was with fired, shots locked the bedroom door. Defend- heard being immediately asked, ant “Is all he did not know. officer Cindy right?” responded calm, defendant booking quiet Throughout procedure, appeared He to the for the blood taking collected. was transported hospital said, his marital status to a nurse’s to sample, response inquiry In Detective “According single.” McDonough’s opinion, these I’m guys, sober, was odor alcohol on defendant’s defendant and he detected no drugs. under the influence of any breath. Defendant did be appear May. B. Annette Testimony of offenses, arrived

Annette old at the time May, years disco, his wife operated, Touch an defendant and Golden establishment disco, consumed Eve While at the May around 8 on New Year’s 1980. p.m. drinks, beer, and hard brandy different kinds including champagne, many disco a white and a white hat. wearing She saw defendant at the suit liquor. a.m., when she there until about 4:30 left the Marshall remained May She was tired and feeling “high.” Eventually residence with Thomas. Henry bedroom. she and Thomas went to in Henry’s sleep awoke when it was “kind of out.” As she went to the bathroom May light she saw see he was wearing, defendant in his bedroom. She could not what as he She did not see or hear over a of clothes. bending pile Cynthia any bed, noise from the kitchen. After returned to and went May Henry got up kitchen to to eat. She could hear and defendant get something Henry bed, normal, in a of voice. As returned Henry May talking friendly tone fell again asleep. children, hear defendant’s two

The next time awoke she could May in the room. She could also hear Cynthia crying and screaming crying living “No, and then saw the bedroom George,” George.” May and saying, “Why, A were fired into the door and heard a off. number of shots open gun go floor, in the 20-inch-wide space room. fell from bed onto May the headboard. between the bed and the wall. From there she scooted under There a crack or between the headboard and the bed through was space which she could see. with a saw defendant enter the bedroom a dark

May carrying large, gun She shoulder Defendant looked at the waterbed and approached May. strap. to be dead and defendant walked He one of his away. picked up pretended He was a white suit and a white children near bedroom doorway. wearing had been hat with dark trim. These to be the same clothes he appeared minutes, through earlier at the disco. After a few wearing May escaped ran, to seek from a neighbor, bedroom window and naked bleeding, help house. There Anna Baker. It was around noon when arrived at Baker’s May “I defendant or responded was some over whether identified dispute May know” when Baker asked who had shot her. don’t C. Forensic Evidence. result of each of the victims died as a

Post mortem examination revealed at the scene were wounds inflicted a Four bullets found high velocity gun. room, seven cases fired from the found in the living cartridge weapon fired from in it and have been may found in the house had been chambered rifle, Green resembled one that Alvin it. a semiautomatic weapon, the disco. testified he had observed defendant to possess address, name, on a the Locust Street appeared Marshall’s with Cynthia store in San for an rifle at a sporting goods HK-93 receipt purchased for an exchanged had later been 1979. The HK-93 in November Leandro found at HK-91, number on the weapon The serial caliber model. higher a Alcohol, Tobacco on the Bureau matched that recorded crime scene with exchange. form 4473 filed connection Firearms rifle. tested defendant’s No found on the Police usable were fingerprints residue, The clothes defendant was hands for results. negative with gunshot blood; was found. none at the time of his were tested wearing arrest arrest, after his Defendant’s blood-alcohol some three hours level at p.m., was .10 percent. Suit.

D. David Moore Bloodied White Testimony Regarding Moore, uncle, after testified that the day Marshall’s David Cynthia residence, under when the house was offenses he went to Locust Street seal, and was sheriff. His purpose coroner’s admitted by deputy so, While he doing retrieve clothes and for defendant’s two children. toys down. bathroom and turned it Going found a clothes hamper upside it, clothes, he white suit with blood along found a through spattered with his and did some shirts. He did not think bloody discovery important the officers about after first trial ended a tell it until defendant’s never bloodstained but the trial court mistrial. found police any clothing, motion concerning denied a defense to Moore’s suppress testimony bloodied white suit.

E. Events New Eve. Year’s that, crimes, defendant Evidence indicated during day preceding he ran errands in the New Year’s Eve celebration for preparation Gallo at the disco. Around 4 defendant went to his at Glass planning p.m. job gave and worked an shift. A Gallo employee fellow Company eight-hour disco, him a ride to the off around 12:45 a.m. Cynthia him 12:30 or dropping door, was at the admission fees. Defendant taking champagne began pour for disco as he did so. patrons, drinking attire on New Defendant

Defendant’s Year’s Eve was subject dispute. coat, and testified he was blue slacks and a blue leisure at initially wearing into a Two witnesses some coat that he the disco. changed grey kept point witnesses, likewise testified defendant was dark Other wearing clothing. however, Year’s Eve. testified defendant was a white suit on New wearing a.m.,

The celebration wane after 4:30 when disc began jockey Henry left the Golden went to the they Thomas Touch with Annette May. Together had Cynthia previously gone house. room Thomas rented defendant’s herself, disco she car. Before traded leaving home defendant’s by driving she $80 $20 bills. testified also defendant in small for four Defendant bills some took with her. money bags

F. With His Relationship Defendant’s Wife. Defendant Cynthia had for at the time of the been married two years and were the Jamilah. killings, of two Star Child and Both parents daughters, Modesto, were at Gallo Glass their employed during Company spare time and his disco called the Golden Touch. Defendant wife they operated residence, owned their defendant to their had jointly marriage prior Modesto, rented purchased a house on Avenue in which out. they Benson her, well with got Defendant testified he loved his wife and along apart changes during from brief occasioned transient emotional separations and, each her at the time of her death as She was pregnancies. pregnant custom, mother, she stay was her had with her from which had gone stay returned around Christmas. that, after Christ-

Prosecution witness Thomas testified sometime Patsy wife, mas, she overheard an between defendant and during argument said, “Well, I am leaving which it doesn’t matter because really Cynthia testified “Over my time Thomas defendant anyway—this good.” replied, he had say purchased dead $100,000 Thomas also testified she heard defendant body.” of insurance on life and that wanted Cynthia money Cynthia’s disco, in the business. she into the she did not want be involved had put Cynthia Defendant denied had threatened leave.

G. Green Motive. Testimony Regarding Alvin a disc Green testified worked at the disco as jockey Alvin he occasionally Eve, he Year’s went to or Sometime after 4:20 New security guard. p.m. Defendant, said, to him on disco to his Green indicated up pick earnings. might he not and be along that occasion that and were Cynthia getting Green, concern that if Cynthia defendant According expressed separating. him, their assets were as an ex-felon would lose because left he everything, name; he Defendant her he would her dead before lost everything. see Green at on New Eve. denied the disco Year’s seeing Testimony Gary Brady. H. of Informant were became with defendant while both incarcer- Gary Brady acquainted months of ated in the Stanislaus first three 1981. during County jail wife, child, he had a a man admitted shot his small testified defendant Brady woman, rifle. claimed defendant offered high-powered Brady a with a and kill house owned if would Brady a defendant him a 1966 and Mustang window, mother-in-law, In one Green. who out escaped “bitch” San the district offices in Joaquin for Brady’s testimony, attorney’s return a him would receive two-year prison he and Stanislaus Counties promised received similar consideration term for a had robbery charge. Brady pending of Clarence Ray Fresno murder testimony County for his in the prosecution Allen. a for testified Brady enjoy good

Inmate Andrew Crane did reputation a Defendant truthfulness and was considered “snitch” other inmates. by he testified a and stated reputation likewise had Brady poor truth-telling, discussed his with Brady. never case Testimony

I. Mitchell. Kenny case, In the Mitchell testified he had been rebuttal prosecution’s Kenny went Golden Touch on New Eve and to defendant’s disco Year’s deal, a but residence the cocaine following morning, arrange ostensibly to defraud As the front door of defendant. Mitchell reality approached he heard woman’s residence followed another and a gunshot, gunshot “Oh, what this for?” The door was voice God. are saying, George, you doing suit, defendant, about 18 Inside Mitchell a white wearing inches. saw open hand, from with a black in his one room gun emerging apparently then left entering bedroom. Mitchell the area. convictions,

Mitchell was inconsistent prior with impeached prior felony statements, he lied in further that admissions had and a admission past, festivities, he after Touch disco New Year’s Eve leaving Golden after the drink, to a use had shack to smoke gone gambling gamble, marijuana Neal, an cocaine. Benson inmate in the Stanislaus County jail Additionally, who was housed next Mitchell in the cell testified appellant, Kenny his house came to several after Year’s 1981. Mitchell days Day New calculator, he told a white some silver and several carrying rings; dollars he had killed Neal three to Charles Edward people get Thompson them. Mitchell him had made with the district to attorney testified told he a deal defendant, two cases exchange testimony against his false get dropped Mitchell Thompson hearing to do the same. Albert Ward testified urging make similar statements. testified,

After recalled to the stand Thompson and Ward Mitchell was had defense. He he and Ward and knew acknowledged Thompson He he was not Thompson with them. said he told defendant’s case discussed on the police. was a just “running game” but testify, really going J. Testimony of Defendant. Eve and the morning of New Year’s narrated the events

Defendant left, had he a got of the disco patrons He testified that after most following. home, back his car and drove his where he picked up ride from the disco to a few doors he went to an establishment After the disco closing disco. throughout night had been drinking had a drink. he Although away home, alcohol, of four or five he then drove distance could feel the a.m., arrived, and his Star daughter Cynthia When he a little after blocks. in the room beside living He noticed the rifle Child were for him. waiting bedroom, television. Lee in the master watching closet door. was Jeffrey master and went into the some champagne Defendant himself poured At some he fell asleep. point with his children. Eventually bedroom play the voice as his He recognized heard someone call his name. defendant not, or wife’s, whether he was dreaming he so tired he did not know but was like a series of “pops.” He heard what sounded and did not respond. He the bedroom what time it was. knowing opened he got Eventually up, Star Child had a toy Star Child in the hallway. and saw Lee and Jeffrey door reached down to her As defendant look on face. frightened in her hand and a noticed, of a man move of his the form eye, out of the comer her he up, pick and heard saw the form of a weapon the kitchen into the He hallway. from and locked reentered the master bedroom shot. Defendant single quickly door. bedroom, Jamilah, in the was already

Defendant’s younger daughter, on the his daughters her out of the crib and placed her crib. Defendant took in the floor, of Jeffrey being He was unaware body. them with covering tried to call the defendant up telephone room. At some point picked Police, to be line appeared but the number of the Modesto Chief private in the he hallway, walkie-talkie When defendant heard the police dead. Soon thereafter defendant were “back here.” out that he and his girls yelled taken into custody. II. Phase Penalty

A. Prosecution Evidence. con- defendant was introduced evidence that prosecution was then victed of assault with a Defendant operating deadly weapon. club, an East Oakland cultural Night, and Uptown Saturday providing Mitchell, for Donald and financial housing support an who had employee club, fallen on hard times. One some thefts night occurred at the and defendant Mitchell. The two men armed suspected themselves and went for a drive in car discuss the defendant’s matter.

The discussion as the grew heated men drove Boulevard. along Skyline Defendant saw Mitchell reach into the his for pocket containing gun. Fearing life, his defendant over and drew his own immediately pulled He weapon. Mitchell’s grabbed hand and tossed his onto the gun side floor- passenger hand, board. Gun defendant ordered Mitchell out of the car and frisked him. Mitchell Finding no other carrying defendant returned weapons, his own to his gun pocket.

When the men had been for talking several minutes beside defendant’s car, two uniformed Oakland park rangers stopped investigate. a Seeing butt gun from protruding defendant’s took pocket, they and pistol discovered it was loaded. also They found Mitchell’s on the floor gun car, but noted it was and unloaded. rusty Defendant testified he did realize Mitchell’s was old and weapon had assumed it was loaded.

Defendant served no time for jail the assault conviction.

B. Evidence. Defense The defense presented evidence of defendant’s background religious beliefs. Defendant was the oldest of 13 children bom to a desperately poor seven, From family. age defendant cotton in the fields to picked help support He family. cared for his while younger siblings his mother was cotton and picking his father was on his with the away merchant many trips defendant, marine. His father beat him out singling children for among severe abuse. especially Defendant’s divorced when he was 10. parents Although child, defendant did not complete school as a he taught himself to read while in the merchant marine. He has been continuously employed variety jobs and has been self-sufficient since he was 13.

A Christian Science minister testified she had visited defendant some 60 times during incarceration. She described the of his depth religious commitment and inmates, his dedication to other both helping spiritually them by teaching to read. indicated that defendant was She responsible settling number of violent potentially at the disputes jail that correc- tional officers have described him as a model prisoner.

824

Discussion I. Guilt Phase Issues Jeopardy.

A. Double Defendant was tried twice on three counts of murder and one count of trial, murder. At the first indicated to the trial court it was attempted jury deadlocked, seven A and five to convict. jurors voting acquit subsequent vote revealed no in the The court change asked jurors’ respective positions. hours, to continue its deliberations. After three the foreman an- jury nounced a third had ballot an identical result. The trial court called produced back into jurors court and whether further deliberations would inquired deadlock, be useful. After the indicated it not overcome the jury could trial court declared a mistrial and dismissed the At no time did the trial jury. court whether the was able to verdict of reach a inquire partial acquittal offenses, of the nor did the hint at such a any charged possibility. that,

Defendant under the rule of v. argues Stone 503, 647, (1982) Court 31 Cal.3d 519 646 P.2d Superior Cal.Rptr. [183 809] (Stone), the mistrial him was without and his retrial legal necessity placed Amendment twice in in violation of Fifth federal jeopardy, Constitution, Amendment, to the states the Fourteenth applicable through I, 15, and article section California Constitution.1 consti “ tutional double a defendant’s ‘valued guarantees against jeopardy protect ” to have his trial tribunal’ and his interest in right completed by particular (Arizo to successive for the same offense. being subjected prosecutions 497, 717, 727, (1978) na v. 434 U.S. Washington 503 L.Ed.2d S.Ct. 98 [54 omitted; 824], (1989) fn. v. Bigelow Court Superior Cal.App.3d idea, 528].) “The one that is in Cal.Rptr. underlying deeply [256 in at least the grained is that the Anglo-American system jurisprudence, State with all its resources and should not be allowed to make power offense, to convict an an repeated individual for attempts alleged thereby jeopardy Attorney 1Defendant raises his double appeal, claim for the first time on and the If, argues argument appeal. General is therefore waived and should not be considered on however, plea jeopardy plea of former merit had and trial counsel’s failure to raise the defense, resulted in the withdrawal of a crucial then defendant would have been denied the (People effective v. Belcher assistance counsel to which he was entitled. 11 Cal.3d waiver, (Belcher) [acknowledging general 520 P.2d rule of but 385] addressing argument jeopardy appeal concluding double on direct trial counsel’s failure counsel]; timely plea raise of former jeopardy constituted a denial of effective assistance of Washington see Strickland 466 U.S. 668 L.Ed.2d 104 S.Ct. Consequently, although Attorney technically arguing General is correct the issue was waived, as in Belcher we plea nevertheless must determine whether such a would have had merit. embarrassment, him to him to and ordeal and expense compelling subjecting and as well as the anxiety insecurity, enhancing live in a state of continuing (Green innocent he be found v. guilty.” that even though may possibility 204, 184, 199, (1957) 355 U.S. 187-188 L.Ed.2d 78 S.Ct. United States [2 61 A.L.R.2d verdict, When a is unable to reach a double indicates it jury consents to the rules bar retrial unless defendant jeopardy discharge v. 6 Cal.3d 62-63 jury (People Compton Cal.Rptr. [98 P.2d mere silence is not consent to declaration of 490 537] [defendant’s mistrial]), or the trial court determines further deliberations are not reason 1140), (§ result in a verdict in which case exists ably likely legal necessity (Arizona for a declaration of mistrial v. at 434 U.S. Washington, supra, pp. 726-727, 824]). 503-505 L.Ed.2d at S.Ct. 98 pp.

Stone, case, 31 Cal.3d like this supra, involved a homicide prosecu tion in which was instructed on the of murder and jury charge uncharged lesser included offenses. The in Stone deliberated for seven but jury days, was unable to reach a unanimous verdict within the to it. options presented (Id. 507.) at and defense p. to an prosecution stipulated inquiry determine the The foreman jury’s position. court that no reported open murder, voted for jurors either first or second four voted for volun degree tary two voted for manslaughter, six voted for involuntary manslaughter, homicide, justifiable (Ibid.) and none voted for Each ex acquittal. juror pressed deadlocked opinion jury and further deliber hopelessly ations would not (Ibid.) a verdict. The defense moved yield the court to a verdict of on the accept offenses of first and second acquittal degree verdict, murder. no established Noting existed for such a procedure partial the trial denied the motion judge (Id. declared a mistrial. at ultimately 508-509.) (Id. Defendant a writ of pp. sought retrial. at prohibition prevent 509.) We concluded the trial court should have received p. verdict jury’s murder, on first second degree held as follows: prospectively “[I]n all cases which the has not jury yet begun deliberations as of the date this final, decision becomes the trial court is to afford constitutionally obligated an jury to render a verdict of opportunity partial acquittal greater when offense is jury deadlocked on an lesser included only uncharged Failure offense. to do so will cause a declared to be subsequently mistrial (Id. 519.) without legal necessity.” at decision in p. Our Stone became final two months before the jury declared its deadlock at defendant’s first trial.

Citing People Chaney Cal.App.3d 251] (Chaney), defendant argues failure of the trial court in his first trial to whether inquire defendant’s could eliminate offenses any charged resulted in the mistrial In lacking the Court of legal necessity. Chaney, extended the rule Stone as follows: Appeal of an actual “[E]vidence is to take a unnecessary declaration of mistrial outside the implied acquittal it is if the legal trial court fails to afford the concept necessity; enough deadlocked with an to render a verdict of opportunity partial acquittal.” 1122.) (Chaney, supra, Cal.App.3d p.

Under the facts of the Court of Chaney, statement that evidence Appeal’s of an actual is implied the trial court’s acquittal unnecessary trigger duty under Stone to the to render a verdict was permit jury partial to unnecessary its This is because in holding. evidence of an actual Chaney implied acquittal record, was in fact on the albeit not presented as in Stone. In clearly it was deadlocked on a murder stating Chaney informed the charge, jury “ trial court ‘We have reached ... on several items. Where we unanimity are is on the . . . The disagreeing degree. division is on two close possibil- ities, and . . . it’s been this about from the first of way just day ” this, deliberation.’ 202 (Chaney, 1113.) at From supra, Cal.App.3d p. trial court in should Chaney have been aware the had jury eliminated some offenses; thus, the Court of statement that evidence of an Appeal’s actual is implied acquittal remove a declaration of mistrial unnecessary was, from the of concept legal dictum. necessity arguably, event, In Stone, we do not with the any agree court’s extension Chaney of which must be in understood its context. The we addressed in Stone problem was the unfairness of a defendant to stand trial a second for forcing time murder of which a jury he clearly unanimously agreed guilty, for lack of an established simply of a verdict procedure receipt partial Thus, we held the acquittal. trial court must afford a jury opportunity to render a verdict of on a partial offense when it is acquittal greater deadlocked on only an lesser uncharged (Stone, included 31 supra, offense. 519.) Cal.3d at Absent some p. indication of deadlock on an only uncharged offense, lesser included suggested Stone do not come into procedures deadlock, If indication, play.2 jury, announcing apparent such an gives court, Stone, or if counsel so the trial requests, under should further inquire and determine whether offenses can be eliminated. any case,

In the the trial court present conducted a sufficient before inquiry a mistrial. in the declaring comments Nothing jurors’ hinted had they agreed previously 2We have narrowly. People construed Stone In 46 Cal.3d Kurtzman 572], juries P.2d we declined to allow to return verdicts of guilt of lesser disagreement greater included offenses when there is on the offense. We concluded jury that in such a any situation the should be instructed not on to return a verdict lesser included unanimously offense unless it proven guilty finds defendant has not been beyond (Ibid.; a reasonable greater. doubt on the People see also v. Fields 13 Cal.4th Cal.Rptr.2d 303-304 P.2d defendant of first murder and were in degree disagreement acquit only Moreover, included offenses. neither the evidence in lesser this case nor the inference an defense on a proffered supports partial acquittal greater offense. We conclude mistrial was a matter of legal necessity, therefore claim of defendant’s double reject jeopardy.

B. Faretta motion.

Defendant argues the trial court denied him consti erroneously his tutional right his self-representation, to exercise despite repeated request right various in the He points asserts error in proceedings. specifically selection, denial four weeks request, into himself. represent His contention lacks merit. noted,

As trial, the fourth week of while the during process selection was still under the trial heard way, court defendant’s motion to proceed Defendant concern propria persona. with the expressed progress of the investigation, he contending alone could an of attempt certain inquiry witnesses that would elicit truth for the The trial court noted trial jury. counsel’s did not to competence be in appear observed that the question, sort of investigation defendant to would be appeared contemplate infeasible given defendant’s custodial status. that a Concluding defendant has no right, trial, after the commencement of to relieve counsel and in proceed propria persona unless there is a that his showing counsel is present incompetent, trial court denied the motion. held,

As we have repeatedly although defendant has a federal constitu- tional right to (Faretta himself represent (1975) v. 422 U.S. 806 California 562, L.Ed.2d (Faretta)), [45 95 S.Ct. in order to invoke the he right 2525] must assert it within a reasonable time before the commencement of trial. 41, v. (People (1992) Clark 554, 3 Cal.4th 561]; 98 833 P.2d Cal.Rptr.2d [10 v. People Burton 48 Cal.3d 771 P.2d Cal.Rptr. 1270]; see People Windham 19 Cal.3d 560 P.2d (Windham).) A 1187] motion made after this time is addressed to court, the sound discretion of the trial which should consider such factors as defendant, quality counsel’s representation of the the defendant’s prior counsel, to substitute proclivity the reasons for the request, length stage and the proceedings, or disruption delay might reasonably be to expected follow the (Windham, such a granting motion. supra, Cal.3d at 128.) p.

Defendant the trial court complains both abused and failed to exercise its discretion, in that it to condition his improperly sought on a request showing and failed to of advi-

of counsel’s consider incompetence appointment in Faretta contrary: Although counsel. To the defendant’s sory denying on the counsel heavily motion the trial court relied absence of any showing the record reflects its or consideration of explicit was incompetent, implicit Furthermore, factors. each of the other Windham the trial court was aware counsel, its but in its discretion elected to advisory power appoint do so. Defendant was not denied his unconstitutionally right represent himself.

C. Prosecutorial Misconduct. Defendant contends the adduced knowingly testimony prosecutor perjured witness Mitchell and misconduct Kenny engaged by arguing, summation, a reasonable doubt as that defendant bore the burden of raising actions, contends, he him of a fair These guilt. prosecutorial deprived trial as the state and federal Constitutions. guaranteed by

1. Use Perjured Testimony. A full of defendant’s that we set forth contentions understanding requires in some detail the circumstances under which Mitchell testified. On Kenny 28, 1981, Mitchell, then in the Stanislaus Detective May jail, County gave Ridenour a statement to the Marshall case. Mitchell was pertaining on a violation and to avoid back to In custody parole sought going prison. statement, return for the Detective Ridenour before the agreed appear board to recommend it not revoke Mitchell’s Ridenour parole per- parole. formed as and Mitchell was not ordered back to agreed, prison. trial,

At defendant’s first Mitchell defense called Mitchell as a witness. was then incarcerated in state conviction. Mitchell on a prison burglary refused to to he “snitch did not want a respond questioning, claiming jacket.” In lieu of Mitchell’s live a of his statement to testimony, tape recording Ridenour was Detective was to the and a thereof played transcript received in evidence. Defense counsel at the first trial Mitchell was argued the real killer and was about he was to The lying why unwilling testify. the defense had wanted to use Mitchell to raise a reason- argued prosecutor doubt, able in that the believe Mitchell not was at the jury might only present scene, but also committed the also out that crimes. prosecutor pointed a officer to corroborated Mitchell’s statement the door testimony by police the Marshall residence was on the of the offense. open morning trial,

At defendant’s second the defense called Mitchell to again testify. Amendment Mitchell invoked his Fifth and the trial court ruled he was rights The defense Code section 240. then called under Evidence unavailable testified Mitchell admitted committed having Neal as a witness. Benson Neal Code, for declaration (See Evid. [hearsay exception the murders. § case, interest].) called Mitchell In its rebuttal the prosecution against penal said he and that he Mitchell indicated wished to testify nothing the stand. tend to would incriminate him. had was consistent with statement he

Mitchell’s testimony generally at Detective Mitchell had arrived defendant’s residence Ridenour: given 1, 1981, 10 or 11 on January ostensibly around a.m. cocaine arrange transaction, he intended town with the he although fact to leave money defendant would advance him. Mitchell his car around the hoped parked block, and when he he heard a reached Out driveway gunshot. he curiosity, walked to the At that porch house. he heard up point “Oh, God, another and of a gunshot the voice woman what saying, George, are front about you doing this for?” The door was 18 inches. Mitchell open house, he testified saw defendant inside the a white wearing suit. Defendant hand, to be a black in his he was appeared holding gun and out coming one room into a bedroom. Mitchell left and drove to Oak going then an Street shack. gambling later,

Several the trial court days prosecutor’s closing interrupted witnesses, to allow the defense discovered argument newly two present and Ward. The witnesses testified had Thompson Mitchell told one or other of them (Mitchell) that he had at on not been defendant’s house 1, 1981, himself; and had January seen that Annette nothing brother May’s had him the idea of given testifying against defendant order to get charges him against he had dropped, obtained a deal and had such learned about details of the from he films and slides had viewed killings office. prosecutor’s testified,

After and Ward recalled Thompson Mitchell was to the He stand. he acknowledged knew Thompson Ward and had discussed defendant’s case both of with them. He he had told he was not acknowledged Thompson going but really testify, merely game” “running police. denied the Mitchell had ever prosecutor shown him slides or any pictures. Detective Ridenour testified to shown briefly having Mitchell deny any or slides videotapes.

In closing argument, Mitchell had prosecutor argued committed per- on stand. now Defendant contends the use of prosecutor’s perjured testimony requires reversal of his conviction.

Due process is denied when a uses prosecutor knowingly perjured testimony obtain a (1959) 264, conviction. (Napue v. Illinois 360 269 U.S. 830 1220-1221, 1173]; 1217, (1963) S.Ct. In L.Ed.2d 79 re Imbler 60 Cal.2d

[3 293, 554, 6].) 560 387 P.2d under the traditional Cal.Rptr. Originally, [35 rule, a had to establish to obtain relief defendant by preponderance trial, that evidence was adduced at his that perjured testimony representa tives of the state knew of its and that such have falsity, testimony may Imbler, 560; (In affected the outcome of the trial. re 60 Cal.2d supra, at cf. p. (b) subd. of habeas available when mate corpus substantially [writ § trial]; (1973) rial false evidence was see presented People Gordon 10 460, 473, fn. Cal.3d 516 P.2d Cal.Rptr. alleged [110 298] [when record, from the same test as in perjury appears applies habeas appeal rule, Under the current that the false corpus proceedings].) showing was or that the knew of its is no testimony perjurious, prosecution falsity, (In re Hall longer necessary. Cal.3d Cal.Rptr. 690]; 788, 809, 637 P.2d In re Wright fn. 5 Cal.App.3d Defendant it was incumbent on the ac argues having prosecutor, stand, in that Mitchell had lied on the to move knowledged closing argument motion, contends, to strike his In the absence of such a defendant testimony. his conviction must be reversed because Mitchell’s testimony surely false and material. just surely that, case,

We conclude under the facts of this peculiar presentation of material, Mitchell’s false and does testimony, although apparently certainly out, reversal. As the General it was require Attorney points initially defense that to call Mitchell in sought as a witness. Their aim so was doing obvious: to Mitchell at the scene place of the offense and thereby support that, defendant’s claim notwithstanding self-exculpating particulars Mitchell’s testimony, he—not defendant—was in fact the perpetrator. too had its to rebut the prosecution purpose calling testimony Mitchell: Neal Benson that Mitchell had admitted for the responsibility killings. Mitchell’s thus certain of both the defense and testimony supported aspects and enabled counsel for both sides to certain infer- prosecution, argue ences beneficial to their The falseness of Mitchell’s respective positions. above, was not concealed from the testimony As described jury: closing argument prosecutor declared in no uncertain repeatedly terms Mitchell had lied on the stand. Both defense counsel and the were prosecutor able to and did to the nature of argue Mitchell’s concerning precise indeed, Defendant never moved lies. to strike Mitchell’s testimony; its given defense of third utility defendant would party culpability, probably have such motion had the opposed any made it. prosecution

We conclude defendant waived his claim that his conviction was based on false to testimony by raise it at trial when the falseness of Mitchell’s failing

831 him, claim merit event. any was well known to and the lacks in testimony to at establish possible Defendant’s aim trial—to use Mitchell’s testimony testimony be reconciled with his the argument defense—cannot present been at all. Defense should have used counsel’s evident tactical purpose in the of bars defendant’s testimony in Mitchell’s acquiescing presentation of related claim ineffective assistance of counsel. also in

Defendant contends the Mitchell was at prosecutor, denying house, was defendant’s there additional evidence known improperly implied unsworn, but to the to him unavailable himself an jury, thereby making 208, (See (1979) un-cross-examined witness. v. Bolton 23 Cal.3d 213 People 141, context, We 589 P.2d In the Cal.Rptr. disagree. prosecutor’s [152 fair comment on the evidence. argument merely 2. Misstatement Law on Burden of Proof Defendant argues in misconduct prosecutor engaged by misstat ing law to the it applicable suggesting closing argument, that jury, on was incumbent defendant to raise reasonable doubt concerning guilt, killer, and to do not just so he by providing by evidence was not the but who the killer was. Defendant notes it is affirmatively showing improper to misstate law prosecutor (People v. Bell 49 Cal.3d generally 502, 1, 538 129]), 778 P.2d Cal.Rptr. [262 to particularly attempt absolve the from its facie prosecution overcome reason prima obligation able doubt all v. elements 51 (People Cal.3d 1215 Gonzalez 1159]). This, contends, 800 P.2d defendant is what the did in prosecutor defense arguing wanted Mitchell’s Kenny testimony record, despite the of his falsity because story, “They had to come up with another suspect to create in possible minds that your reasonable doubt that want they you to have when enter that you jury deliberation room.”3

Defendant remarks, concedes his trial counsel failed to these but object he be urges should excused from the usual (see such failure consequences Gonzalez, v. People supra, Cal.3d of error failure to p. [waiver because object]) counsel rendered thereby ineffective assistance counsel. In the instructions, context of the whole we argument and see no reasonable (see likelihood (1993) 6 People Berryman Cal.4th 40]) P.2d Cal.Rptr.2d construed the prosecutor’s remarks as on defendant the placing burden a reasonable establishing doubt as comment, to his guilt. When the made he prosecutor challenged Attorney 3The argument, General did not address this and defendant asks we treat his as a silence waiver of the on appeal. issue We decline do so. 832 the in the finished evidence reviewing presented prosecution’s

had just case-in-chief, aim he had succeeded in demonstrating with the evident of a doubt. As in beyond People defendant reasonable guilty proving Gonza- lez, the then could prosecutor legitimately 51 Cal.3d at supra, page case, on the in order cast doubt the prosecution’s that persuasively argue would need to perpetra- of third party culpability identify possible defense or, follows, it fails to either misconduct defendant establish Accordingly, tor. (See v. Washington, supra, assistance of counsel. Strickland ineffective 695-697, L.Ed.2d S.Ct. U.S. at 691-692 pp. pp. Admission Evidence. Photographic

D. of erred over Defendant contends the trial court admitting, it waterbed as was reconstructed in depicting the objection, photographs 1982. The reconstruction to show that on the designed October day could, testified, Annette as have a crack through crimes she looked May headboard The trial in the waterbed and identified defendant. court whether held a outside the of the determine hearing, jury, presence waterbed, had met its burden of that the reconstructed prosecution showing in the as on as was set in the same manner January depicted photographs, up and that were similar to substantially the conditions the bedroom Code, 403.) (Evid. The court ruled there those on that date. trial prevailing § which could find foundational facts was sufficient evidence from and, contends trial admitted Defendant accordingly, photographs. in so court erred ruling. (a), part pertinent

Evidence Code section subdivision provides evidence has the burden produc- “The of the proffered follows: proponent fact, and the proffered evidence as to the existence the preliminary ing unless the finds that there is evidence suffi- is inadmissible court evidence fact, when: sustain a of the existence of the cient to finding preliminary [^] the existence of the relevance of the evidence depends The proffered “to being fact . The trial viewed its function as . . .” court preliminary could whether or there is sufficient evidence that any possibly establish exists,” in the fact and concluded that foundational finding support affirmative. standard, and court an erroneous that

Defendant the trial argues employed standard, was an abuse of even admission of the photographs applying that of evi discretion. standard is preponderance proper words, the evidence is dence. In other the trial court determine whether must true a preponder sufficient to to find the fact permit preliminary 125, 134 ance of the evidence v. Simon (People Cal.App.3d v. 855]), if the Pic’l (People even court would personally disagree Cal.Rptr. 824, 106], on other disapproved 860 Cal.App.3d Cal.Rptr. [171 114 (1988) 44 in v. Kimble Cal.3d 498 People grounds case, the of 803]). In the trial court’s paraphrase 749 P.2d present to it Code section enables us conclude understood confidently Evidence under its that statute. obligation

Further, we of are the court’s was no abuse discretion. ruling persuaded The evidence was from which the could determine the ample jury photo- the waterbed under conditions similar to those graphs depicted substantially at the of set time the offense. Detective Ridenour testified he prevailing up bedroom, the waterbed in the in the to it. using indentations carpet position noon, 28,1982, The taken October a flash photographs were around on using room, with no on lights in the under and clear weather conditions. bright Thus, the reconstruction took near the same time of under similar day, place conditions as lighting flash) the camera the time the (barring prevailed offense, although weather conditions were not identical. Further- evidently more, Annette identified the as what she saw May photographs depicting offenses, the through headboard crack at the time of the prosecution offense, introduced taken on the photograph a crack day showing Thus, between the waterbed headboard and the base waterbed. the jury could directly reconstruction with compare those photographs initially Even, however, taken at the scene of the offense. were we to conclude the trial court abused its discretion in the reconstruction admitting photographs, unwarranted, we would hold to reversal be we are in unpersuaded, light defendant, other evidence bearing May’s identification of a reason- able exists the probability affected the outcome. photographs (People Watson Cal.2d P.2d claim,

In a related defendant the trial court to argues failing erred instruct the sua jury, sponte, to the reconstruction disregard photographs unless it found the conditions represented be substan photographs similar to those tially at the time prevailing offense. Evidence Code however, section (c)(1), subdivision that if the court admits the provides evidence, shall, it and on “[m]ay, instruct the request jury determine whether the fact preliminary exists and to disregard the evidence proffered unless the finds preliminary fact does exist.” statute clearly instruct, does not sua contemplate a sponte duty and we see no abuse of discretion the court’s failure to do so. The was aware the waterbed had reconstructed, been taken down and and that it might have been put back together as it exactly had been set originally Defense counsel up. presented crack, testimony designed prove there was no visible argued the jury should see disregard reconstruction We no photographs. to assess obligation have misunderstood its could the jury

possibility photographs. of the reconstruction relevancy May.

E. Witness Questioning.

1. Court limitations certain intellectual revealed Annette May’s testimony cross-examination, stated she her herself. During in difficulties expressing oath” and and “under of the terms “perjury” know the meaning she did not under oath. The to tell the truth if a witness fails not know what happens did of her on her understanding court voir dire May the suggested prosecutor in the suggestion, requested counsel joined to the truth. Defense tell duty did not The court of the jury. conducted outside the presence voir dire be dire to voir but immediately counsel’s proceeded to defense request, respond exhibited confusion the Although May excusing jury. the witness without used, her understanding she acknowledged the terms the court over some of clerk, truth and her to tell the the the law sworn being required that upon denied the The court under oath can be punished. that a witness who lies section 701.4 under Evidence Code to May motion disqualify did not err in the trial court defendant acknowledges On appeal, however, the trial court He urges, May. the motion disqualify denying outside the presence in to voir dire failing May abused its discretion contends, so, with an testimony May’s to do he surrounded Its failure jury. aura of credibility. undeserved concedes, dire outside the whether to conduct voir implicitly

As defendant (Evid. within the trial court’s discretion. was a matter presence Code, (b) determine the court “may” subd. admissibility [the § admissibility in criminal cases the but evidence outside jury’s presence, outside the defendant “shall” be determined or admission by of a confession us the Defendant fails to persuade on any request].) party’s jury’s presence no instance. We see in not so in this doing abused its discretion trial court that court’s ruling May have understood the trial the jury might possibility her “a mantle of judicial approv- as a witness as placing competent was in attacking been hindered al,” in which the defense have might nor any way trial court admonished To avoid this very possibility, credibility. her in no an way implied was admissible a that certain evidence ruling that to be given or the weight of the witness’s credibility endorsement matters, reserved to the jury. the court were Those testimony. emphasized, trial, here, that: “A provided Evidence Code section 701 4At the time of and as relevant duty understanding the Incapable if he . . . person disqualified is be a witness is: [H (Stats. 1311.) p. ch. of a witness tell truth.” § Denial Examination. Psychiatric 2. counsel, jury’s having unsuccessfully sought

Out of the defense presence, witness, a Annette ground incompetent a mistrial on May moved order to submit to or May psychiatric for an requiring psycholog- her denied the ical examination to determine trial court competency. motion, not add psychologist its belief or could expressing psychiatrist had Defend- to what been cross-examination. anything accomplished May’s been ant concedes the trial court well have may very justified denying motion, silent but we cannot from the record that trial argues presume court took into account in so. doing factors” “appropriate

We find no error in either the trial court’s on the motion or ruling the manner which it was made. The use of psychiatric testimony (In a witness is re impeach disfavored. Darrell T. 90 generally 325, 261]; 335 1112 Cal.App.3d see Cal.Rptr. [prohibiting compul [153 § sory or of psychiatric examination to assess victim psychological credibility or witness in sexual offense The fact a witness incon makes prosecution].) sistent and statements does not a different conclusion. exaggerated compel 420, (People (1979) v. Knox 238].) 431 Cal.App.3d 95 Cal.Rptr. [157 Defendant fails to enumerate factors” the trial court failed any “appropriate consider, to and we see none on this record.

F. to Rebuttal. Permit Refusal

Defendant contends the trial court him refusing erred to allow to witness, Williams, call a Irdee both surrebuttal. After sides rested and had summation, the had prosecutor begun the trial allowed guilt phase court defense counsel in order to (Charles two witnesses reopen present Thomp Ward) son and Albert Mitchell. then impeach Kenny Defense counsel Williams, sought permission the of present testimony an offer of making she would she proof testify that had lived in the Black of community number Modesto for a that at times relevant to the she years; offenses sale the of new used engaged and that in mid-December clothing; suits, 1980 she about possessed 150 white she three-piece which sold about 50 to the Black community of which were stolen her in 8 from the Christmas. Defense period preceding counsel argued Williams’s evidence the would show prevalence of white the suits within concentrated Black Modesto, community which in turn would enable him to argue “the likelihood that it have been a might white suit anyone wearing within that community who entered home at Locust Street that morning.” trial refused to judge he did not consider the permit testimony, stating evidence of sufficient value to it after probative justify admitting

836 had been, closed and argument for practical purposes, had evidence commenced. his constitutional denied him the trial court’s ruling contends

Defendant as such consti defense theory, relevant to his evidence to present right 14, (1967) 388 U.S. v. Texas (Washington of discretion. an abuse tuted 1019, 1023, 1920]; v. Burrell-Hart People 87 S.Ct. L.Ed.2d [18 593, defendant is a criminal 654].) Although Cal.Rptr. 599 [237 Cal.App.3d pro all relevant evidence significant entitled to constitutionally present favor, allow an court must in his this does not mean the value bative matters; evidence must have into collateral inquiry proffered unlimited 334, 53 Cal.3d Jennings than v. slight relevancy. (People more 1009]; (1988) 45 Cal.3d v. Babbitt 807 P.2d Cal.Rptr. People [279 abuse of discretion 755 P.2d We review for criminal case to permit court’s on a motion to trial ruling reopen 1094; (1984) 152 Rodriguez People introduction of additional evidence. (§ court will an appellate 294-295 Cal.App.3d Cal.Rptr. 433] [factors include stage consider in the trial court’s determination reviewing made, shown diligence when the motion was had reached proceedings evidence, the jury the prospect the new discovering the moving party evidence].) and the significance would accord it undue emphasis, in the trial court’s of discretion find no constitutional error or abuse We The testimony. prosecutor to Williams’s refusal to defendant present permit summation, would have Williams’s testimony and had already begun of witnesses the occasioned already appearance increased the disruption failed to exercise defendant Ward. it does not appear and While Thompson witness, would have that the jury in the discovering diligence reasonable rele- because its seems very unlikely, much testimony weight accorded her defendant, view, vance, evidence against The slight. primary in our did not hinge him after the shootings, identification of shortly Annette May’s community others in the Black of his white suit. That on the uniqueness Accord- undermine testimony. owned white suits did not May’s Modesto the case to erred in to reopen cannot the trial court declining we ingly, say Williams testify.5 permit suggest ineffective assistance may be understood to his trial counsel rendered 5Defendant 412, which Code section failing pursuant be instructed to Evidence request the power within the offered when it was

provides: satisfactory “If weaker and less evidence is evidence, be evidence offered should satisfactory more the party produce stronger the and testimony regarding the essentially argues David Moore’s viewed with distrust.” Defendant committing white suit while evidence that defendant wore a bloodied white suit was weaker been, it jury been so instructed would killings the suit would have and had the the than actual however, fail, of a argument in the absence testimony. The must have discounted Moore’s Mistrial. G. to Declare Refusal the the to establish a motive for killings through

The tried prosecution and Green while defendant of Alvin Green. had met defendant testimony at and Green for wife were Gallo Glass worked Company, Green’s employed substitute at the disco as a and disc security guard jockey defendant 31, 1980, months until 1980. On December Green testi- several December fied, told him and spoke he with defendant the disco. Defendant he were not that along, having problems might were and Cynthia getting they him “he be Green elaborated that defendant told was an ex-felon separating. so far as the wise it was in name she and that business his wife’s and that if him, left he would lose and that he see her dead he everything would before lost everything.” after this

Immediately testimony trial court dismissed the jury defense voir allowed counsel to dire the witness. Green had indicated he discussed his with and the testimony prosecutor preceding night, did not caution him to avoid prosecutor court that defendant mentioning was an ex-felon. Defense counsel to both objected appearance prose- cutorial misconduct claimed and the introduction of he what was a highly statement, inflammatory inadmissible for a moved mistrial. The Green prosecutor admitted had related “ex-felon” statement him the previous but contended Green not told evening, had him defendant 31,1980, made the statement the December conversation in the during disco. case, Had understood stated, he that to have been he prosecutor would have instructed Green not to court. mention it in trial court found the evidence did not support finding prosecutor had “set deliberately this matter for the up purpose prejudicing case and defendant’s failure to any warn the witness not to mention this The court was inadvertent.” trial the denied motion for mistrial. eventually not, fact, ex-felon, the Under defendant was in impression an the trial court tentatively the view the expressed should be instructed defendant was Later, an ex-felon. still unsure about the nature defendant’s prior conviction, the trial expressed court an to admonish to inclination the jury motive, the ex-felon consider statement the if it only accorded question the statement all. any weight at Defense to agreed counsel submit a draft court, Later, admonition the failed but to do so. defense counsel acknowl- he had never an edged submitted admonition he one because “couldn’t write that didn’t do more than it cured.” the damage Ultimately, court granted of, showing prosecution to, possession in in fact was access or had the bloodied suit. (People Taylor Cal.App.3d the record ex-felon testi- to strike from Green’s motion defense counsel’s however, court, The to the never jury. no admonition and to mony, give therefore remained in the record which testimony, struck actually consider. be reversed because contends his conviction must Defendant now mistrial. Defendant mistrial argues erred in grant the trial court refusing was extraordinarily Green’s ex-felon statement was because required should have known Green would (2) the knew or prosecutor prejudicial; him; statement, (3) the decided not to caution consciously yet make intention to strike the follow with its stated through trial court’s failure to never undone. meant the damage ex-felon testimony of defendant’s prosecutor To the extent the second arguments implies noted, misconduct, trial court the record refutes it. As the in engaged to me in advance and that was not presented ex-felon “[Green’s statement] office, nor was it done the District Attorney’s was not a matter of design by in the particular that the witness was knowledge going respond with any while . has indicated we that he did and . . way respond, [defense counsel] acted in good the record that he feels that prosecutor] complete were off [the record, we evidence contrary faith in that matter.” Absent any strong bona determination of the prosecutor’s will not the trial court’s second-guess Tides. that, faith, court concluded bad the trial no

Although finding prosecutorial of the on the admissibility existed to rule advance had the opportunity statement, This conclusion have been exclusion would appropriate. ex-felon find, itas reasonably of discretion. The trial court could was not an abuse its relevance did, from the statement outweighed that the prejudice potential Code, (Evid. 352.) of motive.6 on the issue § then, failure to strike whether the trial court’s inadvertent is question, back, were, the mistrial it to the denial of statement relates the “ex-felon” initially I intended to tell explained: “My recollection was that subsequently court 6The felony, and of a previously Defendant had not been convicted many words that the jury in so further, then, maybe he had been investigated came to the conclusion that a little after we words, many and then it became a I them that in so felony, and couldn’t tell convicted of a of, relevant. Whether testimony was my position I think was that this—this simply, question matter, or testimony the basis of bias was relevant on not was another but it was true or instance, of section 352 of proper exercise upon for—in the first It was excludable motive. However, discretion opportunity to exercise that I didn’t have an Evidence Code. People part of the on the opinion that this was not deliberate I was also advance. statement, way to they had no that by design that the witness made that it was not that and, it, unfairly, under the attempt slip it in faith or to anticipate there was no bad circumstances, evidence, jury already had left alone. The since it was relevant it was best it, outweighed by its ground probative value was and now to order it stricken on the its heard jury’s in the nothing emphasize the statement impact accomplish except would to prejudicial be words, mistrial motion can or, whether the denial in other motion statement, of that the failure so on the striking conditioned to have been said comments in the trial court’s Nothing vitiated the ruling. condition its sine non of qua as the of statement striking it intended the suggests motion for denial of the the court’s Reviewing mistrial motion. on the ruling revers- discretion, the court committed to conclude we are unable abuse of True, defense—striking to the the solution most agreeable error. ible Nevertheless, at no time during not effectuated. ex-felon statement—was recalled to the attention of the trial was the jury’s subsequent progress counsel, admonishment, of statement, (undesired) argument whether an by motive, Moreover, of the extent it theory to supported or otherwise. that most of showing rebutted evidence by Green’s was testimony amply not, names, in both their as and his wife was owned defendant property had, fact, in And because defendant Green in alone. suggested, Cynthia’s about not told a falsehood damaging been convicted of a felony, statement, as while to strike the defendant’s criminal record. Accordingly, better, do, we are would have been the trial court intended to arguably as to unable to its in the record was so require say remaining prejudicial reversal.

H. to Order Correctional Records. Discovery Witnesses’ Refusal of in

Defendant the trial court erred argues denying request of to Corrections records discovery Department pertaining prosecution witnesses in in We first discuss conten general Gary Brady particular. tions relating Brady. that, testified on direct examination while were both

Brady they in the Stanislaus defendant admitted his custody jail, guilt Brady. County Defense counsel then Cor- moved for discovery Brady’s Department file, rections he had been had once committed stating Brady informed been to Patton State after a section 1368 Hospital hearing, competency file was needed to cross-examine to his effectively compe- as mental Brady motion, The trial court denied the had indeed been tency. commenting Brady committed Patton State had and had been wounded and Hospital, escaped, in Arkansas. the file contain Defense counsel apprehended argued might evaluations and other evidence mental psychiatric light Brady’s casting to tell the truth. The trial court motion on the basis the capacity denied the i.e., text, proposed compromise mind.” Defense counsel ex-felon then discussed that the statement be stricken with no admonishment and no mention of the statement argument prosecutor agreed argue then counsel. not to the statement. The trial court noted, accepted' compromise, although, ultimately neglected the offered it to strike the statement. however, if defense It acknowledged, was sought privileged. material course to the contrary, appropriate authority counsel furnished some review of the file to determine specific an in camera would be to conduct of relevancy privilege. questions motion, but cross-examined discovery did not renew his

Defense counsel in unrelated his involvement history, on his criminal prior Brady extensively crimes, defendants in return for favor- other against his of history testifying cases, the terms of the in his own by prosecutor able treatment in defendant’s case. Addition- he was testifying under which arrangement his- counsel cross-examined Brady concerning psychiatric defense ally, He also a mild seizure disorder. from suffering tory. Brady acknowledged at a time when he sent to Patton State been acknowledged having Hospital BEG where an a lot of PCP” and was “in a fantasy trip,” “smoking abnormalities caused by revealed (electroencephalogram) slight, temporary examination he after a full use of also stated that psychiatric drugs. Brady with some para- had been diagnosed having psychopathic personality those diag- to elaborate on noid under stress. Asked coloring schizophrenic noses, of outlaw ... is type type stated Brady personality “psychopathic And the law all life .... my like I am. I been fighting dude have that, I like stress or something is that under due coloring schizophrenic [sic] to, me or is against trying frustrated and I that someone thinking get keep know; otherwise, there.” Brady I that isn’t really you provoke something he sometimes or in a state of anxiety, admitted that if alone and under stress and has violent things rages. imagines correctional Brady’s he was entitled to discovery

Defendant contends cross- a fair trial and an adequate opportunity file in order to secure 658, 677 (1985) Cal.Rptr. v. Memro 38 Cal.3d examination. (People [214 308, 832, 446]; 315-316 v. Alaska 415 U.S. [39 700 P.2d Davis 347, 353-354, 1105]; U.S. (1963) 373 Maryland S.Ct. v. Brady L.Ed.2d 215, 218-219, suggests Defendant also L.Ed.2d 83 S.Ct. 87 [10 the federal Amendment to clause of the Sixth the compulsory process exculpatory be read to the disclosure may require potentially Constitution (1987) 480 55-56 (But v. Ritchie U.S. Pennsylvania evidence. see Powell, 40, 56-57, J.) [declining 107 S.Ct. (plur. opn. L.Ed.2d 989] from differ clause how the guarantees compulsory process decide Amendment].) the trial court failed of the Fourteenth He contends those first state follow established in that no procedure, representative no balancing review took place, asserted the no in camera privilege, to the file against occurred of defendant’s interest in access gaining (See Delaney Superior state’s interest in its maintaining confidentiality. 789 P.2d Court 50 Cal.3d 807-814 934]

841 overcome newsper- must meet to the test defendant (Delaney) [articulating law].) shield under son’s privilege records, correctional Brady’s of entitlement to defendant’s claim

Against of confidential nature Depart on the generally General focuses Attorney (1970) 1 v. Court (see §2081.5; Superior files Alanis of Corrections ment has no to right P.2d [prisoner 463 Cal.3d 787 707] [83 resentencing; motion for correctional file in of support his own access have access may authorized 2081.5 by those only persons implying § records]; Yarish v. Nelson Cal.App.3d correctional [104 records]), and not entitled to representatives prisoner Cal.Rptr. 205] [media record and of felony defendant received full disclosure Brady’s emphasizes disclosures, trial court’s refusal In of these testify. inducements light file, to the Attorney order disclosure of according correctional Brady’s General, could not have defendant. prejudiced 40,107 Ritchie, S.Ct. 480 U.S. 39 L.Ed.2d

Pennsylvania supra, 989] [94 defendant, Ritchie, (Ritchie), is instructive in this issue. In resolving of confidential accused of his sexually sought discovery molesting daughter, the files were files maintained the state child claiming protective agency, his needed to daughter enable him to cross-examine effectively files; the state’s criminal trial. The trial court denied disclosure of defendant, his attor court reversed that highest ruling, concluding through clauses was entitled under the confrontation and compulsory process ney, evidence. On writ the Sixth Amendment to search the files for useful any certiorari, affirmed in and reversed the United States Court Supreme part part. case under the due process

A court high analyzed plurality Amendment, is a the confrontation clause of the Fourteenth noting clause (Ritchie, 480 U.S. at discovery supra, trial not a guarantee pretrial right, 56-57, 989]), and to decide declining at 107 S.Ct. 52-53 L.Ed.2d pp. pp. [94 (id. clause at 55-56 contours of the compulsory process pp. [94 the precise went on to note it is “well 56-57]). A of the court majority at L.Ed.2d pp. in its that is both must turn over evidence possession settled” the government (Id. at 57p. and material to or guilt punishment. [94 favorable to the accused observed, is established the Ritchie at Materiality, majority L.Ed.2d p. that, evidence been reasonable had the on a there is a probability showing defense, been would have disclosed to the the result of proceeding different, to under a reasonable sufficient probability being probability States v. (Ibid., Bagley mine confidence in the outcome. United citing 481, 494, 3375].) The Ritchie L.Ed.2d 105 S.Ct. 473 U.S. confidential, were but the state’s contention the files majority acknowledged to their confiden specified law Pennsylvania recognized exceptions because no reason to believe the relevant information the Ritchie saw majority tiality, the defense of disclosed showing materiality would not be on a 57-58,107 at (Ritchie, 57-58 L.Ed.2d supra, pp. 480 U.S. pp. accused. affirmed 989].) Pennsylvania Supreme Accordingly, majority S.Ct. court to the directed a remand to the trial for extent the latter Court judgment concluded, however, of The Ritchie materiality. majority a determination court, than full disclosure to an in camera review the trial rather by that counsel, would both interest due suffice to defendant’s defense protect its state’s of child confidentiality and the of protecting process policy 58-60].) at (Id. files. at 58-61 L.Ed.2d pp. pp. abuse [94 it the trial court in the case short-circuited the present Although appears the first to require of the issue in instance by failing adjudication privilege claimed, in Delaney, to assert the now as provided the prosecutor privilege North. (see 785 v. United States Dist. Ct. Dist. 50 Cal.3d also Kerr supra, 192, 198, affirmed, (9th 1975) F.2d 426 U.S. 394 Cal. Cir. 511 [48 725, under federal S.Ct. law [specifying procedure L.Ed.2d 96 2119] records]), conclude reversal is for assertion of in correctional we privilege 57, at (Ritchie, 480 U.S. at 57 L.Ed.2d 107 p. p. unwarranted. supra, [94 989]; States 473 U.S. 678 L.Ed.2d at S.Ct. United v. at Bagley, supra, p. [87 1210, 491-492, 3375]; Cal.3d 105 S.Ct. v. 52 People Pensinger pp. 640, 805 P.2d 1272 Cal.Rptr. [278

First, information 1977 Brady’s concerning file contained assuming (PCP) in a commitment to Patton State Hospital temporary, phencyclidine state, be might defendant does not how state “fantasy” suggest related 1981, either in defendant relevant to mental when Brady’s stability allegedly Second, him, crimes to or in at the time of trial. jury confessed his although version and its we heard of his Brady’s diagnosis significance; course, cannot, reflected the say accurately whether Brady’s testimony file, his mental of his it did raise about contents correctional questions it deemed to which the was entitled to whatever give weight stability, with extensively impeached Finally, Brady’s credibility appropriate. crimes, his involvement in other of his criminal prior history, evidence file contained for his Even assuming Brady’s the inducements testimony. therefore, see on his we no evidence doubt casting credibility, psychiatric this case have been different the outcome of would reasonable probability 57 (Ritchie, 480 U.S. at p. been disclosed the defense. supra, had it reason, 989].)7 For the same we are unpersuaded S.Ct. p. L.Ed.2d Memro, supra, prejudice by People suffered as required defendant trial, argues Brady at which contrary to the based on the fact in his first 7Defendant deadlocked, voting to ascribe the testify, jurors acquit. with We hesitate did not seven (see Pitchess v. discovery the denial of Pitchess where Cal.3d at page 305]) P.2d (1974) 11 Cal.3d 531 Court Superior evidence” on the of presenting of the possibility “deprived defendant] [the doubt. reasonable beyond whether his confession was voluntary issue to order disclosure of the trial court erred in refusing As to contention witnesses, we likewise records of other prosecution the probation parole that, failing proceed error the trial court despite any conclude above, in light showing prejudice discussed defendant makes no adequate made, i.e., disclosure of order that was requiring prosecu- discovery tion witnesses’ and inducements to testify. records felony

I. Trial Jurors Waldon and McCoy. Court’s on Excusal Rulings

1. Law. Applicable motion to Defendant contends the trial court erred in his midtrial denying over excuse Juror Waldon and in his granting, objection, prosecutor’s the two motions as similar motion to excuse Juror He characterizes McCoy. errors, “identical” for the movant’s these asserted except identity, argues combination,” and in the defense. “singly prejudiced time, Section in relevant that 1089 provides part any “[i]f whether before or of case to the a jury, juror after the final submission ill, dies or becomes or to the court is found other cause shown upon good unable be to ... the court order him to perform duty may discharged and draw the name of an alternate . We . . .” review for abuse discretion the trial to court’s determination to a and order an alternate discharge juror serve. v. Ashmus (People Cal.3d 987 Cal.Rptr.2d 214].) P.2d If there is the trial court’s substantial evidence any supporting we will it. 6 Cal.4th ruling, Johnson uphold (People stated, however, that a 859 P.2d We have also Cal.Rptr.2d “ to in the record as a as must juror’s inability perform juror ‘appear ” (Ibid.) demonstrable reality.’ matter, that, As a we note of the as preliminary subjects respective parties’ motions, Juror distinct Waldon and Juror McCoy presented factually prob- lems. The “identical” of the is that both only jurors two motions aspect obvious, to be To ability fair both belabor professed parties. demeanors, attitudes, Waldon different and nonverbal McCoy displayed dires, in in behavior their voir and the trial court this case respective testimony, light exclusively Brady’s difference in the of his outcome of the two trials impeachment extensive and the other differences between the trials. of their The court’s two made individual assessments credibility. necessarily incommensurable, them “in and we cannot review are therefore rulings Rather, court’s ruling we must examine the trial separately combination.” under the of discretion standard. abuse juror each 2. Juror Waldon. “ bailiff, trial, Juror ‘Do

Several into the Waldon asked days decide we are in shot if the should you any getting think danger ” her The bailiff advised the trial remark. judge the defendant guilty?’ Waldon outside the of defendant and After initially speaking presence counsel, counsel, defendant and hearing conducted a further before judge that, home Waldon one returning stated jury. outside presence her she had said to the after the she told husband what proceedings, night “ do can in the Her husband had ‘Just the best trial you bailiff. responded, it. Mafia or something don’t about The man isn’t member of the worry ” said, essence, bailiff was Waldon her remark to the made like that.’ Juror denied about her to function as a and she any apprehension ability jest, other she mentioned the remark to the members juror. She also said had not an defendant’s concerning She denied formed having opinion jury. she an unbiased juror. and maintained could be guilt she to Waldon that Defendant moved Juror on was grounds discharge defendant, she had discussed improperly about retaliation by apprehensive husband, an about opinion case with her and she have formed might defendant’s guilt. Juror Wal- discharge court denied counsel’s motion to

The trial defense she had made the The found credible her that judge explanation don. worked for the bailiff He noted Waldon had statement to the in jest. many years Patrol with uniformed officers Highway California officers, with of which the was accustomed to banter trading peace probably The that if were truly apprehen- was one. noted further Waldon judge bailiff have welcomed the escape sive about her she would safety, opportunity she had not The Waldon’s assurance yet service. also judge accepted he Waldon’s an on the case. Finally, opined repeating formed opinion admonition, her constitute a the comment to husband did not violation to do nothing a comment having because the statement was merely general the trial court’s the record with the facts case. We conclude supports to Waldon’s credibil- and we decline to its determination as overturn ruling, trial court’s denial of we abuse of discretion in the ity. find no Consequently, Waldon. the defense motion excuse Juror claim, right he to be

In a related denied argues defendant was Waldon, outside the trial with when the court Juror present initially spoke A counsel, the bailiff. her remark to concerning defendant presence stages be at all critical right present waivable has a defendant capital 810 Cal.Rptr.2d 54 Cal.3d v. Edwards trial. (People ques the court should had agreed indicates counsel 436].) The record P.2d and defendant’s Waldon, counsel’s and outside on the record tion Juror a hearing to conduct necessary it be whether would to determine presence, of that matter; with a transcript counsel the trial court furnished Furthermore, that determination. them to make to enable questioning afforded counsel, defendant himself subsequently but defense only to demon therefore fails Waldon. Defendant Juror question opportunity trial. critical of his stage at any to be right present strate he was denied McCoy. 3. Juror trial, Juror McCoy trial interviewed judge

On the 43d day he had learned The indicated of the other jurors. judge outside the presence a court concerning speeding before a judge had McCoy appeared municipal A hearing Patrol. received from the California Highway ticket had McCoy Monday, approximately scheduled for the following on the ticket was case. The defendant’s municipal time the would be deliberating capital office “to see about to the district attorney’s court had referred McCoy judge traffic having assistance or the District soliciting Attorney’s having rules, if the that under his employer’s ticket of.” McCoy explained disposed he had received four would lose his Previously ticket were he upheld job. tickets, The trial he had been “railroaded.” on two of which he claimed other affect his with the ticket would asked whether the situation McCoy judge it would be a problem, to serve as a juror. McCoy acknowledged ability the District asked: Because “Okay. “it means my judge because job.” here, does that behalf office has refused to intercede your Attorney’s in this mean, influenced as juror that feel would be you though, you “Well, case, I wonder that fact?” McCoy replied, possibly, by particular know, life, income.” my my you is. You’re about justice talking where “So, dire, I Later, don’t know. the course of the voir commented: McCoy mean, McCoy on on the system, yes.” I it would view change my justice, but or any “particular person,” denied resentment toward any prosecutor, and wonder he set here if his ticket were not dismissed “would also said said, any it would have effect at.” “I don’t think justice McCoy where was mind on I wouldn’t have my the decision that I would make here except moved to what I am here.” defense doing opposition, prosecutor Over excuse from further service. McCoy jury counsel, the judge argument

After additional voir dire of McCoy that not for the fact He “If it were motion. reasoned: granted prosecutor’s in all and if it not for the fact up man’s livelihood is bound of this were dismissal, this so that the owes him notwith- system that he feels strongly citation, ultimately Attorney’s his and that the District standing guilt I if the agree is at least worst going part happens, Office be responsible, don’t even the man basically with I think that really though prosecutor], [the honest, even he has made the decision his own mind he isn’t is though him, he can avoid to let it bother I don’t think that there is it any way going that at least unconscientiously unconsciously] affecting any judgment [sz'c: he render.” might too,

Here, court’s Juror record the trial supports ruling. McCoy ticket, to the of his and admitted he adhered belief dismissal justice required left as to be unable to focus on the trial if he were in doubt would he the prose- status. no resentment toward Although professed employment cutor, office. We he felt some toward the district clearly animosity attorney’s Juror abused its discretion in excusing McCoy cannot trial court say under these circumstances.

J. Failure Instruct on Intoxication. Effect of committed error contends the trial court reversible

Defendant both to instruct the defense counsel’s despite failing, request, can mental murder and intoxication state first negate degree required to diminished lesser offense of due manslaughter on the included voluntary offenses, At of these diminished and heat of the time capacity passion.8 deliberation, it conviction precluded if negated capacity, premeditation murder; it reduced the of first if it also malice degree negated aforethought, v. 26 Cal.3d from murder to manslaughter. (People homicide Cruz intoxication, well P.2d as Voluntary illness, (People as a diminished was cause of recognized capacity. mental Saille, 1110.) 54 Cal.3d at supra, p. offense, whether or

A instruct on lesser included trial court must consider whenever there is evidence sufficient to deserve not so requested, i.e., from composed evidence which reasonable jury, ation by offense, rather than the could have concluded a lesser persons reasonable crime, (1982) 32 Cal.3d committed. v. Wickersham (People charged 1, 1981, the of the defense of January in this case occurred on before abolition 8The crimes 1103, (See (1991) Cal.Rptr.2d People v. Saille capacity. 54 Cal.3d 1111-1112 [2 diminished (People 364, 588].) in this case. Accordingly, 820 P.2d the defense remains available 639, 801, 612, 84].) Mickey Cal.Rptr. 54 1 818 Cal.3d fn. P.2d [286 suggests may intoxication could trial court have to instruct the The record the intended murder, degree inadvertently to do so. Our negate required the mental state for first but failed inadvertent, omission, the analysis of the whether intentional or is same.

847 436, 311], P.2d 307, grounds on other Cal.Rptr. disapproved 325 [185 569, 12 Cal.4th 200-201 Cal.Rptr.2d v. Barton People the 531].) whether sufficient evidence determination supports P.2d evi- to of that credibility be without reference the instruction must made (1975) 15 Cal.3d v. Mayberry dence. (People 542 P.2d the some defendant under

The record contains evidence arose offenses. Defendant of alcohol and at the time 1980, fatigued influence to work ran errands before going of December and morning shift. After his to p.m. midnight at Gallo Glass usual Company disco, to a ride caught arriving work for the defendant finishing evening, a.m., served cham From then until about 3:30 defendant about 12:30 a.m. arrival a drink after his shortly to customers. He himself poured his pagne brandy consuming champagne, and drink throughout night, continued to alcohol, although and He felt tired and noticed the effects liquor. malt he did not consider himself intoxicated. a.m., he visited Tolden’s nearby

When defendant left the disco about 7 home, Hall, a distance of he another drink. He then drove Pool where had car and poured five He certain items from his four or blocks. unloaded At he had been two of this point, up himself another or glass champagne. and was tired. day, since awakened continuously being previous went into his After or two of defendant drinking champagne, glass as to what he bedroom and to with his He was unclear began play daughters. He the bedroom. have done between drinks and having entering might bedroom, did. He he not in the but soon testified did intend fall asleep hours and drink- the effects of acknowledged “being up many feeling tiredness,” “under the influence of “aware of and ing,” being being alcohol.” he he heard someone call his thought

While defendant testified asleep, name, but not he When he awoke finally did know whether was dreaming. had been home he did not know how he had been he believed he long asleep; bedroom, immediately a short while. When he from the he was emerged only station, waking up, to the where he “going taken police kept sleep going sleep waking up, going sleep waking up.” Bratcher, defendant, “dazed,” “in Officer him as who arrested described in a to be state shock.” Bratcher testified defendant “did appear normal at time his behavior” arrest. arrest, blood

Almost three hours after defendant’s test revealed defend- blood-alcohol level to be .10 As the trial court recognized, percent. of the crimes. ant’s blood-alcohol level would have been time higher 848 that,

Criminalist Steven Glass testified level at which defendant’s tested, blood-alcohol defendant’s to drive a car ability would be impaired. instructions, In denying requested the trial court observed there was no intoxicated,” evidence defendant “was anywhere close to being grossly level, alone, that a .10 blood-alcohol percent rise to standing gave nothing more intoxication," than as to speculation intoxication. Evidence of “gross as such, however, instructions; is not a to the what prerequisite giving is required is evidence from which a reasonable jury could conclude defend- ant’s mental was so reduced or as to capacity impaired negate required criminal intent. v. Flannel (People Cal. 3d 1].) 603 P.2d We conclude the evidence did not require giving the requested instructions on intoxication. Although offenses were committed after defendant hours, had gone without for virtually sleep approximately after he had drunk an number of unspecified alcoholic drinks over a period hours, of some evidence of the of defendant’s alcohol consumption effect his state of mind is One officer lacking. arresting testified that in his opinion defendant sober was when taken into custody. another officer Although “dazed,” testified defendant seemed this falls short of a reasonable basis for defendant’s concluding entertain the mental state capacity required murder content, was diminished. Defendant’s blood-alcohol tested about three hours after the some shootings, suggested impairment, have might driver, rendered him an unsafe but record does not a conclusion support that at the time of the offenses defendant was unable to or form premeditate an intent to kill. because no Accordingly, reasonable would have so found, the trial court did not err in (See instruction. refusing requested v. Avena People 13 Cal.4th 414-416 Cal.Rptr.2d P.2d

Defendant also the trial court erred in argues refusing request for an instruction on based on sudden or heat of manslaughter quarrel Defendant cites no substantial passion. evidence in the record supporting such a but request, instead argues absence of evidence as persuasive motive should have compelled of the instruction. giving

The trial court did not err in the heat of refusing instruction. passion said, Annette May’s testimony Cynthia Marshall or “Why, George?” “George, before shots why?” shortly were fired fails to an simply support inference defendant and his wife Alvin Green’s suddenly testi- quarreled. that at some mony, before the point crimes defendant was concerned Cynthia him, to leave fails to planning demonstrate defendant was under the heat

849 to Green Even if statement of offense. defendant’s at the time the of passion decide, we need heat of passion, point said to reflect could be clearly and the crimes statement to Green defendant’s interval between to no We are directed to cool down. defendant would have permitted more, warrants a without of marital that the existence problems, authority even case evidence from this is any heat of instruction. Absent passion v. People Berry the victim to the conduct provocative by similar remotely 509, 415, 777], 556 P.2d where we (1976) Cal.Rptr. 18 Cal.3d 513-514 [134 case, the victim held to of In that passion it error not a heat instruction. give in a the defendant sexually arousing wife had two-week of engaged pattern man, her love for another jealous rages husband him into over taunting we and sexual jealousy, pain conduct concluded would stir such a passion act an man as to cause him to rage rashly ordinary average disposition contrast, between (Id. 515.) this In here the relations from passion. p. wife, were to his testimony, generally defendant and own according smooth and harmonious. 2.02.

K. Failure to Instruct With CALJICNo. court instruct failing Defendant contends trial erred 2.02, No. sua in the of CALJIC jury, sponte, language pertaining state for evidence to mental sufficiency circumstantial prove requisite however, acknowledges, murder. As defendant deliberate premeditated 2.01, the inclusive the trial court instructed the with CALJIC No. more jury No. evidence. Use CALJIC instruction on of circumstantial sufficiency 2.02, 2.01, of the offense that rather than unless the element only is proper is that or on evidence of specific rests circumstantial substantially entirely (1987) intent or mental state. 43 Cal.3d (People Bloyd v. Here, 802].) P.2d was not the element only mental state evidence; court

of the case on the trial circumstantial resting consequently, Rodrigues did not err in the more inclusive instruction. reading (People 885 P.2d 8 Cal.4th Cal.Rptr.2d Circumstance Jury Finding II. Failure to Instruct and Obtain Special Allegation

Defendant contends the multiple-murder special-circumstance the trial judgment, thus death must be reversed because finding, 190.4, refused, circumstance contrary court to section submit the special erred, trial court reversal is finding jury. Although allegation unwarranted. to what

The issue in the context: discussions as During arose following deliberations, the phase instructions the should receive to assist its guilt the trial prosecution court read CALJIC Nos. 8.80 and 8.81.3 to requested Those instructions were if jury. designed inform the it murder, concluded defendant was guilty of first it must then deter- degree mine the truth of the (2) circumstance special allegations; find true the murder, circumstance it must find the defend- special allegation multiple ant was convicted in this case of more than one offense of murder in the first 190.2, or second These instructions were drawn from degree. section subdi- (a)(3), vision which “(a) as relevant at the time of trial as follows: provided The for a defendant penalty found of murder in the first shall guilty degree be death or confinement in state for a term of life without the prison in case in possibility which one or more of the parole any following special circumstances has been found under charged Section specially 190.4, (3) to be true: . . . in defendant has this been proceeding FJD FJD convicted of more than one offense of murder in the first or second degree.”

Section “(a) 190.4 in relevant as follows: Whenever provides part special circumstances as enumerated in Section are 190.2 and the trier of alleged murder, fact finds the defendant of first guilty trier of fact shall degree also make a on the truth of each circumstance. special finding alleged special The determination of the truth of or all of the circumstances shall any special be made the trier of by fact on the evidence at the trial . . .” . presented 190.4, (§ (a).) subd. That statute also trier of fact shall be a provides jury, 190.4, unless a is waived jury defendant and the subd. (§ prosecution. (a).) instructions,

In denying the trial court its reason- requested explained in this ing: “My thought instance is I don’t have to instruc- particular give not, sense, tions at all on circumstances. The does special does not have to make a that the defendant committed murder special finding with circumstances. If convict the special defendant of two first they degree murders, murder, or two counts of at least one of which is murder of the first doubt, then, degree, they’re persuaded those a reasonable beyond circumstances have been special established without or fur- any additional ther finding.” the trial court Evidently feared the circumstance special instructions would confuse the jury.

Section 190.4 on a plainly contemplates jury finding multiple-murder special-circumstance unless the waive a The trial allegation parties jury. court therefore erred in to submit the issue to the error failing its jury, (See the federal due implicates (1980) Hicks v. Oklahoma process right. 447 343, 175, 180, U.S. 346 L.Ed.2d 100 S.Ct. denial of a [arbitrary [65 2227] state-created as denial of right (1991) due v. Moreno 228 process]; People 564, 140]; 573 Cal.App.3d (1988) v. Gastile 205 Cal.Rptr. People [279

851 283], 1376,1382 on other grounds disapproved Cal.App.3d [253 P.2d 839 Cal.Rptr.2d v. Wrest Cal.4th [13 People 1020].)9 trial “structural defect” the error constituted a

Defendant argues v. Fulminante (Arizona without consideration of prejudice. reversal requiring 1246]; Sullivan v. Louisi S.Ct. U.S. L.Ed.2d 279 A 113 S.Ct. (1993) 508 U.S. 275 L.Ed.2d ana which within is the of error framework “affecting structural defect type itself,” in the one rather an error trial process the trial than proceeds, simply “ ” ‘harmless- by the criminal and analysis that ‘transcends process’ “def[ies] Fulminante, at (Arizona U.S. 309-311 supra, pp. error’ standards.” v. 499 330-332].) structural defects include total L.Ed.2d at of Examples pp. [113 (1963) to v. 372 (Gideon Wainwright the counsel at trial right of deprivation 792, 799, 733]); trial before a 335 L.Ed.2d 83 S.Ct. A.L.R.2d U.S. 93 [9 (1927) U.S. 510 L.Ed. who v. Ohio 273 (Turney [71 is judge impartial 749, 437, 1243]); of a constitutionally 47 S.Ct. 50 and the giving A.L.R. Louisiana, 508 (Sullivan on supra, defective instruction reasonable doubt v. 190-191, 2078]). Trial at at 113 S.Ct. U.S. 281-282 L.Ed.2d pp. pp. [124 errors, contrast, the are “occurred the of by during presentation errors that in the to the be assessed case and which therefore jury, may quantitatively of other evidence to determine whether the error context order presented” Fulminante, (Arizona U.S. at 307-308 was harmless. v. 499 supra, pp. [113 329-330].) at There a error falls any L.Ed.2d is pp. strong presumption the it a category, within latter is the rare case which constitutional (Sullivan violation will not be to v. Louisi subject analysis. harmless error ana, 191, (conc. 508 U.S. at 282 L.Ed.2d at 113 S.Ct. supra, p. p. 2078] [124 J.).) C. opn. Rehnquist, are failure to the jury

We trial court’s unpersuaded permit a on the con allegation make finding multiple-murder special-circumstance The error so as to affect the stitutes structural defect. was not pervasive Rather, it is within which the trial framework proceeded. susceptible a denial of defendant’s concurring dissenting opinion characterizes this error as 9The Kennard, J., post, (Conc. right opn. pp. at jury to a trial. dis. Sixth Amendment 876-877.) “Any argument requires impose It that a is not. Constitution findings prerequisite imposition such a sentence has been of death or make sentence (Clemons Mississippi (1990) rejected by v. U.S. soundly prior of this 494 decisions Court.” Johnson, supra, People 738, 725,738,110 1441]; Cal.4th 6 745 L.Ed.2d S.Ct. see also v. [108 796, 1]; 45; 1233, People Cummings (1993) Cal.Rptr.2d P.2d p. v. 4 Cal.4th 1313 850 [18 at 411, 137, 184]; People 386, People (1988) Cal.Rptr. v. Odle 45 & fn. 754P.2d Cal.3d 11 [247 Moreno, 573.) supra, Cal.App.3d p. v. 228 assessment because the record quantitative the conclusion the error compels had no effect on the outcome of the trial and was thus harmless beyond Johnson, 45; reasonable doubt. v. (People 6 Cal.4th at supra, v. p. Chapman 18, 705, 710-711, 386 U.S. L.Ed.2d 87 S.Ct. California 24 A.L.R.3d The factual issue omitted instruction posed was resolved necessarily adversely defendant under other properly given (See instructions. v. Sedeno People 10 Cal.3d 913], Flannel, 518 P.2d on other disapproved grounds People supra, 12.) Cal.3d at p. fn. That is to verdict of say, jury’s guilt three counts of murder in the first degree established the factual necessarily circumstance, predicate special that defendant was convicted in this of more proceeding than one count of murder in the first or second degree. And, significantly, same heard all the jury, having evidence mitigating the defense proffered chose the during of death penalty phase, penalty rather than life without We possibility therefore parole. may confidently there is no say this possibility would have found defendant not death- had eligible circumstance been special allegation submitted to it. that, We harmless, hasten to emphasize although removal of undoubtedly the multiple-murder special-circumstance from the allegation consid- jury’s eration was error under the of section plain language 190.4. The multiple- murder special circumstance is perhaps those enumerated in unique among 190.2, (a), section subdivision in the of no facts the requiring finding beyond bare the recognition has returned a jury verdict of of murder in guilty the first and has degree convicted defendant of at least one additional count of murder in the same Other proceeding.10 circumstance special allegations and, hence, will not be generally other encompassed the by jury findings, of other making circumstance special the will findings by not wrong entity be harmless necessarily a reasonable doubt. beyond Superior (1983) Carlos v. Court 79, 10In 862], Cal.Rptr. 35 Cal.3d 131 672 P.2d we [197 that intent People held to kill was an felony-murder special element of the circumstance. In v. (1984) Turner 196, held, 669], 37 Cal.3d Cal.Rptr. 302 Carlos v. following P.2d we [208 690 Court, Superior supra, 35 Cal.3d 131, intent kill multiple-murder that to is an element of the People 1104, special (1987) 585, v. Anderson circumstance. In 43 Cal.3d Cal.Rptr. 1149 [240 1306], however, 742 P.2d Carlos and Turner on the we overruled both requirement of intent decided; thus, to kill. The in before Turner was present offenses the transpired case no intent kill People required prove (See was multiple-murder the special circumstance here. v. Payton (1992) 1050, 526, 1035]; 3 Cal.4th People Poggi 1062 Cal.Rptr.2d P.2d [13 839 v. 45 Cal.3d 1082].) 326 Cal.Rptr. P.2d Even were intent to kill here, required jury necessarily the found such in convicting intent defendant of three counts of murder degree the first exclusively in a case tried theory premeditation on a deliberation. III. Phase Penalty Argument.

A. Counsel’s Closing Defense

1. Snoring. Bailiffs the defense was at close

While counsel arguing penalty the and snored audibly, resulting bailiff fell courtroom asleep phase, contin his removal the court Counsel by from courtroom another employee. the When he later ued with his unaware of distraction. argument, evidently occurred, learned what had defense moved his penalty phase counsel have reread to the argument jury. the

The trial must been aware of jurors have judge acknowledged disturbance, which, noted, (rather he for minute than might have persisted minutes, contended), to four but denied motion. three as defendant this error. Defendant assigns ruling reasons, under Sixth

As defendant to the of counsel right assistance Amendment to the federal Constitution and its state counterpart encompasses at of a to have counsel right argument penalty phase present closing trial. Bonin Cal.3d capital (People

758 P.2d But was not argument, right defendant’s contrary in this case. His from nor was arguing, counsel impaired prevented a few restrained from was distracted for most listening; moments. To conclude defendant’s to counsel was violated right or the defense rereading bailiff’s trial court’s refusal to snoring, permit counsel’s would be argument, sheer closing speculation.

2. Restriction on Argument. Scope of Defense Before with to the defense proceeding jury, his penalty phase argument an advance his intention to the factual ruling argue counsel sought regarding in involved in cases which other Stanislaus comparable elements certain death Counsel wanted to persuade had returned verdicts.11 County juries cases, cruelty in those other such the intentional elements present nature, homicide, were lacking or its or torturous of the barbaric particularly were well known this case. Counsel contended the facts of those cases Stanislaus County. 309, 813], (1983) 11People Easley Cal.Rptr. opinion v. 858 671 P.2d 34 Cal.3d [196 855, 490]; (1988) People

following v. Cal.Rptr. retrial 46 Cal.3d 759 P.2d [250 712 Guzman 467, (1985) 917]; People (1988) 41 Cal.Rptr. 45 Cal.3d 755 v. Silbertson 915 P.2d [248 152, 1321]; (1969) Cal.Rptr. People v. Fain 70 Cal.2d 588 [75 Cal.3d 296 P.2d [221 709 633, 451 P.2d 65]. The trial court concluded that while it would be for defense improper did, counsel to refer to what the in those cases counsel could juries permis- comment on sibly the circumstances of the case with compare present those in the other cases. could make reference to existing Defense counsel Thus, factors aggravating other cases but absent from this. present court permitted defense counsel to refer to the fact this case was not a hire, cold-blooded and that it did involve killing or torture rape (unlike cases, However, and Easley the court ruled supra). Guzman defense counsel could not the facts of those cases in detail. argue

Defendant contends the trial court erred in defense prohibiting in, counsel from of, the evidence and outcomes describing earlier Stanislaus contends, County cases. The capital he curtailed counsel’s ruling, ability argue relevant factor of nonstatutory mitigating disproportionate sentencing. General, to the

Contrary argument this claim is not Attorney governed the settled rule that our death law does not penalty encompass intercase (See, (1984) review. proportionality v. Harris 465 U.S. e.g., Pulley 29, 40-42, 871]; 50-53 L.Ed.2d 104 S.Ct. v. Fierro People [79 Cal.4th 1302].) 821 P.2d Defendant does not Cal.Rptr.2d [3 here contend the specifically should have been instructed to conduct review,12 so; rather, intercase or that proportionality this court should do he complains limitation on the improper of trial counsel’s scope closing an argument, (See aspect right counsel. v. New York Herring 593, 597-601, 422 U.S. 856-862 L.Ed.2d 95 S.Ct. Nevertheless, we find no error. court’s fell ruling within its discretion to control the scope closing argument and did not preclude defendant from his central making that there have been murder point: cases involving heinous, more cruel or shocking, callous facts than those here. present A criminal defendant has a well-established constitutional to have right York, counsel to the present closing argument trier of fact. (Herring v. New 597-601, U.S. at supra, 2550]; 856-862 L.Ed.2d at pp. 95 S.Ct. pp. People Rodrigues, 1184.) 8 Cal.4th at supra, This is p. right not un- bounded, however; the trial court retains discretion to reasonable impose People 12Relying 291, on Justice v. Carrera concurring opinion (1989) Mosk’s 49 Cal.3d 348, 121], however, Cal.Rptr. 111 P.2d 347 argues [261 penalty phase jury defendant intracase proportionality should consider doing and should by be assisted in so defense argument this, counsel’s on the issue. In a using one-defendant case such as intracase proportionality as sentencing essentially indistinguishable jury’s factor is from the basic any capital task in weighing aggravating case of mitigating and factors to determine what appropriate. sentence is

855 time limits and to ensure that does not from the mark. argument stray unduly York, 600, 422 v. New U.S. at 862 L.Ed.2d at (Herring supra, p. p. 95 [45 2550.) S.Ct. We cannot the trial court exceeded its discretion in say implic- and detailed of the facts of this itly determining specific comparison case with those of other Stanislaus trials have would not County capital assisted the of this kind cannot be made jury. Meaningful comparisons solely crime, on the basis of the circumstances of the without consideration of the other factors. Yet the trial court could aggravating mitigating properly conclude that to allow counsel to all such factors would consume too argue much time and draw the focus from the instant case. In jury’s away any event, counsel was the latitude to as he granted that this case argue, sought, lacked the cruelty callousness found in other murder cases. There nowas abuse of discretion.

B. Prosecutor’s Comment on Lack Remorse. Defendant’s

Defendant observes the in his prosecutor, closing com argument, mented on defendant’s failure to show remorse and other feelings during As we proceedings. (1994) noted v. Crittenden Cal.4th People 83 [36 however, 887], 885 P.2d Cal.Rptr.2d or absence of re presence “ morse is a factor deemed relevant to the ‘universally’ jury’s penalty (Id. Defendant, moreover, 146.) determination.” neither nor p. objected comment, an sought admonition to the and it could not jury disregard event have any lessened the materially of the death reliability judgment. C. Excessive Multiple-murder Special Circumstances.

Defendant it was error to direct the argues to consider six jury multiple-minder (two special-circumstance for each of the three findings murders). He is correct: one Only circumstance multiple-murder special should be charged considered in a given case. v. (People Clark, 167-168; 3 Cal.4th supra, at pp. v. 42 Cal.3d People Rodriguez held, 726 P.2d As we have repeatedly however, the consideration of jury’s duplicative multiple-murder special where, here, circumstances is harmless knows the number of Clark, murders on which the special circumstances are based. (People v. 168.) Cal.4th at supra, We shall set p. aside excessive circum special stance findings.

D. Deletion Instructions on Certain Factors. Mitigating

Defendant reversal is argues under the rule of required Penry Lynaugh 256, 276-284, 492 U.S. 319-328 L.Ed.2d the trial (Penry), S.Ct. because court deleted from the penalty phase 2934] instructions reference to certain factors it any mitigating considered inappli- Thus, cable. the was not instructed it could consider the jury an presence 190.3, (§ (d)), extreme emotional disturbance factor the participation by 190.3, (e)), victim in the homicidal (§ conduct factor the defendant’s belief 190.3, in (f)), a moral for his conduct factor justification (§ the presence 190.3, extreme duress factor (§ or effects of alcohol or (g)), mental disease on the defendant’s appreciate of his capacity criminality 190.3, (h)). (§ conduct factor does Defendant he had a argue right evidence; have the instructed on factors jury wholly we unsupported by consider, therefore, need whether he was only refused instruction improperly and, so, on a factor on which evidence was introduced if consequences (See that denial. v. Marshall People Cal.3d 932-933 [269 269, 790 P.2d court is not to instruct required 676] sua sponte [trial case].) factors not on the record of applicable The evidence showed defendant had consumed an number of unspecified alcoholic arrest, 12 hours beverages during roughly and his preceding blood-alcohol level measured .10 some 3 hours after his arrest. As percent the trial court itself noted denying instruction on requested section 190.3, (h), factor “There was some evidence at the guilt phase indicating the defendant had been and had drinking a blood alcohol level that would be consistent with being under the influence for drunk The driving cases.” trial court it explained (h) would not instruct on factor because was “[t]here no evidence absolutely whatsoever to indicate that it impaired his capacity either to uphold any intent or to requisite conform his conduct to the law, of the requirements there were no diminished given capacity trial, are, instructions at that of the and I don’t phase feel that they that there is any sufficient evidence to such a justify finding this phase trial.”

In Penry, supra, 492 U.S. 302 2934], L.Ed.2d 109 S.Ct. defendant, evidence in the record showed that the who was convicted of murder and rape, retarded. mildly mentally court concluded high that while execution of a mentally retarded is not se person per unconstitu- tional, the defendant’s sentence was infirm because state sentencing proce- dures were to assure the inadequate defendant’s had considered all jury evidence. mitigating Although had heard evidence of defendant’s retardation, its sentence had been determined its answers three judicial none inquiries, of which concerned the defendant’s mental or capacity In personal the absence of history. instructions to consider directing effect to give all of the evidence to the relating defendant’s background deficiencies, and mental the high court remanded for to avoid resentencing “ the ‘risk that the death will be penalty of factors which imposed spite 492 U.S. (Penry, supra, p. less severe penalty.’ call for a may [Citations.]” L.Ed.2d at 109 S.Ct. p. the trier of determining penalty Section states that 190.3 “[i]n relevant,” then factors if and into account of the any following fact shall take The statute factors. mitigating to list the statutory aggravating proceeds on the record of the factor any applicable instruction impliedly requires case, to instruct on all the we the better is for a court have noted practice Marshall, 932.) 50 Cal.3d at supra, p. factors. statutory penalty (People “Such an aware of the instruction ‘ensures that the is jury complete range factors that the state considers relevant to the determination. With penalty that the individual defendant’s is better able to knowledge jury place conduct in and thus its exercise of discretion to select the perspective, is further channeled and directed as appropriate penalty required by (Ibid.) Amendment.’ Eighth [Citation.]” factor, 190.3, (h),

For a such as section factor particular sentencing case, on the record of the the evidence it need not suffice to apply supporting crime; rather, establish a defense to the there need be in the record complete some evidence relevant to the factor. The would not be called only jury upon factors, to decide and thus consider unless it had first penalty, sentencing returned a verdict of on a murder of the guilt charge. Applicability statutory factors cannot be tested the same standard as that sentencing accordingly by the trial court’s to instruct on affirmative defenses. governing obligation

Here, noted, evidence, the record in the contained form results, blood-alcohol test at the showing legally defendant was intoxicated time of the crime. Defendant was entitled to have that consider jury evidence and to have the exercise of its discretion informed sentencing 190.3, (h). section factor The trial court erred in so instruct refusing jury. cannot, however,

We conclude the error was prejudicial. Although trial court did not instruct the to consider the evidence of specifically determination, defendant’s intoxication in it at its did arriving penalty instruct the which is to be on the determining penalty imposed “[i]n Defendant, shall you consider all the evidence which has been received during of the trial of this case as to matter relevant to any part any sentence, to, aggravation, but not limited mitigation including, character, Defendant’s mental condition and condi- background, physical instruction, tion.” Pertinent to that trial counsel to the “I ask argued jury, you to remember the Defendant’s condition was that of one who had physical motion, effect, shifts, hours; been on his feet in nearly two pulling drunk, that he had that he had not I eaten. don’t nor pretend suggest you intoxicated, drunk, that he was or that he was but he that had by legal definition, in him to be under the influence of enough alcohol.” the Nothing Thus, said in prosecutor contradicted closing defense counsel’s argument. in unlike Penry, was not jury precluded from the evidence of considering defendant’s of alcohol consumption to the if it prior offense found such evidence to be relevant.

Defendant argues, that the similarly, trial court erred in to instruct refusing 190.3, (d), section factor whether the offense was committed while the defendant under the influence of extreme mental or emotional distur- bance. As discussed above in connection with the failure to instruct on heat crime, however, passion of the lessening degree the record simply (as contained no evidence distinct from the absence of motive) evidence of from disturbance; which the could jury have found such emotional conse- while the quently, better would have been to instruct practice on all sentenc- factors, the failure ing (d) to instruct on factor was not error in this case.13

E. Claim Brown Error.

Defendant the instructions argues at the given close of the jury penalty have misled the phase may jury believe were they vote required for death even if determined death they was not the appropriate penalty under the circumstances. The instruction told the it “shall” jury impose death if it found that penalty factors aggravating outweighed mitigating. Defendant notes that in v. People Brown 40 Cal.3d 512 [220 (revd. 709 P.2d on other sub nom. grounds 440] California Brown 479 U.S. 538 837]), L.Ed.2d 107 S.Ct. we cautioned that such an instruction is potentially confusing, because must be “[t]he free to death if reject it decides on the basis of any relevant constitutionally evidence that it is not the (40 appropriate penalty.” Cal.3d at fn. & p. omitted.) italics We declared thenceforth we would examine death sentences obtained whether, the use of through such an instruction “to determine in context, the sentencer have been may misled to defendant’s about prejudice (Id. of its discretion scope sentencing under the 1978 law.” fn. p. 17.)

Defendant does not how the clearly identify have been jury might misled. He of the complains prosecutor’s in argument, to defense counsel’s response Attorney 13The argues 190.3, General (h) the trial (d) court’s deletion of section factors did not constitute error for another during reason: Defendant maintained his innocence and, penalty phase confining beliefs, in testimony religious his childhood and dis “mitigate” claimed an intent to as he Contrary implications understood the term. to the of the Attorney argument, General’s a capital may argue lingering defendant penalty doubt at the phase forfeiting right without to have the sentencing instructed on all factors applicable to the case. no would have the death on defendant penalty imposition suggestion is, do value, “is not the question] deterrence question. [The deterrent . . . mitigation. case those outweigh this aggravation circumstances balances, than the more heavily or weighs side of the scale [Whichever The other, foregoing decide the issue penalty.” that is the way you contends, and mechanical view a limited defendant urged argument, for death even members were to vote the jury function suggested jury’s under all not the penalty concluded death was appropriate if they did not is unsound. prosecutor Defendant’s interpretation circumstances. factors, the jury but rather properly urged for a mechanical counting argue the circumstances of the crime. to weigh should that the suggestion jury

Defendant further argues prosecutor’s nondeterrent, deterrent, effect of the death from or considering refrain function, limited, view of its in led the to entertain a mechanical jury penalty Brown, The in v. 40 Cal.3d 512. People supra, contravention of our decision deterrence rest on lacks merit. We have held arguments argument repeatedly on which scale weight unproven assumptions place foreign individualized, (Peo instead be made an determination as to should penalty. Wrest, 1088, 1106; (1989) Bittaker 48 v. 3 Cal.4th v. ple supra, People 1046, 630, 659]; Cal.3d 1105 774 P.2d v. People Thompson Cal.Rptr. [259 86, 245, 37]; (1988) 45 Cal.3d 753 P.2d v. People 139 Cal.Rptr. [246 503, 538, 394], (1963) Ketchel 536-540 381 P.2d 59 Cal.2d Cal.Rptr. [30 631, (1964) on other in v. Morse 60 Cal.2d disapproved grounds People 201, 33, 388 P.2d 12 A.L.R.3d This is principle equally [36 true whether it is the who the death seeks prosecutor argue penalty’s value, Questions deterrent or the its of deterrence or cost defense opposite. in out a sentence are for the not for the carrying capital Legislature, jury 447, case. 468 U.S. considering v. Florida particular (Spaziano 340, 353-354, 3154]; 461-462 L.Ed.2d 104 S.Ct. v. People Thompson, 139.) 45 Cal. 3d at No Brown error supra, p. appears.

F. Failure to Instruct on and Other Sympathy Nonstatutory Mitigating Factors.

Defendant the trial court committed reversible error in argues failing instruct the that it could consider defendant as a valid jury for the sympathy factor in He contends this failure mitigation. compounded by absence of an instruction to instruction not to disregard the guilt phase consider (CALJIC 1.00). the verdict We have No. sympathy reaching 471, this in the rejected contention v. Sanders 51 Cal.3d past (People 561]), 797 P.2d and we see no reason to CaL.Rptr. persuasive reconsider that determination.

Defendant also contends the version of CALJIC No. 8.84.1 read to the ter, informed it of its to consider jury inadequately right defendant’s charac mental condition and

background, history, condition physical mitiga and, errors, tion combination with other asserted penalty phase requires reversal. in this case was instructed in our before decision in May courts, v.

People Easley, Cal.3d trial under supra, section required 190.3, (k), factor to inform consider as a penalty juries may they mitigating “ factor other circumstance which extenuates the ‘any of the crime gravity ” “ even it is not a excuse for though the crime’ and other legal any ‘aspect defendant’s character or record . . . that the defendant as a proffers [the] ” basis for a sentence less than death.’ (People Easley, 34 Cal.3d at supra, 10.) fn. Here the p. prosecution be instructed requested with instruction, (k) what has become known as the “unadorned” factor which would simply have directed the jury to consider other circumstance “any which extenuates the of the crime even it is not a gravity excuse though legal 8.84.1, this crime.” The defense a modification of CALJIC No. requested an elaboration of the including (k) unadorned factor instruction. In large part modifications, the trial court with the defense’s agreed as proposed although above, discussed it deleted certain factors it considered sentencing inappli- III.D., (See ante.) cable. pt.

The trial court thus instructed the as follows: “In jury which determining Defendant, is to be on the penalty shall consider all of the imposed you case, evidence which has been received of the trial of during any part this sentence, matter relevant to any and aggravation, mitigation but including character, not limited to the Defendant’s background, mental condi history, consider, tion and condition. physical You shall take into account and be [*][] factors, guided if by following The circumstances of the applicable: [<J0 crime of which the Defendant was convicted in the and present proceeding the existence of [f| circumstances any special found to be true. The age the Defendant at the time of the crime. other circumstance which Any [U extenuates the of the crime even gravity it is not a excuse for though legal the crime. The or absence of criminal presence [][] the Defendant activity by which involved the use or use of force or violence or the attempted express or threat to use force implied or violence. or absence of presence any [<fl] conviction.” prior felony

During course of its deliberations the of the jury requested rereading consider; instructions on the factors it was to the trial court Imme- obliged. after deliberations, diately resumed its jury defense counsel speculated be jury might having difficulty following instruction. Defense coun- sel belatedly to the instruction objected and it be redrafted to requested place character, the reference to defendant’s and mental history, background, the other factors. The trial court condition listed physical among sentencing so, declined to do it stated it would entertain another instruction although the event the indicated further jury difficulty. instructions, in the his trial counsel identified a flaw

Arguing correctly As a defendant contends the trial court should have reinstructed the jury. so, to do result court’s failure he claims the instructions inadequately factors, informed the of its to consider jury right nonstatutory mitigating character, because the reference to defendant’s background, history, mental and condition rather than followed the preceded physical phrase: consider, “You shall take into account and be guided by following factors, if . . . .” applicable view,

In likelihood our there is no reasonable would have jury understood instruction to it from preclude considering mitigation character, evidence of defendant’s and condition. background, history 316, 330, (Boyde 494 U.S. L.Ed.2d California S.Ct. The instruction first told the it “shall consider” such jury determination. evidence at its It arriving then told the it sentencing “shall consider” certain factors if it found them In the statutory applicable. face of this that the would have believed itself mandatory language, from relevant evidence is not precluded considering any reasonably likely. Our conclusion on this is not altered the other flaws point nonprejudicial we have identified in the this instructions in penalty phase argument case.14

G. Trial Court’s Failure to Voir Dire Jurors Regarding Newspaper Article.

Defendant the argues trial court committed reversible error it when failed to question jurors whether had read a individually regarding they newspaper article about the case that was after rendition of the published shortly guilt verdict and before the phase commencement of the The penalty phase. 17, 1983, circumstances were as follows: On defense counsel called the May 190.3, (k) 14Defendant although contends that the given section factor instruction in this alone,” require case does not “standing reversal a contrary compelled conclusion is when we errors, including consider its interaction with several other the trial the court’s deletion from factors, particular sentencing instructions of improper prosecutorial argument, the bailiff’s snoring during closing argument, defense counsel’s limiting and the trial court’s defense comparisons, during closing argument, counsel’s capital of case to We this other cases. have rejected most of the predicates argument, claims on which defendant this cumulative error and none, combination, as to the singly rest we conclude reasonably likely or in is to have jury. confused or misled the attention to two articles in the Bee on published trial court’s Modesto May first, The front May and a article the respectively. page discussing verdicts, the as “several guilt prosecutor saying that new phase quoted came forward Marshall not convicted the first witnesses after was trial. was robber Lee whom them convicted “Rabbit” Among Gary Brady, [the credited with the of Marshall’s prosecutor] persuading jury guilt.” The factors, article then the as various quoted prosecutor listing including Brady, that the case enhanced at the second trial: the waterbed frame prosecution’s and the of Moore the David and other witnesses as to white testimony suit. article, later,

The second two read “A as follows: published days story edition of the Bee Stanislaus Saturday’s incorrectly County quotes Deputy District Beauchesne as Attorney convicted robber Lee Roger saying Gary Brady “Rabbit” Edward Marshall was of persuaded jury George guilty of three counts first murder and one murder.” degree attempted Defense counsel moved for the of a discharge impanelment new for the misconduct in connec- penalty phase, citing prosecutorial tion with the stories. In admitted prosecutor that after return of reply, verdicts he had with a Bee guilty Modesto whom he spoken reporter, had listed the evidence in the trial but second first. The presented denied, however, basis for prosecutor opinion to the expressing any verdict. He jury’s get described efforts to publish newspaper retraction, which resulted in the publication the second article.

The trial court denied the defense motion he discharge jury, stating them, intended to ask the jurors whether had read the article to tell they had, if that he had “made into the they situation.” defense inquiry continued to press into specific inquiry possible prejudice. resume,

When the penalty about to trial court said to the phase “I know don’t whether jury: any you read newspaper Saturday the article that was in there—it was on the front this case. page—concerning But that is illustrative of the that sometimes the most proposition interesting read, fiction we we in read the Dunford Mr. newspaper. [<JD [defense Beauchesne was at the prosecutor]—particularly upset counsel]—Mr. [the him, remarks attributed to the extent that or implied said particularly they that he had presumed to comment to a as to the had reporter why jury reached, reached their verdicts that the had because Mr. Beauchesne had small, made no such statement. The did a kind of weasel- carry newspaper worded retraction on I don’t whether read know of that or Monday. any you not, it, satisfied, but I have made into and I I am sure that Mr. am inquiry satisfied, satisfied, Dunford is we all in are that Mr. Beauchesne no way mind, it, a state of or to Bee your anything concerning presumed express be, And I to understand so that there would you you wanted that reporter. us, be with him with I am sure that would not or of because upset any here, this or the courts has made connected with with nobody proceeding, in comment of kind to the media. any anyone, particularly anybody that it; or, were, will So I distressed if that you you you weren’t about hope for at set it aside now so that we can on with the business hand.” get first, Defendant that the to the argues, prosecutor’s statements reporter misconduct, second, constituted that the failure prejudicial trial court’s to conduct voir dire the individual of amounted to reversible error. We jurors consider his in turn. arguments

Defendant contends the the comments to vio prosecutor’s reporter conduct, lated the then rule of Asso applicable American Bar professional Model ciation Code of Professional Rule Responsibility, Disciplinary 7-107(E), which as follows: “After the or provides of a trial completion without trial a criminal disposition matter and to the of a prior imposition sentence, a lawor firm lawyer associated with the or defense prosecution shall not make or an that a participate statement making extrajudicial reasonable person would to be expect disseminated communica by public tion and that is reasonably to affect the This likely imposition of sentence.”15 ethics, him, breach of defendant argues, prejudiced because prosecutor’s remarks could have erased doubt about defendant’s any lingering guilt still jury might have harbored. Defendant reasons that by implying conviction resulted from the “new” evidence introduced by prosecution trial, the second during the first Bee article lent this additional evidence had not credibility it their necessarily given during guilt phase deliberations. Defendant also contends the article reinforced in the jurors’ minds the evidence him at the against critical when were to point they decide whether he lived or died.

We must outset reject the contention the acted unethi- prosecutor he did cally saying what to the reporter. The prosecutor described on trial, 15Atthe professional time conduct of attorneys governed by California Conduct, Rules of Professional four-year study revised 1975. to a Pursuant of the 1975 light rules in the of the American Bar Association Code Responsibility Model of Professional sources, and other the California State Bar Commission the Revision of the Rules rules, Professional Conduct drafted set of revised adopted by which were Board 27, 1988, August 28, 1988, Governors on approved by were court on this November Witkin, (1 (3d May became effective on Attorneys, 1989. supp.) Cal. Procedure ed. 1996 368A, 176.) 1,1995, p. October Effective rule § 5-120 was added to the Rules of Professional prohibits Rule attorneys Conduct. 5-120 making extrajudicial from an statement that a person expect reasonable would to be public disseminated means of if he communication or reasonably she knows or should it materially know that will have a substantial likelihood of adjudicative an prejudicing (See Witkin, Procedure, proceeding supra, matter. 1 Cal. 368MM, 217.) p. § 864 and his was description accepted reporter, his with the

record conversation counsel. the conversa- During court and defense both the trial as truthful for the tion, that was first listed the evidence presented merely prosecutor trial, was a matter of public information that defendant’s second time during a sort was not of he to the reporter record. The information conveyed Prof. (ABA Model Code of sentence. to affect likely imposition reasonably of a on 7-107(E).) pain required, DR prosecutor Responsibility, citation, inaccuracy. to the reporter’s misconduct anticipate reversible the trial court committed we the contention Next reject had read the offending on whether they error in to voir dire failing jurors record, counsel’s other than defense supposition, in the Nothing article. trial, of the court the article. At the outset indeed had read indicates any juror trial, articles about the to avoid reading any jurors admonished prospective they we must contrary presume in the absence of evidence to 207, (1988) 47 Cal.3d v. Adcox (People followed the court’s admonition. out, 55, for a defendant 763 P.2d As points 252-253 Cal.Rptr. [253 is the case he or she is deciding articles about to read newspaper juror (1990) misconduct, Holloway v. (People prejudice raising presumption 530, 1327], 1098, P.2d disapproved 790 Cal.Rptr. 50 Cal.3d [269 824, 830, fn. 9 Cal.4th Stansbury [38 another v. People point 394, 588]) trial court to of the triggering duty 889 P.2d Cal.Rptr.2d (1987) 43 Cal.3d (See v. Gates People make inquiry. appropriate threshold 301].) Given the lack required 743 P.2d Cal.Rptr. however, case, and the trial we do not prejudice, in this presume showing court was on no duty inquiry. put one or more read jurors as true the supposition

Even if we were accept article, substance rebutted find the article’s innocuous the first Bee we would 50 Cal.3d at Holloway, supra, pp. v. (People the presumption prejudice. First, in the 1110.) of the new evidence presented the enumeration himself told jury trial what defense counsel largely repeated second (See People during closing argument guilt phase. Martinez considered maps 23-25 [jury Cal.App.3d 208] of prejudice evidence before the already jury; presumption that duplicated Second, credited rebutted].) false that the prosecutor the article’s statement of defendant’s guilt simply the new information with persuading the jury adversely matter of a kind that could have influenced was not defendant, Like the trial doubt as to his guilt. as by eliminating any lingering defendant, court, article, have might rather than prejudicing we surmise the become at the prosecutor presuming caused the annoyed harmless nature of the verdict. Because of the guilt articulate the basis of the articles, there and the rebuttal of any possibility prejudice, consequent

865 individually error in the trial court’s failure question jurors was no seen the article. concerning whether had they Automatic Verdict. Modify

H. Motion to court, in must be because the trial Defendant his sentence reversed argues 190.4, (e)), on his subd. (§ automatic motion verdict modify ruling In its of considered evidence. statement nonstatutory aggravating improperly verdict, observed, has reasons the death the court “Defendant upholding be maintained innocence in the of what I deem to steadfastly his face and no guilt evidence of his has demonstrated remorse what- overwhelming was, contends, lack Consideration of of remorse defendant error. soever.” his (1988) a similar claim v. Caro 46 past rejected (People We have 757, 680]), Cal.3d 1067-1068 761 P.2d and we no Cal.Rptr. see [251 reason from that depart conclusion.

Defendant further the trial court must have refused to consider argues distress, factors intoxication and have emotional and must viewed defend- ant as convicted of alleged all six circumstances. The special argument, however, record, is citation to the and fails mere unsupported by as speculation. Sentence Arbitrary,

I. and Discriminatory Disproportionate. Defendant asserts the sentence him death is unconstitutionally imposed arbitrary, and discriminatory disproportionate, considering facts of characteristics, case his and that we personal review his sen requests I, intercase tence for and intracase He reasons that article proportionality. 17 of the section California Constitution review and reduc requires judicial tion of any sentences. Dillon disproportionate v. 34 Cal.3d (People Moreover, 441 P.2d (Dillon).) 668 he this Cal.Rptr. [194 argues, 697] court has conducted the sentence review in the equivalent comparative course (In claims of unusual cruel or adjudicating noncapital punishment. Rodriguez (1975) 384]; re 14 Cal.3d 639 537 P.2d Cal.Rptr. v. People Wingo 14 Cal.3d P.2d We have the contention California’s previously rejected sen capital law fails to ensure that tencing arbitrary, discriminatory disproportionate Crittenden, death sentences are not (People supra, Cal.4th imposed. 156-157.) To the pp. extent defendant contends sentence must be reduced Dillon, under the we find on this reasoning supra, no disproportionality record therefore be reject the contention. To the extent defendant may understood to we are intercase suggest obliged conduct proportionality Harris, 50-51 pp. 465 U.S.

review, supra, [79 v. (Pulley in error. he is 871]; (1995) 10 Cal.4th 40-41, v. Stanley People 104 S.Ct. at pp. L.Ed.2d 543, P.2d Cal.Rptr.2d review is essen- sentence contends further that “[comparative Defendant sentences, as demonstrated death discriminatory and arbitrary tial prevent sets forth in other states.” Defendant results of sentence review capital review; we therefore illustrations of such neither nor supporting argument cannot and need address his assertion. require capital defendant equal protection

Finally, argues principles to that provided review equivalent defendants receive sentence comparative (f). subdivision to section sentenced felons pursuant for determinately (1992) 3 Cal.4th claim (People We this rejected have Diaz previously to reconsider 1171]), and see no reason 834 P.2d Cal.Rptr.2d our conclusion. Error.

J. Cumulative error requires effect of phase contends the cumulative penalty Defendant errors we have We The only of death. disagree. reversal of the judgment of excessive multiple-murder are the submission found in the penalty phase the failure to instruct to the findings special-circumstance as 190.3, of resultant Because of the lack (h). prejudice, factor section do these errors re- above, nor cumulatively neither individually discussed reversal. quire

Disposition are set findings of the special-circumstance All but one multiple-murder is affirmed. In all other respects, judgment aside. Brown, J., Baxter, J., Chin, J., J., concurred. C.

George, in affirm J., majority KENNARD, Dissenting. I join Concurring one murder and on three counts of first degree convictions defendant’s ing would, however, death. I reverse judgment murder. count of attempted during issues that arose resolution of two with the majority’s I disagree involves the trial The first issue of defendant’s trial. capital the guilt phase of certain prison for discovery of defendant’s midtrial motion denial court’s a prosecution claimed he needed to cross-examine that defendant records truthfully. the latter’s mental and ability testify witness on competence considers the trial court’s denial of the motion to be majority discovery view, harmless error. In there was no my error.

The second issue to the trial court’s decision not to have the pertains that, consider the truth or circumstance falsity special allegation in the this “defendant has in been phrased statutory language, proceeding convicted of more than one offense of murder in the first or second degree.” Code, 190.2, (Pen. (a)(3).) subd. The trial court made that when decision it § submitted the issue of or innocence guilt on the criminal to the charges jury towards the end of the of defendant’s guilt trial. The court phase capital that if the reasoned jury were return verdicts on at guilty least one count of first murder and degree one additional count of murder in the first or second the degree, would have made all of the jury factual neces- findings to find sary the existence of the circumstance. multiple-murder special view, in the Consequently, court’s it would be superfluous require jury to make a on the specific finding multiple-murder special-circumstance When, deliberations, allegation. following returned a verdict jury of guilt murder, on three counts of first the case degree to the proceeded penalty of the phase trial for a determination by the whether jury defendant should be sentenced to death or to life without imprisonment parole. law,

Under California a defendant in a case becomes for capital eligible the death after penalty a only that at finding by jury least one special circumstance is true. allegation Such a is therefore a finding critical compo- Here, nent of our scheme. capital the trial court’s which ruling, violated the express statutory requirement that the jury “make a special on the finding truth of each Code, 190.4, alleged (Pen. special circumstance” (a)), subd. § denied defendant his constitutional right to a jury determination on that issue. in United States Recently, U.S__[132 v. Gaudin L.Ed.2d 444, 115 S.Ct. and in Sullivan v. Louisiana 2310] 508 U.S. 275 [124 L.Ed.2d 2078], 113 S.Ct. the United States Court stressed that Supreme to a right trial by jury, guaranteed the Sixth Amendment to the Constitution, federal more than encompasses determine the having jury factual verdict; components trial, base, to a necessary is right jury to have a right determine jury the ultimate or question guilt innocence. Here, the ultimate was question whether defendant was or innocent of guilty murder, is, that murder capital that would render him for the death eligible Because the penalty. trial court removed that determination of ultimate guilt from the jury’s consideration when it prevented from making specific the truth or finding falsity circumstance special allegation, defendant was of his deprived Sixth Amendment to a right trial on that issue.

I three his wife shooting people: (Cyn- with charged fatally Defendant Lee), a boarder Marshall), (Jeffrey brother 13-year-old his wife’s thia Thomas). Annette May, He was also accused of murder attempting (Henry who was in Thomas’s bed when she was shot. sleeping

Prosecution witness he and defendant were testified that while Gary Brady confined in the he had shot his Stanislaus defendant admitted County jail, wife, kid”, a “small “a in the bedroom” with “a and a lady guy killed his wife because he rifle.” Defendant said that he had high-powered him,” “would rather see his wife dead her leave and that he had shot the than he Defendant added that after the shootings boy witnessing killing. floor; off the left it on the he then took from money wiped gun it were committed in the course kitchen table to make look as if the killings of a robbery. of Brady, engaged

Before defense counsel’s cross-examination parties extent to which defendant could in a debate regarding question lengthy collo- following about his involvement in another case.1 Brady capital took then quy place: Yes, I haven’t mentioned this [the [defense counsel]: Dunford “Mr. a result of a . . . but there is some indication Mr. as Brady,

prosecutor], determine a defendant’s Code 1368 hearing competence [Penal section] [to trial], committed to Patton State bemay impeach- to stand Hospital and I believe that to be able on the of his mental ground competence, have, him I wish to because I just discoverable. What interviewed [*]D stand, I to have is the an hour before he went on the what wish yesterday him. of Corrections In order to cross-examine jacket. effectively Department I motion that be made make that that available. Well, motion. He was I am that going deny particular “The Court: out of this you

committed to Patton State Hospital County escaped, know, before the incident well and all of this occurred substantially probably in, I back that we are about here. He was talking apprehended in the jail know, think, I I he wounded on that occasion. don’t Arkansas after was [<fl] since then. that he has been committed to Patton State Hospital don’t believe Hamilton, $75,000 friend, Allen to Billy Ray were offered one Clarence 1Brady and a so, Fresno, ultimately agreed to do but persons at a market in California. Both murder several Allen, Brady against who was Hamilton who committed the murders. testified it was Cal.Rptr. (People 42 Cal.3d 1222 [232 and sentenced to death. v. Allen convicted 115]; People 756 P.2d see also v. Hamilton Cal.3d sentence].) [affirming death Hamilton’s conviction and 1348] P.2d if committed I be he had been to Patton State very Hospital would surprised It because of the that he demonstrated he was rather security possessed. risk unusual that he there the first got place.”

After the made a comment about the admissibility Brady’s prosecutor convictions, defense counsel returned to the prior subject discovery: ... I believe be in that there may Department “Mr. Dunford: Corrections evaluations and other jacket light psychiatric testimony casting on the mental of this witness to tell the truth. capacity Well, circumstances, aware, under the as far as am that

“The Court: I material, would be but unless can furnish me some privileged you authority that, and an order of Corrections to come with requiring Department up I am not to consider that motion. All going particular right. Well, I so that record is am sure the Court complete,

“Mr. Dunford: considered it and denied it. Well, I have denied I it because am unaware of any

“The Court: one, number authority, an order like that to the my making Department Corrections, and until I am satisfied that that is not confiden- prison jacket tial, be, I which believe it to it can be the of an subject appropriate order for I would not even consider production, the order. tentatively making

“Mr. Dunford: Thank Your Honor. you, made,

“The made, Court: Once the order is if it were of upon showing kind, then, course, be, of of it would have to I necessity, an suppose, camera review of that matter the Court to by determine what matters should I be, be privileged, what matters be might relevant what would not but think don’t we have to reach that at the moment. know, Honor, I need to Your is thing whether that

“Mr. Dunford: motion has been with denied or whether or not it be prejudice might renewed Iwhen have a more persuasive authorities. position support by It is denied without prejudice.

“The Court: (Italics added.) Thank Your Honor.” you, “Mr. Dunford: 812, Hill (1974) In v. Court Superior 10 Cal.3d 816-817 [112 257, 1353, 820], 518 P.2d 95 A.L.R.3d this court summarized the rules in a criminal governing discovery case as follows: “A motion for an accused is to the discovery addressed sound discre- court, tion of the trial which has the inherent to order in the power discovery interests of justice. [Citations.]

“It has been stated that the basis for to a granting pretrial discovery defendant is the fundamental that an accused is principle entitled a fair [citations], trial and ‘Absent some that the governmental infor- requirement enforcement, mation be confidential for the of kept purposes effective law the state has no interest in the accused access to all evidence that denying case, can throw on the issues in the and in light it has no interest particular on the of witnesses who have not been convicting testimony as rigorously cross-examined and as as the evidence thoroughly impeached permits.’ [Citations.] accused, however,

“An is not entitled to material as a inspect matter right without to the adverse regard effects of disclosure and without a prior cases, cause. ‘In criminal showing good the trial court retains wide discretion to the disclosure of information which protect against might or violate unduly hamper some other prosecution legitimate governmen- tal interest. the court has discretion to Additionally, dis- deny [Citations.] in the absence of covery which showing the material specifies sought furnishes a “plausible justification” “‘A show- inspection.’ [Citations.] however, that the defendant cannot ing, obtain the information readily his own efforts will through entitle him to ordinarily pretrial knowledge evidence, or information that any unprivileged lead might discovery evidence, if it reasonable that such will appears assist him in knowledge omitted; accord, (Fn. defense . . . .” preparing & italics [Citations.]’” v. Clark People Cal.4th 833 P.2d Cal.Rptr.2d 561]; People McPeters 2 Cal.4th 1171 Cal.Rptr.2d 832 P.2d discretion,

In its the trial court exercising consider the timeliness of may Court, motion. As out in discovery Hill v. 10 pointed Superior supra, Cal.3d at 821: in motions for page “Although general be discovery may [citations], made either at or before trial a motion for of discovery felony , trial, conviction records . . . if made at in cases the trial many might delay if the motion were Such a motion should granted. be made at a ordinarily time (See when it would not have that effect.” also v. City Alhambra of 1118, (1988) Court Superior 205 1134 Cal.App.3d Cal.Rptr. [252 Court,

Applying standards this court set forth in Hill v. Superior supra, 812, 816-817,1 10 Cal.3d would hold that the trial court in this case did not abuse its discretion in without defendant’s motion for denying, prejudice,

871 held of Corrections by records Department of certain discovery in witness Brady he needed cross-examining prosecution defendant asserted truthfully. and his ability testify his mental competence First, motion in the midst of Defendant made the the motion was untimely. trial, with defendant a conversation following testimony by Brady describing the record before this earlier. There is in nothing that had occurred two years not defendant with reports court to that the had furnished suggest prosecutor or that before the trial commenced disclosing Brady’s testimony proposed Thus, to be no there appears was in witness. any way surprise Brady of discovery Brady’s prison failure to move for excuse for defendant’s acted well within its the trial court Accordingly, records before trial. motion for defendant’s midtrial discretion in without denying, prejudice, discovery.

Second, discovery Brady’s with defendant’s compliance request (See trial Hill v. records could have resulted in substantial delay. prison Court, 821.) records were not in the 10 Cal.3d at supra, Superior p. but law enforcement agencies, of the or local possession county prosecutor Corrections, the that operates in the agency possession Department at least a few agency the state it would have taken that prison system. Likely, records them from wherever bring they to locate days Brady’s prison trial in this case was held. were stored to Stanislaus where the County, being Moreover, custodian of records had once the of Corrections’ Department asserted, court, the records in no doubt would have been produced privilege if not or the then by by Brady Corrections Department prosecutor, Code, (See himself. Evid. 1040 for information acquired [privilege §§ confidence], court 1014 As trial privilege].) [psychotherapist-patient motion, noted in on defendant’s assertion of ruling discovery privilege the existence of would have the court to hold a to determine required hearing material in records that would be discoverable Brady’s by any prison (See (1987) 480 U.S. defense. v. Ritchie 39 generally, Pennsylvania [94 by L.Ed.2d 107 S.Ct. to fair trial is right protected 989] [defendant’s court]; confidential information to camera review trial submitting 795]; (1988) Boyette 1532 People Cal.App.3d Cal.Rptr. [247 139]; also v. Reber see People Cal.App.3d P.2d v. Webb 6 Cal.4th 537-538 People Cal.Rptr.2d Kennard, (conc. J.).)2 dis. opn. 779]

Third, was defendant’s only untimely likely discovery request was also result substantial of the trial but the motion delay proceedings, aware,” majority 2The finds fault with the trial court’s comment that “so far as was] [it Brady’s The psychiatric prison privileged witness records included in his file were material. not the majority points privilege may only by privilege, out that a be asserted the holder of the ante, however, remark, 842.) does not (Maj. opn., p. cursory trial court. The trial at court’s much impor- manner that the defense did not attach made in a suggesting The made in orally the in motion was obtaining question. tance to records trial, of defense by of it declaration unaccompanied any midst was the records, was his use of the and the motion not intended counsel explaining Thus, showing of whatsoever. defendant’s by any legal authority supported Court, 10 Cal.3d at (see Hill v. justification” Superior supra, p. “plausible at 817) minimal best. was of need defendant’s failure to make a for compelling showing

Given records, witness trial court understand Brady’s prison prosecution to of those reluctant defendant’s motion records. ably grant discovery not, however, did The court The court foreclose the of discovery. possibility defendant to motion for invited furnish his dis legal authority supporting so, of not to do records. Defendant chose however. covery Brady’s prison circumstances, its Under the of the trial court did not abuse discre totality denied, tion when it defendant’s motion for discovery. without prejudice, 112, 820 P.2d (1991) v. Ashmus 54 Cal.3d (People Cal.Rptr.2d issue, with which In uses an resolving majority analysis discovery the trial whether court majority I The never addresses disagree. explicitly The discovery. its discretion it defendant’s motion for abused when denied holds, however, “no the out there is reasonable probability that majority been if the discovery of case would have different” come [defendant’s] ante, bases 842.) The this p. majority motion had been granted. (Maj. opn., on these assertions: Defendant “extensively impeached” conclusion in other with “evidence of his criminal his involvement Brady crimes, prior history, his records testimony”; psychiatric and the inducements for would because his commit minimally witness have been relevant Brady of before defendant years ment to Patton State occurred four Hospital trial; and (3) to defendant’s the murder him and six before years confessed and its signifi in this case “heard version Brady’s diagnosis the jury (Ibid.) cance,” Al which raised about mental Brady’s stability. questions error, that no I I conclude there was am persuaded though that was harmless. reasons error majority’s any of prosecu- “extensive impeachment” defendant’s majority points with record and witness with criminal Brady Brady’s lengthy tion Instead, question privilege. it appear have been intended a definitive resolution as privilege if merely express a tentative that were attempt to have been an view seems asserted, invited defendant specifically the court would to sustain it. The court required be be above, but, contrary, text legal noted in the points and to the to furnish authorities not to do so. defendant chose prejudice adequately decided majority question can be 3The assumes earlier, not abuse my As view court did its before this court. forth the trial record set that the denial denying discovery motion. But were I to conclude defendant’s discretion to was for his leniency exchange testimony (Brady of he received promise But sentence on a robbery charge). no more than a two-year pending receive he when no doubt anticipated which the prosecutor this impeachment, witness, did destroy Brady’s not to use as a prosecution decided Brady his would have believed so that no reasonable juror credibility completely issue, further an credibility important Because remained Brady’s testimony. affected well have the outcome. may impeachment commitment I that because Brady’s Nor do with the agree majority simply trial by Brady’s to State defendant’s six years, Patton Hospital predated to would relevant records have been necessarily only minimally psychiatric if records at trial. For the psychiatric his defendant’s testimony example, or “make conversations would have revealed a tendency by Brady up” that he not between such reality fantasy, indicated could differentiate old) if (even Brady’s information six would have discredited severely years of murders would have account of defendant’s admission the three and thus records more than relevant. Because minimally Brady’s psychiatric been court, however, not of the were never into were made brought part they do their Accordingly, record on and we therefore not know contents. appeal it about the is sheer for the to reach conclusions speculation majority any effect with information from possible upon impeaching Brady the records. prison psychiatric I been with the that defendant could not have

Finally, disagree majority because, majority’s the trial court’s in the prejudiced by ruling discovery words, “the version heard of his and its Brady’s diagnosis significance.” ante, 842.) When defense counsel (Maj. opn., questioned Brady upon p. cross-examination that received Brady about a evaluation had psychiatric before his from state just release prison, Brady gave following explana- of his of the tion terms understanding “psychopathic personality” “Well, used in evaluation: “schizophrenic paranoid coloring” psycho- that is the dude I am. have of outlaw like pathic persona!ity[,] type type I. win, the law all life and the which can’t fighting my been system, you error, would, Instead, majority, prejudice. I I would unlike the reach the issue of judgment hearing in with trial court vacate remand directions for the conduct have any Brady’s psychiatric to determine whether information from records should chambers any to the denial of provided prejudice defense and whether defendant suffered from the been Ritchie, 40, 59-60, (See Pennsylvania supra, discovery. v. 480 U.S. L.Ed.2d People 989]; Memro 38 Cal.3d 700 P.2d S.Ct. 705-710 [214 Grodin, chambers, (conc. J.).) opn. trial reviewing and dis. If after records 446] during the discovery were to conclude would entitled court that defendant not have been any case that he trial of this or information should have received could not have affected trial, judgment. would If the trial court outcome then the court have to reinstate conclusion, judgment; opposite there no were reach would be reinstatement could, course, charges. defendant be retried on same John to the everyday square I anti-social just and am Anyway, believe me. know, And the Man, I don’t click. you just like yourself, people. type that, I or like something due stress is that under coloring schizophrenic [s/c] to, me or against trying is I that someone thinking frustrated and get keep otherwise, know; Brady’s isn’t there.” really I that something you provoke evaluation of his incoherent description psychiatric and largely self-serving of Brady’s and explanation for the objective professional is no substitute psychiatric have been revealed abnormalities that would mental conclusion that defendant records, thus does not support majority’s discovery of his motion for the trial court’s denial no from suffered prejudice records. of Brady’s psychiatric that he had committed admitted to him that defendant

Brady’s testimony case constituted signif- murder in this and one the three murders attempted outcome of have altered the that might evidence of defendant’s guilt icant this case. At murders in was tried twice for the trial. Defendant defendant’s reach a was unable to trial, testify, jury at which did Brady the first Although Brady’s murder. of murder attempted verdict on the charges the second trial additional evidence presented was not the only testimony defendant’s because it case), exposed the most (this significant it was often a confession court has recognized, As this confession to “ jury. ” the defense.’ which shatters bombshell evidentiary as a kind of ‘operates P.2d Cal.Rptr.2d 5 Cal.4th v. Cahill (People therefore, on the record I cannot conclude 1037].) Unlike the majority, from the trial court’s no defendant suffered prejudice before this court that records. discovery Brady’s psychiatric the motion for denial of II outset, one alleged special in this case the prosecution noted at the

As murder, circumstance, eligible defendant rendering thus that of multiple language in the statutory was phrased the death The allegation penalty. offense more than one been convicted of in this “defendant has proceeding Code, 190.2, (a)(3).) subd. (Pen. or second degree.” of murder in the first § of any alleged on the truth finding law requires jury California expressly Code, 190.4, (a) special subd. (Pen. [“Whenever circumstance. special § the defendant guilty of fact finds are trier circumstances ... alleged murder, finding make a special shall also the trier of first degree offact added.)].) (Italics circumstance.” truth each alleged special trial, it at the guilt phase instructed jury When the trial court for this special with verdict forms to instruct on or refused provide finding regarding made no the jury consequently, circumstance allegation; instruction or no need for The trial court saw the allegation. the truth of “The reasoning: allegation, circumstance forms for special verdict committed that the defendant finding . . have to make special does not. of. . . two the defendant If convict they with circumstances. murder special murder, they’re of the first degree, one of which is murder at least counts of doubt, then, circum- the special a reasonable of those beyond persuaded or finding.” additional further been established without any stances have California law the so holds. The trial court was and wrong, majority the to a jury a in a case right defendant gives capital unquestionably circumstance The federal determination on the truth the special itself of Amendment, Constitution, too, the accused not the Sixth guarantees through a criminal factual of a determination on individual components only jury ac- of the but also a determination on the ultimate question charge, jury cused’s or innocence.4 guilt special- multiple-murder submit the majority 4The asserts that the trial court’s refusal to right allegation jury circumstance case did not violate defendant’s constitutional this trial, jury reasoning of the federal Constitution does apparently to a that the Sixth Amendment under death special findings not to the that must be made California’s apply circumstance ante, 851, 9.) wrong: a

penalty (Maj. opn., p. majority is Denial of defendant’s law. at fn. allegation circumstance does violate right jury special to have a determine the truth of a Sixth Amendment. 622, (1996) recently People I v. Osband 13 Cal.4th 741-742 explained [55 As 26, Kennard, J.): (conc. “Generally, the definition Cal.Rptr.2d opn. 919 P.2d and dis. of 640] (1986) (McMillan Pennsylvania legislative prerogative. of and their elements is a v. crimes 67, legislative that the L.Ed.2d 106 S.Ct. ... If the intent was 477 U.S. 79 [91 [1 equivalent integral of or special capital in California’s scheme be treated as the circumstances offenses, play, Constitution comes into to criminal then the Sixth Amendment of the federal giving right jury falsity allegations. . . . defendants the to have a decide the truth or of such If, hand, legislative circumstances be treated special on the other intent was that the factors, no sentencing apply, for ‘there is Sixth simply as the Sixth Amendment would findings right sentencing, specific on of jury Amendment even where the sentence turns accord, 81]; (McMillan supra, p. Pennsylvania, p. fact.’ v. at L.Ed.2d at 93 [477 U.S.] [91 103, 335, (1991) Sixth People Bacigalupo Cal.Rptr.2d v. 1 820 P.2d 559] [no Cal.4th 147 [2 right jury right jury phase, thus no to a unanimous penalty Amendment trial at the factors].)” finding aggravating mitigating circum special scheme treats a capital I concluded in Osband that because California’s offense, requires integral the Sixth Amendment equivalent stance as the of or to a criminal Osband, allegations. (People any special v. that a determine the existence of circumstance Kennard, (conc. J.).) concluding contrary, p. opn. of In to the supra, 13 Cal.4th at 743 and dis. 738, (1990) Mississippi majority 494 U.S. 745 [108 relies on these decisions: Clemons v. 1, 725, 735-736, (1993) 1441], 6 45 People v. Johnson Cal.4th [23 110 S.Ct. L.Ed.2d 1233, 593, 673]; (1993) Cummings 4 Cal.4th 1313 People [18 v. Cal.Rptr.2d 859 P.2d 386, 796, 1]; (1988) 11 People 45 Cal.3d 411 and footnote Cal.Rptr.2d [247 850 P.2d v. Odle 184]; People Cal.App.3d 573 Cal.Rptr. 754 P.2d v. Moreno 228 misplaced. The reliance is 140]. 736], high page L.Ed.2d at Mississippi, supra, page In Clemons v. U.S. at 745 [108 jury impose the sentence “Any argument requires that a court observed: that the Constitution than jury.” central to our Bill of the idea Rights

“No idea more 641, 681.) The (Amar, Sixth First (1996) 84 Geo. L.J. Amendment Principles soundly a been findings imposition of such sentence has prerequisite death or make the Clemons, Thus, Amendment by prior Court.” under neither the Sixth rejected of this decisions a its death provision requires federal that state structure any other Constitution nor judge “narrowing” or the “selection” performs law so rather than penalty that a (See People penalty. v. necessary imposition are to the of the death that both functions Bacigalupo Cal.Rptr.2d [explaining 862 P.2d 6 Cal.4th 808] the class of “narrowing” pertains legislative places definition that a defendant within to the pertains to whether to eligible penalty, death whereas “selection” the decision persons Clemons, can, Therefore, if parole].) or under a state impose imprisonment death life without Amendment, chooses, statutory whereby, so consistent with the Sixth it create a scheme sentencing. judge jury performs narrowing part rather than a and selection functions as Osband, But, (conc. explained People supra, page opn. as I and dis. 13 Cal.4th Kennard, J.), California has not done so. 1, 45, Johnson, People People supra, v. majority’s As to the reliance on 6 Cal.4th v. Odle, cite, 1233, 1313, People Cummings, supra, analysis, without v. 4 both decisions Cal.4th 411-412, 386, right jury to supra, proposition for the that there is no constitutional 45 Cal.3d Odle, any holding in unnecessary to special on the issue of circumstances. a discussion trial in dictum, right jury a that Amendment to have the case and stated there is no Sixth therefore circumstance, v. citing support in Cabana special elements of a determine the existence of the 716-717, 376, 704, (1986) But Bullock did 474 386 L.Ed.2d 106 S.Ct. 689]. Bullock U.S. [88 allegations death special at all address of circumstance under California’s not the issue law, subject On of the Sixth any support nor Odle’s assertion. penalty provide did it observed, trial, merely in right Supreme United Court Bullock jury Amendment to States 340, (1984) 104 S.Ct. passing, Spaziano 3154] that v. Florida 468 U.S. 447 L.Ed.2d [82 any other “specifically rejected argument Sixth or the court had that the Amendment provision right jury a to a consider provides defendant with the have constitutional Bullock, (Cabana supra, pp. 474 at 385-386 capital of a sentence.” v. U.S. appropriateness [88 715, 689].) Spaziano support in Odie p. no to this court’s dictum L.Ed.2d at 106 S.Ct. lends special right to determine the existence of a jury that there is no Amendment have a Sixth Spaziano a claim alleged penalty law. At issue in circumstance under California’s death (which judge has a make the ultimate by capital a sentenced under Florida law defendant that, cases, decision) be sentencing capital sentencing is one in all should that “the decision 351, Florida, 104 supra, p. p. at 458 at by jury.” (Spaziano a v. 468 U.S. L.Ed.2d [82 made contention, 3154].) holding that Amendment rejected The that “the Sixth high S.Ct. court (Id. 355].) p. explained in sentencing.” p. at As I require jury 464 L.Ed.2d [82 does Kennard, J.), Osband, (conc. People supra, page opn. Cal.4th at and dis. of v. 13 742 however, special penalty on truth of a under death law a determination California’s allegation sentencing not a is decision. circumstance 573, too, Moreno, 564, majority’s People supra, Cal.App.3d is of no assistance to the v. 228 Moreno, no analysis that there is Appeal simply In Court of asserted without conclusion. allegations, jury special of circumstance right Amendment to have a determine the truth Sixth 511, (1990) 110 S.Ct. support 3047]. U.S. L.Ed.2d citing [111 Walton v. 497 639 Arizona law, findings aggravating factors penalty under which involved Arizona’s death Walton scheme) separate to at a (the “narrowing” capital state’s were be made aspect of that Arizona, pp. (Walton p. 645 L.Ed.2d at hearing. supra, U.S. at sentencing 497 [111 522-523, 3047].) Amendment high rejected the assertion that the Sixth 110 S.Ct. court findings. judge those jury rather than a make capital an Arizona defendant have a entitled California, (Walton, p. supra, p.at L.Ed.2d at But in the determination 647 [111 scheme) (the capital special allegation “narrowing” aspect of a of our circumstance existence

877 “to prevent in a criminal case was intended trial right jury constitutional 145, U.S. (Duncan v. Louisiana 391 the Government.” oppression States 499, omitted.) As the United 491, 1444], fn. 88 S.Ct. L.Ed.2d 155 [20 with the right an accused in Duncan: “Providing Court Supreme explained safeguard against him an inestimable of his peers gave be tried by jury biased, or the compliant, and against or overzealous prosecutor corrupt of a judgment the common-sense preferred If the defendant judge. eccentric reaction of the single tutored but less sympathetic to the more perhaps jury this, . reflect a . . trial provisions to have it. Beyond he was judge, reluctance official about the exercise of power—a fundamental decision or to one judge of the citizen liberty over the life and entrust plenary powers accord, 500]; Williams L.Ed.2d at (Id. p. of at p. to a group judges.” S.Ct. L.Ed.2d U.S. v. Florida lies in the obviously interposi essential feature of 1905-1906] [“the aof of the commonsense judgment the accused and his accuser tion between and shared responsi and in the community participation of group laymen, innocence”].) or guilt from that determination group’s that results bility govemment of the fundamental powers organized This allocation of one drawn spe condemnation—to a deliberative body —the of criminal power in a that exercising for the sole power from the cially people purpose case, is an class of judges, criminal rather than to a professional single “reflects government and fundamental feature of our system essential be enforced in which law should ... ‘a about profound judgment way ” Louisiana, 281 508 U.S. at (Sullivan p. v. supra, administered.’ justice Amar, 191, 2078, 2083]; cit. op. at 113 S.Ct. see generally, L.Ed.2d p. [124 677-687; Amar, a Constitution The Bill as Rights 84 Geo. L.J. at supra, pp. of 1131, 1182-1199.) Yale L.J. (1991) 100 the federal Sixth Amendment to Trial as by jury guaranteed by decide whether Constitution more than a encompasses having jury trial, guilt or guilt together with the determination of the defendant’s phase is made at the of Therefore, hearing. a California charge, separate sentencing innocence on the murder not at a the truth of a jury a decide capital defendant is entitled under the Sixth Amendment to have allegation. special circumstance Moreover, entitle a the Sixth Amendment does not majority even if the were correct that circumstance, special jury of a capital California defendant to have a decide the existence capital a allegation jury’s consideration violates removing special a circumstance from the law, statutory right thereby denies the defendant jury California defendant’s to trial under Constitution, process Amendment to the federal due of law under the Fourteenth ante, jury 850.) right to p. of a criminal defendant’s majority (Maj. opn., concedes. at Denial se, per is reversible is “structural error” trial violation of the federal Constitution right jury to right that is is the Sixth Amendment whether the federal constitutional violated right process of law. trial or the Fourteenth Amendment to due jury’s consideration Finally, removing special allegation a circumstance from the even if statutory right, constituting merely the denial of any would not violate federal constitutional trial, “miscarriage justice” establishing a of right jury it be a “structural defect” would still Const., VI, 13) (Cal. art. and therefore law error standard under our state harmless § Cahill, 478, 501-502.) (See People supra, per reversible se. v. 5 Cal.4th 878 charge. of a criminal several elements each of proven has

prosecution base, trial, decide the ultimate is the to have right jury at right jury Gaudin, (United supra, States v. innocence. defendant’s or guilt of a question _ This, then, 451-452, 2310].) 115 S.Ct. at L.Ed.2d at pp. 515 U.S. p. [132 of crimi the Sixth Amendment: right of “[the] was the historical guarantee on every or innocence that the decide jury guilt defendants to demand nal Gaudin, at U.S. at L.Ed.2d (United p. 515 supra, p_[132 States v. issue.” 450, _, 115 S.Ct. at 452, 2310]; 2 L.Ed.2d at id. at fn. p. p. 115 S.Ct. [132 of ultimate is indispensable” (orig determination guilt jury’s p. 2314] [“the Louisiana, accord, U.S. at italics)]; supra, p. [124 Sullivan v. inal 187-188, element” of “most 113 S.Ct. important at [The L.Ed.2d pp. 2078] than the reach judge, have the rather jury, trial is “the right right ” added.)].) (Italics finding ‘guilt.' the requisite framing at the time of [of court has high explained, “[j]uries As ‘factual findings,’ forced to mere could not be produce federal Constitution] the defendant’s verdict pronouncing but were entitled to deliver a general Gaudin, 515 U.S. at (United p._[132 v. supra, or innocence.” States guilt 2310], A History Special Morgan, at 115 S.Ct. citing L.Ed.2d p. Brief 575, 591; Clement- (1922) 32 Yale. L.J. and Special Interrogatories Verdicts son, (1905); and Alschuler Juries Verdicts and Special Findings by Special Deiss, States in the United Jury A the Criminal History & Brief is 912-913.) responsibility constitutional jury’s U.Chi. L.Rev. “[T]he facts, the law to those but to to determine apply merely facts Gaudin, (United States or innocence.” guilt draw the ultimate conclusion of _ 2310], italics at 115 S.Ct. L.Ed.2d p. supra,_U.S. p. the ultimate verdict added.) reaches When a rather than judge (Sullivan v. the defendant guilty.’” “‘the entity judge[s] guilty, wrong Louisiana, 113 S.Ct. L.Ed.2d at p. 508 U.S. at supra, p. more or innocence aby jury comprises determination of guilt The ultimate to reach that determina- decisions a makes the sum of the factual jury than verdicts deliver of having juries general In accord with the principle tion. innocence, resisted proce- courts have a defendant’s or guilt pronouncing criminal to a piecemeal jury, case are issues in a presented dures under which or innocence. issue of guilt trial court to decide the ultimate it to the leaving 25-26; 24, 1989) F.2d (1st Cir. 868 States v. Collamore (See United e.g., 181; 165, v. United States (1st 1969) 416 F.2d v. Cir. Spock United States 272, 276; Birdsong v. 1957) United States (S.D.N.Y. F.Supp. 149 Ogull devices 1993) 482.) These so-called (11th trial-splitting Cir. 982 F.2d charge of a criminal factual components include “bifurcation” (presenting or defendant’s guilt on the such that no single jury passes different juries series of to answer a innocence) verdicts” the (asking jury and “special

879 (See the elements crime). generally, corresponding questions Richards, Justice: Devices Trial-Splitting How Granholm & Defeat Bifurcated 505.) 26 U.Tol.L.Rev. Jury’s the Role effect, Here, a verdict. In like operated ruling, special the trial court’s on the “guilt” multiple- to the the issue defendant’s not submitting the the court trial usurped jury’s murder allegation, special-circumstance the verdict on ultimate constitutional return general historic power (here, the of a criminal falsity charge special of the truth or question for the death that rendered defendant allegation eligible penal- circumstance court, effect, In circumstance. The made the the finding special ty). short, (Sullivan v. Loui- guilty.” “the . . . defendant wrong judge[d] entity siana, at 113 S.Ct. at p. p. 508 U.S. at L.Ed.2d supra, p. [124 2082].) the erred in not submitting concludes that trial court

Although majority the truth of the to the it also concludes jury, circumstance special allegation the error-to be a that the error was harmless. The does not consider majority trial, which defect” framework of under “structural affecting very 302, 330-331, v. Fulminante 499 U.S. L.Ed.2d 309 [113 Arizona reversal, 1246], thus with S.Ct. would automatic require dispensing view, however, In need evaluate the error was structural prejudice. my defect the fundamental fairness of trial. affecting defendant’s Fulminante,

In two kinds United States Court Supreme distinguished trials, “trial of errors in criminal “structural errors.” The court defects” within defined a structural defect as an error the framework which “affecting trial rather than an error in the trial itself.” proceeds, simply process Fulminante, (Arizona at at 499 U.S. L.Ed.2d supra, p. p. se; words, Such defects are reversible in other automatic they per require error,” hand, reversal. Mere “trial on the other is reversible if its only (Id. at occurrence has the defendant. L.Ed.2d prejudiced pp. 329-330, 331-332].) pp. to trial violation a criminal defendant’s

Indisputably, right by jury itself, or trial thus very affects framework structure requiring reversal. Court stated: automatic As the United State has Supreme “[T]he a ‘basic effects are unmea guarantee whose protectio[n]’ precise [is] surable, but without which a criminal trial cannot serve its function. reliably are .... of that with right, deprivation consequences [Citation.] indeterminate, necessarily unquantifiable unquestionably qualifies ” Louisiana, (Sullivan ‘structural error.’ v. 508 at 281-282 U.S. supra, pp. 191, 2078].) that L.Ed.2d at 113 S.Ct. This court too has affirmed p. [124 a right under the California a violation of the trial is jury Constitution of of that is of the “miscarriage justice” strength reversible irrespective Cahill, 501.) at evidence at trial. v. 5 Cal.4th supra, p. presented (People 880

To reach its that conclusion the trial court’s decision not to submit the harmless, circumstance to the was multiple-murder special jury majority which, words, relies on cases in in the factual issue majority’s posed “[t]he the omitted instruction was resolved by necessarily to defendant adversely ante, 852, under other instructions.” at given properly (Maj. opn., p. citing 1, 593, v. Johnson 6 Cal.4th 45 People P.2d 859 Cal.Rptr.2d [23 673] 703, v. Sedeno 10 Cal.3d People 518 P.2d [112 913].) error, This is not a case of instructional however.5 Not simply only did the trial court fail to instruct the on the jury multiple-murder special circumstance, it refused to submit the circumstance to the special allegation decision. jury verdict that was never in fact hypothesize guilty “[T]o for rendered—no matter how that verdict inescapable findings support Louisiana, be— . . . (Sullivan might guarantee.” v. jury-trial violate[s] 508 U.S. at supra, L.Ed.2d at 113 S.Ct. This p. p. [124 was, above, of denial defendant’s to trial right by for reasons set forth jury error,” “structural and thus reversible se. per

Conclusion I would reverse the circumstance and the special judgment finding death.

MOSK, I dissent. J.

It is that the court erred when it denied defendant’s motion plain superior for file with the discovery Gary Brady’s Corrections. Department had testified that defendant had Brady just confessed to the three murders with which he was court treated the informa- charged. superior wrongly tion in Brady’s correctional file as it was shielded an absolute though under California privilege law—even while it declined to review or even however, obtain its contents. such Any would have been privilege, required yield, example, defendant’s under the due clause of right process the Fourteenth Amendment to the United States Constitution to disclosure by state of information that was any favorable to his and material to position or United States v. guilt punishment (e.g., (1985) 473 U.S. Bagley 481, 488-489, L.Ed.2d 3375]), 105 S.Ct. such information as including (id. could be 490]). used to L.Ed.2d at impeach Brady p. p. however, What is not is whether the court’s error is plain, superior reversible. We can that it readily was was conjecture Brady prejudicial. Osband, People supra, regard, distinguishable 5In this this case is from 13 Cal.4th (conc. Kennard, J.), opn. 746-747 and dis. in which I concluded that the instructional error There, involving special allegation circumstance was harmless. the trial court submitted to case, or falsity special alleged inaccurately truth circumstance but error, therefore, instructed special on the elements of that circumstance. The “instructional” rather than “structural.” trial, the obtained at this People his testimony witness. With surely a crucial original his at the testimony Without and of death. a sentence convictions members trial, seven of the twelve with hung jury, had secured a defendant Nevertheless, determine the question we cannot favor of acquittal. voting assert, to as the majority, It do basis. is correct of on any principled prejudice that the it is also to state right demonstrate harm. But that defendant cannot there is no on ground is this: the reason cannot show People opposite. no effort to court made Because the superior which either can do otherwise. file, we have in the record on appeal. do not it obtain correctional Brady’s information, result, should have been if any, a we cannot know what As In of spite had effect on the outcome. or whether it would have any disclosed the be deemed not reversible if of error could our lack knowledge, perhaps so that his testi- we conclude that Brady thoroughly impeached could was rendered devoid whatever. We cannot so conclude. mony weight of any Therefore, in the was attacked. But was not Brady testimony destroyed. defendant, it must be face of our lack of which emphasized, knowledge—for we is to the that can reasonably not blame—I believe that only disposition the court order to to superior is vacate the remand cause judgment on the discovery with directions to conduct further required proceedings motion.1 2,1996. Mosk, J., was denied October rehearing petition

Appellant’s Kennard, J., be granted. were of the that the should petition opinion may by superior 1 have committed Agree majority with the that whatever error the court allegations, declining multiple-murder special-circumstance instruct to my To findings, declining provide its is reversible. it with forms on which indicate mind, question superior jury’s truth court did not remove from the consideration Rather, effectively presented the multiple-murder allegations. of the it special-circumstance Moreover, charges. through did not lack a issue its on the three murder it instructions Rather, guilty form of multiple-murder special-circumstance finding. it obtained one however, proceeds it disagree majority, on the I with insofar as verdicts three murders. defect” is reversible superior address whether the court’s “error” is a so-called “structural per se under the If a mere instructional misdefinition United States Constitution. court’s question a “structural prosecution’s proof beyond a reasonable doubt on a is burden (Sullivan v. Louisiana 281-282 L.Ed.2d defect”—and it is 508 U.S. follow, fortiori, 190-191, 2078])—it any that a court’s omission appears 113 S.Ct. (see Carella U.S. at all on issue is the same instruction California Scalia, 218, 223-225, (conc. J.)). opn. S.Ct. 268-270 L.Ed.2d 2419]

Case Details

Case Name: People v. Marshall

Court Name: California Supreme Court

Date Published: Aug 7, 1996

Citation: 919 P.2d 1280

Docket Number: S004557. Crim. 23189

Court Abbreviation: Cal.