People v. Silva

No. 22546. June [Crim. 1988.] PEOPLE,

THE Plаintiff Respondent, SILVA, BENJAMIN WAI Appellant. Defendant and Counsel Court, Allen, for Defendant Supreme J.

Emry appointment under and Appellant. White, General, Chief Assistant Steve Attorney K. Van de Kamp,

John Foster, Attorneys General, M. Deputy M. Bloom and Robert Attorney Jay General, and Respondent. for Plaintiff

Opinion

LUCAS, J.C.

I.

Introduction 29, 1981, in Lassen Coun- On June a first amended information filed defendant, Silva, ty Benjamin murdering Court with Superior charging Wai six Craig. alleged Kevin and Laura Both counts of information Thorpe Code, 190.2, for subd. (Pen. circumstances: murder financial special gain § (id. statutory all further references are to this murder (a)(1); code); multiple subd. (a)(3)); testimony (id. (a)(10)); subd. murder of a witness to prevent heinous, felony (rob- murder atrocious and cruel murder subd. (id. (a)(14)); and and torture murder bery robbery) (id. (a)(17)); subd. kidnapping was armed (id. subd. The information also that defendant (a)(18)). alleged with, used, in the subd. (§§ firearms commission of the murders 12022.5). (a), robbing charged kidnapping

The information also defendant with de- additionally alleged and Laura. Each of these four counts Kevin firearm, bodily injury used great fendant was armed with and inflicted defendant with The seventh count in the information (§ 12022.7). charged count eighth of a and the possession gun (§ 12220), unlawful machine (§ 12520). him a silencer firearm possession with unlawful for a charged Three additional counts were severed to trial and therefore prior are not before us. 29, on June

Also a filed motion for of venue which change was granted; the case County. was transferred to San Bernardino 5, 1981, August

On defendant’s motion to dismiss under section 995 was in granted part. court Specifically, the struck witness-murder special Laura, circumstance with respect to both Kevin and the torture-murder Kevin, special circumstance with to respect felony-murder (rob- and bery) special circumstance with to The respect felony- both murder charges. murder for (kidnapping The robbery) special circumstance was left intact. court also struck the allegаtion that defendant used a in gun machine counts 5 and 6 (robbery of Kevin Laura), and but left intact the that he used charge a handgun. 11, 1982, January

On a second amended information filed in San was Bernardino County, order reflecting an permitting attorney district to counts, reinstate the witness-murder as special circumstance to both murder and to allege with respect robbery charges to in 5 and counts with, used, defendant was armed and a a personally and machine shotgun gun, as well as a handgun.

A jury found defendant of first guilty murder of and found degree Kevin each of the special circumstances for the (except allega- multiple-murder and tion) enhancements in 1 to count be true. Defendant found not of the guilty murder of Laura. The jury as charged found defendant guilty with respect every to in other all count information and found of the true, enhancements therein charged bodily injury en- except great hancements charged counts 4 and 6 (the robbery kidnapping Laura). Defendant subsequently sentenced death. This appeal (§ automatic. subd. (b).)

As will appear, reject we claims of defendant’s error and prejudicial affirm the judgment entirety. its

II.

Facts 11, 1981, On January Kevin girlfriend left Thorpe Craig Laura California, for Ridgecrest, They where attended were Oregon college. Elite, Kevin’s driving utility white four-door Ford a which was pulling trailer containing They Highway their on belongings. driving were north Madeline, California, a flat tire. suffered their trailer when through repairing Kevin to work into set They a station town pulled gas hours. Around tire, several complications—required that—due project Laura a place Kevin and of the station offered operator gas p.m., declined, Oregon to reach their desire stay night; they for the expressing their resumed couple The fixed and the eventually tire was night. journey. defendant, Thomas also Norm same Joe Shelton and evening,

Thаt which lived on property, three men Shelton’s planned trip Oregon. talking had been They miles west of Madeline. was located about seven Thomas the others he knew evening about women that and when told They them. left they up in to drive and see Oregon, some women decided the stopped around 8 and Shelton’s in defendant’s truck property p.m., in fill tank. gas station Madeline to the up saw flat tire when he working pulled

Defendant Kevin on the trailer’s into the station. He also saw and told and Shelton that gas Laura Thomas station, driving away he desired her. While from the defendant ex- gas to Shelton and Thomas for The men plained couple: his plan kidnapping by would wait for the car to drive then a red stop by signaling and it with Shelton, Defendant and armed with then light. guns, approach would follow, drive vehicle and it back to cabin. Thomas would driving Shelton’s objected defendant’s truck. Shelton to the he was well known plan because town. the small It was therefore decided that Thomas would accompany in place defendant of Shelton. road adjoining

Defendant the truck and backed it into a side stopped places 395. Thomas and Shelton exited the car and traded so Highway Shelton was now in the of the front seat. The three waited sitting middle by. an hour before approximately Kevin’s car drove In accordance his After a short plan, with defendant followed. distance window, he took a covered with a and held it out the spotlight red lens it at pointing pulled up Kevin’s car. Kevin over and defendant pulled truck, him. As spotlight behind he exited the defendant handed by. him if another came Defend- Shelton and instructed to turn it off vehicle the passenger. ant then walked to the driver while Thomas approached and move Defendant at Kevin’s face commanded him to pointed shotgun Thomas, over; with defendant sat behind the wheel аnd armed a pistol, back on the and shotgun entered the seat. Defendant floorboard placed chin, a .44 it at Kevin’s pulled out He cocked the magnum. weapon, pointed him a hair try trigger. warned not to because the had anything gun and Defendant drove the vehicle to Shelton’s cabin Shelton then and followed the truck. cabin,

After arriving shotgun at the his and ordered picked up Kevin and out of the car. He told to drive their vehicle Laura Thomas further road and it there. left up complied. to leave Thomas Before he vehicle, however, he killed a back seat dog shot and of Kevin’s car. and Laura’s

Thomas about half an later. He Kevin returned the cabin hour found and Laura on the couch. left Thomas Defendant Shelton with They couple shortly exited cabin. returned with numerous items which had stolen from car trailer. couple’s Shelton began discussing Defendant and then what should be done with Kevin. They decided chain him for the Chains were up night. placed locks, body, by around Kevin’s secured and Kevin taken outside where neck; he to a was chained tree Thomas was in the cabin left to watch returned, Laura. When defendant and Shelton defendant told Thomas that $200 they had taken Kevin’s wallet and the gave Thomas as his share of loot. He recruited then Thomas to him Kevin’s car. Follow- help dispose of instructions, 10 ing defendant’s to an Thomas drove the Ford area about Adin, miles from California. Defendant drove Thomas in his track. behind car, When Thomas the stopped defendant his for the vehicle. changed plans instead, He had told the originally Thomas that the car up; would be blown car, flattened, battery removed from the its rear was and right tire They defendant and Thomas car wiped the down to remove fingerprints. did to early not return Shelton’s until following morning. cabin the

They returned; Shelton found Laura when Shelton stat- aslеep they with he ed had had intercourse with several she was her times while at the cabin. awoke, When he Shelton Thomas had inter- and defendant left the cabin. Thereafter, they course with Laura while gone. were Thomas left the cabin and They found defendant and barrel. standing Shelton around a bum were car, items burning several which had taken from and the includ- Kevin buckle, car, ing keys, Kevin’s belt car from the and papers were taken the trailer’s license which had been hinder identification. plate cut to up him the Defendant told Thomas to and he the side of up follow led Thomas hill body where Thomas found lying ground Kevin’s on the with carpet thrown it. There was everywhere. over blood Defendant told Thomas that body he had some trash he to cut Kevin’s bags and that wanted Thomas and, enough into small to fit inside those Thomas took an axe pieces bags. into body he would be killed if he Kevin’s fearing failed comply, chopped at least 10 as looked on. pieces

617 body chop up and hours between two three Thomas took sick times several Thomas defendant’s directions. accordance with whether and inquired process Defendant watched the entire the task. during because the He the idea rejected a souvenir. should Kevin’s skull as keep he bullet holes. skull would contain him to body, defendant told cutting up

When Thomas was finished axe, clothes, the items. Kevin’s any bloody the area and to bum clean men were While the three thrown into the bum barrel. some brush were fire, following facts to Thomas Shelton recounted standing around chain linked Shelton unlocked the surrounding the murder: Defendant and locked to tree; end of the chain was still Kevin’s from the the other neck led, crying, up Kevin’s neck. Kevin was terrified the chains around a trailer on Shelton to watch him and went to side of a hill. Defendant left Thomas but belonged trailer weaрon. (The Shelton’s to obtain property posses- from and it contained defendant’s defendant had been it him renting sions.) Ingram fully returned an M-ll .38-caliber automatic

Defendant with is a gun: magazine which had a silencer on it. The M-ll machine pistol holds 32 in 1.6 seconds. discharge rounds and the can all rounds clip gun only up It is to fire one shot at a time. Defendant walked impossible gun Kevin and shot his close Kevin fell. body range. behind him down up rest of Defendant then to Shelton who gave weapon emptied were body. clips into Kevin’s It is unclear whether magazine clip But times). Kevin was shot 32 times or it discharged (i.e., whether face, all everywhere—“he clear Kevin was shot had holes [and] and legs.” arms up did not comment while Shelton described interrupt

Defendant murder; he Thomas at Shelton and smiled. Defendant and simply looked body; buried drove to Lake and of Kevin’s subsequently pieces Spooner in its bag grave. each trash own shallow placed burial, day The after the Shelton directed Thomas to cover Kevin’s and days at the cabin for several until kept Laura’s trailer with brush. Laura was abduction, and January 16. Prior to Thomas had heard defendant Laura’s to a woman and her have kidnapping forcing discuss plans Shelton occasion, add such Thomas heard them intercourse with them. On one While and Thomas to kill the victim afterwards. Shelton they would have Laura, defendant committed such intercourse with it is unclear whether had did, however, oral hold- perform force Laura to copulation, acts. Defendant if blow head oif she at Laura’s head to her threatening a cocked and ing gun did not comply.

On January with Thomas saw defendant and Shelton drive off Laura between them. Shelton later told Thomas that somewhere near Mount Shasta defendant the truck. stopped Shelton assumed defendant wished to drivers so change he exited and walked thе rear the truck. As he over, reached the tailgate he heard a gunshot and saw Laura hold- leaning Shelton, onto ing her side. According out of the Laura pulled car her hair and shot her the head. The a gun was thrown into river and body Laura’s was kicked down the hillside.

Defendant and Shelton January returned to the cabin on 20. Shelton murder, defendant, related to Thomas the facts Laura’s and who again had been listening, merely smiled. next day, defendant and Shelton cabin, left again telling Thomas to hide all of the in case the weapons left, came police around. An hour or County two after Lassen Deputy Sheriff Bruce Steltzer arrived at the cabin for Shelton. As he drove looking up, Steltzer saw Thomas working on a truck him pickup place and observed in the something truck. Steltzer him spoke with for awhile and then asked if could he search the truck. Thomas if warrant; asked Steltzer had a search Steltzer admitted he did not if and asked he should leave. Thomas said “yes,” and Steltzer began walking back his car. car,

Before he reached his Thomas and him that he stopped Steltzer told had a put gun the truck. Steltzer returned and why asked Thomas had not simply admitted that earlier. Thomas said that he on probation that he was permitted to possess gun. bullets Steltzer removed the from weapon, returned it to Thomas left. then ran check Steltzer and, on Thomas upon confirmation receiving that Thomas had violated the terms of his probation, returned to Shelton’s with about other property officers and arrested Thomas.

Once in custody, Thomas told the that he had been involved in police some terrible crimes and he inquired whether he pro- would receive police tection if he talked. Thomas was promised attor- protection and the district ney was called in him. speak with Thomas the fate Kevin detailed Laura, including his own participation in mutilation and burial Kev- body. in’s

An intensive search followed with Thomas’s active The participation. white Ford was found it body where had been left. Most of Kevin’s was found, found. The red lens that had been used to Kevin’s car was as stop were several of the items stolen from Kevin and the vehicle. Kevin’s trailer found, brush, still was covered with and the bum barrel also contained evidence, incriminating including Kevin’s car keys, post and house his office key, box and his States Navy United belt buckle.

619 in the murders—the one of the used up weapons The also turned search on the found Among weapons machine gun. M-ll .38-caliber Ingram were: an rather than Shelton linked to defendant which were property with M-ll Ingram automatic fully pistol; M-10 9-millimeter Ingram so that the shot (which hides the muzzle blast flash suppresser silencer and rifle; AR-15 a Colt bolt action dark); be when it is a .22-caliber cannot seen fully and an AK-47 with fully tripod scope; .223-caliber automatic rifle M- of an rifle; assembly the barrel rifle; fully an M-14 automatic automatic sawed- a rifle; Remington a and Browning shotgun; 16 automatic 20-gauge thus, five firearm; fully is a automatic shotgun. gun A machine simply off on the guns premises. machine were found 30. had January wearing The boots Kevin been

Shelton was arrested on day, in The next he were found Shelton’s Ridgecrest possession. when left body. arrested Shelton officers the location of Laura’s Defendant was led them, He his but January in Fresno 23. informed of waived rights on was be the thought When asked what he choosing to with would speak police. trial, jail long he either sent to for outcome of his defendant said would be He that “Joe time or be to death. also wrote on the walls of cell put rat. is a Shelton Norman Thomas rat.” accessory guilty

Thomas in the pleaded “[participation kidnapping, murder, ultimately He burglary, after fact to and use of a firearm.” was years 4 not sentenced prison, sentenced to and months but had been if he charges to defendant’s ‍‌‌‌‌‌‌‌​​​‌​‌​‌​​​‌​‌‌‌​​​​‌‌‌​‌‌​​‌​​‌‌‌‌​​​‌​​‍Thomas also faced murder prior possible trial. district attorney’s placed failed with the office. Defense counsel cooperate these facts in evidence. are not what of (We disposition informed case.) Shelton’s jury days

The for two of first finding guilty deliberated before murder of and true the cir- degree Thorpe, finding special Kevin also five found the allegations jury cumstance relevant to murder. The also true, of for arming allegations kidnapping and use and convicted defendant Laura, Laura, of a robbery robbery of Kevin and possession and Kevin gun, jury firearm. The additional- possession machine and a silencer for a 6 to be ly arming allegations through found each and use counts true, great injury and the infliction of bodily allegations intentional robbery to be true. robbery Kevin) counts (kidnapping Laura, The and found he jury acquitted defendant of murder of bodily reject- her. likewise injury upon Accordingly, jury did inflict allegation. ed the multiple-murder special-circumstance February of defendant’s trial held penalty phase its motion for day. returned verdict death same Defendant’s 620

a trial or new modification of sentence was heard and denied March 1982, and the court sentenced to death the same day. defendant

III. Guilt Phase Contentions A. The Faretta Motion

The record includes an concerning a “settled statement” unreported meeting camera between defendant and the who magistrate preside was to over examination; defendant’s took to preliminary meeting place prior statement, hearing. According to settled defendant told the magis- marry trate that he wished to and be inquired might how this done. The magistrate responded that he did inmate ceremonies but perform opined that another be do judge might willing to so. Defendant then indicated him, with respect the charges against filed he wished to it over with “get guilty.” and The plead magistrate told defendant that he defendant believed “may have some legal meritorious or issues should points and go [he] attorney.” ahead and talk to his Defendant said he did not wish be by an represented attorney, and the that he unsure magistrate confessed a whether defendant in capital a case could The proceed persona. propria magistrate also attorney. observed that counsel appointed good was a meeting then concluded.

Defendant now claims that his desire not be represented counsel a timely constituted request to Defend proceed propria persona. ant asserts he was then entitled to a determination as to he was whether voluntarily and intelligently waiving to counsel. Because the court right counsel, failed to into his inquire competency to waive asserts the court committed reversible error. In Faretta v. U.S. 806 S.Ct. L.Ed.2d [45 California

2525], the United States Supreme Court held that “a State consti may [not] tutionally hale a into person its criminal and force lawyer courts there (id. him” upon at at p. L.Ed.2d because the Sixth Amend p. 566]) [45 ment “implies right (id. at self-representation” p. L.Ed.2d p. However, 574]). absolutely a defendant is not to represent entitled himself, himself. order to represent ‘knowingly must accused “[I]n intelligently’ forego benefits associated with the right [the [Cita counsel]. Although a defendant need not himself have the skill and experience tions.] lawyer of a in order to choose competently intelligently self-representa tion, dangers disadvantages he should be made aware of self- representation, so that the record will knows what he is establish ‘he ’ (Id. at p. eyes open. [45 with and his choice is made doing [Citation.]” added.) italics 581-582], at pp. L.Ed.2d he barrеd that defendant

Here, not advise did magistrate was that of the discussion The essence persona. from proceeding propria case the defense attorney his about with speak defendant should first at before counsel of his legal competence and should also consider the sum, simply magistrate find the In we himself. to tempting represent disadvantages “the dangers further explore defendant to advising eyes choice “with his ultimate make might so that he self-representation” desire to plead with his free to proceed at all times open.” Defendant was consent, 1018), or see attorney’s he his guilty (assuming could obtain § magistrate’s in the We find no error himself. request represent permission actions.

B. Hearing The Marsden on 5, 1981, Court County Superior

At the in the Lassen August hearing evidence to suppress the information and defendant’s motions to dismiss 1538.5, defendant between under sections 995 and a discussion took place “I attorney because his and the court wherein defendant moved to dismiss . . . , at heart. feel interest my he is not . . doesn’t have best competent. case is a death and this just ability, his to the best of his doing job [H]e’s lawyer I a competent sentence case and I feel that it’s have important than showing “I’m to need more handle it.” The court responded going on that,” job “bang-up a doing and observed that defendant’s counsel was you even when your interest your behalf. ... He to look out for wants . . be denied.” don’t want to do . The motion will something.

Defendant, elaborate, “I wanted after indicated being permitted Thomas, the com- him against to make a Norman against motion [counsel] witness, court know, witness.” petency you of him being, competent by the be decided a matter to explained that the of witnesses is competency denying trial judge once trial commences. The court concluded County San Bernardino motion “without to renewal before the prejudice” Court, Evidently, defendant Superior where the case was to be transferred. time. declined to renew his motion at that of People the mandate

Defendant the court violated claims that 465 P.2d Marsden 123-124 44] Cal.3d why he as to any appellant because of “the absence of complete inquiry Marsden upon reliance lawyer.” wished to Defendant’s discharge There, to present refused to allow the misplaced. the trial court error, but We found evidence of counsel’s inadequacy incompetency. noted a to of new that defendant does not have the the right appointment counsel absent a of representation. clear showing inadequate “ Marsden,

As we stated ‘A a right in defendant’s to court-appointed counsel does not the to than include the court to more right require appoint counsel, one clearly in a where the except situation the record shows that first . . . appointed counsel is not the accused. adequately representing “The of a right defendant in a criminal case to have the assistance counsel . . . for his counsel may right defense include the to have appointed by substituted, the . . . . court. or if it is . discharged other counsel shown , to . substantially failure do so would . but deny right. the impair absolute, the to such in right discharge or substitution is not the sense that the court is bound accede its showing to to assertion without a sufficient . . . that substantially to the assistance of im right counsel would be paired ... in case and these there request granted, within limits ’ is a field of 123.) discretion for the court.” In (2 p. Cal.3d [Citations.]” Marsden, we also found it court its a to exercise impossible properly discretion without to change first reasons for “listening requesting [the] attorneys.” (Ibid.) case,

In defendant’s the court did that. informed the just Defеndant court he why wished substitute each responded counsel and court to reason. Defendant’s first was his his point attorney incompe belief that tent and did not his have best interests at responded heart. court it, based on the record before counsel was in defend competent acting ant’s best interests. Defendant’s failed attorney second reason was that his to make certain motions he wished The court that the explained made. motions defendant had mind either were not or were legally cognizable not properly County before the Lassen venue light Court in Superior San change County. to Bernardino was that he Defendant’s third reason simply did not relate attorney, well to his had him once. But only who seen number times one sees his which one relates attorney, way with his attorney, does not sufficiently establish Defendant incompetence. required show more.

As Marsden “the recognized, decision whether to permit discharge appointed attorney during counsel and another substitute court, trial is within the discretion of the trial and a defendant has no absolute to more than right appointed attorney.” 123.) one Cal.3d at (2 p. Here, the court listened to defendant’s reasons for substitute requesting counsel—unlike the court made Marsden—and found that defendant had an insufficient concluding We find no basis in showing. this record for the court abused its discretion in defendant’s motion. denying Exception Admission” Constitutionality “Adoptive C. The Hearsay Rule and refused trial, privilege invoked his self-incrimination At Shelton Shelton him Nonetheless, made to to statements Thomas testified testify. said testified as follows: [he murder. Thomas Kevin’s concerning “[Shelton] and walked the tree from guy unchained out and went defendant] while the guy and watch had to sit him of the hill and side up [Shelton] to this time woods at back in the that he had my went to trailer [defendant] know, you crying, man was said the the machine and get gun [Shelton] and crying man was said the gone. [Shel- while was [Shelton] [defendant] see. he’d thing be the last it would told him look because around] ton] He was afraid that [to my back way from where to shoot going was [defendant] far he sit pretty machine so gun to get trailer was where he went [s/c] know, rock, and he said you man on a behind the he had the guy when there, behind right that he walked didn’t shoot from back [defendant] also testified back.” Thomas and shot him and down the guy up fell, from Shelton, gun machine Shelton took the once Kevin according defendant testified he knew defendant and shot Kevin as well. Thomas and “he looked over could hear Shelton’s because explanation [Shelton] smiled” while Shelton was speaking. testimony, this suppress

Defendant had made a motion pretrial to the exception that it not fall within the admission asserting adoptive did setting in a wherein hearsay rule because Shelton’s statements “were made that “I cannot ruling there disagreed, was no called for.” The court reply to respond find as a matter . . not called upon of law that. [defendant] be, if society may you to the I your accusation. think that whatever status you are are crime of which somebody you when accuses of a present capital elicited, circumstances are. innocent some would be whatever response Therefore, these two statements I think it is to conclude that illogical [U] admissions.” adoptive failure to constitute respond [defendant’s] court denied the motion. of a statement offered

Evidence Code “Evidence section provides, rule if the statement by hearsay against a is not made inadmissible party thereof, by has is one which of the content knowledge of with party, in its truth.” or his belief or other manifested his adoption words conduct admis only adoptive There arе for the introduction requirements two of another’s the content “(1) knowledge sions: must have party statement, have must knowledge, party such hearsay (2) having in, of, the truth or his used or his indicating adoption words conduct belief Jefferson, ed. (2d Benchbook hearsay Cal. Evidence (1 such statement.” 3.3, cited, example original.) typical italics in 1982) p. and cases “[A] § accusatory an is the criminal defend adoptive admission statement to a officer,

ant conduct made other than a and defendant’s person police silence, With or his words evasive equivocal replies response. or accusation, of the of silence or knowledge defendant’s conduct reasonably words in the nature to the of evasive or lead equivocal replies Here, inference that he the accusatory (Ibid.) believes statement to be true.” heard Kevin’s surrounding Shelton describe the circumstances protesting murder the first and smiled without (satisfying requirement), Shelton’s This evi denying the second description (satisfying requirement). dence sufficiently to the under appropriate relevant be submitted instructions. contends, however, hearsay

Defendant that this exception Const., rule (U.S. Amend.) violates his De right of confrontation. Sixth unanimously fendant we acknowledges rejected a similar constitutional challenge People Preston 9 Cal.3d 315-316 [107 300, 508 P.2d in 300], and find no to that we reason reexamine our holding Preston, case. In we “We that stated: find no merit the contention the admission of by this the evidence impliedly adopted [statements defendant] confrontation, impaired defendant’s Sixth and to right Amendment to cross-examination of admitted his accuser. The not to prove evidence the truth of the statements but to defendant’s them. response show of the Credibility they witnesses who testified that these accusations heard and observed given defendant’s the to be to their response, weight and testimony were in issue, and on voir dire and were cross-examined jury.” before the (Preston, supra, Accordingly, 9 at the pp. 315-316.) Cal.3d inability to the actually cross-examine made the statements was person who deemed immaterial. at (Id. 316.) p.

Defendant takes extrajudi issue with Preston’s that pronouncement cial statements the truth prove admitted that case “admitted not to were of the statements . . . (Id. .” He insists these statements p. 316.) (like Shelton’s as statements were used substan present case) indeed tive of evidence confronta defendant’s the federal guilt, accordingly and tion clause guaranteed him the the declarant. right to cross-examine however, rule, point, is that reason of once the adoptive admissions another, has of expressly or the statements impliedly adopted admissions, oyvn statements become his on that basis as are admissible v. well-recognized (See (1980) to the rule. Ohio Roberts exception hearsay 56, 607-608, 597, Being U.S. 2531].) 65-66 L.Ed.2d 100 S.Ct. [65 admissions, deemed the concerned with defendant’s own we are no longer veracity Accordingly, of the declarant. no con credibility original frontation is as right when those are admitted impinged adoptive statements admissions without for of declarant. providing cross-examination language jury in the instructed the The court in the case present that there 2.71.5, the evidence should find from you “If CALJIC No. defendant, reasonably which under conditions an when the occasion false, made denial or to make failed reply, afforded him an opportunity accusation, statements, expressed of an in the face contradictory evasive or he for which the crime him with directly charging to him or in his presence, commission, if you its him with tending now is on trial or to connect nature, its accusation and understood should find that he heard the may be consid- occasion conduct on that circumstances of silence and thus made the accusation against ered him as an admission that indicating for the is received accusatory was true. Evidence of such an statement the silence truth, only meaning its as it supplies but purpose proving find you it; face of unless should and conduct of the accused in the accusatory admission state- an that the his conduct at the time indicated true, instruc- This entirely ment was the statement.” you disregard should (1987) v. States tion was also United (See Bourjaily under Preston. proper reliability 483 U.S. S.Ct. showing L.Ed.2d [97 2775] [no on ex- admissibility well-recognized the statement is based required where rule, United States ception hearsay coconspirator exception]; such as Inadi 475 U.S. 387 L.Ed.2d 106 S.Ct. showing [no 1121] as unavailability of the such cocon- required exception, declarant is where spirator exception, applicable].) additionally

Defendant of the trial court to instruct challenges failure sponte sua that Shelton’s formed the adop statement—which basis concedes, tive admission—must be with distrust. Defendant how viewed ever, that 3d at p. 320), we an in Preston Cal. rejected argument (9 identical and we follow that here. holding

D. Sufficiency the Evidence of faces a chal

“[Wjhenever evidentiary for a conviction support on most lenge light must review in the appeal, court the whole record favorable substan judgment to the below to determine whether it discloses tial could find the defendant evidence such that a reasonable trier of fact 557, beyond 26 Cal.3d guilty (1980) v. Johnson (People reasonable doubt.” 431, 738, A.L.R.4th Defend 1255].) 606 P.2d Cal.Rptr. [162 ant asserts that there was that defendant personally no substantial evidence infer from shot Kevin. We We that the could disagree. jury properly believe statement, it, Shelton’s with all the and defendant’s of adoption coupled his other domi (including circumstantial evidence defendant implicating his in menacing nant role in and actions planning directing kidnapping, his directions for Kevin with a and other and callous shotgun weapons, in Kevin’s actively disposing participated of Kevin’s that defendant body) by murder him to shooting death. personally

E. Assertion Error The Beeman that, evidence to

Defendant next contends even sufficient assuming conviction, jury theory sustain on a erroneously his the court instructed 547, v. 35 Cal.3d aiding abetting. (See (1984) and Beeman People 60, defendant, jury 674 P.2d Cal.Rptr. 1318].) According might [199 Kevin, have Shel merely found Shelton killed and that knew of defendant ton’s Shel unlawful without himself an intent to achieve purpose harboring ton’s We claim find this meritless. The found that purpose. jury expressly great used a machine inflicted personally gun personally bodily Kevin; on injury it is that the could have also jury inconceivable found that to kill he shot him with a defendant did not intend Kevin when 92, machine 104-106 gun. (See v. Leach 41 Cal.3d People [221 710 P.2d Cal. 3d 13-14 Cal.Rptr. 893]; Croy (1985) 41 People 592, 710 P.2d 392].) F. The Credibility Norm Thomas case,

Defendant that “under the of this argues circumstances Thomas’ testimony inherently was so unreliable of convic judgment that a tion granted upon testimony cannot be stand.” Defendant allowed to reasons that Thomas’s initial personal participation kidnapping epi sode and in the chopping body strongly of Kevin’s indicate up burying defendant, Further, Thomas committing according pequry. “deal” Thomas struck assertedly with enforcement was also law officials perjury. conducive to

The solely facts defendant cites to the be accorded Tho- weight relate fact, testimony mas’s by the trier as a witness. not to his competency crimes, jury The was well aware that directly Thomas was involved but this fact itself is from not sufficient witness ground preclude law, The testifying. also instructed as a Thomas was matter an whose accomplice testimony jury, should be viewed distrust. with despite involvement, Thomas’s evidently obvious beliеved his interest version of the events. We see no reasonable basis that deter- challenging for mination appeal. on

G. Instruction on Accomplices Other

One of the 2.11.5) court’s instructions (CALJIC provided: No. “There has been evidence in case a person this other than indicating defendant or may was have been involved in the for which defendant crime is on trial. You or why must not as to give any discuss consideration other is not person being this he has or will be prosecuted trial or whether prosecuted.” Defendant claims this instruction was error be- prejudicial

627 the reasons for consider not to jury permitted if the was “[o]bviously, cause trial, certainly permitted it was any purpose, Thomas not on being credibility.” Thomas’ of determining for purposes to consider them to- directed obviously was fall. The instruction Defendant’s claim must Shelton, his Fifth only to invoke took the stand ward who Amendment Moreover, obvious to the it was self-incrimination. privilege against as defendant in the same being proceeding that Thomas was not prosecuted clear, wit- because, chief Thomas was the state’s as defense counsel made court, therefore, err in did not already guilty. ness and had pleaded assuming arguendo 2.11.5. of CALJIC No. Even instructing language occurred, in- the related clearly given was harmless that error such error testimony. Thomas’s for distrust of calling accomplice structions Kevin’s Trailer H. The Search and Seizure of to Kev evidence pretrial suppress pertaining Defendant moved The basis for (various Kevin). in’s trailer and its contents items belonging to a search warrant motion was that the trailer was seized pursuant the trailer only which authorized a search of Shelton’s whereas property, 8 was fact located on Were this neighboring property. post-Proposition case, object. (Cal. claim standing defendant’s would fall for lack of 128, ‍‌‌‌‌‌‌‌​​​‌​‌​‌​​​‌​‌‌‌​​​​‌‌‌​‌‌​​‌​​‌‌‌‌​​​‌​​‍Const., I, 28, 133- art. v. Illinois 439 U.S. (d); (1978) subd. see Rakas § 387, 394-395, 134 In re Lance W. 37 421]; (1985) L.Ed.2d 99 S.Ct. [58 873, 631, is a 744].) pre Cal.3d 896 694 P.2d Because this Cal.Rptr. [210 whether, case, however, 8 the vicari we must determine under Proposition rule, entry onto exclusionary ous were violated neighbor’s rights (See v. incident to the of Kevin’s trailer. property Kaplan Superi seizure 649, 150, or v. (1971) 1]; Court 6 Cal.3d 491 P.2d Cal.Rptr. People [98 Martin We conclude no such viola 855].) Cal.2d 755 P.2d [290 and, therefore, tion occurred evidence suppress per defendant’s motion to the or its contents was denied. taining properly seizure the trailer When Thomas the search warrant where executing showed officers hidden, they trailer was not realize had crossed Shelton’s did line; in Lassen wilderness property neighboring property open indicates the area County without The record fencing posted signs. such, As the search and where the trailer was found isolated and rural. involved a mere technical seizure which occurred Shelton’s trailer within exhibited no realty; neighbor legitimate onto the had trespass neighbor’s vicariously (SeePeople assert. expectation might which privacy At 129].) 84-85 P.2d Bradley (1969) Cal.3d best, have long of a but we neighbor might trespass, have complained searches Amendment unreasonable prohibits that “the Fourth recognized seizures, entry even if the officers’ not trespasses, [onto was a technical there no trespass, violation of the Fourth Amend- land] 1096, 633, ment.” v. (People Edwards (1969) Cal.2d [80 458 P.2d 713].) Accordingly, we in denying conclude the court did not err defendant’s suppression motion.

I. The Instruction on Flight 2.52,

The court read to the jury CALJIC No. provides which “The flight of a person immediately after commission of a crime or after he is accused of a crime is not sufficient in itself but is a to establish his guilt which, fact if proved, may be by you considered in of all other light proved facts deciding the question or innocence. which guilt weight such circumstance is entitled is a matter fоr the Defend jury to determine.” ant instruction, claims the court erred giving there was no contending evidence of We find flight. defendant’s contention meritless.

We note that the evidence was justify sufficient to an inference of flight: Defendant and Shelton left County Lassen shortly after discarded body; Laura’s they instructed Thomas to hide all in the event the weapons came police around. Defendant was later away arrested hundreds of miles in Fresno. We find these circumstances sufficient to to the justify leaving jury the question whether defendant’s conduct constituted within the flight meaning Moreover, CALJIC No. 2.52. we believe that under the evi- dence, any error in on instructing flight harmless; facts it is not on these reasonably probable a result more favorable to defendant have been would reached absent such an error. (People Watson 46 Cal.2d P.2d 243].)

J. The Instruction on General Intent

The court 3.30, read to jury CALJIC No. “In which provides crimes charged Counts 7 and 8 and the lesser included offenses of Kid- napping and False Imprisonment within the offense as al- of Kidnapping leged in Counts 3 and there must exist a union or of act or joint operation conduct and general criminal intent. To constitute criminal intent it general is not necessary that there should exist an intent When a to violate the law. person intentionally crime, does that which the law declares to be a he is acting intent, with general criminal even may he that his though know act or conduct is unlawful.” Defendant contends that this re- instruction quired “draw conclusive of intent based presumption upon doing of a particular act” and that this error mandates reversal of his conviction possession of a silencer for a (count 8). firearm

Defendant argues the jury should have been “to the infer- reject allowed ence of ‘general criminal intent’ even if it found intentionally that defendant

629 fails to (He a to be crime.” declares а act the law particular did which kidnap- for convictions also infect his the instruction did not why explain essence, defendant In machine gun.) of a possession and unlawful ping challenge; reject We intent crimes. challenges general concept intent. on general No. 3.30 instructs properly CALJIC K. The Miranda Claim arrest, Calle- Lino County Undersheriff

Shortly after defendant’s Lassen Initially, Callegari recorded. gari him. The interview was tape interviewed 384 (1966) v. Arizona rights (Miranda informed defendant of his Miranda 694, 1602, and obtained 974]) 10 A.L.R.3d U.S. 436 L.Ed.2d 86 S.Ct. [16 several answered The and defendant waiver of them. interview proceeded that he had Shelton and In he he knew admitted that questions. particular, relevant time during Madeline been with Shelton in the town of staying on his trailer and the tire period. changing He also admitted Kevin seeing his truck with filling Laura He seeing with him the cafe. remembered left the He that the truck gasoline and Shelton for it. also recalled paying vehicle). for Kevin’s gas (waiting station and off side the road pulled driving When if he or if defendant was asked saw Kevin’s vehicle later truck, asked defend- Callegari again defendant “I don’t know.” responded, said, really if “I know. I ant don’t driving he the truck and defendant don’t to talk want about that.” continued, areas involving Callegari questions interview asked than the noted identity Callegari

other of the the truck. person driving to discuss. there were other areas which he did not wish defendant indicated into I an where I’m According Callegari, “any getting time hit on area the, the, homicide, evasive to a gets point: concentrating [on] [defendant] continued, admit, how- deny, doesn’t does stays in limbo.” Defendant ever, to answer other questions. statement, really

Defendant now “I don’t want claims that that” to remain silent rights talk about an invocation of his represented rights. Miranda any further occurred in violation of his questioning The trial court this rejected argumеnt. properly Callegari was obtained

Having questioning, defendant’s consent to self-in against free to interview he exercised his privilege defendant until 658, 948, v. (1970) Cal.Rptr. crimination. Randall Cal.3d (People [83 waiver 114].) may “refusing] sign 464 P.2d A do so suspect interrogation . an of his . . to continue rights[,] refusing] constitutional already attorney.” (People . . . an progress[,] [by] ask[ing] 580, 450 P.2d Ireland 70 Cal.2d to discuss may unwillingness A.L.R.3d A an 1323].) indicate 630

certain subjects manifesting interrogation without a desire to terminate “an 119, already in progress.” (See, e.g., v. Watkins 6 People (1970) Cal.App.3d 124 621].) Cal.Rptr. [85

Here, the trial court listened to the and found that tape recording this . . . his case does not claim that he had invoked “[I]n [defendant] rights directly, indirectly. constitutional but And listen to the you portion if listened, the tape I it which is clear that was not he from inflection said, even intimating that he T interrogation wished to terminate when he ” know, don’t I really don’t want to talk In about that.’ of the court’s light finding independent our review of the we find these tape recording, statements were admissible and in of Miran were not obtained violation 157, 218, (See da v. rights. Duren People (1973) Cal.Rptr. 9 Cal.3d [107 507 P.2d 1365].)

L. Evidence Consciousness Guilt of Defendant’s Fresno, After in defendant’s arrest drove him to Callegari Sacramento. As a San approached Bay freeway Francisco Area offramp, volunteered, you “Why don’t just gas take me chamber at San Quentin. here, Turn take me over Quentin.” to the chamber at San gas objected Defendant had to admission of statement on relevance motion, grounds, but the court denied the the statement finding probative evidence of consciousness guilt. Defendant now contends that the state- was, effect, ment in an offer plead guilty, and therefore inadmissible under Evidence Code section Defendant cannot challenge 1153. admission of the ground statement on a if not advanced at trial. But even we were claim, reach the merits of defendant’s clearly defendant’s statement was not an offer to plead guilty.

IV. Special Circumstances Contentions A. Murder Financial Gain

In light Bigelow our in v. opinion (1984) 37 Cal.3d People 328, 691 Cal.Rptr. 994], P.2d we must set aside the financial-gain [209 special-circumstance finding. Bigelow, finding Under such a is improper where the murder is not “an essential to the financial prerequisite gain sought by concedes, As Attorney defendant.” General now (Ibid.) under the evidence and instructions this case the could have found the financial-gain special circumstance true the determina making without tion required Bigelow. Attorney urges General us to reconsider Bigelow, but we see no reason to do this case. so Heinous, and Cruel Atrocious B. Murder (Engert) Court light People Superior

In opinion our aside must also set 76], we 647 P.2d Cal.3d 797 “heinous, and cruel” atrocious that the murder of Kevin was jury’s finding En to reconsider 190.2, us Attorney urges General (a)(14)). subd. The (§ case. do so this gert, no again but we see reason C. Witness-murder the support evidence to is insufficient

Defendant asserts that there testifying against from him prevent that Kevin was murdered to finding is any purely such conclusion at future He insists that defendant some date. 731, to support 37 Cal. 3d Bigelow,supra, relying speculative, upon People in this case supports the record Attorney his claim. The General insists that a of witness-murder. finding the prospect discuss

Thomas testified that he had earlier heard defendant cabin, at that on her a to Shelton’s kidnapping bringing woman occasion, the victim would one such that acknowledged least Attorney General to be much. The have killed because she would know too that were plans that murder since defendant formed argues kidnapping a to support there sufficient evidence subsequently precisely followed finding of witness-murder. one were disagree. robbery part

We The and murder kidnapping, finding A continuous transaction. witness-murder special-circumstance commission, if attempt- must fall the or “during was committed the killing was a witness.” ed commission of the crime to which person killed] [the 190.2, Kevin and Clearly, only subd. if robbed (§ (a)(10).) defendant had him, could finding then killed a special-circumstance witness-murder the stand the murder the commission during because was committed Kevin and and killed robbery. Similarly, only if kidnapped defendant had Laura, stand be- finding could not special-circumstance a witness-murder commission kidnapping. of the during cause the murder was committed the Here, robbery the Attorney that Kevin “witnessed” argues General again, of the same continuous robbery part Laura. But of Laura was and Kevin of Laura criminal transaction which included kidnapping not simply that murder was robbery Lacking and the of Kevin. evidence transaction, must set aside we part of the same continuous criminal witness-murder special-circumstance finding.

Accordingly, argument we need not reach defendant’s alternative financial-gain kidnapping- witness-murder is inconsistent with finding for-robbery finding.

D. Felony-murder (Kidnapping Robbery) for felony-murder robbery)

Defendant that the for urges (kidnapping 190.2, (§ He special-circumstance subd. must be set aside. finding (a)(17)) argues may while he have Laura in kidnapped part Kevin and them, had purpose robbing completed killing he Kevin robbing prior him. Defendant contends that no longer because intent to rob existed the time of the killing, could not find the kidnapping-for-robbery special-circumstance allegation though true even was a con kidnapping tinuing offense.

Defendant’s claim merit. statutory language lacks requires murder committed . . engaged while defendant was in . “[t]he [be] robbery].” No [kjidnapping requirement additional exists that defend- [for ant, having the crime of intent the completed robbery, harbor the to rob victim again at the time of “A forcibly the victim killing. transported with- out consent still continues an ‘kidnaped’ while the detention [his] injury during inflicted detention is ‘in of inflicted the commission the kid- 948, v. naping.” (People Farmer 145 952 (1983) Cal.App.3d Cal.Rptr. [193 murder, 788].) Because Kevin was still of his he being detained the time was killed commission while defendant was “in of’ engaged kidnap- This fact is ping. sufficient to sustain the (Cf. circumstance special finding. 1, 1, v. People Green 27 61 Cal.3d 609 468].) P.2d Cal.Rptr. [164 Accordingly, felony-murder robbery) for special-circum- (kidnapping stance must be finding sustained.

V. Penalty Phase Contentions A. Special-circumstance Invalid Findings

Defendant asserts some that the aside of setting special circumstance find findings requires We defendant’s penalty. reversal assertion be to without remained given merit the fact that there one valid felony-murder robbery) for The (kidnapping special-circumstance finding. United States has Supreme Court a death where one of the upheld penalty several circumstances found was aggravating jury true subsequently (Zant held invalid. 862 L.Ed.2d 103 Stephens (1983) U.S. [77 Moreover, case, S.Ct. 2733].) People in a case similar-to the v. Allen present (1986) Cal.3d 1222 held 115], 729 P.2d we that jury consideration of eight excessive harmless special-circumstance findings light findings the fact that valid remained. special-circumstance three (Pp. 1281-1283.) issue in We nonetheless examine the merits some detail. heinous-murder, murder, and wit- financial-gain aside the setting

Does death sen- of the reversal findings require ness-murder special-circumstance of the consideration jury’s in the case present tence? We conclude that not have and could harmless error findings invalid special-circumstance its penalty affected verdict. jury led the have would occurring during phase

Nothing penalty theAt findings. on the invalid place emphasis special-circumstance undue First, a police only witnesses. two penalty phase, prosecution presented who first officer police to kill the officer testified that defendant threatened The second to see his wife. in his allowed set foot cell unless defendant was witness, defendant arresting testified that in the course agent, federal more than he recovered to manufacture attempting methamphetamines, firearms, defendant where building machine from the guns, including had various had built his was also told that drug lab. meth- to manufacture felony attempt convictions: theft prior grand (auto), i.e., firearms, of prohibited and three counts of amphetamine, possession guns. machine friends who tes-

Defendant called four witnesses. Three of them were tified, essence, met he man had was not violent a socially with him several before his arrest. The fourth witness was times he officer who to him ‍‌‌‌‌‌‌‌​​​‌​‌​‌​​​‌​‌‌‌​​​​‌‌‌​‌‌​​‌​​‌‌‌‌​​​‌​​‍that police complained testified that defendant had had been ill-treated by other officers. of

The court allowed to the usual order the defense alter prosecution closed, prose- first then the closing penalty phase arguments—i.e., defense cution, and then defense thrust of defense counsel’s gave rebuttal. The individually was each decid- closing argument juror responsible that fate, not for death ing simply defendant’s he or she must vote therefore should jury because the other do He that the jurors explained choose to so. character, not whether or “background, age, consider defendant’s his his he’s He the any custody” trouble in reminded mitigating as circumstances. Thomas in the crimes. jury that defendant refused to Shelton and implicate death, his fear de- Counsel that but stressed that opined defendant feared family. jury rived told the that from concern and for his Counsel love to in anybody prison. defendant had said he not if allowed live would hurt jury, the as Finally, stressing defense once that agаin counsel concluded individuals, that if invoked would be for defendant’s death responsible penalty. the enjoy imposing

The first told the that no one would prosecutor jury the jury that enjoy seeking death that he it—but penalty—and did case an appro- should to if found that this sentence defendant death it that, argued you the “if conclude priate Specifically, prosecutor one. circumstances, the circumstances the aggravating outweigh mitigating you shall a sentence of death. You shall a sentence of death. The impose impose abstract, the in question just mitigation or is generally, “What there this mitigates case? What The (Italics added.) conduct?” [<defendant's] thrust of the prosecutor’s argument was not to stress the nature closing true, number the of of circumstances but the absence special found be any factors mitigation. the prosecutor emphasized this central That point: nothing mitigated

circumstances of this crime. He observed that details of Kevin’s the murder were longer no of issue or discussion. “The murder of Kevin inquiry him, Thorpe, rob killed for financial killed to kidnapped gain, prevent heinous, atrocious, cruel, testimony, day, this de- prevent and indeed praved already behavior—this has been decided. It’s not matter for determination of whether these circumstances exist. The now is: What point could possibly, come into this case to what we know possibly now soften weigh against against didl What is there to propriety, [idefendant] rightness maximum 1 The punishment circumstances the crime and the existence those special circumstances—those circumstances special four you crime; truel The circumstances this these kidnappings, found robberies, these possession weighs against this murder What weapons, this!” (Italics added.) The prosecutor’s brief reference to findings circumstance speсial thus, them equated crime; with circumstances of the few times that them, reference was made to attention was drawn not jury’s fact that it previously had found several circumstances” but to the “special facts is, behind those findings, that to “the of this crime.” The circumstances mind, prosecutor told felony in his defendant’s convic- prior Rather, tions did not justify putting defendant to death. he believed that the only such aggravating penalty circumstance which warranted a was “The incredible of murder Kevin Thorpe.”

The prosecutor stressed that the murder was senseless: “That’s where the truly crime, chilling, awesome of truly nature this comes home to us. What do, did this man and to whom did do it? What in the he world [defendant] did Kevin do to these tire. Thorpe inspire actions? He fixed his He left for atrocious, Oregon. What can we murder of that weigh against depraved contact, young man who way had in the to nothing nothing provoke this defendant, Benjamin Silva?”

The prosecutor listed several possible mitigating circumstances and ar- asked, they that gued did not He is simply mitigation] exist. “What there [in that’s even in this he considerable case to crimes which compared those [for the murder in this Nothing and of Kevin evidence Thorpe? convicted] ” that added.) argued He (Italics outweigh aggravation. the scale that on to absolutely had done the victim very and that defendant was dangerous concluded Finally, the prosecutor to defendant. nothing provoke “[de- What gentlemen. ladies judgment, calls down his conduct fendant’s] to the in factors, comparison weigh aggravating in to the comparison could penalty against the death you weigh him What could guilty crimes found of? this, but with we have to deal duty this case? our that we unpleasant in It’s not be a more that could It’s not I think it is clear there do. but pleasant, (Italics added.) case.” appropriate counsel, to rеbuttal, thing put in it is a terrible

Defense argued and was death; had no murders prior someone defendant committed of this case future; unlikely to so in circumstances particular do robbery commit those any kidnapping were the same as other arrested, nor did he murder; did when he was anyone defendant not shoot trial; would be any custody pending constitute while problem submit, concluded, “I ladies if to live. Counsel person allowed productive justify more circumstances gentlemen, adequate there are than verdict this case of of parole.” life without possibility presence It is clear that the on sides was the focus of both arguments outweighed or absence of circumstances and whether mitigating conceded that the circumstances. Both sides also aggravating apparently itself, “the circumstances of aggravating critical circumstance was the crime number of offense.” made to the Though an isolated reference was as an circumstance not emphasized their existence was special findings, essentially on the cir- aggravating generally factor. relied prosecutor number cumstances of the There no that the attempt argue offense. circumstances, finding, facts such special underlying rather than the each justified imposition weight death be penalty given should jury.

In findings of the were light special manner which the circumstance swayed by we conclude would not have been argued, juror that a reasonable murder, “heinous,” but gain,” abstract “financial or “witness” concepts would instead have actual of the offense focused on the circumstances to be finding which formed the foundation for those circumstances special true. that, “In which

Additionally, jury determining the instructed the court defendant, all you shall consider to be on the penalty imposed of trial case. You this during any part evidence which has been received of of factors, consider, account, if by following shall take into be guided crimes the defendant A) The circumstances of which applicable: convicted in any special and the circum- present proceeding existence stances found to true . . . .” (Italics added.) be

The court also the factors on jury up instructed the count simply side, each it We give but each factor the to which was entitled. weight jury’s conclude from the that the arguments and instructions foregoing verdict by findings. was not affected the invalid special-circumstance

B. Threat Kill a Guard Defendant’s police

Defendant the admission of his statement to a challenges officer that he kill if he would the first officer to inside his cell police step was not permitted to visit claims state with his wife. Defendant that this inadmissible, ment was relying Boyd (1985) our upon opinion People 38 Cal.3d 782], Attorney 700 P.2d The General error, concedes the but it harmless. argues was Boyd, In the prosecution introduced evidence of the defendant’s threats against juvenile hall theory prosecution counselors. The which the upon relied was that the threats the crime of to riot.” Defense inciting “proved counsel on cross-examination disagreed and moved to strike evidence. The court denied the motion and not to consider the jury instructed threats as factors unless aggravating prosecution found that the proved incitement beyond to riot a On reasonable doubt. we concluded that appeal, there was such insufficient evidence to to the support submitting charge (Id. jury. 777-778.) pp. indicated,

As previously Boyd Attorney General concedes error but argues that “the evidence in question compared is so when trivial [de- crimes at the proper penalty other evidence adduced fendant’s] phase” that the error was harmless. We Dеfendant’s threat was agree. probably by jury viewed as no more than heated frustration from being of visits deprived by It is inconceivable that the virtually wife. would have reached a it different had not heard the evi- penalty verdict dence.

C. Flight Evidence of Defendant complains testimony a federal who testified at the agent penalty phase that defendant was a federal at the time his arrest fugitive for Kevin’s during murder. The relevant occurred a discussion interchange felony defendant’s conviction for to manufacture metham- attempt phetamine and possession of machine took guns. following colloquy No, place: Was Mr. A. “Q. Silva at the time of his conviction? he present [if] was not. trial Q. Why days not? A. Two before the end of Mr. Silva [K] [fí] failed to Since defendant failed to appear fugitive.” became federal on appeal. it challenging from testimony, he is precluded to this object case, in the Code, event, evidence of the other any light In 353.) (Evid. § jury’s the have affected status could not fugitive fact defendant’s the mere of verdict. penalty Phase Penalty at the

D. Consideration Sympathy . . . promises the trial court “extracted Defendant contends that at their arriving not consider jurors ‘sympathy’ from the would voir dire questioning He bases claim the court’s upon verdict.” this would be juror In whether jurors. determining prospective prospective objective an the court asked whether able to vote for the death penalty, made, aside feelings could be setting of that sentence determination were that those who jurors or bias. Defendant suggests sympathy, prejudice along it months later and included asked this remembered it two question claim lacks instructions. We find defendant’s phase with the other penalty merit. outset, previ-

At the we observe that the court’s voir dire were questions Second, is no by the dеfense there ously approved counsel. prosecutor in the the asking jurors impose indication record that the court was the the court’s considering defendant, death without penalty sympathy jurors seem more directed would not assuring toward questions for de- vote to the death based on unwarranted impose penalty sympathy victims, Finally, fendant’s or toward defendant. these prejudice questions dire, on yet were asked on voir attention was not focused jury’s when v. Any issues. thus harmless. penalty undoubtedly (Cf. People error was 739, 1250].) P.2d Ghent Cal.3d 769-770 Cal.Rptr. [239 by closing Our conclusion is fortified the fact that the penalty phase factors, such as de- arguments mitigating made it clear that “sympathy” character, decision. background jury’s fendant’s were relevant to counsel, first, decision argued explained required Defense who that this his including age, defendant’s “balancing equities,” “background, , . . . that there character all factors.” The were prosecutor disagreed character, that the argued of defendant’s but he never mitigating aspects irrelevant. legally considerations cited defense counsel were sympathy what could jury As he “The now is explained, point decide] [for Mr. we now know Silva come into this case soften what possibly, possibly against rightness did. What is there to weigh against propriety, Thus, regarding the maximum was not misled punishment?” and other defendant’s character considering background, propriety 858, 878, and Easley (1983) evidence. 34 Cal.3d (See People “sympathy” 813].) fn. 10 671 P.2d

E. Uncharged Consideration Crimes

Defendant asserts the court erred in to instruct failing sua sponte that evidence of prior crimes of which defendant was not convicted must be proved beyond a reasonable doubt before jury may consider them as aggravating factors. (See v. People Robertson 33 Cal.3d 53-55 77, 655 P.2d 279].) jury informed that defendant had suffered two theft, prior felony convictions: one in grand 1972 for one in 1980 for manufacturing drugs and for a felon in being of a possession firearm.

Evidence was admitted to show the circumstances of defendant’s arrest for the 1980 One charges. of the arresting officers testified that at the time of defendant’s arrest for attempt manufacture methamphetamine and pos- session of machine guns, he pointed pistol defendant and ordered him to “freeze.” The officer was a few feet outside the building which housed the lab; drug defendant was inside the building, near a standing window. Upon seeing the freeze, officer and hearing command to defendant calmly window, stepped flare, back from lab, lit a and threw it into the blowing it up.

Defendant suggests in addition to the crimes of which he was con- victed, the evidence outlined may above have been considered improperly by the jury mischief, as showing crimes of “malicious arson or the destruction of property.” We find this contention At no unconvincing. time did the prosecution to the argue jury that it should consider to the damage building Indeed, its during penalty deliberations. review the record reveals that the property caused damage by defendant was largely irrelevant to the argument and consideration of the death The evidence penalty. solely introduced to demonstrate jury to the that defendant was able to calmly react when faced with a pistol and a command not to move. discussed, As previously the thrust of the prosecution’s penalty phase closing argument was that the circumstances of Kevin’s murder constituted only relevant aggravating factor. Rather than defendant’s emphasize convictions, prior felony the prosecutor disclaimed the idea that would justify a death sentence. And while the court instructed the that it could convictions, consider defendant’s prior defendant was not convicted mischief, of “malicious arson or the destruction of and at no property,” time did the prosecution argue that defendant should be sentenced to death because he set fire to a building.

F. Prosecutorial Misconduct

Defendant asserts two separate instances of prosecutorial misconduct. Green, Although he failed to object to these statements below (People supra, 27 Cal. 3d 27), we nonetheless address the merits. Dangerousness Future 1. Defendant’s regarding argument evidence and

In an to rebut defense attempt environment, the prose in a ability peaceably prison defendant’s to coexist According dangerousness. for future cutor defendant’s argued potential 733, defendant, 773 (1981) Cal.3d v. Murtishaw 29 People on relying [175 738, even of future 446], “predictions dangerousness,’ 631 P.2d Cal.Rptr. if reliable, (italics penalty legislation” the of our death beyond scope would be 38 Boyd, supra, (See also v. People in and inadmissible. original) therefore 762, at evidence admissible penalty phase 775-776 on Cal.3d [limitations law].) 1978 death penalty under 594, 744 P.2d v. 44 Cal.3d 57 (1987) Cal.Rptr.

In Miranda People [241 comments a defendant’s future we that “a on 1127], prosecutor’s indicated of to the jury.’ the bounds proper argument are ‘within dangerousness Miranda, doubted “a com (P. 111.) prosecutor’s In we [Citation.]” same for as during present potential prejudice” ments the closing arguments case, Moreover, (Ibid.) present an of violence. in the expert’s prediction rebutting at defendant’s own evidence prosecutor’s argument aimed no in and to the effect that threat if sen argument pose prison he would to life v. (See People tenced without of imprisonment possibility parole. 38 We Boyd, evidence].) Cal.3d at 776 similar rebuttal supra, p. [permitting conclude that no misconduct here. occurred Mandatory Sentencing Argument

2. and Instruction contends prosecutor

Defendant also that it was for the improper that, you to the “if con argue jury 190.3) of (pаraphrasing language § circum outweigh mitigating clude that circumstances aggravating stances, you upon shall a sentence of death.” Defendant relies our impose 637, in v. 512 709 opinion People (1985) Brown Cal.3d [220 440], sub nom. v. Brown grounds P.2d vacated on other California that, 934, “The U.S. 538 stated 837], L.Ed.2d 107 S.Ct. where we certainly not one word connotes a mental but balancing process, [‘shall’] on each side of counting which calls a mere mechanical factors ‘scale,’ any of them.” arbitrary or the imaginary assignment ‘weights’ 541.) (Id. p. Allen, in

As we in v. our concern explained supra, Cal.3d People Brown, the una jury receiving 40 Cal.3d was that a People supra, in cases many (CAL dorned used previously capital standard instruction scope of its 8.84.2) JIC No. fail to nature might appreciate proper inherent in the fail to realize that “weighing” might responsibility, is the death weighing process obligation appro was an to determine whether in that case. priate punishment

The court in case the standard present modified instructions are expressly you informed the “You are further instructed that to count the that with the number aggravation compare factors be im- factors which of the shall mitigation determining penalties It is not relative which shall posed. number determine of factors rather the which shall determine appropriate penalty weight but the factors may which You to each of the factors penalties appropriate. assign the weight, any, you added.) if which believe be entitled.” (Italics it to The both obli- special given by jury’s instruction the court the explained the gation to determine of the death and further appropriateness penalty, advised that weighing, this determination was to be made on the basis of a Moreover, not various factors. counting, aggravating mitigating the summarized, have nothing closing arguments, counsel’s could previously conclude, therefore, misled jury the in these We that Brown respects. no error occurred in case. this

G. Ramos Error motion for trial Ramos upon purported

Defendant’s new based 800, error (People v. Ramos Cal.3d 158-159 689 P.2d denied. We 430]) was find no error.

Defendant’s claim is based in out following on the discussion—held part of the of the the deliberations: “The Court: presence jury—during penalty One, jurors The have sent the does have following question: anyone two, authority to . . . does penalty jury; override decided this that, life prison just parole without mean or is possibility parole so, possible at If As to some future date? under what circumstances? [fl] reviews, 1 . question [death], . . if is automatic mine and it there are two # it is an Supreme Court. If without there is it cannot parole], appeal; [life be made into but could be without As reduced from parole]. [][] [death] [life to does just parole life in mean that or prison possibility without parole so, date; clearly possible at some if circumstances? That future under what answered, be you cannot be Do that agree, counsel], couldn’t [fl] [defense #2 answered [(¡] under the new case which out'? just came [Defense counsel] Honor, correct, That’s your you agree Court: Mr. do Depasquale, [fl] The #2, that at Mr. least as to that could not be answered? question flj] I THE R DeSPASQUALE: DECISION, AGREE WOULD THAT AT LEAST UNDER Now, answered, that I think it is not #2 BE CANNOT The Court: [fl] clear as I would that it should follow the Ramos question suggest #1. decision, that is not the same But me to tell the although question. jury it for death, I will will review their it is then the Court Supreme verdict if it, review I as the infirmity question think the same from suffers way out right easy Governor’s it an suggests to commute sentence. I think Pilate the Pontius in terms of them then to think and allows jury to the inclined, very I hear some So unless it.’ I’m theory, my T wash hands of I can answer contrary, indicate to them that to the persuasive argument you can I concur of their questions. neither tf[] [Defense Counsel:] (Italics added.) the questions.” neither answer “that neither jury, court then that the tell suggested Defense counsel consideration to take into are factors which are of these considerations “I think I’d best responded, their verdict.” court deciding when in the two questions.” error than is inherent give any more opportunity that, “I under the law answer cannot It informed subsequently it further out. I discuss you which have sent cannot either of the questions than that.” answer for new trial for failure to give requested

Defendant moved motion, . . . concluding, “my response The court denied jury. to the Defendant only give.” the court could appropriately response Ramos, 154-159, under Cal.3d People supra, now contends Ramos, In disagree. new trial motion was denied. We improperly 159, 12, the the commu- jury footnote we stated that itself raises page when deliberations, obviously be avoided during tation issue “the matter cannot the Gov- and is best handled short statement probably indicating parole ernor’s commutation to both sentences without power applies [life juror’s duty it be a emphasizing and but that would violation the death] commutation of such in possibility determining appro- to consider priate sentence. (Cf. People v. Morse ^[1964] 60 Cal.2d 631, 648 [36 Cal. Rptr 201, ‍‌‌‌‌‌‌‌​​​‌​‌​‌​​​‌​‌‌‌​​​​‌‌‌​‌‌​​‌​​‌‌‌‌​​​‌​​‍33, 12 388 A.L.R.3d 810].)” P.2d case,

In the the trial court did not have the benefit of Ramos’s present admonition, find here. The but nonetheless we no error occurred prejudicial in no from its response way diverting jury’s court’s resulted in attention “half-truths,” in it unlike informing any task nor sentencing misleading left The Briggs response the so-called Instruction criticized Ramos. jury in the same as when the asked the uncer position question—i.e., It uncertainty

tain of the answers. is inconceivable that such affected 583- (See Hovey verdict. also Cal.3d jury’s penalty People P.2d 776].) Modify H. Motion to the Sentence Defendant’s its court to exercise discre Defendant contends thе trial failed for of the sentence. considering tion in defendant’s motion modification defendant, entirely jury’s court According upon instead relied the mo contrary denying The true. In verdict. record illustrates be the court parole, the sentence to life possibility tion to reduce without observed, “It is not the function of the Bench Califor- Trial and the State of nia to only determine the social death deter- propriety penalty. of the It mines when a case is one falls within the estab- particular guidelines which case, lished for its And in the facts of the . . . the imposition. this case factors of the crimes themselves are it be an of this such that would abuse case, court’s discretion not the death this and the court impose penalty will impose penalty.” death

The familiar any court further “I am with explained, personally crime more heartless coldblooded the machine murder of gun [than Kevin court “one of Thorpe].” allegations concluded the special cruel, heinous, that the murder was especially manifesting atrocious 190.2, exceptional in violation of Penal depravity Code [section subdivision] (a)(14). been There has some that those terms argument vague are [fl] indefinite; it should be noted the record that are. And specifically they the Court finds that that is not was not specifically particular allegation case, necessary to the of the appropriateness imposed sentence this [fl] heinous, cruel, clearly And this murder was atrocious and mani- especially not, finds, festing exceptional depravity, but it was not and is this court necessary for the of the death There imposition allega- are other penalty. tions true; which were to be justify found were more than sufficient the imposition of the death believe penalty.” clearly We that the record shows that the court еxercised its rather than upon discretion relying verdict. jury’s

Defendant also that the asserts court considered improper aggravating death, circumstances in defendant to independently sentencing specifically, the murder of He Laura. bases this upon conclusion court’s statement . “It . . cannot be denied lives young people forfeited their [that] as soon as and his saw them at station. companions gas [defendant] they From that point on had no few surviving chance more than a [of] days.”

It is clear fully from a of the was reading entire record that the court murder, aware that had been defendant of Laura’s and that acquitted court did rely not in We imposing offense death upon penalty. reject therefore claim court defendant’s that the considered improperly Laura’s circumstance; murder as an does aggravating nowhere the record the court indicate that it so. imply doing was

I. Review Proportionality Defendant’s final is that was discrimi- “arbitrary, contention his sentence and, therefore, natory, and disproportionate” provides unconstitutional. He essence, no factual basis claim. In we adopt for this urges to do declined have previously review. We system proportionality some 667, 730, Cal.Rptr. 777-778 42 Cal.3d Rodriguez (1986) v. (People so. [230 the death Moreover, clearly indicate of this case the facts 113].) 726 P.2d v. (People for this defendant. not punishment is penalty disproportionate 390, 697].) 668 P.2d Cal.Rptr. 34 Cal.3d (1983) Dillon [194

Conclusion heinous-murder, financial-gain-murder special- and witness-murder the judgment In all other respects, are vacated. findings

circumstance affirmed. Kaufman, J., J., J., J., con-

Mosk, J., Panelli, Arguelles, Eagleson, curred. J., in the

BROUSSARD, majority’s I concur Concurring Dissenting I finding. affirmance felony-murder special-circumstance and of the guilt murder findings: also concur in the aside of the circumstance setting special heinous, I atrocious or cruel murder. fоr financial witness-murder and gain, affirmance of the penalty. dissent from death three invalid agree jury’s special

I cannot that the consideration not have circumstance in this case “was harmless error and could findings ante, Rather, this error (Maj. 633.) affected its verdict.” penalty opn., p. so very certainly when singly probably prejudicial, taken threat in combination with the erroneous admission of defendant’s viewed kill a officer in police prison. aside of by addressing majority’s setting We assertion that begin case reversal findings compel three circumstance this does special sentence, authority cite as the decision defendant’s death which 462 U.S. 862 (1983) United States Court in Zant v. Supreme Stephens Allen People L.Ed.2d 103 S.Ct. and our own opinion [77 2733] seen, As will be 42 Cal.3d 1222 729 P.2d 115]. also majority case. The present neither of these decisions is to the applicable of the excessive special err in their assessment of the prejudicial impact in case. findings circumstance this particular Zant, 862, Court a Supreme upheld

In 462 U.S. the United States supra, fact the statute the Georgia penalty despite death sentence under death had jury circumstances on which the statutory aggravating of the three decision,1 by a was committed (that its one the offense sentencing rested statutory Georgia in Zant aggravating in the law under consideration 1The circumstances jury as had to roughly analogous special circumstances inasmuch the were to California’s considering the defendant for the death at such circumstance to exist before find least one 243, 866, 245-247].) (462 pp. at penalty. pp. U.S. at 870-872 L.Ed.2d [77

644 history a

person having substantial serious assaultive criminal convic- later held to tions) unconstitutionally be U.S. at 867 vague. (462 p. [77 however, L.Ed.2d to 243-244].) holding, at Relevant the court’s was the pp. fact that under the the Georgia statutory law circumstancеs aggravating played express no in the a part jury’s death-eligible consideration of whether course, defendant should receive the the ultimate Of same cannot penalty.2 statute, be said of the California directs circumstance any special which found also in true shall be considered the aggravation penalty at phase Code, 190.3, the (Pen. trial capital specifies jury factor that the (a))3 § shall the weigh to determine aggravating mitigating factors presented 190.3, whether death last v. penalty. (§ par.; appropriate People 512, 637, Brown 40 (1985) Cal.3d 538-541 P.2d 440], 709 Cal.Rptr. [220 revd. grounds on other sub v. 538 (1987) nom. Brown 479 U.S. California 934; L.Ed.2d 107 S.Ct. 837].) [93

That has no Zant to the is made clear application present situation court’s observation there that in the defendant’s conviction un upholding der the Georgia statute not express any “we do opinion concerning possible significance a that a holding particular circumstance aggravating is ‘invalid’ under a statutory scheme in judge jury which the or is spe cifically instructed to statutory circum weigh aggravating mitigating in stances its exercising discretion whether the death penalty.” to impose (462 p. U.S. at 890 L.Ed.2d at In the case the p. 258].) jury’s present [77 death verdict rested in if part upon any, assigned which it to its weight, “heinous, earlier finding that defendant’s offense was atrocious or cruel” 190.2, (§ subd. (a)(14)), a circumstance this court has found special which ante, must aside be set as unconstitutionally at vague. (Maj. opn., p. 631); 797, v. People Court 806 Superior (Engert) (1982) 31 Cal.3d [183 800, 76].) 647 P.2d Thus this situation on presents case which precisely Zant, the United States Supreme Court declined to rule in and on which it yet has express to an opinion.4 States, Georgia, any “In unlike give special weight some other is not instructed circumstance, any aggravating multiple any aggravating to consider circumstances more circumstance, significant single against mitigating than such aggravating to balance cir Thus, any pursuant special Georgia, finding aggravating cumstances standard. of an play any guiding sentencing body circumstance does not role in the exercise its discre

tion, apart its narrowing persons from function of the class of convicted of murder who are eligible penalty.” (462 247-248], pp. pp. the death fn. U.S. at 873-874 L.Ed.2d omit [77 ted, added.) italics statutory All further references are to the Penal Code. Barclay 4In 3418], Florida 463 U.S. 939 S.Ct. L.Ed.2d court again upheld death part improperly aggravating sentence based in on an circum considered stance, law, Georgia under this time That statute at issue in Florida statute. unlike the Zant, California’s, supra, U.S. “weighing” was a that it in statute like the sense statute) (the judge weigh cluded an instruction to the trial cer sentencer under the Florida statutory aggravating determining tain mitigating impose and circumstances in whether to 952-953, given (Barclay, death in a case. supra, pp. pp. U.S. L.Ed.2d at 1145- 463 at 954 [77

645 Allen, 42 Cal.3d supra, from readily also distinguishable This case is murders, first degree in of three guilty defendant Allen was found 1222. The 190.2, subdivi- the of section meaning a within one of them witness-murder facts, Based on these also a murder conviction. prior sion He had (a)(10).5 found, circumstances: special the eleven alleged, jury prosecutor the 190.2, for multiple six (a)(2)), subd. (§ the murder conviction prior three for witness-murder, the 190.2, based on for subd. and two the (§ (a)(3)) murder ante, This 5.) fn. court (See alternative set forth in the statute. grounds two two the duplicative: as of these eleven eight findings improperly set aside 1274, citing (42 Cal.3d at arising prior p. from the murder conviction three 782, five 433]), 679 P.2d v. Harris 36 36 (1984) Cal.3d People [201 1273, also (42 Cal.3d at p. circumstances multiple-murder special of the six Harris, and, grounds, alternative presence both citing supra) despite Cal.3d at (42 as well. one of the two witness-murder circumstances special pp. 1273-1274.) Allen, in 42 findings supra,

We found the excessive special-circumstance 1222, case, that since Cal.3d not decision in prejudicial penalty any did entail otherwise admissible the consideration of evidence not fully aware jury’s jury and relevant to the decision. We that the was noted convictions, one witness including of the defendant’s three murder present murder, aware— and of his murder conviction. The was therefore prior the multi- indeed the them in terms—that prosecutor explained to precise three murders special only circumstances involved ple-murder circumstances, prior-murder-conviction despite witness-murder and special numbers, one conviction. only prior their involved one witness murder and 1281-1282.) at (Id., pp.

Unlike at issue in Allen two of exces- 1222), those Cal.3d (supra, heinous, or sive circumstances atrocious special here—witness-murder found, they merely cruel murder—were not others duplicative properly Zant, However, 1147].) aggravating the one unlike circumstance under consideration Barclay (defendant’s record) any constitutional at issue in criminal did not suffer from federal 951, (Barclay, p. 1144]); supra, p. defect at fn.8 L.Ed.2d its was at rather consideration [77 simply improper in the under state law because it was a circumstance not enumerated statute. (Barclay, (Id., 1148].) distinguished supra, p. p. Barclay at at L.Ed.2d This from Zant [77 p. 1144]), p. expressly at fn. 8 L.Ed.2d it the situation at but also left unaddressed open imposed a uphold left in the earlier case: a verdict under whether court would death constitutionally in- “weighing” sentencing part statute where the decision based in on was 258]; (Zant, p. see aggravating supra, p. valid circumstance. L.Ed.2d at U.S. 890 [77 al., Pascucci, Abandoning and Consis- Capital Fairness et Punishment 1984: Pursuit tency (1984) 1181.) L.Rev. Cornell victim (a)(10) provides special where the murder 5Subdivision circumstance exists (other during the victim (1) a crime than crime of which was a witness to commission testimony in intentionally preventing killed) purpose killed his or her who was for intentionally any proceeding a witness to a crime killed retaliation criminal who testifying prior proceeding. in a criminal 646 in

were invalid and of themselves.6 an characteriza- Each involved improper circumstance, which, tion of the evidence but for the of a finding special have been in at the The might considered aggravation penalty phase. jury in Allen did not consider in the fact that the improperly aggravation murders, defendant was before them vic- for three that one of his present tims was killed to in for testimo- prevent testimony prior retaliation and/or ny, and that he had murder here prior By jury conviction. contrast the was erroneously allowed to crime— consider certain of defendant’s aspects its specifically, findings that the victim was to future testimo- prevent killed ny “heinous, and that defendant’s offense only atrocious or cruel”—not sufficient, alone, in but as to aggravation circumstances each render defend- ant for the eligible death penalty.

If, as this has recognized, duplica court the consideration of repeatedly tive circumstances the risk will special “improperly inflates that the 67; arbitrarily impose penalty” (Harris, death 36 Cal.3d at supra, p. Allen, 1273, 1274; 42 Cal.3d at 43 supra, Anderson pp. People Cal.3d 742 1306]), P.2d then the possibility of prejudice only greater alleged where circumstances have been special and found which are even invalid on their own. This of possibility prejudice ante, if, would have been even as the present majority (maj. conclude opn., at pp. 634-635), prosecutor in had not the invalid his exploited findings however, view, closing argument. Contrary majority’s the prosecu ones, tor’s references to the special invalid circumstances werе repeated while the thrust of the on argument may have been to dwell the circum stances of the crime in general and the lack of in mitigation, circumstances the effect of minds those was to alive in keep jurors’ references characterization of certain improper of circumstances of aggravation defendant’s crime.7 case, circumstance, course, financial-gain special The improperly of while found in this duplicative validly underlying the sense that it was based on circumstances found felony-murder robbery) (kidnapping special-circumstance for finding. prosecutor findings during alluded to special-circumstance the excessive four times him, closing argument. his Thorpe, “The of kidnapped, murder Kevin to rob killed finan for heinous, gain, prevent testimony,

cial prevent day. killed to killed to this And indeed atro cious, cruel, depraved already behavior. This has It’s been decided. not a matter determi nation point possi whether these possibly, circumstances exist. The now is what could [sic] bly weigh come into this case soften what we know did. is there to What [defendant] against propriety, against rightness punishment? of the maximum The circum [ft] circumstances, special stances of the crime and the cir special existence those thosefour you kidnappings, cumstances to be true? The circumstances this crime these found robberies, possession (Italics weapons.? weighs against of these This murder? What this?” Later, factors, added.) following statutory mitigating discussion a number he ar gued: mitigating “Did these—are there circumstances that are even to be considered on the gain prevent testimony! same heinous scale with this murder is there and to What for financial that’s compared even considerable this case of Kevin those crimes and the murder Thorpe? Nothing (Italics outweigh aggravation. in this on the . . .” evidence is scale error, the by prose of its exploitation been the absence Where there has jury’s The of issue of any prejudice. case the dispositive cutor is not in otherwise he might of any argument deprived here also findings was, aspect no particular as his offense there was have made horrible a during committed any than other murder it was “more horrible” which deserving any more defendant should be robbery such that kidnapping, v. Rodriguez crime. (See People of of the latter perpetrator death than the 730, 667, purpose P.2d 726 Cal.Rptr. 42 Cal.3d 788 (1986) 113] [“the [230 aof the seriousness of factors is to assess ‘mitigating’ ‘aggravating’ Gregg cf. character”]; general others the same crime in relation to capital of 890, 153, 859, It 2909].) 96 S.Ct. 201 L.Ed.2d 428 U.S. Georgia (1976) v. [49 “heinous, not cruel” do provide is the words atrocious or precisely because for murders those constitutionally guidance separate a sufficient jury with for from those possibly is a penalty appropriate penalty which the death 190.2, not, described in section which it is that the circumstance special 797.) Cal.3d (Engert, invalid. 31 supra, subdivision was declared (a)(14) 190.2, itself makes Similarly, (a)(10) the of section subdivision language where clear circumstance does exist special that witness-murder the course of crime to which the victim a witness is the crime during ante, ante at 645; maj. p. which fn. (See p. opn., the victim was killed. from the circum 631.) Defendant this case was precluded arguing of necessarily his militate in favor of a sentence stances of crime did not concededly inapplicable death rendered under two invalid or findings, only but aggravating that certain of offense were not provisions, aspects These category death-eligibility. improp sufficient elevate him into the of may er well affected the findings jury’s have verdict.

I of disagree admission defend- majority’s finding also with the error. police (Maj. opn., ant’s to kill a officer was harmless in-custody threat ante, Boyd 636; (1985) see Cal.3d p. People on 782].) only penalty two witnesses at prosecutor put P.2d earlier, drug- one incident an phase: who testified to an connected with In statement. threatening related arrest and one testified to defendant’s who addition, auto convictions for felony on evidence of prosecutor put prior theft, Other than attempted drug possession. manufacture and weapons threat, however, or threats presented none of evidence involved violence have erroneously may of violence. Thus this admitted evidence penalty unfavorably past view of significantly jury’s colored defendant’s calm, calculated, things. He has added.) is He to do these Then: “The man careful. decides to end all for place ago, 13 months he decided it decided a series of events that took [we] calmness, events, exhibiting these Thorpe. what sounds incredible Kevin In series like gain, testimony, keep getting caught, but are indications purposes prevent there from will do this sort present that that consciousness was before the crimes even started. [‘]We (Ital- thing caught away person.[’]” keep being do with this and then in order to from we will added.) ics actions and of his continued if rather than dangerousness imprisoned exe- cuted.

While question close, prejudice admittedly there is a reasonable that the possibility combined effect of jury’s consideration of three circumstances, invalid special including two that were nonduplicative found, circumstance special properly the admission of defendant’s statement, threatening jury’s decision in favor of death. tip should penalty therefore be reversed.

Appellant’s petition Broussard, for a rehearing was denied 1988. ‍‌‌‌‌‌‌‌​​​‌​‌​‌​​​‌​‌‌‌​​​​‌‌‌​‌‌​​‌​​‌‌‌‌​​​‌​​‍July J., was of the opinion that petition should be granted.

Case Details

Case Name: People v. Silva

Court Name: California Supreme Court

Date Published: Jun 9, 1988

Citation: 754 P.2d 1070

Docket Number: Crim. 22546

Court Abbreviation: Cal.