People v. Wash

Crim. S004780. No. 26414. Nov. [No. 1993.] PEOPLE, THE Plaintiff Respondent, WASH,

JEFFREY DEAN Defendant and Appellant.

Counsel Court, John Patrick under for Dwyer, Defend- appointment by Supreme ant and Appellant. General, Williamson,

Daniel Lungren, E. Chief Assistant Attorney George General, Bass, General, Ronald A. Attorney Assistant Mark S. Attorney Howell, Wei, General, Aileen and J. Bunney Christopher Deputy Attorneys for Plaintiff and Respondent.

Opinion ARABIAN, J. Dean Jeffrey Wash convicted a Defendant jury Code, (Pen. the first 189),1 murder degree (§ rape former subd. §§ (2)) (§211) and robbery of Erin as King, well as first murder degree and two robbery Shelly Siegel, (§ 459). counts of burglary The also jury found true the special circumstance allegations defendant committed the (§ 190.2, murder of Erin the course King during (a)(17)(iii)), of rape subd. 190.2, (§ 190.2, (a)(17)(i)), (§ subd. robbery (a)(17)(vii)), subd. burglary and committed the murder of Shelly Siegel during course of robbery With crimes Erin burglary. found respect against King, jury true (§ allegations used personally deadly weapon (b)), (§ 12022.5), subd. used a firearm personally and inflicted great bodily 1203.075). (§ injury With to the crimes respect against Siegel, Shelly found jury true that defendant allegations used a firearm and personally inflicted great bodily jury also found that defendant injury. personally used a the commission of the deadly weapon during burglaries. verdict,

When the was to reach jury unable a a mistrial was penalty declared, a new was issue jury was empanelled, retried. penalty The second returned a verdict After jury of death. defendant’s denying verdict, motion for modification of the the court a sentence imposed Const., VI, (Cal. 11; of death. This is automatic. appeal art. subd. § § (b).) statutory

1 Allfurther to the references are Penal Code unless indicated. otherwise

I. Facts

A. Guilt Phase Evidence

1. The Prosecution’s Case On the afternoon of March Durbin returned home from a Philip wife, business in Las lived with his trip Vegas. Philip Shelly Siegel, two-day Ranch, located in the arid hill sprawling, country on the Sundial on assistant, Erin a outskirts of Livermore. ranch lived a small King, young on the of the ranch. trailer grounds

As he drove into the ranch noticed that the mailbox was Philip unusually full and his brown Buick station was the kitchen he wagon missing. Entering found the billfold on the table and noticed the belonging Shelly lying open cabinet, which he broken handle of a posthole digger, normally kept He also saw a cord on a chair. countertop. length parachute bedroom, noticed what to be the other end of Entering Philip appeared moments, the broken After a few he saw face digger. Shelly lying posthole were at the foot of the bed. There holes her shirt and bloodstains. up his wife was not realized alive. Philip right away nine-shot checked the closet discovered that .22-caliber Philip revolver, kitchen, and ammunition were He returned to the holster missing. to arrive. Two dialed and was told to wait outside for police to the scene. One of the Alameda sheriffs County deputy responded deputies and entered the trailer where he found the lifeless Philip obtained a from key her, her head of Erin on the bed. Her wrists were bound behind King body towel, The towel had a was in a bound and her mouth was gagged. wrapped bullet hole in it surrounded of black by ring powder. blow to the

An revealed that had suffered a severe Shelly very autopsy at the consistent with the handle found head from a blunt object, posthole side; A were found in chest Shelly’s scene. total of six bullet wounds indicated that several shots had residue the wounds gunsmoke surrounding one of four of the bullet wounds been fired from close very range. Any to end her life. would have been sufficient a bullet wound in the back of Erin revealed King’s body autopsy head; shot, lobe the towel and entered the frontal

her which went through brain, wounds on Erin’s fatal. There were also stab probably entered the neck and one wound through penetrated body; particularly deep her clustered about The remainder were cavity. and chest esophagus into the Oral, anal and to cause death. back. Several were alone sufficient chest and semen on revealed the Tests presence swabs were also prepared. vaginal wore, swab, and articles of the victim two vaginal sweatpants the victim’s anus was consistent found on the bed. The condition of clothing been with sodomized. having on defendant. Orig- focused almost immediately

The investigation police Indiana, with his had driven to Modesto from defendant inally Indianapolis, friend, Settles, In Novem- in the autumn of Harold and Jim 1983. Brunning ber, for a calling an advertisement a Modesto newspaper answered find had the ad to ranch hand. Durbin and Shelly Siegel placed Philip with the care of the horses and perform general someone to assist Shelly $100 room hired defendant for week They per plus and maintenance. repair Defendant in the small trailer on ranch. and board. stayed work and occasionally was satisfied with defendant’s Philip generally told his Buick Defendant wagon. allowed defendant the use of his station friend, Ritesman, with and Shelly. John that he along Philip generally got Nevertheless, with Ritesman the occasions defendant discussed several from the ranch. tools and possibility stealing money, guns Philip’s power Later, angry and isolated and was he told Ritesman that he felt bored Defendant were deducted from his paycheck. because his calls telephone like “to Ritesman that he would also an interest in expressed Shelly, telling slam her once.” He called left his at the ranch. job

In late defendant February an interest to tell him that he had and quit again expressed Ritesman with Ritesman Defendant stayed tools stealing Philip’s guns. power time, Martin, this defendant Lauri for about a month. During his girlfriend, available. if his old was still job instructed Ritesman to call the ranch see there already. a had started working Ritesman informed defendant that girl old, from high recently graduated was Erin who had girl King, years finalized. in the was Army and was until her enlistment working school murders, dis- and Ritesman defendant Over the weekend preceding robbing tying up to the ranch and cussed the idea of returning had that if he was not enough, said that them tying up Defendant occupants. 20th, March there The following Tuesday, he would shoot them. gun and shared several drank beer Ritesman’s house. Defendant party with the others of cocaine gram and-a to a half marijuana joints quarter return a desire to again expressed at the attendance. While party, and murder the occupants. to the ranch to rob into the lasted hours of the party early morning following day, a.m., March 21. Around 5 Lauri drove defendant and Ritesman Wednesday, left, knife, to another friend’s house. Before Ritesman defendant a they gave there, for From supposedly defendant and Ritesman obtained protection. ride, another and defendant was off near the intersection of several dropped He had earlier an major highways. interest expressed hitchhiking Long Beach. afternoon,

Later that Merle Wellman and her husband (Philip Shelly’s were down the isolated Tesla Road on a neighbors) driving usually shopping into town when saw someone toward the Sundial Ranch. they trip walking later, returned, He was about six miles from the ranch. Two hours when they saw the same about a mile from the ranch. they person quarter Timothy Gonser, Wellmans, an of the ranch as the employee leaving just Wellmans returned. He also recalled a man seeing walking normally deserted Tesla Road. Both Mrs. Wellman and Gonser later identi- Timothy fied defendant’s from a as the man had photograph photographic lineup they seen on the road.

That Ruth received a call from her evening, King telephone daughter, discussed As she was about to concerning Erin. Erin’s They plans Army. Mrs. heard Erin call out and what sounded like a hang King up, perceived conversation, distant but she could not the words. It was the last distinguish conversation Mrs. ever had with her King daughter.2 Durbin’s station defendant drove

Following killings, Philip wagon Modesto, name, returned to checked into a motel under an assumed and then friend, bus, where he several a motel with days Indianapolis by stayed friend, Harold Settles. this defendant told another Joey During period, that he had killed the sale of arrange two women. Payne, Payne helped Defendant also told Settles gun, pistol. defendant’s a nine-shot .22-caliber of them. The police that he had murdered two women and had one raped defendant’s them in recovering gun. later contacted who assisted Payne, determined from Siegel’s body of the bullets removed analysis Shelly Expert had been fired from this they weapon. trailer matched the A found on the door to Erin King’s fingerprint A found' on one defendant’s left middle finger. palm print fingerprint Electrophoretic Erin’s matched defendant’s envelopes palm print. empty pay clothes showed from Erin’s of the semen taken vagina analysis samples status, and secretor with defendant’s blood type them to be consistent characteristics shared 8by percent population. discussed, inconsistently at the post, King testified somewhat pages Mrs. 2As phrases. distinct a male voice and several

second trial that she heard Ranch, weeks after the at the Sundial California authorities killings Two station. He made Indianapolis police eventually interviewed defendant at an crimes, a full confession to the that he had returned to the ranch admitting the with the intent to rob and kill the there. course During people defendant consented to a search of his duffel bag. Among interrogation, items, a knife other the seized which forensic determined police analysis be consistent with the stab wounds inflicted on Erin King.

2. The Case Defense Defendant called no witnesses at the cross-examina- guilt phase. Through (Ritesman’s tion of John Ritesman and Lauri Martin defense girlfriend) counsel to show that defendant his was about attempted depressed leaving the ranch and was of job alcohol at impaired by ingestion drugs Ritesman’s which lasted into the hours of party, early morning day murders. testified that he Joey Payne defendant’s looked like eyes glassy, when he told going cry, Payne killings. about

B. Penalty Phase Evidence

1. The Prosecution Case result, The first trial resulted in a As a penalty hung jury. prosecution trial, retried the essentially at the second guilt phase calling many the same witnesses to establish the facts and circumstances of the crimes. addition,

In introduced as evidence in prosecutor certified aggravation of defendant’s two convictions in Indiana. copies prior burglary 2. The Case Defense

Defendant testified in his own behalf. He admitted the burglaries Indiana and claimed that he was trouble with at the having drugs alc.ohol time. He described the amount of beer and he had consumeil the drugs night murders, before the he conceded that had worn off’ although they “mostly the next he Sundial Ranch by day. Although acknowledged returning to the could,” claimed, to steal “what I to the he statements contrary made to the he kill he had not intended to When arrived police, anyone. ranch, inside, at the he saw outside the horses. He Shelly feeding slipped removed the from wallet and took from the money Shelly’s Philip’s gun closet, bedroom which he loaded and stuck He slipped pair pants. armed wooden handle of a over his face and himself with the pantyhose entered, him, When defendant struck her posthole digger. Shelly surprising with the wooden handle and shoved her on the bed. When she struggled, twice, removed and shot her then three gun more times succes- rapid sion. Afterwards he became sick and vomited. thereafter,

Sometime defendant noticed Erin the window King through and realized it was the who had him ranch as assistant. Afraid girl replaced that she have heard he entered her trailer to tie He her might something, up. found Erin on the her the neck and tied her hands behind phone, grabbed $200 her Defendant Erin back. then threatened with a knife and took about from her She him to leave her send pay envelope. begged enough money her clothes home because she was about to enter the After Army. talking while, mask, with Erin for a short defendant removed Erin his laid on the bed, denied, removed her and and He her. tampon orally copulated raped however, Afterwards, he that or that he sodomized her.3 defendant ejaculated victim, bound and and her head in a towel. Defendant gagged wrapped once, then recalled her in the neck but could not remember stabbing making knife, of the other stab wounds. When he finished with the he any pointed head, towel, at her it close to the and shot her once. gun putting Joey Defendant that after he told acknowledged returning Indianapolis denied, however, Paine about He he John Ritesman he the murders. told He that he lied to the wanted to “slam” also stated Shelly Siegel. police victims, he about and murder the that at time intending rape explaining wanted to look as as that he “wanted to die.” Defendant “guilty possible,” trial, his claimed to have suicide while and concluded awaiting attempted and that he was he committed the crimes “sorry” testimony by indicating could not understand his actions. for the defense. Tom

Several friends and members also testified family friend, and “sensitive.” a childhood described defendant as “shy” Brunning, mother, Wash, had nine brothers Doris testified that defendant Defendant’s father, Wash, sisters, noted Lloyd and was around the house. His helpful with no indoor garage the entire was raised a converted family sister, his Defendant’s Defendant shared one room with brothers. plumbing. Burdine, children had into gotten noted that all of the Wash Debra nearly alcohol, one of his Like all but with drugs, truancy, prostitution. trouble Debra, According did not from school. high siblings, graduate defendant little attention. affection and gave her little displayed very parents aunt, about defend- testified in more detail Defendant’s Martha Overbey, mother was verbally physi- that his stating ant’s troubled upbringing, remained aloof except and that his father abusive toward the children cally fact, had suggested that assailant large semen found on the bed 3In amount of than ejaculated more once. sister-in-law, Wash, when Defendant’s Patricia also testi- them. whipped no fied that defendant’s almost affection toward parents displayed children, and recounted several instances of defendant’s kindness to others. Indiana, Schaefer was the final defense witness. A friend from Ms.

Shelby Schaefer man from an testified that defendant was “sensitive” unhappy She recounted several of defendant’s kindness. She de- family. examples scribed him as said that he had remorse and sorrow lonely, expressed deep crimes, for and noted that he had written several poems prison.

II. Discussion4 A. Guilt Phase Issues

1. Miranda Violations Alleged Defendant contends that his confession was the taped product multiple (Miranda Miranda violations Arizona 384 U.S. 436 L.Ed.2d 694, 1602, 974], 86 S.Ct. 10 A.L.R.3d and that its introduction at trial reversal. compels Indiana, after defendant was arrested in two from the

Shortly officers Alameda Sheriff’s Little and County Department (Detective-Sergeants McGrail) and an (Martin Brown) Alameda district County deputy attorney flew to defendant about the murders at the Indianapolis interrogate Sundial Ranch. met defendant at the station where he was They police being held in Mr. Brown advised defendant of his and defendant custody. rights to make a statement. two-and-a-half-hour inter- agreed During following rogation, gave detailed confession to the crimes.

Defendant moved to the confession at a section 995 subsequently suppress and at both the and second The motions hearing guilt trials. penalty phase here, were denied. Defendant renews the substance of his claim arguing authorities violated his Miranda in four police rights separate respects. We assess each contention in light following principles.

In a claim that a statement or confession is inadmissible considering because it was obtained in violation of a defendant’s under Miranda v. rights Arizona, 436, 384 U.S. we the trial court’s resolution supra, accept inferences, if facts and and its evaluation of disputed credibility, supported 931, (1990) 51 substantial evidence. v. Cal.3d 947 by (People Kelly [275 opening 4We have reordered the contentions set forth in brief to conform more defendant’s closely chronology to the of events at trial. 236 160, determine 516].) we Although independently 800 P.2d

Cal.Rptr. whether, those found the trial facts and properly from undisputed “ court, {ibid..),we were obtained illegally ‘give statements challenged that has of a lower court to the considered conclusions’ great weight (1988) 46 the same evidence.” v. (People Jennings reviewed previously 278, 475], 963, Miller v. Fenton 760 P.2d quoting Cal.Rptr. Cal.3d 979 [251 412, accord, 405, 445]; 106 S.Ct. (1985) U.S. 112 L.Ed.2d 474 [88 947.) Because the crimes this case Cal.3d at Kelly, supra, p. v. People (d) article I of the subdivision after the addition of section occurred Constitution, waiver and confes voluntariness of defendant’s California of the evidence. sion must be established by preponderance 1042].) 775 P.2d (1989) Markham 49 Cal.3d 63 [260 inadequate were warnings contends that his Miranda Defendant first to counsel during him that he was entitled failed to inform because they L.Ed.2d (See 442 U.S. Fare v. Michael C. [61 questioning. Arizona, 197, 207, 2560]; 384 U.S. S.Ct. Miranda interview, the 772-773].) deputy of the taped At the beginning at pp. L.Ed.2d have the as follows: defendant of rights “[Y]ou district advised attorney silent, and will be used against you can say to remain anything you right before law, any attorney present to have an right have you a court one, an cannot afford ... if cannot—if you if wish you questioning you any at no cost before questioning will be to you one attorney provided those rights?” Now do understand you begins. alia, he has the inter must be apprised, holds that a suspect

Miranda if he cannot and that during of an attorney questioning, to the presence right if him to any questioning will be for prior one appointed afford an attorney 725-727].) at L.Ed.2d (384 pp. 478-479 pp. desires. U.S. [16 he so standard from the here deviated to defendant the warning given Although both to counsel had the right that defendant state form in failing expressly defendant’s argu are not we persuaded—as and during questioning, before lead as to or confusing so ambiguous the language ment implies—that before questioning, would be that counsel provided to believe defendant (See v. Valdivia People began. removed once questioning summarily then 657, [admonition 662-664 144] (1986) [226 180 Cal.App.3d apprised adequately before questioning to counsel had right defendant observed, the court has As the high rights].) his Miranda defendant of (1974) 417 U.S. v. Tucker (Michigan are warnings “prophylactic” Miranda 194, 2357]) not be 182, presented and need 433, S.Ct. 94 446 L.Ed.2d [41 Prysock (California incantation.” or “talismanic formulation any particular 701, 2806].) The 696, 101 S.Ct. L.Ed.2d (1981) U.S. 359 [69 “ ‘[c]onvey reasonably [a warnings whether the is simply inquiry essential ” (Duckworth his as Miranda.’ Eagan rights required by suspect] 2875].) We are satisfied L.Ed.2d S.Ct. 492 U.S. here his conveyed” right that the defendant warnings given “reasonably an during questioning. have attorney present his to silence right during

Defendant next contends that invoked that, result, interview, the bulk of the confession the course of the as a and its The which followed was inadmissible under Miranda progeny. The invocation occurred about one hour into the interrogation. asserted defendant about his movements since leaving had been questioning police asked, “Um, this all at the Sundial Ranch when defendant what’s job Brown were investi about?” District Deputy Attorney responded they Ranch and that several the murders of two women at the Sundial gating had the ranch on the morning witnesses seen toward walking had earlier denied to the ranch and Mr. returning the murders. Defendant Brown observed that the “want to resolve this one or another way police were there or whether weren’t there.” Defendant terms whether you you indicated that he understood and stated that the murders “shocked” him. then occurred: following colloquy Uh huh. And I assume that . . . to talk you’re you’re willing “[Brown]:

to us . about it and us the . the details that us. giving . . . . give you’re killed, I don’t know if I wanna talk since it’s someone anymore “[Wash]: know. you do That’s to decide whether or not Okay. totally you you up “[Brown]: Um, information that’s fine.

or not. if wanna talk to us and us this you give If don’t that’s too. you obviously your right, like, uh, I said that you Don’t you thought you Little]:

“[Detective liked Shelley [szc]? Yeah, Is....

“[Wash]: You liked them?

“[Detective Little]: stunned, That’s I’m stunned. why “[Wash]: uh, Well, with that?” don’t wanna you help, “[Detective Little]: door, the interview from a After a brief knock on the interruption continued.

238 event, um, All right, there are ... . any

“[Brown]: (Unintelligible). “[Detective Little]: ask about items that we wanna you ... a number . . .of “[Brown]: And, uh, like I said it’s as up you one or another.

to resolve this way we can check it out us the information so that or not wanna you give whether Um, that’s I wanted to go through your or another or not. why one way could decide if wanted to talk with at the so beginning you you rights you not.” us about this or seconds, “Yeah. Keep of about 15 defendant replied,

After pause talking.” confessed to the continued and defendant eventually

The interrogation confession, claiming At trial defendant moved to suppress crimes. killed, it’s someone if I wanna talk since anymore “I don’t know stating, know,” The trial his to remain silent. he had invoked effectively right you n,ot court, had that defendant actually after to the ruled listening tape, he wished considered whether to remain silent but simply invoked his right considering of the crimes. After of the seriousness to continue light to continue talking. he chose reminded being rights, matter Ashmus v. (People interrogation reviewed taped Having independently 112, 932, 214]), we conclude 820 P.2d (1991) 54 Cal.3d 969 Cal.Rptr.2d [2 have Once warnings The law is clear. was sound. that the trial court’s ruling manner, time at any prior indicates in any the individual been given, “[i]f silent, must to remain the interrogation he wishes or during questioning, Arizona, at L.Ed.2d U.S. at 473-474 (Miranda pp. v. 384 [16 cease.” made, it must be “scrupulously is 722-723].) Once such a request pp. 726-727]); not may the police at (id. L.Ed.2d pp. honored” [16 to discontinue refusing decision “by the suspect’s to circumvent attempt to wear down efforts in repeated or request by persisting interrogation upon (1975) v. Mosley his mind.” (Michigan make him his resistance and change 313, 322-323, 321].) S.Ct. L.Ed.2d 105-106 423 U.S. [46 not need assertion privilege it is true that suspect’s Although 134, 165 (1990) 50 Cal.3d [266 Thompson be “unequivocal” (Peo clarity” 857]) with unmistakable or “invoked P.2d Cal.Rptr. 114]), it 464 P.2d 1 Cal.3d Randall ple not does context, here statement that, defendant’s viewed in is evident Defend silent. to remain of his right assertion an equivocal amount to even don’t continue—“I wished to whether he as to uncertainty ant expressed

239 obtain then officers attempted know if I wanna talk anymore.” intentions, of his defendant reminding right his twice clarification of he stated that wished remain After some thought, plainly silent. v. we People As recently explained with the proceed interrogation. 593, 673], ante, where a P.2d (1993) 1 859 Johnson page Cal.Rptr.2d [23 of an invocation of his remarks short falling ambiguous expresses for the of obtain talking purpose Miranda the officers continue rights, may (Id. 27.) That is what of intentions. at p. precisely clarification his ing violation in this regard. here. we find no Miranda occurred Accordingly, (“I said you brief remarks Detective Little thought you the Similarly, [sic]; .”), ill-ad “Don’t wanna . while you perhaps liked Shelley” help. vised, “to wear down cannot be construed as reasonably repeated attempts 105- resistance” v. 423 U.S. (Michigan Mosley, supra, pp. [defendant’s] “ nor, 322-323]), ‘the of the totality 106 L.Ed.2d at pp. clearly, light [46 ” 412, (Moran (1986) U.S. 421 L.Ed.2d circumstances’ v. Burbine [89 420-421, 410, 1135]), did as such. S.Ct. they operate failure to

Defendant next claims that the district deputy attorney’s to the state’s decision to inform him that his admissions could be relevant the death that defendant knowingly seek penalty precludes finding waived his Miranda We considered rights. recently rejected intelligently (1992) a similar v. Hill 3 Cal.4th 959 argument People Cal.Rptr.2d [13 not 984].) that a waiver of Miranda does P.2d valid Noting rights him that a informed charges against be potential require suspect 851]; (Colorado (1987) 107 S.Ct. v. 479 U.S. 564 L.Ed.2d Spring [93 51 Cal.3d 512-514 People Sanders basis,” reasoned, 561]), P.2d “there no we “for that he must be is concluding advised of the for if those possible punishment charges proven.” Hill, Thus, informed of 3 Cal.4th at defendant was adequately waiving rights. consequences defendant contends the authorities interrogated

Finally, improperly him He claims that his subse him of his Miranda prior advising rights. were of the and must be illegality -Miranda statements quent post product below, As lacks merit. argument suppressed. explained interview, District Brown set Attorney At start taped Deputy scene as follows: Now, we, uh, we came in a while ago All right. Jeffrey, “[Brown]: a few general questions introduced ourselves and asked basically you

just then we set basically up that we wanted to talk to a bit and you and told you recorders ... is that correct? tape Yeah.” “[Wash]: thereafter, of his Miranda indicated rights, defendant was advised

Shortly and Mr. Brown his began he wished to speak, questioning: is, uh, do we’ll start back on you—when I what we’ll guess “[Brown]: . indicated were in were in in November. You . . you you California 1983, is that correct? California in November of Yes. “[Wash]: a ranch? time got job working And at that you

“[Brown]: Yes.” “[Wash]: claimed at trial police questioning

Based on the defendant foregoing, from admission incriminating Miranda elicited the warnings to the prior This on a ranch. that he had been California working recently admission, the basis of all subsequent questioning he formed argued, factual Thus, confessed. in California to which he ultimately the crimes concerning its compelled the confession “tainted” interrogation the non-Mirandized under state and federal law. suppression testified Detective McGrail Brown and Attorney

Both District Deputy recollection of question- Neither had any specific hearings. the suppression California. interview about activities the taped defendant before ing information that volunteered the that defendant had Mr. Brown speculated California, exact not recall the but could on a ranch had been working elicited was not that the statement The trial court ruled circumstances. interrogation. through police statement whether the defendant’s pro-Miranda record is unclear authorities present interrogation; of police

volunteered or product if we Even was obtained. how information recall could not specifically assume, however, through question- was elicited that the statement were to that his subsequent post-Miranda defendant’s claim still we would reject ing, weAs that interrogation. as the product must be confession suppressed L.Ed.2d U.S. (1985) 470 298 [84 v. Elstad “In Oregon have explained: that a the notion rejected Court 1285], States Supreme the United 105 S.Ct. followed an it because be excluded must necessarily confession subsequent ‘It warnings: Miranda without that was given statement otherwise voluntary failure to hold that simple of Miranda extension an unwarranted is or other coercion actual any unaccompanied the warnings, administer to exercise his calculated to undermine the suspect’s ability circumstances will, a and voluntary the that investigatory process subsequent free so taints Though ineffective for some indeterminate period. informed waiver is the unwarned admission must be Miranda that the suppressed, requires circumstances should turn in these statement any subsequent admissibility (470 made.’ U.S. at on whether it is and 309 knowingly voluntarily p. solely 262, 232].)” (1990) 275 L.Ed.2d at v. Lewis 50 Cal.3d (People p. [266 [84 834, 892].) P.2d 786 Cal.Rptr. admitted to the taped

The record here discloses that defendant prior California, interview that he had worked at a ranch in and subsequently gave of, waived, and his a full confession after been advised having having no that statement was Miranda There is evidence rights. pre-Miranda Therefore, under obtained tactics or coercion.5 through improper police 222, 1285], (1985) v. Elstad 470 U.S. L.Ed.2d 105 S.Ct. Oregon 298 [84 Lewis, (see which we have as the standard in California v. People adopted 275-276), 50 Cal.3d at the confession need not be supra, sup pp. coercive or tactics obtain pressed. deliberately improper “[A]bsent statement, the initial the mere fact that a has made an unwarned ing suspect A admission does not warrant presumption compulsion. subsequent administration of Miranda to a who warnings voluntary has suspect given but unwarned statement to remove the conditions should suffice ordinarily Elstad, admission of the earlier statement.” v. precluded (Oregon supra, 23S-236].)6 470 U.S. at 314 at p. L.Ed.2d pp. [84 2. Evidence Electrophoretic admit the

Defendant next the trial court’s decision to challenges from Erin results of an of semen removed electrophoretic analysis samples and showed the semen to be consistent King’s clothing body.7 analysis with and the People’s defendant’s secretor status phosphoglucomutase type; coerced, nothing 5AIthough alleges pre-Miranda he cites that the statement record support this claim. not holding rights violated and his confession was 6Our defendant’s Miranda were not (1) at police belongings search disposes coerced of defendant’s related claims that: station, interrogation, was somehow police during to which he consented the course of violation, (2) allegedly the use of the tainted alleged invalidated Miranda verdict. penalty phase compels confession at the reversal of enzymes by a method that 7Electrophoresis typing proteins allows of individual blood molecules, (People “types.” v. electrically charged yielding particular protein separates 152, 720, 949]; (1991) People v. Brown Cal.Rptr. 206-207 807 P.2d Morris 53 Cal.3d [279 637, (1987) 512, 440]; (1985) People Reilly Cal.Rptr. v. 196 40 Cal.3d P.2d [220 528-529 709 496].) Cal.Rptr. Testing may an individual Cal.App.3d 1127 also determine [242 whether semen, vaginal bodily secretions saliva. “secretes” these substances into fluids such as Brown, (People 40 Cal.3d 242 shared these particular testified that 8 percent population

expert characteristics. trials to to both the and second guilt penalty phase

Defendant moved prior that it failed to meet the test of scientific exclude the evidence on the ground Kelly rule. 17 Cal.3d 30 KellylFrye under the reliability 1240]; (D.C. 1923) Cir. Frye P.2d v. United States [130 145].) A.L.R. The rule Fed. App.D.C. based on the of a new testimony application requires proponent expert (1) three criteria: or method is technique scientific to satisfy technique field; (2) in its established to have gained general acceptance sufficiently is offered aby with to the its technique application testimony respect n (3) have been correct scientific procedures qualified expert; properly 30; People 17 Cal.3d at (People Kelly, supra, p. used in the case. v. particular Morris, 206.) Cal.3d at supra, p. v. 53 the evi challenged defendant hearing,

At the pretrial admissibility criterion, the first satisfy general dence on the that it failed ground solely The in community. method’s the scientific reliability acceptance v. People could on the trial record that the court rely parties stipulated 1127, of electro determining reliability Reilly, supra, Cal.App.3d 196 witness, addition, Dr. Tho called one expert In phoretic testing. court found that the the trial Blake. At the conclusion of hearing, mas to be admissible. ruled the evidence had met their burden and People of elec here to the general admissibility renews his challenge Defendant this contention rejected considered and We have testing. trophoretic 173, (1991) 1 214-215 Fierro Cal.4th [3 occasions. v. (People several Morris, 426, at 1302]; 53 Cal.3d supra, pp. P.2d v. People 821 Cal.Rptr.2d 90, 809 206-207; 812 53 Cal.3d Cooper v. People the matter. us to reconsider record causes 865].)8 in the instant Nothing P.2d of electrophoretic the reliability challenges Defendant also specifically the admissibility confined to that was Reilly He notes of semen. testing Fierro, blood, Cooper as were our decisions electrophoretic testing the trial Ashmus, we upheld Cal.3d supra, In v. People Morris. was generally accepted of semen testing finding electrophoretic court’s 971-972), but (id. at community pp. scientific in the relevant as reliable record made by the specific our holding beyond declined to extend 972-973, 10.) fn. (Id. at pp. parties. record in trial here, on the extensive and Morris relied in both Fierro trial courts 8As Fierro, supra, p. fn. Cal.4th Cal.App.3d 1127.

People Reilly, Morris, 11; fn. supra, 53 Cal.3d at People v. here, After review of the record we independent also conclude that the Blake, trial court’s ruling on the record before proper it. Dr. the only testified, who stated that in expert general of blood electrophoretic analysis and semen are reliable. equally Although acknowledged semen samples may degrade faster than blood and that samples semen analysis may saliva, be the admixture of complicated by other fluids such as vaginal secretions and sweat in the test he cited these as facts to be sample, accounted for in the rather testing than as for procedures grounds deeming evidence, of semen to be electrophoretic analysis unreliable. The undisputed therefore, the trial court’s amply that the supported finding had met People their burden under the KellylFrye rule.9 The

3. Photographic Lineups Defendant moved to the prior guilt trial to phase results of suppress two photographic which he claimed lineups were impermissibly suggestive and therefore violated his state and federal due process trial court rights. held an at which evidentiary the hearing facts Several following emerged: after the days Wellman, the killings, visited Merle police Shelly Philip’s who neighbor, helped create a or Identikit composite the man picture she had seen on Tesla Road walking the of the murders. A few day days later, the returned and asked police Mrs. Wellman if she could the identify man from a She photographic lineup. chose defendant’s almost photograph and was immediately certain of her quite identification. The officer then informed her that she had selected the of the photograph murder suspect. later, Several weeks the called to inform police Mrs. Wellman that the selected, Wash, she had person Mr. was in custody. Gonser,

Timothy the Wellmans’ saw the employee, and Mrs. police Wellman on the working He informed the composite. that he had also police seen a man near later, the Sundial Ranch on the A few day question. days the police returned and asked Gonser to view a Al- photographic lineup. he focused though one, on two initially selected that photographs, quickly defendant, left, as the man he saw on the road. After the police Gonser with Mrs. He spoke Wellman. could not recall but exactly, believed the informed him police that he and Mrs. Wellman had selected the same later, Several photograph. weeks the called Mr. Gonser to police clarify certain other information and informed him that the he had chosen person was in custody. 9Our conclusion electrophoretic analysis that the properly disposes was admitted of defend penalty ant’s related claim that its use at the phase requires reversal of the verdict. conclusion, effect, Because of our we also need not any, consider the if of the recent United Supreme downgrading States Court decision admissibility Frye criteria for under from requirements (Daubert strict simple guidelines under the Federal Rules of Evidence. Pharmaceuticals, (1993) U.S._[125 2786].)

Merrell Dow Inc. L.Ed.2d 113 S.Ct. at the

Defendant that the identi- argued hearing suppression photographic fications He that were several claimed impermissibly suggestive respects. was defendant’s different from other five substantially pho- photograph He that Mrs. Wellman immedi- tographs lineup.10 informing argued after her that she had chosen the was “right” photograph selection ately And he claimed Gonser and Wellman several improper. informing weeks later was in was suspect custody inappropriate.

At the trial court found that the hearing, the conclusion evidentiary Both Mrs. were not denied motion. lineups impermissibly suggestive about Gonser testified at trial the circum- Wellman and Mr. subsequently and identified the of defend- stances lineups photograph photographic ant as the one had selected. Neither made an in-court identification of they defendant. renews claim here that the

Defendant photographic lineups In whether an were suggestive. deciding extrajudicial impermissibly violate a to due right identification is so unreliable as to defendant’s process, was procedure court ascertain “whether the identification must and, so, (2) if whether the identifica suggestive unnecessary,” unduly (Peo tion was reliable under the of the circumstances. nevertheless totality (1990) 50 P.2d v. Gordon ple Cal.3d 251].) determi will we find no error in the trial court’s As appear, that no of the identification impermissibly suggestive. nation aspect collabo- contends that Wellman and Gonser improperly Defendant first their individual influencing in rated the Identikit creating picture, thereby did not Defendant lineups. selections the during subsequent photographic raise therefore not may this at the and hearing advance argument suppression Sanders, 508.) 51 Cal.3d at supra, p. for the on v. appeal. (People it first time event, police Gonser encountered the merely record discloses that In the any is no on There composite. with Mrs. Wellman the while they working recol- or his in the Identikit pooled evidence that he procedure participated the there is no merit to Mrs. lections with those of Wellman. Accordingly, were the creation of the tainted by that identifications claim the subsequent composite. was that photograph defendant’s argument also renews his

Defendant the shown to Mrs. Wellman. from the lineup different others substantially haveWe and concluded otherwise. viewed the The trial court photographs referring hearing whether he was suppression not make clear at the 10Defense counsel did appeal, or On he confines Wellman Gonser. lineup by viewed Mrs. Mr. photographic to the by viewed Wellman. lineup Mrs. his claim the well, scrutinized the as concur and with the independently photographs trial Marquez court’s assessment. v. 1 Cal.4th (People 418].)11 822 P.2d was not Cal.Rptr.2d lineup impermissibly sug- gestive regard. this Gordon,

Relying People Cal.3d defendant asserts supra, Mrs. Wellman she selected the had and informing suspect’s photograph, later her that the was tainted her informing suspect custody, subsequent Gordon, however, There, trial not testimony. is defendant’s claim. helpful “ familiar, the witness had stated that the but ‘looks suspect’s photograph ” thereafter, I’m not certain.’ the her that she had informed Shortly police “ ” (Id. 1241.) ‘picked at We held that the trial court had right person.’ p. call, barred identification to the that the properly any subsequent but witness could her testify identification of the defendant she with the spoke before Here, the witness no police. about her initial identifi- expressed uncertainty Moreover, cation. at trial she merely identified the that she had photo selected from the which occurred before the lineup, statements confirming by police. there is no that her Accordingly, possibility testimony impermissibly influenced. reasons,

For similar we defendant’s claim that Gon- reject informing Mr. Wellman, ser he had selected same as Mrs. later person informing him that the was in tainted suspect his in-court identification. Mr. custody, Gonser’s trial testimony was confined recounting circumstances selected, photographic lineup all identifying of which photograph occurred before comments any confirming there police. Accordingly, Gordon, was no denial due process. Cal.3d 1244.)12

4. Crime Scene and Autopsy Photographs

Defendant contends court the trial admitted five crime erroneously scene and thirteen slides photographs autopsy despite objection they Code, were (Evid. irrelevant more than prejudicial probative. § Defendant also contends the court erred in victims’ relatives the permitting the bodies from two of crime scene identify the photographs.

The trial court did not abuse in (People its discretion the slides. admitting 870, 678, (1992) 712].) v. 2 Raley Cal.4th P.2d In Cal.Rptr.2d 896 830 [8 11Defendant that all men photographs except depict straight claims of the defendant’s with hair, stringy or appears larger blond and that distinct defendant’s face and more than the of lineup others. Our review the All of the men does not corroborate defendant’s claim. White; depicted long in photographs the are hair in from blond all have various shades brown; and all beards. the photograph have Defendant’s does not stand out from others. disposes admitting 12Ourconclusion of claim that the in the defendant’s related court erred photographic evidence of Mrs. Wellman’s at the phase. identification

246 wounds, nature and of victims’ and illustrating the the graphically placement the bound was and disrobed state which Erin King’s partially body discovered, the slides were relevant to the theory plainly prosecution’s the the killings were deliberate and and committed premeditated, during 195, (People v. Pride (1992) course of a 3 Cal.4th 243 Cal.Rptr.2d rape. [10 636, 926, 643]; People Wilson (1992) 833 v. Cal.4th P.2d 3 938 [13 259, claim, 1212].) 838 to defendant’s the evi Cal.Rptr.2d Contrary P.2d dence was not cumulative of of the crime scene unduly testimony expert the and “The details obliged was not these pathologist. prosecution prove witnesses, see from the of live and the entitled to solely jury testimony the how the the scene and body details of physical supported prosecution 668, (People v. Turner (1990) . . 50 706 Cal.Rptr. . .” Cal.3d theory [268 706, accord, 887]; at Nor People Raley, supra, 2 Cal.4th 789 P.2d v. p. did the err in the value of the evidence concluding court probative “ and its ‘murder is seldom outweighed prejudicial impact. Although pretty, and in such a case are unpleas evidence pictures, testimony physical always ” Pierce (1979) v. 211 (People ant.. . .’ 24 Cal.3d Cal.Rptr. [155 91]), reviewed slides13 find that P.2d we have the and independently 595 Pride, were not or unduly gruesome inflammatory. they 243.)14 Cal.4th photographs for Superior 13TheAlameda was not able to locate the five crime scene Court however, regarding accuracy and independent dispute, court’s There is no their this review. authenticity, any uncertainty regarding subject depicted. matter Defend nor is there real disputed, have is as description challenged photographs, People five not ant’s of the which floor, holes eyes open, bullet picture Siegel lying follows: of Ms. shows her with “The 4E.)” King as pictures described

through clothing. (People’s her Exhibit The four of Ms. are wrapped head in a towel picture King’s shows head and shoulders with her follows: “One Ms. (People’s bed gag tied a in her mouth and blood on the sheets. and with some cord. There is 4M.) 4L.) A third closeup (People’s view. Exhibit picture Exhibit is a the same Another back, her her head hands King, showing is a view of her bound behind picture rear Ms. towel, are partially pulled wound[s] her down. Numerous stab wrapped pants sweat and on is in the There is blood on her through her and a hole visible towel. visible shirt bullet 4N.) the foot photo depicts King last Ms. as viewed from Exhibit (People’s the sheets. 40.)” Exhibit (People’s the bed. were photographs five conclusively crime scene We are to determine whether unable because, noted, them. was unable to locate Superior the Alameda Court admitted as properly admitted, clearly they were photographs improperly if But even we were to assume that establishing overwhelming light evidence not prejudiced could have Shelly Siegel. King relating to the murders Erin guilt defendant’s brief, ruling on the “procedural” claim that in reply 14Inhis defendant raises additional against weigh prejudice court failed to the trial photographs to exclude the slides motions stated, Code invoking 352] section [Evidence we have “on motion value. As probative against weigh prejudice judge did in fact affirmatively that the trial must show record P.2d Cal.3d (People Green value . . . .” probative crime of the argued photographs that the 468].) does Defense counsel here so. record Although the or of the cause manner death. victims were not relevant to depicting the scene comment, weighed he the record that appear it does from the motion without trial court denied

247 Defendant’s additional the erred in the claim that court permitting of identification the victims has merit. the Although to stipulated victims, of the trial identification the court Ruth permitted King Philip Durbin to Erin and from identify Shelly their crime scene We photographs. have observed that the of a to of establish the a testimony parent identity murder victim be if an not relevant there is offer to may the facts stipulate 808, to be established the (1989) v. Bonin 47 testimony. (People Cal.3d 298, 460]; 848-849 765 P.2d see Cal.Rptr. People also v. Raley, supra, [254 896; 584, 2 (1987) Cal.4th at v. People Hendricks Cal.3d p. 43 594 [238 66, 1350]; Garceau, ante, 140, 737 P.2d v. Cal.Rptr. cf. People at pages 664, Nevertheless, 664].) 182-183 862 P.2d we no Cal.Rptr.2d see [24 reasonable of here. The identification prejudice probability testimony relatives was factual (See and brief. There were no emotional outbursts. 896; Raley, v. 2 People supra, (1992) Cal.4th cf. v. 1 People Pinholster 865, 765, Thus, Cal.4th 571].) 824 P.2d 959 Cal.Rptr.2d [4 the testimony no “had to inflame potential jurors the and hence could not have exposed Bonin, defendant to v. prejudice.” (People 47 Cal.3d at p. Penalty B. Phase Issues

1. Double Jeopardy double,

Defendant contends that state and federal principles (Cal. Const., I., 15; Const., art Amend.) U.S. the jeopardy 5th barred § retrial penalty phase because the trial declared mistrial of the first judge below, trial without As requisite legal necessity. explained contention lacks merit.

Discharging a without a bars jury verdict further unless prosecution the mistrial was for granted or legal necessity with the consent of the 707, (Curry defendant. v. 2 (1970) Court Superior Cal.3d 712 Cal.Rptr. [87 361, accord, 345]; 470 55, P.2d (1971) People Compton Cal.3d 59 [98 217, 537]; 503, Cal.Rptr. (1982) 490 P.2d Stone v. Superior Court 31 Cal.3d 809]; Cal.Rptr. P.2d see [183 also United States v. DiFrancesco (1980) 328, 341-342, 449 U.S. 426].) 130-131 L.Ed.2d 101 S.Ct. [66 if, “Such exists legal at the conclusion such necessity time as the court deems it proper, court there satisfactorily appears that is no reasonable the relevant “Contrary implication, considerations. required. defendant’s no is more Certainly, judge expressly weigh probative trial need not prejudice against value—or even state (People Mickey expressly that has so done 54 Cal.3d [citation].” Moreover, 84].) autopsy 818 P.2d subsequent ruling to its initial on the slides, slides, explained the court it they had viewed fairly “were innocuous” victims, portrayal their perpetrate were to the method used relevant as killings.

248 differences and render a verdict. that the can resolve its jury probability the discharge jury these circumstances the court may properly Under (1975) 15 Cal.3d 545-546 Rojas reset for trial.” [125 1127]; 1141.) see also P.2d A.L.R.3d 357 92 §§ mind, and whether further deliber determination of the state of jurors’ The verdict, lies within the sound discretion of will result in a unanimous ations Court, (Stone circumstances. v. Superior trial in view of all the the judge 522; 15 Cal.3d at Cal.3d People Rojas, supra, p. on a commenced deliberations The original penalty phase jury court On the trial Wednesday, and continued week. through Monday agreed that although they unanimously received a note from the jury stating factors, over outweighed mitigating they disagreed the aggravating of at an over the appropriateness The note stated: “We are impasse penalty. (convictions) of us have strong subjective, personal feelings Some penalty. others have strong feelings that the death is appropriate; equally For these reasons it is inconcievable (convictions) for life without parole. was signed by will reach a unanimous decision.” note that we ever [sic] all jurors. to the court foreman sent another note

The same day, Wednesday, jury reasons, over the moral & and disagreement as follows: “For personal stating 7 to 5. [f| Prospects of the two we are deadlocked relative severity penalties, court appar- non-existent.” The trial for a unanimous verdict.seem virtually of the existence the notes. failed to inform counsel ently later, three additional notes. foreman sent out two On Friday, days “We The first stated: that morning. Two were received sometime apparently italics.) some The second reflected about to 5.” (Original are deadlocked deadlocked, movement, stating: that it was reaffirmed the view but jury’s verdict are (9 3). for a unanimous in Prospects “We are disagreement afternoon, the court a the foreman sent Later that nonexistent.” virtually effort but we it our best “I feel that gave note which stated as follows: third movement is no indication that There is 3. disagreement are still [¶] later, acknowledged the jury, the court summoned A short time possible.” counsel, and, questioned in the presence the three notes receipt “Now, have been I you I have to ask you, appreciate follows: foreman as way I can do any is anything Do feel there for five deliberating days. you where a deliberations, reached a position or have you to help you your we feel that “I truly The foreman responded: impossible?” verdict seems then asked The court is impossible.” where a verdict have reached a position None with the foreman. who disagreed of the jury if member any there without a mistrial court declared Accordingly, indicated disagreement. objection. retrial, after the case was set for it was

Shortly discovered that the trial Golde) had in ex (Judge communications with judge engaged parte jury the Defendant, their deliberations. filed a during penalty phase response, motion to retrial on dismiss the double A pending jeopardy grounds. hearing on the motion held before Wolters. One of the from the Judge jurors first trial testified that had Golde entered the room with neither Judge jury counsel nor two on occasions the present during separate penalty visit, deliberations. the first phase the was asked to define life During judge and to the of a In imprisonment explain consequences hung jury. response the latter the a that would in a question, judge explained hung result jury new The trial. also asked how the jury long would judge normally allow a to deliberate. The did recall jury not the juror judge’s response. trial court’s second ex contact with parte the occurred jury Thursday, one after of the statements, assertion that the In defendant’s

tent.” these light unequivocal a deadlock communications coerced court’s ex parte improperly subsequent Indeed, the or to cease deliberations is not credible. the encouraged jury to deliber three must have continued notes on indicate that the jury Friday ate; five; was seven to the second third the first note stated that the vote at nine to three. the Clearly, jury’s notes described the vote as standing of a unanimous verdict was reaffirmation at that that the point prospect further “movement amply nonexistent” and that no “virtually possible” [was] not that a unanimous verdict was reason the trial court’s supports finding 545.) at The Rojas, supra, discharge 15 Cal.3d ably probable. (People p. and defendant legal necessity, the was therefore jury supported by Court, (Ibid.; 31 Cal.3d Superior retried. Stone properly Discovery 2. Prosecutorial trial, for moved

Before the start of the second penalty prosecutor whom defendant intended all materials reviewed by any expert discovery disclosure that such compelled to call as a witness. Defense counsel objected counsel ac- Although self-incrimination. right against violated defendant’s Dr. coun- Seligman, that he had consulted with a psychologist, knowledged him as a witness and argued had not decided whether to call sel were based should be matter which his disclosure of any upon opinions allowed, all, had testified on direct examination. if at after the only experts disclosure of the and ordered The trial court overruled counsel’s objections two before the expert’s testimony. materials at least days requested case, renewed his motion. the first of the defense prosecutor On day materials the the requested ordered the defense to produce The trial court order, with the trial court’s over objection, next Counsel morning. complied, defendant, with his conversations notes of Dr. Seligman’s providing friends, defense had submitted documents the as well as other family Dr. review; included notes and reports prepared for these the psychologist at the first Rosenthal, for defendant who had testified Fred psychologist trial. to testify. not to call Dr. Seligman decided counsel ultimately Defense information Nevertheless, referred to subsequently prosecutor of Martha his cross-examination during materials discovered psychiatric defendant’s aunt. he asked Ms. she had Overbey, Specifically, Overbey why told Dr. that defendant “felt Ms. Seligman towards his mother.” anger “The women this Overbey responded, Maybe that murdered. was some- thing that came out at this I don’t I time. know. ... would [defendant] have be a The know.” also confronted Ms. psychologist prosecutor her with statement to Overbey Dr. that she was “not Seligman overly addition, like might this have In surprised" “something happened.” Schaefer, defendant, cross-examined a friend of her prosecutor about Shelby comment to Dr. that defendant was for Seligman looking “better something Later, life.” from closing referred to both during argument, prosecutor Dr. Rosenthal and Dr. Seligman, asking defendant had failed to call why either psychologist conduct. explain is entitled to an prosecution clearly question expert psycholo who testifies for the defense

gist about the matters which her his or upon based, is opinion including defendant’s statements made to the expert. 112, (1989) 813, v. Coleman 48 Cal.3d 151-152 768 Cal.Rptr. [255 32]; Code, §§721, P.2d Evid. Whether the may prosecution obtain of discovery these matters in advance of the testimony, expert’s however, Defendant, course, is a different of contends question. that such violates the discovery accused’s self-incrimination under privilege against Constitution, the California as this court in In re interpreted by Misener (1985) 38 Cal.3d 543 637]), well Cal.Rptr. 698 P.2d as as his [213 state and federal due process and a rights of The variety evidentiary privileges. Attorney contentions, General does not directly defendant’s but dispute legal consideration; raises practical advance disclosure of the materials which form the of basis an the of expert’s opinion promotes orderly progression trial, by the allowing to prosecutor review the materials before the expert’s mid-examination, rather testimony than in which necessitate a may continuance.

Defendant to be correct that the appears trial court’s order discovery Misener, violated the set forth in re principles In As Cal.3d 543. we there stated: “While be it true that may witnesses on the by putting stand the defendant right waives any their object vigorous cross-examination the by prosecution, he does not waive right his refuse to supply prosecution with the means to (Id. conduct that cross-examination." 557; see also People (1981) v. Collie 30 Cal.3d 43 Cal.Rptr. [177 P.2d 23 A.L.R.4th may not be ordered to turn over the 776] [defense witness]; of due process. Jury’s the the First Deadlock Informing Jury

3. of next trial court restricted the Defendant contends the impermissibly in to due process, of voir dire violation of his constitutional rights scope fair and and a reliable verdict. jury, penalty impartial retrial, the court the defense counsel to

At the start of requested penalty in a first trial had resulted hung the that the jurors inform prospective their of the matter. knowledge them about and to jury specifically question First, that the was motivated two concerns: Counsel stated request Court retention recent California the the Supreme publicity surrounding Seligman of the court’s part to call Dr. in because 15Defendant’s contention that he declined would expert on the relied have unpersuasive, thus since the matters which discovery order is any in event on cross-examination. been disclosed since changed significantly of the prosecutorial discovery has course governing 16The law 115, statutory provi added both Proposition in of which constitutional enactment 1990 (See Superior Izazaga v. Court discovery criminal cases. authorizing reciprocal sions 231, 356, 304].) are provisions not These (1991) Cal.Rptr. 371 815 P.2d Cal.3d [285 54 592, 282, (1991) Cal.Rptr. 807 Superior 53 Cal.3d 300 (Tapia [279 v. applicable here. Court 434].) P.2d

253 retained) (in election which three were not lead some to justices might jurors assume that defendant’s death had been mistakenly judgment reversed prior second, on a that several articles had re- legal “technicality”; newspaper death, vealed the first vote nine three in to be to favor of which jury’s might certain with prejudice jurors this knowledge. motion,

The trial court but denied the that counsel could emphasized the as to had or question jurors whether heard read generally they anything case, about and could follow with if up specific questions any indicated an of awareness the earlier hung Counsel renewed motion jury. midway voir dire after had through jurors several referred to recent Supreme Court election in response questions about their views on the death trial court denied the penalty. again motion. 392,

In the seminal of (1981) case v. People Williams 29 Cal.3d 407 [174 317, 869], 628 we Cal.Rptr. P.2d held that counsel “should be allowed to ask assist questions reasonably designed intelligent exercise peremp,- However, . .” . . we also tory challenges left “intact consid- expressly erable discretion of court voir the trial to contain dire within reasonable (Id. 408; 787, limits.” at see (1991) also 54 p. People Edwards Cal.3d 829 696, 436]; 1, (1992) 819 P.2d 2 Cal.Rptr.2d People v. Visciotti Cal.4th [1 388].) 825 P.2d Cal.Rptr.2d [5

Williams cited with (1926) case approval Carmichael People 62], Cal. 534 P. on overruled other grounds v. Bittaker People [246 48 Cal.3d 774 P.2d v. Wil- 659]. liams, Carmichael, 4.) Cal.3d fn. In p. case which relies, the court held that the principally defendant was improperly denied the opportunity question about their prospective jurors knowledge (198 the first reach jury’s Cal. at inability verdict. In so however, holding, the court that more emphasized the general questions put to the prospective jurors were to elicit this sort of information. inadequate these Among was whether questions the had formed or jurors expressed any defendant; opinion the or innocence regarding guilt of the whether they knew of reason could not a any they the defendant fair give and impartial trial; and whether had they talked with witness or former any in the juror (Id. 544-545.) case. at theAs court in pp. explained: answer to a juror “[A] general state with question might sincerity that he knew of no perfect reason trial, he could not the fair why give defendant a but a impartial upon further and more minute examination it be shown that his might conception fair of a trial one impartial for who had been a tried previously by jury, ten whom him believed differed in guilty, many respects material from that which the law all (Id. 545.) accords to accused of at persons crime.” p. Furthermore, had not talked with of the . . . that they the “answers jurors case did not show that necessarily or . . . a witness the former jurors the (Id. 546.) the former stood . . . .” at p. had not heard how jury they wit, court, Here, contrast, sanctioned question by general had read or heard concerning jurors anything whether the prospective case, which con- the sort of information to elicit designed precisely of the had indicated an awareness If juror cerned counsel. any prospective deadlock, authorized to ask counsel was expressly specific first jury’s thus avoided strategem imparting The trial court’s follow-up questions. (awareness vote) of the first which cause bias jury’s information might very to obtain a fair and a reasonable impar- while counsel assuring opportunity sua (See v. 50 Cal.3d Thompson, supra, p. sponte tial People [no jury. deadlock].) first We of the jury’s to inform second penalty phase jury duty conclude, therefore, exercised its discretion in the trial court properly concerning hung jury. instruction and questions disallowing proposed erred that the trial court argument Defendant makes a but related separate that the inform the jurors counsel’s refusing request prospective of an earlier death an reversal by retrial was not occasioned appellate Edwards, supra, claim in People We a similar rejected judgment. is never that the trial court suggested “We . . . have observing, Cal.3d . . . .” inform the history prior proceedings jury required There, here, no “basis even for 845.) the record disclosed (Id. at as from resentment over have resulted might that the verdict jury’s speculation that the (Ibid.) we hold Accordingly, reversal this court.” some presumed instruction. refused the requested court properly Cause 4. Excusal Jurors for five excused pro the trial court improperly

Defendant contends the death penalty. views regarding because of their for cause jurors spective her views on for cause if his or be excused A juror may prospective “ the performance or substantially impair would ‘prevent capital punishment (1985) 469 U.S. v. Witt (Wainwright ....’” duties as juror of his [or her] Pinholster, 851-852, 844]; People 105 S.Ct. L.Ed.2d are responses juror’s Where prospective 1 Cal.4th at p. state of of the juror’s court’s assessment the trial conflicting, or equivocal a but inconsistency, simply no Where there is binding. mind is generally for or against a bias demonstrated the juror’s responses whether question if it is be set aside will not court’s judgment the trial death penalty, at p. 53 Cal.3d supra, v. (People Cooper, evidence. substantial supported 809.)

255' Defendant claims that the “most errors concerned egregious” Williams and Williams denied jurors Rhoy. Although initially prospective decision, had she about the death that would her any feelings affect penalty under further she stated that would not under questioning she circum any stances death unless the had a of impose long history prior violence. Defendant contends that it was Ms. to excuse Williams improper However, Pinholster, 865, on this basis. v. 1 we People supra, Cal.4th a trial court’s decision to excuse a stated he upheld juror who would never vote for the a death case burglary-murder unless killing There, here, (Id. 917.) was fact at as premeditated. p. was not question what the would on juror (cf. do facts of the case particular v. People 583, 399, (1990) Clark 50 127]), Cal.3d 597 Cal.Rptr. 789 P.2d but [268 rather what the would decide in of juror regardless the abstract the other Pinholster, evidence in aggravation. v. 1 (People Cal.4th at supra, pp. Pinholster, 917-918.) As in it is clear that Ms. Williams’s views would rigid impair her to follow law substantially ability her duties. perform Witt, v. (Wainwright 851-852].) 469 U.S. at 424 at supra, p. L.Ed.2d pp. [83 Prospective juror Rhoy’s indicated a responses ambivalence profound the death concerning a penalty. Although she ultimately acknowledged willingness to vote for death “if the evidence was she overwhelming,” “I consistently responded, know” don’t in answer to the whether question she was of capable voting for death if all the evidence indicated that was it “ earlier, sentence. As appropriate noted or equivocal conflict- ‘[W]here are elicited a ing responses regarding prospective juror’s ability impose the death the trial court’s penalty, determination as to his true state her] [or of mind is an binding (1991) court.’” v. 1 appellate (People Breaux 281, 81, 585], Cal.4th 309-310 P.2d 821 v. Cal.Rptr.2d quoting People [3 accord, Ghent 43 1250]; Cal.3d P.2d [239 Hardy (1992) 781]; v. People Cal.4th 825 P.2d Cal.Rptr.2d 809.) Hence, People Cooper, supra, 53 we p. Cal.3d cannot find on this record the trial court erred in Ms. excusing Rhoy.

Prospective Rosu also juror acute ambivalence in expressed her responses, stating “I don’t or repeatedly know” “I can’t tell in answer to the you” whether she was a question verdict of death. capable returning Although at one she point the death her expressed willingness impose penalty, answers equivocal the trial court’s conflicting clearly finding support Breaux, substantial 1 Cal.4th at impairment. Revak’s

Prospective juror uncertainty testimony masterpiece death concerning the He penalty. initially stated that considered death be a viable but doubts about its sentencing option, subsequently expressed

256 that the death absolute unless I was given proof penalty provided [an] “sense about that he was “confused” deterrent.” When he acknowledged pressed, issue, he could not return a verdict of death. stated that ultimately state of mind is thus The trial court’s judgment concerning juror’s Breaux, 309.) 1 review. v. Cal.4th (People supra, on binding to excuse prospec- the trial court’s decision challenges defendant Finally, stated that she could “see” Ms. Although initially Moye tive juror Moye. death, about strong misgivings herself for she voting subsequently expressed whether she her beliefs. When asked based on religious capital punishment her was an for the death voting penalty,” response of capable “presently circumstances, the record amply supports “No.” Under the unequivocal substantially state of mind would determination that Ms. Moye’s trial court’s Witt, supra, her duties as a v. (Wainwright her ability perform juror. impair 851-852].) L.Ed.2d at pp. U.S. at p. [83 Prosecutorial Misconduct 5. Alleged instances of misconduct by prosecutor

Defendant numerous alleges will defendant failed object trial. As appear, the second during penalty misconduct, error waiving any appeal. thereby most of the alleged forms Green, counsel’s omission Where v. 27 Cal.3d assistance, address we shall additionally of ineffective the basis of a claim the merits. and Slides Taped

a. Use Confessions committed misconduct that the Defendant initially complains prosecutor statement, of defendant’s when played portion his opening during evidence, slides, later admitted into confession and simultaneously displayed that the tape acknowledging the two victims. While the crime scene and ante, discussion, (see in evidence” admissible be otherwise “may and slides exceeded use in this manner 245-246), that their argues at pp. in violation of inflamed the jury, of an statement scope opening proper (1974) 416 (Donnelly a fair trial rights his constitutional DeChristoforo 437-438, 1868]) reliable and a S.Ct. L.Ed.2d U.S. 645 [40 578, 584-585 (1988) 486 U.S. (Johnson Mississippi verdict. 583-584, 1981].) S.Ct. L.Ed.2d this slides on to the use tape failed to object

Defendant admonition, for a curative and request of an objection basis. In the absence for the misconduct to complain prosecutorial not be heard defendant may

257 Green, on v. at Accord (People supra, first time 27 Cal.3d appeal. p. of defendant has waived claim error.17 any ingly, merits,

As to the it clear that the committed no misconduct. is prosecutor “The of the ‘is to minds to statement the purpose opening prepare jury follow evidence to more discern force and readily the and its materiality, evidence, [citation], effect’ and the use of which are admissible in matters evidence, and which are in fact received in aid this subsequently may 209, (1956) 307]; (People v. 47 Cal.2d 215 purpose.” Green P.2d [302 accord, 553, 266, (1982) People v. Ramos 30 Cal.3d 575 639 Cal.Rptr. [180 Thus, 908].) P.2d it is well settled that the “use and of photographs tape evidence, intended later be admitted as visual recordings, or auditory 792, (1992) aids is (People v. Fauber 2 Cal.4th 827 appropriate.” [9 249]; Green, People 831 P.2d see at Cal.Rptr.2d supra, 47 Cal.2d use of of murder [upholding victim state photographs during opening ment]; (1974) People Kirk 43 Cal.App.3d Cal.Rptr. [117 345] claim of misconduct use of [rejecting prosecutorial based on admis taped statement].) sions during both opening Here the confession and the taped and slides were admitted into evidence. We find no photographs ultimately error in connection with their use the during statement. prosecutor’s opening

b. Cross-examination of Defendant

Defendant next contends the committed dur misconduct prosecutor ing his cross-examination of when (1) he asked defendant: show how hard he hit Ms. with the Siegel a posthole digger by striking book; (2) to telephone demonstrate on a how he mannequin orally copulated (3) Ms. and to demonstrate King; head how tied and styrofoam bound Ms. Defendant King. asserts that the inflamed the requests unduly jury violation of his to due and his Amendment right process Eighth right (Johnson to a reliable verdict. v. Mississippi, 486 U.S. at 584-585 pp. However, 584-585].) L.Ed.2d pp. defendant failed to to the [100 object first declined event to strike book as request, any the prosecutor The trial requested. court sustained defendant’s to the second objection request defendant refused the third how request show he had bound Thus, the victim’s head. regardless of propriety prosecutor’s we discern questions, no of undue since possibility none prejudice requested reenactments took actually place. 17Although alleged defendant asserts that the misconduct not have could been cured

timely objection and admonition v. Babbitt 45 Cal.3d 697 [248 253], 981,109 849]), patently P.2d cert. den. 488 U.S. 1034 L.Ed.2d is S.Ct. this untrue, timely objection prejudice as a would have the alleged allowed trial court assess part prosecutor’s opening exercise its discretion to exclude all or of materials from statement. Questioning

c. Witnesses Improper elicited certain dam Defendant contends the prosecutor improperly cross-examination during information about defendant’s background aging motion, the trial had witnesses. In to a defense court of two defense response witnesses about defendant’s to defense question forbidden prosecutor Nevertheless, of defendant’s sis record. cross-examination during juvenile Burdine, ter, the fact that defendant had been Debra elicited prosecutor to the or ask for a Since defendant did not object question hall. juvenile admonition, on misconduct is not cognizable of allegation curative Moreover, Green, it is 34.) at although v. 27 Cal.3d (People supra, p. appeal. (People answers to ask for inadmissible calling misconduct questions plainly 129]), we 778 P.2d Cal.Rptr. Bell Cal.3d 532 v. 49 [262 to from one reference no resulting passing discern possibility prejudice error, if could not have affected defendant’s record. juvenile any, (1988) 46 verdict. v. Bonin Cal.3d (People 1217].)

P.2d elicited certain infor also contends the prosecutor improperly Defendant con witness Schaefer Shelby cross-examination of defense during mation The information question a court order this evidence. excluding to trary where he defendant in the hospital the fact that Schaefer had visited included from a had been from a that defendant stabbing, expelled was recovering had for and that defendant drinking, quit work-furlough program prison contention, triál court did not defendant’s school. to welding Contrary information, reserved but simply motion to exclude the counsel’s grant thereafter failed to Defendant testimony. until the witness’s actual judgment any Accordingly, to any prosecutor’s questions. object specifically claim of error is waived Green, 27 Cal.3d appeal. Moreover, of the witness’s 34.) were within scope the questions plainly (People Cooper, supra, to her credibility. and relevant direct testimony we find no error. Accordingly, Cal.3d at p. asking “inflamed” the jury by that the defendant asserts prosecutor

Lastly, Ritesman, witness, had ever he and defendant whether a government John After a defense at Sundial Ranch.” entitled “Blood Bath viewed a program sustained, he had ever Ritesman whether asked was the prosecutor objection relevance Although butchered.” “two women being seen a show about their clear, we discern no possibility is not altogether the questions self-evident; of the crimes The brutality a reasonable juror. inflaming case. to the nothing added the questions Biblical

d. References rights his constitutional violated the prosecutor Defendant contends biblical invoking verdict and a reliable a fair trial to due process, However, in his as defendant failed to to argument.18 authority closing object admonition, the remarks in a curative the claim is not question request counsel, honor, closing prosecutor argument 18The “Your commenced as follows: ladies kill, gentlemen: Thou not We all what shall know that means. We all know where [¶] [¶] plain English language meaning. it came The words their evident I from. have don’t need [¶] explain you why why to such rule ever into or we came existence even have to have rules today. people things like this We have because do like done question he’s and then the [¶] that, case, get is: What do we do to them it? before I I I for But before talk about this [¶] important you appreciate got think it’s for all to how we are today; starting we where with references, religious principles; starting religious with you Biblical None of references. [¶] any religious serving jury had reservations about on the like But I still it is important this. feel I’m you going you totally that understand that what to ask do is in with keeping religious to totally principles. keeping Spirit It is with the you of Christ or God or whatever beliefs Every society rule developed just necessary have. has like that and it’s been whether [¶] tribes; they they were major whether were or countries small clans. There are referenc [¶] something es—it is we all accept—the could Old full of to Testament is references the death should, penalty, full of types things references to the of subject that one could do and himself or herself to the penalty. gave death When Moses led Jews of the the out desert God him [¶] those commandments and those commandments were a of religious principles— combination because the were they Jews out start on their own government; they to had no more so awere or recognition religious why codification of both civil principles, And that’s [¶] you religious see this mixture of commandments and civil. Or in this case criminal command references, ments: Thou shall not Clearly among kill. that was I them. There are as [¶] [¶] mentioned[,] concept, concept to that the of you thou shall not kill and what if do happens throughout ‘Anyone the Old Testament: who strikes a man—’ This is from the Book [¶] [¶] ‘Anyone [sic], of Exodus. who strikes a man and so Beastiality causes death must die.’ [¶] [¶] death, fornicating with punishable by an animal was The Book Leviticus fiad a similar [¶] message concept. or The Book of who person Numbers: ‘He had struck a with an iron [¶] object so as to put message cause death is a murderer and he be must to death.’ The same [¶] instrument, was delivered respect striking with to somebody with a stone with a wooden instrument. Now those are all God’s law. Those were not man’s And law. the [¶] [¶] [¶] message was clear in very days, contrary those There are are people who feel that there [¶] messages coming from or the Old the New Testament. And rather wait for [than] [¶] [defense point you, to those out you they counsel] to I want to tell what are and they why are not contrary to we are today they where here or where the were got message Jews when the from eye Moses. An for an You eye. many are all familiar And people with that. think that [¶] [¶] rejoinder you to imply impose that was tfie idea that that was not to that couldn’t life punisfiment somebody, ‘Vengeance on is sayeth ‘Vengeance was mine the Lord.’ It’s true that countermand, sayeth is mine the Lord’ to eye eye seems seems to offset the idea that an for an punishment. the appropriate point. you was But wasn’t Because on that when read [¶] subsequent ‘Vengeance to message you mine’ it clear is was that the was: But must submit [sic], civil You render things authorities. must unto Ceaser that are Ceaser’s [¶] [sic] [¶] when compassion reason that Jesus came on the scene love and talked about for beings human was that that time the Romans had established rule. The Romans had fitting messages compassion. established the law and so it was him to for deliver filled with fitting It him forgiveness. proper for to talk about But it was clear that was also it laws, existence, things render Ceaser that are And were the Ceaser’s those [ric] [sic]. recognized at people why the time. God there’d be like Mr. That’s those command Wash. [¶] why message throughout were ments delivered. That’s is the Old Testament. Who [¶] punished they things they must be for they what have done and if have done like he’s done forfeit must their lives for what he’s done.” 260 Hill, 1012; v. supra, People v. 3 Cal.4th appeal. (People p.

cognizable 1082].) (1988) 753 P.2d 45 Cal.3d 335 Cal.Rptr. Poggi [246 Indeed, failed to to the we note that defense counsel not only object remarks, but countered them a number by citing religious prosecutor’s (See People the death authorities to his support argument against penalty. Hill, 1012.)19 Cal.4th at claim, General characterizes the Attorney

As to the merits of the a biblical as little more than “history” extended passage question (See People death and therefore innocuous. Williams P.2d “short [prosecutor’s Cal.3d 221] neutral did not appeal jurors’ and fairly ‘history’ capital punishment” here or It is true that the prejudices].) prosecutor prefaced religious passions case, I think it’s remarks I talk about this by observing, “[B]efore we are for all to how we to where got today; important you appreciate references, Biblical with with religious starting religious principles; starting is indeed And much of the remainder of the challenged passage references.” references to the death penalty. of biblical catalogue simply Nevertheless, punish- was not message only capital prosecutor’s it, Bible, As in but that it was sanctioned and God. by by ment existed the stated, I’m understand that what the is that important you prosecutor “[I]t It is in with religious principles. to ask to do is going you totally keeping or whatever beliefs you in with the of Christ or God totally keeping Spirit “God there’d observing, recognized And he concluded the passage by have.” commandments were deliv- like That’s those be why people [defendant]. have done and if have they for what they ered. . . . Who must be punished lives . . . .” like done must forfeit their done he’s things they have that we the sort of to religious principles This is appeal precisely (1992) 4 Cal.4th (See v. People held to be Sandoval repeatedly improper. cert, 342, 862], on other 841 P.2d granted Cal.Rptr.2d 193-194 [14 _ _ 28, 1993, 40]; v. People 114 S.Ct. U.S. L.Ed.2d issues Sept. [125 know, you Harmon also told regard follows: “You Mr. argued counsel in this as 19Defense scriptures to the and He reached back penalty proper is under the laws of God. the death today by most penalty The death is condemned analysis, made Biblical The truth is: a [¶] even penalty[,] the death as Paul the has condemned religious Pope beliefs. John [Second] [¶] him the before also Pope life. Paul person [Sixth] the who tried to take his applied against [¶] by the leaders has been called immoral penalty The death spoke against penalty. the death [¶] in taken a stand. Leaders of Churches has many in churches. The National Counsel [¶] taken a stand throughout California have synogogues in churches here in California and [sic] So what do against . has taken a stand it. . against California Catholic Conference [¶] it. [¶] Well, Harmon clearly, us that Mr. religious it shows stand of the leaders? we make of this [¶] Others much execution of Wash. freely that sanctions the Mr. wrong implies is when he God with surely disagree will that.” than Mr. Harmon closer to God 1020].) P.2d Wrest 3 Cal.4th As Cal.Rptr.2d we in “What Sandoval: is is reliance on explained recently objectionable as or the death The religious authority supporting opposing penalty. determination is to be made on the reliance instructions by legal given by court, not (4 recourse extraneous at authority.” Cal.4th p.

Nevertheless, viewed in context do not find we remarks prosecutor’s here to be The in vice to the Bible and prejudicial. other primary referring religious is that such “diminish the authority argument may sense of jury’s another, for its verdict and . law responsibility . . should imply higher cases, be applied the law in the capital court’s instructions.” displacing Wrest, 1107; Sandoval, supra, 3 Cal.4th People see also Mosk, (conc. J.) Cal.4th at 204-205 & dis. pp. opn. [arguing the prosecutor’s religious references had the jury’s responsi “minimize[d] bility” “offered an jurors way choice”].) avoid a hard easy here invoked the Bible to demonstrate the prosecutor legitimacy capital and even that defendant under punishment, implied deserved death God’s law: “God there’d be like Mr. . . Who recognized Wash. . must be people for they what have done. . must forfeit punished . their lives for what he’s done.” This was improper. however,

Following passage question, embarked prosecutor and detailed upon lengthy argument devoted evidence exclusively aggravation, the brutal circumstances of the particularly rape murders 190.3, (§ 190.3, (a)) factor (§ (c)). defendant’s convictions factor prior didHe not return of God or instead subject but religion, urged sentence death based moral upon defendant’s for the crimes in culpability Thus, light the statutory factors. we do not the objectionable believe remarks could have the reasonably diminished sense jury’s responsibility, Wrest, the or court’s displaced (People instructions. v. 3 Cal.4th at supra, p. 1107) There is no that the possibility jury would have reached a more Sandoval, favorable verdict had the not misconduct occurred. supra, Cal.4th at p.

e. to Extrinsic Matters References

Defendant contends the referred to a num prosecutor improperly ber of matters outside record. First,

(i) he in misconduct argues prosecutor engaged by urging statement,” a “to make to do “the and to restore jury right thing,” in “confidence” the criminal justice system by verdict of returning death.20 Ghent, Relying People Cal.3d defendant claims that the statements deflected the attention from improperly jurors’ the facts of the case to external considerations about the We have “community-at-large.” “[isolated, stated that brief references to retribution or ven- community , . . . geance although potentially do not inflammatory, constitute miscon- duct so as such do long arguments not form the basis for advocat- principal 771; (Id. of the death ing at imposition penalty.” see also People v. Anderson 52 Cal.3d 479-480 801 P.2d 1107].) The remarks here were not prosecutor’s particularly inflammatory, nor did constitute the they basis of his principal favor of the argument death penalty. conceivable error was Accordingly, any harmless.

(ii) Defendant also claims the prosecutor improperly referred to two who did not at In psychologists trial. his testify testimony retrial, rob, defendant denied that he went to the ranch with the intent to rape and murder the victims. He the inconsistent explained admissions in his confession taped that at the time of the by stating interrogation wanted to “seem as as that he “wanted guilty possible,” to die.” The scorned prosecutor this explanation during closing argument, “Doesn’t that sound like a stating: Now, Jeff, or a could kind of psychiatrist psychologist isn’t there say: some know, reason that told them you that? And you we’ve had a couple [¶] case, around in guys lurking on this background Dr. Rosenthal and Dr. were out Seligman. They then we never heard from talking people, them, California, know, inAnd this where day age you these guys [¶] are making killing coming charging exorbitant fees it’s testifying, kind of remarkable the . . .” Defense only counsel an interposed objection sustained, at that which the trial point court admonishing the that there jury thereafter, was no evidence of exorbitant fees. anyone charging Shortly however, the returned to the prosecutor “There’s subject, observing: nothing [defendant]; him with what have heard wrong that’s with him? you wrong There has been no . . . or even psychiatric psychological testimony; [¶] have been contacted from though about that.” Defense people family counsel’s remark this was overruled. objection trial,

Inasmuch as neither testified at their not have names should expert However, been invoked the by prosecutor during closing argument. context, letter, prosecutor objection, 20In the this read a over from the father of a murder case, victim in an unrelated which stated: “There has been a furor in the media over the justice system, particularly justice. condition juvenile hope of our . . . But it is our that today’s bring community decision will back some of the and trust in confidence that we the system.” passing once had in this Defendant also made reference to prosecutor the offense from the victim’s would task viewpoint appear germane to the Moreover, (Id. 283-284.) at we do not sentencing. pp. read the [Citations.]” whole, prosecutor’s taken as a as argument, urging to subordinate jury (Id. 284.) reason to emotion. at There was no p. misconduct.

(iv) Defendant next that the complains referred to certain prosecutor “irrelevant” of his life which the aspects personal trial court had earlier excluded, the fact that “he was in and out of including had juvenile custody,” been stabbed and had been from a work-release hospitalized, ejected pro- earlier, for and had violated As gram drinking, noted the trial parole. court excluded the information only defendant’s record. More- relating juvenile over, all of in the comments were innocuous that a question sufficiently for admonition could have cured timely objection request any possible Visciotti, 83; harm. v. 2 Cal.4th at supra, People supra, p. Poggi, 335.) 45 Cal.3d at p.

(v) At the end of his that closing argument, prosecutor argued life without was insufficient because defend possibility parole punishment alive, ant would have of release: “As as are there always “hope” long you If is him life without there’d be in his hope. you gave parole, always hope mind[,] that there’d be a revolution and we free all the hope prisoners.” Defense counsel “I’m not objected prosecutor explained: suggesting that . . . of life without means he out. possibility parole might get [][] I’m will have him in So about what it his mind. talking impact any [][] like the or I was that I’m suggestion judge thought doing, [defense counsel] out, that tell that’s not The trial court trying you might get my point.” “All and the defend responded, right,” prosecutor repeated deny plea ant that there will be a revolution and that all the will be any “hope prisoners freed, that this would all be bad dream.” hope

Defendant contends the remarks introduced irrelevant prosecutor’s factors into the consideration to the referring jury’s prejudicial possibility if defendant could be released on he were not sentenced to death. parole (See P.2d v. Ramos 37 Cal.3d 136 People 430].) in remarks are similar some Although respects prosecutor’s Hill, People those which we held to be recently improper which make them even more clearly Cal.4th there are differences here There, referred to the defendant’s hopes harmless than Hill. prosecutor well scenarios as unlikely “earthquakes,” of a as as such presidential pardon, revolutions,” (Id. A and “fantastical movie plots.” “social “wars” overruled, might and the that defendant impression defense objection Here, to a somehow be released was not immediately dispelled. response “not made clear he was immediately defense objection prosecutor

265 . . of life without means might get that the . suggesting possibility parole Furthermore, Hill, as in v. 3 Cal.4th at People supra, page any out.” was later the trial court’s instruc- specific lingering uncertainty dispelled “ means that ‘the tion to assume that life without possibility parole Defendant will be for the rest of his life. . . . For you imprisoned conclude otherwise would be for you rely conjecture speculation, ” Thus, and that would be a violation of oath as trial we discern your jurors.’ no that the remarks affected the verdict. possibility prosecutor’s

f. Comments on Remorse referred to a letter that

During closing argument, prosecutor contents, in defendant wrote to his sister. to its prison Adverting prose observed, I if full of cutor “And would have to admit that this letter were for the he had done there’d be some compassion recognition wrong here, in to consider. . No have . . meaning something you’d really [[¶]] remorse for his crimes. are not mentioned at all. There is no They compas sion for the victims’ are not mentioned at all.” family. They

Defendant claims that the invoked comments prosecutor’s improperly defendant’s lack of remorse as an factor. Such an aggravating argument Ashmus, would have been v. at (People supra, Cal.3d improper. However, clear, as the comments themselves make prosecutor there merely that the letter no evidence that observing provides mitigation, consider,” was no in the letter. It is “meaning,” “nothing proper argue 992-993.) (Id. that remorse is as circumstance lacking mitigation. pp. That is what occurred here. precisely

g. Derogatory Comments

Defendant’s final misconduct concerns assignment prosecutorial certain remarks which cast on defense counsel and allegedly aspersions (See defense witnesses. 45 Cal.3d People Thompson 37].) remarks 753 P.2d As defendant failed to to the object admonition, a curative the claim is waived on request appeal. Bell, 537-538.) Cal.3d at We find no error prejudicial any pp. event. Defendant cites two statements which that defense allegedly implied on cross- counsel had fabricated evidence. defendant’s Recalling responses examination, him, observed, T have told must “Somebody say prosecutor the offens don’t know’ when can’t think of committed you why [defendant ” the statement was ‘Because I wanted to.’ We say, agree es]—don’t trial counsel as arguably improper suggesting someone—presumably However, no we discern —counseled defendant to a loss of memory. feign that this remark in the and detailed lengthy possibility passing prosecutor’s had affect on the verdict. argument any statement, to ear-

Defendant also of the referred complains prosecutor’s lier, he wanted defendant’s that he confessed because ridiculing explanation kind to “Doesn’t that sound like a or a could die: psychiatrist psychologist Now, Jeff, reason that told them that?” from Apart isn’t there some say: you remark, in the defendant’s failure to we no object, impropriety perceive well within the of the kind of argument which was bounds “vigorous v. 45 Cal.3d at (People Thompson, supra, p. is entitled make.” prosecutor which defendant contends We have reviewed the statements remaining had the defendant deny counsel and find that none potential denigrated irrational, trial, role, or invite an purely fair divert the from its jury proper Visciotti, 83.)21 2 Cal.4th at supra, p. emotional v. response. (People h. Impact Cumulative effect of the defendant contends that the cumulative prosecutor’s

Lastly, a few instances of misconduct reversal. We have identified only compels misconduct, or in them to be harmless. Viewed singly and have found combination, the verdict. no reasonable affected they there is possibility Victims

6. Slides Photographs of the the admission at the penalty phase Defendant complains admitted at the guilt phase slides same crime scene photographs autopsy however, concedes, at he failed to renew objection of trial. As v. (People error on appeal. claim of thereby waiving any the penalty phase, 1215].) P.2d 798 (1990) Cal.Rptr. Frank 51 Cal.3d 734-735 [274 event, in admitting its discretion the trial court exercised In any properly discussed, trial guilt was relevant at the evidence slides. As previously trial, the evi malice, theAt and deliberation. show premeditation “It dem of aggravation penalty. relevant to the issues dence was also was therefore the crime and the circumstances of onstrated graphically of the death penalty.” of the appropriateness relevant to a determination accord, (1990) 914; v. Benson People 2 Cal.4th Raley, supra, p. v. (People (1) you want doesn’t following counsel] remarks: complains “[Defense Defendant (referring to defense daughter” talked to her long know victim’s mother] how [the (2) records); an “It was phone to certain reference objection prosecutor’s to the counsel’s “Now, Hermann); jury in the questioning of Dr. (referring to counsel’s question” absurd jury.” hung of a encouraged the idea have questioning counsel] selection and the [defense 330]; P.2d People Cal.3d 785-786 181-182.)22 50 Cal.3d at Thompson, supra, pp. 247), with defendant that the (ante,

As we agree discussed previously in a trial Durbin to his wife’s identify body court erred in Philip permitting 848-849, Bonin, crime 47 Cal.3d at pp. scene photograph. factual, earlier, Nevertheless, no 851-852.) had testimony as noted defend- and could not have exposed to inflame a reasonable potential juror, (Ibid.) ant to prejudice. Army Evidence Ms. Enlistment in the

7. King’s in his motion Defendant also contends the trial court erred denying to enlist in the Defendant Army. to exclude evidence of Erin King’s plans irrelevant to consider sentencing asserts that the evidence was any proper ation under section and that its its prejudice outweighed probative 190.3 Code, (Evid. 352). value § that Erin her Erin mother alluded to the fact King’s

During testimony, in in a conversation shortly discussed her to enlist the plans Army telephone Later, on direct examination that before the murders. defendant also testified enlist, her and he stated that Erin pleaded he talked with Erin about plan home to with him to leave her to send her civilian clothes enough money Thus, to the circumstances the was relevant Washington. subject generally 190.3, (§ (a)), was not Defend- improper. the crime factor and its admission its value. outweighed probative ant makes no that its showing prejudice 8. Error Alleged BoykinITahl committed by

Evidence convictions for burglary of two prior defendant in Indiana were admitted into evidence during penalty phase. offense, school, and, commit Defendant while on bail for this a burglarized guilty pleas ted a of a Radio Shack store. He entered separate burglary and then to the the Radio Shack burglary both first to charges, pleading advised of his that he was properly school While burglary. conceding 274, (1969) U.S. 238 L.Ed.2d (Boykinv. Alabama 395 Boykin/Tahlrights [23 577, 1709]; 460 P.2d (1969) 1 122 Cal.Rptr. S.Ct. In re Tahl Cal.3d 89 [81 below, defendant 449]) argued to the school burglary, before pleading guilty here, was Radio Shack burglary to the and renews his claim plea self-incrimina- advised of his against invalid because he was not privilege 13, 246, were not photographs 22Although, previously page noted at footnote as review, light in of all the defendant they possibly prejudiced have available for could not penalty phase. admitted evidence at the properly other tion, that the tainted his Accord- subsequent plea.23 and he asserts violation contends that the admission of both was priors improper, ingly, and a reliable verdict. and violated his to due rights process must be advised of the constitutional rights A criminal defendant self-incrimination, right or she the privilege against waives—including trial to confront one’s accusers—when a entering plea by jury right conviction on the that such move to strike guilty, may prior ground advisements were not Wharton prior proceeding. (People given 290].) In P.2d such 53 Cal.3d [280 case, review, v. Howard as we recently People standard explained 1315], is whether (1992) 1 Cal.4th 824 P.2d Cal.Rptr.2d and intel demonstrates that the plea voluntary the record affirmatively standard, we of the circumstances. this under the ligent totality Applying was valid notwith that the admission of a conviction prior held Howard concerning privilege the omission of an admonition explicit standing (Id. at The trial court had specifically self-incrimination. against district attorney that he had the to force the right informed the defendant burglary Shack contains plea hearing defendant’s on the Radio transcript 23The following colloquy: Wash, doing you record that are I have be assured and establish for the Mr. to “[Court]: will, you know the you doing are and that you free that know what your this of own you your plea, right? all How old are sir? consequences of Twenty years. “[Wash]: read and write? you Do “[Court]: Yes, sir. “[Wash]: you plea agreement? Did read the “[Court]: Yes, sir. “[Wash]: today? drugs or alcohol any under the influence of you Are “[Court]: No, sir. “[Wash]: interest? your plea your is in best you Do think “[Court]: Yes. “[Wash]: admitting truth of the facts you by your plea that are you understand Do “[Court]: Information, Burglary? guilty of a Class C saying I am in fact you are alleged in the Yes, sir. “[Wash]: public your right to you that waive by your plea understand you Do “[Court]: red chairs and community sit in those who would jury by people from this speedy trial twelve try your case? Yes, sir. “[Wash]: right to face giving up your you that are you do understand In that connection “[Court]: examine them? your accusers and to cross Yes, sir. “[Wash]: to right compel witnesses up your you giving are you understand that Do “[Court]: testify your here on behalf? come in Yes, sir. “[Wash]: of Indiana the State go were to to trial you that if you Do understand ... “[Court]: doubt, have to you wouldn’t beyond a reasonable prove you guilty duty have a would you? never shift to would and the burden and could remain silent anything, do Yes, sir.” “[Wash]: trial, he would have the in such a trial and that conviction prove prior was represented witnesses. Defendant adverse and to confront right jury Thus, {Ibid..) counsel, for the plea. factual basis strong and there was a circumstances, we concluded record, of the in view of the totality {Ibid.) was voluntary intelligent. that the admission an the absence of demonstrates that The record here similarly self-incrim waiver against admonition and concerning privilege express The trial and intelligent. did render the less plea any voluntary ination not confront the to a trial and to defendant of his right jury advised judge clearly him, him guilty the state had the burden of proving evidence against doubt, the burden of he could remain silent and a reasonable and that beyond Thus, defendant was effectively apprised would not shift to him. proof Moreover, defendant indicated that self-incrimination. privilege against circumstances, are we understood and waived these Under rights. freely and intelligent. (People satisfied that defendant’s was voluntary plea Howard, 1 Cal.4th at Assistance Counsel

9. Ineffective of counsel at the Defendant contends he was denied effective assistance in several respects. penalty phase assistance is well for claims of ineffective standard evaluating relief, must show: trial

settled. To establish entitlement to counsel failed to act in a manner to be of reasonably competent expected advocates; that (2) as and it is attorneys acting diligent reasonably probable a more favorable in the absence of determination would have resulted 1088, 1114; Wrest, counsel’s v. 3 Cal.4th Strickland failings. (People supra, 674, 693-699, 668, 104 (1984) v. 466 U.S. L.Ed.2d Washington 687-696 [80 2052].) S.Ct. failed to inves

Defendant first claims that trial counsel adequately evidence of troubled and mental defendant’s tigate present upbringing He in failure to call any condition. cites as evidence this counsel’s regard at least two witnesses. The record discloses that counsel consulted expert not Dr. and Dr. Rosenthal. Dr. did Seligman Seligman testify, psychologists, and the evidence that he have might record contains no reference to any therefore, cannot infer “without in we engaging presented; speculation, existence, force, the probable about its or anything availability, probative or Wrest, 3 Cal.4th at (People supra, p. of its use at trial.” v. consequences claim of there is no evidence to defendant’s support Accordingly, ineffective assistance in this regard.

270 he did not the record is somewhat more as to

Although testify, revealing what evidence Dr. Rosenthal have as an witness might presented expert There, based on his at the first testimony trial. observed that penalty in a crowded and chaotic environment which grew up family contributed to number of emotional He also that problems. speculated of murders defendant was emotional state a turbulent day probably food, from a lack of of alcohol and and a sleep prior ingestion drugs, However, from acknowl- sense of isolation friends and Dr. Rosenthal family. insane, that defendant was not did not suffer from discrete mental any edged and knew what he was when he committed the crimes. disease doing concerning Much of the substance of Dr. Rosenthal’s prior testimony troubled at the second family background penalty defendant’s presented witnesses, trial other several of defendant’s members including family health, and friends. As to the evidence of defendant’s mental Dr. Rosenthal’s was, whole, on the rather Several prior testimony pallid apologetic. times he that he was not to condone or excuse defendant’s trying emphasized conduct, be but to “show ... the emotional also merely aspects might do Counsel’s decision to forgo involved someone to these leading things.” Wrest, 3 (People such a valid tactical choice. v. testimony represented 1115; 168, 186 Cal.4th at Darden v. All U.S. Wainwright [91 144, 160-161, 2464].) we fault counsel for L.Ed.2d 106 S.Ct. Nor may testimony. “Compe to find other more favorable failing experts present examina not demand that counsel seek repetitive tent does representation defendant until an is found who will offer a supportive tions of the expert (1988) 44 Cal.3d 945 Williams opinion.” [245 accord, 395]; (1992) Cal.4th Payton P.2d People 1035].) P.2d Cal.Rptr.2d trial counsel rendered constitutionally

Defendant also contends of Ruth King, failing testimony deficient representation impeach retrial, recalled a telephone mother. At the Mrs. King Erin King’s Just before of the murders. with her on the daughter day conversation want?” “Who are What do you? you she heard a voice disconnecting, say, me,” and it. You’re say, hurting She also heard someone “Stop and “Stop.” cross-examina Just shut During a male voice “Shut up. up.” muffled reply, tion, had not mentioned hearing Mrs. she why defense counsel asked King in her of this conversation” voice or the rest like a man’s “anything she had. thought that she Mrs. King responded at the testimony guilt phase. to failing impeach counsel was Defendant now contends that negligent There, she testified that from the trial. guilt with her testimony Mrs. King noises, but voices” she heard “some background before disconnecting just have counsel might not make out definite words. any Although could to her earlier testimony, more thoroughly by referring Mrs. impeached King such the decision to forgo impeachment we are not persuaded minimal, as the evidence were The benefits of such negligent. impeachment while she was on the broke into Erin’s trailer showed that defendant plainly neck, her tied her took her money, raped her grabbed up, telephone, Moreover, time her this was the last stabbed and shot to death. brutally Thus, could well to her counsel the victim’s mother ever spoke daughter. at not to minor relatively inconsistency have made a tactical choice press event, In we witness and antagonizing jury. any the risk of upsetting had effect on any no that counsel’s decision reasonable perceive probability Wrest, 3 Cal.4th at (People p. the verdict. v. rendered ineffective assist defendant contends that trial counsel

Finally, miscon to several instances of failing object alleged prosecutorial ance duct, crime slides and defendant’s confes taped the use of scene including statement, how that defendant demonstrate sion during opening request the Bible and the at community large hard he hit Ms. references to Siegel, victims, for the during closing argument, appeals sympathy personal counsel, crime scene attacks on defense as well to the use of failing object As discussed slides at the previously photographs autopsy penalty phase. however, (ante, 258-261), substantial merit— pp. only allegation any not references to and the Bible—was religion prosecutor’s improper have diminished the sense of reasonably sentencing respon likely jury’s Thus, or to have the court’s instructions. there is no sibility displaced reasonable in a favorable that counsel’s omission resulted less probability verdict. we defendant’s assertion that defense counsel’s over Accordingly, reject “

all in the was so deficient as ‘to undermine confidence performance ” 161, 342, (In (1988) outcome.’ re Cordero 46 Cal.3d [249 1370].) 756 P.2d

10. Death Constitutionality Penalty a host of to the challenges In defendant raised supplemental briefing, statute, of the death both on its face and as applied. constitutionality penalty We have considered and these rejected arguments. previously 846 P.2d 4 Cal.4th Zapien Cal.Rptr.2d 704] [failure [17 does not as or aggravating mitigating to characterize the factors unconstitutional]; (1992) 4 v. Alcala Cal.4th People render the statute to find need not be instructed 842 P.2d [jury Cal.Rptr.2d 1192] a reason circumstances beyond that the outweigh mitigating aggravating doubt]; 1075 [proportionality able 3 Cal.4th People Payton, supra, 272 (1990) 52 People

review is not Cal.3d constitutionally compelled]; Wright 731, 367, 802 P.2d court need not 445-446 give Cal.Rptr. 221] [trial [276 what is meant nature and circumstances of the instruction clarifying Fauber, offense]; 2 need not file Cal.4th [jury People factors relied on in reaching written as to which findings aggravating they verdict]; (1988) v. Keenan 46 Cal.3d People [250 to seek the P.2d discretion whether attorney deciding 1081] [district unconstitutional].) death is not Disposition

III.

The is affirmed its entirety. judgment Lucas, J., Panelli, J., Baxter, J., J., and concurred. George, C. MOSK, I concur the insofar as J., judgment and Concurring Dissenting. court as to death guilt, eligibility, it affirms the judgment superior review, otherwise.1 After I have found no reason do sentence. noncapital dissent, however, insofar as it affirms the judgment I from the judgment death. As I shall court as to the sentence of explain, the superior this question. misconduct bearing committed prosecutor prejudicial I to impose urged jury

In at the penalty phase, prosecutor summation in the Like William Jennings Bryan of death on defendant. the penalty trial, before argument a Bible into courtroom brought Scopes with these comments: table He throughout. opened it visible on counsel kept “Thou shalt not kill. where it came from. We all know

“We all know what that means. meaning. evident English language words have their plain existence rule ever came into such a why need to explain you “I don’t like this today. have to have rules we even or why I contrary. am discloses. of all that the record say approve Quite not that I 1This is defendant, violative of interrogation which was Detective Little’s especially critical of 974], 10 A.L.R.3d 86 S.Ct. U.S. 436 L.Ed.2d Miranda v. Arizona statement, it’s anymore talk since know if I wanna “I don’t Defendant’s progeny. and its know,” Certainly, killed, remain silent. right of his an invocation you seems someone like, uh, you thought I you response, His “Don’t understood the words. Detective Little so that?,” uh, “Well, not did you help, with don’t wanna Shelley?” and you liked said improper— an but clarification of defendant’s statement attempt to obtain proper constitute its withdrawal. successful—attempt to secure “We have like and then to because do he’s done things question people is: What do we do to them for it? that, case,

“But before I before I talk about this I think it’s get important for all you how we to where we are with today; starting appreciate got references, religious with Biblical references. principles; starting religious “None of you had on the like any religious serving reservations about jury this. But I still feel it is understand that what I’m important you going ask to do is with It you totally is keeping religious principles. totally with the of Christ or God or whatever beliefs have. keeping Spirit you has a rule like “Every society necessary it’s been developed just tribes; whether were whether were countries or small clans. they they major “There are references—it is Old we could all something accept—the Testament is full of references to the death full of references to the penalty, should, that one could do and or types things himself herself to subject death penalty.

“When Moses led the Jews out of the desert God him those com- gave mandments and those commandments were a combination of religious prin- the Jews were out to start on own had no ciples—because their and they more so were a government; codification or of both reli- they recognition and civil gious principles.

“And that’s see this why mixture of you religious commandments civil. Or in this case criminal commandments: Thou shalt not kill. that was them.

“Clearly among references, “There are as I mentioned to that of thou concept, concept shalt not kill and what if do the Old Testament: happens you throughout

“ who strikes a ‘Anyone man—[’]

“This is from the Book of Exodus.

“ who strikes a man and so causes death must die.’ ‘Anyone [szc], with an animal was death. “Beastiality fornicating punishable by “The Book of Leviticus had a similar or message concept.

“The Book ‘He who with an iron object of Numbers: had struck a person so as to cause death is a murderer and he to death.’ must be put

“The same was delivered with message respect somebody with striking instrument, with a instrument. stone wooden all “Now those are God’s law. were not man’s

“Those law. was days. “And the clear those message very who “There are feel that there are from messages coming people contrary the Old or the New Testament. wait out to I you,

“And rather for those point counsel] [than] [defense we what are to where are they want to tell are not you why they contrary here or where Jews were when from Moses. they got message today with “An for an You are all familiar that. eye. eye the idea that that “And think that the that was many rejoinder people life was somebody that couldn’t you impose punishment was not to imply mine Lord.’ sayeth is ‘Vengeance countermand, mine the Lord’ seems to ‘Vengeance sayeth

“It’s true is the idea that an for an was the eye appropriate punish- seems to offset eye wasn’t the ment. But that point. is mine’ it was when read on you subsequent ‘Vengeance

“Because authorities. But must submit to civil message clear that the was: you [jfc]. render unto that are Ceaser’s things “You must Ceaser [jz'c] about love and when on the scene and talked “The reason that Jesus came had that time the Romans estab- by for human was that beings compassion for fitting the law and so it rule. The Romans had established lished the for him to talk It was messages fitting deliver filled with compassion. him to it was to render to Ceaser But it clear that proper was also forgiveness. about laws, existence, And those were the [jzc] that are Ceaser’s the things [sic]. at the time. Mr. That’s those why like Wash. there’d be people

“God recognized throughout is why were That’s message commandments delivered. Old Testament. have done have if they what done and they be for

“Who must punished lives he’s done.” their for what he’s done must forfeit they like things then turned to the facts of the case. He did not renounce prosecutor Bible, theme. In the course of his he returned to religious argument, Moreover, once and several times expressly the Bible implication. kept itself on counsel table for all to see.

II In my concurring dissenting People Sandoval opinion 155, 200-201, Cal.4th 862], 841 P.2d certiorari Cal.Rptr.2d 28, 1993, granted sub nomine September (1993)_ Sandoval v. California 40], L.Ed.2d I S.Ct. set out the law that is U.S--[125 applicable to the facts of this case. I as follows: paraphrase

It is misconduct for a to invoke prosecutor law in purported religious of the of the support of imposition penalty death. of this

Argument sort of by representative the state offends California decisions, statutes and which judicial establish our secular law as positive, the rule the choice between life and governing death. It also violates the United States and California their Constitutions—including respective clauses concerning establishment of cruel and religion, unusual punishments, and due of process law.

It is well settled that not a role in the religion may play sentencing process.

The has a jury the law duty of the as apply jurisdiction given by court in whether the determining defendant should live or die. It not may on its own rely interpretation that law. Less still it may rely religious precepts. “law,”

The invocation of the command of no how well extrajudicial matter intentioned, is not permitted.

Indeed, the use of an “code” cannot be extrajudicial reconciled with the Amendment’s Eighth decision to death must be requirement any impose the result of discretion that is channeled and circum- carefully narrowly scribed the law of by secular law of the jurisdiction—the jurisdiction. Bible, course, is an “code.” Its commands and extrajudicial prohi- bitions cannot be viewed as mere of a culture from ours reliquiae separated because, thousands of miles and thousands This is years. many the Bible is an authoritative jurors, document. religious stated, As misconduct invocation of involving prosecutorial purported law of the of death imposition religious support penalty implicates It rule both California law and the United States Constitution. is the general for error under law that reversal prejudice California requires prejudice when, on the as in turn a reasonable of an effect outcome requires possibility here, the defect in a trial. is the Similarly, bears on it capital general rule for error under the United States Constitution that reversal requires in turn the government is unless shows prejudice presumed prejudice doubt. that the defect was harmless a reasonable The sort of beyond prose- misconduct identified above to be to the subject general cutorial appears Thus, concerned, state law is rule. insofar as “reasonable possibility” involved, is is standard Insofar as federal charter the “reasonable applied. doubt" test is employed.

Ill The we the law above to the that arises as turn to stated question apply of this case misconduct prejudicial facts is whether committed prosecutor comments the text. by making quoted merits, however, must Before we reach the we cross the threshold. may trial, for did not and has not It is evident that defendant raise preserved failed to a claim misconduct. He satisfy general of appeal, prosecutorial 112, 932, (1991) 54 People Cal.Rptr.2d rule v. Ashmus Cal.3d 976 (e.g., [2 admoni-, 214]) and misconduct for 820 P.2d of assignment request requiring can now and invoke no exception. tion as to the comments he challenges, Therefore, the question. he has “waived” we entitled that require that is not to

But means only “[t]hat [defendant] mean that we are somehow of It does not right. review as a matter point Plainly, impliedly, review mero motu. albeit barred from such ex undertaking results reverse a that judgment us to obligates the California Constitution stature less than constitutional a of rule of justice. Any from miscarriage is our us discharging duty to from [citations] be construed may prevent 1fn. (1992) Cal.4th to that v. Hill invalid extent.” Mosk, J.).) 984], (conc. of italics in original opn. P.2d Cal.Rptr.2d the merits themselves. reach contrary: they are not to the The majority fact, with the in line strictly In it is not remarkable. conclusion is My all Almost of error.” “plain doctrine well-established widely applicable court federal, of an authority appellate “recognize state jurisdictions, not was that error though even a error reverse on the basis of plain Israel, (3 raised and at the trial level.” LaFave & Crim- properly preserved Review, inal 26.5(d), Procedure of Rule Scope Appellate § 52(b) of the Federal Rules of Criminal Procedure is a statement of typical “Plain doctrine: errors or defects substantial be affecting rights may noticed were not to the attention of the although they brought court.” sure, of the error” doctrine is broad. To be purpose is “plain “[t]here in a number of language cases that the to notice error is saying power plain to be exercised when this is a clear only of necessary prevent miscarriage restrictive, This justice. seems too of the of the Clearly part purpose [[¶]] error rule is to If plain defendant. a serious protect injustice done him it should be remedied. . But . . this does not exhaust the purpose rule. Instead the court if is to act there were errors that affect the ‘seriously fairness, or integrity, public reputation It is judicial proceedings.’ impor tant that be done justice but it is also seem to be done. important justice ‘Even those of the most guilty heinous offenses are entitled to a fair trial.’ It man, is not a miscarriage convict a but if he is justice convicted guilty in a way inconsistent with the fairness and integrity judicial proceedings, then the courts should invoke the error rule in plain order to their protect own (3A public reputation.” (2d Federal Wright, Practice & Procedure ed. 1982) 338-341, Crim.Proc., fns. pp. omitted with Fed. Rules [dealing § 52(b), U.S.C.].) rule

It needs to be hardly stated that the notice error is “power plain ... one that the courts exercise”—and should exercise—“cautiously only (3A Procedure, exceptional circumstances.” Federal Wright, Practice & Proc., supra, p. fn. omitted with Fed. Rules [dealing § Grim. rule 52(b), U.S.C.].) For “federal courts have example, inter- consistently preted doctrine as an plain-error court to find that the requiring appellate claimed error not affected ‘substantial but that it only seriously rights,’ had an unfair (United on the prejudicial deliberations.” impact jury’s States 1, 17, 1, 13-14, Young 470 U.S. fn. 14 L.Ed.2d 105 S.Ct. 1038] [same].) here, If we should follow such an we would find what interpretation it The below will requires. analysis prove point. record,

On the face of the it is manifest that the very prosecutor engaged in misconduct. The majority agree. extensive,

In comments that were and plain, vigorous, prosecutor invoked law in of the purported religious support penalty imposition of death on defendant. The thrust of his remarks was that “God recognized there’d be like Mr. Wash”—and that God decreed such must people people be to death. Both the tone and content of words were put his unmistakable. “Christ”; “Jesus” and mentioned he referred to “God” and Time and again, “Testaments”; and the “Old” and “New” spoke the “Bible” and its “Books” atten- “references” and directed of “Biblical” and “religious” “principles”; “commandments”; Jews”; and “the cited “God’s law” tion to “Moses” and “an for an and its' “message” to the Bible’s of injunction eye eye” referred death; and quoted that the murderer must suffer quoted requoted kill,” kill,” not not “Thou shalt not “Thou shalt kill.” “Thou shalt again, reversal. The also manifest that the misconduct requires It is prosecutor’s conclusion, however, must facts. yield Their disagree. majority on defendant the before the was whether to jury impose The issue only without of parole. or life imprisonment possibility of death Indeed, both in and mitigation. evidence was substantial aggravation mistrial, in a as the original jury evidence had resulted similar previously deliberation, standing five of reach a verdict after days was unable to for life. three out holding with ultimately jurors law in comments invoking religious purported Obviously, prosecutor’s Just as obviously, on the penalty. favor of death bore directly question force, did ‘what as [they] have carried “incorporating remarks must special ” not Itself.’ Authority an source—if consider many authoritative Mosk, J.).) Sandoval, (conc. & dis. opn. Cal.4th at the opening comments were delivered that the It is true prosecutor’s But facts of the case. a review of the were followed by his summation and noted, Bible in the returned to the As of his remarks the effect perdured. for all to counsel table Bible itself on kept course of his argument, see. defense were challenged by comments that the

It is also true prosecutor’s were not efforts they counsel’s But despite in his own summation.2 counsel neutralized. of under the laws know, penalty proper is you the death . . told prosecutor] . 2“You [the analysis. made a Biblical scriptures and he back to the

God. He reached religious beliefs. by most today is condemned penalty death “The truth is: The person the applied against even as penalty; the death II has condemned “Pope Paul the John life. who tried to take his penalty. the death spoke against VI before him also Paul the “Pope many churches. leaders in by immoral the been called penalty has “The death in here Leaders in churches a has taken stand. of Churches Counsel [sz'c] “The National against it. a stand taken throughout California have synogogues and in [sz'c] California against it. has taken a stand Conference “California Catholic religious leaders? we make of this stand what do “So freely that God implies when he “Well, wrong is prosecutor] us that clearly, it shows [the Therefore, the misconduct raises a reasonable of possibility an adverse outcome, on effect the and cannot be declared harmless a beyond reasonable doubt.

In view of the we indeed must—reach foregoing, may—and the merits of the “waived” the question whether committed prosecutor miscon- prejudicial and, duct in so the resolve issue in the affirmative. Our failure to doing, act would subvert both and the justice of This is appearance justice. an certainly case that calls for our egregious intervention. As explained, prosecutor’s defendant, comments affected ‘substantial “seriously rights[]’” enjoyed by his federal and state including constitutional guaranties establish- concerning of law, ment cruel and religion, unusual and due punishments, process must be held an to have had “unfair on the prejudicial impact jury’s (United deliberations.” States v. Young, supra, 470 U.S. fn. 14 13-14].) L.Ed.2d at pp.

IV above, For the reasons I stated would set aside the sentence of death. KENNARD, J., Concurring and Dissenting. I join affirm majority ing conviction and judgment circumstances special this findings dissent, however, I case. as to penalty.

I conclude that the cannot be penalty this case upheld because of egregious prosecutorial misconduct and ineffective assistance of defense Here, counsel at the penalty phase defendant’s trial. in closing argument the prosecutor improperly urged the to sentence jury defendant death case, based a letter written the father of crime victim in an unrelated and relied on biblical extensively sources persuade jury deserved the of death. Defense counsel failed inexcusably object prosecutor’s clear and serious misconduct in urging basis religious for jury’s decision. The combined effect of these errors undermines any errors, reasonable confidence that absent these first defendant—whose pen- trial, errors, without alty phase these had in a ended have jury—would hung been sentenced to death.

Background Defendant was a ranch hand at the Sundial Ranch near Livermore from November 1983 to 1984. ranch was run February Siegel by Shelly sanctions the execution of Mr. Wash. Others much closer to God than will prosecutor] [the surely disagree with that.” ranch, husband, Durbin. After defendant work at the he her Philip quit return to the ranch and rob and shoot the discussed with a friend plan occupants.

When, 23, 1984, Durbin returned to the ranch from a on March Philip the bodies of his wife and the ranch business discovered two-day trip, defendant, hand Erin Both had been King. who had replaced 19-year-old Various shot to death. had also been and stabbed. raped repeatedly King items were semen evidence tied missing. Fingerprints electrophoretic to the crimes. Defendant was arrested and confessed. eventually

Discussion on Biblical Principles Based Argument

1. with a discussion closing argument lengthy The prosecutor began (three as they and one-half of biblical transcript pages) religious principles related to the death penalty. words, He

The with the “Thou shalt not kill.” quoted prosecutor began Exodus, and the of Numbers from the Book of the Book of Leviticus Book as summarized his religious supporting capital punishment. prosecutor there’d be like Mr. Wash. people discussion this “God way: recognized That’s that why message That’s those commandments were delivered. why Testament, be for what is the Old Who must punished they throughout [¶] must forfeit their have done and if have done like he’s done things they they lives for what he’s done.”1 court has recently was severe misconduct. As this

This argument stated, for “reference to Old Testament support unanimously prosecutor’s religious argument text is as follows: complete prosecutor’s 1The honor, counsel, what Thou shalt not kill. We all know gentlemen: ladies and “Your [¶] [¶] plain English evident it came from. The words have their We all know where means. rule ever came into existence explain you why I need to such a language meaning, don’t [¶] things today, people We have to because do to have rules like this why or we even have [¶] I get for it? But before then the is: What do we do to them question like he’s done and [¶] case, that, gotwe you appreciate all to how important I think it’s for before I talk about this references, starting religious with starting religious principles; with today; to where we are serving jury religious on the you any had reservations about references. None of Biblical [¶] going you to ask you understand that what I’m important feel it like this. But I still is Spirit totally keeping with the religious principles. It is totally keeping with do is like that Every society developed a rule you has whatever beliefs have. Christ or God or [¶] tribes; they major were countries or they were whether necessary whether just and it’s been accept—the Old Testament something we could all are references—it is small clans. There [¶] things that one types of penalty, full of references to the full of references to the death is When Moses led the should, penalty. herself to the death subject do and himself or could [¶] awere commandments him those commandments and those gave of the desert God Jews out they their own the Jews to start on religious principles—because were out combination of

281 an tends punishment to diminish the capital improper—such argument [is] another, sense of for its verdict to that jury’s responsibility imply higher cases, law should be the law in the applied capital displacing court’s (See, Commonwealth v. Chambers (1991) instructions. 528 Pa. 558 e.g., [599 630].)” 1088, (People Wrest (1992) A.2d v. 3 Cal.4th 1107 Cal.Rptr.2d [13 1020].) P.2d 839 The that the issue of was waived majority proposes misconduct because I object the defense failed to to it.2 that conclude defense counsel’s failure to no government; they had more a recognition religious so were codification or of both principles. why civil And you religious that’s see this mixture of commandments and civil. [¶] kill, Or in this Clearly case criminal commandments: Thou among shalt not that was them. [¶] references, mentioned],] There are I concept, concept as to that the of thou shalt not kill [¶] happens you throughout and what if ‘Anyone do the Old Testament: who strikes a man—’ [¶] Exodus, This is the ‘Anyone from Book of who strikes a man and so causes death must [¶] [¶] death, [sic], Beastiality fornicating die.’ an punishable by with animal was The Book [¶] [¶] of Leviticus a message concept, had similar or The Book of who Numbers: ‘He had struck [¶] person a with iron so object an as to cause death put is a murderer and to must be death.’ The same message was delivered with respect striking to with somebody a stone [¶] instrument, awith wooden Now are instrument. those all Those God’s law. were not [¶] [¶] message very man’s law. And the days. was clear in those There people are who feel [¶] [¶] contrary messages that there are coming from the Old or the New And Testament. rather [¶] wait for point to those I tell you, you they [than] [defense counsel] out to want to what are and they why contrary are not where today to we are here or where when they got the Jews were Moses, message the An eye eye. from an are all many for You familiar with And that. [¶] [¶] people rejoinder think that the to that the idea imply you was that that was not to that couldn’t impose punishment life somebody ‘Vengeance was sayeth is mine the Lord.’ It’s true [¶] ‘Vengeance countermand, that is mine sayeth Lord’ seems to seems to offset the idea that eye eye an for an appropriate punishment. point. But that wasn’t the Because [¶] you when subsequent ‘Vengeance read on it message is mine’ was clear that the was: But authorities, you must submit to civil things You must render unto Ceaser that are [¶] [ízc] Ceaser’s The that [ízc]. reason when Jesus came on the scene talked about love and [¶] compassion for human beings by was that that time the Romans had established the rule. Romans had messages established the law and so it was for him fitting to deliver filled with compassion. was fitting It for him to talk forgiveness. about But it was also that it was clear laws, proper render to Ceaser the things that are Ceaser’s And [sIc] those were [ízc]. time, existence, at recognized God there’d people why be like Mr. Wash. That’s those [¶] Testament, why were message throughout commandments That’s is the Old [¶] delivered. Who must punished they they things be for what have done done like and if have he’s done they must forfeit their lives for what he’s done.” general preserve 2The rule is prosecutorial a claim of misconduct for review on admonition; appeal, timely objection “the defense make at request must trial and an otherwise, the is if an point only reviewable admonition would not have cured the harm (1991) caused misconduct. Price 1 CalAth [Citation.]” [3 610].) Cal.Rptr.2d 821 P.2d is in with the Supreme Our rule accord United States Court’s “ may clearly observation that ‘some prejudicial occurrences trial be too for such curative (Caldwell mitigate Mississippi instruction to their effect....’” 472 U.S. 231, 245-246, 2633].) Although L.Ed.2d purporting S.Ct. find issue of the effective assistance of counsel guaranteed object deprived Amendment the United States Constitution. the Sixth by court has in order to amount to constitutionally As the high explained, assistance, an act or omission must fall below ineffective an attorney’s norms, under professional standard of reasonableness objective prevailing (Strickland, Wash resulted in to the defendant. must have prejudice 674, 693, 2052].) 104 S.Ct. ington (1984) 466 U.S. 687 L.Ed.2d [80 extensive argument Defense counsel’s failure to to the object prosecutor’s inex should be to death based on biblical is that defendant put principles to a we have stated that a failure object prosecutor’s cusable. Although v. Ghent (1987) establishes 43 “seldom” argument incompetence 1250]), in there could P.2d this case Cal.3d 739 [239 failure to to the tactical for counsel’s object be no legitimate justification here, biblical We cannot as say dramatic and specific argument. prosecutor’s Ghent, well have assumed that an could in may tactically we “[c]ounsel would draw closer attention or for admonition simply objection request Here, (Id. at the prosecutor’s the isolated comments.” p. prosecutor’s isolated, No but and fully developed. was not expansive religious argument the closer attention to this main theme of could have drawn any objection had drawn himself. that the argument prosecutor prosecutor’s notes, to the counsel “not failed to only object As the defense majority remarks, number of countered them citing religious but by prosecutor’s death (Maj. opn., his the argument against penalty.” authorities to support waived, religious argument majority the then improper on prosecutorial misconduct based engages lengthy of the merits of the claim. in a discussion harm, case, and thus this not have cured the probable that an admonition would In this it is despite counsel’s failure to prosecutorial misconduct defense question can reach the court when the by made defense counsel timely objection and admonition object. It is true that likely dispelled any have religious authorities would made his first references to prosecutor 630, 644].) (1991) But the (Contra, A.2d 528 Pa. [599 Commonwealth v. Chambers harm. references made religious end after the first counsel did not objection by for defense occasion going religious argument, developed prosecutor continued by prosecutor. the religion, quoting a number of biblical reference to beyond might have been a brief what religious theme of biblical finally linking the punishment, and approving capital passages stressing, “God jury specific with the task before penalty the death approval for things like done they done he’s Wash. . . have people [I]f be like Mr. . recognized there’d Thus, argument religious prosecutor’s their lives for what he’s done.” they must forfeit progressed religious argument inflammatory. prosecutor’s As the more progressively became for conclusion, opportunity additional presented reference an religious additional each to its futile; end, the cumulative been unquestionably would have any objection objection. By objection and by an dispelled could not have been religious references effect of the admonition. miscon- prosecutorial claim Accordingly, majority’s discussion merits of the resolution is erroneous. majority’s is the of the claim that proper. duct is It ante, 260.)3 at But it is to answer one improper impermissible argument not based on the or facts the law to the case with another applicable impermissible not based the facts or the law argument applicable case. A the death is no more religious argument against acceptable of a case than a penalty phase religious argument favor capital death (People 4 Cal.4th penalty. Sandoval Cal.Rptr.2d 342, 841 P.2d is is on objectionable religious reliance authority 862] [“What as or the death supporting opposing determination is to penalty. penalty be court, made reliance the by on instructions legal the not given by by to recourse extraneous Commonwealth v. Daniels authority.”]; Pa. [same].) A.2d Our courts are not ecclesiastical 404] courts, and our do not base their juries decisions on law no matter religious whom such law said be to favor. Because may arguments both the by and defense prosecutor counsel exceeded the of bounds inferences that may be drawn from the evidence and considerations that be may properly brought statute, to bear under the factors in death specified the both penalty argu- ments were It follows that defense improper. counsel’s decision to respond the on prosecutor’s religious by argument relying opposing religious cannot be considered authority legitimate choice tactical that would excuse his failure to object prosecutor’s the impermissible religious argument. above,

As noted a defendant who seeks establish that his or her Sixth Amendment to the effective right assistance of counsel was violated must show that defense counsel’s defective performance resulted I prejudice. will return to the of I question after discuss prejudice another related closely instance prosecutorial misconduct the during penalty phase closing argu- inment this case.

2. Improper Argument Based on Letter in Unrelated Case In trial, his at the closing argument this penalty phase capital earlier, not relied on I prosecution only religious as discussed authority, but also improperly urged to return a verdict of death jurors based know, argued: prosecutor] 3Defense counsel “You you told [the also death is proper under laws of He reached back Scriptures God. to the and he made Biblical beliefs, analysis, The truth is: The penalty today by religious death is condemned most [¶] [ft Pope John Paul the II has penalty; applied against person condemned the death even as life, who Pope tried to take spoke against Paul VI him also the- before death [¶] churches, penalty, The death penalty many has been called immoral the leaders in [¶] [¶] The National Counsel of Churches has taken a [sic] stand. Leaders churches here and in synogogues throughout California taken against California have a stand it. [sic] [¶] California Catholic against Conference has taken a stand it. . what . . So do we make of [¶] Well, this stand the religious clearly, leaders? prosecutor] wrong it shows us is [the [¶] implies when he that God freely sanctions execution of Mr. much closer Wash. Others prosecutor] disagree than surely God will with [the that.” notorious but unrelated criminal extraneous matters. After to a referring case, went on to tell the jurors: the prosecutor

“There has been a lot of criticism of the Court and most of it is system do done in too much well deserved. Much of what we is secrecy. People have no idea what on. goes it,

“And don’t realize but the twelve of who decide this case can you you about a statement. make a statement. And there is nothing wrong making be to him. And if there is a lesson to be learned The statement can directly else, or then so about be it. from else anybody by anybody take a now. . . .” “As can do You can jurors, you something. position he would read “a letter to judge The then announced that prosecutor Over defense objection, from a father whose son had been murdered . . . .” to the as of his argument: the read this letter aloud jurors part prosecutor “ the condition of our justice ‘There has been a furor in the media over here will not The decision made today system, particularly juvenile justice. can do and the friends of Rod Sullivan. Nothing ease the of the family pain is our that decision We are to live with it. But it learning hope today’s that. in and trust that we the community will back some of the confidence bring ” added, “And I want in then that’s all once had this system.’ prosecutor to do.” you the case or It was not based on the facts of

That was argument improper. facts, to the to jury to those but was a blatant appeal the law applicable that had to do nothing to death based on considerations sentence defendant re was constitutionally “individualized determination” the jury with the L.Ed.2d (Zant v. 462 U.S. Stephens to make. [77 quired in “furor 2733].) observation of a perceived S.Ct. The prosecutor’s “ irrelevant ‘totally over the condition of our justice system” the media ” (Johnson v. Missis to this defendant. sentencing applicable to the process’ 575, 584, 1981].) 108 S.Ct. L.Ed.2d (1988) 486 U.S. sippi [100 from People misconduct by quoting to sanitize this The majority attempts “Isolated, Ghent, brief references at 771: page 43 Cal.3d inflammatory, . . . although potentially retribution or community vengeance the do not form as such arguments misconduct so long do not constitute Ghent, of the death the penalty.” basis for advocating imposition principal however, no here. Our in has Ghent dealt with application opinion prosecu- torial references to retribution and community the outrage against particular case, defendant in not some more or “furor” generalized over outrage Moreover, the criminal the references in case justice system. this were neither nor isolated brief. The “send a theme prosecutor’s message” was an If, holds,' of his important closing as part argument. majority prosecutors can sentences of on urge death defendants based on the juries impose cases, of the criminal in perceived failings justice unrelated system individualized determination the United States Court has stated is Supreme is capital cases required effectively nullity. Prejudice

3. Analysis case, In this the combined effect defense counsel’s failure object prosecutor’s favor inflammatory argument death improper on penalty religious grounds, prosecutor’s equally inflammatory to the that it improper argument should return a death based jury verdict failure cases, of the criminal alleged justice other system require be verdict set aside. phase Under Strickland v. Washington, supra, 466 U.S. at page 694 L.Ed.2d 697-698], a defendant pages to establish seeking ineffec- constitutionally tive assistance of counsel “must show that there is a reasonable probability that, errors, but for counsel’s unprofessional the of result the proceeding would have been different. A reasonable is a suffi- probability probability cient to undermine confidence in the outcome.” As the court has high explained recently, the harmless error a court must make when a inquiry been has of other is deprived federally guaranteed rights “whether . the . . verdict rendered in this trial was actually surely unattributable to the (Sullivan U.S__[ Louisiana 124 L.Ed.2d [misconduct].” 188-189, view, 2081].) 113 S.Ct. In the my verdict in penalty phase this case cannot withstand scrutiny under standard. any

Here, the case in was not aggravation overwhelming. The circumstances were offenses But unquestionably brutal. the other only aggravating evidence was that had two for appellant prior convictions nonviolent crimes Thus, —nonresidential Indiana. we not burglaries—in do have an escalating series of violent crimes.

Defendant case in also presented mitigation that was not particularly it strong; consisted of his testimony members and family friends, and the bleak circumstances of his emphasized childhood. But the death was clearly not a conclusion in this is penalty foregone case. This the fact that at the first trial the

demonstrated penalty phase prosecution the evidence at the which was relied on presented guilt phase, essentially retrial, two identical to that at the and on the presented penalty phase prior trial, convictions for nonresidential At that first burglaries. prosecutor nor did not the death urge jury impose penalty religious grounds, did he to choose the ultimate on the basis of urge jury punishment failures of the criminal in unrelated cases. To the asserted justice system asked the to “remember prosecutor jury you’re only deciding contrary, because of what he did on March 21st what should happen [the defendant] deliberation, he is.” After five the first trial phase and who days (nine three). ended in a deadlocked jury circumstances, record, I and after examination of the cannot say

Under that, with reasonable confidence without the miscon- egregious prosecutor’s assistance, counsel’s ineffective would have duct defense jury I reverse the returned a verdict of death. would Accordingly, judgment death. Mosk, for a was denied 1994. rehearing January

Appellant’s petition Kennard, J., J., that the should be granted. were of opinion petition notes a On day receipt indicating initial deadlock. this occasion the reiterated its to reach jury a verdict and inability inquired as to how again long would be they deliberate. The required stated judge he would that declare a if the mistrial were to reach jurors unable a verdict the by Friday, following day. earlier, As noted informed the court on that it jury Friday remained deadlocked and the trial court declared a In mistrial. to a response question from the district the foreman that deputy attorney, indicated the final vote was nine to three in favor of the death penalty. motion, At the conclusion on defendant’s hearing double jeopardy Wolters that Judge ruled although Golde had acted Judge improperly contacting the he had jury, not abused his discretion in a declaring mistrial. Wolters that Judge noted had jury indicated that it was “quite strongly deadlocked” before Golde’s also Judge Judge contacts. Wolters improper defendant’s contention that the a rejected to declare mistrial if the promise remained deadlocked on jury Friday encouraged improperly jury or remain deadlocked caused cease it to deliberations. Rather than establish- deadline, observed, ing could Judge Judge Welter’s Golde’s statement as be an “just as extension time would readily interpreted Judge leave the . jury out to deliberate . . after it had indicated it effectively could ... in no reach a verdict way . . . .” Wolters Accordingly, Judge denied motion to enter former and dismiss the action. plea jeopardy Welter’s was correct. ex Judge ruling Although communications parte court between are and will not be jury clearly condoned improper v. Hawthorne 4 Cal.4th P.2d Cal.Rptr.2d 118]), the record does not substantiate defendant’s claim that the trial court’s “derailed” the from its deliberative misconduct caused the deadlock or jury sent a note informing On the third of deliberations day jury duties. they were “at an and that it was “inconceivable” impasse” court that they a second decision.” This was followed would “ever reach a unanimous verdict seem non-exis note for a unanimous virtually stating, “Prospects

Notes

notes conversations with defense Bradshaw v. Superior Court 2 Cal.3d 332 be P.2d not may 680] [defense to furnish a compelled statement of the of defense expected testimony Furthermore, witnesses].) even if the argument General’s had Attorney merit, to, it would where the defense intended and did in apply only clearly case, fact, call the in that the court’s order would question; affect expert fact, Here, however, not the ultimate of disclosure.15 only timing, Thus, defense decided not to call the ultimately prosecution witness. received an unwarranted windfall.16 Nevertheless, the error not was made plainly prejudicial. prosecutor notes, a few references to the and none only passing psychologist’s information was harmful. Ms. that Overbey’s defend- particularly speculation caused, ant’s behavior have his been toward mother may part, by anger was consistent with her direct that was severely ne- testimony to her glected his The same observation that she not parents. applies had like this Ms. Schaefer’s observa- overly surprised something happened. tion to Dr. defendant was to find a better life was Seligman trying hardly Thus, we discern no reasonable unwarranted damaging. possibility had the verdict. any disclosures effect on raises the claim that the disclosure Defendant related violated compelled due similar information process right “reciprocal discovery” However, it is that the possession prosecution. prosecution undisputed defendant with defendant cites no evidence of provided discovery; complete which was no nature withheld. Hence we violation any improperly perceive

notes the the the exposure surrounding Larry Singleton appear predicate media case but does not specifically error on this basis. failure “to introduce material a defendant’s comment upon prosecutorial not v. Szeto (People witnesses” is improper. evidence or to call logical 20, 652, 213]; v. People 623 P.2d (1981) Cal.Rptr. 29 Cal.3d 34 [171 Ratliff 705, 665].) 715 P.2d (1986) 41 Cal.Rptr. Cal.3d 691 [224 Thus, erred on the whole observing we do not find the prosecutor testimony support had failed to adduce expert psychiatric defendant the crimes. when he confessed to that he was and suicidal depressed claim belittled the (iii) that the improperly Defendant next asserts prosecutor record referred to matters outside the of defendant’s family testimony that, “There is not a death penalty several comments to the effect making The trial members of the won’t come in.” family case that on where goes and admonished the jury disregard court sustained defendant’s objections We that the heeded the references to matters outside the record. presume jury Green, (People supra, p. admonition and error was cured. v. Cal.3d any statement, 29.) “It We discern no in the subsequent impropriety prosecutor’s in and for shouldn’t be that a man’s could come family beg you surprising his life . The statement was confined to defendant’s own family, . . .” comment on the evidence. (People was within the broad range permissible 1197].) Frierson 808 P.2d v. 53 Cal.3d 748 [280 refer Defendant raises a similar about the complaint prosecutor’s crimes, ence to mother of Erin Before the prosecu King. describing I what I’ve tor told the “I want to realize one when jurors, you thing explain Erin’s mother has never heard what to her This' daughter. proven. happened her is to be the first time she’s heard what this man to.” subjected going he now there was no record evidence of what Although complains crimes, knew failed to on this object victim’s mother at trial. the issue is not ground Accordingly, cognizable appeal. 45 Cal.3d at Poggi, supra, the record or Nor did the refer to matters outside prosecutor impermissibly to think about jury exceed the bounds of comment permissible asking victim, Erin “did she “what was mind” of the King; what going through [the] Ruth, mother, talked .... Did she think about her to whom she had just know it was You think her brother’s undelivered birthday present? about [¶] Lewis, 50 Cal.3d there on the bed.” As we right explained People inviting argument a similar claim: “To the extent that rejecting victim, we have found such in the shoes of the themselves jurors put decides a there ‘the jury an at the because phase appeal appropriate facts, but on the jury’s which turns not on the only the resolution of question whether defendant should facts as reflect on moral assessment those they consider one of the most significant be to death. ... In this process, put Hence assessment is the nature of the crime. ations underlying [Citation.]

Case Details

Case Name: People v. Wash

Court Name: California Supreme Court

Date Published: Nov 18, 1993

Citation: 861 P.2d 1107

Docket Number: S004780. Crim. No. 26414

Court Abbreviation: Cal.