*1 23385. Mar. 1992.] S004597. Crim. No. [No. PEOPLE,
THE Plaintiff and Respondent, VISCIOTTI,
JOHN LOUIS Defendant and Appellant.
Counsel J. Timothy Foley and Richard under Schwartzberg, appointments by the Court, Supreme and Roger Agajanian for Defendant and Appellant. John General, K. Van de and Daniel Kamp E. Lungren, Steve Attorneys White and General, Richard B. Chief Iglehart, Assistant Attorneys D. Harley General, Mayfield, Assistant Attorney Michael Wellington, D. Frederick R. Millar, Jr., Foster, Jr., Corona, Davis, Robert M. Rudolf and Janelle B. General, Deputy Attorneys for Plaintiff and Respondent.
Opinion BAXTER, J. was convicted jury Defendant the Orange County 8, 1982, Superior Code, Court the November (Pen. first degree murder 664/187) (count I); (§§ murder 187)1 Dykstra attempted of Timothy §§ (count (count II); (§ 211) those victims of Michael robbery Wolbert the special under III). also found that the murder committed *25 190.2, (§ subd. in robbery circumstance of murder the commission of commis- used a firearm the (a)(17)(i)), personally and that defendant had of (§ 12022.5). killing tiie The found that the sion of offenses same of death. was intentional and returned a verdict Dykstra penalty for modification denying application After defendant’s automatic murder, a (§ 190.4), the of death for the a sentence penalty judge imposed enhancement for the at- two-year term of nine with a years consecutive murder, with (§ 654) eight-month and a of one an year term tempted stayed enhancement for robbery. (§ (b).)
This is automatic. subd. appeal concluded error affected determination Having prejudicial that no guilt entirety. or we shall affirm its penalty, judgment
I
A. The Case. Prosecution Wolbert, evidence, Michael The based in major part testimony on confessions, the following. and on defendant’s established Hefner, Defendant Brian employed burglar and both of whom had been Grove, shared a alarm salesmen in Garden and who by Global Wholesalers room, fired Because motel were their on November 1982. by employer rent, their final cover future devised a they were insufficient to paychecks to on date. plan pair to rob fellow who were also be that employees paid in the parking group among waited lot until another company employees, Wolbert, were They whom and from their shifts. invited Dykstra returned claimed, which, and to was be they Wolbert them at a Dykstra join party held at the in the home friends Anaheim Hills area. and Wolbert to the did not know
Dykstra They agreed go party. well, however, defendant Hefner were insisted on They and and cautious. from also their cash their driving They Wolbert’s car. removed most of wallets and hid it behind their After defendant’s leaving the dashboard of car. Santiago car at an drove to a remote area on apartment four complex, Road where defendant asked Wolbert to so defendant could Canyon stop relieve It was then and p.m. himself. between 7 statutory to the
1All herein are Penal Code unless otherwise indicated. references car, All four men left the first to Dykstra getting permit out car, gun After the three men left Wolbert saw a defend- leave. other at car when he next looked ant’s waistband. Wolbert then left the and about defendant saw that defendant and were face-to-face standing Dykstra two feet at Defendant apart, holding gun Dykstra. with defendant pointed demanded the victims’ told him where money wallets. Wolbert embankment, feet hidden. then several Dykstra stayed Wolbert an while Hefner searched for the apart, money. Wolbert,
Defendant over stand defendant to let moved who asked them told him to take car him go, assured money, *26 car, would not left back identify him. When Hefner defendant moved Dykstra toward then in sitting who was down. Defendant raised one gun hand and shot a of Dykstra from distance about three or four feet. The bullet sac, heart, passed through the and his pericardial grazing entered Dykstra’s i.e., right upper lung, causing exsanguination, death loss. blood After defendant shot and Dykstra, Wolbert stood back. Defend- up stepped Wolbert, hands, ant who was in approached backing raised the both up, gun and shot Wolbert three times. Wolbert was first in fell struck the torso and down. Defendant came and closer from a of three shot distance about feet in Wolbert the left As shoulder. to walk began away got Wolbert turned, and up began to approach defendant. Defendant held the gun close Wolbert’s head in and shot him the eye, left at which fell point Wolbert down again. Wolbert saw defendant pull the hammer each gun of back before shot.
In wounds, of his spite life-threatening did lose Wolbert conscious- He ness. heard defendant and Hefner car get into the and drive back down He road. later was able to attract the of attention sum- passersby who moned aid. He identified his assailants as fellow at Global employees Wholesalers. Dykstra dead was when paramedics arrived. Wolbert to the transported hospital where he underwent On the surgery. following morning, he identified both in defendant and Hefner a photographic lineup, identifying defendant as the person who had him Dykstra.2 shot
Defendant and Hefner were arrested as left their they motel room about 9 a.m. on morning after the The robbery murder. murder a weapon, .22-caliber single action revolver which still held six shell in expended cases the cylinder, was found hidden a space behind the bathroom sink. Defend- and, ant confessed his involvement at the request investigating offenses, 2Hefner was tried separately, convicted of the same prison sentenced life in without possibility parole. of People did not seek penalty the death for Hefner. officers, events that had reenactment of those videotaped a participated in Santiago Canyon. taken place blood, at noon approximately of defendant’s taken
Analysis sample a alcohol, 9, 1982, opiates, revealed no barbitu- amphetamines, on November ates, a (PCP). Cocaine and metabolite benzoylecgonine, or phencyclidine cocaine, were however.3 present, Case.
B. The Defense 8, 1982, Defendant establish that his actions November attempted to of, he did and that ingestion drugs were the or influenced his product by, defendant was Timothy not intend to kill At the time of the offenses Dykstra. 12, among he age LSD, old.4 He testified that had used since years drugs cocaine, PCP, barbituates, and heroin. marijuana, amphetamines, them he He a when sold charge had first been arrested on drug-related an In of vandalism guilty undercover 1981 was found “speed” agent. while He had been committed becoming fight after involved drinking. facilities. county juvenile Youth after three from Authority escapes *27 deadly In he a with a weapon, to assault pleaded guilty charge that and On the incident night stabbing was sentenced to state the prison. led he PCP. That incident occurred marijuana to that conviction had used and he November living the same motel at which was when arrested on was, testified, and hangout drug 1982. It he a for addicts prostitutes.5 revolver, rifle but Brian Hefner had owned both a .22-caliber and the him rifle to defendant the to obtain with which persuaded pawn money to revolver, not buy Hefner to the but defendant was pawn cocaine. refused 8, 1982, aware had the him on when the that Hefner revolver with November drug Dykstra’s negative. 3All alcohol and tests of were blood age, but younger. 4Defendant that was He was not sure of Hefner’s testified Hefner believed him to have been 19. guilt phase testimony, occurred two 5In his defendant claimed that the incident when Favello, roommate, Doug men a the problem who had with his kicked in door Favello, in, gun a apartment person he shared with ran cut throat. A third with and Favello’s by picked up dropped person remained at the door. Defendant testified he the knife that Favello, intruders, fleeing who had stabbed ran stabbed the one who had slashed after the and just (Scofield) person trying Favello’s throat as that to enter his own room. to On he friends went Scofield’s cross-examination defendant conceded that and several had night, they anyone room later that denied had in the to that room or that that kicked door room, been had in the seeing, stabbing, in bed in and alone a woman who been denied let by that Favello People during penalty phase room. Evidence was offered to establish confrontation, injured during had broken not been the initial that defendant and others had Cusack, had Kathy into the room and and that defendant occupied Scofield his friend Cusack stabbed several times. find pair They decided to someone to rob. had abandoned to obtain plan cocaine, had find by selling sugar suggested they and Hefner that money cocaine, to with under that go money someone them to take the victims’ buy and to a at pretense, “just party invited Wolbert split.” They Dykstra cocaine, which there be in an girls attempt would but were unsuccessful to with get Dykstra buy Wolbert to which to cocaine. provide money take Defendant and Hefner then decided to them somewhere and simply take their money. gave Defendant alone decided where take the victims and to Wolbert which he had directions to which was an area to Santiago Canyon, been when committed a county to ranch. boys car
Hefner’s was left at an in the that apartment hope Dykstra complex and Wolbert would believe Hefner lived in complex. that defendant and They went to so defendant and Hefner would have Santiago Canyon time get before their made look them away victims it back to town to at the apartment Defendant’s intent was take victims’ complex. only kill money, them.
When Hefner told defendant at the Global Wholesalers warehouse that had brought gun in case went protect anything wrong, himself told him to leave it. Hefner gun behind the heater his put car. Defendant did not know that Hefner with him brought gun when transferred to pair Wolbert’s Camaro for the drive to Santiago Canyon. Defendant testified that he did have to relieve when he asked that himself the car He stop. had take planned to in the Dykstra and Wolbert farther back so it canyon that would take them a time to back long come out. When *28 car defendant, him, Hefner out stopped, got behind the to and gun handed said, “let’s take their money now.” Defendant took the held the gun, it on victims, but, claimed, he it was Hefner who demanded their After money. Hefner had gathered the up money, began defendant back into up get the car to leave. The victims had not resisted. Wolbert told him to ahead go car, and take the just leave. however,
At that point, Hefner said: let go “Don’t them because they’ll tell,” and yelled at defendant to shoot them. Defendant testified that he did not know what then happened he except that started He until shooting. shot the gun was empty. He had not loaded gun the and did not many know how shells were in it. He did not know whether he used hand one or two. He had no idea where he was the He firing gun. did not intend to anyone shoot side, the heart or in through the and was not there. not aiming Dykstra had shot, made any move threatening prior to being but Wolbert stood and up came running toward him. Defendant did not know at that point Wolbert a the Earlier Wolbert had shown
had been hit shots. prior he in case carried metal Wolbert said glove lining—that with “weapon”—a face, he but did shot Wolbert the there “trouble.” Defendant not know was Wolbert. gun was at trigger pointing he had and pulled admitted that to the “a loaded.” Prior these was little bit At time of events defendant cocaine,6 a had been on doing he injected incident he had himself with as he “loaded.” on was He had worked November because daily basis. not two before days he had been up Because he had been cocaine injecting On return to him and out.” his “spaced that. cocaine made more “wired” he Hefner obtained in which and had the motel after the robbery/murder, a $70, from of cocaine quarter-gram the rent and a paid bought about friend’s He and Hefner used that cocaine at the friend lived nearby. who house, and two more during evening purchased quarter-grams. not he had although robbery planned
Defendant insisted that over, kill had not had not it and considered anyone, thought planned kill of what if he did someone. consequences might happen Dr. psychologist, Defendant of forensic presented expert testimony Broussard, brain of a associ- injury that defendant had minimal type Louis The learning with disorders. specific ated disorders and impulse learning school, not that had disorder had caused achievement problems problems remediated, it less than and a result his academic achievement was been testing have examination and otherwise Based might expert’s been. defendant, reenact- his review defendant’s and the videotaped confessions ment, members, defend- laboratory interviews with tests of family blood, aware ant’s Dr. Broussard believed that defendant was not completely what could doing judge he was during robbery/murder nature acts time. consequences of his at that cocaine, use
Dr. also described the effects of Broussard prolonged having which some “ambulatory psychotics,” resulted users becoming delusions of a over acute schizo- persecutory person getting similar those *29 had that phrenia, experiencing and hallucinations. Dr. Broussard concluded events, inwas a state the time of the drug-induced defendant at psychotic deliberate, could and did not not in of not and and was control premeditate when he without his senses after arrest to title interview agreed his police when to counsel. Dr. Broussard also believed that defendant responded shoot, Hefner’s command to he like a or behaving sleepwalker person was under His behavior was chaotic and controlled. hypnosis. drug crank,” police methamphetamine. had told was on up
6Defendant that he “loaded or Penalty Phase. C. Aggravating
1. Evidence. in the the the initial of only phase The evidence presented People Scofield, the June trial the of William the victim of was penalty testimony 15, 1978, had defendant assault with a offense to which deadly weapon and for which had served term. Scofield testified guilty prison he pleaded men, defendant, was five or the hotel room he that six broke into including him with friend men with sharing his Cusack. The other beat sticks Kathy bats, room, him to him and baseball out of the throw dragged attempted in the from Defendant out of the room and stabbed Scofield balcony. came the back. The wound The on the day lower stitches. events occurred required who, after Scofield had an another argument fight allegedly, with tenant had lost a cat that belonging persons to Cusack. Other present during knives, exchange were armed with but was no one stabbed then. People sought present the Cusack that the June testimony during
15 incident defendant had stabbed the objection also her. Defendant’s that notice pretrial re- aggravating given by factors which prosecution, Scofield, ferred to the only assault on was broad enough give notice that evidence of the assault on Cusack be offered sustained and would she did not (See at this testify stage 190.3.) trial. The court penalty § rejected People’s arguments that the on Cusack was so closely assault related to the assault on Scofield it was the circumstances among latter, and that because defendant had been charged with both assaults notice that evidence of one would be offered was adequate.
Cusack was permitted to testify rebuttal to evidence mitigating 12, 1978, presented by defendant. She met first defendant on June at a party in defendant’s apartment. She had not seen him again until the early morning of June hours he when men several other broke into the apartment she shared with men, Scofield. Defendant had a knife. When the other who sticks, were beating room, Scofield with bats and dragged Scofield out of the defendant remained where room Cusack was He standing the bed. forearm, her stabbed through right which she raised had to protect herself, arm, stabbed her farther and when she fell down up onto bed, slashed her He leg. then stabbed her in the When ankle. attempted stab Cusack the abdomen she him He pregnant.7 told she was abdomen, nonetheless tried her in again stab but rolled she over and her in chest, stabbed the side. He then stabbed her in the her slashed shoulder, stabbed her of her area After breast. Cusack or stabbing eight was, fact,
7Cusack testified she *30 four pregnant. months 34 times, and to to the walls of the began apartment,
more carve up him head with a hit over the posters cut stick, and When Cusack up pictures. too, She, had to for hospitalized defendant ran out of the be apartment. of her treatment wounds.
2. Evidence. Mitigating Lisa, old, 15 years Defendant of nine His sisters then was one children. Louis, Rose, 20, Ida, Antoinette, his parents and his brother and willing- defendant’s and concern for his family, all testified love regarding talent, and and the siblings, assist and his his musical artistic ness to counsel when under influence of All drugs. agreed his change personality he was violent were defendant’s and testified that drugs biggest problem, when under the influence of only drugs. several before years
Defendant’s father became aware of the drug problem “loaded,” his father the trial. On the occasion that defendant came home first him him his father to bribe clear across the room.” Thereafter tried “punched him, in him off Defendant and to find an effort to get drugs. employment and under the anyone had never been toward in the when not family, violent He can ever meet.” you influence of was “one of the nicest kids drugs and all ran did favors for his gatherings, parents, attended errands and family had testimony never refused acts about which their violent requests. offered were uncharacteristic of defendant been Christine, described his years, defendant’s two and one-half girlfriend for “fantastic,” that he very helpful manner with her children as testified with and with and characterized defendant both household tasks car repairs, and treated her very as a considerate who loving, caring, gentle, person her children with respect.
II Competency People (1988) Hale Relying Cal.Rptr. v. Cal.3d [244 769], People P.2d Marks Cal.3d 1335 [749 260], defendant argues that the trial court jurisdiction lacked proceed judge trial because had defendant’s doubt as to expressed initiated competency had under to determine proceedings section 1368 which were never competency, proceedings held.
We disagree with the initial premise that the doubt court expressed defendant’s and had competence ordered that conducted be proceedings pursuant section 1368.
35 to his for the Defendant on the court’s motion response relies solely with 730 to respect “under Code appointment experts [Evidence section] and The an examination on the criteria 1026 1368.” court of Mr. Visciotti motion, would “be stating the that the granted orally only experts requested 1983, 2, the based The May to conduct examination on 1026 and 1368.”8 recited, in order of signed by Judge department form Franks appointment Appearing may however: that defendant’s status fall “It This to Court in indicated below” and within definition set forth statute appropriate had check marks on the four lines bases for adjacent statutory and sections and Evidence Code sections 730 and appointment, 20,1983, The hearing 1017. order set a date of June department delivered reports experts department. ordered to that Counsel for defendant did not June and no held. hearing on was appear had him prosecutor defendant’s advised a week represented attorney commitment, earlier of a had never conflicting and that the two agreed was what to be heard on the set The case day hearing. for the was over put to June at which time it was called in in a different judge before another never department. mentioned defendant’s June 23 Competence during inor appearance any subsequent and no proceeding, psychiatric reports the appointed are in the experts record.
This record does that the intended to a suggest judge express doubt to defendant’s or that he competence, intended to initiate proceedings determine competence. Section 1368 a provides that if doubt as to a defend- competence ant’s in the mind arises of the judge, judge “shall state that whether, doubt the record and of the for defendant inquire attorney opinion attorney, If mentally competent.” is attorney then informs the court that he or she believes the defendant is or trial, bemay incompetent to stand the court is to order a hearing to required determine the question.
It is apparent from this record that request counsel’s for appointment of for the dual experts purpose assisting making counsel a decision on 8The entire colloquy is set below: out Agajanian Honor, “Mr. [defense Your one other counsel]: there’s matter I’d like to address the court on. I’d like to make motion respect under 730 with to an examination of Mr. Visciotti on the criteria of 1026 1368 and kept ask it be confidential. I’d ask two be appointed. doctors right. “The Court: All Do have you any preference any doctors? Agajanian: “Mr. request I Seawright would Dr. Anderson. “Mr. Goethals [deputy attorney]: Agajanian district And I told Mr. I’d ask for Dr. Sharma. right. “The Court: All Seawright Doctors Dr. Sharma appointed Anderson and will be pursuant Code, to section 730 of the Evidence requested be will conduct the examination based on 1026 and and the results of those be confidential.” *32 enter a to render an insanity
whether to of not reason of plea guilty by consideration by on defendant’s was opinion competence preliminary counsel, let alone the had a doubt as to defendant’s judge, of whether either as defend- Neither counsel nor the a doubt competence. judge expressed ant’s and the did not order section 1368 competence judge proceedings. in effect that the defendant fall “may recital the form order to the typed within the in the statute indicated above” appropriate definition set forth for the justification appointment reflects more than an or nothing explanation section 1368 that by It is not the statement experts.9 contemplated (Cf. People has doubt to the defendant’s competency.10 court a presently 197, 809, P.2d (1964) v. Westbrook 62 Cal.2d 203 397 545] [41 de- and cause transferred to proceedings suspended “psychiatric [criminal a doubt having an order that could be the court partment,” only explained!by as to the defendant’s sanity].) Hale, contrast,
In the court a doubt as to the defendant’s expressed in based the defendant’s and demeanor the court- competence conduct room, counsel, in Ms the defendant was inquired agreed opinion who that “ the defendant’s not and ordered a ‘on the competent, hearing question ” 531, Hale, 535- (People supra, mental v. Cal.3d present competency.’ Marks, 536.) had People supra, v. the trial court Similarly, stated and had ordered a doubt as to the defendant’s mental competence “ ‘the of Ms mental to be determined a question competence special hearing wMch will be held to Sections 1368.1 and 1369 of pursuant ” (Id., omitted.) Penal Code.’ at p. italics III
Jury
Selection
Issues
Mm
rights
Defendant claims that the
selection
denied
Ms
process
under the Sixth and
United
Constitu
Fourteenth Amendments to the
States
tion,
I,
Constitution,
and article
a randomly
section 16 of the California
selected,
that
voir
representative jury;
the use of case specific hypothetical
dire
to “indoctrinate”
misconduct
questions
potential jurors
prejudicial
that resulted in a
Witherspoon-Witt
(Witherspoon
biased
that
error
v.
jury;
(1968)
1770]; Wainwright
Illinois
U.S. 510
v.
L.Ed.2d
88 S.Ct.
[20
(1985)
844])
Witt
469 U.S.
L.Ed.2d
105 S.Ct.
occurred when
[83
9Evidence
appointment
experts
appears
Code section 730 authorizes
when it
to the
“expert
court
may
required by
by any party
evidence is or
be
the court or
to the action.”
1 0Defendant does
argue
incompetent
appears
that he was
or that it
as a matter of law
from the record
incompetent,
obligating
that he was
thus
the court
to order a section 1368
People
(Cf.
hearing.
825].)
only
A. Representative Jury—Random Selection.
Appellant contends first that the which the with procedure by judge, counsel, the acquiescence of filled the box to initiate the voir jury general dire following (see sequestered Hovey voir dire death-qualification 1, Hovey Superior (1980) v. Court 80-81 [168 1301]) selection, P.2d denied him a selected Random randomly jury. contends, command, is mandated statute and by constitutional not may be waived by counsel.
Defendant analogizes jury selection to the status of trial itself jury prior the 1928 amendment of the California Constitution which for the first time waiver permitted I, of the right to trial. jury Even under the article present section trial in by jury criminal cases is not a of the simply right defendant. It may be waived unless both the and the defendant People selection, too, agree.11Because random is not a simply right of but is a state-mandated it procedure, may not be waived.
This court rejected a similar in argument People v. Johnson 91], Cal. P. where we held that a claim of error based on an in the irregularity seating jurors who had been selected from those drawn regularly had Here, been waived by the defendant’s failure to object. too, counsel in acquiesced the procedure of which defendant now complains. Johnson, Since however, our in decision the Legislature has made it clear that random selection is a firm policy of the State of California.
Section 1046 directs that juries be formed for criminal “in trials the same manner as trial in juries civil actions.” Code of Civil Procedure section 197 provided at the time of this trial: “It is the of the State policy of California that all persons selected for jury service shall be selected at random from a fair cross section court, of the population area served and that by all qualified have persons in opportunity, accordance with this chapter be considered for in jury service the state and an to serve obligation as jurors when summoned for that purpose. This to all trial in chapter applies juries all civil and criminal proceedings all courts.” I, 11Article section 16 of the California Constitution: by jury right “Trial is an inviolate all, shall be secured to . . jury may . A be waived a by in criminal cause the consent of both
parties expressed open by court the defendant and the defendant’s counsel. . . .” “The Legisla- Civil now states the policy: Code of Procedure section 191 and that right, is cherished constitutional recognizes by jury ture that trial is an obligation citizenship. service jury for jury that all selected persons
“It is the of the State of California policy the area served population service shall be selected at random from court; in accordance opportunity, that all have an qualified persons equal and an service the state with this to be considered for chapter, . . .” when summoned for that jurors purpose. to serve as obligation Johnson, enact- decided to the People supra, prior 104 Cal. had We have not ment of Code of Civil Procedure sections 191 197. whether the the enactment those sections to consider occasion since affects the rule as a of the state establishment of random selection policy are not We that it does not. While parties Johnson. conclude applied *34 waive, with the forego, compliance free to and the court is not free to random further the of designed policy which are to statutory procedures selection, criminal convictions not mandate that important policies equally in to which the selection irregularities jury be overturned on the basis of Const., VI, (Cal. in art. defendant did not or which he has object acquiesced. 696, 13; 787, 819 People (1991) Cal.Rptr.2d v. Edwards 54 Cal.3d 813 § [1 to constitute a 436].) P.2d The failure to will therefore continue object waiver of a claim on appeal. of error 418) Cal. at (supra,
Because we had not reaffirmed the Johnson rule 104 trial, however, reversible the time and the standard which by of defendant’s we will address error is to be determined an presents important question, defendant’s claim. opportu of random selection and
Notwithstanding policy equal from the every service all not nity jury by qualified persons, departure also Legislature pro constitutes reversible error. The statutory procedures in could be founded vided former section 1059 that a challenge panel Wright (See People on a material from only departure procedures. those 367, 394, 221].) Clearly, therefore, the deviations from the Legislature did not intend that minor of conviction. It statutory judgment be for reversal of a procedure grounds if follows that a defendant the procedure not claim error on may appeal utilized did from the jury depart materially statutory proce selection dures established to further the of random selection. purpose
The method which were seated for the by prospective jurors pur of pose general voir dire this case was not a material from the departure to which statute. The by nonstatutory procedure procedures established (from jurors was used objects only prospective defendant now select persons the first who remained the venire after death qualification) clerk to be voir dire. Instead the courtroom directing seated for of general random,12 sought stipu- draw the of 12 at the court names venirepersons the initial group lation that defendant waive to random selection of right his Instead, jurors. jurors each was a list of 20 prospective to submit attorney seated, matching any from which court 12 to be would select first who on both appeared lists.13 even to excuse they persons
Counsel were assured that would be permitted fashion, if all any had nominated that neither would know or they this lists, would be diligent initial were on and that voir dire persons both permitted any as other case. undertaken, by
Before the defendant was advised court procedure he, defendant, random, secret, like every other had a right impartial seating of all said: “The the court prospective jurors. judge then inquiry reads, 12Codeof state presently implements policy Civil Procedure section it random, “(a) persons random selection: All at selected for service shall be selected from a source or sources inclusive representative population of a of the area cross-section court,” “(a) served while Code Civil section Random Procedure directs: jurors selection shall be utilized in creating qualified master and lists . . . ." “ Code of (l), Civil Procedure section subdivision “random”: ‘Random’ means defines *35 by that which indicating occurs mere chance unplanned sequence an of selection where each juror’s name substantially equal has of selected.” probability being trial, At the time of provided: this former section 246 of the of Civil “. . . Code Procedure The jurors court panel process shall select from dire a to the voir in manner insure [the] “(a) random Code provides: Except selection.” of Civil now Procedure section 222 clerk, provided (b), by jury, judge subdivision when action is trial or the an called for the clerk, dire, where there is no randomly jurors shall select the of the until the names for voir jury is panel selected or the is exhausted. “(b) jury When the provided jury commissioner has with a trial listing panel the court of the order, in random the court shall seat prospective jurors provided by for voir dire in the order the panel list" 13Thecourt made the following proposal: hoping up “I was that we could come with a list of 20 prospective jurors you that acceptable each of would find that we hopeful could defense, arrive at stipulation a People with the and the personally waiving defendant his right to a jurors, secret-at-random matching selection of on the depending up specific court’s jurors that fall both onto lists that attorneys would me provide with. that, you “If will do I’ll assure counsel that I attorney will not share the list of one with the other, so it any will eliminate fear gamesmanship. “Additionally, if we follow process, might that it us cause to be able to pick much more quickly. might It be beneficial to both sides. “It certainly would be beneficial to court in time. saving would, “Secondly, the court way, preclude in no any inquiring either counsel in from way of those that by were selected a non-random secret ballot. further, seated, “And as soon as the 12 are agree first I would that there should be no wavering additional from the process selecting.” at-random secret agree right
will make is as follows: Does the defendant waive his seated, to returning chose the first 12 be thereafter may jurors court “Yes.” responded, the usual selection At that process?” point, defendant that and the Counsel for defendant stated that he had advised make the had each selected 20 from whom the court would prosecutor jurors He that defendant waive the described agreed rights selection. stated had and to manner. The also by People court selection permit The that their lists had indicated court then advised counsel agreement. be some matched and that it was that there would “minimally up” probable The did not the first had been lists. court among jurors who on both what, if indicate criteria were in the choice of any, prospective to be applied fill the seats. jurors remaining used,
The the waiver elicited from process court’s to be explanation defendant, defend- and defense counsel’s of his representation explanation The court ant reflect views of the to be utilized. seemingly divergent process the lists did not that the first 12 would all be selected from promise jurors submitted counsel. The waiver the court to choose by simply permitted he had first to be seated. When defendant’s said that told jurors attorney lists, defendant that the would be selected from the the court said jurors fact, to indicate a intent. In four were taken from nothing contrary list, list, three from the defense and five were on neither list. prosecution Five Two of the had included both lists. prospective jurors been jurors sworn to the case had chosen ultimately try by judge pursuant been those, to this Of two had not been on either list. stipulation. court minutes reflect still another superior interpretation stip-
ulation. The select twelve may minutes recite: “Counsel the Court stipulate at prospective jurors jurors random from lists of submit- twenty prospective ted each side.” *36 he did understand the
Notwithstanding defendant’s claim that not present he that the statutory is not entitled to relief on on procedure, appeal grounds selection were We are not faced here with a jury procedures not followed. dire abandonment of random selection. When the voir complete general commenced, in the venires of had been examined prospective jurors already the There that these venires sequestered Hovey suggestion voir dire. is no random, had not been selected at Code of Civil Procedure section pursuant to 222. The in them the initial voir dire jurors had been seated for prospective therefore, differs, in accordance with that random draw. The here procedure 367, 393-395, in that at in People Wright, supra, from issue v. 52 Cal.3d which the initial dire in with seating conformity voir was not conducted former section of the Code of Civil Procednxe. dire,
In are or with this case we with the initial voir a not concerned to the dire the challenge following sequestered the voir panel. Only general in in voir dire is Hovey implicit We with the question. agree assumption that, in defendant’s the of a argument statutory adapting absence provision Hovey (supra, the of for selection of to the mandate procedures capital jurors 1), 28 Cal.3d trial courts the Code by should follow established procedures Civil for a voir general Procedure section to select prospective jurors dire which a the Hovey stipulation follows voir dire. Because sequestered first 12 and the applied only jurors statutory to the to be seated prospective jurors in the procedure was followed initial selection of prospective thereafter, to be a material was followed we do deem the procedure not departure Legislature. from that mandated by from
Defendant utilized this case attempts distinguish procedure that in People Wright, supra, grounds having aware presided over the voir dire the trial sequestered judge biases of the jurors compel selected. That distinction is insufficient to reversal since defendant in this acquiesced aspect process. of the selection Regardless possible as to the which the any misunderstanding manner trial court would select first it was that the selection jurors, apparent would be made jurors from whose about had been capital views punishment explored during the voir dire. sequestered argues
Defendant also that random selection is to ensure necessary the constitutional to a right drawn from a cross-section of jury representative the populace. To extent that he claims the procedures selecting utilized the jury before which he was tried him rights denied due or under process I, the Sixth Amendment of the federal Constitution and article section 16 of Constitution, the California the claim fails for reasons. Random similar selection does serve to ensure the trial jury rights by the Sixth granted I, Amendment and article section 16 of the California Constitution. Not material, every from the departure state if statutory procedure, even deemed necessarily denies defendant the constitutional selected right jury to a from a representative cross-section of the reject however. We defend populace, ant’s claim that actual harm need be shown. To warrant reversal of a conviction, judgment of must demonstrate that departure affected his to select a ability drawn from a cross-section representative of the population.14 posits
Defendant in which scenarios designation acceptable ju court, rors by or parties, selection could result exclusion by *37 14The state policy mandating enunciated in the statutes random draw reflects concern “that qualified all persons an equal have opportunity jury ... to be considered service in for the state and obligation an to serve jurors (Code when summoned for that . . . .” purpose Civ. Proc., 191.) rights The of prospective jurors appeal, § are before us in this however. We
42 (1978) omission of of 22 categories jurors People violation of v. Wheeler 748], Cal.3d 258 583 P.2d or a not drawn from a Cal.Rptr. jury [148 true (see cross-section of the Duren v. Missouri 439 U.S. population fails, however, 664]). L.Ed.2d 99 S.Ct. He that the to establish dire, to seat the first from stipulation jurors general for voir prospective dire, jurors selected for the voir could or did already randomly sequestered have such an To the the record confirms that impact. contrary, during dire, voir general were selected to prospective jurors randomly replace those excused for cause or Seven of the peremptorily challenged. jurors seated to were try case selected this random draw. Five had been during therefore, the first twelve among seated. This case differs from the markedly, jury (5th 1977) selection condemned in process Kennedy United States v. Cir. 608, (hereafter 548 F.2d Kennedy) on which defendant relies for his claim that relief is available without to a of actual harm. regard showing
Far Kennedy from this that the federal supporting proposition, concludes statutory right may be waived failure to and that more by challenge jury, than simply a from random departure seating jurors selection for of some is necessary to establish a violation of constitutional to a drawn right jury from a supra, cross-section of the representative community. (Kennedy, 608.) F.2d The issue in Kennedy was whether use of three volunteer jurors, service, who had a term just completed jury to sit on a criminal jury constituted a substantial failure to with the random selection comply proce- dures the Jury (28 Selection and Service Act of 1968. U.S.C. 1861- §§ 1869.) The Fifth Circuit Court held that while there had been a Appeals act, substantial failure to with the comply was foreclosed from appellant asserting violation failure statutory by jury challenge ground, and that reversal on grounds constitutional was not warranted because the from departure random selection had not statutory procedures denied him the right to a drawn from a jury cross-section of representative the community. jurors had been question randomly selected for the master list jury
prepared use at trials during rejected month. The court prior statute, consideration as a basis for with the finding compliance stating: “Nonrandom selection of a from a subgroup randomly selected does group not make for a selected randomly (Kennedy, supra, 548 F.2d at subgroup.” Nonetheless, 612.) p. the defendant’s “forfeiture claim no statutory affects the way of a sanctity defendant’s due to be tried process right drawn from a fair cross-section While a community. properly only procedure consider whether the ensured a fair trial at which the defendant’s fundamental (See People rights constitutional were protected. v. Harris (1989) 47 Cal.3d 1071 [255 619].) *38 Act would of course claim substantial with the preserved noncompliance meritorious, of a conviction reversal if the ftmdamental require justice due transgress remains intact if did not jury the selection procedure 613-614.) (Id., process guarantee.” at pp.
“The due a guarantee randomly clause does not a defendant process itself selected a a fair section of the jury, simply jury but drawn from cross A claim of denial due a community. process right requires showing of this that the jury process underrepresent selection tended to exclude or some discernible class fair for persons consequently possibility to defeat a a obtaining (Kennedy, supra, cross section.” 548 F.2d at truly representative 614.) p. (N.D.Ga.
United States Northside Rlty. 1981) Assoc. F.Supp. (hereafter Rlty. Assoc.) Northside offers no more support. observes,
As defendant insofar it the federal applies juries Jury as petit similar, identical, Selection and Service Act of if 1968 reflects a policy state, to the policy of this “It is the United States providing: policy of that all in litigants Federal have the courts entitled to trial shall by jury right grand selected petit juries at random from a fair cross section of the community the district or division wherein the is further court convenes. It policy the United States that all citizens shall have opportunity be considered for grand service on district petit juries courts of the States, United and shall have obligation an to serve when sum- jurors moned (28 for that 1861.) purpose.” U.S.C. § Assoc.,
In Northside Rlty. supra, 510 issue F.Supp. dispositive involved substantial with the noncompliance act a manner not unlike that in the case before this In selecting court. prospective jurors assignment divisions within the district from master jury wheels of qualified prospective jurors use by of a newly developed computerized selection procedure, clerk failed to designate by random process number” which “starting by the computerized sequence of selection from the wheel towas commence. Instead the clerk picked the starting numbers with the result that six of more than five hundred numbers accounted for 32 of the choices. percent
The court dismissed indictments handed down a grand jury which manner, members had been selected in a initiated in that after process finding substantial, that the deviation from the act was and was not an infrequent or inadvertent In departure. so court doing district accepted of the Fifth reasoning Circuit in Kennedy, supra, F.2d showing of prejudice was not necessary to establish a substantial failure to (510 with comply the act. 692-693.) at F.Supp. pp.
44 case, however,
Unlike Kennedy (supra, 608) 548 F.2d the instant Assoc., 668, Rlty. Northside defendants supra, made F.Supp. 510 a timely indictment, and procedurally proper to the a challenge challenge based on Thus, the departure from the statutory mandate of random selection. neither Assoc, Kennedy nor Rlty. Northside defendant’s claim that even an supports insubstantial deviation from a random policy mandating justifies selection reversal of a judgment of where conviction no proper pretrial challenge made and no resultant denial of a drawn from jury a cross- representative section is demonstrated.
Defendant’s protestations to in this contrary notwithstanding, nothing record suggests that the violation this case statutory jury so skewed selection process that the procedure was so defective” as be “inherently to invalid even constitutionally without a that the showing actually chosen was not impartial. Nor is reversal on required grounds that the procedure threatened such a for abuse or potential appearance that reversal partiality without a showing of actual is prejudice required protect of the integrity jury selection process.15 Impartial Jury—Witherspoon-Witt Error. B. Illinois, 510, language Witherspoon supra,
Relying v. 391 U.S. 522, 776, 21 785], footnote L.Ed.2d [20 which this court once understood 425, state the People (see constitutional rule Velasquez (1980) v. 26 Cal.3d 15We reject also defendant’s argument excusing jurors hardship for denied him a 134, representative jury. 309, (People Thompson (1990) Cal.Rptr. 157-158 [266 857].) 785 P.2d He fails to panel demonstrate how a persons from which have been excused for hardship reasons representative. is less Code of Civil Procedure section subdivision (b), excusáis, expressly permits now such they granted are to be only on a sufficient showing that the individual circumstances prospective juror unreasonably make it difficult person for the to serve hardship or that public person to the will occur if the must particular serve in the case. Defendant makes no effort identify any cognizable population sector of the that was underrepresented case, as a hardship result of granted excusáis in this or to demonstrate that the trial court abused its granting any particular (to discretion in hardship excuse most of Moreover, elsewhere, which defendant stipulated). as we have authority observed there is no proposition for the implicit argument in this that disparity notwithstanding which results application criteria, of neutral and presumptively constitutionally permissible jury selection excuses, including discretionary hardship product is a of the “systematic exclusion” which the (See Constitution People forbids. v. Bell Cal.3d 530 Cal.Rptr. [262 129].) We agree with defendant jurors that some were excused unnecessarily they because expressed who, reluctance to sit on the judge case. The offered to jurors having excuse case, thought about the “would rather not sit on this case any jurors reason.” Some expressed preference concedes, however, remain. As defendant all prospec- of those jurors tive were or, removed either stipulation, by prosecutorial peremptory challenge, one instance without objection by the defense. claims trial court 341]), P.2d that the Rokes, an ab- excluded Dale who juror expressed erroneously prospective “unmistakably not make it penalty, stract to the death but did opposition *40 against clear . . that the automatically imposition . would vote [he] that be regard might developed without to evidence capital punishment any 510, Illinois, the U.S. (Witherspoon supra, at the trial case . v. 391 . . .” 522, 776, 785], omitted.) 21 fn. L.Ed.2d italics [20 the has since recognizes
Defendant that United States Court Supreme Sixth clarified the a governing that defendant’s principles, holding Fourteenth Amendment to an is not compromised by right impartial excusal give of a whose views about prospective juror capital punishment “ the “definite those impression” ‘prevent substantially that views would or with performance of his duties as accordance his impair juror a ” Witt, 412, 424 (Wainwright supra, instructions his oath.’ 469 U.S. v. 841, 851-852].) L.Ed.2d We have the reformulated standard [83 adopted 618, applying (1991) the California (People Constitution. v. Cox 53 Cal.3d 692, 351]; 645 Cal.Rptr. (1989) P.2d Hamilton 48 Cal.3d People [280 809 v. 1142, 701, 730]; 1165 People (1987) 774 P.2d 43 Cal.Rptr. [259 v. Ghent Cal.3d 1250].) [239 Cal.Rptr.
We find no error. When asked at the of the dire if he had a outset voir objection conscientious imposition penalty appropriate death an case, could; Rokes “I responded: don’t know if I no.” When by pressed court to consider if “there’s any any imagina stretch of the possibility, by tion, crime, that you might a death a impose very horrible for a penalty murder,” could, mass he “I again don’t think I replied, no.” Hitler, believed, “No,
Even as a juror the fate of deciding Adolf Rokes I couldn’t do it.”16
When asked by defense if counsel his was that the did position state life, “No, have the right take I Rokes responded: don’t with disagree And, I law. couldn’t see myself as passing judgment.” when type asked by the if prosecutor he could imagine any circumstance so offensive “No, that he would vote for the death I he penalty, replied: Finally, can’t.” the court explained its to determine if it responsibility was “unmistakably clear that under no circumstance would ever vote for the penalty” death [he] and asked: “That’s the you’ve position taken?” Rokes “Yes.” replied: question 16The to be resolved Witherspoon progeny juror’s under is its whether views capital punishment about prevent juror’s would or impair ability to return verdict of death case in the before juror. impact juror’s might views have in actual or hypothetical cases that are not the juror (People before are to that irrelevant determination. Fields 35 Cal.3d 680].) P.2d Defendant claims that the to the focused questions juror posed prospective and did wrong question, inability not establish Rokes’s follow law. We see no asked possibility Rokes was unaware that he was being Indeed, if he could follow the law. that he did with the stated not disagree law. His answers made it clear that he could not unmistakably personally follow the law a sentence of death. voting impose Jury
C. “Indoctrination.”
Defendant next that the used the complains improperly prosecutor Hovey dire (Hovey, supra, 1) voir prospective to indoctrinate *41 claims, and jurors his In the defendant preargue theory case. process, prosecutor the was permitted inquire, detailed but case- hypothetical, into find death specific, descriptions, whether the prospective jurors might an in in appropriate penalty the case. The conduct of the voir dire specific was, this manner he argues, both error and misconduct because the prosecu tor asked each in juror commit himself or herself advance to a position.
Defendant offers as the dire who examples jurors voir of two prospective were later “If sworn to the case. The first was asked: we to the try get far, if penalty we that then the man phase, get you’ve already guilty found first It’s he degree murder. a horrible crime. And found committed this you murder while he was in a engaged based on facts that would be robbery, like a something man decides to commit a arms himself with a robbery, successful, to make sure handgun he’s robs his victim. the course of During alive, the it him if robbery occurs to that the victim is be there won’t So, that, anybody to the going police and .... complain realizing victim, robber points gun his at the him once pulls trigger, through shoots the heart and kills him. with,
“That’s of facts we’re type going something along to be dealing lines, those perhaps. all,
“Do feel first you just, like it’s could vote theoretically possible you for the death if faced with facts such as those?” penalty you’re
Another juror was asked: “So now with the you’re penalty phase one, defendant like this I who has committed this kind a crime and want you yourself, to ask after looking inside whether could yourself you actually vote to another human put being to death for a crime like this: doing
“Let’s assume have a you robbery who decides to commit a person because he wants to make some gets additional He out and money. goes he’ll be a loaded odds in his favor that himself to make the more handgun And he some and sure money successful. he finds a victim that thinks has him when the defendant sticks up. victim has some enough, money if I let Sometime about has the that thought this defendant brilliant point if I to the I and whereas go, caught this he’s and guy going police might get witnesses, him other get leave I go, any caught, don’t let don’t won’t away. I’d better kill him of getting words to make more certain myself does; once heart exactly through “That’s what he shoots the victim been before us and have subsequently caught you he’s he’s brought found murder beyond doubt he’s of first committed any guilty degree during robbery. the course of a room, think
“Do its could look you possible you go other jurors eye have come out and look knowing you’ll also, in the I think this so and the eye say crime is horrendous horrendous, background other we’ve facts heard so he should put are be death?” before,
As we need have observed the court only question “[t]he *42 resolve during this of the voir dire is has stage any whether prospective juror such conscientious in the religious or about scruples punishment, capital ‘ abstract, that his views would or “prevent substantially perfor impair mance of his duties a juror as accordance with his and his instructions ’ ” 826, 802, oath.” (People (1990) v. Mattson Cal.3d 50 845 Cal.Rptr. [268 if, 983].) 789 P.2d The Hovey “voir dire to determine only seeks because his views on would capital punishment, juror any prospective vote against the death penalty regard without to the evidence at produced (Ibid.; 583, 399, trial.” People (1990) Clark v. 597 Cal.Rptr. [268 also, Witt, 412, 789 P.2d See Wainwright supra, 127]. v. 469 416 U.S. [83 L.Ed.2d 846-847].) therefore, It was not necessary, to of the permit extensive questioning prospective jurors during the Hovey voir dire their regarding to willingness impose of, the death based penalty on the facts or a anticipated hypothetical on, set of facts based the case to be tried. Defendant objected neither to questions, these to nor similar asked of other questions jurors dire,17 during Hovey voir however. dire
Although voir is not a which platform from counsel may case, educate prospective jurors about the or them to commit them compel selves a matter, particular disposition of the prejudice them for or presume, 17Wewill not assuming limits arguendo even that the voir exceeded proper dire inquiry, that counsel should have may done so. He well have believed that this method of (see People v. Williams (1981) a or to “indoctrinate” them against party, 869]), the scope inquiry Cal.3d Cal.Rptr. of the court. voir dire is committed to the discretion permitted during arguably objection questions Absent a timely is deemed to have exceed the claim of abuse of discretion proper scope, any been waived.18 Penalty Death Bias.
D. whether Austin to an the court Prospective juror responded inquiry by death had “a Are more inclined to be leaning way you pro one or other? that, “Yeah, He would as life” with: death.” stated opposed pro pro “[I]t him verdict have to return a mitigating to be a lot” of evidence to convince arose out of of life without He denied that his views possibility parole. life a sentenced to revenge, explaining person that he was afraid that simply released, think a who person without or be and did not parole might escape kill He also again. before someone be loose to premeditated killing should feel he death he did not to life because preferred penalty imprisonment could such a for the rest of his life. support person voting
Defendant educes
that Austin was committed to
from this
murder,
a
death
or at a minimum had
any
involving
case
an intentional
impact.
eventual
acquainting jurors
they
with the evidence
were to hear would blunt its
“indoctrinated,”
forewarned, conditioned,
Having
jurors would not find the
been
or
shocking
they might
circumstances of the crime as
otherwise.
reviewing
reasoning
trial counsel from the
Because
court is unable to ascertain the
record,
is unwarranted.
appellate
object
incompetence
a conclusion that a failure to
reflects
dissent,
People Pope
Unlike the
we believe the rule of
E. Absence Defendant. of execution written waiver of his
Notwithstanding right his of a selection, stages be at some oral of present jury waiver subsequent right, defendant claims must reversed because judgment be was not present throughout He that the to be argues right selection. waived, present a crucial trial if during part of the be that even may waiver is his were permissible, waivers invalid.
Defendant concedes that the written him his waiver executed 5, 1983, attorney (b) July is language by subdivision prescribed section 977. That section waive expressly permits a defendant to his right be at all present felony other proceedings pre- than arraignment, plea, evidence, sentence, i.e., liminary hearing, taking of and imposition pro- ceedings at which the presence of reasonably defendant “bears a substan- tial relation to the fullness of his charge.” to defend opportunity against v. (People Cooper (1991) 53 Cal.3d P.2d Cal.Rptr. [281 865]; People Holloway (1990) 1327].) however, must, provides, It that the defendant “with leave court, court, execute in open a written waiver of his to be right personally
present.”
Defendant asserts that his waiver “apparently” written was not executed open recites, court. The minute order for that date “A however: Waiver of Defendant’s Personal is Presence received and ordered filed.” Defendant offers no for his support assertion that the waiver was not executed open court other than the omission of a recital to that effect in the minute order. *44 The minutes recite that defendant and his counsel were at the time present the waiver was received. In the absence any indication to the we contrary must, presume, as we that a judicial (Evid. is duty regularly performed. Code, 899, § 664. See Ross Superior (1977) v. Court 19 Cal.3d 913 [141 133, Cal.Rptr. 727].) P.2d 569 however,
Even absent such an in the presumption, irregularity procedure by which the waiver is executed not for reversal grounds is
50 judgment the absence of a both that the showing affected the irregularity waiver, voluntary and intelligent nature of the and that the defendant suf- fered prejudice a result of his absence from those selection aspects from which he had (1990) absented himself. (People v. Medina 51 Cal.3d 870, 849, 903 1282]; Cal.Rptr. [274 799 P.2d People (1989) v. Garrison 47 746, 257, Cal.3d 782-783 419].) 765 Cal.Rptr. [254 P.2d
One week court, after his written waiver was accepted by defendant’s attorney advised the court that defendant did not want to be present further during voir dire proceedings. court noted the prior written waiver and then agreed to acquiesce defendant’s request upon receiving an oral waiver and a statement that defendant volitionally made the personally request. Defendant’s waiver was then elicited and accepted court.
We have repeatedly rejected the argument that at all presence stages of a case capital is indispensible and thus (People (1991) unwaivable. Sully v. 53 1195, 144, Cal.3d 1238 163]; Cal.Rptr. [283 812 P.2d People Cooper, v. 771, 825; supra, Medina, 53 870, 903; Cal.3d People supra, v. 51 Cal.3d People 18, v. (1989) 631, Robertson 48 Cal.3d 60-61 767 P.2d Cal.Rptr. [255 1109]; 829, People 444, v. (1988) Grant 45 Cal.3d Cal.Rptr. [248 894]; P.2d People 386, v. Odle 406-407 Cal.Rptr. 184]; P.2d People v. Hovey (1988) Cal.3d 585-586 [244 776].) We are not persuaded that this conclusion should be reconsidered.
F. Exclusion the Public and the Press.
Defendant next claims that reversal of the judgment is required
because the
public
the press were excluded from the sequestered “death-
qualification”
dire
Court,
voir
conducted pursuant
Hovey
v. Superior
supra,
As discussed the record does not afford basis for any questioning defendant’s competence.
The record is also devoid of any support defendant’s claim that trial counsel had no opportunity object to sequestered voir dire. Nor will inhibition, we infer such an since the particularly to a right voir sequestered dire was recognized response to concerns of defendants over the capital *45 views and jurors’ effect voir dire on potentially prejudicial open of an (Hovey Supe- v. willingness capital to reveal their views punishment. about Court, People Thompson, we supra, 80.) rior 28 Cal.3d As observed 134, 156-157, of the supra, there was active litigation question occurred, this trial to attend dire when right press jury voir is defendant “it is because voir dire benefit of sequestered objected doubtful that have to it.” any competent defense counsel would therefore, conclude, We in the selection process that no impropriety warrants the judgment. reversal of
IV Guilt Phase Issues A. Argument Evidence and Related to the Incident. Scofield
1. Cross-examination of Defendant. reflects, As our brief description of evidence offered defendant his defense involved strategy an to attribute to effort his actions substance abuse, and to convince the his jury that use of cocaine before the shortly intentional, wilfull, offenses so affected his mind that the murder was not deliberate, or In premeditated. this effort he admitted his convic- support tion for assault a deadly with but minimize weapon, sought any implica- assaultive, tion that he was and claimed that he was forced to plead guilty to that offense even he though had acted self-defense.
In response, the People sought bring only out not the details of Scofield, defendant’s 1978 assault on William but other evidence about the incident, evidence including that defendant had Kathy stabbed Cusack. Defendant if was asked he had kicked the door to the room and denied open, it. He bed, denied Cusack, that there awas woman in ever that he had seen that he had seen a pregnant woman on the night stabbing, that Scofield bed, Cusack, had been in had stabbed that he had been close enough her, her to stab or that had cried anyone or screamed that she was pregnant.
Defendant now claims that the cross-examination which the during elicited People these answers was an into improper inquiry inadmissible evidence which that he had implied stabbed Cusack. The prosecutor’s ques tions, claims, were He did on those testimony. object grounds, however, or grounds on that the exceeded the cross-examination scope He direct. only made a relevance if objection asking he had question decided to plead guilty go to state prison, objected, grounds
52 evidence, assumed in if he questions asking facts not to a question recalled that the initial had argument been over the loss of Cusack’s cat. Therefore, even were we to assume that were the failure questions improper, Code, 353, to object (Evid. (a).) bars reversal on that ground. subd. § however, We make no such assumption, since the into all of the inquiry circumstances of the attack on Scofield was well within the scope examination, defendant’s on direct testimony to elicit evidence sought relevant to whether in defendant had violent assaults purposefully engaged in the Defendant past. having introduced evidence that his conviction of self-defense, assault with a in deadly weapon was based on conduct he took were not People precluded Evidence Code sections 761 787 from to rebut that attempting evidence out all of the circumstances of by bringing in incident which Scofield was attacked. Defendant had placed his issue, character in attempting show that did not commit a premeditated murder, aid of that effort to cast a favorable on the circumstances light were, therefore, of his The prior conviction. People entitled to cross-examine him all of the regarding circumstances for purposes of impeachment. Code, 773, (Evid. 780; 991, People Lang (1989) v. §§ 49 Cal.3d 1017 [264 386, 612, 627]; Cal.Rptr. (1975) 782 P.2d People Wagner v. 13 Cal.3d 617 457, 761, 105]; Cal.Rptr. (1969) 532 P.2d People [119 v. Schader 71 Cal.2d 1, 770-771 Cal.Rptr. 841].) 457 P.2d [80
Defendant’s effort to convert the issue into one of prosecutorial misconduct fares no better. Defendant seeks to on the rely well-established rule that a prosecutor may not examine a witness or insinuate solely imply the truth of the facts about (See which are questions People v. posed. 612, Wagner, 619; supra, 13 Cal.3d People (1963) v. Hamilton 60 Cal.2d 105, 4, 116 412], 383 Cal.Rptr. [32 P.2d on another disapproved point 631, People (1964) 201, 33, v. Morse 649 P.2d 388 Cal.Rptr. [36 12 810].) A.L.R.3d That reliance is Here misplaced. about the inquiry assault on Cusack was unquestionably predicated on evidence available to the prosecution. This is not a case which the evidence have would been inadmissible but for the fact that defendant’s answers have un may been 735, (See People (1971) truthful. 4 Lavergne Cal.3d 744 [94 77].) The evidence would A have been admissible. is not prosecutor under compulsion that a anticipate witness’s of additional details memory regarding events about which he has testified will fail on cross- suddenly examination. were questions but im leading, such are not questions when proper asked good faith of a hostile witness on presumptively Code, (Evid. cross-examination. (a)(2); People subd. v. Williams § (1957) 161]; 153 Cal.App.2d People P.2d v. Kostal [314 Cal.App.2d 205].) P.2d
2. Photographs. Admission of grounds on that objected, grounds
Defendant on and relevancy their so they gruesome prejudicial impact outweighed proba were that the Code, 350, (Evid. 352), stab tive value to introduction of of the photos §§ suffered wounds Cusack. by door room photos
The introduced the included one of the to the by People from which had Cusack had been dragged Scofield been and behind which the Defendant had denied had kicked in stabbed. that and his companions room, room, door to had denied and that woman had been bed relevant, had had denied that he ever seen The were there photos Cusack. fore, his were to the the testi impeach testimony. They by tied assault mony McKay, Officer who arrived at crime after the shortly had scene stabbings gone occurred had the scene. there he had photographed From treatment, to the to which had hospitals Scofield Cusack been taken for where he their wounds. He described photographed wounds, objection, without in his testimony.19
The record confirms that the trial court properly weighed probative value of the photos against their prejudicial before them. impact admitting Harris, 1047, There was no abuse of (People supra, discretion. v. 1095.)
3. Guilt Phase Argument.
In a related argument, defendant contends that prosecutor improperly implied, during closing at the argument guilt that defend phase, ant had stabbed argument Cusack.20The closely tied to the impeaching evidence, however, and did To not object. 19Defendant contends that the court should have McKay’s testimony excluded as irrelevant on its own motion. agree For reasons we assumption stated do not with the this testimony was Nor preserved irrelevant. is the appeal. issue for a court may While authority exercise such (People under Evidence Code section 352 v. Hall 826, (1986) 112, 41 99]; Cal.3d Cal.Rptr. 834-835 (1971) v. 18 People [226 Jackson Cal.App.3d 919]), Cal.Rptr. urged 509 the failure so act appeal [95 cannot be court, defendant, error. Neither command this nor can avoid the of Evidence Code section aside, that “A verdict . . . shall not be set judgment nor shall the or decision based reversed, be thereon by reason of the erroneous admission of evidence unless: “(a) There appears of record objection an to or a motion to exclude or to strike evidence . . . .” argument 20This was directed prosecutor’s to the emphasis impeached on the evidence that defendant’s testimony although guilty stabbing he had been convicted on a plea of of the Scofield, he had acting been in self-defense. prosecutor referred defendant’s denials in, room, that the door had been kicked that more than person one had been in the that a person second had been stabbed. He then reminded photographs of the crime evidence,21 harm could any
the extent that it
have lacked a basis
might
the court. Absent
by
and an admonition
objection
have been cured
such
Lewis,
(People the issue has not been
objection,
preserved
appeal.
262, 283;
People
v. Green
Cal.3d
supra, Cal.3d
468].)
P.2d
Videotaped Reenactment.
Warnings
B. Miranda
Prior to
*48
found,
that
finding,
the
challenge
The
and defendant does not
trial court
he
shooting
in which
admitted
the
statement
to
prior making
taped
police
to
decision,
Miranda
under
the
rights
defendant had “waived his
Dykstra,
given.”
and intelligently
that the waiver is freely, voluntarily, knowingly,
claims, however,
were
but
obligated,
that the officers
Defendant now
failed,
Miranda
(see
v.
the Miranda advisement
Arizona
to
properly repeat
694,
1602,
974])
10 A.L.R.3d
(1966) 384
436
L.Ed.2d
86 S.Ct.
U.S.
[16
later.
the
session conducted six hours
videotaping
to
prior
First,
the
admission of
object
claim.
defendant did not
to
reject
We
this
did
the
preserve
trial and thus
not
ground
reenactment on this
at
videotaped
Mattson,
853-854;
826,
People
(People
supra,
50 Cal.3d
issue for
v.
appeal.
713,
227,
669].)
v. Milner
753 P.2d
(1988)
45 Cal.3d
236
Cal.Rptr.
[246
Moreover,
initial
reenactment
the
during
to
agreed
participate
22
cites
Defendant
at which he had
waived his
interrogation
voluntarily
rights
that,
and
the initial waivers
notwithstanding
no
for the
authority
proposition
at
were necessary
and waivers
agreement
warnings
to the
further
procedure,
time
of the actual videotaping.
Finally he stated: “I
scene
and
blood on both the bed and the floor.
depicting the door
defendant,
about that?
girl
night?
you
a
Are
sure
you
asked the
are
sure there wasn’t
there
Cusack,
who didn’t
“Kathy
the woman
you
you
somebody
Are
sure
didn’t stab
else?”
story, seven times.”
exist in the defendant’s
stabbed
case in
wide-ranging right to discuss the
recently
prosecutor
21We
affirmed that “the
has a
shows and
closing argument.
right
fully
state his views as to what the evidence
He has
may
complain
appeal
on
urge
proper. Opposing
whatever conclusions he deems
counsel
these are matters for
reasoning
faulty
illogical
if the
is
or the deductions are
because
not, however,
not based
may
argue facts or inferences
prosecutor
to determine.
[Citation.]
834,
262,
(1990)
Cal.Rptr.
(People
50 Cal.3d
283
presented.”
evidence
v. Lewis
[266
892].)
786 P.2d
confessed,
interrogating
during
22At the conclusion of the interview
which defendant
of what
any
you
doing
officer asked
be
with
re-enactment
problem
defendant: “Would there
out,
cameras, for—for
happened
night.
last
. . . We’ll do it in video and take the cameras
our
things
investigative purposes,
taking pictures
you
explaining
happened
what
out
asked, “Yeah,
then stated: “Sure. I
along.”
went
Defendant
at the scene of the crime?” and
him,
problem”
“be a
guess
doing
I wouldn’t mind
it.” Asked twice after that if this would
“No,”
replied,
adding,
defendant twice
“I’ll do it” the second time.
site,
warning by Officer Side-
Santiago Canyon
given
general
At the
defendant was
“John,
to which
you
anything you say
being
tape
botham:
do
realize that
is
video
recorded?”
“Yes,
replied,
sir.”
later was
Assuming
agreement
interrogation process
to continue the
here,
waiver, however,
not a sufficient
such as those
where
circumstances
thereafter, a few hours
subsequent interrogation
place only
took
is
given
subsequent interrogation
truncated advice
was sufficient. When a
the full Miranda
repeat
it is not
reasonably contemporaneous
necessary
691,
(People
warning.
(1979)
v. Braeseke
25 Cal.3d
701-702
Cal.Rptr.
[159
684,
384],
(1980)
U.S.
P.2d
vacated and cause remanded
392 [64
603,
2147],
Cal.Rptr.
L.Ed.2d
100 S.Ct.
reiterated
1. Consideration Juvenile and Misdemeanor of Offenses.
Defendant next argues that court erred in to instruct failing sua that jury sponte it could not as a juvenile consider offenses committed narcotics, (sale of truancy, trespassing, and his misdemeanor convic escape) of tion vandalism in his He of determining guilt. concedes that evidence these offenses was either objection admitted without or was introduced by himself, defendant but claims that the obligated court was nonetheless to instruct on the limited for which the purpose evidence could be considered.
The rule is in otherwise. the trial court an case “Although may appropriate instruct sua sponte on the limited of criminal admissibility evidence past conduct, we have held that consistently it is under to so.” duty (People no do 458, v. Collie Cal.Rptr. [177 776].) A.L.R.4th We are not persuaded that an in is warranted this exception Indeed, case. defendant’s reason for evidence of his offering past misconduct offense, was to persuade ones, that his jury present like the earlier of his product abuse of He invited the to drugs. jury consider those offenses in his determining guilt, and may that it did complain appeal (See People so. (1988) 44 Williams Cal.3d 958-959 336, 751 395].) P.2d
2. Evidence Mental State.
Defendant claims that the instructions given by court were not adequate to advise the of the jury relevance of the evidence of drug-induced Sidebotham then reminded defendant: “And Investigator Coder Investigator and previously Heacock you your advised rights you constitutional waived those rights. ... you “Yes, Do still rights?” want waive replied again, these Defendant sir.” his accom- response and “near automated
psychosis, sleep deprivation, mental elements the existence or absence finding command” to plice’s murder, attempted charged—murder, with which he was of the offenses instructions refused to give that the court He robbery. complains particular actuality.” on “diminished Rather, re- however. instructions were requested,
No such 4.25, Nos. (CALJIC former on “diminished capacity.” instructions quested instructions, 8.41, a defendant’s which address 8.48.) refused those court a mental intent or harbor or to form a ability specific general capacity offense, by abolished the defense had been element of an because 25,23 an of section the addition amendment of section 8, 1982, election. the electorate the June initiative measure adopted by that the murder determined jury It clear from the verdicts that the jury is There- robbery. during perpetration was a murder committed felony fore, intent to is the those two offenses mental state now relevant to only murder, kill of attempted intent are elements steal.24 Both malice and were given adequate the instructions however. The issue is whether intoxication and drug-induced that defendant’s evidence of inform the could be considered his mental state testimony regarding the expert at the time of mental elements if defendant did harbor these determining offenses. It is clear that were they adequate. *50 II, I, “In counts charged the crimes jury: trial court instructed Information, murder, and a robbery, III murder attempted namely of a certain mind of the defendant element is the existence
necessary 25, hereby capacity is (a) “The defense of diminished provides: 23Section subdivision action, concerning evidence any juvenile proceeding, as court abolished. In a criminal as well disease, intoxication, trauma, illness, be or defect shall not person’s mental an accused intent, motive, malice purpose, negate capacity particular to show or to form the admissible commission the crime required for the aforethought, knowledge, or other mental state charged.” 1591-1592, 1982, 2, and Statutes pages section by chapter As amended Statutes 3317-3318, by a “(a) act committed provides: section 22 No chapter pages section having of his been voluntary a state of intoxication is less criminal reason person while in negate not be admitted to voluntary in such condition. Evidence of intoxication shall to, including, but not limited any charged, to form mental states for the crimes capacity intent, aforethought, with which knowledge, or malice purpose, premeditation, deliberation the accused committed the act. “(b) of whether or not solely on the issue voluntary Evidence of intoxication is admissible deliberated, intent, or har- premeditated, actually required specific the defendant formed a aforethought, charged. is specific bored malice when a intent crime injection, taking by any or “(c) ingestion, Voluntary voluntary intoxication includes the any substance.” intoxicating other means of or other liquor, drug, intentional. jury special 24The made a finding that the murder definition of the included in the intent or mental state. These are specific charged. crimes at the time of
“If the intoxicated evidence shows that the defendant was offense, his state intoxication alleged jury should consider if the intent or mental state. determining defendant has such specific whether defend- “If from all of the evidence have reasonable doubt you a state, intent, must you ant was such or mental capable forming specific find have give the defendant the benefit of that did not doubt such specific intent.” elements of
The court also instructed manslaughter,25 after which a further instruction on intoxication was given:
“If you find that the a defendant killed while unconscious result voluntary intoxication and was a intent therefore unable form specific to kill or to harbor malice his is aforethought, killing involuntary manslaughter.”26
With respect the court instructed the felony-murder-robbery, jury: “Before the defendant be found of the unlawful of a may guilty killing human as a being result of the or the crime of attempt commission to commit 25Defendant claims the court voluntary manslaughter. refused to instruct on The record first, confirms that manslaughter given. two instructions on were In the the court did not voluntary manslaughter. define manslaughter “The crime of killing being is the unlawful aof human without malice aforethought. “Involuntary manslaughter is the killing being unlawful of a human without malice aforethought and an without intent kill.” The court also instructed: “The distinction between murder manslaughter requires is that murder malice while manslaughter does you beyond not. ... If are satisfied killing doubt reasonable that the *51 unlawful, was you but have reasonable doubt manslaughter, whether the is crime murder or you doubt, give must the defendant the benefit of such manslaughter and find it to be rather than murder.” The jury intentional, found under properly given instructions that the murder was and was perpetration committed in the robbery, establishing killing thus that was murder of the degree first felony-murder under the rule and necessity proving section without the 189 Any failing malice. error in manslaughter to instruct on voluntary was v. (People harmless. 703, (1974) 1, Sedeno 913], 10 Cal.3d Cal.Rptr. 721 518 People [112 P.2d See also v. Saille 1103, (1991) 364, Cal.Rptr.2d 1114 820 P.2d shown [2 whenever 588] [Malice killing is negated intentional unless by evidence quarrel of sudden or heat of passion].) instructions, instructions, 26Defendant claims that these capacity” given “diminished were him, erroneously. however, The instructions only could have been to they beneficial since permitted jury to speculate whether the evidence capacity indicated that he lacked the to states, harbor the relevant mental while the other the jury determining instructions limited to whether, fact, in the mental elements of offenses were present.
58 and determine must all the evidence into consideration take robbery, you crime, therefrom, commit such attempt if at the time of commission or condi- physical was mental or suffering the defendant from some abnormal tion, caused, intent forming specific which him from prevented however to commit such crime.” was, therefore, into
The that it should take repeatedly instructed jury in whether consideration the evidence of abnormal mental state determining was present, the mental states that are elements of these offenses were be consid evidence that should drug-induced advised that intoxication was in error ered in There was no making that determination. this regard.27 Error.
3. Murtishaw observes, concede, that the correctly People Defendant to the in on malice failing implied trial court erred to limit the instructions (1981) v. 29 People murder As we Murtishaw count. explained 733, 738, a defendant Cal.3d 764-765 Cal.Rptr. 446]: [175 “[O]nce kill, malice. necessarily express intends to malice he harbor is any may . with a intent to kill. To instruct malice . . cannot coexist Implied specific therefore, sug the jury by malice that confuse implied setting, may intent to kill.”28 they specific can convict without gesting finding (former 217) with issue While assault intent to commit murder § Murtishaw, kill that rule murder since intent attempted applies equally 41 (1986) Cal.3d (People is also an element of murder. v. attempted Ratliff 665]; (1982) 30 People P.2d v. Ramos 715 Cal.Rptr. [224 Cal.3d revd. on other grounds P.2d 908] 1171, 103 Ramos L.Ed.2d sub nom. U.S. 992 [77 California 3446].) S.Ct. kill an failed is element court also to instruct that an intent to murder, there be “a telling jury specific must attempted only crime, its
intent direct act done toward to commit the and the but ineffectual result, have commission.” As a believed argues, jury might instruction, 27In that these attempt prejudicial an establish error in the defendant claims instruction, instructions, manslaughter prevented the coupled voluntary with the omission of a kill, unlawfully do considering from whether he intended to but did not so because robbery provocation spurred by drug impulse. acknowledges some use that the or Defendant *52 finding the argument, inadequate jury verdict undercuts this but claims that instructions make are statements establish “suspect.” persuaded. of intent to rob We not Defendant’s own beyond to any question the existence of an intent rob. gave general attempt. 28The court a instruction on the elements of This was followed only defining express implied instructions on the of and malice. elements murder
59 verdict, like murder on degree that an murder a verdict on second attempted instructed, if malice which it had been be returned were found. could implied 26, Dyer (1988) The 65 People People, relying [246 209, 1], People 753 P.2d v. Lee Cal.3d Cal.Rptr. [238 752], is Dyer contend that the error was harmless. however, to not their since in that case the convicted helpful position, jury the defendant of and had instructed degree first murder been that attempted a intent kill Lee to was an element of that offense. The had also specific jury been the instructed that had to that defendant shot with prosecution prove kill, intent to and the were directed to the specific arguments of counsel existence that of intent.
We conclude nonetheless that could not have omission prejudiced The defendant. instructed a that defendant must have specific crime, i.e., murder, intent to commit the and murder had defined. In his been argument prosecutor had that malice/felony-murder stated the implied murder, were instructions inapplicable to and that attempted attempted murder there must be malice The and intent to kill.29 express prosecutor’s times, argument emphasized the evidence that shot Wolbert three and that because the third fired shot was into Wolbert’s face at point-blank “there’s range question no what was in the mind at that There’s no point. question what his intent was .... no what question There’s this man’s intent was when he did that. He kill intended to a second ...” victim.
The argument of defense counsel was directed to the murder primarily count, but in his attempt persuade to did jury that defendant intend to kill, he made reference to well shooting Wolbert as as that of Dykstra. therefore, There question, is no but that the aware jury was that specific intent to kill was an (Cf. element of People murder. v. Howard attempted (1992) 1 Cal.4th 1315].) Cal.Rptr.2d P.2d instructional error was beyond harmless a reasonable doubt.
4. Consideration (Stone/Kurtzman). Lesser Included Offenses
The court instructed that the jury must unanimously agree sign a verdict finding the defendant was not of first murder guilty degree 29Anticipating the to given, prosecutor instructions be stated: “The second charged crime attempted is very simple concept. applies murder. It’s a just It to top part diagram [outlining murder], the elements and degree theories first “Basically says you it attempt, attempt unlawfully kill being express another human with words, malice aforethought, in other you attempt you something kill and do with intent kill, kill, you try unsuccessful, but one you’re reason or another attempted that’s murder.” *53 degree of second murder. could find defendant or not guilty
before the jury that an instruction giving required claims that the court erred Defendant of lesser included an of first murder before consideration degree acquittal offenses. of were did not consideration They preclude
The instructions
proper.
(1982)
(183
5. Other Instructional Error. erroneously gave also the court
Defendant complains evidence, was and concealment of that it error flight instructions crime, of and that the instruct that the murder is not an element of degree confusing.30 order of instructions was 2.52, instruction,
The of CALJIC No. given flight language guilt, that evidence of alone is insufficient to establish flight advised jury of be other facts in may proven deciding question but considered with “An or innocence. It of section 1127c. guilt language followed instruction on is if the infer that flight given reasonably could properly jury flight flight requires defendant’s reflected consciousness of guilt, far-away neither the act of a haven. running reaching nor physical however, being does a to avoid purpose Flight manifestly require, [Citation.] 833, 869 (People or arrested.” observed Crandell 423].) infer immediately could from the actions of defendant the crime that his with Hefner reflected consciousness following flight dire right present throughout 30Defendant claims that waiver of the to be voir also his ineffectual, jurors granted be because he was prospective that reversal should also during judge regarding discussions and counsel instructions absent chambers between the moving section nor admission Our conclusion above that neither exhibits. authority supports voluntary constitutional defendant’s that the absence of claim proceedings, impermissible, disposes of this claim during capital some even in a case is well.
61 decision guilt. only This conclusion is not affected defendant’s to contest the mental he we to conclude that the state with which acted. Even were however, instruction should been it harmless. As clearly not have was given, Crandell, 833, supra, 46 did assume that flight Cal.3d instruction not established, to the leaving was that determination and its significance factual jury. are evi
Nor we that the instruction on concealment of persuaded (CALJIC 2.06) dence No. was because it was Hefner who simply improper had concealed the The evidence Hefner had gun. an inference that permitted acted on behalf of as concealing defendant well as weapon however, did with so defendant’s if encouragement. there was error it Again, was harmless beyond reasonable doubt.
The offense with which defendant was was “murder.” The charged court instructed correctly degree not an element of The is that crime. is an degree element either of first or second murder. The court degree correctly instructed the that “all jury murder which is perpetrated by any willful, kind of deliberate and with malice premeditated killing express aforethought is murder of the first degree,” and that “the unlawful of killing intentional, unintentional, accidental, a human being whether or which as a occurs result of commission of or to commit crime of attempt robbery, where there in the mind of the perpetrator specific crime, intent to commit such is murder the first of degree.” The jury was thereby to find required all the elements of the offense of first degree murder. jury was also instructed that “the burden is on the state prove beyond a reasonable doubt each elements murder.” claim, Contrary to defendant’s the instructions did not shift the to the burden defendant, nor would they confuse to the elements that had to be proven beyond a reasonable doubt.31 Although general rule is that the order in which instructions are given is immaterial and is left to the sound discretion of the 471, trial court (People (1990) v. Sanders 51 Cal.3d 519 537, 561]; [273 Cal.Rptr. People v. (1981) Carrasco 118 936, Cal.App.3d 942 688]), [173 we have reviewed the Cal.Rptr. order in which the instructions were given this case and are satisfied that the order was logical and that no confusion was (People reasonably possible. v. Ford 772, (1964) 793 Cal.Rptr. 892].) P.2d [36 388 31 Defendant apparently jury unanimity concedes that theory degree on the of first murder is U.S. _, _ (See not required. 555, 572-574, (1991) Schad v. 501 Arizona L.Ed.2d 111 [115 2506-2507, Salia, S.Ct. 2503-2504 (plur. opn.), J.)]; opn. People conc. v. Milan 185, 194-195 (1973) Cal.3d 956]; 9 Cal.Rptr. P.2d People [107 v. Nicholas Cal.App.3d 497].)
V
*55
Special
Issue
Circumstances
the
trial court to instruct
Defendant
the failure of the
argues that
265,
(1984)
539
Cal.Rptr.
v. Garcia
36 Cal.3d
jury pursuant
People
[205
(1983)
v.
personally Dykstra. 190.2, are limited (§ (a)(17)) subd. not felony-murder special circumstances murders, such is and deliberate and that a premeditated requirement considerations. mandated the Amendment or other constitutional Eighth 126, 755 (People (1988) Cal.Rptr. v. Cal.3d Belmontes 45 794-795 [248 310].) P.2d
VI Penalty Phase Issues A. Instructions.
1. CAUIC Former No. 8.84.2. former No. The court instructed CALJIC jury language “If outweigh 8.84.2: conclude circumstances you aggravating circumstances, death. shall a sentence of mitigating you impose “However, if outweigh you determine that circumstances mitigating circumstances, of confinement shall sentence aggravating you impose in the state life prison parole.” without possibility (1985) 538-545 People on v. Brown Cal.3d
Relying [220 (revd. grounds P.2d other sub nom. 440] California 837]), Brown U.S. 538 L.Ed.2d 107 S.Ct. argument, contends that instruction and the prosecutor’s penalty phase this the role the jury further explanation weighing process without these Together misled the determining penalty, jury.32 appropriate formula a mechanical jury weighing factors restricted implementing if mandatory under which “bad” out death imposition penalty role and left the without an of its weighed “good,” understanding responsibility determining appropriate penalty.
In a related the argument, judg defendant that reversal of argues of ment death is because the not demon required affirmatively record does strate that infer jury the considered all evidence and properly mitigating claim, In ences. of on of support this defendant relies not the use only 8.84.2, CALJIC former No. but on other instruc also a failure of perceived to tions ensure that the was aware of the extent its to jury full of discretion consider any mitigating evidence. record,
When such we addressing claims examine the entire includ ing the and arguments, instructions to determine whether the was jury misled to the prejudice of the defendant about the of its discretion. scope sentencing Brown, 512, 544, (People supra, 17.) v. Cal.3d fn. We must ascertain whether, overall, the jury was informed the its adequately of full nature of sentencing both as to the in which the responsibility, manner various factors are be weighed and to the of its scope sentencing (People discretion. Belmontes, supra, 45 802-803.) Cal.3d at pp. here,
Having reviewed the record we are satisfied that the argu ment counsel informed the clearly that the not jury weighing was process misled, support 32In of his claim jury points that the was defendant also to statements and questions by both judge prosecutor the and during the dire led may the voir which have prospective jurors to believe that penalty process assessment of the was a mechanical which they would obligated be carry The prosecutor’s explanation out. jurors penalty to the in the phase argument, coming dire, weeks the immediately after voir and before the matter was submitted to jury, the was unquestionably adequate any misunderstanding to dispel of their role these statements questions may and have invited. The voir dire judge statements the anticipated the given “unadorned” instruction later. Explaining penalty phase procedure, alia, the judge the prospective jurors, told the inter that factors, is, if the side, “evidence of mitigating that factors that are beneficial to the defense factors, outweigh aggravating the your is duty back a mitigated come with verdict of the sentence, is, that life possibility without parole. factors, aggravating factors, “If the your judgment, outweigh the mitigating aggra- the bad, vating being defendant, factors that evidence goes that is or to the detriment of the or damning concerned, in nature as far as the is if outweighs mitigating that the factors, your responsibility is to come back with a verdict of death.” mechanical, had the discretion that both impressed jurors they pen- death was the appropriate and the to determine whether responsibility Indeed, his prosecutor opened of all of evidence. alty light only question at the trial the advising stage this argument by done, this defendant has was “in of what know light you to be answered what or does deserve?” penalty punishment was arithmet- made it clear that the prosecutor weighing process a factor He after had decided that jurors they ical or mechanical. told “finally if it you and decided was or applicable aggravating mitigating, words, In is the important it. ask how weight you yourselves attach other you’ve . how is it in the . . . picture? factor . . overall important [0]nce factors, look you attached a to each one of you’ve weight done that of the factors weight at the end of deliberations on each one your at total aggravating outweigh the final Do the factors you answer question: hand, On the In which for the death other you penalty. case vote mitigating? factors, outweigh aggravating you if think that the factors you mitigating of life without possibility defendant the lesser sentence give prison *57 parole.”
He the the tremendous undertook they on impressed jurors responsibility and them that “the “sitting in life or death of a human told judgment being,” your will make way you answer these ... the way you really questions kind a this is and determining by ultimate determination is what of crime by he kind it who the crime.” As determining person what of a was committed statutory aggravating was the evidence and its to the reviewing relationship factors, (k)—“[a]ny the that factor and the told mitigating prosecutor jury though the the crime even it other circumstance which extenuates gravity 190.3, crime”—(§ (k)), a the to jury is not excuse for the factor allowed legal and for him to save theoretically enough “consider and that’s pity sympathy him, life. If feel can him the benefit of that his ... you sorry you give and and can life.”33 save his pity sympathy you The life even was told that one alone could save defendant’s jury factor if itself of the others were it though “overwhelmingly aggravated,” by all more than the weighed other factors. likelihood, argument, jury
We see no based that prosecutor’s believed involved more than nothing would have that the weighing process summation, he In adding the number of and factors. mitigating aggravating counsel, agreement by this supplemented 33Pursuant to the court’s instruction on factor statutory mitigation “or as a factor in language any with: factor offered the defense mitigating penalty,” making jury any thus it clear that the could consider evidence. it return a verdict of duty obligation told the that was their and jurors “if The was thus jury death that’s what deserves.” with the discretion and its to determine impressed scope responsibility its the appropriate penalty.34 while the be attorney might
Defendant’s also that emphasized prosecution a though that verdict of death be returned even the defendant was “49 asking tactic, that easy an inaccurate but effective “it’s not percent good,” possibly taken my case That’s that can be opinion. type procedure He urged without careful evaluation and careful consideration." also lightly to consider there’s more serious jury sympathy pity nothing and “because than what asked take you’re being being somebody’s to do. You’re asked to life. That’s bottom line.” it was and
Again made clear that no mechanical was weighing expected, determine, evidence, that the jury’s was based on all of the responsibility defendant, and for the if he considering put should be sympathy pity death. court included an instruction that “consider jury pity could for the defendant be on the sympathy deciding the penalty imposed defendant.”
We reject known petitioner’s argument may that not have jury Here, that it could consider all mitigating evidence that was before it. misled, support 34In his claim that the was that argues prosecutor also argued absence statutory mitigating aggravat of some factors should be considered ing. After the trial of this we People Davenport (1985) case held in 289-290 861], such argument improper not be should *58 permitted the in future because it likely jury was to meaning confuse the as to the of the terms “aggravation” however, and “mitigation.” It improper, is not to each and review factor the possible relevance of the finding present. evidence to it The prosecutor’s argument in this case followed a of He used permissible pattern review. the absence of a a springboard factor as from which launch to his discussion of the evidence which precluded finding present. the factor to be In on by the instances relied defendant to error,” “Davenport establish the context made it he relying aggravating clear that was on the evidence, factor, nature of the not the absence of a mitigating attempt persuade in his to the jury that death was the appropriate penalty. Thus, in commenting (e)—“[w]hether on factor or not the in participant victim was the 190.3, defendant’s homicidal conduct or act”—(§ (e)), consented to the homicidal factor the prosecutor emphasized the that victims were lured they to the scene. “The defendant . . lied . didn’t anything have to happened do with what day. that That’s an aggravating factor. If it applies again—maybe don’t you think that applies, anything but if an factor.” aggravating it’s The prosecutor (§ 190.3, categorization (i)) left age of jury, stating only factor to the it was mitigating deal, not and that jury “may the it big think isn’t a or aggravating it’s an factor.” As to section (j)—“[w]hether factor or not the accomplice defendant was an offense to the and participation his offense relatively the was prosecutor minor.”—the said because that defendant was the “triggerman” the factor could an help aggravating not him. “That’s factor.” Again, victims, the reference was to the that evidence the to personally defendant shot not the absence of section (j), factor aggravating as the consideration. cases, limited it was that the have believed argues jury may past “extreme” mental or emotional the factors referred statutory only because language are satisfied that this disturbance and “extreme” duress. we Again People (See the of did not restrict exercise discretion. impermissibly jury’s 949], P.2d Cal.3d 225-226 Morris counsel, cited.) There no in the of argument and cases was suggestion instance, defendant acted under that the could not consider whether jury “extreme” The pros- duress because the instruction referred duress. only should defendant’s argued jury attempt persuade ecutor that the reject should,” that that Hefner him he but never suggested them had “convinced “extreme” the did not rejection the should be because evidence demonstrate Indeed, assumed, clear to duress. of and made the both counsel arguments that would all of jury, jury counsel assumed that the consider Recog- inferences be drawn therefrom. mitigating might evidence and that that the not evidence nizing might mitigating persuasive, find the jury nonetheless, however, satisfied, are counsel made no effort to on it. We rely misled, any and that it was free to consider jury was not was aware in mitigation.35 evidence at the and trial presented guilt penalty phases Lesser 2. Instructions on Offenses. did not clear instruc argues give
Defendant because the court offenses, verdict of tions on all lesser included of the possible reliability was has been We his claim that there rejected death undermined. have voluntary failure to guilt error court’s instruct prejudicial phase context, however, of the manslaughter. In this that the omission argues the distinction may understanding instruction have from prevented jury voluntary murder and between between degrees manslaughter so, If not be involuntary properly would able manslaughter. considering consider the the reduced levels culpability impact That relevance of the evidence of his intoxication to culpability penalty. he argues, notwithstanding evidence would be relevant at the penalty phase, irrelevance felony-murder finding. its at the guilt phase light that any
We that the evidence relevant. We do agree agree *59 relevance, noted instructional misled the as As we jury error to that however. in jury 35Defendant’s told the that to the factors “we have statutory counsel in addition any you considering . this case addition . . other factor that think whether or not is relevant or mitigated. pity should be there. consider may We also have one that is not listed You defendant, sympathy particular for the so of different to consider.” we have a lot factors adopted did a argue any present. Counsel not that factor was He statutory mitigating tactic, factors conceding jury aggravating different that the all of the possibly could find that present, impact were to note the and the mitigating. tragedy none of the His was approach tragedy or jury of the murder victim’s death on other the not to add to the people, and to ask cause others to to impact by suffer the same death. condemning above, kill was an element of is clear the aware intent to jury it that was that that defendant’s intoxication rejected murder and evidence attempted earlier, And, was jury the existence of that intent. noted negated evidence of both defendant’s instructed that it should take into account the rejected The drug-induced jury abnormal mental state and his intoxication. that it to reduced basis when culpability defendant’s establish attempt returned the verdict. guilt have been aware that might
Defendant also claims that jury larceny his intoxication relevant in whether he committed determining was theft that or auto rather than He his claim robbery. argues, support him in he “maintained that prejudiced regard, instruction this that inadequate he did not intend to rob or Dykstra Wolbert.”
We his claim that the reject regard. instructions were this inadequate crime, The was instructed that jury robbery was a intent that specific intent to had specific robbery beyond commit to be reasonable proven doubt, and that defendant’s in determining intoxication should be considered if he had were requisite specific larceny intent. Instructions on given, was if jury told that it was not satisfied the defendant that was guilty the charged offense it could convict on lesser included offense. any (People instructions were adequate. v. Jones 757].)
We note also that defendant does not describe his accurately testimony. While he testified that at the time car over he intended to only pulled urinate, he also testified that intent take his was to the victims farther up canyon before taking their money. Defendant refused characterize his “rob,” intent anas intent to but his own description plan admitted that intent. At one point during cross-examination when prosecutor asked words, about his choice of defendant testified: “We didn’t intend to rob them, just get them them off to—rip of their them it money, get give us and take used, it.” Asked what his intent was when he stated: gun intentions, “Same take their money.”
We see no possibility that the jury was unaware drug- or alcohol- induced intoxication could afford a a guilt basis for verdict phase of lesser offenses, failed to understand that this reflected society’s recognition of differing degrees legal culpability, or failed to recognize drug- alcohol-induced intoxication be could considered in assessing defendant’s at culpability the penalty phase.
3. Standard of Proof.
Defendant claims that the court erred to instruct the refusing *60 that it before could the death impose it to find penalty had a beyond
68 and that mitigating factors aggravating outweighed reasonable doubt that rejected argument We have death was the appropriate penalty. repeatedly standard, determining guilt that the doubt one when required reasonable determinations, to be making assessing penalty is to appropriate factual (1991) 1 Cal.4th People Bacigalupo case. (See, a v. imposed capital e.g., 103, 335, 559]; (1990) 50 People 146 v. Gordon 820 P.2d Cal.Rptr.2d [2 1223, 451, 251]; People v. Cal.Rptr. Cal.3d 1273-1274 [270 963, 278, 475].) 760 (1988) Cal.3d P.2d Jennings Cal.Rptr. 46 992 [251 B. Prior Conduct. Evidence Criminal
1. Kathy Cusack. first his attack on Cusack Kathy
Defendant claims that evidence of Code, (Evid. should have been excluded more than prejudicial probative 352), He that and as also introduction improper complains rebuttal. § denies evidence been convicted of criminal acts which a defendant has not that has a fair trial is made the same guilt by jury since determination of is verdict of which the defendant already returned a on guilty charges on trial. claim has merit. Neither admissible
Evidence of assaultive conduct is made prior expressly 190.3, (b)—“The as a factor aggravating presence factor section statutory by or at ... of criminal involved the use activity which or threat to use force use of force violence or or tempted express implied a or violence.” As such it is matter which the believes be particularly state 963, (People Jennings, supra, relevant to the v. 46 Cal.3d penalty decision. 988; 867, 713, People 750 (1988) v. Melton 44 Cal.3d Cal.Rptr. 770 [244 Therefore, 741].) P.2d we while recognize has court under Code 352 to the manner authority Evidence section control offered, in which evidence of criminal conduct it has discretion past is no all (People exclude evidence v. statutory sentencing related to a factor. 640]; Douglas (1990) 50 Cal.3d 531 P.2d 788 Cal.Rptr. [268 612, 641, v. People (1988) Karis 758 Cal.3d fn. Cal.Rptr. [250 P.2d 1189].)36 The evidence was offered in rebuttal to properly acts were uncharac attempt persuade defendant’s his violent (People teristic and that he normally treated with concern people respect. People Harvey 36Defendant’s reliance 396], bargain pleaded guilty P.2d further claim to the assault plea for his that the in which a in this deadly weapon with on Scofield of the attack on Cusack precludes consideration proceeding, misplaced. permit is We it would unfair to court to consider held there that be facts which underlying bargain sentencing charge counts for the plea dismissed in a pleaded contrary agreement it was guilty. defendant had We reasoned that absent a
69 667, 730, Rodriguez (1986) 42 726 P.2d Cal.Rptr. v. Cal.3d 791-792 [230 113].) he offered to that
Defendant asserts that evidence he show mitigating limited of his conduct good was to members of his was to evidence family offered when he not under influence and it was not as drugs was of he character of being evidence that was nonviolent or demonstrate a trait to a evidence his person. argues prior nonviolent On that basis he of under the influence was not rebut- assaultive conduct while of drugs proper tal. We are not persuaded.
The rebut evidence character evidence with prosecution may mitigating (People v. Mickle related the character 54 to trait raised defendant. by 140, 511, 290]; People Rodriguez, Cal.3d v. 792, supra, 24.) Cal.3d fn. A number of witnesses testified kind, defendant’s and behavior. loving, compassionate offers, A capital defendant who evidence relevant mitigating die,37 whether he should live or evidence that he a kind and considerate is person not may restrict the of evidence offered to rebut that inference scope that he intended kind arguing to demonstrate that he was only considerate under limited circumstances or Evidence to particular people. that defendant violently assaulted a woman who was bed and pregnant stabbed her several even times after being told of her condition was relevant and proper rebuttal the evidence that was a kind and considerate person.
Defendant also makes a in wide-ranging constitutional attack on conduct, troduction of evidence unadjudicated criminal without asserting, elaboration, that he was denied due that his process equal protection, implicit bargain such sentencing consequences by “that defendant will suffer no adverse to, (Id., reason of the underlying, solely pertaining 758.) facts p. at dismissed count.” referred, however, The sentence which we being imposed. Nothing sentence then in Harvey, supra, precludes Cal.3d consideration all incidents of assaultive conduct offenses, in sentencing for subsequent including capital sentencing, or not whether offenses, charged defendant has been with those bargained-for or had them dismissed in a Robertson, Melton, charges. (People disposition 47; supra, of other v. People 48 Cal.3d supra, 755.) 37Defendant’s reliance on Evidence Code section 1102 is misplaced. permits That section prosecution to introduce evidence opinion of a trait of character “in form of an or reputation” evidence of his in order to prove rebut evidence the defendant has offered to defendant’s “conduct in conformity with such character or trait of character.” relevance evidence of character or a penalty character trait to the in a determination capital trait, case is whether the defendant in conformity acted with a but character whether the defendant’s or character character mitigating trait should be considered a factor. Therefore, prosecution whether evidence proper is peculiar rebuttal must be determined in the trial, circumstance a penalty not under Code Evidence section 1102. *62 violated, inno- was the of self-incrimination
right against presumption denied, that the was to was and infringed, right cence the confrontation due was He that a to a affected. concedes right reliable determination penalty in and v. Balderas People claim was considered process-based rejected 480], in 41 which (1985) 711 P.2d Cal.Rptr. Cal.3d 204-205 [222 for the in States Court Supreme we found no decisions of United support to of a impanelment separate that due suggestion process requires in to recon- determine a case. We decline his invitation the penalty capital aggra- criminal acts as unadjudicated sider our conclusion that admission of vating factors is constitutionally permissible. of of the
We claim that admission evidence reject also defendant’s give error failed to attack on Cusack was either because the prosecution notice, him to or denied enable because defendant was a continuance to to evidence against aggravating defend that evidence. The notice prepare include to trial did not given by pursuant to section 190.3 People prior evidence, rebuttal evidence from this but section excludes expressly 190.3 the notice requirement. (other than a in to find witnesses
Defendant did continuance order request Scofield) William “who as what occurred that testify really would He did of Cusack. evening” and order for cross-examination prepare witnesses, however, not name the abortive prosecution’s and potential have counsel to effort to introduce Cusack’s earlier should alerted testimony as was that she would be called a rebuttal witness. Counsel probability witness, the 1978 investigation on notice that Scofield would be a any really events which Scofield was attacked would have revealed “what evening.” occurred that prior
Notice that evidence will be
a
presented regarding
specific
crime or
all
crimes should alert counsel that evidence of
crimes committed
offered,
therefore,
and,
part
the same course of conduct
be
may
(People
substantially
with
of section
complies
requirement
the notice
190.3.
771, 842.)
Cooper,
did order
supra,
Finally,
court
incident,
that all
those
Scofield
police
related to the 1978
about
reports
Cusack,
until
be delivered to
was
called
counsel
and she
not
immediately,
circumstances,
Under the
there was no abuse of discretion
following day.
committed
denying
for continuance. The
is one that is
request
ruling
(1988)
(People
sound discretion of the trial court.
v. Ainsworth
Cal.3d 984
1017].)
U.S. _ [114
Unlike
L.Ed.2d
the situation
v. Idaho
Lankford
relies,
state
S.Ct.
notice that the
which
ample
1723]
death
given
seek the
the outset
this
penalty
prosecution.
would
from
gave
circumstances were
notice
charged
People
Special
Defendant was
phase.
evidence it intended
offer at
aggravating
penalty
of the trial.
denied
of the issue
at the
phase
notice
to be resolved
penalty
*63
Nor
offenses threaten
unadjudicated
does introduction of evidence of
evi-
on the
of
inaccurate
materially
of
death
basis
imposition
penalty
(1988)
Mississippi
dence such
that
v.
jury
considered
Johnson
575,
There the
evidence
only
2. William Scofield. People
Relying
(1985)
v. Jackson
Defendant concedes that no was made the evidence. objection More over, Karis, we have rejected (see similar claims People v. 46 supra, Cal.3d 612, 640; Melton, 713, 755-756; People v. supra, Cal.3d v. People Gates 301]), are not persuaded that these decisions should be reconsidered. The presentation evidence of past criminal at conduct a not sentencing hearing does place with jeopardy to the He respect offenses. is on trial past offense, the past is not subject to conviction or for punishment past offense, and may not claim either speedy trial or double protection jeopardy against Melton, introduction such evidence. (People supra, Cal.3d 713, 756, 17.) fn.
3. Evidence Juvenile and Noncriminal Conduct. evidence re
The court instructed the to consider all of the jury ceived at of the trial. Defendant claims that as a result any phase juvenile to consider evidence of nonviolent and of improperly permitted fenses that otherwise would have been inadmissible at the penalty phase. instruction, did his only
Not defendant fail to but request limiting that violent conduct was inadmissible is unwarranted. assumption juvenile Section 190.3 consideration of “other criminal the defend- permits activity by ant which involved the use or which or use of force or violence attempted involved the or threat to use force or violence.” Evidence of express implied (People violent is under v. Burton juvenile conduct admissible that section. *64 843, 184, 1270]; People 48 Cal.3d 771 P.2d v. Cal.Rptr. [258 1, Lucky (1988) 1052].) 45 Cal.3d Evidence of in nonviolent criminal that did not result activity felony is, claims, conviction as defendant inadmissible as an factor. aggravating Burton, Here, however, (People supra, 862.) v. the evidence that defendant now claims should not have was evidence been considered that he himself had introduced of his establish that his support effort to criminal he conduct was attributable to his use of and that was drugs otherwise a The did loving, caring, nonviolent and court law-abiding person. limit consideration of the evidence the to consider the by instructing jury (§ 190.3) factors the the statutory determining Having introduced penalty. himself, evidence defendant not now that the have may jury might complain concluded that the factor to which it rather was relevant was aggravating Williams, (People 957.)38 than mitigating. supra, Cal.3d conduct, prosecutor 38The stating did refer to the evidence of prior defendant’s criminal it person fairly aggravated reflected a “with a background,” arguing but he did so in that the character, testimony by family members of defendant’s accurately portray did not his and that jury being was impose only not asked to the death sentence on a had bad person who “one day years.” subsequent in his 25 In his jury discussion of the factors the was to consider he argue did not that this aggravating any evidence was under of the factors. One juvenile reference to defendant’s record prosecutor’s was in the discussion of section 190.3, (i)—“The age factor of the at argued defendant the time of the crime”—and there he only age that defendant’s help “doesn’t him a bit. He’s 26. He’s been an adult. He’s actually been juvenile convicted of both prison adult offenses. He’s been sent to state an adult age before. His help doesn’t him here.” reference, 190.3, (k) In another discussing expanded while section factor instruction permitted the jury including evidence any by pity consider offered defendant or defendant, sympathy prosecutor jury person asked the to “remember what kind of a Jury Response Inquiries. C. deliberation, to the judge sent
During day jury questions second asking: definition of the legal phrase Can us a you give explicit
“1. more ‘extreme duress’?” ‘moral Can definition you phrase
“2. us a more give explicit legal justification’?” counsel, court both writing, signed with “O.K.” responded
stating:
“The definition of which are self evident. inquire terms you [sic] are These technical the law and are to you terms under especially words, these In mean construe their common other phrases meaning. they they what say.”
Notwithstanding his attorney’s response, approval claims that it further inadequate since the did not define response and did terms not correct a which he claims was misunderstanding implicit in the inquiry as to factor for a power any calling to consider *65 sentence in less than death even if not the enumerated statute. specifically now, however, Even does more suggest defendant not what appropriate “clarification” (See (1990) have been 51 might given. People v. Gonzalez 1179, Cal.3d 1159].) [275 instruction, The jury related the inquiry to the court’s in of language 190.3, section advising the jury and factors aggravating mitigating the which in jury should consider the determining appropriate penalty. 190.3, (f) Section factor permits of or the consideration not “[w]hether offense was committed under reasonably circumstances which defendant believed to be a justification moral or extenuation for his conduct.” Section 190.3, factor (g) consideration permits or acted “[w]hether under extreme duress or under the another substantial domination of person.”
Assuming
issue was preserved for
there was no error. “Claims
appeal,
of vagueness directed at
in
aggravating circumstances defined
capital pun-
ishment statutes are analyzed under the
and
Eighth Amendment
characteris-
assert
tically
that the challenged
provision fails
inform
adequately
juries
life,
during
has shown himself to be
his
both
years
juvenile
in his
as a
and as
late
an adult.
your pity
Don’t waste
on someone
doesn’t
who
deserve it.”
At
time
no
did the prosecutor argue that
juvenile
defendant’s
record should be considered
aggravating
an
argument
factor. The
was
tailored to
as
carefully
discount
evidence
mitigating.
what
find
they must
as a result
impose
death
and
leaves them
penalty
courts with the kind of
which
held
appellate
discretion
was
open-ended
(1972).”
invalid
Furman v. Georgia,
(Maynard Cartwright
Factors
(g)
section
are not
by
“aggravating
circumstances”
under
comparable
Maynard
those
consideration
v.
Cartwright, supra, 486 U.S.
or Lewis v.
Nonetheless, the
must
jury
“be
instructed
all
properly
regarding
facets of
the sentencing process. It is not
in
enough to instruct the
the bare terms
jury
of an aggravating circumstance that is
on its face.”
unconstitutionally vague
_
(Walton
511, 528,
(1990)
v.
497 U.S.
L.Ed.2d
110 S.Ct.
Arizona
[111
3047, 3057].) This obligation
extends to
undoubtedly
aggravating factors
however,
identified in section
(f)
190.3. Factors
and
are
(g),
mitigating
factors which call to the attention of the
an unlimited
jury only two of
number of matters which the
consider as
jury may
against
weighing
impo-
Moreover,
sition of the death penalty.
these factors
do not describe
relevant consideration
in
solely
terms of
and
vague
pejorative adjectives as
190.2,
does
(a)(14)
subdivision
section
California
equivalent
“heinous, atrocious, and cruel”
factor considered
the Su
aggravating
by
in Maynard
Court
preme
Cartwright, supra,
v.
Section factor asks the jury consider whether defendant believed his act was morally justified, while factor is (g) predi duress, cated on a noun whose meaning is generally understood as force or “extreme,” compulsion. “Duress” is modified word which has a that meaning is generally understood as end describing farthest or degree of a range of There possibilities. is no and the comparable vagueness, defendant is further protected against possible that arbitrary sentencing any mitigating evidence he offers must be considered by jury.
We do join defendant’s that the assumption jury inquiry reflected confusion as to whether it could consider the evidence defend that ant fired the gun response Hefner’s command. It is highly improbable that a jury sort, would consider that to be evidence of duress of and the any jury had been expressly instructed that factor any offered could mitigation be considered. duress,
Inasmuch as otherwise, no substantial evidence of extreme or no evidence suggesting that defendant believed he was morally justified offered, defendant suffered no prejudice from the failure of the court to respond differently.
D. Double Counting Aggravating Factors. instructions,
Defendant that the complains court’s the stat tracking utory language of (a), (b), 190.3,39 factors (c) of section without further clarification, permitted the jury to consider some evidence under more than factors, one of the thus artificially inflating evidence. part 39The of the instruction of which complains advised the *67 determining the penalty it should consider: “(a) the circumstances of the crime of which the defendant was convicted in the present
proceeding and the any special existence of circumstance found to be true. “(b) presence the or absence of activity criminal by the defendant which involved the use attempted violence, or use of force or or the expressed implied or threat to use force or violence. “(c) the presence or absence of any prior felony conviction.” 76 in include the (c)
The factor do not “prior convictions” encompassed offenses of which the defendant had been convicted the current proceed- Balderas, 144, 201), 41 (People supra, v. Cal.3d and the circumstances ing are to the current offenses which reflect violence and/or threats of violence (a). (b) unadjudicated be considered under factor Factor relates to other only 57, (1987) criminal 105-106 (People conduct. v. Miranda Cal.3d [241 594, 1127].) 744 P.2d Cal.Rptr. or “triple was not told that it should or could “double count” jury factors, however, under a
count” evidence under these and the court is not improper. to instruct sua that such consideration would be duty sponte 467, (1988) 755 P.2d (People v. 45 Cal.3d Cal.Rptr. [248 Guzman 917].) the Since the did not mislead the or that prosecutor jury, suggest evidence it related to more than one damning be considered more because factor,40 we its agree do not that it is likely jury overemphasized importance. Age
E. Factor. in People
Defendant the court to reconsider our conclusion v. urges 259, 302, Lucky, supra, 45 age-related suggested by Cal.3d that matters evidence and relevant to the decision are not limited to consideration penalty that, (i) as evidence under factor of section He as mitigating argues 190.3. defined in Lucky, the court factor fails to offer to the age guidance This, and invites and he jury arbitrary sentencing. suggests, capricious (i) renders factor and: its use a violation of the unconstitutionally vague, and Fourteenth Eighth Amendments.
Lucky, supra, supra, 45 Cal.3d Cal.3d People Rodriguez, v. 730, 789, clear, however, make it that alone not be chronological age may deemed aggravating. As as neither the nor the long prosecutor argument, instructions, court its is to be considered suggests age aggravating, relevance, the jurors determine the if to the may age of the defendant’s any, appropriate (People penalty. Hernandez decision, 1289].) to make this Permitting jury penalty 40In his phase argument prosecutor carefully segregated properly evidence. He told jury that the first factor specifically you’ve “deals with the crime of, heard about and convicted this man special and the circumstance involved.” He then jury
reminded the concerning Dykstra of the evidence shooting of and Wolbert robbery. course of a violence, (b), Addressing factor prior told the that the factor involved and reminded the jury (c), it had heard evidence about the attack on Cusack. He then turned to factor recalling that pled discussing defendant had admitted that he had guilty felony, to a evidence relevant to the 1978 attack on Scofield.
77 v. (People of what we have as the normative task” part described “essentially 1222, 849, (1986) 115]) P.2d of Allen Cal.3d Cal.Rptr. [232 the evidence and determining after appropriate penalty weighing apply- standard, its own contravenes no ing moral constitutional principle. F. Proportionality.
Defendant and asks the court to undertake intracase intercase both review, on him is proportionality that the death sentence arguing imposed arbitrary, and the due discriminatory, process, equal under disproportionate cruel and and unusual of the United States protection, clauses punishment and California his Constitutions. He bases his claim on the evidence of chemical fact that Hefner did receive the death dependency, penalty not events, even in though was a full and conviction participant his one murder with only no for murder. prior arrests None of these considerations under warrants reversal of the penalty any the theories proposed by defendant. “Unless the state’s capital punishment is shown system defendant to operate an arbitrary capricious manner, the fact that such defendant has been sentenced to death others may who be similarly situated have does not establish disproportionality violative of constitutional v. principles. (McCleskey Kemp (1987) 481 U.S. 262, 287-291, 306-312 1774-1777]).” L.Ed.2d [95 107 S.Ct.
(People McLain
569].)
The conclusion of the jury that the intentional killing of Dykstra during $70 robbery which an made kill attempt was a second victim order identification, to prevent aby person who had in the past committed other assaults, drug-related violent warranted of the death is imposition penalty not aberrant and does not demonstrate or sentencing. arbitrary capricious The penalty cannot be deemed disproportionate to offense. 190.4).
G. (§ Motion for Modification Defendant argues the trial court did not rule on his properly motion for modification verdict of He death. claims that court’s denial erroneous, of the motion was arbitrary took into account improper considerations, inferences, and failed to recognize all violation mitigating his under rights the Sixth and Amendments. Eighth
The basis these claims is an assertion court considered and referred to information contained in the probation report prior ruling
78 motion, been considered evidence that have might the and failed to refer to mitigating. to report prior
A the officer’s probation should not consider judge limited to judge In the is making ruling motion. that ruling on a modification (People v. the jury. before penalty consideration of the evidence that was Gonzalez, of the 1238.) While the recitals supra, 51 Cal.3d that “sentencing,” the had been reviewed judge only report prior state that modification was in which the motion for statement was made at the hearing had the judge that assumption denied. The record defendant’s supports he denied the motion therefor. reviewed the when probation report already evidence on which in detail the great Nonetheless set out judge “overwhelmingly” factors aggravating relied for his conclusion that than that before evidence other No mention of outweighed mitigating. court, in the court’s statement. is made and thus before jury, properly that all the evidence that he had considered of stated judge expressly in of the proper his determination jury making had been presented evidence.” phase “totality penalty and that this included penalty, assume, therefore, had evidence that that the considered judge only We must supra, 53 Cal.3d (People Sully, in v. making ruling. been before the his jury 1195, 1250; 539-540.) It is also People Douglas, supra, discounted, of, have might why clear that he was aware understood evidence. mitigating did all the potentially himself consider Validity Penalty Death Law. H. the 1978 reevaluate the validity
Defendant asks the court law, a law requirements death the constitutional penalty arguing while for the death eligible penalty which narrows the class of murderers He are not satisfied. concedes avoiding arbitrary capricious imposition notwithstand that the has held that the function is satisfied narrowing court review, that the argues but of intercase ing unavailability proportionality function itself in exercising charging breadth of discretion prosecutorial of the law. arbitrary capricious implementation leads authority This either evidence or argument supported by empirical is not their discre- which that the manner which exercise suggests prosecutors in which special tion the death murder seeking penalty prosecutions v. Keenan (People circumstances to be is appear present arbitrary. 1081].) nothing Cal.3d P.2d It requires this court to more than a review of the facts cases before recently of other heavily defendant’s other populated refute speculation prosecutors such the death penalty counties would not seek Angeles County Los *70 Fu- (See, People v. e.g., murder committed circumstances. comparable 792, 75]; 54 v. (1991) People entes 707 Cal.3d Cal.Rptr. [286 131]; 273, v. (1991) People 53 P.2d Duncan Lewis, Cal.3d 955 810 Cal.Rptr. [281 262.) supra, 50 Cal.3d v. (see People
Defendant also that decisions prior asks we reconsider 1195, 1250-1251, Sully, supra, cited) 53 the Cal.3d and cases upholding 1978 death the of penalty against challenges attacking require- law omission factors; ments for written findings on the of presence aggravating proof factors; a aggravating reasonable of on beyond jury unanimity doubt those factors; outweigh agreement aggravating a reasonable doubt that beyond factors, and that mitigating death is the additional appropriate penalty; decision; review the or a procedures appellate sentencing presumption life favor of We parole.41 without decline invitation. VII
Prosecutorial Misconduct Acknowledging that no were objections or for admonition made requests basis, that defendant claims that instances of misconduct prosecutorial occurring throughout the trial were so serious and that the trial pervasive court had a sponte sua duty which failed to assume to correct the judge abuse. He claims that the misconduct that a was so he was denied pervasive fair trial and that reversal is therefore the failure to required notwithstanding properly preserve issue for appeal.
A defendant who does not object and seek an admonition to disre gard improper statements or argument is deemed to by prosecutor have waived error any unless harm caused have could not been corrected by Bell, appropriate 502, 547; (People supra, instructions. v. People 49 Cal.3d v. Green, 1, supra, 27 34.) Cal.3d Because we do not the trial expect court recognize and correct all possible or own arguable misconduct on its motion Bell, (People 502, supra, 542; v. People (1988) 49 Cal.3d v. Adcox 47 Cal.3d 906]; Cal.Rptr. People [253 P.2d Poggi 335-336 1082]), [246 P.2d defendant bears the an responsibility seek admonition if he believes has prosecutor comment, overstepped bounds proper argument, or inquiry. Defendant claims the prosecutor acted in improperly variety ways—by comments designed to and appeal to fears prejudices 41Counsel acknowledges rejection our of these prior they claims in cases and explains that are presented part here in in order to preservation ensure review. for federal of perjury with accusations
jurors, on the defense case by casting aspersions deceit, and irrelevant issues facts consideration of by inviting for these the evidence. Much the conduct on which relies supported manner, claims cannot be characterized that however. reasonably attempted Defendant complains particular prosecutor if his changed appearance his defendant had impeach credibility by asking This, he was an suggests, appeal because he was to before the appear jury. 719, 724 People v. Kirkes (1952) 39 Cal.2d but passion prejudice, relies, In Kirkes 1], P.2d on which he hardly supports argument. *71 evidence, in of knowledge facts not had asserted prosecutor, stating personal the have had he not prosecuted defendant’s would not guilt, implied who believed in the the defendant as a guilt, person defendant’s and pictured kill testifying. would to cover his crime and witnesses from again prevent While possibly improved we the relevance of defendant’s may question misconduct, if in line of the the assessing any, to his appearance veracity, had an objection could have been cured an admonition questioning easily by been made.42
Defendant next than the challenging qualifi that rather complains Broussard, the to prosecutor attempted cations of defendant’s Dr. expert, defendant by the value of the results of tests on denigrate performed into defendant’s referring gave insight to some as “little that some squiggles” the expert and with the Rorschach test that personality,43 asking regard to “tell the ink that responses what it was about of those blots and his any cause to back 25 life and he had a with his you go years say problem his mother.” The the that also asserted prosecutor cross-examining expert if can call and asked “anybody right,” themselves a forensic psychologist, “the have with this crime the fact that he was problem you apprehended [is] so easily.”
In further Dr. Brous cross-examination the prosecutor questioned sard “the about Rosenhan” with which the was not study, expert acquainted, “any object relevancy grounds question asking 42Counsel did on to a if defendant had trial, particular when defendant having reason” cut his hair 10 months before and question asking appear jury, answered “no” to the cut he was to before a if he his hair because objected counsel a follow-up inquiry: totally to “It is coincidental?” “squiggles” markings subject 43The reference was a Bender Visual Motor by to made Gestalt test. Dr. Broussard his opinion part had testified on direct that his was based in on being administration of that test to used on copy report defendant A of his was cross- explained drawings designs examination. He had that the or showing subject test involved on paper, asking subject copy paper. what he had been shown on sheet of The prosecutor then squiggles paper.” characterized what was written as “those little on that Defendant offers no anything basis on which to conclude that this term was other than descriptive of the marks question. Asked later on redirect examination whether the marks would squiggles persons psychology, agreed look like they versed in Dr. Broussard that would you’re interpreting.” “unless trained in trial, prosecutor Ms at extrajudicial testimony defendant’s statements and reached in that that were assertions of fact or conclusions asking questions unable to accurately was are study, import of wMch that psycMatrists was not introduced. itself diagnose scMzopMenia paranoia. study to a similar an basis Referring impeach attempt expert to the same that an study, overruling objection Court held Appeal having questioning prosecutor’s error. “It consists patent mainly feigned, insinuated Ms that half all mental illness is by questions prosecutor’s is or in the opin- ‘test’—whatever it may be—was—again fact, are ion—settled and In were and assumptions irrefutable. all these Further, extremely dubious. it is the use of permit professional error (Evid. not relied an in the of Ms studies formulation upon expert opinion. Code, (b).) subd. To be to circumvent the allow their use would § (People rule.” v. Criscione hearsay Cal.App.3d 899], omitted.) fn. agree We manner in wMch the cross-examined Dr. prosecutor Broussard was in these instances. The here was more improper misconduct *72 Criscione, than egregious supra, that considered in the Court of by Appeal 125 the in the Cal.App.3d because that case was familiar with expert Rosenhan It is study. to an about matter on proper question expert wMch the Ms or her expert bases and on the reasons for that opinion opinion. A party attacking the the the credibility bring jury’s of expert may attention material is that relevant the issue of wMch expert Bell, unaware (People supra, 532), that not party may but its by questions testify regarding the content of that material.
The questions statements identified defendant miscon by witness, duct make up only a small of the part cross-examination of the one wMch is reflected in more than The pages 100 of reporter’s transcript. complete examination witness 175 pages Proper covered transcript. questions elicited a concession by the that there was a expert very good that if possibility reviewed the psychologists same test results would they not be unammous in their opimons. Clearly, an admonition to the and to prosecutor jury would have cured any prejudice from the improper conduct.44
We see no in misconduct that of the part prosecutor’s wMch, phase in penalty argument de- addressing inconsistencies between 44Defendant also cites as misconduct prosecutor’s to Dr. as a reference Broussard “prostitute” in penalty phase argument. Assuming that this characterization was not mere however, hyperbole exaggeration, or permissible argument, and exceeded the bounds of it was potentially prejudicial so that a prompt objection and could admonition not have averted any prejudice. such object (See The failure to precludes of the consideration claim here. People v. Carrera 121].) Cal.3d trial,
fendant’s extrajudicial testimony statements and his at the prosecutor Comment based on a reasonable inference drawn accused defendant lying. from the evidence is not even when the inference improper is a witness has lied.45 we
Similarly, cannot defendant’s characterization accept prosecutor’s reference to evidence which had admitted as the trial court “misconduct,” an argument based on defendant’s claim that the appellate trial in court erred permitting to consider evidence of his misde meanor, juvenile, nonviolent offenses at the We have penalty phase. rejected defendant’s argument that this evidence was admitted or erroneously considered. suggestion argument based on evidence that has been admitted is
misconduct would fail even were we to conclude that the admission of the evidence was error. Regardless of whether an court later appellate may admitted, conclude that a piece of evidence was erroneously argument directed to the evidence does not become misconduct Such by hindsight. references may be considered effect determining prejudicial evidence, error admitting but are not misconduct.
Defendant also cites as misconduct statement his prosecutor’s penalty that Hefner phase argument had never been arrested or convicted. The statement was made the context of whether assessing mitigation 190.3, should be found under section factor on the duress (g) basis of Hefner. The prosecutor was responding defendant’s to shift attempt In principal responsibility for robbery-murder argument Hefner. *73 prosecutor [Hefner], stated to the that jury have a of No “you picture prior record; arrested; convicted; never been never been old.” years not,
This was as defendant an means argues, improper before putting the jury damaging facts that were not in evidence. Defendant himself had testified that as far as he knew Hefner had not been to arrested prison or any crimes of violence. The Hefner prosecutor when said that misspoke had never been arrested. Defendant had him testified that Hefner told he had 45One such comment related to defendant’s attempt to characterize his conduct in the Scofield incident as self-defense. Another was directed to defendant’s denial that Cusack had present been or had been attacked. anticipated Both prosecutor’s the jury disregard anything exhortation to the defendant said because his testimony unworthy any was credibility. argument was founded on the evidence and inferences reasonably drawn improper. therefrom. It was not This is true also of the comments made prosecutor’s argument suggesting in the rebuttal that because the defense penalty lacked substance the phase argument technique followed the distract, of attempting to pounding the table and making penalty phase argument smoke. The discourse, by defendant’s counsel a rambling was particular tied to evidence. The prosecutor’s description was not inaccurate. however, arrested. this objected discrepancy been had defendant Again, easily by could have clarified been court. anticipate
Nor it misconduct for the instruc prosecutor that give by arguing tions on lesser included offenses which the would court did that the court by those instructions were law and not indicate required A is entitled to necessarily believed that the instructions applied. prosecutor that the evidence a doubt commission of argue beyond shows reasonable offenses, included charged only and that it does not a lesser offense. support We no a that the fact that see this context to statement impropriety instructions are given jury on lesser offenses should not be understood as the view of the as the evidence to reflecting court to the sufficiency conviction of the That is consistent support charged argument fully offense. with the standard judge gave jury, instructions which advising he did not jury that intend he said to how the jury by anything suggest find should on any question; and that the was to determine whether some instructions were and that must not conclude applicable; “you from fact that an has been that the is instruction court given expressing any opinion facts.”
The remaining citations misconduct fall into similar categories— attacking hyperbole or argument, comments possibly questionable were sufficiently an easily any innocuous that could have cured admonition comments, harm.46 Neither these nor of those discussed above any misconduct, might have been arguably were as to deny such trial, role, irrational, fair divert the jury from its or invite proper an purely Lewis, subjective (See response. People 284.) supra,
VIII
Judgment
The judgment affirmed in is its entirety. Lucas, J., Panelli, J., Kennard, J., Arabian, J., J., C. and George, concurred. *74 46The claimed misconduct was: prosecutor Wolbert, 1. The “vouched” for testimony saying the of Michael told he had best, to Wolbert tell the truth do his and “that’s what he did.” prosecutor urged 2. The jury the might to consider that defendant capture, have avoided jury reminded the that the victims’ present, families were and stated if that defendant were counts, convicted on all it would be insult struggle an to Wolbert’s to live. prosecutor 3. asked girlfriend The “gonna defendant’s if she was wait for him.” prosecutor suggested 4. The may escaped defendant custody have from more than the witness, father, of three times which a defendant’s was aware. stated, prosecutor 5. regard The with testimony, Scofield’s prosecutor’s based on the “you experience, expect
own can’t angels to have for witnesses.”
MOSK, J. dissent. I motu, in I the proprio
Ex would raise—and resolve affirmative—the as in the trial whether James who served counsel question Roger Agajanian, court, his with assistance in violation of ineffective provided under the Amendment the United States Constitution rights Sixth I, 15, article section of the California Constitution.1 The deficiencies as trial were and serious. Agajanian’s pervasive counsel It by majority opinion’s is established the record. is confirmed point failings of Examples Agajanian’s countless references to waiver. practically select, way of egregiousness. By are hard to each with the rest for competing I relied on following. illustration note the At the only, guilt phase, Agajanian at surprise the defense of diminished Much to capacity. expressed trial, nullity this defense had been abolished and rendered a previously a summa- Agajanian presented all relevant At the purposes. penalty phase, in The he made asking argument tion defendant’s life. spare remarks as was support majority generous describing worthless. is ante, discourse, at rambling (Maj. “a not tied to evidence.” particular opn„ 82, 45.)2 fn. p. re at trial his
Agajanian’s failings deficiencies this conclusion: compel trial; in a at sulted breakdown of the adversarial that breakdown process right establishes a of defendant’s federal and state constitutional violation counsel; effective reversal of assistance of and that violation mandates (See judgment even the absence of a of showing specific prejudice. (1984) v. United States Cronic 466 U.S. 653-662 L.Ed.2d [80 664-670, 104 S.Ct. the federal constitutional [speaking guaranty of 2039] People v. 242-245 only]; Ledesma Cal.3d Grodin, (conc. J.) P.2d of federal and both the opn. [speaking 839] state constitutional guaranties].)3
“The our of criminal is very premise system justice adversary ultimate both sides of a will best partisan advocacy promote on case (Herring that the free.” objective go be convicted and the innocent guilty 1Agajanian appeal also this served as counsel in court from the commencement of thereafter, until his counsel suspension practice Shortly present from the of law in 1990. appointed place. his 2Agajanian’s pervasive Witness appellate deficiencies counsel were also and serious. any significance fact that the sole act defendant over performed that he behalf of single filing course of almost court of a years representation seven before this was the brief thirty-page raising only penalty two insubstantial claims. *75 he not 3Agajanian’s appeal compelled deficiencies on would have the same conclusion had suspended practice by present been of law replaced from the and been counsel.
85
593,
853,
600,
2550];
422
(1975)
New York
95
U.S.
862
L.Ed.2d
S.Ct.
[45
accord,
Cronic,
United States v.