People v. Medina

Nov. S012644. [No. 1995.] PEOPLE, Plaintiff and

THE Respondent, MEDINA, JR.,

TEOFILO Defendant and Appellant.

Counsel Laethem, Defender, Fern M. State Public under by Supreme appointment Defender, Court, C. State Public Virginia Acting Chief Lindsay, Deputy Morse, Kiebert, Victor J. Rose and Irene Public Defend- Leslie State Deputy ers, for Defendant and Appellant. Williamson, General,

Daniel E. Chief Assistant Lungren, Attorney George General, Schons, General, Frederick W. Attorney Attorney Assistant Gary Millar, Jr., Wilkens, R. Wood and Attorneys William M. D. Holly Deputy General, for Plaintiff and Respondent.

Opinion Medina, Jr., LUCAS, C. J. Teofilo from a judgment appeals Defendant the Riverside Court death following County Superior imposing penalty 187; Code, (Pen. all of first murder further statutory his conviction degree § indicated), (§211), are to this code unless otherwise robbery references 12022.5), 459), two (§ and firearm use (§ personal accompanied burglary 190.2, (a)(17)(i)) and (§ circumstance murder subd. findings: robbery special (id., (a)(17)(vii)). murder subd. burglary trial on the criminal was held to determine hearing

Prior to charges, trial, to stand and a determined that defendant jury defendant’s competency A found defendant as guilty charged was competent. separate returned a verdict of death. The trial court denied defendant’s ultimately 190.4, (e)), the death motion to the sentence subd. modify (§ imposed murder, and execution of an 12-year for the stayed aggregate penalty Defendant’s is automatic. (§ sentence for the other offenses. appeal (b).) will will affirm the in its judgment entirety. subd. As we appear,

I. Facts 849, P.2d In v. Medina 51 Cal.3d 870 (hereafter I), we affirmed a of death entered judgment by Medina 1282] three counts Court defendant’s conviction of Orange County Superior upon affirmed the United States of first murder. Our was degree judgment L.Ed.2d Court in Medina v. 505 U.S. 437 Supreme California decision, In our I we observed that 112 S.Ct. Medina “[f]rom 2572]. 7, 1984, October 13 to November defendant a crime engaged spree, stations, drive-in a a two a from stealing gun pawnshop, holding up gas market, (Hora- and a three of these establishments dairy, killing employees Ariza, Metal, Rea), to rob a fourth cio and Victor Douglas attempting Police and (Moon Yoon), and at two citizens employee shooting (Cynthia Barrow) (51 Cal.3d at Daniel who to follow his car.” attempted getaway 879.) October

The offenses occurred in Riverside on or about County present I, 18, 1984, crime described in Medina course same during spree and and the murder another station and involving yet gas burglary robbery, Martin). summarize of an attendant We the facts underlying (Craig briefly these offenses. 18, 1984,

On at an Arco October Martin was shift Craig working night found station Corona. At 1:10 a.m. on October customer gas A was and open Martin’s on the floor and called cash box body lying police. An $163 for was empty missing. some except pennies. Approximately shot, close Shell range. confirmed that Martin had been at autopsy probably from a .22-caliber bullet were found fragments nearby. murder, introduced evidence the to the Martin

To link defendant Metal, Ariza was referred to above. of Ariza and murders uncharged victim Martin’s a few hours before of October killed on the evening station, Ariza, was shot in another Arco gas at working was discovered. body shoulder, cash drawer was empty; close The range. at the head and probably Maverick resem- saw a green A witness damaged $100 was missing. around before Ariza’s from the station shortly car away defendant’s bling speed defendant, who resembled The driver of the Maverick was discovered. body a sack of October carrying home on the afternoon returned to his sister’s dimes, and nickels. filled with quarters, 4 at the of November shot and killed in the afternoon

Victim Metal was Maverick green he was A “battered” where drive-through dairy employed. in front of the with its motor running, was seen and unoccupied, parked shot at was discovered. He too had been before Metal’s shortly body dairy head. The cash a “contact” wound to the gunshot close range, suffering Perrier bottle was $68 was A missing. empty register empty partly with “100 certainty found at the scene. A forensic testified percent” expert one of defendant’s that a found on the bottle matched prints. fingerprint sister, defendant and others saw On October Sylvia Ayala, $300). found a loaded with a amount of cash The sister large (perhaps in the in defendant’s kit. She handgun shaving eventually placed gun car, arrest. Defendant had trunk of her where it was found after defendant’s on 13. Ballistics testified stolen from a October gun shop experts pawn that in the marks made by there were some “dissimilarities” although that defendant’s nonetheless determined with “absolute gun, they certainty” Martin, Ariza, from bullet from the bodies of and Metal were fired fragments this gun. station,

While defendant to the an officer asked being transported police about “the Corona me to murder.” Defendant “What do want you responded, truth, After told “If I could to tell the defendant say?” being replied, only but I can’t cry, I couldn’t even when mother died.” cry. cry my defendant the issue of his Although unsuccessfully relitigate attempted (he to stand trial had been found a competence jury), competent separate stated, and, he no other evidence at the as presented guilt previously phase found him jury as guilty charged. At the to consider the guilt asked penalty phase, prosecution jury evidence and also evidence of defendant’s murder of Victor phase presented Rea, evidence been that had been excluded from the Rea had guilt phase. 5, 1984,

shot at close on November at a service Ana range station Santa taken, $166 where he and was in cash had been employed. Approximately fired bullet matched those from defendant’s fragments gun. Additionally, introduced evidence of numerous incidents of defendant’s prosecution prior civilians, violent assaults on and a activity, including inmates prison guards, offense, forcible sex and several convictions in California and Arizona prior a firearm into an inhabited assault (namely, discharging building, burglary, with acts). and lewd and lascivious deadly weapon, rape, kidnapping, sister,

The defense introduced evidence from mitigating defendant’s other McIntosh, Irene his childhood and regarding family background. Competency

II. Phase Issues We first review the facts defendant’s con- underlying competency phase tentions. In October a few months after the was filed complaint offenses, defendant with the the court charging initiated present proceedings to determine 1368.) to stand trial. Court- competency § their and a was selected to appointed experts presented try reports, issue. competency Kania,

Dr. a defense testified that defendant suffered from a expert, disorder, treatment, psychotic that he needed that he probably schizophrenia, was not that he malingering, was unable to about provide background him, himself and could not understand the and legal confronting proceedings that he was to stand trial. incompetent Oshrin,

Dr. defendant was prosecution opined although expert, ill to some he was could probably mentally degree, understand malingering, Rath, the legal and could with counsel. Dr. another proceedings cooperate prosecution concluded that defendant expert, was competent, malinger- unable, and was ing, not with counsel. Dr. merely unwilling, cooperate Sharma, a third found defendant prosecution expert, competent probably All three malingering. prosecution believed that defendant “overdid” experts or his unduly exaggerated mental illness his interviews with supposed during them. 16,1988,

On March the found defendant was to stand trial. jury competent Thereafter, 13, 1988, on an information filed the offenses May charging and, 16, 1988, named in the previously on defendant complaint May pleaded not to these guilty charges. 6, 1989, defendant,

On January conduct the court following disruptive again suspended and proceedings appointed regarding experts report filed few months after these experts On June defendant’s competency. terminated and ordered that the court competency proceedings their reports, chains and irons leg during trial restrained with waist defendant proceed on a new commenced Selection of jury the court remaining proceedings. on 1989. and trial on issues guilt began August July Phase During Competency A. Prosecutorial Misconduct defendant, and “inflammatory the introduced According prosecutor (1) matters into the hearing, including portraying irrelevant” competency criminal to his crimes and prior defendant as a dangerous by referring prior sentence, and (2) defendant could avoid punishment possi- death suggesting found inform- even from confinement if he were incompetent, bly escape and that another had found defendant sane the ing competency jury refer- the defense cross-examining expert by and competent, improperly and other materials. As will no prejudi- to inadmissible studies ring appear, cial misconduct occurred.

1. Prior and Convictions Offenses the introduced information re

Defendant that prosecutor complains offenses under the garding guise questioning expert prior Thus, the for their on cross-examination witnesses bases regarding opinions. Kania, of Dr. asked if the witness was aware that defendant prosecutor felonies, had been convicted of 25 3 counts of murder with including special he was circumstances. asked Dr. Oshrin whether Similarly, prosecutor felonies, aware of defendant’s and in his summation the “numerous” prose cutor referred committed.” to “all the crimes has generally [defendant] voir dire examination of

Additionally, during competency phase jurors, sentence, referred to defendant’s death some prosecutor asking previous informa- whether would be “disturbed” to learn such prospective jurors they tion. The reinforced the his point during questioning various that referred to it in his summation experts, again by suggesting defendant, death,” under “three had a motive to sentences being separate “fake a mental illness.”

Defendant asserts during disclosures prosecutor’s foregoing constituted misconduct competency tainting jury’s phase prejudicial verdict irrelevant and information defend- by eliciting regarding inflammatory ant’s crimes. Defendant the disclosures have minimized prior may urges verdict, sense of for its Caldwell jury’s citing responsibility competency 231, (1985) (Cald- S.Ct. Mississippi 472 U.S. 320 L.Ed.2d 105 [86 2633] Caldwell, however, well). involves considerations under the sentencing 726 Constitution, and neither it nor United States Amendment to the

Eighth 1, 2004], 114 S.Ct. L.Ed.2d (1994)_U.S._[129 Oklahoma Romano v. General, (as which to competency proceedings, the Attorney applies cited by (1995) 10 Cal.4th noted) Stanley in nature.” (People are “civil we recently 543, 481], omitted.) 764, P.2d citations 897 Cal.Rptr.2d [42 formed part death sentence prior regarding The information was, It on defendant’s competency. opinions the basis of experts’ defendant’s trial therefore, Additionally, relevant and admitted. properly or disclosures statements any foregoing neither objected counsel Defendant to cure harm. nor an admonition sought the prosecutor, (1993) Montiel (See, his for appeal. e.g., waived thereby objections 705, 1277]; 877, v. Proctor Cal.Rptr.2d 5 Cal.4th 914 [21 340, 1100], and cases P.2d (1992) 4 Cal.4th Cal.Rptr.2d cited; I, 895.) Cal.3d at Medina pp. because the should be excused (1) the omission

Defendant contends to the an admonition that could not be cured by caused prejudice misconduct to “control” the had a sua duty the trial court sponte jury, constituted failure to object an counsel’s without awaiting objection, inadequate representation. I, in Medina where were rejected last of defendant’s points

The first and misconduct, not “We need stating: a claim of prosecutorial we denied similar comment on the exceeded fair remarks decide whether prosecutor’s trial, the foregoing failed to object at because defendant evidence elicited admonition, deemed to have and must be or an appropriate comments seek the miscon- defendant suggests his Although waived objection. [Citations.] been would have that an admonition duct was so and offensive pervasive at the the court [citation], and admonition by useless a timely objection it became have aggressiveness outset might tempered prosecutor’s before so, on defendant it reasonable to place so extreme. That seems being 895.) (51 Cal.3d at p. burden of making timely objection.” failure to object that counsel’s “We likewise defendant’s assertion reject relief on incompe- . . . obtain reflected his have may incompetence. [T]o that his reasonable must show a probability tent counsel defendant grounds, (Strickland v. Washington [1984] omission affected the verdict. counsel’s 697-698, 2052].) We have no 104 S.Ct. 466 U.S. L.Ed.2d

727 I, (Medina sound basis for such a conclusion here.” 51 reaching supra, 895; 935, (1989) Cal.3d at see 48 also Sheldon Cal.3d 951 p. People [258 242, 771 P.2d or evidence Cal.Rptr. object argument 1330] [failure (1987) seldom establishes counsel’s v. Ghent People 43 incompetence]; 739, 82, [same].) Cal.3d 772 739 P.2d [239 1250] What we I said Medina with force in this case. applies Defense equal counsel’s failure to bars claim of misconduct on Defend- object any appeal. cites ant no view that his his failure to apposite authority supporting object should be excused because it concerned errors supposed “funda- affecting concerns,” mental due such as the determination process of his competence event, I, In stand trial. as in it any Medina is not that reasonably probable information the defendant’s crimes or regarding convictions would prior have affected the narrow jury’s decision as to his competence to stand trial.

As for the trial court’s sua supposed to control the sponte obligation submission of evidence prosecutor’s (see 1044), and argument we have § confirmed that recently trial court . . no . has sua “[t]he sponte duty exclude evidence or to misconduct.” remedy v. Freeman (People 450, Cal.4th 888]; 882 P.2d Cal.Rptr.2d A.L.R.5th accord, Montiel, 918.) Cal.4th at As we supra, stated in v. Visciotti 2 Cal.4th 388], Cal.Rptr.2d we do not “[b]ecause trial court to expect and correct recognize all or possible arguable [citations], misconduct on its own motion defendant bears the to seek an admonition if he responsibility believes the prosecutor has comment, overstepped bounds of or proper argument, inquiry.”

Even if we claim, reached the merits of defendant’s misconduct we would find no basis for I, relief. We rejected similar claim in Medina where supra, the prosecutor evidence presented and argument regarding defendant’s prior crimes and convictions during in that competency phase case. As we stated, have reviewed the “[w]e record and find no misconduct. The prose cutor simply outlined the competency and the hearing testimony facts on based, which that testimony including occasional references to defend ant’s acts prior and convictions. his Throughout argument, to the explained evidence, jurors his comments were not that the sole issue then before them was defendant’s and not his competence guilt any crimes, and that evidence of such any crimes was introduced for the sole purpose determining issue and not to competency show that defendant was ‘a bad guy.’ The trial court instructed the similarly that the FU prosecutor’s evidence, comments were not and that any evidence introduced for a limited purpose, exhibits including references to defend containing record, ant’s criminal prior should be considered for that only purpose.” I, (Medina 51 Cal. 888.) 3d at p.

Similar admonitions and instructions were in the given case. We present that, I, conclude as in Medina no misconduct prejudicial occurred here. 2. to Possible Escape Reference court, the trial the

Although sustained a during competency phase, defense to voir objection dire the defend questions by prosecutor regarding ant’s avoidance of possible criminal if he were charges found incompetent, the while prosecutor, defense cross-examining included some experts, ques tions for emphasizing any hospitalization would be free incompetence of “custodial” conditions. At one observed point, prosecutor that defendant had from a previously attempted state escape Arizona. hospital Defendant contends that the prosecutor’s statements constituted miscon (See, duct. Babbitt 45 Cal.3d e.g., Cal.Rptr. 69, 755 P.2d insane, to tell that if defendant is found [improper 253] he free]; will be set cf. Shannon (1994)_U.S__,__-_[129 v. United States 459, 466-467, L.Ed.2d 114 S.Ct. [dictum].) But defendant failed to 2419] and, to the remarks object foregoing was waived for accordingly, point I, (Medina event, appeal. supra, 895-896.) Cal.3d at In we have pp. any reviewed the record and the remarks at issue were not so as to aggravated constitute prejudicial misconduct. Neither the cross-examina prosecutor’s tion nor arguments his strongly or that a of expressed implied finding would a risk of incompetence pose possible escape.

3. to Previous Finding Competency Reference of The Rath, prosecutor, of during Dr. referred to the questioning fact that defendant had been found to stand trial in competent Orange County. Defendant’s Orange trial occurred County almost two to trial in years prior observes, case. As present defendant of prior finding “does competence not prove at a competence later time." v. Samuel significantly (People 489, 497, 29 Cal.3d fn. 4 485].) Defendant, however, and, made no to the objection remark prosecutor’s he I, waived the accordingly, (Medina for point appeal. Cal.3d at Moreover, 895-896.) pp. it is not likely jury’s verdict was competency affected the disclosure by that defendant had been some adjudged competent 20 months earlier.

4. Cross-examination Regarding Inadmissible Studies Kania, his During cross-examination of Dr. prosecutor attempted challenge witness’s of diagnosis schizophrenia incompetence by Gastanok, whether “the Taylor, he was aware of done Drs. asking study mistaken Dr. involving diagnoses schizophrenia. and Abrams” frequent The Kania was unaware this described various similar study. prosecutor studies, with which Dr. now one Kania familiar. Defendant including effect, committed by, contends misconduct “testifying” studies, the and results of these none of which had been regarding content into or on admitted evidence relied Dr. Kania in his by preparing diagnosis. Visciotti, (See People 2 Cal.4th at a supra, [involving substantially claim].) similar But defendant failed the conduct. object prosecutor’s Visciotti, we noted in an “[cjlearly, As admonition to the and to prosecutor the would have cured the (Ibid., from conduct.” jury any prejudice improper omitted.) fn.

Defendant also the complains that cross-examination prosecutor’s ques- included tions references to the of Jack ability certain actors Nicholson (e.g., in movie One (United 1975)) the Artists Flew Over the Cuckoo’s Nest the no depict realistically symptoms schizophrenia. Again, objection made, merits, was no admonition On the the seem sought. legiti- questions mate, aimed a being at in manner understood showing readily by lay jurors, Moreover, that mental can be illness even feigned. misconduct assuming occurred, it is not the reasonably probable competency jury influenced by references to screen prosecution’s of schizophrenia. depictions Lay

B. Prosecution Testimony Experts

Defendant contends that two prosecution experts expressed improper lay Rath, his At opinions regarding character. one in his Dr. point testimony, a clinical offered his view psychologist, that defendant was “street wise.” Defendant that the suggests have on jury may relied such characterization concluding defendant was feigning mental illness. Dr. Sharma Similarly, offered observation that defendant had a “much shorter fuse than the average person.” Defendant speculates that the have relied this jury may on testimony that he deciding should stand rather be trial than hospitalized. No was made to objection either comment.

Although defendant claims the im- foregoing observations constituted Code, lay (see proper opinion Evid. (b)) subd. which impugned § (see id., defendant’s character (a)), subd. defendant’s failure to § (See I, bars object the claim. Medina 895-896.) 51 Cal.3d at On supra, pp. merits, the testimony seems unobjectionable. are Certainly, experts entitled or express their an explain opinions in informal manner easily Moreover, understood by it jury. is not reasonably probable descrip- tions of defendant as “street wise” and unduly “short-fused” influenced in its competency decision.

C. Shackling Defendant contends the court ordered him shackled

Defendant improperly of trial. The record shows that defendant was during competency phase when he arrived in court to the of voir dire. shackled commencement prior The recommended to the court that defendant remain shackled. He that defendant had been shackled his entire trial in during explained I, 897-898), Medina 51 Cal.3d at Orange County pp. following defendant, him “several outbursts” counsel table “including picking up and it across the room where it landed at the base of the judge’s throwing bench,” a court to the nearly striking Additionally, reporter. according defendant had both a number of attempted prosecutor, accomplished confined, and had “acted out in a fashion” while violent escapes, “destroy several and cells. The also noted that defendant ing” jail prison prosecutor counts, had been convicted of 25 3 murders. felony including client, of his but he neither Defense counsel objected shackling to, contested, factual asser- nor objected any prosecutor’s foregoing that, months, tions. Counsel stressed defendant merely during past eight incident, in without had made several court Riverside County appearances and had caused no in for to kill himself jail by problems except attempting his own throat. cutting that,

The court ruled based on the nature of the and current past charges, conduct, and on defendant’s violent he and should remain past disruptive shackled. Defendant now contends the court abused its discretion order- by (1) (2) “without ing with- shackling adequate evidentiary support,” out “less drastic and intrusive of court- considering maintaining less means” room security. I, 897,

In Medina 51 Cal.3d at we reiterated the rules general p. claims of authorities have governing shackling: improper applicable “[T]he characterized as a ‘last resort’ to where a need shackling be used manifest therefor (See arises and no lesser measures would Illinois v. Allen suffice. 337, 353, (1970) 358-359, 1057]; 397 U.S. 343-344 L.Ed.2d 90 S.Ct. [25 1222, 849, (1986) v. 42 People Allen Cal.3d 1261-1265 729 Cal.Rptr. [232 115]; 282, 618, (1976) P.2d v. Duran People 16 Cal.3d 290 Cal.Rptr. [127 1322, 1].) [C[Q 545 P.2d 90 A.L.R.3d . . . cases of this court have [R]ecent in similar situations upheld shackling involving defendants who have a prior record of violence or who have violent behavior the courtroom. displayed Sheldon[, 935, v. 48 People supra,] Cal.3d (E.g., 945-946 Cal.Rptr. [258 242, 1330]; 408, 771 P.2d (1985) v. Hamilton 41 Cal.3d 423-424 People 902, 981].)” 710 P.2d Cal.Rptr. [221

731 The decision to shackle a defendant “cannot be on successfully challenged review on a of a manifest abuse of except showing discretion.” (People 282, 293, 618, (1976) 1322, Duran 16 Cal.3d fn. 12 545 P.2d Cal.Rptr. [127 1].) A.L.R.3d No abuse of discretion is here. apparent Defendant’s that there was suggestion for inadequate evidentiary support him is shackling frivolous uncontested light statement prosecutor’s cataloguing violent conduct in and out of the prior courtroom. matter, The court was not to hold a formal obliged on the evidentiary hearing but could base its determination on factual information properly brought (Cf. 618, its attention. v. Cox 53 Cal.3d 692, innuendo,” P.2d base order on “rumor and shackling 351] [error defense counsel’s including reference to a vague possible escape attempt].) The fact, was an officer of the court whose representations defendant, made without or rebuttal objection could sustain the properly court’s ruling. Clark 3 Cal.4th Cal.Rptr.2d 561]; Cal.Jur.3d, (rev.) Pt. 2 District and Municipal at Attorneys, cited.) and cases §

Defendant also contends the court erred in less failing intrusive explore alternatives to such as the use of shackling, “strategically placed guards.” But the prosecutor’s recital of defendant’s unshackled outburst in an Orange courtroom, County described, previously strongly the trial supports court’s discretionary decision to shackle defendant in (We the present proceedings. note that events subsequent indicate the court’s ruling sound. On June 19, 1989, commenced, defendant, before trial shortly while shackled and surrounded four by nonetheless deputies, to turn over the counsel managed table.)

Defendant next contends that the court erred in (1) to failing assure that his shackles would not be visible to the jury, and instruct the sua jury that it sponte should not consider defendant’s restraints or his prison clothing in the issue deciding of his competence. the Although record is silent on the question, defendant assumes from the nature of the restraints used to confine him that they were at least partly visible to the jury. rule,

As a general shackles and other restraints should be “as unob trusive as possible.” Duran, v. (People supra, 291.) 16 Cal.3d at On p. the hand, other unless close, the guilt is question allowing guilt phase jury view a briefly shackled defendant is deemed ordinarily error. nonprejudicial v. People Tuilaepa (1992) 569, 4 Cal.4th 382, 583-584 Cal.Rptr.2d 1142]; 842 P.2d Sheldon, v. 946; supra, Cal.3d at v. p. Duran, supra, Cal.3d at 295-296.) fn. pp. if the defendant’s restraints have been viewed

Similarly, by jury, should instruct the not to consider the fact that jury court restraints ordinarily Duran, in defendant’s determining have been employed guilt. (People 291-292.) 16 Cal.3d at But no sua instruction is if supra, pp. sponte required the restraints are not visible Livaditis Cal.4th by jury. (People Moreover, 297].) failure to such give Cal.Rptr.2d an sua be deemed if the is instruction harmless omission may sponte other substantial errors and the issue is not by closely unaccompanied guilt I, 898.) (Medina contested. 51 Cal.3d at Here, the was not concerned with the but with issue jury guilt, defendant’s to stand trial. Defendant’s that the competence suggestion jury, restraints, viewed his have been induced to find' him having may probably seems We from cannot assume a competent illogical unduly speculative. Moreover, silent record that the viewed defendant’s restraints. even jury otherwise, we doubt the factual of defendant’s assuming jury’s finding to stand trial was influenced those restraints. Ac competence viewing we conclude that defendant was not either cordingly, prejudiced by permit to view defendant’s restraints or ting jury failing give cautionary instruction.

As for admonishing ignore clothing prison issue, the record discloses that defendant voluntar- deciding competence declined the court’s offer to these ily civilian clothes. Under appear circumstances, defendant have had a reason tactical for may wearing prison attire, and the court cannot be faulted for the matter sua raise failing sponte.

D. Use Medication Antipsychotic

Defendant (Thorazine) observes that he was medicine given antipsychotic trial, the during of at a time when various were competency phase experts him. the of the examining Immediately following jury’s finding competence, discontinued, medicine was because he was to take it. Jail partly refusing indicate records that an medicine other than Thorazine was antipsychotic thereafter to defendant. These records recite that defendant became given Thorazine, “more he once a agitated” taking exhibiting stopped “psychotic obsession” with certain and consent forms to him for given signature, appearing “paranoid suspicious.” trial, the and several months before the

Following competency guilt phase commenced, counsel, issue, defense without in- the Thorazine mentioning formed the court that his client was not court with him. The communicating and, (see ordered further related as in II.E.1. competence reports part post, ), this Drs. Kania and Rath found that remained page defendant to competent stand trial.

Defendant now asserts that his was determined competence initially Thorazine, while he was under the “influence” of and that in “nothing the record” indicates the Thorazine treatment was resumed or during guilt of trial. Defendant finds it that the new medicine penalty phases “unlikely" rendered him trial. stand He that these circumstances competent suggests “undermine reliability” jury’s guilt, and competency, penalty in verdicts this case. situation, in

As stated a recent case a similar “a involving defendant is ‘if, as a mentally incompetent result mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal or to assist counsel in the proceedings conduct of a defense ain rational manner.’ . . (§ added.) italics . substantial evidence was raised [N]o he was unable to indicating understand the nature or to proceedings record, with cooperate his counsel. In ... of the entire light we conclude the court not to order a required formal competency hearing.” (People Danielson 3 Cal.4th 729].) Cal.Rptr.2d case, in the Similarly, present record fails to support he assertion that became to stand trial after incompetent his Thorazine medication ceased. Defendant’s assertions are based contrary solely on unsupported speculation. the record establishes that Nothing Thorazine or other medication taken defendant concealed his incompe- tence from the experts or or jury, rendered him unable to understand the or proceedings with cooperate his counsel.

E. Failure Hold Second CompetencyHearing

1. Inability to Communicate With Counsel Defendant’s

Defendant contends the court erred failing hold second court, after competency hearing defense counsel had advised the several months before commenced, the guilt phase that his client was not commu nicating that, with him. The record indicates 10 months after a found defendant competent, his counsel informed the court that defendant refused to talk to him or even his The court acknowledge presence. two appointed Rath, experts, defendant, Drs. Kania and to examine and set a date for another competency hearing.

The later experts reported, that “no new respectively, information” had been (Dr. Rath) obtained and that “no can be offered opinion his regarding Kama). (Dr. counsel informed defense competency” Subsequently,

present had “no evidence” to at the because present hearing, the court that defendant defendant had refused to talk to “the to examine him. appointed psychiatrist” that, circumstances, The court concluded under such no would be point a formal as no in circumstances had been served in holding hearing, change since the date of the last shown competency hearing.

Defendant now the court erred in not a second holding argues competency based on the “substantial new evidence” of defendant’s failure to hearing, communicate with his counsel or with the court cooperate appointed experts. The lacks merit. argument trial,

Once a defendant has been found to stand a second competent if is the evidence discloses a substantial competency hearing only required of circumstances or new evidence is serious doubt change presented casting (See on the of the defendant’s validity finding prior competence. 495, 677, v. 822 P.2d Kelly Cal.4th 542-543 Cal.Rptr.2d [3 v. in circumstance to second Jones change justify hearing]; People 385] [no (1991) 53 Cal.3d 1153-1154 811 P.2d 757] assertion of defendant’s condition and [general worsening inability coop erate with counsel second inadequate justify hearing].)

Here, counsel conceded there was no new evidence to introduce at a second a concession on which the court could More- hearing, rely. properly over, the record indicates to the initial of his prior finding competence, defendant had exhibited an with his counsel unwillingness cooperate albeit affirmative efforts to examining psychiatrists, appear psychotic rather than the mutism and withdrawal he during subsequent displayed occasions when his His continued non- competency again questioned. not, circumstances, did under the constitute evidence cooperation substantial of a change circumstances a new necessitating hearing.

Defendant contends that once the court decided hold a second initially irrevocable, that decision was as it reflected the court’s competency hearing, “doubt” defendant’s a doubt that regarding competence, automatically trig- (See, a formal gered hearing. v. Price 1 Cal.4th e.g., People 610].) 396-397 Yet defendant cites no author- Cal.Rptr.2d ities the trial court lacked to reconsider its decision suggesting authority once defense counsel announced that the defense would offer no further Danielson, evidence of incompetence. supra, Cal.4th at 726-728 of concern about pp. preliminary expression [court’s Price, does not competence formal require hearing]; People [same].) Cal.4th at 396-397 In the fact that defendant had the pp. light (see burden of his Medina v. demonstrating incompetence California, supra, 353]), conclude that 505 U.S. 437 L.Ed.2d court could properly hearing another would be holding competency pointless.

In a his counsel argument, related defendant contends was incompetent to that his client’s failure to constituted substantial failing argue cooperate record, however, of new evidence his The indicates that incompetence. counsel his client’s or acted court of reasonably, informing unwillingness and defense no further evi- to that the had inability cooperate announcing dence on did to the matter. Defense counsel not concede that a present was and instead that it would be held as hearing unnecessary, assumed scheduled. originally

2. Conduct Disruptive Defendant’s

As set forth in III.A. at this defendant was removed part (post, page), from the of courtroom much the voir dire and trial during proceedings because of continued and cursing his other disruptive conduct. Defendant that such suggests conduct should have raised a “doubt” to sufficient justify a renewed We We have competency hearing. disagree. recently confirmed that more is required raise a doubt of than the defendant’s competence statements, mere bizarre or actions with little reference to his to assist ability (See Danielson, in his own defense. 727.) 3 Cal.4th at supra, Defendant’s and cursing actions an disruptive displayed unwillingness defense, assist in so, his but did not on his necessarily bear to do competence or reflect a substantial of or circumstances new evidence change casting serious doubt on validity prior finding defendant’s compe tence. v. Kelly, 542-543.) Cal.4th pp. at

III. Guilt Phase Issues A. Absence From Trial Proceedings Defendant’s conduct, By reason of his repeated disruptive defendant absent from trial, the courtroom during dire, much of his voir evidence and including argument counsel’s presentation, and the arguments, of instructions reading to the Defendant jury. now contends that he had no right to waive his right trial, be present during that his outbursts were insufficient justify his trial, exclusion from that court failed to inform him adequately regarding the various he rights would be reason of surrendering his absence. We find no merit to these arguments.

We outline the briefly various instances of conduct the court disruptive deemed convenience, sufficient to warrant defendant’s exclusion. For we include discussion the issue itas affects both the guilt and phases. penalty Selection Events Jury

1. Pretrial and defendant, shackled, 19, 1989, trial, overturned to while the On June prior 6, removed from the courtroom. On outside the July counsel table and was lifted and threw the of the defendant jurors, again presence prospective table, chains him. about the of the tightness confining counsel’s complaining removed. Defendant was again restraints, 10, about his

On after defendant cursed and complained July would him he would be removed from the courtroom and court warned that if he in disturbances. Later that day, be tried in absentia persisted causing and a and soon thereaf- juror defendant called the judge prospective “pigs,” Following them in coarse terms. ter cursed repeatedly exceptionally outburst, removed from the courtroom the court ordered defendant foregoing week, be to contact of the but directed that asked jail personnel for rest he was to “behave.” On the willing defendant to determine whether daily 11, next the bailiff that defendant July responded negatively day, reported I that “I ain’t anything. might get such an inquiry, stating going promise 12, bailiff that defendant to a worse.” On July reported responded 13, shook renewed with more obscene On defendant language. July inquiry 17, when asked if he wanted to come to court. On July his head negatively defendant again negatively. responded 18, on On

The court ordered defendant to court 1989. brought July there, he confirmed that he did not want to be nor did defendant inquiry, television. Defendant there- wish to watch his trial closed-circuit through chair back and about his restraints and his upon complained began rocking removed. When the bailiff ap- forth. The court ordered defendant again defendant his knees against cursed threw proached, up top remove counsel table. three were able to restrain and Eventually, deputies him. selection continued in his absence. Jury

On the bailiff defendant did not want to come to July reported court, court. On defendant was but on a video July brought seeing courtroom, camera he When the court asked defendant began cursing. remain, if he he desired to Defendant was removed once replied negatively. again.

The bailiff to the to court confirmed court that defendant declined to come back, the remainder of the week. On defendant was during July brought but he his head when asked if he to remain during jury shook wished selection and he was removed The bailiff that defendant again. reported 1, 2, declined to return to court on and 3. August When to court on defendant shook his head when August again brought him, if asked he wished remain court. Before court removing informed on the defendant that trial would commence following Monday, and that it was that defendant be to assist his counsel in important present witnesses. questioning

2. Guilt Phase 11, 1989, On the bailiff defendant declined August that still to reported attend trial. On the first of August defend- day evidentiary presentation, ant to was the courtroom. He about the courtroom brought complained cameras and his court assertedly restraints. The asked the camera crew tight to leave and the to requested officer loosen defendant’s transport hand restraints. exhibits,

Defendant seemed calm during discussions but once regarding courtroom, jury entered defendant to curse and Defend- began rage. ant remained during trial court’s to quiet introductory remarks the jury, and the of the beginning statement. But he prosecutor’s soon opening with more exploded and invective cursing while to attempted complete his statement. The court directed the to leave the courtroom jurors and asked defendant if he to wanted return his to cell. He nodded his jail head witness, The affirmatively. court allowed the first prosecutor’s Orlijan, to him, view defendant before removing so that the witness could identify defendant for purposes his The court then testimony. ordered defendant removed, that “we stating will not see him again.”

Thereafter, defendant was absent from the remainder of his trial. Jail however, personnel, continued to contact and regularly defendant ask him whether he to wished or to watch the on appear trial closed-circuit television. On occasion, each such defendant gave negative responses.

3. Phase Penalty Defendant was absent the entire during penalty phase. jail Again, person- nel to the reported court’s bailiff that continued on a basis they daily to determine that defendant neither wished to attend his trial nor watch the on proceedings television. Defendant was and present, when nondisruptive, read, verdict penalty later and when the court heard and denied the automatic motion to modify verdict.

4. Discussion indicates,

As defendant he was from the removed courtroom five times during jury selection (July 8), and and August once at 14). He was not in court (August present of the beginning guilt phase removals, and he was not returned to the between the dates of these 27). until the verdict According courtroom reading penalty (September law, defendant, erred, denied him due the court and process trial, be at and by failing him to waive his right present allowing that his would result in removal from the warn him conduct continually courtroom.

Defendant concedes that he was removed for behavior properly disruptive defendant contends that on 14 he was removed August on 10. But July 8 he was removed after without on proper warning, July August and on 18 and 24 to to court’s that merely failing inquiry, July respond a desire to leave. Defendant con- he was removed after merely indicating tends that his exclusions from the courtroom were not authorized by 977, (See at trial. a defendant’s statutory governing presence provisions §§ (b), 1043.) subd. stated,

As we have defendant waives his to right recently disruptive “[a] .)” (Illinois be at trial. v. Allen U.S. 337 . . . v. (People 397 present 1195, 144, 163]; (1991) 53 Cal.3d 812 P.2d see Sully 1239 Cal.Rptr. Price, 404-406; v. Robertson also v. 1 Cal.4th at People supra, pp. People 1109].) Although 48 Cal.3d 59-62 waiver, we see no defendant asks us to reconsider our as to holding cited reason for so. None of the federal authorities by compelling doing defendant would a waiver from continued preclude resulting disruptive a continuous of hostile conduct. Our review of the record discloses pattern to remove defend- conduct court’s decision disruptive fully justifying courtroom, from the him therefrom until he evinced a ant and to exclude to in a manner. willingness participate nondisruptive Defendant on language assertedly capital focuses statutory requiring (See absence. defendant’s at his trial his voluntary presence despite § defendant’s evidence subd. [requiring presence during presentation]; § (b)(2) case to trial for noncapital exception presence requirement [limited 1043, however, absent”].) defendants who are Section alterna- “voluntarily defendant, warned, an after tively provides unduly disruptive being may that be removed from the courtroom until he “reclaims” his to be right by present id., (See his to conduct himself subds. expressing willingness properly. (b)(1) (c).)& This the court’s exclusion orders in provision fully justified 405-406; Price, (See this case. at v. People Cal.4th supra, pp. 1239-1241.) Sully, 53 Cal.3d at tried on Being charges pp. capital does not confer the to court right disrupt proceedings. however,

Defendant erred in to new give that the court argues, failing removal, to him to each and in warnings failing prior subsequent adequately him to return to Under the to advise of his the courtroom. circum- right above, case, of this outlined the failure to renewed or warnings stances give it was The court clear to that advice made defendant unnecessary. repeatedly would if he continue to be removed his conduct and that persisted, disruptive could return to the once he behave he courtroom to agreed properly.

Defendant the court “relied hand on third information to complains conclude that was his or that he waiving voluntarily appellant presence be would was not a clearly This waiver disruptive. constitutionally adequate . and offer . . was not an to defendant return to the adequate [allow to] view, In the court should trial.” have repeatedly defend- brought to ant court his to or to the assertions court bailiff that despite jail.personnel would he not We behave. The court relied on agree disagree. properly jail information to bailiff. relay the court No personnel pertinent objection and, event, made was to this find we it procedure any unobjectionable. trial need Busy courts not idle acts. engage Sully, supra, at Cal.3d mandated given opportunity [“Defendant behavior; statute correct his errant he declined No more was it. required law, his Section other justify absence. like voluntary provisions acts.”].) not does idle require

Defendant contends that he should have been returned to court after the verdict, rendered its jury before the guilty phase commenced. He penalty relies on in section 1043 to a language the effect that defendant disruptive be tried in absentia “to and may the return of the including verdict.” We doubt the had mind the Legislature bifurcated of a phases unitary capital (see 1229, trial Court Cal.4th Superior (Mitchell) 5 1233 [23 102]) Cal.Rptr.2d when it the It adopted foregoing language. is more that this likely was a language intended to assure defendant in criminal case would be in the the time of courtroom at present sentencing, trial. following

Defendant the court suggests that “at least” have could con- temporarily First, tinued trial until defendant “calmed down” to enough participate. Second, such no that, request made. it is from record even apparent down,” after defendant had opportunity to “calm he continued to ample misbehave, and no gave his The sign changing behavior. court did not err failing continue the trial sua sponte.

Defendant court contends the erred in to instruct the sua failing jury, that it should sponte, his ignore outburst and his absence from subsequent that, dire, trial. Defendant acknowledges voir court admonished during But, each juror not draw adverse from individually inferences his absence. defendant, these admonishments were an insufficient according pretrial a instruction We substitute for formal trial. jury following disagree. therefor, In the absence of a the court has no to instruct obligation request a defendant’s absence from trial. v. Sully, supra, jury regarding (People 1241.) 53 Cal.3d at Nor did defense counsel’s failure to such an request Counsel, constitute aware instruction necessarily inadequate representation. that the had been an admonishment on the jurors already given subject dire, voir could have concluded that an additional admon- reasonably during ishment, trial, at the close of could do more harm than coming good by absence, attention defendant’s and to the calling jury’s disruptive conduct that necessitated it. situation,

As we stated in a similar also defendant’s recently reject “[w]e related contention that counsel’s failure to instruction on limiting request indicated, offenses reflected his As prior incompetence. previously counsel have deemed it unwise to call further attention to may tactically offenses by instructions. prior requesting special [Citations].” v. Johnson 6 Cal.4th P.2d (People Cal.Rptr.2d 673]; see Lewis Cal.App.3d 257].)

B. Prosecutorial Misconduct Defendant contends the committed misconduct voir dire during of some of the on his questioning who sat prospective jurors actually (hereafter called ultimate Defendant states that he made jurors). although comments, “some” to the “some" of these remarks objections prosecutor’s went It is well that a defendant cannot unchallenged. established on of misconduct the at trial in a unless complain appeal prosecutor fashion he made an of misconduct and that the timely assignment requested be 1 admonished to v. Fierro disregard (People impropriety. 1302].) Cal.4th 207 rule to This Cal.Rptr.2d applies (Ibid:, asserted misconduct committed voir dire. see prosecutorial during Ghent, 770.) also at Cal.3d In defendant general, that the used voir complains prosecutor “improperly dire to misinform the and them in favor of a death jurors predispose sentence.” The mischaracterized the nature of the prosecutor assertedly and the for which the and penalty phase process purpose mitigating aggra- evidence would be admitted. vating assertedly Additionally, prosecutor urged voir dire that a death sentence was needed to control defend- during crimes, ant’s violence and deter and some others from such told committing ultimate not to consider doubt” jurors any “lingering as to defendant’s guilt. defendant, to Finally, according diminished the prosecutor sense jury’s of some ultimate responsibility by telling that the death law jurors penalty murders, because it a death unique sentence for certain permitted only and no executions had occurred in California for 24 As will years. appear, defendant waived his of these matters right complain by failing object Further, view, to them below. in our none of these instances involved prejudicial misconduct. 1. Statements Nature Regarding and Mitigating Aggravating of

Evidence and Process Weighing

The indicated to prosecutor several ultimate jurors mitigating evidence was the kind of evidence factors” showing “positive in defend life, ant’s such as leader, a war hero or being Scout Boy whereas aggravating evidence would involve “negative evidence” such as a criminal con prior viction. The further indicated that the task in jury’s deciding appropriate was to these penalty and weigh positive negative Defend aspects. ant’s only objection to such statements voir dire was that during the prose cutor’s of examples evidence mitigating involved situations that were not in the case. present

Defendant now contends the voir dire prosecutor’s statements were in- inaccurate, and complete but as he did not to the statements on object this ground, the present objection was waived. v. Cooper Cal.3d event, 865].) P.2d In we any find no prejudicial statements, misconduct here. The prosecutor’s somewhat though simplistic, erroneous, were not legally and defendant had ample opportunity correct, or clarify, amplify remarks prosecutor’s his through own voir dire questions comments.

Moreover, matter, as a general it is that errors or unlikely misconduct occurring voir dire during will questioning influence the unduly jury’s verdict in the case. such errors or Any misconduct to the “prior presentation evidence, or argument reach obviously at a much jury panel less critical phase the proceedings, before its attention has even begun focus the Ghent, upon issue penalty it.” (People confronting v. supra, 43 Cal.3d at 770.) p. This is analysis likewise to each of applicable the other instances of misconduct, asserted discussed below.

2. Statements Regarding Reason Executing for Defendant dire, voir

During the prosecutor indicated or to some implied ultimate jurors his through that questioning one served the purpose by death

742 doctors, who be to and other might prison guards, personnel penalty protect with in otherwise have to deal convicts Defendant dangerous prison. might to and the was for this object, thereby failed waived point appeal. f event, committed A

In the no misconduct. similar situation any prosecutor Danielson, There, arose v. Cal.4th 691. his People supra, during penalty the the arguments, and over rhetor- phase objection, prosecutor “ asked the of like ically ‘How would son or husband jury, many you your a wherever this man be? How of being guard may many you your would like or husband son a officer him and think being transportation handling you ” (Id. 720-721.) would feel safe?’ at that you We the contention pp. rejected such cases argument several had improper, observing prior upheld the the to raise of the defend- prosecutor’s right jury arguments subject future ant’s dangerousness. concluded in that the

We Danielson prosecutor’s penalty phase argument within the the argument by “fell of cases. range permitted” applicable Danielson, 721.) fortiori, v. A the (People Cal.4th at we reach conclusion here to the dire same with voir respect prosecutor’s preliminary statements.

3. Statements Death Value as a Regarding Penalty Deterrent

The asked some ultimate whether prosecutor believed jurors they to did death was a deterrent others. Defendant not penalty object and, for was waived inquiries accordingly, point appeal. 1020].)

Wrest 3 Cal.4th P.2d In Cal.Rptr.2d event, no misconduct occurred. The did not any prejudicial prosecutor (see effect of the affirmatively argue the deterrent death penalty 33]) Love 56 Cal.2d but simply about the matter voir dire. found no during We have cases inquired suggest that such voir dire conducted for the a ing purpose determining inquiries, views the death are prospective juror’s regarding penalty, improper.

4. Statements Doubt Regarding Lingering

Defendant made on voir dire points inquiries some ultimate their linger not about jurors regarding willingness “worry doubt” of defendant’s once he was guilt concluded ing they guilty beyond and, reasonable doubt. did not accordingly, Defendant to the object inquiries event, no was waived for In misconduct point appeal. any prejudicial occurred.

743 that, the consider may any in determining jurors have penalty, We held v. (People the defendant’s guilt. have concerning doubts they may lingering 122, 704]; 929, 846 P.2d (1993) 4 Cal.Rptr.2d Cal.4th 989 [17 Zapien 788, 648, 802 P.2d (1990) v. 52 Cal.3d 706 Kaurish People [276 hand, entitled to remind the 278].) is penalty On the other the prosecutor be as a which is to presumed it is not to redetermine guilt, that jury phase guilt in the phase. of had so found of because the trier fact matter law 628, 1198, 831 Cal.Rptr.2d v. 2 Cal.4th DeSantis (People [9 to have right defendant has no federal or state constitutional P.2d A 1210]. about doubt to consider residual any instructed penalty phase 164, 173-174 U.S. (Franklin Lynaugh defendant’s guilt. 165-166, (1992) Cal.4th 2320]; v. Johnson 108 S.Ct. L.Ed.2d Cox, 1]; Cal.Rptr.2d 677-678.) at Cal.3d pp. to have suggested

Although prosecutor’s inquiries may improperly be in the ignored, doubt should any some ultimate that jurors lingering it have of dire is these could unlikely inquiries context voir questioning claim, and record verdict. does not influenced the Defendant penalty indicate, doubt subject does' not that the raised lingering prosecutor at his trial. jury arguments

5. Death Law Penalty Statement Regarding California’s “a little The to one ultimate that California was prosecutor suggested juror be must different” from some other states that circumstances special a death defendant had earlier success- shown sentence. justify Although (California was “a little objected unique”), similar statement fully and, accordingly, defendant did not to the object present point statement event, was waived for In misconduct occurred. no appeal. any prejudicial The “differ- brief voir dire to California’s prosecutor’s supposedly reference ent” death law not ultimate jury’s could have affected penalty possibly verdict in this case.

6. Absence Statement Executions in Regarding California no

The one without that objection, told ultimate juror, one had been in this and asked the juror death state since put whatso whether of the death “have might any purpose imposition penalty (the ever . . . .” last Defendant statement was both inaccurate suggests 1967) execution sen had occurred in death improper (implying tences are state). not carried out in this event, for In no

Defendant’s failure waived the object any point appeal. The voir dire reference misconduct occurred. brief prejudicial prosecutor’s time, to the that no one fact had been executed in California for some a matter of common most could not have knowledge among persons, possibly affected the ultimate verdict. that,

Defendant contends his counsel’s to to failure most of despite object misconduct, the asserted instances of the court had a foregoing sua sponte to “intervene” to defendant’s due As we obligation protect process rights. event, no misconduct occurred here. In a court has previously explained, any no “to and correct all or misconduct obligation recognize arguable possible Visciotti, (See 79.) on its own motion.” 2 Cal.4th at supra, p. Defendant also that the misconduct argues asserted was so foregoing (See, serious that an admonition to the would not have cured the harm. v. Clair Cal.4th e.g., People Cal.Rptr.2d 705].) We The isolated instances of occurred disagree. misconduct supposed voir dire a much less critical the during “at of before phase proceedings, [the attention even to focus the issue confront- jury’s] begun upon penalty ha[d] Ghent, 770.) it.” 43 Cal.3d at An admonition the ing (People to could have prospective jurors clearly lessened substantially any improper effect of such asserted misconduct.

Defendant that his counsel’s suggests failure the object prosecutor’s indicated, however, voir dire “misconduct” reflected his incompetence. As and, no serious misconduct occurred during any these incidents accord- counsel’s failures to could be ingly, not deemed object inadequate represen- Moreover, tation. given minor nature of the miscon- relatively supposed trial, duct and its occurrence dire voir rather than or during during following it is not that counsel’s affected verdict. reasonably probable omissions Strickland v. Washington 466 U.S. L.Ed.2d 694 697-698, 2052].) 104 S.Ct.

C. Prosecutor’s Voir Dire Diagram voir dire examination of some

During ultimate jurors, prosecu tor used a illustrate the diagram he needed to help quantum proof prove defendant, a reasonable doubt. guilt beyond According otherwise, do not claim showed two horizon diagram simply lines, tal one labeled “100 and a second line beneath it percent certainty” labeled “beyond reasonable doubt.” The then asked some prosecutor standard, ultimate not to “hold” him to the jurors but to the percent only “lower” standard. At one point, indicated that a conviction could be sustained if the can juror “cross this black line ... simply your head, of course . . . .” Defendant that the chart complained implied made no formal but he certainty, only burden was percent prosecutor’s use, on appeal. waiving any objection thereby to its objection Defendant maintains selection. following jury chart was discarded The of the chart, prose- description an erroneous containing the use of the that Defendant argues burden, a denial of due process. constituted cutor’s proof an could use that the jurors false created the impression have may the chart of carried his burden had whether deciding line in “arbitrary” proof. task, a inherent in such courts, the difficulty peril recognizing

The a the “beyond courts in defining trial by discouraged have “experiments” Freeman, 8 Cal.4th (See supra, v. People doubt” standard. reasonable attend would undoubtedly similar of 504.) reasoning, perils aBy parity a reasonable beyond of guilt to reduce concept a attempt prosecutor’s But as we have previously or chart. a mere line on graph doubt to observed, dire, to voir prior occurring during jury errors or misconduct instructions, far less are of formal or the giving introduction of evidence the defendant. to have prejudiced likely on the presump- the standard instruction in this case was given

The jury innocence, doubt, burden of proof. and the prosecutor’s tion of reasonable was sufficient 2.90.) of the instruction (CALJIC foregoing No. The language and to dilute burden of proof both to explain jury prosecution’s created by prosecutor’s that have been uncertainty may confusion or any U.S._[127 L.Ed.2d (1994) 511 dire chart. Victor v. Nebraska voir 450, 502-504; Freeman, cf. Cal.4th 1239]; supra, 114 S.Ct. DeSantis, 1243.) We find no prejudicial 2 Cal.4th at occurred here. misconduct Dire Questioning

D. Restrictions on Voir dire his voir court restricted Defendant next contends the trial improperly the death their views on penalty. of jurors regarding examination prospective Questions 1. Murder Regarding Multiple and allowed such ques later its ruling the court

Although changed asking indicated it would disallow questions the court tioning, initially if defend life could vote for imprisonment whether prospective jurors they defendant, initial voir this ant committed murders. According multiple ultimate dire his of three jurors. restriction inhibited questioning First, the court we doubt the court’s eventual of change position, despite we observed erred in voir dire As recently initially restricting questioning. case, whether the evidence effort to determine a defense involving a similar would cause a the victims bum suffered of serious injuries must be is tme that counsel vote for the death penalty, automatically “[i]t challenges that lead to might jurors to ask questions prospective permitted was not defendant to make The sought for cause. inquiry [Citation.] [Vjoir dire seeks however. . . . process, relevant to the death qualification about punish- jurors capital the views only prospective to determine abstract, the death to determine if because any, opposition ment in the to the evidence death without regard would ‘vote against penalty penalty, or be excused because he Such a juror may at trial.’ produced [Citations.] the law. The and apply inquiry would be unable to faithfully impartially she case, whether, the juror of the without knowing specifics directed to is no error in There was on the determination. has an mind’ penalty ‘open toward evidence that was attitudes that related to jurors’ ruling questions . . . not be asked during sequestered in this trial could to be introduced dire. voir omitted.] [Fn. the exercise includes of the to control the proceedings

“The power judge will be conducted. in which the voir dire over the manner of discretion Defendant was not here. of that discretion occurred No abuse [Citation.] voir dire that in the general to show subsequent from attempting precluded death him to vote for the would cause bias that harbored juror any specific evidence, should be excused and thus without to regard mitigating penalty so, did not exhaust his peremptory did not do and for cause. Since defendant not that the from on appeal he is arguing challenges, precluded 583, (1990) 50 Cal.3d v. Clark (People constituted. properly [Citation.]” DeSantis, 399, 127]; 2 P.2d see People 789 Cal.Rptr. 596-597 [268 about to allow voir dire questioning at 1217-1218 Cal.4th pp. [refusal for vote automatically to juror crimes that would cause prospective specific death]; v. Rich 45 Cal.3d to vote to commit used to jurors dire not compel

P.2d properly 960] [voir particular way].) at issue preju- the voir dire restriction we find it

Additionally, unlikely three to these dire as defendant. Our review of the voir proceedings diced not he or she would agreed indicates that each of them affirmatively jurors evidence, that they and death regardless vote for automatically counsel issue. Defense “neutral” on the death penalty considered themselves their ability of them regarding each had ample opportunity question in the on the evidence base their decision penalty an mind and open keep the trial court note that after factors. We sentencing case and on applicable defendant murder with to the multiple question, clarified its respect position on this to ask to reexamine any juror topic. failed Restrictions Other Voir Dire 2. him erred in preventing the trial court

Defendant also argues placing their own impartiality to test jurors asking prospective from on successfully objected The in his position. themselves would improperly to the jurors or suggestion an that such inquiry ground for defendant. sympathy tend heighten “to ascertain prospec- was needed that his inquiry

Defendant contends case, in the and impartially verdicts fairly to render ability tive jurors’ innocuous, the arguably tactic was Although to law.” according harmless. clearly was likewise voir dire restriction on questioning asserted ability of ascertaining jurors’ alternative methods There were ample restriction the voir dire is made that No claim act and fairly impartially. (See People jury. to a fair impartial defendant’s right actually impaired 436].) P.2d Cal.Rptr.2d 54 Cal.3d v. Edwards Challenges Use Peremptory E. Prosecutor’s of chal used peremptory contends the improperly Defendant Defend to the death views penalty. to remove jurors holding opposed lenges v. People challenges. to these object ant waived the by failing point 679, 169].) In 115, P.2d 802 (1990) Cal.3d 166 Cal.Rptr. 52 Gallego [276 v. event, People (E.g., we rejected argument. have any repeatedly 714; Cal.4th Danielson, (1992) 1 v. Pinholster 3 Cal.4th at People (1984) 37 865, 765, 571]; v. Turner People 824 P.2d 912 Cal.Rptr.2d [4 196, 302, 669].) P.2d Cal.3d 315 690 Cal.Rptr. [208 F. Trial Court’s Excusal Practices Jury excusing prospective trial court’s of freely

Defendant contends the policy of several classes culled from the jury who claimed financial jurors hardship earners, and self-employed including “wage unemployed people, persons, words, According not afford to serve.” in other who could anyone people; defendant, and jury. him a fair impartial the court’s denied thereby policy (E.g., People recently rejected. has been and Again, argument repeatedly 628, 893]; 551, 817 P.2d (1991) Cal.Rptr. v. Nicolaus 54 Cal.3d 571 [286 352, 1047, 767 (1989) Cal.Rptr. v. Harris Cal.3d 1077-1078 47 People [255 619].) P.2d Crimes

G. Evidence Uncharged of indicated, as the identity per- As the evidence of defendant’s previously a robbery evidence of of the was in based on offenses petrator charged part 748

murder crime that included the murders spree uncharged Orange County The Ariza murder occurred within a of the Ariza and Metal. few hours only offenses, and the Metal murder occurred a few weeks later. charged

Defendant contends the trial court erred in evidence admitting The our controlling these offenses. We rules uncharged disagree. are well settled: “Evidence of the defendant’s commission of analysis not crime other than one for which the defendant is then tried is being admissible to show bad character or but it criminality may predisposition issue, admitted to some fact motive be material at such as or prove identity. Code, 1101.) (Evid. Because evidence of other crimes be may highly § its should be scrutinized with care. inflammatory, admissibility great [Citation.]” 983, (Pe (1989) v. Edelbacher 47 Cal.3d ople Cal.Rptr. [254 586, 1].) 766 P.2d In cases in which the seeks to prosecution prove he as the of the offense evidence identity perpetrator charged offenses, had committed uncharged admissibility “depends upon proof offenses share common marks suffi distinctive charged uncharged (1984) cient to raise an inference of identity. (People Bigelow [Citation.]” 731, 328, 994, 723]; 37 Cal.3d P.2d 64 A.L.R.4th see Cal.Rptr. [209 also v. Ewoldt 7 Cal.4th 402-403 Cal.Rptr.2d scheme]; P.2d to show common or [admissibility plan 757] 362].) Rivera 41 Cal.3d defendant show Although sufficiency disputes People’s marks, of distinctive common we think there were common ing enough features or similarities to of the “other crimes” evidence. admission justify murder of an The crimes each involved charged uncharged robbery were each shot alone in a convenience store. The victims employee working head, execution murder. in the at close an range, suggesting probably Ballistic indicate the same .22-caliber later traced to defend reports handgun, ant, offenses, was used in all three murders. In both witnesses saw uncharged a battered Maverick defendant’s car at the crime scenes green resembling occurred within before or after the offenses took Each offense shortly place. indeed, a offense occurred less two-and-one-half-week period; charged along than a after the Ariza offense. Each offense was located day uncharged homes, the route between defendant’s sisters’ where he stayed during time the various offenses were committed. evidence, that, none

Defendant with the of the ballistics argues exception marks,” alone, distinctive. “common is foregoing standing particularly that, think more meaning- But we in the the similarities become aggregate, ful, who to the reasonable inference that defendant was leading person Indeed, alone probably committed all three crimes. the ballistic evidence crimes” of the “other to admission justify have been sufficient would evidence. discretion in failing trial court abused its contends the

Defendant against when weighed evidence as too exclude the other crimes prejudicial Code, evidence 352.) Defendant such (Evid. suggests its value. probative § record review of the case. Our was “cumulative” to the prosecution’s us, however, its discretion the trial court did not abuse that convinces of defendant’s guilt. to the issue the evidence as admitting highly probative error), of harmless (in finding a arguing against As defendant acknowledges ballistics was limited expert evidence of remaining guilt “weak, insufficient, to evidence that was if not prove testimony, completely and murdered Martin.” Craig that robbed appellant H. Bad Character Evidence and the of the handgun

The established defendant’s possession witnesses. of several testimony Maverick automobile green through cumulative, defendant, much of this evidence was “not only According but that had criminal or otherwise morally reprehensible implied appellant he had testimony indicating tendencies.” Defendant points guilt phase that he committed an tattoos of a “Nazi and the grim swastika reaper,” he had stolen a from gun and an armed and that robbery, uncharged rape pawnshop.

1. Tattoos Defendant’s and the to the gun

One the witnesses who linked defendant B., and also Maverick was Karen who identified him from two photographs testified, was corrobo over his tattoos. This testimony objection, regarding The trial court rated a detective who had also observed the tattoos. B.’s credibility admitted the that it Karen testimony, reasoning strengthened the man she saw with gun her identification of defendant as regarding and the Maverick. defendant, other sim was cumulative to Karen’s

According testimony unnec and thus it was ilar defendant to the car and testimony gun, linking though of to admit the tattoo evidence. But the essary weighing probative, cumulative, is a nature evidence its against prejudicial possibly potentially v of the trial court. (E.g., matter entrusted to the sound discretion . 635].) We (1993) 6 Cal.4th Cudjo Cal.Rptr.2d Moreover, in even if error occurred find no abuse of that discretion here. tattoos, harmless in was surely evidence of defendant’s the error admitting evidence, admitted, “other crimes” confirm- of the substantial light properly In that defendant indeed had a criminal of such background. light ing evidence, could not admission of evidence defendant’s tattoos regarding have him. possibly prejudiced

2. Karen B. at Rape Gunpoint of the court in the

Defendant contends erred permitting prosecutor defendant, he Karen B. her encounter with which regarding during question that, in her at Our examination of the record discloses raped gunpoint. with the earlier and Karen carefully accordance court’s ruling, prosecutor and limited her testimony describing gun avoided mentioning rape and the Maverick she saw in defendant’s and the tattoos she saw possession, on and stomach. his back

Defendant that the could from Karen’s argues “speculate” “cryptic her. For she that defendant very suggestive" testimony raped example, removed, that she saw defendant with shirt and that at one testified his point he he But nothing was a which on the stand. holding gun placed night conduct, consen- Karen’s the commission of sexual suggested any testimony that the sual or otherwise. Defendant to Karen’s additional testimony points incident, of but this in the room was turned off most light during and, was elicited defense counsel on cross-examination accord- testimony to it was waived. any ingly, objection

3. Evidence Armed Peter Yoon Robbery

Defendant asserts the court erred in allowing prosecutor defendant, Peter with which during Yoon his encounter question regarding did not mention the Yoon was robbed at The and Yoon prosecutor gunpoint. Yoon testified on direct examination that he saw defendant robbery. simply barrel, that he noticed the that defendant carrying gun, only tip Maverick, entered a Ford and that Yoon wrote down the license green number and it to defendant gave argues testimony police. Although cumulative and we have such matters are entrusted as prejudicial, explained to the sound discretion of the trial court. We find no abuse of that discretion Moreover, evidence, here. of the substantial “other crimes” properly light admitted, two other evidence including robbery/murders, suggesting him. defendant robbed Yoon at could not have gunpoint possibly prejudiced 4. Gun Stolen From Pawnshop

The a .22-caliber introduced evidence that defendant stole Defendant con- handgun the murder from a (probably weapon) pawnshop. the court irrelevant fact tends erred to exclude references to the failing

751 failed, however, to to such object Defendant was stolen. that the gun But, for even trial, waived accordingly appeal. the was point evidence at and occurred, a gun that defendant stole indicating evidence if waiver had no evidence the “other crimes” him of light hardly could have prejudiced admitted, above. referred to properly of sum, occurred in the admission that error

In we conclude no prejudicial evidence. character” the “bad foregoing Prior Arrest

I. 1961 Evidence of Defendant’s of murder Dou uncharged defendant to the The linked prosecution one a at the crime scene with of found by matching fingerprint Metal glas the Orange card taken at County on prints fingerprint arrest was unduly this evidence of his Defendant contends that jail. he long-standing “prob it to the that had suggested because prejudicial to that introduce the unnecessary lems with the He it was law.” observes match the card was available to fingerprint 1961 card because his.current crime scene fingerprint. failed to object that his trial counsel acknowledges

Defendant evidence, demonstrated but he that his counsel’s omission argues foregoing however, that for concluding, his We have no reasonable basis inadequacy. card, taken failure to to a 1961 object jail fingerprint apparently counsel’s was preju- on an criminal charge, when defendant was arrested unspecified 466 U.S. (See to his Strickland v. Washington, supra, dicial case. defend- 693-694].) In evidence of L.Ed.2d admitted light properly murders, it is not crime two spree, uncharged robbery

ant’s including evidence at verdict influenced reasonably probable was jury’s issue.

J. s Postarrest Statement Defendant' trial, the court grounds,

Prior to on Miranda objection without being after read ruled admissible defendant’s statement postarrest police his 384 U.S. Miranda Miranda v. rights. Arizona 974].) one the officers After L.Ed.2d 86 S.Ct. A.L.R.3d murder, defend that about Riverside County indicated he wanted talk asked, he ant me to The officer replied only “What do want you say?” stated, I“If could defendant “wanted talk about truth.” Whereupon died.” No but I when mother only my can’t I couldn’t even cry, cry. cry further conversation took place. would be court that the statement

At the ruled pretrial hearing, admission,” and as admissible because it “could be an interpreted 752 trial,

“inconsistent with a statement of innocence.” At the statement was admitted without The court objection. instructed the that an jury admission is a statement of the defendant to tending when prove guilt considered with the evidence, rest of the and that the are the jurors “exclusive as judges” whether (See an admission was made. 2.71.) CALJIC No.

Defendant now the statement argues was irrelevant and unduly prejudicial, to the that he suggesting was a jury of human person or incapable feelings words, emotions. In defendant’s the statement “did not or prove disprove any case,” fact in the disputed but instead amounted to character improper evidence to show that he tending was “the kind of who could commit person murder.” defendant

Initially, that his counsel’s acknowledges failure to to the object admission his statement at trial waived the (See on point v. appeal. 152, Morris (1991) 720, 53 Cal.3d 190 807 P.2d Cal.Rptr. [prior 949] motion, in limine failing now raised on specify legal ground appeal, waiver].) however, insufficient to prevent Defendant suggests, that his coun sel’s issue, omission reflected his We incompetence. need not decide this because in statement, light nature of the ambiguous it is not reason ably probable counsel’s failure to to its admission object adversely (Strickland affected the 668, verdict. v. Washington, supra, U.S. 694 [80 697-698].) L.Ed.2d The knew from the jury already “other crimes” evidence that defendant had committed other murders. merits,

On the statement, we that the agree and being ambiguous arguably to the nonresponsive officer’s about the inquiry murder had charges, only marginal relevance. But the jury could have concluded that the conceivably statement reflected defendant’s of his acknowledgment guilt inability feel Thus, remorse for what he had done. the trial court was justified admitting statement and it to the leaving to decide whether the admission, statement was in fact an and what to attribute to it. weight Defendant also that, contends the record fails to show prior making issue, statement at he waived his voluntarily to remain silent after right being read his Miranda But we rights. cannot assume from a silent record that defendant, heard a recital having of these nonetheless declined to rights, waive them. An express statement of waiver is not under such required circumstances. 541, Johnson 70 Cal.2d 556-558 [75 P.2d 366].) A.L.R.3d Defendant also contends that the officers’ failure to inform him of the of a death sentence possibility have may tainted the We interrogation. have similar contentions. rejected (People Wash 6 Cal.4th Cal.Rptr.2d 1107].) indicated, event, if were ruled even the evidence as any previously

In in of inadmissible, harmless its light in it was admitting clearly error any the to issues. guilt relevance marginal Photographic In-court

K. Identification reason by he was denied due process next contends that Defendant at both the identification procedure of unduly suggestive photographic an to the limit our discussion trial. We and of his guilt phases present penalty guilt phase. indicated, involved the of defendant’s “other crimes” one

As previously that testified he Ariza. Witness James Strong and murder Horacio robbery killed, on Ariza was the Arco station the night saw a Maverick leaving green had defendant been and he a of the driver. Because “glimpse” had behavior, the court inquired for his removed from courtroom disruptive to have defendant counsel it more prejudicial whether defense deemed in and in dressed clothes prison wearing identified or by photograph person, and, the prosecutor Counsel declined to choose without objection, restraints. for identification purposes. showed some of defendant Strong photographs of the Maverick. testified that defendant resembled driver Strong and suggestive Defendant asserts the identification was unduly procedure 1199, 293, (see v. U.S. L.Ed.2d unreliable Stovall Denno [18 1206, v. Gould 87 S.Ct. [single showup]; People person 1967] identifi 354 P.2d photograph Cal.2d 865] [still (see, cation]), but his failure waived the point e.g., to object 972-973, (1991) 54 Cal.3d fn. 10 Ashmus Cal.Rptr.2d in 214]). failing counsel Defendant’s that his was suggestion incompetent a for omission: counsel object overlooks tactical motive counsel’s possible was well have concluded identification may procedure the photographic client than him court potentially present less to his prejudicial having and wearing shackled clothes. prison merits, a danger

On the although may pose one-person showup unfair. inherently such “are not or suggestiveness, necessarily showups Rather, (People all the must be considered.” circumstances [Citations.] Clark, Here, noted, unreliable 136.) 3 Cal.4th at as assertedly defendant’s own identification was necessitated photographic by procedure circumstances, conduct. we find no undue unfairness Under these disruptive in that procedure. Use

L. Mannequin of Life-size

Defendant the court erred permitting prosecutor contends it, use through a life-size a wooden probe sticking with mannequin, of the bullet represent trajectory that killed Martin. The Craig manne- exhibits, with the other quin, along in the room present most»of deliberations during during both the guilt of trial. In penalty phases view, both lacked mannequin value and was probative We “highly prejudicial.” disagree.

The was used mannequin demonstrate the likelihood shot, i.e., that Martin was in a when that he was executed. kneeling position Thus, kill, the was relevant to mannequin show defendant’s intent to as well as his as the same identity who executed victims Ariza and person Metal. cases, We have similar use of in upheld Medina mannequins prior including I, 51 Cal.3d at supra, (See pages 898-899. also People Cummings 1233, 796, 4 Cal.4th P.2d Cal.Rptr.2d be [18 [“Mannequins may 1] used as illustrative evidence to assist the in the jury understanding testimony of crime.”]; witnesses or the a clarify circumstances of v. Brown 432, 46 Cal.3d 1135].) 442-443 758 P.2d

As for we find potential prejudice, no basis for the trial court concluding abused its discretion in the evidence and in admitting its allowing presence I, the room. As we said in Medina jury 51 Cal.3d at supra, page “[t]he trial court was in a far better than we to assess the position potential from the of such prejudice arising evidence.” display physical Moreover, defendant concedes that his trial counsel failed to to the object use of the or to its in the room. mannequin presence the Accordingly, assertion, was waived for point appeal. Contrary such omis- sion was not so crucial the defense case as to trial demonstrate counsel’s incompetence.

M. Admission Autopsy Photograph of

Defendant contends the court erred in the over allowing prosecutor, defense to introduce at objection, the a guilt phase single autopsy photograph of victim Martin. The showed the of his head with most of the photo top skin, removed, skull and brain and included a wooden inserted probe, a hole in the through head for of of the purposes demonstrating trajectory bullet. The record indicates the court ruled that the value expressly probative Code, of the its photo outweighed effect. Evid. potential prejudicial 352.) §

Defendant contends the and unnec- photo “gruesome, inflammatory cumulative, He essary.” observes that the evidence was but we have often rejected argument that murder victim must be ex- photographs cluded because merely are cumulative to other evidence in the case. they Cal.Rptr.2d Cal.4th (1992) v. Wilson (People 441.) Price, As for its 1 Cal.4th at p. (Wilson); 1212] in nature, weighing proba broad discretion the trial court has gruesome (Wilson, at effect. their with potential prejudicial tive value of such photos 938.) with other similar together in question, have examined the photo

We and we find no abuse without objection, victim admitted of the photos failure here, that defense counsel’s no basis for concluding discretion our review of case. Based on to defendant’s resulted object prejudice evidence, nature of that the gruesome we were aware believe jurors than of routine autopsy procedures was more a result photo question bullet. direct of defendant’s product could effect photo

Defendant that the suggests potential prejudicial the converting its value by have been reduced without affecting probative such Defendant’s failure request from color to black and white. photo however, trial, the for appeal. conversion at waived point Argument N. Prosecutorial Misconduct During Closing misconduct dur- the committed Defendant contends prosecutor prejudicial we disagree. his As will arguments. ing guilt phase closing appear, 1. Error Griffin commented

Defendant first contends that prosecutor improperly (See (1965) on failure to 380 U.S. 609 his v. testify. [14 Griffin California 106, error is L.Ed.2d 85 Under the rule in (Griffin).) Griffin, S.Ct. 1229] comments, or committed whenever the or the court either directly prosecutor well in his defense. It is indirectly, defendant’s failure to upon testify established, however, comment on defendant’s that the rule prohibiting evidence, or on the silence does not extend to comments on the state of or to call logical failure of the defense to introduce material evidence 142, (See (1993) witnesses. v. 5 Cal.4th 178-179 People Mayfield [19 1, 331]; (1988) 46 Cal.3d 852 P.2d v. Morris Cal.Rptr.2d 843], cited.) P.2d and cases Here, the that the People in his rebuttal observed prosecutor, argument, with a had defendant was seen “rational provided explanation” why (namely, several at the of the various robberies handgun by times persons robberies on those that defendant was armed for the of committing purpose occasions), Mr. and then asked “Where was Lewis’ rhetorically, [defense rational How he does the evidence explanation? explain away

counsel] .?” theme,

Later his returned to argument, this prosecutor urging should reject unreasonable of the evidence “even if interpretations one, had us which he didn’t.” given to the various Referring [counsel] witnesses who had seen defendant with a and with the weapon green automobile, observed, Maverick none of this evidence “[a]nd me, on explained. Nobody the defense side—excuse the defense attor- did not this evidence and it ney explain how to some other rational pointed conclusion, doesn’t, because it and he can’t.” First,

It is to us that no error occurred here. apparent prejudicial Griffin and, comments were made without prosecutor’s from defendant objection Johnson, (See, was waived for accordingly, point v. appeal. e.g., People 1228; 3 Cal.4th at 2 Cal.4th People Mincey 388].) Cal.Rptr.2d

Second, the comments were directed to the failure of prosecutor’s general the defense to an innocent as to defendant was provide explanation why armed, Maverick, and in the time of possession at the robberies. These references, remarks contained no or to defendant’s own express implied, silence, and therefore were unobjectionable. Vargas Cal.3d 478-481 that most [observing 959] indirect event].) error is harmless in It is not any reasonably probable Griffin that the jury was misled into an inference drawing regarding improper Clair, (See v. 663.) silence. Cal.4th at The People supra, p. remarks, context, viewed in prosecutor’s can be seen as a fair comment only evidence, on the state of the comment outside the of falling purview Griffin. that, v. 446.) Cal.4th at It to Mincey, supra, follows p. contrary

defendant’s additional defense counsel’s failure to was argument, object and cannot be justifiable deemed to constitute incompetent representation. 2. Outside-the-record Comments and “Vouching"

Defendant contends the included in his prosecutor jury improperly record, argument reference to matters outside the to “vouch” attempted witnesses, for certain prosecution and to on his own rely prior purported experience.

At one in his the indicated that point argument, prosecutor incorrectly victim Martin’s father had testified his son had not known previously fact, occurred, defendant. In no such had as defense counsel testimony in the At another his argument, own point in his argument. observed Tulleners, Slonina and the ballistics People’s experts, stated that prosecutor honest, indicated) had (as employees, were their testimony public appeared lie, told the truth to the for testifying, to were not being paid no reason jury.

Next, the of Karen B.’s prior felony to minimize impact attempting stated, being very the on her credibility, prosecutor “[s]he conviction She was no reason to come in here. subpoenaed with She has you. honest with her has to do nothing in and testified. That conviction felony come she I deceive look at. wouldn’t in this case. It is should something you testimony added.) (Italics and no other.” She told she saw this you gun otherwise. you stated that rebuttal argument, at the end of his Finally, this amount of over- no that I have ever seen has ... case “realistically, added.) (Italics to the defendant’s guilt.” evidence whelming pointing remarks, he the foregoing made no of objection any Because defendant of misconduct on (E.g., waived right complain any appeal.

Fierro, event, 211.) reasonably 1 Cal.4th at In it is not any probable harmless remarks. relatively was influenced or misled these jury by

First, the other evidence in the case could infer from reasonably defendant, murders involving who in a series of engaged robbery stores, convenience did not know victim Martin. The prosecutor’s personally father’s this testimony regard mischaracterization Martin’s apparent was harmless.

Second, ballistics remarks testimony prosecutor’s regarding record, assurances, on the regard seem Prosecutorial based experts proper. witnesses, cannot be or ing apparent honesty reliability prosecution an characterized as which involves usually attempt improper “vouching,” record. (E.g., People bolster a witness reference to facts outside the , 356, 1107].) (1990) Anderson 52 453 801 P.2d Cal.3d 479 Cal.Rptr. [276 Here, the inferences the relied on facts of record and prosecutor properly therefrom, knowledge drawn rather than reasonably any personal purported (Ibid.-, or 4 Cal.4th 1059 belief. see v. People Stansbury Allen a believable 846 P.2d that was argument Cal.Rptr.2d 756] [“The comment who done of soul was a witness had a deal great searching proper evidence, on the the not an on the of prosecutor personally attempt part vouch for the witness’s credibility.”].) B., also fall

As for the remarks witness Karen they prosecutor’s regarding Defendant into the of comment on the evidence. empha- category legitimate not deceive” the sizes the assurance that he “would prosecutor’s personal to the con- remark was linked probably merely prosecutor’s But this jury. conviction. for the to consider the jury prior that it was appropriate cession occurred, event, it was harmless. undoubtedly misconduct assuming In any one 53 Cal.3d at (See personalized v. People Sully, supra, p. [“The and would that the had not deceived the jury reference—a remark prosecutor brief, innocuous, references and followed immediately by not lie to it—was There no conceivable to evidence on witness was credibility. preju- bearing remark.”].) dice in the to defendant ever had

As for statement that “no case I have seen” the prosecutor’s evidence, observes that such defendant overwhelming correctly prosecu- or be- tors should not on their outside rely experience personal purport Indeed, to the liefs based on facts not in evidence when they argue jury. statement was “objection- herein have conceded the foregoing People 1030; Edelbacher, v. (See People 47 Cal. 3d at supra, p. able.” People Bandhauer 66 Cal.2d 529-530 900] for that argue during error prosecutor repeatedly penalty phase [reversible “ he had seen some his ‘pretty depraved many years public practice “ But, worst].) defendant was the in light strong and that character^]’ offense, defendant to the Martin it is not likely ballistic evidence linking claim. v. Stans- influenced unduly prosecutor’s at “not [holding inappropriate,” prosecutor’s Cal.4th bury, supra, p. “ I’ve ever the best case I’ve ever seen case any statement ‘that’s ”]; and consciousness of guilt.’ of intentional misrepresentation prosecuted Rich, the evidence 45 Cal.3d at comment on [“fair” “ where T have never seen deliberation and prosecutor argued premeditation ”].) like that.’

3. Personal CommentsAbout Counsel Defense argument improperly dispar

Defendant suggests prosecutor’s defense counsel and that counsel believed his client was aged guilty. implied however, record, Our review the both that defense counsel failed indicates to the comments were proper. and that object argument, prosecutor’s occasion, counsel would On one that merely argued “[e]ven concede, (italics added), I that was a first murder” imagine, degree would this rebutted comment that defense counsel could have readily speculative occasion, own On his another during argument. prosecutor suggested inference an could be drawn from the defense’s failure to call incriminating witness, a rebuttal the evidence. a fair comment on A coun- third stressed that defense portion prosecutor’s argument elements of the sel’s failed to contest certain argument “conveniently” crime, over and some defense counsel’s indignation “patently expressed murder. eyewitnesses offensive” remark that there were no to the Again, on these were fair comments the evidence. to the

The also criticized defense counsel for prosecutor suggesting jury be that the law enforcement witnesses must all be may lying. (“They lying, he is what he told He didn’t use the word That is what basically you. ‘lying.’ or is This too seems fair comment on the inference to be saying.”) argument drawn from defense counsel’s earlier remarks to the that “All of these jury witnesses are from law to that expert agencies; enforcement and say they don’t have an or a interest bias—I’m not that would saying they specifically bias, come into lie court and because of a but their is thinking to be going the lines of and of conviction as to along defense.” prosecution opposed contends the Finally, defendant demeaned defense counsel’s prosecutor integrity by observing defense can twist a “any experienced attorney little, little, to try draw some poke speculation, get to try you buy view, . . In our something . .” argument was prosecutor’s foregoing To observe unobjectionable. that an counsel will experienced defense at- to “twist” and at the tempt “poke” case not amount prosecution’s does to a attack on counsel’s personal (1995) v. integrity. Gionis 9 Cal.4th People 1196, 456, 1199]; 1214-1221 892 P.2d v. Cal.Rptr.2d People Espinoza [40 806, (1992) 682, 204]; 3 Cal.4th 819-821 Cal.Rptr.2d 838 P.2d People [12 v. 954, (1990) 492, Miller 1289]; 50 Cal.3d 790 P.2d Cal.Rptr. People [269 v. Bell Cal.3d 129].) 778 P.2d Cal.Rptr. event,

In indicated, any as defendant previously raised no objection any and, the prosecutor’s remarks foregoing was accordingly, point waived for appeal.

4. Appeals to Passion or Prejudice

The prosecutor, to the defense referring observation that no eyewit nesses had Martin, testified of victim regarding stated that if the slaying case, law required an eyewitness almost all murderers who kill the every witnesses “are free.” going go asked the Subsequently, to “do the to do right thing, not for our justice, or society, necessarily Martin, exclusively, but for Craig an year-old boy just who working at a gas station one night.”

Defendant contends that the foregoing arguments improperly sought to the appeal jury’s (See. passions prejudices. Pensinger 52 Cal.3d 899]; 1250-1251 (1983) Fields 35 Cal.3d 362-363 680].) Yet, cases, as we concluded we see no foregoing reasonable proba- that the brief bility and isolated comments could have prosecutor’s influ- Moreover, enced the jury’s guilt determination. defense counsel failed remark, or seek an admonition as to either so object any objection waived for appeal.

5. Misstatement Lawof law, The some of the prosecutor, summarizing told the that applicable jury murders, all elements, whether or second share three degree, first (1) unlawful, a that was namely, killing, with intent to kill unlawfully. Then, the stated that these prosecutor elements are established in “[o]nce mind, then your you must determine whether or not it’s first murder degree or a second degree murder. Let me tell . . . this you is not a second degree murder. Second murder has degree none the elements ...['][] of first (Italics added.) . . . murder.” degree

The continued by that the evidence in the explaining case murder, showed first based on either a degree or a premeditation theory He felony-murder did not return to the theory. of second subject degree murder. Defendant now that the argues prosecutor’s inconsistent argument misstated the law and confused the probably the elements jury regarding for first and second required murder. degree it that the

Although appears defendant waived the prosecutor misspoke, Moreover, point by failing object an admonition. request error any was harmless in light of the correct instructions on the of first and subject second murder that degree were to the given The was told that it jury. jury instructions, should the law stated in apply and that if said anything by instructions, the attorneys conflicted with those the latter would control. Further, the was told that jury written copies instructions were available for its use during deliberations. The record is silent regarding any or confusion on the inquiry jury’s the elements of first or part regarding Thus, second degree murder. we conclude it is not reasonably probable was misled misstatement. prosecutor’s 6. Cumulative Prosecutor’s Misconduct Effect of

Defendant concludes by contending although prosecutor’s remarks, alone, various standing not disclose may probable prejudice case, in the aggregate these remarks should be deemed prejudi seen, however, cial. As we have few of the very statements prosecutor’s may misconduct, be characterized as and those few or inaccurate state- improper were not ments serious even in the to enough, have aggregate, prejudiced Moreover, indicated, defendant. as we have defense counsel failed to object to any remarks or to an foregoing admonition to the request jury and, of them regarding he waived any accordingly, his thereby right of them on And the complain appeal. given harmless nature of the generally issue, statements at counsel’s failure to resulted in object no prejudice defendant and thus cannot be deemed prejudicial incompetence.

O. Sua Instruction on Sponte Shackling

As discussed in previously connection with a claim on the bearing trial, of competency phase defendant was shackled aas result of his past and present behavior. Defendant disruptive contends the trial court should have instructed the sua jury his in sponte disregard shackles the deciding guilt and issues. The court penalty to conceal the attempted shackles from the jury the by shrouding table, front and sides of the counsel the court although indicated that it was that some likely jurors would see the eventually shackles. ante,

As we in previously (see II.C. explained part 732), “if the p. defendant’s restraints have been viewed the by jury, court ordinarily should instruct not to consider jury the fact that restraints have been in Duran, employed determining (People supra, guilt. Cal.3d at 291-292.) pp. But no sua sponte instruction is if the required restraints are not visible Livaditis[, (People supra, Cal.4th at by jury. 775.) Moreover, p.] failure to give such an instruction . . . be deemed may harmless if the omission is [as here] other substantial unaccompanied by errors and the guilt I, (Medina issue is not closely contested. 898.)”

Cal.3d at p. case, In the present given court, measures taken cautionary by the trial it is doubtful that any jurors saw actually defendant shackles for more than a few seconds. As we (ante, previously 735), observed III.A. part reason of conduct, his disruptive defendant was absent from most of the guilt and all of phase of penalty his trial. Under such phase circum- stances, a instruction cautionary could have called undue attention to the fact that shackled, defendant was a man. dangerous we find no Accordingly, error or abuse of discretion in such instruction failing give sua sponte.

P. Evidence Consciousness Guilt

Defendant contends that the court erred in instructing it could consider a pretrial statement by defendant as his con indicating sciousness of indicated, As guilt. previously evidence disclosed that some

cash had been taken murders of victims Ariza and Martin during robbery on October 18 and 19 Defendant’s sister testified at trial that respectively. bills, she saw defendant with a “roll” of that on October defendant Rocco, however, told her he had received some from Phil Rocco. money testified that he had not defendant given any money.

Over defendant’s the trial court instructed the objection, that if jury defendant made willful any misstatements the crimes for which “concerning tried, he is now being consider such ... a statement you may as a However, circumstance a consciousness of such tending prove guilt. conduct is not sufficient itself to by and its and prove guilt, weight signifi- cance, if are any, (See matters for determination.” CALJIC your 2.03.) No. “misstatement,”

Defendant that his argues if did con- supposed not any, “crimes,” cern his the instruction should not have been accordingly that, evidence, The given. trial court disagreed, under the observing jury could infer that the roll of reasonably bills seen defendant’s possession came from the robberies. cases,

As in several we find no error in prior giving challenged instruction, which left it to the to decide whether jury any misleading made, so, statements were and if what should be to the weight given (See evidence. v. People Breaux 1 Cal.4th 303-304 [3 585]; Ashmus, Cal.Rptr.2d v. People supra, Cal.3d at pp. 976-978; Morris, v. 215-216.) supra, Cal.3d

We have likewise rejected related that CALJIC No. argument 2.03 is an improper argumentative (see instruction pinpoint People Kelly, 1 Cal.4th at supra, 531-532), and we pp. see no reason to reconsider that holding.

Q. Reasonable Doubt Instruction Defendant contends that the court used a flawed” defini- “constitutionally tion of reasonable doubt when it instructed the to CALJIC No. jury pursuant Nebraska, (See U.S__[127 2.90. The lacks merit. Victor v. point supra, 1239]; Freeman, L.Ed.2d 114 S.Ct. at Cal.4th pp. 501-505.)

R. Instruction on Other Crimes Evidence

Defendant contends the trial court erred in instructing guilt phase crimes jury any uncharged could be a mere proved preponder evidence, ance of the rather than a reasonable doubt. As beyond previously indicated, the to introduce evidence of two permitted rob- murders, each committed under bery circumstances similar to the charged offense.

The court instructed the that the existence of defendant’s “other crimes” could be a proved “by preponderance (See evidence.” view, CALJIC 2.50.1.) No. In defendant’s this instruction was erroneous and conflicted with the court’s instruction to the general effect that facts estab- lished circumstantial through evidence and admitted to establish defendant’s must guilt be (See reasonable doubt. proved beyond 2.01.) CALJIC No. First, we observe that defense counsel the instruction at requested issue and, error in accordingly, it must any be deemed invited giving error. (1993) 610, v. Wader People 5 Cal.4th 788, 657-658 854 Cal.Rptr.2d [20 80].) P.2d defendant Although asserts that this requesting instruction re flected his counsel’s we incompetence, cannot determine on this record that counsel had no rational tactical (Id. 658.) so. purpose at doing As we shall the instruction a explain, standard one where frequently given “other crimes” evidence is elicited. an Requesting standard in applicable seldom, ever, struction would if be deemed , inadequate representation. merits, On the we have held long that “during the trial guilt evidence of other crimes bemay a proved by of the preponderance evidence ....’’ v. (People (1969) 793, McClellan 71 31, Cal.2d 804 457 P.2d Cal.Rptr. [80 871]; see 304, v. (1962) Rosoto 779, 58 Cal.2d 331 373 Cal.Rptr. [23 867], P.2d and cases cited sufficient]; [“substantial v. proof’ People Lisenba (1939) 14 Cal.2d 429-430 P.2d [proof beyond [94 reasonable 569] doubt cf. unnecessary]; v. Dowling United States 493 U.S. ” 708, 717-718, L.Ed.2d 110 S.Ct. ‘similar act’ evidence 668] admis [“ “ sible in federal courts ‘if the can conclude reasonably that the act occurred and that the ”].) defendant was the actor’ The a “beyond reasonable doubt” standard is applicable to evidence only of “other crimes” to be sought admitted as evidence aggravating at the penalty of trial. phase v. (People Robertson Cal.3d 279].) Prior cases that the explain facts tending defendant’s other prove crimes for of purposes his establishing criminal or intent are knowledge deemed mere facts” “evidentiary that need be not a proved beyond reason able doubt convinced, as long doubt, as the jury is such beyond of the truth of the “ultimate fact” of the defendant’s or knowledge intent. (People Lisenba, 430-431, supra, Cal.2d at cited.) pp. and cases

The courts have acknowledged “other crimes” evidence have a may substantial on impact the jury’s determination whether the defendant should Robertson, Thus,

live or die. (People 53-54.) 33 Cal.3d at at the pp. it is penalty phase, appropriate require proof beyond reasonable doubt as crimes, to defendant’s other for given high To potential prejudice. however, such at the require exacting proof could convert guilt phase, into a guilt series collateral phase minitrials conducted whenever seek to on such evidence to assist in rely proving defendant’s intent or similar element identity, offense. The risk of charged the trial would be “sidetracking” enormous.

Defendant that when argues “other crimes” evidence is offered to prove such as matters intent or these facts should be identity, proved by reasonable “beyond doubt” standard to facts usually applicable to be sought But, noted, proved by circumstantial evidence. as the cases have developed rules for the special consideration of other crimes evidence. We see no reason to reconsider compelling those decisions here.

S. Circumstantial Evidence Instruction

In a related argument, defendant contends the standard circumstan (CALJIC tial evidence instruction 2.01) No. undermined the constitutional instruction, requirement reasonable doubt. This proof beyond told part, at both the jury, guilt (1) that if penalty circumstantial phases, evidence is of two susceptible “reasonable” interpretations, must jury innocence, the one accept pointing (2) defendant’s and that if one of such interpretation evidence to be reasonable and the “appears” other unreasonable, the must appears the reasonable jury one. accept view, In defendant’s it was to the improper suggest could jury they an of adopt interpretation circumstantial evidence potentially inculpatory because it merely to be a “appeared” reasonable one. to defend- According ant, the instruction evaded the improperly requirement proof beyond doubt, reasonable and in effect called on the to make a “conclusive of defendant’s presumption” guilt.

First, we observe that defense counsel the instruction at issue requested and, error in accordingly, any it must be giving deemed invited error. Wader, (People v. 657-658.) 5 Cal.4th at supra, defendant pp. Although asserts that this instruction requesting reflected his counsel’s incompetence, we cannot determine on this record that counsel had no rational tactical in (Id. so. purpose 658.) at doing merits,

On the we have an identical recently rejected to CALJIC challenge (See No. 2.01. 83, (1994) v. Crittenden People Cal.4th 144 9 Cal.Rptr.2d [36 474, 887], 885 P.2d cited.) and cases

765 T. Counsel: Incompetence Double Jeopardy

Defendant faults his trial counsel for on a double failing rely indicated, defense. As in earlier jeopardy previously in proceedings Orange defendant was for County, three counts of murder. prosecuted During trial, of that earlier admitted penalty phase evidence of the murder of (See 190.3.) Martin as present Craig evidence. aggravating § defendant, According reason of the Orange County proceedings, should have been charges dismissed on double present jeopardy principles. We have held that the repeatedly constitutional guarantee against double “is where jeopardy evidence of criminal inapplicable is intro- prior activity duced in a trial as an factor subsequent for consideration aggravating aby 140, penalty phase jury. (1993) v. Garceau (People 6 Cal.4th [Citations.]” 664, 664], added; 199-200 862 P.2d italics Cal.Rptr.2d [24 see People v. Visciotti, 71; 2 Cal.4th 718, at p. v. Frank People Cal.3d 372, 1215]; 798 P.2d Cal.Rptr. [274 v. Melton Cal.3d 713, 756, fn. 17 741.) observes, As defendant here the reverse situation occurred: the evidence at issue was first introduced as an factor at the aggravating trial prior in In Orange County. view, double should jeopardy cases which the apply defendant has once “defended” already against at the charges of an penalty phase earlier trial. We disagree. Visciotti,

In supra, Cal.4th at we reasoned page that “[t]he presentation of evidence of criminal conduct past at a sentencing hearing does not place defendant in with to the jeopardy offenses. He respect past offense, is not on trial for the past is not to conviction or subject punishment, offense, for the past and may not claim either trial or speedy double jeopardy protection against introduction of such evidence. also [Citation.]” States, Dowling United supra, 493 U.S. L.Ed.2d 717-718]; v. People Douglas 50 Cal.3d Cal.Rptr. 640]; 788 P.2d Melton, 754-755.) Cal.3d at pp.

We see no reason why foregoing should not analysis here. apply Defendant was not in placed when evidence jeopardy of the present charges was introduced at his Orange trial. County defense Accordingly, counsel was not incompetent to assert a failing double at the jeopardy objection trial of the present charges. Penalty

IV. Phase Issues

A. Nonstatutory Evidence Aggravating

Defendant contends the were to introduce improperly permitted as evidence aggravating at the penalty phase some evidence not to the relating factors set forth in statutory aggravating (See section 190.3. People Boyd (1985) 38 Cal.3d 775-776 782].) The claim lacks merit. As will defendant failed to to much appear, object and, evidence at issue he waived the accordingly, thereby on objection event, In the evidence was either relevant appeal. any to the issue or penalty of such a minor character as to render error in its any admission clearly harmless.

1. Evidence Racial Hatred of Defendant’s evidence,

Defendant points guilt at the phase repeated penalty that defendant had a swastika tattoo. phase, This evidence was initially admitted to corroborate the “other crimes” properly of witness testimony B., Karen who testified she saw such a tattoo while defendant was engaged ante, 750.) her. raping Karen also testified at the penalty phase, her, assault, without that objection, defendant told the sexual “that he during was and that I a part nigger, was now because he was nigger part nigger.”

Defendant claims that the evidence of defendant’s swastika tattoo and his B., use of the racial while Karen epithet with other raping together properly admitted evidence that defendant had attacked two Black men while in combined to create the prison, that defendant prejudicial impression was a racist. The claim seems dubious in light defendant’s statement to Karen event, that he was In Black. part any evidence was either foregoing relevant (the tattoo) on or admitted independent grounds without objection (the slur), racial and the made no to use such evidence to attempt circumstances, defendant as a racist. paint Under the the court did not err in it. admitting

2. Evidence ViolentActs in Prison of Defendant’s

Defendant contends that evidence penalty phase his vio regarding lent acts in prison created the improperly officials impression prison could not control his conduct. He that evidence of his violent acknowledges (assaults inmates, barber, conduct on several prison a correctional prison officer, 190.3, and a assistant) doctor’s was admissible under section factor (b). But he contends that related admitted. testimony improperly

Thus, in the him, course of about defendant’s assault on testifying prison testified, Officer Coates over that objection, defendant was one of those inmates cells, who were in restraints always placed when removed from their and that Sherwood, Mace seemed to have no effect on him. Officer testifying inmate, observed, defendant’s assault on regarding another without objection, that housed in a that facility, defendant was maximum Sherwood security area where broke out for “own stayed from the the his away fight protection, individual,” of that another officer knowing physical capabilities unable him in the to defendant’s assault buttocks with shooting stop despite a .38-caliber and that officers were to subdue him. several needed pistol, defendant, to indicated

According testimony to foregoing improperly that he was uncontrollable an jurors personnel, essentially prison inference that could have induced the to the death impose penalty. Indeed, the said as much his prosecutor during argument. closing (E.g., “There is no this is no controlling There him from person. way prevent .”) contact other having with . . . We find no error. people prejudicial First, defendant has waived the of or right any complain testimony Pinholster, argument to which no objection was made. v. (People supra, 1 Second, merits, 960-961.) Cal.4th at on the have pp. our cases generally allowed the the defendant’s future argue dangerousness in Danielson, based on the evidence in the prison, case. v. (E.g., People supra, 720-721; Pinholster, 963; Cal.4th at v. pp. 1 Cal.4th at cf. supra, p. People Murtishaw 29 Cal.3d inadmissible [holding expert

446] that will predictions commit persons violence].) future acts of that the court erred in Assuming arguendo allowing defendant’s testimony such error regarding uncontrollability, was harm- any less. Given the conceded of of admissibility array evidence defend- crimes, ant’s assaults and prison numerous violent prior additional issue, evidence at including resistance to Mace or seeming wounds, gunshot would have added little of substance to the jurors’ impres- sions his regarding dangerousness. Pinholster,

As in 961-963, Cal.4th at where pages similar evidence of prison incidents was admitted with evi- along proper dence of the defendant’s violent we that prior activity, conclude light “[i]n circumstances of crimes and the charged volume of evidence of prior admitted, criminal that was activity there can no properly be reasonable that possibility admitted any improperly (Id. evidence was at prejudicial.” omitted.) fn. 3. Evidence Attempted Escape

The prosecutor evidence presented that defendant attempted from escape struck, an Arizona shoved, courtroom in that he or violently so, collided with a officer in the probation course of and doing he resisted rearrest by his kicking flailing hands and fists at the officers that,

who subdued him. Defendant contends because there was “insufficient violence, evidence” of a or other involvement of battery incident was 190.3, (b). inadmissible under section factor We There was disagree. ample actual, evidence that defendant’s involved or threatened attempted escape (See use of violence. v. Mason 52 Cal.3d 954-956 [277 950]; 802 P.2d v. Cal.Rptr. People Boyde Cal.3d 25].) event, In in any the other admitted light evidence of defend- properly crimes, ant’s violent error in any evidence was admitting escape clearly Danielson, 722; harmless. People v. 3 Cal.4th at supra, p. Pinholster, 963; 1 Cal.4th at supra, 52 Cal.3d p. People Gallego, at 196.)

4. Evidence Karen B.’s Fear of Defendant Prosecution witness Karen B. testified without that she objection delayed for a week defendant’s sexual assault because she was “afraid to reporting view, to the go In defendant’s that remark police.” viewed probably defendant, as Karen’s fear of jury indicating an irrelevant factor at the But the penalty phase. remark was ambiguous. Although trial court gave defense counsel the Karen’s counsel de- opportunity clarify response, event, minor, clined to do In so. any was too testimony comparison case, with the other evidence in the to have aggravating possibly prejudiced defendant.

5. Evidence That Bail and Claimed Falsely Defendant Forfeited Rehabilitation

The introduced evidence prosecutor on rebuttal that in showing defendant, while on bail and on a awaiting California sentencing felony charge, fled to Arizona in violation of his The also probation. 1982, defendant, established that in March arrested on unrelated Arizona charges, wrote a letter to a California court that his claiming supposed rehabilitation either justified the California or dismissing charges imposing sentence for them with the Arizona concurrently charges.

Defendant contends that the evidence was irrelevant and foregoing poten- tially prejudicial, that he was a “bail informing who made jumper” false claims of rehabilitation to obtain a less severe sentence. The evidence irrelevant, was not as it corroborated the evidence disclosing event, minor, convictions. In prior was too any testimony comparison case, with the other evidence in the to have aggravating possibly prejudiced defendant.

6. Evidence Dream Violent of Defendant’s sister, McIntosh, Irene gave

Defendant’s generally mitigating pen evidence defendant’s and childhood. alty phase regarding family background testified, But on without that cross-examination she she objection, began fear defendant he told her of once a dream which he viewed her naked back, which bore scratches and blood. After defendant was arrested signs on the current McIntosh told a detective about the dream and charges, that she would been speculated have defendant’s “next victim.” maybe observes, As defendant this dream evidence was irrelevant. A probably factor, sister’s “fear” of her brother is neither nor proper aggravating evidence, rebuttal her proper “background” evidence. But the mitigating dream, in the form of a was also too obscure and nonfactual in speculative, Moreover, nature to have defendant. failure possibly prejudiced his to object waived the for point appeal.

7. Evidence Arrests Defendant’s examination, sister, On McIntosh, direct defendant’s indicated that defend- ant’s conduct after he changed Quentin was released from San in the prison cross-examination, 1970’s. On (“I so”) McIntosh guess that acknowledged defendant “was arrested numerous times before for violent actions on his She also that part.” agreed her brother “had a extensive contact fairly with the criminal he justice system Quentin.” before ever went to San

Defendant now contends that the court erred in McIntosh to allowing confirm defendant’s arrests rather than his convictions or commission of actual violent crimes. Defendant observes that mere correctly arrests are inadmissible, usually whether as of guilt (see or proof impeachment v. Anderson (1978) 20 Cal.3d 650-651 Cal.Rptr.

1235]), or as aggravating (see evidence penalty People v. phase Hamilton 60 Cal.2d 383 P.2d 412]).

The trial court had permitted the on the testimony it tended to theory rebut McIntosh’s direct that defendant’s acts testimony violent commenced after he was released from But evidence of mere for prison. “arrests” violent conduct is not rebuttal Nonetheless, evidence for proper this purpose. evidence at issue was clearly harmless of defendant’s light extensive criminal record.

8. Evidence That Stole a Truck and His Threatened Father Defendant On cross-examination rebut her testimony regarding loving relations with his family, elicited from witness McIntosh that truck,

defendant’s father asked him whether he had stolen a and that defendant later told McIntosh he would his face and kick the “slap [father’s] him” if he shit out of about the incident. Defendant contends “says anything” irrelevant, that the was but we find it was foregoing testimony proper event, cross-examination. In the was too minor to have any testimony indicated, resulted in As the was well aware of prejudice. previously jury defendant’s violent tendencies. Evidence That Stole a Gun

9. Defendant ante, (see 750), As in discussed III.H.4. the previously part p. evidence that defendant stole a prosecutor presented guilt phase indicating the murder from a He now asserts such gun (probably weapon) pawnshop. evidence was inadmissible and have him at the might prejudiced penalty observed, however, As we defendant failed to to such evidence phase. object trial, at the waived for Even if no waiver point accordingly appeal. occurred, had evidence that defendant stole the was relevant indicating gun information of the background circumstances offenses regarding charged 190.3, (see (a)) factor and could him in have hardly prejudiced light § admitted, “other crimes” evidence referred to above. properly 10. Evidence “Grim Tattoo Reaper” of Defendant’s (ante, 749), in As noted III.H.l. witnesses previously part prosecution confirmed at the that defendant had a tattoo guilt phase “grim displaying reaper.” Although defendant contends such evidence was irrelevant and the evidence was relevant to the identification issue. potentially prejudicial, event, In error was in any any harmless of the substantial “other clearly light crimes” and “violent character” evidence admitted during properly pen alty phase.

11. Summary We conclude that the admission of all of the foregoing aggravating evidence, whether in viewed or did not constitute individually aggregate, error. defendant’s additional claim of prejudicial Accordingly, incompetent representation by counsel to such evidence must also fall. failing object B. Erroneous Instructions on Phase Evidence Conflicting Penalty that,

Defendant contends from the asserted errors in admitting apart evidence, irrelevant and foregoing assertedly potentially prejudicial trial court also erred in as to how it should treat such instructing jury evidence. consider,

The court instructed the “all” of jury determining penalty, 8.85.) the evidence received at of the trial. CALJIC No. The any part court also instructed that evidence of other crimes involving force or violence or (Id., the threat of violence could be considered. No. not, 8.87.) The court did however to list the “other crimes” the attempt jury consider, could or to the irrelevant evidence properly which the specify should ignore.

Defendant contends that the instructions the use of regarding aggravating evidence were thus inconsistent or But defendant failed incomplete. Johnson, instructions request any clarifying (see on the v. subject People 52), 6 Cal.4th at and supra, we have held that the p. court has no sua sponte (see to them v. duty give People 1267). 52 Pensinger, supra, Cal.3d at p. C. Lack Adequate Notice Evidence Aggravating of of defendant, to

According until two court prosecutor delayed days before trial in defendant notifying of his intention to on rely defendant’s three assaults committed while in or jail and also prison, in such delayed notification regarding until the escape the evidence attempt day was (See 190.3.) presented jury. defense counsel Although objected § to the evidence, as to the delay assault he did not a continuance as request either the assaults or the escape. unless the

Ordinarily, notice untimely affected earlier adversely proceed- the failure to ings, seek a continuance of precludes any showing prejudice attributable to delay notice giving of evidence. aggravating (People v. Johnson, 51; Pinholster, 6 Cal.4th at supra, p. v. People 1 Cal.3d at supra, 957-958, cited; pp. and cases 605, see (1988) v. Walker People 47 Cal.3d 863, 637 Cal.Rptr. 70].) 765 P.2d [253 Defendant suggests that the delayed notice concerning escape attempt evidence was prejudicial because it came too late to him to permit on voir dire explore whether the could jurors remain impartial such despite hearing evidence. indicated,

As previously defendant did not to the notice object delayed regarding evidence. His escape sole objection to such evidence was on separate grounds, its namely, supposedly nonviolent character. Accordingly, he waived the Johnson, for (See point v. appeal. 6 Cal.4th at People p. 51; v. People Cooper, supra, 842.) 53 Cal.3d at

Defendant contends that defense counsel was incompetent failing request continuances to allow more time to for trial. But we have no prepare basis record, for on this concluding, that such omissions were inadvertent. trial; had

Counsel have tactical reasons for not may seeking of delay indeed, counsel not have may needed additional time to for trial. prepare Moreover, in of the additional light aggravating evidence properly presented it is not by People, reasonably omissions probable any regarding were notice People Wright Cal.3d 423- prejudicial. 221]; Cal.Rptr. Turner 50 Cal.3d 887].) P.2d D. Evidence Prior Crimes Barred Statute Limitations by of

Defendant contends that the improperly permitted introduce evidence of several of defendant’s “other crimes” the fact despite “remote,” that such crimes were “stale” and for such prosecution crimes was barred statute limitations. applicable Defendant failed to object evidence, however, to such and therefore waived the on point appeal. event, In neither any remoteness nor the expiration statutory limitations bars admission of a defendant’s period crim- prior unadjudicated 190.3, inal for activity (b). (See of section factor purposes v. Rod- 1060, (1994) 235, 1]; 8 Cal.4th rigues 1161 885 P.2d Cal.Rptr.2d People 1233, 1339; Johnson, v. 4 Cal.4th Cummings, supra, v. People supra, 1244; 147, Cal.4th at v. Heishman p. People Cal.3d 192 [246 629].) 753 P.2d assertions, As we stated in to Rodrigues, defendant’s “Contrary state has a interest in a to legitimate and consider a defend- allowing jury weigh ant’s criminal conduct in prior determining so appropriate penalty, long as reasonable are taken to assure a fair and steps trial. impartial penalty Remoteness of the offense affects the not weight, [Citation.] of admissibility, the offense. v. (People 1161.) 8 Cal.4th at Rodrigues, supra, [Citation.]” p. Similar would reasoning to use of apply “remote” convic- assertedly prior 190.3, (c). tions admitted under (Cf. section factor v. People Raley Cal.4th 712].) 910 Cal.Rptr.2d E. Counsel: Incompetence Double Jeopardy of (ante, As discussed in previously 765), III.T. part defendant faults his counsel for to raise a double failing defense at the He jeopardy guilt phase. the same repeats in relation to the argument addi- penalty phase, claiming that tionally admission of “other crimes” evidence at the was penalty phase Our improper. foregoing double claim on the analysis, rejecting jeopardy merits, Visciotti, here. As we applies stated 2 Cal.4th at page of presentation evidence of criminal conduct at a “[t]he past does not the defendant in sentencing hearing with to place jeopardy respect Garceau, offenses.” also past supra, Cal.4th at pp. 199-200.)

F. Counsel: Incompetent Penally Phase Evidence defendant, to

According his counsel “an abbre presented extremely indicated, viated defense case in the penalty As phase.” previously Irene McIntosh, sisters, one of defendant’s testified his regarding childhood and family background. defense Additionally, counsel a presented closing argu ment that included references to a doubt lingering regarding to the guilt, finality a severity life-imprisonment-without-parole sentence, to defendant’s sister’s his testimony regarding family background, and to various of the court’s aspects penalty instructions. phase

Defendant contends his counsel was ineffective in failing more present evidence, or mitigating to the explain jury death sentence why was in this case. He inappropriate observes that the record suggests availabil- ity additional members and family witnesses who could expert have given mitigating For testimony. defendant asserts example, that “it is likely that sister, other Sylvia [defendant’s would have Ayala] given testi- mitigating Furthermore, . . . mony. it is that likely father appellant’s would have been willing to testify try persuade this case to jury his son’s spare (Italics life.” added.) Additionally, defendant’s brother and third sister “might well have told the they cared for and would be hurt appellant if he were (Italics executed.” added.)

Similarly, defendant assumes that psychiatric testimony available “to explain appellant’s abnormal condition to psychiatric Defendant jury.” observes that similar and psychiatric other expert was elicited at testimony his (before competency trial a and he separate jury), that such speculates testimony remained available and could have been presented during penalty phase.

On direct a claim of appeal, ineffective counsel cannot be established by mere speculation regarding “likely” testimony available potentially (See, witnesses. e.g., 264, 288-289, v. Jackson People (1980) 28 Cal.3d 293 603, Cal.Rptr. 149].) [168 We cannot assume from a silent record that particular witnesses were ready, and able willing to give mitigating nor testimony, can we speculate concerning content or sub probable stance of such testimony. trial,

At defense counsel stated on the record his reasons for declining call members, additional family his fear that namely, would disclose on they

774 cross-examination information damaging regarding defendant. Similarly, defense counsel set forth his for reasons not or eliciting other psychiatric evidence at the he believed such witnesses expert penalty phase: might give on incriminating testimony cross-examination to the effect that defendant was or had committed further feigning incompetence, acts of criminal violence. counsel that he had Additionally, no recent explained psychiatric to submit because reports defendant had refused to talk to doctors any during the past year. record,

On this and without a clearer of the available picture or testimony evidence, we have no for basis practical counsel’s tactical second-guessing (See of the risks in it. v. appraisal presenting Pope 23 Cal.3d 412, 859, 425-426 1].) P.2d A.L.R.4th Similarly, we find no basis for on this record that counsel’s concluding closing (See as a argument matter of law. inadequate People Cudjo, v. supra, 634-635.) Cal.4th at pp.

Defendant also contends that trial counsel was ineffective in failing doubt” instruction to his request “lingering We support closing argument. As we observed in disagree. recently v. 8 Cal.4th People Rodrigues, supra, at page has no federal or state clearly constitutional right “[defendant have the instructed to consider residual doubt penalty phase any about that, Counsel herein well guilt. have assumed may [Citations.]” in the absence of affirmative evidence that some- suggesting possibility robberies, one other than defendant committed the the court would have Cox, refused to such instruction on give request. 20;

Cal.3d at fn. see also People Fauber 2 Cal.4th 24, 831 P.2d Cal.Rptr.2d reasons exist for may declining 249] [tactical on rely doubt at lingering penalty phase].) that, record,

We conclude on this none of trial counsel’s omis- foregoing sions that, constitutes Defendant further inadequate representation. argues trial, counsel’s various aggregate, errors and omissions throughout both the during guilt penalty resulted a “breakdown of the phases, adversarial We have process.” on the previously explained why, present record, none of these matters constituted necessarily incompetent represen- tation. That conclusion remains when we examine counsel’s unchanged acts and omissions in the aggregate.

Most evidence, of counsel’s omissions involved failure to to testi object observed, or But as mony, argument. we failure to to previously object evidence or seldom argument establishes counsel’s v. incompetence. (People Thomas 2 101]; Cal.4th 828 P.2d Cal.Rptr.2d People [7 that, record, 772.) there Ghent, on this at We conclude p. 43 Cal.3d supra, v. verdicts affected by the or were guilt penalty is no reasonable probability (See v. Washing- Strickland representation. counsel’s assertedly inadequate ton, 697-698].) L.Ed.2d at pp. 466 U.S. at supra, p. Photographs

G. Inflammatory crime” of “other that Defendant contends autopsy photographs suffered, Rea, wounds were the head he his naked and body victim depicting that Defendant acknowledges the admitted during penalty phase. improperly Rea and its the wound incurred by were relevant to show of type the photos Nevertheless, according the victim Martin. to wounds suffered similarity defendant, and inflammatory unnecessary.” were “gruesome, to these photos the We examined have that the evidence was cumulative. argues He also in them. no discretion admitting and we find abuse of question, photos contention (pt. we discussion of a guilt phase As in our similar explained III.M., ante, 754-755), we have the that argument photographs pp. rejected cumulative victims excluded because are they of murder must be merely we the evidence in As for the nature of inflammatory photos, other the case. is decision whether admit photographs have stated repeatedly “[t]he its will not be the of the court and ruling within sound discretion trial ‘ disturbed, out- clearly the is “unless the value of probative photographs ’ the their effect.” We have examined weighed by prejudicial [Citations.] are they and indeed gruesome, conclude that are photographs although they its horrific or that we the trial court abused not so can conclude shocking all, was, with the very them. The after familiar discretion admitting 86,199 of the crime.” v. Cal.4th Hardy Cal.Rptr.2d facts 796, (People Frank, 735.) 781]; As v. 51 Cal.3d supra, see also trial, evidence we stated: “At the the recently penalty photograph] [victim relevant It demonstrated was also to the issues aggravation penalty. relevant to and therefore was circumstances crime graphically determination of the death penalty. appropriateness [Citations.]” 914.) at Raley, 2 Cal.4th (People supra, been have

Defendant effect of could suggests photos prejudicial reduced without their value by converting photos affecting probative conver- color to white. such from black and Defendant’s failure request Frank, sion at trial for appeal. waived point 735.) Cal.3d at p.

H. Argument Prosecution Misconduct During Closing Defendant of mis- contends the committed various instances during object conduct As will defendant failed penalty phase. appear, 776 and,

to the asserted misconduct has waived the on accordingly, point appeal. Clair, event, (See 685.) v. Cal.4th at In People supra, any we find no p. misconduct. prejudicial

1. Personal Injecting Beliefs

Defendant asserts the his prosecutor improperly injected personal (without beliefs into his when he observed defense closing jury argument that the had acts of been “inundated . . . with the sheer objection) just mean, violence that we have heard about. I I in our cannot imagine anyone more society violent and more being dangerous.” III.N.2., ante, 756-758), As we observed previously (pt. pp. prosecutors should not on their outside or purport rely jury argument experience Edelbacher, (See beliefs based on not in facts evidence. v. personal People 1030; Bandhauer, 47 Cal. 3d at v. 66 Cal.2d at supra, p. supra, pp. (Bandhauer) re- 529-530 error for penalty phase prosecutor [reversible without argue, defense that his peatedly objection, during many years “ ’ ” he had seen some and that public practice ‘pretty depraved character^] “ ”].) defendant was the ‘worst’ Defendant remarks contends prosecutor’s herein were We similar substance to those condemned in Bandhauer. disagree. case, Bandhauer,

In the unlike did not present prosecutor purport on his own his as rely personal “many, many years” experience, prosecutor, Bandhauer, or (See other facts outside the record. 66 Cal.2d at any supra, p. Instead, 529.) record, i.e., he alluded to the abundant “other merely facts of evidence, crimes” evidence as admitted properly aggravating penalty evidence, an based on such that he could not expressed opinion, imagine more or violent circum- dangerous than defendant. Under these person stances, we find no misconduct. v. 44 Cal.3d People Hovey that defend- [prosecutor’s suggestion 776] “ ” crime ant’s ‘worst crime one not based commit was possible’ might on secret any information known but instead was “rea- only Ghent, evidence”]; fair sonably comment on the see also supra, “ Cal.3d at remark ‘I know p. [prosecutor’s during penalty argument ’’ did,’ what is for what held not miscon- appropriate penalty [defendant] duct record].) because not based on facts outside

We also observe that admoni- defense counsel failed to or seek an object comments, tion regarding an omission that would prosecutor’s ordinarily Fierro, bar (See, the claim on 1 Cal.4th at appeal. e.g., People supra, 211.) Bandhauer, Defendant observes that in Cal.2d at page But, object. failure to the defendant’s the conviction despite we reversed the case, that prosecutor’s Bandhauer we concluded in unlike the present admonition that an or so objection were pervasive statements objectionable (Ibid.) cured the harm. could not have of defendant’s

Moreover, repeated evidence overwhelming in light influenced conduct, was unduly the reasonably jury it is not possible violent dangerousness. regarding opinion the by prosecutor’s in Prison Future Dangerousness 2. Arguing Defendant’s that asserted at the prosecutor In his closing argument penalty phase, not behave in who could a uncontrollable dangerous, person defendant was view, extending beyond this was argument improper, In defendant’s prison. and essentially telling to defendant’s future dangerousness, a mere reference failure of the for the likely penal it must assume responsibility jury (11th Cir. (See Tucker v. Kemp to control defendant as a prisoner. system 1985) 1508.) We 762 F.2d disagree. Second,

First, we as previ- defendant waived the not objecting. point allowed (ante, 767), our cases have generally noted in IV.A.2. ously p. part in based the defendant’s future dangerousness prison, prosecutor argue Danielson, 3 Cal.4th at supra, on the evidence the case. (E.g., People 720-721; Pinholster, 963.) Both of the 1 Cal.4th at pp. argument regarding cases found similar foregoing proper prosecutorial In the continued violent behavior while prison. defendant’s probable case, of defend- inability on the seeming present prosecutor’s emphasis evidence and was to control him was a fair comment on the ant’s custodians continue to represent relevant to the thesis that defendant would prosecutor’s to others in danger prison. 3. Use Rhetoric Inflammatory indi his

During phase closing arguments, prosecutor penalty terror, that it “the the violence” cated was to recreate impossible try imagine occurred defendant’s crime and asked during spree, on the ground awaiting the terror that each victim must have felt while lying this life execution. The also insisted that can’t “[y]ou give person Martin or to Craig without It is not fair. It is not justice possibility parole. here is what are of the other individuals. It is not and that any justice, you for.” inflamma- unduly

Defendant contends that the remarks were foregoing however, raised, In sought. no and no admonition tory. Again, objection event, of the did not exceed the bounds any prosecutor’s argument propriety. 841, 640, (1982) (See v. Haskett 30 Cal.3d 863-864 People Cal.Rptr. [180 640 P.2d at invited [prosecutorial argument penalty phase properly 776] in victim’s and to her see themselves shoes jurors put imagine suffering]; 64, 527, also v. Morales 48 Cal.3d 571-572 People Cal.Rptr. 244]; 770 P.2d v. 44 Cal.3d at use People Hovey, supra, p. [prosecutor’s child victim v. of of large during penalty phase arguments]; People portrait Fields, 362, 14.) 35 Cal.3d at and fn. supra, p. Counsel

4. Remark Derogatory Regarding Defense remarks, The in his observed that defense coun prosecutor, closing sel would have the last chance to and he without argue, suggested, objection, then “that another that defense counsel raised new is any arguments, if device some defendant contends that this remark was of sort.” Although (see v. Bain People as counsel’s impugning honesty improper 564]), we with that Cal.3d disagree 305-306; Breaux, (see characterization v. 1 Cal.4th People supra, Bell, 538). at the remark was far Additionally, 49 Cal.3d supra, p. Ghent, mild supra, too to constitute misconduct. improper event, 762.) Cal.3d at In was waived failure to by object. p. any point We various either arguments, conclude that none of the prosecutor’s In any or in the constituted misconduct. separately aggregate, prejudicial event, failure to object. each claim of misconduct was waived defendant’s

I. Other Crimes Jury’s Consideration of Defendant’s indicated, intro

As at the prosecutor previously guilt phase and Metal for duced evidence of defendant’s and murder of Ariza robbery case. of and intent purposes establishing identity present must be established aby The was then instructed that such other crimes jury intro At the of evidence. penalty phase, preponderance duced no further evidence these other offenses but asked jury regarding The court to consider them as circumstances in deciding penalty. aggravating instructed the that it should not consider as aggravating properly jury circumstances crimes unless were a reasonable beyond any they proved doubt. to further direct the

Defendant now contends the court erred failing of defendant’s sua to set aside its earlier determination jury, guilt sponte, and, crimes, for these based on a of evidence purposes only preponderance them anew whether defendant committed to consider deciding penalty, instructed The court doubt. We disagree. a reasonable beyond acts as aggra- other criminal of defendant’s it could consider “any” before the defend- doubt that a reasonable beyond it must “first be satisfied vating, any not consider may criminal acts. You in fact commit such ant did We circumstance.” criminal acts as an aggravating evidence of other any If defendant wanted clear and unambiguous. instruction was think this I, (See Medina have one. requested he should more elaborate explication, cited.) at and cases 51 Cal.3d the event, verdict was affected by the reasonably In it is not any possible counsel, uncontra- instruction. Defense absence of a sua clarifying sponte in his closing covered the point dicted the thoroughly precise prosecutor, argument. and Special Double Counting Charged

J. Instructional Error: Offense of Circumstances (see 8.85) that in determining The was instructed CALJIC No. jury consider, factors, it other the circumstances should among penalty, to be true. offense well as circumstances found as any special present defendant, the to count the facts to this instruction According jury permitted the murder “more once in its surrounding sentencing equation.” Martin than double count Defendant also the instruction the suggests jury permitted even they the and the circumstance findings though robbery burglary special criminal were on act. defendant did not request based a single Although instruction, had a sua duty he now asserts that the court clarifying sponte such double prevent counting. contentions, (1)

We that the have similar based on our conclusion rejected the is not undue to the facts jury give underlying present apt weight offenses because those facts also rise to a circumstance merely give special Ashmus, Proctor, 550; (see v. 4 Cal.4th at v. People supra, People supra, p. 997; 54 Cal.3d at v. 46 Cal.3d 520-521 Keenan p. People 1081]), and the is entitled to consider that jury (see defendant’s conduct involved the commission of felonies multiple Melton, the 767). v. 44 Cal.3d at Defendant does not claim People supra, p. the to double the or circumstances count facts prosecutor urged jury special Moreover, in this case. the from the arising of possibility any prejudice (Id. 768-769.) instruction at issue “remote.” is at pp.

K. Verdict “Regardless Instructional Error: to Reach a Just Asking Jury the Consequences” the the trial court instructed

Following guilt phase, properly that, verdict, in it should reach “a jury regardless deciding guilt, just however, At the was not admonished jury consequences.” penalty phase, instruction, which deciding is disregard foregoing inappropriate Keenan, 517). (see v. 46 Cal.3d at Defendant issue penalty People supra, p. reversible contends the omission was error. contention, on

We have this counsel’s recently rejected relying part jury v. of its decision. (People that stressed arguments importance penalty likelihood would 5 Cal.4th at reasonable Mayfield, jury supra, p. [no decision]; it should of its see also disregard penalty conclude consequences Nicolaus, 585-586.) 54 Cal.3d at supra, pp. case, in deciding In the the trial court instructed the jury present and factors mitigating it was to various penalty, weigh aggravating deem was free to “whatever moral or value assign you appro- sympathetic Wrest, 3 Cal.4th at to these factors. priate” minimized where court from instruction “disregard consequences” [prejudice Moreover, defendant].) our instructed it could consider its for sympathy and the review of the indicates that both defense counsel closing arguments decision, the the of the importance jury’s penalty prosecutor emphasized for and of such considerations as appropriateness sympathy compassion defendant, and the all the relevant factors before necessity carefully weigh that decision. making sum, should

In find error in the that it we no instruct failing jury the of its decision. consider consequences penalty L. Error: Factors Sentencing Instructional Vagueness of Defendant contends the instructions failed to channel penalty phase discretion as and Fourteenth jury’s sentencing required Eighth 367, (1992) L.Ed.2d 112 Amendments. v. Black 503 U.S. (Stringer [117 1130].) he that of the section factors S.Ct. 190.3 Specifically, complains crime, (b), factor (a), factor the circumstances of the aggravation, (i), defendant’s were age, existence of other “criminal and factor activity,” _U.S. _-_ (1994) In v. Tuilaepa unconstitutionally vague. California 750, 761-763, 2630, 2637-2638], United States L.Ed.2d 114 S.Ct. [129 factors. Court confirmed the validity sentencing Supreme foregoing 762, 137, (1994) also v. Turner 8 Cal.4th People Cal.Rptr.2d [32 1075, 521]; 878 P.2d v. 1126-1127 Fudge 7 Cal.4th People [31 599, 321, 36]; (1992) 4 Cal.4th 875 P.2d v. Cal.Rptr.2d People Noguera 1160]; v. Tuilaepa, supra, 648-649 842 P.2d Cal.Rptr.2d People 550-551; 569, 594-595; Proctor, see Cal.4th v. at pp. Cal.4th supra, Cal.Rptr.2d also 6 Cal.4th People Berryman 1096-1097 [25 457, 478-479 (1993) 6 Cal.4th 40]; v. Bacigalupo 864 P.2d 808].) Cal.Rptr.2d vague were unduly instructions the sentencing also contends

Defendant which and were aggravating which factors failed to identify they because factors. treat any inapplicable how to jury or mitigating, explain (People this contention. and recently rejected we have Again, repeatedly 207-209, cited.) cases Turner, at 8 Cal.4th Contentions Miscellaneous M. Instructional Error: and mislead as vague defendant challenges In related arguments, defective, penalty of the court’s principal various portions or otherwise ing, 8.88.) That instruction (CALJIC provides, No. instruction. sentencing phase death, must be each of you persuaded return a judgment that part, “[t]o with in comparison circumstances are so substantial that the aggravating of life without death instead circumstances that it warrants mitigating parole.” contentions regard- identical substantially

We have rejected previously record to recon- on the and we discern no reason present this instruction ing Nonetheless, various review defendant’s conclusions. we briefly sider our contentions. inade-

First, word “substantial” was defendant asserts that the subjective outweigh must circumstances aggravating to instruct quate was court’s instruction To the read as a whole the ones. mitigating contrary, that a “weighing” in this for it regard, specifically explained sufficient (See, involved, defined the weighing process. such factors was and carefully 834, 1148, 2 (1992) Cal.Rptr.2d v. McPeters Cal.4th 1194 e.g., People [9 146].) 832 P.2d

Second, permit the court’s instruction improperly defendant contends that where “appropri “warranted” rather than ted a death verdict where merely (People as “spurious” ate.” We described the distinction recently purported in Breaux, 316), language 1 and we observe that v. Cal.4th at p. in this court from instruction approved derives an question specifically 637, 512, 545, (1985) Cal.Rptr. v. 40 Cal.3d footnote 19 Brown [220 440], “mandatory” for the for trial courts as a substitute 709 P.2d use by of the statute. language sentencing

Third, instruction improperly defendant contends the court’s sentencing without parole failed to direct the to enter a verdict of life imprisonment jury ones. Again, in the event circumstances mitigating outweighed aggravating 782

we this that such an admonishment holding was recently rejected argument, of the instruction that a death verdict could be unnecessary light express (Peo entered if circumstances ones. only aggravating outweighed mitigating 955, 273, (1991) 131].) v. Duncan 53 Cal.3d 810 P.2d ple Cal.Rptr. [281 Fourth, defendant that the instruction failed to complains sentencing that it life even if advise could choose without jury imprisonment parole it also found that circumstances ones. aggravating outweighed mitigating (See But v. defendant was not entitled to such an instruction. 635, 181, (1988) Hendricks 44 Cal.3d P.2d 654-655 Cal.Rptr. [244 836].)

Fifth, defendant contends that court’s instructions sentencing improp- failed to a a doubt that erly reasonable require finding beyond aggravating ones, circumstances and that the death outweighed mitigating penalty (See, We have v. appropriate. repeatedly rejected argument. e.g., People 43, 133, (1992) Hawthorne 4 Cal.4th 841 P.2d and Cal.Rptr.2d [14 118] cited.) cases

Sixth, defendant contends that the court’s instruction failed sentencing which had the burden of that death was an explain party proving appropriate But the death law not of the does for allocation penalty. penalty provide any Instead, instructed, burden of as the is is to proof. expressly penalty be determined a factors. by weighing applicable sentencing 52 Cal.3d P.2d People Hayes 376].)

Seventh, defendant contends were inade- that the instructions sentencing failing unanimous truth of quate require jury findings regarding circumstances, various “statement of reasons” aggravating require a death verdict. supporting we have similar Again, repeatedly rejected contentions. v. Pride 3 Cal.4th 268-269 (E.g., People 643]; 214.) 2 Cal.4th at Cal.Rptr.2d People Hardy, supra, N. In-court Identification

Defendant next contends that he was denied due reason by process of an identification at the unduly suggestive photographic procedure penalty (We of his trial. discussed a similar claim to the phases previously applicable III.K., ante, 753.) of defendant’s trial. See guilt phase pt. p. crimes,

In the course of evidence defendant’s other introducing regarding Guzman, the called witness who testified that defendant assaulted defendant she identified in Without defense objection, a bar her in 1975. him, one his swastika showing of including several through photographs and Wilder testified regarding witnesses Schaeffer tattoo. Additionally, witnesses, in 1974. These in a store defendant shoe fight instigated by through identified defendant his photographs. without likewise objection, and was suggestive identification unduly Defendant the procedure asserts (See, v. unreliable, e.g., People object point. but failure to waived his merits, 972-973, Ashmus, 10.) On the as fn. previ- 54 Cal.3d at supra, pp. noted, identification procedure unreliable assertedly photographic ously cir- conduct. Under these own necessitated defendant’s by disruptive cumstances, we in that procedure. find no undue unfairness to Verdict Modify

O. Automatic Motion in court considerations Defendant asserts the trial relied on improper (See 190.4.) Defend- sentence. his for modification of denying application § defendant’s contends the had determined its ruling prior hearing ant court and recollec- and “inaccurate relied on considerations” arguments “improper merit. of the These lack points tion evidence” in motion. denying 1. Case Prejudging record, on to the following argument

According motion, work and modification the court indicated that it had already “begun indi the motion. The court had written entire comments” on virtually my matter, then cated it had and exercised its review independent to read written statement to the Defendant argues its proceeded parties. (See it was the matter this fashion. for the court improper “prejudge” Cal.3d 815-816 Belmontes 310].) P.2d

We tentative in advance disagree. The practice formulating rulings writing and those tentative is argument rulings commonplace reducing 644-645.) 52 Cal.3d at unobjectionable. Hayes, pp. unalterably As we stated in do so does that the court is “To not mean Hayes, if bound it will or even discard the writing or that not amend writing incor- counsel’s its tentative views were arguments court that persuade due rect. court the record indicates that the trial failed Nothing give 645.) (Id. consideration to at hearing.” defense counsel’s at argument case, In the of no more than submitting counsel’s motion consisted present and the matter to the evidence phase court’s discretion based on penalty 784

his No further evidence or previous arguments jury. was argument We conclude that no occurred here. presented. improper prejudgment 2. Consideration Probation Report

Defendant contends the court’s remarks that the “strongly suggest” court, motion, the modification deciding considered a improperly proba tion additional evidence not report containing before the aggravating jury. Wader, (See, 665.) v. e.g., People supra, Cal.4th at The is without p. point merit.

First, (See defendant waived not Hill point by objecting. People v. (1992) 959, 475, 3 Cal.4th 984].) 839 P.2d In Cal.Rptr.2d any [13 event, motion, the record shows that the court ruled on the but before after formal the court indicated read sentencing, that “I have and considered officer’s The court probation made no mention of the in its report.” report motion, lengthy statement of reasons in the modification and thus denying no basis exists for any finding People impropriety. Lang Cal.3d 782 P.2d court and Cal.Rptr. “read 627] [trial evidence]; considered” presentence inadmissible report containing Fudge, 1127-1128.) 7 Cal.4th at pp.

The situation present is different from that in quite v. Lewis 892], 50 Cal.3d wherein trial court, in sentence, the automatic ex- motion for modification of denying stated it on was facts in an pressly relying found inadmissible probation report.

3. Reliance on Evidence Improper Defendant contends the court’s statement of reasons indicated it had relied factors, on evidence that was not relevant to sentencing statutory including such matters as defendant’s nonviolent and dan- his future escape attempt IV.A.3., ante, 767, 768, (see As indicated gerousness. previously pts. pp. IV.H.2., ante, 777), these matters were indeed for the appropriate jury’s consideration in issue. deciding penalty

Defendant also trial asserts the court erred in stating defend- during ant’s attempted he one individual over.” escape According “knock[ed] defendant, the was evidence uncertain to whether as defendant pushed, shoved, or collided with the violently man as he tried leave the courtroom. The is point frivolous evidence clearly light remaining aggravating case, in the cited at in the court’s statement of reasons. length defendant the court that the Finally, contends misstated effect mitigating of defense witness McIntosh’s evidence testimony impeached by Quentin in San incarceration prison. acts criminal prior was admitted. crimes of such prior doubts that sufficient proof Defendant the substantial aggravating minimis in of light is de again, point Once evidence of reasons. in the court’s statement outlined

V. Conclusion in its entirety. of death is affirmed

The judgment J., J., J., Arabian, J., Baxter, Kennard, J., and Werdegar, George, concurred.

MOSK, J. concur in judgment. I 849, 799 P.2d (1990) 51 Cal.3d 870 In v. Medina that the 1282], I was of opinion I would have reversed judgment. could mentally defendant was competent a therein that by jury determination the Fourteenth due clause of without offense to the process not stand scheme statutory Constitution because Amendment to United States flawed was fundamentally et of the Penal Code codified in section 1367 seq. his own incompetence allocation to defendant of the burden to prove its Medina, (f) supra, (People to subdivision section 1369. pursuant Mosk, J.).) (dis. Cal.3d at opn. 913-914 pp. sure, cause, To there is same be

In this I cannot embrace the disposition. statutory determination of mental under the same the same jury competence 437, 442-453 (1992) 505 U.S. But in Medina v. scheme. California Medina, 353, 361-362, 2572], 112 S.Ct. affirming People L.Ed.2d my Court rejected 51 Cal.3d a of the United States majority Supreme due Under view that the allocation of the burden of violated proof process. of their reasoning—I of their not the force compulsion authority—but yield. defect, conclusion, other I join

In because I find no reversible error or affirmance. 24, 1996, and the January for was denied rehearing

Appellant’s petition was modified to read as above. printed opinion

Case Details

Case Name: People v. Medina

Court Name: California Supreme Court

Date Published: Nov 30, 1995

Citation: 906 P.2d 2

Docket Number: S012644

Court Abbreviation: Cal.