People v. Morris

Mar. S004781.Crim. No. 26415. 1991.] [No. PEOPLE, Respondent,

THE Plaintiff and MORRIS, WAYNE Defendant and Appellant. BRUCE Counsel Court, for Defendant Kane, by the Supreme F. under appointment

Robert and Appellant. General, Richard Attorneys Daniel E. Lungren, K. Van de and

John Kamp General, Overoye, Arnold O. Attorney B. Chief Assistant Iglehart, Ward A. General, D. McMurray Edmund Attorney Assistant General, Plaintiff and Respondent. for Attorneys Deputy Campbell, Opinion under the 1978 from a of death

LUCAS, judgment is an appeal C.J.—This Code, refer- statutory all further 190.1 et seq.; death law penalty (Pen. § a Following change indicated). are to this code unless otherwise ences Wayne Bruce County, San County Joaquin venue from Sierra (§ 187) first murder convicted jury degree Morris was as a circum- Rickey special Van Zandt. The found robbery (§211) robbery. of a the murder was committed the perpetration stance that 190.2, homicide at death. It fixed the for the (§ subd.(a)(17)(i).)1 penalty (b)), subd. (§

On defendant’s automatic from appeal judgment entirety. in its error. We affirm the judgment we find no reversible Proceedings Facts

Summary at the bottom of found facedown body Rickey Van Zandt was he crushed; officers. His skull was County hill Sierra law enforcement occasions before admitted on several had been beaten to death. Defendant head at least hit Van Zandt over the and after his arrest that he had deadly weapon the mean jury dangerous and within also found that defendant used a trial, trial court found that (b). Following waiver of ing of section subdivision felony meaning of section a within the defendant had twice been convicted of serious meaning of section (a) prior separate prison term within subdivision and had served a 667.5, (b). subdivision

times with a in rock and a stick order to steal his van. After striking blows, fatal defendant left the scene the van with his two female compan- state, trial, ions and drove out of the he where At his apprehended. defendant repudiated his numerous admissions of and blamed his guilt for Van Zandt’s companions murder. The jury rejected testimony his found him After it guilty. heard evidence that focused on penalty phase defendant’s offenses of prior it returned a attempted rape kidnapping, verdict of death.

The Prosecution 9, 1985, On September defendant from began Sacramento hitchhiking toward the north shore of Lake Tahoe. He his accompanied girl- friend, Barrett, sister, Avette and her Allison Eckstrom. The three were Van picked up Rickey Zandt in his van on 11 or 12. September They Truckee, in, him to accompanied where he at a store and went stopped keys store, his car leaving While Van ignition. Zandt was in the defendant that he suggested and his steal the van. Eckstrom companions seat, out a knife from a pulled behind the and defendant pouch passenger he could suggested “stick” Van Zandt and take the van. The they could women expressed reservations. Defendant then Van Zandt suggested taking to a nearby river and him stabbing there. van,

When Van Zandt returned to the he and defendant discussed going fishing. They drove to a remote area off dirt road in Sierra County. While dinner, the women were defendant cooking and Van Zandt walked together toward the river to begin Defendant fishing. returned alone and asked Eckstrom for the knife. He told the women that he would behind Van get “Whatever,” Zandt while they were him.” fishing Barrett “get replied, and Eckstrom said it was that she and good Barrett would not have to see it. Defendant took the knife and went down to the river. When defendant and later, Van Zandt returned 20 to minutes to Eck- explained strom that he had not been able to stab him because he could not behind get him. Zandt,

Van who had been drinking, continued to do so while having dinner dinner, with defendant and the women in the van. After Van Zandt lay down on a bed the rear of the van. At defendant’s the women request, later, left. Emerging few minutes defendant announced: “He’s out.” He his arm put around Barrett and asked Eckstrom for a rock. He her rejected choice of rocks and directed her to another. He took the rock pick up from Eckstrom, her, told Barrett he loved and said he was to hit Van going Zandt on the head. heard Van Zandt and Barrett Eckstrom reentered the van.

Defendant sounds “Ouch, hurts, (“like heard exclaim, smacking and then that stop,” Eckstrom that Defendant later told and screams. melon”) a hitting someone twenty rock. Fifteen to 13 times with the Van Zandt on the head he had hit the van. later, out of body drop Van Zandt’s the women observed minutes blood, the front body to and emerged dragged Covered with brain blood and moaning; still alive. He was of the van. Van Zandt was from his head. fluids oozed of the van and rolled body Van Zandt’s from the area

Defendant dragged Van Zandt’s body through to the and looked it down a He went down slope. for a wallet. that he was searching He told Barrett pockets. Eckstrom, who had his head.

Van Zandt continued moaning holding it was body, moving. called out that been asked defendant to watch stick, it this. He lifted already up Defendant that he knew picked replied head, hit him on the back of sorry, Van Zandt that he was over his told As the three drove head three times. Van Zandt to collapsed ground. van, him still on the away lying ground, Van Zandt’s Eckstrom observed quivering. officers on five or six body

Van Zandt’s dead was found September after he left at the A mortem examina- days bottom slope. post head was tion established that he died from massive trauma to the skull. His of wood in stationary when the trauma was inflicted. There were fragments nine to fourteen injuries his brain. His were consistent with the infliction of as a object blows with blunt such rock or stick. Zandt, around

After Van defendant and the two women drove leaving States, eventually They the Western and Central United Nebraska. entering make used credit cards in the of the van to glove found compartment On Eck- they hitchhiker Tom purchases. September picked up Logan. strom told that defendant had killed Van Zandt. Defendant asked Logan whether he had noticed the blood and brain tissue the van and Logan that he had killed Van Zandt in order to steal the vehicle. Eck- explained Later, him.” at a they “really strom told rocked and rolled Logan that he had been “kind of coerced into defendant told campground, Logan defendant, knock Van merely this man.” he wanted to killing According out, kill the trio and called the Zandt but Barrett wanted to him. fled Logan seized at the day. The three were arrested the next the items Among police. knees were above the jeans, time of arrest were defendant’s which spattered with blood. an

Shortly custody, after he was taken into defendant asked to speak officer. He was advised of his constitutional properly rights agreed interview,

make a statement. When to talk to Barrett before his permitted he assured her that he would not “let suffer for didn’t something [her] [she] do.” officers,

In a 1-hour interview with defendant admitted Van Zandt hitting on the head to 14 times awith rock and a stick. He described the rock as the size of a softball. He first stated that he have might talked about killing van, Van Zandt to but acquire say then modified his statement to that he only wanted to him knock out and tie him He stated that Barrett and up. Zandt, Eckstrom told him not to do anything to Van but that he told them to “take off” while he “finished what to do.” He going said that [he was] left, after the women he “knocked the man out and him off pulled defendant, side of hill.” he hit Van According Zandt with the stick when he started to the stick like get up, swinging a baseball bat.

Later, California, in custody while defendant wrote a letter to Barrett. 7, 1985, The letter was October postmarked and was intercepted by jail authorities the next day. It stated “I’ve killed once part: you, for and if I can, have to I’ll do it I again!!! you And know that and I don’t a need rock to do it either.” Defendant also in front of two other acknowledged Sierra County jail inmates that he had “bashed” a man’s skull with a rock thirteen times.

The Defense Defendant testified on Zandt, his own behalf. He denied Van killing that he claiming had admitted so doing only to Eckstrom protect Barrett. Defendant stated that Van by Zandt was killed the two women when he tried to Barrett. rape According defendant’s Van testimony, Zandt had returned to the van while defendant was still When fishing. returned, defendant later he found Eckstrom upset and Barrett Both crying. women had blood on their dresses. Barrett that she had killed explained Van Zandt him with a rock hitting when he had tried to her in the rape Zandt, alive, van. Defendant then Van still out pulled van. Eckstrom hit him with a stick and mumbled that she had him. killed

A serologist called as defense testified that she had expert found traces of semen on fly however, of Van underwear; Zandt’s she conceded on cross-examination that these traces could have been deposited anytime since laundered, the underwear was last that they could have been deposited by death, partial voiding bladder and that upon they were not necessari- ly deposited by She found no ejaculation. semen on Van Zandt’s jeans.

Several female County jail Nevada inmates also testified to statements made Barrett that defendant was implying taking for Van responsibility however, conceded, All for her. three love Zandt’s murder out of misplaced murder. One wit- about the statements had made inconsistent that Barrett was a liar. that Barrett offered her opinion ness of first guilty the found defendant jury guilt phase, At the close of the circumstance further found as a robbery, special and and murder degree in the com- engaged defendant was the murder was committed while that robbery. mission of the Phase Penalty con- felony defendant’s prior

In the introduced aggravation, prosecution in attempted rape, convicted 1978 of kidnapping, victions. Defendant was He also a 15-year-old girl. intent commit on rape and assault with driver, a 61-year-old its in 1980 of a car and stealing kidnapping convicted of defendant’s evidence In the defense mitigation, presented woman. 15. read until he was and unable to troubled childhood. He was hyperactive a teacher. Defend- his and choked harshly He was disciplined parents in at some risk to his involved a car accident ant had once helped people a heart attack. had his brother’s life when he suffered safety own and saved his love ability, evidence of defendant’s artistic The defense also presented animals, Boy in the Scouts. for and his leadership defendant as officials testified that Two with experts experience prison life observed that he had They developed would be a successful prisoner. and had learned the deaf jail work skills while and (landscaping sewing) However, been involved to assist deaf he had also prisoners. alphabet A has mild-to-mod- incident. testified that defendant stabbing psychologist view, knew erate brain In her dysfunction. although offense, at time of he lacked the difference between right wrong him rendered ability dysfunction to control his conduct because the brain A of his acts. psychiatrist unable to understand the long-term consequences dependent that defendant has a borderline with personality testified features, He attributed defend- syndrome. antisocial and an brain atypical brain and psychological ant’s “antisocial behavior” to his condition disorders.

Jury Selection Issues

I. Book Discovery Jury the Prosecutor’s by argu to the selection jury process

Defendant his begins challenge discovery prosecu that the trial court erred in to order refusing ing defendant moved to discover Before selection began, tor’s book.” “jury records prosecution the arrest showing records of and how venirepersons they had voted as jurors other trials. The prosecutor that his responded office evaluation kept sheets summarizing jury service of each prior trial, juror, which prospective included date of charges against defendant, verdict, a rating directed to the presumably desirability the juror from the prosecution standpoint (excellent, satisfactory, or unsat- isfactory), comments. He argued the evaluation and comments of district deputy attorney out the evaluation filling sheet were protected work The trial product. court denied the defense motion.

In Murtishaw (1981) Cal.3d CaI.Rptr. 631 P.2d 446], we announced a rule trial giving judges “discretionary au thority to defense access permit jury records and of reports investigations available to the prosecution.” at 767.) The rule was founded on our p. {Id. power supervise the administration of criminal procedure arose from a concern that prosecutors would have more information about prospective jurors than lawyers defense because of their ability to finance superior investigations of the venire. As we stated: “Such a pattern inequality reflects on the fairness of the criminal process.” (Id. at 766-767.) pp.

In Johnson People CaI.Rptr. P.2d 1047], we declined to decide whether the defense was improperly precluded from questioning jurors with prior jury about the experience result reached the prior jury, any that error in holding such precluding questioning harmless. Johnson is applicable here. Even the assuming trial court abused its discretion in failing order of arrest discovery rec ords and records, votes from prior prosecution defendant fails to dem onstrate Murtishaw prejudice. itself endorses this result in the following observation: “As out, the cases prior have pointed any individual case it is entirely speculative whether denial of access caused significant harm to the defense. under Consequently, the test of established in prejudice the VI, California Constitution (art. 13) and v. Watson [(1956)] § P.2d 243], the denial of access is not reversible error.” Murtishaw, 29 Cal.3d at 767.) p. Having shown no impair ment of his defense from the resulting absence of the jury book prosecutor’s table, at defense counsel defendant is not entitled to reversal.2 II. The Trial Court’s Remarks to Jury the About the Number of Cases Capital Reversed by the Court Supreme California At dire, beginning voir the court explained pending charges and the voir dire procedure, including need to into each inquire poten- 2The defense sought only jury motion votes and arrest request records. It did not opin ions or evaluations of prosecutors. individual disposition Because of our of this issue for the above, effect, reason stated we any, need not consider the if product of the work doctrine on prepared materials kept part prosecutor’s jury as a book. included the death Its penalty. explanation tial attitudes about juror’s concerned, let me is explain “As far as the process statement: following not, not, about the death worry have to about that. You need and will little find, all, not a murder or first of that there was you in the event that penalty . . . never to that may get first . You that the murder wasn’t in the degree death feel about the you you have to talk to about how but we still point, court, have decided they for the last 56 cases The supreme penalty. I’m about the you supreme the death sure all of read about penalty, believe, 1972,1 cases, since court. There have been ladies and gentlemen, re- Fifty-three death cases. of them were that have talked about penalty cases, versed, In were given guide- three of them were affirmed. those we I, you lines. as a trial as to how we talk to about judge, given guidelines I’m bound them and this matter. Those are still effect. still guidelines you so are of us are above the law. So I have to talk to about how you. None you feel about the death penalty.”

Defense counsel called the trial court’s attention to the of its portion statement reversals in death dealing with large proportion appellate cases and concern that its remarks cause some penalty expressed might jurors to their consideration of the death as an academic regard penalty exercise. Counsel asked for an admonition to the the view jury, expressing that with the new of this court about the brought by judicial composition 1986, retention may exactly elections of “death mean that.” The trial court the corrective agreed gave following instruction: “Ladies and gentle- men, I have been I in requested you admonish bit about what said the court, 56,1 the beginning concerning by amount of cases heard the supreme me, Court, believe I mentioned in number and thereon. The reversals per- did sonally, you way not mean to indicate to one or the other how I felt about the only matter. The Court to indicate to those 56 you wanted that that, cases us which I am I I gave guidelines, you think told obligated—and that I’m to follow in cases of this nature. And that’s all I intended obligated to do. I did not my intend to indicate favor or disfavor of those decisions. I threshold, only indicated it was a the comment the concerning guidelines, that we have to you follow. And now I’m to tell about those going guidelines.” minimized

Defendant that the argues trial court’s statement sense of jury’s for a death verdict responsibility returning suggesting 90 of such verdicts would be overturned at the level. percent likely appellate 320, He relies on Caldwell v. 341 472 U.S. L.Ed.2d Mississippi (1985) [86 231, 247, 105 in 2633], S.Ct. which the United States Court found Supreme that a comments in prosecutor’s role of courts regarding appellate Caldwell, reviewing cases resulted a denial of due From capital process. necessarily a trial are more judge he reasons that similar remarks egregious. trial, find the trial court’s

Viewed in their context defendant’s we Initially, remarks irrelevant and but not we observe improper, prejudicial. one, a brief and isolated that the court’s reference to reversals was appellate made at the of voir dire and not where during phase beginning penalty the death were the focus of jury’s sentencing penalty responsibility 212, v. jury’s Boyde attention. Cal.3d (See People (1988) [758 25], Boyde (1990) P.2d affd. on other sub nom. grounds California U.S. 370 110 S.Ct. v. Ghent 1190]; L.Ed.2d [108 It was a small 1250].) part statement to the an of trial designed jurors aspect proce- larger explain i.e., frustration, be why they dure that confusion and would might engender outset, even individually though about the death at the questioned penalty such, not issue never be reached. As the reference was penalty might necessarily jury’s critical sense of development responsibility for its verdict.

Moreover, statement, the trial court’s corrective although specifically verdict, directed to the issue of the for a death jury’s responsibility counsel, sufficient to defendant’s trial who did not satisfy request apparently a mistrial for or remedial Under or ask other or further admonitions steps. circumstances, (Low- these we are reluctant to infer especially prejudice. 568, 579, 484 U.S. 231 L.Ed.2d 108 S.Ct. Phelps enfield Finally, the remainder of the record demonstrates that the trial court full of for a death jury burden imposed accepted responsibility verdict. Both the court’s instructions and the of counsel arguments empha- sized the awesome character of the At the of jury’s beginning responsibility. the court told the it have difficult deci- jury that would penalty phase, sions to make. The instructions that the emphasized jury penalty phase if based on must not the death or impose penalty sympathy compassion They circumstances it to do otherwise. further ad- mitigating persuaded monished that a reasonable as to the a required doubt appropriate penalty verdict of life without With reference imprisonment possibility parole. verdict, of a death the final included the caveat: charge consequences you exactly says. “And are instructed that a death verdict means what it would you That the defendant will be executed. For to conclude otherwise your be to or and would be a violation of rely conjecture upon speculation oath as a juror.”

In our observation of the entire course of instuctions and light argument, v. Clark 583 789 P.2d 127], Cal.3d (1990) [268 error, in which we the verdict a similar claim of Caldwell is upheld despite here: “The tenor of the and the instructions apropos argument remaining made it clear to the that it and it alone whether defend- decide ant should live or die. have Although given, the instruction should not been it was not at prejudicial.” p. 634.)3 {Id.

III. The Trial Court’s Decision to Excuse Juror Clinton Prospective Lee Cause for

When asked the court he whether had ever been “arrested” or “in jail for anything,” juror Clinton Lee in the The prospective responded negative. a prosecutor sheet produced Lee’s convictions for various rap showing occasions, misdemeanor offenses on two drunk including, It also driving. showed two charges obstructing and an officer one of resisting (§ 148), which was dismissed a to drunk upon plea guilty driving and another Lee, which showed no The disposition. moved to excuse prosecutor arguing that he had committed Over perjury. objection by defense counsel that “ignorance and are stupidity for grounds the trial disqualification,” court granted the motion. error,

Defendant claims noting that Lee was not asked specifically whether he had been charged with crime and his answers could have been correct (e.g., he have might surrendered himself as arrest opposed being ed and not have might time in spent that Lee jail). Observing had expressed no preconceived views on the death he penalty, further asserts error was prejudicial. of a qualification juror challenged for cause is a matter within

the discretion of the trial court and is seldom a ground for reversal on appeal. (Odle Court Superior CaI.Rptr. 455, 654 P.2d 225]; People Sanchez Cal.App.3d CaI.Rptr. 446].) There was no abuse of discretion the trial court’s ruling. Whether Lee himself, was taken into custody or surrendered he was nonetheless arrested numerous times. “An arrest is taking into person custody in a case and in a manner prescribed by law.” “An (§ arrest is 834.) made an by actual restraint of the byor submission person, to the custody of 835, an (§ sheet, italics In added.) view of Lee’s his rap to responses officer.” questions about his arrest record were in candor lacking and completeness. by Concealment a potential juror constitutes bias implied justifying 3 complains Defendant also of the trial sequester jury. court’s refusal to heAs acknowl edges, right he had sequestered jury. no Bunyard 1189, to (People (1988) v. 45 Cal.3d 1218 71, CaI.Rptr. 795].) 756 P.2d Even if right, [249 he had such a he shows prejudice no from sequester jury failure to 527, (People this case. v. (1989) Morales 48 Cal.3d 563 [257 64, CaI.Rptr. 244].) 184 926, 152 v. Diaz 934-936 (1984) Cal.App.3d

disqualification. (People [200 1, 10-11 289 Clark v. United States U.S. 77]; (1932) see also Cal.Rptr. [77 993, 997-998, justified. L.Ed. 53 S.Ct. Lee’s 465].) disqualification Moreover, Lee his arrest from or not concealed even whether apart examination, for had cause on voir dire the trial court ample record he had per- to the court that represented The disqualification. prosecutor listed on sheet. Lee for some of the sonally charges rap prosecuted Lee ill reasonably might feelings trial court have inferred that harbor could (1988) (See People to from these Williams amounting experiences. bias 469, 66 (1977) v. Farris 61]; People 199 476-478 Cal.App.3d Cal.Rptr. [245 376, 385-387 45].) Cal.App.3d Cal.Rptr. [136 Cause Challenges IV. The Trial Court's Denial of Defendant's for Death Six Jurors Because Their Attitudes About the Prospective Penalty challenges the trial decisions overruling

Defendant assails court’s cause to six he claims were jurors prejudicially disposed for who prospective for reasons. reject toward the death We his several argument penalty. sat excused jurors jury. None of on defendant’s Defendant challenged only twenty-two six his two of them but used challenge, peremptory In on about the order to peremptory challenges. complain appeal cause, must trial court’s decisions his for overruling challenges he remove the juror question; show: used a (1) peremptory challenge can failure to do justify he exhausted his or his (2) challenges peremptory so; he selected. v. Bittaker jury was dissatisfied with the as (3) 630, 1046, 774 659]; People P.2d (1989) Cal.Rptr. [259 1260]; P.2d Coleman 770-771 [251 Ross v. 487 U.S. 81 L.Ed.2d 108 S.Ct. Oklahoma (1988) test. He did fails the last two essential elements of the Defendant excuse exhaust he offers no sufficient legally his peremptory challenges; contrast, v. Box for so. failing (See, Cal.App.3d do conviction when defendant [reversing 532] he entitled only allowed 10 of the which was peremptory challenges he challenge observing failure to exercise the 10th his explained his re jurors single could not or 6 unfavorable with have removed juror he a more unfavorable obtaining and that risked maining challenge if the Defendant’s from the venire were remaining challenge exercised].) his case—a that heard conduct indicated no dissatisfaction with unsuccessfully challenge he jury that included none of persons sought for cause. law, that

Defendant seeks to the case distinguish observing previous decisions did not “struck selection jury” system jury involve so-called in v. Cir. (4th 1986) that was used this case. United States Ricks (See, e.g., in system 802 F.2d We described one variation of the struck 733.) jury in Wright our recent Cal.3d opinion 731, 221]. Under the standard or box” selection used in “jury system jury state, dired, cause, our are voir for jurors subjected to challenges until 12 jurors remain. Both sides then exercise replaced qualified perempto ry A challenges. juror removed is peremptory challenge replaced another who is voir dired then juror both for cause and challenged This continues until have been peremptorily. process peremptory challenges exhausted or waived. The 12 remaining jury. become the persons

At defendant’s a variation of the in request, jury system struck was used this case instead of the box jury system. jurors were first indi- Prospective vidually voir dired and challenged for cause. As a result of this a process, of 76 panel persons found A ordered qualified. randomly list of the qualified to both persons given sides the order in which these showing would be persons called to sit as jurors. from the of the Starting beginning list, each side exercised its until peremptory challenges they were exhausted or waived. The first persons on the list remaining jury. became the

Defendant observes box a system a party exercising whether, view, does peremptory challenge not know from his point next juror will be better or worse. In the jury system, struck the parties know what the entire looks like from the panel individual voir dire exami- Thus, nations. each can an party sense as to develop ongoing whether the exercise of each peremptory is challenge likely yield more or less favorable jury. This difference was undoubtedly reason defendant re- the struck quested system.

Defendant reasons that he should not be to exercise all of required his peremptory challenges under a struck jury system in order to assign error refusing for cause. challenges His is a non argument sequitur. difference between the two systems bears no to the relationship requirement that a defendant exercise peremptory to exclude challenges jurors he be lieves to be biased him. against selection, Regardless system of jury party’s failure to exercise available peremptory challenges indicates relative satisfaction with the case, unchallenged jurors. so Having indicated this defendant cannot claim reasonably error. He is entitled to an jury, impartial Bittaker, not to one of his own choosing. but anything his case was the jury hearing makes no showing He

1087.) impartial.4 against experi trial courts in we caution Wright,

As did we in cases: capital selection statutory jury procedures mentation with re selection jury procedures prescribed to the Legislature’s “[Adherence fair and selection of a way to ensure and authorized mains the proper 398.) Cal.3d at p. jury.” (52 impartial Excuse Jurors Challenges to Use Peremptory

V. The Prosecution's of Death Penalty About the Propriety Skeptical to challenges used the prosecutor peremptory Defendant contends “death penalty skeptics.” describes as whom defendant jurors excuse seven for this denied purpose use of challenges that the prosecutor’s He argues in violation of jury penalty phase him his to a neutral and right impartial VI, Const., Amends. (U.S. and California Constitutions. the United States 7, 15, Const., I, 17.) 16 & art. XIV; VIII & Cal. §§ to to object in this any regard failing waived error Initially, defendant 291, v. Carrera 49 Cal.3d use of challenges. the prosecutor’s Moreover, we have 121].) repeated- 111 P.2d fn. 29 in use of infirmity prosecutor’s claim of constitutional ly any rejected death about the with reservations jurors to remove challenges peremptory 331-332; Dyer (1988) at (Id. pp. penalty. reasons, defendant’s reject we For these

contention. Phase Selection Jury VI. in Prejudice Cumulative selection jury cumulative effect of maintains that the Defendant above, We As discussed disagree. him of a fair trial. errors has deprived contentions, with in of defendant’s selection there is no merit to the jury concerning remarks of the trial court’s improper sole exception jurors, challenges of these defendant’s to each obligated to consider the merits of Were we points passages to isolated argument. Defendant change disposition our of his it would not concerning im jurors expressed attitudes prospective the voir dire examination which case, juror ac prospective questioning, further penalty. In each after position of the death penalty his or her duty respect the death knowledged the law with to his or her follow possibility parole if the law ability imprisonment without bring in a verdict of life the trial court’s determination particular verdict. We defer to the evidence called for that questions conflicting equivocal answers jurors these in the face of or the states of mind of Coleman, Johnson, 1194, 1224; People v. supra, 47 concerning (People v. impartiality. 749, 763-764, declining to excuse them 10.) fn. There was no error 767 & supra, 46 Cal.3d for cause. remarks, error both cured and any As those was

death reversals. to penalty trial, entitled to is entitled to a fair he is not harmless. a defendant Although 123, 156 46 one. v. Hamilton (1988) perfect [249 432 U.S. (1972) Schneble Florida 1348], P.2d quoting 340, 345, defendant has failed to S.Ct. Because 1056].) L.Ed.2d used select the any unfairness or in the to partiality process demonstrate Bittaker, 48 Cal.3d at there no merit in his jury, argument. (See is 1087-1088.) pp. Guilt

The Phase VII. Immunity Agreements Testimony The the Accomplices for of Allison Eckstrom and Avette Barrett sister, Barrett, Eckstrom, girlfriend,

Defendant’s Avette and her Allison testified for immunity the to written that prosecution agreements pursuant ultimately Rickey them from the murder of Van being tried for spared Zandt. The that the would dismiss agreements provided part prosecutor if, all woman charges (1) each other her pending against among things: statements to did authorities that she inflict on personally any injuries Rickey correct; Van Zandt were true and she testified completely at the truthfully at trial. first of preliminary The these hearing trial, conditions was deleted as to Barrett before but in effect as remained to Eckstrom. Barrett’s further that she agreement take and a lie required pass test, detector a condition by that was also waived the before prosecutor women, trial. Defendant testimony the of the two that challenges it arguing by tainted coercive conditions the imposed prosecutor. Attorney General that has waived error argues did, failing object however, when the women two testified. Defendant make a motion limine to exclude their testimony on the ground same he here, i.e., the urges existence of alleged coercive conditions in their plea bargains. that, The motion was denied. The Attorney General responds motion, the notwithstanding defendant must objection his when the repeat evidence actually is offered preserve assignment an of error.

A party desiring to for preserve to the admission appeal challenge of evidence must with the of Evidence comply provisions Code section which reversal for erroneous precludes admission of evidence unless: “There of record an appears to or a motion to or to objection exclude strike the evidence made and so to make timely stated clear specific ground objection or motion.” The for reason is requirement manifest: a objection to a defined specifically grounded body of evidence serves to error. It prevent allows trial judge consider excluding It also allows to avoid prejudice. or its admission limiting possible

evidence foundation, modify the offer lay of the evidence to additional proponent of reversal. to minimize the prospect or take other steps designed proof, P. 149 Cal. Bundy Lumber Co. (See Sierra form substance. No section does not exalt over partic- Evidence Code motion it is sufficient that presenta- ular or is objection required; form evidence on the specific specific legal tion contain a to exclude request com., 29B West’s Ann. Evid. Code Com. urged (Assem. on ground appeal. 353, Witkin, ed. 1986) 3 Cal. Evidence 245; (3d see also (1966 ed.) p. § 119, 2018, v. 56 137 1979; Gibson People (1976) Cal.App.3d p. [128 § CaI.Rptr. 302].) advocacy used of trial commonly

Motions in limine are a tool generally civil Such motions are in both criminal and cases. management trial, be they brought during at of also although may the brought beginning event, In either evidentiary by issues are the anticipated parties. trial when both, or in or ruled by orally writing are the either they argued parties, of in limine is to the usual motions by trial upon judge. purpose the of evidence deemed inadmissible and prejudicial preclude presentation A order in limine excludes the challenged the moving party. typical counsel, the and witnesses not to refer to evidence and directs parties, Evidence, Witkin, 2011 at matters trial. Cal. during (3 excluded § obviously futile of motions is to avoid the 1969.) “The such p. advantage in the event a motion to strike is the granted to bell’ ‘unring attempt v. Sierra Boat Co. 79 jury.” (Hyatt (1978) before the proceedings 325, 337 Cal.App.3d CaI.Rptr. [145 more They limine serve other as well. careful permit

Motions purposes of than take the heat evidentiary place consideration of issues would They battle trial. minimize side-bar conferences during disruptions trial, Finally, by flow evidence. for an allowing uninterrupted during outset, efficiency they critical issues at the enhance the resolving potentially & Courtroom Cotchett Cal. (See Haight, trials and settlements. promote ed. (3d 1988) 28-3.) Evidence p. circumstances, a in limine can serve the func-

Under motion appropriate 353 allowing tion to exclude” under Evidence Code section of “motion In evidence. to rule on a objection particular trial court specific Sacramento, Bd. v. Reed Dist. ex rel. State Reclamation Drainage etc. 60, 847], 68 defendant made motion CaI.Rptr. 215 (1963) Cal.App.2d [29 of an on the that he was testimony ground in limine exclude the expert The trial court denied motion and allowed expert qualified. of his testimony. Although it limited testify, although scope testified, objection did not renew his when the the Court of expert Appeal error, considered his “The motion in this case was assignment observing: directed at a well-defined issue. It an mode of entirely precisely proper it, Once the or objection. objections trial court ruled on no further motions were necessary to for preserve point appeal purposes.”

However, cases, in a series of recent we have stated: an “Generally when made, in limine that evidence is admissible has been ruling party seeking exclusion must at such time as the object actually evidence is offered to 963, the issue preserve for appeal.” Jennings Cal.3d (1988) 975, 278, fn. 3 Cal.Rptr. 475]; P.2d see also v. Turner People [251 668, 50 Cal.3d (1990) Cal.Rptr. 887]; 789 P.2d People [268 Mattson 983]; 247, 270, v. Boyer fn. 13 Sacramento, contrast, In P.2d 610].) on relying primarily etc. Dist. Drainage Reed, ex rel. State Reclamation Bd. v. Witkin supra, Cal.App.2d “If denied, states: the motion is the be ruling may reviewed on [in limine] without an appeal to making objection the matter at prejudicial the trial.” Witkin, Evidence, (3 Cal. at supra, 1971.) p. §2011

The in apparent contradiction these general statements can be reconciled on the focusing cases, of provisions Evidence Code 353. section In some a objection a specific to particular body of evidence can be advanced and ruled limine, upon definitively on a motion in thus the satisfying require case, ments of the statute. In this for example, made a motion in limine to exclude all of the testimony of the two female witnesses based on coercive allegedly terms in their written The plea agreements. motion was clearly and unequivocally denied. The objection was it specific, was directed evidence, to an identifiable body of it and was advanced at a time when the

trial could judge fair give consideration to the admissibility of the evidence Moreover, in its context. the Attorney General does not to event point in the trial occurring after the in limine and ruling before the evidence was offered that so the changed context as to constitute a basis for reconsider ation of the circumstances, Under ruling. these defense counsel justified in concluding that a mere of the repetition same objection advanced on the motion in limine would serve no useful purpose. objection been having made and ruled the upon, issue was preserved for (Sacramento, etc. appeal. Reed, Drainage Dist. ex rel. State Reclamation Bd. v. supra, Cal.App.2d at pp. 67-68.) cases, however,

In other a motion in limine may satisfy the require ments of Evidence Code section 353. For it example, may be difficult to specify exactly what evidence is the subject of the motion until that evidence is offered. Actual testimony sometimes defies pretrial predictions of what a in in the the context may change will Events trial say

witness on stand. a is objection is to an extent that renewed which the evidence offered 353. Evidence section and of Code necessary satisfy language purpose actual the evidence is As we observed in Jennings, “[Until offered, context, its court is relevance its ly probative and the aware value, related to for matters the state its prejudice, potential made, cannot rule at an is the court objection intelligently evidence the time 975, fn. In these circum at kinds of admissibility.” (46 3.) on p. stances, an at the the evidence is offered serves to focus time objection “An As one trial text advises: practice issue record. protect limine] objection serve the same as an purpose unsuccessful motion can [in However, .... the motion at trial the record on appeal preserving court to be clear and to allow the sufficiently appellate should specific have at objected it would been redundant to also determine whether have 2d (Cal. Objections time the to be introduced.” Trial evidence going 1.7, (Cont.Ed.Bar 1984) 11.) p. § is

In a motion limine to exclude evidence summary, we hold that the record on when a sufficient manifestation objection protect appeal section i.e.: (1) it satisfies basic of Evidence Code requirements raised on for exclusion is advanced and legal subsequently specific ground evi is body the motion directed to identifiable particular, appeal; time dence; during the motion is made at a before or trial when evidentiary the in its context. question trial can determine judge appropriate denied, When such is issue is for preserved appeal. a motion made and the hand, these satisfy the if a in limine does not each of On other motion Code 353 must objection satisfying Evidence section requirements, proper evidentiary made to the issue for appeal. be preserve to in limine necessarily Our in this is confined classic holding regard motions, i.e., the those motions heard at the of or trial beginning during e.g. kinds of motions heard the trial judge. pretrial judge, trial Other not 1538.5, be their own governed by those made under section will continue to for of error regarding rules standards the particular preservation appeal. in better motions practice our the

Notwithstanding holding, handling for to to the of the court’s undoubtedly stipulate limine is the effect parties for the Jennings, did in v. or rulings (as they People 963) the in limine trial make it clear counsel at end of judge arguments to to is, or objection what the on the motion but whether further only ruling done, If the is this is is desired when the evidence argument presented. will order of the trial court be the respected appellate or stipulation

191 been As one preserved. error has properly court’s determination whether evi- an in limine to exclude has motion commentator cautioned: “[W]hen denied, on that understanding a clear the record get dence is counsel should is be during counsel need not the evidence to introduced object sought when If is not trial to to the on this right argue appeal. so as preserve point done, when the is objecting counsel should consider trial evidence during be as to waiving right introduced so avoid sought possibility Civil Trial argue point (1 on Cal. Procedure appeal.” During 6.48, (Cont.Ed.Bar 1982) p. 246.) § noted,

As we have defendant’s in limine satisfied the requirements motion Therefore, 353 Evidence Code section as we have described them. will we consider his argument on the merits. on the rule of v. 41

Relying Medina People (1974) Cal.App.3d 438, 455 133], initially defendant Cal.Rptr. argues conditioning [116 Eckstrom the did grant immunity to on fact that she not personally injure necessarily Van Zandt testimony. tainted her As we observed v. Allen (1986) 1251-1252 [232 P.2d is fair denied a trial case prosecution's 115]: ‘“[A] if depends substantially upon accomplice testimony and the witness accomplice court, is either placed, by the or under prosecution strong compulsion in a testify fashion.’ particular Medina (People (1974) Cal.App.3d Thus, when the is immu accomplice granted nity to the subject condition that his testimony substantially conform to an (id., earlier statement given to at his police p. 450), or that result testimony in the conviction v. Green Cal.App.2d defendant’s P.2d 867]), beyond is ‘tainted accomplice’s testimony redemption’ (Rex Robinson B.C.R. 369) and its admission hand, denies the defendant a fair trial. On the other is a although there certain of degree in any inherent or of compulsion plea agreement grant it immunity, is clear an that agreement only that the requiring witness testify 329, is fully truthfully valid. v. Fields 35 Cal.3d [(1983)] 803, 361 673 P.2d v. Cal.Rptr. 680]; Lyons 50 Cal.2d People (1958) [197 245, added, 266 P.2d 556].)” (Italics fn. deleted.) [324 testimony

Barrett’s was admissible the only because condition at the time of trial was remaining testify that she and truthfully. completely As to testimony, Eckstrom’s we need not reach the issue whether the no- injury-to-the-victim in condition her agreement is coer plea impermissibly Medina, cive under the rule 41 of 438. supra, v. Cal.App.3d (See People 420, Knox (1979) 430-431 Cal.App.3d 238].) Defendant Cal.Rptr. [157 has not any shown from the prejudice allegedly coercive condition. The substantially accomplice on Eckstrom’s case did not

prosecution’s depend of admissions were the guilt Defendant’s several detailed testimony. pretrial testimony served pri- him. against accomplice cornerstone of case in defendant’s clarify to occasional vagueness to details and marily supply circumstances” show- In view the abundant “corroborating admissions. of pretrial defendant’s truthfully, including that Eckstrom was testifying ing evidence, admissions, no testimony, and the there was Barrett’s physical (1979) v. Watson testimony. (People reversible error allowing 376, 471]; Sepeda (1977) 381-382 Cal.Rptr. People Cal.App.3d [152 119].) 708-709 Cal.App.3d Cal.Rptr. [136 as immunity on other agreements grounds Defendant attacks by observing He conduct cryptically well. suggests improper prosecutor, Reichle, immunity agreement who attorney that James negotiated Barrett, Attorney shortly District there on Sierra County behalf became the fact ignores defendant’s trial. Defendant’s suggestion after before staff, Mr. or on his but anyone his not Reichle that case was prosecuted Rossi, County a former San Gary Joaquin deputy Prosecutor Special who handle this attorney, appointed prosecution. district was specifically no He evi points made no motion to recuse the prosecutor. Defendant under or direction either anyone supervision dence that Mr. Reichle or his of defendant in influenced to influence the prosecution or was a position evidence, in any In not way. indulge unfair the absence of such we will any discretion in an even that the did exercise his speculation prosecutor bias, animus, receipt manner or that or improper handed personal any (See role defendant’s prosecution. confidential information played Hamilton, L. at In re Charles 140-141; pp. 764-765 Cal.App.3d testimony Eckstrom’s that Barrett and Finally, defendant urges they but only accomplices, been excluded not because were should have for the authority Defendant cites no they “teenage because were sisters.” inherently unreliable sisters are or teenage incompetent proposition may face accomplices have that minor Although witnesses. we observed others, re (In accused testify including to blame parental pressure L. Miguel event, any case. In no such in this there was evidence

703]), pressure and of Barrett Eck fully credibility allowed to consider was immunity of their relationship, after full disclosure their sibling strom statements, relevant to their trust and other factors their agreements, prior any not testimony subject their was worthiness as witnesses. Because exclusion, blanket rule of their credibility was a matter to be weighed by evaluated the jury.5

VIII. Exclusion Evidence Polygraph of

The defense sought introduce evidence that Eckstrom had failed examination and that polygraph Barrett had refused to take one. The trial court rejected the offer of that such evidence proof, ruling was prohibited 351.1, Evidence Code section which provides: any other “Notwithstanding law, examination, provision the results of a polygraph opinion examiner, take, polygraph any take, or references to an offer to failure to or examination, of a taking shall be polygraph admitted into evidence in criminal any . . . proceeding unless all parties to the admission of stipulate such results.” Defendant attacks the ruling the statute on a challenging host of constitutional and other grounds.

We need not consider defendant’s because the challenges is sus- ruling tainable regardless the effect of Evidence Code section 351.1. Defendant’s offer of proof was that simply Eckstrom took a lie detector test and did not it. pass Because defendant did not offer to prove polygraph’s acceptance in the scientific community, evidence was properly excluded. As we said Harris “Absent an offer of that the proof is polygraph 619]: now accepted in the scientific community as a reliable the evidence technique, was pre- sumptively unreliable and inadmissible.” failed to Having make the proper offer of proof, defendant is in no position to error in assign the trial court’s ruling.6

Finally, defendant claims error in the of testimony of Alli receipt mother, son Eckstrom’s Roberts, Michele that “Allison had to have a 5Defendant admonishes history by us to heed the eschewing lessons of the “corrupt bar gain” produces accomplice testimony. He vintage authority invokes with the observa tion: “Truly away it would be any hard to take person the life of upon such a witness that swears Hale, (1 to save his own.” Pleas of the p. 305.) Crown But defendant’s case makes no such aside, demand on accomplice us. Even if the testimony is set it remains that defendant voluntarily unequivocally guilt confessed his three times: once to a picked hitchhiker he Nebraska, up in officers, once in a detailed statement to Nebraska law enforcement and once in a letter to Avette remaining Barrett. The evidence corroborates the confessions. As we ob- XXIII, part serve in post, the evidence of guilt defendant’s overwhelming was error admitting accomplice testimony beyond was harmless a reasonable doubt. argues Defendant also prosecution that the estopped object to the admission of polygraph evidence because polygraph condition in plea bargain. Barrett’s Defendant did argument not advance this in the trial court prosecutor’s objection made; when the he is (Roam now barred from asserting it. v. Koop (1974) 41 Cal.App.3d 1044 [116 Cal.Rptr. 539].) 194 blurted-out test.” statement is a classic of example Roberts’s

polygraph defense counsel testimony. by concerning It came on cross-examination by by way offered of by statement made the witness. It was the witness prior Defense counsel not to counsel’s background responsive question. and was and the trial immediately granted to strike court response moved “And ladies and jury gentlemen, motion and admonished the as follows: any mention of anything concerning are not to take into consideration you are They tests are not admissible in court. any test. polygraph Polygraph You are not talk about it deliberations. your not this case. to part kind of any or the other about any way You’re not form one opinions test, your are to that from minds.” you and strike polygraph admonition, The trial and which the is timely pre court’s specific followed, any to have cured from the witness’s resulting sumed prejudice v. Rosoto 58 Cal.2d inadvertent and statement. (People (1962) improper 779, 304, 124 352 373 v. Eads 867]; People (1954) P.2d Cal.Rptr. [23 event, 393, the over 402 P.2d In in view of 561].) Cal.App.2d [268 XXIII, there was no guilt (see evidence of defendant’s whelming pt. post), reversal. prejudice requiring Felony

IX. Admission Prior Convictions Defendant’s for Impeachment limine,

On motion in the trial court ruled that defend defendant’s intent ant’s convictions for assault with prior kidnapping, attempted rape, commit car theft would admitted for but that impeachment, be rape, his conviction would not. Defendant maintains that the court did for escape for value of his convictions properly probative prior impeach weigh effect. 38 Cal.3d against ment their Castro prejudicial (See People 719, 111].) P.2d Cal.Rptr. [211 rec Defendant the trial court did not make an initially argues adequate its to admit the convictions. ruling ord weighing process preceding on contrary, bearing To the court of counsel arguments entertained about value made remarks from the bench several probative prejudice, each conviction relevancy, during remoteness and reviewed separately all of its did not articulate Although specifically the course court ruling. cites no ruling, the factors in case law in its making identified trial was ade authority such a The court’s requirement. ruling imposing v. Holt stated and record. quately supported 1207]; People Nguyen (1988) P.2d Cal.App.3d of the trial find no abuse of ruling, the merits court’s we

Moving convictions distinguished among discretion. trial court defendant’s 195 The admitted convictions were the others. admitting and excluding escape trial and thus not remote time nine old at the time of so years seven and were crimes of relevance for The offenses to their preclude impeachment. as evil,” i.e., to do evinced a readiness they “general moral turpitude, (People could therefore be considered as impeachment. properly Castro, They v. Cal.3d at were not identical to 314). charges 38 supra, p. merely this case because against suggest guilt defendant in so as to present of past conduct.

Recent trial to admit the authority case court’s decision supports 636, convictions. v. Muldrow 202 646-647 (1988) Cal.App.3d [248 186 v. Castro Cal.Rptr. 891]; (1986) People Cal.App.3d v. Lewis Cal.Rptr. 269]; People Cal.App.3d [237 contrary authority. Defendant cites no X. Conversation a Fellow Jail Inmate About With Defendant’s Escaping Brooks, David

Anthony a inmate whom defendant met while in jail trial, custody testified awaiting that defendant asked his assistance escap ing. Brooks to jail defendant’s authorities. Defendant de reported request cases, nied making request. out-of-state defendant that Citing argues evidence of an was on attempt probative the issue his escape guilt he because was held on more one being than and that “it is charge impossi to ble determine from which defendant and fled.” charge escaped (E.g., v. State Sanders (Mo. 1971) S.W.2d He invites us to reverse 703.) his conviction because of the effect of the alleged prejudicial escape-attempt evidence. We decline invitation.

At trial defendant testimony, moved to exclude Brooks’s asserting are jailhouse informants unreliable witnesses. The trial a court held pretrial motion, hearing on the but made no Defendant to ruling. failed request ruling objection made no testimony when Brooks’s offered. was As a events, result of these waived any has claim of error in the First, introduction of testimony Brooks’s for two reasons. defendant failed object to to the escape evidence when it was v. Rodgers offered. (People Cal.App.3d In contrast to the Cal.Rptr. 719].) immunity VII, issue agreement (see ante), the trial court never pt. made a on ruling testimony. Brooks’s Defendant to for such obligated press ruling to Brooks’s object testimony until he one. obtained He failed so, do thus the trial court of the depriving to correct opportunity poten Second, tial error. defendant failed to advance in the trial court the specific for ground exclusion he now Defendant’s urges. motion was directed to the informants, alleged unreliability jailhouse not to any inherent ambiguity are The motion evidence when crimes charged. in escape-attempt multiple (Evid. error. sufficiently specific alleged therefore not preserve Ghent, Coleman, Code, 777; 46 Cal.3d at 353; supra, p. People § omissions, defendant’s 766.) procedural 43 Cal.3d at Because of p. this evidence. no fair to consider opportunity excluding the trial court had Therefore, its on ruling defendant cannot challenge appeal. on the Evidence of a escape

We also the claim merits. reject planned even if was not escape an inference of consciousness of the guilt, permits 1127, 44 Williams actually attempted. (People (1988) rule in follows the majority California when crimes have evidence of an even allowing attempted escape multiple 809, 845 v. Remiro charged. (1979) Cal.App.3d been Annot., 1135]; (1981) A.L.R.4th Attempted Escape to changing We no reason consider the 1087-1093.) A.L.R.4th see Williams, event, any error in the abbreviated any In as rule. of evi- overwhelming was harmless the light reference escape plans of guilt. dence defendant’s

XI. The Admission Statements Made Nebraska Defendant of Law Enforcement Officers admission, of objection, the trial over his

Defendant court’s challenges officers, enforcement one before statements he made to Nebraska law three his He the use of these statements violated and two after arrest. that argues convenience, the challenged Fifth and Amendment For his Sixth rights. statement, (2) prear- referred to as: statements will be prearrest statement, For the rea- and statement. postarraignment raignment below, no in the admis- stated we find violation of defendant’s rights sons of sion the statements.

A. The Prearrest Statement.

Thomas a hitchhiker defendant his Logan, picked up who was van, a “911” female left their companions company placed two Logan report- call to Nebraska about on 1985. police p.m. September van full the van’s had the owner and that the was ed that killed occupants He van as with California Dodge described the a marijuana. green camper state, and local relayed county, police license report plates. Logan’s to a motel The van was traced up. green in the area where he was picked converged spot lot in Nebraska. Police on parking Lexington, defendant, had by Logan, whose name had been reported verified van indicated that he was with driving green rented room and had license number 231 NVL. California plate sheriff, officers,

Two a state and a chief trooper deputy approached and, van the aid of the in the motel lot and their with lighting parking on marijuana observed four or five as well as stains flashlights, pounds the curtains. The van’s California license was J2/NVL. The officers plate to room 238. The state knocked and identified himself as proceeded trooper officer. Defendant the door. The state asked defend- peace opened trooper if ant he was Bruce Morris and defendant answered When the affirmatively. in, chief asked if the officers could come defendant stood back and deputy for them motioned to enter. The state then asked defendant if he trooper lot; van in the driving green Dodge responded affirmatively. state then told defendant that he was under arrest trooper for of possession marijuana. no Miranda v. Arizona 384

Although warnings (Miranda (1966) 694, 1602, U.S. 436 L.Ed.2d 86 S.Ct. 10 A.L.R.3d had been 974]) given [16 at this the trial court admitted point, evidence of defendant’s answers to the officers’ It committed no questions. error. Miranda that a requires criminal be admonished of suspect Fifth Amendment But specified rights. in order to invoke its a must be to protections, suspect subjected custodial i.e., interrogation, he must be “taken custody into or otherwise deprived his freedom in any way.” 444 significant at L.Ed.2d at p. p. 706].) {Id. [16 ultimate is whether inquiry simply there is ‘a formal arrest re or “[T]he straint on freedom of movement’ of the associated with a degree formal arrest.” 1121, v. Beheler (California 1275, 463 U.S. 1125 (1983) L.Ed.2d [77 1279, 103 492, S.Ct. 3517], Oregon v. quoting Mathiason 429 U.S. (1977) 714, 719, 495 L.Ed.2d 97 S.Ct. 711].) [50

Whether custody has occurred short of a formal arrest depends upon circumstances, totality of the such factors as: including the site of the (1) interrogation; (2) whether the investigation has focused on the suspect; (3) whether the indicia of arrest are present; and (4) length and form of the No questioning. one factor is v. dispositive. Boyer, 48 Cal. 3d 247, And, 272.) to contrary defendant’s argument, the mere fact that he was does not suspect establish custodial interrogation. As the Court Supreme Mathiason, in observed Oregon supra: officers are not required “[P]olice to administer Miranda warnings everyone whom they Nor is question. requirement to be warnings imposed simply because the . . . ques tioned is one person whom the police warnings Miranda are re suspect. quired only where there has been such restriction on a as person’sfreedom ’” to render him ‘incustody. U.S. (429 at 495 p. L.Ed.2d at 719], italics p. [50 added.) case,

In this the police questioning was brief and nonaccusatori yes-or-no al—two questions to elicit designed only defendant’s identity 198 or on jail police not take place to the van. did inquiry

his relationship female friends his two in defendant’s own motel room with but premises, 586, 258 590 (1968) Cal.App.2d (See People [65 present. Butterfield arrest, i.e., traditional indicia It was not accompanied Cal.Rptr. anything. or do say restrained or directed defendant was physically enter, In and defendant consented. they could The officers asked whether vehicle, a rou- the license number concerning the confusion view of or a restraint not amount to an accusation on that did subject tine question freedom. on defendant’s factors, and his of defendant the initial police questioning

In of these light (or, noncustodial their were response questions statement prearrest Therefore, ad- effect, were properly defendant’s statements precustodial). (1982) also v. Robertson (See People into evidence. mitted if an automobile a murder [asking suspect P.2d Cal.Rptr. 279] [188 v. Valdivia Miranda]; not violate linked to a homicide was his did contact [police Cal.App.3d 144] nonaccusatorial]; brief and home; his brother’s questioning with at suspect [question- In re E. Danny Cal.App.3d 123] detention; of arrest or home; question- no indicia objective at ing suspect nonaccusatorial].) brief and ing routine and the value of recognizes in this holding regard

Our are made. Such arrests and accusations before inquiry nonintrusive police minimize innocent. As the United mistakes and serves to protect inquiry has stated: “One of prima for the First Circuit States Court of Appeals group persons is to questioning separate ry purposes preliminary should should and those who in a crime into those who involved possibly all, some, be To charged. or none should be arrested—to decide whether Miranda into custodial interrogation, requiring turn all such questioning But, cases, it could also may eventually charged. in all those help warnings occa and on gathering of information seriously interfere with process wide, inter too significantly to cast their net of arrest sion force the police Cir. v. Butterworth (1st of the innocent.” liberty (Podlaski with the fering 8, 10.) 677 F.2d 1982) admission of defend if could be on the

But even error predicated statement, reasonable doubt. beyond be harmless it would ant’s prearrest that he was driv name and the fact elicited—defendant’s The information The was that the trial. defense throughout the van—were ing undisputed defendant never maintained did the killing; defendant’s female companions concerned, defendant’s van. Insofar as the trial was that he did not drive the facts and uncontested simple the officers’ represented answers to questions or influenced the outcome. have his defense that could not prejudiced B. Prearraignment Statement. after shortly

Defendant and his female were arrested companions two to a Defendant invoked his to remain silent midnight. right response county Miranda at the at 1:45 a.m. on warning jail September given in a cell. jail 1985. He was not at that time and was interrogated placed Defendant’s waived their Miranda state- rights gave companions ments at 1:45 2:44 a.m. The record is not clear as to when two women were but it that it the noon hour on arraigned, was around appears the 16th. Defendant was at 4:34 Each of them was arraigned day. p.m. solely on the arraigned marijuana Nebraska charges.

Shortly after noon on defendant asked to with an September speak officer. A sheriff’s met investigator jailhouse library with defendant and asked him what he needed. Defendant that he talk wanted to replied crimes, about his California but wanted some concessions. He requested, among other that his things, not be and that he be companions prosecuted allowed to with his speak Avette Barrett. The re- girlfriend, investigator that he no sponded concession and that he power grant any would had have to speak county with the He then attorney. contacted the county attorney, who arrived at minutes jail library 15 to 20 later. The investi- and the gator county attorney joined by were also a state and the trooper sheriff, chief deputy officers who had arrested defendant.

The chief sheriff deputy turned on a recorder at 2:39 immedi- tape p.m., after ately his arrival. The state defendant a Miranda trooper gave warning and defendant a signed waiver form. At this the chief ar- point, deputy for ranged Barrett to be brought into the and library allowed defendant to speak with her for about five minutes. Defendant told Barrett that he would not allow her to suffer for she did not do. 2:45 something About p.m., moved group across the street to the courthouse because that had a building better recording system and was less noisy. The interview recommenced at 2:52 and p.m. interview, continued for an hour. approximately During the investigator told defendant that the could make investigator no conces- sions and had jurisdiction no over California decisions. He also charging stated that although had and been requested permitted speak Barrett, with that was not an permission inducement offered by the officers to obtain a statement. Defendant expressed agreement with investiga- tor’s statement. interview,

During defendant confessed to the robbery murder of Rickey Van Zandt. He admitted his to steal Van plan Zandt’s van. He admitted hitting Van Zandt over the head numerous times with a rock the

200 softball, size of a a stick. He stated the women not and with were present when he hit Van Zandt. He admitted the hitchhiker he had telling Logan, that he out” Van He that he did had “knocked Zandt. picked up, professed Zandt, kill only Van but to render him unconscious. intend Defendant does not contest the sufficiency Miranda admo maintains, however, nition or the of his waiver. He that his state adequacy ment a involuntary delay and should have been because of suppressed in because he by induced to confess arraignment improperly being Barrett, with a he now calls “a permitted speak conversation which reject direct benefit or inducement.” We his contention. must the voluntariness of defendant’s confession prosecution prove 477, the evidence. v. 404 (Lego Twomey U.S. preponderance 618, 627-628,

489 L.Ed.2d 92 S.Ct. v. Markham 619]; (1989) 49 [30 63, 273, Delay in is Cal.Rptr. 1042].) arraignment [260 but one in factor the voluntariness of a confession. determining Harris 240]; P.2d People Thompson (1980) Cal.3d P.2d statement, To exclusion of a that justify delay defendant must show his admissions or that there was an “essential arraignment produced connection” between detention and Cal.3d at illegal guilt. (27 admissions pp. 329-330.)

Here early defendant was arrested hours and morning arraigned late the afternoon. This was well within the al- following two-day period arrest, lowed California statute. (§ 825.) within hours of his Acting defendant himself incrimi- initiated interview which he made the during statements. There were nating no circumstances involuntariness indicating from delay any or other cause. Defendant cites no resulting controlling mere- authority justify voluntarily would statement suppressing given ly because defendant was a few hours after his arraigned companions on the day authority. same as his arrest. We decline to create such inducement

Similarly, we find no merit defendant’s claim of improper because he was his for five minutes. allowed with speak girlfriend

“A if is entire voluntary confession is the accused’s decision to speak i.e., if ly [citation], freely voluntarily ‘self-motivated’ he and chooses to . without or . . .’ speak ‘any form of of reward compulsion promise [Citation.]” confession, v. 27 Cal.3d at A (Pe 327-328.) ople Thompson, supra, pp. however, in involuntary authority is where “a makes an or person express of clearly leniency or for the accused which is a implied promise advantage cause . motivating the decision to . . .” v. Boyde, confess 212, 238, 46 Cal.3d italics added.) The officers leniency disclaimed and expressly promises they told defendant had no to make about that authority decisions charges would be in California. authority Defendant cites no that would prosecuted a that five-minute talk with a is a sufficient support holding girlfriend “inducement” to render a murder involuntary. confession Such an ephem eral benefit cannot be reasonably as sufficient to cause a regarded person admit his against will the of another human v. killing (See being. People Hendricks 1350] accused with [providing person whiskey and Bible did not in improperly duce him to confess]; Cal.3d at Thompson, supra, pp. that his person’s statement would result in hope release of his

[accused girlfriend was self-motivated and did not induce his confession].) reasons, record,

For these and based on our review of the independent we find defendant’s prearraignment wholly statement was voluntary prop- erly received in evidence.

C. The Postarraignment Statement. Defendant was on the arraigned marijuana charges on the afternoon of 16. September He requested counsel at the and the matter arraignment continued for two days. Between 7:30 and 8 p.m. day, the sheriff’s investigator learned that California authorities had not been able to locate the victim’s body from the information by defendant in the supplied prear- raignment statement. The went investigator alone to the met jail and with defendant the library. He reminded defendant generally of his Miranda rights. Defendant him helped draw a with map specific landmarks of the area where defendant had left the victim’s body. map defendant’s postarraignment statement were admitted at trial over his De- objection. that, fendant now claims coming after his arraignment and for request counsel on the marijuana charge, this evidence should have been suppressed on both Fifth and Sixth Amendment grounds.

In of his Fifth support Amendment argument, relies on principally Arizona Roberson U.S. 675 L.Ed.2d 108 S.Ct. 2093], which a burglary arrested at suspect the scene of a crime to a responded Miranda with a warning for counsel. remain request After ing custody for three days counsel, without he appointment contacted and questioned by different officer about a different burglary. The Supreme Court upheld of his suppression statements incriminating officer, holding that under the Fifth Amendment such interrogation could occur only if the accused initiated it. Roberson is distinguishable. There the defendant clearly cut off all unequivocally police interroga tion, counsel, specifically requested and did to initiate the nothing interview

202

with the officer. Here initially only invoked his to silence right counsel; and not to initiated the Van about Zandt’s police questioning himself; murder and then waived his to counsel in expressly right making statement, a full prearraignment confession to that crime. has the burden of prosecution establishing, whole upon record, Where, here, a knowing voluntary waiver of Miranda as rights. evidence, there is no conflict in the we review the trial court’s finding waiver v. Duren independently. (1973) 9 Cal.3d [107 conduct, In of defendant’s light his for counsel at the on the is not a request arraignment marijuana charge clear of a desire that expression on the murder police interrogation charge cease until he had consulted with counsel. Because the officer was seeking merely to clarify voluntary defendant’s earlier statement and reminded defendant of his Miranda there was a of those rights, continuing waiver to the rights extending interview and postarraignment statements no Fifth Amendment violation. v. Brockman (See People (1969) Cal.App.3d 1002, 1006 Cal.Rptr. 70].) [83

Defendant’s Sixth Amendment claim fares no better. In Hovey (1988) Cal.3d 776], P.2d the defend [244 ant sought statements he a suppress postarraignment made to fellow inmate, that the inmate claiming was a whose conversation police agent with him violated his Sixth Amendment to counsel. We his right rejected argument on the alternative that the ground information procured inmate related to an offense other than the offense with which the defendant 159, 180, had been Maine v. Moulton charged.7 Quoting 474 U.S. “ 481, 499, footnote L.Ed.2d 477], S.Ct. we observed: ‘Incrimi crimes, statements to other nating as to which the Sixth Amend pertaining attached, are, course, ment yet has not right admissible at a trial of those offenses.’” Cal.3d at (44 p.561.)

The same rationale here. Defendant was applies arraigned requested counsel in connection with a Nebraska marijuana charge arose from a different incident and at a different time and than the California place murder and robbery The latter were not at the charges. charges pending time of the attorney and no had been re postarraignment interrogation or quested defendant on those The Sixth appointed represent charges. Amendment to counsel “arises from the fact that the has been right suspect with a formally charged crime and thus is particular state facing apparatus 7We deliberately also held that the police defendant’s statements were not elicited result, agent because the questions. inmate asked no As a the statements were admissible un 364,106 der Kuhlmann v. Wilson (44 477 U.S. 436 L.Ed.2d S.Ct. Cal.3d at 2616]. p. 561.)

203 Roberson, (Arizona v. 486 him.” that has been geared up prosecute at italics As a result: 716], added.) U.S. at 685 L.Ed.2d p. p. “[T]he [100 .. . not violate the uncharged continuing investigation [does] offenses (Ibid. . .” at italics add 716], . L.Ed.2d right. p. Sixth Amendment [100 with to the right Because defendant had no Sixth Amendment respect ed.) murder, could not robbery crimes of the use of his statement uncharged 790, also In re Michael B. 125 (1981) Cal.App.3d violate such right. (See v. therein; and cases cited Booker 291], 795-798 Cal.Rptr. [178 654, 347].) 663-665 (1977) Cal.Rptr. Cal.App.3d [138 statement, it error the admission of the was Assuming postarraignment beyond Discovery body harmless a reasonable doubt. of the was not essen- 589, tial to the case. v. Ruiz 610-611 prosecution’s (People Van 854].) Defendant did not Cal.Rptr. dispute [244 Zandt had been killed nor did he he body; location of the dispute Moreover, only contended that his had de- done the companions killing. fendant had already indicated his statement the basic prearraignment facts of the body. murder and location of the victim’s In approximate short, defendant had already voluntary convicted himself with his own statements, before the He postarraignment interview. was prejudiced the limited additional admissions he made there. Nicholas 269-270 Cal.App.3d XII. The Accidental Playing Excluded Portions of Defendant’s Nebraska and the Question Prosecutor’s About One Such Confession Portion

Before the of defendant’s tape recording statement was prearraignment to the played jury, the court and counsel listened to the outside the tape jury’s The trial presence. court ruled that a certain of the portion tape, where defendant stated that he had left “in Sacramento because he was some trouble” with “some be underground would excised. While people,” doubt that this expressing the court portion tape prejudicial, mistake, found it to be of no value. probative By the excised portion played. Defendant’s counsel moved for a mistrial. The trial court denied the motion and admonished the jury to the excised references. De- disregard fendant claims that the inadvertent of this of the playing portion tape denied him a fair trial.

Initially, erroneously played was conceiv portion tape ably relevant to the case: prosecution’s defendant’s desire to flee potential danger Sacramento might explain why he stole Van Zandt’s van. (See, e.g., People Perry (1972) Cal.3d Moreover,

P.2d 129].) contrary to defendant’s argument, the refer- taped dealing not the that he involved in or drug enees do inference compel may by “underground He have been for pursued people” crime. organized event, inference other his own criminal acts. In the reasons than reversal, the is as to because overwhelming justify offending not so prejudice the it. jury disregard was brief and the trial court admonished to passage Rosoto, 352.) 58 Cal.2d at (See People p. also that committed miscon

Defendant the complains prosecutor he he to authorities: duct when defendant whether had said Nebraska asked I “I done.” The and answer were nothing question won’t to ain’t cop and defendant’s objection; jury stricken on defendant’s the was admonished we no error. The trial motion for mistrial was denied. find reversible Again, statement be court excluded the of defendant’s originally quoted portion other cause it was made in to a about offenses response question with, therefore, was, and irrelevant to the prose had been charged pending But, observes, Attorney highly cution. the General the statement was as testimony his admissions of pretrial relevant defendant’s that impeach kill Rickey and that he not Van Zandt. Defendant’s were false did guilt the time that he would assertion at of his confession specific emphatic by he did commit entitled to be the weighed not admit crimes of his recantation. credibility the assessing Moreover, and defend- prosecutor’s question when confronted with answer, jury. stricken and admonished the It ant’s the court ordered them only found and not misconduct in the prosecutor’s question, inadvertence circumstances, in its these ruling. some Under we noting ambiguity original a fair trial. deprived that defendant of perceive nothing XXIII, fully For the stated above and as more explained part reasons also harm- error with to the confession was any asserted post, respect taped less a reasonable doubt. beyond Barrett

XIII. Letter to Avette Copy Admission of of Defendant's The into of a letter sent copy trial court admitted evidence of 1985 and “Your early signed, defendant to Avette Barrett in October husband, by jail authorities reviewed her Bruce.” The was made who copy trial challenges Defendant court’s destroyed mail. Barrett original. evidence violated the best admission letter ruling, claiming merit. Code 352. Neither contention has rule Evidence section trial the letter object Defendant failed to in the court to admission of on therefore, has, on objection best evidence waived that grounds appeal. Code, event, In any objection was not well taken. Evi (Evid. 353.) § if made inadmissible that a “is not Code section 1501 provides copy dence on the intent destroyed part lost or has been without is writing fraudulent was the (Italics added.) prosecution the evidence.” the proponent of of the letter destroyed But Barrett original of the evidence. proponent to her decision that the contributed and there is no evidence prosecution an inmate addressee or of an letter original do so. The loss destruction Garvey (1979) render a inadmissible. does not copy 320, 324 Cal.Rptr. 73].) Cal.App.3d letter, also a from the rendering

Defendant that was argues page missing 1402. it inadmissible as an altered document under Evidence Code section document, As the of the had the burden of prosecution proponent material alteration. authenticity, any its the absence of showing including 403, Code, The trial court was (Evid. (a)(3), 1400-1402.) subd. required §§ if with to admit the document in evidence the trier of fact was presented Jefferson, sufficient evidence to a authenticity. {Ibid.; support finding 30.1, Cal. Evidence Benchbook ed. There was (2d 1982) pp. 1049-1051.) § more than sufficient evidence here.

Barrett testified that the exhibit a true and accurate prosecution’s was of the letter she received and copy destroyed. Although handwriting of a based on certain expert acknowledged possibility missing page letter, features of the Barrett testified that defendant had often written short, fragmented letters. In the trial in justified court was amply rejecting defendant’s view that was altered or Richardson copy (See incomplete. v. Suiter (1946) 252]; P.2d v. Lovdal Cal.App.2d Meyer [169 (1907) P. CaLApp. [92 letter,

Defendant made no Evidence Code section 352 to the objection he although did its relevance. The letter challenge relevant. plainly Defendant’s own handwritten admission that he had killed someone for Barrett with a directly rock to his or innocence. pertains guilt It also contra- dicts his testimony that Barrett and Eckstrom had killed Van his Zandt and prearraignment statement that he had intended to knock Van only Zandt true, observes, unconscious. It is as defendant that his letter contains refer- as, ences to future violent conduct on such “I’ll kill possible his part, again to, and, if I have for if you,” defendant were denied the to visit opportunity Barrett, hurt, that, “then I someone will and mean bad! I’ve killed once get for you, and if I have to I’ll do it I again!!! you can—you And know that can, know that I I and don’t need a rock to do it with either.” But defend-

ant did not for in these argue potential of the letter or prejudice portions Therefore, ask the trial court to exise these he has passages. waived appellate challenge by to advance a “clear and failing for specific” ground Code, objection the trial court. (Evid. 353.) § Moreover, with intermingled irrelevant references were so the allegedly In make their excision practically impossible. admissions as to probative letter, references to his defendant combines nearly every past sentence to kill for her Barrett references to his intention for with killing motivation for continuing strong future. Both sets of references show kill Barrett or at her because request his conduct his for (i.e., willingness contrary be viewed as her) might of his intense toward feelings evidence his statements. Such testimony defendant’s trial as well as pretrial reason- for We cannot is on the issue of intent and pertinent impeachment. himself that go disallow the use of statements subscribed ably why, merely committed the crime and directly to the central issues who his for vio- because defendant was overzealous expressing propensity the letter. There no error in the admission or consideration of lence. 86, 124-125 v. 45 Cal.3d (See, e.g., People Thompson Hendricks, 594; 43 Cal.3d at 37]; People p. 57, 111 744 P.2d 1127].) Miranda Identify Test XIV. Admission Evidence Electrophoresis of Bloodstains to admit the results

Defendant the trial court’s decision challenges Van Zandt’s of of bloodstains found at the site of electrophoretic testing and his companions murder and on the clothes seized when defendant two did not establish the scientific were arrested. He asserts prosecution 17 rule. v. reliability Kelly/Frye Kelly (1976) of the test under the (People 144, 24, P.2d v. United States 1240]; Frye 30 549 Cal.Rptr. [130 1013, 46, A.L.R. 145].) 1014 34 (D.C. 1923) Cir. 293 Fed. App.D.C. [54 based on the testimony The rule of proponent expert requires things: (1) of a scientific to establish three new application technique to have sufficiently general accep or method is established technique gained its field; applica tance in its with to the and (2) testimony respect technique correct scientific by (3) tion is offered a properly qualified expert; 17 Cal.3d at (Kelly, have been used in the case. supra, procedures particular v. Brown (1985) our decision in 30.) People p. Citing reversed on other 440], grounds 530-533 Cal.Rptr. [220 837], 538 L.Ed.2d 107 S.Ct. in v. Brown 479 U.S. (1987) [93 California meet its burden of in had failed to which we found that prosecution main of electrophoresis, the scientific establishing acceptability here. His is argument unpersuasive. tains that a similar failure occurred enzymes allows of individual blood Electrophoresis typing proteins electrically a method that charged found a blood sample separates trial, molecules. A few months after defendant’s the Court of found Appeal Review- community. that it had the scientific gained general acceptance

207 Court subject, on the testimony a record extensive containing expert ing the issue of general voice on only dissenting observed that the of Appeal Grunbaum, remediable defects only Dr. Benjamin emphasized acceptance, in the technique rather than ability analyst knowledge in the 1127, v. 196 Reilly (1987) Cal.App.3d itself. [242 the Court by two other Reilly panels has been followed 496].) Cal.Rptr. 1017, 209 Cal.App.3d v. Yorba (1989) of Appeal. (.People [257 377, 383 v. (1988) Cal.App.3d Morris 641]; People (Cole- We, too, in dictum. Reilly, have although endorsed man, found has been fn. 23.) Electrophoresis Cal.3d at supra, p. Admis- 11 states. (Annot., in at least 19 decisions from appellate acceptable Cases, Eviden- of Dried in Criminal of Evidence of sibility, Electrophoresis 588, 593-602, cited; and cases State Bloodstains 66 A.L.R.4th tiary decided 448 N.W.2d Most of these cases were Fenney (Minn. 1989) 54.) Reilly. after has refused as shown

Only Michigan testing, admission electrophoresis But, N.W.2d since Young Mich. 270 270].8 there, Grunbaum, Dr. the chief defense witness Young, expert who was also has abandoned his attack on the method to focus on apparently testing error rather than inherent defects. He and other scien- analyst prospect tists if carried out. reliability now concede the of the method it is properly Moreover, Reilly, Young at (See supra, Cal.App.3d 1148-1150.) pp. decision has been other jurisdictions jurisdiction, criticized two and no than it. State v. Michigan, Fenney, follow appears (E.g., Annot., 60; 750; N.W.2d at State v. 440 N.W.2d p. (S.D. 1988) Surface 66 A.L.R.4th at pp. 593-602.) ad- virtually authority Based on the unanimous the upholding appellate mission of evidence from we hold that such testing, testing electrophoresis sufficiently in the scientific at the time of defend- community accepted ant’s trial.9 defect in the any defendant does not Significantly, allege specific case, (1984) appellate People Ill.App.3d 8One Illinois v. Harbold 124 363 N.E.2d [464 it, because, 734], electrophoresis on the record before also refused admission of evidence reliability questions technique there were serious the and no evidence of its ac about the decisions, ceptance other than its use in crime laboratories. Later Illinois based on more com (E.g., prehensive acceptability, of the evidence. records of scientific have endorsed admission (1988) 1276]; (1987) Ill.App.3d People Henne N.E.2d v. Partee Ill.App.3d N.E.2d Reilly (supra, 9Defendant’s observation that his case was tried few months before 1127) Cal.App.3d judge was decided is of no avail. The him trial trial here had before the Reilly findings Kelly/Frye Every appel court record in and the had been satisfied there. late case electrophoresis generally accepted decided since defendant’s trial has found be in community. may -the scientific Because defendant has not information shown “new which reliability question continuing any the “change of the test” or in the the consensus within in either or as in his case. The

technique general applied prosecution expert trained in the use of the his specially were technique; qualifications by defendant’s trial counsel. He testifed to accepted his this procedures case and his belief as to their reliability. Defendant does not establish a failure to use correct any scientific or other act or omission that procedure affected the reliability analysis or this case. There was no testing violation of the rule. Kelly/Frye

XV. Admission From the Testimony Victim’s Mother Helms, mother, called Lowelene the victim’s as its prosecution testified, first witness. Before she objected any by the attempt to ask her to prosecution identify the of her son’s autopsy photos corpse, that the had noting photos already been ruled admissible. The trial court sustained the objection testimony, precluded noting potentially inflammatory effect of such In an effort to other questioning. preclude Helms, testimony by Ms. defense counsel offered to that: stipulate (1) victim was in lawful van; he had possession (2) his mother’s consent to use it her cards; credit she had such given to no permission one else. The declined to and the prosecutor trial accept stipulation stand, court refused to Ms. Helms took the compel acceptance. testifying very briefly (her testimony five occupies approximately transcript pages) matters included as well as others. Defendant proffered stipulation contends that her testimony was calculated to inflame and prejudice jury and that reversal is We disagree. required.

Initially, there objection was no defense to several items in Ms. Helms’s testimony that are now claimed to be or inflammatory e.g., (1) prejudicial, her reference to her death husband’s from cancer and to her loan of the van to her son so he could away”; and her identification of of her “get photos son while alive. In the absence of an objection, defendant has waived Code, error in the admission of this evidence. (Evid. 353.) § the court have Although should on routine evi- required stipulation dence to avoid the testimony prospect prejudicial victim-impact (see 808, 298, v. People Bonin 47 Cal.3d 848-849 765 (1989) P.2d Cal.Rptr. [254 1247, 817, 460]; v. Brown 45 1262 Cal.3d 756 (1988) Cal.Rptr. [248 P.2d we find 204]), no reversible error from its failure to do so. The testimo- brief, concise, ny by Ms. given Helms was and directed primarily to routine matters. We cannot conclude that undisputed jury’s or passions Moreover, were excited such prejudices innocuous any references. error community” scientific concerning electrophoresis, challenge. (People he cannot sustain his 19, Cal.App.3d Smith 215 678].) 25-26 Cal.Rptr. [263

209 evidence overwhelming light harmless clearly in this regard XXIII, (See post.) defendant’s guilt. pt. Custody in the Witnesses

XVI. Removal Orders for Defense County Sierra Sheriff called as wit- the defense testimony,

In effort Barrett’s an to impeach Essentially, they County Sierra jail. of her inmates in the nesses three fellow stated, with she consistent with her which testified to conversations trial, for her. “taking rap” at that defendant was testimony defendant’s he to call these witnesses was required Defendant observes that order to County that served on the Sierra for and obtain removal orders were apply orders, he was about the Sheriff. Because the sheriff informed the prosecutor these testified. Based on they able to interview the defense witnesses before events, Fifth Amendment rights defendant claims a violation of both his in Allen v. Court (1976) and our decisions Superior Court (1970) and Prudhomme 65], Superior P.2d Cal.Rptr. [134 held that a in which we 673], [85 reveal the names of prospective criminal defendant cannot be to compelled burden government’s witnesses because disclosure serve to lessen might of proof. he

We not reach the merits of defendant’s because argument need made no any has waived error. The record reveals that defendant alleged have might for a order or other relief that request protective kept to court. they identities of his witnesses confidential until were summoned 471, Millaud v. Court (See Cal.App.3d Superior 190, 205-207 Rosato v. Court Cal.Rptr. 222]; (1975) Cal.App.3d Superior Instead, only about defendant’s first complaint County these witnesses was a motion to their return Sierra expedite The they County jail. because were “harassed” in the San being Joaquin declaration of counsel that motion stated in that the defense supporting part at have talked to the request “witnesses have been our cooperative after the identified who those wit independently prosecution, prosecution were, them . . . .” nesses after a removal order was served on apparently deny thus made no (Italics added.) Having attempt prosecution witnesses, in no it complain access to his defendant is position them. interviewed

Moreover, no evidence of from prejudice supplies did not on the witnesses to rely interviews. prosecution prosecution case; or its were to they establish bolster called defense impeach in testimony. Barrett’s the record interviews Nothing suggests prosecution in any involuntary testimony, of these witnesses resulted or coerced or otherwise defendant of his to a defense. deprived opportunity present we find no reversible

Again, error.10 XVII. Absence From a Instruction Jury Defendant’s Conference

Defendant contends his federal and state be constitutional rights pre- sent at all critical of his case stages were violated when he was absent from informal, an conference between the unreported court and counsel concern- ing jury day instructions. after the informal conference the trial court record, a held formal conference on the the same at dealing subject with which defendant was present.

Defendant is not entitled to be in either chambers or at present bench discussions on of law. His on these occasions questions does presence not bear a “reasonably substantial relation to the fullness of his opportunity Bittaker, to defend” himself v. against charges. Cal.3d (People supra, 1080; at v. p. Jackson

603, 618 P.2d 977 & Consistent with this [interpreting 149] §§ an informal conference principle, on instructions is not a at proceeding a which defendant’s is v. presence constitutionally necessary. States (United 1337, 1338-1339, Sherman (9th cited; Cir. 821 F.2d 1987) cases United 964, 972, States Graves Cir. (5th 1982) 669 F.2d and cases More cited.) over, there was no demonstrable here he prejudice because was at the conference held the present day actually next which settled the Bittaker, instructions. 48 Cal. 3d at pp. 1080-1081.) XVIII. Instructions Accomplice Testimony

The court instructed the jury as matter of law that Avette Barrett and Allison Eckstrom were testimony and that their had to be accomplices corroborated. It an defined accordance with CALJIC No. accomplice “aided, 3.10 as a who has or act person promoted, encouraged, instigated by or advice the commission of such offense with of the unlawful knowledge that committed the offense and with the intent or purpose person or the commission of the purpose committing, encouraging, facilitating offense.” agree We prosecution’s attempt impeach with defendant that the the inmate one of ground worshipper improper. worship

witnesses on the that she was a former devil was Devil any credibility bearing not shown to have on the witness’s or the issues in this case. But XXIII, any beyond regard (See error in this pt. post.) harmless reasonable doubt. 11In passing, disapproval unreported we note our conferences on matters of substantial case, controversy in capital Although prejudice cases. we discern proceedings no in this capital cases should be conducted on the record to remove conceivable doubt as to what place preclude unnecessary delays disputes settling took and to the record for further proceedings. (See 190.9.) § error because the court did not further

Defendant claims reversible that an could also be a person instruct the as he jury, requested, accomplice committed that his the crime. He maintains without “directly” pro who undermined his defense that Barrett and addition the instruction posed Eckstrom were the actual killers a forbidden “conclusive by constituting First, defendant’s claims. we There are two short answers to presumption.” 147, similar in v. Heishman 45 Cal.3d 162-163 rejected (1988) claims People 673, 753 P.2d commented: “The instruc 629], which we Cal.Rptr. [246 tion could not be understood as reasonably rejection precluding [the in fact based on a conclusion that testimony—including rejection witness’s] distinctions, Contrary was the killer.” to defendant’s preferred [the witness] clearly our there rested on the of the instruction as holding language op Second, to the facts and is not error posed fairly specific distinguishable. harm declining defendant’s modification of the instruction was proposed beyond less a reasonable doubt view of the evidence of his overwhelming XXIII, of Van Zandt’s murder. perpetration (See pt. post.) XIX. The Homicide Instructions

Defendant the homicide instructions on several challenges grounds.

First, 8.70, he that the argues court’s omission of CALJIC Nos. 8.71, and 8.73 a created that did not charge between adequately distinguish first and second murder. The degree omitted instructions tell the of its jury duties to state the degree of murder in verdict and to its return verdict of second murder if it degree has reasonable doubt on the issue of degree.

The omission of these instructions was not error. The evidence in this case established either that Van Zandt was killed defendant as a of a part robbery Eckstrom, (the byor Barrett prosecution theory) with or and/or without justification defense (the theory). theory Defendant advances no consistent with the evidence that would jury have allowed the to convict Hence, him of second murder.12 his instruc degree objections concerning tions about that offense are unfounded. v. Flannel 684-685 603 P.2d v. Teale 1];

Second, defendant argues that the trial court erroneously declined his jury be instructed that first request felony murder does degree to a apply homicide from the resulting or perpetration attempt hypothesis—that jury might 12Defendant’s have he provoked concluded into kill ing Van Zandt when Barrett told him Van rape Zandt had tried to her—is without evidentia ry support. reject testimony would have had to pretrial admissions of all of witnesses, himself, including to reach this conclusion. jury might He that the deadly suggests an assault with a weapon. perpetrate based on his felony of first murder guilty degree have concluded that he was Zandt, contention that he the rejecting prosecution’s assault on Van while robbery. intended to commit cannot be

In of the court’s actual defendant’s charge, suggestion light in the mentioned the court only felony by was the Robbery supported. defend- told that in order to find jury instructions. The was felony-murder the as an essential element of ant of murder it would have to find guilty felony, commission of a to wit: crime that “the occurred the killing during assault as a consideration of allowing There were no instructions Robbery.” men- Assault was not felony-murder rule would felony apply. which Indeed, only it mentioned defense counsel tioned at all the court. was instructions, that a mere consistent with the his argument emphasize, defendant of first degree assault the victim was not to convict enough on circumstances, jury that the suggestion murder. Under these defendant’s an on Van Zandt felony found him murder because of assault guilty amounts to speculation. instruction on

Even the court erred in assuming refusing requested assault, jury’s defendant. The findings the error could not have prejudiced robbery, murder and and that the rob- felony that defendant guilty was true, necessarily a determina- bery encompassed circumstance was special Zandt formed an intent to steal before he struck Van tion that defendant intent.13Defend- out the fatal to effectuate that beating and that he carried is, jury’s ant’s claim is inconsistent with the determination of prejudice 668, reason, 50 Cal. 691- v. Turner 3d rejected. (See (1990) for that People 706, 44 Cal.3d P.2d Melton 887]; (1988) Cal.Rptr. People [268 867, 745-747 750 P.2d 741].) Cal.Rptr. [244 that the trial court Finally, gave superfluous defendant complains of homicide. and other classes involuntary manslaughter instructions on Particularly any told to instructions. jury disregard inapplicable felony murder emphasized the defendant could not be convicted of The instructions killed Van Zandt and jury unless the that he formed an intent to steal before he concluded jury pros “The example, the was told: then carried out his murder to further that intent. For the crime of beyond doubt that the intent to commit prove ecution must also a reasonable robbery in the death of the during the commission of the acts which arose before or result[ed] robbery you to commit victim. If doubt that defendant formed intent have a reasonable acts, felony- only you may degree murder on the engaging not convict of first after in the fatal addition, robbery special cir jury murder In directed that it could find true the rule.” carry out or advance the only committed murder in order to cumstance if defendant had detection, admonished that robbery escape or and was further commission of a or to facilitate By returning its verdicts of felo robbery “merely incidental” to the murder. could not be circumstance, murder, necessarily ny robbery, robbery determined special and the killed in order to do so. that defendant intended to steal and conviction of first defendant’s view of the abundant evidence supporting and the absence robbery circumstance felony special murder with degree influenced any inference that instruction inapplicable improperly verdict, from the extra instructions. we discern no prejudice 689]; Lanphear v. Hesslink Cal.App.3d 465].) Admissions, Oral Credibility,

XX. Omitted Instructions on Witness Evidence, and Doubt Evaluation Reasonable of certain re declining give Defendant faults the trial court for at trial. instructions to evaluation of the evidence quested relating presented in Again, any we find no reversible error of defendant’s contentions. an instruction on the failure to or evidence direct- Although deny explain all ed to witnesses as have been opposed just would appropri- case, ate in this we have defendant’s that the previously rejected argument failure to frame the in way instruction this is Saddler prejudicial. (People 681-684 More- 130].)14 over, the court jury instructed the that it could consider inconsistent prior statements as on a witness’s That instruction bearing credibility. effectively allowed defendant to and the argue jury credibility to consider the of other witnesses, Eckstrom, Barrett and including testimony based on their as with their compared out-of-court versions of events. It remedied prior deficiency that have might occurred this area.15

Defendant further the trial challenges rejection court’s of his instruction that the jury should view with by distrust the evidence offered a if that party jury Defendant also contends the should have been told that it could in draw favorable testimony ference from explained defendant’s which pro or denied adverse evidence. The posed potentially unnecessary instruction was both misleading jury’s to the consideration Merely of the denying evidence. proffering explanation, adverse evidence or an im however plausible, justify does not fully an inference in defendant’s favor. The was instructed as general evaluating credibility, factors to be used in e.g., consistency witness internal evidence, testimony, supported by defendant’s whether it was or contradicted other etc. It capable evaluating testimony therefore defendant’s in accordance with the instuctions given. reason, reject For the same we defendant’s contention that the trial court re committed 2.20, eliminating versible error in from CALJIC No. which discusses factors related to wit credibility, honesty ness “the factor of character of the for witness or truthfulness or their opposites.” only testimony to which possibly the omission could have referred was that Crane, inmate, of Del Ann Lenore expressed opinion fellow who her that Barrett was a testimony “liar.” But her regard reveals that her primarily conclusion this was based on statements, Barrett’s inconsistent thoroughly explored which were in cross-examination and as to gave counsel which the court complete instructions. An instruction directed to bare reputation opinion or significantly scrutiny evidence would not have jury’s intensified the testimony. Barrett’s satisfactory more evidence. ability stronger had the to produce

party did not that the prosecution to observations his trial counsel He points certain of blood found on any analysis types in evidence produce or “stronger” how this evidence was rocks. But defendant fails to explain defendant has aided his cause. Because introduction could have how its matter, his a material he related to shown that the instruction proposed v. Simms Cal.App.3d of error fails. (See People assignment his court’s failure to give us to find error the trial Defendant also asks or abuse” to error subject “no class of evidence is more instruction that unable “are generally an oral admission and that witnesses than evidence of instruction As phrased, exact of an admission.” language to state the from no error in its exclusion We find argumentative. exaggerated 998, 1004 Cal.Rptr. v. 59 (1976) Cal.App.3d Rice charge. (People [131 330].) in his give pro trial court erred failing defendant claims the

Finally, in in included its doubt. The trial court instruction on reasonable posed 2.90, and has been is based on section 1096 structions CALJIC No. which reasonable doubt. sound constitutionally description as a recognized 227, 833, 760 P.2d 881 Cal.Rptr. v. Crandell 46 Cal.3d (1988) (People [251 295, 300-301 200 Cal.App.3d v. Rubalcava 423]; (1988) People [246 were neces on reasonable doubt No additional instructions 75].) Cal.Rptr. 638, 644 10 1096a; v. Williams sary. (1970) Cal.App.3d (§ People [89 143].) Cal.Rptr. Evidence, Jury Note- on Other-crimes

XXI. Omitted Instructions Charges and Consideration taking, Separate omission of CALJIC No. in the court’s Defendant asserts error 2.50, evidence. the limited use of other-crimes which instructs the as to to his of evidence related posses He contends that the consideration jury’s defendant Initially, his defense. in Nebraska marijuana sion of prejudiced duty no and the trial court had that this instruction be given did not request 991, 1020 49 Cal.3d Lang v. (1989) it sua give sponte. (People [264 1189, 386, 45 Cal.3d Bunyard, v. 627]; supra, 782 P.2d People Moreover, in the abundant view of 1225-1226 & fn. 24.) particularly knowl jury’s not how the his defendant does demonstrate guilt, evidence of marijuana a few pounds had harvested that he and his edge companions in the verdicts any his or made difference could have defense prejudiced rendered. 17.48, an instruction CALJIC No. defendant did

Similarly, request it is the better to give jury note-taking. Although practice on instruction, v. the trial court is not to do so sua required sponte. (People Harris, 1047, 41 Cal.3d 1096; v. Silbertson addition, shows 709 P.2d In CaI.Rptr. [221 from the failure to the instruction. give no conceivable prejudice the trial court should have CALJIC Finally, given defendant contends 17.02, No. to consider and decide each concerning jury’s duty charged the instruction and asks count defendant did not separately. Again, request us to hold that it should have been sua Defendant acknowl given sponte. rejection our of his contention context edges noncapital Beagle but asks us 1]), to reach a different result in cases because of the heightened require capital ment for reliability decisionmaking. (Caldwell Mississippi, supra, U.S. at L.Ed.2d at p. pp. 235-236].) case,

Under the circumstances of this we decline defendant’s request. the instruction is a Although useful one case of multiple charges is on it fair properly given was not essential to consideration request, straightforward distinct here. There were but two charges charges against felony defendant—first murder and Defendant degree robbery.

accused of the victim in order A killing to steal his van. reasonable jury have would had no difficulty between the two or distinguishing charges them giving consideration of the evidence. independent light XXII. The Willfully False Statement Instruction

Defendant as reversible error the assigns following instruction to the “If jury: you find that before this trial the willfully defendant made false deliberately or statements the he misleading concerning charges which upon tried, is now being you may consider such statements as a circumstance tending prove consciousness of but it is not guilt, sufficient of itself to The be prove guilt. weight to such a circumstance and given its significance, if any, are matters your for deliberation.” cases, the

Although instruction is acknowledging some appropriate defendant maintains that it violated his due because his process rights statements were and he pretrial himself testified that were inculpatory they false. He false, that if the argues jury found his pretrial statements to be it should have found him innocent and not conscious of as the guilt instruc- tion suggests. threshold,

Defendant misreads the instruction. At the it required jury to determine whether defendant made willfully false or deliberately mislead- ing statements pretrial If “concerning charges.” jury found of his admissions made statements because (e.g., pretrial

defendant no such the balance the instruction necessarily were it also found of true), guilt If, least found made at contrary, jury on the inapplicable. or that that he not intend to kill Van Zandt some false statements did (e.g., infer reasonably it crimes), Barrett him to commit the could encouraged event, In either defendant’s case was not prejudiced consciousness guilt. when, here, in- Particularly as the trial court further by the instruction. consistent with may structed that there be reasons for false statements another, innocence, a full oppor- such defendant had attempts protect as tunity to his case. There was no error. argue as Doubt Beyond XXIII. Guilt Phase Errors Harmless Reasonable at that the effect of the various errors Defendant cumulative argues jury’s and in the reversal of the guilt requires selection phase effect of contrary, To the we find that cumulative finding guilt. errors, federal conceivable those defendant contends to be of including dimension, a reasonable doubt under beyond constitutional was harmless 386 U.S. L.Ed.2d the rule of Chapman California 1065], S.Ct. A.L.R.3d evidence, statement, Defendant’s admitted in prearraignment properly first robbery a full to the crimes of voluntary contains confession The state- felony robbery. murder with the circumstance degree special crimes. ment includes facts the essential elements of these supporting summarized, Briefly the evidence from this statement shows that defendant head van; to steal victim’s he hit the victim over the planned van stick; away numerous times a rock and a and that he in the with drove facedown was a after his victim in a ditch. victim’s death leaving natural of defendant’s conduct toward him. When considered consequence admit- with the evidence and defendant’s other together properly physical officers, cellmates, others, inference of ted statements to his pretrial his becomes guilt overwhelming. behalf, his numer- testify defendant did his own

Although repudiating statements, sufficiently strong ous evidence of his inculpatory guilt allow us to that cumulation of guilt phase conclude conceivable v. affected the his case. United States (See errors would not have outcome of 96, 105-108, 499, 103 S.Ct. Hasting 461 U.S. 507-512 L.Ed.2d (1983) [76 “scanty” evidence of and inconsistent [“overwhelming guilt” plus 1974] court to error harmless reviewing evidence offered defendants allows find 666, v. Lee 43 beyond doubt]; a reasonable see also Cal.3d People (1987) 406, 738 752].) 674-679 P.2d Cal.Rptr. [238

217 Penalty Phase Facts Prior Violent Underlying XXIV. Evidence Defendant's Crimes enforce- (1)

In the called as witnesses: law penalty prosecutor phase, ment officer had the crimes to defendant’s 1980 investigated leading who conviction and the victim of defendant’s 1978 (2) kidnapping, kidnapping assault, convictions. Each testified detail as to the attempted rape facts defendant’s crimes. respective underlying testimony of our that this kind of is at the

Cognizant prior holding proper . . . “where it is not the fact of conviction which is penalty phase probative but rather the conduct of defendant which rise to the offense” gave (People 1168, 666, v. Gates 43 Cal.3d 743 P.2d (1988) Cal.Rptr. 301]), [240 defendant advances a battery of constitutional consider arguments against ation of the facts of crimes at the underlying prior penalty phase.

Initially, defendant that his Amendment argues Eighth were rights violated consideration at the he penalty what calls stale evi phase dence of his crimes. As prior we have acknowledges, already rejected a contention that of the expiration statute of limitations precludes consideration of unadjudicated criminal at the prior conduct penalty phase. Heishman, v. (People 192; Cal.3d at see also v. supra, p. Robertson 18, 631, Here, Cal.3d 42-43 (1989) 767 P.2d Cal.Rptr. 1109].) [255 defendant was with and charged to crimes pleaded guilty following incidents presented to the an jury. Having had opportunity litigate facts of those incidents at the time of his convictions as as at well he has no cause penalty phase, of an complain inability to defend himself. There was no violation of defendant’s v. Karis rights. (People (1988) 612, 758 P.2d

Defendant also renews the claims of error that following we have previ ously rejected: (1) that the same which convicted him of first degree murder was also allowed to consider his guilt crimes prior Balderas 480]); admission of violent prior crimes violates the constitutional prohibi Melton, tion on double jeopardy (People Cal.3d at fn. p. 17); and that (3) “unadjudicated prior crimes” related to his convic prior Balderas, tions should not be considered at the v. penalty phase (People 41 Cal. supra, 3d at in 404-406). defendant’s pp. Nothing merits argument addition, reexamination of our In decisions. we observe that defendant did to rebut attempt any or refute of this evidence at trial (see People Hamilton, 46 Cal.3d at supra, and that the p. 144) jury was carefully than those of which of crimes other evidence not to consider

instructed have followed to The is jury presumed been convicted. had 207, 253 47 Cal.3d v. Adcox (People [253 instruction. limiting circumstances, no there was 55, these Under 906].) 763 P.2d Cal.Rptr. error. testimony allowed court improperly claims that the trial

Defendant also violent crimes which of his prior the victims concerning evidence and other 482 U.S. 496 v. Maryland (1987) of Booth was violation [96 he alleges this argu 440, rejected he we acknowledges, S.Ct. As L.Ed.2d 2529]. Karis, defend 612, The is true of 640-641. same 46 Cal.3d ment in supra, to accept been compelled should have that the prosecution ant’s argument v. McDowell of his other crimes. to the facts his offer to stipulate 1060].) 758 P.2d 46 Cal.3d that his crimes sum, in the record of prior to nothing In defendant points In accor- acts. of his criminal prior inaccurate rendition to an amounted decisions, considered at the this evidence properly our dance with prior penalty phase. Method Execution Concerning Penalty Evidence

XXV. Exclusion of Mistake as a Result Execution Wrongful and of San Quentin be allowed to view that the jury Defendant asked hear an explana introduction of videotape or Prison either person evidence about to introduce He also sought the method of execution. tion of The executed. convicted and had been wrongfully who innocent persons defense counsel but permitted the offers of rejected proof, trial court death sentences. unreliability of to the jury argue At the penalty phase, court’s ruling. no error there was Again, of the offense on the circumstances focused attention is jury’s properly manner offender, about the information not extraneous the character of the 86, 138-139; 45 Cal.3d (People Thompson, execution of sentence. v. Grant (1988) cases, told a case, judgment jury in other In this as capital dramati- his life. Further will lose that. The defendant exactly death means serves to distract to the contribution process zation makes no useful task at hand. attention from the jury’s where occasions seeking present offer of

Similarly, proof defendant’s rejected. also executed was properly have been wrongfully persons is not infallible adjudication guilt was informed “[t]he be considered may of guilt entertain on you question doubts lingering you in that at determining penalty, including possibility appropriate future, yet time in the facts come to which have not been may light some to consider discovered.” This instruction allowed straightforward any uncertainty as to defendant’s further was remaining guilt. Nothing to secure to defendant a fair trial on the issue of required penalty. XXVI. Prosecution Examination Witnesses of Defense

Defendant with misconduct in charges prosecutor prejudicial defense witnesses about examining what he maintains were inadmissible matters. As to the first of these matters—a directed to defendant’s question warden, a former San as expert, Quentin to whether he had to the spoken victims of the he in inmates referred to his testimony—defendant waived Code, error alleged by object. 353; v. Bell failing (Evid. People § v. 129]; People Ghent, 43 Cal.3d at supra, 762.) same is true of defendant’s chal p. to the lenges prosecutor’s the same witness about the murder questions rate in and instances prison the murders of involving guards inmates prisoners.

Defense counsel did object to the directed to following question Reverend Eshelman, a and former psychologist called as an prison chaplain expert your defense: “In as Mr. opinion, Morris sits here is he today, a danger ous man?” The objection was sustained and the prosecutor the line dropped In view of inquiry. Eshelman’s direct there testimony, was no miscon duct. Eshelman offered his opinion, based on his as a training psychologist and his more than 20 years as a prison chaplain, defendant was a sensitive and man personable who had a ability to “proven get along in a adapt” Eshelman, environment. prison According to defendant had participated prison was one of chapel programs, highest producers industries, prison and was cooperative He pleasant. defend compared ant favorably to life sentence he had prisoners known who had made a contribution positive life. While prison is prosecution from prohibited offering expert testimony predicting future dangerousness its case-in- (Adcox, chief 47 Cal.3d at supra, it p. 257), may the issue on explore cross- examination or in rebuttal if defendant offers testimony expert predicting Gates, good prison behavior in the future. 43 Cal. 3d at 1211; p. Coleman

768 P.2d 32].) As we said in Gates-. “If the defense chooses to raise the subject, it cannot expect immunity from cross-examination on it.” (43 Cal.3d at p. 1211.)

220 Gates, 1168, awas 43 Cal.3d the question in supra, prosecutor’s

As Moreover, we evidence.16 challenge expert to defense permissible attempt an infer- does not an isolated one that support note that the was question could have been cured conceivable any prejudice ence of and that prejudice admonition, by defense. (E.g., a was not by timely requested which 510, 755 45 Cal.Rptr. v. Rich 1089-1090 People [248 635, 44 Cal.3d P.2d v. Hendricks 960]; People sum, In no misconduct the prose- P.2d we find 836].) rever- that would a justify of defense witnesses expert cutor’s examination sal. Argument

XXVII. Phase Penalty for in final argument, cites the misconduct Defendant prosecutor outset, At note de comments.” we “numerous alleging improper comments any no at trial to of the objection prosecutor’s fendant interposed therefore, error or miscon any defendant has waived final during argument; Bell, v. timely have been cured a admonition. by duct that could 1041; at 548; Lang, 49 Cal.3d p. 49 Cal.3d at p. People supra, P.2d Lucky (1988) defendant asserts that the finding, prosecutor’s a waiver Anticipating event, is in any appar- that reversal argument egregious compelled so court have restrained the ently prosecutor because either trial should trial demonstrated his ineffectiveness sua or that defendant’s counsel sponte to reviewed the object. Having challenged portions prosecu- failing find merit tor’s we no in either argument. argument, one, about relatively only a covering The brief argument prosecutor’s jury’s in the began by emphasizing responsibility He pages transcript. read correctly or die. He to whether defendant should live prison decide be considered in impos- the factors to concerning to the instruction in the factors to evidence sentence. He then selected various ing pointed that related to those factors. record Carroll, ex psychologist clinical and another defense prosecutor also asked Dr. although he had individual. She answered that

pert, whether she felt defendant was violent violence, nearly of al episode he was a violent individual. As with all the incidents an examination, object failing to leged prosecution defendant waived error misconduct addition, jury. or make a to strike the answer and admonish the In question to the to motion Eshelman, evi respect produces expert we noted Reverend when the defense as have with nondangerousness predictions positive that includes about defendant’s contributions dence of rebuttal, life, cross-examination, argu prison to reasonable prosecution is entitled proffered ment meet the evidence. testimony on defense that defendant Commenting expert predicting life, adjust rhetorically would well to asked how that prison prosecutor could defendant’s vicious crimes. defendant reads this mitigate Although remark as an a adjustment to instruct the that cannot be attempt prison factor, in mitigating context it amounts to no more than criticism of the in evidence of the evidence. The mitigating light aggravating was prosecutor entitled to on evidence in the argue (based record) of predictions satisfactory adjustment by history life are a of violent prison outweighed crimes, just as the defense v. was entitled to argue opposite. (People McDowell, 571; 46 Cal. at v. supra, 3d 45 Cal. 3d p. People Thompson, supra, at pp. 124-125.)

Defendant to two points passages prosecutor’s argument referring to the of impact defendant’s conduct on the victims of In his crimes.

first, the prosecutor recalled the of testimony family, defendant’s who offered the view that he did not deserve the death He then referred penalty. mother, to Van Zandt’s that she remarking likewise felt her son did not second, deserve the death In the penalty. recalled the prosecutor victims of defendant’s crimes—a prior 15-year-old defendant girl attempted rape and a 61-year-old woman he and robbed at knife kidnapped He point. referred to the “anguish and emotional scars” the woman had suffered in the last year of her life following defendant’s actions. Defendant claims that these in the passages prosecutor’s violate argument Booth v. Maryland, 496, supra, U.S. where extensive use of a victim impact statement showing the of the crime on the impact family of the immediate victim and others was held to violate the defendant’s rights. (See also South Carolina v. Gathers 490 U.S. 805 (1989) L.Ed.2d 109 S.Ct. [104 2207] [Booth applied final prosecutor’s argument on concentrating laudatory character of victim as voter, man religious and registered as shown his personal found property at the crime scene].)

Neither Booth v. Maryland nor Gathers v. South Carolina rever- requires sal here. Although first comment mother, does refer to Van Zandt’s it does not refer to her character or the of her specific impact son’s homicide life, on her to state the except obvious: that context, her son was killed. In the comment was an at attempt reductio ad absurdum—the prosecutor simply pointing out that relatives’ natural are feelings inclined to leniency and should not be given substantial weight a determination. penalty The second comment refers to the direct impact defendant’s crimes prior on victims, the immediate a matter we have may held be by the argued prose- cution at the penalty (Karis, phase. Cal. 3d at supra, 641 & fn. p. 19; Heishman, supra, Cal.3d at p. impact [consideration crime on the immediate victim is relevant to the “moral assessment of facts” performed by the sentencing jury].) brief mention of “anguish a by 61-year-old kidnapped

and scars” suffered victim emotional characteriza- and at was no more than permissible assaulted knife point Ghent, no misconduct. tion the crime. There was 772.) at p. event, character of the prosecutor’s In restrained” any “fleeting reason- beyond them harmless permitting comments rendered error 262, 284-285 able v. Lewis 50 Cal.3d doubt. (People Malone 892]; 786 P.2d see also family mild” to victim’s reference 1249] [“brief feelings misconduct].) personal prejudicial as of the argument Defendant characterizes another portion prosecutor’s lack an factor of (defendant’s capacity an to turn alleged mitigating attempt an the of the into requirements law) aggravating to conform his conduct to vein, uncon- factor. he claims that the prosecutor disregarded In the same state. testimony defendant’s mental concerning tradicted defense expert claim The did not argument. Defendant distorts the prosecutor’s prosecutor crime; he chal- merely that mental his capacity aggravated defendant’s of testimony and defendant’s state lenged argued the of defendant’s experts views mind the evidence. Because the was bound to from accept v. was argument proper. (People defendant’s experts, prosecutor’s Crandell, 884; at v. Drew Cal.3d supra, p. no there was misconduct. 1318].) Again, that defendant

Defendant also finds fault with the statement prosecutor’s too, This, his was was a based on record of violent crimes. “violent” person least one no more than a comment at reasonable permissible supported 125.)17 view of at p. the evidence. (People Thompson, his lack that the turn Finally, prosecutor attempted defendant argues into an factor. The defense testified psychiatrist remorse aggravating to de- responded by defendant showed remorse. prosecutor pointing killed her and to Barrett in which he stated that he had for fendant’s letter comment was based on evidence would do so His again. simply response in the record. context, are it is evident argument

When the evidence and considered by any of counsel that defendant was not denied effective assistance “citizen-supported life Califor obliquely 17The also to defendant’s in a prosecutor referred “society’s obligation to and amounts of on expend nia institution” and time vast resources” im him in record To the extent these references can be viewed as an view of his of violence. (see People Thompson, supra, p. at proper punishment comment on the costs of Cal. 3d 132), any timely misimpression jury’s part on the could been cured ob conceivable have addition, jection request cryptic for an instruction. None was made. In such references in argument deprive an restained did not defendant of a fair trial. otherwise final As we argument. failure to the comments object during prosecutor’s little, noted, if that might regard- have contained be argument anything, Indeed, evidence, prosecutor’s argu- ed as misconduct. light have very Objections by might ment was restrained. defense counsel well invited frustration or and a more antagonism, vigorous adverse rulings, jury reasons, summation from the For tactical pointed prudent prosecutor. defense could have concluded that silence the best certainly counsel was sum, In there no misconduct or reversible error strategy. prose- to it. cutor’s final or defense counsel’s decision not to argument object XXVIII. Involving Consideration Prior Convictions Multiple Felony a Single Incident as Aggravation Impermissible

In defendant was convicted of assault attempted rape with intent commit his a 15-year-old from attack on former rape arising girlfriend. Evidence of both at convictions introduced the penalty Defendant phase. claims that because both convictions arose from same incident, the jury’s consideration of them resulted in an artificial separate and inflation of the in prejudicial aggravating factors. error this Assuming regard, we hold it both and harmless waived defendant.

First, defendant object did not to the felony consideration these prior convictions on the he ground now nor he asserts did request clarifying instruction that any would have prevented conceivable “artificial aggrava tion.” In the absence of timely objection, any defendant waived error. Carrera, Hamilton, 291, v. 49 341; Cal.3d v. supra, People supra, 126; Cal.3d v. at p. People Siripongs (1988) 729, 754 P.2d 1306].)

Second, to the extent defendant that he was implies improperly convicted in the first instance of multiple offenses from a arising single 654; incident (§ Cole need 1182]), we not reach the merits of his argument. There was no preju- dice to him in the introduction of those at convictions the penalty phase here. Because the underlying facts of the convictions at issue were presented in the the penalty phase, jury was aware that the two convictions stemmed from a incident. in single the Nothing argument or elsewhere prosecutor’s in the record the suggests jury that the mere weighed number of convic- tions, incidents, as the distinguished from facts of the underlying improper- ly Indeed, or inordinately. the in prosecutor expressly stated final argument convictions, that he was on two relying prior to referring the separate and He kidnap rape incidents. did not to enumerate defendant’s attempt Any convictions. error in introduction of the convictions was harmless. Arguable 8.84.1 to Preclude to CALJIC No. Modify XXIX. Failure Factors Aggravating Overlapping Artificial Inflation of factors, jury the and mitigating With to respect aggravating 8.84.1, the No. which tracks the of CALJIC language instructed using this to factors are to references in this (all part of section 190.3 language to in his rejecting request contends the court erred section). code Defendant to asked the court the instruction. modify Specifically, standard modify in to (a)18 factor circumstance special delete the reference be to therein must activity” the “criminal referred factor state that (b)19 not The trial court did of the offense itself. other than the conviction capital err in defendant’s refusing request. should, on have held that the trial court (a), to factor we respect

With circumstances special not to consider multiple admonish request, determination exactly penalty “more than once for same purpose” any capital double-count “circumstances” because it otherwise might Melton, also circumstances.” {People crime which are “special however, Defendant, not an did request Cal. at italics original.) 3d p. been yet Melton. had not form admonition contemplated {Melton that reference to He asked instead trial.) “special decided at the time Such a carries entirely. in factor be deleted (a) request circumstances” then believe it could consider risk the reverse problem—the jury might those of the (i.e., “the only murder) circumstances of crime” This defeat the manifest would (i.e., robbery-murder). circumstance special consider, inform as one they should (a) jurors of factor purpose factor, in the criminal of circumstances involved totality episode the the the reason, trial not err in refusing For the court did that is on trial. this deletion.20Moreover, Melton, in the also observed in absence as we proposed an event showing the or argument by prosecutor of any misleading 18 the of (a) sentencing jury “The circumstances of crime the to consider: requires Factor proceeding any special present in and the existence which the defendant was convicted be circumstance found to true.” 19 or of criminal (b) sentencing jury presence to consider: “The absence requires the Factor ex force or violence or the activity by attempted involved use or use of defendant which or violence.” press implied or threat use force 20 aggravating on factors points proposed special out that he also instruction Defendant you or to deciding sentence the defendant death as “In whether should which read follows: you aggravating as factor possibility consider an parole, life cannot imprisonment without any establishing circumstance any you special in existence of which used fact was true, something in addition to you that fact establishes which have found to be unless further illustrates the proposed instruction special existence of the circumstance.” vagueness resulting deficiency potential In to its and the argument. in addition defendant’s effectively precludes addition”?), juror (what “something is in the instruction for confusion activity gave which facts and circumstances of the criminal consideration even basic objective (a). prosecution. It defeats the of factor rise thus

225 substantial likelihood of reversal is not double-counting, called for. (44 Cal.3d at No such or event pp. 768-769.) argument here. present

With to the respect modification to factor we have proposed (b), held that such an statutory alteration of the is in language the absence of required misleading v. prosecutorial argument. Cal. 3d at (People Siripongs, supra, 583-584 pp. cannot such an agree instruction was required; [“We [that] the absence of misleading to the and in prosecutorial argument contrary, whole, view of the instruction as a we believe a reasonable jury would have factor interpreted (b) as violent criminal encompassing only activity other than the offense.” capital (Italics There no original.)].) such argu- case, ment in this nor was there other circumstance that would serve to mandate a in the standard change (b) factor instruction.

XXX. Requested Instruction That Jury Consider Defendant's Avette Barrett's and Allison Eckstrom's Plea as Bargains Mitigating Factors

The trial court rejected defendant’s that the request jury be in structed that the plea bargains with his two female be consid accomplices ered as a mitigating factor. But it did instruct the jury that mitigating factors were other, unlimited and that it could consider unenumerated facts or circumstances in It mitigation. also allowed defendant to that the argue disparity treatment between defendant and his two justified accomplices the lesser sentence in his case.

We have repeatedly rejected the contention that juries must be capital directed to consider the relative severity of an accomplice’s sentence as a Carrera, factor. mitigating v. 49 Cal. 3d supra, 291 at p. [“The punishment meted out to a codefendant is irrelevant to the decision the jury must make at the penalty whether phase: the defendant before [the court] Malone, should be sentenced to death.”]; People supra, 54; Cal.3d People Belmontes

P.2d 310]; v. Dyer, People Cal. 69-71; 3d at v. McLain pp. 97, 46 (1988) 630, Cal.3d 121 757 Cal.Rptr. P.2d 569].) No error [249 occurs in the omission of such an instruction. XXXI. The Instruction Allowing Consideration Extreme Mental of

Distress and Substantial Domination as Mitigating Circumstances

Defendant the challenges trial court’s instruction following CALJIC No. 8.84.1 that jury the was to consider mitigation “extreme mental or emotional disturbance” and “substantial domination” (italics added), arguing that its language precluded consideration of “non-extreme”

226 cir mitigating domination as and “less-than-substantial” mental disorders several occasions and on rejected arguments We have similar cumstances. 51 v. Medina (1990) to the issue. no reason reconsider perceive 849, v. 870, 1282]; Murti People 799 P.2d Cal.Rptr. Cal.3d 907-908 [274 821, 1001, 172]; People 1033 Cal.Rptr. shaw 48 Cal.3d (1989) [258 242, P.2d 1330]; v. Sheldon v. Morales Cal.3d People addition, the jury In not here because prejudiced

P.2d factors, of mitigating that not limited its consideration was told it was his to mental evidence and as argument and defendant both presented 568.) at (48 disorder. Cal.3d p. Failure to Regarding an Instruction

XXXII. Omission Defendant’s of Penalty at the Phase Testify concedes, the contention rejected

As defendant we have previously it may has a sua that duty jury sponte that the trial court instruct the penalty failure to at testify an adverse inference from defendant’s draw Melton, Gates, 1208-1209; v. Cal.3d at pp. phase. (People supra, Hamilton, 46 Cal.3d at supra, at pp.757-758; People decisions, reject we de no reason to reconsider our prior p. 153.) Finding claim. fendant’s Division Inquiry

XXXIII. The Trial Court’s Into Numerical the Jury 1:45 on July its deliberation at jury penalty p.m.

The began phase at 4 It at 9:05 day It on resumed deliberations p.m. 1987. was released noon, 1:05 A next broke lunch at and returned at day, p.m. a.m. the for court. In the sent a two containing questions half-hour later it note “In the this cannot decide jury first it as follows: event inquired question, case, on the of this what would be phase penalty [sentence] 100% a “Without with his own: judge question The trial imposed?” responded other, you can give me how the stands one or exactly way telling count, Sev- . how it stand? me some idea . . about the numerical might en/five, six/six, four/eight?” jury foreperson responded: “Approxi- two, then asked continued ten to Your Honor.” The court whether mately an affirmative answer deliberations result in verdict received might referring It declined to from the then answer foreperson. question, them not to jurors given admonishing instructions previously on verdict. The jury on the their failure to speculate consequences agree 3:55 the resumed deliberations and was released that at It returned day p.m. at 9 and reached its verdict 10:46 a.m. day next a.m. at

227 divi the court’s into the numerical Defendant that argues inquiry We have the an coercive tactic. jury previously sion of impermissible 730, & fn. v. Rodriguez (1986) this rejected argument. (People 667, 726 P.2d neutral into numerical inquiry Cal.Rptr. [230 113] [“[A] division, used, is an tool in the ascertaining probability properly important the trial no By judge of the agreement.”].) simply making inquiry, placed to the on the to reach a verdict and no views as jury expressed pressure Thereafter, if of its division. deliberation continued any, jury significance, for some four additional hours over two before the verdict was days penalty reached. Defendant to no evidence of undue or influence on points pressure v. jury from the trial remarks. Keenan resulting judge’s (See People 478, 550, (1988) Cal.3d 758 P.2d 1081].) According [250 ly, we decline his invitation to reverse the judgment.21 XXXIV. The Trial Court's to Jury Refusal Inform of Its Failure to Reach a Consequences Penalty Verdict When jury asked what would if it failed to reach a happen XXXIII, penalty verdict factual (see the court description pt. ante), declined to answer and admonished the not to jury as to the speculate error, of its failure consequences Defendant agree. claims arguing the court was what obligated explain would the circumstances happen by the We posited jury. already have rejected this contention. v. Belmontes, 45 Cal.3d 744 at supra, 813-815; see also v. pp. Allison People 879, (1989) Cal.3d 908-909 1294]; Bell, 49 Cal.3d at 552-553.) He offers no basis for pp. reconsideration decisions, of our other than a reference to his an separate argument about instruction, erroneously typed which we consider below. Defendant has justifed reversal on this ground.

XXXV. The Erroneously Typed Penalty Instruction

Defendant submitted a special instruction No. that the requesting jury be “If charged you as follows: have a reasonable doubt as to which death penalty impose, or life in without the prison possibility parole, you must give defendant the benefit of that doubt and return a verdict fixing of life penalty prison with the possibility (Italics parole.” added.) 21The Supreme United States Court has pursuant articulated a different rule supervi to its is, however, power

sorial over the federal courts. Its rule not a matter of federal constitution Phelps al law and binding (See hence is not on us. 484 U.S. Lowenfield 568, 578-579, & fn. 3 L.Ed.2d 108 S.Ct. fn. & Rather than a blanket rule of inquiry reversal for effect, into the numerical jury, division of the benign no matter how its prefer case-by-case we approach which examines whether inquiry impermis resulted in noted, sible coercion in the case at hand. As we have there no such coercion here.

228 face the instruc- proposed is obvious on the of concede what parties italicized word clause a error—the tion: the final contains typographical to same referred are the “with” read “without” so that the penalties should sentence, i.e., life in without the in both the death or prison possibil- of parts in read its correct jury of the instruction was to the ity parole. Although form, i.e., included in both of were possibility parole” the words “without clauses, into the room jury version of the instruction taken the typewritten retained error. the of its to court the failure

When the asked the about jury consequences XXXIII, it made ante), also pt. on a verdict discussion agree (see penalty of It “Please the noted page a second asked the court to explain request. it in the record contains the note as Although jury’s appears instructions.” instructions, the trial court no or attachment of showing page reference the by jury referring stated on record without counsel that was objection the No. 60. to the version of instruction special typewritten sides, the court the With the of both declined acquiescence explain instruction, is And we instruction itself stating: self-explanatory. “[T]he mind, be to reach a would that in that able decision.” you might with hope have of error Neither nor the court been aware appears counsel jury’s of at the time of the version the instruction typed question. discovered after jury The mistake was discharged.22 a fair trial because the jury,

Defendant claims he was denied be instruction that defendant could erroneously believing from the mistyped it a death rather than one released on have returned verdict might parole, i.e., of any possibility have life without would preferred, imprisonment in the In the likelihood that the was misled order determine parole. defendant, instuction by manner we must examine the mistyped suggested as a and in trial of the other instructions the context defendant’s light Brown, at at p. whole. 479 U.S. L.Ed.2d (California p. [93 defendant, by under requested its submission Although prepared instruction was error. was no or indication in the record these circumstances was not invited There evidence 907, (1990) intentionally (People Marshall 50 Cal.3d that defense counsel caused error. 307, 676]; 334- v. Wickersham 32 Cal.3d Cal.Rptr. 790 P.2d [269 Indeed, have such a tactic would been inconsistent P.2d strategy, clearly argument, emphasizing grim reali with the illustrated in final defense specific finding imprisonment possibility parole. of life The trial court made ties without perceive no disturb that the error inadvertent and not invited defendant. We basis to Therefore, finding. we consider whether the error in the de will inadvertent instruction of a fair v. Hernandez prived defendant trial. may validity initially instruction re review the of an 1289] [“We seeking objecting to instruction quested the defense where counsel’s actions in or not neglect simply [Citations.]”].) constitutes or mistake. 756]; v. Rivera 940]; Cal.App.3d People v. Andrews P.2d its con- jury the did merely specify

In for an asking “explanation,” cerns, may may for its or if about the instruction. The reason any, inquiry any on the record been the error. No juror expressed not have typographical receive parole. generally belief or concern that defendant might that necessarily jurors for an did not signify phrased request explanation an contrary, belief as to To the any sentencing options. espoused particular fully was jury cognizant examination of the entire record reveals that the im- and life only that there were two available sentencing options—death without of that its solemn prisonment parole—and responsibility possibility was to choose between them.

First, the the verdict that of the instruction and language options suggest the understood the task at hand and its In the first jury both consequences. instruction, correctly the were stated as two part sentencing options death and life The jury without of was imprisonment possibility parole. directed to the the it give any might defendant benefit of reasonable doubt error, have “as to which Because of the penalty impose.” typographical the balance of the instruction is both inconsistent and logically physically The inconsistency is one cannot impossible. patent: logically give the benefit of a doubt between arising by two specified penalties imposing third that is less severe than either of the first two. penalty obviously

The physical arises because the was two verdict impossibility jury given forms was directed to return only one of them as its verdict. penalty “We, cause, One form stated: the in the the jury above-entitled determine Imprisonment Possibility is Life appropriate penalty Without of and we so fix the in The other punishment.” (Emphasis original.) Parole contained identical language except was specified penalty Thus, (Emphasis original.) reasonably could not have “Death.” understood the instruction as of a third verdict— introducing prospect directions, instructions, life with parole—as which it had no or verdict form, form. The jury’s decision to return the “Death” properly signed dated and attested to all 12 foreperson jurors indi- upon poll, cates that it had no reasonable doubt that death proper penalty be imposed defendant’s case.

Second, end, from of the trial to its beginning the sentencing options of death or life without the imprisonment were possibility parole correctly dire, and continually to the In presented jury. addition to individual voir there were over references to the by the court and sentencing options case, possibili- without of life imprisonment In each the option counsel. jury. stated to the correctly ty parole he dire, whether was asked juror each prospective individual voir

During and life imprisonment of death sentencing options consider the or she could sentencing phase began, When the guilt parole. without possibility instructions introductory both correctly again presented were options two At the penalty phase, statement. in defense counsel’s opening and to life referred they imprisonment Together for defendant. lawyers argued 28 times. of some without possibility parole that defendant reality the devastating focused on

The defense argument Counsel him to death. if did not sentence jury the would never leave prison the without of life imprisonment a look at the sentence stated: “Let’s take Honor, it His exactly says. what That sentence means of parole. possibility the illustrated Giffen, He then you graphically on that.” will instruct Judge of a series Positing of freedom. life possibility of a without prospect of his decades—1990, 2000, his own and that age 2020—he gave that defend- reminded the jury of each decade and children at the beginning a receive that defendant would in He observed ant would still be prison. who, in con- or Sirhan Sirhan than Charles Manson more severe sentence of defendant, with possibility to life imprisonment were sentenced trast to who, of regardless defendant with jury He invited the empathize parole. of his verdict, the remainder in after spending would die jury’s prison the The refrain was repeated the size of the box. jury life in a cell less than half defendant severity punishment the to dramatize again again death. him to if the did not sentence jury receive even inevitably would pos- life without imprisonment instructions mentioned The phase penalty the times, time. For correctly example, it each of sibility stating parole and their sentencing the of its jury options informed only trial judge are “You effects, other possibilities: to consider no jurors it admonished verdict, it says. means what exactly that that life without parole, instructed are you life. And the rest of his be for imprisoned That the defendant shall defend- it That the exactly says. verdict means what instructed that a death rely would be to upon conclude otherwise you be executed. For ant will oath as your juror.” be a violation or and would conjecture speculation of that the for penalty of this state And: “It is the law added.) (Italics or shall be death degree in the first found of murder guilty in any of parole for life without possibility confinement in the state prison in has been this case charged special- in circumstance case which special you “The choice make is And added.) again: found to be true.” ly (Italics bad, of life but the punishment between between good not simply And added.) of and death.” (Italics without possibility parole imprisonment death, must be you persuaded “To return a each finally: judgment with the mitigating is so substantial comparison evidence aggravating without (Italics it death instead of life parole.” circumstances that warrants added.)

Thus, in this case all of the references to possible penalties counsel, refers instruction—incorrectly only court and one—the mistyped Even that instruction stated to life in with prison possibility parole. clause. There is no reason- correctly two alternative its penalties opening in favor of a able that the all of these references jury ignored possibility which, noted, have both an illogical impossi- as we was single exception ble verdict.

Third, even the instruction read to the challenged correctly jury, error remained instructed that only on typewritten copy. text as or the of the instructions read to it controlled over delineations modifications of instructions it As any might request. written copies above, discussed all of the correct and jury instructions read to the were consistent as to only two sentencing options. the on the

Focusing of the erroneous instruction as a rea specific language juror sonable would and the context of defendant’s trial considering (Cali Brown, 479 U.S. at supra, 939-940]), L.Ed.2d at we p. pp. [93 fornia conclude that there nowas “reasonable likelihood” the inferred that jury defendant receive if he might (Boyde were not sentenced to death. parole California, 329-330, 494 U.S. at p._ L.Ed.2d at S.Ct. pp. [108 at p. 1198].)

To bolster his claim of defendant on the of a prejudice, relies affidavit single juror to the trial presented court on his motion for new trial. The instruction, affiant his own confusion reports as to the but adds that two other jurors the view that the expressed reference to life with was a parole mistake. outset,

At defendant’s reliance on the affidavit is misplaced. may verdict not be by juror’s into the mental impeached inquiry “[A] or subjective and evidence of what the ‘felt’ reasoning processes, juror or how he understood the trial court’s instructions is not competent.” (People v. Sutter (1982) 134 829]; see also Evid. Cal.App.3d [184 Code, 1150; Ballard v. Uribe 575-578 § J., P.2d Tanner v. (Mosk, cone.); United States 624] 90, 103-110, U.S. L.Ed.2d 107 S.Ct. 2739].)

The affidavit relied on by defendant refers to the mental principally i.e., of the processes its or lack of jury, understanding understanding the court. given available to it under instructions sentencing options have extent, matter and should affidavit inadmissible To this contains the trial court. disregarded by been considered, convincing not provide

But even if affidavit is it does juror was juror the affidavit argument. signed for defendant’s who support instruc- He confusion about the some highly equivocal. reported personal tion, change have caused him to only might but concluded that clarification above, dis- correctly that jurors vote. As he admitted two other his noted it out to their colleagues. cerned the in the instruction and pointed error from the already events apparent The balance of the affidavit reiterates record, for at the time the clarification that stood ten to two death e.g., and, days, two after four of additional deliberation over sought hours an infer- permit It that would says nothing reached unanimous verdict. or the final verdict was attributable change probably ence vote admissible, Thus, it does error. even if the affidavit were the typographical for defendant’s that the argument penalty substantial provide support By verdict based on a as to misconception sentencing options. phase trial, effectively for new the trial court discounted denying motion affidavit. We will do likewise. erroneously was not this

Although particular prejudiced instruction, care lawyers we admonish trial take judges special typed First, instruc- typewritten to avoid this kind of serious mistake. potentially carefully be tions sent to the room should checked jury proofread Second, of an a an jury explanation counsel and the court. when requests instruction, inquiry ascertain the nature of the judge the trial should precise If the to the as these simply referring jury given. procedures before charge here, mistake have been undoubtedly had been the would followed typing at earlier stage. detected an above, re-

For the the error defendant’s reasons stated typographical him of trial at the phase. instruction did a fair penalty quested deprive at the XXXVI. Errors and Harmless Error Cumulative Effect of Penalty Phase above, defendant’s conten reject

For the reasons discussed we also errors requires effect of asserted penalty phase tion the cumulative all of nearly assign reversal of sentence. We have defendant’s rejected his The evi Where error it was nonprejudicial. ments error. was present, the at focused on dence the were argument penalty phase properly factors; as substan his crimes well as potentially mitigating defendant and jury’s evidence selection of the death penal- tial credible supported ty; law; instructed on the and no event or occurrence correctly defendant of a fair trial. deprived

To the extent there was error in the it was harmless phase, penalty beyond reasonable doubt. The heinous nature of defendant’s crime and his criminal for prior convictions violent acts have convinced us that the ver dict would not have been otherwise even in an error-free trial.

Turner, 714; 50 Cal.3d at Hamilton p. XXXVII. The Trial Court’s on the Motion Ruling for Modification of Death Sentence Defendant’s

Defendant the trial court’s challenges rejection statutory of his 190.4, motion to modify sentence under section subdivision (e), arguing the court failed to exercise considered irrelevant independent judgment, factors, and factors in improperly weighed its deci specified reaching sion. The record does not support challenge. motion,

In on ruling the trial court summarized the penalty phase evidence and stated: sentencing function is inherently moral and “[T]he normative one. The court’s sentencing and discretion under the power legis- lative guidelines is to decide the for the appropriate penalty particular offense and offender under all the relative circumstances.” The court’s re- marks reflect the exercise of independent judgment.

Similarly, there is no indication that the trial court undue gave emphasis to any of the factors it analyzed.23 Nor did the court seek to convert absence of mitigation into aggravation.24 There was no error in its 23There is no suggestions merit defendant’s that the trial court somehow “double count robbery-murder ed” his of Van Zandt in considering aggravating circumstances or that it disregarded evidence of his mental suggestion, condition. As to the first the court did no crime, more than comment on the acknowledged circumstances of the an aggravating factor. 190.3, (§ (a).) factor nothing It did mechanically to intimate counting mitigating that it was aggravating factors. suggestion, As to the second the court considering stated that it was condition, defendant’s childhood and mental although it found that defendant did not suffer 190.3, from an extreme mental (§ or emotional (d).) disturbance. factor The trial court was weigh entitled credibility of the relating background evidence to defendant’s and men Morales, tal condition against and to balance (See, this other e.g., People relevant factors. v. 527, supra, 572-573.) 48 Cal.3d It committed no error. 24Defendant also faults the court converting for justification absence of moral or 190.3, (§ extenuation for defendant’s conduct (f)) factor into an aggravating circumstance. (People (1988) 1006,1031, v. 185, Lucero 44 Cal.3d fn. Cal.Rptr. 15 1342].) 750 P.2d He [245 ignores the context of its remarks. The trial court observed that the participate victim did not in the conduct that led to his death justification and that there was no moral or extenuation for defendant’s conduct. It then concluded that (factor (f)) the absence of this factor fact that the crime was committed disregard “out of total personal for the property and the

234 Malone, 47 v. modify supra, motion to sentence. of the

disposition 573, 604, 1, Cal.Rptr. v. 45 Cal.3d 58; (1988) Cal.3d Silva People [247 754 P.2d Penalty Death Law the 1978 Constitutionality

XXXVIII. law the 1978 death penalty a series of challenges Defendant raises Medina, 870, 51 Cal.3d v. supra, rejected. (People which we have previously Allen, 1222, States Su- The United 1285.) 42 Cal.3d 911; v. supra, People California, v. (Boyde supra, also the 1978 law. Court has upheld preme Brown, 316, v. 110 S.Ct. 1190]; U.S. 370 L.Ed.2d [108 California defendant’s reject challenges. U.S. We therefore 538.) Arbitrariness, Discrimination, and Alleged Disproportionality XXXIX. in Death Sentence Defendant's to the that his sentence is

Finally, disproportionate defendant maintains case, in this disproportionate on the other “principals” penalties imposed back- character and in of defendant’s light the circumstances of the crime of the penalty because of the infrequency and unconstitutional ground, that “compara- cases. Defendant maintains robbery-murder single-victim of de- is to determine necessary proportionality tive sentence review” fendant’s sentence. intercase review entitled to

Initially, comparative defendant is not sentence, an examination of those based on statistics or on of his whether sentences. murders received lesser more serious arguably cases which 262, 1756]; 107 S.Ct. 481 U.S. 279 L.Ed.2d (1987) (McCleskey Kemp [95 29, 35, 104 37, 42-43 & fn. L.Ed.2d v. Harris 465 U.S. Pulley (1984) [79 S.Ct. 871].) have, however, the individual circumstances

We examined Lynch (1972) re (In sentences. reviewing capital offense and the offender 217, v. Dillon 410, 503 P.2d 921]; People 8 Cal.3d 424-429 Cal.Rptr. [105 see also 697]; 668 P.2d Babbitt context, Read in aggravation. to a factor in personal well-being of the victim” amounted first, justification for this crime convey messages: there was no court’s remarks two distinct second, commission; the arising manner of its mitigating factor from the and therefore no property life and a indifference to surrounding circumstances of the crime showed callous factor in permissible of the crime are a aggravated its commission. The circumstances 190.3, Although might have chosen its words more aggravation (§ (a)). factor the trial court by supported the evidence. carefully, amply those circumstances in its evaluation is its use of Coleman, p. 159.) (People supra, error. 48 Cal.3d at Again, there was no no relief. His crime was Such an examination affords defendant 253].) to way After the victim had out of his gone help heinous and brutal one. him viciously attacked and killed defendant and his companions, a defenseless victim over the in order to steal his van. He struck repeatedly embankment; and then hit him rock; again head with a rolled him down an a stick he There no conceivable get provocation with when tried up. for the offense. Defendant boasted about his crime to at least three people and said he it He has a record of and again. kidnapping would do prior circumstances, is Under all of the there attempted rape. or of the death nothing arbitrary unfair about the imposition penalty.25

Disposition above, For the reasons there error in stated was no the prejudicial pro- affirm We in ceedings entirety. below. the of death its judgment Panelli, J., Kennard, J., Arabian, J., J., Baxter, concurred.

MOSK,J. dissent. —I error,

Defendant’s trial was rife with under the United States Constitu- law, tion as well as state on both the issue of that of bearing guilt and penalty.

The majority a number of violations. acknowledge most Among serious was the instruction at the typewritten that directed penalty phase life with impose imprisonment if it had a possibility parole reasonable doubt as to the appropriate punishment. majority’s Despite rationalization, efforts at this error may well have been a factor in the jury’s ultimate Certainly, decision. the jurors—who revealed that were they divided on penalty—were Both of altogether perplexed. their questions the court asked for an explanation instruction—the first impliedly assistance, second only Not did the court it expressly. give no 25We decline defendant’s comparing invitation to undertake a review of his sentence it plea bargains to the companions. received his female prosecutorial two exercise of dis obtaining cretion in making evidence charging pertinent decisions is to a review of a Belmontes, capital (Adcox, 238-239; sentence. supra, pp. 47 Cal.3d at supra, 45 Cal.3d at McLain, 818-819; pp. People v. 121.) 46 Cal.3d But even if we were to make defendant, comparison sought by it would afford him no benefit. The fact that Avette Barrett plead guilty was allowed to (her to an automobile theft sentence is not shown record) charges and that dropped against were change Allison Eckstrom does not the nature of the offense or the offender this case. Defendant planning did the bulk of the and all of killing. The women struck significantly no blows. Their participation lesser in the charged crimes and other age justify factors such as differences difference treatment. Douglas a self-explan- The result was

insisted the instruction was “self-explanatory.” error. atory the instruc- accomplice

I find other violations in addition. For example, Defendant’s defense was nonpartici- tions at the were guilt phase improper. crimes, but not he the that it was who perpetrated pation—specifically, The accom- his Avette Barrett and Allison Eckstrom. rather companions defense. told the unfairly They instructions undermined the plice as a matter of law—and Barrett and Eckstrom were aiders and abetters fact, was, in that defendant thereby necessarily perpetrator. implied conclusion, view, In In reversal is at my arriving opposite required. numerous errors state that even considered majority together, when (1967) are under the standard of Chapman nonprejudicial California test, 824, 24 Under that U.S. 18 L.Ed.2d 87 S.Ct. A.L.R.3d 1065]. [17 harmless, the court must “before a federal constitutional error can be held beyond to a belief that it was harmless a reasonable doubt.” be able declare L.Ed.2d The “burden of as (Id. 710-711].) proof” at at p. pp. [17 error, error, . . . “Certainly rests on the constitutional People. prejudice other than the it a burden show casts on someone person prejudiced error beneficiary harmless .... of a constitutional that it was [is [T]he error of beyond a reasonable doubt that the complained required] prove (Ibid. L.Ed.2d at p. 710].) did not contribute to the verdict obtained.” [17 record, errors I cannot declare a belief that the numerous On this simply at trial were harmless a reasonable doubt. The beyond People defendant’s certainty, have to that of high degree not carried their burden proving, to the result. That does not surprise. that the violations did contribute above— Some of the defects—such as the instructional noted improprieties It is went to the heart of the determination of very jury’s guilt penalty. sure, some more toler- to be that the errors were harmless under arguable, ant But such a test does not here. apply standard. is often a analysis of harmless-error

No doubt principled application court to resolve the elusive reviewing question difficult task. It calls on a satisfied may who be judges personally It also individual prejudice. requires to be may with to set that result aside for what appear the outcome of trial as a system reasons integrity legal somewhat abstract implicating whole. in order to of death that have been taint- salvage

Regrettably, judgments error, years. court has often failed this task in recent (See, e.g., ed this 802 P.2d Wright 221]; People 849]; v. Whitt 51 Cal.3d 620

237 1, 129];People 502 778 P.2d Bell Cal.Rptr. v. People (1989) [262 242, 1330]; 771 P.2d People Cal.3d 935 (1989) Cal.Rptr. Sheldon [258 208, 1294]; People 771 P.2d 48 Cal.3d 879 (1989) Cal.Rptr. v. Allison [258 P.2d 1109].) 48 Cal.3d (1989) Robertson [255 a reasonable beyond harmless In find that an error at trial was order to doubt, record as a whole must review the obviously an court appellate of the circumstances.” totality under been termed “the what has generally Scalia by Justice Antonin analysis This is the of a subject thoughtful point in Law as a Law Rules (1989) an article entitled The Rule of that, at recognize U.Chi.L.Rev. 1175. He declares that “we should cogently . . issue must be decided says where an that. judge point appellate [an] circumstances, of all the on the basis of the of the or totality balancing involved, factors he a finder of fact more than a deter to resemble begins miner of law.” at He adds that “To such an (Id. 1182.) adopt approach p. ... is that is not a effectively uniformity important conclude particularly . . . .” in objective (Id. contrary, uniformity at To the p. 1179.) achieving law, courts, the conduct of trial are the func monitoring properly court, tions of this that cases. only court reviews appellate capital I Because cannot conclude that the numerous errors at both the guilt beyond of defendant’s trial were harmless a reasonable penalty phases doubt, I entirety. would reverse the in its judgment BROUSSARD, J., with Justice Mosk that defendant’s Dissenting.—I agree trial was with error and is fraught on incapable supporting judgments however, either or I write guilt penalty. separately, emphasize preju- dicial nature of two at errors—one and one at the guilt phase penalty phase—that defendant from a fair trial. prevented receiving

I. Barrett, he, Defendant’s entire theory defense rested on the that had killed the victim. The testimony of Barrett and of her sister Eckstrom that defendant, them, rather than either of had committed the murder was the most perhaps significant testimony that was presented support case. In prosecution’s return for their the sisters were both testimony, immunity offered from for crimes associated with the victim’s prosecution that, murder. Defendant contends of the conditions under which the light sisters were their granted immunity, testimony should not have been admit- ted at trial and that the erroneous the testimony admission of prejudicial. are governing legal principles well established our cases. As past

we v. Garrison explained 768-769 immunity “A one may grant prosecutor 419]: testify fully she crime the condition he or charged upon with a jointly 102 Cal.App.2d involved. v. Green fairly as to the facts immunity When the grant places P.2d fashion, however, in a testify under to particular witness strong compulsion inadmissible. is the self-interest and is testimony the tainted witness’s [438,] Cal.Rptr. 133].) v. Medina [(1974)] Cal.App.3d from the . . . ... not that what is expected . . . ‘What is is improper [fl] case, but that . . be to the testimony informant’s . will favorable People’s or rendered be confined to a formulation testimony the must predetermined result, say that is a conviction.’ only given if it to produces acceptable [Citation.]” and others’ that Barrett entirely

Defendant’s case relied on his assertions Eckstrom victim. into Barrett and killed the The entered agreements each of the of representation the truth of upon were conditioned expressly vic- any injuries “that not inflict personally upon the sisters she did [the testify The also that each women would agreements provided tim].” exami- truthfully including at all proceedings preliminary “completely surrounding and trial all of the facts and circumstances concerning nation In this “the offering testimony, prose- the return for killing the [of victim].” all Avette Barrett against move to dismiss [agreed charges pending cutor to] subject auto Eckstrom was not even [felony theft]”; with the of exception circumstances, beyond question for auto theft. Under these it is prosecution initial in the immunity agreements improper. that the condition began, The the the examinations agreements signed day preliminary were both 1986. not in the January majority opinion, mentioned Though examination. under at the preliminary Barrett and Eckstrom testified oath by the the Eckstrom were reminded stand both Barrett and Upon taking after the at one immunity agreements; point court of their under obligations defendant, the several incriminating Barrett paused response questions the to the recess time judge suggested court took five-minute which during terms that “maybe [immunity] want to over the of you’ll go prosecutor, aware of and Eckstrom well with her.” Thus both Barrett were agreement Both immunity the terms and conditions of their agreements. respective defendant, they, at that sisters testified examination preliminary killed the victim. had shortly Barrett day

On 1987—the 30th of trial and before May Barrett’s testify—the immunity agreement: called to amended prosecutor I, Rossi, Gary Special “Amendment on 5-26-87. agreement plea dated 1- for to amend the County, agree plea agreement Prosecutor Sierra strike number that 21-86 to condition one [regarding representation to guarantee done This was injure [de- did not physically Barrett victim]. immunity recognized The prosecutor a fair trial.” special fendant] to compromise and threatened January improper 1986 was agreement to a fair trial. defendant’s access the immu amendment prosecutor’s hold that majority special in the agreement: error to cure potential was sufficient

nity agreement remaining only condition because testimony was admissible “Barrett’s truthfully.” (Maj. testify that she completely at time of trial was existed, ante, large circumstances” “corroborating Because 191.) at opn., p. that the admission further hold testimony, they form of Barrett’s ly original the fact that the testimony despite was not prejudicial Eckstrom’s at 191- (Id. pp. never removed. was immunity agreement condition of the have testimony should the sisters’ are Neither of majority wrong. The 192.) admitted. been exam- the extensively articulately during preliminary and

Barrett testified to defendant had encouraged that she and Eckstrom ination: she claimed van, length testified at could steal his they “knock out” the victim so that murder, and described the circumstances to the victim’s leading up about murder, of defendant that the sound e.g., detail the incidents of the graphic watermelon, a canta- him . . . like a the victim “like hitting hitting was similar. testimony Eckstrom’s was loupe.” remained because no restrictions majority

The assert that unacceptable trial, testify freely, able to on Barrett she testified at she was therefore when immunity the testimony by original and that such would not be tainted testimony. her examination at the time of agreement place preliminary from the In to release Barrett This assertion is insupportable. purporting immunity special prose- initial condition of her agreement, unacceptable for should immunity cutor did not offer Barrett from prosecution perjury at the materially her at trial differ from that offered testimony preliminary the condi- offer to amend examination. Neither did the special prosecutor her to testify completely tion of Barrett’s immunity agreement required as as at trial. truthfully at the examination well preliminary failure to take these corrective The of the special prosecutor’s import at testify truthfully In Barrett not free to trial reality, actions is obvious. was her but in a manner consistent with only testify preliminary was free to invalid initial clearly examination tainted testimony, which her examina- testimony condition. If her trial conflicted with preliminary tion Barrett would have been liable for for testimony, prosecution perjuring Furthermore, at least one of the herself with to respect proceedings. her testimony

most if her trial conflicted with significantly, preliminary for testimony, examination Barrett would also have been liable prosecution since, amendment, im- for the victim’s murder even after the midtrial munity continued to be conditioned Barrett’s agreement upon promise testify truthfully at both the examination and completely preliminary trial, trial. If inconsistently clearly she had testified at could prosecutor revoke immunity testify on the that she had failed to agreement ground at truthfully either the or the trial. preliminary hearing Thus, assertion, contrary to the belated majority’s prosecutor’s amendment of the not cure the of its immunity did agreement agreement and, revision, coercive feature Barrett was impermissibly despite placed under “such a testify deny fashion as strong compulsion particular a fair trial.” v. Allen P.2d

Nor can I testimony with the that Eckstrom’s agree majority’s argument entered into Eckstrom prejudicial. immunity agreement to the examination remained in force the trial. prior preliminary throughout In view of conclusion that my testimony Barrett’s should have been exclud- evidence, I ed from cannot in the assertion that the admis- join majority’s Indeed, sion of testimony deny Eckstrom’s did not the defendant a fair trial. defendant, as only Eckstrom was the witness to the murder other than facts, as her defendant’s version of the I testimony flatly rejected conclude that there were insufficient circumstances” Eck- “corroborating supporting strom’s testimony to render its into harmless. admission evidence

It is beyond my majority blithely that the can so conclude comprehension that there was no error as to Barrett and no as to Eckstrom prejudice without a full disclosure of virtually analysis these facts and with no of the substantial ma- issues the As the legal presented by immunity agreements. demonstrates, jority the law in this area is well settled. opinion reasonably Yet a cannot be summary examination of this record discloses facts that easily the majority’s carefully with discussion of the law. After squared facts, those I conclude that the entered into weighing immunity agreements both of the Barrett and Eckstrom were and that the effect improper was agreements prejudicial.

II. 15, 1987, July On the retired to consider the evidence jury presented received, the of trial. The in during penalty jury defendant’s phase writing, instruction in special No. which read “If have a pertinent part: you reasonable doubt as to which to death life or without the penalty impose, of must possibility parole, you the defendant the benefit of the doubt give of the possibility in with life prison of the fixing penalty return a verdict Life was error. this acknowledge, majority As the added.) (Italics parole.” defendant. to not available with was parole deliberations, two questions submitted jury the six hours nearly

After on cannot decide this % jury “In the event The first asked: to the court. imposed?” the sentance would be of this case what [szc] the phase penalty instruc- the. noted page explain the court “[p]lease The asked that second its No. with to instruction referred special tions.” The noted page to life with parole. erroneous reference dead- a possible in this case foresaw that the jurors

These facts indicate In- a deadlock. of such the consequences concerned about lock and were were the jury, jurors to the deed, its questions at the time the submitted jury defendant. to impose upon the penalty 10 to on appropriate split, to a retrial would lead that a deadlock evidently unaware jury law that the have believed may another jury, before phase penalty jury in of a the court lieu to be sentence imposed prescribed specific Further, confused as to also jury apparently determination. it, for an explanation since it asked alternative sentences available 60. instruction No. special nothing dispel did jury’s

The court’s questions responses first, that statutes it responded To the jury’s properly misconceptions. “[t]he able to reach a event folks aren’t you for that what provide happens decision, Yet as to the at this time.” you but I can’t tell what is point conditions it that under certain instruction informing mistyped with the possibility of life prison must return a verdict fixing penalty nor it neither discovered not respond properly; of the court did parole, Instead, that “the instruction jury error. the court told the corrected the mind, be you might that in that itself is And we with hope self-explanatory. able to reach a decision.” The the instruction was erroneous. opinion

The concede that majority concludes, however, as a instruction can be dismissed that the mistyped error, from other the have realized jury harmless since must typographical only trial that there were instructions and numerous comments the during that the should jury and life without parole, two death possible penalties, consider. error test. In reviewing penalty

The the harmless majority misapply case, standard that we a death the harmless error penalty requires phase into there is a ‘reasonable error possibility’ “whether inquire [that the] 432, v. Brown 46 Cal.3d 447 affected a verdict.” (People (1988) [250 242 604, 758 P.2d In a has based juror whether

Cal.Rptr. determining considerations, his vote on we must all cases into improper inquire a jurors “whether the instructions tend to such on to reach impose pressure verdict that are uncertain of the of the accuracy integrity jury’s we instructions stated conclusion. This determination of whether the ‘operate favor of considerations displace independent judgment jury is best characterized as compromise expediency’ perhaps requiring assessment of effect of a instruction on the generalized given the potential fact into actual rather than as an finding process, attempted inquiry volitional of a verdict.” v. Gainer jury (1977) quality particular 835, 861, 997, 97 A.L.R.3d citation 73], [139 that, error, I believe absent the instructional there is reasonable omitted.) that the not have arrived at a unanimous jury would possibility opinion. Incredibly, jury by assert that the was not confused majority special instruction No. 60: examination of the entire record reveals that the “[A]n jury fully only that there were two available cognizant sentencing and life without the options—death imprisonment possibility parole—and that its solemn was to choose between them.” responsibility (Maj. opn., ante, obviously at italics in But the was confused p. original.) jury about the instruction’s life with the reference to special possibility parole since it instruction No. to the court’s atten- specifically brought special tion for further confusion about the instruc- explanation. jury’s special Instead, tion was court. that by the instruction dispelled stating the court assured the that the instruction “self-explanatory,” jury special 60 was No. correct.

A fundamental is judicial system underlies our entire assumption that the follow the court’s instructions. Delli Paoli v. United jurors (See 278, 285-286, States 294], U.S. L.Ed.2d 77 S.Ct. (1957) [1 overruled on other in Bruton v. United States 391 U.S. 123 grounds L.Ed.2d 88 S.Ct. v. Bonin 1620]; 687, 758 P.2d has 1217].) Particularly jury when spe- instruction, focused an erroneous it is cifically simply upon improper assume, does, affected majority as the that the was not opinion instruction, Indeed, error. to affirm an erroneous when the court proceeds attention, even the the instruction to the court’s we must though jury brings the the concluded jury the likelihood—that recognize possibility—indeed, duty reject any that it had a to the instruction as it was written and accept conflicting views. case,

In this the of instruction No. it was as submitted import special to the was Yet it was however the instruction jury, ambiguous. prejudicial who jurors Individual were doubt about the to interpreted. penalty for led into voting have been or life without parole—may impose—death doubt, their the law required if adhered to they on the belief that death the instruc- Alternatively, life with the of parole. them to vote for possibility the if existed because to mean that “doubt” could have been interpreted tion verdict—i.e., if the dead- jury on a unanimously agree could jurors life a verdict of a to return required locked—then the as whole jury coerced effectively Thus would be jury the of the parole. with possibility allowing could not countenance jurors into if the unanimity dissenting either illogical interpretation the of However parole. prospect law, either the of the workings who are familiar with may appear persons that the court submitted of the instruction interpretation is plausible and, follow. jury directed that the jury’s the the jury upon inquiry, Furthermore, connection between the fail to see the majority potential with jury’s regard the erroneous instruction and the simultaneous inquiry deadlock. The did not need to jury jury interpret of consequences noted, the instruction in order to defendant. As literally special prejudice the effect of a deadlock on defend- jurors obviously were concerned about feared, future; may ant’s one or more have of the erroneous jurors light instruction, that if the was unable to arrive at a unanimous decision jury court be statute to which the court might required, unspecified referred, to sentence life of defendant to with imprisonment possibility view, my In this is a even a of parole. likely, plausible, perhaps explanation why the asked in the event of a jury what sentence would be imposed deadlock and for an 60. instruction No. explanation special

The test for harmless error at the of a death case penalty penalty phase us from a death there a reasonable precludes affirming whenever is penalty that an error have In possibility may affected the verdict. of the jury’s light literal instruction meaning special No. court’s statement the instruction was I conclude that a reasonable self-explanatory, possibility exists that the instruction “to mistyped operated displace independent judgment favor of compromise expediency” considerations (P v. Carter eople

P.2d 353]) and led one or more to rule in favor of death improperly jurors aas result of a of the law. misunderstanding

I would reverse the as to judgment penalty.

III. It is observed that there is no such frequently as a trial without thing case, however, In error. this the errors were and their effect egregious I must therefore dissent from the prejudicial. entirety majority’s opinion. Mosk, J., for a was denied 1991.

Appellant’s petition rehearing May Broussard, J., were of the that the should be granted. opinion petition

Case Details

Case Name: People v. Morris

Court Name: California Supreme Court

Date Published: Mar 28, 1991

Citation: 807 P.2d 949

Docket Number: S004781. Crim. No. 26415

Court Abbreviation: Cal.