*1 Nov. S004770. 1995.] [No. PEOPLE,
THE Plaintiff and Respondent, MEMRO, RAY Defendant and
HAROLD Appellant.
Counsel Nolan, Court, Thomas J. under and Andrew appointment by Supreme Pames for Defendant and Appellant. General, Williamson,
Daniel E. Chief Assistant Lungren, Attorney George General, Pollack, General, Carol Wendelin Attorney Attorney Assistant Jr., Turchin, Marc E. Robert S. and Edward T. Henry Fogel, Deputy General, for Plaintiff and Attorneys Respondent.
Opinion
MOSK, J.
v. Memro
For reasons appear,
Facts Chavez, Jr., of Scott Fowler and Ralph
A found the bodies jogger Park in Bell in John Anson Ford 178 feet near a pond sprawled apart old, Fowler was years Gardens on the 1976. morning July early been cut with a instrument. Chavez 10. Each victim’s throat had sharp before, had been for hours day Witnesses testified that the boys fishing catch in a were their They plastic well into the staying evening. placing The the handle intact. milk with the excised so as gallon-size jug keep top were which found the with nearby, along bologna wrappers, police jug that Chavez had evidence of the A trail of blood boys’ suggested picnic. of death at The medical examiner fixed the time tried to run after the attack. about midnight. Carter, Jr.,
Carl in South Gate on October 1978. missing was reported later amidst He seven His was found some five body days old. years death—a cord was dense scrub a road. He had been alongside strangled an around An found in his anal area suggested still bound his neck. enzyme at attempt sodomy.
I. Guilt Phase
A. The Prosecution’s Case The based on defendant’s confes- case was almost prosecution’s entirely sion, Gate which he of three at the South last gave during interrogations city jail. were interviewing became aware of defendant when they police whereabouts.
individuals who have information Carter’s regarding might *24 went to They his and he introduced apartment, himself in the by saying, “ Sims, words of Officer William T knew were you .... coming I[’v]e time, been Atascadero . .. At the there [State was wide Prison] awareness in South Gate that Carter was missing.
At the defendant apartment, and the discussed police Carter’s disappear- ance. Defendant either said about nothing Carter at all or no provided useful residence, information. The returned to the Carter and while police they there, were defendant came over to off a for drop his with part Volkswagen Carter, Sr., Carl an occasional automobile Officer Sims testified repairer. that he asked him where he had been and what he have seen on the might “ him, he off his car. Officer Sims night dropped testified that he told T remember now . . . . I took—I came to the Sizzler for dinner.’ . . . He said dark, it was before and he had come just the Carter residence ... up Carter, Sr., talk to Carl about on his working Stated that Volkswagen, [f] Carter, Jr., when he to the rear of the house that Carl got was at the rear and conversation, had a short and they he . . . had taken him for a Coke.” Officer Sims then arrested defendant for kidnapping.
There followed the three interrogations that at the At the evening jail. third, Sims, Carter, Gluhak, four officers were Louie and present: Lloyd Dennis Greene. Officer Sims treated defendant and Officer Carter severely tactic, worked, more If this was a it kindly. psychological evidently Carter, Officer an experienced police won defendant’s confi- investigator, confession, dence. Officer Carter took notes of his but it was not transcribed fact defendant taped—in that all Officer requested policemen except Carter leave the room so that he could check it for before bugs making statement. returned,
After defendant they told his Officer Carter testified that story. he Carter, Jr.’s, time, “stated that he had known Carl father for some quite his, that he was a personal friend of he that was a mechanic .... [and] “He decided it would be a time to and talk to him about good stop Sr.’s, [Carter], his repairing That he in the Volkswagen. back of Carl pulled Carl, Jr., house and was to exit preparing his car when little rode on his up . . .” bicycle. Carter said he wanted a soft drink and defendant invited him into his car and drove him to his “He said the reason he wanted apartment. to take him over to his was—that he liked to take of little apartment pictures Carl, Jr., in the boys nude and he was to take some in the hoping pictures bedroom, nude. He said he went into his and took him into his and apartment he turned on these real strobe And fancy these lights. lights began flashing Carl, Jr., to be fascinated with these seemed on and he said on and lights.” Carl, Jr., he wanted to leave. This made said thereafter
Shortly there that he had on the nightstand He the clothesline “grabbed angry. on Carl, Jr.’s, He he then threw him neck and choked him. says it around put Carl, Carl—then he took off he off his clothes and that the bed and that took T-shirt, clothes, Jr.’s, that sometime he his taped all said except *25 He that he had on the nightstand.” his back with masking tape hands behind dead in anal with Carter’s body. then tried intercourse engage alibi, this, and he decided to use the After he knew that he needed an had Volk- the knew that he his get victim’s father for purpose. “[H]e Carl, Sr., if he to call to see he could his get fixed so tried swagen he could.” fixed and Carl said that Volkswagen
Defendant to have a friend drive with him to the Carter home. arranged “Carl, arrived, with Before the friend and neighbor boy by stopped Jr., bed, . . . still in on the conversed with neighbor laying [the [defendant] sometime, slide of naked for and started boy] quite showing pictures [him] left after him his Volkswagen. girls.” boy helping jump-start off. He He drove the car over to the Carter residence and it dropped Carl, Jr.’s, returned to in his apartment, “wrapped body army-type green a[n] blanket and rolled him in with clothes. He said at this he it his up point blanket, the shoes and socks in the but the rest of the forgot put boy’s in the the blanket.” He and blanket over clothing “dumped body side of’ a rural road. The next after a he went to morning, troubled sleep, work. He “had heard about Carl it had been in the because missing newspa- . . .” pers.
Officer Carter that he tied a knot in testified defendant told him had square Carl, neck, the clothesline around Jr.’s and that he had enclosed his wrapped shoes in a red suitcase in his and it under a workbench. garage put
Officer Carter further testified that he defendant to confess to invited other crimes he have might committed.
Defendant then told Officer Carter two before he had years that about visited John red Anson Ford Park Bell on a Yamaha motorcycle Gardens to take of two pictures young young boys walking About he saw boys. dusk toward a with to be a sack lunch. pond believed fishing poles and what he “He He started with them .... one conversing says and taking pictures Scott, male, was named and he was a white about 13 and blond- boys The other was a Mexican named good-looking. boy headed boy Ralph 12[;] a little about he he was fat and that was said younger, ugly.” had a lunch of Defendant sandwiches that explained they bologna Fowler offered him one. As he with them “he was lingered about thinking he Scott’s dick because liked blonds and had a sucking just thing young He that it real late and fell on the bank finally blonds. says got Ralph asleep while were Defendant Fowler to walk to the other they fishing.” persuaded there, When side of real smart and said pond. they got “just got off, about He said this him and he something fucking faggots. pissed knife his 2-inch Barlow out his and bent Scott backwards grabbed pocket his knee in and slit throat and his back. put
“He this caused a commotion and it woke says quite apparently up Ralph who was over on the side He other started asleep pond. says Ralph *26 and he ran that around to where was and [waking] up screaming, Ralph him and him he chased from behind and he slit his throat and grabbed says ran on—and area to on was across running grassy get motorcycle.
“And he he as was on his he looked back and says getting motorcycle . . . had where he from had slit his throat and left him and Ralph gotten up was to walk. He said this scared him a bit and made him trying quite really sick, and he rode his on home. . . .” He discarded his knife at motorcycle work the next day. Officer Carter testified that defendant then “started and crying sobbing, ” said, Carl, Jr.’s,
and he ‘Let’s find The escorted him to the go body.’ police area he had described and found the clad in underwear. body, decomposing A cord was still bound around the neck. to take Although defendant agreed site, to the he them not to make him look at the scene. police begged Carter,
Officer other members of the South Gate Police by accompanied then went to defendant’s was that There Department, apartment. testimony he had them to search it. recovered given permission They pair boy’s shoes and socks in a red suitcase stored underneath a workbench. partly also found in the suitcase and a of clothesline They clothing boy’s length addition, that resembled the cord tied around neck. In found Carter’s they and and a wealth of sexually explicit magazines boys, men featuring young of which showed them young boys, hundreds” photographs “literally unclothed. Some of the were of children. photographs neighborhood
The next Bell Barclift of the day confessed to Officer Donald Gardens In essence to Fowler’s and police. his confession repeated (see milk he had cut the jug how Barclift told Officer He murders. Chavez’s evidence from recover failing ante, 811), chided the police and Barclift testified it.” Officer all over his fingerprints “he had that it given cut so milk jug how the known have precisely killer could that only intact. the handle to leave as and testimony the foregoing rested on essentially case
The prosecution’s with it. consistent evidence Choi, cause that the testified Dr. Joseph coroner’s representative, neck, wound to a cutting Chavez was Fowler and
death of both on that an examination Choi testified Dr. aby rope. was strangled Carter two plus for . . . was “negative spermatozoa anal swab with an Carter revealed the that enzyme result for The positive for acid phosphatase.” of someone gland from the that came prostate of seminal fluid presence than Carter. other as confessions from the of the case theory departed
The prosecution’s asserted in that the prosecutor and Barclift only Officers Carter described by him, killing with Carter before did have sex either tried to or that defendant he described. dead as body on his than an making attempt rather Case B. The Defense’s did, however, a defense. present stand. He
Defendant did not take the *27 murders, was alibi. the defense and Chavez With to the Fowler regard on second- based was a fabrication that his confession Defendant maintained He theorized widely the which were publicized. hand knowledge killings, children killed to the talking of two men seen near that one or both thepi. a remembered Alfie Feliciano two men. seeing Certain witnesses recalled or his to his belt a knife strapped and another with long man on a motorcycle camera, and he He had no jacket. The was a wearing green Army latter leg. hour. Alfie for about an talked to after the Feliciano, brother, officer immediately told a Alfie’s police
José wore a One of them near Fowler and Chavez. that he saw two men killings That to his leg. knife strapped and had a long hunting Army jacket green a green with offroad motorcycle to a man on a yellow individual spoke recalled, confession, said that his In it will be tank. gasoline was red. motorcycle José Feliciano Bushea, accompanied a witness for
Scott prosecution, Fowler and were with He testified men that that two evening. to the park Chavez. Shown in court a of defendant taken picture after his immediately arrest, he testified that the did not photograph depict either of the he people saw the at The park. police prepared sketch of one of the composite men.
Defendant that he could have argued learned all the details of the killings from media accounts notwithstanding the killer testimony only know would how the milk was cut. And he asserted jug that in significant his confession failed to respects match the evidence found at the crime scene or the most inferences to be drawn plausible from that evidence. For in the example, person him, did composite drawing not resemble and the that the witnesses described motorcycle did not match his. However,
Defendant conceded that he killed Carter. that the argued did not amount to killing first murder: the degree prosecution’s account of his confession showed that he killed Carter in a and without rage reflection.
II. Phase Penalty
A. The Prosecution’s Case introduced prosecution evidence of violent prior conduct. In May Schroeder, David the child of neighbors, nine old. Defend- years face, ears, ant beat him and nose, left him from the bleeding and the back of the head. The attack was severe that the enough officer who arrested police defendant said he asked whether he had killed him. Schroeder spent night in the and was left hospital with a nine-inch scar on his On cross- scalp. examination, the learned that the jury defendant to be police perceived and that he told distraught them he did not know he assaulted why Schroeder.
B. The Case Defense’s Over defendant’s objection, defense summoned one witness: Kathy *28 Klabunde, father, his alcoholic, sister. She testified that their an verbally Defendant, eldest, abused the children. would care for the He others. had migraine headaches “on and off for His years.” headaches would cause him I “get very angry easily. remember a where he period downstairs stayed for a where couple it was dark and days cool to out of the stay light because his head hurt.” stated,
As to bar his sought sister’s to a testimony—he objected specific at one question and called her a liar point from at another. his chair retired, After the he jury asked to the case so reopen that he could testify, “I have a He to the jury, just to his stated acceded request. the court and concede the While I do not to the jury. I’d like to read statement [*][] short verdicts, I do feel that since truth, of the jury’s or correctness accuracy on all degree possible in the maximum guilt the verdicts has returned jury circumstance, with a also now return that should they and the special counts Thank you.” as the penalty. verdict of death appropriate mental defendant’s problems, counsel emphasized At closing argument, cir- doubt regarding special with the lingering police, his cooperation Chavez, of Fowler and to the killings in of his alibi defense light cumstance conviction, the lack of a felony of life prior the grimness imprisonment, aspects not be in dangerous prison, positive likelihood that he would character, his remorse when including his background discovered. Appeal
Contentions on
I. Selection Claims Jury Dire Court’s Failure to Conduct Further Voir
A. venire, Cazares, of the asked Elva a member At voir dire the court murder vote to return a verdict of first degree whether she would refuse to She even have to to the death get penalty?” replied, “so that wouldn’t you “Yes, to find the I think I It then asked her if she would vote special would.” She circumstance false in order to a capital penalty phase. allegation stop “Well, it in term. But to sum all just up, it’s kind of that confusing replied, I don’t believe in the death penalty.” venire, “If the a member of the
The court asked Julietta also Lopez, murder, . . . degree that the defendant’s of first proves guilty prosecution something know by voting would refuse to vote for because you you death She other than first murder there wouldn’t be a degree penalty?” “I would.” replied, more
Defendant contends that the court erred failing inquire to the death about the basis for the two fully potential jurors’ opposition result, view, he asserts to an in his was a violation of a right penalty. Amendments. under the Sixth and Fourteenth impartial jury *29 Potential “must be excused if their views on capital punish jurors in ment would of their duties prevent substantially impair performance (1993) accordance with the and their oath.” v. (People Mayfield instructions 818 142, 836,
5 Cal.4th 331].) 169 852 P.2d Cal.Rptr.2d court’s deter- [19 or, mination resolves “what is of fact essentially question more perhaps a mixed that is accurately, factual.” v. question essentially (People Gordon 1223, (1990) 451, 251].) 50 Cal.3d 1262 P.2d Cal.Rptr. 792 Accord- [270 our review is deferential: we determine whether ingly, substantial evidence (Ibid.) supported rulings.
The court ruled that the implicitly ability the two potential jurors to follow their oaths was question These determi substantially impaired. nations were supported substantial evidence. by
First, we note that the court excluded the on potential jurors its own motion after their eliciting views on the death and that penalty, counsel failed to It object. continues to be the rule that “the failure to does not object waive the to raise the issue on right . . . .” appeal (People Cox [citation] 618, 648, (1991) 692, 53 Cal.3d fn. 4 351].) P.2d But the Cal.Rptr. [280 failure to to the “does object rulings defense counsel’s concurrence suggest in the court’s assessment of each firm and sincere venireperson’s expression of his or her (Ibid.) death inability impose penalty.”
Substantial evidence the court’s determination that the supported implicit was, of the ability follow the law at the at a potential jurors guilt phase minimum, substantially Defendant does not us that impaired. persuade constitutional was violated. right
B. Counsel’s Failure to Conduct Further Voir Dire
Defendant contends that counsel were ineffective for failing or at all nine question Cazares and sufficiently jurors, potential including who were excused for Lopez, for what he terms “a cause—specifically, to the death general opposition penalty.”
It is fundamental that “a defendant ineffective assistance of claiming counsel must show both deficient under performance an standard objective reasonableness and professional under a test of reasonable prejudice 463, of a different outcome.” probability (1995) v. Davis 10 Cal.4th 119], Cal.Rptr.2d Strickland v. citing [41 Washington 668, 688, (1984) 693-694, 697-698,104 466 U.S. L.Ed.2d S.Ct. 2052]; People v. Ledesma 43 Cal.3d 215-218 839].) P.2d Counsel were not ineffective. sure,
To be of the of a to an “part guarantee defendant’s right impartial is an jury voir dire to adequate identify unqualified jurors. [Citations.]”
819 492, 503, 719, L.Ed.2d 112 (1992) U.S. 729 Illinois [119 v. (Morgan 2222].) S.Ct. that refers us either made clear to whom defendant each venireperson
But death, more ambiguous vote for or gave slightly would never he or she that could conclude reasonably which the court and counsel from answers minimum, was, substantially the law at a her to follow ability and the of Cazares Lopez. described already testimony We have impaired. ante, Josefina 817.) Docuyanan flatly To other (See examples, provide death,” in to the testified, and answer “I will never vote for verdict first vote for a verdict other than degree “Would automatically you question, the death Pamela about worry penalty?” in order to avoid having [murder] testified, Yes, I would.” “Yes. Elofson
Hence, that counsel lacked a plausible, in the record indicates “[n]othing few or no for these individuals follow-up questions. tactical reason asking Indeed, demeanor of have determined from the counsel might [Citation.] Counsel would be futile. that additional jurors questioning these prospective in the answers concluded that any ambiguity also have might reasonably would retention of had would be beneficial and given promote they already voir in counsel’s on No constitutional jurors. deficiency performance pro-life 569, (1992) 4 Cal.4th dire has been shown.” v. (People Tuilaepa [15 omitted, 1142], sub nom. Tuilaepa 842 P.2d fns. affd. Cal.Rptr.2d _ 2630].) (1994) 114 S.Ct. In the 512 U.S. L.Ed.2d California alludes, of the to whose examination defendant case of many venirepersons have been counsel for either would by superfluous, questioning party times, it At other was court elicited the effectively venireperson’s opinion. defense counsel who confirmed what was already apparent: potential Thus, could not vote for it. even to the death juror opposed penalty un- if counsel were deficient for not each potential juror—an questioning There is cannot conclude that defendant was likely prejudiced. prospect—we differed, would have no reasonable court’s probability rulings differed, had hence that the result have if counsel might questioned at potential jurors length. be
Defendant also asserts that the were excused solely potential jurors that “the exclusion from cause the death He contends they penalty. opposed death to the guilt categorically penalty deprived phase jurors opposed him of a of a of the community, cross-section jury composed representative We have rejected violation of his Sixth and Fourteenth Amendment rights. [citation], such claims as has the United Court . . . .” States Supreme v. Kaurish 52 Cal.3d 278].)
II. Guilt Phase Issues Defendant that errors in or the truthfulness of the deciding guilt asserts circumstance occurred. As will his claims lack allegation special appear, merit.
A. Double and Collateral Issues Jeopardy Estoppel trial, At the the court found defendant of first murder prior guilty degree and found true a of murder Carter’s circumstance killing, special multiple statute, under the death but found not true a circum- penalty special stance of murder under the same law. felony
To find true the circumstance under the death felony-murder special law, “willful, the court had to determine that murder was Carter’s penalty deliberate, and and was committed the commission or during premeditated commission of’ “a lewd or lascivious act of a attempted upon person (Stats. child under the of 14 in violation of Section 288.” ch. age years 316, 9, true, 1258.) (c)(3), subd: circumstance not By finding special § the court have decided that there was no or that there may premeditation, was no or lewd act—we do not know. It could not have attempted completed failed, however, time, decided that both theories because at the same by murder, first it determined either finding guilty degree deliberation, defendant killed Carter with and or while com- premeditation Code, (Pen. or to commit a violation of section 288. mitting attempting 189; code.) unlabeled references are to this statutory § circumstance,
The did not prosecution reallege felony-murder special but did the case under a that defendant was of first try theory guilty degree deliberation, murder or reason of murder or and by felony premeditation both. The was instructed on both theories. jury found defendant of first murder for Carter. jury guilty degree killing
He asked that the be to discover the basis for each vote. The jury polled legal court denied the motion.
Defendant first contends that the double clause of the jeopardy Constitution, Fifth Amendment to the the states United States as applied Amendment, the due that of through clause of the Fourteenth process I, Constitution, article section of the California retrial on barred his that he murdered Carter under charges theories murder felony premed itated and deliberate murder. He this contention on an premises argument that the court must have one it found the of those theories when rejected true, and therefore he should not circumstance not felony-murder special been retried on either theory. have that defendant we note that Preliminarily, among pleas
We disagree. conviction or of the have entered are former judgment acquittal might “[a] 5; “[ojnce 4) (id., subd. see subd. (§ jeopardy” offense charged” *32 1023). former be may affirmatively pleaded, also Not only jeopardy § be, claim on that is not for review. but it must or any ground preserved 385].) (1974) 520 P.2d v. Belcher 11 Cal.3d (People Rather, a when he Defendant did not enter of former plea jeopardy. all, information, at on the amended he refused to enter a arraigned plea Quentin entered a instead to be returned San demanding prison. court of not on his behalf. plea guilty
At oral defendant contended that if we decide the double argument that he did not him on enter jeopardy question adversely ground retrial, on he did not receive counsel. the effective assistance of proper plea us, Without that such claim would we do that agreeing persuade agree we should decide the issue on the merits.
The double clause of the Fifth Amendment to the United States jeopardy Constitution that no shall “be for the same offence to provides person subject be twice of life or limb . . . .” Defendant was convicted of put jeopardy Carter’s murder at his first trial. him on a of did murder not Retrying charge “ him twice in for that offense. ‘It has been place jeopardy long settled . . . that the Double Clause’s Jeopardy general prohibition against successive does not prosecutions from prevent government retrying aside, defendant who succeeds in his first conviction getting set through attack, direct or collateral because of some error in the appeal proceedings to conviction.’ leading a criminal defendant to require [Citations.] ‘[T]o trial stand after he has again invoked a of successfully statutory right appeal his first conviction is not an act upset of the governmental oppression sort which the Double was intended to against Clause Jeopardy protect.’ v. Santamaría (People Cal.4th [Citation.]” 910-911 [35 81].) Cal.Rptr.2d
Defendant next contends that collateral bars estoppel relitigation view, of Carter on a killing first murder In his when the degree theory. circumstance, court at the trial found not true the prior felony-murder special it determined necessarily either that there was no murder or that there felony murder, was no and deliberate premeditated and therefore retrial of the murder on either was barred collateral theory by estoppel.
It is whether questionable the doctrine of collateral even applies estoppel Santamaría, to further in the same proceedings litigation. supra, does, 913-916.) bar retrial of the Even if it at most it would Cal.4th at pp. circumstance, (See id. at which was not realleged. felony-murder special would, most, bar retrial of an enhancement at estoppel 914 [collateral We are the defendant was found guilty].) not an offense of which
allegation, contention, advanced at oral argument, defendant’s by not persuaded therein was by jury, because the trial distinguishable prior Santamaría is trial herein was the court. by whereas the prior must be So rejected. collateral contention estoppel
Therefore defendant’s without court’s remand of his case contention that this must his ancillary be retried” for which could “delimiting scope charges appellant proper Fifth, Sixth, and Fourteenth he discerns in the Eighth, violated rights Constitution. Amendments to the United States *33 of errors the requires on a view that a combination
This assertion rests are of The asserted errors for the murder Carter. reversal of his conviction I, declined, the adequacy 38 Cal.3d to decide supra, that we in Memro murder, deliberate leaving open a of the evidence to prove premeditated retried, court failed to be and that the the theories on which he could one of first theory from on at least the prosecution proceeding preclude which it the on identify theory murder or to that the jury degree require him of that crime. found guilty in modification of our decision
Defendant did not seek rehearing I, of. We find his on the ground Memro 38 Cal.3d supra, complained on the felony-murder special-cir- The court’s unavailing. ruling assertion circumstance not be most that the special cumstance at allegation required could have been not. more Nothing at the second trial. It was realleged in retrying constitutional right There was no violation of required. of first degree that he murdered Carter on a theory defendant on a charge murder.
B. Claims Error the Voluntariness Regarding of Defendant’s Records Personnel Discovery Interrogators’ Confession Motion to Suppress 1. Denying Confession a. Statement Facts on an in limine mainly focused strategy
Defendant’s pretrial litigation motion, his confes- under Evidence Code section suppress brought his invocation of following inducements sion because coerced threats and by and to silence. to counsel rights on own behalf
Defendant testified of the motion to purposes He the testified that at the South Gate suppress. during interrogations jail, Officer Carter made clear that he would answers to his get questions, pointed Greene, to the muscular Officer asked him he whether he could beat thought Greene in Officer a and told him if a Officer Greene fight, fight began would kill me if didn’t him.” He also testified “literally somebody stop showed him a in a wall of the room that police depression interrogation could have been made of a human head and that his by impact suggested head be it if might used to he failed to reveal what he knew enlarge about sum, Carter’s In he was “terrified of Greene and the disappearance. situation Moreover, testified, . . . .” told him that if he should police be for the murders he would be imprisoned survive. unlikely (in motion, Defendant introduced the context of his Pitchess discussed counsel, 829-832) at infra, of his own pp. testimony Michael C. Carney, that when he awas he learned the prosecutor had received a letter police that Officer Greene had used complaint excessive force a drunk- during time, arrest. At the driving Officer Greene also told that he had Carney broken a citizen’s and received jaw a as a result. restrictive-duty assignment There was also evidence that a letter be treated complaint might by as minor and never be police record for placed personnel the officer later Indeed, to discover. after Carney’s Officer Greene testimony, testified that his file contained no complaint.
Defendant trial, also called Williams, his counsel from the Peter L. prior client, who Nasca, testified that another told him Angelina that Officer Greene forced her to confess to a trumped-up charge because he burglary “took her in the her, interview in room the South Gate and hit jail her driving cheek, tooth her through and threatened to her head a hole put in the through wall of the interview room of the South Gate Williams also jail.” testified that defendant told the public defender’s office about the wall on “the after his morning arrest.”
The court trial, considered Nasca’s from the testimony prior as well as that of Michael Bridges. Both claimed to have been bullied and beaten Officer by Greene while under arrest. Nasca said that Officer Greene threatened to “push head my through that hole” in the room wall “the interrogation same he did way someone else’s.” also testified Bridges that Officer Greene threatened him with a When shotgun. was in the Bridges South Gate jail’s room, interrogation he filled out a card that he indicating wanted a lawyer and did not want to talk. Another member of the police tore it department up and Officer Greene beat him denied again. Bridges knowing defendant.
Louis Moreno testified he that was the South roughed Gate in up by police October or November of when they arrested him on a fugitive warrant armed court
for The found that his robbery. description assertedly did not officers match who had offending police those testified in hearing.
There was that for three or four testimony local defender years public not had received a to at the South Gate in single request appear jail response to an invocation of the to right counsel. stated,
As defendant also testified that the offered him an induce- police ment to confess. It my “was that understanding was prom- [Officer Carter] that if I with him and ising told him whatever it was he cooperated wanted , to hear that he would me back to . send Atascadero . . that there wouldn’t be filed .... That was in the of a charges form promise.”
Defendant further
that
testified
he was never read his
rights
Miranda
(Miranda
his confessions were made voluntarily.
Officer Sims testified that defendant was neither threatened nor offered an inducement his statements: he and his responded freely voluntarily nervous, demeanor was “somewhat but was relaxed also . . . .” Officer Carter, who conducted the testified also key interrogation, defendant’s *35 “normal, demeanor was a little maybe emotionally neither Officer upset”; nor Carter other member of the South Police any Gate threat- Department ened him or offered inducement or other than and any benefit coffee Officer was not cigarettes. Greene his muscles or flexing making threatening rather, he and “was that seemed to be real gestures; very quiet evening Indeed, if remorseful when “Mr. started Memro us about anything.” telling the he and what had done to . . . picking up boy the Greene became boy, emotional and as he take it and he quite appeared though couldn’t went over sat in the and comer.” comfortable,
After an hour of conversation to general make defendant feel testified, Officer Carter he confessed to the “At he Carter murder. that time became and emotionally . . . seemed to be extremely upset very remorseful. He started . . . Officer Carter him a few very heavily gave crying minutes to calm and then invited him to unburden himself of other down any criminal Defendant told him that the murders of Fowler and Chavez activity. time, mind and he had on his for a confessed them. weighed long Officer Carter that there was six- to agreed slight, eight-inch-wide in interrogation one wall of the room. impression plaster inmate, a fellow testified that defendant told him Anthony Cornejo, jail that he had lied his confession being about coerced. “He admitted making was, the statements And he said—the freely ‘That was police. quote I for me I only thing going had on was to that was beat my appeal say up ” coerced and had statements beat out of me.’ cross-examination, On as a notorious Cornejo impeached jailhouse informant who had testified about fellow repeatedly inmates’ statements in for the in state and federal court. was a convicted jail prosecution Cornejo murderer, who, robber burglar suggested, cross-examination would from the And informer hope board. another had lenity parole written about Cornejo defendant’s case. Defendant also called Theodore Frank— the defendant in presumably (1985) v. Frank Cal.3d 711 People 415], 700 P.2d Cal.Rptr. following retrial v. Frank People Cal.3d 718 testified that 1215]—who was very reticent about his case: would he never answer questions volunteer information about it.
South Gate Police Officer Walter R. Carter drove defendant back to the station from site police where Carter’s was recovered. He testified body him, that Lloyd Carter him (Walter told not to bother to handcuff but that he Carter) insisted station, should be restrained. On the to the way defendant told him that “he didn’t understand how could treat him so anyone and so fairly nice when he had done such a terrible thing.” harmed, Defendant conceded that he was never that he had physically arrest, studied karate in that he was classes before his attending judo that he condition, was in good and that he physical had wrestled school— evidently school—and also high football there. played
The court also heard evidence that in was fed jail while defendant and was allowed to make two calls. phone He called Linda a reserve Brundige, because, sheriff deputy who knew him as she after the testified at trial court had ruled the confession he “was voluntary, one of assistant instructors my ain judo class I for the taught also city Brundige Park.” Huntington
826 that “had been trained that explained by was with somebody good martial arts” and “he was within his skill level” in a good form of karate.
The court denied the motion to the confession. “Based suppress the upon evidence,” declared, of the it “the totality court finds a beyond reasonable doubt the confession was free and It further declared voluntary.” that “the of the circumstances totality the of the clearly point credibility prosecu- witnesses, tion witnesses and the against of the defense and I credibility find the statement to be free and voluntary.”
b. Discussion Defendant contends that the court erred in a reason finding beyond able doubt that his confession was and given that his witnesses voluntarily were not credible. He asserts that this was ruling inherently implausible is unsupported substantial evidence his by given testimony regarding interrogation that witnesses who testified that the South Gate police arrestees, behaved toward department brutally while particularly interrogat them. He is ing substantial evidence wrong: the supported ruling. on agree the burden of parties applicable the proof regarding
claim of confession. Because the crimes occurred involuntary before charged I, 28, the of article (d) section subdivision adoption of the California 1982, Constitution in state law to show a required prosecution beyond reasonable doubt that defendant’s statements were made voluntarily. (People 453, 356, (1990) v. Anderson 52 Cal.3d 1107].) 470 801 P.2d Cal.Rptr. [276 Federal law to make the requires prosecution same showing by (1991) of the evidence. preponderance v. Morris 53 (People Cal.3d P.2d 949].) “On Cal.Rptr. determination of a trial appeal, court as to the ultimate issue of the voluntariness of a confession is reviewed of the record in independently light its ‘all the sur entirety, including circumstances—both the rounding characteristics of the accused and the details of the interrogation’ . ... The trial court’s determi [citations] HO nations whether coercive concerning whether police activity present, and, so, certain conduct constituted a if whether it as an promise operated inducement, are review as well.” apparently subject independent v. Benson 330].) Cal.3d However, “the trial court’s as to the findings circumstances surrounding ‘the characteristics of confession—including the accused and the details of the interrogation’ review for substantial clearly subject to [citation]—are factual; evidence. The are are examined underlying questions such questions under the deferential (Ibid.) substantial-evidence standard . . . .” [citation] us, law to the we conclude
Applying foregoing record before that the confession was voluntary.
827 Constitution to be admitted in evidence is “the What the permits . . to of an free and unconstrained choice confess. essentially product 854, 862, (Schneckloth (1973) 412 U.S. 225 L.Ed.2d v. Bustamonte [36 accord, at at (lead 93 S.Ct. id. 249 L.Ed.2d opn.); p. pp. [36 2041] 875-876] Blackmun, (conc. J.) (conc. L.Ed.2d of and at of opn. opn. p. p. [36 876] Powell, J.).) The is whether defendant’s choice to confess was not question (Id. because free” his will was overborne. at 225-226 “essentially pp. [36 861-862].) L.Ed.2d at The is “In factual. pp. inquiry essentially determining case, whether a defendant’s will was overborne in a the Court has particular assessed the of all the totality surrounding circumstances—both the charac (Id. teristics of the and the accused details of at interrogation.” p. 862].)
L.Ed.2d at p. threatened, The testified that was not was offered police inducement, no and waived his counsel and to to remain silent. There rights was thus substantial evidence before the court that the was free interrogation taint might that make it involuntary. court believed testimony of the rejected that of defendant’s police witnesses. We must its accept it, evaluation of the facts when substantial evidence as the testi supports Benson, does. v. mony 779.) so, 52 Cal.3d at supra, Doing independently resolving whether the confession legal question was vol is a task: it untary was. simple
2. to Refusing Exclude Cornejo’s Testimony Before trial defendant moved to exclude the testimony Anthony He Cornejo. that it argued would be more than substantially prejudicial Code, (Evid. probative 352) and that it would violate introducing consti- § tutional rights determination, he asserted to a reliable guilt penalty due and to the process, right counsel. Just before Cornejo testified in limine, defendant also added the if the court ground objection had granted him as a trial as he desired he speedy would never have encountered and his Cornejo would testimony not now be heard.
To recapitulate, testified Cornejo that defendant told him his statements to cross-examination, police were On voluntary. he was im- thoroughly peached as a notorious jailhouse informant.
Defendant argues that the government Cornejo used as an agent elicit his statement purported about the circumstances surrounding This, asserts, confession. violated his Sixth Amendment rights, because, as we stated People (1991) 52 Pensinger Cal.3d 899], P.2d is a denial of the Sixth Amendment “[i]t
828 to counsel to admit evidence of an indicted right defendant’s incriminating statements elicited from the defendant a deliberately by government agent.
(Massiah
246,
(1964)
v. United States
The court’s a informant’s ruling allowing jailhouse to be intro testimony duced an factual presents essentially and we review it on a question, standard, (Evid. Code, deferential There was no abuse of discretion 352; 629, (1992) 564, v. Clair 2 Cal.4th People 660 828 Cal.Rptr.2d [7 § 705]) P.2d We with admitting Cornejo’s testimony. defendant’s disagree of role. The record does not at all perception Cornejo’s the conclu compel sion was at the behest. Cornejo acting government’s to Corne Pointing for the jo’s history testifying government, naturally disagrees, but such a does not make an history informant a state automatically agent. (See 572, (1994) In re Williams 7 Cal.4th 597-598 870 Cal.Rptr.2d view, 1072].) P.2d In our no constitutional arises unless the infor question mant is an of the state at the time he or agent she elicited the statements that (See would be the subject (11th later U.S. testimony. v. Cir. Sanchez 1993) 1159-1160, F.2d 366.) mod. 3 F.3d It is clear that Cornejo testified to further selfish and it that he goals, appears his conver instigated defendant, ends, sation with if that is what for the same even happened, he declared though that he was “out of a moral consciousness of testifying that I things believe that are involved in this.” His have been goal may lenience from the board—he was parole was on trial for murder awaiting when he first testified in this case in December 1986—but he testified that he was promised nothing safe when except housing incarcerated and there is in the record to the nothing The record contrary. our conclusion that supports this promise was made after he obtained defendant’s against statements interest. sum,
In the record the conclusion of the supports trial court that Cornejo initiative, information on gathering his own not that of the state. As such, Williams, he was (In not government re Cal.4th at agent. supra, 598; People Williams 44 Cal.3d 901].) We find no abuse of discretion in admitting testimony
and no constitutional violation. Motion to Dismiss Loss Police Personnel Denying
3.
Records *39 Statement Facts
a. of coercion, moved, To aid his assertion of defendant also as he did before trial, to his discover the records of various South Gate police prior personnel 531, officers under of Pitchess v. Court 11 Cal.3d Superior authority 537-538 P.2d We discern from the that record 305]. the at he renewed motion made That motion “infor- prior trial. sought mation South Gate Police regarding complaints against officers Department the four had in officers who —including participated postarrest [defendant’s] His motion the of individuals had filed interrogation. requested identity who behavior, to acts of . . . complaints ‘relating unnecessary vio- aggressive lence, violence, and . and/or . . excessive force and/or attempted attempted excessive force’ 16 officers in the against also department. [Defendant] discovery these sought investigative reports based on includ- complaints, interviewed, statements of ing witnesses information the offic- concerning files, ers’ use of excessive force or violence in contained state- personnel ments of officers psychiatrists, other contained such psychologists, files, and actions as a findings against taken officers disciplinary any information, result use of their of force and violence. The of such it purpose was to enable alleged, bolster his claim that his appellant confession I, I, had been (Memro 674.) coerced.” supra, Cal.3d In we Memro reversed the the judgment because court denied this motion.
The court the granted motion discover the records of Officers personnel Carter, Gluhak, Greene, (Defend- and Sims—defendant’s four interrogators. ant later moved discover the records of four other personnel members of the South Gate Police Department—the defendant’s partners interroga- tors. That motion was denied because the court found there was “no showing of need” and no “nexus or connection between conduct of . . . complained officers.”) those informed the court and that prosecution the officers’ personnel files had been to the terms of the purged according department’s document-destruction policy, governed by Government Code section which and has permits, since that records two permitted old or older years be if may “no . . . purged .” The longer required policy was to material from purge files more than personnel that was five old. years
Defendant then the asserted that records were to conceal infor- destroyed mation relevant to his claim of coercion. to dismiss the informa- He moved tion, in as a essence sanction for proper their He that the argued police loss. knew a issue on the major from was denial of appeal judgment original motion to discover records and that the police personnel department the records of a reversal on notwithstanding
destroyed possibility ground.
In introduced evidence of the response, prosecution procedure and, were to aid the court in records on the whereby purged, ruling motion to evidence of their contents. secondary suppress,
The South Gate Police records custodian testified that Department’s police officers would be alerted to citizen in their complaints placed personnel record. Each officer testified that his file contained no such personnel *40 at the times for which the information was sought, for complaints except Sims, Officer who described one “unfounded” in 1978 complaint involving asserted use of excessive force an arrest. during
The custodian also testified that the records were in accordance destroyed with the of Government Code section he believed the 34090: requirements chief of received from the asked and to police city attorney permission purge However, “the ones that were at least five old.” records relevant to years were not unresolved civil lawsuits and the did ask kept longer, department the district or General to ascertain whether records attorney Attorney might for be needed criminal cases. pending
The court denied the motion for a sanction for the records. It destroying that the records were to conceal information rejected argument destroyed relevant to defendant’s assertion of coercion. It first ruled that defendant bore the burden of that the records were for an showing destroyed improper It then found that the evidence of such a was that oral only purpose. purpose I, 658, 7, 1984, in Memro 38 Cal.3d took on argument supra, May place 3, that to the records was on It found permission destroy granted July 1984. to in bad this evidence insufficient show that the records were destroyed Rather, faith. it found that were in faith they destroyed good according established procedure.
b. Discussion we decision to note that we review the court’s
Preliminarily, consider (M deferential standard. evidence of the records’ contents on a secondary 51, 535], (1935) v. P.2d overruled on
ayo Mayo Cal.2d 57 1297].) (1937) other in Stitt v. Stitt P.2d There grounds 8 Cal.2d 453 [65 was no abuse of discretion: the bounds of reason court did not exceed the when it decided to hear of the testimonial of the contents police evidence officers’ files. contends that due violated because ma-
Defendant was evidence process however, We with terial to defense withheld. that agree People, instead the failure to evidence. Defendant also regards preserve question in contends the court erred a sanction the records’ failing impose destruction.
i. Failure Preserve Evidence In 488 U.S. Youngblood L.Ed.2d Arizona 289-290, 333], 109 S.Ct. the federal court held that “unless high a criminal can bad show faith on the of the part failure to police, preserve useful evidence does not constitute a of potentially denial due process Moreover, law.” a trial court’s inquiry whether evidence was destroyed therefore, faith bad faith is factual: good essentially proper standard (See review is substantial (3d 1991) evidence. U.S. v. Stevens Cir. 935 F.2d standard].) 1387-1388 clearly erroneous [applying Stevens, Under the we holdings Youngblood conclude that substantial evidence the court’s supported ruling. burden was on defend *41 faith, ant to bad show and he did not meet his burden. Even if the records useful, were the potentially failure to them not did violate due preserve process.
ii. Denying Motion to Sanction Failure Impose to Preserve Evidence
“It is settled that trial courts of in ‘enjoy large measure discretion determining sanction that should be appropriate because of the imposed’ failure to preserve destruction material evidence. (People [Citations.]” (1993) 374, v. Sixto 17 264]; Cal.App.4th 399 see also Cal.Rptr.2d [21 (1993) 929, People Zapien 4 Cal.4th 964 P.2d Cal.Rptr.2d 704].) We find no abuse of discretion. defendant calls the Although circumstances the records’ surrounding destruction because the suspicious court’s denial of the motion to discover them awas focus of his major appeal from the original and the judgment records were two after months destroyed oral in argument that appeal, the court could (1) conclude that reasonably evidence showed the records were destroyed according provisions Code—indeed, the Government they were for three kept years beyond after which two-year period Government Code section subdivision (d), their permitted destruction—and the department, unschooled in the nuances appellate procedure, did not realize that the records be might needed after the in court defendant’s denied the prior trial motion to discover Nor, them. conclude, the court could reasonably was there an improper purpose behind the policy records keep personnel relevant to civil cases still not to determine whether criminal cases be might
while attempting criminal cases remain active after five We find no unresolved: rarely years. and no violation of due the refusal to process impose abuse of discretion a sanction. Other Records
4. Motion to Discover Personnel Denying Officers’ described, the court denied defendant’s motion to discover the records As officers not at his It found no interrogation. of four other police present “nexus or connection” between those officers and his claim of involuntary their records. confession that would justify discovering personnel court erred in He Defendant contends that the so asserts finding. that in Memro that he showed the officers trained with his interrogators, 658, 686, I, 38 Cal.3d we held that the records of those who “trained supra, with of the four interrogating or otherwise had substantial contacts would be discoverable. officers”
Trial courts are wide discretion when on a motion to granted ruling (1991) 1 discover such records. v. Breaux Cal.4th Court, 585], Pitchess v. Superior supra, Cal.Rptr.2d quoting 531, 535.) Cal.3d Here the court found that there was no sufficient connec- had tion between sessions or other activities in which the officers training and the circumstances surrounding interrogation. mutually participated There is in the record to contradict that the court did Plainly nothing finding. not abuse its discretion.
C. Asserted Failure to Waiver Knowing Intelligent Obtain *42 Miranda Rights
It will be recalled that the court found a reasonable doubt that beyond (Ante, 826.) defendant confessed Officer Carter and freely voluntarily. p. testified, however, confessed, he to that before defendant asked just sweep the room for concealed electronic devices with his and with recording help room, the other out of the and that Officer Carter him. He also police obliged testified that defendant he to him because he said wanted talk to alone trusted him to and did not trust the other He interrogators. explained defendant that the other came officers were their and just doing job, they room, back into the to their renewed without his evidently objecting pres- Then, ence. some time later and with all he confessed. interrogators present, record,”
Defendant contends the fact he wanted to “off the speak devices, so to as shown the for recording his to room speak, by asking sweep
833
could
showed that he did not realize
confession
be used
him.
against
Thus,
reasons,
he did not
and
waive his
knowingly
intelligently
right to
(1979)
to
cites
v.
25
remain silent and
counsel. He
Braeseke
Cal.3d
People
684,
384],
vacated and remanded sub nom.
Cal.Rptr.
691 [159
784,
(1980)
Braeseke
446 U.S.
L.Ed.2d
100
v.
932
S.Ct.
[64
California
603,
2147],
(1980)
reiterated
v. Braeseke
“Under familiar of Miranda requirements supra, [v. 436], 384 U.S. to assure of the federal designed protection Constitution’s self-incrimination Fifth Amendment privilege under co against ‘inherently circumstances, ercive’ not be may subjected to custodial interro suspect or she gation unless he and has the knowingly waived to intelligently right silent, remain the an to presence counsel in the attorney, appointed 444-445, event the is (384 U.S. at suspect indigent. 473-474 L.Ed.2d pp. [16 706-707, 722-724]; 247, at pp. (1989) v. 48 People Boyer Cal.3d 271 [256 96, 610].) P.2d 768 Once the having invoked these accused rights, ‘is not to further subject interrogation the authorities until by counsel has him, been made available unless the accused himself initiates further communication, (Edwards the exchanges, conversations with police.’ (1981) 378, 385-386, 451 U.S. 484-485 L.Ed.2d 101 Arizona S.Ct. [68 1880].) The accused, however, initiation of further dialogue the does not by in itself justify reinterrogation. (Oregon (1983) v. Bradshaw 462 U.S. 405, 411-412,
1044 2830].) L.Ed.2d S.Ct. if a conversation ‘[E]ven taking after the place accused has his desire to deal with “expressed counsel,” accused, police only through is initiated where by reinterroga follows, tion the burden remains upon show that subse prosecution events indicated quent a waiver of the Fifth Amendment to have right counsel present (Ibid.)” during interrogation.’ (1993) (People v. Sims Cal.4th 992].) Cal.Rptr.2d P.2d
We have already explained that the court accepted police version of the circumstances (Ante, the confession. surrounding 827.) it Implicitly Officer accepted Carter’s of the search of the description room devices, recording we are bound by acceptance. Defendant did not raise before the court the issue he to us. Hence presents he has failed to preserve it for review. v. Wader 5 Cal.4th *43 610, 788, 635-636 854 Cal.Rptr.2d 80].) P.2d [20 Defendant contends that if conclusion, we draw that were counsel ineffective because there could be no tactical court, reason not to raise the issue with the and therefore we must address the (Id. on the point 636.) merits. at p. stated,
As it is fundamental that “a defendant claiming ineffective assist- ance of counsel must show both deficient an under performance objective
834 under a test of reason- reasonableness and prejudice standard of professional Davis, outcome.” 10 Cal.4th (People supra, of a different able probability 463, 529.) the room for can be construed sweep bugs
Even if defendant’s request belief that he could talk of his to act on a mistaken as evidence preparing used him—a Carter without his statements being against to Officer privately (see v. Johnson 6 People the record does not support state of affairs 593, 1, 673])—he P.2d abandoned such any Cal.4th 26 859 Cal.Rptr.2d Officer Carter’s indication of action when he acceded to course hypothetical so that the officers would have to return interrogation that the other police for halted his statements then asking could resume. He could have by counsel, him his under did not. the had read Previously police rights Arizona, that U.S. from a card used for they Miranda v. supra, the to remain silent warned him twice that he had rights purpose. police counsel, be used that can and will you say against you and to “anything that he understood the court of Defendant said on both occasions in a law.” that and elected to We cannot conclude consequences speaking, proceed. made or unintelligently. his waiver was unknowingly Thus, been ineffective for to raise this issue failing counsel could not have “ counsel ‘to the trial court. The Sixth Amendment does not require before ” (U.S. (1st time with futile or frivolous motions’ v. Hart waste court’s 1991) 83). we hesitate to characterize the motion Cir. F.2d Although futile, frivolous, been made as it would have been have might probably defendant’s adduced on the circumstances surrounding given testimony to counsel. waiver of his to silence and rights Barclift testified that
We turn to defendant’s second confession. Officer after defendant confessed to South Gate he repeated day police, confession murders to the Bell Gardens Without police. explain- contention, basis for his defendant contends rather summarily ing legal that his confession must be because it was tainted the first by suppressed confession, obtained. which was improperly not raise it
This claim also was not did appeal—defendant preserved above, Nor, counsel ineffective for not below. for the reasons were given it. asserting event, true, the
In were the of an waiver of rights premise ignorant (1988) 45 Cal.3d result defendant be valid. v. Williams urges might Fourth Amend- [discussing 221] However, no violation of state or ment we have found requirements].) *44 of federal law in the his initial confession to the South Gate eliciting police. the its “Because tree was not fruit was not tainted.” poisonous, (1991) 84].) Mickey Cal.3d [286 D. Motion to Dismiss Denying Papers Seizure
Defendant contends that the court erred in to grant failing to the motion dismiss information for the seizure and of certain scrutiny and the seizure and loss of papers others. made his motion (Apparently under of section but the record is unclear on the authority point.) view, in ruling, defendant’s caused a violation of a Sixth Amendment right to counsel. He seeks a reversal his conviction or remand a to for hearing determine whether Sixth Amendment were violated. rights defendant,
theOn that it the day sentence of death on the at imposed court the trial directed the sheriff to “confiscate the prior from defendant all copies of the of the . Reporter’s . . and return Transcripts proceedings [forthwith] witnesses, them to . SE L . . .” Rather the Department than let call parties the court herein various offers of accepted and found that 14 proof pages notes, trial, defendant’s trial as well as the annotated of the transcripts prior lost, taken were from him the court order and then by and also that his legal 1982, scrutinized, were seized papers briefly prison in to returned him. Defendant objected to procedure—he hearing preferred present witnesses. motion,
At on argument counsel asserted that defendant could not from recall the prior trial conversations with counsel about his arrest and questioning, witnesses, matters of strategy, demeanor of or names or location of witnesses and locations where evidence favorable him might be found.
In reply, prosecutor said that he could not “imagine what witnesses Mr. Memro be might talking about.”
The court found that under the standard set forth in United States v.
Morrison
564,101
Assuming, as appears likely, that the court denied motion to dismiss the information under brought section we it review for an abuse of *45 836 491, (Howard) (1968)
discretion. v. Court 69 Cal.2d 502 Superior 330, 138].) And we review the basis for Cal.Rptr. underlying decision that the facts do or do not a ruling—a claim of state support (Cf. interference with the to counsel—for right substantial evidence. U.S. v. 1988) (8th Leisure Cir. 844 F.2d 1359-1360 errone clearly [applying Here, standard].) ous the court decided that even if there was intentional with interference that defendant had been able to show no right, prejudice. The was sound. case defendant centered on his detailed ruling against confessions to the crimes. The court could refuse to believe that reasonably he would about a witness who could cast doubt on their forget authenticity. And it could also conclude that the other reasons he in reasonably advanced Moreover, his motion to dismiss information were pressing unpersuasive. in the record that nothing communications were suggests attorney-client revealed, and the stated in his offer of prosecutor that no information proof to, from materials was known received or used to benefit the by, or the prosecution police. Fifth, Sixth,
Defendant also contends that certain and Fourteenth Eighth Amendment were violated when the rights court offers of in accepted proof But, on his motion rather than ruling witnesses’ asked hearing testimony. by the court what constitutional specific ground would not grounds justify offers of considering favorable to the defense rather than live proof testi- he was unable to offer It that there were no mony, any. appears disputed material issues of fact. Unless the court is alerted to the of such presence issues, it is difficult to what would be with live perceive gained by hearing (See witnesses. 51 Cal.3d People Hedgecock Moreover, 1260].) P.2d it is difficult to what imagine could have added that would have they favored defendant more than the state of the record the court it ruled that the record would reflect adopted: an offer of that when defendant’s proof were in papers seized as prison counsel, related “two by went Mr. Memro’s deputies folder through legal and read document portions that . . .” and it every when they picked up was returned “the documents had been gone were not in through, they the same order had been in they before were confiscated.” they It also ruled that the seized in papers jail trial were immediately following prior mislaid and were never recovered.
E. Motion Denying to Dismiss Failure to Produce Police Records 27, 1978, trial, On December at his prior broadly sought information that discovery bear on the case. In might January the motion was with to the crime granted regard written report, by reports *46 crime, the and the investigating names and addresses of all other police arrested as But some persons hundreds of of suspects. investigative pages material in the hands of the Bell Gardens who had the police, investigated Chavez, of Fowler and were not turned over until October killings 1986. The that he learned of the prosecutor represented material then and it only gave to defendant forthwith. He also averred that counsel for both at the parties trial told him that did prior not know about the they documents. Officer Barclift of the Bell Gardens testified that for the trial police he the prior gave case, prosecution relevant to the but reports thought did not turn over all those that the This police had the possessed. procedure prosecutor’s ap- Williams, trial, Peter L. proval. defendant’s counsel at the reviewed prior file and testified that he did not complete recall been having arrest given on other in reports Bell suspects 1976 Gardens murders. He also testi- fied, however, that he could not be sure that about the knowing withheld information would have affected his trial strategy.
Defendant
information,
moved to dismiss the
strike the special
circumstance
or
allegation,
of
preclude
a death
possibility
sentence as
sanctions for the failure to disclose the
file before
On
complete
1986.
appeal
he asserts that the denial of this motion
him of due
of
deprived
law.
process
assert that the record
People
an inadvertent
bespeaks only
failure to
with
timely
the court’s
comply
1979
order. We need not
discovery
decide
asserts,
however.
question,
as
Assuming,
U.S. v.
citing
Bryan
(9th
1032,
1989)
1036,
Cir.
868 F.2d
that the
to disclose
prosecution’s duty
evidence
in
requested
motions
discovery
encompasses evidence held
by
who
police
investigated
crimes
and also
charged,
accepting solely
purposes
defendant’s
argument
assertion that the police intentionally
material,
withheld the
“such
do not
hypotheses
rise to the level of constitu
tional cognizability
the due process
[under
United States v. Bagley
clause].
[(1985)]
Defendant also asserts that the failure to perfunctorily provide discovery Amendment violated he discerns in the to a reliable fact rights Eighth determination in a case and to avoid an death sentence. We capital arbitrary *47 are unpersuaded.
F. Motion to Exclude Evidence Arrest Denying Stemmingfrom 1538.5, Pursuant to section at moved his trial to exclude prior all evidence of his from his arrest as the of an guilt stemming arrest product made without cause and hence unlawful. The court denied the probable motion, order, in a minute “The court finds there was cause stating probable for the arrest of the Defendant.” us,
Defendant to renew his motion at the trial also sought before under section 1538.5. In filed response, prosecution papers citing authority that such a motion not be proposition ordinarily may relitigated. court denied the motion and it not was reheard. him, (1) (2)
Defendant contends that there was no cause to arrest probable certain witnesses should have been excluded the motion during hearing, (3) the court erred by to renew his motion. Because denying application trial, the court herein left intact the from the we address all ruling prior merits, these contentions on the the first and second. To do including otherwise would determination be to defendant a unfairly deny the matter on the merits.
1. Probable Cause to Make Arrest (Cal. Defendant that because his urges crimes 8 predate Proposition Const., I, 28), art. we must whether the inquire police actually suspected § crime, did, that he committed a and if we then conclude that we must they ask whether the facts known to them them cause to arrest on gave adequate (1972) an standard. v. objective Miller 7 Cal.3d 1228].) P.2d For will Cal.Rptr. of this we purposes opinion only contention, this without whether it is correct. In the first accept deciding step evidence; of our we the deferential standard of substantial inquiry apply second, we (See exercise our own judgment. People Leyba 961].) Cal.3d 596-597
a. Facts. entirely the court almost case, told and defendant In this police Preliminarily, arrest. to defendant’s the events leading stories conflicting if was undisputed There undisputed. were essentially facts that we note two sub- had generated disappearance Carter’s mysterious evidence that implicit that defendant media, evidence in local explicit coverage stantial news And there was not read them. he had although news stories aware of the vanished. had simply Carter play: indication of foul necessary no arrest defendant’s provided the events version of preceding The police related the his arrest. They cause for of probable evidence overwhelming facts as follows: 27, 1978, Sims, five after days October Officer by Friday,
According exhausted all leads. Gluhak had he and Officer Carter’s disappearance, had because they were evidence that the desperate, There was police implicit obtained an artist’s they in their investigation: resorted to the paranormal *48 have been with. of a Carter might on a vision person sketch based psychic’s sketch, Carter residence. Carter’s went back to the Armed with that they Sims and Officers looked like defendant. each said sketch parents and, on defendant’s door him. knocked They Gluhak decided to interview “ out, testified, coming T knew were you he blurted virtually Officer Sims of a nine-year-old been in Atascadero for molestation sooner or later. I[’ve] ” first Soon thereafter—this prearrest in the of Park.’ Huntington boy city information were down lasted 15 minutes—as police copying interview volunteered, license, in Officer Sims’s from defendant’s driver’s he also “ me, out,’ to words, ‘You are going find or he stated to ‘You are to going said, Park in ’72 I in Huntington find out He ‘When was arrested anyway.’ nine-year- the shit out of a was because I went into a fit of and beat rage it to Atascadero for that reason.” old He said he was sent boy.’ interim, Gluhak into the had invited Officers Sims and In the of the into other go any part of The did not police room his living apartment. Sims, room, with “literally Officer was littered house. The said living I also clothed. of both clothed boys, partially hundreds of pictures young of the apartment room furniture on the floor and lying living observed books, material.”1 numerous pornographic Carter’s were investigating
The
to defendant that they
police explained
that,
stated,
news coverage.
an event
as
had generated major
disappearance,
boys were “clothed and
Officer
testified that the
1Although
transcript
shows that
Sims
I,
supra,
Defendant left his residence a car separately bring to the part Carters’ house—it will be recalled that Carter’s father was defendant’s repairing and that defendant Volkswagen had it off the dropped day Carter’s house, When he saw disappearance. defendant at the Carters’ Officer Sims asked him whether he again have seen might when he anything off dropped his car on the words, that Carter Sunday In Officer Sims’s disappeared. me, ‘Oh, defendant “stated to I remember yeah. now. I was to the going dinner, Sizzler to some but get the line was too He said it long.’ [<]]] about . 6:00 . .in the Carter, He said he evening. decided to over to Carl go Sr.’s, house to talk to him about on his He working car. stated that when he door, to the rear got Carl Carter was there asked him if he [Jr.] wanted to and have a go Coke.” This occurred around the time that Carter was last seen.
Officer Sims then arrested defendant on suspicion He kidnapping. crime, arrested him because of “the seriousness of the the fact that a week, seven-year-old had been for a boy missing that Defendant Memro did not me of those give statements at his the fact that he had told apartment, me he had taken the him[,] but he didn’t do boy led me to anything believe that he was involved in the possibly missing boy’s disappearance.” *49 He added that he believed defendant was also the last to see Carter person before he was reported missing. cross-examination,
On the in several testimony impeached important Officer respects. Sims testified that Although the had not ventured police room, defendant’s beyond he also testified living that he arrested him case, of because the of the urgency “an including about the urgency boy’s at that When safety him point.” asked to reconcile this perceived with his own urgency that the did not testimony search his entire police until after he had apartment confessed later that he could night, not do so—he offered no that he did not know he explanation except had not why searched the dwelling. police testified that the found photographs, including boys, living some of nude on the room coffee table in a manila file folder. they Other witnesses at the first trial were asked whether motion, photos boys had ever seen plain sight. argument nude of in And at on the defendant’s males, testimony counsel referred to police that the had photographs “young found of nude post, plain sight (See 844.)
males” in on their first visit to apartment. p. the also to defendant because that the turned police Sims also had testified Officer leads, regis- had not interviewed they but conceded had no other they Gate, the name of the nor had learned they offenders in South tered sex cars. who Carter’s father repair individual helped that of the stated, contradicted entirely defendant’s version almost
As police. arrest. events his surrounding in detail about the
Defendant testified great to drive He to him as he was away. The asked to talk preparing police arrested, that he and he stated whether he had ever been asked agreed. They abuse; (child 273d time at for a violation of section had served Atascadero he had last seen 3146). asked when see Stats. ch. They § Carter, it the before he vanished. They and he that was Saturday replied any good and when he asked if it would do asked to search apartment, refuse, no, at the so on that basis he consented. The looked said they police bedroom, bathroom, kitchen, Defend- and closets as well as the room. living ant, on had a sheets an amateur stack photographic proof photographer, table, A examined. good many room coffee which living police old, room under 20 as were those on living them were males years inferred, them, The police walls. None of it can be were sexually explicit. him about a bag then asked to view the trunk of his car and asked sleeping refuse, in told could not he consented. it. Again being residence, encounter, at the Carter Defendant also described the second there, had more different terms. The him said seeing they questions. police, “He I Carl was. And I told wanted know when the last time seen again him—Carl, Jr., that he that is—I told him that was on the previous Saturday; kids when I had been and down block with playing up neighbor Carl the day over to see Mrs. Carter.” He said about nothing seeing stopped he vanished. He refused then asked defendant to take a test. police polygraph him he could choose to but to it. The told
initially, eventually agreed police the station with them. take the test or be arrested for He went to kidnapping. *50 cross-examination, On defendant adhered to his story. father, Carter, Sr.,
Carter’s Carl testified that he could not recall the police that had seen unusual in defendant’s mentioning they photographs when contact with interviewed Carter after their initial apartment they just defendant, and the Carter residence. before defendant’s return to just motion, defendant on the on the section 1538.5
During argument hearing out what he viewed as serious in the of the testimony inconsistencies pointed his arrest. He out the regarding to fear for police pointed oddity claiming Carter’s safety search his for hours. Given yet failing apartment the found that of male in on testimony police youths sight photographs plain their the initial visit to the curiousness of apartment, emphasized the officers’ failure to ask Carter’s father whether he know police might about defendant’s choice of He maintained anything subjects. photography arrest, it, that there was no cause for his the knew probable police therefore had at times manufactured their it. they testimony justify v. Rios 39],
Citing People P.2d Cal.2d 297 the court found defendant; that “there was cause for the arrest of the that the arrest probable occurred in the behind the Carter residence in the afternoon of the 27th alley of October.
“The Court finds that the use of the in this case an was psychic merely tool and cannot be relied the in investigative officers connection upon by However, with their arrest. it be used to follow additional justifying may up leads. comments,
“The the that was and the identification testimony by presented Carter, Mr. then the admission the defendant at the home that he had been by at Atascadero for another then his that assaulting young boy, position hadn’t seen the on the the was the information to the boy day boy missing, officers that he was there was and then after the day boy missing residence, officers talked to the defendant and see him at the Carter again inconsistent statements of the defendant to the officers that he actually individual, the last with the Court’s this evaluation is sufficient person evidence to an arrest for a homicide. . . . justify
“The Court finds there was a arrest of the defendant.” legal
b. Discussion stated, As we defer to the trial court’s findings regarding decide, officers’ that defendant had committed a crime and then suspicion them, based on the facts known to whether cause probable objectively existed make an arrest. The trial court in essence entirely accepted officers’ defendant’s arrest. We are bound police testimony regarding by acceptance. described,
Under the version of defendant’s interviews the substan- police tial evidence the court’s conclusion that the sus- supports police implicit defendant of the crime of It would have been pected committing kidnapping. *51 for the not to have such a extraordinary police suspicion.
843 week, a in South Gate for discourse had dominated public The case him whether asked when family, yet police Carter knew the vanished, He later he first said no. Carter day unusual anything had seen at around the for a soft drink Carter out that he had invited recalled suddenly in in his room living plain various materials He had that he disappeared. time had a record And he boys. interest in young a morbid sexual showing sight of a nine-year-old. abuse for physical court, “reasonable facts, ample by supplied accepted
The foregoing
836,
cause
3), and
(former
subd.
ample probable
law
cause” under state
§
v. Talley
are identical (People
standards
federal Constitution—the
under the
492,
564])—to
830,
believe
423 P.2d
835
(1967)
Cal.Rptr.
65 Cal.2d
[56
arrest
a warrantless
a crime and thereby justify
had committed
that defendant
824,
200, 208,
L.Ed.2d
442
213-214
(1979)
York
U.S.
[60
v. New
(Dunaway
836-837,
215-216
832-833,
also id. atp p.
[60
see
(plur. opn.);
ments for which there vanished are about the time he particularly in Carter’s company being Kaurish, knew at 676 52 Cal.3d (See p. [police v. People supra, significant. murder commit in before building shortly had left same suspect apartment 731, 367, 802 ted]; (1990) 52 Cal.3d 392 Cal.Rptr. v. People Wright [276 shortly seen near victim’s residence P.2d knew [police suspect 221] 814, death]; (1981) Cal.Rptr. Cal.3d 823 her v. Davis 29 People [176 before 521, with victim at approximate admitted he was 633 P.2d [suspect 186] 312, 313, 316-317 death]; (1960) Cal.App.2d time of v. Galceran People ownership statements regarding [irreconcilably conflicting Cal.Rptr. [2 901] vehicle, alia, search], with cited ap inter furnished sufficient cause 186, (Simon) (1972) 7 Cal.3d v. Court [101 proval People Superior further “constitute ... answers [conflicting Cal.Rptr. 1205] the vehicle is a belief that circumstance sufficient to support suspicious stolen”]; (1981) Cal.Rptr. Garcia 121 Cal.App.3d v. People man’ to “the ‘black statements that television set belonged [conflicting 296] alia, arrest]; re Madrid,” In cause and also to inter provided probable Collins 203-204 622] [sus Cal.App.2d sister, them under a then that he found first said articles belonged pect themselves, occurred].) By believe crime had cause to bridge; probable matter as the on such a vital defendant’s inconsistent statements patently inno “no discernible the time he vanished had whereabouts of Carter near of guilt. indicated consciousness cent meaning” strongly 197.) There is no (Simon), question 7 Cal.3d at Court Superior supra, had cause to arrest defendant. the police probable
2. Witnesses Excluding During Hearing that the Defendant maintains court erred when it denied his motion to exclude witnesses the to evidence because there was during hearing suppress no He in a cause his arrest. asserts manner that probable conclusory “[b]y remain, of the officers to the court all permitting irreparably prejudiced cross-examine officers and to appellant’s opportunity effectively of the arrest.” He not state that the court invalidity does violated prove (See statute. His claim is and lacks merit. State v. Seel any purely speculative 1992) 959.) (Utah
3. to Renew Motion Denying Application stated, trial, As at defendant’s second denied an the court application hear his motion to evidence under section 1538.5 de novo. The suppress motion was made in a manner the court called “conclusionary”; Nevertheless, did not what new evidence might justify rehearing. explain at motion that the matter should be because argued hearing relitigated there was “more on the of the officers that were credibility [evidence] involved in the section motions.” The new evidence [prior purported 1538.5] consisted of the that two other witnesses would possibility testify they “never in in saw nude defendant’s The court pictures” plain sight apartment. offer of that that defendant could have rejected proof immediately, saying told counsel about such witnesses before the prior litigation.
Defendant also exercised that counsel have suggested vaguely may prior not that Carter had been seen in poor judgment pursuing possibility another individual’s after defendant admitted been with company having him.
The court found that “defendant has not established evidence through any whatsoever that lacked an for a full determination of the opportunity [he] merits of his motion as made and noticed at the originally previous hearing and the for a 1538.5 de novo is denied.” request
Defendant now contends that the court erred in a new denying on his section 1538.5 motion because counsel at the first trial was hearing evidence, ineffective for not officers with impeaching arresting purported contained in a that Carter was seen they by police report possessed, brother near their house an hour him. He contends that after defendant saw Sixth, the denial of his violated he finds in the application rights Eighth counsel, Fourteenth Amendments to due to a reliable fact- process, in a case. finding process capital *53 Cal.3d 199-200 (Corona) (1981) 30 [178 v. Court
In People Superior at if counsel’s ineffectiveness 23], that P.2d we suggested Cal.Rptr. for an opportunity denied a defendant 1538.5 hearing a section suppression merits, the in some circumstances the motion’s determination” of a “full that the we believe question a new But hearing. should receive defendant the motion’s determination of for a full there was an whether opportunity substantial and we review for trial is factual essentially merits at the prior an that there was such opportunity. ruling evidence the court’s implicit record, the we conclude that the on this evidence ruling: Substantial supports the to show he was denied find that defendant failed court could reasonably time of the original available evidence at the all the present opportunity in People the Court of Appeal record is similar to that before This hearing. 712], on overruled (1973) 34 Dorsey Cal.App.3d Cal.Rptr. v. (1975) 13 Cal.3d Court Superior another Bunnell ground of defendant’s conviction “The reversal 1086]: conviction, i.e., to his facing him to the he occupied prior returned position to set aside the information suppress trial after the denial of his motions circumstance no of of any change the evidence. Defendant made showing of motions at the second trial. The opportunity renewal of these necessitating trial time within the discretion of the such motions for a second is renewing (34 of discretion here.” court retrial. We find no abuse judge upon [Citation.] 73.) at Neither do we. Cal.App.3d conclusion, we defendant contends briefly reach this
Anticipating might ineffective assist- that failure to raise the constituted any point adequately motion ance of counsel. he refers to the fact that defendant’s Presumably he did not and that mention the papers exculpatory police report purported alluded to it the only at vaguely hearing.
We doubt that if admissible in evidence the contents of such report, court, a new would have altered its accepted by ruling denying would have for it is also doubtful that the court at the trial hearing, prior It ruled if it learned of and received it in evidence. had differently report is that the to which defendant one-hour unlikely purported discrepancy of alludes would have of his guilt the officers’ assessment changed possible crime, it. for of that were aware of assuming they purposes argument was the last Officer Sims listed his that defendant Although perception him, it known to have seen Carter as a factor in is clear person arresting that he had inconsistent statements alone provoked strong suspicion record, committed an offense. On this we the ineffective-assistance reject that, contention: there no if defendant had better is reasonable probability briefed the motion with or furnished a police report supporting argument describes, the outcome would have differed. type Motion at Prior Trial to Exclude Evidence Lack Denying G. Search Apartment Consent to Police trial, moved to exclude evidence
At the physical prior He testified at that trial that obtained his statements to following police. a search of his after his arrest and confes he did not consent to apartment trial to exclude the evidence sion. The court at that denied motion *54 from the search. On this he contends that the search was resulting appeal, effective consent. unlawful because it was made without his before In did not the matter in the us. litigate proceeding Defendant conclusion that there was no action of the court for answer to an anticipated review, his to that the court made argues plain, by denying application us motion to or exclude evidence under section to relitigate suppress 1538.5, to reconsider the prior ruling, that it would not entertain any request have been He contends that under try. and therefore it would pointless on the of his claim would violate these circumstances to review merits deny him, will, with we Amendment. Without Eighth necessarily agreeing caution, an abundance of evaluate his contention on the merits.
Prosecution from the South Gate and Bell Gardens Police witnesses cell, consented, to let them testified that defendant from his Departments jail to the Defend- search his evidence murders. apartment physical relating ant testified that he could tell that the had searched his already police which time he had not before his second at apartment in-jail interrogation, because showed him consented to further search of his any premises, they items had recovered from it. they search, not whether defendant consented to the only parties dispute
but also whether consent effective that it was accord- sought, given Carter, Officer 4 about a.m. ing
When a on an unsuccessful motion to exclude reviewing ruling evidence, if we defer to the trial court’s factual them findings, upholding evidence, are substantial but we then they independently supported by the Fourth review the court’s determination that the search did not violate 117, Amendment. v. Loewen 35 Cal.3d 123 846, 436].)
“The
entry
fourth amendment
warrantless
generally prohibits
home,
v.
Payton
either to make an arrest or to conduct a search.
person’s
York,
573, 586,100
1371, 1380,
(1980);
New
445 U.S.
S.Ct.
847 arises, however, when to this (1948). general An exception proscription whose ... the individual has been by consent to search voluntary given Bustamonte, searched, S.Ct. v. U.S. is Schneckloth property (7th 1990) (U.S. Cir. 2041, 2043, (1973) . .” Towns L.Ed.2d 854 . . 434, 442.) F.2d motion, that it must assume we the court denied defendant’s When determina that by implicit We are bound he consented the search. found testimony favoring under the But defendant contends even tion. ineffective because search have been his consent to the would prosecution, exhausted, distraught. hungry, the hour was late and he was However, valid or decide consent was [any] we need “not now whether were if the searches unlawful whether . . were lawful. Even the . searches [defendant], the should not have been admitted against evidence *55 was the error overwhelming alleged evidence of his was so that guilt other (9th Cir. (United Murray harmless v. a doubt.” States reasonable beyond 856, the to almost whole 1976) 857.) 530 His confessions amounted F.2d that The record strongly suggests the and case. prosecution’s guilt penalty confess, that the fear or the realization him to not his remorse prompted found, found, in his had been evidence be incriminating might apartment. served recovered from the Although apartment the evidence physical murder, he confessed in confession to Carter’s confirm certain details of his overwhelming and the to the The state body. proved by detail led police “any killed It has its burden of that showing evidence that he Carter. met a harmless beyond error the contested evidence was admitting possible 18, U.S. 24 (See reasonable doubt. v. 386 Chapman [17 California 705, 710, 824, 1065].)” Perry L.Ed.2d A.L.R.3d S.Ct. 129]; U.S. v. (1972) 7 Cal.3d 499 P.2d cf. Cal.Rptr. Towns, 446-447.) F.2d at supra, 913 pp. Charging
H. to Sever Fowler Denying Motions Counts Chavez Murders Count Murder From Carter Charging 19,1986, I filed trial on counts and
On March defendant a motion sever II of the counts the 1976 murders Fowler information—the alleging III, murder. alleged Chavez—from count which the 1978 Carter (1984) 36 Cal.3d 452-454 on Williams v. Court Relying Superior 699], that all the factors that argued he him. maintained case listed as severance favoring applied Specifically, if would presented that evidence not be cross-admissible generally killing quite trials because the facts to the Carter were separate relating different—e.g., the method was different and it occurred years later—and hence the facts of the did not killings show a particular modus He operand!. also that argued evidence of the presenting of three children killing to one would be jury inflammatory—at contended that hearing “extreme would result from prejudice” the fact that the victims in the 1976 killings were ten and twelve old but the years victim in the 1978 killing only seven. He maintained that the case him for the against 1976 murders was weaker because there was “no crimes,” evidence to connect to these [him] and he also observed that count III made him potentially death-eligible I whereas counts and II did not.
In reply, prosecution argued that defendant killed Fowler and Carter for sexual reasons and Chavez because he witnessed Fowler’s It also killing. argued that the cases were of equal because in each he strength “confesse[d] to information that the killer would only know.” It asserted that no killing was more than the others. And it inflammatory maintained that defendant would present trial, defense as he psychiatric had at his prior raising issue of intent and of his requiring litigation mental state when he killed all his victims.
The prosecution conceded that one of the carried charges potential the death but penalty, that the fact argued would not defendant. It prejudice also argued judicial favored economy one trial. conducting
After hearing at argument the court denied the length, motion without comment. 31,1986,
On October
defendant filed
the court to
papers asking
reconsider
its
in
of
ruling
-light
People
Smallwood
There were two different on the hearings motion to reconsider. At the first, 27, 1987, held February defendant asked the court to hold inan camera so that he hearing could an offer of present of proof inconsistent possible asserted, defenses. He and the court agreed, that inconsistent presenting defenses was a factor to consider in favor of severance. But it refused to hold an in camera it hearing, would the saying due deny People of law process by their absence forcing at a critical in the stage It a proceedings. postponed on the motion ruling because it was unsure whether it had to jurisdiction decide it.
The second occurred hearing date, March 1987. On that the court said it initially would the motion on deny It ruled that procedural grounds. “Smallwood does not state new law any . . . .” in light reconsider its ruling the court to urged
Defendant nonetheless almost the in camera hearing to in present evidence he had wanted the new it hold an him that not court reminded would When the three weeks before. in the mattered because that no request longer declared hearing, camera in new He that the explained the evidence. had seen new the prosecutor interim the in identified that were by people consisted of other “suspects evidence at issue. therefore was identity two murders” and first motion elected to hear the the court defendant raised this argument After ruled Evidence Code section on It that under reconsider the merits. “it because (b), of each crime was cross-admissible evidence subdivision intent, motive, it evidence is can show saying seems prosecution of] [the forth, denied set otherwise the the arguments adopted prosecution plan,” did not have People motion for It that emphasized severance. severance; of proof their entire to defeat a motion for their offer case present identity, notwithstanding It there was no enough. ruled that issue to the 1976 offer It did that inconsistent defenses agree defendant’s of proof. murder defendant broached during and 1978 charges—a possibility severance, but it pointed on the hearing motion—might conceivably justify that he might present out that his never raised the possibility moving papers defenses, that refused to such inconsistent and for reason it consider in moving in its “That is not any your scenario making ruling. [point] talked filed at that I am aware of. All that have you really time papers .” about is . . . prejudice trial,
At no defense psychiatric any charge. defendant presented in “An section relevant governing part: statute is which provides of the . . . or more different offenses two accusatory pleading may charge counts, offenses, . same class of crimes or under . . provided, separate triable, the court in which is in interests of and for justice good a case shown, different offenses or counts may cause its discretion order that the *57 or forth in the be or divided into two set tried accusatory pleading separately . more and . .” groups groups each of said tried separately.
“The were met here because statutory requirements joinder both incidents the same class Since the require involved of crimes—murder. satisfied, on a ments for were can error joinder only predicate of burden is on showing clear ‘The potential prejudice. [Citation.] that there is a substantial seeking severance establish party clearly that the be tried.’ danger prejudice requiring charges separately [Citation.] “ ‘The on the determination of is prejudice necessarily dependent partic- case, individual certain have emerged ular circumstances of each but criteria 850 in a motion provide guidance ruling upon to sever trial.’ reviewing Refusal (1) to sever be an abuse of discretion may where:
[Citation.] evidence on the crimes to be tried would jointly not be cross-admissible in trials; (2) certain of the are separate to inflame the charges unusually likely defendant; (3) jury against ‘weak’ case has been with a joined ‘strong’ case, case, or with another ‘weak’ so that the effect of ‘spillover’ aggregate evidence on several well alter outcome of some or charges might all (4) one of the charges; any carries the death charges penalty of them turns the matter joinder into a case. capital v. (People [Citations.]” 155, (1992) 342, 862], Sandoval 4 Cal.4th 172-173 841 P.2d Cal.Rptr.2d [14 _ 583, in (1994) affirmed Victor v. Nebraska 511 U.S. L.Ed.2d 114 [127 1239].) S.Ct.
The criteria listed in Sandoval should not be misunderstood as being equally significant, however. first in whether a com step assessing “[T]he bined trial have is to determine whether prejudicial [would evidence been] admissible, on each of the would joined have been under Evidence charges 1101, so, Code section trials on the others. If inference of separate 144, is prejudice (People (1985) v. Balderas 41 dispelled.” Cal.3d 171-172 184, 480]; (1991) 711 P.2d see v. Cal.Rptr. People [222 Mason 52 Cal.3d 909, 166, 950].) 934 802 P.2d suffices to it is Cross-admissibility but not needed for negate prejudice, “ ‘we have held that purpose. Although cross-admissibility ordinarily inference of we have dispels any never held that the absence of prejudice, ” itself,
cross-admissibility, sufficed to demonstrate by v. prejudice.’ Sandoval, 173; 954.1, 5, 4 supra, Cal.4th at see also enacted June p. 1990 § rule].) [codifying
We review the (See court’s for an abuse of discretion. ruling 796, People (1993) v. Cummings Cal.4th Cal.Rptr.2d 1].) P.2d A court abuses its discretion when its “falls outside the ruling bounds of reason.” v. (People DeSantis Cal.4th 1226 [9 1210].) Cal.Rptr.2d was reasonable. ruling The court had before it the statement that in the trial prosecution’s prior defendant had relied on a psychiatric defense. It could conclude reasonably Chavez, that evidence of the who the killing believed was prosecution witness, murdered because was a would be an introduced to challenge available defense psychiatric (People Mickey, 54 Cal.3d at supra, *58 1) deliberate, fn. that defendant lacked the mental to or capacity premeditate, conform his behavior to the law’s because a disor requirements personality der since childhood caused him into in certain sexual existing to fly rages
851 667-668, 661, 670 (1972) 28 Cal.App.3d [104 v. Gay (People situations. I, 38 (Memro supra, trial. the 812].) prior That the defense at was Cal.Rptr. rely he not on that 693-694.) did that would say Defendant not Cal.3d at pp. defense. that defendant’s it the prosecution’s theory
And court had before the Given its his sexual desires. to out to fulfill boys was seek modus operandi intent, that court’s conclusion the to decide severance questions, discretion Code, (b).) motive, (Evid. subd. was at was reasonable. issue plan § he offer inconsistent surmise that might It defendant’s rejected properly mentioned the raised in a fashion—he timely not been having defenses as in consider it as favor of possibly weighing matter late for the court to too severance. sum, then, no cross- finding
In the did not its discretion in court abuse reason, severance. For that its might consideration that favor admissibility (1989) 48 (See v. Court Superior must be sustained. Frank ruling ordinarily 1119].) might Cal.3d P.2d An exception due process. if the was unfair as to deny so apply joinder grossly Sandoval, 174.) No unfairness 4 Cal.4th such gross v. at supra, was a similar murder. If one inflamma- The crimes were of class: appears. all were. tory, not an in camera
Defendant also contends that the court erred by holding (He an offer of defenses. does not hearing on inconsistent regarding proof record, however, the court would us to that shows that point anything have his as to an offer of regarding understood pertaining proof request defenses, inconsistent if it so Simmons Citing indeed would have pertained.) 967], 88 S.Ct. United States U.S. L.Ed.2d one constitutional maintains that he forced waive unconstitutionally to invoke another. He asserts he had to “diminish his to due right right of law in his basis of the in order charges” for severance process presenting the invasion under the Sixth Amendment right counsel “protect and his the Fifth Amendment. . . .” self-incrimination under right against however, when, error, waived at the
Defendant claim resumed session almost three after the initial on the motion to weeks court’s hearing reconsider, he stated had relevant already that because prosecution he no a closed longer hearing. materials required
I. Denying Challenging Motion Process Jury-selection (Norwalk) tried District Defendant was in the Southeast Judicial Los Court. moved to Angeles County challenge He implicitly Superior *59 on the basis that would not be drawn from jury-selection process jurors cross-section The court denied representative community. implicitly the motion. The that the to the parties stipulated challenge jury-selection 826, (1990) in that we v. Mattson process rejected People 50 Cal.3d 842-844 802, 789 P.2d was raised on the record same as exists in Cal.Rptr. [268 983] this case. Mattson was also tried in the Norwalk district. Defendant argues Mattson, that we should reconsider our in in which we held holding because “the record does not demonstrate a when the disparity population of this is used for community defendant has not comparison purposes, established a facie violation of the cross-section of the prima state guaranty” (Id. and federal 844.) Constitutions. at We decline to reconsider our conclusion.
J. Motion to Denying Dismiss Failure to the Case Bring Speedily for to Trial
Defendant contends that the court denied a motion to erroneously dismiss the for failure charges the case to trial He bring speedily. maintains that the must therefore be reversed on state law judgment grounds. I, 658, 1,
We issued the in remittitur Memro 38 Cal.3d supra, on August 1985, and defendant was returned to court for retrial on 21. superior August He waived his to a right trial. Counsel moved for speedy continuances 3, various and the case was set for trial on November purposes 1986. 18, defendant, 1986, On June moved that his acting propria persona, case be dismissed for failure to it to trial within 60 “in contra- bring days vention of to a my guaranteed right trial.” The court denied speedy implicitly the motion when it referred his letter to counsel for action” and “appropriate continued to counsel continuances. The grant cause was called to trial on 1, 1987. April motion, court,
theAt time of the section 1382 that the “unless provided shown, cause to the is must order the good contrary action to be dismissed in cases: ... following 2. When a defendant is not to trial brought [1 in a court within 60 superior after the . . . of the remittitur in the days filing trial (See (a) court. . . .” also subd. should be tried as soon [cases § as possible].)
We review a decision to continuances under section 1382 for grant an abuse of discretion. Johnson 26 Cal.3d 569-570 A.L.R.4th “A opn.).) (plur. 1255] continuance at the granted counsel constitutes . . . request normally good *60 [citation], showing in the absence of evidence incompetency at least cause for a continu- or circumstances where counsel’s request counsel [citation] other clients and the defendant the need to ance is prompted only by [serve] 52 Cal.3d Wright, v. delay. supra, himself to objects [Citation.]” 367, 389.) in granting did not abuse its discretion continu
The court plainly at Defendant’s life was stake. ances rather than dismissing charges. crimes, the court and counsel could have Given the of the gravity charged death, be a to and there is believed that a rush to the case would rush try told defendant that it “cannot evidence that the court did so believe—it effect, to trial in to commit suicide by insisting upon going permit you, . within the . . .” 60-day period in the record to that counsel’s
There is whatever show nothing requests continuances were the need to serve other clients. To solely by try prompted case, the declarations of Peter to show that this was the defendant relies on Larkin, for the case from that he hours lawyer, spent preparing This, 1985, and from June-December 89'/2 hours 1986. August-November however, is not itself to show a lack of as a enough purely by diligence law, matter of that he was motivated much less to establish claim solely at the need to other clients.” 52 Cal.3d “by (People Wright, supra, [serve] 389.) Nor is there in the record to hint at counsel’s anything incompe Rather, tence. our review of the record shows that were they diligent motions, an able defense. some of presented They brought important pretrial and, which had merit if have benefitted potentially significant granted, might defendant more than could have achieved at trial. In anything they particular, crucial, the motion to the confession and it was well was suppress litigated. the court did not abuse its discretion in Accordingly, denying implicitly the motion to dismiss the to continuances. charges by continuing grant
Defendant also contends that the Sixth Amendment required indepen- dent counsel be for the on his motions to dismiss appointed hearings counsel, when the to remove and that the was violated charges guaranty court refused to either motion. He cites no for this grant authority proposi- save tion the constitutional itself. We are not provision persuaded.
K. Motions Substitute Counsel Denying 21, 1985, Larkin and on defendant appointed August represent 14,1985, November was also him. Four times Carney appointed represent defendant moved to them. The court denied each motion. replace 9, 1986,
On
court about “the lax and
May
complained
. . . A few minutes later he
unconscientious performance my attorneys
that “a
be
I feel both these
asked
are
competent attorney
assigned.
attorneys
haven’t been
their
The court
They
called his
incompetent.
doing
job.”
“ludicrous ....
are both
Before the
They
request
competent attorneys.”
*61
concluded, he also
that his counsel “hasn’t
the time
hearing
had
complained
me,
motions,
to come down and see
even. ...
I haven’t
I
gotten copies
haven’t
of the
material. He hasn’t interviewed
gotten copies
discovery
months,
witnesses I’ve
for seven and
now.”
requested
eight
20, 1986,
counsel,
On
wrote to the court about
May
evidently
and on June 6 it decided to consider
motion to
new counsel
appoint
to
v. Marsden
Defendant declared that his to him had failed of all lawyers give copies materials, discuss and allow him to veto trial and discovery strategies, give them, to him motions before him informed about explain pretrial filing keep case, evidence, avenues that lead to new investigate might adequately him, communicate with file a motion in which he was promptly partic- He to interested. be concerned about counsel’s ularly appeared especially witnesses, failure to new interview some to 100” of whom potential “90 were “relevant to the motions and defense in this case . . . .” pretrial assistant,
In Larkin’s that he had lost a response, Carney, acknowledged error, of notes defendant had him. Aside from that minor page given Carney said had been almost meticulous in mo- excessively preparing pretrial tions, a task on which he had hours. He had tried four spent many capital cases and effect said that he was aware of the of a trial and gravity capital of the need for a defense “more than Mr. Memro to realize.” diligent appears defendant, defendant, He said that he would allow have the never or to any final on He would tell a client so. say Carney strategy. ordinarily explained defense’s and indicated that the defense would not aspects plans demanded, some avenues defendant had as were straw pursue they “just issues . . . not of to whether or not he is significant consequence going [as] trial, fair or with to motions.” Defendant was get respect pretrial when asked for information that uncooperative Carney background family ante, (See 816-817.) at a might help possible penalty phase. pp. free
Larkin also in detail to each Defendant had allegation. responded week, access to call his office and did so several times a at Larkin’s expense. to his He had visited him in at least 15 times. He tried to be jail responsive and him informed. He requests complaints keep discussed case with him. He filed some motions to strategy which defendant was opposed because in his were judgment they He had an work- necessary. investigator on case. There were difficulties because the ing crimes had occurred so but the defense was ago, to surmount them. Larkin stated long trying occur, defendant did not want defense at the trial if one were penalty but that he would be afforded one anyway.
Both counsel denied that the with their client relationship was steadily deteriorating—his Marsden motion was a to Larkin. While surprise Carney would not characterize defendant as “a malingerer obstreperous a[n] individual,” he warned that he might refuse to with future counsel cooperate *62 if “his whims are not answered” and don’t “they down and hold his hand go
In defendant said that response, counsel were not being diligent keep- him ing informed and that Larkin had him “the promised final in say strategy.”
The court ruled defendant. against It pronounced itself “satisfied that the are attorneys doing can for everything they you; that are both they qualified and . competent. . .” The court him to urged with cooperate them for his own sake.
Defendant responded to be by asking removed from the courtroom.
On 5, 1986, November 3 and November another Marsden was hearing held before Toixibio, John temporary Judge A. had replaced Judge who J. Eugene Long over the presiding trial. Defendant indicated that initially from, were complaints no different those he had before brought Judge Long—“[t]he problem is that it is He continuing.” told inaccurately Judge Torribio, who did not have a of the transcript prior hearing, Judge Long had told his lawyers did not they have to with him or speak show him sum, materials—in discovery to, can do “[tjhey whatever want they they are to defend going this case however want to.” they He again complained that his were lawyers refusing interview witnesses who he thought might be helpful.
The court decided not to obtain a of the copy transcript hearing before Judge It Long. reasoned that it would take too long would impair trial, defendant’s to a right speedy which he had been on for insisting some time. It stated that there would not “be continuances[,] because I respect your right have a trial. . speedy . .” Instead it went through defendant’s
list of with him and his complaints counsel to determine which were new and which not. Those issues that raising had decided Judge Long the court declined to hear.
The court reviewed counsel’s on the performance In remaining issues. essence, it asked them whether were they keeping informed and were information that investigating lead to new evidence. might Thereafter it asked, denied the motion without Defendant explanation. immediately “Why does the court seem to be so concerned about to a trial but my rights speedy so unconcerned about to a fair trial?” my rights
The next 18, court day, granted counsel a continuance to February file, 6, 1987. defense used this time to on motions to February strike factor; conviction prior felony as an to discover aggravating certain information from the South Gate Police officers’ Department interrogating files; evidence, to dismiss the personnel for charges nonpreservation order, failure to with a 1979 and for comply discovery failure to preserve records; officers’ informants; to exclude the testimony jailhouse to ex- clude psychiatric testimony; certain evidence under suppress section 1538.5; and to waive a at the jury if On penalty phase, any. February 25, 1987, a continuance until March and on March granted, *63 1987, the court ordered selection to jury 1. begin April 25, 1987,
On March there was another Marsden at which defend- hearing, ant again that counsel had complained failed to locate witnesses and were to demand unwilling the personnel records of other South Gate police officers, and that he did not want counsel to admit that was of guilty second degree murder for Carter’s Larkin “a killing. Calling and respected capable the court denied attorney,” the Marsden motion. 3, 1987,
On June before the just trial penalty defendant made his began, final Marsden motion. He wanted counsel either to be relieved or to be him, ordered not to mount a defense. To the “death penalty would be penalty life without preferable He declared parole.” that counsel would not [to] tell him their for the defense. Counsel plans that defendant would acknowledged not be told the him, names of witnesses for specific but that he explained was to trying get witnesses not to when he learned of cooperate their The court identity. denied the motion. implicitly
Defendant contends that the court erred each time it denied his motion to new He counsel. maintains that there appoint was a and “complete utter breakdown of the client attorney occasioned counsel’s relationship” by failure to “contact material witnesses motions” and to regarding pre-trial his in case a prepare manner. timely
857 We review the court’s for an abuse discretion. v. rulings (People 40].) (1993) 6 Berryman p. Cal.Rptr.2d Cal.4th at that none We shall occurred. explain
A entitled order defendant be to an “may substituting appointed that, absence, counsel if he shows Sixth Amendment to the right its his denied assistance of counsel would be or v. substantially (People impaired.” Marsden, 118.) 6 Cal.4th 2 Cal.3d Berryman, at supra, citing supra, The law motion “is settled. ‘When a defendant governing Marsden well seeks to his counsel and and discharge attorney, substitute another appointed asserts the trial must to representation, court defendant inadequate permit the basis his contention and to of the explain specific relate instances A defendant is entitled to attorney’s inadequate performance. [Citation.] relief if the record shows that the is first not clearly appointed attorney or that defendant and counsel providing adequate representation [citation] have become embroiled in such an irreconcilable conflict that ineffective is v. representation likely result Fierro (People [citations].’ [Citations.]” 1 Cal.4th 1302].) P.2d Cal.Rptr.2d were The court’s The record rulings reasonable. makes that plain counsel were well. representing substance diligently great court, error, weight appeal this which contains 46 claims of made before, by tenacious of his cause possible litigation and after during trial. The also record reveals that the court into defend “carefully inquired counsel, ant’s reasons requesting substitution of which to be proved either groundless insufficient to demonstrate patently ‘such an irreconcil ” able conflict that ineffective representation result.’ likely [was] Fierro, 206.) Cal.4th supra, at p. sure,
To be defendant made not plain he did like his and did lawyers That, not however, think of them. *64 highly not “was show a enough [to conflict of in, a defendant’s claimed lack of interest]. ‘[I]f trust inability with, an get along were sufficient to appointed attorney appoint compel counsel, ment of substitute defendants would veto effectively have a power over any a of appointment by process elimination could obtain appoint ” ment of their which is preferred not the law.’ v. attorneys, certainly (People Berryman, 6 supra, 1070.) Cal.4th at p. that,
Defendant also asserts over his objection, counsel implicitly entered a to Carter’s plea guilty murder when at they conceded closing argument that he killed him. He that over implicitly so his argues doing objection reveals an irreconcilable conflict. not, however,
Counsel did plead defendant guilty offense. At he closing conceded the argument, obvious: that had killed Carter. 858 “murder,” and he called Carter’s but killing
At one point tongue slipped stated, “In at the have to as I look he then argued, looking charges you again, shown, determine whether malice has even been at the malice instructions to malice, number one. Because if there’s no no malice it’s not a aforethought, murder. It could be a had been instructed on manslaughter.” jury just concession, We think that counsel’s read as a voluntary manslaughter. whole, Carter, was that defendant had killed not that he had murdered only To that fact was not to enter a on him. his behalf. acknowledge plea guilty As Posner in a case with a similar Judge explained lawyer posture, “[t]he to enhance his with the his client’s trying credibility jury by conceding of the offense of which the evidence was and to focus guilt overwhelming, case, his efforts on the weakest link in the state’s that charge [defendant] victim, had to have sex with his an essential element . ... attempted [‘JO . . . The did not Underwood lawyer plead guilty; merely acknowledged of the evidence of criminal confinement in order to contrast it weight with the lack of direct evidence of an intent... to have intercourse with the 473, 474; (Underwood (7th 1991) victim.” v. Clark Cir. F.2d see also 939 1115, 465, (1991) v. Jones 53 Cal.3d 811 People 1139-1140 Cal.Rptr. [282 757].) P.2d him
Defendant next contends that the court erred in to admonish failing confrontation, trial, and obtain his waiver of his to a rights jury 238, (see (1969) self-incrimination against Boykin v. Alabama 395 U.S. 243 274, 279-280, 1709]; 122, (1969) L.Ed.2d S.Ct. In 89 re Tahl 1 Cal.3d [23 577, 449]) 132-133 before counsel entered a Cal.Rptr. plea stated, however, to Carter’s murder. As counsel entered no such guilty plea. If defendant is that counsel’s an irrec concession caused arguing conflict, oncilable we He not have welcomed their disagree. may approach, but he was not entitled to claim that an irreconcilable conflict had arisen because he could not veto their reasonable tactical decisions. merely (1990) 640].) v. 50 P.2d Douglas Cal.3d Cal.Rptr. Clark, (see This was a reasonable tactical decision Underwood supra, 474): F.2d at defendant’s confession have would made any argument he did not kill Carter and counsel were wise to wholly unpersuasive, (See maintain with the the obvious. credibility jury by acknowledging v. Jackson 28 Cal.3d People 292-293 [168 *65 P.2d (plur. opn.).) 149]
Defendant also contends counsel for that his motion to by denying appoint him to him his him of Marsden claims the court help prosecute deprived asserts to due of law and to the effective assistance rights process We counsel. that some have acknowledge appointed independent courts 86, (1992) counsel to a Marsden claim. v. Cal.4th press (People Hardy 796, However, 781].) 825 P.2d defendant cites no Cal.Rptr.2d authority [5 such an and indeed the rule is to the requiring appointment, contrary. (People 521.) v. 50 Cal.3d at Douglas, supra, What our decisions have consistently is that the court listen to and evaluate a defendant’s claim required that so, counsel are to The court did and defendant failing perform adequately. was entitled to no more.
Defendant further maintains that the court him of due deprived process law when it “used his assertion of trial as a to speedy rights [his] pretext him the to deny for the opportunity prepare fully Marsden It will hearings.” be recalled that the court ruled that because it would interfere with the case trial, to no proceeding of the first could transcript be hearing prepared, yet the next it counsel a day granted continuance. Even that there was assuming some in those we are inconsistency rulings, that there unpersuaded was a Defendant, violation of any counsel, to due possible right of law. process and the court went defendant’s list of through and complaints determined which ones had jointly been already before adjudicated We Judge Long. discern no denial of due in process this procedure.
Finally, contends that when the court denied his Marsden motion between the guilt trials it failed penalty apply proper motion, standard to such a at least to the extent of new counsel to appointing view, its investigate basis. In his the standard the verdict of following guilt was less burdensome to him than that articulated in Marsden's progeny, “ which requires ‘the record that the clearly first show[] appointed is not attorney providing adequate representation or that defendant [citation] and counsel have become embroiled in such an irreconcilable conflict that ineffective is representation Fierro, to result likely . . . .’” (People v. Rather, 1 Cal.4th supra, 204.) he asserts that after the trial he need guilt have presented a “colorable only claim that he was ineffectively represented at trial” (People (1985) v. Stewart 171 Cal.App.3d 306]) to have the court appoint counsel to independent investigate bring However, the motion. after he filed his brief we held that opening standard in actually articulated Stewart is the Marsden standard.
Smith 6 Cal.4th 693-694 192].) Cal.Rptr.2d standard, Under that concluded, as we have already no abuse of discretion appears denying death; motion. Defendant wanted to be put desired a lawyers him; different faulted, outcome for their choice cannot be nor that of the court in refusing relieve them.
L. Failing to Preserve Photographic Evidence trial, At defendant learned that the Bell Gardens had police lost recently photographs individuals whom José Feliciano identified in 1976 as being *66 the two men turns the Defendant asserted that one taking riding motorcycle. of the of was taken someone else who matched missing the photographs sketch composite exactly.
The court ordered the to search for the missing and parties photographs that if could not be found the to be told agreed they would have jury they other showed than defendant. Defendant to also persons moved instruct the sketch, that one of the matched the jury composite but photographs precisely the court denied on tentatively the motion of cumulativeness. It grounds put aside a of definitive on the the ruling resemblance to question photograph’s the sketch the effort to to locate composite pending try the prosecution’s photographs. so,
The was unable to do and the prosecution before the parties stipulated 28, 1976, that on José Feliciano was shown color jury July six photographs Park, similar to the sketch of the individual composite seen at Ford and that he identified a other than the photograph person defendant—apparently man with knife he had the seen near Fowler and Chavez. The also parties that Feliciano later viewed and stipulated identified photographic lineups individuals other than on defendant as the man the possibly being motorcy- cle and the man the wearing green Army jacket.
Defendant does not attack the tentative
the
but
ruling
stipulation,
maintains that
the
failing
undermined
preserve
rights
photographs
asserts to a
fair
and to
trial
a reliable
fundamentally
guilt
penalty
claim
determination. The
lacks merit.
the
parties resolved
problem by
the
with evidence
providing
content
jury
by stipulation
photographs’
Defendant
significance.
satisfied with
apparently
stipulation,
and he
not now
about it—he has
may
not
for
complain
point
preserved
Fierro,
173, 215;
1 Cal.4th
cf.
v.
appeal. (People
supra,
People Bacigalupo
(1991)
559],
1 Cal.4th
Cal.Rptr.2d
138-139
vacated
and remanded on other
nom.
sub
grounds
Bacigalupo v. California
32])
Defendant also be understood to contend to enter into may that stipulation constituted ineffective do assistance counsel. We not It agree. was professionally reasonable to in effect José stipulate Feliciano identified individuals other than defendant as been at Ford Park with having Fowler and on Chavez were killed. night they
861 M. Claims Evidence First Murder Degree of Insufficient for Convictions Defendant of the evidence of the first challenges degree sufficiency murder for convictions the Carter and Chavez killings.
1. Evidence Murder Carter Sufficiency Felony of
Defendant contends that the had insufficient evidence of a jury violation or violation of section 288 to convict him of attempted first degree murder under a for the felony-murder theory Carter He asserts that killing. conviction violated his under state resulting law and the due rights clause of the federal Constitution. process evidence,
“To determine of a claim of validity we [the insufficient] must inquire whether a rational trier of fact find could defendant guilty a reasonable doubt. In this we must beyond view the evidence in the process most light favorable to the in favor of the judgment presume judgment the existence of fact the trier of fact every could deduce from the reasonably sufficient, evidence. To be evidence of each of the essential elements of the crime must be substantial and we must resolve the question sufficiency Johnson, of the record as a light whole. v. 6 (People supra, [Citations.]” 1, 38.) Cal.4th If we determine that a rational trier of fact could find the essential doubt, elements of the crime proven reasonable the due beyond clause of the process United States (Jackson Constitution is satisfied v. (1979) 560, 573-574, Virginia 443 U.S. 318-319 L.Ed.2d S.Ct. 99 2781]), I, as is the due clause of process article section 15 of the California Constitution v. 6 Berryman, 1083). Cal.4th at supra,
We whenever, have held that a violation of section 288 occurs desires, the child’s gratify or the actor’s sexual an actor touches a child under 14. (People (1992) v. Raley Cal.4th Cal.Rptr.2d 712]; P.2d but 331, 344, cf. People Scott 9 Cal.4th fn. 7 [36 627, 885 P.2d Cal.Rptr.2d to decide whether the [declining act must 1040] be “patently ‘sexual’ in nature as well .”].) as intent . . . [in] confession,
In his defendant said he lured Carter to his apartment him in the photograph nude. Once there turned on some strobe lights, which seemed to mesmerize the young After a few boy. minutes Carter said leave, he wanted to which angered defendant who then choked him and tried to have sex with his body. also jury received evidence of defendant’s sexual interest in youths.
These included pornographic magazines and photographs featuring young in the boys nude. I,
In Memro 38 Cal.3d supra, we a claim that there rejected insufficient evidence to defendant’s satisfy conviction felony-murder *68 now, Carter’s He a killing. different conclusion urges but on the record here trial, as on that of the “there is little doubt prior possessed [he] (id. 697) lewd intent” at requisite to commit a p. lewd or lascivious act with Carter, and that “the ‘arrangement’ of lights, pornographic materials and other in paraphernalia apartment would sufficient suggest [his] to planning enable to commit lewd conduct once a [him] willing came participant (Id. 699.) at along.” p.
In addition to the assortment of magazines and photographs suggesting defendant’s sexual interest in youths, the also had before it the jury confes sion in which he described wanting Carter and photograph wanting have sex with Scott Fowler 12-year-old before him in From killing 1976. this evidence, a rational jury could infer that he to act on planned his sexual interest young a boys by performing lewd or lascivious act with Carter. That the did not hear the jury psychiatric at the testimony presented prior trial defendant’s regarding sexual motivation to Carter to bring his apartment I, (Memro 38 supra, 693-694) evidence, Cal.3d at altered the pp. of quantum sure, not, to be but did in our view make the evidence insufficient as a matter if, asserts, of law. Even as he a of a taking nude child was not photograph (see crime at the time §311.3, 1981, 1056, 1, enacted Stats. by ch. p. § 4080), a rational trier of fact could infer that he intended to touch Carter with alive, lewd or lascivious intent while and took a direct if ineffectual possibly words, toward that step other goal—in to violate section attempted 288. I, (Memro 697-698; 21a, 38 Cal.3d supra, at see also enacted pp. Stats. by § 1986, 519, 1, ch. Indeed, 1859 p. rule].) the trier codifying [later of fact § could infer from the evidence that defendant disrobed Carter while alive with lewd or lascivious intent. Such conduct and mental state would com a violation plete (See sum, of section 288. post, 871.) In evidence sufficed for a rational trier violate, of fact to conclude that he attempted violate, did section 288. The law no required more for a of conviction first murder degree on a 189.) felony-murder (§ theory. 2. Sufficiency Evidence Premeditation and Deliberation in the of and Carter Killings
Chavez
First murder degree bemay found when the prosecution proves a reasonable beyond doubt that the actor killed with malice aforethought, kill, intent to 187, premeditation, and 189.) deliberation. (§§ Defendant contends that there was insufficient evidence that Carter and Chavez were killed with premeditation and deliberation. He is unpersuasive. “
We have defined “deliberate” as ‘formed or arrived at or deter mined as a result of upon careful and thought considerations for weighing
863 ” (1992) course action.’ v. 2 against proposed (People Perez 1159].) Cal.4th We have defined Cal.Rptr.2d ” (Ibid.) as “‘considered beforehand.’ Premeditation and “premeditated” time, occur in interval. test is not but deliberation can a brief “The reflection. cold, with follow each other calculated ‘Thoughts may great rapidity ” be arrived at Bloyd Cal.3d judgment may quickly.’ 802].) P.2d heard evidence that the bodies of Fowler and jury Chavez were found 178 feet also heard They defendant’s confession that he apart. *69 Chavez, had no sexual interest in whom he found “fat and he killed ugly”; him because he started after screaming Fowler knifed.
There of was sufficient evidence and premeditation deliberation for a rational trier fact to conclude that defendant’s actions satisfied those elements of degree first murder. could jury have concluded reasonably that defendant decided he to kill had Chavez to him from prevent identifying killer, him as Fowler’s a it could motive conclude was reasonably imbued Perez, with deliberation and premeditation. (People v. 2 Cal.4th at supra, p. Moreover, 1126.) he had from to run Fowler’s to Chavez’s. He then position cut Chavez’s throat from behind. A rational could conclude jury that he result, intended death and no other and that considered his as he options ran toward Chavez.
A rational could also have found jury Carter’s and killing premeditated deliberate. It could have concluded that defendant used masking to tie tape Carter’s hands behind his back and then him. It could strangled have concluded that these deeds and reflection consumed some required time. It could also have determined that Carter was killed to from him later prevent defendant as identifying and sexual a motive captor exploiter, requiring calculation and reflection. 15,
Defendant relies on v. People (1968) Anderson 70 Cal.2d 26-27 [73 550, which, 942], Cal.Rptr. P.2d to sustain a verdict of and premeditated murder, deliberate (1) required extremely strong (2) evidence of planning, evidence of motive in with or conjunction evidence of a planning calcu lated manner of (3) killing, evidence of all three indicia of premeditation and deliberation. But Anderson's “guidelines are not normative” descriptive, Perez, (People “factors, v. supra, Cal.4th at 1125); its while helpful , . . . are not murder, a sine non to first qua finding degree premeditated nor are they (Ibid.) Anderson, exclusive.” For example, notwithstanding supra, 26-27, 70 Cal.2d at the method of pages alone can sometimes killing support a conclusion that the evidence sufficed a finding premeditated, 920,
deliberate murder. (1995) Hawkins 10 Cal.4th (People 956-957 636, 574].) 897 P.2d Cal.Rptr.2d
N. Motion to Exclude Denying and Photographs Magazines Youths Portraying
Over an made on objection of irrelevance grounds and undue prejudice, also made under implicitly Evidence Code section the court ordered certain magazines clothed photographs and unclothed depicting admitted under youths Evidence Code section (b), subdivision as evidence of motive and intent to perform lewd or lascivious act on Carter in violation of section 288. The court admonished the not jury to consider the items as evidence that defendant was evil or was to commit disposed certain of crimes. types
We review the admission of evidence under Evidence Code section 1101 for an abuse of discretion. v. Daniels 52 Cal.3d offenses].) of other 906] [evidence
Character evidence is admissible in this state unless barred aby particular Code, (Evid. 1100.) 1101, statute. Evidence Code section (a), subdivision § creates an to that rule. It exception forbids generally character introducing evidence to . . . conduct on a “prove specified (b) occasion.” Subdivision of Evidence Code section 1101 in turn creates an to (a): subdivision exception evidence of conduct be intent, admitted to motive or may prove it although not be may admitted to show a to do the disposition of conduct type shown the by evidence.
We have examined the and magazines in photographs question. They stories, contain sexually explicit photographs of males drawings ranging in from age prepubescent adult. Some of the young are of photographs similar character. Others in a manner that depict youths is not sexually suggestive.
The court did not abuse its discretion by ruling admissible magazines 1101, under Evidence Code (b), section subdivision to show intent. We believe the were admissible to show photographs defendant’s intent to molest a in violation of young boy section 288.
Defendant’s intent to violate section 288 was at issue when he put pleaded not to the guilty 414, crimes charged. (1994) v. Balcom 7 Cal.4th 666, 422-423 777]; Cal.Rptr.2d [27 867 P.2d see also v. Robbins People (1988) 45 Cal.3d 879 355].) Cal.Rptr. [248 not Although abstract, all were in the in the sexually explicit photographs, presented them, context of defendant’s evidence from which the possession yielded could infer that he had a sexual attraction jury and intended to young boys (See (1961) act on that attraction. People Bales Cal.App.2d of molestation victim in the nude [photograph admissible 639] intent.”].) to show “lewd were young boys admissible as photographs of defendant’s intent to do a lewd or lascivious act with Carter. probative Defendant also contends that the items were more substantially prejudicial Hence, view, than were in his their they probative. introduction was barred Evidence by Code section 352. We find no abuse of discretion in admitting sure, magazines To be some of this photographs. material showed young boys sexually It would graphic poses. be undoubtedly disturbing most But we cannot people. say it was more substantially prejudicial than probative, its value in defendant’s intent establishing to violate section 288 was substantial. The court balanced the items’ worth evidentiary their against to cause potential prejudice determined that the former substantially outweighed latter. Its decision was reasonable. Dawson v.
Citing
Delaware
O. Denying Motion to Exclude Photographs Murder Victims Over defendant’s objection on grounds of prejudicial impact substantially *71 exceeding value probative Code, and (Evid. cumulativeness 352), the court § admitted postmortem of each photographs victim. Some of them showed scenes, the victims at the murder while others were taken in the coroner’s office. The court ordered certain before photographs cropped admission to minimize effect, any unduly prejudicial and excluded others as entirely cumulative.
Defendant contends that the admitted lacked photographs any pro bative value because the cause of death was never he disputed, offered to stipulate certain death, details the cause regarding and the coroner’s testimony sufficient to the explain sum, cause of death in In any event. argues the them, were photographs gruesome and that after seeing “the no doubt jury felt to convict compelled someone.”
The People in effect respond that all the were photographs probative malice—i.e., show an they intent to kill malice—and, and therefore express Carter,
because a clothesline was used to of his strangle body, photographs neck, a cord which show around his are of deliberation wrapped probative (See, v. e.g., Garceau 6 Cal.4th premeditation. People 180-181 bodies’ Cal.Rptr.2d [photographs showing 664] malice]); condition when found relevant issue of v. People Raley, supra, [same].) Cal.4th at 896-897 pp.
The court had broad discretion in whether to admit such evidence. deciding (Pe 896.) Raley, v. Cal.4th at ople supra,
1. Prejudice Undue We with defendant that some of the must saw agree photographs jurors have been to them. were of children who were extremely disturbing They abstract, killed in a manner. The knew these facts in the ghastly jury grim sure, be but the made them concrete. It would photographs horribly surprise sickened, ifus were able to view them without or jurors being disgusted, shocked.
But the before us is whether the court’s that the question ruling photo could be admitted was within reason. It was. The were graphs photographs of the that defendant killed with clearly probative prosecution’s theory malice, and corroborated other evidence of the surround circumstances they verdict, the murders. Before its was instructed “not ing returning jury him,” be influenced for a by pity by prejudice against [to] sentiment, “not be mere by swayed conjecture, sympathy, passion, [to] [or] instruction (Peo . . . .” We assume that the followed that prejudice jurors 612, 689, 17) 54 Cal.3d ple Mickey, supra, fn. and considered the for their evidentiary value alone. photographs
Some of the of defendant’s victims them as photographs clearly depict found, were whereas others reflect the authorities’ they may conceivably sure, To be a risk of arise should examining procedures. “ prejudice may left, taken an . . . . as it is during ‘[p]hotographs autopsy depict corpse assailant, not its by but instruments and of the by probing procedures *72 ” 1, 38, (State (N.D. 1971) medical examiner.’ v. Iverson 187 N.W.2d 123, 330, (1969) v. Turner 17 132 People N.W.2d quoting Mich.App. [169 335]; 524, (1952) see also v. Burns 541 P.2d People 109 Cal.App.2d [241 1222, 849, 308]; (1986) v. Allen 42 Cal.3d 1258 People 729 Cal.Rptr. [232 other, (lead P.2d In the case of as with opn.).) autopsy photographs any 115] however, the court broad discretion in whether enjoys deciding prejudice (1976) value. 16 substantially outweighs Cal.3d probative (People Steger 539, 665, 1206].) 552-553 Often 83 A.L.R.3d [128 their value can be (1957) considerable. v. Carter probative 48 Cal.2d (lead P.2d We find no abuse of opn.).) discretion. 665]
2. Cumulativeness stated, As defendant also that of the argued many were photographs because were cumulative. The prejudicial they court it agreed: excluded some on that We find no abuse of ground. discretion in the court’s culling for each showed different procedure, of the photograph aspects killings; none gratuitously duplicated any other.
3. Constitutional Contentions Defendant also contends that admitting violated a he photographs right asserts to a fair trial under the fundamentally Fourteenth Amendment and to a reliable determination of under the guilt Eighth Amendment. He did not raise these court, bases for exclusion with the and did not the claim preserve event, on In appeal. we do we see how either constitutional provision implicated by admission. The photographs’ contention lacks merit. (See v. Price People Cal.4th 440-441 Cal.Rptr.2d 610].) P.2d
P. Sustaining Objection on Relevance Grounds to Cross-examination The mother, prosecution Fowler, called Fowler’s Ella Mary her identify son and Chavez from photographs, also to that the two con- explain cocted a for their story respective that were parents they going spend at night the other’s house to avoid detection as to the going park. direct examination contained 10 questions.
Cross-examination was brief. equally Defendant elicited from Mrs. Fowler that Fowler was precocious: “He had a lot of older friends.” Defendant wanted to know how much older those friends were. The prosecutor objected that the answer would be irrelevant. The court sustained the objection.
Defendant contends that ending this line of questioning infringed on rights asserts to cross-examine witnesses under the confrontation clause of the federal Constitution’s Sixth Amendment. He that argues “[i]f counsel had been Fowler, permitted Mrs. question and she had revealed that most of Scott’s sixteen, older friends were then doubt would be cast on proposition Furthermore, Fowler with spoke into this probing [him]. area have [might] revealed other persons Fowler have met on may who[ ] night the murders.” *73 record,
“The claim lacks merit. On this the trial court’s even if ruling, erroneous, could not have defendant because prejudiced favorable infer- any ence he to draw from the sought proposed impeachment purely specu- Davis, 137a.) lative.” v. (People supra, Cal.4th event, In we discern no constitutional violation. “The confrontation clause allows ‘trial . . . wide judges latitude ... reasonable impose about, limits on . . . cross-examination based on concerns other among harassment, issues, things, confusion of the the prejudice, witness’ or safety, that is interrogation (Delaware relevant.’ only marginally v. repetitive [(1986) 673,] 674, 683, Van Arsdall 475 U.S. L.Ed.2d 106 S.Ct. bias, [speaking cross-examination on specifically 1431] but without lim- thereto].) itation The court here did no more than it was permitted.” (People Clair, 629, 656, v. 2 Cal.4th supra, 3.) fn. It well within the stayed bounds of the “wide latitude” the Constitution affords it.
Q. to Instruct With Denying Request a Version CALJIC No. 2.91 Defendant asked the court to instruct the with a jury version of CALJIC (4th No. 2.91 ed. 1987 We in relevant supp.). quote the he part language “You must be satisfied requested: a reasonable doubt beyond accuracy of the identification of defendant as the who committed person the offense before convict him.” you may
The court refused to give the instruction as “There inapplicable, saying, has been nobody identifying defendant as the who committed the person crime . . . .”
Defendant contends that the failure to the instruction give violated state law and also “created an risk that impermissible the conviction and sentence of death were arbitrary unreliable in violation of appellant’s Fifth, under the Sixth rights and Fourteenth Amendments to the United States Constitution.”
We The court was disagree. correct: no witness identified defendant as the this, killer. He concedes but that argues there was and other testimony killer, evidence have been suggesting might and that the prosecution at emphasized testimony closing argument.
Whether or not we with agree defendant’s of description prosecution’s case, it did not require court to give his version of CALJIC No. A 2.91. is not entitled party to an instruction on a for which there no theory is Roberts, supporting evidence. 313.) Cal.4th No supra, witness identified killer. defendant as the
Defendant’s constitutional claims must also fail. We any cannot discern that the reason Constitution would an when no instruction require giving evidence to it was adduced. support
R. Notice Adequacy Intent to Seek Conviction Felony-murder of of a prosecutor instruction on the requested felony-murder basis that defendant killed Carter while to violate section 288. violating attempting Defendant on the that the objected ground felony-murder was un- theory available to the because the People felony-murder circumstance was special noted, however, found not true in his trial. As prior is position unpersua- ante, (See sive. 820-822.) at pp.
Defendant contends that the him when it prosecution surprised the instruction sought on a for felony-murder Carter’s theory killing, thereby violating he finds in the rights Sixth and Amendments to Eighth the United States Constitution to notice of the adequate him. charges against
If the prosecution’s defendant, felony-murder theory surprised he could have moved to of reopen taking evidence so as to present defense (See it. against 733, People v. Murtishaw 29 Cal.3d fn. 11 [175 446].) 631 P.2d He did not do so. He has waived claim of error.
Defendant conclusion, that if we urges reach that counsel were ineffective for to raise failing the matter at trial. We disagree. Counsel were not deficient in case, move to failing for it was reopen to the plain parties that the prosecution was on a proceeding theory felony murder. In Memro I, 658, 695, supra, 38 Cal.3d we declared that “substantial evidence supports the verdict on a felony-murder (attempted lewd or lascivious conduct and, (§ 288)) therefore, theory” the case could be retried on (see that theory id. at 699-700). pp. The retrial proceeded accordingly. S. Failure to Instruct Sua Sponte That Jurors Must Agree Which Act Constituted Underlying Felony Purpose Felony Murder
Defendant contends that the court should have instructed the jurors on its own motion that must they on unanimously agree the nature of the lewd or lascivious act he committed or to find him attempted guilty felony murder. He contends that its failure to do so created a risk that the guilt judgment was arrived at arbitrarily in violation capriciously, of a right he discerns in the Eighth Amendment.
We disagree for reasons we
gave
v. Pride
People
(1992)
In Memro 38 Cal.3d supra, at pages we held that there was sufficient evidence that Carter in was killed an to violate attempt section 288 that retrial for his could killing on a constitutionally proceed felony-murder We have theory. observed there already was no double violation in jeopardy retrying defendant on a We felony-murder theory. Pride, conclude that the holding People 3 Cal.4th at supra, pages 249-250, applies fully this case.
T. Failure to Instruct on Other Children Involving Offenses
Defendant contends with to his regard conviction of Carter’s murder—which, murder, if decided on a theory felony a conclu required sion that he violated or to violate section attempted 288—that the court erred in to instruct failing sua on sponte what calls “lesser included offenses” of 288, section “misdemeanor child namely molest” under former section 647a to the “contributing of a minor delinquency under Penal Code section 272.” He maintains that the error him of a deprived he asserts to a right reliable guilt determination under the Amendment Eighth to the United States Constitution. Carter,
When defendant killed former section 647a in relevant provided part: who or “Every person annoys molests child under the of 18 is age and is first vagrant conviction a fine not punishable upon by five exceeding hundred ($500) dollars in the by not imprisonment county jail 1976, 1139, 262, six months or exceeding (See both . . . .” by Stats. ch. § 5136; 647.6.) see now Defendant in essence that the argues jury might § have found he intended Carter only annoy him. by photographing
It has been held that misdemeanor child molestation under former section 647a was a lesser offense of (1981) section 288. v. Poon included
871 so, 375].) and even if Even if that is Cal.Rptr. Cal.App.3d offense in the on a included entitled to an instruction lesser context, on instructing rationale for lesser which felony-murder (1984) (cf. v. Geiger not People offenses be may implicated included we do not 1303])—issues 518-520 Cal.3d on that offense. entitled to an instruction that he was decide—we disagree on a lesser in to an instruction criminal defendant is entitled A (see if v. Morrison Cal.App.2d only People cluded offense *76 which, the trier 874]) by is evidence if accepted “there Cal.Rptr. 712-713 [39 (id. fact, offense” defendant from of the guilt greater of would absolve [the] lesser, (1971) 15 712) (Accord, v. Green People Cal.App.3d at but not p. 509, 524, 84]; (1976) v. 18 Cal.3d see also People Berry Cal.Rptr. 529 [93 415, 777]; (1944) v. 25 McCoy 556 P.2d People Cal.Rptr. 518-519 [134 177, 315]; (1987) P.2d v. Lesnick 189 People Cal.2d 187-188 [153 491]; 637, (1982) 642-643 v. Chambers People Cal.Rptr. Cal.App.3d [234 444, 306]; (1980) v. Ellers People 136 455-456 Cal.Rptr. Cal.App.3d [186 943, 888]; (1978) v. Salas 77 108 954 Cal.Rptr. People Cal.App.3d [166 600, 755].) 607-608 Cal.Rptr. [143 Cal.App.3d case, that, the trier of
In this there was no evidence if accepted by fact, violated 288 but would not would absolve defendant of section having former section having absolve him violated 647a. an based on section defendant was not entitled to instruction
Specifically, or more elements to a peculiar 647a if there was no evidence that one of the violation of section 288 was absent but that all of the elements required Assuming a violation of section 647a were that establish former present. 288, is a offense it must be so former section 647a lesser included of section because it lacks the element of a lewd touching. primary “[T]he 288, (a), section 647.6 is that the distinction between subdivision and section occur, former that a or constructive and that the requires touching touching contact, is lewd. It is this of overt intrusion upon body or touching type 288, intent, of the child done with that a section subdi distinguishes lewd (a), vision from offense section offense the less serious defined 647.6.” by 530, 439].) (1995) (People Cal.Rptr.2d v. 35 539 Levesque Cal.App.4th [41 647a, That distinction was also true section primary predeces 176, (1978) sor 185 (People of section 647.6. v. La Fontaine 79 Cal.App.3d identical, here, relevant to that in version as Cal.Rptr. [discussing [144 729] 154, 1, 1241; Carter; 1967, defendant killed see Stats. ch. p. effect when § 1976, 1139, 5136].) §262, Stats. ch. conclude that
There was evidence from which a rational trier fact could that a violation of section It 288 occurred. will be recalled 872
confessed that he Carter brought to his to take nude apartment intending him, of him. He admitted pictures he disrobing although stated that he did so conclude, after death. But the could jury notwithstanding that of defend part confession, alive, ant’s disrobed Carter while either at his command intent, then, an actual with lewd by touching, or lascivious as the sodomized or prosecutor argued, to sodomize him while alive. attempted believe a jury may the remainder part reject “[T]he of a confession 673, (1935) 1013]; v. Garcia 2 (People Cal.2d P.2d [citations].” cf. [42 1158, 286, v. People (1990) 50 Cal.3d 791 P.2d Cal.Rptr. Ramirez [270 could find sexual acts took [jury while victim was “in place 965] alive absence of evidence” of any intent “to have sexual conduct with a corpse”]; accord, (1995) People Cain 10 Cal.4th 892 P.2d Cal.Rptr.2d 1224].) alive, constructive, while actual or disrobing if accepted by fact, trier of establishes a violation of section 288. v. Mickle 54 Cal.3d 290].) What was missing, however, was evidence that a lewd was absent but that touching all of 647a—i.e., the elements of a violation of section lewd conduct without a *77 lewd touching—were present. Defendant the evidence interpreted as not establishing lewd act or any criminally act of criminal at annoyance all: indeed, on he maintains that the evidence showed appeal that he only him, leave, Carter to his home to brought Carter wanted to and photograph he him. His impulsively strangled closing argument similar proceeded along lines. For its relied on part, prosecution evidence that he violated or circumstances, attempted violate section 288. Under these he was not entitled to an instruction based on former section 647a.
We turn to the other offense to which defendant refers. When he killed Carter, section 272 in relevant provided part, who commits “Every person act or omits the any which performance any duty, act or omission causes or tends to cause or under the encourage of 18 to come any person age years 600, 601, within the of Sections provisions or 602 of the Welfare and thereto, Institutions Code or which act or omission contributes or any person who, omission, threats, commands, act or by any or or by persuasion, induces or endeavors to induce any under the of 18 or person age years any ward or child dependent of the court to fail or juvenile refuse to conform to court, a lawful order of the or do juvenile or to act or to perform any follow course of conduct any or to so live as would cause or tend manifestly to cause such to become any or remain a within the person person provisions 600, 601, Code, of Sections or 602 of the Welfare and Institutions is guilty 1125, 16, of a (See misdemeanor . . . .” 5037.) Stats. ch. p. § It has been held that to a minor’s under section contributing delinquency 272 is not a lesser included offense to a lewd or lascivious act performing (a). (See section subdivision 14 as by child under proscribed with a 1159, 1162-1164.) we Accordingly, (1992) 8 v. Cal.App.4th People Vincze contention unpersuasive. find defendant’s of the sum, Eighth there violation any was no error. Nor was
In there 9.) fn. at 6 Cal.4th Berryman, supra, Amendment. on Failure Purportedly Prosecutor’s Remark U. Defendants Testify in misconduct at engaged
Defendant maintains that prosecutor defendant’s failure to when he commented on closing argument purportedly Fifth, Sixth, violated Eighth, that the misconduct He contends testify. and Fourteenth Amendments. dwelt on the Fowler’s and Chavez’s killings,
Discussing prosecutor elsewhere, in the read news- killings defendant was about the alibi defense: out in the newspaper confessed. He falsely pointed discrepancies papers, he that defendant and the confession. For the most part, emphasized accounts from of the facts solely having could not have detailed given description accounts crimes. read of the newspaper “Now, the the defense theory—I theory assume proceeded: prosecutor to this crime he
is that for some reason wanted to confess falsely it to be lies anything wanted to do He didn’t want properly. caught *78 reason, these murders otherwise would be him for some who prosecuting that, a we’ll which he wanted? And if there’s reason for perhaps apparently I it is. hear it from the defense. don’t know what tell us friend that the are for? looking doesn’t he about his police
“Why Now, articles, of in the whole thing to most these according very prominent he tell is were these at this doesn’t us park. why that there two Now people about his who pal presumably got away? it 27 he the sort of detail that
“How is that months later could remember he he it?" has if didn’t do us,” remark, he tell a
Defendant that the doesn’t complains “Why sure, on his failure to the To be the federal comment take witness stand. been comment on a Constitution has deemed to prohibit prosecutor’s 142, 178, Cal.4th defendant’s failure v. testify. Mayfield, supra, 106, 110, v. L.Ed.2d citing 380 U.S. 615 [14 California Griffin 1229].) But defendant did remark S.Ct. not assign misconduct it, and there is no reason to believe harm when the made prosecutor on not have been cured. Defendant’s must therefore be point rejected could Benson, (See 794.) v. 52 Cal.3d grounds. People supra, procedural Moreover, counsel cannot be faulted for not an interposing assignment merit, for misconduct. Such an action would have been without it is manifest that the did not comment on the failure to prosecutor testify.
We examine whether there is a reasonable likelihood that the would jury have understood the remark to be a comment on defendant’s failure to Clair, 629, 663.) v. 2 Cal.4th supra, testify. (People There is no such likelihood. The remark’s context shows that the prose- that defendant wanted to confess falsely cutor was ridiculing possibility to two homicides on the basis of stories. He first stated that such newspaper it an idea was He then added that was inherently unlikely implausible. accounts, fact: if defendant were on the basis of solely confessing newspaper would, confession, in his have mentioned an because accomplice stories mentioned of two men at John Anson Ford Park. the'presence
So this was not a comment on defendant’s failure to but rather on testify, between Bell Gardens accounts of the newspaper killings discrepancies It comment on of the evidence that falls confession. was “a fair the state outside the . . . .” 5 Cal.4th (People Mayfield, supra, purview Griffin misconduct, 178.) at There was no and no constitutional violation. III. Phase Issues Penalty
Defendant contends that various errors on occurred in this bearing penalty case. As will none of his claims has merit. appear,
A. Death Statute Constitutionality Penalty
Defendant contends that California’s death statute 1977 penalty 1977, 316, unconstitutional, (Stats. 1256-1266) ch. is in essence pp. facially because it is and the trier of fact too much gives unconstitutionally vague discretion to decide his fate. those reasons he that it For asserted urges the federal Constitution’s It does violates Amendment. not. Eighth (Tuilaepa U.S._[129 v. 512 the California, supra, L.Ed.2d 1978 [considering 750] 37, statute]; Pulley (1984) death v. Harris 465 U.S. 51-54 penalty [79 29, 40-43, statute]; L.Ed.2d 104 People S.Ct. the v. 1977 [considering 871] Jackson, 264, accord, 28 Cal.3d id. at 318 supra, 315-316 p. (plur. opn.); Newman, (conc. J.).) opn.
875 Trial Penalty to Waive Jury B. Motion Denying denied, asked defendant the sever counts was After his motion to refused, the The court in lieu of jury. trial itself to hear penalty court and one. Citing entitled trial wanted to a jury that stating prosecution 630, 783], L.Ed.2d 85 S.Ct. 380 24 (1965) United States U.S. v. [13 Singer due clause a process violated the ruling maintains that the Amendment because Eighth to a sentence under the he claims reliable right court, rather than the decide jury, to have the were reasons compelling there fate. to trial by is no state law waive a right penalty have held that there We 791, v. 1 Cal.3d King objection. (People over the prosecution’s jury 401, 753].) could constitutionally P.2d The court not 795 463 [83 (Cal. over the prosecutor’s opposition. defendant’s granted request have 190.4, Const., I, 16.) claim former section subdivision art. Thus his that § fail. for a waiver must The (c), jury did not require approval prosecutorial statutory have such rule. trumped any implicit Constitution would state Roberts, 18.) fn. Cal.4th supra, offended; it is United States is not to require Constitution proper and the for a court trial. request court a defendant’s prosecution agree States, v. United L.Ed.2d at (Singer supra, pp. U.S. at pp. this, 638-639].) us to conclude that his Defendant does not but dispute urges that be circumstances falls under dictum “there some Singer’s might case a alone are so where a defendant’s reasons for to be tried wanting by judge result in that the on trial would by jury Government’s insistence compelling (Id. at at L.Ed.2d p. the denial to defendant of an trial.” impartial 639].) He asserts there were such circumstances here because two that murder and the charge, murder were with a noncapital charges joined capital evidence to the three would be relating killings “highly inflammatory,” reveal defenses to killings. would inconsistent this than
We with the that does little more restate agree argument People mo court denied his defendant’s unsuccessful contention that the wrongly to sever the for the from for the 1978 murder. tion counts 1976 murders (Ante, 847-851.) were circumstances that at We that there pp. disagree have him to a trial under Singer. entitled court might possibly C. Counsel to Failing Strategy Order Tell Defense Defendant *80 856, ante, described before the defendant As page began, penalty phase He moved that counsel either be relieved or not defense. present penalty 876 not that would tell him the they strategy. defense Counsel
complained defendant would not be told the names acknowledged specific witnesses, but that defendant was to not to witnesses explained trying get when he learned of their identity. cooperate
From the the record reveals that defend- beginning pretrial proceedings, ant wanted no defense. His refusal to mount a meaningful penalty penalty defense continued the trial. It culminated in his statement to throughout (Ante, 817.) execution. his Just before the jury urging p. penalty phase court, his counsel told the “Mr. Memro would rather we not began, proceed with evidence at a He has informed that if us we presenting penalty phase. were to call some of these tell him that we are to call them people going that he would make sure that wouldn’t Defendant “I they appear.” replied, believe I have a to know what is to be done at the right going penalty phase ruled, or what isn’t to be done.” The “I court am not to tell going going to do anything.” [counsel]
The court also refused to new counsel tell who appoint might what be witnesses would called at penalty phase.
Defendant contends in effect that the court’s refusal either to counsel to him confer with compel adequately regarding penalty phase or to relieve them for to do so denied him the assistance of strategy refusing counsel in violation of the state federal Constitutions.
The Sixth and Fourteenth Amendments to the United States Constitution I, 15, and article section of the California Constitution conferred a to right Moulton, (Maine the assistance of on counsel defendant. 474 U.S. supra, 159, 481, 490-491]; (1988) L.Ed.2d v. Bonin People Cal.3d [88 1217].) 758 P.2d But we have concluded that the Cal.Rptr. “is not when ‘the right infringed opportunity to participate [of defense] in the is not fully fairly adversary factfinding process’ signif- [citation] (46 limited.” Cal.3d at first bracketed material icantly added in Bonin.) Rather,
No such limitation occurred here. it was defendant who was trying thwart the of the ability to defense to in the fully participate factfinding and counsel who were a defense process, as as trying present fully retrial, At the time of the counsel was evidence possible. obligated present in even over mitigation defendant’s v. Deere objection. (People 705, 712, Cal.3d 1181].) 716-717 Neither the right counsel nor to a any right reliable determination was violated penalty accede, effect, the court’s refusal to by to defendant’s desire to prevent *81 we discern other Nor do in mitigation. evidence from counsel presenting violation. constitutional federal of the to right the state Constitution’s guaranty asserts that
Defendant also I, Const., 15) would be (Cal. art. with counsel” be “personally present § client secret from allowed to keep [their] [their] if counsel were “illusory obviously however. Counsel with the trial.” We disagree premise, for plans to did refuse They evidence in mitigation. would introduce him that they told he would to try stop he told them be after might who the witnesses reveal to be present not how the right personally We do see them from testifying. to aid him in that quest. counsel’s refusal was violated by with counsel Evidence Notice Aggravating D. Sufficiency of of him erred in to failing give that the Defendant contends prosecution this He asserts that in notice of evidence introduced aggravation. proper fair to a fundamentally law and a he discerns right failure violated state Fifth, Sixth, Amend and Fourteenth Eighth, determination under penalty review, for he failed not for ments. As will his claim is preserved appear, move to have the evidence excluded. before, on December trial Months
The cause was called to 1987. April in 30, 1986, introduce evidence notice of intention to filed a prosecution counsel a In court the handed defense photocopy aggravation. prosecutor incident. file” of the Schroeder the entire district “essentially attorney’s 6, 1987, of his defendant moved to have evidence prior On February that no ruling trial. The court agreed, conviction barred from any penalty At trial the evidence of the conviction could be introduced. prosecution prior in when he elicited other evidence that defendant assaulted Schroeder not introduced in nine old. conviction of that crime was His years evidence. evidence in proof in relevant part, “Except
Section 190.3 provided a defendant to the death the offense or circumstances which subject special no be aggravation evidence penalty, may presented by prosecution has been unless notice of the evidence to be introduced given court, time, a as determined by defendant within reasonable period notice in rebuttal to Evidence be introduced without such trial. prior may evidence introduced the defendant in by mitigation.” of the evidence ‘is accused
“The of this to advise an purpose provision to prepare him that he have a so reasonable against may opportunity *82 ” (1994) defense at the trial. 8 (People Rodrigues penalty [Citation.]’ 1060, 235, 1].) 1152 885 P.2d “We have construed Cal.4th Cal.Rptr.2d [36 the to trial’ to mean before the cause is called to trial.” ‘prior phrase (1992) 1 Cal.4th 1070 v. Mitcham Cal.Rptr.2d [5 1277].) move, trial,
But defendant did not before to exclude evidence of during event, the attack itself. He has failed to his claim on In any preserve appeal. a motion to exclude the evidence would have been unavailing. prosecu- notice of its intention to on the incident rely involving tion had given ample Schroeder, and defendant could not have believed that reasonably by having barred, of the conviction to be he had thwarted the proof prior caused to show the circumstances of the crime against prosecution’s ability victim other evidence. by
E. In Favor Death Allowing Testify Defendant
Defendant testified before the that he wanted a verdict of jury (Ante, 817.) contends effect of was to death. He that “the testimony [his] the death and that it relieved the of its full “likely compel penalty,” jury to fix the based factors.” He responsibility penalty upon proper statutory Code, (Evid. 350), its asserts that the evidence was irrelevant and that § introduction made the verdict unreliable and violated he finds thereby rights Fifth, Sixth, in the and Fourteenth Amendments. Eighth, Moreover, Defendant error he he offered no invited when testified. any at trial on the he now raises. He has failed to his objection grounds preserve for claims review. Questions
F. Put to Propriety of Defendant death, After defendant testified that he desired he was cross-examined. He conviction—he denied that he was asked whether he planned appeal to the did—and whether felt he would and more direct access “get quicker not Court if the death . . . .” Defendant did Supreme you’re given penalty to these object questions. focused
Defendant asserts that the cross-examination improperly of the on the role of the relieving jury jury appellate process, thereby his fate. He need to be aware that it was responsible determining contends that this violated the federal Constitution. procedure sure,
To be
the mere
is
since it
mention of
“[a]rguably
improper,
appeal
own to
serves
constructive
on its
rarely
lead the
purpose
may
jury
But when
is diluted.
determination
for penalty
responsibility
infer
[its]
erroneous death
of an
correction
does not suggest appellate
context
for its
of responsibility
feel a lesser sense
verdict,
that a
will
jury
the danger
1046, 48 Cal.3d
(1989)
v. Bittaker
minimal.” (People
verdict is
Bittaker,
no
there was
659].)
true in
As was
P.2d
Caldwell v.
(Cf.
verdict.
of an erroneous
correction
suggestion
appellate
231, 237-
325-326,
L.Ed.2d
328-329
U.S.
Mississippi
*83
at
L.Ed.2d
p.
at
341
238-239,
id.
(plur. opn.);
G. of misconduct committed that the prosecutor Defendant contends of without possibility the that life imprisonment when he to argued jury death, that “if when he argued and again not worse” than was “legally parole of him life without parole possibility think that by sentencing you for the rest of this around and contemplate to cause him to sit you’re going life, life, make a mistake.” big I think going the rest of his you’re your He maintains either statement. did not misconduct to assign Defendant law, and that the the first comment misstated here that the prosecutor’s of his life not the rest the that defendant might spend second hinted to jury view, result, in was to deprive to death. The if not sentenced prison fair, reliable, under sentence to a and individualized him of a he asserts right Sixth, Fourteenth Amendments. the Eighth, statement, and to either did not misconduct assign
Because defendant not have cured any that an admonition would there is no reason to believe Davis, 10 harm, supra, are not on his claims preserved appeal. 463, 537.) Cal.4th conclude, misconduct to failure to assign that if we so the
Defendant urges of counsel. We assistance statements amounts to ineffective the prosecutor’s disagree.
First, without comment that life possibility prosecutor’s imprisonment matter, as a legal than death was accurate of not worse” “legally parole (Peo on the subject individuals have feelings might whatever philosophical v. Bloom 48 Cal.3d fn. ple At the time 698]), jury for indeed is the worse
P.2d death punishment. will already individual that person decides the for a death-eligible penalty have been convicted of first murder and one or more degree circum special true, stances will have been found that a minimum meaning of life penalty without imprisonment must be or possibility parole the accused imposed, will have been convicted of another offense a sentence either imposing death or of life without imprisonment possibility Mil. & Vet. parole (e.g., Code, 1672, Code, Thus, (a); 128). subd. Pen. command the law’s to the § § trier of fact to weigh aggravating mitigating circumstances at that time can mean to only consider the of a worse than what possibility punishment 190.2, individual was (a), to. already automatically subject (§§ subd. 190.3.) Moreover, 190.4, statute was no different. section subdi (b), vision that if a provides twice decide the jury cannot court penalty, order may a third jury sentence the defendant impaneled may It prison. view, is in our that the would unlikely, have allowed a court to Legislature worse if the prescribe legally could not that the penalty community agree (The defendant should receive it. 1977 statute’s different retrial penalty (see 882) scheme does not post, p. conclusion.) a different compel *84 the
And reference prosecutor’s to defendant’s lack of future reflec tion awas comment that because he would not the rest his life spend Fowler, Chavez, Carter, racked over by regret his murders of imprison ment was an insufficient He was not that defendant punishment. arguing would less than the rest of his life in spend if sentenced to prison that fate.
H. Jurors on Instructing Factors to Penalty Which Defendant Objected
Defendant that the court not requested instruct the with jury language (e) derived from factors of section (j) 190.3 in the instructions. penalty It refused.
The instructions directed the to consider jury whether or not the victims consented to “the homicidal acts” or were in the defendant’s “participants] conduct,” homicidal and whether “the defendant was an the accomplice and his . . . participation minor.” relatively offense[s] Defendant contends that instructions he views as giving listing inapplica Fifth, ble factors violated the mitigating and Fourteenth Amend Eighth, ments to the United States Constitution. We have similar claims rejected v. (People Danielson 3 Cal.4th Cal.Rptr.2d [construing statute]) 1978 death penalty 729] and do so here as well. I. Failing Instruct on Elements Crime Prior Violent Constituting Conduct or to Instruct on Assault At the the penalty phase, introduced evidence of violent prosecution prior criminal conduct. The court instructed the that the evidence was intro- jury 273d, duced to show that defendant violated section which the court defined use on which involved the express a child injury or inhuman bodily as “cruel instruction, of this language were discussing As of force.” parties 245”—i.e., in- the jury as soon have the have said he’d “just (§ likely great bodily injury on with force to produce structed assault did not be a fit and found section 273d to better (a)(1)). But the court subd. on the not court to instruct the jury did ask the on assault. Defendant instruct of section 273d. elements statu- under what erred—he does not specify
He contends that the court of section the elements to define or constitutional regime—in failing tory concedes, that claim we have rejected 273d sua As he sponte.
Johnson, 1, 48-49), continue to do so. and we supra, Cal.4th have instructed the jury
He also contends that court should a child than inhuman on bodily injury assault rather “cruel or language He latter was and violated ....’’ that the definition argues inflammatory be it that the would Amendment because created a risk Eighth penalty decided. arbitrarily case in been us to no which this has parties point question previously
raised, and we that defendant’s Assuming have been unable locate any. error, comment an was no because there registered there objection, and, 273d as a matter of substantial evidence that defendant violated section law, the definition of an offense substantial simply supported by providing *85 cannot evidence inflame a trier of fact. unduly
J. to Instruct to Consider Failing Jury Background Defendant’s The to take jury “[a]ny instructed into account other circumstance extenuates which the of the crime it is not a excuse gravity though legal even crime[,] of the of defendant’s or other the any sympathetic aspect or character record as a basis for a less than death . . . .” Some of sentence sister, the defendant’s offered in described testimony mitigation, aspects of his He contends that court violated the Amend- background. the Eighth to ment of death it failed by tilting determination in favor when jury’s sua as instruct that the must consider as well sponte jury also background “character record . . . .” 779, 494,
In v. (1993) Webb 6 Cal.4th 534 862 People Cal.Rptr.2d [24 779], P.2d we stated that an giving very instruction containing language similar to that left hereabove “no quoted misunderstood possibility jury its to obligation consider defendant’s character and evidence background error, . . . .” Webb is There and no was no dispositive. violation constitutional right.
K. to Instruct on a Failing Jury Deadlock Consequences of
The
was instructed that
order to make a
jury
determination as
“[i]n
to the
all twelve
must
penalty,
jurors
Defendant contends that the
agree.”
court’s failure to inform the
sua
of the
jury
of a
sponte
consequence
Fifth, Sixth,
deadlock violated the
and Fourteenth Amendments.
Eighth,
statute,
Under the 1977 death
if the
could
penalty
not
on the
jury
agree
the court was
a
penalty,
required
impose
of life
punishment
imprisonment
190.4,
(Former
without
(b).)
subd.
possibility
parole.
v. Bell
People
§
(1989)
In
v.
People Haskett
Because a court is not the to educate the about required jury legal so, of a deadlock in it consequences to a to do a fortiori is response request (9th 1992) not to do so sua required Mak v. Cir. 970 sponte. Citing Blodgett 614, 351, (7th 1989) F.2d and Kubat v. Thieret Cir. 867 F.2d defendant urges conclusion. We decline to on Federal contrary those cases. rely Santamaría, circuit court do not bind us. v. 8 Cal.4th opinions (People supra, 903, course, 923.) serve as but when They may persuasive authority, only are the they just considered that—persuasive. Having carefully reasoning both we find that neither one is so. opinions, Instruction Doubt Lingering Motion to Give
L. Denying court, and the with the prosecution instructions While discussing possible as regarding guilt on doubt lingering for an instruction moved defendant that it was on the ground objected The in mitigation. prosecutor a factor court, without in the instruction so late proceeding. the unfair request the request. denied explanation, in he finds state the court violated rights contends that
Defendant 605, Cal.2d 145-147 v. (see Terry People law Fifth, Sixth, Amendments Fourteenth 381]) Eighth, in the P.2d it denied his motion. when entitles a nor the state Constitution that neither the federal
We have held (1992) 3 v. Johnson (People on doubt. lingering defendant to an instruction 1].) is P.2d But “[t]his 1251-1252 Cal.Rptr.2d Cal.4th doubt is such improper; that the consideration jury’s not say as a factor innocence to the jury his possible may urge (ante, here p. An (Id. 1252.) given instruction of type at mitigation.” 190.3, a defend- 881), (k) supports from factor of section adequately derived militates doubt lingering argument ant’s of evidence presentation Johnson, at 3 Cal.4th supra, pp. a verdict of death. against 1252.) There no error. Motion to the Verdict Modify
M. Denying motion when it denied his that the court erred Defendant contends 190.4, (e). He former section subdivision to reduce the sentence under and failed to it should have not that the court considered matters argues result, violated have. The he urges, consider matters it should adequately citing implicitly, by law and a remand. He also contends state requires cases, the federal that the result violated United States Court Supreme Constitution. 190.4, here: “In (e), every as relevant
Former section subdivision provided has returned a verdict or finding imposing case in which the trier of fact made an death defendant shall be deemed to have application penalty, (7) of Section to subdivision modification of such verdict or finding pursuant evidence, review the 1181. In on the shall ruling judge application consider, account, and mitigating and be by aggravating take into guided *87 190.3, make an in Section and shall independent circumstances referred to the jury’s the of the evidence weight supports determination as to whether for his the reasons He shall state on the record and verdicts. findings 884 in The statute is identical to the current version of meaning
findings.” quoted 190.4, 730, (e). (1991) section subdivision v. Frierson 53 Cal.3d (People 1197].)
“In on the the trial must ruling application, judge independently de the evidence of circumstances and reweigh aggravating mitigating whether, in the the termine the judge’s independent judgment, weight evidence the verdict. The must also state on judge supports jury [Citation.] the record the reasons for the v. ruling. (People Mincey [Citation.]” “ 388].) Cal.4th P.2d ‘On we Cal.Rptr.2d appeal, course, ... review.’ ‘Of when subject ruling independent [the] [Citation.] determination we such the trial conduct we review court’s scrutiny, simply record; after we do the not make a de novo independently considering ” determination of Berryman, 6 Cal.4th penalty.’ supra, 1106.) its it court discussion of the motion that began by acknowledging make an
“must review of the evidence to determine whether or independent not the of the evidence and verdicts.” weight jury’s findings supports stated,
It then “the evidence the verdict of the clearly supports People reasons. following “The three were I victims vulnerable. believe the oldest child particularly was ten if I am not mistaken. Two of children were at a public park[;] did not have to be out that but were admittedly they permission night, they at a fishing. public park children,
“One of the and I think aggravating most probably [this is] case, circumstance of all this was the son of a friend so that family you children, had not the violation of the only but particular vulnerability you had the to me the ultimate compounding aggravation—it proper [sic] horror—a friend tricks and a vulnerable child of tender family cajoles years home, there, to come into the total trust and then for little or no implicit the child is provocation, strangled.
“That fact alone to me I find abhor particularly [rent]. addition,
“In the court has not seen evidence of remorse on the any part fact, Mr. In I Memro. have seen the as indicated his statement at contrary, by been, He remains as obdurate as he ever penalty phase. has remorse that he have felt when he was in has may custody evening long truculent, since into the wind. He remains a defiant and disappeared partic- insensitive individual. ularly *88 in He has been
“There are factors admittedly mitigation. apparently a[] in the record model There is indicate that he has been nothing prisoner. than that. other
“He did with the clearly cooperate police.
“Those are the two in court factors the can find. only mitigation others listed the defense are the over thing various same by ways saying crimes, admission, confession, and over . . . remorse of the again[:] coop- eration with the .... police, aiding police case,
“In the court feels that the factors in are aggravation overwhelmingly Memro[], Mr. and the court therefore against verdict adopts approves herein, of the for the reasons I have stated jury court . . . affirms and ratifies the verdict of the that the commitment should be death.” jury
Defendant contends that the court erred in in considering aggra “obdurate,” “truculent, vation his defiant and insensitive” particularly per comments, and his lack sonality of remorse. These violated state urges, law, for are not they factors trier of fact could have considered (former aggravation 190.3); hence neither could the court have done so § 190.4, (former (e)). subd. §
We Defendant disagree. evidence that he presented was remorseful when assaulted, for his apprehended crimes against four whom he and he boys argued fact, that his should regret be considered in The trier of mitigation. court, and hence the was entitled to infer from his demeanor as he testified at the mien, penalty remorse phase was short lived—his usual as inferable from the circumstances of the crimes and from his testimony, in remorse. That is wanting the sole conclusion the court drew.
Defendant also maintains that the court failed to consider all possible evidence to factors in pointing evidence of mitigation, including back character, conviction, ground, and lack of a and lack of future prior felony dangerousness. That is not so. It stated that it could find in only mitigation that he had with the and had been a model cooperated police It also prisoner. stated that “the evidence clearly the verdict of the . . . .” supports People The court need not (see recite all orally evidence possible mitigating People v. Berryman, supra, 1107); Cal.4th at “‘there no is indication in the ” record that the court ignored (Ibid.) or overlooked such evidence.’ Finally, there was no evidence on lack of presented future dangerousness—the only reference to it came in closing argument.
886 error of federal constitutional his claims
Defendant predicates implicitly was no 190.4. Because there violation of former section on the putative statute, claims. be no basis for his constitutional there can violation of that Probation Considering Report N. Claim Error for relied on the also asserts that the court improperly probation Defendant result, in his the verdict. The on his motion to modify ruling report self- view, Amendment’s against violated state law and the Fifth privilege incrimination, states under the Fourteenth as to the presumably applied Amendment. when, did, it it considered report. court erred as apparently so, 610, Wader, 665-666.) even if it did “it is 5 Cal.4th But v. supra,
(People no role whatsoever in the that from the record report] played apparent [the Fierro, 253)—“ at ‘we must v. 1 Cal.4th supra, p. court’s decision” (People v. (People influenced’ thereby” that the court was not improperly assume otherwise, 1106). men at Defendant argues 6 Cal.4th Berryman, supra, does not but he obduracy, the court’s comment about his habitual tioning no There was that his assertion. might support cite of the any part report Amendments. or of the Fifth or Fourteenth violation of state law prejudicial (Ibid.) Error
O. Miscellaneous Claims of he finds in the that certain rights Defendant contends in fashion summary trial violated or under state law were during penalty federal Constitution each such we have He acknowledges rejected under the 1977 statute. claim, to undertake our views. We decline but us to reconsider urges each our current view after and we cite authority reevaluations he urges, we list. contention (1) desig and the statute failed contentions are: the court
Defendant’s (Peo are and which are mitigating factors statutory aggravating nate which 682, 806, P.2d 838 (1992) 3 Cal.4th 827 Cal.Rptr.2d v. Espinoza [12 ple that it statute]); (2) the court failed to instruct jury 1978 [construing 204] v. (People reasonable doubt death the sentence a beyond must find proper 269, P.2d 790 (1990) 676] 50 Cal.3d 934-935 Marshall that it must statute]); (3) to instruct the jury the court failed 1978 [construing a in mitigation beyond circumstances those find the outweighed aggravating were true circumstances (ibid.), and that the aggravating reasonable doubt Gordon, Cal.3d 50 supra, doubt v. (People a reasonable beyond unconstitutional statute]); (4) the statute is 1273-1274 [construing written as to the (a) because it does not factors aggravating require findings found 5 Cal.4th Cal.Rptr.2d Montiel jury statute]), (b) [construing on jury unanimity 1277] (ibid.), enable (c) factors this court evaluate aggravating procedure *90 the which we to mean sentencer’s understand defendant to decision—by 142, (1979) undertake review v. Frierson 25 Cal.3d (People proportionality 281, (5) 180-184 P.2d the court failed 599 Cal.Rptr. (plur. opn.)); [158 587] to instruct that a sentence of life without imprisonment possibility parole Gordon, 1277-1278); means that at (6) v. 50 Cal.3d just (People supra, pp. the to court failed instruct the to consider all evidence in jury affirmatively (see (1988) and that it People could show v. Caro 46 mitigation mercy 1035, 757, Cal.3d 1067 761 P.2d 1978 Cal.Rptr. [construing [251 680] statute]); (7) the use of a to both first felony for a qualify degree murder conviction under a and for a felony-murder theory death sentence Marshall, was 945-946); (8) v. 50 Cal.3d at impermissible (People supra, pp. the com! failed to instruct the sua an given that instruction at the jury sponte (ante, guilt 866) to did not the phase disregard at sympathy p. apply penalty 207, 55, (1988) v. Adcox 47 265 phase (People Cal.3d 763 Cal.Rptr. [253 statute]); P.2d (9) 1978 an to [construing instruction’s reference ex- 906] treme mental disturbance violated a have the to consider less right jury severe (1994) mental disturbances in v. Turner 8 mitigation Cal.4th (People 137, 762, 208 statute]); (10) 878 P.2d Cal.Rptr.2d [construing [32 1978 521] the statute him of the benefits of determinate deprived v. sentencing (People Montiel, 943); 5 Cal.4th supra, (11) at the instruction the to to p. jury consider or not” defendant the committed crime while “under the “[w]hether influence of extreme mental or emotional disturbance” and or “[w]hether not” mental illness or have may defect his or impaired reasoning ability to behave could have led the lawfully to consider the jury absence these 1148, factors in mitigating (1992) aggravation (People v. McPeters 2 Cal.4th 834, statute; 1191 Cal.Rptr.2d [construing [9 1978 discussing 146] 190.3, (d)]); (12) factor it was unconstitutional to introduce § prior-crimes Montiel, evidence (People v. supra, 943); (13) 5 at it Cal.4th p. to
impermissible fail to the offense the charge underlying felony-murder the violation theory—i.e., (1988) of section 288 v. Morris 46 Cal.3d (People 1, 119, 14-18 843], P.2d Cal.Rptr. 756 on [249 other in disapproved points In re 535, 543-544, 5, (1995) 545, Sassounian Cal.4th 9 fn. fn. 6 [37 446, 527]); (14) 887 Cal.Rptr.2d P.2d court failed let him address the without jury being subject (1990) cross-examination v. (People Gallego 115, 679, 52 169]); Cal.3d 203 (15) 802 P.2d his constitu- [276 tional were rights violated when the court failed have him during present 152, an Morris, 210; instruction conference v. 53 Cal.3d see (People supra, also People (1994) v. Freeman 8 Cal.4th 882 Cal.Rptr.2d P.2d 888]); A.L.R.5th with CALJIC No. instructing jury (4th vol.), doubt, 2.90 ed. 1979 bound reasonable him of defining deprived in he finds the federal and state Constitutions to due rights and a fair process Nebraska, _,_ (’Victor trial v. 511 U.S. supra, L.Ed.2d 591] Constitution]). With to the California constitutional regard prong [federal claim, this last we cannot error arose in agree instructing jury 2.90, this case with CALJIC No. and therefore we do not reach defendant’s claim that the California Constitution was violated. “When we consider a sort, claim of this we ask is whether there is a reasonable question likelihood that the construed or jury instruction in an applied challenged Clair, 663.) fashion. objectionable supra, Cal.4th at On [^ this record—and asserted in the notwithstanding any infirmity underlying standard instruction itself the answer is There is no negative. [citation] reasonable likelihood that the misconstrued jury the instruc- misapplied *91 tion in as defendant question argues.” (People Berryman, 6 Cal.4th supra, 1073-1074, 3.) at fn. pp.
Conclusion
The is affirmed. judgment
Lucas, J., Arabian, J., Baxter, J., J., C. concurred. George, J., Concurring and Dissenting. and, KENNARD, concur in the judgment I issue, as to one I concur also in the except majority opinion. The issue on which I with the concerns part company majority defendant’s that, contention Carter, Jr., in connection with the of Carl killing 7-year-old the trial court erred in not (now the on former instructing jury section 647a 647.6) section of the Penal Code or a child under the (annoying molesting 18; of 647a) hereafter former age section as a lesser included offense of (lewd Penal Code section 288 and lascivious act on a child the under of age 14; 288). hereafter section The majority this contention. rejects (Maj. opn., ante, 872.) at I that it should be but not for the agree reason that rejected, the majority gives. concludes that an instruction on majority former section 647a was not because the
required evidence received at trial would not a conclu- support sion that defendant did not violate section 288 but did violate former section ante, 647a. (Maj. 870-873.) at opn., this of pp. Although characterization the correct, evidence well be the may majority’s reasoning that if the implies otherwise, state of the evidence had been the trial court would have been to instruct on former obligated section 647a. I disagree.
The majority’s reasoning ignores fact was not that defendant charged Rather, with a violation of section 288. the crime defined in that section was as the to of first charge degree relevant only felony support predicate a cites no for the authority murder on of murder. The theory felony majority to on included jury that a trial court is instruct lesser required proposition relevant as felonies under only offenses of offenses uncharged predicate doctrine murder. felony of a to instruct lesser
The rationale trial court’s on underlying obligation state in included offenses has been this “The has no interest explained way: a defendant an where he is innocent of the primary obtaining acquittal but of a has the charged offense included offense. Nor guilty necessarily a of the legitimate obtaining state interest conviction offense charged where the a doubt of of the entertains reasonable offense jury guilt charged but returns a verdict of offense guilty solely because the is jury it is satisfied that the has unwilling where been acquit guilty Likewise, conduct a wrongful constituting included offense. necessarily no defendant has interest in an all legitimate jury compelling adopt to the issue of Our courts not but nothing guilt. are halls approach gambling forums for the truth.” v. St. Martin 1 Cal.3d discovery 390].) This rationale with only offenses which the defendant has been applies *92 it does not to charged; offenses that are apply uncharged only relevant context, a murder. In support theory this the defendant’s of an felony guilt uncharged predicate felony becomes an element of the offense of charged murder; thus, the doubts that jury’s the defendant committed the predicate cause it to the felony may reject felony-murder But whether the theory. the acceptance rejection the with an felony-murder theory presents jury choice all-or-nothing will on whether depend the has been jury given alternative theories or other verdict the offense of options relating charged murder. It will not on whether the been has instructed on depend jury are offenses that necessarily included the within uncharged felony. predicate sure, beTo an that offense is a lesser included offense of an uncharged predicate felony also might as a lesser related offense of qualify the charged case, offense of murder. entitled, In such the defendant be on may request, (See instructions on that offense. People v. Geiger Cal.3d 510 1055].) 50 A.L.R.4th But this is not such a case. Defendant did not that the trial court instruct the on request jury murder, former section 647a as a lesser related offense of nor has he argued in this that court former section 647a is a lesser related offense of murder. Indeed, I do not understand be defendant to should have arguing jury been given 647a, option of convicting defendant of former section but that the trial only court should have explained former section 647a to the so that it could somehow better understand the jury uncharged predicate section 288. felony,
Because defendant was not with a violation of section charged former because section 647a is not an offense included within necessarily murder, offense trial court did not err in on its charged failing, initiative, case, own to instruct on former section 647a. In this an instruction on former section 647a as a lesser included offense of section 288 would served no have useful and could well have confused the purpose jury. J., concurred. Werdegar, 14, 1996, for a was denied
Appellant’s petition rehearing February was modified to read as above. opinion printed