Lead Opinion
Opinion
—Defendant Jose Amaldo Rodrigues was convicted by a jury of one count of murder (Pen. Code, § 187),
We find no prejudicial error at the guilt or penalty phase of defendant’s trial. The judgment is affirmed in its entirety.
I. Facts
A. Guilt Phase Evidence
1. The Prosecution Case
Epifanio Zavala testified that in May 1987, he was living with his older brother Juan Barragan in an apartment on the second floor of a two-story building at 1100 Sevier in Menlo Park.
Although Zavala and Barragan previously worked in restaurants, they did not have jobs the first week of May 1987. Barragan sold small amounts of cocaine and heroin to help make a living. Zavala sometimes helped out by giving drugs to customers. One of those customers was Cynthia Ontiveros,
Ontiveros testified to the following. Although she lived in Hayward with her boyfriend, Richard Lopez, she was in love with Juan Garcia. At approximately noon on May 4, 1987, Ontiveros left Hayward to buy some heroin from Zavala at his apartment. Zavala sold her approximately one gram of heroin for $100.
At approximately 5 p.m. that evening, Ontiveros was selling heroin in front of the El Tanampa bar on B Street in Hayward. Garcia drove up in defendant’s car, with defendant in the passenger seat.
Ontiveros, Garcia and defendant then planned how to get the drugs from Zavala and Barragan. They agreed that Ontiveros would go to the apartment first because the brothers knew her and would open the door for her. Once the door was open, Garcia and defendant would rush in and scare the brothers into giving up their drugs. Garcia asked Ontiveros if Zavala and Barragan had any weapons, and she responded that she had never seen any and did not think they had any. Ontiveros apparently thought that the brothers might be beaten or roughed up a little bit, but did not expect any further violence. Ontiveros, Garcia and defendant agreed to use defendant’s car, a beige Lincoln, to drive to the brothers’ apartment.
Sometime around 11 p.m., Ontiveros, Garcia and defendant arrived at the apartment. Garcia was dressed in black pants, black shoes and a black jacket. Defendant wore a beige long-sleeved jacket. Garcia, who was driving, stopped the car on Sevier Street, some seven or eight houses down from the apartment. Ontiveros went to find out who was in the apartment. It was agreed that Ontiveros would let Garcia and defendant know if the brothers were alone.
Ontiveros went upstairs to the apartment and knocked on the door. Zavala let her in. Once inside, Ontiveros saw Barragan asleep on the couch but did not see anyone else. Zavala told Ontiveros that he had not expected her to return, and that he had no more drugs. After some discussion, Zavala indicated he would give her some money for a “date” if she would stay. After agreeing to this, Ontiveros said she was going to tell her friend who was waiting for her in a car. Zavala walked downstairs with Ontiveros, then went to his own car and locked it while she kept walking. Zavala returned to the apartment and waited for Ontiveros.
After Zavala went upstairs, Ontiveros walked to defendant’s car. She told Garcia and defendant that the brothers did not have any drugs, but that they did have money. When Garcia asked how much money, Ontiveros replied she did not know, but said they must probably have “a good amount” because Zavala had not yet bought more drugs. Ontiveros, Garcia and defendant agreed to proceed with the plan to rob the brothers, but to get money instead of drugs.
As planned, Garcia and defendant went up the back stairs. Ontiveros walked up the front stairs, and knocked on the door. As Zavala let her in, she saw that Barragan was still sleeping on the couch. At that point, Garcia and defendant rushed into the apartment. Garcia hit Zavala with his tire iron and knocked him back onto Ontiveros. Ontiveros became scared and ran back to defendant’s car. She waited in the front seat for several minutes until Garcia and defendant returned.
Zavala testified that once inside the apartment, Garcia struck at Zavala’s head repeatedly with a tire iron, forcing him back into the apartment through the living room. Zavala yelled at Barragan to wake up. As Barragan stood up, Zavala saw the second attacker, who was wielding a knife in his left hand, hold his brother up against a wall. Zavala, who at this time was being held to the ground and beaten by Garcia, saw the second attacker trying to stab his brother in the face or throat.
During the course of the attack, Garcia said to Zavala: “Cálmate cabrón, [¿]donde la tienes?” According to Zavala, this translated in English to: “Calm down, damn it, where do you have it?”
After the assailants left, Zavala answered the phone, which had continued to ring. The caller was Maria Vargas, a friend and neighbor from an apartment downstairs. Zavala told Vargas his brother was dead and to call the police.
Vanessa Stums lived in an apartment building next to 1100 Sevier. She testified that shortly after midnight on the morning of May 5, 1987, she got into her car and was beginning to drive to a liquor store when she saw two men in dark clothes climb over a fence into the backyard of her apartment building and walk to Madera. Stums noticed the men because she had never seen anyone jump that fence before. Because the area was “nicely lit,” she could tell that the two men were Hispanic, and that they were not “Black.” Stums was approximately one and a half car lengths from the men as she observed them. As Stums drove off, she saw a car parked on Madera, about five houses up the street.
Ontiveros testified that when Garcia and defendant returned to the car, Garcia took the driver’s seat and defendant sat in the passenger side. Defendant had a deep cut on his left forearm. Garcia had blood on his face and hands, but he was not injured. Defendant told Ontiveros to clean the blood off Garcia.
As they drove back to Hayward, defendant climbed into the backseat and lay down. He told Ontiveros to look straight and act normal. There was some discussion between Garcia and defendant about the knife, and as they approached a bridge, Ontiveros felt a msh of air as if the rear window had been rolled down. Although she did not see defendant throw the knife out, she did not see the knife in the car again. Ontiveros told defendant not to worry, she would not say anything about what had happened.
The three stopped for about half an hour in Hayward while Garcia changed his shirt and defendant changed his pants. Defendant also took his jacket off to wrap his arm, which was bleeding badly. Garcia stayed at that location, and Ontiveros dropped defendant off at his sister’s house in Hayward. Ontiveros then drove to her place. The next day, pursuant to
Defendant’s sister Norma testified that at approximately 4:10 in the morning on May 5, 1987, defendant came to her house and told her he had been working on his car. He asked for a bandage and requested to be taken to Raymond’s house in Oakland.
Raymond testified that defendant told him a transmission had fallen on his arm. He acknowledged, however, having testified at the preliminary hearing that although defendant told him to say that the transmission had fallen while the two of them were working on defendant’s car, the two had not actually worked together on the transmission for a week or two before defendant’s arm was injured.
Dr. William Billings from Highland Hospital testified that although defendant stated that a transmission fell on his left arm, no dirt or grease was found in the wound. Also, the wound appeared to have been caused by a sharp instrument, rather than a blunt one, and was sufficiently clean that the surgery team was able to sew the tissue together fairly precisely and match a tattoo that had been split apart. Hospital records reflected that defendant was left-handed.
Officers arriving at the scene of the crime found Barragan lying dead on the floor with a massive pool of blood around his head and neck area. Barragan’s chest was split wide open, and part of his face was hanging off. The officers saw Zavala rolling around on the floor in pain. Zavala had been severely beaten and his face was completely covered with blood. He was also missing several teeth. Zavala lapsed in and out of consciousness, sometimes screaming or moaning about his pain.
Zavala was taken to Stanford Hospital, where Detective James Simpson interviewed him at approximately 1:30 or 1:45 a.m. Zavala told him that two male Hispanic assailants and a female named Cyndia were involved. On or about May 17, 1987, Zavala picked Ontiveros out of a photo lineup.
On July 19, 1987, a search team found a survival-type knife alongside the freeway in the area where Ontiveros thought defendant had rolled down the rear car window as they drove from the crime scene. The knife had bloodstains both on its blade and hilt and on a capsule contained inside the handle. The knife blade was just short of nine inches, with a maximum width of one and one-half inches. Ontiveros, upon being shown the knife, immediately identified it as the one carried by defendant.
The forensic pathologist’s autopsy of Barragan disclosed 21 stab and incise wounds consistent with infliction by a large knife-type instrument. Six of the wounds were to the face and head, one of which was a large, irregular, jagged wound in the lip that went through to the anterior part of the neck. There was a six-inch-deep wound in the right leg above the knee. One four-inch-deep stab wound in the chest had cut the rib cartilage in half and sliced the right lung, while another one five inches deep had also damaged the right lung. There was also a large, gaping, complex, eight-inch-deep wound, possibly caused by several thrusts through the same skin hole, that cut the right jugular vein in half and perforated the right lung. The location of the wounds to the torso and upper body was consistent with overhand-type thrusts. Of the 21 wounds, 17 were located on the right side of the body, while 4 were on the left; this was consistent with face-to-face stabbing by a left-handed assailant. The cause of death was loss of blood with air embolism.
Three bloody fingerprints, apparently made by the same finger, were found at the crime scene. They had an arch pattern found only in 5 percent of the population, and did not match the prints of the victims, the suspects or those persons whose presence at the scene was logged.
Prosecution criminalist Elizabeth Skinner performed a blood-typing analysis, and determined that Zavala and Barragan both had type A blood, differing only in the EAP genetic marker system. Defendant and Garcia both had type O blood. In the TF (or transferrin) genetic marker system, defendant’s type was CD, a type shared by less than 3 percent of the population. Neither Garcia nor the two victims had CD transferrin.
Although various bloodstains were found in defendant’s car and a few blood drops were discovered outside the apartment, many were of insufficient quantity to perform blood-typing analysis. However, type O blood, with the CD type in the TF system, was discovered on the floormat in defendant’s car. Blood on a paper tissue in the trunk of the car was found to be consistent with the blood of either Zavala or Barragan, but not with the blood of defendant or Garcia. Of three spots of blood found outside the brothers’ apartment on the pavement leading to Pierce Road, one may have been type A or a mix of type A and type O; the other two were insufficient to produce test results.
Inside Zavala’s apartment, there were copious bloodstains on the living room carpet and walls. Blood was found on the front door, the couch, the television, the stereo, a telephone book, a mattress in the bedroom, and on the walls, sink and window in the bathroom. Skinner tested the blood samples and was able to determine that all of the blood surrounding Barragan was consistent with his type. Although Skinner could not say that blood belonging to defendant was found in the apartment, she opined, in response to hypotheticals, that if an attacker had been bleeding from a forearm wound, the attacker’s blood might not be found if the length of the attack was a matter of minutes and the wound was enclosed in the long sleeve of a jacket so that the clothing would absorb the blood. She also indicated that because Barragan had bled so profusely, small amounts of an attacker’s blood might go undetected.
Skinner also tested the blood on the knife found by the freeway. Skinner testified that the hilt of the knife had human blood on it, but that a lot of the blood on the blade, being very dry and crusty, had flaked off by the time she examined it. As for the bloodstains found on the plastic capsule inside the knife handle, Skinner found a strong reaction for type O blood, and a weak reaction for type A blood, suggesting the possible presence of both types.
Defendant did not take the stand. His defense was that he was not present and had nothing to do with the crime. There was no physical evidence placing defendant at the scene, and the surviving victim could not positively identify him.
Maria Vargas had initially described the first man to come down the stairs on the night of the murder as a “Black” man when speaking to the 911 dispatcher and the police. Vargas failed to identify defendant when shown a photo lineup on May 27, 1987, and identified him for the first time at the preliminary hearing. At that hearing, defendant was wearing an orange jumpsuit and was seated at the defense table behind a nameplate that said “defendant.”
Nathan Howard, testifying for the defense, disclosed that he had known Juan Garcia since 1967, and in the past had even identified himself as Garcia’s “partner.” Although he had met defendant a couple of times, he was unaware of any friendship between defendant and Garcia, and had never seen them socialize together. Howard also testified that he knew defendant’s brother, Raymond, and that he had run into Raymond at Highland Hospital one morning in May 1987. Raymond told Howard that a transmission had fallen on defendant’s arm.
Defendant’s sister, Norma, testified that when defendant arrived at her home at 4:10 a.m. on or about May 5, 1987, he was covered with dirt and grime, and had car grease on his face and hands. Although defendant asked for a bandage and wanted to be taken to Raymond’s house, Norma did not notice that he was injured, or that he needed to go to the hospital. Defendant said he had been working on his car. He was bald at the time, and looked normal but dirty.
B. Penalty Phase Evidence
1. The Prosecution Case
a. Nishimoto Incident (May 1987)
On or about May 25,1987, Hayward Police Officer Darrin Nishimoto saw a Lincoln Continental run a stop sign at 45 to 50 miles per hour. He pursued the car, which went over 70 miles per hour through 2 red lights before finally pulling over. Defendant, who was drunk, immediately got out of the car and started walking away. When Nishimoto ordered defendant back in
b. Nieves Incident (May 1987)
Gladys Nieves had lived with defendant off and on for about four years. On May 19, 1987, shortly after they had separated, defendant came to Nieves’s apartment to talk about getting back together. When Nieves said she did not want to get back together, defendant became angry, and they began arguing. During the course of the argument, defendant struck Nieves in the face, arm and ribs, and called her a bitch. Nieves managed to push defendant away and call the police. Defendant, who appeared intoxicated, was arrested when the police arrived. Nieves’s face was swollen and she was red around her eye.
c. Gallia Incident (April 1987)
On April 2, 1987, Hayward Police Officer Richard Gallia of the canine unit and Officer Brent Morris stopped a car for a stop sign violation. Defendant, the front seat passenger, was staring out the window and swearing in a slurred manner. When asked to step from the car, defendant emerged fighting and swinging at Gallia. As Gallia struggled with defendant, defendant broke out of a carotid restraint and hit Gallia in the chest, denting the steel chest plate of his bulletproof vest. Morris attempted to assist Gallia in handcuffing defendant, but the two officers were unable to restrain him. Defendant was ultimately subdued with the aid of the canine unit’s dog and a third police officer. At one point during the struggle, the dog bit defendant in the chest but defendant managed to pry the dog’s mouth open to release its bite hold. Gallia had never previously seen anyone able to do this. Defendant’s behavior was consistent with phencyclidine (PCP) intoxication.
d. Rodriguez Incident (November 1984)
On November 2, 1984, Correctional Officer Leo Rodriguez was supervising the serving of breakfast at Deuel Vocational Institute in Susanville when he observed that defendant and two other Hispanic inmates were serving
e. Johnson Incident (June 1984)
On June 3, 1984, Lament Johnson and his brother, Paul Tadlock, went to a 7-Eleven store in Union City to buy some beer. Johnson did not have his identification with him, so he asked defendant, who happened to be in the store, to buy some beer for him. Defendant refused, and Johnson returned to his car. Defendant came up to Johnson’s car and started saying or yelling something, which Johnson could not hear because the window was rolled up. When Johnson started to get out of the car, defendant struck him in the head and knocked him unconscious. Tadlock got out of the car and started wrestling with defendant until Steve May, a store security guard, drew his baton and told them to break it up. Defendant got a four-arm lug wrench from his car and swung at May with great force. Defendant then gave the wrench to a female companion, who also swung at May. Defendant retrieved a long steel bar from his car, which he also began swinging at May. Eventually, defendant and his female companion got back in the car and drove away.
Johnson was taken to a hospital by ambulance and received stitches to his lip. Tadlock suffered a bloody nose. Although Tadlock and May identified defendant for police shortly after the incident, only Tadlock made an identification at trial. Johnson, Tadlock and May all testified they had done nothing to provoke defendant’s attack.
f. Calles Incident (January 1981)
On January 21, 1981, defendant approached fellow inmate Rick Calles in the yard at the medium security prison in Susanville. Defendant asked Calles why he had missed a meeting of Mexican/Puerto Rican inmates earlier that day.
g. Correctional Facility Fire (January 1981)
At approximately 1 a.m. on January 1,1981, prisoners on three tiers at the correctional facility in Susanville started setting fires, breaking windows and throwing jars of water at the guards. Correctional Officer Frank Shipman was standing by a wall when he saw someone throw burning material through a broken window onto a fire just outside the dormitory where the inmates were housed. Shipman, who was 18 to 20 inches away, shined his flashlight through the window and saw defendant moving away from the window. Defendant was the only inmate in the area of the window at the time. Other inmates were standing about 18 to 24 inches beyond defendant when Shipman first saw him.
h. Espinoza Homicide (June 1980)
In the afternoon and early evening of June 6, 1980, Ernest Espinoza and Eric Mitchell were sitting on Mitchell’s porch, when a car with about seven passengers drove repeatedly by. When the passengers yelled angrily in Spanish, Espinoza gave them “the finger.” Later that evening, Espinoza left the Mitchell house just before 9 p.m. to call his girlfriend from a pay phone at a gas station across the street. While Espinoza was at the pay phone, a group of approximately 10 men approached him. Espinoza was shot a number of times and stabbed. He died from his wounds.
Six men, including defendant and his brother Raymond, were charged with the murder of Ernest Espinoza. Only Raymond was alleged to have personally used a firearm, and only defendant Toby Jaramillo was alleged to have personally used a deadly weapon. Raymond and Jaramillo were also the only ones alleged to have personally inflicted great bodily harm. Defendant was alleged to have been armed with a firearm, and to have suffered a previous conviction. On August 29, 1980, pursuant to a plea bargain, Raymond pleaded guilty to manslaughter with personal use of a firearm, and Jaramillo pleaded guilty to manslaughter with personal use of a knife. Defendant pleaded guilty to violation of section 32 (accessory). The murder charges against all charged defendants were dismissed.
At the penalty phase, Rejón Mitchell, who was Eric Mitchell’s brother, came forward and testified that he saw defendant shoot Espinoza.
On the night of April 1, 1977, Frank Roach drove with two friends in his pickup truck to a park in Hayward for the purpose of fighting with another group of people. As Roach and his friends waited for the other group to arrive, a car carrying three or four people pulled up. Someone rolled down the rear window of the car and pointed a pump-action, sawed-off shotgun at them. Roach and his friends scrambled out of the truck and tried to run away as a first shot was fired. When Roach was 10 to 15 feet from the truck, a second shot was fired. Roach was hit from head to toe in the back with shotgun pellets. His friend, Chris Gamer, was shot in the arm or shoulder.
Roach identified defendant as the shooter from a photo shown to him four or five days after the incident. He also identified defendant at the preliminary hearing. Defendant ultimately pleaded guilty to assault with a deadly weapon.
j. Jill M. Incident (October 1976)
At approximately midnight on October 16,1976, Jill M. was standing with her girlfriend Laurie at a bus stop in Hayward when five men in a car pulled up. The two women accepted their offer of a ride, but instead of taking them home, the men drove to a house in San Leandro. While the men dragged Jill screaming into the house, Laurie was able to walk away. Inside the house, Jill was subjected to a series of sexual assaults by at least three men, including defendant. Defendant, acting alone, committed forcible rape, sodomy and oral copulation on Jill, and, acting in concert with another man, committed forcible oral copulation and sodomy on her.
Although sexual assault charges were filed against defendant, the charges were subsequently dismissed. Jill testified that after the preliminary hearing she had asked the prosecution not to require her to participate in the case any further because she was pregnant and feared for her life. She admitted, however, that defendant had never threatened her.
k. Prior Felony Convictions
In addition to presenting documentation of defendant’s felony accessory conviction in the Espinoza matter, the prosecutor offered evidence showing that defendant had been convicted for auto theft in Solano County and burglary in Alameda County.
2. The Defense Case
The defense attempted, in cross-examining the prosecutor’s witnesses and in calling its own witnesses, to cast doubt on the prosecutor’s theories of the
II. Discussion
A. Failure to Hold Competency Hearing
Defendant contends that the lower courts erred by not ordering, sua sponte, a hearing on his competence to stand trial. (See Pate v. Robinson (1966)
Defendant’s claims arise out of events that transpired at three court hearings held on June 22, 1987, September 11, 1987, and September 15, 1987.
The court then questioned defendant regarding his understanding of the situation and explained to him what a time waiver would and would not entail. During the discussions, defendant stated that he did not want to waive time because he had been “sitting in here too long,” even though he apparently knew he had a parole hold in any event, and that he just wanted “to get this over with.” Defendant also complained that counsel was not telling him anything, and that counsel kept challenging him and treating him like a child. At one point, the court stated its belief that “what [defendant] values is a little more TLC.” During the hearing, defendant had several changes of mind about waiving time. Ultimately, however, he agreed in open court to waive time until July 20, 1987.
On September 11, 1987, the superior court held an in camera hearing during which defense counsel addressed issues regarding defendant’s competency to proceed to trial on September 21, 1987, and counsel’s desire to waive defendant’s right to be tried within 60 days of the filing of the information. After explaining to the court that more time was needed to prepare for trial, counsel summarized the events occurring at the hearing on June 22. Counsel then reported that defendant refused to waive time for trial, that he refused to sign release forms for police reports, medical information and other documents despite counsel’s detailed explanations for their need, and that he was being uncooperative and unreasonable.
A defense investigator then told the court that he had obtained information from defendant’s mother that when defendant was two or three years old he had “some sort of seizure, she believes epileptic type seizure where he actually turned blue and was taken to Children’s Hospital in Oakland.” The investigator also said family members stated that defendant had suffered from migraine headaches throughout his life.
Additionally, counsel informed the court that he had spoken with Dr. Missett and Dr. McKinsey, two defense psychiatrists, and that both believed the records concerning defendant’s seizure were “crucial to a psychiatric defense.” Although Dr. Missett was not present at the hearing, counsel related that Dr. Missett had met with defendant for one to two hours, and that Dr. Missett felt that defendant had brain damage due to the “two major
Dr. McKinsey was present at the hearing. Although defendant had refused to meet with him, Dr. McKinsey offered the following opinion based on reports given to him and discussions with Dr. Missett. “I suspect that there is a drug dementia; that Mr. Rodrigues has difficulties that have been outlined earlier which are secondary to that drug dementia. That one of the reasons he wouldn’t sign anything, as he just said, was he doesn’t understand. It is going to be difficult for him to understand anything if his brain isn’t working well. [1 I have etiological events in the record, which is to say a considerable amount of poly substance abuse dating way back, dating as far back as 4/2/87 for example, and as late as May 25th, ’87. [^Q It seems to me that a person of this level of drug use is at very high risk for a neurological impairment that would make it very difficult for him to cooperate with his defense.”
During discussions on the matter, defense counsel expressed the opinion that it was in defendant’s best interest to waive his right to trial within 60 days so that counsel could investigate his competence to proceed to trial. The court then explained to defendant that his attorneys thought it was in his best interest to waive time and to let the doctors talk to him so that a decision could be made how best to defend him. Although defendant stated he did not wish to waive time, he did agree, in response to the court’s inquiry, that he would speak to the defense doctors. He also indicated that he would decide, after meeting with the doctors, whether to agree to a time waiver and to a release of medical records. Since defendant was unwilling to waive time but was agreeable to reconsidering the matter after a meeting with defense psychiatrists, the court declined to give counsel time over defendant’s objection. The court continued the hearing to September 15, 1987, and suggested that at that time they could ascertain whether Dr. Missett would be prepared to testify as to incompetence.
At the continued in camera hearing on September 15, 1987, defense counsel reported that defendant had given written releases of information for parole records, probation records, police reports and school records. Although defendant had not consented to releases for medical records, he nonetheless was willing to waive his right to be tried within 60 days. In response to court questioning, counsel agreed that the request for a trial continuance over defendant’s objection was no longer an issue but indicated
The relevant principles may be summarized as follows. “A trial court is required to conduct a competence hearing, sua sponte if necessary, whenever there is substantial evidence of mental incompetence. [Citations.] Substantial evidence for these purposes is evidence that raises a reasonable doubt on the issue. [Citation.]” (People v. Howard, supra,
Defendant contends that substantial evidence of incompetence appears in the record, citing to the evidence of his childhood seizure and lifelong episodes of migraine headaches, as well as to the statements of the two defense psychiatrists. Defendant also emphasizes the point that his counsel repeatedly expressed concerns regarding his competence to understand and assist in his defense, and counsel’s conclusion that his refusal or reluctance to cooperate appeared connected to a physical-mental condition, rather than merely to obduracy. We are not convinced.
A defendant is mentally incompetent “if, as a result of mental disorder or developmental disability, the defendant is unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner.” (§ 1367, subd. (a), italics added.) Here, the statements provided by defendant’s family that defendant suffered from migraine headaches and that he had a possible epileptic seizure when he was two or three years old did not, standing alone, suggest a mental disorder or developmental disability. Although the court was informed by the defense at the September 11 hearing that it was in the process of obtaining defendant’s medical records by subpoena, nothing in the record after that time indicated that any medical records ever obtained substantiated the claim of such a disorder or disability.
Moreover, the statements of the two defense doctors did not furnish substantial evidence of mental incompetence. We have held that the standard for determining when a psychiatrist’s opinion will constitute substantial evidence of incompetence to stand trial is as follows: “ ‘If a psychiatrist . . . who has had sufficient opportunity to examine the accused, states
First, although Dr. McKinsey attended the court hearing and offered his opinion, he had not had any opportunity to examine defendant. Moreover, the basis for his opinion was rather brief (13 lines of transcript) and virtually devoid of particulars. Dr. McKinsey merely told the court that, based on reports he had read, he suspected that defendant suffered from “drug dementia” and that defendant’s record of “a considerable amount of poly substance abuse” suggested a very high risk of neurological impairment that would make it very difficult for him to cooperate with his defense. But no elaboration or details were provided regarding the type or quantity of drugs involved, the frequency of the claimed abuse, or the extent of impairment threatened. This falls far short of the showing made in People v. Stankewitz, supra,
Second, the purported opinion of Dr. Missett, who had actually met with defendant but was not present at the hearing, was simply inconclusive. Although defense counsel claimed that Dr. Missett “feels that the defendant has brain damage because of the two major seizures he has heard about through [the defense investigator],” counsel also stated that Dr. Missett was “not sure about his opinion since he’s not done a competency evaluation and wanted to get a psychological evaluation on competence before he arrived at an opinion.” Thus, even if we assume that Dr. Missett had offered his tentative opinion directly and under oath, it did not furnish substantial evidence of defendant’s incompetence. Moreover, it is significant to note that after Dr. Missett apparently met with defendant a second time after the second hearing for two or three hours, defense counsel offered no further opinion from the doctor that defendant was incompetent.
Finally, the lower court judges were not compelled to order a competency hearing based on defense counsel’s opinion that defendant might be incompetent. We rejected a similar argument in People v. Howard, supra, 1 Cal.4th at pages 1163-1164: “Under section 1368, if a ‘doubt arises in the mind of the judge’ as to the defendant’s mental competence, the judge must ‘state that doubt in the record’ and solicit defense counsel’s opinion on
It must also be remembered that counsel’s concerns regarding defendant’s competency were based primarily on defendant’s refusal to assist counsel in his defense. The record establishes, however, that even though there was a definite lack of rapport and cooperation between counsel and defendant initially, the situation improved markedly by the third hearing. Not only did defendant agree to a one-month continuance of the preliminary hearing and a sixty-day continuance of the trial, but he eventually provided the requested releases for parole and probation records, police reports and school records. Defendant also met with the defense psychiatrist as agreed at the second hearing, with no apparent resistance or problems. Significantly, defense counsel did not further pursue the competency issue once defendant became cooperative.
On this record, we cannot say as a matter of law that the evidence raised a substantial doubt as to defendant’s mental competence. Accordingly, the lower courts were under no duty to order a competency hearing.
Because the record does not demonstrate a substantial doubt as to defendant’s competency, we reject defendant’s related claims that his counsel was ineffective in failing to request a competency hearing at any stage of the proceedings or in failing to move to set aside the information based upon defendant’s asserted incompetence at the preliminary hearing.
B. Guilt Phase Issues
1. Videotape Evidence
The day after the murder, the police made a videotape with the help of Maria Vargas, the victims’ downstairs neighbor. The videotape showed the
Preliminarily, we address the Attorney General’s argument that these claims have been waived. The record demonstrates that defense counsel had initially moved in limine to exclude the videotape on the grounds now asserted on appeal, but was unsuccessful.
a. Admissibility
Defendant contends that the videotape should have been excluded because the prosecution failed to lay a foundation showing the accuracy of certain scenes in the tape as reenactments of what Vargas witnessed the night of the murder. (People v. Boyd (1990)
In ruling upon the admissibility of a videotape, a trial court must determine whether: (1) the videotape is a reasonable representation of that which it is alleged to portray; and (2) the use of the videotape would assist the jurors in their determination of the facts of the case or serve to mislead them. (DiRosario v. Havens (1987)
In this case, the trial court properly found the videotape admissible. The videotape had been offered as demonstrative evidence to show the jurors the relative locations of the victims’ apartment, Vargas’s apartment, the rear stairway and the driveway of the apartment building. In particular, the videotape had been intended in part to show Vargas’s vantage point as she witnessed the assailants flee the scene. Therefore, once Vargas confirmed in her testimony that the videotape accurately showed the area where she was and where she saw the assailants, the trial court could correctly conclude that the videotape was a reasonable representation of the physical layout of the apartment building and Vargas’s vantage point. Moreover, the court could properly find that a viewing of the videotape would aid the jurors in their
Relying on People v. Boyd, supra,
Furthermore, we reject defendant’s claim that the videotape’s inaccuracies created a misleading impression of the events witnessed by Vargas, as well as his further claim that the tape should have been excluded as being more prejudicial than probative. First, defendant fails to demonstrate how the various inaccuracies could have made the videotape misleading as to the purposes for which it was offered. Second, the inaccuracies either were obvious to the jurors (such as the fact that Vargas had not testified to seeing one White male in a white shirt flee the scene), or, if not so, were specifically brought to their attention. For example, the prosecutor elicited testimony from Vargas that the videotape was filmed during the day, while the events she witnessed occurred at night. He also had Vargas clarify that, consistent with one of the videotaped scenes, her vantage point was from the inside of her apartment looking out through her bedroom window. Moreover, the prosecutor made no attempt to pass the videotape off as depicting exactly what Vargas saw the night of the murder. He also never assumed or suggested through his questioning of Vargas that she was outside of her apartment, or that she was looking through an open bedroom door when she saw the assailants. Hence, any potentially prejudicial effects of the inaccuracies were minimized, if not virtually eliminated. No abuse of discretion appears.
Under circumstances such as these, we must assume that the jurors were intelligent people and that they understood and took into account the differences identified by defendant on appeal. (See Greeneich v. Southern Pacific
b. Refreshing Vargas’s Recollection
Defendant also contends it was erroneous for the court to admit the videotape at trial to refresh Vargas’s recollection, and to allow the prosecutor to play and refer to the videotape, since Vargas had not stated that she could not remember any of the facts which the prosecutor sought to elicit. (See People v. Lee (1990)
This claim is devoid of merit. Contrary to defendant’s assertion, the prosecutor offered the videotape to demonstrate the physical layout of the apartment building, and to show Vargas’s vantage point as she viewed the assailants fleeing the scene of the crime. Since the videotape was neither offered nor admitted at trial for the purpose of refreshing Vargas’s recollection, People v. Lee, supra,
Additionally, the court committed no error in allowing Vargas to view the videotape to refresh her recollection before taking the stand. Even if Vargas could remember the events independently without the videotape, defendant has cited no authority under which Vargas could have been prevented from watching it before trial.
2. Hearsay Evidence Regarding Identifications
Menlo Park Police Detective Ronald Williams testified at trial that: (a) Vargas identified Juan Garcia at his preliminary hearing; (b) Vargas told the
a. Identification of Garcia at Preliminary Hearing
The prosecutor asked Detective Williams on direct examination whether Vargas had positively identified Garcia at a preliminary hearing. Defense counsel objected on hearsay grounds. After the prosecutor asserted it was “a prior identification,” the trial court overruled the objection. The detective then testified that Vargas did identify Garcia in court.
Under Evidence Code section 1238, evidence of a statement of identification is not made inadmissible by the hearsay rule when the statement would have been admissible if made by the witness while testifying and the following additional foundational requirements are met: “[U (a) The statement is an identification of a party or another as a person who participated in a crime or other occurrence; [U (b) The statement was made at a time when the crime or other occurrence was fresh in the witness’ memory; and ["jQ (c) The evidence of the statement is offered after the witness testifies that he made the identification and that it was a true reflection of his opinion at that time.”
Defendant contends there had been no evidence, from Vargas or any other witness, that the occurrence was fresh in her mind at the time of her statement. (Evid. Code, § 1238, subd. (b).) He also asserts that Vargas had not previously testified that she made an identification of Garcia at the preliminary hearing. {Id., § 1238, subd. (c).) Defendant argues that these foundational deficiencies severely undermined any asserted reliability of the purported identification. Once admitted, he contends, Vargas’s prior identification of Garcia served to show that she had consistently identified Garcia, thereby lending significantly more credibility to her allegedly less certain identification of defendant.
Even if the foundational requirements for a prior identification were not all satisfied, the admission of the challenged evidence could not possibly have prejudiced defendant. First of all, the evidence was essentially cumulative of other evidence in the record demonstrating Vargas’s recognition of Garcia. Vargas testified both on direct and redirect examination that, although she did not initially identify Garcia at his live lineup because she was
More significantly, Vargas’s recognition and identifications of defendant were not, as defendant suggests, uncertain. At trial, Vargas explained that although she recognized defendant as one of the fleeing men when initially shown his photo in 1987, she chose not to identify him at that time because she was afraid. However, Vargas overcame her fear and stepped forward to identify defendant both at his preliminary hearing and at a subsequent photographic lineup. She also identified him at trial. Since Vargas’s testimony was both consistent and unwavering in this regard, it is not reasonably probable that the admission of Vargas’s identification of Garcia at his preliminary hearing affected the verdict.
Finally, defendant argues that his constitutional right of confrontation was abridged because he was unable to cross-examine Vargas at' Garcia’s preliminary hearing and because Vargas was excused as a witness before Detective Williams took the stand. Not only was this claim waived by the failure to assert it below (Evid. Code, § 353), it is without merit. Where the witness is available at trial for cross-examination, the principal danger of admitting hearsay evidence is not present (see People v. Gould (1960)
b. Vargas’s Recognition of Garcia at Prior Lineup
Immediately after Detective Williams testified that Vargas identified Garcia at his preliminary hearing, the prosecutor asked him: “The date of the preliminary hearing where you had the discussion with Mrs. Vargas, did she indicate to you that she had in fact recognized Mr. Garcia on the stage?” When defense counsel objected to the question as “leading and hearsay," the prosecutor responded: “It’s a prior inconsistent statement.” After the trial court overruled the objection, Williams answered: “Yes. She stated that she had identified him on each of the occasions; however, she was in fear of safety for herself and for her family and that’s why she failed to specifically point him out in those situations.”
Defendant contends that the trial court erred in overruling his objection because Vargas’s purported statement to the detective was consistent, not inconsistent, with her testimony. Defendant claims that the erroneous admission of the statement prejudiced him by making Vargas’s testimony appear more credible and persuasive than it actually was.
This claim is unavailing. Even if the challenged evidence was not admissible as a prior inconsistent statement, any error in its admission was clearly harmless. First, the statement was merely cumulative of Vargas’s trial testimony. Second, as discussed previously, Vargas was consistent and unequivocal in her recognition of defendant. Given the record, it is not reasonably probable that admission of the statement affected the verdict. (People v. Watson, supra,
Defendant next claims for the first time on appeal that the erroneous admission of Vargas’s extrajudicial statement abridged his right of confrontation. The record, however, discloses that defendant’s counsel did, in fact,
c. “Nonidentification” of Richard Lopez and Nathan Howard
Detective Williams testified without objection that Vargas and Zavala viewed photographic lineups containing the photographs of Richard Lopez (Ontiveros’s boyfriend) and Nathan Howard (a friend of Garcia’s who appears to have been of African-American ethnicity). He further testified without objection that neither Vargas nor Zavala identified these two men as suspects in the case, and that Zavala specifically stated that Lopez was not involved in the crimes. Subsequently, the prosecutor asked: “With respect to the photographic line-ups of Richard Lopez and Nathan Howard, in the entirety of the investigation in this case[,] has anyone identified a photograph of Richard Lopez as a participant in this crime?” Defense counsel objected on the grounds that the question was argumentative and called for opinion, hearsay and speculation. After the prosecutor responded that the question called for acts occurring in the witness’s presence and that the absence of an identification was not hearsay, the objection was overruled. The detective responded: “No one ever identified Richard Lopez or Nathan Howard as being participants in this crime.”
Defendant contends the court erred in admitting Detective Williams’s testimony that no one, including Vargas and Zavala, identified Lopez or Howard during the course of the investigation. He claims that such “nonidentification” evidence constituted inadmissible hearsay, and that its admission abridged his constitutional right of confrontation and prejudiced his attempt to inject reasonable doubt into the jurors’ minds that a third party (i.e., Howard) committed the crimes.
We see no basis for reversal. In the first place, defense counsel failed to object to the questions and responses pertaining to Vargas and Zavala. Although counsel subsequently objected to the more generalized question asking if anybody had ever identified Lopez as a participant, this was
Defendant asserts that if this issue is deemed waived, counsel was necessarily incompetent because there was no legitimate tactical reason for not objecting to the questions pertaining to Vargas and Zavala. We disagree. “Whether to object to inadmissible evidence is a tactical decision; because trial counsel’s tactical decisions are accorded substantial deference [citations], failure to object seldom establishes counsel’s incompetence. [Citations.] To establish ineffective assistance, a defendant must show that counsel’s actions ‘fell below an objective standard of reasonableness under prevailing professional norms.’ [Citation.]” (People v. Hayes (1990)
In any event, even assuming that the issue had been preserved for review and that some or all of the evidence constituted inadmissible hearsay,
3. Reading of Vargas’s Testimony to Jury
During guilt phase deliberations, the jury requested portions of testimony of Vargas and two other witnesses. With respect to Vargas, the jury requested “[djirect and/or cross concerning what photo line-ups were shown to her prior to preliminary hearing and what identifications were made.”
In response, the Attorney General asserts that defendant waived any objection to some parts of the challenged testimony because it was his counsel who requested that they be read. (Evid. Code, § 353.) Although defendant disputes the waiver contention, he requests that we review the matter in the context of an ineffective assistance claim if a waiver is found.
We find it unnecessary to decide the issues of waiver and ineffective assistance since the underlying claim is so clearly lacking in merit. Vargas’s testimony concerning her fear was directly relevant to why she did not identify defendant at the photo lineup. To have omitted this testimony as part of the reading would have grossly distorted the record. No error appears.
The court also did not err in denying defendant’s request to read portions of Vargas’s recross-examination testimony pertaining to her identification of defendant at his preliminary hearing and to her failure to identify Garcia at his live lineup. Unlike the fear evidence, this other testimony was not responsive to the jury’s request for “what photo line-ups were shown to her prior to the preliminary hearing and what identifications were made.”
In any event, the court’s ruling, even if in error, did not prejudice defendant. The reading of Vargas’s testimony was brief, and given in conjunction with testimony by two other witnesses. Additionally, the reading included defense counsel’s questioning of Vargas to the effect that if Vargas was actually afraid of defendant, “she could have said what she said at Garcia’s live lineup.” In substance, this was precisely the point defense counsel had hoped to make with the other excluded portions of Vargas’s testimony. (See fn. 28, ante.) Accordingly, any perceived error was harmless. (People v. Watson, supra,
Finally, defendant argues that Vargas’s fear testimony impermissibly suggested that he or someone associated with him had threatened her. (See People v. Mason (1991)
4. Evidence Regarding the Victims’ Relationship
a. Exclusion by the Trial Court
On direct examination, the prosecutor asked Zavala if he and his brother were “very close.” Zavala replied: “Of course.” On cross-examination, Zavala was asked if he had an uncle in Mexico named Castro. After the trial court sustained the prosecutor’s relevance objection to this question, defense counsel made an offer of proof, outside the presence of the jury and the witness, that Zavala and Barragan had an uncle named Castro in Mexico who had heard Zavala indicate that he and Barragan for a long time had not been speaking because of Barragan’s drug dealing. Defense counsel argued that the evidence would show that the brothers in fact were not close, and that the drug dealing was a source of irritation between them. Defense counsel also referred to a series of police reports indicating that Zavala was initially suspected to be Barragan’s murderer.
The court sustained the prosecutor’s objection pursuant to Evidence Code section 352, finding that the probative value of the proffered evidence would be outweighed, if not by the time it would take to introduce it, then by the confusion it would cause. The court also denied defendant’s motion to strike Zavala’s earlier testimony that he and Barragan were close.
Defendant contends that the trial court prejudicially erred in excluding the above evidence. We disagree.
Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. (People v. Dyer (1988)
Applying this standard, we find no abuse of discretion. First of all, the relevance of the proffered evidence was not clear since the defense did not establish when the alleged communication between Zavala and his uncle took place, or when the supposed falling out between the brothers occurred. Second, even if a relevant time frame could have been demonstrated, the proffered evidence had little, if any, significance to the vital issues in the case against defendant.
In any event, assuming there was an abuse of discretion, reversal is not warranted. Defendant’s involvement in the instant crimes was firmly established through two witnesses other than Zavala: Maria Vargas and defendant’s accomplice, Cynthia Ontiveros. Hence, it is not reasonably probable that a more favorable result would have occurred had the evidence been admitted. (People v. Watson, supra,
b. Prosecutorial Misconduct and Ineffective Assistance of Counsel
Defendant contends that the prosecutor committed misconduct by stating in his guilt phase closing argument that Zavala loved his brother, that he had no motive to lie, and that he had no reason to falsely identify the wrong person as his brother’s killer. Defendant claims that the prosecutor, having obtained the favorable ruling excluding defendant’s proffered evidence, then used the evidence of Zavala’s closeness to Barragan to convince the jury that Zavala’s less than certain identification of defendant was in fact accurate. He claims this use of the evidence contradicted an earlier representation made by the prosecutor that the only purpose for establishing the brothers’ closeness was to help the jurors appreciate Zavala’s state of mind as he was perceiving the attack on Barragan. (Cf. People v. Varona (1983)
We need not address these claims on the merits because defense counsel’s failure to object to the prosecutor’s remarks waives the issue on appeal.
Generally, a conviction will not be reversed based on a claim of ineffective assistance of counsel unless the defendant establishes both of the following: (1) that counsel’s representation fell below an objective standard of reasonableness; and (2) that there is a reasonable probability that, but for counsel’s unprofessional errors, a determination more favorable to defendant would have resulted. (People v. Mayfield (1993)
In this case, neither incompetence nor prejudice has been established. First of all, the main thrust of the prosecutor’s statements, i.e., that Zavala had no reason to identify anyone but the guilty party as his brother’s murderer, was not dependent on the evidence that the brothers were close. Whether or not the brothers shared a close relationship, the record remained devoid of any evidence suggesting a reason or motive for Zavala to wrongly identify defendant. Since the gist of the prosecutor’s argument was appropriate, defense counsel’s failure to assign misconduct was not unreasonable. In any event, defendant fails to demonstrate prejudice. Overwhelming evidence of defendant’s involvement in the instant crimes was presented through Vargas, Ontiveros and others. Thus, even if a competent attorney would have succeeded in persuading the trial court to strike this entire aspect of the prosecutor’s argument, it is not reasonably probable that the omission would have resulted in a more favorable result for defendant. (People v. Mayfield, supra,
On cross-examination, defense counsel asked Zavala if he had previously told a defense investigator “that you thought it looked like the attackers had come to the apartment to kill your brother?” The trial court sustained the prosecutor’s objection that the question called for speculation as to the intent of the attackers.
Defendant contends the trial court erred because the question called not for speculation, but for the witness’s opinion as to what he personally perceived during the attack. Defendant claims the error was prejudicial because the evidence would have created a reasonable doubt on the special circumstance allegations and the underlying charges of attempted robbery and burglary by showing that defendant’s purpose when he entered the apartment was strictly to kill Barragan.
While not disputing the issue of error, the Attorney General argues that no possible prejudice could have resulted from the omission of the evidence. We agree that any perceived error was harmless.
At trial Cynthia Ontiveros testified that she, Garcia and defendant planned to rob Zavala and Barragan. She provided details of their planning and of the events leading up to the attack. She also described what happened after the three fled the crime scene, providing particulars concerning defendant’s injury, his disposal of the murder weapon, and the washing and return of defendant’s car. Although Zavala may have thought it looked like the attackers had come to kill his brother, that would not have been necessarily inconsistent with Ontiveros’s testimony and Zavala’s other testimony indicating that the two attackers coordinated their efforts to gain access to the apartment, subdue the brothers and obtain whatever “it” was. Additionally, if admitted, Zavala’s testimony arguably would have bolstered the theory that Garcia and defendant conspired to rob the brothers and to leave no witnesses. Given all the evidence in the record, as well as the fact that there was no evidence that defendant previously knew or even heard of Barragan, it is highly unlikely that the jury would have believed the motive was other than robbery.
6. Accomplice Corroboration
Defendant contends that because the sole evidence of burglary and attempted robbery came from the uncorroborated testimony and statements
a. Sufficiency of Corroborative Evidence
The law requiring corroboration of accomplice testimony is well established. “A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense; and the corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof. . . .” (§1111.) “ ‘The requisite corroboration may be established entirely by circumstantial evidence. [Citations.] Such evidence “may be slight and entitled to little consideration when standing alone. [Citations.]” ’ ” (People v. Zapien, supra,
In applying the foregoing rules, we find there was substantial corroborative evidence connecting defendant to the crimes in question. Zavala testified that: (1) when he opened the door for Ontiveros, a man with a tire iron and a man with a knife immediately rushed into the apartment and started attacking him and his brother; (2) during course of the attack, the man with the tire iron (whom he later identified as Garcia) asked him, “[¿]donde la tienes?” (“where do you have it?”); (3) Zavala assumed that “it” meant money or drugs; (4) after Zavala said that “it” was in the closet, the man with the knife (whom he later described as looking similar to defendant)
Although Zavala could not identify defendant with certainty, Vargas could and did. She positively identified defendant and Garcia as the two men who had fled past her window on the night of the crimes, and testified that defendant fled the crime scene with an injured arm. Zavala also testified that the knife-wielding attacker fled with an injured arm, while Dr. Billings testified that on the morning of May 5, 1987, defendant received stitches for an injury to his left arm caused by a sharp instrument. Further corroborating evidence came from Raymond Rodriguez, who admitted that, at defendant’s request, he lied about defendant’s arm injury and retrieved defendant’s car from Ontiveros the morning after the crimes had occurred. Physical evidence also tended to connect defendant to the crimes. Barragan’s wounds were consistent with face-to-face stabbings by a left-handed assailant; hospital records reflected that defendant was left-handed. Additionally, traces of blood consistent with defendant’s blood type were found inside the handle of the knife found by the police with Ontiveros’s help. Finally, blood on a tissue in defendant’s car trunk was consistent with the blood of either Zavala or Barragan, but not with the blood of defendant or Garcia.
While defendant apparently concedes that the above evidence sufficiently tends to connect him with Barragan’s murder, he claims it does not adequately connect him with an attempted robbery or burglary. (See People v. Reingold (1948)
Even though the attackers were not specific in demanding money or drugs, the totality of circumstances testified to by Zavala, even apart from Ontiveros’s testimony, clearly justified the jury’s determination that an attempted robbery and burglary had taken place. (See, e.g., People v. Jackson (1963)
The record contains more than ample corroborating evidence supporting the burglary and attempted robbery convictions, the conviction for first degree felony murder and the felony-based special-circumstance findings.
b. Instructional Error
After discussions with counsel, the trial court gave the following instructions: CALJIC Nos. 3.11 (testimony of accomplice must be corroborated); 3.12 (sufficiency of evidence to corroborate an accomplice); 3.16 (witness accomplice as matter of law); 3.18 (testimony of accomplice to be viewed with distrust).
Although the trial court gave the standard CALJIC No. 3.11 instruction (“A defendant cannot be found guilty based upon the testimony of an accomplice unless such testimony is corroborated by other evidence which tends to connect such defendant with the commission of the offense.”), it refused defendant’s request to further instruct that: “As used in this instruction, ‘testimony’ includes statements made out of court as well as statements made in court by an accomplice.” Defendant contends this proposed addition was necessary because the prosecutor relied on accomplice Ontiveros’s out-of-court statements to police, as well as on her in-court testimony.
We are not persuaded. Even though the trial court should have given defendant’s proposed clarification to avoid any possibility of confusion (see People v. Andrews, supra,
As we have already demonstrated, such evidence amply tended to connect defendant to the crimes. Based on the strength of that evidence, there is no reasonable probability that the jury would have reached a different result had it been given the clarifying instruction. (
Defendant next contends that the trial court erred in not giving CALJIC No. 3.13, which provides: “The required corroboration of the testimony of an accomplice may not be supplied by the testimony of any or all of [his] [her] accomplices, but must come from other evidence.” According to defendant, this instruction was necessary because the only inference of an intent to rob, apart from the evidence supplied by Ontiveros, came from fellow accomplice Garcia.
Because the corroboration requirement of section 1111 is a substantial right, we address this claim even though defense counsel stated at trial that CALJIC No. 3.13 did not apply. (§ 1259; People v. Andrews, supra,
“In enacting section 1111, the Legislature intended to eliminate the danger of a defendant being convicted solely upon the suspect, untrustworthy and unreliable evidence coming from an accomplice, who is likely to have self-serving motives that affect his credibility.” (People v. Belton, supra, 23 Cal.3d at p. 526.) CALJIC No. 3.13, which instructs that one accomplice may not corroborate another, acknowledges this danger in the context of multiple accomplices who may be motivated by self-interest to offer complementary but inaccurate testimony adverse to the defendant.
As a preliminary matter, we address the Attorney General’s argument that section 1111 does not apply for the reason that Garcia was not an accomplice because “an ‘accomplice’ is one who testifies at trial.” This
Nonetheless, evidence of Garcia’s “[¿]donde la tienes?” question did not warrant the giving of CALJIC No. 3.13. Significantly, Garcia made this utterance in defendant’s presence during their attack on Zavala and Barragan for the reasonably apparent purpose of facilitating a robbery. Thus, even if the question could be deemed a statement, it clearly was not made to law enforcement officials in the hope of leniency or immunity. (Compare with People v. Belton, supra, 23 Cal.3d at pp. 519, 525.) Garcia’s utterance, and the context in which it was made, implicated none of the dangers which section 1111 was intended to address. Under these circumstances, the giving of CALJIC No. 3.13 would have been inappropriate and unnecessary. (Cf. People v. Sully, supra,
In sum, these claims of prejudicial instructional error, whether considered singly or together, are without merit. So too are the constitutional challenges predicated on these claims.
7. Conspiracy Instructions
Although defendant was not charged with conspiracy, defense counsel and the prosecutor agreed below that the court should instruct the jury with CALJIC Nos. 6.10.5 (conspiracy and overt act—defined—not pleaded as a crime charged), 6.11 (conspiracy—joint responsibility) and 6.24 (determination of admissibility of coconspirator’s statements).
The Attorney General argues that because defense counsel failed to object to the admission of Garcia’s question into evidence, and because counsel affirmatively consented to the conspiracy instructions, defendant may not
In challenging the instructions, defendant once again asserts that, apart from accomplice Ontiveros’s statements, the only evidence suggesting an intent to rob was Garcia’s “[¿]donde la tienes?” question. Defendant posits that since he himself never said anything to indicate an intent to rob or steal, the jury could not have found him guilty of attempted robbery, burglary, felony murder or the special circumstances unless it acted on the conspiracy instructions given by the court which allowed it to attribute Garcia’s utterance to him as a coconspirator in a plan to rob or steal.
It is firmly established that evidence of conspiracy may be admitted even if the defendant is not charged with the crime of conspiracy. (People v. Belmontes, supra,
To determine whether there was sufficient proof of a conspiracy in this case, we apply the following rules. “Although the existence of the conspiracy must be shown by independent proof [citation], the showing need only be prima facie evidence of the conspiracy. [Citation.] The prima facie showing may be circumstantial [citation], and may be by means of any competent evidence which tends to show that a conspiracy existed. [Citation.]” (People v. Jourdain, supra,
Evidence is sufficient to prove a conspiracy to commit a crime “if it supports an inference that the parties positively or tacitly came to a mutual understanding to commit a crime. [Citation.] The existence of a conspiracy may be inferred from the conduct, relationship, interests, and activities of the alleged conspirators before and during the alleged conspiracy. [Citations.]” (People v. Cooks, supra,
Having reviewed the record, we are satisfied that the trial court properly instructed on the principles of conspiracy. A fortiori, counsel’s failure to object to the challenged instructions did not amount to ineffective assistance.
Because no error appears, we reject defendant’s related claims that delivery of the conspiracy instructions violated his constitutional rights to due process, a fair trial by jury, and reliable guilt, special circumstance and penalty determinations. We also reject defendant’s claim that admission of Garcia’s statement deprived him of his right to confront Garcia. (People v. Brawley (1969) 1 Cal.3d 211, 290-291 [
Finally, we reject defendant’s state and federal constitutional claims based on the trial court’s failure to instruct the jury, sua sponte, that: (1) a finding of the existence of a conspiracy involving defendant cannot be had on uncorroborated accomplice testimony; and (2) the requisite corroboration cannot be supplied by the declaration of a conspirator. The first proposed instruction misstates the law. (People v. Price, supra,
Defendant argues that the trial court erred in giving a series of instructions that unfairly permitted the jury to draw critically adverse inferences against him based on evidence of his behavior before, during and after the events in question. Defendant claims that these errors were particularly devastating with respect to the special circumstance allegations, and that they deprived him of due process, a fair jury trial and a reliable jury determination on guilt, special circumstances and penalty. As we will demonstrate, no error appears.
a. CAUIC No. 2.71.7
Over defense objection, the trial court gave CALJIC No. 2.71.7, specifically relating to a defendant’s preoffense statements.
Although Ontiveros identified certain statements made specifically to and by Garcia, she repeatedly affirmed that her conversations were with both Garcia and defendant, and that all three of them discussed the plan to get drugs from the brothers.
b. CAUIC No. 2.71.5
At trial, Ontiveros recounted various statements made by Garcia in defendant’s presence as the three drove away from the crime scene in defendant’s car. In substance, Garcia told Ontiveros that Garcia kept asking Zavala for the money as they were fighting, and that Zavala kept saying it was under the couch. When Garcia made these statements, defendant apparently said nothing. Over the defense’s objection, the trial court gave the adoptive admission instruction contained in CALJIC No. 2.71.5.
Defendant maintains that the court’s delivery of CALJIC No. 2.71.5 was improper because the statements identified as the basis for the instruction lacked the foundational requirements of an adoptive admission, in that: (1) the record fails to show that he either heard or had any knowledge of the statements made by Garcia (see Evid. Code, § 1221; People v. Lebell (1979)
Although defense counsel objected to the giving of CALJIC No. 2.71.5, he did not object on foundational or other grounds when evidence of Garcia’s statements was admitted. Because counsel failed to object to admission of the evidence, the Attorney General argues that defendant waived any instructional error claim. Defendant disagrees. He asserts that Garcia’s statements were not offered or admitted into evidence as an adoptive admission, and that in any event, People v. Hannon, supra,
Even if the claim is not deemed waived, it fails for lack of merit. As the Attorney General points out, aside from Garcia’s postoffense statements, there was evidence in the record that prior to the crimes, defendant was with Ontiveros and Garcia when the plan to rob the victims was discussed. In response to the prosecutor’s questions, Ontiveros confirmed: (1) that “the three of [them] discuss[ed] the plan”; (2) that she told Garcia and defendant that she “would go up to the door. And they knew me, so I knew that they would open the door. And at that point, . . . that they could rush in after me”; (3) that she told Garcia and defendant that “they wouldn’t need no weapons”; and (4) that she did not remember either Garcia or defendant disagreeing or taking issue with that. (See fn. 40, ante.) Inasmuch as defendant was a party to the discussions, it may be reasonably inferred that he was afforded the opportunity to refuse to participate or to otherwise dissociate himself from the planned activity; but that he did not do so. Such evidence, which indicated that defendant participated without demur in the planning of a robbery, warranted the inference that an adoptive admission had been made. (See People v. Fauber (1992)
c. CAUIC Nos. 2.03, 2.04 and 2.06
Over the defense’s objection, the trial court gave several jury instructions relating to statements or efforts by defendant which might tend to prove a
First, defendant contends that CALJIC No. 2.04 was erroneously given because there was insufficient evidence in the record to warrant any inference that he had attempted to persuade a witness to “testify” falsely, or tried to fabricate evidence “to be produced at trial.” While acknowledging that his brother admitted at trial that defendant had asked him to lie about defendant’s arm injury, defendant nevertheless maintains that his brother’s testimony fell outside the scope of CALJIC No. 2.04 because the incident occurred before judicial proceedings had been initiated. We cannot agree.
CALJIC No. 2.04 does not require judicial proceedings to actually be in progress when the attempt to procure false testimony or to fabricate evidence is made. It was sufficient that the jury could reasonably infer from the incident that defendant expected his brother to be a witness in the event of a trial, or that defendant sought to fabricate evidence in anticipation of a trial.
Next, defendant contends that CALJIC No. 2.06 was erroneously given because the evidence did not support the prosecutor’s rationale for the instruction, i.e., that defendant threw away or otherwise destroyed or concealed the knife used in the attack, as well as his bloodstained clothes. We are not convinced.
Ontiveros testified that as Garcia and defendant were discussing the knife on the way home after the attack, she felt a blast of air in the car as if
Finally, defendant claims that the trial court should have modified CALJIC Nos. 2.03, 2.04 and 2.06 to apply only to the murder charge and not to the charges of attempted robbery, burglary and the corresponding special circumstances. Again, defendant argues there was insufficient evidence corroborating Ontiveros’s testimony regarding defendant’s involvement in the latter crimes. This claim must be rejected.
In the first place, if defendant believed the instructions required clarification or modification, it was incumbent upon him to request it. (People v. Johnson, supra,
In sum, the jury would not have been unreasonable in drawing inferences that defendant’s false statements about his arm injury, his attempt to persuade his brother to lie and his effort to get rid of the knife all tended to show consciousness of guilt of all the charged crimes. Defendant’s conduct was clearly probative on the issue of identity of the second assailant who was seen fleeing the crime scene with an injured arm. No error appears. (See People v. Lewis (1990)
d. Cumulative Effect of Instructions
Defendant argues that the erroneous delivery of CALJIC Nos. 2.71.5, 2.71.7, 2.03, 2.04 and 2.06, whether considered singly or together, deprived him of his constitutional rights. He is mistaken. Inasmuch as none of the five instructions was erroneous, it is inconceivable that defendant’s constitutional rights were violated.
9. Instructions Regarding Circumstantial Evidence and Requisite Mental States
Pursuant to defense counsel’s wishes, the trial court gave CALJIC No. 2.01, which instructs on the sufficiency of circumstantial evidence to prove a defendant’s guilt,
“It is the general rule that a trial court is not required to instruct on the rules of law applicable to circumstantial evidence where the alleged circumstantial evidence is incidental to, and corroborative of, direct evidence. [Citations.]” (People v. Malbrough (1961)
We need not resolve these disputed issues. Because the trial court delivered the more inclusive instruction under CALJIC No. 2.01, its refusal to additionally instruct with CALJIC No. 2.02 clearly was not prejudicial error. (People v. DeLeon (1982)
Defendant next contends the trial court erred in failing to instruct with a modified version of CALJIC No. 3.31 (concurrence of act and specific intent). While conceding that the trial court’s unmodified instruction was correct with respect to the specific intent crimes of burglary, attempted robbery and the felony-murder theory of first degree murder, defendant maintains it was inadequate with respect to the prosecutor’s other theory of willful, deliberate and premeditated murder.
If defendant believed that a modification to CALJIC No. 3.31 was required, he was obligated to request it. In any event, the court’s instructions,
Defendant next contends that the trial court committed prejudicial error by giving an inadequate version of CALJIC No. 8.83.1 (special circumstances—sufficiency of circumstantial evidence to prove required mental state), by failing to give CALJIC No. 8.83 (special circumstances— sufficiency of circumstantial evidence—generally) and by failing to give CALJIC No. 3.31 as to the special circumstance allegations (concurrence of act and specific intent). We disagree.
First, we are not persuaded by defendant’s assertion that the court’s version of CALJIC No. 8.83.1 was misleading in referring to the term “required mental state” in the singular rather than plural form, or in failing to list each of the required mental states to which it applied. Even if defendant’s failure to request such clarifications below is disregarded, the point is not well taken. As defendant himself points out, the court instructed on the mental state required for each of the special circumstances (CALJIC No. 8.81.17) immediately before reading the circumstantial evidence instruction.
We are likewise unconvinced by defendant’s next argument that the court’s failure to give CALJIC No. 3.31 as to the special circumstance allegations permitted the jury to conclude that concurrence of act and specific intent was not required in order to find such allegations true. Assuming the court’s omission constituted error (see Use Note to CALJIC No. 8.83.1; Use Note to CALJIC No. 2.02), the instructions, when considered as a whole, properly guided the jury’s consideration of the evidence. (People v. Wilson, supra,
Further, we find without merit the argument that, since the prosecutor substantially relied upon circumstantial evidence to prove that defendant’s “purpose” in committing the charged murder was to carry out the
In sum, we conclude that none of the perceived instructional errors, whether considered singly or together, warrants the reversal of defendant’s conviction. We come to this conclusion whether we employ the “reasonable probability” test or the less tolerant “reasonable doubt” test. Likewise, we find no violation of defendant’s state or federal constitutional rights.
10. Reasonable Doubt Instruction
Without any defense objection, the trial court gave the standard version of CALJIC No. 2.90 at the close of the guilt phase. Defendant now claims that this instruction, which defines “reasonable doubt” as that state of mind in which the jurors “cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge,” is constitutionally defective in light of Cage v. Louisiana (1990)
We have consistently rejected similar claims in the past. (People v. Webb (1993)
Even though we reject defendant’s challenge to the use of CALJIC No. 2.90 at his trial, we remain mindful of the concerns expressed in Victor v. Nebraska, supra,
Defendant claims that the various asserted errors, both singly and in combination, denied him due process and undermined the reliability of the guilt verdicts. Whether or not expressly discussed, we have considered and rejected all of these claims as being without merit. No more need be said. (See People v. Mickle (1991)
C. Penalty Phase Issues
1. Jury Selection
Defendant contends the trial court erred and violated his federal and state constitutional rights in granting the prosecutor’s request to exclude prospective jurors Grace Levario and Melissa Cassiday for cause based on their stated views about the death penalty. Defendant is mistaken.
The United States Supreme Court has held that a prospective juror may be excluded for cause without compromising a defendant’s rights under the Sixth and Fourteenth Amendments to trial by an impartial jury if the juror’s views on capital punishment “ ‘would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt (1985)
Generally, “the qualification[s] of jurors challenged for cause are ‘matters within the wide discretion of the trial court, seldom disturbed on appeal.’ [Citation.]” (People v. Kaurish (1990)
In this case, the voir dire of prospective jurors Levario and Cassiday amply supported the trial court’s decision to exclude them. Although some of Levario’s responses during questioning could be construed as reflecting her capacity for impartiality, others furnished substantial evidence of her inability to conscientiously consider a death verdict.
On June 6, 1980, Ernest Espinoza died after being shot and stabbed at a pay telephone in Oakland, California. Defendant and five others were charged with the murder of Espinoza. Defendant was alleged to have been armed with a firearm, and to have suffered a prior felony conviction. Codefendant Raymond Rodriguez (defendant’s brother) was alleged to have personally used a firearm, and codefendant Toby Jaramillo was alleged to have personally used a deadly weapon. Pursuant to a plea bargain in August 1980, defendant pleaded guilty to being an accessory under section 32, and the arming and prior conviction allegations were dismissed. Raymond pleaded guilty to manslaughter with personal use of a rifle, and Jaramillo pleaded guilty to manslaughter with personal use of a knife. A fourth codefendant pleaded guilty to felony assault with a deadly weapon. Charges against the fifth and sixth codefendants were dismissed.
At the penalty phase, the prosecutor introduced evidence in aggravation of defendant’s participation in the Espinoza homicide (§ 190.3, factor (b)) and evidence of his conviction as an accessory (§ 190.3, factor (c)). Defendant challenges the admission of this evidence on three grounds. First, he claims that the prosecutor violated the notice provisions of section 190.3 and used deceptive tactics in introducing the identification testimony of witness Rejón Mitchell. Second, he contends that no evidence of the Espinoza homicide should have been admitted because the murder charge filed against defendant in that case had been dismissed pursuant to a plea bargain, and the charge was stale. Third, he argues that the court erred in allowing defendant’s conviction in the Espinoza matter to be characterized as accessory to a murder. As we shall demonstrate, none of these claims warrants reversal of the death judgment.
a. Mitchell’s Identification Testimony
Defendant contends that the prosecutor violated the notice provisions of section 190.3 and misled defense counsel in presenting Rejón Mitchell’s “surprise” testimony identifying defendant as the actual shooter of Espinoza.
On August 1, 1988 (after the close of the guilt phase), the trial court held a hearing on a defense motion to exclude evidence of the Espinoza homicide as an aggravating factor. Defense counsel essentially argued that the evidence should not be admitted under section 190.3, factor (b) because the preliminary hearing transcript from the Espinoza case did not establish that defendant engaged in any violence, attempted violence, threat of violence or implied violence. When the court asked the prosecutor whether he intended to offer any evidence in addition to the preliminary hearing transcript, the prosecutor replied: “I’ve indicated, the People’s investigator to the defense investigator, that there are potentially several additional witnesses at the crime scene who may be called to testify about what they observed, which would include observing [defendant] accompanying a group of nine, as they’ve been referred to, at the time of the killing of Ernest Espinoza. It’s consistent with what Danny Nunez testified to at the preliminary hearing, it would certainly place [defendant] at the scene of the crime at the time of the commission of the crime.”
After further discussions, the court asked: “So what I need to know is do you have any evidence that would place the defendant in a position where he is more responsible for the act than what is shown in the preliminary examination and, of course, I don’t know what’s in the transcript.” The prosecutor replied: “That’s difficult to answer at this time because some of the witnesses have just been located very recently, and I haven’t had a chance to actually interview them. . . .” Thereafter the prosecutor stated: “There’s the possibility that there may be a witness who places [defendant] as the actual shooter. If that were to be the case, obviously that would be a—.” (Italics added.) The court indicated it would make a preliminary determination under Evidence Code section 402
The penalty phase commenced before the jury on August 2, 1988. On August 3, the prosecutor called Rejón Mitchell as a witness. Defense counsel did not object when Mitchell took the stand. Mitchell testified he was in his house when he heard gunshots. He looked out the window, and saw a group of men at a gas station watching another man shoot at Espinoza. After the shooting, the group ran by Mitchell’s house. Mitchell opened his front door and could see the group, including the shooter, about 15 to 20 feet away.
After eliciting the above testimony, the prosecutor pursued the following line of questioning. “Q [Prosecutor]: Did you get a look at the shooter? A [Mitchell]: I did. Q: Subsequent to that, during the investigation by the Oakland Police Department, did you look at some photographs? A: Yes, I did. Q: And did you pick somebody out as the shooter? A: Yes, I did. Q: I realize this is some years ago this event has happened. [1] Do you still recall what the shooter looked like? A: Yes. Q: I’d ask you to look around the courtroom and see if you see that person in court today. A: Yes. Q: Would you tell the jury where that person is now, and what he’s wearing? A: The defendant sitting right there in the yellow top sweater (indicating). Q [Prosecutor]: May the record reflect identification with reference to the defendant
Afterwards, outside the presence of the jury, defense counsel reiterated his argument to the court that Raymond Rodriguez’s prior plea to manslaughter and defendant’s own plea to accessory barred the prosecution from trying to prove that defendant shot Espinoza. The prosecutor responded that the jury was free to determine, based on all the evidence presented, whether Raymond or defendant killed Espinoza. The prosecutor further stated: “I know when I came to court a few days ago, and said there was one witness we were looking for who might possibly place, who saw [defendant] as the shooter, it was Rejón Mitchell that I was thinking of. [U I finally had an opportunity to talk to him today. Until he had a chance to look around the courtroom, I was not able to determine for sure whether he was going to say, ‘Amaldo Rodrigues’ or say, ‘No, it was someone else who looked similar, but that’s not him.’ [*][] The jury, as I understand it, is free to either accept or reject the admissions of all types that are given to them. And they are not bound by a prior adjudication in the form of the taking of a plea.” The court then concluded that the collateral estoppel rule was inapplicable. Thereafter defense counsel made no other argument.
It was not until the next morning, after the direct, cross- and redirect examination of Rejón Mitchell had been completed, that defense counsel complained about the prosecutor’s failure to alert the defense that Mitchell would identify defendant as Espinoza’s killer. At that time, defense counsel requested the trial court to dismiss the case pursuant to section 1385.
The trial court denied the request, concluding that the prosecutor had adequately advised the court and counsel about the possibility of a witness who would identify defendant as the shooter. In finding there was no misconduct, the court noted that the prosecutor’s previous statements had been consistent with the witness’s own testimony that he was out of town in another county. The court then granted defense counsel a continuance from that Thursday morning to the following Monday to determine the availability of physical evidence in the Espinoza case, and the need for a further continuance. The next day, August 5, defendant filed a formal motion for mistrial.
At a status hearing on August 10, defense counsel reported he could not complete his investigation by August 15 and requested another one-week continuance. After counsel detailed the work still remaining, the court ordered the prosecutor to proceed on penalty phase evidence other than the Espinoza incident on August 15, and indicated that at the end of that day, the defense would be allowed to show good cause for a further continuance.
On August 15, defense counsel did not request any further continuances. The prosecutor resumed his presentation of evidence on the Espinoza matter the next day, and the defense thereafter presented its side.
On appeal, defendant argues that the motion for mistrial under section 1385 should have been granted because the prosecutor: (1) failed to give notice of the identification evidence under section 190.3; and (2) committed misconduct which incurably prejudiced defendant’s case. We first address the argument that the notice provisions of section 190.3 were violated.
Section 190.3 provides in pertinent part: “Except for evidence in proof of the offense or special circumstances which subject a defendant to the death penalty, no evidence may be presented by the prosecution in aggravation unless notice of the evidence to be introduced has been given to the defendant within a reasonable period of time as determined by the court, prior to trial. Evidence may be introduced without such notice in rebuttal to evidence introduced by the defendant in mitigation.’’ The purpose of this provision “is to advise an accused of the evidence against him so that he may have a reasonable opportunity to prepare a defense at the penalty trial. [Citation.]” (People v. Taylor (1990)
Defendant’s claim that the prosecutor failed to give the required statutory notice must be rejected. First of all, the claim is barred. Defense counsel did not object on notice grounds when Mitchell took the stand and gave his testimony, even though counsel knew that Mitchell would be testifying on the Espinoza matter and that Mitchell’s name had not been included on the prosecutor’s penalty phase witness list. Although defense counsel raised the notice issue the next day, his failure to do so earlier effected a waiver of the point. (See People v. Clark (1990)
Even assuming that the claim was not waived, it is without merit. The prosecutor notified defendant several months before the start of trial that he intended to introduce evidence in aggravation of “[t]he incident occurring on or about June 6, 1980, in Oakland, California, in which the defendant participated in the stabbing and shooting of Ernest Espinoza, resulting in his death.” This notice gave ample warning to the defense that it should anticipate the prosecutor to introduce at the penalty phase all admissible evidence relevant to defendant’s participation in the Espinoza homicide. Although Mitchell’s name was not listed on the prosecutor’s July 26, 1988, list of penalty phase witnesses, the prosecutor did not know at that time that Mitchell might potentially be able to identify defendant as a person who shot Espinoza. Once the prosecutor learned of the potential new evidence, he acted promptly in informing both the court and the defense. Under these circumstances, no violation of section 190.3 appears. (People v. Mitcham, supra,
Finally, any lack or delay in notice must be deemed harmless. “In the absence of any indication that the delay in notice had in some fashion affected the manner in which defense counsel handled the prior proceedings, the appropriate remedy for a violation would ordinarily be to grant a continuance as needed to allow defendant to develop a response. [Citations.]” (People v. Carrera (1989)
We next consider defendant’s claim that the motion for mistrial should have been granted because of the prosecutor’s gross misconduct. In particular, he claims that the prosecutor affirmatively misled the defense by indicating he did not have specific names of potential witnesses who might be able to identify defendant as Espinoza’s shooter, when in fact the names of Rejón Mitchell and his brother Eric Mitchell were known to him. He also asserts that the prosecutor intentionally violated discovery orders and failed to abide by an express assurance to notify the defense when the identification witnesses were located so that a defense investigator could be present during any questioning of the witnesses prior to their testimony at trial.
Prosecutorial misconduct may constitute an appropriate basis for a mistrial motion. (See People v. Wharton (1991)
Applying these principles, we conclude the denial of defendant’s mistrial motion was not an abuse of discretion. To begin with, there is substantial evidence in the record to support the trial court’s determination that the prosecutor did not act in bad faith. The prosecutor promptly informed the court and defense counsel of the possibility of identification witnesses immediately after receiving the information. Although the prosecutor admittedly failed to tell the defense that it was Rejón Mitchell who might potentially identify defendant, the prosecutor had not been able to speak to Mitchell to ascertain his probable testimony until the day . he took the stand. Viewed as a whole, the record adequately supports the conclusion that the prosecutor did not act intentionally to mislead the defense.
More importantly, even assuming that the prosecutor committed misconduct, the record fails to show that the trial court abused its discretion in
Finally, relying on Lankford v. Idaho (1991)
In Lankford v. Idaho, supra, the United States Supreme Court concluded that a defendant was denied due process when a trial judge imposed the death penalty after the prosecution had given notice that it would not recommend death. In reversing the judgment of death, the court observed that the character of the sentencing proceeding did not provide the defendant with any indication that the trial judge contemplated death as a possible
Defendant’s attempted analogy to Lankford v. Idaho, supra,
In reliance upon People v. Harvey (1979)
As defendant acknowledges, we have squarely rejected the argument that the use of dismissed charges as a circumstance in aggravation violates an implicit term of a plea bargain when used at a capital penalty hearing. (People v. Frank (1990)
Defendant also contends that because his conviction of being an accessory constituted an acquittal of murder, relitigation of the dismissed murder charge during the penalty phase violated his federal due process rights and the state and federal constitutional guarantee against double jeopardy. Defendant is mistaken.
“A bargained conviction or dismissal does not constitute an acquittal under section 190.3. [Citations.]”
Defendant further contends that, in any event, no evidence of the 1980 homicide should have been admitted under section 190.3 because the charges against him were impermissibly stale at the time of his trial in 1988. He asserts that, due to the passage of time and the loss of all physical
Under section 190.3, factor (b), a prosecutor may offer evidence in aggravation of criminal violence that has occurred at any time. (People v. Garceau, supra,
c. Characterization of Prior Conviction
Before the start of the penalty phase, the trial court conducted a bifurcated trial on the prior conviction allegations. Over the defense’s objection, the court ruled that for purposes of the prosecutor’s case in the penalty phase under factor (c) of section 190.3, defendant’s prior conviction under section 32
Defendant contends this characterization was in error because the record of that prior conviction established only that he had pleaded guilty as an accessory to a felony, without specifying which felony, and there was no evidence indicating the nature of the underlying felony. He emphasizes that, although he and several others had been charged with the murder of Espinoza, the transcript of the change of plea hearing which had been offered to the court demonstrated that his codefendants pleaded guilty only to
In response, the Attorney General asserts that the prior conviction was properly characterized because the hearing transcript makes reasonably clear that both defendant and the trial court understood defendant to be pleading guilty of being an accessory to a murder, which was the only felony charged.
Although we are not convinced of the Attorney General’s reading of the transcript, we nonetheless find any error harmless. Evidence of the facts underlying the prior conviction was otherwise admissible under section 190.3, factor (b). (See People v. Montiel (1993)
Contrary to defendant’s assertions, the jurors were not led to believe that the underlying conviction foreclosed them from finding that the Espinoza killing was manslaughter, as opposed to murder. In fact, quite the opposite was true. The court instructed on second degree murder, voluntary manslaughter, and heat of passion and sudden quarrel. These instructions clearly applied to the Espinoza homicide evidence, which was the only evidence of a homicide offered under section 190.3, factor (b). In the face of these instructions, the jurors could not possibly have concluded that they were required to view the killing as a murder. Indeed, any conceivable doubt in the jurors’ minds was resolved in defendant’s favor by the prosecutor’s closing argument explicitly emphasizing to the jurors that they were not foreclosed from determining how the Espinoza killing occurred.
In light of the foregoing, we conclude it is not reasonably possible that the characterization of the prior conviction, even if in error, affected the judgment to defendant’s detriment. (People v. Brown (1988)
3. Jill M. Incident
In October 1976, Jill M. reported to police that she had been raped, sodomized and forced to engage in oral copulation by at least three men at a house in San Leandro. Jill identified defendant as one of her attackers. Although defendant was charged with sexual assault, the charge was dismissed after the preliminary hearing. Prior to this trial, the prosecutor gave notice he would introduce as evidence in aggravation “[t]he incident occurring on or about October 16, 1976, in San Leandro, California, in which the defendant, while acting in concert with others, engaged in the forcible rape, forcible sodomy, and forcible oral copulation of Jill [M.].”
a. Staleness and Loss of Evidence
Shortly before the start of the penalty phase, the defense moved to exclude any evidence of the Jill M. incident, citing the speedy trial and due process provisions of the federal and state Constitutions, as well as the state statute of limitations. The defense argued it was severely disadvantaged in defending against the 12-year-old unadjudicated charge, and was substantially prejudiced by the loss of certain evidence, including, among other things, photos shown to Jill for identification purposes, and vaginal and rectal swabs and smears taken from Jill the morning after the alleged incident. In hearings on the motion, the defense also complained of prejudice due to other unavailable evidence including the failure of defense witness Dr. McGlynn to independently recall the examination of Jill he conducted the morning after the incident. In rejecting these arguments, the trial court determined, inter alia, that the defense was not prejudiced because it could confront both
Defendant maintains that the admission of the Jill M. evidence violated his constitutional rights to due process, a speedy trial and a reliable sentencing determination. Relying on Gardner v. Florida (1977)
First, unlike Gardner v. Florida, supra,
Contrary to defendant’s assertions, the state has a legitimate interest in allowing a jury to weigh and consider a defendant’s prior criminal conduct in determining the appropriate penalty, so long as reasonable steps are taken to assure a fair and impartial penalty trial. (People v. Hawthorne (1992)
Third, defendant was not denied a fair trial by the loss of the photos shown to Jill M. for identification purposes. We are not persuaded by defendant’s claim that without the lost photographs, the defense could not show how suggestive they may have been, or demonstrate how the photo lineup procedure may have impermissibly affected Jill’s subsequent identifications of defendant both at his 1976 preliminary hearing and' at trial below. This argument is similar to arguments made in other cases concerning the fairness of allowing an in-court identification of a defendant where evidence of a previous photo identification is no longer available due to inadvertence of the People. (See, e.g., People v. Kaiser (1980)
In this case, defendant fails to establish any unfairness. The defense was able to confront and cross-examine both Jill M. and Lewis Pollack, who
Defendant’s reliance upon United States v. Wade (1967)
b. Rebuttal Evidence Concerning Jill M.’s Fear
Defendant called Carlos Rasillas, who testified on direct examination that he was at the San Leandro house when Jill M. arrived. Rasillas observed Jill calmly conversing with some of his friends in the living room, smoking a cigarette and drinking a beer. Rasillas, who was living at the house with his girlfriend Norma Rodriquez (defendant’s sister), did not hear Jill scream or indicate in any way that she was being forced sexually against her will that night. After the prosecutor attempted to discredit Rasillas’s testimony by extracting an admission that he never came forward with his story, defense counsel elicited testimony on redirect examination that Rasillas stopped his involvement after becoming aware that the case against defendant was dismissed.
Subsequently, over the defense’s objection, the court allowed Jill M. to testify briefly on rebuttal as follows. “Q [Prosecutor]: And after you went to court at the preliminary hearing and testified to the magistrate about how
Defendant first contends the admission of Jill M.’s state of mind testimony was erroneous because the evidence was irrelevant. Defendant is wrong.
“ ‘The admission of rebuttal evidence rests largely within the sound discretion of the trial court and will not be disturbed on appeal in the absence of “palpable abuse.’”” (People v. Kelly (1990)
Defendant next contends that Evidence Code section 352 compelled exclusion of Jill M.’s testimony concerning her fear because such testimony impermissibly suggested that defendant or someone associated with him had threatened her. (See People v. Mason, supra, 52 Cal.3d at pp. 946-947; People v. Pitts, supra, 223 Cal.App.3d at pp. 778-781; cf. People v. Weiss, supra,
The record establishes that the trial court made diligent efforts to ensure that no prejudicial inference arose. First, the trial court precluded any testimony regarding the source of Jill M.’s alleged fear, and did not allow the prosecutor to ask Jill whether she had ever been threatened. Second, the court specifically admonished the jurors that “the testimony as to the state of mind of the witness as to her reason for declining to proceed with the case, that testimony was offered for the limited purpose of showing her state of mind at the time she apparently made that request. [5Q And as she’s testified,
4. Roach Shooting
In April 1977, Frank Roach was wounded in the back by a shot from a pump-action, sawed-off shotgun. Roach had identified defendant as the shooter from a photo lineup shown to him four or five days after the incident, and also identified defendant at the preliminary hearing. At the penalty phase, Roach was able to identify defendant, but remarked that defendant looked “a lot different ten years ago” and that defendant had “changed quite a bit.”
Defendant contends he was denied due process, the right of confrontation and the right to a reliable penalty determination due to the passage of time since the Roach shooting and the destruction of important physical evidence such as the photo lineup shown to Roach, and the shotgun seized by the police. These contentions are without merit.
Admission of the aggravating evidence was proper since the defense received notice of it and was afforded the opportunity to cross-examine the prosecution’s witnesses and to call its own witnesses.
Defendant fails to establish that his right of confrontation was defeated because of the loss of physical evidence. Even though the shotgun and photo lineup were no longer available, the defense had access to the preliminary hearing transcript and police reports, as well as the names of pertinent witnesses. As for the photo lineup, there is no indication in the record that Roach’s photo identification contributed to his two subsequent identifications. (Cf. People v. Kaiser, supra,
5. Calles Incident
Defendant claims that the trial court should have excluded evidence of the Calles incident for lack of timely notice under section 190.3. The facts underlying this claim are as follows.
On September 11, 1987, the prosecutor initially filed a notice of aggravating factors which made no mention of the Calles incident. On April 11, 1988, the day the case was called for trial, the defense filed a trial memorandum attempting to limit the introduction of evidence in aggravation at the penalty phase to those incidents listed in the September 1987 notice. That same day, over defense objection, the prosecutor gave oral notice that he intended to introduce additional evidence in aggravation, including “[t]he incident occurring on January 21st, 1981, at the department of corrections facility in Susanville in which the defendant committed assault with serious bodily injury and battery on prison inmate Calles, C-a-l-l-e-s, Prison Number C-23539.” The prosecutor filed a written amended notice to this effect on April 13, 1988. On April 25, the defense filed a response to the amended notice which argued that evidence of the Calles incident should be excluded on statute of limitations grounds. The trial court rejected this argument.
On August 1, 1988, after the conclusion of the guilt phase, the court conducted a hearing under Evidence Code section 402 to evaluate the defense’s claim that evidence of the Calles incident should be excluded because there was insufficient evidence of defendant’s identity as the perpetrator of the assault. At that time, the prosecutor informed the court and defense counsel that Calles would testify that he saw out of the comer of his eye that he was struck by someone wearing a glove, and that defendant was
Defendant first claims that some or all of the evidence of the Calles incident should have been excluded as untimely under section 190.3 because the amended notice filed on April 13, 1988, omitted to mention the “comer-of-the-eye/weightlifting glove” evidence. He is wrong.
Not only does the claim appear to have been waived by defense counsel’s failure to make a specific objection based on section 190.3 at the August 1988 hearing (People v. Turner (1990)
Defendant also maintains there was insufficient evidence of identity to permit evidence of the Calles incident to go to the jury. He is wrong.
As noted above, the trial court held a hearing under Evidence Code section 402 to determine whether sufficient evidence existed to present the incident to the jury. Applying the abuse of discretion standard (see People v. Clair (1992)
Although defendant is correct that Calles stated he did not actually see defendant strike him, that Calles did not tell prison officials after the incident about the gloved hand, and that he only recently recalled the gloved hand detail, these were matters which affected the credibility of Calles as a witness, not the admissibility of his testimony or the admissibility of the assault as an aggravating factor. Viewing the totality of the evidence presented, a rational jury could conclude that defendant was the one who struck Calles and that the elements of the charged conduct could be proven beyond a reasonable doubt.
Defendant next urges us to adopt a rule that, as a matter of state and federal constitutional due process, evidence of a defendant’s alleged prior misconduct must be excluded from the capital sentencing determination whenever: (1) the alleged misconduct occurred in prison; (2) physical evidence and prison records of the circumstances of the alleged incident have been destroyed or lost and percipient witnesses cannot be identified; (3) the primary prosecution witness is another inmate who has never previously identified the defendant in spite of opportunity to do so; and (4) prison officials relied on unspecified information from anonymous inmates to establish the defendant’s culpability. Defendant asserts such a rule is necessary because prison officials are under no obligation to preserve evidence when no criminal charges are filed, and because in-house informants may be tempted to fabricate evidence to assist the state in a capital case, supposedly in exchange for “diverse and substantial advantages.”
We decline defendant’s request. Defendant’s proposed rule contravenes our previous determination that the state has a legitimate interest in allowing a jury to weigh and consider a defendant’s prior criminal conduct in a capital case, so long as reasonable steps are taken to assure a fair and impartial penalty trial. (People v. Hawthorne, supra, 4 Cal.4th at p. 77.) Since defendant fails to demonstrate that existing methods for safeguarding the fairness
Finally, defendant contends that evidence of the Calles incident should not have been admitted because critical evidence was either missing or lost, and because the expiration of the applicable statute of limitations created an irrebuttable presumption that his right to a fair trial would be prejudiced. He contends that admission of the incident violated his rights to due process, to effective confrontation of witnesses, and to a reliable penalty judgment. These contentions are essentially repetitive of those made with respect to the Jill M. and Roach incidents, and they are rejected for the reasons already stated.
6. Rodriguez Incident
Correctional Officer Leo Rodriguez testified that in November 1984, defendant verbally abused him and threatened to “kick [his] ass” when Rodriguez sought to have him removed from his food serving assignment.
Defendant contends the evidence was inadmissible because it did not show criminal conduct, violence or a threat of violence as required under section 190.3, factor (b). He contends this error violated his federal constitutional rights and requires reversal of his death judgment. We conclude otherwise.
Section 190.3, factor (b) requires the trier of fact to take into account, if relevant, “[t]he presence or absence of criminal activity by the defendant which involved the use or attempted use of force or violence or the express or implied threat to use force or violence.” Under this factor, the term “criminal activity” is “limited to conduct that violates a penal statute.” (People v. Wright (1990)
In this case, the question is whether the Rodriguez evidence demonstrated a violation of section 148, which criminalizes resisting, delaying or obstructing a peace officer,
While not conceding the point, the Attorney General makes no attempt to argue that the Rodriguez incident constituted conduct properly falling under section 190.3, factor (b), or that there was substantial evidence in the record of a Penal Code violation. Rather, it is asserted that any erroneous admission of the evidence did not prejudice defendant. We agree.
Even assuming that the Rodriguez evidence was improperly admitted, the record does not demonstrate prejudice under our state law penalty phase harmless error test or any federal constitutional violation. (People v. Brown, supra,
At defense counsel’s request, the trial court held a hearing under Evidence Code section 402 to determine the admissibility of the prosecutor’s proposed evidence in aggravation that on New Year’s Eve, 1980-1981, defendant participated in setting fires at the correctional facility at Susanville. After Correctional Officer Frank Shipman testified concerning a fire he had witnessed, the defense moved to exclude the evidence on the ground it was insufficient to establish defendant’s participation and identity in the fire incident beyond a reasonable doubt.
Defendant first argues that evidence of the incident was erroneously admitted because there was insufficient evidence to prove his identity in the incident. Defendant compares the correctional fire facility incident to the situation in People v. Crandall (1969)
Defendant’s comparison fails. Unlike the situation in People v. Crandall, supra,
In any event, no basis for reversal appears. Assuming arguendo that the evidence did not sufficiently support a finding beyond a reasonable doubt that defendant committed criminal activity, the other properly admitted evidence was overwhelming. On this record, we conclude it is not reasonably possible that the jury would have rendered a different verdict had the challenged evidence not been admitted. (People v. Wright, supra,
8. Character Evidence
At various times before and during the penalty phase, defense counsel asked the trial court for a ruling as to what evidence might be admitted in rebuttal if the defense were to present what he characterized as background evidence in mitigation. As described by counsel, this background evidence consisted of evidence that defendant suffered seizures when he was four or five years of age, evidence that his father died when he was young, two or three photographs of defendant earlier in his life, and “one other similar piece of evidence” that counsel did not identify. The prosecutor asserted that
During arguments on the issue, defense counsel asserted that the prosecutor should not be permitted to introduce character evidence or any evidence of the stabbing and escape incidents in rebuttal because defendant’s evidence would merely show “things that have happened in his life, . . . things that were not in his range of choices of conduct,” and “[n]ot character and not mental condition or physical condition through a psychiatrist but just things that have happened to Mr. Rodrigues, not things that he has himself done.” Defense counsel sought to restrict the scope of rebuttal to the truthfulness of the particular incidents, i.e., whether it was true that defendant suffered childhood seizures or that his father died when he was young. In opposition, the prosecutor argued, inter alia, that the only logical reason for defendant’s proffered evidence was “for the purpose of evoking a sympathetic response which shows a characteristic of the defendant which is worthy of sympathy.” The prosecutor asserted that “any pitch or plea that’s made for sympathy in that regard, is something that may be rebutted by otherwise relevant evidence that would evoke from the jury the opposite conclusion, which is that the defendant is not worthy.”
In ruling on this matter, the trial court made clear it was not inclined to admit the escape evidence.
On appeal, defendant contends that the trial court’s ruling constituted prejudicial error. In People v. Rodriguez (1986)
The Attorney General argues that defendant’s claim of harm is speculative, and urges us to find the claim not reviewable under the rule applied in Luce v. United States (1984)
In Collins, an opinion authored by Justice Mosk, we held that California courts are to follow the federal rule stated in Luce, supra,
In Collins we observed that no witness has the right to give testimony immune from impeachment: “It is settled that such impeachment does not violate the due process clause of either the federal or the state Constitution [citations], or the federal privilege against self-incrimination [citation]. . . . ‘Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose. ’ ... ‘It has long been held that a defendant who takes the stand in his own behalf cannot then claim the privilege against cross-examination on matters reasonably related to the subject matter of his direct examination. [Citations.] It is not thought overly harsh in such situations to require that the determination whether to waive the privilege take into account the matters which may be brought out on cross-examination. It is also generally recognized that a defendant who takes the stand in his own behalf may be impeached by proof of prior convictions or the like. [Citations.] Again, it is not thought inconsistent with the enlightened administration of criminal justice to require the defendant to weigh such pros and cons in deciding whether to testify.’ [Citation.]” (Collins, supra, 42 Cal.3d at pp. 387-388.) For these reasons, we concluded that impeachment by prior felony conviction does not violate the California privilege against self-incrimination, and held that the Luce rule is not inconsistent with any constitutional mandate.
In Sims, a death penalty case, the defendant argued on appeal that the trial court erred in denying his motion to bar the prosecution, in the event defendant testified during the guilt phase, from cross-examining him regarding evidence of unadjudicated murders in another state. (
It is debatable whether the Luce rule is properly applicable in the instant case. On the one hand, defendant appears correct that the Luce rule has never been applied to a claim challenging the denial of an in limine motion seeking to restrict the scope of rebuttal to mitigating evidence in the penalty phase of a capital case. On the other hand, the Attorney General makes plausible arguments that the same concerns which prompted application of the rule in Collins and in Sims are present in such a situation.
We find that, for purposes of this case, we need not go so far as to hold, under Luce, Collins and Sims, that a defendant must present his mitigating evidence to the trier of fact in order to preserve a claim challenging the denial of a motion in limine to limit the scope of rebuttal. All the same, we conclude, based on settled principles of appellate review, that the inadequacy of the present record requires us to reject defendant’s claim.
“Before an appellate • court can knowledgeably rule upon an evidentiary issue presented, it must have an adequate record before it to determine if an error was made.” (In re Mark C. (1992)
An offer of proof must consist of material that is admissible, and it must be specific in indicating the name of the witness and the purpose and content of the testimony to be elicited. (In re Mark C., supra,
In sum, the record is far too vague and indefinite to permit us to determine defendant’s claim of prejudicial error. Defendant’s objections to the trial court’s in limine ruling are therefore properly rejected.
9. Refusal to Excuse Juror Duba
Late in the penalty phase, it came to light that Juror Ronald Duba was seen on the fourth floor of the courthouse (the jail floor), and that he there observed Transportation Deputy Matthew Powers and another deputy taking defendant out of the elevator. The morning after the incident, the court
At the hearing, the court questioned Duba and Deputy Powers on the stand, eliciting the following testimony. During his initial examination, Duba explained he was on the fourth floor because he had wanted to make a telephone call to his wife. He had picked the fourth floor over the first and second floors because he wanted more privacy. Duba represented he was capable of making a decision in the trial independent of his observation of defendant, and had no doubts he could put the incident out of his mind. Deputy Powers confirmed that Duba was sitting down by one of the telephones on the jail floor as he and another deputy were transporting defendant, who was handcuffed in front, to the jail. Duba saw them from between 15 and 20 feet away. When Powers asked Duba what he was doing there, Duba replied he was going to use the telephone to call his wife. Powers saw that Duba was writing something down in a spiral notebook, but did not see Duba use the telephone. Powers immediately reported the incident to the trial judge. When recalled for questioning, Duba clarified that what he was writing in his notebook were things he wanted to remember from trial. Duba had been taking notes this way periodically throughout the trial, and on this occasion he had decided to write his thoughts in his notebook before calling his wife. Duba also affirmed that he was not on the fourth floor to do any investigation. After ascertaining that Duba could disregard his observation of defendant and that he would not discuss the incident with the other jurors, the court allowed Duba to remain on the jury.
Defendant contends Duba’s actions constituted juror misconduct and that the trial court erred in denying his request to replace Duba with one of the five alternate jurors.
To succeed on a claim of juror misconduct, “defendant must show misconduct on the part of a juror; if he does, prejudice is presumed; the state must then rebut the presumption or lose the verdict. [Citation.]” (People v. Marshall (1990)
The Attorney General does not dispute whether a juror’s apparently innocent, inadvertent receipt of outside information constitutes true
As we explained in People v. Marshall, supra, the substantial likelihood test is “ ‘an objective standard. In effect, the court must examine the extrajudicial material and then judge whether it is inherently likely to have influenced the juror.’ [Citation.] HD Such ‘prejudice analysis’ is different from, and indeed less tolerant than, ‘harmless-error analysis’ for ordinary error at trial.” (
Even assuming that Juror Duba’s unauthorized observation of defendant was improper, it could not have had any prejudicial effect. Defendant’s appearance in custody and in handcuffs on the jail floor after court proceedings had concluded for the day was hardly inflammatory or surprising given the postconviction stage of the trial. It therefore was not inherently likely to have influenced the juror.
Moreover, the perceived misconduct was de minimis and immediately brought to the trial court’s attention. At a hearing held outside the presence of the other jurors, Duba explained that his presence on the fourth floor was for the innocent purpose of making a telephone call in private, and was not an effort to gather extrinsic evidence. When asked by the court, Duba gave assurances that he could disregard his observation of defendant, that he could carry out his oath as a juror, and that he would not discuss the event with the other jurors. The trial court, in allowing Duba to remain on the jury, implicitly determined after observing Duba’s demeanor that his statements were credible. Under these circumstances, we will defer to the trial court’s determination that Duba’s neutrality and impartiality were not compromised by his observations. (See People v. Zapien, supra, 4 Cal.4th at pp. 993-994 [deferring to trial court’s determination that juror appeared honest].)
We find no merit to defendant’s claim that the trial court’s prejudice analysis was deficient because the effect of Duba’s observation of defendant
We also reject defendant’s claim that a reversal is warranted based on the trial court’s erroneous consideration of the number of remaining alternate jurors. The fact that the court referred to this irrelevant factor does not undermine the soundness of its determination that Duba’s unauthorized observation would not result in prejudice to defendant.
“In view of the foregoing, we conclude that the misconduct in question does not support a finding that there is a substantial likelihood that any juror was impermissibly influenced to the defendant’s detriment. Therefore, we must hold the misconduct to be nonprejudicial.” (People v. Marshall, supra,
10. Court’s Rulings and Remarks Regarding the Defense’s Arguments
Defendant contends that the trial court made erroneous and unfair comments when ruling on two prosecution objections during the defense’s closing argument. He also contends that the court’s overall treatment of the defense was unfair in comparison to its treatment of the prosecution. We disagree.
During closing argument, defense counsel reminded the jury that an allegation of personal gun use (§ 12022.5) against defendant was dismissed when defendant pleaded guilty to a charge of assault with a deadly weapon (§ 245) on Frank Roach. Counsel continued; “What does that mean in simple layman’s language? That means that the allegation as part of that charge that Mr. Rodrigues was the shooter, used a gun, 12022.5 means used a gun, got a gun in his hand, pulled the trigger, that was dismissed.” At this point, the prosecutor objected and the following exchange took place: “[Prosecutor]: I would object, your Honor. That’s a misstatement of the law, as the court well knows, it’s an additional sentencing enhancement that does not erase from the underlying charge the use of the weapon. [Defense counsel]: I’m stating what the 12022.5 is, and it’s a use of the weapon. [The court]: However, it still does not detract from the fact of the charge itself, so the objection is sustained.”
First, defense counsel’s sole comment in response to the prosecutor’s objection was; “I’m stating what the 12022.5 is, and it’s a use of the weapon.” After the court made its ruling, counsel made no attempt to explain or elaborate upon his position. This was plainly insufficient to raise or preserve the arguments defendant makes on appeal.
As defendant apparently concedes, the clear import of the court’s remark, viewed in its proper context, was that weapon use was included in the underlying charge of assault with a deadly weapon and that the dismissal of the enhancement allegation did not detract from that legal fact. We find nothing erroneous about such a remark and nothing in the court’s ruling that foreclosed defense counsel from making the “intended argument” identified by defendant on appeal. In reaching this conclusion, we reject defendant’s claim that the court’s remark effectively told the jury that the underlying conviction of assault with a deadly weapon constituted a finding that defendant personally used a weapon.
Later during his closing argument, defense counsel began to sum up by specifically asking the jury to spare defendant’s life, but the prosecutor again objected and the court again agreed with the prosecutor’s position: “[Defense argument]: You have not seen any evidence which warrants the death penalty in this case. You know by what I said a few minutes ago that Mr. Rodrigues will spend the rest of his life in prison. HD When you are exercising your discretion and your total authority in this case about what is appropriate for the punishment you should determine whether or not Mr. Rodrigues is such a person that the prison system cannot control him that he must be put to death. [ID You have not seen that kind of evidence. [Prosecutor]: Objection, your honor. That’s not the legal standard at all that that should be imposed only if the legal system cannot control the defendant. [The court]: It’s not the legal standard, but it’s argument and I’ll allow it in.”
Defendant next contends that the trial court’s overall disparate treatment of the prosecutor and defense counsel during the penalty phase closing arguments was patently unfair to defendant and constituted prejudicial error. This contention is based on a comparison of the number of overruled defense objections with the fewer number of overruled prosecution objections. He also criticizes as unfair the comments made by the trial court in conjunction with those rulings.
Defendant fails to demonstrate that any of the trial court’s rulings were erroneous, or that the cited remarks were incorrect or resulted in prejudice. Defendant also fails to establish that the court acted inequitably in any way. Whether considered singly or together, the rulings and remarks made by the court furnish no grounds for a reversal of the death judgment.
11. Alleged Erroneous Foreclosure of Defense Counsel’s Argument
After the prosecutor presented his closing argument, defense counsel Edward Thirkell followed with his summation. Near the conclusion of his argument, Thirkell rhetorically asked the jurors if any of them was “so comfortable” with the prosecution’s case and arguments “that you have no concern about another witness coming up, about a lack of compassion, about
Thereafter, the prosecutor made a short rebuttal argument, in which he angrily criticized Thirkell for “incredibl[y]” asking the jurors “to act as the Pope” and to “make a decision in this case that’s in no way related to the evidence.” He characterized Thirkell’s argument not to “take away from God” as “nothing but a shoddy and emotional attempt to get you to abandon your sworn duties as jurors and not to make your decision in this case based on the evidence and on the law.” The prosecutor implored the jurors to be influenced only by the law and the evidence, and “to do justice, which means making a tough decision but one that’s warranted by what the law is for everyone in the state of California.”
Defense counsel Geoffrey Carr then began what he described as a very brief argument in surrebuttal. After some introductory remarks, Carr told the jurors that, contrary to what the prosecutor argued, it was not inappropriate under the law for them to consider sympathy in making their decision. Thereafter, as Carr was arguing about the injustice of a person having to defend against an eight-year-old allegation when no witnesses to the incident could be produced other than the accuser, the prosecutor interrupted with an objection that the argument was clearly beyond the scope of rebuttal. Carr responded that his argument simply went to the meaning of justice and asserted that the case law supported a broad scope of surrebuttal. Although the court appeared to overrule the objection, it told Carr that “to the extent that you’ve made the statement I will allow it in,” but that “if it gets close to going beyond, I won’t allow it.”
Carr continued his argument by emphasizing the injustice of using, as aggravating factors, stale incidents which had not resulted in convictions and as to which there had been failures of proof. When the prosecutor again objected that counsel was going beyond the scope of rebuttal, Carr again responded that the final statement to a jury in a capital case was not so limited. The court made no specific ruling on the prosecutor’s objection, but stated it had discretion as to whether “that other argument is given.” After stating its belief that defense counsel Thirkell had already adequately covered the area Carr was arguing, the court nonetheless allowed Carr’s remark to remain.
Carr then resumed his argument, stating that the “last thing” with which he would leave the jurors was asking them to consider how they might feel
After the jurors were excused, defense counsel Carr stated on the record that he had further argument to make, that he felt he had been unnecessarily foreclosed, and that he felt constrained by the court’s ruling. The court responded: “Mr. Carr, the court is not responsible for your feeling of constraint. The court, in the language, made it clear that you were clear, fully capable, free to make any appropriate argument that you chose to make.”
Defendant contends on appeal that the trial court erroneously foreclosed his surrebuttal argument, thereby constructively denying his constitutional right to counsel and depriving him of other constitutional protections. We cannot agree.
It is firmly established that a criminal defendant has a constitutional right to have counsel present closing argument to the trier of fact. (Herring v. New York (1975)
Under the above authorities, the trial court did not abuse its discretion in limiting defense counsel Carr’s argument. First, contrary to defendant’s assertions, the court did not improperly foreclose arguments attempting to dissuade the jury from using “old, unreliable and inadequately
The situation here is analogous to that in Bonin, supra,
Here, as in Bonin, defendant’s right to assistance of counsel was neither denied nor significantly limited since defense counsel Thirkell presented a full and unrestricted closing argument, in addition to which defense counsel Carr presented surrebuttal argument. To be sure, the court sought to limit Carr to matters raised on rebuttal upon determining that Carr was essentially arguing in areas already covered by Thirkell. But, as noted previously, Carr’s arguments regarding the issues of sympathy and compassion, and of staleness and failure of proof, were allowed to stand despite the prosecutor’s early objections.
Defendant next argues that the trial court’s rulings violated section 1095, which provides in pertinent part: “If the offense charged is punishable
No basis for reversal appears. First, there was no violation of section 1095 here because both of defendant’s counsel were in fact permitted to argue. Second, even if Bonin, supra,
12. Refusal to Instruct on Lingering Doubt
Defendant asked the trial court to instruct the jury as follows: “You are instructed that lingering doubt that the defendant committed the crimes for which he has been convicted of an amount or type less than a reásonable doubt is a factor that may be considered by you in determining which penalty to impose as well as in determining if aggravating factors outweigh mitigating factors.” The trial court refused to give the requested instruction, but permitted the defense to argue to the jury that it could use any residual or lingering doubt as a factor in mitigation or as a reason not to impose the death penalty. Defendant contends that the refusal to give his lingering doubt instruction was error under California law and the federal Constitution, and that such error deprived him of his state and federal rights to due process, a fair trial, protection against cruel and unusual punishment and protection against an arbitrary and unreliable death judgment. We disagree.
Moreover, the trial court’s refusal to give defendant’s lingering doubt instruction did not otherwise amount to reversible error. In People v. Cox, supra, we observed that “[a]s a matter of statutory mandate, the court must charge the jury ‘on any points of law pertinent to the issue, if requested’ [citations]; thus, it may be required to give a properly formulated lingering doubt instruction when warranted by the evidence. [Citations.]” (
13. Refusal to Instruct on Mercy
The trial court refused defendant’s request to instruct the jury: “You are instructed that you may consider sympathy for the defendant or mercy in the general sense in determining which penalty to apply to the defendant.” Defendant contends this refusal was violative of both state law and the Eighth Amendment and constituted reversible error.
14. Refusal to Instruct Regarding Sentence Received by Cynthia Ontiveros
Defendant requested the court to instruct the jury “that in determining the appropriate punishment for the defendant in this case, you may consider the sentence received by Cynthia Ontiveros in return for her testimony. If you find that the imposition of death against Mr. Rodrigues is disproportionate in comparison to the sentence received by Cynthia Ontiveros you must return a verdict of life without possibility of parole.”
As defendant recognizes, we have repeatedly rejected the contention that capital juries must be instructed during the penalty phase to consider the sentences imposed on a defendant’s accomplices. (People v. Danielson, supra,
Defendant asks us to reconsider our position in light of Parker v. Dugger (1991)
In People v. Mincey (1992)
We have reviewed all of defendant’s arguments on this issue and have determined that none supports reversal of his death sentence.
15. Alleged Double Counting of Espinoza Evidence
During the penalty phase, evidence of defendant’s involvement in the 1980 shooting death of Ernest Espinoza was identified to the jury as a factor in aggravation under both factor (b) and factor (c) of section 190.3. Defendant appears to contend that the trial court erroneously failed to instruct the jury with regard to the distinct purposes of the two factors, i.e., that factor (b) evidence shows defendant’s propensity for violence, while factor (c) evidence shows defendant’s habitual criminality has been undeterred by the community’s previous criminal sanctions. (See People v. Melton, supra,
To begin with, the trial court did not err in failing to give an instruction amplifying the distinction between factors (b) and (c) of section 190.3. In the absence of a request by the defendant, a trial court is under no duty to give such an instruction sua sponte. (People v. Hamilton (1988)
Defendant’s claim regarding the prosecutor’s argument fares no better. To the extent defendant is claiming that the prosecutor made impermissible and misleading arguments to the jury, his failure to object and to request a curative admonition waives the claim on appeal. (People v. Noguera, supra, 4 Cal.4th at p. 638.) In any event, the claim is without merit. We have reviewed the record and have determined that the prosecutor’s argument clearly distinguished the two factors, and never suggested that the jury could “double-count” the conduct underlying the incident. No violation of defendant’s state or federal constitutional rights appears.
16. Instructions Regarding Consideration of Unadjudicated Offenses
Defendant contends that, even though the trial court gave a complete version of CALJIC No. 2.90 at the guilt phase, it erred at the penalty phase in refusing to reinstruct as follows: “A defendant in a criminal action is presumed to be innocent until the contrary is proved. In case of a reasonable doubt whether the truth of an allegation is satisfactorily shown, he is entitled to a finding of not guilty. This presumption places upon the state the burden of proving the truth of any allegation beyond a reasonable doubt.” (See CALJIC No. 2.90, 1st par.) Defendant claims this error violated California statutory mandates (§ 1096; Evid. Code, §§ 502, 520), and deprived him of his constitutional rights to due process and a reliable penalty determination.
As defendant acknowledges, the trial court had instructed the jurors at the guilt phase on the presumption of innocence and the prosecutor’s obligation to prove beyond a reasonable doubt. Although the court chose not to repeat those particular instructions at the penalty phase, it nevertheless told the jurors to consider the guilt phase instructions during their penalty phase deliberations, and furnished written copies of the guilt phase instructions. After listing the 10 unadjudicated offenses introduced by the prosecutor, the court instructed the jurors that “before you may consider any of such criminal acts as an aggravating circumstance in this case you must first be satisfied beyond a reasonable doubt that the defendant did in fact commit such criminal acts.” (See CALJIC No. 8.87 (5th ed. 1988).) The court also repeated the definition of reasonable doubt. (See CALJIC No. 2.90, 2d par.)
We find no basis for reversal. A court has no duty under statutory or constitutional law to instruct sua sponte on the presumption of innocence
17. Instruction on Sentencing Discretion
The court gave the 1986 version of CALJIC No. 8.84.2, which reflects the changes suggested in People v. Brown (1985)
Defendant claims that above italicized words rendered the instruction vague, misleading and constitutionally defective. However, if defendant believed the instruction was unclear, he had the obligation to request clarifying language. (See People v. Johnson, supra,
Defendant next claims that the trial court erred in failing to instruct that even if no evidence in mitigation was found, or if the circumstances in aggravation were found to outweigh those in mitigation, the jury nevertheless had discretion to impose life without parole if it determined that such a sentence was the appropriate penalty under all of the circumstances. (See People v. Duncan (1991)
Defendant’s failure to request such clarifications at trial bars appellate review of the issue. (People v. Johnson, supra,
During the penalty phase deliberations, the jury sent the court a note stating: “Can we please have a clarification on the instructions. [^J Does the jury have to be unanimous on the penalty no matter which choice is made? And if the jury happens not to be unanimous what would happen then?” The court discussed the matter with both sides outside the presence of the jury, and the prosecutor agreed with defense counsel’s suggested responses. Pursuant to the parties’ agreement, the court informed the jury that the answer to its first question was “yes,” and that the answer to its second question was, “you are not to speculate on that eventuality. That is a matter which must not in any way affect your decision.”
Defendant now contends, despite his counsel’s express suggestion to the contrary below, that the trial court’s response to the second question violated section 1138
We are not persuaded. Inasmuch as defendant both suggested and consented to the responses given by the court, the claim of error has been waived. (See People v. Cooper (1991)
Defendant seeks to equate the trial court’s failure to advise the jurors that if they were unable to reach a unanimous verdict the penalty issue would be retried by another jury with the situation in Simmons v. South Carolina (1994)
19. 1978 Capital Sentencing Scheme
Defendant argues that the sentencing scheme under California’s 1978 death penalty law is constitutionally flawed in a number of ways. We have repeatedly rejected identical claims, as follows.
Neither the 1978 law nor the instructions given in this case are defective for failing to make express distinctions between aggravating and mitigating circumstances. (People v. Wash (1993)
Defendant also claims that factor (a) of section 190.3 is impermissibly vague under the Eighth Amendment to the federal Constitution or under the reasoning in Stringer v. Black (1992)
Additionally, we reject defendant’s claim that the inclusion of both “circumstances of the crime” and “the existence of any special circumstances” among the factors which a jury may use to aggravate the sentence creates a bias and presumption in favor of death in violation of his constitutional rights. The jury cannot return a death verdict unless it finds, based on the totality of the aggravating circumstances and the totality of the mitigating circumstances, that the aggravating evidence is so substantial in comparison with the mitigating circumstances that it warrants death instead of life without parole. (See People v. Johnson, supra, 6 Cal.4th at p. 52.) Consequently, mere inclusion of the challenged matters as factors in aggravation for the jury’s consideration creates no bias or presumption in favor of death.
20. Automatic Motion for Modification of Death Verdict
“Under section 190.4, subdivision (e), a capital defendant is deemed to have automatically applied for a sentence modification. In ruling on the application, the trial judge must independently reweigh the evidence of aggravating and mitigating circumstances and determine whether, in the judge’s independent judgment, the weight of the evidence supports the jury verdict. [Citation.] The judge must also state on the record die reasons for the ruling. [Citation.]” (People v. Mincey, supra,
First, defendant claims that the trial court’s statement of reasons indicates that it committed error by treating the absence of a particular mitigating factor as an aggravating factor. (See People v. Davenport (1985)
The court’s brief comment does not support defendant’s speculative contention. The record makes clear that the court was not urged to treat the absence of any mitigating factor as an aggravating factor. Moreover, defense counsel’s failure to make the relevant objection supports our conclusion that
Second, defendant claims that in denying his motion, the trial court improperly considered the January 1, 1981, arson incident at Susanville and the November 2, 1984, incident involving threats to Leo Rodriguez because those incidents neither constituted “criminal activity” nor involved “the use or attempted use of force or violence or . . . the express or implied threat to use force or violence” as required under section 190.3, factor (b).
Even assuming the above evidence was improperly considered, the record as a whole demonstrates that defendant was not prejudiced. In denying defendant’s motion, the trial court emphasized the heinous nature of the underlying crime: “the circumstances of the murder were particularly savage and brutal and reflected a high degree of cruelty, viciousness and callousness on the part of the defendant.” The court determined that “the evidence that the victim was stabbed over 20 times, coupled with the ultimate death by loss of blood, reflects extreme and gratuitous violence, and presents a strong factor in aggravation.” The court also reviewed the evidence, evaluated the credibility of the witnesses and found beyond a reasonable doubt that defendant committed each of the other eight criminal offenses introduced by the prosecutor, and that he had been convicted of being an accessory to murder, and of burglary and auto theft. Finally, although the court found some evidence in the record of mitigating factors such as defendant’s childhood home life and his relationships with family members and neighborhood peers, it nonetheless concluded that the evidence in aggravation was overwhelming and substantial by comparison. Since the statement of decision makes apparent that the trial court did not deem the issue of penalty to be a close one, no remand is warranted. (People v. Daniels (1991)
Third, defendant claims that the trial court erroneously considered his prior felony conviction for accessory in the Espinoza matter as a conviction for the crime of accessory to murder. However, it is extremely doubtful that the trial court, having found beyond a reasonable doubt that defendant was criminally responsible for Espinoza’s killing, would have arrived at a different conclusion had the conviction been otherwise characterized.
Fourth, defendant complains that, although the trial court expressly found that accomplice Cynthia Ontiveros’s testimony was adequately corroborated
We find nothing in the record that reasonably supports defendant’s assignment of error. The trial court explicitly found “the evidence concerning the truth of the special circumstances; to wit, that the defendant committed a murder during the commission of a burglary, and an attempted robbery to be overwhelming. . . .” It further found “that the jury’s verdicts, finding the defendant guilty of murder in the commission of burglary and attempted robbery, to be supported by evidence beyond a reasonable doubt, and to be neither contrary to the evidence nor the law.” After having reviewed the record, we conclude that the evidence more than adequately supports the jury’s verdict that defendant killed Juan Barragan during the commission of a burglary and attempted robbery, and find that the trial court independently and correctly reached the same conclusion in passing on defendant’s modification motion.
21. Effect of Alleged Errors
Defendant claims that the various asserted statutory and constitutional violations, both singly and in combination, denied him due process and undermined the reliability of the death verdict. Whether or not expressly discussed, we have considered and rejected as being without merit all of these claims. (See People v. Mickle, supra,
III. Disposition
For the reasons stated above, we find no reversible error in the record. The judgment of death is affirmed in its entirety.
Lucas, C. J., Kennard, J., Arabian, J., George, J., and Werdegar, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
Although this opinion refers to the brothers as Zavala and Barragan, the reporter’s transcript reflects that witnesses sometimes referred to Zavala as “Moro” or “Zavala Barragan,” and to Barragan as “Andre.”
Zavala knew Ontiveros as “Cyndia.”
Zavala testified the sale was for $80.
Ontiveros knew defendant as “Baloney” or “Bologna.”
Although Ontiveros referred to a crowbar, she was shown a photograph of a tire iron and recognized it as the item Garcia obtained from the car trunk.
Zavala testified he could not see the actual stabbing.
The court interpreter translated “Cálmate cabrón” as “Calm down you son of a bitch.”
Defendant’s last name is Rodrigues. The last name of his brother, Raymond, is spelled Rodriguez; and the last name of his sister, Norma, is spelled Rodriquez.
Raymond, who had been in prison before, stated on cross- and redirect examination that he felt “pressured” to testify the way he did at the preliminary hearing for fear of being arrested and charged.
Officer Allen Taitón testified that he kept a log of the people who came to the scene, but that it was incomplete and did not include, for example, the firefighters who had arrived initially to assist the victims.
Calles testified he was half White and half Puerto Rican.
Defendant was represented at trial by Edward Thirkell and Geoffrey Carr. This opinion does not distinguish between the two counsel unless relevant to an issue on appeal.
These hearings were conducted in camera. The transcripts have been ordered unsealed.
Defense counsel did not explain the reference to “two major seizures.” The defense investigator had earlier indicated that defendant’s mother mentioned only one seizure.
Defendant recasts his claim as one based on the failure of the lower courts to appoint an expert under Evidence Code section 730 to examine him. (See People v. Campbell (1987)
The motion in limine asserted that the videotape did not accurately represent what it purported to show, and that its probative value was outweighed by its potential prejudicial effect. Additionally, defense counsel requested that the videotape not be shown to Vargas for purposes of refreshing her recollection because its inaccuracies would color her testimony. The prosecutor opposed the motion, arguing that the videotape would aid the jury as demonstrative evidence showing the relative locations of the victims’ and Vargas’s apartments, the stairway, and Vargas’s vantage point in witnessing the assailants flee the scene. In denying the motion, the trial court ruled that the videotape would be admissible so long as the proper foundation was laid, and determined that Vargas could view the videotape to refresh her recollection.
Defendant also objects to other portions of the videotape that panned the apartment building and the surrounding area, showing the stairway and its position relative to Vargas’s apartment. Two of these scenes showed different perspectives of the bottom of the stairway, Vargas’s door and her window, with one zooming in to a close-up. In these scenes, Vargas’s apartment door was standing open, although she did not testify that the door was open on the night of the crime. Defendant contends this film footage wrongly suggested that Vargas could have seen the fleeing suspects through the doorway, as well as through the window, and that her ability to have seen the suspects was much greater than her testimony warranted.
The same is true for those videotaped scenes which were intended to show the length of time that the assailants turned to look in Vargas’s direction and the direction in which they ran. According to the record, Vargas’s testimony verified the accuracy of the videotaped depictions in this regard.
In his reply brief, defendant contends that the videotape may have subliminally suggested to Vargas that her ability to recall what she saw the night of the murder was much greater than her own memory warranted. Since the record discloses no basis for defendant’s assertion, we decline to engage in such speculation.
Defendant also claims that admission of the videotape violated his state and federal constitutional rights to due process, a fair trial, a reliable guilt determination in a capital case and the fair application of state law. We reject these claims. At trial, defendant failed to make any such objections. (People v. Ashmus (1991)
We are not persuaded by the claim that Vargas’s identification of defendant was questionable because she had stated at various times during the investigation that she had seen a Black man fleeing with Garcia. The record reasonably demonstrates that Vargas had used the term “Black” to describe a person with a skin tone darker than her own, not a person of African-American ethnicity. For instance, when the prosecutor showed Vargas a photo of defendant at trial, she stated: “That’s the person I saw when I saw him coming down the stairs.” The prosecutor then asked: “And the skin tone in this photograph, is this closer to what you remember?” Vargas replied: “Yes, dark. Black.” Similarly, when defense counsel asked Vargas whether she repeatedly called the suspect a Black man to police because she was afraid, Vargas responded: “Yes, I said—I didn’t say—not in that kind of—the way you’ve made it sound, just because of that. I just said a Black man, because to me he was a Black man. I even call my brother Black man. He’s very dark. I’m very light skinned.” This testimony, which effectively clarified that Vargas was not referring to an African-American when she used the terms “Black” and “Black man,” is consistent with testimony and statements by Zavala and nearby resident Vanessa Stums that the two fleeing suspects were Hispanic.
Defendant identifies other minor discrepancies in Vargas’s early descriptions of the suspects and in her recollection of the events. Such discrepancies do not persuade us any differently.
Defendant also claims for the first time on appeal that the erroneous admission of the prior identification denied him due process, a fair jury trial and a reliable guilt determination. Not only have these claims been waived by the failure to assert them below (Evid. Code, § 353), the admission of the evidence did not substantially implicate any of the cited constitutional protections. In any event, the error was harmless under any standard. (See Chapman v. California (1967)
Defendant also contends that the erroneous admission of the challenged evidence denied him due process, a fair jury trial and a reliable guilt determination in a capital case. We cannot agree. Not only have these claims been waived by defendant’s failure to assert them at trial, but by any standard, the perceived error was harmless. (See Chapman v. California, supra,
Defendant argues that, like a positive identification, a failure to identify is evidence either of a statement or of assertive conduct intended as a substitute for oral or written verbal expression. (See People v. Mayfield (1972)
On a related note, the Attorney General contends that the prior identification exception to the hearsay rule (Evid. Code, § 1238) furnishes a basis for the admission of nonidentification evidence. Since we conclude that admission of the evidence was harmless in any event, we decline to address this issue.
The evidence concerning the possible involvement of Lopez and Howard is fairly summarized as follows. Lopez, who was Ontiveros’s live-in boyfriend, was present at the bar with Ontiveros on the night of the murder. According to Ontiveros, Lopez left the bar before she discussed the proposed robbery with Garcia and defendant. Howard, who appeared to be African-American, was called as a witness by defendant and testified that he grew up with Juan Garcia and described himself as a “partner” of Garcia’s. According to defendant, Howard “somewhat resembles” a composite drawing done by a sketch artist from Vargas’s descriptions the day after the murder.
Defendant belatedly contends for the first time on appeal that the erroneous admission of the challenged evidence denied him due process, a fair jury trial and the right to present a defense, and a reliable guilt determination. Even if the issue is not deemed waived (Evid. Code, § 353), the perceived error did not violate any of defendant’s constitutional rights. Moreover, by any standard, the error was harmless. (See Chapman v. California, supra,
The jury had initially requested “Maria Vargas testimony on when she saw photo line up." The request at issue here followed the trial court’s instructions to the jury to narrow its initial request.
The specific portions requested by defense counsel were: (1) Vargas’s testimony allegedly showing that she had not become upset at defendant’s preliminary hearing immediately after identifying him; (2) her statement that she did not identify accomplice Garcia at his lineup because she was afraid; and (3) her testimony to the effect that she had not gotten over her fear when she identified defendant at the preliminary hearing. Defendant contends these
The defense case was not based on the theory that Zavala may have killed his brother; nor was there any evidence to support such a theory.
Defendant further claims that the trial court’s erroneous exclusion of the proffered evidence, the prosecutor’s misconduct and counsel’s ineffectiveness violated or abridged his federal constitutional rights to due process, a fair guilt trial and a reliable verdict at the guilt phase of a capital case. We reject these claims. At trial, defendant failed to make any objection whatever based on any federal constitutional provision. (People v. Ashmus, supra, 54 Cal.3d at pp. 972-973, fn. 10.) Moreover, these points are not properly raised. {Id., at p. 985, fn. 15.)
For the same reasons, we reject defendant’s claims, belatedly asserted for the first time on appeal, that the exclusion of the evidence deprived him of the rights to present a defense, to due process and a fair trial, and to a reliable special circumstance and penalty determination.
The jury had been instructed that Ontiveros was an accomplice as a matter of law.
Pointing to the evidence that Garcia did not immediately go to the closet to obtain whatever “it” was once Zavala responded to Garcia’s question, defendant argues that the question cannot logically be deemed an “immediate step” in the execution of an intended robbery which would have been completed if not interrupted by some unintended circumstance. (See CALJIC No. 6.00 [defining “attempt”].) Defendant is wrong. A jury could reasonably infer that, but for the telephone ringing, Garcia would have gone directly to the closet once he “finished” Zavala pursuant to defendant’s instruction.
Because we reach this conclusion, we need not and do not address defendant’s contention that it cannot be determined from the record whether any or all of the jurors found defendant guilty of murder on a theory of premeditation and deliberation. We also do not address his contention that, in the event of a reversal, principles of double jeopardy preclude a retrial on the charges and special circumstance allegations prosecuted in this case. Finally, we do not address the Attorney General’s contention that defendant’s arguments “do not affect his burglary conviction and felony-murder special circumstance based on burglary because, based on [defendant’s] theoiy, he could have entered the apartment to kill rather than to rob and kill.”
These out-of-court statements described how Ontiveros, Garcia and defendant planned the robbery, and were not materially different from the testimony Ontiveros gave at trial. Evidence of these statements was provided through the testimony of Menlo Park Police Detective Terri Molakides.
Given the specific nature of the court’s instructions on accomplice corroboration, we are unpersuaded by defendant’s suggestion that the jury was misled by the trial court’s more general instruction that a witness’s prior consistent or inconsistent statements may constitute “evidence of the truth of the statement as stated by the witness on such former occasion.”
At the time, the prosecutor told the court he was “kind of going through this for the first time using a conspiracy instruction on the theory of admissibility of evidence as opposed to culpability for a crime.”
Defendant did not object to the admission of Garcia’s question into evidence, nor is he contending on appeal that such evidence was erroneously admitted.
The trial court instructed: “[1 Evidence has been received from which you may find that an oral statement of intent was made by the defendant before the offense with which he is charged was committed. [•]]] It is your duty to decide whether such a statement was made by the defendant. [I Evidence of an oral statement ought to be viewed with caution.”
Portions of Ontiveros’s testimony supporting this conclusion include the following: “Q [Prosecutor]: . . . When you started discussing with Mr. Garcia and Mr. Rodrigues the young brothers in Menlo Park that you could get drugs from, did you discuss a plan about how to get drugs from them? A [Ontiveros]: Yes. Q: Can you describe for the ladies and gentlemen of the jury the conversation among the three of you concerning how you could go about getting the drugs from the brothers. [Defense counsel]: Objection. Leading as to who the conversation was with. [Prosecutor]: I’ll withdraw the question and rephrase it, your honor. The court: Very well. Q [Prosecutor]: Did the three of you discuss the plan? A [Ontiveros]: Yes. Q: And can you describe to the jury in detail, as you recall it, what your conversation was, what the plan was that you devised to get drugs from the brothers? A: Well, I said that I would go up to the door. And they knew me, so I knew that they would open the door. And at that point, when the door was open, that they could rush in after me. . . . Q: When you were talking over with Mr. Garcia and Mr. Rodrigues the plan by which you would go over and get the door open, and the two men could rush in and scare the brothers into giving up their drugs—[Defense counsel]: Objection. Misstates the evidence. This was
The court instructed: “If you should find that from the evidence, if you should find from the evidence that there was an occasion outside of, outside of court when the defendant, under conditions which reasonably afforded him an opportunity to reply, failed to make'denial in the face of an accusation expressed directly to him or in his presence charging him with the crime for which he is now on trial or tending to connect him with its commission, and if you should find that he heard the accusation and understood its nature; the circumstances of his silence on that occasion may be considered against him as indicating an admission that the accusation thus made was true. Evidence of such an accusatory statement is not received for the purpose of proving its truth, but only as—as it supplies meaning to the silence of the accused in the face of it; and unless you should find that his conduct at the time indicated an admission that the accusatory statement was true, you should entirely disregard the statement.”
The trial court instructed on CALJIC No. 2.03 as follows: “If you find that before this trial the defendant made willfully false or deliberately misleading statements concerning the charge upon which he is now being tried, you may consider such statement as a circumstance tending to prove a consciousness of guilt, but it is not sufficient of itself to prove guilt. The weight to be given such a circumstance and its significance, if any, are matters for your determination.”
The court instructed on CALJIC No. 2.04 as follows: “If you find that a defendant attempted to persuade a witness to testify falsely or try [sic] to fabricate evidence to be produced at trial, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt. However, such attempt is not sufficient to prove guilt and its weight and significance, if any, are matters for your determination.”
The court instructed on CALJIC No. 2.06 as follows: “If you find that a defendant attempted to suppress evidence against him in any manner such as by destroying or by concealing evidence, such attempt may be considered by you as a circumstance tending to show a consciousness of guilt, [q] However, such evidence is not sufficient in itself to prove guilt, and its weight and significance, if any, are matters for your consideration.”
Because we reach this conclusion, we do not address whether the apparent disappearance of defendant’s bloodstained clothes would have independently supported this instruction.
Defendant’s claim that counsel was ineffective for failing to request the proposed instructional modifications must be rejected on appeal. Counsel’s omission was consistent with the defense strategy challenging identity, and thus appears to have resulted from an informed tactical choice within the range of reasonable competence. (See People v. Diaz (1992)
The trial court instructed as follows: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only consistent with the theory that the defendant is guilty of the crime, but cannot be reconciled with any other rational conclusion. [1 Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance upon which such inference necessarily rests must be proved beyond a reasonable doubt, [in Also, if the circumstantial evidence as to any particular count is susceptible of two reasonable interpretations, one of which points to the defendant’s guilt and the other to his innocence, it is your duty to adopt that interpretation which points to the defendant’s innocence and reject that interpretation which points to his guilt. [qQ If, on the other hand, one interpretation of such evidence appears to you to be reasonable, and the other interpretation to be unreasonable, it would be your duty to accept the reasonable interpretation and reject the unreasonable.”
CALJIC No. 2.02 provides: “The [specific intent] [or] [mental state] with which an act is done may be shown by the circumstances surrounding the commission of the act. But you may not find the defendant guilty of the offenses charged [in Count(s)_,_,_and _], unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required [specific intent] [or] [mental state] but (2) cannot be reconciled with any other rational conclusion. FD Also, if the evidence as to [any] such [specific intent] [or] [mental state] is susceptible of two reasonable interpretations, one of which points to the existence of the [specific intent] [or] [mental state] and the other to the absence of the [specific intent] [or] [mental state], you must adopt that interpretation which points to the absence of the [specific intent] [or] [mental state]. If, on the other hand, one interpretation of the evidence as to such [specific intent] [or] [mental state] appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.” According to the Use Note to CALJIC No. 2.02, the instruction “is designed for use instead of CALJIC 2.01 in a specific intent or mental state case in which
The version of CALJIC No. 3.31 given by the court read: “Now, in the, in each of the crimes charged in the information, namely murder, attempted robbery and burglary, there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator, and unless such specific intent exists, the crime to which it relates is not committed. [<J] The specific intent required is included within the definition of the crimes charged.”
The court instructed as follows: “['ll] Now, to find that the special circumstance, referred to in these instructions as murder in the commission of burglary or robbery, is true, it must be proved; ['ll] One, that the murder was committed while the defendant was engaged in the commission or attempted commission of a burglary or robbery; [IQ Two, that the defendant intended to kill a human being or intended to aid another in the killing of a human being; [‘¡Q Three, that the murder was committed in order to carry out or advance the commission of the crime of, crime of burglary or attempted robbery or to facilitate the escape therefrom or to avoid detection. [QQ In other words, the special circumstances referred to in these instructions is not established if the burglary or attempted robbery was merely incidental to the commission of the murder. [QQ Now, the mental state with which an act is done may be manifested by the facts surrounding its commission. You may not find the special circumstances charged in this case to be true unless the proved facts not only are consistent with the theory that the defendant had the required mental state, but cannot be reconciled with any other rational
Relying on People v. Salas (1976)
Pursuant to section 1252, the Attorney General contends on appeal that the trial court erroneously excluded forensic evidence establishing that defendant’s allegedly rare blood type was found at the crime scene. In response, defendant contends this issue is not properly before us and is without merit in any event. We need not and do not address such contentions in light of our conclusion that none of defendant’s claims warrants reversal of his convictions.
During initial questioning by the court, Levario indicated she would not always and in every case vote either for or against the death penalty, even though she had “mixed emotions” about her ability to impose the death penalty. She stated during defense questioning that she could follow the court’s instructions during the penalty phase. Later on, Levario indicated during the prosecutor’s questioning that she believed she would have a problem voting for the death penalty, even if the evidence supported such a penalty. After noting Levario’s contradictory responses, the trial court asked several questions for clarification. “Q [The court]: Now, if you imagine that after you’ve heard the evidence of aggravation and mitigation, that is, the bad as opposed to the good, and you find that the bad outweighs the good and that the bad is substantial when compared to the good, and you are faced with the possible choice between the two penalties, if you thought that the evidence in this case justified it, that is, justified the death penalty, could you vote to put someone to death? A [Levario]: I don’t think so, no. Q: And are you saying that under no circumstances in any case could you ever vote in such a fashion? A: No. I—I—. Q: Even though you felt that the evidence in the case justified the death penalty are you saying that you could in no case vote for the death penalty? A: I think that’s the way I feel right now, yes. Q: You’re certain of that? A: It’s a hard question.” Thereafter, the court rephrased the question one last time. “Q: Are you telling us that in, under no circumstances in any case even though you felt that the penalty of death was justified that could you vote for death? A: I don’t think so. I—I just can’t understand really the death and the life imprisonment, it, to me it’s just an, almost just as bad life imprisonment.”
Cassiday initially indicated during the court’s questioning that she could impose the death penalty if the evidence justified it. She also stated during the defense’s questioning that she was “for” the death penalty, but would very cautiously weigh the circumstances before making a penalty decision. But Cassiday began to equivocate when the prosecutor asked her: “Okay. The real question is if you’re faced with that situation in which you’ve made that independant [sic] decision you’ve come across it fairly and honestly and you’ve come to the conclusion, ‘Yes, this is a case that warrants the death penalty,’ is there going to be any
Evidence Code section 402 provides: “FID (a) When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. [‘¡Q (b) The court may hear and determine the question of admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests. [<1 (c) A ruling on the admissibility of
Because any delay in notice was harmless, there is no need to address defendant’s contention that, although the prosecutor might have first “learned” of the possible identification evidence from an individual named Hilario Rodriguez shortly before the penalty phase began, notice was nonetheless untimely under section 190.3 because the prosecutor knew of Rodriguez before trial and could have interviewed him and obtained the information regarding Mitchell at that time. There is likewise no need to address his contention that, in addition to the statutory notice provision, a discovery order issued in April 1988 allegedly required the notice sought here.
Defendant additionally claims he was prejudiced because the photo lineup shown to Mitchell shortly after the shooting was lost or destroyed in 1980. According to defendant, the loss of the lineup rendered him unable to determine whether Mitchell’s photo identification of him was made from a suggestive or otherwise unfair lineup. This claim was not. advanced in defendant’s mistrial motion and is not properly before us.
Defendant further claims that his right to effective confrontation was violated since the penalty jury was allowed to absorb Mitchell’s in-court identification for two weeks before the defense was in a position to undertake an effective examination. This claim was not asserted at trial, and it lacks merit in any event. In the first place, defense counsel conducted a full cross-examination of Mitchell immediately after conclusion of the direct examination. Second, defendant concedes on appeal that Mitchell’s resumed testimony, if anything, strengthened his earlier identification of defendant. We agree with this assessment; after having seen defendant’s brother Raymond both in person at trial and in a 1987 photograph, Mitchell stated unequivocally that it was defendant, not Raymond, who shot Espinoza. Therefore, we fail to see how an earlier presentation of such damaging testimony could have made defendant’s examination of Mitchell more effective.
Defendant claims the trial court in the Espinoza matter was wrong in concluding that accessory to a felony was a “necessarily lesser offense” of murder. (See fn. 60, post.) We agree. (People v. Preston, supra,
Such evidence included a photo lineup used by one of the investigating officers, clothes of the victim and of one of the codefendants, bullets taken from the victim’s body, and, possibly, laboratory tests performed on the bullets.
Penal Code section 32 provides as follows: “Every person who, after a felony has been committed, harbors, conceals or aids a principal in such felony, with the intent that said principal may avoid or escape from arrest, trial, conviction or punishment, having knowledge that said principal has committed such felony or has been charged with such felony or convicted thereof, is an accessory to such felony.”
The transcript reflects the following interchange. “The clerk: Jose Rodriquez [sic], to the crime of a felony, to wit, murder, a violation of Section 187 of the Penal Code, as charged in the Information, how do you plead, guilty or not guilty? Defendant Jose Rodriquez [sic] (repeating after [counsel]): I plead guilty to Section 32 of the Penal Code, accessory after the fact. The Court: The Court finds that Section 32 is a necessarily lesser offense charged in the Information, and accept [sic] the plea.”
The prosecutor argued: “More importantly, the question may arise in your mind, are you foreclosed from making your own independent determination of what exactly Mr. Rodrigues did or did not do at the time of the killing of Ernest Espinoza. At the time Mr. Espinoza was set upon by a gang much as a pack of wolves might set upon its prey and stabbed, and gunned down on the streets of Oakland like a dog? []Q Are you precluded from determining as to how that event occurred? Of course not. If that were the case, you would not have been permitted to hear the testimony, the testimony that’s been regulated by the rules of evidence and by the watchful eye of Judge Shelton, who is the trial judge in this case, has sat there for the purpose
The court also conducted a hearing pursuant Evidence Code section 402 prior' to the presentation of the Jill M. evidence to the jury. Although the court had initially indicated some concerns as to the existence of credible evidence of the alleged assault on Jill, the court ultimately decided, after Jill gave testimony outside the presence of the jury, that there was “plausible evidence in the record to indicate that, in fact, there is a strong probability that it is true. . . .”
Pollack testified that he showed Jill M. a number of photos, including twelve color photos in a stack and two groups of black and white photos containing five photos each.' Pollack still had a written record of whose photos were in the color lineup, and was able to describe most of those individuals. He remembered that defendant was depicted in the color photos, but not in the others. Pollack also testified that the photos “were all fairly similar,” that most of the photographed individuals were in the same age group and were fairly similar in stature, ranging from five feet, nine inches to five feet, ten inches in height and weighing between one hundred fifty and one hundred sixty pounds.
For the same reasons, we reject defendant’s related contention that his federal constitutional rights were violated because Jill M.’s fear testimony was inherently prejudicial and gave the prosecutor an unfair and significant advantage.
The defense called Oscar Payne, who testified that he and another participant had fired the gun, but that defendant had not touched it.
The testimony of these two witnesses suggested nothing improper about the lineup. In particular, the officer testified that he showed Roach six photos of individuals of the same race with similar hair color, complexion and weight. Furthermore, he stated that he admonished Roach that the person involved in the shooting may or may not be present in the photos, and that he should not feel obligated to identify anyone.
In his reply brief, defendant appears to additionally contend that the Calles evidence should have been excluded entirely because the April 13 notice was not provided “within a reasonable period of time as determined by the court, prior to trial.” (§ 190.3, italics added.) Defendant contends that in this case, the statute required notice prior to April 11, the date that trial was scheduled to commence. This claim is rejected. The April 13 notice was filed three weeks prior to the commencement of jury selection, and defendant sought no continuance. Thus, whether or not there was a technical violation of section 190.3, under circumstances such as these there was no denial of any substantial right protected by the statute. (People v. Johnson, supra,
Once the trial court ruled the Calles evidence admissible, other evidence was presented to the jury which further strengthened the prosecutor’s case. Calles testified that when defendant moved behind him, no one else was back there within arm’s reach. In addition, a correctional officer testified that he interviewed defendant as a suspect on the day of the assault and saw that he had abrasions on his knuckles, although defendant had claimed he got them from working out on a punching bag.
At the time of defendant’s trial, section 148, subdivision (a) provided in pertinent part: “Every person who willfully resists, delays, or obstructs any . . . peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment, ... is punishable by a fine . . . or by imprisonment. . . , or by both such fine and imprisonment.” (§ 148, subd. (a), as amended by Stats. 1987, ch. 257, § 1, p. 1260.)
Section 71 provides in pertinent part: “Every person who, with intent to cause, attempts to cause, or causes, . . . any public officer ... to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense »>
In light of our conclusion that any error in admitting the Rodriguez evidence was harmless, we do not address defendant’s additional claims regarding inadequate notice (§ 190.3) and unavailable evidence, or his contention that the incident was inadmissible to show defendant’s adjustment in prison (see People v. Taylor, supra,
Moreover, in reaching our conclusion, we have considered the fact that the prosecutor’s closing argument asked the jury to consider, based on defendant’s past record, whether defendant would present a threat or danger to others in prison if sentenced to life without possibility of parole. Although a prosecutor may not initiate introduction of expert testimony on the issue of future dangerousness of a defendant, he or she may argue the issue so long as the arguments do not render the penalty trial unfair. (People v. Miranda, supra, 44 Cal.3d at pp. 110-111; see also People v. Taylor, supra,
The defense also argued that an injury allegedly suffered by Shipman was caused by a different fire located elsewhere in the prison. The trial court agreed with this aspect of defendant’s argument and that issue is not before us.
Section 451 provides in pertinent part: “A person is guilty of arson when he or she willfully and maliciously sets fire to or burns or causes to be burned or who aids, counsels or procures the burning of, any structure, forest land or property,”
Defendant’s related federal constitutional claims are also rejected. First, the claims were waived by defendant’s failure to assert them at trial. Second, the state law error at issue does not rise to the level of a constitutional violation. (People v. Brown, supra,
The prosecutor had initially sought to introduce evidence of both of these incidents in its case in aggravation, but the trial court ruled that the prosecutor’s notice with respect to the Gomez stabbing incident was insufficient under section 190.3.
According to the trial court, evidence of the attempted escape was inadmissible under Evidence Code section 352 since it was more prejudicial than probative. This aspect of the court’s ruling is not at issue here.
FederaI Rules of Evidence, rule 609(a)(1) requires the trial court to weigh the probative value of the conviction against its prejudicial effect.
We did, however, hold that our decision to adopt the Luce rule was to be given prospective effect only. (42 Cal.3d at pp. 388-389.)
For all we know, defendant himself might have been one of the witnesses, thus strengthening the argument for application of the Luce rule.
We have held that where a defendant’s evidence painted a general picture that he was well-behaved, the prosecutor was properly permitted to introduce evidence of the defendant’s acts of delinquency, including incidents of violence, which related directly to that general picture. (People v. Mitcham, supra,
Defendant additionally contends that if counsel’s decision not to present mitigating evidence in the face of the trial court’s ruling is deemed unreasonable, such omission would constitute ineffective assistance. Because the appellate record does not contain the defense evidence at issue, it provides no basis for assessing whether counsel’s performance was deficient or prejudicial. (See People v. Whitt (1990)
Indeed, when asked by the trial court, Duba stated that, although he had not previously concluded that defendant was being held in jail during the trial because he had not received any information in that regard, the fact that defendant was with the two deputies on the jail floor “made sense” to Duba at the point he saw them.
For the record, we note that defense counsel did not request the trial court to ask Duba about defendant’s handcuffed state even though he was clearly given the opportunity to do so.
Defendant asserts that his two defense counsel had agreed to divide closing argument between them, with Thirkell stressing fact-based points and Carr appealing to the jurors’ consciences and sense of compassion and abiding justice. Thus, defendant claims, even if Thirkell’s argument was entirely unrestricted, it could not fill the void created by Carr’s
In his reply brief, defendant claims in the alternative that he was denied effective assistance of counsel if Carr could have completed his intended penalty phase arguments in view of the court’s rulings but chose not to because he misread the situation. Since, among other things, the nature and likely effect of Carr’s intended argument cannot be ascertained from the record, the claim is rejected on appeal.
For the same reasons, we disagree with defendant’s additional claim that a reversal is warranted because an alternate juror was substituted in at the penalty phase. (See People v. Price, supra, 1 Cal.4th at pp. 488-489 [rejecting argument that substitution of juror at penalty phase required court to give various residual doubt instructions sua sponte].)
According to defense counsel’s closing argument, Ontiveros received a four-year sentence.
In his opening appellate brief, defendant suggests that the trial court volunteered or otherwise undertook to assume the duty of drafting an appropriate instruction. This suggestion is not supported by the record.
The prosecutor’s argument correctly told the jury: “One thing you should bear in mind, Judge Shelton will tell you that each of the things that are presented to you as factors in aggravation, and that includes the truth or falsity of prior felony convictions, must be proven beyond a reasonable doubt. That’s only fair. . . . FJD I would indicate to you that in relation to criminal acts involving force or violence, these are also incidents which must be proven to you beyond a reasonable doubt.”
Former CALJIC No. 8.84.2 was renumbered as CALJIC No. 8.88 in 1989. (See com. to CALJIC No. 8.88 (5th ed. 1993 pocket pt.).)
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
Defendant speculates that the jurors might have been influenced by incorrect beliefs to change their votes in order to avoid a deadlock and thereby “preempt” an undesired result. Such conjecture provides no basis for relief. (See People v. Bell (1989)
Concurrence Opinion
I concur in the judgment as to guilt, death eligibility, and noncapital sentence. After review, no error or other defect is evident requiring reversal or vacation on any of these issues.
I dissent, however, from the judgment as to the sentence of death. I would set aside that penalty as unreliable under the Eighth Amendment to the
The petitions of both respondent and appellant for a rehearing were denied February 16, 1995, and the opinion was modified to read as printed above. Mosk, J., was of the opinion that the petitions should be granted.
See People v. Stansbury (1993)