Lead Opinion
Opinion
A jury convicted defendant Keith Tyson Thomas of the first degree murder of Francia Young (Pen. Code, § 187, subd. (a)),
The jury also convicted defendant of robbing Sebrena Flennaugh (§ 211), assaulting two peace officers with an assault weapon (§ 245, subd. (d)(3)), and being a felon in possession of a firearm (former § 12021, subd. (a)). The jury found true the allegations that a principal was armed with a firearm during the Flennaugh robbery and the assaults on the police officers.
The jury returned a verdict of death for the murder of Young. The trial court denied defendant’s motion to modify the verdict (§ 190.4, subd. (e)), sentenced defendant to death, imposed a concurrent sentence of life with the possibility of parole for the kidnapping of Young, and stayed imposition of
I. Factual Background
A. Guilt Phase
1. Prosecution case
a. Crimes against Francia Young
In 1992, Francia Young, a 25-year-old African-American woman, lived with her mother in Oakland, California. Young worked in San Francisco as a computer analyst. She typically commuted to work by driving her car, a black Ford Mustang, to the MacArthur Bay Area Rapid Transit (BART) station, parking there, and taking the train to work. On December 8, 1992, Young left for work around 7:00 a.m. She was wearing a long raincoat and had with her a multicolored umbrella she had borrowed from her mother. Young usually returned home around 5:30 in the evening, but she did not come back that night.
About 6:00 p.m. on December 8, 1992, William Dials had just left the MacArthur BART station and was walking down an adjoining street when he heard a woman scream from the other side of the street. Dials looked in the direction of the scream and saw two African-American men and an African-American woman standing near a dark-colored Mustang. The man on the driver’s side of the vehicle, who appeared to be heavier than the man on the passenger side, got into the car with the woman. The man on the passenger side stood outside the car with his hands on the roof, looking around. After a few moments, the heavier man and the woman got out of the car and went toward the trunk; the woman then got into the trunk and the man closed the lid. The two men got into the car and, after waiting a minute or two, drove away. Dials returned to the BART station and reported what he had seen to BART officials and later to the Oakland Police Department. At trial, Dials testified that the heavier of the two men resembled Henry Glover, Jr., in body shape, while the thinner man resembled defendant in build.
Beginning at 8:04 p.m., three successful withdrawals of $100 each from Young’s bank account were made through an automated teller machine
At 8:30 that night, California Highway Patrol Officer Matthew Trezesniewski found Young’s black Ford Mustang blocking the two right-hand lanes of eastbound Highway 580 near the Fruitvale exit. The abandoned car was damaged from striking a guardrail.
At 10:50 that night, two people tried to access Young’s bank account through an ATM. The attempts were unsuccessful because the maximum daily withdrawal limit had been reached. A surveillance photograph taken during these attempts showed an individual resembling defendant standing and holding an umbrella while another person attempted the withdrawal.
The next morning, December 9, 1992, Officer Ronald Andersen of the East Bay Regional Parks Department responded to a report of a dead body near a hiking trail in the George Miller regional park in Point Richmond. There Andersen found a pile of women’s clothing approximately 25 feet from the trailhead, and Young’s body approximately 250 feet farther up the trail. Her body was lying facedown, clothed only in a blazer. Her arms were tied behind her back with a scarf and her ankles were tied together with a pair of panty hose, which had also been tied to a tree branch. A recently discarded condom wrapper was found several yards from the body.
Pathologist Charles Kikes performed the autopsy. Young had been killed by a single gunshot to her head. The gun had been fired into the back of her head while the muzzle of the weapon was in contact with her skin. The bullet passed through her brain and came out near her right jaw. Vaginal and anal swabs collected from the body by the pathologist indicated the presence of spermatozoa. Dr. Edward Blake performed genetic testing on the swabs with the polymerase chain reaction (PCR) typing process. The PCR results on both of the samples eliminated Henry Glover, Jr., as a possible donor, but not defendant. As to the vaginal sperm sample, Dr. Blake calculated the frequency of that genetic profile in the general population as less than one in 100,000 persons. Because of the more limited amount of genetic material in the anal swab, the frequency of the genetic profile that Dr. Blake obtained from that sample was one in 400.
b. Crimes against Sebrena Flennaugh
On the night of December 20, 1992, Sebrena Flennaugh, then eight or nine months pregnant, was in her apartment in Hayward, California, cooking dinner and talking on the telephone when she heard a knock on her door. A person outside asked if someone unknown to her lived in the apartment, and
At that point, two officers from the Hayward Police Department arrived in response to the disconnected 911 call and knocked on the door. After they announced their presence, Glover ran to the apartment’s balcony while defendant remained inside. The officers, hearing the door to the balcony open, ran outside and saw Glover peeking over the edge of the balcony wall and pointing a rifle at them. Glover fired a shot that struck a wall within a foot of where the officers were standing. They fired back at Glover, but he jumped down from the balcony and, continuing to shoot at the officers, escaped.
Meanwhile, defendant remained in the apartment and told Flennaugh not to tell the police he was involved in the robbery. When the two police officers returned to Flennaugh’s apartment, defendant told them he was on a social visit to Flennaugh and like her was a victim of the attempted robbery. He said he did not know the robber. Flennaugh, who was visibly shaken and had trouble speaking, did not contradict defendant’s story, and the police eventually let defendant leave. Flennaugh did not tell the police that defendant was one of the two robbers until a detective came back the next day to talk to her about the incident.
c. Investigation and defendant’s confessions
Based on Flennaugh’s description of the robber and other information, Detective Frank Daley of the Hayward Police Department surmised that the suspect with the gun was Henry Glover, Jr., and further determined that Glover was staying in a motel in Oakland. On December 23, 1992, Daley questioned Glover at the motel and ultimately arrested him for the Flennaugh robbery. Later that day, homicide investigator Sergeant David Kozicki of the Oakland Police Department and Sergeant Larry Kiefer of the East Bay Regional Parks Department, who were investigating the Francia Young killing and suspected Glover was a participant in those crimes, searched Glover’s
After the Young killing, the police released to the media the ATM photograph showing one person (defendant) standing with an umbrella while another person was using Young’s ATM card. At 1:20 a.m. on December 24, 1992, defendant turned himself in at the Oakland Police Department. Defendant told the desk officer that he was wanted for a murder connected to a BART station, he had seen his picture in the newspaper, and “just wanted to get this out of the way.” Defendant, who by then was a suspected accomplice in the Flennaugh attempted robbery, was turned over to the Hayward Police Department.
On December 26, 1992, Sergeants Kozicki and Kiefer interviewed defendant in Hayward regarding the Francia Young crimes. After being advised of and waiving his rights under Miranda v. Arizona (1966)
After a break in the questioning, defendant gave a second version of the events. This time he told the officers that Glover had proposed robbing a grocery store, but first needed to obtain a car. Glover had seen a black Mustang parked at a BART station and suggested they wait for the owner and then steal the car. After identifying the car, Glover told defendant to retrieve a rifle Glover had hidden nearby. When defendant returned to the car, Glover was closing the trunk on someone inside. Defendant told the officers he suggested to Glover that they just let the person go and keep the car. Instead, they drove to Richmond. After parking the car, Glover got out and removed a woman from the trunk. Defendant stayed in the car listening to the radio, but after approximately 10 minutes, he got out to see what was happening. Defendant said he walked about 20 yards up a hill, where he saw the woman tied up with only a light-colored shirt on. Defendant said he was shocked and
After a few minutes of additional police questioning, defendant admitted having had sexual intercourse with the woman. This time he told them that when he went 10 to 15 yards up the hill, he saw Glover having sex with the woman. Defendant then had sex with her and ejaculated. Glover then walked the victim farther up the hill. Defendant denied involvement in killing the woman, saying he did not know of her death until he heard a news report about the crimes two days later.
Thereafter, the officers conducted a tape-recorded interview in which defendant summarized what he previously had told them. At trial, the jury heard the tape recording.
Also during the interview conducted by Sergeants Kozicki and Kiefer, defendant admitted he had participated in robbing Sebrena Flennaugh. Glover had asked defendant to “watch his back” while Glover retaliated against someone who had “ripped him off.”
2. Defense case
At the guilt phase of defendant’s capital trial, defendant rested without presenting any evidence. In closing argument to the jury, defense counsel essentially conceded defendant’s guilt of most of the offenses, explicitly contesting only the sodomy charge and the personal use of a firearm and special circumstance allegations.
B. Penalty Phase
1. Prosecution case
At the penalty phase pertaining to Young’s murder, the prosecution presented evidence of five unadjudicated criminal incidents involving defendant as well as his 1991 felony conviction for the transportation and sale of narcotics.
The second and third incidents, one on October 19, 1989, and one on February 11, 1992, involved defendant’s striking his girlfriend, Cathy Brown, in the face.
The fourth incident occurred on July 28, 1992, when defendant was in a group of six or seven youths who confronted Timothy McNulty and two of his friends. The two groups were passing on a sidewalk when someone in defendant’s group tried to remove something from McNulty’s pocket. When McNulty confronted the person, someone else in defendant’s group punched McNulty in the face, knocking him to the ground. When McNulty tried to get back up, defendant pushed him back down. The two groups then separated.
The fifth incident occurred on December 11, 1992 (three days after the murder of Francia Young). That day, Richard Warren’s silver Dodge Colt car was stolen from the MacArthur BART station sometime before 6:00 p.m. About 8:00 that evening, Constance Silvey-White had just parked her car at her home in Berkeley, and was walking down her driveway toward the street to retrieve her garbage cans when two men came out from behind a bush. One of them told her to be quiet and not to do anything. When she tried to get away from the man, he went after her and punched her in the face, causing her nose to bleed. Silvey-White saw the other man, whom she identified at trial as defendant, go to her car and release the trunk lid. The first man ordered Silvey-White to get into the trunk of the car, but she continued to struggle against him. Responding to her screams for help, a neighbor came outside, and the two men left. The neighbor testified that the men got into a silver Dodge Colt and drove away.
The prosecution also presented victim impact evidence. Mary Young, who was murder victim Francia Young’s mother, and family friend Ely Gassoway described Francia as a kind person who helped others. She was very active in her church, where she sang in the choir and served as a financial secretary, a Sunday school teacher, and an usher. Mary and Francia were very close and the murder was devastating for Mary, who had difficulty sleeping for several months and eventually had to be hospitalized for a week, followed by grief counseling. Gassoway testified that Francia was like a daughter to him and her murder and her absence from his life was very painful to him.
2. Defense case
At the penalty phase, defendant called as a witness Berkeley Police Officer Pete Gomez to attempt to impeach Constance Silvey-White’s identification of
Defendant also presented the testimony of several witnesses concerning his abusive and destructive family history. Three Alameda County social workers testified to certain aspects of defendant’s childhood and relationship with his mother, Veronica Johnson. The social workers learned that as a child Johnson had been sexually and physically abused. When Johnson was 16 years old, she ran away after the aunt who was taking care of her beat her with an umbrella. Shortly thereafter, Johnson met defendant’s father, Keith Tyson Thomas, Sr.; she became pregnant by him at age 17 and gave birth to defendant. When defendant was a mere toddler, Johnson would beat him for misbehavior. She told the social workers that beginning at the age of two defendant had been sexually active with other children in the neighborhood and with an adult roommate. When he was seven years old, defendant told a social worker that he did not recall those several incidents, but he mentioned other sexual activities. The social worker described the apartment in which Johnson and defendant were living as “extremely cramped” and unkempt. Johnson used the bedroom for herself, while defendant slept on a couch in the living room.
When defendant was seven years old, he was placed in a facility for neglected and abused children. Defendant eventually was returned to his mother’s care, but when social workers learned she continued to beat him for disobedience, the police were notified and defendant was removed.
Defendant’s paternal grandmother, Pauline Thomas, testified that when defendant was seven or eight years old and living in a foster home, he would stay with her during weekends. At first, defendant was very quiet and seemed afraid, although he seemed to be happy living in his foster home. Thomas testified that at one point defendant told her he wished he were dead. At some point defendant began living with Thomas full time, and did so for several months. Defendant had a friend in the neighborhood, he behaved, and became more relaxed. After defendant’s mother took defendant back, Thomas did not see him for several years until defendant started living with his father in Sacramento. Because Thomas’s mother also lived in Sacramento, Thomas would occasionally see defendant at her mother’s home. Thomas remembered
Defendant’s father testified he had been largely absent from defendant’s life because of the father’s criminal activities, which included drug dealing and drug use, pandering, and violence. He had “quite a few” felony convictions, and spent time in prison as well as jail. Defendant was about 12 years old when, at his mother’s request, he started living with his father in Sacramento. Also living there were the father’s girlfriend, Joyce Smith, and several other people. All the adults in the house were drug and alcohol abusers.
Joyce Smith testified to the chaotic living conditions at her house when defendant lived there, together with a mentally disturbed friend of Smith’s, Smith’s drug-dealing mother, and a man who drank heavily. Defendant presented no discipline problems at the house; he was very respectful and generally got along well with other children in the neighborhood and at school. Smith’s son James was severely disabled from spina bifida and hydrocephalus. Defendant would change James’s diapers, give him his medications and play with him. James could not speak, but would smile and laugh when defendant arrived home from school, and would cry when defendant left. Smith and defendant’s father often had violent fights, and they eventually separated.
Psychologist Ranald Bruce testified that based on the information provided to him, he would characterize defendant’s upbringing as a “confluence of abuse and rejection and abandonment,” which likely would have resulted in defendant’s “entering] early adulthood with severely compromised psychological functioning.” Children who, like defendant, experience deficient parenting, abuse, and rejection often have “unstable emotions, very low self-esteem, a tendency to have very bad mood swings, a lack of direction in life, [and] an inability sometimes to determine what’s real and what’s not real.” Based on reports of defendant’s sexual conduct with other children at a very early age, defendant, according to Bruce, may have been seeking attention and affection. In Bruce’s opinion, a person with a background like defendant’s would have “serious compromises in their ability to function appropriately,” and “as the person goes through their life, the backlog of lack of success, of hopelessness, builds up and builds up and builds up. They become like a ticking time bomb. Sooner or later you’re going to have something happen.”
A. Removal of the Public Defender’s Office as Defendant’s Counsel
Defendant contends that the trial court violated his constitutional and statutory rights to counsel when it terminated the public defender’s office’s representation of him. We disagree.
Defendant and Henry Glover, Jr., were jointly charged. The trial court eventually granted Glover’s severance motion.
As we will explain, defendant has not established a violation of his constitutional rights. Regarding defendant’s claim that the trial court abused its discretion under statutory law by discharging the entire public defender’s office, the court’s ruling predated our decision in In re Charlisse C. (2008)
The trial court’s ruling removing the public defender’s office as defendant’s attorneys did not violate either his federal or his state constitutional right to counsel. A defendant who requires appointed counsel does not have a constitutional right to a counsel of choice. (People v. Noriega (2010)
Finally, even assuming that the trial court abused its discretion under statutory law, defendant has not shown any such error was prejudicial. He has not shown a reasonable probability (see Noriega, supra,
B. Admission of Defendant’s Statements to Police
Before trial, defendant moved to exclude the statements he had made to Sergeants Kozicki and Kiefer regarding the Francia Young crimes, asserting
The testimony at the hearing established the following: Defendant turned himself in to the Oakland Police Department in the early morning hours of December 24, 1992. Because Hayward police officers had already identified defendant as a suspect in the Sebrena Flennaugh robbery, defendant was transported to the Hayward Police Department. There, around 2:00 a.m., he was questioned by Detective Frank Daley, who was investigating the Flennaugh crimes. Defendant initially waived his rights under Miranda, supra,
At 6:00 p.m. that same day, defendant told jail security officer Anna Christensen that he wanted to talk to a detective. After Christensen unsuccessfully attempted to contact the detective bureau by telephone, she mentioned tire matter to Detective Richard Allen, who happened to be at the jail and was involved in the Flennaugh investigation. Detective Allen, who knew that defendant had invoked his right to counsel during the interview with Detective Daley, went to defendant’s cell. Detective Allen told defendant that although Detective Daley was not available, Allen was familiar with the case. Allen then asked defendant whether, having invoked his right to counsel during the prior interview, defendant now nonetheless wanted to speak to the detective. Defendant confirmed he had invoked his right to counsel, adding that he had “spoken to an attorney,” that he wanted “to make this right,” and that he wanted “to talk about it.” Detective Allen then took defendant to an interview room, where he advised defendant of his Miranda rights, and confirmed several times that although defendant had previously invoked his right to counsel, he now wanted to talk to the detective without counsel present. Defendant then discussed the Flennaugh crimes with the detective. The Francia Young crimes were not mentioned.
On the morning of December 26, 1992, Detective Allen told Sergeant Kozicki that defendant had reinitiated contact with the detectives, agreed to be interviewed, and made a statement concerning the Flennaugh crimes. At Kozicki’s request, a deputy district attorney reviewed the tape recording of Detective Allen’s interview of defendant, then told Kozicki it would be legally permissible to interview defendant. Later that afternoon, Sergeants Kozicki and Kiefer, who knew that defendant had invoked his right to
Contrary to defendant’s contention, the interview with Sergeants Kozicki and Kiefer did not violate Edwards, supra,
In Edwards, supra,
The purpose of the rule in Edwards, supra,
Defendant here argues, in essence, that because under the rule of Edwards, supra,
In reviewing the propriety of police questioning after an invocation of the Fifth Amendment right to counsel and a later reinitiation of contact by the suspect, a court must determine whether the purpose of the Edwards presumption of involuntariness—to prevent police badgering leading to coerced confessions—would be served by applying the presumption in that particular case. The circumstances in this case show that defendant’s statements to Sergeants Kozicki and Kiefer were not coerced by police badgering. It was defendant who initially invoked his constitutional right, but then told the Hayward detective that he wanted to talk to the detective without counsel present. Without more, there is no reason to conclude that the statements defendant later gave to Sergeants Kozicki and Kiefer about the Francia Young crimes—after again being properly advised of his Miranda rights and again agreeing to waive those rights—resulted from improper badgering and coercion by those officers. There is no reason why, if defendant did not want to talk with Sergeants Kozicki and Kiefer without an attorney present, he could not have simply said so, and there is no reason to doubt that defendant knew this, given that the first time he had asserted his right to counsel the questioning had immediately ceased and no attempts to question him were made until he volunteered to talk. (See Shatzer, supra, 559 U.S. at pp. 107-108 [
To the extent that in some circumstances a suspect’s reinitiation of contact with the police could be deemed to affirmatively limit questioning to only certain crimes, that did not happen here, contrary to defendant’s assertions on appeal. (See Connecticut v. Barrett (1987)
C. Failure of the Police to Record All of Defendant’s Statements
Sergeant Kozicki testified that, following standard operating procedures of the Oakland Police Department, he did not tape-record his initial discussions with defendant about the Francia Young crimes, but only recorded defendant’s final statement summarizing what defendant had already told the officers. Defendant contends, as he did in a motion to suppress his statements, that the failure to tape-record all of the discussions, including his Miranda waivers, violated his right to due process, constituted the destruction of exculpatory evidence in violation of California v. Trombetta (1984)
We have previously rejected the claim that fundamental fairness requires that any incriminating statements made by the suspect must be excluded from admission into evidence unless there is a complete tape recording of a police interview. (People v. Holt (1997)
Finally, as we have done regarding similar claims in the past, we reject defendant’s contention that the absence of a recording of the Miranda advisements and his waiver of his rights precludes the conclusion that his waiver was knowing and voluntary. (See People v. Gurule (2002)
Similarly unsupported is defendant’s allegation that Sergeant Kozicki engaged in “trickery” by implying that the case against defendant was already strong, thereby assertedly undermining the voluntariness of his Miranda waiver. We will assume for argument’s sake that informing a suspect of the
D. Denial of Motion to Exclude Constance Silvey-White’s Identification of Defendant as One of Her Attackers
Defendant moved before trial to exclude testimony and evidence regarding Constance Silvey-White’s identification of him as one of the two men who attacked her in her driveway. He contends on appeal that the trial court erred by denying the motion. The trial court did not err.
“ ‘In order to determine whether the admission of identification evidence violates a defendant’s right to due process of law, we consider (1) whether the identification procedure was unduly suggestive and unnecessary, and, if so, (2) whether the identification itself was nevertheless reliable under the totality of the circumstances, taking into account such factors as the opportunity of the witness to view the suspect at the time of the offense, the witness’s degree of attention at the time of the offense, the accuracy of his or her prior description of the suspect, the level of certainty demonstrated at the time of the identification, and the lapse of time between the offense and the identification.’ [Citation.] ‘We review deferentially the trial court’s findings of historical fact, especially those that turn on credibility determinations, but we independently review the trial court’s ruling regarding whether, under those facts, a pretrial identification procedure was unduly suggestive.’ [Citation.] ‘Only if the challenged identification procedure is unnecessarily suggestive is
Because we reject defendant’s claim that the lineup procedure arranged by the police in this case was unduly suggestive and unnecessary, we need not address the reliability of the identification. The factual circumstances regarding Silvey-White’s identification of defendant were as follows: The attack on her occurred on December 11, 1992. The officer who took her statement at the scene had written in his report that she “did not see suspect number two very good.” Inspector Daniel Wolke of the Berkeley Police Department first spoke to Silvey-White about the incident on December 14, 1992. On December 17, 1992, Wolke took her to San Jose to work with an artist on a composite drawing of the man who attacked her. According to Inspector Wolke’s testimony, Silvey-White said she did not think that she could complete a composite drawing of the second suspect because “she had a better recollection of number one.”
On January 7, 1993, after Silvey-White returned from a trip to Texas, Inspector Wolke brought her to a live lineup conducted by the Oakland Police Department. Wolke told her the persons who had attempted to kidnap her might or might not be there. Silvey-White testified that she had not been told how many suspects might be participating in the lineup, and “had no way of knowing” if any of them actually would be there.
Present in the lineup were defendant, Henry Glover, Jr., and six other African-American men. Each participant was directed to put on a baseball cap and then a knit cap, and also to say the words the attacker had spoken to Silvey-White during the incident. She positively identified Henry Glover, Jr., as the man who had assaulted her, by placing an “X” in Glover’s position on her lineup card. She placed a question mark in defendant’s position on the
Defendant first contends the lineup was unduly suggestive because (1) Inspector Wolke had told Silvey-White that the attack on her might have been related to the Francia Young crimes, and (2) the local news media had been covering that story, and therefore Silvey-White “had ample opportunity to view images of the BART murder suspects prior to the lineup.” Even assuming defendant has alleged sufficient police involvement in the asserted suggestive procedures as required by the Perry holding, his contention nonetheless lacks merit. (See Perry, supra, 565 U.S. at pp. - [132 S.Ct. at pp. 727-728] [mentioning as an example of non-police-arranged circumstances, the suggestiveness created if “a witness identifies the defendant to police officers after seeing a photograph of the defendant in the press captioned ‘theft suspect,’ or hearing a radio report implicating the defendant in the crime”].) Silvey-White testified she did not see any photographs of the Young murder suspects before she left for Texas, there was no coverage of the murder in Texas, and she had returned to Oakland only a day or two before the lineup. Because defendant merely speculates that she could have seen photographs of the Young murder suspects, he has not demonstrated that the identification procedure was unduly suggestive in this regard. Moreover, even if Silvey-White had seen photographs of those suspects, this would not lead to the conclusion that having her view the lineup to identify the suspects in her case would have been unnecessarily suggestive as a matter of due process. This is especially so in light of safeguards taken to ensure the fairness of the lineup, such as the police informing her that the perpetrators in her incident might not be in the lineup, and the police compiling a reasonably balanced group of subjects for Silvey-White to view.
Defendant next argues that the nature of the lineup itself made it unduly suggestive. He asserts: (1) Glover was the only subject who, consistent with Silvey-White’s description of the man who attacked her, had “substantial” facial hair; (2) the presence of Glover and defendant in the same lineup, in effect, made the lineup as to defendant only a seven-person lineup because “there was every reason to believe she would pick out Glover as the assailant”; and (3) the joint lineup “allowed [her] to focus upon the remaining
These circumstances do not make the lineup unduly suggestive as to defendant.
E. Denial of Motion to Dismiss Personal Use of a Firearm Allegations Based on Prosecution’s Inconsistent Theories Concerning the Actual Killer
Before trial, defendant moved to dismiss allegations he personally used a firearm during the crimes against Francia Young on the ground that the same prosecutor had filed the same personal firearm use allegations against Henry Glover, Jr., and had argued at Glover’s separate trial that Glover fired the single fatal shot. Defendant asserted that it would be prosecutorial misconduct if the prosecution were allowed to present inconsistent theories regarding who was the actual killer and a violation of his right to a fair trial. The trial court denied the motion. It agreed with the prosecutor that because the evidence was conflicting and Glover’s jury had found the personal use allegations not true as to Glover, defendant’s jury could consider whether defendant was the actual killer.
Before the closing arguments at the guilt phase of the trial, defendant moved to preclude the prosecutor from arguing that he was the actual killer, or, in the alternative, to permit the defense to present evidence of the prosecutor’s argument at Glover’s trial that Glover was the actual killer. The trial court denied the motions. The prosecutor argued to the jury that defendant’s own statements to the police established that only he handled the
Defendant contends the trial court’s rulings were erroneous and that, notwithstanding the jury’s verdict on the personal use allegations, he was prejudiced at both the guilt and penalty phases of trial by the error. We need not consider defendant’s assertion that the trial court’s rulings were in error. Allowing the prosecution to pursue the personal use allegations against defendant and to argue he was the actual killer was harmless beyond a reasonable doubt.
The trial court’s rulings clearly had no prejudicial effect on the guilt phase verdict. The verdict forms specifically directed the jury to find whether defendant “did” or “did not” personally use a firearm during the offenses, not whether the allegation was true or not true. The jury’s determination that defendant did not use the firearm compels the conclusion beyond a reasonable doubt that the personal use allegations did not influence the jury’s decision adversely to defendant at the guilt phase.
We are also unpersuaded by defendant’s argument that the jury’s consideration of the personal use allegations at the guilt phase could have prejudicially affected the penalty verdict. Here, as noted above, the jury’s verdict was that defendant did not personally use the firearm during the offenses, a verdict that necessarily implied that the jury in this trial concluded that Glover used the gun and was the actual killer. It is therefore clear that the jury did not consider or use the personal use allegations as aggravating factors at the penalty phase.
This conclusion is further supported by both the prosecution and the defense explicitly stating in their arguments that the jury had determined that defendant had actually not used the firearm during the offenses. During closing' arguments, the prosecutor said: “Now this bears some discussion. Bear in mind, however, that by your verdict in the guilt phase, finding him to have not used a firearm, you found him to be the non-shooter, so he was an accomplice in Francia’s murder. You found him to be the non-shooter. That means that Glover was the shooter in your mind. Therefore, he was the non-shooter.”
Defense counsel expressed the same interpretation of the personal use allegation verdicts at the beginning of his argument to the jury: “Needless to •say, we are particularly gratified on your vote on the gun use . . . because I believe, particularly now that all the evidence is in, that it does show that while he’s been rightly—rightly convicted of murder, he is not a killer. And I am gratified that the district attorney accepts that verdict, also, and has told
We conclude there is no reasonable possibility that defendant would have received a more favorable penalty verdict had the personal firearm use allegations been stricken, or had the jury been informed that the prosecutor had argued Glover was the actual killer at the latter’s trial.
F. Failure to Excuse Prospective Jurors for Cause
Defendant contends the trial court erred by denying his motions to excuse for cause four prospective jurors. As defendant acknowledges, the claim is not preserved because he used only 16 of his 20 peremptory challenges in choosing the jury, and he did not express dissatisfaction with the jury when it was seated. (People v. Beames (2007)
III. Guilt Phase Issues
A. Admission of Crime Scene Photographs of the Victim
Defendant contends the trial court abused its discretion and violated his federal constitutional right to due process by admitting at trial, over his objections, photographs of Francia Young at the murder scene depicting the state of her body and her wounds. Defendant argued the jury’s viewing of the photographs would be more prejudicial than probative. (Evid. Code, § 352.) We have reviewed the photographs at issue, and, like most photographs of murder victims, they are disturbing and unpleasant. Nonetheless, we conclude that the trial court did not abuse its discretion in overruling defendant’s objections. The photographs were admissible to show the nature of the murder and to explain and corroborate other evidence. (See People v. Riggs (2008)
Defendant contends that the trial court erred in denying his motion for a mistrial after a detective testified that defendant during a police interrogation asked for an attorney. We disagree.
During the direct examination of Hayward Police Detective Daley concerning his interview with defendant, the prosecutor asked Daley if defendant had denied being involved in the Sebrena Flennaugh robbery, and Daley answered that defendant had done so. The prosecutor then asked, “And was all questioning stopped at that point in time?” Daley answered, “After a few minutes, he said he wanted a lawyer, and I stopped.” The prosecutor asked no further questions, and cross-examination by the defense began. At the next break in the proceedings, defense counsel moved for a mistrial based on Detective Daley’s having informed the jury that defendant had asserted his constitutional right to counsel. The prosecutor represented to the court that Daley’s comment was unanticipated, gratuitous, and nonresponsive. The trial court ruled that error had occurred, but the error did not “rise[] to the level that it denies [defendant] his right to a fair trial.”
Under Doyle v. Ohio (1976)
In any event, even if the testimony could be considered a Doyle violation, we would conclude any error was harmless beyond a reasonable doubt. Defendant’s initial denial of his involvement in the Flennaugh robbery was impeached not by his invocation of right to counsel, but by his later admission to Sergeants Kozicki and Kiefer that he had, in fact, been a participant in the crimes. Moreover, his guilt of the offenses arising from this incident was overwhelming and was not contested at trial. (See Brecht v. Abrahamson (1993)
C. Asserted Prosecutorial Misconduct During Argument to the Jury
Defendant contends the prosecutor committed misconduct during his arguments to the jury at the conclusion of the guilt phase. He asserts that comments made by the prosecutor shifted the burden of proof to the defense and “mischaracterized defense counsel’s argument as substantive evidence that rendered deliberations superfluous.” Defendant has failed to preserve these claims for appeal. In addition, his claims lack merit.
“Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such ' “unfairness as to make the resulting conviction a denial of due process.” ’ [Citation.] By contrast, our state law requires reversal when a prosecutor uses ‘deceptive or reprehensible methods to persuade either the court or the jury’ [citation] and ‘ “it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct” ’ [citation]. To preserve a misconduct claim for review on appeal, a defendant must make a timely objection and ask the trial court to admonish the jury to disregard the prosecutor’s improper remarks or conduct, unless an admonition would not have cured the harm.” (People v. Davis (2009)
During his initial argument to the jury, the prosecutor described the evidence of defendant’s guilt of the substantive offenses as overwhelming and uncontroverted by the defense, and said that the only real issue in the case was who actually shot Francia Young. Defendant did not object to these comments. Defense counsel began his argument to the jury by conceding
In his rebuttal argument, the prosecutor initially focused on defense counsel’s concessions. The prosecutor stated: “So based upon his argument, when you get the verdict forms, I would like you all to go upstairs and get Count One out. And Count One alleges guilt or non-guilt of the murder. He’s conceded it. So go up there, take the verdict form of Count One, and write in ‘guilty.’ ” The prosecutor then proceeded to invite the jury to do the same as to each count except the sodomy charge. Defendant did not object to the argument, except with regard to the counts charging defendant with being a felon in possession of a firearm and with the assaults on the Hayward police officers on the ground that the prosecutor’s statements that the defense had conceded guilt on those counts misstated the record. The trial court overruled the objections. The prosecutor revisited this theme at the conclusion of the argument when he told the jury that “to make these deliberations go more quickly, fill out the guilty forms of the ones I told you they conceded[,] and then discuss the sodomy, then discuss the special circumstances, and then discuss the use of the firearm.” Defendant did not object to this comment.
Defendant did not object at trial that the prosecutor’s comments had shifted the burden of proof to the defense, or had invited the jury to consider defense counsel’s statements as proof of defendant’s guilt. Defendant only objected to two particular statements on the ground that the prosecutor had misstated the record, apparently asserting that defense counsel had not conceded defendant’s guilt as to the specific charges of possession of a firearm by a felon and assault on a police officer with a firearm.
Even to the extent that defendant’s pretrial motion to “federalize” all defense objections was granted, the effect of granting the motion was, as the trial court stated, that the trial objections would be “deemed to be made under both California and Federal law.” This did not excuse defendant from the obligation of stating the specific ground for an objection in order to preserve the issue for appeal. (See People v. Stanley (2006)
Defendant’s allegations of prosecutorial misconduct are also without merit. First, contrary to defendant’s assertion, the prosecutor’s comments did not indicate to the jury that defendant bore some of the burden of proof. Rather, the statements argued that the evidence of guilt was so overwhelming defense counsel had conceded defendant’s guilt of most of the charges. (Cook, supra,
Second, even if we could discern some impropriety in the prosecutor’s statements, we could not conclude there was reversible misconduct under either the federal or California standard. The evidence regarding the charges at issue was overwhelming, and the defense did not contest guilt as to most
IV. Penalty Phase Issues
A. Denial of Motion to Preclude a Penalty Phase
Before the penalty phase of the trial began, defendant moved to not have a penalty phase. He argued that because his accomplice Henry Glover, Jr., was more likely the actual killer of Francia Young and had received a sentence of life without the possibility of parole, it would be arbitrary and capricious and a violation of his federal constitutional rights under the Eighth and Fourteenth Amendments if he were to be sentenced to death for his role in the murder, and therefore he should not be subjected to a penalty phase in his trial.
Defendant contends that, in light of Glover’s sentence of life without the possibility of parole, both the California and federal Constitutions preclude the imposition of the death penalty on him. We disagree.
As we recently observed, this court has repeatedly held that evidence of the sentence a coparticipant receives for his or her role in the offense is irrelevant to the jury’s consideration of the appropriate sentence for the defendant before it. (People v. Moore (2011)
To the extent defendant’s appellate claim calls on us to evaluate the proportionality of his sentence to his crime, there has been no constitutional failing. Considering defendant’s personal culpability in these brutal and horrific crimes (even accepting the premise that Glover was the “leading actor” and actually fired the fatal shot), as well as the mitigating and aggravating evidence before the jury, including defendant’s willing participation in what appeared to be an attempt to commit a similar attack on another woman several days later, we conclude that “[defendant’s punishment is proportionate to his crime.” (Hill, supra,
B. Admission of Victim Impact Evidence
Defendant contends the trial court violated his constitutional rights to a fair and reliable penalty determination by allowing Francia Young’s mother to testify about “Francia’s characteristics not apparent at the time of the incident, burial arrangements, her own grief, losses, and debts from grief therapy.” Defendant, quoting language from an earlier separate opinion, asserts that victim impact evidence presented in a capital trial must be limited to “those facts or circumstances either known to the defendant when he or she committed the capital crime or properly adduced in proof of the charges adjudicated at the guilt phase.” (People v. Fierro (1991)
C. Exclusion of Defense Evidence
Defendant contends the trial court abused its discretion and violated his constitutional rights to a fair and reliable penalty determination by excluding testimony that his mother had been sexually molested by her father and stepbrother when she was a child, and that she had attacked her stepbrother with a knife when she discovered him sexually molesting her stepsister. The trial court did not err.
First, to the extent defendant contends that a trial court is constitutionally compelled to permit the admission of any and all assertedly mitigating evidence offered by the defendant in a capital trial, he is mistaken. “While it is true, as defendant contends, a capital defendant must be allowed to present all relevant mitigating evidence to the jury [citations], the trial court determines relevancy in the first instance and retains discretion to exclude evidence whose probative value is substantially outweighed by the probability that its admission will create substantial danger of confusing the issues or misleading the jury.” (Fauber, supra,
Second, the trial court here did not abuse its discretion by excluding the evidence at issue. Defendant did not offer percipient witnesses who could have testified that the incidents actually occurred. His offer of proof was that his psychological expert witness would testify that other people had reported these events to him, and the expert had then considered this hearsay in arriving at his opinions concerning defendant’s mother’s background and parenting skills, and how these factors might have affected defendant’s development. The trial court ruled that the expert could discuss in general terms the abuse and violence defendant’s mother had encountered, but that the admission of more specific details about particular incidents would present an undue risk of misleading and confusing the jury by detracting from
D. Asserted Prosecutorial Misconduct During Argument to the Jury
Defendant contends the prosecutor committed misconduct during his penalty phase closing argument to the jury in four ways: (1) using derogatory terms to describe defendant; (2) appealing to the jurors’ passions and prejudices; (3) commenting on defendant’s failure to testify; and (4) arguing that evidence presented by the defense in mitigation constituted aggravating evidence.
Defendant first complains that the prosecutor referred to him as a “predator of the women of Alameda County,” a “predator,” a “depraved predator,” a “vile, nasty predator of women,” a “hyena,” a “sociopath,” and a “walking cancer” that should be culled from society by imposition of the death penalty. Defendant, however, forfeited these claims by not objecting at trial to any of these comments. (People v. Berryman (1993)
Defendant next claims the prosecutor improperly appealed to the jurors’ passions and prejudices. In support, he cites the prosecutor’s statements that defendant would always be a “walking time bomb,” and would “continue his
“ ‘Unlike the guilt determination, where appeals to the jury’s passions are inappropriate, in making the penalty decision, the jury must make a moral assessment of all the relevant facts as they reflect on its decision. [Citations.] Emotion must not reign over reason and, on objection, courts should guard against prejudicially emotional argument. [Citation.] But emotion need not, indeed, cannot, be entirely excluded from the jury’s moral assessment.’ [Citation.]” (People v. Leonard (2007)
Defendant did not object to the prosecutor’s comments regarding defendant’s future dangerousness in prison on the ground that the argument was an improper appeal to emotion. He objected only to the prosecutor’s comments about the absence of therapy in prison and the privileges he might have as a prisoner on the ground that there was no evidence in the record on these subjects.
Defendant’s objections to the comments regarding the jury serving as the conscience of the community and sending a message were sustained and the trial court directed the jury to disregard them. Defendant failed to preserve for appeal the argument that the trial court’s admonitions were not understandable and strong enough. He did not request that the court issue clearer and more forceful admonitions at trial when it could have done so. Moreover, he was not prejudiced. The court’s rulings would have been understood as indicating it had determined the prosecutor’s comments were improper and the -jurors were required to ignore them. In addition, contrary to the trial court’s ruling, it was not improper for the prosecutor to refer to the jury as serving as the conscience of the community. (People v. Ledesma (2006)
We conclude the trial court properly overruled defendant’s Griffin objection. “In Griffin[, supra,]
Finally, defendant contends the prosecutor twice improperly argued that evidence presented by the defense in mitigation was aggravating evidence. A prosecutor is not permitted to introduce aggravating evidence that does not fall within the listed statutory aggravating factors (People v. Boyd (1985)
Defendant argues the prosecutor improperly commented that although defendant had experienced a “rotten, lousy, abusive childhood,” the testimony
Defendant next argues the prosecutor improperly referred to the defense expert witness’s opinion that a person who endured an abusive upbringing such as defendant’s was likely to be a “ticking time bomb” until the psychological harm of such a background could be addressed as establishing that defendant “would be a walking time bomb forever,” and therefore would continue to pose a danger to others if he was sentenced to life without the possibility of parole. Defendant failed to preserve this claim of misconduct. Defendant’s only objection to this portion of the argument was to the prosecutor’s accompanying statements that defendant would not receive therapy in prison as “beyond the record [because there] is no evidence of that,” and the statement that prison authorities could only “take away his color TV or his tape recorder or restrict his basketball or weight room privileges,” as improper because “there is ... no evidence in the record of this.” Defendant did not call to the trial court’s attention the claim that the prosecutor was purportedly using mitigating evidence as an aggravating circumstance. There also is no merit to defendant’s assertion that his pretrial motion to federalize his objections was sufficient to preserve an entirely different basis of error than that which he raised during trial. The claim, therefore, is forfeited.
E. Asserted Instructional Error
Defendant presents a number of challenges to the trial court’s penalty phase instructions to the jury. He first contends the trial court erred in failing on its own motion to give the jury the standard instructions on consideration of direct and circumstantial evidence, sufficiency of circumstantial evidence to prove facts, and weighing of conflicting testimony. (CALJIC Nos. 2.00, 2.01, 2.22.) We agree that because the trial court instructed the jury that it was to disregard the guilt phase instructions, the court erred in failing to give these instructions during the penalty phase. (People v. Lewis (2008)
Defendant next challenges the trial court’s modification of CALJIC No. 2.90 defining the concept of reasonable doubt as it related to defendant’s prior criminal activities as aggravating factors. The trial court removed from the instruction the provision that the jury should apply a presumption of innocence.
Finally, defendant contends the trial court erred by denying defendant’s request to delete from CALJIC No. 8.85 assertedly inapplicable factors— factor (e), regarding the victim being a willing participant in the homicidal act, and factor (f), regarding a moral justification for defendant’s conduct. Again, as defendant acknowledges, we have repeatedly held that it is not
V. Posttrial Issues
A. Denial of Motion to Modify the Verdict
Defendant contends the trial court abused its discretion in ruling on defendant’s motion under section 190.4, subdivision (e), to modify the death verdict. He asserts that the court “failed to consider the case-in-mitigation because the evidence did not extenuate the gravity of the crimes,” and therefore “the court did not reweigh the aggravating and mitigating circumstances as required by the statute.” Defendant argues that the court’s use during its ruling of the word “extenuate” with regard to the mitigating evidence, such as its statement that “there were no circumstances presented which extenuate the gravity of the crime, whether or not it be a legal excuse,” indicates the court believed a causal connection between the mitigating evidence and the crime was required. Defendant also takes issue with the court’s statement that it had considered defendant’s age and found “this is not a mitigating factor,” because, defendant asserts, his youth “is indeed a mitigating circumstance.”
Defendant did not object to what he now perceives are the erroneous aspects of the trial court’s ruling on the motion to modify the verdict, and therefore he has forfeited his claims. (People v. Wallace (2008)
B. General Challenges to California’s Death Penalty Law
Defendant raises a number of challenges to California’s death penalty law that, as he acknowledges, we have previously rejected. He presents no compelling reason for us to reconsider those decisions. As we stated in Wallace, supra,
“California’s death penalty law adequately narrows the class of murderers eligible for the death penalty. [Citation.]
“Factor (a) of section 190.3, which permits the jury to consider the ‘circumstances of the crime’ in determining whether to impose the death penalty, is not unconstitutionally arbitrary or capricious. [Citations.]
“Neither the federal nor the state Constitution, nor any recent decision of the United States Supreme Court, requires that a jury find beyond a reasonable doubt that death is the appropriate punishment, or that it must unanimously agree on the presence of a particular aggravating factor, and none of them prohibits a jury from imposing the death penalty unless it finds beyond a reasonable doubt that the circumstances in aggravation outweigh those in mitigation. Nor does the federal or state Constitution require the trial court to so instruct the jury. [Citations.]”
Similarly, the use of unadjudicated criminal acts as aggravating evidence in the absence of a requirement of juror unanimity does not violate the federal Constitution. (People v. Carey (2007)
The jury is not required to issue written findings concerning the aggravating and mitigating evidence. (Carey, supra,
The use of terms such as “extreme” and “substantial” in the standard jury instructions regarding the mitigating factors does not impermissibly limit a defendant’s ability to present mitigating evidence. There is no requirement that the jury be instructed that mitigating factors can only be considered in mitigation. (Carey, supra,
“Because capital defendants are not similarly situated to noncapital defendants, the absence in California’s death penalty law of certain procedural rights provided to noncapital defendants does not violate equal protection.” (Moore, supra,
“ ‘International law does not prohibit a sentence of death rendered in accordance with state and federal constitutional and statutory requirements.’ [Citation.] Defendant’s claim that the death penalty is imposed regularly as a form of punishment in this state ‘is a variation on the familiar argument that California’s death penalty law does not sufficiently narrow the class of death-eligible defendants to limit that class to the most serious offenders, a contention we have rejected in numerous decisions.’ [Citations.]” (Carey, supra,
C. Cumulative Prejudice
Defendant contends the guilt and penalty phase errors he has raised, when considered cumulatively, require reversal of his convictions and death sentence even if the errors are not prejudicial when considered individually. As discussed ante, we have concluded that those errors we have found or assumed to exist for the sake of argument are harmless. Even if considered cumulatively, such errors did not deny defendant a fair trial.
VI. Disposition
We affirm the judgment.
Cantil-Sakauye, C. J., Baxter, J., Chin, J., Corrigan, J., and Liu, J., concurred.
Notes
All further statutory references are to the Penal Code unless otherwise indicated.
As to the remaining crimes against Young, the trial court sentenced defendant to total terms of imprisonment of (1) four years for the robbery, (2) 24 years for the rape, and (3) 20 years for the sodomy. As to the crimes related to the Flennaugh robbery, the court sentenced defendant to total terms of imprisonment of (1) five years for the robbery, (2) 10 years for each of the assaults on the police officers, and (3) two years for possession of a firearm by a felon.
Glover was tried and convicted of special circumstances murder and other offenses related to the crimes against Young and Flennaugh. After a jury was twice unable to reach a verdict at the penalty phase of Glover’s trial, the trial court sentenced him to life imprisonment without the possibility of parole.
Defendant also asserts he was prejudiced because “without the delay necessitated by the removal of defense counsel, the district attorney would not have had the opportunity to name Glover as the shooter [at Glover’s trial] and, when a jury was not persuaded, reverse the theory [at defendant’s trial] and maintain [defendant] pulled the trigger.” But the separate trials of the codefendants were not the result of the delay following replacement of counsel for defendant; rather, the trials were severed to protect Glover’s right to confrontation under People v. Aranda (1965)
There is no constitutional infirmity in the circumstance that if defendant had wanted to expand on the information presented by Kozicki’s notes and testimony by testifying himself, he might have been put in the position of choosing between his right to testify at the trial and his right to remain silent. “ ‘ “The criminal process ... is replete with situations requiring the ‘making of difficult judgments’ as to which course to follow. [Citation.] Although a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose.” ’ [Citation.]” (People v. Letner and Tobin (2010)
In his reply brief, defendant observes that he and two other participants in the lineup were clean shaven, two others appear to have had moustaches, and it is not clear whether the last two participants had any facial hair. He then claims that “[f]or an important characteristic— facial hair—[he] was part of a very small group of three to five men,” and that this circumstance made the lineup suggestive as to him. We disagree. Defendant has not shown that facial hair was a necessarily defining consideration or explained how this situation rendered the lineup unduly suggestive as to him.
One of the prospective jurors at issue was seated as an alternate juror, but was never called to serve as a seated juror.
As mentioned earlier, a jury twice deadlocked in the consideration of the appropriate penalty for Glover, and the prosecution elected not to try the penalty phase a third time.
Misplaced is defendant’s reliance on cases (see People v. Ochoa (1998)
The trial court, in fact, sustained the objection concerning the absence of therapy, and admonished the jury to disregard the comment. Defendant did not object when the prosecutor reframed the assertion as “rehabilitation is not going to occur.” The trial court overruled the objection to the comment regarding recreation privileges.
Defendant briefly argues that all the instructional errors he raises on appeal together constituted “structural” error warranting reversal of the penalty verdict even in the absence of proof of prejudice, and, in the alternative, that other asserted instructional errors (the failure to instruct on the presumption of innocence and the allocation of the burden of proof) were prejudicial. The errors in the trial court’s failure to give instructions concerning these general principles of law to the jury are not structural, as evidenced by our having concluded that similar errors were harmless in Lewis, Carter and Wilson. And, as we will discuss, the asserted errors defendant conclusorily argues were prejudicial are not errors.
The instruction was as follows: “The following instruction applies to proof beyond a reasonable doubt as it relates to alleged aggravating factors as set forth in these instructions, [f] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”
The court’s instruction deleted the first paragraph of the standard CALJIC No. 2.90 instruction: “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his or her] guilt is satisfactorily shown, [he or she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him or her] guilty beyond a reasonable doubt.”
Concurrence Opinion
The majority concludes that the trial court’s ruling allowing the prosecution to pursue the firearm personal-use allegations against defendant Keith Tyson Thomas and to argue defendant was the actual killer was harmless beyond a reasonable doubt. (Maj. opn., ante, at p. 934.) Assuming arguendo the ruling was erroneous, I agree.
I write separately to explain that my concurrence is with the understanding that nothing in the majority’s discussion of this issue suggests the prosecutor in this case committed misconduct, either in charging defendant with personal use of a firearm or arguing he was the shooter. “[T]he prosecutor has the discretion to decide which offenses to charge. The courts do not generally supervise these ‘purely prosecutorial function[s].’ ” (People v. Ceja (2010)
Although arguing inconsistent theories of culpability can be prosecutorial misconduct if pursued in bad faith (In re Sakarias (2005)
With that minor caveat, I concur.
Corrigan, J., concurred.