*1 Sept. 22512. No. S004439.Crim. 1990.] [No. PEOPLE, and Respondent, Plaintiff
THE SANDERS, and Appellant. Defendant LEE RONALD *13 Counsel Riordan, Court, P.
Dennis under by the Nina appointment Supreme Rivkind and B. E. III Bergesen for Defendant and Appellant. General, Kremer, John K. Attorney Van de Daniel J. Steve White Kamp, General, and Richard B. Chief Iglehart, Attorneys Assistant Arnold O. General, Jones, Keller, Overoye, T. Attorney Assistant Willard F. Eddie General, Kirkland, Attorneys Deputy and Jane N. Ward A. Campbell Plaintiff and Respondent. Plaintiff and on behalf of N. Heard as Amicus Curiae
Christopher Respondent.
Opinion murder, LUCAS, Ronald Lee Sanders convicted of first degree was C. J. murder, robbery. allega- Two robbery, burglary, attempted attempted that he armed a firearm were found true. The also found tions was with true four circumstance the murder was committed while special allegations: attempted defendant was the commission or the commission engaged Code, 190.2, & robbery (Pen. (a)(17)(i) (vii));1 subd. burglary § testimony victim killed her in a criminal intentionally prevent pro- heinous, 190.2, subd. and the murder was ceeding (§ (a)(10)); especially 190.2, atrocious and cruel subd. After the (§ (a)(14)). penalty phase trial, (§ set the at death. This is automatic. penalty appeal subd. (b).) below,
For the reasons stated set aside the circumstance special we based on findings jury’s the commission of a and on the conclusion burglary heinous, cruel, that the murder was atrocious and but otherwise affirm the judgment entirety. its
I. Facts
Guilt Phase Dale Boender and Janice Allen moved to Bakersfield from Oildale. Boender supported by selling marijuana. cocaine and couple Maxwell, One of his customers was Brenda but he to her stopped selling she money because owed him from transactions. On the prior morning of *14 21, 1981, aunt, January Maxwell’s Donna and defendant Ron- Thompson, ald Lee Sanders visited Maxwell. The three decided to rob Boender of drugs money and and agreed to the Maxwell would entice Boen- following plan: der to her home claiming buy large she had friend who wanted to arrived, of cocaine. When Boender defendant knock him quantity would they out and him. would rob Defendant would then bind Boender with duct before tape leaving. similarly to their defendant bind According plan, would statutory All further references are to Penal Code unless otherwise indicated. been a victim. would Thompson to also have appear so she would Maxwell and free pair. later to arrive “discover” friend, Blackford, the time but visiting also her at Glen was Maxwell’s Maxwell, and defendant Thompson, in the room while living left room they living returned to the in the bedroom. When crime planned session, “[sjomething going Blackford their Maxwell told planning after (as then left here.” Blackford and get Thompson out of happen to [so] deal. Boender arrange several calls to to and Maxwell placed planned) sale, Allen and drove large of a cocaine Boender Enticed promise to sit down Allen the home and began mobilehome. entered to Maxwell’s doorway, defendant through Maxwell. As Boender stepped next to Boender a two-foot began beating long from and with the kitchen emerged eventually Boender Allen A ensued but and struggle of a stick. pool piece mobilehome, fled. Boender exit defendant point to which managed off, but a hospital then first to a friend’s house later to to Allen drove and Friday, until They at a relative’s home injuries. stayed to Boender’s attend January 1981.
Meanwhile, to mobilehome and returned Maxwell’s defendant Thompson robbery Maxwell was attempt. the aftermath of botched to discuss him defendant realize had “set and up,” concerned Boender would she identify him. The three drove to a house on Boender could was worried John Cebreros. Street defendant the assistance of engaged Jefferson where called mutual Thompson’s then house where Maxwell group went had been and so raped of hers Boender’s to tell them she robbed friends and Boender. she victimized with along as to enhance her claim that had been Friday, apartment. and Allen to return Boender’s On Boender decided roommates, Haney two arrived afternoon and told Boender’s They Later, Weinman, Allen earlier Boender and met and about the assault. Littleton, roommate, bar; at a of them George former the three Boender’s and a small bottle of to Littleton’s around 7 shared apartment p.m. went home. After Boender and Allen returned groceries, wine. shopping evening. and Weinman were Haney gone for dinner, a knock While Boender and Allen were there was preparing kitchen, door went to the front and Leaving door. Allen Boender there, it, standing the latter armed Cebreros defendant opened finding live, Boender only he believed he had seconds gun. Although with he if he should see on their faces so could remember them concentrated floor, him to the again. pushed them Defendant Boender around spun and something pressed He in his back face down. felt someone’s knee *15 lie and was also made to from the kitchen emerged Allen his neck. against and both he and from his face were glasses ripped Boender’s on the floor. and blindfolded. Allen bound were he his kept tell them where demanded that Boender of the assailants
One he told them his cocaine, After purse. them to Allen’s and he directed heard the two removed it. Boender someone money in his shirt pocket, was not tell what was but could through apartment rummaging assailants minutes, like his he to what seemed dragged After a was on. few going banging and more talking, He more muffled footsteps, bedroom. heard he wanted to leave but One of the assailants said around the apartment. felt a stay. approach, Boender then heard someone other said he wanted head, further. nothing to the and recalled blow in and early morning returned to the apartment Boender’s roommates A in burning full of smoke. search revealed food apartment discovered bedroom, they Boender in his investigation, the oven. On further discovered ambulance, they that the calling in a of blood. After an noticed lying pool around, disarray, in there were of blood and a spots baggie was apartment bedroom, Haney body When found Allen’s marijuana missing. he called the police.
Both Boender and Allen had been bound of electrical cord cut lengths from Boender’s vacuum cleaner. Allen sustained a fatal head wound which fractured her skull and lacerated her brain. Boender suffered a skull frac- ture but was conscious and semicoherent when arrived. He was not police until questioned day. the next Weinman
Haney story told about Boender’s police attempted earlier, robbery days falsely two to contact She prompting police Maxwell. home, Boender, told that Cebreros came to her forced her to police call However, him then beat when he arrived. she them accurate de- up gave scriptions defendant and Cebreros as well as the address of the Jefferson bed, Street house where defendant met Cebreros. From his Boen- hospital gave der of defendant and Cebreros that matched Maxwell’s descriptions descriptions.
Cebreros Street house. day was arrested next front of the Jefferson car, In his found a similar to that Boender described as the police gun which boot, one used to murder him. Cebreros’s found a attempt police marijuana robbery. which was identical to the one taken in the baggie Both one of the Maxwell and Boender identified Cebreros as positively assailants. *16 later, story recanted her and told the truth days police
A few Maxwell robbery She also told about the duct bungled attempt. police tape about the Boender. Police a roll of such intended to use to bind found tape defendant and tests revealed defendant’s on it. He was fingerprints in Maxwell’s home in a later lineup arrested and identified Boender positively photographic that week. jointly they
Defendant and Cebreros were tried an alibi presented murder, defense. Three defense witnesses testified that on the of the night brother, both defendant and Cebreros were the home of Cebreros’s Salva- dor, chess, drinking beer. There was also evidence from talking, playing men were seen outside Boender’s neighbors although Boender’s two murder, on the of the neither one looked like Cebreros or apartment night Finally, defendant. there was evidence that defendant had used Maxwell’s days roll of duct for an innocent a few earlier. tape purpose in Defendant’s first trial ended a mistrial when the could not reach a retrial, verdict. On both he and Cebreros were convicted on all counts. The to seek the death Cebreros he prosecutor penalty against declined and was sentenced to life without the possibility parole.
Penalty Phase
The prosecution produced several witnesses at the who penalty phase described five armed robberies defendant in in Orange County committed Although identify 1970. none of the witnesses could defendant at positively trial, a testified that the in the five police expert fingerprints gunman County Orange robberies matched defendant’s fingerprints. 1, 1970, Quinn
James testified that on October he working was late at the Motel in Allstate Santa Ana when defendant and a crime robbed partner defendant, him at gunpoint. Ferguson Thomas testified that brandishing revolver, 12, 1970, robbed him on September Ferguson while was employed as a clerk at the Station Store in Tustin. Liquor Defendant committed an 20, 1970, in time robbery armed the same establishment on November clerk robbing Fred Turnbull.
Sammy Mitchell that he working testified Mitchell’s Market 6, 1970, Tustin on October defendant him at De- gunpoint. when robbed finally yet fendant was arrested after this crime from fleeing while spree store, robbery, another armed this one in a 7-Eleven convenience occurring also in Tustin. Defendant confessed his to all five robberies and the guilt officers to whom he confessed testified at the Defend- police penalty phase. ant was sentenced to state and was 1973. prison granted parole *17 or make a in any mitigation evidence
Defendant declined to present hours. a few returned a verdict of death within jury The closing argument.
II. Discussion
A. Selection Issues Jury Pool Jury in the Systematic
1. Underrepresentation trial, jury, arguing moved to quash petit Before defendant jury manner master list violated his County in Kern assembled its which the communit an drawn from a fair cross-section of right jury impartial evidence that he claimed demonstrated a y.2 prima In he support, presented jury in the systematically underrepresented facie case that Hispanics were motion, and defendant now renews the The trial court denied the pool. contention. Quash
a. The Evidence the Motion to Supporting trial, County jury At the time of defendant’s Kern assembled its master by randomly county’s list names from the voter list. drawing registration Questionnaires eligibility were then sent to those chosen to determine jurors. serve as There was no to ensure that ethnic attempt composition jury county of the selected for service that of the as a group approximated whole. in Although there were the future to use names of those plans holding driver’s licenses to those names from the voter supplement registra- list, tion lists when the master assembling jury yet such had not been plans at the time implemented defendant was tried. rely, that defendant could in of his motion parties stipulated support on the in quash, expert testimony three other recent Kern presented Cantu,
County Court v. Superior (See cases. Nos. People Robinson, Streeter, (Cantu); No. 21518 (Robinson); People 22346, 22056, 21910, Newell, Nos. Dr. an in (Streeter).) expert psy- statistics, and in chology (and testified the Cantu and Robinson cases testimony was admitted in the Streeter He that he had scrutin- case). stated ized the available analyzed jury data from the 1980 census and had panels County February Kern between October 1980 and as panels well Cantu, May 1981. he testified that the census government reported initially assembly Although challenge defendant frames this issue in terms of a to the list, that, he, jury appears stipulation acquiescence, People, the master it either challenge composition the trial court understood the basis of the motion to be a to the of the jury county, composition in the the racial venires because defendant’s evidence went to jury duty. appearing those 17.76 21.59 and estimated that County percent Hispanic, that Kern old, i.e., years at least 18 county of the was both Hispanic percent makeup group To determine the ethnic jury eligible.3 presumptively Dr. duty Newell scrutin- during period question, summoned for list, those with surnames. presumably noting Spanish ized the master surveys He to confirm the number of those on telephone also conducted 8.3 of those appearing list who were He concluded that Hispanic. percent *18 jury duty Hispanic. for were later, Robinson case a few months Dr. even more presented Newell Service,
refined statistics. From the and Naturalization he Immigration 14,387 aliens resided in obtained the information that resident Hispanic County 1980.) Kern in not available for Deduct (Such 1978. evidence was county (based that number from the total number of on ing Hispanics County Dr. of Kern figures), opined percent 1980 census Newell 19.81 as in Using methodology same residents were Hispanic. 3, (see ante), county the Cantu case fn. he estimated that 16.3 of the percent was made of adult He reiterated that 8.3 of those up Hispanics.4 percent jury duty for were He concluded that the likelihood the appearing Hispanic. million. occur chance in one by exhibited would was one disparity figure, percent using 3To arrive at the 17.76 Dr. Newell derived a ratio the available data year, county percent Hispanic percent from the 1970 census. In that 16.9 and 13.9 that, years Hispanic anything, Dr. if was both and least old. Newell testified this meth jury-eligible Hispanics county od underestimated the number of in the because of a trend during the 1970’stoward smaller families. statistics, 4By using present question such refined defendant’s case does not whether population figures permissible. Previously, three-justice plurality use of total is a of this court countywide population making prima a defendant could use concluded total numbers in 36, (People a facie case of constitutional violation. v. Harris 36 Cal.3d 54-55 [201 782, However, Cal.Rptr. 433].) applied 679 P.2d we later held “Harris not be should retroac tively juries (People to cases in were selected Harris which before the decision was rendered.” Myers (1987) 698].) recently, Cal.Rptr. 43 Cal.3d And 729 P.2d this henceforth, held that “a demographic court defendant who has access to census or other data figures population challenge (People that reflect adult must base his on that data.” Bell 502, 526, 129]; [cone, p. fn. see also id. at Kaufman, by opn. J.].) provided rely holding Because defendant refined statistical did on data and not Harris’s permitting population figures, question reliance on total we need not resolve the of whether by Myers, equal protection principles holding, supra, this court violated holding retroactively. (See Myers (9th 1990) applied that the Harris should not be v. Ylst Cir. 417.) 897 F.2d People engage argument concerning Defendant and the in extended whether the record in county arriving dicates Dr. had in the Newell calculated number of noncitizens before percent figure. clearly point presented the 16.3 We he need not decide this since statistics county Hispanics age based on the number of in the of 18 refinement is over and this (Bell, 12.) prima sufficient. 49 Cal. 3d at fn. Should a defendant make out a facie case, however, may showing rebut that with statistics which take into account ad ex-felons, (Ibid., added.) persons ineligible—noncitizens, ditional are italics “who etc.” Robinson, Cantu, and Streeter cases of the transcripts reading After issue, without prejudice the trial court denied hearing argument and there has been “I believe that stating, do to quash, defendant’s motion number of with people disproportionate that there is a showing facie prima not that that means but I am sure jurors, surnames called Hispanic any Times and by Angeles Los reading everybody knows thing, enormous number people that there are an other publication So, I are not even citizens. card-wise who country illegally green fl[] [s/c] renewed means Defendant really anything.” in and itself don’t think that denied. and it was again the motion later Principle Cross-section b. Fair California, from representative
“In to trial drawn right community guaranteed equally independently cross-section *19 v. Louisiana (Taylor the Sixth Amendment to federal Constitution 522, 690, 698, by 692]) S.Ct. and 419 U.S. 530 L.Ed.2d 955 (1975) [42 I, (1978) v. (People 16 of California Constitution. Wheeler article section 890, 258, v. 748].)” (Williams 22 583 P.2d Cal.Rptr. Supe Cal.3d 272 [148 503, 537].) 781 P.2d “In Cal.Rptr. rior Court 49 Cal.3d (1989) [263 require a facie violation of the fair-cross-section prima order to establish ment, to excluded is alleged the defendant must show that the be (1) group of this community; representation a in the that the group (2) ‘distinctive’ are is fair reasonable in juries in venires from which selected not and group community; number in that this persons (3) relation of such and systematic is in the jury due exclusion of underrepresentation group L.Ed.2d process.” (Duren selection Missouri 439 U.S. Bell, 664]; 525; also at supra, p. 99 S.Ct. see a 244].) Morales Cal.3d If systematic a facie underrepresenta defendant demonstrates case of prima test, tion under this burden to come for tripartite shifts “to state constitutionally ward no showing with either more statistical precise justification significant existed or that there was a for disparity compelling (Harris, which results in the in the procedure disparity pool.” supra, p. 50.) Cal. 3d
c. Application satisfied; clearly
The first prong Hispanics, Duren test is surnames, group purposes those with constitute distinctive for Spanish analysis. (Morales, 543.) a fair cross-section p. supra, may by The second be “that the number of prong showing satisfied in members of is not fair and reasonable relation to the cognizable group (Bell, community.” in 49 Cal.3d at supra, number of members the relevant statistics, adult 526.) Working Hispanic from defendant’s most refined only 16.3 Kern 8.3 County, percent citizens made whereas up percent Thus, an 8 jury duty those were there was appearing Hispanic. percent and a 49 disparity percent comparative disparity.5 absolute We have noted that “the Court has previously Supreme [United States] yet definitively may not on either the means which spoken disparity measured or the constitutional limit of permissible disparity.” (Bell, supra, 527-528, Bell, however, omitted.)6 49 Cal.3d at fns. As in we need not pp. difficult resolve this fails line-drawing question because defendant to estab- lish a facie case under Duren’s third is prima prong showing disparity by “systematic” caused exclusion of Kern County juries. from Hispanics By basing his motion to statistical evidence quash expert given Cantu, Robinson, cases, and Streeter defendant to show a statisti- sought “systematic cal occurred over time and was thus the of a disparity result Bell, however, recently exclusion” of As we Hispanics. explained insufficient, alone, such a showing standing to make out facie case prima When, here, of a Sixth Amendment violation. county’s jury “a selection race, sex, criteria are neutral ethnicity, with more is respect religion, to shift the burden to the required People. identify defendant must some of the manner which those criteria are that is: aspect being applied (1) the cause of the probable disparity, (2) constitutionally impermissi- *20 (Bell, 524.) ble.” 49 Cal.3d at Evidence supra, p. that neutral “race/class jury may selection nonetheless the processes operate to de facto permit exclusion of a of a higher percentage particular jurors class of than would 5 disparity’ by representativeness “The ‘absolute test measures the difference between the proportion population underrepresented category, proportion of the in the the of those 14; persons pool underrepresented category.” (Bell, supra, p. in the source or in the at fn. al., Kairys Jury Representativeness: see also et A Multiple Mandate Source Lists 65 776, 789-790.) by subtracting jury Cal.L.Rev. representation percentage It is “obtained the community (Morales, percentage.” supra, p. 544.) from the 48 Cal.3d at by comparative disparity following standard is obtained the formula: -A B = comparative A disparity, 100 X = percentage community where: A up of the that makes cognizable group question, Hispanic here adult citizens, and = jury percentage B of the venire which is composed cognizable group question. (See Kairys, supra, pp. 790-791.) 65 Cal.L.Rev. at expressed Some courts opinion comparative disparity and commentators have that the 565-566, approach superior disparity (Bell, is supra, pp. absolute standard. at and cases Broussard, court, by J.]; Kairys, opn. supra, 793-799.) cited pp. 65 Cal.L.Rev. at This [dis. however, (Bell, adopt approach supra, has declined to one to the exclusion of the other. 14.) p. fn. a facie case. prima make out a is insufficient to result from random draw” 546, italics in p. original.) 48 Cal. 3d at (Morales, supra, in Bell (supra, this requirement he has satisfied Defendant claims fact but on the only the statistical 502) by relying disparity, not on Cal.3d trial, master County jury its Kern assembled that at the time of defendant’s only he is argue list. Not does solely registration list from the voter is “constitu- practice he contends the disparity, source” “probable Harris, 36. Our citing tionally impermissible,” People county’s juror because the here the latter requirement: concern is with neutral, that facially proce- has defendant shown selection were procedures “constitutionally impermissible” meaning dure nevertheless within is Belli that sole suggesting in the lead in Harris language opinion
There some list is assembling reliance on lists in the master registration voter not, however, broadly. We Harris constitutionally do read so prohibited. a a held the defendant made three-justice plurality divided opinion, facie fair violation based on a statistical prima showing a cross-section its county of racial and the fact that the assembled master showing disparity by using only opn. list voter lists. Cal.3d at registration (36 [plur. Broussard, J., Bird, J.,C. & the trial joined by Reynoso, J.].) Although not court did find the defendant made facie case—and thus prima any plurality were never asked to rebuttal evidence—the present (Id. Three on judgment. justices reversed other dissented this point. Mosk, J., Richardson, joined by J.], pp. opn. opn. [dis. [dis. Kaus, J.].)
In a Justice Grodin reluctant fourth pivotal separate opinion, provided vote agreed to reverse. He that defendant made expressly plurality with case, facie prima relying total statistics. Justice despite population Grodin further stated “in which to the light published point studies *21 likely exclusive reliance voter lists as a of racial upon registration source say and ethnic in of I to composition juries, prepared am that disparity defendant’s should be sufficient to further in- showing regarded trigger Grodin, (Harris, by 36 Cal.3d at quiry.” supra, p. opn. J.].) [cone. judg- he that not reverse the explained further he “would Significantly, added.) ment on that account.” 36 Cal.3d at italics (Harris, supra, p. evidence, he Because the had no occasion to rebuttal People present opined (Id. pp. 71-72.) case should remanded allow them do so. at “Upon might full of the relevant evidence it be concluded consideration exists,’ that or that ‘even with the disparity significance ‘no of constitutional means, a use of and all other certain level multiple practical sources unavoidable,’ is disparity or that the underrepresentation which does exist is (Id. justified by showing overriding state interest.” at p. quoting plur. 59.) Justice opn. Grodin then explained although he pre- ferred the remand option, there would be no of the case disposition were he result, to insist on that alternative. this an Finding “intolerable” and con- that he cluding “fundamentally” disagreed with the dissenting he opinions, reluctantly joined the plurality opinion’s to reverse. disposition (Ibid.) clear,
As is Justice Grodin did not join the Harris plurality’s far-reaching conclusion that sole reliance on voter registration lists was itself constitu- Indeed, tionally prohibited.7 he twice stated his position that identification fact, of that coupled with an adequate statistical showing of racial disparity, merely established a violation, facie case prima of a constitutional should not itself require reversal. Harris, 36, however,
Since
supra,
Cal. 3d
this court has refined the
procedure which a criminal defendant can establish a
facie case
prima
Harris,
fair cross-section violation. Unlike in
a defendant
facial
attacking
ly neutral procedures as the “probable cause” of the statistical disparity
must now demonstrate that such procedures are either “constitutionally
impermissible” or are
in
being implemented
a constitutionally objectionable
(Bell,
manner.
above,
We begin
analysis
our
trial,
noting
at the time of defendant’s
our
state Legislature permitted sole reliance on voter registration lists to assem-
below,
ble the
master
list. As explained
former Code of Civil Procedure
section 204.7 stated that source
jurors
lists for
“shall include those who are
registered voters.” The section also provided that the list should be supple-
mented from lists from the
Department Motor Vehicles
(DMV)
those
counties where such supplementation was practical and would not entail
“significant cost.” The negative implication
statutory
of this
language was
plurality opinion
The Harris
far
point
from clear on this
opinion
as well. That
first not
ed our
decision
v. Sirhan
1121],
Cal.3d 710
which we held
registration
use of
jurors
voter
“[t]he
lists as the sole source of
is not
constitutionally
[citations],
invalid
at least in the
showing
absence of a
that the use of those
systematic
lists resulted ‘in the
“cognizable
exclusion of a
group
qualified
or class of
cit
’ ” (Id.
izens.”
pp. 749-750.)
Although
plurality
suggested
the Harris
then
that the defend
trying
just
ant was
to make
showing,
such a
it did not overrule
point.
Sirhan on this
It is thus
arguable that Harris did
registration
not “hold" sole
imper
reliance on voter
lists was itself
missible, even with Justice Grodin’s vote.
*22
however,
appears,
It
plurality’s
that
opinion
interpreted
holding
has been
that sole
registration
reliance on voter
impermissible.
(Harris, supra,
lists is
pp.
that costly. or impractical mentation was “ considering ‘In was constitutional. this statute
We presume all validity, resolving its act we presume constitutionality legislative of the state a provision with Unless conflict of the Act. doubts in favor the Act. uphold we must clear and unquestionable, federal Constitution ” Conservation Resources Energy v. State Sonoma (County [Citations.]’ 114, 693], 708 P.2d 361, Cal.Rptr. (1985) etc. Com. 575, 17 Cal. 3d (1976) v. Elliot Agency Finance Housing quoting California 361, 1193].) 594 [131 courts, As are in accord. decisions, those of other past
Our reliance on in 1972 that sole discussed, ante, we held 494 footnote at page constitutionally (Sirhan, supra, invalid. itself lists was not registration voter Moreover, are unanimous circuits the federal 749-750.) Cal. at pp. 3d (28 Act of 1968 and Service Jury Selection this point. Interpreting held sole routinely have of appeal circuit courts 1861-1867), U.S.C. §§ rule fair cross-section not violate the lists does registration reliance on voter of active discrimination. absent some evidence den. (cert. 836 F.2d (4th 1988) States v. Cecil Cir. United case, In that is illustrative. 2846]), 108 S.Ct. U.S. 1205 L.Ed.2d Circuit that sole opined the Fourth States Court of Appeals the United “systematically” ‘as be described lists “cannot registration use of voter numbers’; it is a their register proportion classes that do not excluding though selection’ even the ‘need for efficient with comports process the voter does it follow that reflect Nor may population.’ it not ‘perfectly . . . [requirement] satisfy lists do not the fair cross-section registration in the same register group neglected . . . members of one because simply The Constitution in the overall population. as was their share proportion It is sufficient such require perfection. and the statute do not [federal] common and we find both system a fair cross-section adopted provides they lists do this registration if the voter sense and establish that precedent (Id. at discrimination.” by some affirmative form of are not tainted Annot., 1444-1451, cited; and cases 1448-1449; at pp. see id. pp. generally and Service Jury Selection of Provisions Application Construction and of, for, Plans and Manner Governing 1861-1867) Act of 1968 USCS (28 §§ A.L.R.Fed. Federal Grand and Petit Jurors Selecting cited.) and cases 7[a] § Sirhan, 749- 7 Cal.3d at pages the rule laid down
Significantly, cases, federal in numerous rule law as well as the complementary of Civil Procedure Code trial. Former before and defendant’s during existed *23 section 204.7 in was also force at that time. In light of these persuasive authorities, we conclude defendant fails to county’s demonstrate the race- neutral procedures using voter lists to registration county’s assemble the and, jury master list was constitutionally impermissible accordingly, we conclude the trial court correctly denied the motion to quash.8
2. Former Code Civil Procedure 204.7 Section of
In conjunction with his pretrial challenge to the composition venire, jury defendant also jury claimed the master list was in assembled 204.7, violation of former Code of Civil time Procedure section at the 1980, 81, 35, 207, relatively new statute. (Stats. ch. July elf. 1981.)9 § The evidence of produced support the motion showed that at the time of trial, his County Kern solely relied on voter registration rolls to its compile jury lists. an Although was made to attempt incorporate integrate the names of those holding driver’s licenses and identification DMV, cards from the the county only intended to complete project time to select the jury 1982 master list. The jury list was assembled once a year and the list in use at the time of defendant’s motion (November 1981) had been compiled previous year. For County Kern and use expand $15,000 multiple any source lists sooner would have cost between $40,000 for a computer program eliminate duplicate (in names order to maintain randomness of the selection procedure). trial,
At the time of defendant’s former Code of Civil Procedure section 204.7 provided “(a) Source lists of jurors identify shall who persons older, reside the county, years and who are 18 age shall include voters, those who are registered and to the extent systems for produc- jury lists can ing cost, be practically modified, significant without shall also include those who have been licensed or an issued identification card pursu- ant to Article 3 . . . and Article 5 ... of Division 6 of Chapter Vehicle Code. Qualified jury lists and master lists derived from the source lists shall be minimize so as to prepared reasonably duplication (Italics names.” added.) 8The apparently trial court quash denied supporting defendant’s motion to because evi dence failed to take illegal Hispanic living account of the number of aliens of descent in Kern ante, County. page As discussed present footnote a defendant need not such refined reason, prima statistics to wrong establish facie case. Albeit for the the trial court reached the correct result. 9Former Code of Civil (Stats. Procedure section 204.7 repealed. has since been ch. 1.) code, supplanted It has been section § 197 of the same which states that a master holders, registered list assembled from lists of voters and driver’s license substan “when names, tially purged duplicate representative shall be considered inclusive of a cross sec population.” tion of the
497 hearing, motion a November 1981 defendant’s The trial court denied 1982, “if January until not become effective the section did concluding that the make a on addition, finding declined to court the specifically then.” Although source lists. multiple use feasibility of the immediate financial the effective date of the regarding its decision explain the trial court did not Kern statute, court that because it the believed newly enacted appears list for year each and the only master list once County jury assembled its master chosen, only affect the new statute would already had been 1981 list 1982, year’s jury for supplant previous list which would jury January 1982. authority any interpretation
The trial not for its court did cite section, of its to evaluate the correctness making former code it difficult erred, However, the trial court defendant ruling. arguendo even assuming was, clear, cannot Kern County the evidence below made prevail. As motion, time with complying his in the process defendant made list. statutory jury to DMV lists into master integrate requirement unwise, changes Recognizing mandating overnight Legislature was include only “systems lists” be modified to required producing Be- if cost.” changes significant DMV lists such could be done “without have been cause the record shows the cost of immediate would compliance dollars, shortly, occur we compliance several thousand and that would the record shows the conclude motion was denied because properly modified, master not be without cost significant list could “practically Proc., .” (Former 204.7.) . . . Civ. Code § 3. Wheeler Error dire, all ex
During Spanish persons voir but four surnamed were cused for cause either the When remain the defense. prosecution four were ing challenged object defendant peremptorily prosecutor, ed, claiming the prosecutor exercising peremptory challenges was v. exclude from the improperly Spanish persons jury. (People surnamed 890, Wheeler (1978) Cal.3d 583 P.2d The trial Cal.Rptr. 748].) [148 motion, denied court finding prima defendant failed demonstrate showing relying facie that the rather than prosecutor group specific on We agree bias. the court denied the motion. properly may
It is
not be
challenges
now well established that “peremptory
bias,’
jury, solely
used
exclude from a
because of a
all or
‘group
presumed
racial,
most
distinguished
members of an identifiable
of citizens
group
216,
ethnic,
religious,
grounds.”
or similar
v. Snow
(People
452].)
P.2d
Such
exercise of
Cal.Rptr.
improper
peremp
[242
I,
tory challenges
California Constitution
violates article
section
(People
Turner
Wheeler,
102];
22 Cal.3d at
as the
pp. 276-277),
well
equal
clause of
United
protection
(Batson Kentucky
States Constitution.
(1986)
P.2d 1047].) clearly
Defendant raised the in timely issue fashion and made as Moreover, a complete record as possible. contrary argument, to the People’s defendant’s reliance on surnamed as a Spanish persons category excluded Morales, jurors conclude, permissible. (See 543.) Cal.3d at We however, that the trial court found properly defendant failed to demonstrate “from all the circumstances of the case” a “strong likelihood” that the use of prosecutor’s to excuse the peremptory challenges four sur Spanish named jurors was based on rather group, than bias. Because de specific, fendant thus failed to make a facie of a constitutional viola prima showing tion, the prosecutor’s justification burden of never arose.
An examination of the voir dire this conclusion. proceedings supports Mrs. Sosa was the first surnamed Spanish challenged person peremptorily by the prosecutor. She stated she was a cook the Child Development Center and that her husband was director of maintenance and transporta- tion at a local school. She had three adult children and had lived in Kern County years. for eleven When asked about the death she penalty, replied, “That is of scary” “absolutely” kind and that she was to the death opposed penalty on On religious grounds. later she asked whether questioning, was she would impose death case under instruc- penalty proper proper said, “Yes, tions; she I guess.”
Mr. Arrambide was questioned shortly after Mrs. Sosa. He was a labor contractor, married, County and had five He had lived in Kern children. he He distracted because read seemed newspaper. did not since he that duty concerned and was day lost a due to his job had that “if I that and explained five work crews lose He jobs. operated would more .... Some there, well, job in the is not interested they say guy am not Later, he would understand, asked whether when farmers but some don’t.” he know. did not jury, he admitted many jobs by serving lose on defendant’s stated his belief Mr. Arrambide When about the death penalty, asked life, the death impose he vote to only God a man’s but that could could take Later, not, by the question- confused appeared he said he could penalty. There suggestion language problem. some ing. and Arrambide were issue after Sosa
Defendant first raised Wheeler motion, certainly “I don’t think stating, excused. court The trial denied *26 an to rid is at that there is intention point there this an indication particular I do you I tell that of all surnamed individuals. now Spanish fl[] very but it’s obvious excusing not know the reason for the Sosa [Mrs.] I want why point. Mr. Motion is denied at this But Arrambide was excused. of Mrs. Sosa.” excusing to find that there is no obvious reason for the mechanic, later, mar- A few Mr. A Lara was days questioned. Lara was ried, children, initially years. had and lived in the for 19 He county no had he always absolutely stated would life over death was opposed choose to the death The for cause which prosecutor interposed challenge penalty. ultimately was denied after Lara defense counsel. Lara questioned was admitted be he could conceive of a crime for which death might appropriate and, after he eventually some he conceded could vote pointed questioning, for the death if he retained jury. were on the penalty
After Mr. Lara counsel for questioned, both defendant and Cebreros announced they were exercised panel. satisfied with The then prosecutor one of his Juror remaining peremptory challenges to excuse Lara. Defend- it, ant renewed his Wheeler the trial again stating, motion but court denied “I am it keeping any and I made a that I see finding couldn’t [track] Lara, very reason with Mrs. Sosa. But Mr. obvious I with it’s when first asked him penalty about the death he indicated he was to it. I don’t opposed any think done racist prosecutor’s challenge] was reason whatso- [the ever and make finding.” argued briefly the court will such a Counsel but to initially no avail that Mr. although expressed Lara personal opposition penalty, the death his later on voir showed he had modified responses dire regard. his position
Mr. the final on the At the panel. Mercado was surnamed Spanish person dire, that he knew Mr. Merca- beginning judge the voir the trial admitted due to a and Mercado’s moth- judge’s do association between wife prior er. Mr. ability Mercado affirmed that connection would not affect his be impartial. teacher,
Mr. Mercado was a school math from high having graduated Fresno His junior they State. wife was a teacher had one high school child, years then two He regularly old. stated he read the local but paper case, thoroughly, not and had no recollection he although of defendant’s knew the brother of one of the he (Glen Blackford). witnesses He stated was in favor of the death but could penalty open Although an mind. keep cousin worked for the Highway California Patrol and he had a few friends sheriffs, who deputy were he he claimed that would not accord law testimony enforcement officer’s undue He while sit- weight. admitted that alternate, ting as an he about his school baseball might thinking high they team because to begin were due but he preconditioning, proba- would bly be to set thoughts able those aside.
Mr. Mercado then he had life. In admitted suffered two arrests in his first, he was arrested for theft auto” he old. The “grand years when was matter was reduced to misdemeanor he joyriding and received probation. second, he recounted while in he and a Black friend were college, confronted eight college players. racially football made players some *27 arrived, derogatory remarks and a ensued. fight police eight When fled but players had arrested drunk in police Mercado’s friend for being public. When Mercado by to intervene attempted offering to drive friend home, he was arrested for an obstructing officer of his performance duties. The were charges later dropped. prosecutor
After the used a to Mr. Merca- peremptory challenge remove do, the fourth and final Spanish juror, surnamed defendant renewed his “Gentlemen, Wheeler motion a judge second time. The trial stated this man, and I young have known I long a time. was shocked to [Mercado] hear about his run ins with I think police. was unaware of it. I attorney district grounds has ample under those circumstances.” Defendant first contends that the fact all four prosecutor that the struck of the remaining Spanish surnamed from demon- potential jurors the panel strates a strong likelihood of an impermissible Although motivation. removal of all certain members of a rise to an inference of group may give impropriety (Wheeler, 280), Cal.3d at supra, say we cannot factor p. was on this It dispositive record. is clear the trial court was “aware [its] duty under Wheeler to be sensitive to the manner in which peremptory challenges (Johnson, were used.” at supra, p. 1221.) 47 Cal.3d After careful- ly scrutinizing the voir dire court—clearly the trial aware the proceedings, prosecutor had venirepersons— removed the surnamed remaining Spanish on “all the likelihood based strong a failed demonstrate
held defendant to of his peremptory exercise prosecutor’s that the circumstances of case” based bias. group were on challenges “ to judges trial ‘requires on motions Wheeler ruling
We reiterate to a They good position are in close judgments. make difficult and often however, of local determinations, knowledge on the basis their make such well situated They are also local conditions and of prosecutors.’ [Citation.] observation, under their to their powers to bear on this bring question We are judicial experience. and their broad standing techniques, trial group a case of discrimination ability distinguish of their to true confident . (Wheeler, . . .” supra, from a claim challenges spurious peremptory Kuhn, Phase Jury Discrimination: The Next 22 Cal.3d at p. quoting Johnson, 235, 295, 5; fn. see also supra, So.Cal.L.Rev. considerable deference giving at this standard of 1219-1222.) Applying pp. court, determination no to second- of the trial see reason good “we (Johnson, supra, p. 1221) guess trial factual determination” [the court’s] that the not motivated bias prosecutor against Hispanics. he made also trial should have found Defendant contends the court ethnicity, a aside from their the four excused prima showing facie because community jurors were otherwise “as as the as whole.” heterogeneous may, under (Wheeler, 280.) While this fact some case, circumstances, finding comparisons of a facie between support prima jurors dynamics is not very often fruitful exercise. “[T]he difficult, record, selection if not on a cold process impossible, make it juror evaluate of one the reten compare peremptory challenge with juror substantially tion of another similar.” which paper appears *28 (Johnson, supra, 1221.) 47 Cal.3d at Such a “is p. comparison highly specu by judge lative and reliable the the trial less than determination made who by (Ibid.) witnessed the which the defendant’s was selected.” process jurors dire of the in Although argues prosecutor’s defendant the voir Wheeler, if not question exactly desultory” (see was “superficial assertion; Cal. 3d at not our p. 281), indepen record does support voir dire of the four dent examination the record does not reveal the jurors desultory, any way was either limited or or different potential from the jurors other panel. a
Defendant thus to convince us that our traditional deference to fails trial court’s on a Wheeler is ruling inappropriate. motion a
We failed to make conclude trial court found defendant properly facie of a prima showing challenges likelihood that strong prosecutor’s by were motivated rather than bias.10 group, specific, 4. Witt Error Witherspoon/ dire,
During routine on voir venireman volun- questioning Giangregorio Later, teered that he did not believe in when capital punishment. questioned about that the trial topic judge, following colloquy occurred: you How do feel the death “Q: about penalty? it,
“A: I am your Honor. against you every Are it in
“Q: against case? Every “A: I instance. do not believe in it.” The prosecutor’s motion exclude for cause was a granted objection. thereafter over defense
Defendant now contends violated Giangregorio’s pre excusal laid down in Illinois cepts Witherspoon (1968) 391 U.S. L.Ed.2d [20 however, 88 S.Ct. As he (Witherspoon). recognizes, high 1770] standard, court limited Witherspoon, a less establishing stringent part because the modern trend against jury to act with permitting capital unfettered v. Witt (Wainwright (1985) discretion. 469 U.S. 422 [83 841, 850, L.Ed.2d 105 S.Ct. (Witt).) Witt that the trial court requires 844] juror’s determine “whether the views substantially impair would ‘prevent juror of his duties performance accordance with his instructions Witt, his oath.’” (Id. p.424 pp. 851-852].) L.Ed.2d at “Under [83 therefore, our duty to ‘examine the surrounding juror’s] context [the exclusion to determine whether trial court’s juror’s] decision [the would “substantially beliefs duties . . .” was impair performance ” fairly supported record.’ v. Miranda (People 1127], Wainwright Darden quoting 477 U.S. L.Ed.2d at 154].) Defendant first contends we should retain stricter Witherspoon stan Const., I, (See dard as matter of state constitutional law. Cal. art. 16§ 10 supplemental briefing, prosecutor’s peremptory challenges defendant claims the use of *29 (See right equal protection Kentucky, violated defendant’s Batson v. supra, laws. 476 79.) Although U.S. right, the rule in Batson vindicates a federal constitutional whereas concern, procedure establishing Wheeler addresses a prima state constitutional the for facie Johnson, (See supra, [jointly case under both similar. p. analyzing cases is Cal.3d at 1216 47 above, cases].) under issue both For the reasons discussed we conclude defendant fails to prosecutor show the “facts relevant and other circumstances raise an inference that the used peremptory challenges] petit to exclude the veniremen from the on account their [his of (Batson, p. supra, pp. 87-88].) race.” 96 L.Ed.2d [90
503 Witt stan However, already adopted have we by jury].) to trial [right “ sense, have courts California dard, and because good because it ‘make[s] when a determining in court teachings high of generally followed his views because of may excused for cause be juror properly prospective 45 Cal.3d (1988) v. Guzman (People regarding capital punishment....’” 467, v. Ghent People P.2d 915, 917], quoting 755 Cal.Rptr. 955 [248 82, P.2d 739 43 767 Cal.Rptr. Cal.3d 1250].11 [239 under the even improper that excusal was Giangregorio’s next argues He in the death penalty antipathy Giangregorio’s expressed Witt standard. instance,” however, “substantially undoubtedly impair would “every p. 469 U.S. at . . . .” juror (Witt, supra, his as a of duties performance should submits the trial court defendant 851].) Although L.Ed.2d at p. [83 his duty it his civic to set aside that was Giangregorio have explained notion, law, rejected that we have obey previously and personal feelings instruct a a trial court to so in finding nothing Witherspoon obligates 44 Cal.3d at juror. (Miranda, p. 96.) supra, excused from juror Giangregorio properly We prospective conclude jury.12 B. Guilt Issues Phase Testimony Eyewitness
1. Regarding Exclusion Expert Identification Loftus, trial, testimony
At Dr. Elizabeth defendant offered the testified to eyewitness an identifications. Dr. Loftus would have expert Witherspoon adoption the Witt standard Defendant contends that standard over comport expressed preference penalty for “strict standards in death does not with state’s 731, 743, (See, Bigelow Cal.Rptr. e.g., People fn. 7 cases.” [209 court, however, nothing 723].) agree high is P.2d 64 A.L.R.4th We with the that “there merely capital juror Witherspoon it sen talismanic about exclusion under because involves juries. against tencing Witherspoon grounded Eighth prohibition in the is not Amendment’s elsewhere, Here, quest punishment, but in Sixth Amendment. cruel and unusual conscientiously jurors apply ‘impar for find the That an who will the law and facts. is what of, think, simply being capi tial’ consists do not because a defendant is tried we crime, legal presumption jurors tal allows to be seated he is entitled to a or standard that likely (Witt, p.at quite in his 469 U.S. at L.Ed.2d who will biased favor.” 851], quoted approval (1988) 44 with in v. Howard 279].) P.2d (She Although originally challenged venirepersons excusal two other defendant jurors sup pard Boston) Giangregorio, he these in addition to fails to mention two that, conceding light plemental he is of the different standard estab briefs and we assume Witt, longer improper. Our supports his claims that their excusal was lished the record no supports review of record such determination. *30 To a basis for her she following:13 provide opinion, read expert in the case as well as the of the police reports transcript preliminary addition, examination. In she viewed the and photographic discussed lineup information, the case with defense counsel. Based this she determined factors have following eyewitness could influenced the identification fear; violence; case: (1) (2) focus; (4) stress or (3) weapon retrograde amnesia; (5) ingestion alcohol; of a drugs and iden- photo-biased tification. She not to to give opinion any did intend an as whether particular only identification was accurate but that these six are to factors known accuracy Moreover, eyewitness affect of in general. identifications she opined beyond the information she would provide common of most experience jurors testimony and that her could be of assistance the jury. to Dr. prosecutor objected testimony, Loftus’s proposed contending accuracy of eyewitness of identifications was matter common for the jury,
sense that Dr. Loftus could not as to testify accuracy any of identification, particular and that cross-examination with coupled appropri- ate form jury instructions would an from adequate basis which the rely could decide whether or not to on Boender’s identification of defend- addition, ant. In prosecutor cited several cases which the type court, expert testimony defense offered had been excluded. The trial although Dr. finding qualified testify Loftus as an expert that her testimony time, would not an consume undue amount of sustained the objection. prosecution’s
As both defendant and the People acknowledge, resolution of this by issue controlled v. McDonald 1011], P.2d A.L.R.4th filed after defendant’s sidewalk,
trial. McDonald involved the murder of Jose on Esparza public from viewed varying distances seven witnesses identified who McDonald Shomer, as the killer. McDonald offered the Dr. testimony of who “pro- to inform the posed may of various psychological factors that affect the identification, reliability of eyewitness ‘help to counter some com- (Id. mon misconceptions’ process.” about Dr. p. 361.) Specifically, Shomer have would testified that the following factors affected the reliabili- mind, ty eyewitness identifications: “the observer’s state expecta- tions, time, incident, his focus of attention at the the suddenness of the situation, stressfulness of the and the differences in the race age and/or the observer and the observed.” (Ibid.) line of Following appellate deci- jury’s Dr. presence parties Loftus testified outside the stipu defendant’s first trial. The transcript testimony, lated that the together copy prosecutor’s legal of this with a point, ruling memorandum on this could considered the trial court before on the ad missibility testimony of Dr. Loftus’s in defendant’s second trial.
505 evidence,14 in the trial court of such the exclusion upheld sions The was convicted testimony. defendant Dr. Shomer’s excluded McDonald to death. murder and sentenced of of the defend identification eyewitness “When an
We reversed. corrob substantially not case but is is a element of the key prosecution’s ant offers reliability, and the defendant independent evidence it by giving orated by shown factors testimony specific psychological on qualified expert are not identification but accuracy could have affected record that ordinarily it be by the will fully jury, known to or understood likely (McDonald, 377.) 37 Cal.3d at testimony.” p. supra, to exclude that error in However, if it results only reversal requires exclusion of such evidence 40 526-527 v. Brown justice. (1985) of miscarriage (People [220 McDonald, 376; also 440]; People P.2d at see Cal.Rptr. supra, p. 709 243].) P.2d 46 Cal.2d 836 (1956) Watson [299 case, should, in usual to a an court defer Although appellate testimony (McDonald, admitting excluding expert trial court’s decision 3d case took 377), place prior 37 Cal. the trial defendant’s supra, p. no from the guidance in McDonald and the trial court took our decision erred in exclud therein. Even the trial court reasoning assuming arguendo however, testimony, we find the error was harmless. ing proffered expert Mc- We factors identified in by noting that several of the critical begin Donald are in this case. Boender’s identification of defendant was present Also, case. there is no indisputably “key People’s dispute element” eyewitness Dr. Loftus iden- subject was qualified expert We was tifications. thus must examine whether Boender’s identification “substantially reliability.” corroborated” such that it had “independent again, Once McDonald instructive. McDonald, no linked the 37 Cal.3d evidence defendant eyewitness eyewitnesses
the crime other than identifications. The certainty, McDonald were with one equivocal, voicing degrees various Finally, actually not the killer. definitely that the defendant was asserting that he the defendant had a alibi defense: several witnesses testified strong in Alabama day killing testimony supported on the and their was evidence the form of dated bills. physical postcards phone support People 14The v. Johnson trial court in McDonald cited four cases in of its decision: (1974) Cal.App.3d 834]; People (1975) Cal.App.3d 38 Cal.Rptr. v. Guzman 380 [112 69]; 492]; Cal.Rptr. and Peo Cal.App.3d v. Brooks Bradley Cal.Rptr. 487], (McDonald, supra, ple Cal.App.3d 744 [171 8.) these in ex & fn. The trial court in the instant case also relied on some of cases cluding testimony. Dr. Loftus’s identifications therefore were not corroborated evidence them giving *32 independent reliability. case, contrast,
In the present by Boender positive was that defendant was one of the two assailants and his identification was bolstered his (1) recognition of defendant from the botched robbery days two earli- attempt er; (2) Maxwell’s statement to police, which dovetailed with Boender’s description of the crimes and gave defendant a Boender; motive to kill Cebreros, Maxwell’s of descriptions defendant and which matched Boender’s of the descriptions assailants given day to after police Allen’s murder. Although witness, Maxwell admittedly not the most veracious we cannot agree with defendant testimony that her wholly must be disre- garded. To the extent testimony Maxwell’s was consistent with Boender’s events, version of it some provides corroboration for eyewitness Boender’s identification of defendant.
Moreover, McDonald, unlike in evidence physical linked defendant to the crime. The of baggie marijuana found in Cebreros’s possession was identical addition,
to that taken from Boender’s apartment. gun found possession was similar to the one that Boender described as having been wielded Finally, defendant. the roll of duct tape bore defendant’s finger- prints, thus supporting Maxwell’s story that defendant to use it planned to bind Boender during January 21st robbery attempt. Although none of these items points unerringly towards defendant’s guilt, they constitute links in the chain of evidence him against and thus provide some corrobora- tion of Boender’s identification of defendant as the guilty party.
Due to the strength of the evidence corroborating eyewitness Boender’s defendant, identification of we cannot conclude the trial court’s exclusion of (McDon- his proffered expert evidence resulted in a miscarriage justice. ald, error, 37 Cal. 3d at p. 376.) Even assuming it was harmless. claim, In a related defendant contends the trial court abused its when, dire, discretion during voir it sustained the prosecutor’s objection to defense questions that sought elicit the opinions potential jurors con cerning the effects of stress on Defendant perception. that these argues questions would have demonstrated that the information Dr. Loftus sought to impart was not within the common knowledge jury, thereby undercutting potential justification for excluding testimony. her dire, however, purpose at voir questioning is to assist the attorneys in the exercise of their not to peremptory challenges, provide foundational support for their evidentiary “[Cjounsel motions. should be allowed to ask questions reasonably designed intelligent to assist are also not such challenges questions whether or
exercise peremptory (Peo for cause.” challenge to sustain a sufficient likely grounds uncover 869], Williams ple voir dire were questions the challenged Because added.) italics were but instead challenges peremptory the exercise of aiding not related no evidentiary question, on an defendant’s support position intended to abuse of discretion occurred. by sug- argument the weakness of his recognizes
Defendant apparently *33 have him would questions helped to his voir dire responses gesting of they were aware by whether jurors challenge exposing decide to which thus Although have defendant Dr. Loftus would offered. information his in the exercise of peremptory claims have assisted questions would Dr. basically that if the trial court excluded asserting he is challenges, it the common testimony ground experience Loftus’s on the that was within of jurors he jury, through questioning of the then entitled to prove was is As we have explained, that the trial court’s was incorrect. assumption subject not a of on voir dire. questioning proper 2. Cebreros Boender's Identification of murder, He after Boender at the day police questioned hospital. tall, his as over feet over two larger weighing
described of assailants six thinning straight hundred with dark hair and combed back. pounds, top his noticeably away Boender also man his from noticed the carried arms body very “biker.” This was similar to Max- and looked like a description Cebreros, to before. After Cebre- description given police night well’s who, arrested, Boender, ros was a stack of to police displayed photographs Cebreros, exclaimed, I’m “This is the seeing picture big guy; upon from a photographic lineup. sure it.” Maxwell also identified Cebreros feet, tall, twenty weighs Cebreros is six five inches two hundred and pounds, arrested, After has hair as described Boender. Cebreros was Boender identified defendant from separate photographic lineup.
Defendant Boender’s out-of-court identification of suppress moved him, under which Boender selected his claiming photo- circumstances unduly graph were Cebreros made a similar motion to Boen- suggestive. motions, der’s identification him. The court both it although trial denied array great noted that the that included Cebreros left “a deal photographic only one in the picture display desired” because was the stated, matched Boender’s of the assailant. The court description larger case, however, that, of the after all the facts and circumstances considering likelihood very “a of irrepa- it could not conclude that there was substantial U.S. (Simmons rabie misidentification.” United States 1247, 1253, 967].) L.Ed.2d 88 S.Ct. validity Defendant now attacks the identification of pretrial Cebreros, that because other linked the two men in the arguing evidence crimes, unfairly commission of the was able to bolster its prosecution case Boender’s identification of against using questionable defendant Cebreros. Defendant’s claim at the threshold because it not fails does ap he court pear joined Cebreros’s motion the trial suppress objected otherwise to the introduction of Boender’s identification of Cebre Code, ros. (Evid. 353.) Because the flaw Cebreros’s alleged photograph § only ic was that his one that lineup picture was matched witnesses’ fairly defendant’s own motion to cannot be read to description, suppress theory on which Cebreros’s motion was encompass made.
Even the issue assuming properly preserved appeal, reversal not violation of due occurs if a required. process pretrial iden “[A] *34 very tification is ‘so as to rise to a procedure impermissibly suggestive give substantial of likelihood misidentification.’ ‘Whether irreparable [Citations.] due been process totality has violated on “the of the circum depends stances” the confrontation. surrounding The burden is on the [Citation.]’ defendant to show that the identification in resulted such unf procedure airness it abridged that to due v. rights process. (People [Citation.]” 126 12 Sequeira (1981) 249]; see v. Cal.App.3d Cal.Rptr. People also [179 Blair 25 (1979) Cal.3d 659 818 Cal.Rptr. 738].) P.2d [159 [602 “The factors to be in considered whether a determining lineup the impermissibly suggestive include of the witness to view the opportunity crime, attention, criminal at the scene of the the degree witness’ of the criminal, accuracy of the the prior description certainty level of confrontation, demonstrated at the and the time between the crime and the confrontation, as suggestiveness well the of the procedure employed. (Manson v. Brathwaite 432 U.S. (1977) 114.)” (Sequeira, 126 Cal.App.3d pp. 12-13.) case,
In this clearly Boender testified he viewed his assailants and he focused on his attackers’ in identify faces order to them if he survived the Cebreros, attack. He certain was of his identification of who matched both his and descriptions larger Only Maxwell’s of the two assailants. two days between the crime and Boender’s selection of passed picture Cebreros’s from array. the Cebreros photographic Although array photographic was somewhat trial suggestive, agree totality we with the court that the very circumstances does not demonstrate that there was “a substantial States, su United (Simmons misidentification.” irreparable
likelihood of 1253].) L.Ed.2d at p. U.S. at pra, [19 Felony-murder Instructions 3. first murder degree jury potential with six presented
The People a verdict of it should return instructed that being In addition to theories. and deliberated premeditated murder if it found defendant degree first it also could robbery, instructed or killed a killing, during committed if found the murder was verdict of murder it degree return a first home with defendant entered Boender’s burglary in which during victims, steal, assault, falsely (3) imprison commit an (2) intent to testifying. the victims from (4) dissuade concede, contends, now correctly
Defendant murder degree that it convict first might it was error instruct the intent which defendant’s burglary if it found the occurred killing during commit an “In Ireland [People [(1969) was to assault. v.] 1323)], rejected 40 A.L.R.3d we Cal.Rptr. (450 bootstrap P.2d it as the using an element of a homicide and reasoning taking involved We con felony degree felony-murder in a second instruction. underlying that the bootstrapping instructing jury clude that same is involved raises entry intent to assault makes the and that the burglary burglary the assault degree proof homicide from to first murder without resulting aforethought malice Wilson premeditation.” (People 431, 441 We 22].) P.2d thus concluded that *35 felony-murder based . . burglary “a on intent to assault. cannot support 798, v. 35 804 (Ibid.; People (1984) instruction.” see also Smith Cal.3d [201 311, 678 Cal.Rptr. 886].) P.2d erroneous, we
Although the instruction was with agree People that the error did jury presented not defendant. The was prejudice legally permissible with five and one guilt legally impermissible theories circumstances, In such rule on theory. is clear: rever applicable appeal determine only reviewing sal is if the cannot from the record required court 1, theory 69 jury on which relied. v. Green (People [164 1, 468].) Two illustrate Cal.Rptr. point. cases 755 People Ainsworth Cal.3d 984 P.2d Cal.Rptr. [248 instructed 1017], jury degree three first was at least theories of premeditation, robbery-felony-murder, murder: rape-felony-murder. 1015 & fn. contended there insufficient (Id. p. 16.) defendant was evidence to the instructions support rape-felony-mur on premeditation conceded, der and invoked the Green rule that we reverse. He urging however, that there was sufficient evidence to support robbery-felony- and, theory murder significantly, sustained a robbery-murder spe Thus, cial-circumstance allegation. we were “able to determine from the jury’s record—specifically, finding robbery of a special circumstance— (Id. jurors that the agreed theory on that least their reaching verdict.” at p. 1015.) Because the first degree murder verdict was sustainable on the theory that the defendant killed during commission of a robbery, we affirmed.
People Boyd (1985)
In the instant the jury was presented with one legally objec theory tionable of first degree murder and several permissible theories. other, Pursuant instructions, properly given the jury beyond found reasonable doubt that defendant robbery committed a and that he was guilty Ainsworth, of the robbery-felony-murder special circumstance. inAs supra, Cal.3d and Boyd, that, canwe conclude least, very at the the jury reached its verdict of first degree murder under one legally theory. circumstances, proper Under such there is no miscar VI, riage justice under article section 13 of the state Constitution and reversal is not required. (Cf. 666, 675, v. Lee (1987) Cal.3d fn. 1 752].) P.2d
4. Accomplice Instructions
The trial court also read jury to the the standard instructions defining accomplices and detailing the corroboration of requirement section 1111. (See CALJIC Nos. 3.10-3.12.) It then anyone instructed that if guilty was of the 21 January robbery then attempt, Brenda Maxwell anwas accomplice as a matter of (CALJIC law No. 3.16) and that testimony the of accom- plices should be viewed with distrust (CALJIC No. As to 3.18). January the 23 Allen, crimes (i.e., the Boender, murder of the murder of attempted the robbery and the the burglary), jury was instructed that it must determine
511 of had the burden that defendant accomplice an and Maxwell was whether evidence. aby preponderance that fact proving the crimes to all accomplice Maxwell anwas argues Defendant the of whether jury question the by erred to leaving that the trial court and disagree. We January the 23 crimes. an was accomplice she accomplice an concerning a witness was When the whether evidence decide. the trial to judge it is a of law for question crime is to a undisputed, 528 P.2d Cal.Rptr. 12 Cal.3d 880 v. Hoover (1974) (People [117 However, infer of different susceptible facts are disputed “if the 760].) submit ences, an should be accomplice the witness is question whether 143, 159 15 Cal.3d Mayberry (1975) jury.” (People ted to the [125 Here, Maxwell the evidence that 1337].) Cal.Rptr. not January Although 23 was strong. an to the crimes accomplice was her robbery days earlier provided two argues bungled attempt defendant crimes, may most be said is January to a motive commit with an Maxwell was that the material facts were whether dispute thus submitted judge properly those crimes. trial accomplice matter to the jury.15
Moreover, have in arguendo even that the trial court should assuming subject corrobo jury testimony structed that all of Maxwell’s was to the requirement, testimony adequately ration the record reveals Maxwell’s corroborated Her of Cebreros all defendant and respects. descriptions accurate similar to Her claim that very descriptions. were Boender’s defendant, she, Donna met Cebreros a Jefferson Thompson outside out; Street house checked arrested Cebreros outside that same house. police Finally, by her de story describing planned robbery was corroborated fendant’s the roll of use to fingerprint group duct tape planned Thus, erred, Boender him. if the subduing bind after even court it is not reasonably jury that the have reached a result in probable would different at (Mayberry, the absence the error. 15 Cal. 3d p. [applying 818) Watson (supra, prejudice].) standard by point. People The cases cited are not on In v. Dail defendant Cal.2d 828], erroneously jury credibility accomplice P.2d the trial that the court instructed (Id. 656.) By judged witnesses should be the same con standard as other witnesses. trast, testimony accomplice properly the trial here that the an court instructed the (1964) 61 must be viewed with and must be v. Robinson distrust corroborated. defendant, 970], P.2d a convic also cited we reversed where, among judge erroneously things, trial left to the tion other the determination accomplice overwhelming an of that of whether witness was when there was evidence ante, (Id. pp. showing 694-696.) explained fact. an accom As the evidence Maxwell was *37 Hence, January plice strong. question for the properly in the 23 crimes was not was one (Mayberry, supra, 159.) jury.
5. Miranda Waiver trial, Prior to his first defendant moved to his statements to suppress his Miranda16 police, claiming waiver was invalid because Officer Herman failed to inform him of the nature of the him. At the charges against hearing motion, 29, 1981, on the Officer Herman testified that on January he and Officer Vincent located defendant and him escorted to the station. police room, After an Herman entering interview testified he informed defendant that he wished to to him about a homicide him speak and read his Miranda rights. Defendant waived his and recounted his rights during whereabouts seven previous days.
Defendant testified of his motion to support suppress and stated that he answered Herman’s the interview room questions for approximately an hour Herman him read his Miranda him rights and informed before he was being for a homicide. The trial investigated court thereafter denied motion, and suppression defendant’s statements were introduced trial. In closing argument, prosecutor noted that defendant’s statements to Officer Herman were inconsistent with his defense at trial that he spent the night of the murder at Salvador Cebreros’s home playing chess and beer. drinking
Defendant renews his contention that Officer Herman’s
failure to inform him of the
him
charges against
precludes
finding
that he
knowingly and
waived his
intelligently
Miranda rights.17
Although
arewe
aware that a colorable argument may be made that a Miranda
waiver is not knowing or
where the
intelligent
suspect
ignorant
of the
212,
charges against him
(see People Boyde (1988) 46
[250
83, 758 P.2d
Cal.Rptr.
[acknowledging
argument]; but see
25]
Neely (1979) 95
Cal.App.3d
[rejecting
[157
531]
claim]),
very
contention
recently
considered
rejected by
United States Supreme Court.
(1966)
16Miranda v. Arizona
bine quoting 475 U.S. L.Ed.2d 106 S.Ct. Fare v. Michael 197, 212-213, C. 2560].) U.S. L.Ed.2d 99 S.Ct. Defendant makes no involuntary. claim that his statements to Officer Herman were
513
954, 107 S.Ct.
564
L.Ed.2d
479
v.
U.S.
Spring (1987)
In Colorado
[93
his Miranda
on firearms
waived
charge,
arrested
a
851], the defendant was
a prior
then
about
questioned
to
He was
police.
to
rights,
agreed
speak
and
him
he was
to advise
that
trial that the failure
murder. He claimed at
sup-
and required
his Miranda waiver
the murder invalidated
of
suspected
Although
murder.
made
about the
police
the statements he
to
of
pression
Court
Supreme
the Colorado
of
and
Appeals
the Colorado Court
both
reversed,
him,
that
holding
Court
the United States Supreme
with
agreed
criminal
and
know
suspect
not
that
require
Constitution does
“[t]he
the Fifth Amendment
every
of a waiver of
possible consequence
understand
guarantee
simpler
Fifth Amendment’s
both
privilege. [Citations.]
to
A
not be
be a witness
may
compelled
and more fundamental:
defendant
(Id.
966].)
L.Ed.2d
any
at
574
at
respect.”
p.
p.
himself
against
[93
Thus,
not
that an individual be informed
“a valid waiver does
require
or
that
making
‘might
all information ‘useful’in
his decision
all information
. . .
confess.’
have never read
his decision to
aifec[t]
[Citation.] ‘[W]e
with a flow of
police
Constitution to
that
require
supply
suspect
to
deciding
to
him calibrate his self-interest in
whether
help
information
”
479 U.S. at
rights.’
(Colorado Spring, supra,
p.
stand
speak
Burbine,
Moran
Defendant’s claim if that his Miranda waiver was invalid thus fails even accept we his version facts. U.S. As Colorado v. Spring, 564, we conclude Amend- defendant informed of his Fifth adequately rights ment a valid them executed waiver of before to Officer speaking Herman.18
Finally,
decline
we
defendant’s invitation to exclude his extrajudicial
Const.,
I, 15
by relying
(See
statements
on our state Constitution.
Cal.
art.
§
may not ...
in a
compelled
criminal cause
be a witness
[“Persons
I,
against themselves”].)
we are not
section
Although
precluded
article
(d)
subdivision
the state
from
exclu-
establishing
Constitution
new
18 Although
distinguish Spring
police questioning
defendant would
because the
in that case
(id.
“suggested
topic
962]),
inquiry”
p.
p.
itself
at
L.Ed.2d at
it is clear
above,
only
Spring
point
high
important. (Ibid.)
the trial court in
noted
found
As
court instead reasoned that an accused can execute a valid Miranda
if he is not
waiver even
previously
possible consequences
(Id.
p.
all
informed of
of that
L.Ed.2d
decision.
966].)
reject
attempt
distinguish Spring
We thus
its
defendant’s
facts.
*39
v.
6. Photographs Admission objected Defendant at trial to the admission into evidence of two photo- of Allen. The first the victim on the bed- graphs photograph depicts lying she The taken police. photograph room floor as was found second was the extent of the victim’s head wound. during autopsy depicts asserted the were objection, prosecutor photographs Responding heinous, and cruel murder only “admissible not on issue of atrocious but the circumstances of the it took in the killing apartment, where place case, manner it done has some relevance to this some which was think, substantial relevance to this case I I it on that basis and would offer also.” The trial court overruled the “I think this objection, stating, don’t outrageous inflammatory is and I think it is relevant and photograph probative.”
“The admission of of a victim lies within the discre photographs court, tion of the trial and the exercise of that discretion will not be dis clearly turbed on unless the value of the appeal probative photographs their v. Carrera outweighed by prejudicial (1989) effect.” 49 Cal.3d (People 291, 348, 121]; 329 777 P.2d see v. 41 Cal.Rptr. People Phillips (1985) [261 29, 127, 54 Cal.3d 711 P.2d Cal.Rptr. 423].) [222 first argues
Defendant
reversal is
because admission of the
required
on their relevance
photographs
premised “primarily”
now dis
“heinous,
credited
atrocious and cruel”
forth in
circumstance set
special
190.2,
section
subdivision (a)(14).
(1982)
Court
(People Superior
(Engert)
800,
647
v. Cart
Cal.Rptr.
76];
Maynard
Cal.3d 797
P.2d
see also
[183
wright
Cal.Rptr. 37]; P.2d see also People testimo- corroborated [photographs 115] the victims were manner in which “location and ny of a witness as to corroborated autopsy, taken at the photograph, second shot”].) (See of the fatal blow. the nature testimony experts regarding of the medical Carrera, 115.) supra, p.329; Thompson, *40 Code however, Evidence section on defendant’s ruling
We agree, the relevance of photo- consideration of the the trial court’s objection, heinous, and special-circum- atrocious cruel to the invalidated graphs now of the proba- have an accurate assessment may prevented stance allegation Even prejudice. the the against potential tive value of evidence balanced error, however, guilt That the evidence of reversal is not assuming required. and by of both defendant was is underscored the dual identifications strong Maxwell, by the evidence by physical and corroborated Cebreros Boender boot and defendant’s baggie marijuana finger- such as the Cebreros’s addition, the roll Maxwell’s tale of botched tape. on the of duct print Boender, mobilehome, the provided her corroborated robbery attempt at Finally, motive for the murder. note trial court found we subsequent “inflammatory.” As in “outrageous” neither nor photographs Poggi 1082], 753 P.2d “we Cal.3d Cal.Rptr. to reasonably cannot conclude that it is a result more favorable probable defendant would have occurred in the of the error.” absence
Finally, any court although defendant contends trial failed exercise discretion, ruling his claim is the trial judge’s quoted belied explicit above.
C. Circumstance Issues Special jury found true four special allegations against circumstance defend- committed robbery
ant: that the was was in a murder while he engaged 190.2, subd. and (§ (a)(17)(i)) burglary (id., subd. that Allen (a)(17)(vii)), to prevent testimony (id., was killed her and that the murder (a)(10)), subd. heinous, atrocious, was and cruel (id., (a)(14)). explain, subd. As we two these circumstance must set aside. special findings Felony-murder
1. The Special Circumstances may It is jury felony-murder now settled sustain special- circumstance killer acted against finding actual without he allegation kill. with the intent 1145- (People Anderson In order to sustain a 1306].) abettor, an aider and felony-murder special-circumstance allegation against however, kill. must still find he the intent to jury (Ibid.) acted with felony-based special-circumstance
Defendant contends the two must be reversed because the was not instructed determine findings kill He facts of this case argues whether he intended to Allen. that the do Thus, jury may not show whether he or Cebreros was the actual killer. have robbery-murder burglary-murder special-cir sustained the and the cumstance based on his role as an aider and abettor. If allegations possible so, he failure to kill reversal. argues, requires to instruct intent
We disagree. given Defendant’s two instructions explaining First, theory of aiding abetting. general connection with princi- case, of the instructed that “A ples jury was aids abets person commission of a crime if with of the unlawful of the knowledge purpose aids, crime he perpetrator intentionally encourages, promotes, instigates by (Italics act or advice the commission of such crime.” added.) *41 Later, circumstances, jury in instructed on the the was told: being special killer, “If either . . beyond defendant. was not the actual it must be proved aided, abetted, counselled, a intentionally reasonable doubt that he com- manded, induced, solicited, or assisted the actual killer in the requested degree you commission the murder in the before are permitted find first the circumstance of that first murder to be alleged special degree true as to (Italics added.) defendant.”
This latter instruction indistinguishable from one this court approved in v. Warren People 218], Cal.3d 471 Cal.Rptr. case, In that the defendant claimed that the instructions did not adequately he, abettor, the require jury to find an aider and acted with the intent to kill. After the rule that intent to kill must be stating felony-based shown before a special-circumstance can be sustained an aider and abet- allegation against tor, we concluded that “a juror reasonable would understand the language of the very instructions to declare that rule: ‘the defendant was ... a aided, abetted, counseled, commanded, induced, who person intentionally solicited, or assisted the actual killer in requested the commission of murder Therefore, instructions, understood, in the first degree.’ so state the law correctly.” at Because p. 487.) essentially the same instruction was {Id. case, in the given present jury necessarily we conclude that defendant’s defendant, killer, found if he was an aider and not the actual acted with the intent to kill.
Defendant focuses on felony-murder instructions to for a con- argue that, trary conclusion. He notes the was also told purposes rule, felony-murder can be unintentional or even accidental so killing Thus, as it occurs in long felony. while the killer is an enumerated engaged intentionally defendant claims the aided in jury may only have found he so, accidental. If no robbery killing being merely and with Allen’s burglary to kill be present. intent would Warren, Cal.3d at rejected argument pages
We this precise supra, 487-488, reasonable instructions in juror interpret no would finding Moreover, a manner.” two other reasons support such “hypertechnical First, rejection circumstance instruction on special this contention. 190.2, mirrors the section subdivision aiding language (b), abetting rule that and thus sets forth the “the aider abetter must unambiguously intentionally killing.” (Anderson, supra, aid in italics p. Thus, the cannot be original.) reasonably instructions interpreted in a forms of a require only felony felony which the basis murder. aiding Second, as verdict on post, jury’s witness-killing explained special Thus, finding killing circumstance was unintentional. precludes have been of intentionally aiding defendant could not convicted an acciden- tal killing. defendant, not raised
Although burglary-murder special circumstance must set aside for the same merger problems discussed ante, i.e., page jury instructions improperly jury to permitted find an burglary based defendant’s intent to commit assault. (Wilson, 441; Cal.3d at see generally Garrison 788-789 P.2d two [striking burglary-mur 419] *42 der special circumstances for the same reasons the issue being not despite by defendant].) raised
2. Witness-killing Circumstance Special The jury sustained circumstance special set forth in allegation section 190.2, i.e., subdivision (a)(10), that victim was a witness to a crime “[t]he intentionally who was killed for the . . . purpose preventing testi- [her] mony in any criminal proceeding, killing during and was not committed the commission ... of the crime to a which was witness.” Defendant [s]he first contends we must reverse finding this because the was not jury instruct- ed to find he intentionally, acted that he reiterating argument may have Cebreros, merely above, however, aided the actual killer. As explained instructions necessary to find adequately required jury intent for an aider and abettor.
Second, may defendant claims that before a sustain a jury witness- killing special-circumstance there a allegation, pending must be criminal proceeding at the of the We rejected argument time killing.
Weidert (1985)
Before the instruction was was instructed assault, robbery, offense. addition to and false im burglary, charged felony a witness was listed as a that defend prisonment, dissuading possible Thus, ant intended to commit he entered Boender’s when apartment. instruction of law relevant to challenged explained “general principle[] “necessary jury’s the issues raised the evidence” and was for the under of the case.” v. Wickersham standing (People (1982) Cal.3d 311], 650 P.2d v. Sedeno Cal.Rptr. quoting People 715-716 913], internal marks quotation omitted.)
Defendant also asserts the potential confusion was because the great dissuading crime of a witness carries different elements from the witness- confusion, however, Any circumstance. killing special potential was dis- Thus, by the instruction on the pelled explicit circumstance. special “One, crime; instruction that the killed to a required, person was witness two, that the intentionally witness was killed for the purpose preventing three, criminal testimony his or her in a killing that the proceeding; not committed the commission ... during crime to which the person *43 manner, a in killed was witness.” such a we find Expressed straightforward jury that the sustained the circumstance possibility special without these elements finding explicit is remote.20 quite read, “Every maliciously person knowingly prevents 19The instruction who or dis attempts prevent making report suades or to a or dissuade witness or victim from a of such acts, one, any felony by peace guilty accompanied victimization to a if officer is such are or, by victim; express implied upon force or two, an threat of force or or violence the witness conspiracy.” where such acts are in furtherance of a This instruction is based on section 136.1, (c)(1), (2). subdivision jury given defining conspiracy, although 20The was also instructions a not defendant was charged may lay with that crime. This have in been to a foundation for a later instruction statements, forming jury (i.e., coconspirator’s Maxwell’s) to a how evaluate Brenda or to present liability theory coconspira a vicarious based on as defendant’s and Cebreros’s status (See 744, 126, (1988) People Cal.Rptr. tors. v. Belmontes 45 Cal.3d P.2d [248 310] misleading Defendant further was argues potential dis delivery concerning the trial court’s of the instruction heightened immediately witness-killing before on the suading instructing witness However, circumstance. rule is that the order special general “[t]he instructions immaterial” in v. Carrasco given which are is (People see also 21 Cal.Jur.3d Cal.App.3d Cal.Rptr. 688]; (Rev.), 942 Law, 3052, Criminal and the 704), jury here was instructed specifically § order which these instructions are has no given significance “[t]he to their relative We thus importance.” conclude the of the chal proximity lenged instruction to the instruction explaining witness-killing special circumstance did not work to defendant’s prejudice. 190.2,
Defendant next claims that section
(a)(10)
subdivision
should be
read to
to find that “but for” the intent
require
to prevent
Allen from testifying, she would not have been killed. Stated
way,
another
he
us to
urges
statutory
find that the
“for the
phrase
purpose
preventing
testimony”
should be
to mean “for the sole
interpreted
purpose
.
. .
.’’He claims this interpretation
necessary
to ensure that the special
circumstance is not improperly enlarged to
one who kills
encompass
when
Green,
the elimination
merely
of witness is
incidental to the crime. (Cf.
Second, we cannot conceive of a situation in which the motive kill merely witness is “incidental” to the crime. Unlike the robbery “technical” Green, committed defendant supra, 27 Cal. 3d when he took his can conspiracy charged]; Washington instruct on if even not [court P.2d [same].) A.L.R.3d Defendant contends 541] *44 conspiracy may that the mention of a jury have special led the to believe it could sustain the allegation against only circumstance him even if he intended that Allen be intimidated but however, ante, not killed. We need problem, not resolve this because as discussed the instruc- jury’s tions and the course, verdicts show that it (Of found defendant harbored the kill. intent to jury there was sufficient evidence for the to find defendant himself struck the fatal killer, blows and was abettor.) thus the actual not a mere aider and murderer, as the the motive identity conceal his in order to jewelry victim’s be We hold the crime can never incidental. kill a witness to a previous sufficiently the trier of is limited: circumstance meaning special plain purpose preventing find victim was killed “for fact must that the testimony.” is evidence to claiming there insufficient
To the extent defendant circumstance, Shortly he is mistaken. witness-killing special support mobilehome, defend botched to rob Boender at Maxwell’s after the attempt identify then that Boender could him. Defendant ant concern expressed later, Cebreros, A few defendant days out “owed him a favor.” sought who at Boender’s bound and blindfolded apartment, and Cebreros appeared rooms, Allen, savage them to and struck both and moved separate Boender From back head. Allen but Boender survived. this ly on the died evidence, due infer that intended to kill the two could defendant days their home a few ability identify him as assailant Maxwell’s their earlier. Heinous, and
3. The Atrocious Cruel Circumstance Special murder finding also contends the that the jury’s Defendant heinous, 190.2, be set aside (see (a)(14)) atrocious and cruel subd. must § unconstitutionally are vague. because the terms of that circumstance special 797.) 31 Cal.3d (Engert), supra, We Court agree. (People Superior Penalty D. Phase Issues
1. Excessive Circumstances Prejudicial Special Effect all
Defendant claims the death must reversed because penalty ante, only invalid. As two special findings explained four circumstance are heinous, atrocious and cruel findings—the circumstance so-called special and the circumstance—must burglary-murder special circumstance special jury’s aside. assume would that the Although argue be set we defendant reversal of special consideration even one invalid circumstance requires United States Court has judgment, disagree. we penalty Supreme a death invalidation of one of several judgment upheld penalty despite U.S. 862 L.Ed.2d aggravating (Zant Stephens (1983) factors 2733]), 103 S.Ct. is in v. Silva (See People accord. court [affirming despite 632-636 1070] Allen, invalid jury’s findings]; consideration of special-circumstance 1281-1283 [same].) at pp. case, (rob- In this two circumstances special considered properly bery-murder special circumstances witness-killing) improper and two *45 men- prosecutor the Although burglary-murder). and (heinous-murder he did closing argument, circumstance special heinous-murder tioned the it, of the stress the circumstances choosing instead heavily rely on not Allen, merely After 1279-1280.) 42 Cal.3d at pp. (See supra, itself. crime sustained, the prosecutor had jury circumstances the four listing special factors, “a killing Allen’s noting aggravating the applicable addressed calculated, correctly so cold, already have concluded callous act. You heinous, known as especially fell circumstance special that it within . .” murder, . . it exhibited exceptional depravity and cruel atrocious statement, urge jury did not the latter Despite prosecutor merely categorized because the crime could penalty death impose atrocious, circum of the sheer number of special heinous or or because Silva, Instead, he 635.) de stances. v. (See People supra, crime, it was saying scribed and the circumstances emphasized defenseless woman against young, prime act committed “pitiless Later, only “also consider not jury her life.” he that the could argued Allen, Dale two brutal murder of Janice but the vicious attack on Boender days night before and vicious attack on him the of the murder equally [the] you certainly of Janice Allen. Those are circumstances and which factors Silva, should consider in this case." As in “we con (Italics added.) supra, juror swayed by clude a reasonable would not have been abstract concepts ‘heinous[, atrocious or . . but instead have on the would focused cruel]’. actual circumstances finding offense which formed the foundation for those circumstances to be true.” special (Id. p. 635.)
Consideration of the burglary-murder invalid circumstance was special similarly benign. Again, prosecutor did not focus on the bare number of circumstance special findings urged brutality but to consider the virtually the crimes. Because underlay same facts both the burglary robbery, and because the jury considered the circumstances of the properly robbery-murder, there was little chance defendant was con- prejudiced sideration of the circumstance. burglary-murder special
2. Alleged Brown Error
Defendant maintains reversal of the judgment required penalty because the was instructed that if it “the cir aggravating concluded circumstances, you cumstances shall a sen outweigh mitigating impose tence of (Italics death.” He claims this instruction added.) impermissibly jury’s restricted the sentencing discretion and directed verdict of death. Brown, reversed on another issue sub nomine 107 S.Ct. Brown 479 U.S. L.Ed.2d California *46 522 “connotes a the statute “outweigh” concluded use of the word
837], we
calls for a mere
certainly not one which
but
balancing process,
mental
‘scale,’ or the
imaginary
on each side of the
mechanical
of factors
counting
juror
assign
Each
is free to
any
to
of them.
arbitrary assignment
‘weights’
to each and all
value he deems appropriate
moral or sympathetic
whatever
consider,
190.3,]
including
to
the various factors he is permitted
[section
Whether the unadorned be examined on its own Every the facts of each individual case. case “must context, whether, may have been mis- merits to determine the sentencer discretion sentencing led to defendant’s about the of its prejudice scope Brown, 17; 40 Cal.3d at fn. p. under the 1978 law.” (People supra, Allen, us to 1277.) requires 42 Cal.3d at Our supra, p. inquiry appeal instructions, conjunction read in with the jury prose- consider whether informed the of “its and deci- arguments, adequately jury weighing cutor’s v. Williams Cal.3d sion-making responsibility.” (People Guzman, 901]; supra, see also 958-959.) pp. 8.84.1, which detailed jury was instructed with former CALJIC No. the statute language the various factors aggravating mitigating “consider, by” into account and be jury guided and instructed the take 8.84.2 That instruction given. the factors. Former CALJIC No. was also informed the it “shall” the death if it found the jury impose penalty aggra- circumstances ones. No other instruc- vating “outweigh[ed]” mitigating role, factor instruction jury’s (k)” tions such as an explaining “expanded Guzman, 956-958; Easley, 45 Cal.3d at (see pp. supra, 878, fn. 10), were given. merely Our first concern to believe it should is whether was led each weight count the the moral evaluating various factors instead in the record nothing factor. 45 Cal.3d at We find (Guzman, supra, p. 959.) urge did the supporting possibility. prosecutor Nowhere factors and me- merely mitigating count the number of aggravating at one chanically arithmetically Although the death impose penalty. everything stated, because weigh “There is nothing prosecutor point observa- a permissible this was weighing process,” one side of the falls on de- inasmuch as defendant evidence phase of the penalty of the state tion *47 argument of this import evidence. The clear any mitigating to present clined compared evidence great weight aggravating the that because of was evidence, It is penalty. death the appropriate was mitigating the dearth of to merely the factors. the to count jury was not urging the prosecutor clear that it was understood jury the of “whether the question We thus turn to for the de- is deciding appropriate for for itself whether death responsible The omitted.) prose- at italics (Guzman, p. supra, fendant.” that in that “It is the law of the State California by stating began cutor special for first murder with circumstances degree cases the penalty certain This, of those ladies and is one gentlemen, be the death penalty, shall [fl] the merely in this It restates nothing We find statement. improper cases.” that, murder, death for convicted of is the appropri- law certain defendants decides the jury is true: for those defendants as to which penalty. ate This circumstances, Pe- the circumstances the aggravating outweigh mitigating death. penalty nal Code that the is provides appropriate the in the The also the word “shall” prosecutor explained meaning instructions, every “I sin- the word ‘shall’ there because saying, emphasize you circumstance that the court will read to is in gle aggravating present case and no He mitigating there are circumstances.” also stated that the the jury aggravating outweigh mitigating should find circumstances the ones, it your duty “then is to return death in this case.” jurors penalty the however,
This explanation, by jury was qualified language informing statutory to take the factors The prosecutor into “consideration.” also told jury “take into account those factors them. guided” by thus fell short of of discretion or prosecutor’s argument divesting them leading to believe it had no but to impose choice the ultimate “shall,” briefly he is Although word that alone not penalty. emphasized Allen, 38.) determinative. 42 at 1279 & fn. (See supra, p. Cal.3d Defendant relies on two recent cases this court reversed penalty which for Brown error v. Edelbacher Cal. 3d 983 judgments (People 1]; Crandell Cal.3d Cal.Rptr. P.2d neither but We reiterate that 423]), persuasive. must examine the entire in each “the we record case determine whether may have been misled to defendant’s prejudice scope sentencer about Brown, sentencing its the 1978 (People supra, discretion under law.” Allen, 17; 1277.) Cal.3d at fn. at While both cases p. p. supra, case, are similarity sig- cited defendant have there present some in Crandell “portrayed the prosecutor For example, nificant differences. essentially capital an into whether inquiry as being weighing process than a process or excused rather any way justified were offenses (Cran- appropriate.” was more penalties . . . which of the two determining dell, offered the prosecutor A was 884.) interpretation similar supra, Edelbacher, 1038. page contrast, carefully through case went in defendant’s
By prosecutor factor, and that no that several were concluding present statutory each the ’’proper” death was concluding factors were apparent. mitigating divested of its that the argue did not prosecutor penalty, factors, statutory “proper” after weighing but discretion *48 Guzman, agree 45 Cal. 3d “we cannot As in supra, was death. penalty statements, whole, read as a misinformed that prosecutor’s] [the (Id. 960.)21 discretion.” sentencing weighing about its Evidence Mitigating to Present 3. Failure four special of first murder with jury’s degree verdict Following circumstances, to the trial court that explained counsel Hoover defense on his behalf mitigating presented that no evidence defendant wished Mr. stated that “I believe of the trial. Hoover phase the penalty [defend- to him. He cannot that life without is parole unacceptable is position ant’s] not want whatsoever; and for that reason does that as an alternative accept not consider it to be viable. for that alternative. He does me to ask the mind, court, this As I to the explained He cannot reconcile it his own [fl] that something attitude is not new. It’s causes me a dilemma. This again substantially I that it from come between us. find differs just up hasn’t [fl] he had the power After that he was unsure whether my observing advice.” client, Mr. of his evidence over the wishes mitigating express to present client. a medical to examine his expert Hoover the court requested appoint court, an may relying defendant have been on The trial concerned that be enhanced appeal that his chances for a reversal on would erroneous belief if declined asked defendant that phase, if in the participate penalty he negative, explaining decision. Defendant replied was the basis for his Supreme dissenting opinion, post, United States recognizes in his As Justice Mosk may analysis error. recently opinions affect our of so-called Brown Court filed two that 1190];Blystone v. Penn (Boyde U.S. 370 L.Ed.2d 110 S.Ct. California 1078].) suggest sylvania Both cases that U.S. 299 L.Ed.2d S.Ct. juries reasoning capital should not be told premise in Brown—that of much this court’s made—may mandatory findings are have been if certain factual their choice of sentence is Brown, 40 Cal. 3d and its find error under overstated. Because we no however, Boyde Blystone impact progeny, we have no occasion to determine this case. my basic funda- I are 20 reasons that believe that he had “approximately life my adult in for most of I have believed that mental thought processes it parole about life without I do have feelings is] and the [that Cook, experienced an Robert The court then appointed unacceptable.” decision, as well about his defendant attorney, to counsel criminal defense him. examine a psychiatrist—to Dr. Matychowiak—apparently had consulted with later. Defendant to court a week returned parties mind about partici- Matychowiak22 changed but had not both Cook and members of noting of the trial. After in the pating penalty phase court, defendant the court family questioned present defendant’s were from Mr. Hoover to refrain that he had instructed further and discovered addition, de- witnesses. cross-examining prosecution’s penalty phase jury. addressing he not be himself fendant stated would Mr. he desired the death penalty, When defendant was asked whether me to do has that he doesn’t want Hoover indicated explained: “[defendant] a sentence of receiving which would have ultimate anything [effect] he finds to be as a sentence which parole, life without the possibility reason, of that *49 him as the sentence of death and because objectionable to any in this he as soon not feeling regard just present because of his would he believe defend- evidence at this time.” Mr. Hoover conceded that did not ant’s irrational and that he believed defendant was sincere position was Later, “I want to make the his belief. he underscored defendant’s position: He finds record clear that he is not one sentence or the other. requesting both sentences . . . .” objectionable trial his change court tried one last time to defendant to persuade
mind, Sanders, your you “Mr. it to be do asking, position does continue your any not wish to ask evidence any questions present counsel nor correct, your penalty of the trial?” Defendant “That phase responded: Honor.” The thereafter his evidence. prosecutor presented penalty phase After the to the Mr. Hoover gave argument jury, prosecutor closing submitted jury. to the argument waived case was may We cast doubt have identified two theories which potential on a verdict defendant decides to penalty capital forgo presentation when First, the of mitigating evidence at the absence mitigating penalty phase. may evidence undermine “the state’s interest in a reliable determi penalty 13, v. Deere 710 (People Cal.Rptr. nation.” Cal.3d Second, may be deemed consti- 925].) P.2d a defense counsel’s performance any suffering from men perceive 22Thetrial court observed that it did not defendant to be tal aberration. Defense counsel concurred in this assessment. tutionally if he or she inadequate accedes to his simply client’s wishes instead an “making tactical independent judgment about the presentation Deere, of the evidence.” mitigating (Williams, supra, 1151; Cal.3d at p. supra, pp. 364-368.) Defendant relies on both theories in urging that we reverse the penalty judgment.
As to the state’s independent interest in achieving a reliable penalty verdict, however, recently we concluded that a defendant’s failure to pre sent evidence mitigating generally does not render the verdict unreliable in the constitutional sense. required reliability is attained when the “[T]he has prosecution its discharged burden of at the proof guilt and penalty phases pursuant the rules of evidence and the guidelines within of a statute, constitutional death penalty the death verdict has been returned under proper instructions and procedures,23 and the trier of has penalty duly evidence, considered the relevant if mitigating any, which the defend ant has chosen to A present. judgment of death in conformity entered with rigorous these standards does not violate the Eighth reliability Amendment Bloom, requirements.” (People supra, 1228; Cal.3d see also People Lang (1989) 49 Cal.3d [quoting Bloom with approval].)
627] Deere,
We have also disapproved suggestion that counsel necessarily provides constitutionally inadequate representation when he or she accedes to a client’s wishes and declines to present available mitigating evidence at the of a penalty phase trial. capital (Lang, supra, 49 Cal.3d at pp. 1030-1031.) At least in the absence of evi dence showing counsel failed to investigate available mitigating evidence or advise defendant of its significance (id. at pp. 1032-1033),24we cannot say *50 defendant’s trial attorney provided ineffective assistance of counsel.
Defendant notes that in contrast to other cases involving this issue (see Williams, Guzman, e.g., 44 supra, 1152; Cal.3d at 45 Cal.3d supra, at 23 open possibility We left the that the state’s penalty may interest in a reliable verdict when, compromised in addition to the defendant’s present mitigating failure to available evi dence, jury given the misleading was also misleading argument. (Peo instructions and heard ple 1194, 1228, Williams, (1989) 669, v. Bloom Cal.Rptr. 698]; fn. 9 774 P.2d [259 concluded, supra, ante, 521-524, p. 1152.) Cal.3d at As we pages prosecutor’s the clos ing argument instructions, in objectionable jury this case was not and the although potential ly misleading, actually did jury not believing deceive the into regarding it lacked discretion penalty. the choice of 24 Defendant present any contends his mitigating decision to decline to evidence was not a fully informed decision because he possessed power was not told that the trial court the to special strike the eligible circumstances and thus make him parole. (People for v. Williams (1981) 30 Cal.3d Cal.Rptr. 1029].) by This assertion is belied the [179 record, which shows that a special defense motion to set aside the findings circumstance was denied the prior presentation trial court to penalty phase. of evidence at the In in case. absolutely no evidence mitigating he
p. 961), presented did even counsel not addition, argument no defense closing there was register did sev- counsel (Defense witnesses. the prosecution cross-examine witnesses, how- the prosecutor’s of during objections questioning eral Thus, nothing “weigh” against to was left with argues, jury he ever.) evidence, a verdict of effectively foreclosing thereby People’s phase penalty parole. of possibility life without Deere, reasoning of disapproving
In of our recent decisions light not circumstances do support conclude these 41 Cal.3d we supra, voluntary deci judgment. knowing reversal Defendant’s penalty of evidence, adverse cross-examine right mitigating to his to forgo present sion of trial witnesses, his argument penalty phase closing and present those an to a reversal based on from now entitlement claiming him estops 1031-1032.) Cal.3d at pp. decisions. (Lang, of claims decision to Finally, forgo presentation defendant his a guilty of his tantamount plea evidence at the trial was penalty phase of section 1018. That section without the consent his counsel violation which maxi felony states “No pertinent part: plea guilty death, mum life punishment possibility without imprisonment shall be from a not with coun parole, appear received defendant who does sel, any nor shall such be received without the consent of the defend plea ant’s counsel.” faulty:
We find his reject argument defendant’s because we the premise guilty decision refrain from is not to a offering plea evidence tantamount and is thus not section 1018. His choice did not amount to an governed he admission that he believed death nor did appropriate penalty, those him at give up right testifying against his confront or cross-examine (Cf. Boykin Alabama 395 U.S. penalty phase. 274, 279, 1709]; L.Ed.2d Tahl 130-133 S.Ct. re Moreover, 577, 460 449].) P.2d his decision to take refusing necessarily any likely not make more phase did it part penalty could, for find death was the penalty. would appropriate *51 guilt have found factors from evidence at the example, mitigating presented as to We conclude the of section 1018 is not so broad embrace phase.25 scope in the of his trial. penalty phase defendant’s decision of nonparticipation 25Capital juries routinely “you all of penalty phase are instructed at the shall consider (CALJIC during any No. part the evidence which has been received of the trial of this case.” 8.85.)
4. Other issues ” Instruction Sympathy
a. “No deliberations, instructed the the trial court jury Prior to the guilt phase sentiment, by conjecture, passion, preju- “swayed sympathy, not to be jury dice, 1.00.) Following CALJIC No. feeling.” (See or opinion public public are you “You are reminded that jury was instructed: the penalty phase, case in the first given phase instructions by previous to be guided of the case.” Defendant con- to this particular phase which are applicable into the the “no instruction injected sympathy” tends this latter instruction consider- jury’s deliberations and improperly precluded penalty phase rejected the evidence. We have any factors shown sympathetic ation 879, 899, v. Allison 48 Cal.3d this in cases argument previous (People 208, v. 1294]; Gates People fn. 11 771 P.2d Cal.Rptr. no 301]), and defendant presents 1209 [240 should reconsider those decisions.26 why
reason we Use Crimes Underlying b. Dual have modified the standard
Defendant asserts the tria! -urt should factor to crimi (b)27 instruction to make ciear that penalty phase pertained he was convicted in the activity present nal other than that for which instruction, modify jury may he claims the By proceeding. failing of his crimes Boender and against have “double counted” the circumstances delibera during Allen the various factors weighing penalty phase when Ainsworth, v. We have previously rejected argument (People tions. Miranda, 105- 1032; v. 44 Cal.3d at People supra, pp. Cal.3d supra, and, event, here. The any jury in we find no was misled 106) possibility clearly (b) tied factor prosecutor, closing argument, record shows of the five armed robberies defendant committed 1970. the evidence c. Excessive Circumstances Special Harris,
Citing opinion supra, the plurality to con permitting defendant contends the trial court erred giving antisympa Supreme Court has held that We also note that the United States (California v. thy penalty phase per se instruction at the itself is not itself unconstitutional Brown, giving supra, 538), although prohibits CALJIC No. 1.00 479 U.S. state law course, Here, Brown, 7.) penalty phase. (People fn. the chal 40 Cal.3d at guilt phase. lenged given penalty phase at the but at the instruction was not consider, 190.3, mitigating fac (b) aggravating an or permits Section factor tor, activity by use presence the defendant which involved the or absence of criminal “[t]he vio express implied threat to use force or attempted use of force or violence or the or lence.”
529 circum and robbery-murder burglary-murder special both the sider robbery when the Harris reasoned that penalty in its deliberations. stances transaction, section of an indivisible part were committed burglary and at Cal.3d (36 circumstances. multiple a finding special 65428precludes 65.) Bean v. (People Harris on this plurality point. since rejected
We have 467, v. 919, 996]; 760 People P.2d 46 Cal.3d 954-955 (1988) Cal.Rptr. [251 867, 713, 741].) P.2d 765-769 750 Cal.Rptr. 44 Cal.3d (1988) Melton [244 course of Thus, defendant in the “any committed robbery burglary and considered an independent homicidal could be properly conduct that soci- distinct interest factor. Each involved violation aggravating [a] in the commits both offenses ety protect, seeks defendant who than a defendant who may course of a murder be deemed more culpable Thus, (Bean, did only 954-955.) the trial court supra, commits one.” pp. in both circumstances. permitting special not err consider 5. Review Proportionality this court must both intracase engage
Defendant submits that because Initially, complains intercase review. he proportionality Cebreros, declined to seek the death codefendant People penalty against killer, they and because never which of the two men was the actual proved He also constitutionally death is this case. disproportionate penalty review, this court will urges comparative claiming to undertake sentence we only find his crime than were much less serious others for which life terms imposed.
mayWe quickly reject this latter neither the federal nor the argument: state Constitution have in comparative sentence review and we compels numerous cases declined to v. Caro (People undertake such review. 46 Cal.3d 680]; Poggi, Cal.Rptr. People [251 306, 348; Rodriguez (1986) 777- P.2d v. Harris 465 U.S. 113]; Pulley sea 871].) L.Ed.2d 104 S.Ct. reject We also claim on a of his defendant’s for relief based comparison Although sentence and the the evidence imposed sentence Cebreros. defendants, determination for the guilt largely the same two function, “non- penalty requires engage weighing normative crime criminal. intangible of both the and the quantifiable” aspects ways provides: punishable Section “An act or omission is made in different which may provisions, in no provisions punished different of such but of this code under either punished case can it be than one . under more . . .” *53 530 Thus, 42
(Allen, p. 1287.) Cal.3d normative and peculiarly “[t]he jury’s individualized nature of the sentence determination in each case makes it and of no benefit to consider the inappropriate imposed sentence superficially similar cases for the of determining prejudicial purpose 1, 57, effect of error.” Malone 47 fn. 31 (People Cal.3d [252 525, 26, 762 1249]; Dyer P.2d see also 45 Cal.Rptr. (1988) Cal.3d 209, 69-71 Cal.Rptr. [rejecting precise argument].) P.2d [246 1] Moreover, assailants, we that of two observe defendant was the one with Allen; the motive to silence Boender and he—and not Cebreros—was the one armed with a firearm. On state of likely the evidence he aswas found, as Cebreros have been the actual killer and the at least kill, that he with impliedly, acted the intent to and that he had committed Thus, five armed robberies. prior even were we to find disposed significance sentence, in the fact Cebreros received a life we cannot conclude that defendant’s death is constitutionally suspect. sentence
Finally, to the claiming extent defendant is his sentence is constitutional- I, ly under article disproportionate section of the California Constitution v. Dillon (People 449-484 Cal.Rptr. re 697]; Lynch P.2d In (1972) Cal.3d 423-429 case, P.2d we 921]), conclude that in light of aforementioned facts of his his sentence is not to his disproportionate individual culpability.
III. Conclusion heinous, circumstance, The atrocious and cruel special as well as the circumstance, burglary-murder special is set aside. as to both judgment guilt and is otherwise affirmed. penalty J.,
Panelli, J., Kennard, J., Arabian, J., Eagleson, concurred. MOSK, J. I dissent. view, my the judgment entirety. should be reversed in its I agree with
Justice Broussard that right defendant’s trial drawn from a representative community, cross-section of the guaranteed by which is both the Sixth and Fourteenth Amendments to the United States Constitution I, Constitution, and article section of the California in this violated systematic case underrepresentation (See opn. dis. Hispanics. J., Broussard, post, at 538-543.) pp.
Further, the judgment should be penalty separate reversed I independent grounds. As shall the verdict of death should be explain, *54 41 353 (1985) v. Deere Deere error (People [222 because of vacated v. 13, (People Brown error also because of 925]) P.2d and 710 Cal.Rptr. 637, on 440], P.2d revd. 709 Cal.Rptr. 40 Cal.3d (1985) Brown [220 479 U.S. v. (1987) Brown [93 sub nom. grounds other California 934, 837]). 107 S.Ct. L.Ed.2d I the in mitigation available evidence failure present
Defense counsel’s satisfy height- not the in a of death that does resulted verdict phase penalty United Amendment to the reliability Eighth the degree required ened of 17, I, of the California Constitution. Constitution and article section States in that at defend- counsel stated substance guilt After the defense phase, in not his he would judgment, participate ant’s own best request against he evidence avail- mitigating He made that had phase. the it penalty plain mother, father, are his and his sister grandmother his able: “[Defendant’s] it I But he also made all here in can on evidence.” put this courtrooni. such evidence. that at he would not plain present defendant’s request, for death. Other than prosecution put At the a case penalty phase, all. a defense did making objections, nothing few 353, Deere, reversed of judgment 41 Cal.3d the court People in evidence present death on that defense counsel’s failure ground mitigation—although pen- accord with client’s wishes—rendered in my concurring unreliable. I stated alty constitutionally determination As 1127, 1158- v. Williams dissenting (1988) opinion [245 901]: “First, court failure to present determined counsel’s [Deere\ proceeding. evidence introduced error into the mitigation penalty “ to bar ‘To a defendant crime permit potentially capital convicted . . . introducing mitigating penalty phase his counsel from evidence at . . . its constitutional and statu- prevent discharging would this court from duty to of death record of tory judgment upon complete review case, because a of the evidence of the significant portion appropriateness penalty missing. would
“ ‘This concern of deficiency paramount of the record another implicates . reducing “in . . has a interest in strong the state: cases the state capital . . . Since 1976 the United States judgments.” Supreme risk of mistaken difference between recognized Court has repeatedly qualitative other demands a penalties correspondingly higher degree death and all reliability in the determination that death is the appropriate punishment. Carolina U.S. L.Ed.2d (Woodson North S.Ct. And since 1978 the court has insisted that (plur. opn.).) high 2978] any the sentencer must be to consider of the defendant’s permitted aspect (Lockett character and record as an factor. v. Ohio independently mitigating 973, 989-990, 438 U.S. 604-605 L.Ed.2d 98 S.Ct. 2954] C. (plur. opn. Burger, J.).)
“ mitigating ‘To allow a defendant to the introduction of capital prevent evidence on his behalf withholds from the trier of fact crucial potentially if bearing information on the decision no less than the defendant penalty judicial himself from such statute or prevented introducing evidence In in either case the state’s interest a reliable determination ruling. penalty (41 363-364.) is defeated.’ Cal.3d at pp.
“Next, . . . court determined that so as ‘the record long [Deere} demonstrates “the been called possibility might that at least someone have ’ testify behalf life urge (41 defendant’s and that his be spared” Cal.3d at in original), italics the error introduced into the p. penalty by counsel’s failure to evidence in cannot be proceeding present mitigation deemed harmless. The court explained:
“ ‘When in the sentencer case is of all or a substantial capital deprived evidence in part mitigation, available “the potential prejudice Indeed, too obvious to “short of require proof.” substituting [Citation.] own, way verdict of its there is no for a court to determine what reviewing eifect evidence have on the unpresented mitigating might had sentencer’s decision.” We no have doubt that a of death judgment imposed [Citation.] Const., in such circumstances constitutes a art. miscarriage justice (Cal. VI, 13): only not did defendant not have a fair he trial—in eifect penalty § had no trial at all.’ Cal.3d at penalty (41 p. 368.)”
I turn now to the case at bar. On the face it record is plain Deere error occurred: at defendant’s request, counsel declined to present eifectively available evidence in and indeed declined to mitigation, partici- any manner in pate the penalty phase.
It is also that the error here cannot be deemed harmless. As plain Deere, . . . “the record demonstrates ‘the that at least someone possibility testify have been called to on defendant’s and to that his might urge behalf ” Deere, life be v. 41 Cal.3d at italics spared.’ (People supra, p. case, available, original.) including such witnesses were potential mother, defendant’s and his sister. grandmother, father and constitutionally of death the verdict I set aside would Accordingly, (See People as to judgment penalty. reverse unreliable and would Deere, 368.)1 41 Cal. 3d supra,
II Brown, error under The committed trial court mandatory sentencing in accordance with by instructing (hereafter 190.3 section of Penal Code of the final language paragraph 190.3). section all received heard and having “After statutory declares: provision of coun- evidence, arguments heard and considered having and after consider, by the
sel, guided into and be take account the trier of fact shall ., . shall sentence impose . circumstances mitigating aggravating circumstances aggravating if trier of fact concludes that the of death (Italics added.) circumstances.” outweigh mitigating *56 evidence, after heard all of the and having The instruction stated: “After consider, counsel, you the of shall arguments heard and considered having of and aggravating the factors by take into account and be guided applicable aggravating . . . If that the you . conclude mitigating circumstances [fl] circumstances, a you shall impose the outweigh mitigating circumstances (Italics added.) sentence of death.” final of section 190.3
In Brown the court construed the paragraph context, is for a process “In the word a ‘weighing’ metaphor follows. [its] The word connotes a by description. which nature is of incapable precise mere certainly mental not one which calls for a balancing but process, ‘scale,’ or mechanical the counting imaginary of factors on each side of the free arbitrary any juror assign of of them. Each is to assignment to ‘weights’ each and all value he deems to appropriate whatever moral or sympathetic “ 1 error, finding rely . . . prejudicial majority proposition In that reli no the the ‘[T]he ability Eighth ”—as [required penalty is attained when’ the Amendment death cases] penal assertedly discharged proof guilt prosecution has its of at the and here—“ ‘the burden ty guidelines death phases pursuant and the of constitutional to the rules evidence within statute, proce proper instructions and penalty dures, the verdict has been returned under death evidence, any, duly mitigating if penalty relevant and the trier of has considered the 525-526, ante, quoting (Maj. opn., pp. present. . . .’” which the defendant has chosen to 1194, 669, 698], maj. opn. fn. (1989) Cal.Rptr. 774 P.2d v. Bloom 1228 [259 mind, only my Reliability the omitted.) proposition To unsound. can be assured when that is i.e., any “significant “complete,” does not lack record on which the verdict is based is when it reasonably con appropriateness penalty” the that counsel portion of the evidence of the “ ‘ ” Deere, supra, mitigation.’ (People 41 compelling . . case in cludes . makes the most 363, 364, “complete” in 3.) not pp. fn. It is that the record here is Cal.3d at obvious sense. of the factors he to .... permitted By directing various is consider ‘shall’ impose penalty the death if it finds that factors aggravating ‘outweigh’ mitigating, any statute should not understood to require unless, juror to vote for death penalty upon completion ‘weighing’ he is process, decides that death all appropriate penalty under factors, circumstances. the jury, by Thus the various weighing deter- simply mines under the relevant evidence which is penalty appropriate par- (40 ticular case.” Cal.3d fn. omitted.) Stated simply, jury is to make a moral “require[d]... assessment on the basis of the character of the individual defendant and the circumstances of the crime and thereby decide which is in the penalty appropriate particular (1989) case.” v. Bonin (People Cal.Rptr. Cal.3d words, 460].) P.2d other “The not to simply determine whether factors aggravating outweigh factors then mitigating impose determination, the death penalty as result of that but rather it is to determine, factors, after consideration relevant whether all under circumstances ‘death is the appropriate penalty’ the defendant before it.” Myers (People (1987) Grodin, (lead opn. J.).)2
698]
paragraph
In Brown the court
construed
final
190.3 as it
section
did for three rea
(1)
plain
190.3”;
likely
language
give
sons:
of section
effect to “the most
“honor[]
drafters”;
‘constitutional’ intent of the
constitutional difficulties of
“avoid[]
*57
finding
‘mandatory’
permits
penalties.” (40
544.)
that the statute
p.
death
Cal.3d at
Very recently,
Boyde
316,
(1990)
v.
in
In
mandatory sentencing
section 190.3’s
incorporating
an instruction
stand
it had
that
provision
the construction
in accordance with
language
statutory language
the
that
acknowledged
the court
adopted. Specifically,
to the defendant’s
the
of their discretion
scope
as to
jury
mislead the
might
reasonably under
17.)
juror might
A
3d at
fn.
(40
p.
Cal.
prejudice.
a finding
as “simply
the
determination
to define
language
penalty
that
stand
(id.
each
factors on
counting
mechanical
of
“a mere
540)
facts”
”
words, he
might
In
other
(id.
p. 541).
‘scale’
of the imaginary
side
A
is determined.
the
which
process
penalty
to
nature of
misled as
the
to
him to vote
the
reasonably
language
require
also
understand
juror might
evidence
outweighs
the
aggravation
if he
that the evidence
for death
finds
penal
is not the appropriate
if
concludes that death
mitigation—even
he
say, he
540-544.) That is to
id. at
ty
(See
pp.
under all
circumstances.
to be resolved
question
to
character of the ultimate
be misled as
might
determining
penalty.
process
section 190.3’s manda-
In
an instruction
deciding
incorporating
whether
case,
court
error in a
tory sentencing language
given
would constitute
standard,
suggested
which was
juror”
has
so-called “reasonable
applied
reasonably
charge
in Brown itself: could a
have
understood
juror
carry
contrary
that
to the
law?3
meaning
governing
case,
determination
penalty
the trial court’s instruction on the
as
might
jury
indeed have misled
their discretion
scope
juror
charge
defendant’s
A reasonable
could have understood the
prejudice.
907, 933,
3In
v. Marshall
footnote 5
676],
Boyde
the court
“In
Moreover, instruction, in anticipation trial court’s the prosecutor in his summation emphasized, mandatory misleadingly explicated, Indeed, sentencing he language. “major used to language frame “If premise” argument: his aggravation outweighs you must mitigation, does, fact, Therefore, death. impose Aggravation outweigh mitigation. you must death.” impose prosecutor opened summation thus.
“Ladies your it now gentlemen, becomes decision whether penal- ty in this case be to imposed Ronald Lee Sanders shall death or life the state prison without possibility parole.
“I know you the decision that have make is not a I pleasant one and certainly However, wouldn’t want you your job take lightly. on the other hand, you duty have a sworn jurors case follow the law of this state as the gives you court it to I my when have concluded remarks. you
“All of told us during jury selection not process you would verdict, relish the however, idea of returning you a death penalty also told you us that could do so in the case. proper “It is the law of the State California that in certain cases penalty for first murder degree with special circumstances shall be the death penalty.
“This, cases, ladies and gentlemen, is one of those .... *59 miti- and certain factors you certain aggravating to
“The will read court your making take into consideration you should which factors gating decision. factors into account those take you you that should
“The will tell court deliberation, will then the court and your be those factors guided and because you ignore cannot which very instruction you read important of iswho on as the as well the State to the duty defendant California of trial here. follows:
“This instruction reads as outweigh this case aggravating circumstances you conclude that “If circumstances, In other penalty. shall the death mitigating you impose circumstances, words, judge the factors that the look at the you got have to out- circumstances if the you, aggravating to make a determination reads circumstances. weigh mitigating do, to duty is return the they your jurors then it you conclude that “If in this case. penalty
death cir- aggravating there because every single “I the word ‘shall’ emphasize you cumstance that the court will read to is in this case and there are present mitigating no circumstances.
“There falls one nothing everything is because side weigh Therefore, under the sentence in this case weighing process. law proper in fact added.) is the sentence of death.” (Italics statutory the evi- prosecutor then reviewed factors and penalty he claimed gist dence was relevant thereto. The of his was that argument aggravation present mitigation was absent.
Finally, thus: “I prosecutor closed summation will repeat you you instruction aggravating would conclude that the circum- again. If circumstances, outweigh stances the mitigating you shall the sentence impose case, death. There are no circumstances in this mitigating proper penalty (Italics added.) is death penalty.” did, as he arguing message delivered law prosecutor to determine circumstances required simply aggravating whether outweighed circumstances and then fix the as the manda- mitigating penalty course, tory sentencing directed. That was erroneous. language message, resolved incorrectly question It described the character of the ultimate in the “The not to determine process determining simply penalty: *60 538
whether aggravating outweigh factors factors and then mitigating impose the death as a result . . . .” v. penalty Myers, of determination (People Grodin, see, 43 Cal.3d at supra, by e.g., 276 v. p. (lead opn. J.); People Bonin, Brown, 856; 47 40 Cal.3d at v. supra, p. People supra, Cal.3d at mind, my p. 541.) juror To a reasonable not have the ignored prosecu- could tor’s import.4 words missed their I
Accordingly, conclude that the trial court’s instruction in accordance with mandatory the sentencing language of the final of section paragraph 190.3 indeed have the might jury misled as to the of their discretion scope Therefore, defendant’s I prejudice. would set aside the of verdict death and reverse the judgment as to v. penalty. (See, e.g., People (1989) Farmer 47 888, 508, Cal.3d 931 765 P.2d Cal.Rptr. 940].) [254
Ill above, For the reasons I stated would the judgment entirety. reverse in its BROUSSARD, I agree J. I dissent. with Justice Mosk that error relating to the instructions and at argument the trial penalty requires reversal 512, verdict. v. (See Brown 40 (1985) Cal.3d 538-544 Cal.Rptr. [220 637, 440].) First, Two other errors also affect the judgment. use of registration voter as lists the sole for jury source the master list deprived defendant of his constitutional to trial a drawn from right jury a Const., VI, representative community cross-section (U.S. Amends. Const., I, XIV; Second, Cal. art. 16). court erroneously trial excluded § for cause a prospective juror because of his generalized to the opposition death penalty, any despite lack that he not conscien- showing could tiously juror perform duties as (See case. v. capital Witherspoon 510, 776, Illinois 391 U.S. 519 88 1770]; L.Ed.2d S.Ct. Wain- [20 wright v. Witt (1985) 469 U.S. 105 L.Ed.2d S.Ct. 844], People Stanworth
P.2d 889].) concluding error, In that the majority rely trial court did not commit Brown on a reading of prosecutor’s mandatory the summation that treats comments on the sentenc event, and, ing language any insignificant. as sound light discrete and the record set above, very out reading explained, such a is at the least prosecutor’s dubious. As remarks Further, “major premise” argument they framed the of his death. misstated law. The majority’s contrary notwithstanding, assertion to the simply it is not the case that “for those aggravating defendants as to which a circumstances, outweigh mitigating decides circumstances Penal provides penalty (Maj. Code that the appropriate opn., is death.” ante, p. 523.) simply “The aggravating outweigh is not to determine whether factors mitigating determination, impose penalty factors then death result of that but determine, factors, rather it is to after consideration of the all the cir relevant whether under appropriate penalty’ (People Myers, cumstances ‘death is the for the before it.” defendant Grodin, (lead J.).) Cal. opn. 3d
539 I. system by jury which the showing facie made a prima
Defendant
of
trial produced
at
time
County
in Kern
the
selected
venires1 were
Hispanic popula-
of the
substantially underrepresentative
venires that were
system jury
of
selection
that this
argues
Defendant
community.
tion of the
the
of
from a
cross-section
to a
drawn
right
jury
representative
violated his
the
to
United
Fourteenth Amendments
community under the Sixth and
I,
Constitution.
of the California
States
and article
section
Constitution
v. Bell
49
citing People
rejects
argument,
The
this
majority opinion
is
the
But this case not
520-531
Cal.Rptr.
129].
[262
only that the
to
not
prove
That
a defendant
required
same as Bell.
decision
to
but also
group,
a
system selecting
cognizable
of
jurors underrepresented
Here
(See p. 524.)
identify
underrepresentation.
the
source
the
probable
so,
selected
county
jurors
that the
proof
defendant has done
presenting
to under-
a
lists—known
exclusively
registration
from source—the voter
identify
source of the
When a
the
defendant does
represent Hispanics.
here,
to
has the
the burden should shift
as
defendant
underrepresentation,
to
issue is
particular procedure
demonstrate that
prosecution
justified.
433], we held that on the facts of that the exclusive use the voter of his registration selecting jurors lists a basis the defendant deprived reason, to a is “that there is a right representative jury. explained, we large regis- and that fails to increasing proportion general population vote, ter to and failing register larger that the of minorities to proportion than that for the to general (P. minority group If a fails population.” 52.) numbers, register county’s to its decision to use the voter proportion list as a registration jurors group the exclusive source of is decision Indeed, will has now underrepresented juries. Legislature its recognized yield juries, that voter lists do not registration representative has mandated jury counties to those lists the selection of supplement Proc., venires.2 (See 197.) Code Civ. § ante, majority opn., though (maj. 2), As the fn. defendant frames this issue *62 690, 698, 258,
L.Ed.2d 95 S.Ct. v. 692]; Wheeler Cal.3d People (1978) This means that “a 748].) guaranty party [148 is entitled constitutionally jury to that is as near an of petit approximation the ideal community cross-section of the as the of random draw process permits.” Cal.3d at (22 p.277.)
In Duren v. Missouri U.S. 357 (1979) 664], L.Ed.2d 99 S.Ct. Supreme United States Court described a in defendant’s burden asserting a fair to a jury cross-section venire. The court held challenge that in order to establish a facie prima violation of the fair cross-section require- ment, a defendant must show (1) alleged that excluded is a group “distinctive” in the that the group community; (2) of this representation in group venires from which juries are selected is not fair and reasonable in and, relation to the number such the community; in that persons this is underrepresentation systematic due to in jury exclusion of the group Harris, selection (P. process. p. 579]; L.Ed.2d accord v. People supra, 36 50.)
Defendant in this case based motion testimony on the quash pre- sented in jury three other in Kern challenges County Court. (See Superior Cantu, Robinson, v. People 22229; v. People 21518; Nos. No. People Streeter, 22346, 22056, 21910, v. Nos. 21368.) By the evidence stipulation, record, in these cases incorporated into the and defendant’s motion was submitted on those transcripts.
The majority concede that showing defendant’s establishes that “the first ante, prong of the test clearly Duren is satisfied.” (See maj. opn., p. 491.) Defendant has also satisfied the and second third the Duren test. prongs With regard to the second prong—that number of members of the cognizable jury in the fair group pool is not and in relation reasonable to the number of its members the relevant community—defendant showed a “significant based on the use of total disparity figures.”3 (See population Harris, 36 Cal.3d at p. 54.) Under calculation Cantu that Hispanics represented county’s 17.76 of the adult percent population (21.95 percent of total 8.3 population) percent and of the there is jury pool, an absolute of 9.46 and a disparity percent disparity of minus comparative 114 percent (or approximately percent). al., 3Kairys Jury Representativeness: et Multiple A Mandate Source Lists for
Cal.L.Rev. 788-792. figures population based total showing Harris the But under while voter the use of sufficient, further and showed here went defendant eligible of Hispanics the proportion lists registration underrepresents Robinson, and incorpo- in Cantu evidence presented service. The jury of the case, 16.3 percent Hispanics comprised rated into showed total popula- percent to 17.76 (as compared eligible population figures, those registered Using voters. 8.3 tion), only but still percent less than one probability of 8 disparity percent an absolute there is by chance.4 have occurred one million that the could disparity test, i.e., Duren three of the prong also satisfied Finally, defendant has systematic due exclusion must be alleged underrepresentation that the Missouri, supra, (Duren in the selection cognizable process. group *63 majority that the rests L.Ed.2d at It is here 587].) 439 U.S. at p. p. showing to make the concluding requisite that defendant failed holding, its my system err. In majority opinion, The systematic underrepresentation. of in inherent the only means that the is disparity underrepresentation atic utilized, random the result of and not jury process selection particular (Bell, (dis. of system. p. opn. in 49 Cal. 3d supra, variations that Broussard, J., Missouri, 439 U.S. at p. Duren citing supra, de in Bell a majority But under the view pp. 588-589].) L.Ed.2d at even of the selection by showing this a element prong specific fendant satisfies group. a system system underrepresent cognizable causes that which that if has so here conceded Defendant done here. Indeed the prosecutor jury panel—and there of on the eligible Hispanics is underrepresentation lie only it that must in explanation the evidence makes clear there is—“the the fact that is voters.” underrepresented among registered this group recognized prima showing underrepresentation Hispanic The court a facie of trial itself of stated, when, County jury persons denying quash, it panels on Kern in defendant’s motion to showing prima disproportionate “I do that has a facie there a believe there been that is people Hispanic jurors, I am sure that means a number of with surnames called for but not thing, everybody by reading Angeles any publication and as Times and other knows Los country people illegally green an of in that there are enormous number or card-wise [szc] So, really really anything.” who are not citizens. I don’t think that in and of itself means The ruling underrepresentation disregarding proof court’s was in of the ba erroneous both on allegedly knowledge county in sis of common about the of noncitizens in the and its number systematic finding showing that there no of exclusion. First, Harris, may rely supra, upon population held total as we Cal.3d a defendant service, eligible jury figures, pinpoint people exact of for to make his rather than number here, erroneously 48), rejected prima (p. facie case. The trial court like the in Harris de- court may large showing grounds percentage a Hispanics that his of have included fendant’s on service, eligible jury doing improperly relieved people number of were not so who justify underrepresentation. the state of its burden to refute or Second, jury ignored relating presented to the the trial court evidence which defendant knowledge, eligible casually reported population. Rather the court referred to the common in the United States newspaper, in the that there is “an enormous number” noncitizens presented did account of that recognizing that the evidence that had been take without factor. majority
The reply county’s system racially that is neutral (maj. opn., ante, fact, court, everyone—this state p. 496.) and the Legislature, county itself—has recognized jury system now that a selection which neutral, relies exclusively registration racially voter lists is not and has But the to a changed.5 change system county list took time. The multiple try system, chose to defendant under defective former even though system racially resulted unrepresentative juries, because it would have $15,000 $40,000 between (less cost than the cost of this appeal) put system list multiple into effect earlier. Harris,
As
(see,
we have explained
e.g.,
58), to make a
violation of the fair cross-section
showing
requirement,
defendant need not
show
commissioner intended to discrimi-
nate against
All that need be
is that
Hispanics.
system
shown
of selec-
tion results in
denial of a
a fair
pool
cross-section
representing
community.
constitutionally
mandated
goal
representative jury, not
an unbiased
or a facially
commissioner
neutral selection method. The deci-
sions requiring
systematic,
the accused to show
purposeful discrimination
nullify
do not
discrimination
others which condemn
from
stemming
negli-
gence
inertia. The
recognize
may
latter
that official
compilers
jury lists
drift into discrimination
not taking
formulating
action to
it. In
prevent
*64
jury,
for a
must
panel
officials
adhere to a standard more
than
stringent
discrimination;
mere abstention
they
from intentional
have an affirmative
duty to develop
procedures
and
pursue
achieving
aimed
a fair cross-
of the
559,
section
community. (Avery Georgia
U.S.
561 [97
1244, 1247,
L.Ed.
891];
398,
73 S.Ct.
Akins v.
Texas
U.S.
1692, 1696,
L.Ed.
Evidence of a and regular notable led the disparity United States Su- Duren, Court in preme Harris, 439 U.S. supra, and this court in supra, 36 Cal.3d to conclude that the cause of the underrepresentation was inherent in jury the process. selection Here defendant showed more than notable disparity. Here defendant demonstrated that the underrepresenta- tion of is the Hispanics solely due to selection of jurors from voter registra- lists. I tion would hold that defendant has met the of adequately third prong test, systematic the Duren showing Hispanics exclusion of in the jury selec- process. tion majority quote 5The (4th 1988) States v. United Cecil Cir. F.2d which said that system adopted is sufficient that provides a fair cross-section and “[I]t we find both com precedent mon sense registration they and that establish the voter lists do this are not taint if by 1448-1449, some (Pp. added.) Clearly ed affirmative form of discrimination.” italics this majority authority and other cases registrations may cited are not voter lists be jury as an they provide used exclusive source for selection do a fair We not cross-section. if expect perfection, says (ibid.), surely cannot percent as Cecil but do better than we can the 53
comparative disparity shown here. a from by jury to trial drawn is the right here to be vindicated right very heart of goes It community. a fair cross-section jury. of As we impartiality fact-finding process—the of integrity Wheeler, primary in People “[T]he recognized ... is to achieve requirement cross-section of representative purpose beliefs and the diverse interaction of by allowing the an impartiality overall When, here, as His- their group experiences.” from jurors bring values the Wheeler, venires, when, in as jury just are underrepresented panics struck, becomes impossible “such interaction peremptorily Blacks were prejudices the conscious unconscious dominated jury will majority.” (Ibid.) in a In critical than case. capital is more representative
Nowhere but or innocence only question guilt not resolves the such cases community in its most role: compelling also as the conscience of serves live life or death determina- it shall or die. person decides whether if a fair and values views is imperative tion the of diverse interplay A decision in a case just capital be rendered. impartial judgment ethnic, all racial and religious groups the different requires people jurors. Defendant was society being our have an chance selected equal denied that in this case. right
II.
facie
prima
showing
In addition to its error
defendant’s
rejecting
erred in ex-
unconstitutionally
jury, the trial court also
unrepresentative
juror
one
on the basis of
death
cluding
generalized opposition
penalty.
*65
Hovey v.
As Court [168 128, P.2d 1301], jurors 616 were determine their questioned separately The Juror penalty. views on death voir dire to determine whether extremely to sit on was brief: Giangregorio eligible capital jury a How feel “Q: you do about death penalty? it, your I am
“A: Honor. against you every Are
“Q: against in it case? I Every objection “A: not in it.” instance. do believe Over defense further motion granted prosecutor’s without court then questioning, juror to exclude the for cause.
544 412, Witt, a Wainwright juror may v. 469 U.S. excluded supra,
Under only if “the views would juror’s because of his views on capital punishment of his duties as a in substantially juror or ‘prevent impair performance ” 424 (P. his instructions and his oath.’ L.Ed.2d at pp. accordance with [83 581, Adams v. Texas 448 U.S. 45 L.Ed.2d 851-852], quoting [65 that the should be excluded 2521].) showing juror 100 S.Ct. The burden (Witt, exclusion. 423 L.Ed.2d at seeking supra, p. p. is on the party [83 juror Deference is due to the trial who sees and hears the 851].) judge (p. 426 L.Ed.2d at thus the issue on review is whether the p. 853]); judge’s [83 fairly (P. 858]; “are the record.” L.Ed.2d at findings supported [83 144, 154, Wainwright v. 477 U.S. L.Ed.2d see Darden [91 2464].) S.Ct. brief, wholly The with Juror is unsearching colloquy Giangregorio substantially insufficient to show that views would or prevent impair “[his] of his duties in accord with his instructions and his oath.” performance Witt, Instead, 412.) v. 469 U.S. it that the trial (Wainwright supra, appears juror juror’s court excluded the based on the simply opposition principle Illinois, v. to the death 391 U.S. penalty. Witherspoon supra, expressly held that or religious, opposition capital political, philosophical punish- Witt, juror. Wainwright ment is insufficient to While disqualify supra, U.S. repudiated rigid dictum test set out footnote it Witherspoon, expressly holding reaffirmed that the exclu- Witherspoon's juror generalized sion of on the bias of opposition capital punishment was unconstitutional. Illinois, 391 U.S. involved a statute
Witherspoon which that in cases “it shall be a cause for provided capital challenge any juror shall, examined, being who state that he has conscientious scruples against capital (P. he to the same.'' punishment, opposed statute, 779], L.Ed.2d at p. added.) Acting italics to that the trial pursuant court excused six jurors they who “said that did not ‘believe the death . . . any they without to determine whether could none- penalty’ attempt theless return a verdict of death.” L.Ed.2d at (P. 780-781].) pp. United States Court found the exclusion of Supreme jurors these from the unconstitutional, penalty declaring who the death opposes “[One] it, discretionary no less than one who favors can make the penalty, judg- *66 ment him by obey entrusted to the State and can thus the oath he takes as a .... juror jury from the all who swept expressed [W]hen [the State] conscientious or and all who religious scruples against capital punishment neutrality. it in State the line of In its opposed principle, quest the crossed jury for a the death the State capable imposing produced jury penalty, to a man die.” L.Ed.2d uncommonly willing condemn to 519-521 (Pp. [20 at hold that a sentence of death cannot be carried out pp. 783-784].) “[W]e
545
venire-
by excluding
it was chosen
recommended
that
or
imposed
if
to the death
objections
they
general
because
voiced
cause simply
men for
its infliction.
against
scruples
or religious
or
conscientious
expressed
penalty
of a tribunal
the hands
to death at
constitutionally be put
can
No defendant
omitted.)
fn.
784-785],
at pp.
L.Ed.2d
522-523
(Pp.
so selected.”
[20
the court
510),
391 U.S.
(supra,
Illinois
21 of Witherspoon
In footnote
“made
they
if
only
be excluded
test:
could
jurors
a specific
proposed
automatically
against
vote
they
. . .
unmistakably
that
would
clear
that
any
might
evidence
regard
without
to
imposition
punishment
capital
522, fn. 21
(P.
before them.”
the trial of
case
be
at
developed
[20
ap
test” as
language
“Witherspoon
at
This
became
p. 785].)
L.Ed.2d
v. Velasquez
(See, e.g., People
other states.
in the courts of this and
plied
306,
341].)
26 Cal.
425
3d
[162
412,
Witt,
rejected
the court
Wither-
Wainwright v.
469 U.S.
supra,
Texas,
in Adams v.
originally
supra,
of the one
set out
test
favor
spoon
It
how-
acknowledged,
at
The California cases 469 U.S. following juror illustrate circumstances under which a can excluded because 6Likewise, apparently agreed post-Witherspoon (Maxwell the court cases v. Bish two op (1970) U.S. L.Ed.2d S.Ct. and Boulden v. Holman [26 1578] 1138]), U.S. applied Witherspoon 89 S.Ct. formula in L.Ed.2d both which decided, correctly overturning distinguishes penalties, death decision them in were since its they part ground jurors merely on the that “both involved were excused because had who to, in,’ objections (Witt, supra, U.S. penalty.” ‘conscientious’ or did not ‘believe the death p. 850].) 4fn. L.Ed.2d at *67 546 57,
his views on capital
In
v.
punishment.
People Miranda
44 Cal.
(1987)
3d
594,
95
Cal.Rptr.
1127],
744 P.2d
the juror asserted that she would
[241
“
”
‘never vote for a verdict of death.’
In
v. Guzman
45
People
(1988) 467,
915
755
Cal.Rptr.
917],
P.2d
one juror said his mind
awas
[248
book,”
“closed
and that he was not sure he could conceive of a crime so
heinous that he would vote for death. (P. 955.)
further
Upon
he
questioning
affirmed that he would never vote for the death penalty.
Another
(Ibid.)
said,
juror
“I guess conscientiously I would
say
have to
that I would abso
lutely vote for the life without
Asked if she
parole.”
would ever so vote
“
”
“automatically”,
she replied, T
say
would have to
that I would.’
In
(P. 956.)
375,
v.
People
842,
Howard
(1988) Cal.3d
Cal.Rptr.
[243
279],
P.2d
each
juror
excluded
“unqualifiedly stated he or she would
not vote to
death.” In
impose
112,
v.
People
(1989)
Coleman
48 Cal.3d
813,
Cal.Rptr.
32],
juror,
asked if she would
[255
automatical
“
ly
murder,
against
vote
first degree
replied,
‘I’m afraid I would avoid the
death
I
penalty. would vote so that I wouldn’t have the death
my
penalty
”
mind.’
In
Walker
People
Cal.Rptr.
With these precedents in it is instructive to look again at the voir dire of asked, Juror He Giangregorio. was first you “How do feel about the death it, penalty?” and “I replied, am against your Honor.” This is the sort of generalized opposition to capital punishment clearly which is insufficient to disqualify juror under Witherspoon,supra, 391 U.S. Wainwright v. Witt, supra, 469 U.S. any California precedent. The then judge asked, “Are you against every it juror case.” The “Every in- replied, stance. I do not believe in it.” This second answer adds nothing, because a person is, who is against definition, the death penalty to it in opposed every instance. One who favors the death penalty some cases but not in others is considered a supporter of the death The court penalty. asked Giangregorio only whether he was “against” the death “in penalty every instance,” not whether he could if apply law he concluded that under the law the death penalty answer, “I appropriate. juror’s do not *68 belief, not it,” expression an just general a statement again
believe impaired. would be ability law apply whether however, expressed “Giangregorio’s asserts majority opinion, undoubtedly . . . would ‘every instance’ penalty to the death antipathy ” juror.’ (Maj. opn., his duties as ‘substantially impair performance ante, language squarely This assertion is inconsistent at p. 503.) with who death opposes declared that where court Witherspoon “[One] it, discretionary judg- can make no less than one who favors penalty, he takes as obey State can thus oath entrusted to him the ment Illinois, U.S. L.Ed.2d supra, juror.” (Witherspoon seen, was not overturned As we have 783].) portion Witherspoon Witt, controlling remains law. Wainwright v. 469 U.S. reasons, and remand this judgment For the I would reverse the foregoing for a trial. case new November 1990. rehearing denied
Appellant’s petition notes list, defendant, court, challenge assembly jury terms of trial of the master composition apparently challenge the motion to the understood basis of to be County jury Kern venires. trial, County jury compiled At the time of defendant’s master list in Kern through registration county’s Ques list the random selection of names from the voter alone. jurors. Although eligibility then tionnaires were sent to those chosen to determine serve as holding plans there to use licenses assemble the master were the names those driver’s future, yet plans implemented list in had time of defendant’s such not been trial. I, The Sixth Amendment to the United States Constitution and article criminal section of the California Constitution defendant guarantee right to a an trial drawn from a cross- impartial representative community. section of (Taylor v. Louisiana U.S. (1975)