People v. Siripongs

No. 23082. June [Crim. 1988.] PEOPLE,

THE Plaintiff and v. Respondent, SIRIPONGS, JATURUN Defendant Appellant.

Counsel Ward, Court, P. for Defendant Supreme John under appointment and Appellant. General, White, K. Van de Chief Assistant Attorney

John Steve Kamp, Hanoian, General, D. Attorney Wellington Deputy Michael Louis R. General, Attorneys for Plaintiff and Respondent.

Opinion LUCAS, murdering C. J. Defendant Jaturun was convicted of Siripongs Code, Packovan “Pat” Quach Nguyen (Pen. and rob Wattanapom 187), § (id., bery 211), (All statutory and further burglary (id., 459). references § § are to the Penal he a indicated.) jury Code unless otherwise found used 12022, murder, commission (§ knife subd. during Quach’s as well (b)) as robbery a and but did not find that he used knife when he burglary, felony- murdered Pat. It special further found true the circumstances of 190.2, 190.2, murder-robbery (§ subd. murder (a)(17)) (§ multiple subd. (a)(3)), and sentenced defendant to death. This is automatic. appeal 1239, (§ entirety. subd. affirm in (b).) We its judgment

I. Facts A. The Guilt Phase

The prosecution’s mainly case rested on circumstantial evidence. Accord- set forth in ingly, we the facts detail: 1981,

In December Surachai “Jack” a wholesale Wattanapom operated Grove, import-export business from a warehouse Garden California. He Grove, also a small owned retail store in Garden the Pantai Market. Jack’s wife, Pat, store; managed the Quach Nguyen was a store Because employee. Pat also bought expensive jewelry working sold on the side while (often at the she store) wore several to work and frequently jewelry pieces kept pieces additional her knew he had occa- purse. Defendant this because sionally worked at the store.

Defendant was an primarily employed optical as grinder polisher work, on a 6:30 usually a.m. shift. After his working p.m. he visited girlfriend, Sainampeung “Peung” who lived Cerritos. Vecharungspri, typically Defendant arrived at her between 4 and 5 p.m. house p.m. stayed until Monday, about 9 his December de- p.m. During visit sister, Peung’s fendant asked Netnapa (Noon), supervisor telephone the following that was sick not be morning report coming and would to work. Noon the call 6:30 a.m. placed morning. about the following did not Defendant for work on December 15 16. report 10 a.m. About on December Pat met with one of Pansanguan, Suwat Jack’s warehouse Jack had been on a business and was employees. trip keys to return morning. scheduled Pat Suwat the to her car and gave asked him to meet a Jack Suwat noticed Pat was airport. wearing brooch, string pearls, gold two and a pendant, rings gold diamond a.m., arrived at Quach and 10:30 left the store about Rolex watch. Suwat store noon. the around Vitoon, son, from to call her tried 13-year-old 12:15 p.m.,

At Pat’s and spoke the market; phone answered He the a woman telephoned school. Thai, Vitoon not the was language Because language. in a Southeast Asian few seconds the After a the woman. unable to communicate with was remained on Vitoon hang up. receiver but did dropped woman minutes, by the driving cars to the sound of listening line for about two of hope getting in the occasionally phone Market into the calling Pantai and the store received attempts a He Further response. finally hung up. phone only busy a signal. wife, Patton, Mar- the Pantai 1:30 Suwat’s entered p.m.,

About Deborah her to telephone ket. had car trouble and wished She been experiencing she found a at the When Deborah entered the store husband warehouse. woman, she been said had holding groceries, at the counter who standing her. to assist Deborah for least 30 minutes for a store waiting employee Pat receiver called for but received no She found the telephone answer. on the the cash she it and called lying register; picked up floor near warehouse.

A for the store around Quach search Pat and ensued. Jack arrived at Suwat through with and while Suwat walked p.m. telephoned police As in the back store. he tried store. Suwat entered the dark storeroom of the down, to turn felt on switch he on reached light stepped something, hair, human and screamed. Thereafter Jack walked into the storeroom turned on the light. floor;

Blood covered Pat was down on the splatters lying the room. face she been found in a still- ligature. Quach had to death with strangled blood; wet he had suffered stab wounds to head pool multiple neck, arm. right and defensive wounds were on his He had found hands times; been light stabbed slashed at least 10 condition jagged skin, knife. time the wounds could have been inflicted a serrated The of death for both was estimated to be 12:30 p.m. victims shortly 2:30 p.m. began investigating.

The arrived after police near the on everywhere: register, produce Bloodstains were found cash storeroom, scale, in the from two of the storeroom leading aisle on walls, a in the the store- on water heater and trash can storeroom sink, in the sink. room the bathroom and bathroom leading the floor Blood for samples analysis. were taken arm police right

The also around and a piece Quach’s found cord tied Noon from one piece paper Quach’s body. near letter to paper in of (Noon jacket, of her friends. her was one placed had the letter which house;1 the of she the last time items that had at defendant’s clothing kept seen of the she had the was on Jack informed one jacket Thanksgiving.) Police De- investigating officers of the Garden (Detective McLean Grove that and that he partment) defendant had a record in Thailand criminal have been might for the responsible murders. of the

Defendant arrived at 3 the afternoon Peung’s p.m. house about murders, an bandaged hour than were and bleed- fingers earlier usual. His of ing.2 glass, He claimed he cut himself at to catch a and trying work piece brother, in asked his car. Peung’s Wongwej wash the floormats (Deng), afternoon, Later his Chusit Petsuksom- friend telephoned vilai, $1,000. he his whom owed He Chusit that a friend of told female Sang named had arrested and was by immigration been the authorities money without needed to Sang return Thailand. Defendant said that leave in for Thailand a and him she wished to jewelry week had which given sell to raise money for the to meet at trip. arranged Defendant Chusit p.m. evening, containing at which time bag defendant handed Chusit a bracelet, chains, nine a pieces jewelry: religious two three gold gold pendants, three one of a Defend- rings, which held two-carat diamond. ant asked Chusit to about jewelry bring sell the should estimated that it $4,000. He also him a told Chusit that Sang pay because promised sold, commission on any Chusit some of jewelry he would able to give money him. owed All of the gold for one jewelry, except chains, was later positively to Pat. belonging identified as

The following morning purse December Pat’s was (Wednesday, 16) found in a a was a short dumpster behind in Cerritos. The shop dumpster from distance Peung’s complex house and was located a which shopping housed the laundromat used An search of defendant. exhaustive followed; dumpster every item it removed and examined. In addition to bag, (which eight Pat’s contained purse and wallet still bank cards), had contained police green jacket discovered Noon’s which the letter found Market; shirt; at the of bloods- pair Pantai a bloodstained a size; tained a pants; pair of bloodstained later found to be shoes socks; a a serrated pair twelve-and-one-half bloodstained Robinson inch blade kitchen knife inch Konekut with broken a seven-and-one-half tip; early had had September Noon lived with defendant from late until She still November. during clothes at defendant’s house December. fingers. An examination of defendant’s hands after his arrest revealed cuts on six and a wrapper bandage adhesive an knife; containing bandana wadded forty- cord, inches forty-eight towel; two pieces bloodstained paper Pantai Mar- name bearing envelopes 9-inch inches in three length; nine The physical Market. Pantai from the also ket; slip and a bank deposit the cord found count, dimensions, make-up and chemical strand color arm were right Quach’s around wrapped found and the cord dumpster bandana, shirt, shoes, Hair discovered on identical. hair.3 Pat’s with consistent hair found was

serrated knife. Some of the time he at which Thursday, December to work reported Defendant his supervisor He told to his hands. injury about the questioned her with fight a following suicide tried to commit sister had girlfriend’s from her. away a knife to take trying cut his hands lover and defendant had she whether trial; specifically when asked Noon contradicted this at defendant 15 or and whether on December to commit suicide attempted answered, her, she away knife from cut his hand to take a trying while “No.” 17th, a purchase to make attempted

On the afternoon of the defendant Because credit cards.4 a store one of the department using Wattanapoms’ stolen, the card had been lost the store’s credit card list indicated the wal- through clerk looked asked defendant for identification. Defendant left, car; in his he let and then the clerk that his identification was told return. did not afternoon, make attempted

Later the 4:30 p.m., same about defendant name of Surachai a at a card issued in the purchase Sears store with a credit maintains a house that clearing The clerk credit Wattanapom. telephoned data, instmcted to She was history credit stolen card including reports. had no iden- ask for a clerk that he driver’s license. Defendant told the tification, then security manager spoke and she him The store asked to wait. card that the credit with the credit house and was informed clearing before, The a double homicide. question day during had been stolen the defend- security manager, by security guards, approached two accompanied it did admitted ant asked if to him. When defendant belonged the card not, of stolen they property. “arrest” for possession defendant under placed box; top a boxes; jewelry gold box ring empty a police empty also one The found five box, keys; a containing rings; key rings sixteen jewelry purse carrying small two a cloth for a foreign language; and writing in a piece paper it as as some of with numbers written on well Wattanapom. A brown “courtesy department store out in the name of Surachai card” made contained, key rings hold things, vinyl among other two purse purse was also recovered. containing pearls. ing keys, bag a strand empty ring purse, plastic one and one eleven using one of illegally person a purchases made at two stores On December were Wattanapoms’ credit cards.

Defendant was handcuffed and await arrival security taken to the officeto En police. route defendant that the handcuffs were too complained tight. He was informed that the credit using during card he was had been taken double they murder that the handcuffs would be once reached adjusted security office. chair;

Once inside the be- security office defendant was handcuffed to a chair, cause each hand was cuffed had a fair separately to defendant degree mobility in his hands. When asked his name and address defend- ant said his name Siri” “Jay and that he lived in Costa Mesa.5One of security guards then asked defendant if he identification so that had (the fill guard) could out a for Sears. Defendant reached into his report wallet, back removed his pocket, guard paper and handed the piece from inside the wallet.

Westminster Police Officer arrived a few minutes Department Upstill later, card, placed under arrest for of a stolen credit possession and replaced security guard’s handcuffs with his own. asked Upstill name, defendant his and its Defendant that his name spelling. responded was written on a card his wallet arid that it to it would be simpler copy card; and, from that he then reached into his with assis- pocket Upstill’s tance, retrieved his wallet. Upstill opened objection wallet without flipped it in through card; search of the it out to him defendant pointed when he it. reached Defendant also chain gold asked to remove Upstill from the wallet and it around found the place defendant’s neck. Upstill chain but refused the it in request, leaving defendant’s wallet.

About 5:15 p.m., Detective McLean of the Garden Grove arrived police at the store and was receiving told defendant was under arrest for stolen wallet, necklace, property. He was shown defendant’s and some credit cards. Defendant complained of his hands and McLean noticed pain his fingers were bandaged. car,

Before him in placing defendant that police Upstill explained he would be taken to and his told jail Upstill car would be left unattended. defendant to inform him if if he wanted his car or anything removed from he wanted to make sure the car was locked.

Defendant told he wished to his from Upstill girlfriend’s retrieve picture car, his car. He led the to his police found a Upstill photograph Peung on the dashboard and it placed belongings. with defendant’s personal lived in longer living Defendant once Costa Mesa but was time of his ar no there at the rest. a search until and impounded car sealed defendant’s McLean then ordered Defendant made. was search for evidence No warrant could obtained. fol- McLean station and Detective police to the Westminster was driven lowed. 6:30 about charges the murder custody of defendant

McLean obtained police Westminster property, defendant’s personal In addition to p.m. attempted had card that defendant Sears credit turned over to McLean the it. McLean wallet, inside use, cards found the four credit station, him in placed police Garden Grove then drove defendant to the taken from were thereafter and hair samples an interview room. Blood defendant. room, he wished McLean defendant told to another being

While escorted defendant, nor attorney. question McLean thereafter did to an speak v. Arizona rights. (Miranda did he him his Miranda advise 974].) 10 A.L.R.3d U.S. 86 S.Ct. L.Ed.2d be al- told he would Later that about 11 evening, p.m., calls, tape was instructed and Detective Shave telephone lowed two in the pocket recorder hid a small tape record conversations. Shave in a located telephone to a coat and then escorted defendant sport telephone defendant for hallway of the station. Detective Shave asked it, number, and then stood dialed number he wished to call. Shave noted him while recorded away tape about three feet from defendant and sever- A the telephone conversed. camera was toward pointed television could Shave al the conversation. nearby throughout officers were police understand what hear unable to clearly, defendant’s voice but was finished, in Thai. When defendant being said because defendant spoke friend, or another attorney him to an Shave offered to a second call for place num- declined, the telephone not remember stating but defendant could speak. ber of the other he wished to with whom person her he He told Peung. had telephoned It was later learned that defendant Defendant card. someone’s credit jail was in because he had borrowed amulets Buddha to and remove some Peung go presents, asked to house her he He told Noon. and asked with speak a camera. Defendant then to to her card and asked credit was in because he had borrowed someone’s jail camera, Buddha, gifts Christmas jar, a sugar to his house and remove a a go document, He keys. and his car a family, which he had for her purchased get her to instructed and then objects told Noon where the were located Peung requested and from Noon money hung up, Chusit. When defendant re- mother house. Their their defendant’s mother’s to drive to permission very foggy. nearly midnight let them it was go fused to because residence car and The warrants for defendant’s obtained search police for 18. The warrant shortly morning 4 a.m. on the of December before the resi- The search of nighttime defendant’s residence authorized service. time, arrived dence Also at Jack and Suwat was executed about a.m. that made to the recording at the Garden Grove station translate police search, Christmas Detective Shave. discovered several During police set, consis- store A Robinson knife presents department boxes. wrapped at de- in the was discovered tent with the serrated knife found dumpster, fendant’s residence. search, the tape

In the midst of the the officers were informed translated, been of defendant’s conversation had recording telephone the kitchen they jar for a specifically glass were instructed search stove, found a case and Buddha. items were seized and camera a Those of Pat’s contain Jack’s pieces jewelry matching descriptions dozens of stone, disk, watch, a jewelry. jade green a a a items—including gold Several chains, beads, brooches, necklaces, set of rings, gold two three three four bracelets, as five and five later identified pairs earrings—were positively to the belonging Wattanapoms. bedroom,

In a box in the police eight department defendant’s discovered name, store for some of Pat’s receipts gifts. receipts the Christmas The bore had were dated after her A on which someone piece death. of paper Pat’s also practiced signing name was found. morning.

The car search warrant for executed later bag a Several found samples police dried blood were collected. books, gold Pantai card containing Market bank credit receipts, watch that belonged Pat. afternoon,

Later He told jail. from telephoned defendant Chusit been Chusit he had he had been for card and that using arrested credit whether charged the Pantai asked defendant with Market murders. Chusit stolen, defendant jewelry had been purportedly belonging Sang assured return him it was not. asked how he should Chusit then she the jewelry to instructed contact because Sang. Defendant him to Noon thereafter, knew Chusit tele- and could her. Sang Immediately contact Noon, that she phoned he could Noon Sang. replied asked how reach did not know anyone Sang. named bloods-

Analysis of of the sample defendant’s blood revealed that several scene, tains at the four the items found murder and bloodstains on blood found were with defendant’s clothing dumpster, consistent type. The bloodstains on the from the pieces dumpster—which cord consistent with also Quach’s matched the cord tied around arm—were were in the dumpster the shoes found defendant’s blood. The bloodstains on consistent blood. Quach’s with trial, challenge instead to choosing

The defense no evidence at presented defense closing argument, sufficiency During of the evidence. People’s at the counsel stressed that there was no direct evidence placing on mere suspi- murder He that the case was based People’s scene. insisted cion, rise to did not strong, no matter how argued suspicion, for there was no motive beyond reasonable doubt.” He contended “proof testimony of the jury defendant to kill Pat and and he reminded Quach, and that he had that defendant was a Buddhist monk in Thailand once history of nonviolence. described jury day, deliberated for one and returned the verdicts Additionally, “intentionally

above. it killed” specially found that defendant Pat, both Quach and

B. The Penalty Phase

The People presented no further evidence at trial. The defense penalty argued that defendant was a who had competent cooperative employee a “good” and “caring” job; attitude about his that he once the victim of an robbery armed very that he had been cooperative” “helpful [and] during crime; inmate” police investigation of that that he was a “good and, cellmate, in the words of a a “model who did not cause prisoner” trouble and who that he was a assignments; volunteered for work religious man. The jury day deliberated for one a verdict of returning before death.

II. Guilt Phase Issues

A. The Tape Recording

Defendant asserts the of his conversation fol- tape recording telephone his arrest lowing constituted an unlawful in violation Omni- wiretap, bus Crime Control and Safe (18 2510-2520), Streets Act U.S.C. §§ and violated his to counsel right and his self-incrimination. privilege against

1. Illegal Wiretap secretly

Defendant insists it was Shave to record illegal for Officer “in We telephone conversation the absence of a valid court order.” because, question although whether this claim is us properly before 564 trial,

defendant raised it his motion for new it was not to the presented Code, trial 353.) court at the suppression hearing. (Evid. § event, First, In any we its merits. Officer reject defendant’s claim on Shave did not the use of elec- “intercept” “through the conversation tronic, mechanical, device,” 18 States by or other as United prohibited Rather, Code section his 2510(4). he heard the conversation with normal faculties hearing recording merely memorialized what tape heard. Accordingly, no of a wire communication occurred. interception 1299, v. 1301 (See United States Carroll 332 (D.C. 1971) F.Supp. [“[T]he of one end of a conversation without overhearing recording telephone wires, the actual of a communication interception passing through not intended to be within commu- included the definition of the term ‘wire nication’ but under the statute is another form of oral communica- simply tion].”)

Nor did the constitute an of an oral recording unlawful interception because, facts, communication expec- these defendant had no reasonable tation of privacy. (Cf. v. 90 572 (1979) Suttle Cal.App.3d [153 Cal.Rptr. 409].) The only federal law wiretap prohibits interception communications by “uttered an that such person exhibiting expectation communication is subject justifying not circumstances interception under such expectation.” (18 2510(2).) just- U.S.C. Defendant could not have § ifiably his expected conversation was not because he being intercepted, clearly could see every that at least one officer could hear word he police below, said. As we he had the officer explain no reasonable expectation Thai, could not understand his recorded being or that was not speech that officer for later translation.

2. Right to Counsel

Defendant’s Because right similarly to counsel claim is meritless. him, adversary yet had not his proceedings formally against been initiated right to counsel time under the federal Constitution had attached at the 682, Kirby call. 688-689 telephone (See v. Illinois 406 U.S. (1972) [32 411, 416-418, L.Ed.2d (1981) 92 S.Ct. v. Bustamante 1877]; People 88, 576, Cal.3d v. States Gouveia Cal.Rptr. 927]; P.2d United [177 146, 153-154, (1984) 467 2292].) U.S. 187-188 104 S.Ct. L.Ed.2d [81 Nor was this a trigger “critical sufficient to stage” proceedings (Bustamante, right to 30 Cal.3d counsel under our state Constitution. supra, 99; 595, 609, 610, see v. fn. 15 p. People Houston Cal.3d 724 P.2d 1166].) Defendant was offered the opportunity that, wished, call in an place so if he he could contact telephone part attorney. He cites no amounts to a authority suggest that such a situation the state Constitu- under to counsel right stage” triggers “critical which to a amounts an event that such to hold It would be unreasonable tion. hold a be to it would anomalous stage proceedings, critical or presence counsel’s waiving call may not such a without place defendant having attorney present. an Self-incrimination

3. self- against his right violated recording the tape

Defendant claims statements, however, result of custodial were not the His incrimination. by the police; not questioned Defendant was interrogation equivalent. its call. allowed to make a simply telephone he was con- on his illegally “eavesdropped” asserts Officer Shave Defendant also however, in near above, view standing plain As Shave versation. noted defendant, the conversa- side of obviously could overhear defendant’s hear Thai, could By in he realized Shave tion. defendant showed speaking said, Thai. By tape what he but that could not understand hoped the officer conversation, than more would nothing Shave recording accomplished by telephone. been in Thai at the have achieved an fluent stationing officer A similar in Cal.App.2d situation arose v. Bazaure held murder a Cal.Rptr. 831], in of suspected which two defendants in that were fluent nearby conversation unaware that officers Spanish, right privacy, In their language. rejecting a claimed violation of of of the other Appeal parties Court held: nor “Neither [defendant] they because Possibly security were false of feeling induced talk. a sense freely spoke foreign attempted talked tongue, two defendants De- story. was involved. trickery concoct a No element of the officers out to . . . not set sought fendants to trick the The officers did officers. When the officers outwit outsmarted defendants. Defendants themselves. (235 invaded.” listened to no right conversations privacy here, reasonably not p. defendant was Cal.App.2d 34.) As court held Thai. entitled to believe the officer could not also understand 4. Use Number Telephone use the to obtain and

Defendant also asserts the were entitled police failed to raise called. Because defendant telephone number “ below, general us. objection this the claim is not before properly ‘[T]he evidence will not be questions admissibility rule to the relating [is] timely in the objection on the absence appeal specific reviewed v. (People on ground urged appeal.’” trial court sought 431, 919, 5 Privitera (1979) Cal.3d 591 P.2d Cal.Rptr. [153 A. 178].)6 L.R.4th event,

In any con safety defendant’s claim is meritless because public justified cerns his the A use police might conduct here. defendant witness, destroy call telephone to instruct another to kill or threaten a evidence, or to these investigation. otherwise In view hamper police of considerations, may first to disclose police require may telephone number of the being to whom the call is and person placed, 851.5, overtly then call place the and (consistently with subd. (b)(1)), § listen to the defendant’s with non-attorney-client side conversation out his invading privacy his right implicating without privilege against self-incrimination.

B. Seizure Wallet of Defendant’s above, store,

As noted when Officer arrived at the Sears he asked Upstill name, defendant for his its Defendant there a card spelling. replied in his wallet which bore his name and that it would be if simpler Upstill it copied from that card. Defendant his then tried extract wallet from time, however, back pocket. this By defendant’s hands had been handcuffed back, together behind his it difficult for him to remove his wallet. making wallet, Upstill helped remove the it in front of defendant. opened cards, Defendant did not object. through then for Upstill flipped looking the one that bore defendant’s name. He various store department noticed cards, all the name bearing a bank card the name of an Wattanapom and unknown third person. bearing When reached the card defendant’s Upstill name, defendant pointed it out to him. then the wallet. kept Upstill

Defendant moved to suppress the wallet and credit cards therein, discovered constituted an claiming seizure of his wallet unlaw that, ful search incident to arrest and even defendant had consent assuming search, ed to the Upstill exceeded the of the consent. The scope search, consensual, asserted there was no if but there a search it was and that in any event wallet been inevitably contents would have discovered in the course of a found booking search of defendant. court defendant had consented to Officer Upstill’s act.

“Our role in reviewing the resolution of is limited. The question this issue of the voluntariness of the instance consent to be determined in first reject 6We as telephone meritless defendant’s confes claim that the number constituted a sion anor admission. to judge ‘The power stage fact; process, in that by the trier evidence and testimony, weigh witnesses, conflicts resolve credibility all inferences, appeal presump court. On in the trial is vested draw factual findings— court’s the trial exercise of that power, proper tions favor by substantial if supported upheld express implied—must whether 99, 19 Cal.3d v. James (People evidence.’ [Citations.]” 1135].) 561 P.2d claim, does support substantial evidence Contrary to sug- defendant’s followed simply The record shows Upstill court’s finding. in his wallet. contained card name from that he defendant’s gestion copy contrary, defendant act; on the to object Upstill’s At no time did defendant did not to it. If defendant he got when out the card for Upstill pointed to make ample opportunity he had his wallet through intend to look Upstill finding. the court’s sufficiently supports We believe the record that known. consent. of defendant’s scope stayed We within Upstill also believe the name bearing the cards came across Upstill. The record discloses that name. It defendant’s bearing he reached the card before Wattanapom that, the wallet and found opened had Upstill would be anomalous to find first, would have been within name the search card with defendant’s consent, bearing cards because first noticed Upstill but that scope of the consent. The exceeded the scope name the search Wattanapom, eyes to this evidence. not to close his required officer was event, inevitably have been the wallet would any In the contents of Police Garden Grove by the booking performed discovered. The search previ wallet had Upstill have included defendant’s would Department booking observes that accelerated itemized its contents. Defendant ously 711, 34 v. Laiwa Cal. 3d Pepple (1983) (See searches are no allowed. longer here, 503, At the time of the search P.2d Cal.Rptr. 1278].) 728 however, 669 [195 14 Longwill (1975) Cal. 3d (See v. they permissible. were 297, 753, Laiwa.) 943, P.2d overruled 948 538 [123 any have been suppressed, should Finally, assuming even the evidence v. beyond a doubt. (Chapman error was harmless reasonable California 710-711, 824, S.Ct. 24 A.L.R.3d U.S. L.Ed.2d case, the absence this In of the other evidence 1065].) light incriminating credit cards three additional carrying was the evidence that defendant the jury’s have affected name would not bearing Wattanapom with him verdict. Car Discovery

C. above, location of existence and noted discovered the Upstill As that, lock his vehicle if he wished to defendant’s car him by informing it, take anything out of he should make the before he was request transport- and, ed to the car police Upstill station. Defendant directed defendant’s it. request, retrieved a from The was Upstill photograph vehicle impounded and later The search pursuant searched to a warrant. uncovered Pat, a gold watch identified as bearing sales the name belonging slips Wattanapom, and dried blood. argued

Defendant an designed below that remark was elicit Upstill’s The incriminating response right thus violated his to remain silent. People insisted that no interrogation took and claimed place, Upstill “merely providing chance to his automobile secure [defendant] valuables which concluded might contained therein.” court defend- ant voluntarily revealed police the location of his to the requesting car that a photograph be retrieved from In court ruling, explained it. so it “specifically officer’sconduct not a subterfuge designed [found] elicit statements from the defendant and further [found] statements freely, voluntarily and made.” spontaneously [were] First,

We see no reason to with the disagree court’s determination. car, record discloses that Upstill did not know defendant owned a but that he made the only statement to defendant because it was his to extend policy this offer anyone to in a arrested mall. shopping addition,

In Upstill’s statement legitimate warned defendant of concern: car, one, time, Defendant’s if he had be would left unattended for some unlocked, if the car was or if it contained items of value which defendant theft, did not want to exposed the risk of defendant should make his request before he was booked at the it more station and became difficult to police locate and secure car. We the court therefore conclude did err admitting the evidence discovered of car. during the search D. Drawing the Blood Sample of

The blood sample drawn from defendant was found to be consis tent with six of the blood stains discovered at the murder scene. Defendant claims the sample drawn in violation of Fourth Amendment right be free from unreasonable search and seizure. The assert the People sample was drawn analyzed for the of or alcohol the event presence drugs statements, defendant made unnecessary and that it that a warrant first be obtained before the sample was taken. In v. People Scott Cal.3d 284 F.2d held, we

123], body must be incident to a warrantless invasion “[a] valid arrest and may only occur a limited range exigent under [citation] or loss to prevent the need circumstances include These circumstances. emergency. evidence, a medical or the existence of [Cita- destruction alcohol, (Id., performed tests “blood for 291-292.) Although pp. at tions.]” routine, minor, conditions, as consistently upheld have been under medical sample a blood the decision draw p. 292), reliable” highly (id., will be found.” that such evidence “must be founded on a ‘clear indication’ (Ibid.)

Here, of defendant’s for the invasion justification the purported light possibili alcohol in drugs test for the existence of or body was to no observed police make some statements. The ty might alcohol, nor drugs the influence of indication that defendant was under talk. We therefore they might decide to suspect did have reason lawfully drawn. that the blood was disagree finding with trial court’s Nonetheless, harmless. we find the error drawn, in the

At the defendant was the prime suspect time blood was been inevitably Pantai Market double murder. A blood would have sample used him against drawn and would have disclosed the identical information observe, sample at trial. As the even had the court ruled blood drawn, blood unlawfully it could have later ordered new sample the blood sam- prejudice; drawn. Defendant is thus unable to demonstrate drawn at the station would have the same information whether ple provided Hence, in finding error or after the the court’s suppression hearing. lawfully beyond (Chapman, blood drawn was a reasonable doubt. harmless 711].) 386 U.S. at L.Ed.2d supra, p. p. [17 Nighttime E. Authorization Service for

When for residence and police search warrants sought vehicle, they also service. Detective nighttime authorization for requested 3:15 Orange County judge McLean an Court about telephoned Superior “I a.m. to obtain the him: that request nighttime warrant informed easily service of this warrant be The stolen granted. property transported sold. was allowed to make the one call re- phone and/or [Defendant] in He to the He made that call to a location Cerritos. quested. spoke only. in Thai I believe this to us from prevent he did answering party of whatever contraband evidence is instructions overhearing dispose service for the resi- still residence.” The authorized judge nighttime his was executed dence but not for the vehicle. The warrant for residence around 5 a.m. on two nighttime attacks the service authorization

Defendant First, material facts when he he claims McLean omitted grounds. purposely

failed to under sur- judge inform the that defendant’s residence was police Second, veillance and police observed no movement within house. he claims his support conversation Thai was insufficient to McLean’s belief that he was stolen find both attempting property. We dispose contentions meritless.

First, we reject that the were “material.” We have premise omissions held that “facts are be disclosed if omission ‘material’ and hence must their would make substantially misleading.” v. Kurland (People affidavit (1980) 28 618 P.2d italics in 213], Cal.3d original.) The failure to inform the residence under judge police substantially did mis- surveillance not render McLean’s information Nor leading. substantially do we find it that McLean failed to misleading inform the that no residence had observed: judge movement within the been fact the officers not see did not that in could movement mean fact no one police was inside. The were not to wait until their fears required were realized before authorization We nighttime for service. there- seeking fore believe the omissions did not render the affidavit mislead- substantially ing and that the would not have judge nighttime refused authorization had he known these additional facts.

Second, we find belief attempting dispose McLean’s that defendant was of incriminating logical evidence to be a reasonable and from inference defendant’s conduct. the judge nighttime Whether should have authorized service on the basis this belief is a left to sound discretion. question (§ here, 1533.) Under the facts we find he abused that do not discretion.

We therefore with agree given the court’s that the information finding judge provided authorizing sufficient basis for service. Accord- nighttime ingly, we find no error seized admission the evidence from defend- ant’s residence.

F. Juror Misconduct verdict,

Six days jury after the guilt returned its defense counsel brought to the court’s attention a juror matter misconduct.” The infor- “potential mation provided sketchy. attorney was An contacted counsel had defense clients, and informed him that had one of his a Mrs. called to Meyers, tell him that her in case daughter juror was a that her Siripongs daughter wanted to know it when the Defense what meant defense rested. counsel informed the that that yet investigated, court he had not but court, Juror Pitts suspected juror was the in Counsel also told the question. “I’m in no for position this time to make a motion mistrial.” He to determine juror suspected be made of the requested inquiry that case. any contact concerning nature of It wrong person. it interview the that did not want to

The court replied appear to would be available attorney counsel whether the asked defense indicated The court February 22; yes. said before the court on counsel his the court attorney convinced after the questioned Juror Pitts would juror. correct both case information concerned the correct then counsel Defense February attorney appear. On failed to the court take between suggested place “that an camera hearing kind has any to or not misconduct of Pitts determine whether [Juror] . . . occurred and to determine nature of the communication [between] think, for, are I Meyers, and Mrs. we ask proceedings Pitts The [Juror] [fl] circumstances certainly of a nature. would under most They commonsense this trial.” reveal or not a took that involved place whether communication addition, In secure until he could requested continuance caution,” an missing attorney’s presence. agreed The People “[o]ut ruled conduct inquiry should take The court then that it would place. it but jury, outside the and the as hearing presence requested, of counsel continuance, to a second denied defendant’s motion without for a prejudice made to the objection motion if the facts warranted a No continuance. court’s stated camera procedure. asked her hearing,

At the camera Pitts revealed that she had Juror mother, cleared “What table is happens when the [defense counsel’s] off?”—an apparent resting juror’s reference to the defense its case. The relayed lawyer, eventually respond- mother her and he question to own ed that it meant mother probably juror’s the case was almost finished. further, relayed then message juror to When questioned Juror Pitts. defend- exchange maintained the had not influenced her determination of innocence, strictly ant’s the court’s guilt and she abide promised admonitions for the rest of the trial. inade

Defendant now that the in hearing complains camera and to be quate. He claims the procedure rights violated due process trial, present at all critical as as his assistance stages right well facts, committed “misconduct” He that on Juror Pitts counsel. insists these error, allowed to reversible he should have been amounting and that question her. what got to these claims is defendant

The short answer that procedural he Pitts”— in camera the asked for—an “between court and hearing [Juror] note that any and he We also objection hence waived to the used. procedure used, a an in similar situa- procedure identical with apparent approval, 504, tion in v. 511-512 P.2d People (1950) Woods 35 Cal.2d [218 981]. Nor can we error. De- agree with defendant’s assertions of procedural fendant cites the in violated to convince us that camera nothing procedure his due us court abused its process rights, nor does he convince that the facts before it. discretion his motion for a continuance on the denying recently We have the rule that “the accused is not general reiterated bear to be no reason- personally present entitled which during proceedings able, substantial to his charges against relation defend the opportunity him, and that his ab- upon burden the defendant demonstrate ‘[t]he sence or a fair trial.’ his case denied him prejudiced impartial [Cita- 121, v. (People Hovey (1988) Cal.Rptr. Cal.3d 573-574 tions.]” [244 749 P.2d 776].) might defendant his have served Although presence insists “as a vivid and reminder to Pitts that life and perceptible juror [defendant’s] liberty jurors, depended basing the deliberations of twelve upon impartial alone,” their verdicts on the the evidence he fails central recognize and, so, juror issues were whether if communicated with her mother below, whether explained communication constituted misconduct. As both of these were resolved questions addressed and adequately court. ability The in hearing camera did not defendant’s to “defend impair him”; charges nor trial against did his render the unfair. absence

Nor does defendant us that the violated his persuade procedure employed concede, right general to assistance of rule People counsel. As ex communications forbids parte jurors. between court and This rule protects, (E.g., v. among things, other defendant’s to counsel. right Garcia That Cal.App.3d 468].) purpose, Defendant, however, does not here. through appear implicated counsel, communication, even suggested and authorized the set the Furthermore, for the agenda reported proceeding. inquiry was been were to the Had transcripts provided defense. disturbed objected about the nature in a scope meeting could have motion for a new trial. His failure to do this commu- suggests so authorized nication between the with juror and the court consistent counsel’s expectations, certainly We reject therefore prejudicial.

claim that the used violated his to the counsel. procedure right assistance

Finally, even of defendant’s claims assuming procedural merit, has or did concluding juror’s the court erred in action assuming “misconduct,” not amount to we no The tran perceive prejudicial error. of the in her script hearing juror camera discloses asked mother only it what meant defense table is “clean” “cleared off.” when counsel’s that the case attorney was mother’s given through juror’s The answer the nothing dealt with The communication almost probably completed. court, her and, did not affect decision to the juror substantive as the stated the trial was most, that her belief merely on the verdict. it confirmed At Woods, 504, 511-512 35 Cal.2d supra, almost at an end. v. (Cf. [in of hung concerning definition juror camera and judge discussion between not did require and therefore jury could not have prejudiced 114, L.Ed.2d v. 464 U.S. reversal]; Rushen Spain [78 juror concern- judge and 104 S.Ct. communication between parte 453] [ex Panthers “was the Black association with a violent crime and with ing Thus, any affect juror’s impartiality].) innocuous” therefore did not 386 U.S. beyond (Chapman, supra, error was harmless a reasonable doubt. Rushen, 117-121 at 464 U.S. at pp. p. p. 711]; supra, L.Ed.2d [78 272-275].) L.Ed.2d at pp. Recording

G. Playing the Tape case-in-chief, to admit the tape Before the of their the People sought close conversation, as a as well trans- recording made of defendant’s telephone convey to They tape lated the to admit the transcript recording. proposed voice, jury to the the and wished to admit commanding tone of defendant’s and Noon transcript Peung to establish that defendant requested remove his incriminating evidence from house. it contained claiming admission of the objected tape,

Defendant deletions, of the as a many tape too to make “the content pauses, gaps that, in gaps whole” admissible. He the court to find urged light section, by its outweighed value of the unintelligible probative tape Evidence Code prejudicial effect and therefore should be excluded under 352.7 section one translated

The court was two provided transcripts tape: with by There the court interpreter. one translated interpreter Both insignificant transcripts. interpreta- were differences between two listeners to clearly instructing go tions established that defendant was his stove, the house on the camera immediately sugar jar retrieve case, Buddha, receipts and the sales gifts from a the Christmas something “showing voice tones appeal first there is no Defendant claims for the time on convey English,” and hence language affects to voice tones in the Thai similar emotional however, assertion, commanding voice. tape spoke in a This could show that defendant event, In those who listened properly raised before us. was not below and therefore not court, did attorney—apparently not share tape—the prosecutor, and the defense not, fact, dem speculate tape did appellate We reason to counsel’s concern. see no proposed. prosecution onstrate what the keys

from the box in his He find to his bedroom. also instructed them to the car, car retrieve his money and to some from Chusit. get admissible, The court ruled the finds that the tape stating: “The court conversation that the defendant on the is relevant phone highly conducted a indeed valuable of for evidence the because it’s piece prosecution obvious from the transcript the court prepared by interpreter one the [both was, and the one prepared defendant’s that the defendant interpreter], fact, attempting to conceal fruits of his crime and the means he used to the crime.” [commit]

A finding admissibility as to of evidence under Evidence Code section 352 is left to the sound of discretion the trial court and not be disturbed will unless it manifestly constituted an abuse of v. Hall (People discretion. (1980) 112 con- Cal.App.3d Cal.Rptr. 149].) As defendant cedes, tape may even if recording portions admissible substantial it (Id., Here, are unintelligible. p. 126.) at spite unintelligible portions, clearly tape demonstrated efforts to defendant’s remove incriminating evidence from his home. Comprehensive of the transcripts tape manifesting his attempt destroy relevant evidence were made by interpreters. both facts, Under these we cannot find an abuse of discretion in admitting tape recording.

Nor do we share defendant’s concern the unintelligible portions jury left the tape speculate tapes contained “further evidence of culpability.” The portions were understandable estab- tape lished defendant’s to have every of evidence attempt incriminating piece from removed his residence. We decline to as to indulge speculation what “further evidence of culpability” jury imagined. could have possibly H. Admission Statements to Upstill of Defendant's Officer

After Upstill obtained from wallet the defend- bearing defendant’s card name, ant’s the officer an He sat in began inventory wallet’s contents. defendant, a chair next to placed through notebook and went lap, the five credit cards.8 I explained, He “as I taking writing cards them I down so could inventory my] them later I them could put [in [and] . . . . . . .” report When a First Interstate Bank card Upstill reached Nikkou, the name bearing Behrooz denied he had spontaneously card, stolen the and claimed it had in the mail. come addressed, claim Defendant’s that this an search constituted unreasonable and seizure ante, pages 566-567. ground on the this statement sought counsel to exclude Defense silent. to remain right in violation of defendant’s that it was obtained court, not a subter however, officer’sconduct was “specifically [found] further the defendant and elicit statements from fuge designed [found] voluntarily spontaneously freely, statements [were] made.” He conduct Upstill’s his on views appeal.

Defendant renews contention him” and evidence confronting against as of with tactic “[a] [defendant] claims, with the card only showing in possible purpose “the [defendant] nothing respond.” someone name on it to if he would There else’s was see Indeed, the of events. the defendant’s the support interpretation record as he record did show defendant the credit cards Upstill indicates that not inventory. was conducting

“ Arizona, U.S. on a Miranda 384 ruling supra, trial court’s [v. ‘[T]he A it is erroneous.” may by issue not be set aside us unless “palpably 436] ” ruling erroneous is one substantial evidence.’ palpably lacking support 522, 317, re (In 549], Eric J. 25 Cal.3d 601 P.2d (1979) Cal.Rptr. [159 italics added in Eric We the record J) Upstill’s believe demonstrates conduct neither a custodial nor its interrogation equivalent, was functional voluntary. and that statement trial record supports court’s ruling. event, any

In clearly error was harmless. 386 U.S. (Chapman, supra, above, evidence, from p. 24.) As set out there was additional ample apart his brief statement to murdered Pat and Upstill, proving had Quach and stolen Pat’s and credit.cards. jewelry

I. to Testify Failure References Defendant’s

Defendant asserts commented on his failure prosecutor improperly record, testify. by We have examined the three cited especially pages counsel, have found no find the comment. we improper Accordingly, claim meritless. Special

III. Circumstances Issues First, makes of error. he asserts that Defendant two related claims 2.50 on a modified version CALJIC No. instructing jury pursuant trial, presented during guilt jury the “other crimes” evidence Second, ... on to kill.” somehow “misdirected the crucial issues intent that, did jury its despite express finding point, claims special actually Quach. not find he killed Pat and intentionally

Defendant’s premise—that jury finding intent to kill was required 79, (Carlos this case v. Court Superior Cal.Rptr. Cal.3d 131 (1983) [197 672 P.2d 862])—is no v. Anderson longer valid. As we explained 1306], Cal.3d 1138-1148 742 P.2d intervening decisions of United Court led us to recon Supreme States insists, Therefore, sider and overrule Carlos. even as defendant assuming, the jury was for kill” some reason on its inquiry, misdirected “intent to special thereby circumstance are findings affected. Penalty

IV. Phase Issues A. Criminal Record From Thailand Defendant's

Defendant claims the court in make a prelimi erred to refusing nary ruling excluding evidence his in Thailand. concerning criminal record maintains, He “the court trial ruled that if his mother called [defendant] and some of his close friends as in the mitigation testimony witnesses and if these witnesseswas not restricted to the issue whether not or [defendant] of of violence, had a propensity then ‘unduly the court would not restrict’ the for from prosecution witnesses if were aware asking they had [defendant] been convicted of a felony (Italics Defendant asserts added.) [in Thailand].” this perceived limitation on his right to evidence present impeach without ment resulted in his counsel’s decision not to call to the some of his stand claims, planned witnesses in mitigation. As a consequence, defendant suffered prejudicial error. Our review of the record reveals that defendant has mischaracterized the court’s event and that in no error ruling, occurred.

The People they informed the court that had evidence two “rob- prior of bery” convictions that defendant in of which re- (one suffered Thailand a sulted in year two-and-one-half term), they and that wished to use prison this information to cross-examine defense witnesses.9The foundation for the People’s information awas certified of defendant’s Thai sheet.” copy “rap Defense counsel a admissibility on of the requested preliminary ruling the The priors. court on the issue until court postponed ruling interpreter the confirmed that the Thai violence. convictions involved force or

At the next Bangkok the the court hearing, People police informed had authenticated the The literal sheet as to defendant. trans- rap belonging read, lation of the offenses part, defendant committed “an pertinent offense dishonesty, of involving away the another taking property or person persons.” the Because the did not contain element of definition (nor any form) purposes The evidence was never offered for of estab was it admitted 190.3, lishing “aggravating (c). (b) an under factor” section factor or fear, into to inquire the the prosecution court refused to allow force or testimony defendant was Thai to rebut defendant’s convictions violent. however, time, ruling refused to give preliminary the same the court

At if the convictions into inquire to whether would allowed as veracity.10 De- honesty the defense introduced evidence defendant’s counsel, unsatisfied, “I as follows: want summed up request fense still . . to be circumvented testimony of . not to be attacked or my witnesses character relating questions the prosecution’s asking [defend- reiterated, The court of misdeeds.” past as misconduct evidence ant] to, I to, until you fails give preliminary ruling “The court or chooses not that the court already you evidence. I’ve one commitment given hear the from law; I’ve precluded prosecution feels is accordance with go as as the court will on into the of force and violence. That’s going area far (Italics added.) the issue.” Thus, assertion, contrary did not restrict to defendant’s court testimony of to his for nonviolence but propensity defendant’s witnesses restricted from into defendant’s criminal prosecution inquiring instead to show refused to rule record violent. court simply blindly whether it would permit prosecution inquire witnesses, “Have heard that has suffered a conviction for a you defendant involving dishonesty?” crime first the extent the evi- knowing without brought dence out on direct examination. explained, anticipate discussing 10Thereafter defense counsel “I that not be the as we will However, pects veracity. examining as of truth we will be into areas such [defendant’s] concern, religious practice the Buddhist Is the commitment and fact that does the faith. going religious interpret court then to the fact that these.". . are a character trait for beliefs veracity?” truth and responded, enough religion to make The court “I don’t know about the Buddhist to able point open a whether the door not. In the event there is an determination this that will or are, among explained the explanation of what the tenets of Buddhism tenets it’s those teachings

jury appreciation aspect honesty, is a that there devout for the that if one the things veracity, if comes and one of the that all Buddhists follow are issues of truth and evidence, you considering inquiry possibility then risk the of the court the defend- into [into dishonesty]. absolutely involving I the record ant’s convictions Now want make [][] clear, you perfectly feeling appears because it have some I have a desire or intent witnesses, my your your absolutely ruling ... examination not true. restrict and that is total, absolutely by have discretion with no this court whatev- You unfettered restrictions testimony you your only thing er from all of . . . The that the court wish to elicit witnesses. you preliminary ruling, pre- give People to do which I are has endeavored have done. using prior appear inquiry charges of the which to the court’s mind at this eluded from point robbery. They appear lacking in ele- opposed to be theft as to a true to be somewhat necessary [they] aspects so that ment factor with of violence and force and fear would lawfully People apprecia- properly impeach a witness that has a character allow only categories issue that the court of the defendant’s lack of those of conduct. That is the tion you go prosecution point, I how will will restrict the on at this the reason have no idea far for your (Italics added.) examination." Moreover, assuming even ruling. We find no error in the court’s to allow determination be seen as tantamount to a ruling preliminary could no veracity, perceive or we the issue of truthfulness impeachment limited to witness, that, other a defense error. It is established well “[w]hen accused, himself, reputation than the testified to the defendant has of acts or he has heard whether may of the witness prosecution inquire testimony.” (People by conduct the defendant inconsistent with witness’ So 105].) 532 P.2d v. Wagner Cal.3d about the acts or conduct as the faith belief that long good have a People (Ibid.) they may so inquire. which took they actually place, wish to inquire such basis to Clearly support a sufficient the authenticated sheet formed rap a good faith belief. under cross-examination claim that reject

We also whenever phase at the penalty Evidence Code section 1102 is impermissible show con rather than to character testimony mitigation is introduced to mis right A has no formity trait. with a character particular guilt testimony either jury during lead the character through one-sided elicit entitled to or penalty trial. We do not believe that defendant honest, to preclude at the same time testimony that he was suggesting us with provides from Defendant contrary evidence. introducing no authority for his position. testimo- to introduce

Defendant also he should have been allowed asserts ny to and a son” without good the effect that Buddhist he was “a devout way in no prohibit- fearing into his Thai convictions. Defendant inquiry As son.” “good ed or he was restricted from evidence that introducing the characteris- as he that one of long testimony showing did not introduce introduce free to honesty, tics of a he was “devout Buddhist” was truth Thai priors. this evidence as well fear of impeachment without noted, defendant’s We As also fail to see defendant was prejudiced. how open- without mother son” “good could have testified that defendant was convictions, further stated unless she ing door to into his Thai inquiry Moreover, evidence introduce that he did was truthful or honest. defendant elicited that phase, he was “a devout Buddhist.” During guilt Thailand monk in from a Buddhist prosecution witnesses that he had been re- Defense counsel every day. and that he Buddha continued to to pray trial. at the penalty minded the jury during closing argument these facts B. Alleged Prosecutorial Misconduct trial, on the basis for a mistrial

During the defendant moved penalty call a He to sought alleged prosecutorial intimidation of defense witnesses. offer of proof, an requested The court to the claim. support witness would father girlfriend’s that defendant’s counsel told the court defense Attorney District hallway, in the “the discussion testify that a recent during Noon, witnesses, is, they that Bea stated to the may have [defense] to threat “an implied and that this was telling,” are they know more than they know it responded . . . .” The court the two witnesses “believe[d] too,. call the the motion to . .” and denied both they telling, more than are and the for a mistrial. witness motion statement, more than know “you

We the court that agree with finding prosecu The cases intimidation. you telling” are does not constitute here, was no threats; there contain actual uniformly torial intimidation reversal Moreover, not warrant misconduct does threat. such assumed v. Bolton (People the defendant has shown prejudice. unless Here, there is no 396].) 589 P.2d Cal.3d fact, immediately after the testify. In evidence that the witnesses refused mistrial, to be allowed to this defense counsel asked court denied motion for concerning Noon and cross-examination possible Bea free from put the court denied only defendant’s misdeeds and conduct. It was when past ante, 576-579, motion, that defense counsel this second pages discussed see present testimony. possible not to further We therefore fail to opted from statement to the witnesses. resulting prejudice prosecutor’s Families C. The Prosecutor’s Victims’ Reference stated; wife you saw the During closing argument, the “Now prosecutor man, you testify you heard her heard of the deceased Vietnamese crime, I don’t family. her talk about her In circumstances of the considering of horrendous think we have to be blinded of these impact types enormity taking just offenses on those who are left behind. It is not involved, that is left on those who one’s life that is but it is impact survive, least certainly the near and dear. And I think that is a factor that ifo, family is both as far as the you thought Wattanapom some might give concerned, have family far as the Victims Quach concerned and as is [fl] by jurors, and to be listened to and to be addressed rights recognized it, if the evidence warrants jurors courage, impose must have the if that’s what the evidence directs. death that’s what law and penalty system satisfied that in our does concept prevail, And we are [fl] . .” enormously are . . aggravating circumstances of this crime mistrial, claiming prosecu At this defendant moved for a point jury by making and the biases of this tion was to the “appealing prejudices motion, instructed the The court denied the but mention of the families.” families further. not to refer to the prosecutor

580 recently

We reviewed this issue in v. Ghent 43 Cal.3d (1987) 739 People 82, P.2d made a Cal.Rptr. 1250], very 739 which the prosecutor [239 argument similar to jury. We noted that the United States Supreme Court has held on impact formal evidence on the of a crime the victim’s family to be and v. 482 Maryland (1987) inadmissible U.S. improper (Booth 496, 440, 448-452, 2529, 502-509 107 2532-2536]), L.Ed.2d S.Ct. but [96 argument, may that mere on subject, without instructions not be prohi- bited Booth. at 44 by (43 771; (1987) Cal.3d see also v. Miranda p. People 57, 594, 112-113 Cal.3d P.2d Cal.Rptr. “patently 744 [241 1127] [Booth distinguishable”].) Miranda,

Here, as in Ghent The distinguishable. we believe Booth is mild”; prosecutor’s comments were “brief no was introduced evidence by the or substantiate prosecution, highlighted closing argument, to impact families; of the crimes on victims’ and the was not jury instruct- ed to consider the victims’ families impact reaching crimes on its penalty decision. We error. perceive prejudicial no 8.84.1) D. Mitigating Instructions on (former Evidence CALJIC No. 8.84.2) and Sentencing (former Discretion CALJIC No.

1. (k) Former CALJIC 8.84.1—Factor No. 8.84.1, jury was instructed the terms of former No. CALJIC factor on the (k) (See v. scope mitigating People evidence. defendant’s 858, 878, 309, Easley (1983) 813].) Cal.3d fn. 10 671 P.2d Cal.Rptr. [196 512, As have we held in v. Brown Cal.3d 440], all pre-Easley P.2d we will review footnote whether, record, cases to determine the jury the basis the whole adequately duty informed of its to all of relevant consider the defendant’s evidence, mitigating whether not it related to the offense. capital Having here, done so we conclude there “factor error. (k)” was no First, the prosecutor said to consideration of nothing suggest jury’s defendant’s evidence the former in- mitigating limited improperly contrary, struction. To the to “all” of jury told the consider the evi- “nonviolence”— dence—including penalty evidence of phase “for what it is and it the which it is give you think due.” weight similarly. jury

Defense counsel He it was view defend- argued told ant as “a person, background capabilities, consider his [whole] live,” the contributions he society able to make if allowed might are you may mitigating “these matters that as a factor.” consider The told this court message. reinforced Finally, the court’s instructions in mercy for the defendant pity, sympathy, the it could “consider jury instructed, testimony further the It appropriate penalty.” deciding “[the] . . . are good and his conduct showing present capabilities should “you factor” and may mitigating consider as a you matters that fac- the specific of circumstances to limit consideration your mitigating to the case relating consider other circumstances may You also tors^] or to defendant, sentence.” ... as for not the death imposing reasons the whole, instructed jury record as a we find Viewing adequately error (k) and that no factor occurred.11

2. No. Former CALJIC 8.84.2—Brown in the of former jury language The was also instructed unadorned Brown, v. 40 Cal.3d No. 8.84.2. As we in explained People supra, CALJIC 512, 536-544, 1222, v. 42 Cal.3d 1276-1277 Allen People 849, 115], certain circum might 729 P.2d this instruction under sentencing jury stances tend to mislead a into its believing (i) reasonable is to be a mere responsibility discharged “counting” aggravating factors, sentencing or that it to arrive at its mitigating (ii) permitted whether having decision without exercise its moral discretion and decide (Allen, supra, death for offense and offender. appropriate penalty is this 1276-1277.) Cal. 3d at pp. Brown, misled the jury supra, Neither counsel on the first aspect 512. The the number jury, “[y]ou up Cal.3d told the don’t count prosecutor factors; you to a aggravating mitigating weight give particular determination, know, factor much your you is own how or how important weight weighing factor entitled to. And it is the ultimate particular process Similarly, that we are concerned with.” defense told counsel argument, In refusing a related the court in asserted claims erred to delete the ly mitigating rejected “inapplicable” factors CALJIC No. 8.84.1. We have this claim from Ghent, Miranda, supra, 44 People supra, (1977 law), v. 43 Cal.3d 776-777 v. law). (1978 Cal.3d 104-105 Similarly, denying request mur- defendant asserts the instruct that his court erred No. aggravating der not in CALJIC conviction “was itself an circumstance” under of. 8.84.1, (a). (a) may provides jury Factor consider factor that the “the circumstances present proceeding crime the defendant was and the existence of which convicted any special jury consid- found to was not instructed that it could circumstances be true.” determining agree jury impose the er the itself in We that the could not crime the sentence. however, court, penalty simply death because a murder. The trial defendant had committed 8.84.1, properly jury not authorize language instructed the in the of CALJIC No. which does conviction, jury but instead to consider the bare that defendant has suffered murder fact on, see, how surrounding speculate and decline circumstances it. We therefore fail to jury could have been misled. count,

jury weigh, to not and that any one factor alone “mitigating standing is sufficient to a decision that support life without is the possibility parole preferred and appropriate punishment Finally, this case.” the court illu- minated the by weighing process “[a]ny twice fac- instructing, [mitigating sufficient, alone, may be standing to a support decision death is tor] the Further, instructed, appropriate punishment this case.” the court circumstances, is the combined of the weight measured aggravating “[i]t against the combined weight circumstances which is deter- mitigating minative. You are not to merely count up number of circumstances on either side.” consideration,

As to the second we note the jury told the its prosecutor job was to decide “which of two be penalties (Italics should imposed.” stated, added.) “you He are called upon [i.e., make that determination whether “the appropriate penalty by the factors of weighing death”] exist, aggravation you as mitigation see them to based on the evidence in the case” “[y]ou are to use discretion in such an making important and ultimate decision.” Finally, he the jury told it would be asked to “make as finding you to which deem the appropriate penalty be[,] based on the evidence,” and concluded stating, aggravating factors outweigh “[i]f factors, the mitigating you're asked to return a (Italics verdict death.” added.)

Defense counsel’s comments followed this For approach. example, emphasized each juror individual for personally responsible decision, jury’s alone, and that it was toup jury, and the to make jury “important ultimate decision” about whether live defendant should or die.

Finally, the court’s special instructions In echoed this theme. proper instructions, addition to the above-quoted jury was told to consider defendant’s sympathetic and “in mitigating deciding the appropri- evidence ate penalty.” The court also only instructed: “You are not consider what may person deserve to receive as a punishment, argued because it can anyone who is for responsible another’s death deserve may be said to Rather, die. you are to use discretion in such an making important ultimate decision.” record,

On this we cannot that a imagine jury reasonable would have been misled about its moral discretion and sole to decide responsibility whether death is in this appropriate case. Argument

E. Contrary to Davenport

Defendant claims that at one point argument prosecutor crime, asserted that the fact that defendant was not an to the but accomplice actor, factor. Address- aggravating constituted an the principal was instead said, 190.3, “his partic- (j)), prosecutor factor (j) (§ factor ing sentencing all. minor at relatively not of offense was in the commission this ipation we As on the evidence.” of based Clearly aggravation a factor enormous 289, 247, 41 Cal.3d (1985) People Davenport in v. explained [221 794, may factor not a 861], mitigating the absence of Cal.Rptr. 710 P.2d factor. considered as an aggravating brief, warranted, comment was however. prosecutor’s

Reversal is context, Moreover, in the various factors. only and referred to one of the merely as reasonably been interpreted have argument might prosecutor’s factor, as the returning and mitigating the nonexistence of a emphasizing 190.3, of the the circumstances (§ (a)), factor jury’s (a) attention factor event, in his argument defense any responded crime. In note that counsel we which factor was a neutral consideration mitigating that the absence of a addition, court the standard did not In the delivered aggravation. amount only the “if applica- to consider various factors telling jury instruction ble,” above, its noted shows was not misled about jury and as the record discre- sentencing consideration of evidence and its exercise of mitigating facts, possibility tion. On these conclude there no reasonable we jury’s discretion. prosecutor’s argument sentencing affected 190.3, (a) (b) F. “Double Former Counting” Section factors of 148, In v. Kimble 44 Cal.3d 504-506 749 P.2d we should the “circumstances 803], jury held the not be told that factors both of the can be considered as under present aggravating crime” factors as a factor circumstances (a) (which sentencing establishes “[t]he present proceeding the crime of which defendant was convicted (b) . . .”) and the existence true any circumstances found special crimi- (which factor or absence of sentencing presence establishes as a “the use of activity by attempted nal the use or the defendant which involved 190.3, (a), force or violence”). (§ (b).) factors

Here, the circumstances jury did not tell the to consider prosecutor Defendant, how- (a) (b). crime under both factors capital ever, a tell the that it should sponte duty jury court had sua suggests not, own, crime as aggravating its consider the facts the present re- instruction was factors under both factors. cannot such an agree We contrary, to the misleading prosecutorial argument in the absence of quired; whole, jury would of the believe reasonable view instruction as we activity criminal only have as violent (b) encompassing factor interpreted other (Miranda, 105-106.) than the offense. 44 Cal. 3d capital supra, we error. Accordingly, find no ”

G. From Phase Errors “Spillover Asserted Guilt Effect claim that repeats evidentiary Defendant various errors occurred “errors,” the guilt even if such deemed at the phase, alleges harmless guilt we phase, require judgment. reversal As have penalty explained above, however, event, In part for the most we discern no such error. view of the character of admitted evidence properly tending toward aggravation, erroneously we cannot evi- agree that the asserted introduced alia, the tape recording showing dence—inter the “cold manner” of defend- ant’s speech, and the dried blood in found defendant’s car—improperly prejudiced jury’s determination. sentencing H. Constitutional Attack claims

Defendant it was for the fix at jury unconstitutional his sentence death finding “beyond without first a reasonable that aggravating doubt circumstances outweighed circumstances that death mitigating penalty.” have v. appropriate previously rejected We argument. this (People 730, Rodriguez 667, 42 (1986) Cal.3d 777-778 726 P.2d Cal.Rptr. [230 113].) Similarly, we have also rejected his claim that statute itself 190 (§ et seq.) is unconstitutional. (Id., at 777-779.) pp. claim,

In a related to an was entitled instruction urges any fact an underlying must be aggravating proved circumstance yond a reasonable doubt before it. is jury may A defendant consider entitled to reasonable “only doubt evidence of other instruction when crimes is introduced or referred to as an factor aggravating pursuant 190.3, former Penal Code section v. (b).” (People subdivision Robertson 21, 77, (1982) 33 Cal.3d 60 655 Cal.Rptr. opn. P.2d [188 279] [conc. Broussard, 730, J.]; see also v. People 790-792.) 3d Rodriguez, supra, Cal. Here, no such evidence introduced.

I. Review Comparative Sentence

Defendant claims he is entitled to review” under “comparative sentence Allen, the state at Constitution. As we have in Cal.3d supra, explained 777-779, is the claim 1285, at 42 Cal.3d Rodriguez, pages supra, page meritless. v. Dillon under cannot stand also his sentence suggests

Defendant 390, In re 441, P.2d 697], Cal.Rptr. 34 Cal.3d 477-482 [194 217, As 503 P.2d 8 Cal.3d 423-429 Lynch (1972) 921]. Allen, in merit 42 Cal.3d “there explained supra, we [is no] [here, offense question for the prescribed assertion that the punishment for severe than prescribed is more burglary-robbery-double murder] crimes, dispro is for crime the death penalty less serious juris offense in other for same to the portionate punishment prescribed ante, (Id. Nor, this case out (set facts of p. 1286.) light dictions.” imposed assert the credibly punishment can defendant pp. 556-563), culpability. to his individual disproportionate 190.4, (e) Ruling Section Subdivision Statutory

J. Under Modification 190.4, in its Defendant claims court committed two errors section the First, erroneously an subdivision the court held nar- (e), ruling. asserts 190.3, (§ view “factor mitigating (k).” row of evidence under scope record, however, (k).) Although factor not this claim. the support The does state, did extenuate the of gravity court “there are no circumstances which crime, ,” . . . it is clear legal the even not be deemed a excuse though it fully penalty from the record that court did consider all the defend- testimony evidence. The recounted each witness’s phase (e.g., court been jail, cooperative ant was and at the and had a at work cooperative each witness for criminal concluded police proceeding), the in prior .,”. “of very . or but of minimal value testimony “mitigating, piece minimal value.” mitigating

Second, Davenport, under defendant the court committed error asserts 289-290, absence of evidence 41 the treating Cal.3d supra, pages review of factors as factors. Our showing statutory aggravating mitigating however, record, court commented that various merely the reveals the not, It did not the evidence. mitigating proved by factors were presumably a mitigat the absence of as did the treat Davenport, expressly prosecutor no error.12 We discern factor. factor as an ing aggravating court, Although point, the the reveals that the immedi not raise record defendant does asked, motion, any legal ately statutory “is cause modification there its denial of after why prosecutor The informed court pronounced?” sentence should now be courtroom, they “right” statement. to make a victims and that had a relatives were

K. Alleged Error at In Hearing Camera 17,

Defendant’s final contention is a February that error occurred at 1983, defendant, ex camera his parte hearing, by only attorney attended occurred, and the trial judge. Defendant does not us what error tell nor does event, why he explain he believes the error In any we prejudicial. have read transcript of that hearing and fail find either error prejudice. L. Finding Enmund record,

In view this we believe jury’s guilt verdicts phase imply killed, kill, finding actually or that he intended two record, victims. After reviewing implied we conclude this is finding own, amply it as our supported thus adopt satisfying requirement v. 782, 1140, Enmund Florida U.S. (1982) 788-801 L.Ed.2d 1145- [73 1154, S.Ct. (see Cabana v. Bullock 474 U.S. 390-391 3368] 704, 719-720, L.Ed.2d 106 S.Ct. 699-700]).

Conclusion judgment entirety. affirmed in its Panelli, J., J., J., J., Kaufman, Arguelles, Eagleson, concurred. MOSK, J. I concurin the must one judgment, question but comment on able of aspect the opinion may cause in cases to err. prosecutors future Thereafter two they grief, relatives delivered brief expressed statements in which their statements, asked the court sentence defendant to death. The court listened to the and told witness, the second “the court is about to commit the defendant the sentence. . . .” death The court then did so. We no Maryland, discern supra, reversible error under Booth v. 482 U.S. 496 L.Ed.2d [96 440, 2529], 107 S.Ct. emphasizes potential prejudicial Booth the of such evidence on a effect jury, it analysis judges, seems doubtful that apply the court’s was intended to to trial who are event, presumably capable objectivity of retaining despite exposure In to such materials. on appears any way the face the record it that the affect relatives’ statements did not in the statutory indeed, ruling; court’s modification court had motion before it the denied the learned present might there were relatives appear to make statements. Nor does it the court “legal why have some pronounced” noticed not in the cause sentence should now be absence of the two statements.

587 the “impact discussed argument, prosecutor In the closing penalty a survive, I think that is dear. And the near and left on those who added.) thought (Italics to.” might some certainly you give at least factor in factors not of the enumerated This on survivors is one impact was error: Penal Code section 190.3. 82, 739 Cal.Rptr. 43 Cal.3d 739

Referring (1987) v. Ghent People [239 evidence a distinction between 1250], majority P.2d draw attempt the on the argument mere family surviving the effect on describing this testimony, no court in Ghent there subject. argument While Indeed, to “the majority prejudi referred its did not indicate approval. (id. added), italics but p.772, comments” prosecutor’s cial effect 44 (Accord, (1987) v. Miranda People it “minimal or nonexistent.” found course, 594, is, 57, 1127].) P.2d There 744 Cal.Rptr. Cal.3d 113 [241 proceeding of a difference between affirmative significant approval it to be error but finding nonprejudicial. 44 Hovey (1988) in v. my concurring

As I discussed opinion 543, 121, Court case 776], Supreme Cal.3d 586 749 P.2d [244 440, 2529], S.Ct. Maryland v. 482 U.S. 496 L.Ed.2d of Booth [96 family in a subject on concerns injecting surviving is the latest word concerning While there was evidence admitted Booth criminal case. family, Justice for the court was

devastating opinion effect Powell’s He from argument. limited to the as impropriety distinguished evidence absence of contention that the or reject presence declared: “We thus victim’s character family, personal emotional distress of the victim’s istics, at (Id. p. case.” sentencing capital are considerations proper that the by warning He continued p. 2535].) L.Ed.2d S.Ct. at [96 no by the State serve other purpose this can “presentation of information deciding and divert from the case on relevant jury than to it inflame added.) (Id. and the at concerning (Italics p. evidence the crime defendant.” 2536].) distinguish 107 S.Ct. at He did not p. L.Ed.2d p. argument. means of evidence or Obvi presentation between state’s inflame ously jury.” be identical: “to would purpose Booth v. Levitt Cal.App.3d California with preceded that the be in which the court 276], emphasized by sentencing not be family could considered reavement the victim’s subject is a fortiori on the argument If consideration is agency. improper, improper.

In I in my concurring Hovey, that counsel opinion expressed hope cases will be guided by future Booth and Levitt and will avoid presentation such testimony extraneous matters either I trust the argument. majority opinion warning. will not be seen as diluting BROUSSARD, join I concur in the views ex judgment J. by Justice Mosk pressed concurring opinion.

Appellant’s for a petition rehearing July was denied 1988.

Case Details

Case Name: People v. Siripongs

Court Name: California Supreme Court

Date Published: Jun 6, 1988

Citation: 754 P.2d 1306

Docket Number: Crim. 23082

Court Abbreviation: Cal.