*1 July Crim. No. 23430. S004602. 1990.] [No. PEOPLE, Respondent,
THE Plaintiff and STANKEWITZ, Appellant. RAY Defendant and DOUGLAS *8 Counsel Court, P. and John Seligson, appointment Supreme
Robert A. under for Defendant and Appellant. Ward General, B. Attorney
John K. Van de Steve White and Richard Kamp, General, Overoye, Arnold O. Assistant Iglehart, Attorneys Chief Assistant Lamborn, General, Garcia, Hendrickson, T. Michael Jane Attorney George Marshall, General, Attorneys Y. D. Shigemoto Thomas and Robert Deputy Plaintiff Respondent. Opinion
ARABIAN, v. Stankewitz J. In People (Stankewitz I), 648 P.2d 23 A.L.R.4th this court reversed 476] of conviction and sentence of death because errors judgment
defendant’s attorney ability to defendant’s assist relating cooperate him. appointed represent At trial accorded both a
Defendant was retried. the second defendant was Penal section 13681and a Marsden competency hearing Code pursuant Marsden Cal.3d 118 hearing (People and the 44]) there a conflict between defendant to determine whether been defendant. court represent defender who had public appointed statutory Penal unless noted. References All further references are to the Code otherwise legislation, murder and since re penalty are to death in effect on the date the 1977 pealed initiative. *9 conflict, defender and appointed private found such a relieved the public Thereafter, jury trial. Defendant was found to stand competent counsel. Greybeal (§ 187), murder of Theresa degree convicted defendant of the first robbery (§ 207). and guilty (§211) kidnapping and also found defendant a firearm during The further found that defendant had used jury personally addition, true jury the commission of the offenses. In found (§ 12022.5.) wilful, the murder was deliberate circumstance special allegations during and and was committed the commission premeditated 190.2, robbery of a and a subd. Fol kidnapping. (Former (c)(3)(i), (ii).) § trial, returned a verdict of death. lowing penalty jury Appeal automatic. (§ (b).) subd.
I. Facts
A. Guilt Phase 7, 1978, defendant, old,
On the evening February years then 19 left Sacramento driving white Oldsmobile. He was headed for Fresno. In his brother, J.C., were his mother and company an older man named and three Lewis, Marlin young companions, fourteen-year-old Tina Bil- Topping ly B. reached Manteca about 1 a.m. group February at a stopped
7-Eleven buy store to oil for the car. Manteca observed the car police irregularly and ran a parked check on the license plate. Information was received indicating that the car had been stolen.2 Several officers then ap- the car and proached frisked several of the One of the occupants. passengers who identified herself as “Tina Lewis” stated that the car had been bor- rowed from her uncle in Sacramento. Based on that information the officers contacted Sacramento but were police, unable to determine whether the car had in fact been stolen. The officers asked the them group follow to the police station. Another attempt made to contact the vehicle’s owner half, leave, without success. After about an hour they and a were allowed to but the vehicle was impounded. Before departing, obtained direc- group tions to the local bus depot.
The bus depot was not when open they they arrived nearby so waited in a hours, donut defendant, After shop. Lewis, several Tina Topping, Marlin B. Billy decided to hitchhike. Defendant’s mother and brother and J.C. remained at the station. Defendant and his three succeeded in companions farther, as far hitchhiking as Modesto. Unable to a ride get any the four trial, At defendant’s first stipulation was informed that the car had not in fact been stolen. The was not so informed in the second trial. mart, they K nearby where defendant announced were walked to Defendant Tina Topping proceeded to look around a car.” “going *10 lot; Billy eventually the parking to for a to steal—in car—apparently look exited, K mart. he saw toward a pointing inside the When he Topping went Defendant, her Lewis and walking parked Topping woman to car. Marlin door, her woman; her car inside pushed followed the she opened Topping car then in the backseat and and entered the herself. Marlin Lewis jumped door, side honked the admitting Topping defendant. opened passenger store; back Billy, car started to walk toward response, Topping horn. field, car and in the got “come on” and reversed ran to the Billy shouted meantime, had a produced with Marlin In the defendant backseat Lewis. Lewis a knife. and Marlin pistol, produced lot, driving, K mart Tina the victim—
They exited the parking Topping console, and seated next to her Greybeal—seated Theresa on the defendant seat; in the Billy B. and Marlin Lewis were seated back. the passenger freeway to the and turned south toward Fresno. group proceeded freeway, Greybeal on the stated that none of this would have Once Ms. her by pulling if she had with her. Defendant out happened dog responded After your his “This have took care several gun stating, dog.” and would miles, Greybeal asked Ms. Greybeal money Tina Ms. and took Topping $32 and Marlin She also gave from her handed it to Lewis. purse Topping wristwatch, her with the that she in an insurance claim comment could put for the loss. they directly arrived drove to a bar called the group
When the in Fresno “Joy the bar returned after a Joy.” Tina went into few Topping joined a Menchaca minutes with woman named Christina Menchaca. six, they now drove around the corner to the totalling Olympic group, A minutes later they Hotel. and Menchaca went into the hotel. few Topping then the hotel. Several returned to defendant and all three reentered get Marlin later defendant to retrieve from Lewis. pistol minutes returned thereafter, defendant, returned to the car. Shortly and Menchaca Topping They slowly; eyes glassy. to be their were more appeared moving they go “pick up,” slang
Tina then Calwa to Topping suggested Calwa, They to obtain drove to near expression meaning stopping heroin. out, she did everyone get house fence. told picket Topping with white they went to Several company up.” want lot when “pick defendant, car, B., Lewis, Marlin including Billy exited group victim, Greybeal. gave victim for a she him Billy cigarette; Ms. asked the minutes, told Billy one for herself. After or three Topping and took one two car Marlin along back in the car. reentered the Lewis. get Billy car, Billy Greybeal, defendant walk toward Ms. who From inside saw away. Greybeal facing away five or six feet Ms. from standing hand, hand, it his gun right car. Defendant raised the his left braced with her once in the head from a distance of about one foot. Ms. and shot fatally fell Greybeal ground, to the wounded. said, I
Defendant returned to the car and “Did I her or did drop drop her?” Marlin her.” Lewis “You Both were As responded, dropped giggling. away, the car Tina pulled slowly cautioned drive so Topping they would not get caught. Marlin Lewis observed that the victim’s purse *11 concluded, was not in the car and “we made a bad mistake.” Fresno, After returning to drove to the Seven Seas Bar and group try Christina Menchaca went inside to to sell the victim’s watch. Defendant $60 asked her to try to for it. While Menchaca get and Marlin Lewis were bar, inside the two officers the car. Tina police approached told Topping Billy B. give a false name. He did so and after some brief questioning officers left. Menchaca returned saying she had not succeeded in selling the watch and they move suggested try on and to sell it in Clovis. watch, however,
Defendant’s efforts to sell the were also unsuccessful. In Clovis a girl Billy informed that his mother had filed a missing person’s on him. report Billy asked to be driven home to Pinedale. home,
When he arrived B. Billy cry began and told his mother what had happened. His mother called the and an police investigator came to the house and took a statement from Billy. Later that evening, Fresno police defendant, apprehended Lewis, Tina and Marlin Topping still in possession of the victim’s car. The that had been pistol Greybeal used to kill Ms. found the car. Her watch was recovered from the jacket of Christina Menchaca, who nearby. was arrested
The account foregoing of the murder came from B. primarily Billy Other witnesses corroborated various portions testimony. Ms. Greybeal’s father confirmed that she had left his residence on the of the mur- evening der to pick some up cigarettes mart; the K she was her driving father’s car, the vehicle in which defendant was later apprehended. He also testified that the victim owned two dogs. The officers who arrested defendant were witnesses, called as as well the officers who found the body victim’s examined the crime A scene. ballistics confirmed that expert the victim had been shot from a distance inches; of six to twelve an expended shell case found in the vicinity body was determined to have been fired from the gun recovered from the victim’s car. The victim’s handbag an unlit cigarette were also found near the body. The coroner who performed gunshot a single been killed victim had confirmed that the autopsy neck, paraly- immediate causing cord and spinal severing to the wound and death. sis seized yellow paper five sheets were guilt phase introduced at the
Also The handwrit- for contraband. a routine search during cell from defendant’s narra- contained The papers identified as defendant’s. on the ing papers indi- Menchaca and Christina Tina Marlin Lewis scripts Topping, tive occurred. and homicide had robbery supposedly kidnapping, how the cating on Lewis. killing blamed the These fictional accounts Penalty Phase B. separate evidence of eleven offered prosecution penalty phase
At the defendant, four of which or threat of violence the use involving incidents after the homicide. and seven Greybeal homicide occurred before Key on George April on one robbery and assault incidents were: prior follow- gunfire police 1973; exchange chase (2) high speed *12 California Youth an of the incident; employee an assault on Key ing 20, officers at the 1975; booking a and scuffle Authority July on incidents includ- The County subsequent on 1977. jail April Sacramento February robbery one Jesus Miras on of kidnapping ed the homicide, incidents that took six Greybeal separate as the night same in 1980 and 1982. at San Prison Quentin place Walden, juvenile of proba- Joe director called four witnesses. Defendant testified that Probation County Department, for the Fresno tion county in child, had served time his parents abused as a that both had been a declared defendant had been and that as a result and state jails prison, Hospital in State Napa considerable time child and spent dependent family, of defendant’s an Montgomery, acquaintance Theresa foster homes. educa- and the lack of and alcohol drugs about the pervasiveness testified was raised. where defendant the Indian reservation on opportunities tional Shacklett, a Jean testimony parole of the part prior Counsel also read observed his arrest and shortly after who interviewed defendant investigator Davis, addition, chaplain Glenn use. In indicating drug marks on his arm inmates and his with prison about his work County jail, the Fresno testified Penner, attorney defendant, district assistant and Don counseling with prior and his with the church his involvement County, Fresno testified about Defendant did not life. to a change person’s in the of God power belief testify.
II. Guilt Issues Trial to Stand Counsel/Competence A. Substitution authority a motion for grant trial court lacked Defendant contends the meaningful a subsequently provide substitution of counsel and failed to the of section 1368.3For the competency requirements hearing pursuant follow, lack merit. reasons that conclude the contentions we An some review of the understanding of defendant’s claims requires I, they factual in arose. In Stankewitz unique circumstances which legal 32 Cal. 3d we reversed from defendant’s first trial judgment a ground erroneously hearing trial court failed to hold competency to section 1368. The facts Stankewitz I pursuant underlying were counsel, trial, Prior a follows: defendant’s de appointed deputy public fender, informed the that a as to dispute court fundamental how the trial proceed developed should had between himself and defendant. Counsel court, indicated that he his irrational. believed client’s position Glenn, Dr. examine response, appointed psychiatrist, defendant for as to purposes making determination whether a full-scale preliminary defendant, competency hearing required. examining After Dr. Glenn testified defendant to harbor appeared delusions that his paranoid public defender was in with the collusion Defendant’s prosecutor. problem appar ently stemmed from fundamental with the part defender dispute public over whether the defense should contest culpability defendant’s as the per petrator killing, or diminished defense. Dr. present capacity Glenn *13 stated that defendant to be of in his own appeared capable cooperating defense with an attorney who was not a defender. at (32 Cal. 3d public 87-88.) pp.
Following Dr. testimony, Glenn’s both and the defendant deputy public defender confirmed the fundamental nature of their dispute; defendant be offenses, that lieved the evidence was insufficient to prove he committed the and unwilling to the acquiesce public defender’s diminished capacity defense. Defendant for a attorneys. moved substitution of The de public motion, fender did not join in the confirmed he and but that defendant had reached an and impasse renewed his full request hearing. for a competency trial The court denied defendant’s motion for substitution of attorneys and declined to order a on the hearing issue of defendant’s competency. (Stan I, kewitz at supra, p. 89.) Cal. 3d Defendant reiterated his dissatisfaction provides Section that a judge when doubt arises in the of the mind trial the to defendant, competence mental judge of the the suspend proceedings purposes must the for conducting competency a hearing. attorneys his for substitution of on sever-
with counsel and renewed motion he public occasions On one occasion even struck the defender. al thereafter. however, The at trial (Id pp. 90-91.) proceeded Each was denied. request, sen- incident; was convicted of all counts and without further defendant tenced to death. earlier,
As we the on the the trial court judgment ground noted reversed hearing a after substantial competency failed to afford defendant improperly assist his rationally had adduced defendant could not evidence been I, 93.) p. light Cal.3d at In public (Stankewitz defender. attorneys substitution competency and peculiar interdependence issues, however, timely attorneys might a substitution we observed that “In hearing. the need a competency particular well have obviated for case, avoided might this a substitution of counsel have circumstances of The necessity hearing.” (Ibid.) full altogether ordering competency to dispute trial court “had to take some action unravel fundamental it. The to deputy public presented defendant defender] [between if the may hearing court have been to hold full required competency by a of counsel. But the could have been resolved substitution problem all.” at italics nothing (Id. court should not have chosen to do direction, con- added.) Since the court took no action either we were (Ibid.) strained reverse.
Thereafter, County was returned to Fresno for retrial. defendant him. same represent public again appointed Citing defender was trial, assigned again reasons counsel at the first defender voiced court, stand trial competence doubts as to defendant’s expressed once to section 1368 again, proceedings pursuant appointed suspended Davis, had Glenn defendant. As he two Drs. examine psychiatrists, trial, immediately his substi- done at motion for interposed first counsel, himself tution of conflict of interest between citing fundamental and the The trial stated he would deal with public judge defender. both for a reports motion after and set matters receiving psychiatrists’ three weeks hence. hearing *14 that
The trial court hearing explaining commenced the subsequent the two defendant refused to with either of psychiatrists had communicate re to him. nevertheless public examine The appointed deputy defender objected, that set for Defendant competency again the issue be trial. quested a that did not him and insisting requesting the defender public represent that a Marsden attorneys. suggested substitution of The then prosecutor the the conflict between hearing would be to examine nature of appropriate Marsden, (See People defendant and the defender. public supra, I, The that this court Stankewitz 118.) agreed, observing trial court
87 80, have avoided might Cal. 3d a substitution of counsel had stated that hearing. (Id. a full necessity ordering competency altogether 93.). The motion for of counsel com- hearing on defendant’s substitution his belief defender was in collu- menced. Defendant restated that the public defender’s insistence on attorney, with the that the public sion district defense was in direct conflict with defend- capacity diminished presenting crimes, and that defendant could ant’s that he not commit the position did in his own and assist counsel defense. properly cooperate with argued present defender that the decision to a diminished public deputy to make. attorney Following defense was a tactical one for the this capacity exchange, hearing the trial ordered an in camera to examine the court so, further. an finding matter After trial court made irrecon- doing defendant, conflict public cilable between the defender and ordered the relieved, defender appointed (who counsel public private present defendant. courtroom) request, At counsel’s the court con- represent tinued for two on hearing competence weeks the defendant’s to stand trial.
At the outset hearing of the continued court competency inquired whether counsel he had decided to reschedule with the court- appointments whether appointed psychiatrists hearing or he intended to with the proceed itself, Counsel existing evidence. to the thereupon objected hearing insisting no evidence had been adduced that defendant was incompe- tent. The court the objection overruled again inquired of counsel he whether wished to submit matter on the Drs. psychiatric reports of Glenn Davis. noted that nothing Counsel there in the reports, since defendant had refused see the psychiatrists. The court this acknowledged moment, but observed that it to be of appeared little since the substitution attorneys essentially had mooted the issue. Counsel there- competency matter; upon agreed submit the defendant indicated he concurred in counsel’s decision. then The court ruled that defendant was competent ordered the criminal proceedings reinstated.
Defendant now contends trial court his granted mo improperly attorneys tion substitution of before issue. We resolving competency disagree. While it is true that section 1368 mandates of “all suspension in the criminal proceedings prosecution” once the court has ordered 1368, hearing into the mental competence (§ subd. see (c); People Marks (1988) Cal.3d 756 P.2d 260]; v. Hale
513]), it is equally true that Sixth right Amendment effective repre virtually sentation a hearing and an order compels granting motion for *15 substitution of counsel “there showing when sufficient
88 im- substantially would be assistance of counsel to the right defendant’s Carr 8 (1972) v. was denied.” if request paired defendant’s] [the 705, v. Burton 287, 513]; People 502 accord P.2d Cal.Rptr. 299 Cal.3d [104 184, v. 843, 1270]; P.2d People 771 Cal.Rptr. 855 48 Cal.3d (1989) [258 494, v. 63, 1218]; People 762 Cal.Rptr. 76 Moore 47 Cal.3d (1988) [252 98, 945, v. 180];People 702 P.2d 38 Cal.3d 956 Smith 520, 232, 306].) 18 Cal.3d Walker Marks, Hale, v. and People 44 Cal.3d supra, v. Relying jurisdic lacked that the trial court argues 45 Cal.3d defendant supra, it resolved the of counsel before for substitution tion to act on his motion cases, however, trial court had In both of those issue. competency failed to hold a yet competence as to the defendant’s doubts expressed record. The omission the issue on the and resolve hearing competency (Hale, 541-542; 44 Cal. 3d at pp. supra, reversal in each case. required Marks, in Hale-. As we 1340-1344.) explained 45 Cal.3d at pp. supra, to stand of the defendant the competence a doubt has arisen as to “[0]nce trial, against with the case jurisdiction proceed trial court has no 1368 hear in a section his determining competence without first (44 or his counsel.” by defendant the matter cannot be waived ing, and added.) at italics Cal.3d did In first the trial court place, distinguishable.
The situation here is defend merely entertaining defendant” reinstitute “the case against not Hale, 3d at Fur p. 541.) Cal. supra, motion. (People ant’s substitution if indeed thermore, legally not amply justified the court’s response to section the proceedings pursuant The trial court suspended compelled. harbored trial that defendant evidence from the first 1368 based on the de attorney public between the district conspiracy delusions of a thereafter, with a mo court was confronted Immediately the trial fender. funda on an asserted by defendant based for substitution of counsel tion our statement Stan Relying on mental conflict with the defender. public I, have might counsel that “a substitution of kewitz supra, hearing” necessity competency a full ordering avoided altogether hearing a Marsden commenced thereupon at the trial court (id. p. 93), correctly court As the trial into the nature of the asserted conflict. inquire I the assumption in Stankewitz was holding our implicit perceived, defendant” the case may against “proceed while the trial court hearing (People in a section competence before it determines his Hale, consider indeed must may promptly it p. 541), Cal. 3d supra, assistance to effective right of counsel when a motion for substitution ignored. (People if his were substantially request be impaired” “would Carr, 299.) at p. *16 trial considered defendant’s conclude that the court properly We thus competency before with the proceeding motion for substitution of counsel meaningful he was denied a also defendant’s claim that reject We hearing. was sub- because the matter competency hearing at the subsequent review indicating reports basis of the two appointed psychiatrists’ mitted on the defendant only had see them. The evidence that that defendant refused to the public in his his delusion that cooperate could not and assist defense was not extend This did prosecutor.4 problem defender was collusion with substitution-of-attorney Having to other counsel. resolved appointed counsel, essentially by issue issue was appointing private competency be choosing, apparent moot. The trial court cannot faulted for out of an caution, competency hearing, allowing abundance to with the proceed submitted the matter be the record. finding competent defendant moreover, contention, the matter to Contrary permitting defendant’s be on the with the submitted record of defendant’s refusal communicate is to the not tantamount absence of court-appointed psychiatrists hearing aor waiver counsel. (See People Cal.App.3d Maxwell fact that party present neither chose 579] [“The evidence on the issue [competency] point does not to the absence of a Marks, hearing.”]; 1342-1343; accord 45 Cal.3d at see pp. also subd. the defense (b)(2) any declines to offer evidence § [“If support allegation of the of mental the prosecution may do incompetence, Nor, so.”].)5 obviously, did counsel’s submit an essentially decision to moot question defendant of the deprive effective assistance of counsel.
Defendant’s final contention this is regard that he was denied his right constitutional to due under process (f), section subdivision which that states it shall “presumed be that the mentally defendant is unless it competent is proved evidence that preponderance mentally defendant is Once incompetent.” has offered some evidence of incompetence, he argues, the burden of proving competence should shift to the prosecution. argument, At oral suggested counsel incompetent there was evidence that defendant was regardless
to stand trial representing testimony of who was him. Dr. Glenn’s first com petence hearing support does not the contention. “para Dr. Glenn stated that defendant’s feelings” noid specifically were “related to the Public Defender.” He denied that there was “anything in examination which indicate would would [his] [of defendant] [defendant] . . develop paranoid feelings against" . same private unequivocally: He counsel. stated “I cooperate would feel he private attorney.” could a suggest 5This is competency not to that the trial court’s determination under section 1368 necessarily experts’ confined to the interviews with the defendant. Even where defend interviewed, ant court-appointed may testify refuses to experts be as to their observations defendant, evidence, may and the trial including court consider other its own observa tions and the defendant’s in-court demeanor. *17 fact, however, that the trial court ordered once
Defendant overlooks counsel, of evidence there was whatever scintilla of the substitution of irrelevant; no that defendant was there was evidence became incompetency defender. any attorney other than public delusional with respect decline to address defend expressly we need not and therefore Accordingly, 532, 534 P. Cal. (1903) Johnson 139 (Estate ant’s constitutional claim. [73 of 663, 16 667 424]; (1976) Cal.Rptr. v. Williams Cal.3d accord People [128 888, 1000].) 547 P.2d
B. Instructions Accomplice B., determine Billy whether the principal was instructed to witness, 3.19) No. and was told accomplice (CALJIC was an prosecution a should be viewed with they finding testimony that if made such his have to be corroborated evidence No. and would (CALJIC 3.19) distrust charged. with commission of the offense to connect defendant tending 3.11, re The trial court denied defendant’s 3.12.) Nos. (CALJIC Billy an jury by instructing remove issue from the that quest that a No. Defendant contends (CALJIC 3.16). as matter law accomplice denial error. was reversible is “who liable to
Section 1111 defines as
accomplice
person
the defendant on trial
charged against
identical offense
prosecution
to the
v.
....’’
This definition
all
crime
encompasses
principals
(People
135,
953,
Defendant B.’s established plainly *18 We robbery as an to the and murder. dis liability accomplice kidnapping, agree. Billy’s testimony indicated that involvement the these events his limited; extremely he was when the others the present planned kidnap he Tina the ping obeyed and directions to into the car after Topping’s get abduction; he was aware defendant had a and Marlin Lewis had a pistol knife; he remained in the car the victim and while others with Lewis Olympic Hotel; went into the and he give followed order to Topping’s false name to when they two officers outside the police questioned group Seven Bar. Seas most,
At
Billy
evidence
B.
foregoing
present
demonstrates that
during the
planning
execution
offenses and failed to
their
prevent
commission. That is not
sufficient
establish
v.
aiding
abetting. (People
Harris,
Furthermore,
supra, 175
p. 954.)
Billy consistently
at
Cal.App.3d
any
denied
intent to facilitate the crimes—an essential element
accom-
liability.
v.
plice
Balderas
(People
(1985) 41 Cal.3d
Defendant nevertheless insists evidence that Billy indicates B. inten- tionally aided the by criminal enterprise the victim from preventing escap- she ing when was left alone Billy Marlin Olym- Lewis outside the Hotel; he pic that Billy contends was the one in only of a possession weapon at the time. The record does not the claim. support Billy testified that at no victim, time he did ever have in his weapon possession, threaten the or do her in the anything keep car. the facts are in to the dispute as “[W]here knowledge and intent of the asserted accomplice, liability the witness’ for Gordon, prosecution is a jury.” for the question (People supra, 10 Cal.3d at p. 467.) The trial court this matter could not have instructed Billy was an accomplice as matter law indicating without to the Garrison, Billy court’s belief that had falsely. testified (People 6Billy charges against testified that were filed him in kidnapping connection with the murder, subsequently immunity and that granted he was testimony. in return his Defend contend, ant provide, Billy’s does not nor does the law that these facts establish status as an Garrison, accomplice as a p. 772.) matter of law. supra, 47 Cal.3d at as Billy’s status an accom
Cal. 772.) Accordingly, question 3d jury.7 to the was a factual one submitted plice properly trial in- an alternative basis of error the court’s Defendant advances as “has proving prepon- that defendant the burden of struction to in the crimes [Billy accomplice was an derance of the evidence that B.] argues No. Defendant (CALJIC 3.19.) the defendant.” charged against to believe that language the underscored jury may have been misled every to each and offense Billy must was an as accomplice prove charged. not address point
It an theoretical but one that we need interesting case, have de prejudiced the instruction of could not complained this as earlier, B. an Billy indicated that was not fendant. As noted evidence The uncon any defendant. charged against offenses accomplice *19 Billy the present during plan at most that was tradicted evidence showed to its occurrence. of the theft of the car and took no action ning prevent Indeed, the Billy initially was not when present the evidence indicated that been, commandeered, away to he saw it car started walk when had was no only reluctantly at Tina insistence. There was Topping’s into car got to in the Billy meaningful assistance defendant gave any evidence that or of crimes or that he intended to facili any encourage commission of Beeman, 560; v. v. 35 Cal.3d at (People supra, p. tate their execution. as Croy, 41 Cal. at the instruction supra, 11-12.) Accordingly, given 3d pp. 42 Rodriguez not v. (People (1986) could have defendant. prejudiced 730, 667, 726 113].) 762 P.2d Cal.Rptr. [230 No. 3.19 portion
Defendant also finds fault with that
of CALJIC
which
by a
proved
preponderance
states: “In the event that the
has not
evenly
is
. . .
an
or the evidence
Billy
accomplice
of the evidence that
was
side
say
that
are
that the evidence
either
of
you
balanced so
unable
other,
. .
an
you
Billy
that
.
was not
issue
then
must find
outweighs
may have been
(Italics
jury
Defendant asserts the
accomplice.”
added.)
Billy
weapon
Nothing
transcript
possession
was
of a
dur
in the trial
indicates that
ever
testimony
Billy’s
hearing
af
ing
preliminary
at defendant’s
that
the incident. Defendant cites
testimony
my
away,
up
legs.”
could
put
ter
the knife
it ended
“between
That
Marlin Lewis
decision, however,
pursuant
must instruct
not have affected the trial court’s
since the court
Moreover,
under Bil
presented
the evidence
at trial.
the fact that the knife was later hidden
ly’s legs
he
to or
facilitate the com
did not demonstrate as matter of law that
intended
did
Beeman,
Billy’s
p. 560.)
any
(People
supra,
at
Nor was
of the crimes.
35 Cal.3d
mission
Bil
hearing testimony—which suggested
the knife under
preliminary
that Marlin Lewis hid
testimony
ly’s
Billy’s
weapon
legs—necessarily
that he never had
inconsistent with
trial
argument
certainly
support
at
possession.
his
The evidence
does not
defendant’s claim oral
(1975)
(People v.
amplification could assisted defendant. noted neither any defense nor the it prosecution adduced substantial evidence from which reasonably could Billy be inferred that B. assisted in the of the commission offenses and shared defendant’s criminal purpose.
Finally,
instructed
defendant notes that at his first trial the
B.
Billy
law;
was an
as matter of
he
trial
accomplice
contends the
court in this case
was bound
that earlier determination. The contention
case,
lacks merit. The
plainly
governed by
issue was not
law of the
we did
I,
not rule on the
propriety
instruction
Stankewitz
accomplice
Also,
32 Cal.
3d 80.
the trial court
by evidentiary
bound
rulings
or instructions in
prior proceedings. (People
Jennings (1988) 46 Cal.3d
*20
975,
963,
278,
fn. 3
760
v.
Cal.Rptr.
475];
P.2d
People
(1988)
Williams
[251
883,
336,
44 Cal.3d
912
751 P.2d
Cal.Rptr.
395].) Defendant claims
[245
that
v.
People
684,
Braeseke
25 Cal.3d
Cal.Rptr.
691
602 P.2d
[159
supports
case,
his position; we are unable
discern
that
to
how
holding
384]
People
the
are entitled to review of an adverse
issue
ruling on Miranda
(Miranda
694,
v.
1602,
Arizona (1966)
In the trial court instructed the on properly jury duty their determine Billy whether B. was an accomplice.
C. Instruction Oral Admissions
Defendant next correctly asserts the that trial court erred in failing to instruct sua that sponte evidence of oral admissions should be viewed 2.71, with caution. (CALJIC Nos. These 2.71.7.) instructions would have been Billy applicable testimony B.’s the following shooting defend Lewis, ant said to Marlin I “Did her or did I drop her?”8The drop prosecu- 8Defendant Billy’s testimony asserts the omitted instructions applied would also have that, response to the victim’s assertion the kidnapping would never have if occurred she dog, had her pistol [i.e., gun] defendant brandished a and stated: “This would have took
94 was killing as evidence during closing argument this tion cited statement wilful, premeditated. deliberate and 313, 441, P.2d 455 492 Beagle (1972) Cal.Rptr.
In People [99 that “evidence of oral sponte must sua we held the trial court instruct 1], . .” court’s Beagle, . . Under must be with caution admissions viewed error, however, was not error. The failure in this case to so instruct was . . . does not consti- Beagle-. As “The omission explained we prejudicial. appear if of the evidence it does not reweighing reversible error upon tute to defendant would have that a result more favorable reasonably probable assessing In {Ibid.) potential of the error.” reached in the absence been cautionary instruc- stressed that the primary purpose we prejudice, made.” in fact determining “is if the statement was tion to assist the 456.) at p. {Id. hand, there case we are persuaded these
Applying principles result jury would have reached a different no reasonable probability admission was testimony error. The defendant’s oral concerning absent the uncontradicted; no was not defendant adduced evidence that statement made, fabricated, There remembered or inaccurately reported. was or was used, con- testimony concerning precise no words their conflicting 45 1224- (See Cal.3d meaning. People Bunyard (1988) text or their Cal.3d at 795]; Beagle, People Furthermore, earlier, instructed 456.) properly as discussed if they of an deter- they testimony accomplice, as to should treat how v. Williams Billy (See mined that B. was an accomplice. we are 221].) Accordingly, result more favorable to defendant was not reasonable persuaded the instructional error. absent probability
D. Shackling of Defendant *21 in fail prejudicially next contends the trial court erred
Defendant in necessity leg to conduct a on the his ing promptly hearing placement restraints, in a manifest need for concluding and further erred there was action. such shackling on impact jury,
Because of its potentially prejudicial resort, manifest need only as a last based on “a showing to be employed (See dog.” altogether constitutes an admission. care of the It is not clear this statement 218, 163, McClary Cal.Rptr. 571 admis- People (1977) v. 20 230 P.2d Cal.3d 620] [“[A]n [142 .”].) any per- tending guilt. . In event are . . to establish . we sion is . the recital of facts sponte on of oral admissions was failure to instruct sua evidence suaded that the court’s harmless.
95 935, v. 48 Cal.3d 945 (1989) Sheldon (People for such restraints.” [258 408, 242, 41 v. Hamilton Cal.3d 1330]; (1985) P.2d Cal.Rptr. People 771 902, v. 16 Cal.3d (1976) Duran 981]; People 423 710 P.2d Cal.Rptr. [221 1322, 618, 282, A.L.R.3d Where 1].) 545 P.2d 90 Cal.Rptr. 290-291 [127 used, as although be they are “should as unobtrusive possible, restraints Duran, v. 16 necessary (People supra, effective as under the circumstances.” defendant, however, to the object physi at must use of Cal. 3d The p. 291.) v. be waived appeal. (People cal restraints or the claim will deemed on 605, 863, 70]; People Walker 629 Duran, 289; v. 16 Cal.3d at Chacon supra, p. Furthermore, 34 A.L.R.3d 454].) review successfully challenged court’s decision ‘cannot be “shackling ” Sheldon, showing on a of a manifest abuse of discretion.’ except Duran, 3d at supra, Cal. 3d at Cal. p. quoting People 293, fn. 12.) When reviewed in of these it is clear that light principles, defend ant’s claim lacks merit. Defendant leg was restraints apparently placed the outset of the jury hearing selection The record discloses that no process. held on necessity day dire; of the restraints until the 14th of voir record also objection discloses no to the or for a request hearing restraints time.9The court during began hearing describing the procedures had point: court followed to that “Since these proceedings leg began, is, restraints have they been on the defendant. That are like above handcuffs ankles, his and there is a one and a foot-long half chain between the cuffs. These have been jurors. out of view of the prospective defendant has been brought any into court before jurors and he leaves prospective is—he the court after all the jurors gone. are He has hand prospective not been cuffed court have other any nor restraints been used.” The court then it explained that had imposed request shackles at the of court security; the court was advised that first trial during his defendant courthouse, had from his attempted escape cell in the holding had struck attorney his had threatened the judge. trial The court then heard testimony from bailiff charge security, court who he stated that believed there a continuing need for restraints based on defendant’s 9Up hearing, only during until the prolonged reference to the restraints came out against perceived general burst what he to be a bias in process. selection *22 for, point At one leg defendant stated: hell something “What the irons on me man? That’s you change Why could supposed .... on me? this These ain’t to be on me. I ain’t no dog. damn Be fair . A hearing days ...” on the need for restraints was held several later. assuming foregoing Even cognizable objection, that the a constitutes defendant has adduced delay days no evidence that the conducting hearing any court’s of several in resulted in prejudice. possible trial, jail as from personnel as recent during reports his first well
behavior plans escape. had expressed that defendant indicating need but was manifest for restraints The court concluded there a trial could brace which replaced leg apparently be a ordered that shackles that complained When defendant later pants. under defendant’s placed be original reimposed caused severe discomfort the court the brace shackles. restraints at the hearing leg held a on the need judge
The trial second dire, depart- had the sheriff’s he asked explaining conclusion of voir a to the least visible and to reassess the need for restraints with view ment “ The bailiff testified that he believed restrictive available.10 chief options security and recommended that defend- continuing risk posed defendant he In of this conclusion cited defendant’s support ant remain shackled. incident; several as well as a more recent escape attempt, violence and prior testified, earlier, threaten he had overheard defendant days deputies sheriff’s One he and shoot the officers. officers to steal a if could gun that the officers that he had defendant “state confirmed overheard question he chance he would take and that if had the slip, quote, unquote, better not The evidence of and shoot the officers.” also introduced gun against threats and assaults involving several recent incidents inmates Quentin while incarcerated San Prison. other had been “a clear the trial court found there foregoing, Based on the defend- is a manifest need for restraints to minimize showing that there the likelihood of courtroom vio- ant’s minimize opportunity escape restraints, not lence.” The noted that the aware judge them,” they can’t see and that the courtroom is such that “makeup and taken out after the leaves.” brought defendant “would be before trial further incident. The without proceeded record, to impose leg On this we conclude that the trial court’s decision abuse of discretion.” restraints did not constitute “manifest Duran, 12.) 3d fn. court conducted not one 16 Cal. at trial restraints, carefully two to determine the need for special hearings but as escape attempt the evidence violence and prior considered of defendant’s object throughout voir dire. continued to to the shackles the remainder of 10Defendant threat, actually Though repeatedly he his statements contained he denied that constituted threats, overt, against judge and One the trial bailiffs. numerous both veiled and directed exchange, untypical, such follows: your just “The You sat and threatened throw shoe at me. Court: there you fucking I again. I do more than that if had the mother “Defendant: I’ll threaten would .” opportunity . . .
97 bailiffs, the the and and imposed well as more recent threats court against jury. available outside the least visible or obtrusive restraints presence find no of discretion. Accordingly, we abuse Cell
E. Seized From Writings Admission Defendant's certain the trial court erred in admitting Defendant next contends cell, instructing seized11from his error writings compounded such be as a con writings tending could considered circumstance show The guilt. sciousness contention is without merit. yellow
The evidence in consisted of five with question sheets paper on both sides. The had been removed cell writing pages from defendant’s a routine for during expert search contraband. A forensic identified handwriting as defendant’s. The papers contain what be fictional appear Lewis, first narratives Tina person scripted for Marlin Christ- Topping, Menchaca, ina the events describing surrounding the murder and attribut- ing killing to Marlin closing Lewis. During argument, prosecutor twice, referred to the writings briefly, as “scripts” by defendant to prepared blame for place on Marlin The killing Lewis. trial court instructed the jury, pursuant you to CALJIC No. 2.04: “If find that defendant attempted persuade testify falsely witness or tried to fabricate evidence to be trial, produced may such be as a attempt by you considered circumstance However, to show a tending consciousness guilt. such attempt sufficient to prove if guilt, weight significance, any, its are matters your for determination.”
The People note trial to object counsel failed to either the evidence or prosecutor’s argument evidence; concerning accordingly, Sheldon, issue is waived appeal. 951; 48 Cal. 3d (People at p. 1, 1, v. Green People (1980) 27 Cal.3d Cal. Rptr 468].)12 Moreover, defendant has not shown that the evidence was ad improperly mitted. Defendant contends the writings were inadmissible and the instruc tion was because improper prosecution adduced evi no foundational Lewis, dence that defendant had attempted to Marlin persuade Tina Top or Christina ping testify Menchaca to in accordance fictionalized 11 writings up" were removed in a during from defendant’s cell “wadded condition routine allege writings search contraband. improperly Defendant does not that the were seized, and has suppress never moved to the evidence on that basis. brief, In a footnote to his trial object characterizes failure to as in counsel’s competence argue—much but fails to less deprived demonstrate—that counsel’s omission de substantially fendant of meritorious defense or affected the outcome of the trial. Sheldon, supra, 951; 572, People Cal.3d at v. Fosselman 33 Cal.3d 584 [189 1144]; Pope 659 P.2d 425 [152 1].) A.L.R.4th
98 infer, however, that It to set forth in his notes. is reasonable scenarios We for this con precisely purpose. the false scenarios defendant prepared admitting no error in the that the trial court committed clude therefore defendant, Cal.3d by (1977) v. Hannon 19 The cases cited writings. People v. 50 Weiss 564 P.2d and People 588 1203] [138 were concerned 527], are These decisions Cal.2d 535 inapposite. trial; at because of third to evidence by suppress with efforts alleged parties defendants, we held the of the the absence of evidence authorization Hannon, v. supra, on to have been erroneous. (People instruction fabrication Weiss, 599; 553-554.) 50 Cal.2d at No pp. Cal.3d at v. People supra, p. here. party such third issue was present to reference “consciousness of unqualified
Defendant also contends the overbroad, an to attempt 2.04 as evidence of in CALJIC No. was guilt” on or deliberation. bearing evidence has no direct premeditation fabricate instructed, however, the and “weight sig- jury The properly nificance, jury’s if evidence was for the determi- any,” be accorded such misled into jury giving nation. We no reasonable the probability discern in undue to the evidence weight question. Abetting Aiding
F. on and Instruction court error prejudicial Defendant contends the trial committed robbery. The abetting on and instructing jury aiding respect with merit. contention without closing urged jury
The in convict defendant argument prosecutor theories, robbery in the of robbery on of two as a direct participant of either watch, car, in the as an aider and abettor offense. money the victim’s or aiding abetting The court instructed the subsequently Beeman, 3.00 3.01.13In People of former CALJIC Nos. language be because 35 Cal. 3d we held these instructions to erroneous required conviction an aider and abettor they did not advise the of the knowledge of the criminal only purpose that the defendant have offense, purpose of also that the defendant share that or but perpetrator commit, (Id. encourage, intend or facilitate the commission of crime. 560; 11-12.) at Croy, supra, pp. see demonstrates, however, clearly The that this is a case which record have the verdict.” “the Beeman error could not affected possibly who, directly knowledge person and ac purpose of the who “Those with unlawful crime, tively commits the aids abets its commission.” if, knowledge of unlawful person “A a crime aids and abets commission of crime, aids, instigates by encourages, promotes, act or purpose perpetrator he or advice the commission such crime.” 893].) Leach the vic- robbery was a in the principal evidence showed that defendant *25 car, actively sale of the victim’s attempted tim’s the participated Furthermore, the found that defendant jury specifically personally watch. robbery. By firearm in the firearm-use finding used a the commission true, a to be the that direct allegation jury impliedly found defendant was or, minimum, robbery at he the with the requisite aided participant, 919, intent. v. Bean (See People (1988) Cal.Rptr. 949-950 [251 Leach, 467, v. 41 at We 996]; People 105-106.) 760 Cal.3d supra, pp. find no reversible error. vein,
In a related defendant also the error tainted the contends Beeman robbery-murder murder the conviction and special-circumstance finding. merit, This Although felony contention lacks as well. the prosecutor argued as an theory murder alternative jury felony and the was instructed on 8.11, 8.21, murder and malice implied (CALJIC 8.79), Nos. the uncontra- dicted evidence showed that defendant cold-blooded personally victim, deliberation shot the and the tried the case on the People primarily wilful, theory that the murder was deliberate In accord premeditated. tried, with the 1977 penalty death statute which under defendant was jury was robbery-murder instructed that order find the circum- special true, stance wilful, it find must that “the murder was deliberate and pre- meditated, . death, and . . that defendant with intent to cause physical- ly death; committed the act causing and that the murder was committed during commission or attempted robbery.” jury commission of a The wilful, returned verdict finding that specifically the murder was deliberate and premeditated, personally defendant used a firearm during the offense, commission of the and that the murder was personally committed by defendant during commission of robbery. The record and the verdict thus clearly demonstrate that aiding and abetting instructions Leach, could not possibly have affected judgment. 41 (People supra, Cal.3d at p. 105.)
G. Unanimity Instruction Defendant next asserts the trial court obligated instruct the sua sponte pursuant to CALJIC No. 17.01 that before finding defendant guilty of robbery jurors to agree had unanimously the act or acts which formed the basis of the conviction.14(See People v. Diedrich 31 Cal.3d 282 643 P.2d 971].) provides 14CALJIC No. 17.01 pertinent part: may . guilty “The defendant. . be found proof beyond if the any shows reasonable doubt that he one committed or more [acts constituting the charged], crime guilty, with which he is but in order to find all jurors agree must that he committed the same act or acts.” are alleged when acts required The instruction is unanimity v. Crandell of one transaction. closely (People so connected as to form part 423]; Cal.3d Diedrich, The rule applies “continuous conduct” supra, p. 282.) acts, to each of the essentially offers the same defense when the defendant between them. distinguish reasonable basis for the and there no Crandell, 875.) Cal.3d at recalled, evidence, that defendant planned as will be showed vehicle. of the victim’s taking in the and forcible participated kidnapping *26 car, a and threatened the victim with gun in the produced Once defendant victim, $32 handed money it. then from the who Tina demanded Topping with the her watch to gave Topping to Marlin Lewis. The victim also her cover it. comment that insurance would evidence, unanimity a defendant contends foregoing Based on the record that the (1) because the could have concluded required instruction was fear, by not taken means of force or or money victim’s and watch were for either any responsible taking. that in event the defendant was not unanimity a would have been Assuming appro that instruction arguendo circumstances, that resulted from under the we conclude no priate prejudice Crandell, 46 Cal. at failure to instruct. 3d (People court’s so 874-875.) The and the evidence demonstrated be pp. prosecutor argued, doubt, yond robbery that of with guilty respect a reasonable defendant was victim. After of items taken from the personal property each of car, the victim a forcibly her defendant threatened commandeering came Tina subsequent money Top demand for from handgun. Though any her relinquished explicit and the victim watch without ping, apparently demand, takings accomplished the inference is that both were inescapable force fear defendant’s by by means of the threat of or implicit presented gun.
Whatever differences inhered the defenses offered defendant slight car, without money to the of victim’s watch and were thus takings significance. resulted from the omission of We conclude no prejudice unanimity instruction. Murder Sufficiency Felony
H. the Evidence robbery-murder and the Defendant next contends murder conviction robbery because the terminated special-circumstance finding are defective as matter The contention without merit. killing. of law before the conviction, the fact that he was to the murder defendant overlooks As wilful, and first de- theory premeditated tried deliberate primarily murder, found, in connection with both the gree jury specifically robbery-murder kidnapping-murder special-circumstance allegations, wilful, murder was deliberate and and was premeditated personally that the conviction, therefore, is regard- committed defendant. The murder valid felony-murder theory. less of the merits of the circumstance, As to the defendant con robbery-murder special the murder could have been or during tends committed commission commission he had robbery of a because reached attempted “place safety” Salas 821-823 temporary at 832]) A.L.R.3d one of least several prior robbery to the termi points killing, necessarily therefore had nated before the killing. More specifically, argues flight his robbery after the he ended soon after and his associates left kidnapping the K mart parking freeway. lot and reached the Alternatively, defendant continuity robbery, contends that the between and the kill escape, *27 by broken ing Joy Joy was the at intervening stops the and Bar and the Hotel. Olympic
The contention lacks merit. So
as he
the robbery
held
and
long
kidnap-
victim,
safety
ping
defendant’s
was
continuously
At
jeopardy.
any point
journey,
any
the
the
at
one of
several stops the
made
the
group
between
scene,
K
moment,
mart and the
killing
any unguarded
the victim might
have managed to escape
signal
or
for
help. (See People Fields
P.2d
There
680].)
was never a
moment when
reasonably
defendant could
be said to have
place
reached a
of
safety.
temporary
Defendant exercised continuous “control”
the
over
(Id.
victim from the
the
beginning of
to
episode
tragic
its
fatal conclusion.
at
The
368.)
crimes were also
by
linked
the fact that defendant’s motive for
may
killing
have been to
the victim
prevent
robbery
and kidnapping
him.
from identifying
(Ibid.)
Ford
which case, defendant cites as controlling, clearly distinguishable. is In that “many hours” had elapsed between the robbery the and the killing, defendant had reached several of safety havens temporary during peri- that furthermore, od; robbery the victim not the person (Id. who killed. Here, contrast, at pp. 56-57.) way only to two three hours elapsed from the robbery abduction and killing, only the the defendant made two brief stops, victim, the robbery victim was the also murder the apparent motive for the killing was prevent the victim from identifying defendant as the perpetrator original the crimes. finding
Thus, circumstance special amply supports the evidence robbery. the commission of during murder concerning his appeal a contention from first Defendant also renews robbery. instruction on the duration of give a special trial court’s refusal retrial, made in the trial court was not request Inasmuch as the robbery the duration of a governing on the law instructed properly rejected. contention must be 9.15), No. (CALJIC Witnesses Unavailability I. Comment ob- sustained a improperly prosecution Defendant asserts the trial court argument. comment The during closing defense counsel jection merit. contention lacks had prosecution defense counsel observed
During closing argument, B., fact there Billy that only shooting, despite one witness to the called witnesses, Men- Topping, other Tina Christina potential were least three I “And think that fact and Marlin Lewis. Counsel then observed: chaca you that they something are absent when are available people that those objected to the state- great prosecutor consideration to.” give should ment, no in the record the wit- indicating that there was evidence noting objection. The trial Counsel then nesses were available. court sustained on the of the evidence accurately: showing more “There’s no basis stated reason been any given are unavailable. And no has people of those rebuttal, Thereafter, in prosecutor suggested here.” being their Menchaca, “maybe had not testified because Topping Lewis perhaps *28 they testify they against don’t want to be in a where position [defendant] . .” to overruled. objection . . Counsel’s this statement was in the record objection Nothing The sustained. prosecutor’s properly Menchaca, or were Tina Marlin Lewis Topping indicated whether Christina may not state or assume facts available. It is axiomatic that counsel v. Ford that are not in evidence. Defendant’s reliance on argument People in 168, 121, A.L.R.4th 431 76 Cal.Rptr. 45 Cal.3d (1988) 785] [247 There, actually has not exer we held that a codefendant who misplaced. is unavailable and therefore self-incrimination not against cised his privilege on failure to call commenting did not err defendant’s prosecutor the his alibi defense. Ford might codefendants who have substantiated several however, not, as a the or defense counsel state permit does prosecutor no evidence to available as a witness when there is fact that a codefendant is substantiate statement. counsel’s overruling erred
Defendant also contends trial court Lewis, “maybe they Marlin [i.e., comment that objection to prosecutor’s
103 Tina want be in a Christina Menchaca and don’t Topping] position they testify prosecutor Defendant asserts against where [defendant].” Menchaca, testify that and Lewis did not Topping, improperly implied it they ambiguous; because were afraid defendant. statement was Menchaca, just easily that and Lewis did implied Topping, could as have event, In testify any defendant because he was friend. against wish we remark was the record though agree unsupported prosecutor’s evidence, so tangential we cannot conceive how brief comment have could affected the verdict.
J. Denial Cause Challenges for erroneously
Defendant
trial
contends the
court
overruled
for
challenges
cause that he made
respect
eight
jurors,
one that he
prospective
claims was
other
biased
seven that he claims would
impliedly
automatically vote for the death
been
penalty
therefore should have
776,
under
excused
Illinois
U.S. 510
Witherspoon
391
L.Ed.2d
[20
841,
88
Wainwright
S.Ct.
v. Witt
U.S. 412
(1985) 469
L.Ed.2d
1770]
[83
Even trial arguendo erroneously court disallowed his cause, challenges for defendant cannot demonstrate prejudice objec no juror tionable was forced on him error; as the result of assumed defend Nichols, ant exercised peremptory challenges against the allegedly biased juror, as well against four of the jurors seven who were allegedly disqual ified under the Witt/Witherspoon standards. He failed to excuse other jurors three question notwithstanding fact he had three peremp tory which challenges he never remaining exercised. It is set well tled that a defendant cannot an complain objectionable juror was forced him where he could have exercised challenge. peremptory 749, Coleman (1988) Cal.3d 770-771 1260]; P.2d [251 v. Miller People 377]; P.2d v. Wilkes (1955) 44 481].) Furthermore, our review of the record discloses that sev although *29 eral of the jurors a prospective expressed preference, under certain circum
stances, for the death they penalty, ultimately confirmed that they would follow court’s instructions and an keep mind im open concerning life prisonment as an to alternative the death penalty. v. Ruiz Cal.3d 618-619 Where 854].) conflicting [244 dire, are elicited responses on voir a trial court’s determination of impartial Fields, ity generally binding 619; on review. at (Id. v. People supra, 356.) Cal.3d at p. The trial court did in here not err to refusing excuse cause in jurors prospective question. Jury Qualification
K. Death federal constitu was denied his state and contends he Defendant as of the jury death-qualifying a result impartial to fair and rights tional v. 476 U.S. 173-183 McCree jury. voir In Lockhart dire 137, 147-154, United States 1758], Supreme 106 S.Ct. L.Ed.2d not violate a criminal “death does qualification” Court concluded that have simi jury. to a fair and We right impartial constitutional defendant’s analogous not violate the state larly that death does qualification concluded sup here contains no evidence to and the record guaranty, constitutional Bean, supra, to the question. (People or cause us reconsider claim port 956.) at p. Cal.3d Amendment to right contends he was denied his Sixth Defendant further The States as of the death United jury qualification. a result representative McCree, rejected supra, this contention Lockhart Court has Supreme it 147-150], rejected at and we pages 476 U.S. 173-177 L.Ed.2d at pages Fields, has ad- at 342-353. Defendant pages our decision. no that cause us to reconsider arguments vanced Permanently L. to Deprive Intent defendant, B.
Billy point during kidnapping, testified that some Fresno, victim, “[Wjhenever we back we’re referring get to the stated: this, her Based on defendant asserts up to let back there.” going go her may temporarily deprive car have been taken with the intent to victim’s Therefore, he specific of the car rather than the intent steal. possession jury sponte trial court was to instruct the sua required contends the be of the car if the robbery taking could not based on the conviction of steal, to an intent to did not arise temporarily intent to opposed deprive, The contention lacks merit. shooting. until after robbery, including the elements of instructed on specifically fear, be means of force or “accomplished that the requirement taking of his proper- intent the owner permanently deprive and with a specific felony ty.” respect The court further instructed (CALJIC 9.10.) No. during must have been “committed commission killing murder that the robbery” 8.21) No. (CALJIC of or to commit the crime of attempt felony murder guilty not find defendant informed the that it could if robbery ... “as or commission of attempted the result the commission crime, to commit such the defend- at the of the commission or attempt time (CALJIC No. intent to commit such crime.” specific ant did not form the robbery-mur- with the were connection 8.79.) given Similar instructions *30 der circumstance. special
105 of the that de- requirement was therefore specifically apprised robbery. intent to commit No further fendant must have formed the specific none required. instruction was requested, amplifying Alleged M. Error Wheeler dire, a
During against voir exercised prosecutor peremptory challenge a juror named Moreno. Defendant now contends prospective prosecutor American, Moreno, racial solely Ms. a Native improperly excused reasons. 890,
In
22
People
(1978)
Cal.Rptr.
Wheeler
Cal.3d 258
583
[148
748],
may
we ruled that
not be
to exclude from
peremptory challenges
used
bias,”
solely
of
jury,
any
because
member of an
presumed “group
racial,
identifiable
distinguished
of citizens
ethnic or
group
religious,
similar
grounds. (See
Kentucky
also Batson
79
(1986)
U.S.
[90
69,
216,
1712];
L.Ed.2d
S.Ct.
Snow
Cal.3d
[242
Wheeler,
746 P.2d
Under
if a
452].)
party
oppo-
believes his
nent is improperly using
challenges
discriminatory
for a
peremptory
pur-
timely
he must raise
pose,
challenge
and “make a
facie
such
prima
case of
First,
discrimination to the
satisfaction
the court.
... he
make
should
Second,
a record
complete
circumstances as is feasible.
he must
establish that the
excluded are
persons
cognizable
members of a
group
within
Third,
meaning
representative cross-section rule.
from all
the circumstances of the
case he must
such
strong
show
likelihood that
are
persons
being challenged because of their
than
group association rather
any
because of
(22
bias.”
specific
omitted;
Cal.3d at
fn.
accord
Batson v. Kentucky, supra,
Defendant’s contention that Ms. solely Moreno was excluded be cause of her ethnic founders heritage on the threshold Wheeler requirement timely of a objection. Defendant raised no objection Wheeler to the prosecu Moreno, tor’s use of his peremptory challenge against Ms. notwithstanding the fact that defense counsel earlier had observed Ms. Moreno was a Native American. Accordingly, the record is barren for Be purposes review. cause there objection was no no effort to establish a facie prima case discrimination, the was never prosecutor justify asked to his use explain of a peremptory challenge against Ms. Moreno on grounds unrelated to bias. group Accordingly, we cannot conclude the peremptory challenge violated defendant’s rights under Wheeler. (People v. Ledesma 231-232 839].) *31 Penalty
III. Issues Activity Criminal Uncharged Relating A. Evidence Issues of introduced evidence During penalty phase, prosecution defendant, by of violence the use or threat involving incidents separate 190.3, (b). factor pursuant to section unadjudicated the admission of evidence
1. Defendant first contends
rights
violated his constitutional
by
criminal
committed
activities
constitution-
Amendments. Defendant raised no
Eighth
under the Fifth and
Furthermore,
have
trial.
we
al
of the evidence at
objection to
admission
Balderas,
v.
su-
(See
identical claims.
rejected
People
similar or
previously
205;
2. Defendant further contends offenses unanimously agree unadjudicated must that the sponte this claim beyond rejected a reasonable doubt. We were proved We 44 Cal.3d Miranda (1987) 1127]. to reconsider it here. discern no reason persuasive by jury on erred instructing 3. Defendant next contends the court Beeman, in terms of aiding abetting pre-Beeman 3.00 and 3.01. He contends the 547) of CALJIC Nos. version Jesus unadjudicated offenses. error was two prejudicial applied victim in matter abducted Miras testified that sometime after the this was killed, car two containing he lured Christina Menchaca to a by was Men- with Tina (which Topping, women would correspond men two chaca, knife- and Marlin and robbed at Lewis), kidnapped defendant and case, however, in this Mr. Miras managed Unlike the victim gunpoint. an Key about from car and also testified escape. George free himself men, Key young which in 1973. two approached incident occurred Davis, his assis- requested an Eddie who defendant and individual named he Mr. distracted Key tance in an automobile. When starting complied, Mr. by Davis. The then stole pair defendant and knocked unconscious Key’s white 1957 Chevrolet. abetting failed
Although aiding the trial court’s instruction intent of the must share criminal to advise the that defendant a reasonable doubt. beyond we find the error harmless perpetrator, that an aider and abettor have acted given required instructions as aspect hence one unlawful knowledge purpose; perpetrator’s *32 clearly (See defendant’s mental state was before the v. Malone jury. People 1249]; Croy, People Furthermore, 41 Cal. at supra, 13-14.) George Key’s testimony—if be pp. by lieved defendant as an active in the jury—portrayed participant robbery, merely Similarly, assault and as an aider and abettor. if the jury believed that defendant was assault guilty robbery kidnap, Miras, Mr. there is no testimony—that liability likelihood—based on the his Leach, theory was on a premised aiding abetting. (See People Moreover, supra, Cal.3d at p. 105.) adduced evidence of prosecution nine additional incidents in which defendant used or threatened to use violence. We discern no reasonable that the possibility omission of the shared-intent element could have affected the penalty verdict.
Malone, 47 Cal. 3d at pp. 49-50.)
4. Officer Reid of the California Highway Patrol testified that he was in a involved chase of the car that high-speed defendant and Eddie Davis chase, stole from Mr. Key. During the Officer Reid was wounded blast shotgun fired from the rear of the car. Ultimately the car went out of Davis, control and Eddie who was fatally driving, shot the officers. Defendant, backseat, who was in the was arrested. Officer Reid testified that he only observed car; two individuals in the he believed defendant fired the shot that wounded him. The prosecutor briefly referred to Officer Reid’s testimony during argument.
Defendant contends Officer testimony Reid’s was inconsistent with a summary of the incident in defendant’s probation report filed after his first trial which states that three Davis, individuals were in the car—Eddie defendant, and defendant’s brother. The probation was not report placed retrial, evidence in Thus, however. it would have been to refer improper to it Furthermore, during argument. there is no evidence that either Officer Reid or the prosecutor intentionally falsified evidence or that either was even aware of the discrepancy. There is no basis for a finding of prejudicial error.
B. Sympathy Instructions
Defendant contends the was inadequately instructed concerning the of their scope evidence, consideration of mitigating particularly the factors of sympathy and background evidence. The contention lacks merit.
At the guilt phase, trial court gave CALJIC No. 1.00 directing jury “not swayed sentiment, to be by mere conjecture, .. . .” sympathy The instruction Rather, was not repeated at the penalty phase.
given a modified version of CALJIC No. 8.84.1 that directed the jury to consider, received,” and to which has been
consider “all of evidence character, factors, history, background defendant’s among other “the condition,” which extenuates “[a]ny as other circumstance mental well crime.” it is not excuse though legal of the crime even gravity effectively anticipated our decision The trial court this matter *33 309, 813], by 34 858 671 P.2d Easley Cal.Rptr. Cal.3d (1983) [196 character to consider evidence of defendant’s instructing jury the expressly Moreover, spe- at the trial court and defendant’s background. request 8.84.2, the avoiding thus cifically give problematic declined to CALJIC No. that the “shall a sen- impose in the 1979 version language decreeing outweigh that circumstances aggravating tence of death if concludes the [it] fact, In both the and defense prosecutor circumstances.” mitigating evidence. background character and length counsel discussed defendant’s 750 760 v. Melton Cal.3d (See People life had evidence of deprivations Defense counsel offered of 741].) in of and alcohol pervasiveness drugs an reservation and the Indian had been of He evidence that defendant lives also introduced people. six in a home declared a of the court at of foster age placed ward early age from because of abuse. Counsel that an emphasized parental family of a stable salutary denied the normal influences was community.
While that evidence was mitigating unpersuasive, defendant’s arguing that irrelevant legally penalty made no it was to the prosecutor suggestion asserts, nevertheless, may that the jury determination. Defendant feel you have been “It is natural for misled statement: prosecutor’s I I Douglas expect some extent of for Stankewitz. do. pity sympathy your interfere sense you do some extent. But that should not feeling We do not these comments as an justice.” argument sympathy of read determination, jury’s sympathy no role but rather that play should justice. society’s countervailing not overbalance interest should Thus, argument we conclude the instructions and advised adequately constitutionally of of relevant evidence. mitigating (People the scope Melton, 44 Cal.3d at supra, p. 760.) Penalty
C. in the Death Law Changes He Defendant tried under the 1977 death statute. properly penalty contends, however, an to an pursuant that he was entitled instruction statute, in the of the 1978 death change language penalty “ameliorative” 190.3, considering that the after specifically provides jury, section which circumstances, sentence impose “shall aggravating mitigating death if of fact that the circumstances out- aggravating the trier concludes the trier determines that the weigh the circumstances. mitigating of fact If circumstances, the trier outweigh the mitigating aggravating circumstances state term prison shall sentence impose confinement of life fact (Italics added.) without Former section 190.3 possibility parole.” contained language.15 no such contention In the first we place,
Defendant’s is without merit. have observed that the 1978 initiative intended to be prospec “purely tive in . . . .” Easley, 883.) effect Cal.3d at criminal defendant is entitled to an ameliorative presumption change where, in the law that—a just plainly apply does not presumption—which here, the re new law otherwise. Estrada provides (In 948].) *34 addition, balance, In have held we that “on the 1978 version expressly [of section (Pe is much less favorable to a defendant than the 1977 provision.” 190.3] 884, Moreover, v. 34
ople
Easley,
Cal.3d at
supra,
added.)
italics
we have
an
jury
held that
instruction which
shall
tells the
that it
return a
death verdict if aggravation outweighs
and
mitigation
ambiguous
suscep
512,
tible to misinterpretation.
40
(1985)
Brown
Cal.3d
538-545
(People
637,
440],
709
Cal.Rptr.
revd. on other
nom.
grounds sub
[220
Califor
934,
nia Brown (1987)
D. Instruction on Reasonable Doubt
Defendant contends the by failing court erred to jurors instruct the sua sponte that in order to find impose penalty they beyond of death must reasonable (1) doubt that the aggravating circumstances outweighed mitigating circumstances (2) death was the penalty. appropriate Defendant rests his claim on the due and cruel unusual process 15 assert, indicate, Defendant requested does nor does record that defendant an in pursuant struction 1978 version section 190.3.
110 We States and California Constitutions. clauses the United punishment Rodriguez, 42 rejected claims. have identical previously has no rea 777-779.) provided persuasive at Defendant us with pp. Cal.3d our prior holdings. son to reconsider Jury Inquiry
E. Response did the so-called Instruction this Briggs The trial court not give (1982) invalidated in v. Ramos People Cal.Rptr. court v. Ramos 908], 639 P.2d reversed sub nomine California v. Ramos 430], U.S. 992 [207 430], denied U.S. Cal.3d 136 689 F.2d certiorari did (Ramos II), prosecutor L.Ed.2d 105 S.Ct. 1119 [86 2367] or a sentence during not refer to the Governor’s commute power pardon his the penalty argument phase. however, deliberations, following ques- jury sent
During penalty “We, the following: tion the court: in the above entitled jury, request One, in a anyone would like if sentenced to confinement to know before a parole state for life without has been prison parole put possibility Defense The court this with counsel. counsel question board.” discussed that life without means suggested response indicating parole possibility just that such a would not be accu- prosecutor objected that. response *35 and in of the trial the sentence the light rate court’s review opportunity he Governor’s commutation The trial court observed that while did power. the did he a can jury, “open[] not wish to mislead neither want to by and commutation discussing worms” the court’s the Governor’s power the to the as follows: power. Accordingly, responded jury’s inquiry court consider “The was instructed the law and should not or jury applicable in they on matters of which were not instructed and speculate law on at a verdict of in without or death.” arriving possibility parole life prison
Defendant now that the was inadequate. contends court’s response contrary, accurately On the trial our later decision in the court anticipated II, 136, jury 37 the Ramos Cal.3d in which we noted that when raises supra, obviously the issue matter be avoided and is commutation “the cannot by probably best handled a short statement that Governor’s indicating but that it commutation to both sentences would power applies emphasizing be juror’s a violation of the to consider the of such commu duty possibility (Id. 159, fn. 12.) sentence.” at determining p. tation the appropriate II, forth in Ramos the trial court Without benefit admonition set that not to consider or correctly jury they nevertheless admonished the were death speculate impose on matters not them whether deciding before that or We have held such possibility life without of parole. previously to their proper are to advise the curative instructions adequate
111 543, 584 v. 44 Hovey (1988) Cal.3d considerations. sentencing [244 351, 121, v. 372- (1988) 749 P.2d Hamilton 776]; People Coleman, 46 v. 981]; supra, [221 court’s admonition was 780-782.) at we hold the trial pp. Accordingly, sentencing redirect attention its adequate jury’s proper responsibilities.
F.
Impact
Victim
Evidence
Relying
Maryland (1987)
on Booth
[96
S.Ct.
and South Carolina Gathers
In
Booth
U.S.
supra,
United States Supreme
Court
held that
admission of victim
capital
statements in
sen
impact
tencing proceedings
Eighth
violated the
introducing
Amendment
factors
“wholly unrelated to the blameworthiness of a
(Id.
defendant.”
particular
L.Ed.2d at
p. 449].)
statements
placed before
characteristics,
Booth
included
victims’
descriptions
personal
lengthy
and specific details
concerning
family,
actual
on the
impact
victims’
the family members’
about the
opinions
crime and the
In
defendant.
South
Gathers,
Carolina v.
We have previously held that Booth not apply does to the testimo ny of a victim of the defendant’s prior violent assaults offered as proof 190.3, “factor (b)” (§ crimes factor v. Karis 46 (b)). Cal.3d (1988) 612, 659, However, 640-641 758 1189].) P.2d Cal.Rptr. even assuming [250 arguendo that Booth was we applicable, nevertheless find no error. The evidence directly in question related to the circumstances of the crimes in 190.3, this case (§ subject factor a (a)), which remains to fair comment open 507, under Maryland. Booth v. U.S. at fn. 10 at (482 p. 451]; L.Ed.2d [96 291, see v. 348, also Carrera 49 People (1989) Cal.3d 336-337 Cal.Rptr. [261 Moreover, 777 brief, P.2d 121].) we have no doubt that the dispassionate Mr. Key statements concerning and Officer Reid their and the injuries 112 on the penalty reference thereto had no aifect appreciable
trial court’s brief verdict. Maryland, supra, on the basis of Booth v. objects
Defendant also 496, you reflect the “The want to prosecutor’s People U.S. statement: Defendant. There enormity for a of the crime committed while on normally long have a life ahead girl expected who could be young her, Graybeal never by the Defendant.... Theresa who was murdered family. To that her imagine with her friends or loss again speak would caused, you feel you imagine murder can do is the loss would thing has one you you if taken or murdered at young age someone close were from that, many no at all. Then because there were multiply persons, reason friends, family Graybeal.” who would miss Theresa Booth, While we are nevertheless persuad- under arguably inappropriate 739, here, ed that as Ghent Cal.3d 771-772 People (1987) [239 82, had no 1250], prosecutor’s remarks Cal.Rptr. appreciable here, Ghent, In observed that effect on the verdict. penalty prosecutor family loss to her and friends and profound victim’s death constituted “ your baby, you invited about how would feel if it were jurors ‘think (Id. wife, ....’” ob- your your your sister at As we daughter, p.772.) mild, “The served in Ghent: remarks were brief and comment- prosecutor’s Booth, resulting the obvious loss from death. Unlike ing upon [the victim’s] where details the actual given lengthy specific regarding family, here impact prosecutor’s on the victim’s effect prejudicial italics; minimal nonexistent.” undoubtedly (Ibid., original comments was or accord v. Adcox 47 Cal.3d 259-260 People Malone, 38-39.) similar 906]; People P.2d For pp. reasons, impact conclude the remarks prosecutor’s concerning we her family beyond victim’s death on friends and were harmless reasonable doubt. Penalty
G. Disproportionate be an given Defendant contends he should review on both proportionality intracase It is proportionality intercase and basis. well settled intercase review (See, e.g., is not mandated. Howard 444-445 279].) *37 review, v. As to intracase defendant Dillon cites is 697], arguing in that the death penalty Dillon, however, is dis- disproportionate culpability. plainly his personal There, who tinguishable. 17-year-old an immature defendant shot life imprisonment killed his victim out of fear and sentenced to panic was in of the court and that the sentence was excessive views despite (Id. in the record p. 487.) Nothing relation to his actual culpability. to similar factors in defendant’s case. points H. Assistance Counsel Ineffective
Finally, defendant contends he denied effective assistance of counsel at both the be guilt of trial. We find the contention to penalty phases without merit.
“A claiming ineffective assistance of counsel has the burden of that ‘counsel act in a manner showing failed to to be expected reasonably attorneys competent acting diligent advocates.’ (People addition, 23 Cal.3d at In Pope, supra, p. 425.) the defendant must show that counsel’s acts or him omissions of a meritorious de deprived potentially fense (ibid.) or that it is ‘reasonably a determination more favor probable able to the defendant would have resulted the absence of counsel’s fail Fosselman, ings’ (People supra, 584). Cal.3d at Once the defendant burdens, has met these court must examine the appellate record to determine whether there any explanation for counsel’s acts or omissions.” Miranda, Cal.3d at p. 119.)
Defendant asserts that trial counsel rendered ineffective assistance at the guilt First, phase trial in five he cites respects. counsel’s failure to im- Billy peach testimony B.’s testimony with his at the He preliminary hearing. contends such impeachment would have adduced evidence sufficient to an compel instruction Billy was an as a matter of accomplice law. We disagree. Billy’s testimony at both trials generally consistent; it showed that he victim, was informed of the plan steal the car and abduct the was aware that the others were armed. As discussed in II.B. part (ante, however, pp. 90-93), this was not sufficient to make Billy an as a accomplice matter of law. While impeachment have might exposed some inconsisten- Billy’s cies in testimony, the net result would still have been an instruction leaving it to the to sift through the conflicting evidence and determine for itself whether Billy anwas accomplice. Counsel diligently requested the court to instruct the jurors that Billy was an as a matter of law accomplice pursuant to CALJIC No. 3.16. No attempted impeachment Billy with his largely consistent testimony at the first trial and the preliminary hearing could have altered the court’s deny decision to the request.
Next defendant asserts that counsel was remiss an failing request instruction that evidence of oral admissions be should viewed with distrust 2.71, (CALJIC Nos. 2.71.7). As we concluded II.C. part (ante, pp. 93- however, 94), a result more favorable to defendant was not a reasonable probability absent this omission. In the absence of coun- prejudice, *38 be as constitu- the cannot characterized request sel’s failure to instruction 466 U.S. Washington (1984) tionally representation. (Strickland deficient 674, 693-699, v. Fossel- 2052]; People L.Ed.2d S.Ct. 687-696 man, 584.) supra, the object scores to to admis- failing
Defendant next defense counsel that noting seized cell. Other than the writings sion of the from his prison at his first objection trial,.however, were introduced over papers have basis for that counsel overlooked. objection might offers no potential Thus, object to failing no basis to that counsel erred in to there is conclude evidence, much less rendered ineffective assistance. the that he the failure auto- complains Defendant also of counsel’s to establish (where the from Sacramento to Manteca it group mobile in which traveled He point not stolen. asserts that was police) was impounded defendant intended to question permanently relevant to the of whether jury at his the murder victim her car. Defendant notes that deprive had not been informed vehicle impounded first trial was stipulation stolen. failure to the impounded
We are not
that counsel’s
establish
persuaded
constitutionally inadequate
car
been stolen
to the level of
had not
rises
First,
actually
of counsel.
was not
informed
assistance
stolen,
had
been
that the
officers
it
been
only
police
suspected
vehicle had
Furthermore,
overwhelmingly
indicated that defendant
stolen.
evidence
When
the murder victim of her vehicle.
permanently
intended
deprive
arrested,
execution-style slaying
several hours after the
defendant was
Hence,
victim,
car.
result
possession
probable
he was still
of the
it is not
omission,
favorable to
have resulted absent the
more
defendant would
constitutionally
have
inade
counsel cannot therefore be said to
rendered
Washington,
“sociopath,” “callous,” personality “selfish,” he type described as unconcerned with morality Also, “either or the rights others.” Dr. Mis- sett found no indication that defendant was psychotic, and while he specu- lated that stemmed, defendant’s behavior from a part, family violent background, he was unwilling testify that defendant had no “choice” but to act violently. The testimony of Drs. Leifer and Melges at the guilt phase similarly couched. Dr. Melges stated that he had diagnosed defendant as a sociopathic type. Dr. Leifer testified that defendant’s performance on various intelligence tests varied widely, from extremely retarded to average; conceded, however, Dr. Leifer that defendant had the capacity to under- stand the moral Furthermore, and societal sanctions against killing. Dr. Zeifert, a psychiatrist who testified rebuttal, for the prosecution on stated that defendant’s test results did not indicate a mental defect or an inability to premeditate and deliberate.
A diligent attorney reviewing foregoing medical testimony from de fendant’s first trial might reasonably have concluded that on the whole the evidence was far more than damaging helpful. recently As we observed with to a respect claim of facts, ineffective assistance based very similar record here amply justifies a “tactical decision not to open the ‘Pandora’s Miranda, Box’ of defendant’s [psychological] background.” su pra, Cal.3d at p. 122.) This decision was well within the range reason ably Fosselman, competent assistance. (Id. 123; at p. People Cal. 3d at p. 584.)
Defendant nevertheless insists that the medical testimony was necessary to show that defendant came from an unstable and violent family In background. this regard, defendant also asserts that counsel was remiss failing call Ethel Bollmeyer, who testified at defendant’s first penalty years. mother for several as defendant’s foster trial that she served happily a rebuttal witness who the fact that the called Defendant overlooks *40 Fuchs, a Bollmeyer’s supervising Mr. testimony. Mrs. sharply contradicted Fresno, Bollmeyer that Mrs. County officer testified for probation Thus, home. the record him remove defendant from her had asked to called Mrs. satisfactory having tactical reason for eminently an displays v. Bab- (See People second trial. Bollmeyer testify penalty at defendant’s 69, 755 253].) (1988) bitt 707 called witnesses the fact that counsel four Defendant further overlooks directly defendant’s background of whom testified about two penalty phase, Walden, juvenile director of probation and social Joe development. he first met defendant County Fresno Probation testified that Department, family dependency for a investigate defendant’s assigned when he beating, and had received a severe years Defendant was six old hearing. cord, a from his mother. Walden explained possibly telephone in both a record and had served time defendant’s father had arrest lengthy had on several occa- county and state His mother been arrested jail prison. a county investigation, had time in As result spent jail. sions and initially admitted was declared child. He was dependent defendant later in a foster placed for a evaluation and Napa Hospital lengthy State years. home for four Montgomery, who was personally acquaint-
Counsel also called Theresa family spent defendant some ed with defendant’s and the reservation where from first hand youth. Montgomery experience of his Ms. described alcohol and the lack of educational drugs oppor- influence of and pervasive portion prior on the reservation. Counsel also presented tunities Shacklett, interviewed investigator, Jean who had testimony parole observed at the time after the homicide. Ms. Shacklett day and a had sores that infected open appeared that defendant’s arm several mark, all of this drug emphasized needle recent use. Counsel suggesting a youth argument, portraying during phase eloquently evidence penalty environment, subjected to physical and home deprived of decent stable abuse, in foster homes. placed record, adequately
On conclude that counsel failed this we cannot character or to render background evidence of defendant’s present Miranda, constitutionally of counsel. (People supra, effective assistance Babbitt, 122-123; 707.) 45 Cal.3d at Cal.3d at pp.
IV. Conclusion entirety. in its judgment is affirmed J., Kennard, J., J., Lucas, J., Broussard, J., Panelli, Eagleson, C. concurred. review,
MOSK, I J I concur After have found no error judgment. reversal. requiring
I write I separately join majority’s because cannot in the labored and analysis mischievous potentially concerning defendant’s interrelated claims the court was authority without to hold on his se proceedings pro motion for substitution of counsel after it ordered a into his mental hearing competence; (2) the court failed to a meaningful conduct mental-compe- tence hearing; statutory of mental presumption competence Code, *41 (Pen. subd. is violative (f)) of due when a defendant process § has offered constitutionally some significant contrary. evidence to the
First, the court did indeed have authority to hold on defend- proceedings pro ant’s se substitution-of-counsel motion even after a mental- ordering competence It is hearing. true that Penal Code section subdivision (c), in provides relevant that “when an part order for a into the hearing present issued, mental competence of the defendant has been all in the proceedings criminal prosecution shall be until the suspended of the question present mental of the competence defendant has been determined.” The evident intent of the Legislature enacting statutory provisions on the determi- Code, nation of mental competence (Pen. 1367 et seq.) was to establish a § form of inquiry that fair in procedure and reliable in result. In light intent, “all phrase proceedings” should be construed to mean “all proceedings except may such as be reasonably necessary to facilitate determination mental competence.” The court impliedly found that the proceedings on defendant’s substitution-of-counsel motion were in fact rea- sonably necessary to facilitate that standard, any determination. Under finding was sound.
Second, the court did indeed conduct a meaningful mental-competence hearing. It is reasonably clear from a close reading the record that the court’s determination of defendant’s mental competence was based on what heard, it saw and camera, court open especially in the course of the ancillary proceedings defendant’s substitution-ofcounsel motion. It impliedly found that defendant did any not harbor delusions at all affecting his mental competence, merely but entertained “a distrust deep for the public defender” 63, 70, fn. 2 Cal.App.3d Huffman Cal.Rptr. 264])—an attitude that may be baseless but evidently is uncommon. “It is an odd phenomenon familiar to all trial who judges handle arraignment calendars that some criminal defendants have a deep criminal that a .... It almost a truism for the defender public
distrust than the most counsel most inept private rather have the defendant would standard, any Under (Ibid.) defender.” and capable public skilled sound. competence mental of defendant’s determination court’s of mental Third, statutory presumption need not decide whether we Code, 1369, when process is violative of due (f)) subd. (Pen. competence § to the con- evidence constitutionally significant offered some defendant has case, incompe- of mental any evidence did not offer trary. In this “a initiated when Here, were the relevant proceedings tence whatever. competence the mental as to judge in the mind of doubt [arose] Code, 1368, arose not from That doubt (a).) subd. . . .” (Pen. defendant. § defendant, made from merely representations but evidence introduced his counsel. hold that the majority problems.
In I note two additional passing, B. Billy was whether to determine by instructing not err court did They conclusion. analysis opposite supports an But their accomplice. *42 as to accomplice B. not an Billy was evidence indicated state that “the ante, p. 92.) (Maj. opn., defendant.” any charged against of the offenses the issue by leaving court erred follow that the From that assertion it would lacking. evidentiary support liability jury: for the of accomplice “ claim, ‘A declare: majority In an ineffective-assistance addressing the burden of show- of counsel has ineffective assistance claiming defendant reasonably manner to be expected failed to act that “counsel ing addition, In as advocates.” attorneys acting diligent competent [Citation.] him aof deprived acts or omissions must that counsel’s the defendant show “reasonably probable or that it is defense meritorious potentially [citation] in the have resulted the defendant would more favorable to determination met these has Once the failings” absence of counsel’s [citation]. whether burdens, record to determine must examine the court appellate ” ante, at (Maj. opn., acts or omissions’ counsel’s any there is explanation for the burdens of show- 113, has met But once the defendant added.) italics language The italicized he prevails. and prejudice, deficient ing performance be can somehow performance that deficient majority implies opinion constitutionally insig- rendered any event or excused—or justified however, is untenable. Such a position, it can be “explained.” nificant—if his expla- standard: objective under an is evaluated performance Counsel’s act, if his immaterial he did is simply acting, failing nation for or professional prevailing unreasonable under objectively in fact conduct is 668, 687-688 466 U.S. Washington (1984) (See norms. Strickland Constitution]; 693-694, federal under 104 S.Ct. L.Ed.2d 2052] [decided v. Ledesma Constitutions].) under federal and state 839] [decided reversal, Nevertheless, I concur in the no error requiring found having judgment. denied 1990. rehearing August
Appellant’s petition