*1 Feb. S054569. [No. 2013.] PEOPLE,
THE Plaintiff and Respondent, WHALEN,
DANIEL LEE Defendant and Appellant.
Counsel Ellis, Court, A. Richard under for Defendant appointment by Supreme Appellant. Harris, General,
Bill Lockyer and Kamala D. Attorneys Robert R. Anderson Gillette, General, and Dane R. Chief Assistant Attorneys Jo Graves and Mary Farrell, General, Whalen, Michael P. Assistant Attorneys Patrick J. Carlos A. Nieto, General, Martinez Catherine Tennant Deputy Attorneys for Plain- tiff and Respondent.
Opinion
CANTIL-SAKAUYE, C. J. Lee jury found defendant Daniel Whalen A Code, 187, (Pen. (a))1 1994 first murder guilty degree subd. first § 212.5, Robbins, (§ (a)) of degree robbery subd. Sherman and found true the circumstance that the special allegation murder was committed during 190.2, (§ (a)(17)(i), (a)(17)(A)), course of former subd. now robbery subd. and the allegation that defendant used a firearm in the commission personally (§ 12022.5). offenses Defendant admitted he suffered three had prior 667, (§ (d)), serious convictions subd. served felony had four prior prison 667.5, trial, (§ (b)). terms subd. After returned verdict of undesignated statutory Hereafter references are to Penal Code. automatic defendant’s application The trial court denied death for the murder. 190.4, death sentence (e)), and (§ verdict subd. imposed modify and enhancements. and a term for the robbery the murder prison in its affirm the (§ (b).) judgment We is automatic. subd. This appeal entirety.
I. Facts brother, who for his sitting Robbins was house In March Sherman defendant and his accomplices, Late one evening, vacation. away *10 Fader, into the home by pretend- Lee and Melissa gained entry Michelle Joe The three took numerous been had broken down. driving the car had ing they house, he on a couch with and defendant shot Robbins as lay items from the charged, along back. Joe and Fader were initially his hands tied behind his defendant, and but each robbery, first murder degree with Robbins’s for her testimony against to lesser in charges exchange to agreed plead guilty trial, on the blame for the murder defendant.2 At defendant attempted place to corroborate was insufficient legally Joe and the evidence argued an defendant’s and attorney At testimony. penalty phase, accomplice desire for the jury impose defendant’s relayed jurors expressed expert defendant’s life. death but each made a case for penalty, sparing A. Guilt Phase case
1. The prosecution’s and investigation a. Background lived alone in normally an diabetic man who elderly Sherman Robbins was and were they in Modesto. Sherman was kind to “street people” apartment 1994, Sherman In mid-March at his for food or bath. welcome apartment Avenue in Bill’s house at 519 Nebraska was house at his brother sitting Alvina, wife, in Ireland. Bill’s Bill and his vacationed Modesto while Robbins, at the Ne- visited Sherman occasionally daughter-in-law, Shirley him blood tests. braska Avenue house and took for 19, house most was at the Nebraska Avenue Shirley On March Saturday, members, clean the A few yard. Sherman with other day family helping arming enhancement guilty robbery of Robbins with a vicarious pleaded Fader to the which she (§ (a)), years’ imprisonment, exchange up subd. in for a sentence of seven testified, guilty to the second testimony pleaded and in this case. Joe serving when she her was enhancement, exchange for arming degree robbery and of Robbins with a vicarious murder testified, her serving when she and years imprisonment, which she was a sentence of 16 to life testimony in this case. earlier, days had rented a to facilitate the family dumpster cleanup. noon, know, Around man a woman whom did not but who later Shirley Joe, were identified as and Michelle drove in an olive Johnny Long up green, late Ford 1960s of hours. Sherman Mustang, stayed couple cousin, introduced as his Sherman move a Joe Long Long pole. helped children, in the car with her three but went into the house at mostly stayed least once to water or to take her children to the bathroom. get
The next with Sherman on the about his day, Sunday, Shirley spoke phone doctor’s On March appointment Monday. Monday, Shirley’s daughter, Krista, arrived at the Nebraska Avenue house around 8:00 or a.m. to take 9:00 arrived, Sherman to the doctor. When Krista Joe was there going through while children told Krista that Joe’s Sherman dumpster, played yard. Joe was his cousin’s After Krista Sherman off for his girlfriend. dropped she informed that Joe had been at the house. Shirley Shirley appointment, directed back to the house and make sure the doors locked. Krista were go returned, doors, When Krista Joe was no there. Krista checked the but longer not the windows. As noticed Joe and driving she she leaving, Long up look,” in the Krista a but again green Mustang. They gave “dirty stopped Krista did not with them because Sherman had said could speak they stop *11 house, take some boxes from the and Krista assumed were they going house to retrieve the boxes. with Sherman between 7:00 9:00
Shirley spoke by phone p.m. The March she tried to call him several following Tuesday, evening. day, times but he did not answer. went to the Nebraska Avenue house early Wednesday morning.
Shirley When she she noticed two were in the Both driveway. pulled up, newspapers front door were Sensing something the screen door wooden open. on “wasn’t she entered the house and discovered Sherman’s dead right,” body arrived, called When the she told the couch. She 911. immediately police (Joe). them about and a woman with hair Long long Patrol Brian Markum Stanislaus Sheriff’s Officer County Department house, he found arrived at the scene about 8:00 a.m. Upon entering couch, There was a hole large Sherman’s on the surrounded blood. body Sherman was deceased in Sherman’s Markum determined right temple. secured the crime scene. New, the Stanislaus Sheriff’s County Depart-
Giles an investigator ment, became the a.m. and later that day arrived at the scene around 9:00 house, hole in the end of the he noticed a Inside investigator. principal couch, as well as head. Cotton material from inside couch near Sherman’s citizen’s identification were on the floor. Sherman’s senior shotgun pellets, in the bedroom. card was in a wallet on a bed second house, that a screen had been the exterior of the New found Examining of each of the two removed and on the below the windows ground placed window was in each bedrooms on the south side of the house. One open from the south leading bedroom. There a fresh trail in the wet high, grass at the end of the the house to an area 30 to 40 feet from the brush pile side of extended that extended from Nebraska Avenue. Tire tracks dirt road south and there were shoe tracks the dirt road and ended near the brush along pile, tires or shoes. in that area. None of the tracks were ever matched to any identification officer Dan Cron Stanislaus Sheriff’s County Department He deter- the crime scene and it for fingerprints. photographed processed mined that a latent taken window on the from the back bedroom palm print Fader. south side of house matched the rolled of Melissa print palm Miller of Justice Criminalist John recover Department shotgun helped and a “tom and chewed shell from the crime pellets 20-gauge shotgun up” scene. The were scattered all over the room in which Sherman’s pellets body couch, on the and a had in the near lay hole floor group pellets gouged the couch. in the Based measurements of the hole height gunshot head, arm of the couch near Sherman’s and the location of the hole gouged couch, the floor in relation fired at to the Miller determined the shot had been the floor. Miller further angle degrees relative to approximately concluded Sherman had been shot while in the in which his lying position was found. body later examined the Justice firearms Duane Lovaas
Department expert *12 crime shell scene. He discov- shotgun recovered from the pellets partial ered there were two sizes of and that the shell had striations pellets, it had travelled the barrel of a indicating through shotgun. Additionally, evidence, in the shell had not Based on this Lovaas con- powder ignited. cluded someone had loaded a shell behind a shell in a 12-gauge 20-gauge fired, and then shell 12-gauge shotgun 20-gauge through propelling bullet, barrel like a followed No firearm was 12-gauge pellets. given Lovaas for comparison.
On after found Sherman’s forensic Thursday, day Shirley body, pa- Thomas Beaver conducted an He determined cause thologist autopsy. head. death was a wound to the area of Sherman’s shotgun right temporal black, The around the wound indicated the shot material presence sooty was fired at close from within inches. Sherman’s hands were range, probably tied behind his back with a necktie. furrows tightly Ligature twill-patterned under bruising had the The absence on the skin under the tie same pattern. the soft cloth. there had been minimal struggle against the skin indicated had died 24 to 48 hours earlier. Beaver estimated Sherman Ireland, that a home from determined they Bill and Alvina returned When from .22-caliber rifle were missing and a 12-gauge shotgun Remington oven, a small a microwave cabinet. were a missing typewriter, Also gun set, large a peanut a CD a small Magnavox player, tape player, television been in the a Makita that had stored grinder butter full of jar pennies, exhibit No. an item Bill identified People’s bam behind the house. Makita post), (see grinder. as his in the murder investigation p. recovered arrest, his in Upon New arrested defendant 1994. April Investigator said, sooner or “I was to get picked up defendant expecting spontaneously noses.” to hide is under right your later. Sometimes the best place the murder surrounding b. Events Fader, testimony Joe and provided principal
Defendant’s accomplices, both testified about events Richie and Rick Saso John regarding killing. witnesses was consistent The of these killing. testimony before and after the had what each witness varied in its details and from but many respects, in some of these witnesses We set out the testimony said in statements. prior detail. John Richie
i. a from immunity prosecution grant John Richie testified pursuant Richie testified Sherman Robbins testimony. crimes associated with his when he was candy Richie to get brother and had taken was his aunt’s Joe; he had her Michelle protected with child. Richie also was acquainted beat her. who boyfriend, occasion from her former the events at several before years he first met defendant
Richie testified or two case, About month called “Butler’s Camp.” in this at a place issue Richie, Richie’s arrested, began living defendant before defendant Sisk, children in Richie’s apartment. and their girlfriend Kathy 21, 1994, drove to Richie’s apartment Joe of March morning On the *13 outside, followed defendant Richie and asked for defendant. green Mustang Richie commit a burglary. to her help Joe ask defendant where he overheard later. half-hour to an hour inside, in about a defendant came back went burglary, in the not to participate with defendant Richie “pleaded” it. he would not do Richie defendant assured Richie,
According Joe came to the before dark apartment again shortly and asked Richie to her child. Richie Joe left as it agreed. babysit getting darker, well, and defendant left as but Richie was not sure if left they Richie together. did not see either defendant or Joe until the following friend, returned, Richie had morning. to visit his Rick Saso. When he gone defendant and Joe at the were with various items a small apartment including set, oven, stereo, rifle, television a microwave computer typewriter, Fader, and a The shotgun. smelled like Sisk and Melissa shotgun gunpowder. before, whom Richie had not met were from a Fader counting pennies jar. claimed the were hers. Joe had “urinated herself’ and asked to use pennies shower, and Sisk Joe some gave fresh clothes wear.
Richie testified that he rode his bicycle to Saso’s home and told him there was some for sale at his property Saso followed Richie back to the apartment. in his car. apartment While the others bartered over the Richie went property, outside. At some Saso and asked Richie point, emerged him help put in his car. property Saso said he had traded an 3.75 “eight-ball”—about grams all of the Richie methamphetamine—for Saso load property. helped car, the items into the and Saso left. Back in the defendant apartment, gave Richie of his share of the part with Joe methamphetamine, they, along Fader, in use of the “indulged” Fader and Joe then left as it was drug. getting light outside. Richie,
According over the next few defendant seemed nervous and days watched the At some defendant volunteered to Richie that newspapers. point, he had killed a man. Defendant said he had tied the man “told him to up, ‘get ” minute,’ with right God and he would be back in a and then shot him. Defendant also said that he and Joe had about the argued which the way victim towas die. Joe wanted the victim smothered because it be would “ but quieter, defendant said that until he ‘wrestling died [the victim] ” would have been more of a torture than him.’ Defendant shooting did he say had killed the man. why When Richie asked defendant how he could do such a defendant said thing, “it was nothing, couldn’t get conversation, emotionally one, involved.” Either this or a during subsequent Richie asked defendant to leave the apartment.
Richie further testified that at some after his arrest defendant wrote point Richie, Richie a letter from jail. According the second of the third sentence “ of the letter both Michelle and paragraph began, Melissa telling ‘[W]ith letter, me ....’” In the defendant did not that what Joe and Fader deny were about him was true. saying
ii. Melissa Fader in a her In March Melissa Fader was trailer in Modesto behind living inend, Joe, On March Fader’s Michelle landlady Nellie Thompson. her new around Mustang boyfriend, Johnny with stopped green Long, while, A or and chatted Fader for a then left. 10:30 11:00 a.m. with couple later, hours drove with her but again Mustang daughter Crystal, Joe up without told Fader she had told she needed to borrow the car Long. Long Joe to take Fader the1 and Fader then cruised around in the hospital. to Joe for an hour or two to “score some “crank” Mustang trying dope”—meaning Fader off at they were unsuccessful. Joe methamphetamine—but dropped her trailer and left. Fader, 11:00 that she next saw Joe around 10:30 or
According p.m. to Fader was with her fighting had been several crank and night. up days Joe had locked her in the trailer with a Fader told boyfriend, who padlock. and with her. Fader she wanted to Joe invited Fader to come get away, window, clothes could later if change climbed out the some so she taking necessary. defendant Mustang,
Fader testified that when she in the backseat of the got met once Both was in the seat. Fader had defendant before. front passenger Joe, on, had who driving, defendant and had but Fader none. gloves Joe to where home.3 The told Fader were rob a house no one was going plan they house, take leave. Joe to the house at 519 was to enter the and drove things, Joe walked the house driveway. up Nebraska Avenue and into pulled then drove around determined an old man was inside. sleeping They and house, but were unsuccessful.4 way They to find a back into the trying near a brush parked pile. returned the house man, Fader, him the old tell Joe announced wake According plan down, and could spend night. car had ask if she Fader her broken house, a tool from a shed Joe to the defendant retrieved While walked up minutes, five Joe it in the car’s trunk. After about behind house and put “ ” said, defendant wait 15 Joe instructed returned to the car and ‘let’s go.’ minutes; in, let them and then to the house. Sherman she and Fader walked Fader a Sherman offered beer. Joe to use the while phone Joe pretended said the reach Sherman women by phone. claimed to be unable to anyone at home. He showed told them to make themselves could stay night cross-examination, morning had told her that Fader contradicted herself said Joe On house. sitting be at the Nebraska Avenue Long’s uncle was house and would yards Avenue house testified neighbor about 300 south Nebraska A who lived 21, 1994, yard, green Mustang three inside drove into his night people late at on March U-turn, dogs barking. were made a and left as
them to a bedroom and left them alone. Joe then instructed Fader to back go so, out and talk to Sherman. Fader did then took a bath and made a sandwich. sofa, she fell on the Eventually, small and Sherman fell on the asleep asleep large sofa. a.m.,
At 3:30 Fader she to find awoke defendant over explained, standing Sherman, a at him and pointing large gun to know where loudly demanding he his wallet. Sherman answered kept the wallet was in a box in the bedroom. refused, Defendant ordered Fader to tie Sherman. When Fader defendant up “ ” the gun at her and said pointed do it.’ Defendant ‘you’re gonna handed Fader a necktie and told Sherman to his hands behind his back. Fader tied put hands, first, Sherman’s at but loosely defendant ordered her tie them tighter. Defendant seemed whereas earlier in the angry, his had evening mood been “civil.” leave, Fader testified that she told defendant she wanted to but defendant “ ” nowhere,’
said ‘you ain’t going and ordered her to grab microwave oven and Fader typewriter. took those items car and returned through door. sliding glass Sherman was on his stomach on the sofa with lying defendant over standing bedroom, him. Fader found Joe in the second going leave, Sherman’s through wallet. Fader said she wanted to and Joe told her to window, out go which she did. Joe handed Fader some items—including a “radio” or “stereo” and window, a large jar pennies—through Fader took them to the car. Joe from the emerged house and more items put in the car. Together Fader and Joe then loaded a few more that had things been outside the piled seat, window into the car. Joe then in the got driver’s and Fader in the got backseat. Fader, minutes, after
According about five the women heard a gunshot. Defendant from the emerged house carrying which he in the shotgun, put “ ” said, trunk. He in the got car and ‘let’s out of here.’ get Joe informed him there was another gun in the house. Defendant returned to the house retrieved a second gun, which Fader described as that could “long gun” have been a rifle. Defendant in the trunk and put gun back in the car. got Joe then drove away. testified,
At Estates, defendant’s Fader suggestion, drove to Prescott they where defendant tried to sell the stolen unsuccessfully property. Eventually they arrived at Richie’s Fader was not apartment. Richie or acquainted Joe, at that time. apartment who had urinated in her took shower pants, into some fresh changed clothes by Richie’s Sisk. provided girlfriend, Fader and defendant went into the bathroom and some crank. Fader ingested then went into the bedroom and started counting from the taken pennies jar from the Nebraska Avenue house. Fader, two men showed up purchase
According apartment After a counting pennies. stolen while Fader in the bedroom stayed property while, had they gotten “eight-ball” Joe entered bedroom and said bedroom, When Fader the crank emerged crank all of items. from received a or half a gram gram. divided Fader being up. *16 the bathroom and ingested Fader testified that she and defendant went into to continued and counting more crank. Fader then returned the bedroom and into bedroom and wanted to Defendant followed her the rolling pennies. “under force” because she “mess around.” Fader did not want to but complied outside, Afterwards, light when it Joe getting was afraid of defendant. was and her not to tell what had anyone happened took Fader home instructed the Avenue house. Nebraska home, crank, her share of the
Fader that when she arrived she had testified the to grinder $4 Fader tried to sell Nellie about in and grinder. pennies, $5 but Fader did want the gave $5. for Thompson Thompson grinder, later, a week the on About Thompson’s Fader anyway. put grinder porch. her she the day got grinder. Fader told defendant had the raped Thompson had from exhibit No. 56 as the she obtained grinder Fader identified People’s the and left on Thompson’s robbery porch.5
iii. Michelle Joe crime, before the and had Fader for about six years Joe testified she known the week During met in at Richie’s apartment. first defendant March 1994 murder, three Avenue house or had been to the Nebraska the she preceding time, she At and had entered the house once twice. four times had using been of methamphetamine per day about 1.5 using grams three the past years. Joe, she first went with the of March morning to on
According then through stopped house to go dumpster, to the Nebraska Avenue Long She concocted a on back to way Long’s Fader’s trailer apartment. to order to lend get Long to Fader to the needing hospital about take story Fader she picked up some ingesting methamphetamine, her his car. After trying few unsuccessfully drove around for a hours they the afternoon and trailer, at her Joe obtained some After Fader off obtain more. dropping Saso, it, until after and rode around from Rick ingested methamphetamine dark. about grinder and had told her tried to sell her Thompson confirmed Fader had grinder. came and took
alleged rape. point, police At some Joe she ended at Richie’s She encoun-
Eventually, explained, up apartment. tered Richie outside the asked if defendant was there. Defend- apartment ant came asked defendant her out sat in car with Joe. Joe to help home; commit a if would be Joe burglary. Defendant asked anyone responded left, she did not think so. Defendant Joe and returned a short agreed help. while later. Someone Joe a and defendant obtained gave pair gloves, too. gloves Joe, trailer, she drove
According with defendant Fader’s which was window, theAt Joe Fader padlocked. invited Fader to help burglary. door, handed Joe a to the and Joe Fader to key padlock, opened allowing Fader, leave. who was because she had been upset boy- with her arguing friend, a tote in the backseat brought along bag got Mustang.
Joe drove she Nebraska Avenue house and explained parked *17 the dirt road near a the branches. She went to house to see if pile up anyone was there. After in the living room window and looking seeing couch, Sherman on asleep she returned the car and to informed the others. in, They then drove around for a back drove looking way into someone’s around, heard a driveway, and dog barking, turned came back to the Nebraska Avenue house. At some during this point defendant went to area period, house, saw, behind the retrieved a chain and it in the put Mustang. Joe testified that she came awith to the car up pretend had broken plan down. Joe and Fader walked to the together house and knocked on the up answered, door sliding glass while defendant waited in back. When Sherman Joe explained were car and they having trouble asked to use the phone; inside, Sherman Once agreed. Joe faked a call to phone Long, telling Sherman she was unable to reach him. Sherman to allow the women agreed to stay night. The three talked for a and while had some drinks. Sherman then showed Joe to a bedroom. While Fader and Sherman continued talking room, in the Joe living emerged from the bedroom a to check times couple on them get and a or a cigarette water. Fader on the and glass was loveseat eat, Sherman on the was couch. Fader to fix herself to took got up something bath, time, a and went to the back room. After a living Fader and Sherman fell Joe then turned on the bedroom as a and asleep. light signal, defendant climbed in bedroom window.6 Joe and defendant went through drawers and a bedroom CD and a set. unplugged television player room, Joe that she went to the explained family back determined Fader and Sherman were still and asleep, returned to the bedroom. Defendant left the cross-examination, On Joe testified one defendant came in window to two hours earlier stayed and in the Fader asleep. bedroom until and Sherman fell slammed, heard a “ruckus”—something opened bedroom. She then defendant, someone was When she she saw who shouting. emerged, a as he on shotgun, lay like a in front Sherman holding large gun standing box” to steal. Joe a bedroom and a “boom unplugged the couch. went into to tie something Fader came in and told her defendant wanted her find up at found a gun defendant had her. Fader Sherman with. Fader said pointed into defendant standing necktie and left. Joe went room saw dining Sherman, he wallet. Sherman said over to know where his demanding kept wallet from a box in green the wallet was in the bedroom. Joe retrieved the it, and, handed it to Fader. the bedroom without opening the car. She moved the car that defendant instructed her get Joe testified returned, still near When she defendant was into the the house. driveway Sherman, tied the couch. Defendant over who was standing lying up the items had into they gathered Joe and Fader load commanded angrily through the car. told defendant she was afraid did want go Joe her stuff his voice and told to just get but defendant raised burglary, items, including several the car. Joe and Fader putting into complied, oven, box,” Joe and a microwave into car.7 When “boom typewriter house, kill if he was Sherman. going returned to the she asked defendant but very Defendant said “no” seemed upset. outside, Fader was already that when she went back
Joe explained Fader, She car she heard a gunshot. car. As Joe was the rear door opening carrying gun, Defendant from the house emerged and Fader in the car. got *18 car, gun, and a second in then returned to the house retrieved gun the the put the he side in car. which also his placed testified, Estates. On she drove to Prescott
At defendant’s Joe suggestion, Sherman; killed defendant responded asked defendant if he had way, the Joe Estates, to tried sell the unsuccessfully At defendant he had not. Prescott took Joe the three returned to Richie’s apartment. Eventually, stolen property. while had urinated in her pants, clothes because she changed a shower and unloaded the Richie and defendant in the bedroom. pennies Fader counted Joe after emerged and them inside. When brought from the car stolen items to Rick Saso. shower, in the kitchen talking and Richie were her defendant was on methamphetamine was the kitchen table. Some The stolen property counter; a razor blade. up men were it with dividing the mirror on defendant, and she to methamphetamine Saso some gave Joe testified that into the bedroom She took her share of drug. received about gram Joe, opened window. Fader go her to out the According Fader said defendant wanted handing window, through it. Joe had no recollection if Fader left but Joe could not recall through the throwing property window. stolen bedroom, some of it. When from
ingested only she Saso was emerged Joe there. told Saso she defendant have killed someone. Saso thought might Joe left got up, kissed without Joe then saw Fader saying anything. defendant come in from outside and into the bedroom. Fader came go When bedroom, home, out her which she asked Joe take Joe did.
iv. Rick Saso Rick Anthony Saso testified from grant immunity pursuant prosecu- tion crimes associated with his Saso testified that in 1994 testimony. used, he and made He met living selling, his first defendant at Richie’s drugs. Joe; Saso also apartment. was she had sex with acquainted occasionally in exchange him for drugs.
Saso that one explained night, Richie came to he Saso’s said apartment had some guns sell. Saso drove to it Richie’s as was getting apartment outside, light some for the if bringing along drugs guns guns exchange Sisk, children, were “nice.” When he arrived at Richie’s Richie’s apartment, defendant, Joe and another woman whom Saso had not met before were there; Richie arrived a few minutes Joe later. around the house pacing scared; and seemed the other woman sat in the kitchen. Defendant remained bedroom while Saso negotiated with others regarding price hour, guns. After an about defendant Saso offered defendant emerged. of an 1/16 ounce of for the but methamphetamine guns, defendant demanded an “eight-ball.” Saso “a eventually “cheated” defendant little bit” and gave 1.5 him is grams, which less than 1/16 The ounce. value of the drugs $70. was about Richie wrapped up guns and them Saso’s car. put later, About a week Saso sold the guns after Richie told him had defendant used them to shoot someone.
2. The case defense Nellie testified she had Thompson assisted Fader with SSI obtaining *19 benefits, (Supplemental Income) Security disability based on Fader’s drug addiction and her mental status. In had Fader the mental Thompson’s opinion, a ability of 12 year old. According after article in Thompson, appeared Patterson, a about the a newspaper killing of man in told Fader Thompson she, Joe, in that October and Joe’s had to a house in ex-boyfriend gone the some country things. taken Fader told a that when Thompson dog barked, she had into the car the window jumped through and cut her leg. murder, According when Fader heard about the Thompson, Patterson she “ exclaimed, ‘Oh I shot my god, thought the said shot they dog. They they ” said dog.’ Fader told her about Thompson this incident three to four months before she being mentioned by defendant. raped Nellie Alan Peacock testified he first interviewed investigator Defense told him or He recounted that never August Thompson in 1994. Thompson defendant. by his office that Fader had being member of reported raped Instead, said, in mentioned the was alleged rape he the first time Thompson before she testified for the hallway just prosecution. statements prior
The entered into several stipulations regarding parties witnesses, following: including prosecution law enforcement that had urinated on herself on
Joe never told she of the murder. night exchange did in the bargaining
Fader told Detective New that Joe all went to the Fader said she and defendant drugs. of the stolen for property was store; the stolen back to Richie’s apartment property when came they three Fader further ways. and Joe had an which gone “eight-ball,” they split the crime. Fader thought Joe her to “take for said that instructed [rap]” the one he had the and was guns defendant should “take the because [rap]” this shit.” “doing Joe after defendant and days
Richie told Viohl few Detective he had to leave because defendant told Richie he guns, obtained stolen also said there was (defendant) Richie’s Defendant family. was endangering last had This was the guns. at the where obtained they “drunkard” house Avenue about the events at Nebraska time defendant to Richie spoke house. exchange Richie the gave dope told Detective Valdez that he
Saso next he for more guns dope day. and that sold guns, 3. Rebuttal man of an elderly had checked for reports
Detective testified he New He found there in October 1993. dog a rural area where was killed in being no such occurrence. Penalty Phase
B. case aggravation
1. The prosecution’s Ceres America’s as a teller Bank of Kennedy working Sharon into came on that defendant day, She testified that branch on 1988. May *20 teller, and bank, of another Frances Passalaqua, to the window went said, immediately is Kennedy “This a robbery.” her a note that handed door, a pushed button. Defendant turned and ran out the “panic” bumping into a customer on the out. way Kennedy gun did see a and was nobody shot. Frances testified but she could Passalaqua consistently Kennedy, not identify the robber. She did not give robber any money.
The On parties defendant had sustained several convictions. stipulated 15, 1971, defendant April was convicted of armed and assault with a robbery a deadly weapon on officer. He was sentenced to and police released prison 5, 17, 1976, on June 1975. On March defendant He was convicted of robbery. 16, 1980, 16, was sentenced to and released On prison May January 1979. defendant was convicted of of a firearm a felon. He was possession 8, 1989, sentenced to 29, and prison released on November On 1985. March 26, 1988, defendant was convicted of the of May robbery Frances attempted He was sentenced to Passalaqua. released on November prison 1993. 2. The case defense
Defense investigator Alan he Peacock testified had conducted an investiga- tion into defendant’s had background but found no one who could serve as a “social historian” for defendant. Defendant’s was “nonexistent.” family died, Defendant’s father and sister had and he never knew his natural mother. Defendant had one close friend whom he daughter was “adamant” about not in involving his case. Peacock did not know defendant’s stepmoth- Peacock, er’s name. According to what was known about defendant’s social came history from his California of Corrections records. Defend- Department ant had been criminal involved in the since justice system age when he had assaulted his father. The records documented an “extended substances,” alcohol, of abuse of history controlled including methamphet- amine, heroin, Defendant, marijuana, other street drugs. who was trial, old at years the time of had adult spent most his life in a locked His facility. months, out of longest period confinement was 18 which during he absconded from parole.
Officer James Park had retired from California Department Correc- tions after as its chief of He serving many classification testified years. that if defendant were life sentenced to in without the prison possibility parole, he would be 4” automatically classified as “Level meaning prisoner, he would be to the level subject highest security general prison In a population.8 Level were double-celled in prison, prisoners eight-by-10- foot cells surrounding station. There guard gun were visible from each ports cell, “a rifle be to bear ... of the cells brought anywhere front [could] unit, SHU, Only prisoners security housing in the subject tighter security. or would be The gang SHU reserved for prisoners known leaders and other who were assaultive manage. difficult to *21 24 behavior and good the exercise area.” Prisoners could earn for privileges
or in if had the funds. Prisoners items such as television sets they could purchase money. that saved the state worked to generally produce products work records and and disciplinary Park had reviewed defendant’s prison to be told Park that he wanted sentenced had with him. Defendant spoken however, death; life that if sentenced to without possibility Park believed and become a useful Accord- prisoner. defendant would “settle down” parole, Park, with staff and had gotten had well along in the defendant ing past to work. Defendant but had refused occasionally done work in good prison, defendant had several times. For example, also received commendations a razor who confronted inmate with being by two officers were helped a blade, to work during to new volunteered adjust jobs, other prisoners helped lockdown, a had to collect forgotten in a knife that supervisor and turned from him. wine, a times homemade having had into trouble few for
Defendant gotten suicide, had failed to work had once attempted report called He “pruno.” On the times, from a window. and once had refused to remove towel four occasion, had cursed, Defendant also been he but there was no violence. latter unscrew the cover wrench that could be used to written for possessing up outlet, could be hidden. where contraband on an electrical in their 40’s 50’s— life those prisoners—particularly Park noted that in the prison because their interest stabilizing were considered a force remaining quiet.
II. Discussion Issues Jury Selection
A. cause Challenges
1. for selection and of error related several claims Defendant makes in Wainwright for exclusion set forth of the standard trial court’s application (Witt) Witt L.Ed.2d 105 S.Ct. U.S. 412 (1985) 844] [83 776, 88 S.Ct. v. Illinois Witherspoon (1968) U.S. 510 L.Ed.2d 1770] (Witherspoon). court exhibited pro-death-penalty claims the trial Defendant excuse for refused to erroneously jurors, bias questioning prospective the death penalty, their views regarding based on jurors cause prospective based primarily cause two prospective jurors erred excusing these errors Defendant claims a questionnaire. written answers their biased jurors and otherwise composed in a jury pro-death resulted trial, to the to a fair impartial jury, to a fair and rights violated his *22 innocence, self-incrimination, of to freedom to the presumption from effective counsel, law, assistance due of and a of reliable process guilt Sixth, Fifth, determination the penalty guaranteed by Eighth and Fourteenth Amendments to the United Constitution and States parallel provisions post, California Constitution. For the reasons discussed we conclude defend- are ant’s claims without merit.
a. Legal principles We summarized the “A recently governing principles; prospective juror’s views the death not personal concerning do afford necessarily (Uttecht v. Brown a basis for excusing for bias in a juror case. capital 1, (Uttecht) (2007) 1014, 551 U.S. 6 L.Ed.2d 127 S.Ct. [167 2218] [‘ “[a] it, man who the death no less than one opposes penalty, who favors can make State,” the discretionary judgment entrusted to him . . by .’].) [citation] Rather, achieve the constitutional imperative impartiality, ‘[t]o law permits juror be prospective for cause if his or her challenged only views or favor of against capital punishment “would or ‘prevent substantially ” his . . impair . duties as a performance in accordance with the juror’ v. Blair (People court’s instructions oath.’ juror’s (2005) 36 Cal.4th Witt, 686, 485, 1145], 741 supra, 469 115 P.3d Cal.Rptr.3d [31 U.S. at quoting standard, 424.) Under this p. is excluded in prospective juror properly if he case or she capital is unable follow the trial court’s instructions ‘conscientiously alternatives, consider all sentencing including (People McWhorter death penalty where v. appropriate. (2009) 47 [Citations.]’ 318, 412, Cal.4th 340 692]; Jenkins 212 Cal.Rptr.3d P.3d see [97 v. (2000) 900, 377, 22 Cal.4th (Jenkins).) 987 997 P.2d Cal.Rptr.2d [95 1044] The analysis is the same whether the claim is the failure to exclude bias, who prospective jurors exhibited a or prodeath exclusion wrongful jurors who v. People Hoyos prospective exhibited an (See antideath bias. 872, (2007) (People 1, 41 Cal.4th 906 528].)” 162 P.3d Cal.Rptr.3d [63 v. Jones (2012) 1, 383, Cal.4th 40-41 496].) 275 P.3d [140 Cal.Rptr.3d dire, voir
“During jurors commonly or supply conflicting equivocal directed responses questions at their bias or to serve. potential incapacity When court, such or conflicting answers are equivocal the trial given, through its observation of the juror’s demeanor as well as through its evaluation of verbal juror’s is best suited to reach a responses, conclusion regarding v. (People Hamilton juror’s 863, actual state of mind. (2009) Cal.4th ‘ “ (Hamilton).) 286, 200 P.3d Cal.Rptr.3d ‘There [89 is no 898] requirement that a juror’s against bias the death prospective be proven Rather, unmistakable it clarity. is sufficient that the trial is judge [Citations.] left with the definite that a would be impression prospective juror unable to ” ’ faithfully impartially apply law the case before the juror.’ (2007) Cal.Rptr.3d Abilez 41 Cal.4th 497-498 be even in the 58].) finding may upheld 161 P.3d ‘[T]he [trial court’s] or is because from the that he she juror impaired absence of clear statements to reach enough point veniremen cannot be asked questions “many simply clear’; these veniremen may has made ‘unmistakably where their bias been sentence, the death know how react when faced with they imposing will articulate, their true feelings.” or wish to hide may be unable to may Thus, state juror’s in the prospective when there is ambiguity [Citation.] court, ments, as its assessment undoubtedly “the trial aided it [the [is] *23 ’ demeanor, of State.” it in favor the entitled resolve venireman’s] [is] Jones, 7.)” (People supra, (Uttecht, supra, 54 Cal.4th at v. 551 U.S. at p. 41.) p. for abuse bias is reviewed juror determination concerning
“A trial court’s
Abilez,
v.
(People
supra,
497-498.)
41
at
‘[Appel
Cal.4th
pp.
of discretion.
with a
observes and speaks
that a trial
who
judge
late courts recognize
among other
(noting,
responses
and hears that
juror
person’s
prospective
voice,
confidence, and de
of
tone of
level
the person’s
apparent
things,
on the
does not
meanor),
appear
valuable information
simply
gleans
656,
425,
v.
(People
Stewart
(2004) 33 Cal.4th
451
Cal.Rptr.3d
[15
record.’
(Stewart).)
such,
must defer to
‘the
court
reviewing
generally
As
P.3d
93
271]
has the “definite
the
and who
juror,
who
and hears
prospective
the
sees
judge
biased,
views.’
a failure
clear
express
he is
despite
impression”
467,
970,
and Oliver
v. Lewis
(People
(2006)
Cal.Rptr.3d
39 Cal.4th
1007
[47
Uttecht,
Oliver);
(Lewis
supra,
and
U.S. at
9
p.
551
see
b. Factual background outset, Jury selection in the At proceeded following manner. court gave the entire oral panel brief prospective jurors explanation defendant, trial, charges against of a death stages duties of penalty juror, and the selection. All were process who prospective jurors excused for then filled out a hardship of 122 30-page questionnaire comprised Questions questions. through Nos. 9 32 and 87 to 88 were prefaced by of a explanation death trial and on the phases focused beliefs about and prospective jurors’ attitudes toward the death their set ability to aside those beliefs and follow law. Other questions involved such matters as prospective jurors’ coverage media exposure case, about attitudes toward familiarity with and attitudes plea bargaining, toward drug alcohol addiction and and educa- psychological testimony, tional, employment family background.
After out the filling questionnaires, underwent oral prospective jurors voir dire. Before this announced process began, court it intended to *24 itself, conduct most of the but would allow questioning counsel to ask appropriate The followup were the questions. prospective into jurors brought courtroom in of between 14 and 17 groups individuals. The court first questioned each as a whole group some regarding matters. preliminary not Prospective jurors excused during were then group questioning ques- tioned the individually, outside of the other presence Of prospective jurors. the manner, 158 prospective jurors questioned in this 73 were excused for cause or on the basis of hardship.
The court then generated random list the remaining prospective jurors, which was to counsel. Twelve supplied jurors were called the prospective box, order on the random list and appearing seated in the and jury parties, commenced exercising challenges, between the peremptory alternating pros- excused, ecution the defense. When a was the next prospective juror individual on random was appearing list seated in his or place her until both sides were satisfied with 12 jurors selected. This was process for the four repeated alternate jurors. Defendant exercised 16 of his 20 allotted to challenges peremptory regular and none of his four jurors allotted to the peremptory challenges alternate The jurors. prosecutor exer- cised 15 to the peremptory challenges regular jurors and four as to the alternates. Defendant not did additional request peremptory challenges to the object and alternates jurors sworn. ultimately
c. Asserted trial court bias voir dire Defendant first asserts trial court intervened in voir dire repeatedly who, to rehabilitate questioning death-leaning jurors basis prospective to defense chal- subject of their would have been responses, questionnaire leading suggestive for cause. He the court’s lenges argues questions bias, rather to designed were not to ferret out but these prospective jurors their and hide have the jurors change questionnaire responses prospective contrast, ex- In he were urges, life-leaning jurors their biases. prospective at rehabilitation. without extensive efforts cused after cursory questioning death-leaning prospec- He the court’s manner of allowed argues questioning biases, tive thus reasonable preventing conceal jurors disqualifying cause; forced defendant to use challenges exercise of defense peremptory have been removed for who should challenges against jurors prospective cause; and “skewed” it jurors “stacked” jury pool pro-death-penalty verdict, thus rendering and a death penalty in favor the state lopsidedly “futile”; “irrelevant” challenges exercise of defense peremptory v. Illinois Morgan (See (1992) of a and impartial jury. him fair deprived 2222]; Mu’Min v. Virginia 719, 492, L.Ed.2d 112 S.Ct. U.S. 729-734 [119 493, 415, 1899].) He 425-426 111 S.Ct. (1991) L.Ed.2d 500 U.S. (Arizona v. Fulminante (1991) U.S. is contends the error “structural” 1246]) and reversal regardless L.Ed.2d 111 S.Ct. requires 309 [113 was in error. on a for cause ruling challenge whether any particular of error in the denial of forfeiture claims regarding the rule Referring post, (see 41-42), Attorney General for cause pp. defense challenges claim for of appeal by defendant forfeited his purposes contends initially Here, his challenges. without exhausting agreeing peremptory however, the court’s manner a different He asserts argument. defendant raises to root out juror as to be inadequate was itself so biased questioning uncover designed He claims the court’s partiality. questioning *25 bias, to, did, bias, it rendering conceal designed but instead was juror Defendant thus raises obtain fair jury. for defendant impossible dire must trial court’s voir that we to the of the threshold challenge adequacy first, rulings all of the court’s validity it affects the of address because Illinois, (See Morgan supra, v. 729 [“part 504 U.S. p. for cause. challenges voir is an adequate to an of a defendant’s guarantee right impartial Virginia, supra, Mu’Min v. dire to identify unqualified jurors”]; U.S. 500 similar claims notwithstand- the merits of 415.) In the we have reached past, in assertedly disparate questioning object the defendant’s failure ing 399, 439, fn. 8 (2009) 47 Cal.4th Martinez [97 the trial court. 391, v. Thornton People (2007) 41 Cal.4th 732, 77]; 213 P.3d Cal.Rptr.3d (2003) 30 v. Navarette People 461, 3]; P.3d 161 419-425 Cal.Rptr.3d [61 89, 1182]; see 2, P.3d 458, 66 & fn. 487-488 Cal.Rptr.2d Cal.4th 485 [133 P.3d v. Mills (2010) Cal.Rptr.3d 48 Cal.4th without assuming, misconduct claim as one judicial [construing 276] trial in the object defendant’s failure is it deciding, despite preserved court].) event,
In any here defendant did to the trial manner object court’s dire, Toward the end of the voir questioning. first of individual day following Juror Y.C. and court’s denial of defend- questioning Prospective cause, ant’s for challenge between the court and following exchange counsel took place:
Defense counsel: second objection is that the court’s “My leading using questions lead the attempt juror down towards rehabilita- path [an] mean, tion. I if it’s this and in is a clear cut case particular juror particular where take you can someone who initially answering questionnaire no on them will set out some pressure notions very strong preconceived concerning death and the course trial and skillful through leading have them in effect do a questions turn while degrees standing before the I court. think that causes the to hide basically juror their true biases [prevents] reasonable exercise of challenges cause.” ”
The Court: “Thanks for the ‘skillful phraseology.’ Defense counsel: but “Nothing skillful. There is nothing about that. You were skillful aas You are lawyer. skillful as a judge.” Honor,
The prosecutor: “Your except as to different areas of I questioning, think I need to join objection.” [defense counsel’s]
The “You too, Court: think I’m skillful those areas Mr. [Prosecutor]?” “Yes, The I prosecutor: Honor. are your think skillful. That’s the very problem.” Well,
The Court: “Thank thank you. you for But I think I your don’t praise. have done anything improper.”
Accordingly, defendant the court he apprised believed it was improp- erly rehabilitating death-leaning with “skillful prospective jurors leading” not, thereafter, defendant did questions. Although at that time or any time to the object court’s assertedly less thorough questioning life-leaning *26 jurors, we think the prospective of defendant’s were implications objection clear that sufficiently we the of may review merits his claim. merits, however,
On the defendant’s claim fails. Trial possess courts broad discretion over both concerning of qualifications “[decisions Martinez, v. (People 47 Cal.4th to serve” supra, prospective jurors 445) at p. Thornton, and the of v. manner voir (People supra, 41 Cal.4th conducting dire “ at 420 court to p. discretion conduct oral dire ‘possessed] [trial voir as 30 and to as
necessary attorney participation questioning appropriate.’ allow Indeed, this Court in [Citations.]”). decisions the United States Supreme science,’ art, a of voir dire is an not area “have made clear that ‘the conduct ‘ ’ v. (People to voir dire a so is no single way juror.” [Citation.]” “[t]here 704, Cleveland 236, 302].) 86 P.3d (2004) 32 Cal.4th 737 Cal.Rptr.3d [11 “ dire, not dictate a catechism for voir only . but ‘The Constitution . . does ” (Ibid., v. quoting Morgan that the defendant be afforded impartial jury.’ Illinois, supra, 729.) at 504 U.S. p. of death-
In bias conduct judicial during claims evaluating dire, “[tjrial of course ‘be that courts must voir we have stressed qualification their to . . . and should jurors inquire evenhanded in questions prospective to determine into the attitudes both for and the death jurors’ against penalty ” v. (People serve as ability jurors.’ whether will their to these views impair Martinez, Mills, People supra, 189; accord, v. supra, 47 at 48 Cal.4th p. 446.) entirely is encouraged Cal.4th at Evenhandedness is because p. “[i]t should . . that who believes that juror punishment . even possible capital committed its could to abolition irrevocably never be inflicted and who is his be his views to what he to perceived nonetheless subordinate personal the law of State.” obey to oath as a to duty by juror abide his Lockhart v. McCree supra, 515, 7; (Witherspoon, (1986) fn. at see p. 391 U.S. 137, to is important L.Ed.2d 106 S.Ct. U.S. 1758] [“It to removal not who the death are subject remember all oppose cases; is believe that death firmly for cause in those who capital in so as state long they nevertheless serve as cases unjust may jurors capital in their own beliefs to set aside are clearly they willing temporarily law.”].) deference the rule of “ Nonetheless, over the number and court has ‘broad discretion trial ” Mills, v. (People supra, . . .’ penalty.
nature of about the death questions error on 189.) merely at predicate finding Cal.4th cannot p. “[W]e (Id. jurors. death-leaning life-leaning the court asks” number questions Thornton, Indeed, supra, v. citing People 425.) at 41 Cal.4th p. at p. court trial court’s require questioning should appeal, reviewing “[a] Witherspoon-Witt to be context in the juror each prospective [citations] feel lest court case in which court has questions, similar each dire, voir answers needlessly receiving conduct a broad compelled Thornton, v. 425; not need to ask.” v. at see p. it does questions Martinez, supra, 446-447.) Cal.4th pp. “ ‘ of voir dire is not its importance, adequacy
Finally, “[d]espite at this The trial function judge’s point review. subject easily appellate reach in the trial. Both must later on jurors is not unlike that of trial own evalua on their credibility relying conclusions as impartiality ’ ” Holt (People to questions.” and of responses tions of demeanor evidence
31 782, 619, (1997) 213], 661 P.2d Cal.4th Cal.Rptr.2d quoting [63 reasons, Virginia, Mu’Min v. supra, 424.) 500 U.S. For these the court’s p. manner of dire will not be disturbed on unless it conducting appeal voir v. Carter (2005) renders the trial unfair. 36 Cal.4th fundamentally Mu’Min v. Virginia, supra, 544]; see 117 P.3d Cal.Rptr.3d 425-426.) U.S. at pp. Here, defendant to 23 whom points death-leaning jurors prospective rehabilitated, he asserts the court and 11 improperly life-leaning prospective he jurors whom contends the court excused without similar peremptorily efforts at We rehabilitation. have reviewed the re carefully questionnaire voir dire of these and of the sponses transcripts jurors jurors prospective chosen, as as the ultimately well of the voir dire of all other transcript who were prospective jurors individually Our review leads us to questioned. conclude the court did not its abuse discretion or bias in its display of either questioning and its death-leaning life-leaning jurors, prospective dire voir was to enable toit determine whether the adequate prospective jurors’ views the death to them sit on a penalty qualified capital jury. We Y.C., with an begin analysis of the voir dire of the prospective juror whose voir dire led defense set objection forth above. On her Y.C. stated that questionnaire, she “strongly supported]” death penalty. Asked to her views on the death think explain she wrote “If penalty, ‘you’ another’s life is the ultimate inconsequential—prepare pay penalty!—if decide take that ‘you’ life—.” In to a person’s about her response question views regarding case involving murder man with a elderly shotgun during she robbery, wrote that everyone convicted such a murder because, should receive death penalty “The murder was probably However, necessary.” when asked whether she would base her penalty decision on the evidence instructions at the she presented penalty phase, in responded affirmative. Asked her views regarding frequency which the death is she that penalty wrote she believed the imposed, penalty was used “Too seldom” because “death row is overcrowded with & convicted sentenced criminals way overdoing time—too much appeal spent money these supporting folks!” She believed the death should be mandatory circumstances, for murder and murder with should be special possible murder,” was for appropriate “Any for but inappropriate anything murder and murder with circumstances. She in special answered the affirma- tive whether she would vote question asking for the death automatically circumstance; if defendant was convicted of murder with a but special also she wrote to a different that before on the response question deciding she would want to know he such penalty, “why had little disregard [sic] another human life.” In response her views on the questions regarding “eye for an eye” she wrote that she principle, believed based on adage conviction, meant, religious to her it “If sin against another & take *28 own,” that life to down and that she could not set aside lay your their prepare her. wrote give and the the court would She further concept apply principles training in to that she had or moral pertinent questions religious response church,” & she did know” the death from and “not regarding “family penalty the to law training according if could set aside such and decide case the she could court. answered to a whether she given by asking the She “no” question be and follow set her what the law should feelings regarding aside personal instructed to a asking the law as the court. In whether by response question life she could to the that without representation possibil- court’s agree accept life the defendant would be sentenced to without ity of means parole the of “Do not Asked whether costs of she wrote know.” possibility parole, a for her either incarceration the would be consideration appellate process to both. she answered “yes” Finally, in on the she answered deciding penalty, case a were such that in asking feelings every to whether her “yes” question death vote for the automatically that reached a she would penalty phase than of rather life without penalty possibility parole.9 have sub- Defendant these alone would argues responses questionnaire cause, but court went to “extraordinary Y.C. to a for jected challenge had [her], to her contradict she everything rehabilitate to lengths leading did abuse broad We conclude the court not its answered in the questionnaire.” of As defense acknowl- in the voir dire Y.C. counsel conducting discretion dire a different juror, questionnaire the voir of during prospective edged regarding to first venireperson’s] “designed get impressions” was [the discussed; of dire to determine whether or matters voir was purpose “solid, is readily As first firm convictions.” represented those impressions dire, the of the voir court’s a review of the relevant portion from apparent by noting do that. The court began designed precisely questioning be conflict between Y.C.’s questionnaire response what it to a appeared of an man elderly convicted of the murder indicating she thought everyone death, regardless a a should be robbery put shotgun "during her and parties, response introduced evidence regarding penalty openmindedly if a she would listen juror, that selected as indicating and solely her decision evidence evidence base penalty phase about that was confused This led Y.C. to volunteer she court’s instructions. into the trial court to launch and the “the first part penalty part,” prompting trial of a death purpose of the two phases penalty detailed explanation each, meaning and the to be made at the penalty phase, the decision that Y.C. understood ascertained “mitigation.” Having “aggravation” whether, reached the if the case the court asked these concepts, if believed vote the death she Y.C. would be able to phase, asking every she in case automati whether would “yes” question also Y.C. answered this was parole, but on voir dire she confirmed possibility cally vote for life without “wrong answer.”
evidence in in aggravation outweighed mitigation, conversely, whether she would be able to vote for life in without prison possibility if felt the she evidence parole mitigation outweighed aggravation. *29 When Y.C. hesitated in to the latter of and response the portion question, words, seemed the at loss for court whether she she meant would queried need to hear all of the evidence before a decision to life making impose without of and The then possibility Y.C. court ascertained parole, agreed. that Y.C. would not to vote hesitate for either if she believed that penalty what the evidence indicated.
Next, the court addressed Y.C.’s believed in she the responses indicating “an for an and eye eye” could not set that aside and principle concept apply the court. given the The court asked Y.C. wanted principles whether to the latter change answer in of the she had light answers in previously given court, and she she agreed, had had on the explaining difficulty concentrating the time of number in questionnaire given and the of the day people room when she filled it out. court assembly The then moved on to Y.C.’s views on in the of life penalty prison without of The court possibility parole. whether, asked if selected as a juror, Y.C. would conduct herself in the jury room as if sentence imposing such a meant defendant there stay “will without Y.C. parole,” agreed. and The again court with the proceeded similarly question regarding costs incarceration and asking whether Y.C. appeals, would, selected, meant she if tend to vote for the death penalty because affirmative, she believed it was less When Y.C. in expensive. responded dollars, court if asked she would agree either “put way [cents] before other consideration.” Y.C. would she not “take agreed, indicating lightly” decision. court Y.C.’s Finally, explored response she would “in indicating every case vote death automatically” for the whether, her because of court feelings. The asked based on Y.C.’s responses “no,” the previous her answer now would be and she questions, agreed, she had found the commenting “rather and the court questionnaire tricky” should “[j]ust change everything.”
The court’s of the conduct voir dire Y.C. did not exceed bounds of permissible discretion. The court asked Y.C.’s questions testing question confusion, naire that were inconsistent or indicated responses her clarify beliefs and to firmly assess how Y.C. held these as a beliefs prelude whether Y.C. could determining the duties of a When Y.C. perform juror. trial, confirmed that she was confused about nature two-phase court was well within its discretion in to her these matters explaining whether, in ascertaining her new could light understanding, she impose either we have “we penalty option. ordinarily As defer to the explained, court’s determination that a prospective juror’s answers clarification” require Martinez, v. (People 446), supra, Cal.4th at see p. nothing “[w]e in court’s the law . .” to a improper . whose explaining prospective juror mind. rise to concerns in the court’s questionnaire responses gave Thornton, supra, 423.) at The court was within its p. similarly Cal.4th whether, of her new Y.C. ascertaining light understanding, discretion wished to her to other change responses questions. “Clearly pro-death-penalty the court found it to ask to reach a decision about necessary questions [Y.C.] (Id. her, 422.) unfair so was not to defendant.” doing p.
Further, we caution overreliance on against leading quest although ions10 to the exclusion of more because questions authority open-ended he or juror give trial cause what she judge may prospective than to be a “correct” answer rattier a considered statement his perceives views, here or her conclude the court’s use of did leading questions *30 true we the of unschooled jurors not fall outside wide its discretion. range Prospective their or forecasting in the law have views may difficulty fully articulating how would conduct themselves if selected as a in a death juror they case, are to using when asked themselves particularly they legal express Uttecht, supra, (Cf. be new terms and that to them. concepts may entirely 551 7 some be unable to articulate may U.S. at p. [recognizing venirepersons situation, views].) juror their In such a with prompting prospective clear be the court to obtain a answer. leading only way questions may Mills, supra, use (See 48 Cal.4th at occasional of p. 190 [“court’s to rehabilitate did leading ‘death-leaning’ jurors” when questions attempting trial court a lack of because assume the “suggest impartiality” “[w]e of each formulated its based on the individual characteristics questions .”].) . the court did not defendant’s counsel from prevent . juror Finally, chose, if he but elected not in of Y.C. counsel engaging followup questioning Proc., 223.) (See do Code former to so. Civ. § remaining The is with 22 prospective the same analysis respect A review of defendant claims court rehabilitated. improperly whom jurors and voir dire of these indicates jurors the questionnaire responses prospective them their views on the death penalty the court orally questioned regarding to critical were blank or questions appeared when their written responses misunderstanding a or to or a of the court to create conflict reflect confusion suggests that ‘leading question “A a to the witness the answer question’ is Code, 764.) (Evid. examining party § desires.” 1996, as “In a criminal provided At trial in that section follows: the time of defendant’s However, case, may the court prospective jurors. of shall conduct the examination the court cause, showing the examination such upon good supplement permit parties, The of its discretion in it ... . ... trial court’s exercise inquiry proper [$] further as deems HQ not cause conviction to be reversed unless which is conducted shall the manner in voir dire miscarriage justice, specified as in Section 13 resulted of that discretion has exercise Proc., (Code adopted by former as § Constitution.” Civ. of Article VI of California 7) 6, 1990.) (Prop. voters June § cases, trial In most such Ju- capital including process. Prospective J.E., M.C., J.O., D.O., G.T., J.O., D.O., J.J., M.E., I.W., R.Z., C.Ph., G.T.,
rors L.H., R.L., S.W., EG., C.Pa., L.V., M.A., E.S., M.S., the court began by conflict the blank or the and then in an noting response apparent engaged Y.C., to that Juror explanation law similar given Prospective at critical to ascertain whether stopping junctures prospective juror understood the ascertained each explanation.12 Having prospective juror understood the the court then asked each whether he or she would process, if, have “a for either problem” “any hesitancy” voting penalty option circumstances, after all the weighing he or she believed the evidence called for it. Some who reluctance to prospective jurors initially expressed impose life in without prison or who could not possibility parole, imagine themselves so if found doing they defendant of first murder guilty degree J.O., J.E., M.A.), circumstances Jurors special (e.g., Prospective their when the changed court responses explained concept mitigating evidence or when evidence were Often the examples mitigating given. Y.C., court found it as with necessary, Juror that it Prospective explain individual, would be for the if selected improper as to vote based on a juror, belief that a sentenced to life in person without could prison parole someday released, be to consider the costs of incarceration or or to follow the appeals, court; for an “eye instead of the *31 eye” adage law the court then given by obtained the assurance that he or she would set prospective juror’s aside his or her beliefs and personal follow the law as instructed the court by (e.g., J.J., J.M., I.W., L.G-H., R.L., M.A., C.Pa., Jurors Prospective M.S.). and the court often Although used the “do you understand” format questioning when the law and sometimes explaining after employed leading questions, defendant the court objected an awareness of the issue displayed and even and corrected caught itself during of Juror R.Z. questioning Prospective Moreover, the court often asked and allowed the open-ended questions prospective jurors themselves in their own when express were way they and able willing to do so (e.g., M.S.). Jurors EG. and Prospective sum, In the record reflects the court each in a questioned prospective juror manner consistent with its assessment of that “individual character person’s Mills, istics” v. (People 190) 48 Cal.4th at and asked supra, p. questions it law felt to come a explained necessary to decision about the of ability Thornton, to serve on the prospective juror jury. supra, 422-423.) Y.C., Cal.4th at As with Juror pp. for similar Prospective 12Two individuals included in pattern. this claim did not fit this The court found it unnecessary explain phases aggravating of the case and the nature mitigating of brief, evidence to Juror L.G-H. And the court’s very encompassing voir dire of Juror C.H. was only one transcribed page, only experience and covered her a nothing as crime victim. We find improper jurors. in the voir dire of these reasons, find no manner of we abuse of the court’s broad discretion in its these jurors.13 questioning prospective argument, egregious” counsel C.P. as the “most At oral defendant’s identified Juror assertedly We trial court’s example improper questioning. of rehabilitative conclude the questionnaire, C.P. questioning manner of was not an abuse of On her Juror C.P. discretion. strong hesitancy ability very pro-death-penalty put views about her expressed and some “strongly support[ed]” penalty views. For wrote that the death if example, aside those she she “past history.” She that she was “premeditated” the murder was and there was criminal wrote everyone She appeals paroles and tired of & & shortened time served.” wrote that “sick robbery elderly shotgun during the murder man with a receive the convicted of of an should regardless penalty, regarding parties, death the evidence introduced because penalty of armed robbery planned possibly—He the defendant “was armed and invaded a home with was ” gun.’ juror, if listen agree ‘in case he needed She wrote that selected as a she would solely on and the openmindedly penalty to the evidence and base her decision such evidence instructions, time, however, but a hard if it were a act.” court’s she “would have ‘cold-blooded’ seldom, many penalty prisoners the death too “too released on explaining She felt was used mandatory appeals—waste penalty $$.” tax She wrote she felt the death should be parole or “murder, rape violent circumstances.” wrote that the perhaps for crimes—& under certain She deciding penalty be a because she appeals costs of incarceration and would factor for her (& ftivo[li]ties).” $$used with up pampering “fed with tax house inmates them Asked guilt finding special would for a or a true on the whether she hesitate to vote verdict of allegation deciding penalty, avoid the on the wrote she circumstance in order to task of she try open-minded—I simply just compromising penalty problem “would to be have a FIRST-Degree anything appearance murder.” there was about defendant’s Asked whether deciding upon from based the law and the evidence and not prevent upon would her case bias, pity play wrote or no prejudice, sympathy, pity, part: “Sympathy or C.R would family.” whether part—My sympathy pity would be reserved for the victim And asked completing case C.R opinion upon questionnaire, she had formed about this based set I’d have to all evidence.” hope wrote “I not—the term ‘murder’ doesn’t with me—but hear answers, however, special that she the nature of circumstances C.R’s hinted misunderstood automatically example, For she wrote she would not penalty phase. and the function parole without imprisonment possibility vote for either of death or life circumstance, need guilty special found murder with a because “I would if defendant were circumstances,” depend special “would special to hear the details and it *32 penalty.” there I would vote for the death special circumstances—if were no circumstances indicating questionnaire responses, responses her inconsistency in some of C.R’s Given the nature automatically penalty, apparent either and her confusion about impose she would not justified in fully of the the court was aspects process, circumstances and other trial special of capital a of the of a by engaging explanation phases educate this in detailed attempting juror case, yet guilty and the of the that the defendant had not been found circumstances explaining favored, asking was and yet proved, explaining penalty option been that neither crime had not C.P. questioning state The bore out that questions to determine C.R’s true of mind.
probing indicating her response confused. when the court asked C.P. about example, was indeed For C.P. special deciding penalty, in “need to hear the details of circumstances” she would After question special what circumstances are.” deep “I think down I have of responded, affirmed she responding questions, and to further C.P. listening explanations to the court’s instructions, and automatically penalty, either she could follow court’s would not vote for (as as her deciding these answers well penalty. not consider in She reaffirmed she would cost confusion) Defendant questioning additional defendant’s counsel. response in initial leading example, question terms. For in phrased unduly in complains questions the court its indicating death be should response questionnaire her on the ing C.P. about contends, nonetheless,
Defendant that the error here is not that the only court rehabilitated take but that it failed to death-leaning jurors, prospective the same instead excus- steps life-leaning jurors, summarily prospective them after brief He contends the court failed to ing questioning. explain trial, evidence, two of the the nature of phases aggravating mitigating to such and failed to determine weighing process prospective jurors, whether could set aside their views and follow the law. they personal Defendant to 11 he points whom contends court prospective jurors dismissed in this manner.14 summarily
Again, we have examined the and voir dire questionnaire responses related to these 11 transcript to the re- prospective jurors—as compared related to the sponses transcript alleged death-leaning jurors prospec- tive conclude the jurors—and court’s manner of them was questioning First, abuse of discretion. we note defendant to the excusal of stipulated Juror J.L. because him Prospective his beliefs from religious prohibited Further, another judging defendant person. willingness expressed stipu- late to the excusal of Jurors R.R. and B.C. based on their Prospective before questionnaire were even in for responses they brought individual The court was questioning. fully justified short-circuiting questioning of these three prospective jurors.
For the eight remaining prospective jurors, court’s questioning gener- followed a ally M.F., similar to the pattern Juror questioning Prospective which we set out in full: “Hi,
The Court: Mr. [jQ How are you? We’re just going ask you [F.]. [j[] couple questions this matter. You indicate that . . . you oppose death penalty?” Juror M.F.:
Prospective “Right.”
The Court: “Correct?” crimes, “mandatory” types for certain you ‘mandatory’ you the court asked said did “[w]hen it, automatically mean that it imposed be if a person guilty is found or did [should] mean that it should be an penalty?” responded, available C.P. “It should be an available penalty.” Again, although against leading we caution questions, overreliance we conclude Mills, (see the court did supra, by employing not abuse its discretion them here 190), p. particularly Cal.4th at juror misunderstanding with this many aspects whose and penalty process trial so apparent. *33 D.S., Defendant Prospective also mentions summarily Juror whom the court excused against testimony because of bias summarily from law enforcement But the officers. court also excused six prospective jurors other due to testimony bias in favor of the of law enforcement Thus, officers. defendant’s mention of D.S. does not support his claim that the court exhibited bias in favor the prosecution. Juror M.F.: “Yes.” Prospective are circumstances under Do feel that there you
The Court: “Okay. the crime that he is charged the defendant found guilty which the—if were are any do feel that there you and the circumstances are proved, special vote for the death penalty?” circumstances which would you “No, Juror I don’t.” M.F.: Prospective evidence, words, that it and I’m not saying
The Court: “In other if the would, and callous and crime was vicious exceedingly showed that this does, evidence, horrible, to show and I’m not that it were saying and if the vicious, brutal and horrible person, the defendant was a particularly could the death do believe that you impose under no circumstances that correct?” is penalty; I could.” M.F.: “I don’t believe Juror
Prospective cause, Your Honor.” “Move to excuse for The prosecutor: Mr. you, You’re excused. Thank The Court: “All right. [F.].” fell jurors manner of these questioning prospective conclude the court’s We of these responses The written questionnaire within its broad discretion. would that extensive questioning left little or no cause believe venirepersons G.F-M., N.C., O.B., J.B., Several—including to serve. eligible render them under any would “never their that they and A.M.—wrote on questionnaires others, evidence”; death regardless penalty, circumstances impose [the] B.H., or “strongly oppose[d]” wrote they “oppose[d]” M.F. including automatically would they these seven wrote death Each of also penalty. were convicted if defendant without parole life in prison possibility impose Often, in- jurors these prospective circumstances. of murder with special For held these views. example, why they cluded strong language explaining make a Whoever right. do not wrongs wrote “two Juror G.F-M. Prospective wrote, “I could Juror N.C. a murderer also.” Prospective is the executioner is death,” repeating cause of another person’s if I was the not live with myself Similarly, Prospec- times in the questionnaire. numerous the same sentiment I sent wrote, knowing I could live with myself “I don’t think Juror A.M. tive wrote, feel some J.B. “I people Juror to their death.” Prospective someone these venirepersons— it.” Four of to determine it but I’m not going deserve the death G.F-M., their J.B., N.C., opposition and O.B.—wrote Others, such not set aside. beliefs could they or moral based on religious such M.F., considerations based their views practical Juror as Prospective were, jurors of these prospective responses as cost. Notably, questionnaire
39 is, consistent; their of general few that internally expressions with exceptions, answers death were to the feelings penalty coupled opposition views and their moral or religious could not set aside indicating they personal law, the death vote against and for that reason would they always follow Further, their of the evidence. none of questionnaire penalty regardless as it had been indicated misunderstood the trial process they capital responses rather, their responses to them both orally questionnaire; explained could not or would that of suggested regardless process, they personally these someone to death. Under in the decision to sentence participate circumstances, the court could conclude that neither extensive reasonably render nor of the law was “likely questioning explanation the[se] Mills, v. 48 to sit in a case.”15 (People supra, venireperson[s] qualified capital 190.) at Cal.4th p.
Here, each the identified the court of orally questioned prospective even if whether he or she could not the death jurors regarding penalty impose horrible, vicious crime and the evidence showed defendant had committed horrible, formulation, from what was a vicious Such a while straying person. Witt, set forth in was we have as standard previously satisfying approved “realistic, to assess whether there was adequate any practical possibility” in this case. v. (People could the death jurors penalty prospective impose questionnaire responses jurors The of two identified defendant as summar prospective ily internally pattern. Prospective excused did not fit this Juror B.H.’s answers were somewhat many questionnaire and voir dire responses Comparing inconsistent she left blank. juror death-leaning jurors, the responses prospective prospective of this with those of two concurring opinion symmetry pro- finds a of in the court’s voir dire of and anti-death- “lack (Conc. jurors degree ambiguity.” of penalty questionnaires presented whose written the same Liu, J., 100.) argues opn. post, p. concurring opinion at The that this asserted lack of jurors’ symmetry explained by anything having [prospective] “cannot be to do with the itself juror’s questioning very beginning of each disparity demeanor because occurred at Liu, J., note, however, (Conc. 99.) post, that the trial court had an opn. p. voir dire.” We during group questioning preceded demeanor both opportunity observe B.H.’s individual, dire, questions posed five sequestered responded voir and while B.H. to the first dire, concurring to be question opinion it that the finds her on individual voir before asked Moreover, death-leaning jurors. that the significantly prospective different from those asked of her more might question cause to the law to B.H. or to explain court have had reasonable defendant’s extensively discriminatory questioning in violation of pattern cannot establish Martinez, (See jurors allegedly rights. supra, p. sample 47 Cal.4th at v. [small questioned where court over disparately questioned practice insufficient to establish a of bias detail, post. prospective juror this in more venirepersons].) We discuss blank, including many all the Prospective questionnaire Juror C.Z. left answers on the English penalty. Her oral voir dire revealed she had limited questions related to death skills, state, you say, I don’t believe in clearly judge person, but she did “I don’t like to how that,” no, anything say, and “not for me to sir.” She also affirmed the death like circumstances, regardless the nature of the death under she could never vote for prospective juror this Again, questioning the crime or the defendant. the trial court’s manner of not an abuse of discretion. appeared tailored to her “individual characteristics” Mills, 190.) supra, p. 48 Cal.4th at *35 Martinez, 432; Cal.4th at cf. ibid. [asking prospective jurors 47 supra, p. realistic, could consider juror “whether there was practical possibility Witt].) The court had the opportu either sufficient penalty option” satisfy demeanor, and during each both before juror’s assess nity prospective or each his her sincerely and to evaluate whether expressing questioning, detail to these venireper the court did not the law in Although views. explain sons, an of their light question this omission was not abuse discretion Thornton, (See and the the court did ask. v. People naire responses questions trial court who “observes and 425.) 41 Cal.4th at Because the supra, p. . . . valuable information gleans simply with a prospective juror speaks Stewart, 33 Cal.4th at on” the cold record v. (People supra, does not appear that further 451), question defer to that court’s determination normally we p. Mills, 190), 48 Cal.4th at not be fruitful v. (People supra, p. would ing defendant from do here. Further the court here did not again prevent we so in an effort to rehabilitate these prospective jurors. asking followup questions occasions, he but for the most even part Defense counsel did so on several of a death need to these individuals phases did not see the to explain (Cf. beliefs. v. People trial or the of a to set aside duty juror personal 590, 610, P.3d (2011) McKinnon 52 Cal.4th 644 259 Cal.Rptr.3d 1186] [130 counsel, juror, the court’s intention to excuse a prospective advised of [when juror’s an for further voir dire clarify prospective declined opportunity views, the record it stood was sufficient we “counsel as assume accepted the intended ruling”].) to support claim of biased to resolve defendant’s is sufficient
Although foregoing does of the voir dire record we note the remainder additionally questioning, death-leaning The court excused Prospec- defendant’s contention. support D.M., I, extensive efforts at rehabilitation. tive Jurors D.Mi. and L.S. without in lengthy explanation The court also engaged questioning—including to weigh aggravating and the duty juror of a case capital phases Jurors M.V. Prospective evidence in deciding penalty—with mitigating II, the death hesitation about imposing and D.Mi. both of whom expressed These illustrate oral examples in their written and/or responses. court’s effort to be fair. “ ” ‘evenhanded’ sum, be scrupulously that trial courts must
In we reiterate Mills, 48 Cal.4th supra, voir dire. v. (People death conducting qualification 879, accord, 189; (1995) Cal.4th 908-909 v. 9 People Champion at p. 547, traditionally “broad discretion” 93].) P.2d Given the Cal.Rptr.2d Mills, Cal.4th at v. supra, in this context (People afforded to trial courts in this case voir dire conducting manner of 189), conclude the court’s we p. discretion, bias, lack impartiality, of abuse of did not rise to the level unfairness, that the voir dire defendant’s claim and we reject fundamental was inadequate. the manner claim regarding threshold in addition to his
Finally, procedural erred dire, substantively the court defendant also asserts of the court’s voir life-leaning prospec to evaluate more criteria stringent different and applying inAs previous death-leaning jurors. it prospective tive than jurors applied failure defendant’s cases, notwithstanding the merits address this claim on we Clark, v. supra, in the trial court. grounds on these object precise Martinez, 47 Cal.4th at fn. v. 10; People supra, p. Cal.4th at fn. p. Thornton, 419-425.) conclude the 8; We 41 Cal.4th supra, pp. *36 for cause both claim the court excused lacks merit. The record demonstrates re whose questionnaire death-leaning life-leaning jurors prospective “ ‘ dire, “definite left the court with together, and oral voir taken sponses ’ ” Abilez, 498) at would supra, they 41 Cal.4th (People p. v. impression” circumstances, never, one or the other penalty under any impose death would beliefs about and thus that their personal options, “ a duties as or substantially impair performance [their] ‘prevent ” (Witt, the court did not 424.) Conversely, U.S. at supra, juror.’ p. who, reservations about serious although excuse jurors expressing prospective other, leave such an or the did not one difficulty imposing R.L., think who stated “I so” These included Juror Prospective impression. M.A., life; she who stated and “I think I could” impose Prospective .Juror life; M.V., who stated he it Juror would find “difficult” impose Prospective D.S., death; Juror with the decision to Prospective would “struggle” impose II, death; Juror D.Mi. who stated he could “possibly” impose Prospective L.B., “difficult”; Juror who who stated death would be Prospective imposing K.T., death; and Juror who said he said “I think I could” Prospective impose merit about death. We find no would have “reservations” imposing standards defendant’s contention that the court substantive applied disparate evaluating jurors. when prospective denials Assertedly challenges erroneous
d. of defense for cause for cause denied his erroneously challenges
Defendant contends court in the previous part: Prospective to 15 of discussed prospective jurors F.G., M.A., C.Pa„ J.E., M.E., J.J., J.M., R.Z., R.L., S.W., I.W., Y.C., Jurors L.V., M.S., “stacked” He the erroneous denials alleges cumulatively G.T. him, defense inhibited the exercise of against peremptory jury pool chosen. jury being and resulted in a biased and challenges, pro-death-penalty rule, of an “As a a general party may complain appeal for because the need not erroneous denial of a cause allegedly challenge party retains the serve on the juror jury; litigant tolerate having prospective Thus, challenge. remove the juror by exercising peremptory power first, that a exercise litigant actually this claim for we require, preserve appeal Next, remove the peremptory challenge prospective juror question. must exhaust all of the allotted statute litigant challenges peremptory defendant, (or se) and hold none in reserve. counsel if Finally, proceeding pro must to the trial court dissatisfaction with the as express presently Mills, 186; accord, constituted.”16 48 Cal.4th at v. v. (People supra, p. Jones, addition, 45-46.) 54 Cal.4th at “In the issue be deemed supra, may pp. for if an the failure to review preserved appellate adequate justification Mills, 186, 8; these rules is fn. see satisfy supra, v. provided.” p. (2008) 43 Cal.4th 178 P.3d People Wilson Cal.Rptr.3d 1113] (conc. J.).) opn. Werdegar,
Here, defendant challenges against although employed peremptory J.E., J.J., M.E., R.L., L.V., Jurors he used 16 of his 20 only Prospective allotted selection of the and none challenges during regular jurors peremptory of his four allotted selection of the alternate peremptory challenges during Nor did defendant dissatisfaction with the jurors. jury ultimately express selected, or *37 additional existence of challenges. request peremptory “[T]he indicates defendant’s recognition unused peremptory challenges strongly (2009) fair and . . . .” v. Davis 46 selected was jury impartial 539, 322, 78].) Cal.4th 581 208 P.3d Cal.Rptr.3d [94 to failure to exhaust chal- In his apparent attempt justify peremptory errone- assertedly defendant claims the court’s biased lenges, questioning death-leaning for cause so “stacked” the with challenges pool ous denials and render their to “overwhelm” the defense jurors challenges as peremptory “irrelevant.” He that even had the defense used all of its exercise speculates . . . due to the “a biased would still have resulted challenges, jury peremptory to Court’s and demonstrated inclination ‘seed’ ability panel pro- to death-biased in a sufficient overwhelm jurors prospective quantity asserts, been futile defense He “it would have to challenges.” peremptory the earlier chosen objectionable jurors, beyond too challenge many biased, even if the had an remaining eligible equal possibly extremely pool Moreover, claims, he “the higher objectionable jurors.” pres- proportion ‘rehabilitated’ with extreme jurors pro-death- ence in the of so pool many “challenging moderately also him because biases” prejudiced Thus, with the biased.” defendant extremely biased risked their substitution contends, and his methodology to the -court’s objection questioning his were in and of to sufficient jurors for cause challenges specific prospective his claim for appeal. themselves preserve 16 People tried after our decision in v. requirements apply these case All three of Mills, 887], (See People (1994) P.2d v. Crittenden Cal.Rptr.2d Cal.4th 885 therefore, 1996; post-Crittenden 186-187.) supra, at This case was tried in pp. 48 Cal.4th applies.
rule level, On a factual legally. both factually
Defendant’s fails argument did not the trial court improperly part we have concluded in previous in exhibit bias or otherwise jurors rehabilitate pro-death-penalty prospective that the exercise defendant’s assertion Accordingly, its voir dire questioning. nothing futile rests on would have been challenges of additional peremptory level, in argument we a similar rejected but On speculation. legal Mills, There, one of its defense exercised all but Cal.4th 158. supra, failure to defendant his argued On challenges. allotted peremptory appeal, hold one he needed to was because challenges justified exhaust peremptory excuse a he needed it in reserve in the event challenge peremptory L.S., strongly whom he claimed “was pro-death- prospective juror, particular (Id. of this excuse 186.) We disagreed, reasoning “acceptance penalty.” p. case might every for a defense entirely, attorney would swallow the rule (Ibid.) Here, reasons.” to hold in reserve for challenges strategic wish challenges he needed to hold four peremptory defendant in essence argues death-leaning challenge any assertedly reserve in case he needed to Mills, how- the court had rehabilitated. whom prospective jurors improperly ever, forecloses argument. brief, his modify
For the first time in the defendant reply appears He challenges justified. that his failure to exhaust argument peremptory record, contends, com- that after selection was without citation to extremely in the were nine remaining pleted only prospective jurors pool the court had rehabili- whom venirepersons improperly pro-death-penalty F.G., M.A., C.Pa., J.O., Y.C., J.M., R.Z., S.W., had tated: and M.S. The court denied defendant’s for-cause of these eight prospective jurors. challenges Thus, claims, the jury” he “no amount of . . . could have challenges improved *38 selected. ultimately remained the
Were defendant correct that these nine only prospective jurors ultimately in the and had he with the jury dissatisfaction pool, expressed agree selected and additional we challenges, might requested peremptory and reach the defendant’s failure to exhaust his was justified peremptories denied his for challenges merits of his claim that the trial court erroneously Clark, v. People In reached the merits of defendant’s claim that cause. we trial court denied defense for cause when defense erroneously challenges (1) counsel used to remove some of challenges complained-of peremptory because but declined to use her final jurors, peremptory challenge prospective the next in the box was a in line to fill person vacancy jury prospective cause; (2) had for unsuccessfully challenged expressed whom defendant juror constituted; for additional (3) with the as then asked jury dissatisfaction Clark, challenges. (People supra, 901-902.) Cal.4th at v. 52 pp. peremptory record, however, defendant’s conten- review of the does not support Our called to the box after jury tion that the who had not been yet only persons 44 above, selection were nine he identifies. As noted
jury completed excusáis, the court and counsel following individually hardship questioned this 73 were excused for cause or for jurors. During prospective phase, at the start of the exercise of leaving eligible jurors hardship, prospective the 12 defendant During selection of peremptory challenges.17 regular jurors, 15, exercised 16 and the exercised peremptory challenges prosecution leaving when the selection of alternate jurors remaining jurors began. prospective included, course, These 42 those selected as alternate ultimately ju- A.H., R.W., R.T., rors: and M.L. Defendant does not claim of these four any rehabilitated, biased and he did not challenge individuals was or improperly of them for cause. Had defendant exercised all of his peremptory one or more of them challenges during regular jurors, might selection have been seated on the the selection of alternate regular jury. During jurors, and the defendant exercised no exercised peremptory challenges prosecution four; one called to the box was excused based on a late- person jury Thus, calculation, our even after selection of developing hardship. alternate remained in the on the random jurors, pool venirepersons shown, record, list. Defendant has not with citations to the that the nine he claims were were next in line to fill vacancies in the box. unacceptable Clark, 901-902.) (Cf. v. 52 Cal.4th at we find People supra, pp. Accordingly, that the exercise of additional defense no merit to defendant’s contention would have been futile. His claim that the court challenges peremptory denied defense for cause is thus forfeited. erroneously challenges review, however, were we to find the claim we Even preserved claim, “defendant would it on the merits. To on this must reject prevail his to a fair and demonstrate that the court’s affected rulings right impartial 93, 114 (2003) 31 Cal.4th 72 P.3d v. Yeoman jury.” (People Cal.Rptr.3d Here, 1166].) none of the 15 identified sat on defendant’s jurors prospective Further, accord, Mills, (Ibid.; 187.) 48 Cal.4th supra, p. jury. some of defendant used five of his to remove although challenges peremptory “ in this manner ‘is these 15 from the the loss of a jury, peremptory challenge if the defendant exhausts all challenges for reversal grounds only peremptory ” (2002) is him.’ v. Hillhouse upon and an incompetent juror forced added, *39 469, 754], 40 P.3d italics quoting 27 Cal.4th Cal.Rptr.2d 2273].) (1988) 487 U.S. L.Ed.2d 108 S.Ct. Ross v. Oklahoma 89 [101 Here, of the 12 who decided jurors defendant did not for cause challenge any above, generated a following challenges exercise of for cause the court explained As During the remaining prospective jurors, supplied which was to counsel. “random list” of the in the box challenges, jurors were called to be seated peremptory prospective exercise of part appeal. not of the record on on the random list. The “random list” is appearing in the order jurors contrary, prospective we the random list included all 85 presume Absent evidence to the remaining challenges exercise of for cause. after the Moreover, the 12 was biased post, jurors none of
his case.18 as we explain an incompe- “was not forced tolerate defendant. Because defendant against the five to excuse challenges used tent as a result of juror” having peremptory above, of the 10 other and because none identified jurors prospective on his jury, sat challenged whom defendant unsuccessfully jurors prospective “could not for cause challenges erroneous denials of the court’s assertedly a fair and jury.” to be tried right by impartial have affected [defendant’s] Mills, 187.) supra, p. cause erroneous excusáis Assertedly e. Ju- excusing
Defendant contends the trial court erred by Prospective to the juror based on their written answers rors M.F. and B.H. “primarily efforts similar to those . . . without rehabilitative making any questionnaire “short He contends the court’s made for” death-leaning prospective jurors. as jurors to eliminate these designed prospective was quick” questioning as quickly possible. that he opposed Juror M.F. wrote his questionnaire
Prospective time death he “I feel the accused is put death explaining, penalty, more economi- tried & seems again. must over over Life imprisonment [be] the shotgun robbery cal.” He he did believe convicted of everyone wrote not death. He wrote he believed murder of an man should be elderly put often, need to too “Don’t feel we keep death was used penalty explaining, the death alive after he’s been already given trials to someone having keep was crimes for which the death penalty sentence.” When asked to identify wrote, I don’t know he “I am to the death but penalty appropriate, opposed to identify how I would feel if the crime involved one of Asked my family.” wrote, he “death is crimes for which that penalty penalty inappropriate, He wrote if defendant were I believe in life imprisonment.” inappropriate circumstances he would found of first murder with guilty degree special because it is vote for life in without automatically prison parole “punishment defendant before not want to know about anything he would enough,” in the for an “eye eye” on the He wrote he did not believe deciding penalty. the court’s assurance that he would although accept principle, that, the meant exactly sentence of life in without possibility parole prison for him in would be consideration costs of imprisonment appeals life stating an article a few back years because “I read deciding penalty he he would effective.” wrote Tellingly, is more cost actually imprisonment and base his to the evidence at the penalty phase not listen openmindedly instructions, and he could set and the court’s decision on such evidence and follow should be his what feelings regarding aside personal however, jurors; participated none challenge did for cause of the alternate Nor he guilt either the or the deliberations. *40 46 dollars death
the law because he “can’t see tax on [appeals] spending verdicts.” he wrote that he would vote automatically against penalty Finally, case, in without in every the death and for life penalty prison parole at the of the evidence introduced regardless penalty phase. ante, 37-38, dire the court first asked M.F.
As at on voir explained pages he “Yes.” that he the death said penalty, whether it was correct opposed whether, if defendant found guilty charged The court then asked were true, there were “any crime and the circumstances were found special he vote for the death circumstances” under which M.F. felt would penalty, “No, further, the court asked he I don’t.” Probing responded, for the death if the evidence whether M.F. believed he could vote penalty and the “the crime vicious and callous and horrible” exceedingly showed was vicious, brutal, and M.F. again horrible person,” defendant “was particularly The M.F. for challenged “I don’t believe I could.” prosecutor responded, excusal; cause, him. Defendant did not to the object and the court excused M.F.19 nor did he ask for the to question opportunity that M.F.’s views the trial court’s conclusion The record amply supports substantially the death would prevent impair perfor about penalty the juror M.F.’s written responses mance of his duties as juror. He wrote that consistently were and unambiguous. consistent questionnaire in favor of life in vote the death automatically against he would he could and that without if the case reached penalty phase, prison parole deference to the to the death not set aside his personal opposition under which dire he confirmed there were no circumstances law. On oral voir if the evidence showed he could the death even penalty, vote impose Because the defendant unredeemable. crime to be extremely aggravated demeanor, we defer to its had the to assess M.F.’s the court opportunity Stewart, supra, were credible. v. (People that his responses assessment implicit Uttecht, record, 451; 9.) at On this we at see 551 U.S. supra, p. 33 Cal.4th p. err in M.F. would be finding the court did not concluding have no trouble this case. substantially impaired her that she opposed Juror B.H. wrote on questionnaire
Prospective that she did She wrote death but did not provide explanation. penalty, murder of an man elderly of the shotgun robbery believe convicted everyone 19 McKinnon, supra, Cal.4th v. our decision in this case was tried before Because claim of 610, for review defendant’s required preserve objection no in the trial court (See prospectively only, require id. pp. [adopting, at 635-643 for cause. error in excusáis Witherspoon/Witt excusal allegedly erroneous objection to an contemporaneous ment of a (1980) overruling People Velasquez Cal.3d v. preserve appeal], the issue for excusáis, 341].) object failure to to these may defendant’s P.2d We consider Cal.Rptr. however, proper. were the excusáis supports it our conclusion to the extent McKinnon, 644, 650, 651.) supra, pp.
should the death She wrote that she hear” of the death get penalty. “do[esn’t] used too often. Asked to those crimes for which she being identify penalty believed the death should be or she mandatory, penalty possible appropriate, wrote, however, wrote “No. ?” and “None. ?” She also that the death penalty no She “Under circumstances.” wrote that she would inappropriate vote for the death if defendant were convicted of automatically penalty circumstances, murder with but answered “No ?” to the special counterpart whether would asking she vote for life in question automatically prison without She wrote that she would want to know about parole. “nothing” defendant before on the that she did not believe in deciding penalty, “eye for an and that she eye” could court’s assurance that principle, accept sentence of life in without would mean that. She wrote prison parole exactly that the costs of incarceration for life would be a consideration in her penalty decision, it “I feel would be better the death She explaining, penalty.” [than] further wrote that she would vote against a verdict of or guilt, against finding true, circumstances in order to special avoid to decide the having penalty because “I feel the death against She also wrote that she would penalty.” case, vote the death automatically against penalty every regardless evidence, however, because the death against B.H. penalty.” Notably, “[I’m] wrote that she could set aside her personal feelings what regarding be, evidence, should listen to the follow the law and the court’s instructions.
The voir dire of Juror B.H. Prospective as follows: proceeded all, The Court: “All Question First of right. answer to indicated you the death you correct?” oppose penalty, Juror Prospective B.H.: “Yes.”
The Court: “And then in 10 and 11 . . . were you asked to explain your views on the death You left that blank.” penalty. Juror
Prospective B.H.: “Uh-huh.” A, either, blank, B, The Court: “And can it left explain why you what views are?” your Juror B.H.:
Prospective “Because I didn’t know what to down.” put The Court: So “Okay. you just weren’t sure what to say?” Juror B.H.: “Uh-huh.” Prospective over time?” changed “And views on death your
The Court: have “No.” Juror B.H.: Prospective *42 what exactly you clear here on some of answers your The Court: “I’m not here, death such that under no Is about the feeling
feel your [f] it?” could vote to approve circumstances circumstances.” Juror B.H.: “Under no
Prospective The Court: “None whatsoever?” Juror B.H.: “None whatsoever.”
Prospective crime in if this were the most horrible The Court: So if—even “Okay. history?” if.” Juror B.H.: “Even
Prospective in history, you if the defendant was the worst person The Court: “And even could not—” “I don’t believe in it.” Juror B.H.:
Prospective ma’am. You’re excused.” The “All Thank right. you, Court: excusal; for the nor did he ask did not object Defense counsel B.H. opportunity question that B.H.’s views the trial court’s conclusion record
The amply supports or substantially impair perfor- the death would prevent regarding her written Although questionnaire in this case. mance of her duties as juror dire made it her answers on oral voir ambiguous, were somewhat responses beliefs, to vote to she was unwilling impose clear that because of her quite circumstances, if this were the most even under any die death penalty to as- the court had opportunity in history.” Again, “horrible crime that her demeanor, to its assessment and we defer implicit B.H.’s sess 451; Stewart, Cal.4th at see supra, p. credible. v. were responses Uttecht, abuse of discretion 9.) appears. U.S. at No supra, p. challenges on these rulings to the trial court’s deference argues
Defendant on the basis the court ruled primarily because for cause is unwarranted likens this case to He any indepth questioning. without written questionnaires, five erred Stewart, by excusing trial court had concluded the in which we for cause based on their written to the prospective jurors solely responses Stewart, 440-454.) 33 Cal.4th at In juror questionnaire. (People supra, pp. so, we did defer it doing to the trial court’s assessment because was “informed no more than the of the five information cold record prospec- tive check jurors’ marks and brief handwritten comments—the exact same (Stewart, 451; accord, information” we had before us. U.S. v. supra, p. (10th 2000) Chanthadara Cir. 230 F.3d the trial court [“because demeanor, here was not in a to observe it position prospective juror’s] [the was in no better than answers”].) court to assess her position appellate Defendant the same argues here because the court’s oral reasoning applies was so brief. questioning Stewart,
We Unlike in here the disagree. court did not base its decision *43 Instead, solely M.F.’s and B.H.’s written to the responses questionnaire. the court them and in questioned orally outside the of other person, presence demeanor, It thus jurors. had the to assess their both before and opportunity during as well as the questioning, of their Even a brief sincerity responses. session of oral voir dire such as occurred here valuable information provides Here, to the trial court that is unavailable from a review of the cold record. the court had a sufficient observe opportunity jurors’ prospective demeanor, voice, confidence, tone of level of facial apparent expressions Stewart, body (See 451; language. v. 33 Cal.4th People supra, at see also p. Uttecht, Witt, 9; 551 U.S. at supra, U.S. at p. supra, 469 p. [“deference Moreover, must be to the trial who sees and paid judge hears the juror”].) as above, explained we defer to the trial court’s determination that implicit additional would not have rendered questioning these jurors prospective Mills, 190; to serve. eligible v. Cal.4th at (People supra, 48 v. People p. Martinez, 446.) 47 Cal.4th at supra, We do so because that determination p. circumstances, itself was based on all the the individual’s including question- dire, naire his or her responses, on oral voir and his or her responses demeanor in court. It follows that we likewise must defer to the trial court’s ultimate assessment of the of statements the credibility prospective jurors made in to the court’s response questioning. contends, nonetheless,
Defendant that the evidence cited above failed to establish a basis for M.F. and proper excusing B.H. on the Relying that proposition “who believe that the death prospective jurors firmly is unjust nevertheless serve may as cases so jurors as capital long they state clearly are they willing set aside their beliefs in temporarily own McCree, deference (Lockhart to the rule of law” v. supra, 176), 476 U.S. at p. he these complains were not prospective jurors given to state opportunity Here, could they set aside their beliefs. We personal disagree. Prospective Juror M.F. twice wrote on his that he would be unable to set questionnaire court, aside his beliefs and the law. The trial personal apply as having demeanor, sessed M.F.’s was entitled to credit those B.H. Although responses. views, aside her stated on her that she could set her questionnaire personal court, clear voir those The trial answers on oral dire contradicted statements. demeanor, was undoubtedly “aided as it its assessment [B.H.’s] (Witt, entitled in favor of the State.” [any supra, to resolve ambiguity] 434.) held the at Defendant also notes in Stewart we U.S. p. “bare were to establish written insufficient prospective jurors’ responsefs]” “during basis for exclusion for cause absent clarifying followup questioning would be in the explain jurors which the court able to role of further demeanor, make an examine the judicial system, juror’s prospective decision.” of that death ability weigh assessment person’s Stewart, added.) this 33 Cal.4th at italics (People supra, p. By v. statement, is required we did not that a trial court in all instances suggest oral the role in the jurors judicial system. during questioning explain Rather, above, trial courts considerable discretion as explained possess formulate the to be on voir dire to tailor those questions asked questions Mills, to the of each v. juror. supra, needs individual prospective (People Martinez, 446; 189-190; at v. 47 Cal.4th supra, p. Cal.4th at pp. People Thornton, Here, the trial court 419-425.) v. 41 Cal.4th at supra, pp. in the jurors could have concluded an the role reasonably explanation in a to sit was not to render judicial system “likely qualified [M.F. B.H.] Mills, 190.) case.” capital supra, p. *44 (2003) 31 Cal.Rptr.3d on v. Heard Cal.4th 946
Finally, relying [4 131, 53], court have followed defendant asserts the trial “could easily 75 P.3d beneath the surface question- with additional up questions designed probe naire could an explanation governing have “provided responses,” B.H.’s them. In MJF.’s and to follow legal ability explored principles” Heard, that a to a juror’s response single question we determined prospective when was his removal for cause on the insufficient support questionnaire that oral voir dire of the later on after juror changed explanation response 964—965.) the further noted that (Id. the at We governing legal principles. pp. conclusion dire did on oral voir not juror’s responses support prospective substantially the would that views death regarding penalty prevent his added, the trial court of his duties as a juror, impair performance “[i]f concerning views as to whether H.’s [Prospective remained uncertain Juror] or to otherwise to follow the law ability the death would his impair penalty free, course, with was to follow up duties as the court juror, his perform Here, contrast, were and B.H. (Id. 965.) at additional M.F. questions.” p. voir contradicted on on were responses excused based questionnaire consistent. and oral were responses dire. To the M.F.’s written contrary, ones, contradicted some of her written B.H.’s oral responses Although trial from the uncertainty were sufficient to remove any like MJF.’s they case, to serve in this was unfit as a juror mind whether she regarding court’s that her views the court’s conclusion and also were adequate support would of her such substantially performance duties. Under circum- impair stances, further was not questioning required.
f. biased Assertedly jury Defendant his finally contends of biased and composed pro-death jurors. of the 12 Relying sitting principally questionnaire responses jurors, defendant contends that all either views would make expressed the death in all murder or had a strong cases bias favor mandatory of the death He further that four had been penalty. asserts crime jurors victims, victims or had members who were had family crime five connections enforcement, with law two had health “opinions” regarding mental testimony, and all 12 had personal alcohol and/or experience drugs.
Defendant did not for challenge cause of the seated any nor did he jurors; exhaust his challenges or constituted at peremptory object jury as His completion jury selection. claim therefore fails unless he can prove 1301, actual (2010) bias. v. (People Foster 50 Cal.4th Cal.Rptr.3d 658, 105], 242 P.3d (8th 1992) Johnson v. citing Armontrout Cir. 961 F.2d “ 754.) ‘Actual bias’ is ‘the existence of a state of mind on part case, juror in reference to the or to which will parties, prevent from entire juror acting with and without to the impartiality, prejudice ” Foster, substantial rights any party.’ at supra, p. quoting Proc., 225, Code Civ. (b)(1)(C).) subd. §
Our review of the record reflects none of the 12 who decided jurors case defendant’s exhibited actual bias him. Defendant relies against primarily on the jurors’ questionnaire held responses claiming they disqualifying views on the death (ante, other matters. But as above noted 32), the p. and the court in this parties case considered the to be questionnaire merely starting point court’s assessment of jurors’ prospective *45 Here, fitness to serve. the trial court each of the questioned about most jurors bias, of the questionnaire defendant identifies as responses and signifying both the defense and the the were prosecution given opportunity question them about any additional areas of Each concern.20 satisfied the court juror and counsel voir dire apparently on that he or she be could fair despite strong the death holding or been the victim opinions having of a penalty, crime, enforcement, or relatives or Mends in having law or having personal alcohol, with or about experience or opinions drugs, psychiaMc testimony. Moreover, we have concluded above that the Mai court did not exhibit a lack 20 To the extent defendant his by contends counsel rendered ineffective assistance conduct bias, ing a that inadequate juror voir dire was to uncover his claim appropriately is more raised 264, petition corpus. (1997) a for writ of habeas Tello v. Mendoza Cal.4th 437, 1134].) Cal.Rptr.2d 266-267 P.2d [62 dire, voir thus defendant’s claim that of impartiality conducting rejecting record, was On we find no the voir dire insufficient to uncover bias. this juror defendant. actually against evidence biased any juror
2. Asserted misconduct prosecutorial the in misconduct voir engaged during Defendant contends prosecutor He this and other instances of dire of Juror T.P. asserts that Prospective (see post, pts. II.C.2.), trial II.B.2. & misconduct occurring throughout law, his to due equal protection violated collectively rights process laws, to a reliable sentencing to trial before an impartial jury, Fifth, Sixth, and Fourteenth Amendments to Eighth determination under Constitution, Constitution and California federal parallel provisions verdicts. circumstances and special reversal warranting guilt, A The standards this claim are well established. governing prosecu it when infects the trial with tor’s conduct violates federal Constitution conviction a denial of due process. such unfairness as to make the resulting rise to this level nevertheless violates Conduct that does not by prosecutor use or methods to reprehensible California law if it involves the of deceptive v. (2000) (E.g., People Ayala court either the attempt persuade jury. accord, 3]; P.3d 23 Cal.4th 283-284 Cal.Rptr.2d Clark, 960.) misconduct 52 Cal.4th at To preserve' supra, prosecutorial p. “ make a timely specific objection claim the defendant ‘must for appeal, ” disregard trial to admonish the impropriety’ and ask the court cure the harm. so be or an admonition would not unless would futile doing (Clark, we we defendant has forfeited 960.) at As shall conclude explain, p. claims, misconduct any and in event fails to establish several of his occurred. dire, individual, voir Prospective
During sequestered, portion also with writing, with reading T.P. he had problems Juror mentioned he remember the substance of what names. T.P. said could remembering however, said, able to avoid confusion by asking and would be witnesses said or by witnesses what identify they deliberations jurors during other would not feel bad asking T.P. indicated he their characteristics. also physical of the exhibits. The reading any if he had difficulty other jurors help asked, sir, got in the trial you some “Assuming, point then prosecutor evidence, stack, court documentary primarily oh yay-high, handed ... would not be able to read such that you your difficulty reading Is papers. me a so. But it would take “I don’t think those T.P. responded, for yourself?” *46 T.P.’s with name problems to do it.” After further discussion time long volunteered, stack if—if confusion, big would be T.P. “My biggest problem would take him “a it.” T.P. it agreed time to go through I didn’t have enough while” read such papers.
53 cause, After the trial court denied the for challenge prosecutor’s occurred following exchange of T.P.: presence The I address the Your Honor?” prosecutor: “May point, The Court: “Briefly.”
The “Thank The Court has to Mr. twice prosecutor: you. [f] indicate[d] [R] that he get can the assistance of other to tell what the evidence jurors [him] And is. I don’t think he gets the services of a reader in deliberations to jury decide on the validity convictions. That troubles me prior greatly.”
The Court: “Well—” Defense counsel: “Now Pm have for cause because going challenge subject convictions has come prior in voir dire.” up The Court: “Okay.”
The “I I prosecutor: apologize. didn’t realize I had said it that way.” The Court: “All sir. You’re right, excused.” ' inadvertent,
Defendant contends that if even comment was prosecutor’s it compromised the fairness of the trial because it caused the defense to lose a cause, it prospective juror had previously for allowed the passed prosecution to remove a cause, had prospective juror it unsuccessfully challenged contributed to the overall asserted bias pro-death jury.
Defendant’s claim fails. Defendant’s to a fair and right impartial did not jury entitle him to a jury of any individuals. composed particular v. Thomas (1990) 865], 218 Cal.App.3d Cal.Rptr. [267 Howard citing (1930) Moreover, 333].) Cal. P. comment did not prosecutor’s render the trial unfair. No ftmdamentally other comment; juror was to the prospective exposed T.P. himself was excused; above, and as we have concluded defendant has not established that either the selection or the process jury itself lacked impartiality.
B. Guilt Phase Issues
1. Accomplice corroboration Section conviction prohibits based of an “upon testimony unless it be accomplice corroborated such other as evidence shall tend to *47 the defendant with the of the offense.” Defendant raises connect commission the trial based on this he asserts Specifically, several contentions provision. motion for a directed verdict based on insufficient court erred his by denying the evidence. He further contends court erred corroborating nonaccomplice a instruct the that John Richie was an as matter by failing accomplice jury of and that it the of the with distrust. testimony law was view accomplices and to due He these errors him of his under state law argues rights deprived determi- fundamentally of law and fair and reliable process guilt Fifth, the federal nations under the and Fourteenth Amendments Eighth Constitution, his for first degree that we set aside convictions require as well as the circumstances and jury’s murder and robbery special conclude defendant’s claims lack determinations. As we shall we explain, merit. the evidence Sufficiency of
a. Joe, the Melissa Fader and Michelle Defendant’s accomplices, provided at the Avenue house on what occurred Nebraska testimony regarding primary Robbins was killed. John Richie testified about events the Sherman night murder, Rick testified and both he and Saso occurring before the robbery events afterward. occurring about guilt phase of the presentation prosecution’s
At conclusion case-in-chief, a of under section judgment defendant moved for acquittal 1118.1, corroborating evi- on insufficient assertedly nonaccomplice based assumed Richie’s counsel out that the had parties dence.21 Defense pointed murder to him would corroborate that defendant had admitted the testimony asserted, had because Richie of Joe and Fader. And counsel yet, the testimony and Joe Richie of a to commit a testified burglary, testified he was aware plan abettor whose testimony her Richie was an aider and a gave pair gloves, Counsel further not be used to corroborate other accomplices. could evidence connecting other uncontradicted independent, there no argued to the murder. In response, either to the stolen property defendant he’s a fall into the category maybe conceded that Richie “might prosecutor of he’s category clearly he fall into but doesn’t co-conspirator, continued, event, testimony Saso’s In co-conspirator.” prosecutor out of’ coming for “stolen exchange he to defendant in drugs property gave to connect defendant corroboration independent was sufficient burglary 1118.1 The court denied section and murder of Robbins. trial the robbery jury, a case tried the court part: “In before provides pertinent Section 1118.1 motion, side and close of the evidence on either or on own motion of the defendant its decision, entry judgment shall order the is to the before the case submitted accusatory if the evidence then charged pleading or more of offenses acquittal one appeal.” offenses on a conviction of such offense or is insufficient to sustain before court
motion, that the evidence did establish Richie was an accom- concluding and that “further plice, testimony Saso’s corroboration.” provided error; Defendant contends the court’s was we “In ruling mling disagree. 1118.1, a motion of a court judgment to section trial acquittal pursuant the same standard an court in suffi applies the appellate applies reviewing ‘ conviction, is, the of evidence to a the ciency “whether from support evidence, therefrom, all reasonable drawn including inferences to be there is ’ ” any substantial evidence of the existence of’ of the charged the elements 1158, (2004) offense. 33 (People v. Cole Cal.4th 1212-1213 Cal.Rptr.3d [17 532, 811]; accord, 1, P.3d (2011) 95 v. Dement 53 People Cal.4th 46 [133 496, 292].) P.3d 264 Substantial evidence is Cal.Rptr.3d defined as “evidence reasonable, credible, that is and of solid value—from which trier a reasonable of fact could have found the defendant guilty reasonable doubt.” beyond Cole, 1212; v. at (People (1979) see Jackson v. U.S. supra, p. Virginia 443 307, 560, 2781]; 317-320 (1980) L.Ed.2d People 99 S.Ct. v. Johnson 26 [61 “ 557, 431, Cal.3d 738].) 578 606 P.2d ‘Where the Cal.Rptr. section [162 case-in-chief, 1118.1 motion is at made the close of the prosecution’s of sufficiency the evidence is tested itas stood at that point.’ [Citation.]” Cole, 1213.) v. at (People “We review supra, p. trial court’s independently ruling under section 1118.1 the evidence is sufficient to support (Ibid.) conviction.”
An is who “one is liable to accomplice for the identical prosecution offense charged defendant on trial against cause which the (§ testimony 1111.) is The accomplice given.” of accom testimony be must corroborated “such plices other evidence as shall tend to by connect the defendant with the commission of (Ibid.) the offense.” Such may evidence “ ” from, from, not come or require ‘aid or assistance’ of other testimony or the accomplices (2005) himself. v. Davis 36 accomplice (People Cal.4th 510, 96, 417]; 543 115 P.3d v. Cal.Rptr.3d (1972) 7 Cal.3d People Perry [31 756, 161, 129].) evidence, however, 769 Cal.Rptr. 499 P.2d The need [103 Davis, not corroborate fact to which the every testifies. v. accomplice 543; 557, supra, v. (2002) Gurule 28 Cal.4th at p. People Cal.Rptr.2d [123 “ 345, 224].) 51 P.3d evidence be ‘Corroborating may slight, may be entirely circumstantial, and need not be sufficient to establish element every charged offense. The evidence ‘is sufficient it tends if [Citations.]’ [Citation.] to connect the defendant crime in such a asway jury satisfy that the telling (2001) is the truth.’ accomplice (People v.Lewis [Citation.]” 334, 272, Cal.4th 34].) 28 P.3d Cal.Rptr.2d [110 The trial court jurors instructed the that Joe and Fader were as accomplices a matter of law and was it to them to decide if Richie up was accomplice. Here, evidence connected defendant to the ample murder robbery Robbins of all of independently testimony these witnesses. 7, 1994, First, his arrest on Detective Giles New testified that upon April “ blurted, T sooner get picked defendant spontaneously expecting up ” to hide is under noses.’ The your or later. Sometimes best place right defendant could concluded this statement was an admission have 1220; Code, (Evid. his People connection and murder. robbery § Davis, 10; (2004) fn. v. Horning 36 Cal.4th 537-538 & supra, pp. 305, 228].) state fn. 5 102 P.3d This Cal.Rptr.3d 34 Cal.4th to the ment alone was sufficient corroboration defendant independent tying *49 Fader, Joe, the and Richie if the testimony jury crimes to render admissible Davis, at (See Richie was an v. accomplice.22 People supra, found 10, and admissions 537-538 & fn. 546 admissions adoptive pp. [defendant’s murder, and robbery him to crimes of jailhouse linking charged on tape corroboration of legal testimony]; sufficient provided accomplice kidnapping 518, 145, 73 P.3d (2003) 31 Cal.4th 556 People Cal.Rptr.3d 1137] v. Brown [3 to and murder corroborat robbery admissions crimes of supplied [defendant’s evidence].) ing
Second, defendant testified that he negotiated directly Rick Saso a the he would in for two exchange guns, amount of regarding drugs supply and located in Richie’s Saso testified he shotgun, apartment. .22-caliber rifle a the but 1/16 of an ounce of methamphetamine guns, offered defendant “a “cheated” defendant eventually demanded an Saso “eight-ball.” defendant him and than 1/16 of ounce. Saso was little bit” 1.5 gave grams—less evidence, defendant, which the to not Richie. This gave drugs “sure” he the stolen from Nebraska defendant to possession connected property house, strong the murder also was including Avenue possibly weapon, (See to murder of Robbins. robbery defendant the and corroboration tying 24, 792, 831 P.2d (1992) 2 Cal.4th Cal.Rptr.2d v. Fauber 834-835 [9 that him gave property witness’s defendant testimony [nonaccomplice 249] corroboration to the victim constituted independent to have belonged proved witness].) of accomplice to the robbery did not tie defendant testimony
Defendant Saso’s argues bought that the Saso guns was no murder because there independent proof the Nebraska Avenue house. He the stolen from guns Richie’s were apartment he about a week after acquiring testified sold the guns that Saso emphasizes parole charged when the offenses testimony that defendant was on Relying on Richie’s occurred, to argued testimony was insufficient corroborate jury that New’s defendant referring was defendant accomplice testimony jury reasonably because the could conclude robbery repeat Defendant does not and murder. parole as a absconder and his status here, Although jury that if two argument good was instructed and with reason. evidence, accept that it must inference from circumstantial reasonable inferences arise innocence, support judgment. of the draw reasonable inferences appeal we all points Here, 80].) is (1993) Cal.Rptr.2d 854 P.2d it Wader 5 Cal.4th referring murder. that to the Robbins reasonable to infer defendant
them, The guns and the themselves were never introduced into evidence. evidence, however, infer, was sufficient for independent Fader, Richie, testimony were taken Joe that Saso guns bought from a the Nebraska Avenue house. Saso described two guns: purchasing “.22” and a Bill shotgun “guess[edj” he was “maybe 20-gauge.” Robbins testified rifle similar .22-caliber guns—a Remington he missing when returned home from Ireland. Saso 12-gauge shotgun—were room, also he testified that while was at the guns Richie’s looking living box”; he noticed other including microwave oven a “boom property Bill Robbins testified that similar was stolen from his house. The property similarity guns bought Saso to those stolen from the Nebraska Avenue house, and their to other similar to that proximity property stolen from house, the conclusion that the were supported guns of the crimes. proceeds Saso further testified that Joe was on the acting he strangely day bought “scared,” guns; she was around the pacing and seemed apartment, “antsy” and “worried” in a way was different from how act when usually people *50 are they for their He waiting testified there was “tension” in the air at dope. the and were the apartment, people “running around” for first 45 minutes arrival, after his until defendant from the bedroom and emerged “just wanted to hurry get. . . some up dope.” The could have inferred the unusual jury behavior Saso described indicated consciousness of on the Joe guilt of part and the other of the further the occupants apartment, tying goods sold to Saso to the (Cf. and murder of robbery (2006) Robbins. v. Avila 38 Cal.4th 133 P.3d Cal.Rptr.3d con- defendant’s 1076] [evidence sciousness of guilt evidence].) constitute may corroborating
The evidence also one strongly suggested sold to Saso the guns was murder Saso said one of the a weapon. was guns “maybe 20-gauge” shotgun; criminalist Duane Lovaas testified the murder was a weapon likely 12-gauge shotgun which both through 12-gauge shells had been fired. 20-gauge testified, defendant, And Saso without from that the reason he sold objection the guns was that Richie told him defendant had shot someone with them.
Because the foregoing evidence was sufficient to link defendant to the and murder robbery of Robbins thus to the corroborate testimony and all we need not decide accomplices, whether the trial court properly considered Richie’s him about defendant’s testimony admissions to as addi- tional corroboration. to the extent Finally, defendant contends the evidence witnesses, insufficient as a matter lawof to corroborate the accomplice his claim fails for the reasons described above. jury
b. in instructions Asserted error accomplice instructions on With the court regard accomplices, began lengthy the It then instructed the corroboration.23 general accomplice principles were in “If of murder robbery relevant as follows: jury part crime[s] Fader were Michelle Joe and Melissa committed the witnesses anyone, law, is subject a and their the rule testimony as matter of accomplices corroboration, John You determine whether witness must requiring [f] . . . . The as I have defined . . term. Richie was an accomplice [f] of the evidence that defendant the burden of proving by preponderance has the defendant. in the crime charged against Mr. Richie was an accomplice to be viewed with distrust. This ought of an Testimony accomplice HI] [][](cid:127) (cid:127) (cid:127) testimony, you such but may arbitrarily disregard does not mean that you it be entitled after ... find weight should it which give of all the evidence in the it with care and caution and examining light 3.19, 3.16, Nos. instructions tracked CALJIC language case.” These and 3.18.24 on its own the court erred to instruct by failing
Defendant contends An is as a matter of law.25 accomplice motion that Richie was an accomplice against for the identical offense charged “one who is liable to prosecution is testimony trial the cause in which the accomplice defendant on under must be (§ 1111.) principal “To be so witness chargeable, given.” 23Thus, subject prosecution person accomplice that an is court instructed 3.10); (CALJIC a defendant charged against the defendant No. offense identical *51 testimony testimony accomplice of unless that is guilty based on the an cannot be found the of the by the defendant with commission other evidence that tends connect corroborated 3.11); testimony accomplice, an there must be (CALJIC the of No. that to corroborate offense believed, aid, which, by if itself and without act fact related the crime evidence of some or testimony accomplice, to connect the defendant the the tends interpretation or direction from of crime, every necessary that the evidence establish the but it is not with the commission of accomplice testifies every to which the charged or corroborate fact element of the crime testimony by of 3.12); may supplied not be the (CALJIC required the corroboration No. that 3.13); aiding assisting in (CALJIC merely assenting or the to or accomplices No. and that other knowledge purpose perpetrator the of the and without unlawful of a crime commission commit, of the crime encourage facilitate the commission purpose or or without the intent 3.14). (CALJIC accomplice an No. does not make one 24 defining by principals portion of the instructions accomplice court concluded the The (CALJIC 3.01), describing 3.00) by and the “natural (CALJIC abettors No. No. and aiders and 3.02). (CALJIC No. consequences” probable and doctrine 25 Fader on own motion that by failing to instruct its contends the court erred Defendant also acknowledges, the court as defendant accomplices as a matter of law. But and Joe were anyone, by robbery were committed jurors of murder and the that the “[i]f crime[s] instructed law, and their accomplices as a matter of were Joe and Melissa Fader the witnesses Michelle was sufficient to This instruction requiring corroboration.” testimony subject is to the rule accomplices as a matter of that Joe Fader were satisfy obligation to instruct the court’s law. defines the
section 31. That section
as
concerned in
principals
persons
‘[a]ll
crime,
commission
.
the act
they
constituting
of a
whether
. .
commit
directly
offense,
(§ 31.)
the
aid and abet
.
An
or
in its commission
. .
aider
abettor
one
is
who acts with both
of the
criminal
knowledge
perpetrator’s
intent
facilitating
and the
or
commission of
purpose
encouraging
offense. Like
an aider
abettor is
conspirator,
guilty
only
facilitate,
offense he intended to
reasonably
but also
encourage
v.
foreseeable offense committed
he
and abets.”
aids
perpetrator
Avila,
supra,
Hayes
citing People
564,
(1999)
Cal.4th at
v.
21 Cal.4th
p.
1211, 1271,
211,
645].)
fns. 19 & 20
989 P.2d
“Unless there
Cal.Rptr.2d
[91
can be
inferences
no
the evidence or the
to be
concerning
drawn from
dispute
evidence,
whether witness is an
for the
is
accomplice
question
jury.
hand,
On the other
the court should instruct
that a
witness is
as a matter of
accomplice
law when
facts
establishing
witness’s status
‘ “
” ’ ”
v.
(People Williams
as an
are
‘clear and
accomplice
undisputed.’
584,
v.
(2008)
People
1035];
43 Cal.4th
see
Cal.Rptr.3d
P.3d
Fauber,
supra,
We disagree. Neither the facts defendant nor relies the inferences to upon Fauber, be drawn People supra, (See therefrom were v. 2 Cal.4th undisputed. Williams, 834; supra, 636-637.) see also p. 43 Cal.4th at pp. First, Joe testified inconsistently who her On direct regarding gave gloves. examination, Sisk, Joe said the “came from” but she gloves get did not Kathy *52 Further, them from Sisk she was “not if she sure” “personally.” got gloves Richie, from and she also was “not sure” if defendant them On handed to her. cross-examination, Joe said that neither Sisk nor defendant her the gave rather, gloves; got she them from Richie. Richie not was not asked and did Thus, about he testify whether Joe a of it gave was to the pair gloves. up jury who, to Moreover, determine if Joe a of anyone, gave Richie pair gloves. testified that after hearing about he planned with burglary “pleaded” defendant not to and defendant assured he participate, Richie would not. Thus, even if the Richie a jurors concluded Joe of gave pair gloves child, agreed to Joe’s the evidence babysit defendant describes merely 60 dictate, does conclusion” that Richie acted with the but not
“supports, (People intent to or facilitate the commission of the v. encourage burglary. Fauber, at The trial 834.) court therefore instructed supra, p. properly jury accord, Avila, (Ibid.; v. to decide Richie was an People whether accomplice. 565.) 38 Cal.4th at supra, p. both a
Defendant Richie’s involvement in argues supplying buyer sale, their and in in the sharing for the stolen location for goods crimes, that he was an accom also conclusion supports proceeds little drugs exchanged says But Richie’s stolen items sharing plice. Further, the sale of assisting about his before the crimes occurred. intent have Richie stolen after the crimes were completed might subjected property (See is “[e]very as an 32 accessory. accessory person prosecution § [An who, committed, harbors, has been conceals or aids felony principal after avoid or from may escape in such with the intent that said felony, principal arrest, trial, that said having knowledge conviction or punishment, principal . liable to .”].) has such . . But an is not felony accessory committed is not an for the identical offense as a therefore principal, prosecution 1068, 11 Cal.4th 1114-1116 (1995) v. Horton accomplice. (People [47 crime, 516, including P.2d actions after 906 Cal.Rptr.2d [witness’s 478] defendant to driving items from defendant’s abandoned vehicle retrieving did as an but accessory, a bus have witness might implicated depot, Fauber, supra, v. Cal.4th People him to subject accomplice liability]; 833-834.) pp. event, instruct on even the trial court erred assuming by failing
In law, a matter such failure its own motion Richie was as accomplice evidence in the record. if there was sufficient corroborating was harmless Brown, Williams, 636-638; People supra, 43 Cal.4th at v. (People supra, pp. v. evidence connected 556.) 31 Cal.4th at As we have explained, ample p. and murder from the testimony defendant to the crimes of robbery apart Richie, Fader, and Joe. error did not defendant. Any prejudice instruct the court erred by failing
Defendant contends trial finally Fader, Joe and Richie. distrust the testimony view with accomplice on behalf testimony given with “distrust” accomplice An instruction view 1996, tried.26 when this case was (E.g., prosecution required 122, 929, 846 P.2d 4 Cal.4th (1993) Cal.Rptr.2d Zapien [17 court, however, that the must 704].) testimony accomplices instructed The distrust, Joe that Fader and were and further instructed be viewed with juries holding years requirement that henceforth prospectively, Two later we modified this to the extent it testimony accomplice of an be to view with “caution” should instructed (1998) 18 Cal.4th v. Guiuan “tends to incriminate defendant.” 928].) *53 Cal.Rptr.2d P.2d 957 aas matter of law and that
accomplices it was to the to determine if up Richie whole, was an accomplice. Considering instructions as a as we v. Moore must (2011) Cal.4th Cal.Rptr.3d 1153]), P.3d we conclude the jurors would have understood were to they Fader, view with Joe, distrust testimony and—if they determined he was an No accomplice—Richie. error appears.
2. Asserted prosecutorial misconduct Defendant to three points instances of asserted misconduct prosecutorial that either occurred during guilt or affected the phase We guilt phase. conclude these claims lack merit.
a. Asserted misconduct during examination John Richie During prosecutor’s Richie, direct examination of John the following exchange occurred:
The Richie, “And Mr. prosecutor: are defendant, you with the acquainted Whalen, Daniel at the far sitting end of counsel table?” Richie: “I have known him a short very time.” The “When prosecutor: did you first meet him?” Richie: “At a called place Butler’s Camp years ago.” The prosecutor: “About—how many years ago? Roughly?” Richie: “Five.”
The prosecutor: that, “Could it have been a little earlier than in ’87 or ’88?”
Richie: “Pm not sure. It was during my—I living there.” The “Was prosecutor: there some of time gap between last time you saw him four or more years ago and when saw him in 1994?”
Richie: “Yes. He—he mysteriously disappeared.” ” Defense counsel: “Objection, Your Honor. Move to strike all after ‘yes.’ *54 The Court: “Sustained.”
Defendant contends the in misconduct engaged by questioning prosecutor defendant, Richie about of time” in his with while “gap acquaintance prior the court had ruled references to defendant’s convictions knowing He would have argues jurors “readily incarceration were improper. a of concluded” defendant’s referred to period “mysterious disappearance” incarceration. directed
The because were they were prosecutor’s questions proper defendant, of of with an area relationship nature Richie’s length inquiry in defendant. The questions relevant to Richie’s credibility testifying against a short period were to show Richie had known defendant designed only time had and the two were not the circumstance close—despite they met before the crime occurred—and initially years prosecutor several Moreover, the jury could not have Richie’s answer. reasonably anticipated not refer to would have understood necessarily “mysterious disappearance” incarceration, event the trial court struck comment any period misconduct, No unfairness prejudice appears. on defendant’s request. notes and b. Failure to turn over handwritten expert’s photographs he Justice John Miller testified that participated criminalist
Department Among scene March other in the of the crime on 1994. investigation sketches, tasks, some took collected ballistics Miller made photographs, evidence, the shot that killed Robbins. and reconstructed the trajectory fired from within a few Miller concluded that fatal shot was probably floor, victim, to the at an of about 30 relative angle degrees inches in which was found. body the victim shot in his position was probably cross-examination, whether he had defense counsel asked Miller During had at the crime scene. Miller him of the sketches he made any in my “a measurements notes.” that he had sketch without single responded with his along Miller sketch defense counsel’s request, produced Upon cross-examination, but soon to renew his notes. Defense counsel attempted “Well, numerous Your Honor. sorry, Despite requests I’m stopped, explaining, notes, file. can’t first I’ve ever seen this I this is the time for all handwritten to review these time having this witness without cross-examine adequately down, defense counsel indicating directed Miller to notes.” The court step him he wished to cross-examination if counsel had further could recall conduct. mistrial, based part moved for
Later that same
defendant
day,
manner. Defense
Miller’s notes in
timely
to produce
failure
prosecution’s
counsel
that while
the notes for defendant’s
explained
copying
investigator,
Miller had
seven
film that had
but
discovered
rolls of
been
developed
*55
out that
nor the
printed. Counsel
neither Miller’s notes
pointed
photographs
had been
in
to either
to the
“forthcoming”
his letter
response
prosecution
order,
informal
or
court’s
several
requesting
discovery
issued
months
trial,
before
that the
all
of
and
prosecution provide discovery
photographs
handwritten
Counsel conceded he was
notes.
“convinced”
had
prosecutor
turned
over all
his
did not
which
include
photographs
possession,
Nonetheless,
from the seven
rolls of
prints
recently discovered
film.
he
argued that the failure to turn over the notes and
earlier had
photographs
the defense because its
had
prejudiced
investigator
not had
opportunity
and,
determine the evidentiary or
value of the
rolls of
seven
film
exculpatory
“oh,
continued,
half an inch thick sheet of handwritten notes.” He
“[espe-
I did
time
cially
not have
benefit of those handwritten
at the
*56
to the
on
knows of or
but includes ‘evidence known
others acting
possesses,
case,
the
in the
the
For
government’s
including
behalf
police.’
[][]
[Citation.]
Brady
if it
the
or hurts the
evidence is favorable
defense
helps
purposes,
a
as
witness.
Evidence is
by
prosecution
prosecution,
impeaching
[Citations.]
material
if there is a
its disclosure would have altered
probability
reasonable
the trial
includes consideration of the effect of
result.
Materiality
[Citation.]
the
on defense
and trial
investigations
strategies.
nondisclosure
[Citations.]
the
evidence was
only
Because a constitutional violation occurs
if
suppressed
Brady
standards,
a
was not satisfied is
finding
material
these
by
reversible
need for
further harmless-error
review.
without
[Citation.]”
1082,
297,
v. Zambrano
41 Cal.4th
1132-1133
(2007)
Cal.Rptr.3d
[63
(Zambrano).)
Because participated he of the was was investigating agency, part prosecution employed team, to disclose and the therefore had constitutional duty prosecutor whether the regardless in Miller’s possession material evidence exculpatory, (See aware of the existence evidence. was personally prosecutor Zambrano, Whitley, Kyles supra, 1133; supra, see v. 41 at also Cal.4th p. not, however, met his burden on 437.) appeal U.S. Defendant has at p. disclosed evidence was either exculpa- show that the affirmatively belatedly Court Superior Denham (1970) Cal.3d (See or material. tory determination, 193].) We cannot ourselves make that 468 P.2d Cal.Rptr. the trial lodged were not filed because the notes and photographs Court, (See Cal. Rules of rule and are not of the record on appeal. court part disclosure of the delayed has defendant established that 8.610(a)(3).) Nor chance investigate present denied him a notes and photographs evidence and to consult to review the defense. Defendant had several days Miller, he his cross-examination with his criminalist before completed time for it additional might grant the court left open possibility evidence from the the ballistics retrieving time investigation, including has not indicate a need. Defendant should defendant sheriff’s department, allow him to effectively were insufficient these measures shown that Moreover, not identified cross-examine Miller. defendant has any particular evidence he was without the notes. unable develop
Further, is he lost the defendant correct that although likely opportunity to match the seven discov- attempt belatedly from photographs developed shoes, ered rolls of the claim that existing film with an he could have pair (See done so had the film been turned over is at best. earlier speculative Zambrano, cross-examination, 41 Cal.4th at supra, 1135.) On Miller p. testified that all of the left near the brush photographs prints shoe depicted on the pile Nebraska Avenue were property. Although photographs sufficient left general to determine characteristics of shoes that quality “distinctive,” and one of prints, print patterns photographs could he probably not be matched to a Miller further testified shoe. particular made; could not determine from when shoe were prints photographs could before they have been left the crime or after the crime. Accordingly, defendant has not established reasonable of a different result probability trial had the notes and been disclosed earlier.27 photographs brief,
In the defendant disavows reliance reply Brady its progeny *57 misconduct, and insists his claim is one of simply prosecutorial citing (1935) v. Berger United States U.S. 295 78 L.Ed. 55 S.Ct. We 629]. fail to see strengthens how this his claim. involved examina Berger improper tion of and misleading (see 85-88) witnesses id. at prosecutorial argument pp. and had to the nothing do with failure to disclose or exculpatory information event, to with a order. In as we comply discovery have explained, prosecutorial misconduct warrants reversal of a if it so infects judgment only the trial with as to due unfairness result in a denial or the involves process, use of deceptive or methods. reprehensible Ayala, 23 Cal.4th supra, Here, at 283-284.) defendant pp. conceded below that the had prosecutor been unaware of the existence of the undisclosed until were photographs they trial, discovered and there during is no evidence the prosecutor had been notes; aware of the therefore there was or nothing deceptive reprehensible Moreover, about the conduct. prosecutor’s for the reasons defend explained, ant has not that demonstrated the failure the to disclose notes and photo in a graphs timely fashion rendered his trial unfair. fundamentally His claim therefore fails. independent, discovery Defendant also had statutory right to real relevant “[a]ll 1054.1, evidence seized a part investigation charged” (§ or obtained as of the of the offenses (id., (c)) however, “[a]ny (e)). right, subd. and exculpatory only evidence” subd. That extended to “evidence possession prosecuting attorney by] ‘in the of the prosecuting the [known 1054.1.)” (Zambrano, attorney (§ agencies.’ ... to be in of the possession investigating the Here, supra, 1133.) p. prosecutor Cal.4th at defense possess counsel conceded did not
the undisclosed was not it during evidence aware of it until was mentioned statutory cross-examination of Miller. No violation appears. to evidence alleged rape Failure disclose
c. of defendant’s Fader Melissa that Nellie on behalf of the in March prosecution testified Thompson to According Melissa Fader lived in a rented trailer on property. Thompson’s month, door and one that Fader came Thompson, day crying Thompson’s want $5 her did not give grinder. asked for Thompson Thompson left Thompson’s $5 but Fader Fader grinder, gave anyway. grinder by had that because crying day door. Fader later told that she been Thompson she had been raped. time Fader the stand.
A short after finished took Thompson testifying, that from Saso had been Fader testified after the received methamphetamine in Richie’s divided she defendant some ingested drug up, Defend- rolling bathroom. Fader returned to bedroom began pennies. ant room wanted to “mess around.” Fader told defendant she entered the “ ” around,” Fader ‘you’re did not but defendant said gonna.’ want “mess after heard and after defendant was afraid of having gunshot defendant at her the Nebraska Avenue house. She therefore complied pointed gun demand “under force” for five to minutes required defendant’s bedroom, and Joe took Fader home. the sex act. Defendant left the complete later, that had her About Fader told defendant Thompson raped week tell else about it. anyone she but she did not day grinder, got defendant moved a mistrial based a break Fader’s During testimony, to the defense. Defense alleged on the failure to disclose the rape prosecutor’s from that testimony counsel it was clear Fader’s argued prosecutor had her. Counsel explained, aware Fader would defendant testify raped to that get used “it’s clear from line of questioning prosecutor] [the *58 about he and he didn’t tell me it.” coming, anything knew what was point, because testimony highly prejudicial Counsel that the “hidden” was argued and there was no mention of defendant had not been with charged rape, that had been to the defense. any reports provided rape police awareness, “I no clue. All I had The denied prosecutor any prior explaining examination], was out in as finding I through was as went doing, [direct I she was Because doing. where she was what much detail as possible do Fader was to I needed to with Melissa that of the things felt one different in terms the time where setting John Richie corroborate her in that And I was as being at times. so precise were various people about the The time that I knew I was else. first as everywhere apartment [][] testified this when Nellie Thompson at all in this case was word rape this case. I it connection with—to I had no idea had any And morning. stand, I testified on. Melissa Fader .on rambling was just she thought [f] was, think, I the next or so after she said that—what asked her question said, ‘No, ‘Have ever about this?’ And she with the told anybody [f] didn’t of Nellie There are no because we exception reports, Thompson.’ [f] know.”
The trial court motion “I’m not convinced concluding, denied mistrial and don’t the defense sandbagged believe that prosecutor] intentionally [the with this information.”
Defendant contends the
in misconduct and violated
prosecutor engaged
both constitutional and
to disclose to
duties
disclosure
statutory
failing
the defense that Fader would
defendant had
her. We
testify
disagree.
raped
The record
the trial court’s conclusion that
supports
prosecutor
unaware of Fader’s accusation and did not
hide it from the
intentionally
defense. Fader testified she had never told
other than
anyone
about
Thompson
Freitas,
the alleged
Sheriff’s
who retrieved
rape.
Department Sergeant Darryl
the grinder from
testified that
did not mention
Thompson,
Thompson
any
And defense
Alan Peacock
investigator
testified
never
rape.
Thompson
mentioned the
him until the
she
Defendant’s
alleged
testified.
rape
morning
trial
argument
issue
would have come
“inevitably
up” during
is
As
“I don’t believe
is
preparation
speculative.
prosecutor argued,
[it]
all unusual under
circumstances that when a woman
it doesn’t
any
gets raped
Nor does the
get reported.”
suggest
prosecutor’s pattern
questioning
prior
Rather,
knowledge.
the record
that he
supports
prosecutor’s explanation
asked Fader detailed
about the
of events
her
questions
sequence
throughout
in order to corroborate
there is no
testimony
other witnesses. Accordingly,
knew,
known,
evidence that the
or should have
of the information
prosecutor
Zambrano,
(cf.
supra,
[Brady
In defendant fails to show Defense counsel was able prejudice. to cast doubt on the of Fader’s accusation its late veracity by highlighting Further, disclosure and motive to Fader. the evidence of Thompson’s help *59 defendant’s own corroborated guilt—consisting eyewitness testimony by The did not even mention the in his admissions—was strong. prosecutor rape summation, and it in rebuttal guilt briefly addressed opening phase only to defense counsel’s Fader’s At the argument credibility. response questioning the mentioned the although during argument briefly penalty phase, prosecutor II.C.2.a.), post, (see while defendant lacked remorse he did arguing rape pt. 68 evidence, it, on but rather focused on the lack of mitigating
not dwell crimes, and the the other circumstances of the offense defendant’s prior the evidence of defendant’s strong guilt on the victims. Given impact crime, the we are other evidence of his behavior both and after during callous guilt no role alleged during jury’s phase satisfied rape played calculus. deliberations and did not weigh heavily jury’s penalty error jury 3. Asserted instruction as a lesser
a. Asserted error in to instruct failing theft robbery included offense of (CALJIC on the elements of robbery The trial court instructed jury (CALJIC 9.40), theory No. first murder under degree robbery-felony-murder 8.10, (CALJIC 8.20), and 8.21), first murder No. degree Nos. premeditated (CALJIC 8.80). circumstance No. The court the robbery-murder special stolen as a lesser offense receiving further instructed on the crime of property the trial 14.65.) Defendant did not (CALJIC No. robbery. request, theft. court did not instructions give, regarding court had a to instruct on its own duty
Defendant now contends trial He contends as a lesser included offense of robbery. motion theft regarding trial, him his to a fair rights jury the error violated state law and deprived law, determinations under and to reliable guilt to due process Fifth, Sixth, Amendments to the federal and Fourteenth Eighth Constitution, California requiring provisions Constitution parallel circumstances and determinations. that we vacate the guilt, special “ instruct on all jury general ‘The trial court is obligated evidence, whether or not relevant to the issues raised of law principles ‘That encom obligation the defendant makes a formal request.’ [Citations.] that, if if there is evidence on lesser included offenses instructions passes fact, the defendant of guilt the trier of would absolve accepted by Rogers (2006) (People 39 offense but not of lesser.’ greater [Citations.]” v. Breverman 1, People 826, 135]; 141 P.3d see Cal.4th 866 Cal.Rptr.3d [48 870, 142, P.2d spont 154 960 (1998) Cal.4th Cal.Rptr.2d 1094] [sua [77 e 84, 668, 603 P.2d v. Flannel (1979) Cal.Rptr. 25 Cal.3d duty]; [160 evidence, “Nevertheless, no of “any ‘the existence [duty request].) upon 1] a lesser included of instructions on how weak” will not justify matter where there is are only Such instructions required fense . . . .’ [Citation.] could conclude from which rational ‘substantial evidence’ offense, he of the greater and that is guilty defendant committed the lesser v. DePriest (2007) Cal.4th offense. [Citations.]” 896].) 163 P.3d Cal.Rptr.3d *60 in the of property posses is “the felonious
Robbery taking personal will, his another, and against or immediate presence, of from his person sion theft is the (§ 211.) In general, force or fear.” means of by accomplished of the or driving away personal carrying, stealing, leading, felonious taking, another, labor or money the of property, appropriation property the includes all of (§ 484.) robbery “The offense greater fraudulent means. theft, or fear. a force taking by the additional element of elements of from the intent to take If the defendant does not harbor property [Citation.] theft, fear, a force or the is taking only the at the time he applies possessor Davis, 562.) 36 Cal.4th at p. not a v. supra, robbery. [Citations.]” there was Defendant he was entitled to a theft instruction because argues that the the could have concluded substantial evidence from which jury taken by and the to be only main crimes guns—the proceeds proceeds from the removed exchanged drugs—were defendant personally have after the was shot. Defendant could argues jury house victim after that he as an guns only afterthought, concluded decided to steal further could have jury reasonably the victim. Defendant contends killing alone; and Fader there accordingly, ascribed the of other items to Joe taking could have absolved him of but robbery, was evidence from which jury him convicted of theft.
We We that there was evidence from which disagree. acknowledge jury after could have concluded defendant formed the intent steal guns therefore, victim, to the he was of theft. killing guilty only as guns, Davis, (See 36 Cal.4th at defendant formed the supra, p. [if victim, theft, intent to steal after the offense is Joe killing robbery].) and Fader both testified that after had removed from the house they property car, and were in or near the heard a shot. Defendant waiting they emerged car, that in the from house a After carrying shotgun. placing gun a defendant returned to the house and retrieved second gun.
Nonetheless, have there no evidence from which the could Fader, defendant, but not were liable for.the concluded Joe only concedes, Joe and from the house. As defendant taking other property victim, defendant, a at the still-living Fader testified that while pointing gun wallet, ordered Fader to tie him up, demanded to know the location of his and Fader take from the house to the car. Joe directed the women to property a further carried various items of they property—including testified oven, or “radio” or microwave and “stereo” jar typewriter, pennies, Thus, still alive. if the jury “boom box”—to the car while the victim was all, evidence from which believed Joe and Fader at there was no substantial have concluded that the of the microwave taking could jury reasonably oven, than a and boom box was less anything typewriter, jar pennies, *61 70 there was no substantial evidence from which the
robbery. Similarly, jury could have ascribed for the to Joe and Fader. To robbery solely responsibility all of the available evidence defendant contrary, suggested major in the and that he both in conduct participant robbery engaged personally intended victim) to evoke fear at the and directed the gun (pointing hands) of force Fader to tie the victim’s with the intent application (directing to facilitate the from the house. taking property reasons,
For similar even were we to conclude the court erred by failing theft, instruct the lesser included offense of we find jury regarding would the error harmless under standard. The evidence that defendant robbed any the victim force and fear while Joe and Fader removed various by applying items of from the house was and defendant property extremely strong, points to no evidence to the The occurred contrary. argued robbery prosecutor when was “loaded into the car while the held on property gun being [was] Robbins”; Sherman defendant did not contest Under seriously theory. circumstances, Watson (1956) these it is not v. 46 reasonably probable (People 818, 243]) Cal.2d 836-837 P.2d that the would have concluded jury [299 indeed, defendant was of theft but not also guilty guilty robbery, (see error Chapman was harmless reasonable doubt v. beyond California 18, 705, (1967) 824]). 24 386 U.S. L.Ed.2d 87 S.Ct. [17 Instructions assertedly undermining requirement of b. beyond reasonable doubt
proof Defendant contends that 10 standard instructions in his jury given 1.00, 2.01, 2.21.1, 2.21.2, 2.22, 2.27, 2.51, 2.90, case—CALJIC Nos. 8.83 allowed the to convict him 8.83.1—individually collectively based insufficient satisfy constitutionally “beyond upon proof required 358, (In re (1970) a reasonable U.S. 364 Winship doubt” standard. 397 368, 1068].) L.Ed.2d S.Ct. He that the error violated his argues right 90 [25 to due of law under the federal Constitution and reversal requires process Sullivan v. Louisiana (See (1993) 508 U.S. without into inquiry prejudice. 275, 182, concedes, 2078].) L.Ed.2d 113 S.Ct. As defendant we 278 [124 too numerous to recite. have this on occasions rejected precise argument 156, 635, Tate v. (2010) Cal.4th People (E.g., Cal.Rptr.3d 49 697-698 [112 763, 531, Kelly 428]; (2007) 42 Cal.4th 234 P.3d Cal.Rptr.3d [68 “is 548].) 171 P.3d As we have each of these instructions explained, when, here, as it is the usual instructions unobjectionable accompanied by doubt, innocence, and the burden of presumption People’s reasonable v. Nakahara (2003) Cal.4th proof.” Cal.Rptr.2d issue, but no 1190].) 68 P.3d Defendant invites us to revisit provides reason to do so. persuasive
c. Motive instruction 2.51, as to CALJIC former No. trial the jury The court instructed pursuant not be crime and need charged an element of the follows: “Motive is not circum- However, lack of as a consider motive or motive may shown. Absence guilt. in this tend establish may stance case. Presence motive *62 its give presence innocence. You will therefore may motive tend to establish be, absence, it to be find or the case which may weight as (1) jury permitted entitled.” Defendant contends this instruction alone; to him (2) shifted the burden of proof determine on motive guilt based innocence; (3) his and lessened to show of motive establish absence constitu- in his federal and state burden of violation of proof prosecution’s law, trial, and guilt and reliable rights tional to a fair due jury process harmless a reasonable He contends the error was not beyond verdicts. penalty and of the and verdicts. doubt reversal requires guilt instruction. Because of the goes clarity The first of these subclaims to the trial, at his is forfeited. defendant did not clarification subclaim request 118, v. 1067, P.3d Guerra 1134 129 (2006) Cal.4th Cal.Rptr.3d [40 Cleveland, 321]; we People supra, v. 750.) Substantively, at 32 Cal.4th p. (E.g., have held in that all the same subclaims lack merit. cases prior Guerra, 792; supra, v. v. at People Kelly, People Cal.4th at supra, p. Cleveland, 750; Cash 1134-1135; v. v. (2002) People supra, People at p. pp. 545, 703, 332]; 28 Cal.4th 738-739 P.3d Cal.Rptr.2d Hillhouse, revisit 503-504.) at decline to Again, 27 Cal.4th we supra, pp. these conclusions. Phase Issues and Miscellaneous Penalty Claims
C. in strike Asserted error motion to 1. denying defendant’s notice aggravation 1995, selection,
On before prosecution October the start 190.3, it evidence filed a notice to section pursuant identifying of aggravation other things, intended to and at the rely upon phase. Among introduce and neces- “documentary the notice stated the would introduce prosecution (see testimonial evidence” five convictions sary regarding prior felony 190.3, identified of each conviction (c)), county factor the date § introduce the offense The notice stated the would prosecution involved. also defendant of “criminal activity by evidence seven instances prior force or violence or the involving express use or use of attempted 190.3, (see (b)), use violence” factor and identified of force or implied § incident, activity and location of each of criminal type date approximate involved, and the names of witnesses. The potential noticed incidents in- cluded all of the incidents in actually presented aggravation at the penalty ante, (See 22-23.) phase. pp. later,
Two days defendant moved to strike the notice of aggravation. Defendant the notice argued was deficient because the had not prosecution provided facts and discovery circumstances surrounding incidents described in the notice and because notice does not list the addresses of “[t]he witnesses the intends to call.” He prosecution argued because notice did not sufficient of what provide knowledge defendant had to defend against no limits on the it him imposed to enable prosecution, inadequate his prepare case. Defendant asked the court to strike the notice and order the prosecution him with provide timely notice of the “actual evidence” to be time, presented aggravation. Around the same defendant also filed a motion seeking under section discovery which he inter requested, alia, names, addresses and numbers of all witnesses that are telephone “[t]he *63 authorities, known to the and/or prosecution investigating including penalty phase witnesses.”28 strike,
The the motion prosecution to but did not opposed defend- oppose names, ant’s for of the request discovery addresses and numbers of telephone witnesses. motions,
At the on these hearing defense counsel the acknowledged motion to strike the notice of was with aggravation intertwined the issues discovery in the case. He the argued nonetheless notice was deficient because it did not call, which specifically witnesses the identify intended to and prosecution “under 1054 we haven’t been with addresses or provided any any [section] other The way following that up investigation.” prosecutor responded he had the defense with the addresses of the provided witnesses to extent he them, had and had as to several of the provided police listed reports convictions and incidents of criminal He further noted that activity. although 28 Contemporaneously, defendant robbery also filed motion to strike his and 1971 1976 convictions based on presiding properly the failure of the trial courts to him advise of his Boykin (See (1969) v. Alabama rights accepting guilty federal constitutional before pleas. his 274, 122, 1709]; (1969) In re Tahl U.S. 238 L.Ed.2d 89 S.Ct. 1 Cal.3d [23 132-133 [81 577, 449].) Cal.Rptr. Although 460 P.2d The trial court denied motion. this defendant includes heading present argument this motion in the the opening to and mentions it in the text of his brief, provides argument authority he no supporting or. his contention that the motion was (See Stanley wrongly (1995) Accordingly, denied. the issue is forfeited. 10 Cal.4th 481].) Cal.Rptr.2d Similarly, P.2d appears defendant to contend the erroneously special findings aggravating court denied his motion to have the make mitigating Although any corresponding factors. there is no record of written motion in the however, transcript, hearing. clerk’s such a Again, motion was discussed denied at the provides argument authority supporting defendant no or his that the contention denial of the motion was in error. This issue is forfeited as well. old, 20 or years were more
some of the addresses listed in the police reports addresses, as and “as soon track down current trying the was prosecution have He finally explained have will addresses.” we addresses [the defense] overinclusive, it as he intended to narrow the extent notice was to strike. The court denied motion more information became available. trial, for the court was Noting still in process preparing prosecutor numbers to addresses and telephone he would witnesses’ provide “assume[d]” commented, them, and “I think as he able to locate defense as soon “continue that’s The court further ordered the prosecution appropriate.” or discoverable items of statutes and other comply discovery court.” under law his motion by
Defendant contends court erred state denying insufficient to He notice was to strike the notice of asserts the aggravation. defense, him enable his in that it failed to the locations provide to prepare He them. addresses of witnesses so that his could interview investigator describe the and circum- further asserts the notice failed to facts adequately which and other criminal alleged activity, stances of the convictions prior voir dire of jurors. his conduct hampered ability potential Defendant is Section that except mistaken. 190.3 provides rebuttal evidence evidence in offense proof capital special defendant to death “no evidence subject circumstances penalty, be unless notice of may presented prosecution aggravation a reason evidence to be introduced has been to the defendant within given *64 court, the to trial.” “The able of time as determined period by purpose prior of the notice section 190.3 is to advise accused by required evidence him so that he have reasonable to may opportunity prepare against entitled to a defense at the ‘A defendant is phase. capital [Citation.] in the notice violent or convictions offered felony of other crimes prior trial or as case-in-chief before the cause is called to prosecution’s penalty learns soon thereafter as the evidence exists. prosecution [Citations.] However, all the circum introducing is not from prosecutor prevented noticed because each stances of a incident transaction duly simply is circumstantial fact not recited The notice every was therein. [Citation.] to a defense sufficient if it defendant “a reasonable gives prepare opportunity” ” 546, (1999) 20 Cal.4th to v. Hart 639 allegations. (People [85 [Citation.]’ 132, 683].) P.2d 976 Cal.Rptr.2d
The satisfied the require- notice of that defendant received aggravation by identified the convictions alleged prior ments of section 190.3. The notice date, conviction, alleged It also identified the offense. county type date, location, and type other date or activity approximate criminal offense, witnesses as well as other and included the names potential 74 evidence. We
possible
have held this form of
repeatedly
notice is sufficient
Hart,
(e.g., People
supra,
To the extent defendant means to contend there was some error involving he discovery, in the record points nothing failed suggesting prosecution Indeed, with its comply at the discovery obligations. on defend- hearing ant’s motions trial court found no evidence that prosecutor *65 the ball.” “hiding defendant’s claim Accordingly, fails.
2. Asserted misconduct prosecutorial Defendant to two instances of points asserted misconduct prosecutorial the occurring Because defendant during penalty phase. failed to to the object asserted (or misconduct on the and makes no claim specified any) grounds, futile, that would have been objections his claims are forfeited for purposes Clark, v. merits, appeal. (People supra, 960.) 52 Cal.4th at On the we p. claims, reject as follows.
75 Assertedly right comment improper a. defendant’s remain silent at the During closing argument prosecutor argued penalty phase, of defendant’s remorse which is nonexistent” constituted “[e]vidence “another factor.” Defendant asserts comment aggravating indirectly touched on his under the Fifth Amendment to the federal Constitution to right held, however, remain silent. We have may repeatedly prosecution remorse, comment the defendant’s lack of as as in so it does upon long doing v. Castaneda testify. (People (2011) not refer to the defendant’s failure to 1292, 200, v. Boyette 249]; Cal.4th 254 P.3d People Cal.Rptr.3d [127 381, 544, Here, (2002) 391].) 29 Cal.4th 453-454 58 P.3d Cal.Rptr.2d [127 remark, after made the he went on to prosecutor challenged explain, “You’ve here. In the same conversation in which John got things couple Richie was told defendant that I told the old man to get right God, I’ll be back in a minute and I when came back I shot him. In that [][] same conversation John Richie ‘How can do such a and the says, you thing?’ is, defendant’s to him ‘It And response nothing. how do Nothing.’ you know that’s true? ’Cause within two hours he’s sex with Melissa having bound, Fader. Within two hours he’s over murdered a having helpless year old man in his own home is for sex.” ready would Accordingly, have understood the remark as not to failure challenged referring defendant’s crime, but rather testify, to his statements and conduct and after the during Castaneda, v. 1346; which were not remorseful. (People supra, v. at p. Boyette, 455.) at supra, p. Alternatively, have understood the jury might remark as to defendant’s referring failure to evidence of his remorse produce Castaneda, v. 1346-1347; from friends and family. supra, pp. People Brady (2010) 50 Cal.4th 236 P.3d Cal.Rptr.3d 312].) The comment did not amount to prosecutor’s misconduct.
b. Assertedly and double improper counting counting of
aggravating factors 190.3, Section (a), factor permits jury determining penalty consider, circumstance, as an circumstances aggravating crime “[t]he of which the defendant was convicted in the and the present proceeding existence any special circumstances found to be true . . . .” his During penalty phase closing argument, discussed that factor as prosecutor “Last, follows: ‘the circumstances of the crime of which the defendant was convicted in the and the existence of circum present proceeding any special stance found to be true but don’t count it twice.’ So had the existence of this You have each happened during robbery. also of the other [][] Robbins, circumstances around the crime. These include facts about Sherman *66 An factor is the aggravating fact that Sherman Robbins was a 67 old year [f] murdered, at the time he was man. An factor is the fact that aggravating [f] diabetic, time he a An factor at the was aggravating Sherman Robbins was [ft] murdered, not even draw had a useless left hand. He could Sherman Robbins diabetes, . . Robbins was in a his own insulin for his . Sherman [ft] [ft] residence, residence, a his brother’s residence. not his residence but family the robbery can’t count that twice but the fact that The robbery, okay, you street, than out on the that’s occurred inside of a home rather person’s all that [|] . A circumstance in this case is Sherman factor. . . aggravating murdered, all he was doing do at the time that he was Robbins was trying had who told him their car he a to two women giving stay was was place in this case. .... That’s the circumstance broken down someplace nearby [ft] like Sharon Robbins said folks out. Just trying Sherman Robbins help as a factor in may aggravation he did. . . . You consider usually [f] [ft] he his back at the time that was hands were tied behind fact Sherman’s account, You consider on that may murdered and that he was helpless [ft] . . . As far as of that man’s life was like. what the last 10 or 15 minutes [ft] in know, with God. I’ll be back right he ever heard was ‘Get thing we last factor, minute,’ an aggravating his minute started. That’s longest a then defendant’s remorse which factor. Evidence of Here’s another aggravating [ft] the offense that . Here’s another circumstance of nonexistent. . . . . is [ft].. [ft] You can consider through weighing process. can consider as you go Robbins ’cause Sherman crime not on Sherman just of this impact of his life and with last 10 or 15 minutes ugly Robbins had himself really his consider the impact better world. But also you may luck has to a gone brother, Robbins, his Bill on his You consider family, may impact [ft] Alvina, and her on Sharon Robbins You consider the many impact wife [ft] fundamen- talk about those husband[,] So let’s Gary, Sherman’s nephew [ft] for those people . . . That experience decent little bit. tally people [ft] [ft] couch, floor, it off of wherever off of the his blood off of mopping up room, And there’s a factor that’s a factor aggravation, in that [ft] splattered Robbins, on the morning Robbins. Sharon for Sharon aggravation on the that he’s dead . in and she sees lying 22d of March . . walks room, deliberation into go jury ... I’m asking you couch. ... H] [f] nonexistent, against which are nearly the factors in mitigation, weigh verdict.” back the and bring appropriate factors in aggravation, encouraged argument the form of the prosecutor’s Defendant argues factors, and that the argument improp- to double-count aggravating the jury well as aggra- factors as unconstitutionally vague aggravating relied on erly disagree. the offense. We elements of factors that duplicated vating it because was improper argument first claims the prosecutor’s Defendant as of the offense circumstances various to double-count encouraged which argument, the prosecutor’s He explains circumstances. aggravating the offense as identified circumstances each of the labeled” “specifically
77 factor, demanded” that the separate aggravating “virtually consider each jury circumstance numerical of the factors. separately keep “running tally” He the argues consideration of such and cumulative factors duplicative skewed the and created a the weighing process risk sentence would be in an imposed manner in violation of the arbitrary capricious Eighth U.S. v. McCullah Amendment to the federal (Cf. (10th 1996) Constitution. Cir. 1087, scheme, 76 F.3d 1111-1112 a weighing the use of duplicative [under factors creates an aggravating unconstitutional of the skewing weighing which necessitates process, reweighing aggravating mitigating factors].)
findWe nothing in the improper prosecutor’s argument. All the prosecutor did was out various point the offense that the aspects jury reasonably is, might have considered aggravating—that circumstances “attending commission crime which increas its or or guilt enormity [ed] add[ed] (CALJIC its injurious 8.88.) No. consequences.” This was as permissible, 190.3, (a), section factor enumerates the specifically “circumstances of the crime” an as aggravating factor.
Defendant’s reliance on cases involving jury’s consideration of invalid or in circumstances duplicative aggravating to erroneous pursuant McCullah, structions U.S. v. 1111-1112; supra, (e.g., 76 F.3d at see pp. v. Black 222, Stringer (1992) 367, 503 U.S. 232 L.Ed.2d 112 S.Ct. [117 1130]) is Defendant’s misplaced. argument here is not that the instruc jury tions themselves created a risk that the double-count jury might improperly factors or weigh Rather, invalid factors in determination. its penalty he contends created prosecutor’s argument such a risk. We are not con course, vinced. Of it is misconduct for a prosecutor, during argument, misstate the v. Hill 800, law (1998) 17 Cal.4th 829 Cal.Rptr.2d [72 656, 673]), P.2d 952 or to invite or encourage to do what the law jury 777, v. Love 720, People prohibits (e.g., (1961) 56 Cal.2d Cal.Rptr. [16 366 P.2d prosecutor may use evidence offered for a 33] [a limited purpose to argue inadmissible], inferences for which the evidence is disapproved other grounds v. Morse 631, 637, People (1964) 60 Cal.2d fn. 2 [36 33]; v. Morales 388 P.2d Cal.Rptr. (1992) Cal.App.4th is Cal.Rptr.2d render a improper urge jury verdict based on 358] [it Here, however, public opinion protect community]). we conclude prosecutor’s argument was not designed—and would not have been under stood jury—as invitation to consider each of the various circum factor, stances of the offense as a and then to separate aggravating determine whether the aggravating factors outnumbered the factors. simply mitigating The prosecutor disavowed such expressly to the purpose, explaining “Oh, remarks at the introductory outset of his argument, one other thing. them, The aggravating factors. You don’t count okay. You mitigating HO them. And the weigh instructed judge already factors you any mitigating factors, He also instructed outweigh okay. you all of might aggravating are weigh that what to do in the final is to totality analysis *68 the the circumstances circum- mitigating against totality aggravating circumstance, it’s one one stances. And if there is okay mitigating just circumstance and the of that one circumstance mitigating totality mitigating the in their then the outweighs aggravating totality, proper circumstances life sentence is without of parole.” possibility
Moreover, below, trial as in more detail the court properly discussed instructed the that it was not to circumstances of the jury weigh any “double circumstances”; are it to offense which also nor was double weigh special “criminal the by conviction” it had considered as “any already activity prior . . the use use of or violence defendant. which or force attempted involve[d] the or threat to use or violence.” the trial Finally, or force express implied the court the the standard instructions gave jury weighing process explaining No. the that (see 8.88), CALJIC admonishment including weighing “[t]he mean a mechanical circumstances does not mere aggravating mitigating scale or the arbitrary of factors on each side counting imaginary are free to to them. You whatever assignments weight any assign to each and all of the value sympathetic you appropriate mor[al] [deem] factors to the Considering various are consider.” permitted prosecutor’s whole, and the as a conclude there was no risk instructions we argument jury the was to how it to the weigh that misled as jury aggravating evidence. mitigating the the risk claim that created prosecutor’s argument
Defendant’s factors, or the jury unconstitutionally vague aggravating that would rely offense, to that of the likewise fails. Although factors elements duplicated used in sentence selection vagueness challenge statutory survive factors criminal should be juries have “a commonsense core of meaning must 102, v. (2002) 27 Cal.4th 168 of understanding” (People Lawley capable [115 614, v. 461], (1994) 512 U.S. citing Tuilaepa P.3d 38 Cal.Rptr.2d California 750, 967, 2630]), was not 114 S.Ct. here prosecutor L.Ed.2d [129 factors, but to sentence selection statutory define the section 190.3 purporting consider might aggravat out “circumstances of offense” jury point 190.3, (a). constitutional Similarly, any under section factor ing elements of the offense factors not duplicate requirement aggravating is a state determine who eligible factors used only by applies 568, (1988) Phelps (See v. 484 U.S. L.Ed.2d death penalty. Lowenfield California, 546].) function is In that death-eligibility performed 108 S.Ct. Bacigalupo outlined in section circumstances 190.2. special 808].) P.2d Defendant (1993) Cal.Rptr.2d 6 Cal.4th 468 [24 factors outlined in section case that the sentence selection cites no holding event, limitations, we have are similar and in as subject 190.3 to define the sentence did not argument explained, prosecutor’s purport factors, selection but rather to various pointed aggravating aspects offense. Accordingly, did not prosecutor’s argument encourage jury law, misapply defendant’s claim fails.
c. Cumulative prejudice Defendant contends cumulative effect of the asserted prosecutor’s selection, misconduct at the guilt infected the trial penalty phases with unfairness and him of a fair trial. deprived Because we have found no misconduct, there is no to cumulate. prejudice
3. Asserted jury instruction error Defendant raises several to California’s challenges death statutes penalty the governing selection and to the process, standard corresponding case, jury instructions in given 8.88, his CALJIC Nos. 8.85 and arguing they trial, violated his law, to a rights fair fundamentally to due process to equal laws, of the protection to protection from double to trial a fair jeopardy, by and counsel, to the impartial jury, defense, assistance of to presentation a and to a reliable and Fifth, nonarbitrary determination under the sentencing Sixth, Eighth and Fourteenth Amendments to the federal Constitution and parallel provisions of the California Constitution. Defendant also raises several challenges to the instructions specific given his case. As defendant we acknowledges, contentions; have rejected most of his standard because defendant conclusions, no provides reason to persuasive revisit our we likewise them reject here. We also defendant’s reject claims that are specific to his case. Our analysis follows.
a. CALJIC No. 8.85 and related instructions commenced, Before final arguments pursuant section and a 190.3. modified version of defendant, CALJIC No. 8.85 with further proposed by court, modifications the by the court instructed the its jury regarding consid- eration Thus, aggravating circumstances. mitigating court informed the jurors that in determining were to consider penalty, they all of the evidence later, received in the case as be instructed except they might consider, account, that were to they take into and be “the guided by following factors if The applicable.” court then listed the aggravating mitigating 190.3, factors set forth in section informing jurors (a), that as to factor were not to they “double weigh” circumstances of the any offense that were circumstances, also special and that (c), as to factor were not to “double they weigh” any conviction that had prior they also considered as other criminal under activity (b). defendant, factor Pursuant to a modification proposed by 190.3, informed (a) through court also section factors jurors only (c) could be considered aggravating.29 instruction, after additional this court
Immediately gave following defendant, as “Mitigating instruction modified court: by proposed by circumstances merely that I have read to for consideration are you given your as as of some the factors take into account may examples juror case. A deciding juror reasons not death sentence this impose each of them be Any may should careful attention to these factors. one of pay sufficient, alone, death is decision that not standing appropri- support case, ate in this but a not limit his or her consider- punishment juror should [j[] may ation of circumstances factors. A mitigating juror these specific also to the case the defendant as any consider other circumstances relating If shown the evidence as reasons for not death imposing penalty, [f] defendant, determining imposed you consider all upon “In which is to be shall during except trial of as any part which has been received of the this case evidence may guided by the may instructed. consider and take into account and be be hereafter You A, the crime the defendant following applicable: factors if The circumstances of of which [ft] present any special in the and the circumstance found proceeding convicted existence true, However, weigh are you may be double circumstances of the offense which [ft] *70 is, may than you weigh special also circumstances. not the circumstances more special That determination, B, activity by your sentencing once The or absence of criminal presence in [ft] present the other than crime for which the defendant has been tried in these defendant the express the or proceedings attempted which involve the use or use of force or violence or violence, C, felony any prior implied presence threat to use force or or absence of [ft] [T]he present than the which the defendant has been tried in the conviction other crimes for Again you weigh] any may conviction also be proceedings, may prior not which [double [ft] above, (b) you under The in the above list which have considered factors [ft] circumstance only aggravating permits be are the that the law you which determine to circumstances ones basis for you any not consider fact or circumstance as the to consider. You’re allowed to other case, in The list of deciding appropriate punishment the death be this [ft] would In you penalties in as follows: may [ft] circumstances which consider continues [sic] [.yz'c] D[,] was continuing as Whether or not the offense determining penalties follows: [ft] the extreme or emotional while the defendant was under influence of mental committed disturbance, E[,] victim in the defendant’s homicidal participant Whether or not the was a [ft] F[,] the act. or not the was committed conduct or consented to homicidal Whether offense [ft] or reasonably justification to be under circumstances which the defendant believed moral conduct, G[,] duress or defendant acted under extreme extenuation his Whether not the for [ft] H[,] time of the person, Whether or not at the or substantial domination of another the [ft] criminality his or to conform appreciate conduct capacity the defendant to the offense defect a result of mental disease or requirements impaired his to the of the law was as conduct crime, intoxication, J[,] I[,] at the age [ft] The of the defendant time of the or the effects of [ft] in the accomplice participation or not the defendant was an to offense his Whether minor, K[,] relatively Any other which the offense circumstances commission of [ft] any legal excuse crime and gravity though even it not a for the extenuates the of the crime is as a record that the defendant offers sympathetic aspect other the defendant’s character or or death, he is on or to the for which basis less than whether not related offense for a sentence guilt phase of given innocence disregard any jury trial. instruction in or You must [principle].” this which conflicts with this trial
81 evidence rise to or mitigating compassion gives sympathy defendant, alone, based such jury may, sympathy compassion upon as a an reject that This instruction was based in instruction penalty.” part v. People Wharton 631, (1991) 53 522 P.2d given Cal.3d 809 Cal.Rptr. [280 (See id. 600, 23.) at fn. p. 290].
Defendant now the trial in several contends court erred respects giving these instructions. We examine each of contentions these below. (a)
i. Factor 190.3, Defendant first (a) contends section factor instruction consider circumstances of the crime of the defendant which was convicted in “[t]he existence of found present proceeding any circumstance special true,” case, be as in his was unconstitutional because it did applied provide objective standard channel and allowed jury’s discretion each the death juror based on his or her impose “idiosyncratic v. disagree. (People assessment” of the offensive of the crime. We aspects Osband (1996) 13 622, 26, 640]; Cal.4th 703 P.2d Cal.Rptr.2d [55 Cain (1995) v. Cal.4th P.2d Cal.Rptr.2d 1224].) To the extent defendant contends the prosecutor’s argument exploited instruction’s unlimited” ambiguity by enumerating “virtually aggravating ante, factors, he has forfeited the claim and it merit in (See lacks event. II.C.2.b.) pt. Defendant further contends the instruction’s reference to special circumstances “weighted” the unfairly decision in of death. jury’s favor We Cain, as well. have supra, this claim rejected 68-69.) pp. Defendant further contends this instruction was in that misleading it suggested could consider the fact of defendant’s first murder degree conviction special circumstances as an aggravating circumstance of the *71 crime. He the motion, asserts trial court had a on its own to instruct duty, that the of first jury’s finding degree murder with special circumstances was not circumstance, itself an the aggravating and that could jury examine the only conduct, facts and circumstances of defendant’s criminal the not conviction and He special findings circumstances themselves. an contends such instruc- tion was necessary avoid erroneous inflation of the aggravation, case in ante, and that the (see prosecutor’s argument II.C.2.b.) the pt. exploited in the ambiguity instructions. defendant the
Although contends essentially instruction ambigu ous, not he did a at instruction trial. he request clarifying Accordingly, has forfeited his claim for of “A trial court no sua purposes appeal. has sponte to revise or an duty accurate statement of law a improve upon without request [citation], from counsel and failure to an clarification of request otherwise 82 the error of . . . .”
correct instruction forfeits claim of for purposes appeal 117, 620, (2011) v. Lee Cal.4th 638 248 P.3d (People Cal.Rptr.3d 51 [122 Here, 8.85, 651].) No. which tracks the the instruction was based on CALJIC 190.3, such, (a). accurately factor As the instruction of section language or the If defendant believed the instruction elaboration required stated law. clarification, or clarification in the he was such elaboration obliged request Lee, 638.) trial court. v. at (People supra, p. the of we can review merits this issue notwith argues
Defendant clarification, failure because claim standing his to object request a of law facts involves based question undisputed presents pure that funda as well as constitutional error public issues important policy 388, (See (1978) Hale v. 22 Cal.3d Morgan affected mentally judgment. 375, we 512].) agree, P.2d Even were we inclined 394 584 Cal.Rptr. [149 find lacks We claims rejected would defendant’s claim merit. have repeatedly have been even given, that an instruction such as defendant should proposes (1) convey because other standard instructions request, adequately upon is not the existence the conviction merely consider jury required them, (2) but also the facts findings, underlying circumstances special to the extent it contradicts instructions instruction is misleading proposed the crime and the existence to consider circumstances of directing jury 47 (2009) found true. v. Ervine Cal.4th (People circumstances any special 786, 745, 820]; (2009) v. 46 People Farley 812 220 P.3d Cal.Rptr.3d [102 191, 1053, 361]; P.3d v. Lenart People 1131-1132 Cal.4th Cal.Rptr.3d [96 592, 498].) P.3d (2004) 32 Cal.4th 1132-1133 Cal.Rptr.3d [12 risk of double-counting we note this case involved none Finally, (1988) Cal.Rptr. v. Melton Cal.3d highlighted we 190.3, Melton, of section acknowledged language 750 P.2d In we 741]. (a), tells to consider both the “circumstances” of factor which the jury true, circumstances” found “theoretical presented crime and the “special conceivably no instructions clarifying might and that jury given problem” circumstances circumstances. We that were also special double-count any that, trial should not jury defendant’s court instruct request, held upon Melton, Here, 768.) defendant supra, requested to do so. p. “double circumstances weigh that the not received instruction is, That you may weigh are circumstances. the offense which also special determination.” your sentencing more than once circumstances special for the prosecutor exploit. there was no theoretical problem Accordingly, *72 (b) Factor ii. 190.3, (b) instruction to con- the section factor
Defendant next contends the defendant other of criminal activity or absence sider presence “[t]he
83 than the crime which tried the defendant has been in these present or or which involve the use or use of force violence proceedings attempted the or threat to use force or violence” was unconstitutional express implied because it allowed the that evidence of convictions prosecution present were Tafoya v. (2007) decades—old. disagree. (People years—sometimes We 147, 163, 42 Cal.4th 590].) 185-186 164 P.3d Nor did the Cal.Rptr.3d [64 reliable, instruction fail to a stan- provide nonarbitrary, nonvague, objective Dement, dard to v. the (People supra, guide discretion. 53 Cal.4th at jury’s 56; 208, People v. Watson (2008) 652, p. 43 Cal.4th 701 Cal.Rptr.3d [76 Cain, v. 543]; 69-70.) 182 P.3d People supra, 10 Cal.4th at Defendant pp. (b) contends reliance on factor was unconstitutional in the absence of conduct, instructions the relevant criminal the elements identifying defining crimes, of the relevant to consider conduct a advising jury only violating Penal Code “force” and provision, defining “violence.” Defendant over- conduct,30 instructions did looks that the relevant criminal identify advised that “before a criminal consider such an juror may any of acts as aggravating circumstance in this case a be must first satisfied juror beyond reasonable doubt that defendant did in fact commit such criminal acts. A not consider juror may evidence other criminal act any any as aggravating Further, circumstance.” These instructions were absent adequate. defendant, from trial request court was not define required Osband, elements of the relevant crimes v. 13 Cal.4th at supra, 704); there was no p. at all that the court or requirement define “force” v. (cf. 861, “violence” People Dunkle (2005) 36 Cal.4th Cal.Rptr.3d [32 “ 23, 116 P.3d requirement to define or implied threat ‘express 494] [no use ”]); force or violence’ and defendant to no points authority requiring instruct, court to either on its own or motion conduct upon request, only violating penal statute be may considered.
iii. Miscellaneous contentions Defendant asserts court erred to instruct by failing jury regarding which of the listed circumstances were aggravating which mitigating. no such (People v. Lewis Although (2008) instruction was 43 Cal.4th required 415, 947]; 181 P.3d Rogers, supra, Cal.Rptr.3d Cal.4th 897), case, at p. defendant’s has contention no this application did state because the instruction three given first factors were only consider,” “aggravating circumstances ... the law you to permits that the was not allowed to consider other circumstance “as the basis 30 Thus, instructed, “[ejvidence the court purpose showing has been introduced for the that the defendant has following Robbery County committed the criminal acts: in Tulare on or 20, 1970, about deadly weapon December assault with a peace County on a officer in Tulare 20, 1970, robbery Angeles on or about County December on Los or about November 26th, attempted robbery 1975. And County May in Stanislaus or about which involved express implied of force use of violence or the threat to use force or violence.” *73 that be in this for the death would deciding appropriate punishment factors, immediately case.” The then listed the followed remaining instruction Wharton, v. supra, 53 Cal.3d People the based on paragraph have your circumstances I read beginning [m]itigating “[the] ante, (See 80.) The are . . . .” at merely p. consideration as given examples 190.3, (k) (d) thus would have understood that section factors jurors through solely “the circumstances” and that could be considered mitigating they were in mitigation. understood, no if not have so defendant has cause
Even the would jurors Defendant the modified version CALJIC No. 8.85 complain. proposed instructions, explained defense counsel During was discussion given. jury, (c) (d) factors that he had inserted a in the instruction between paragraph and circum aggravation delineate between in circumstances “designed remarked, nothing in In “But there’s stances court mitigation.” response, ” are in mitigation.’ in ‘And now these the circumstances says, there that “No,” without additional any Defense counsel simply responded proposing Lee, Defendant therefore has forfeited his claim. v. modification. 638.) supra, Cal.4th p. 8.85, next that the modified version of CALJIC No.
Defendant complains because the court inserted sentence as read was jurors, confusing as consider in continues list circumstances which you may penalties “[t]he (c) (d). sentence not in written . . between factors This follows .” “in defendant Defendant argues language penalties,” instruction proposed. would mitigation, the lack of a definition contemporaneous coupled as circumstances jurors mitigating have that the could consider suggested below, the court did define mitigation We As noted disagree. aggravating. instructions, on, after closing arguments with the final concluding later con- to deliberate. Because defendant before the retired jury immediately order, issue for he forfeited the the instructions this sented giving whole, event, including context of the instructions as In in the appeal. factors (a) were the through (c) only aggravating that factors admonition consider, could not have been misled. could the jury jury his erred three by omitting paragraphs next the court argues Defendant Wharton, 522. We supra, 53 Cal.3d based on instruction proposed however, omitted the content of the three paragraphs, cannot determine instruction included in in the version of the are blacked out because they during counsel’s comment to defense clerk’s transcript. Pointing discussions, three were intended asserts the paragraphs instruction defendant and circumstances in aggravation to “delineate between circumstances clear, however, counsel’s defense above makes analysis As the mitigation.” 8.85, No. version of CALJIC to the modified remark referred
85 instruction based on Wharton. Because defendant has not a record supplied claim, to this it Carter (People (2010) review fails. v. 182 adequate 522, 531, 6 to fn. is burden Cal.App.4th Cal.Rptr.3d appellant’s 805] [105 [it error], a record present review and demonstrate adequate affirmatively Court, 564.) Denham v. 2 at citing Superior Cal.3d supra, p.
Defendant next contends the court give erred an additional by failing factors, instruction he regarding which proposed aggravating mitigating read as follows: “The factors which con permissible aggravating you may sider are limited those have factors which been aggravating upon you Therefore, instructed. specifically evidence which has been presented defendant’s regarding background which does not fall into one of the limited aggravating may factors be considered only you as mitigating err, evidence.” The did court because the instruction was requested 1166, “largely (2003) Carter duplicative.” (People v. 30 Cal.4th 1230 [135 553, 70 981].) P.3d Cal.Rptr.2d
alsoWe reject defendant’s assertion the court right violated his to due process law under the federal Constitution by failing give his proposed instruction that the consider jury “may the fact that defendant’s accomplices received more lenient sentence as a factor.” We have mitigating consistently rejected contention that a must be directed to jury consider the relative severity sentence as factor. v. accomplice’s mitigating (E.g., People Moore, 1141-1143; supra, 51 Cal.4th at People (1994) v. 8 pp. Rodrigues 1060, 235, 1]; Cal.4th 1188-1189 P.2d v. Cal.Rptr.2d [36 885 Morris People (1991) 152, 53 720, Cal.3d 225 949], 807 P.2d Cal.Rptr. overruled [279 830, grounds 824, other in (1995) v. People Stansbury 9 Cal.4th fn. 1 [38 394, 588].) 889 P.2d Cal.Rptr.2d
Defendant’s remaining arguments these instructions also regarding lack merit. The trial court was not to delete required seemingly inapplicable 622, factors from the (2012) instruction. v.Fuiava (People Cal.4th 733 [137 147, Lewis, 568]; Cal.Rptr.3d 532.) 269 P.3d at People supra, v. 43 Cal.4th p. Nor itwas to instruct on its own that the required aggravating motion only factors could consider were jury those section v. specified 190.3 (People Lewis, 532), case, at supra, as we p. although this have explained, instructions given conveyed Defendant’s claim that adequately concept. the trial court was to define required activity” “circumstances” and “criminal lacks merit. A trial court is not to define required understood” “commonly 1, 525, (People (1988) terms v. Malone 47 Cal.3d 762 P.2d Cal.Rptr. [252 “extreme,” “substantial,” 1249]) such as these. The use of the terms and “at 190.3, the time of the (d), offense” in section (g) (h) factors did not unconstitutionally restrict consideration of relevant jury’s mitigating evidence, render the factors or otherwise result in an impermissibly vague, Fuiava, supra, (People at determination. v. arbitrary capricious penalty Lewis, People supra, 732; 532.) at ‘the “Additionally, statutory v. p. p. mitigating to consider “whether or not” certain factors instruction to the absence of such unconstitutionally were did not suggest present ” Jones, supra, 54 Cal.4th factors amounted to aggravation.’ v. Cowan 87; (2010) 50 Cal.4th Cal.Rptr.3d see p. *75 1074].) P.3d 236 instructions, that, reasonably likely of the it is light
Defendant contends in v. People (See the use as aggravating. considered his methamphetamine jurors ’ ” ‘ Moore, supra, test at “reasonable likelihood” 51 Cal.4th 1140 p. [“ instructions].) We As the instruc- disagree. to ambiguous explained, applies 190.3, (a) (c) through the that section factors only tions told expressly jury of the and no one—least all aggravating, could be considered prosecutor— was an “circumstance drug aggravating ever defendant’s use suggested the discussed defendant’s contrary, methamphet- crime.” To the prosecutor 190.3, (h) his of section factor amine use in discussion only conjunction to the the the defendant’s (whether capacity or not at time of offense to law was his conduct or conform it the criminality the of appreciate intoxication), there was no the and simply emphasized effects by impaired his intoxi- was” or whether “how intoxicated evidence regarding [defendant] he could of mind that not appreciate cation in such state “put [defendant] Moreover, the clearly “you the nature of his conduct.” prosecutor explained 190.3, (k). (d) factors We through have based on section can’t aggravation” the were misled. find no reasonable likelihood jurors ‘any sympa admonished the consider penalty jury Finally, “[hjaving that the defendant of the defendant’s character or record thetic or other aspect death, the than or not related to as a sentence less whether offers a basis for trial,’ instruction and to ‘disregard any [conflicting] he is on offense for which trial,’ required the court was not the or innocence this guilt phase [from] . factors . . and mitigating all further consider jury sympathetic instruct factors, to caution nor was it mitigating required expressly nonstatutory (CALJIC at guilt only phase instruction given the ‘anti-sympathy’ Boyer (2006) 38 v. 1.00) at the penalty No. did not phase.” apply 677, 412, 581].) court 133 P.3d Although 486-487 Cal.Rptr.3d Cal.4th [42 be influenced by to “not erred the instruction subsequently repeating v. People Easley (1983) 34 (see . in oral instructions31 mere . . its sympathy” 309, 813]), error was harmless 671 P.2d Cal.Rptr. Cal.3d [196 Taylor 1155, 1176 (2001) 26 Cal.4th (Cf. standard. under written copy antisym P.3d in giving jury Cal.Rptr.2d 937] [error defendant].) not deliberations did prejudice instruction during pathy is crossed out in written “sympathy” misspoke, because word appears It court of the instruction. version
The other instructions informed the that it could consider jury sympathy determination, and no argument one suggested sympathy was not an basis which to a sentence less than appropriate upon impose death.32
b. CALJIC No. 8.88 and related instructions
concluded,
After
had
the court
penalty phase closing arguments
instructed the
jury
regarding
process
weighing aggravating
mitigat
ing circumstances
to CALJIC No. 8.88.33 Defendant contends the
pursuant
court erred
the instruction before
by failing
give
arguments,
closing
same time it instructed
to CALJIC No. 8.85. He asserts this failure
pursuant
him because the
prejudiced
warned
“mechanical count
against
ing”
the factors until after the prosecutor’s assertedly
closing
prejudicial
*76
ante,
(See
Defendant, however,
II.C.2.b.)
argument.
consented to this
pt.
events;
of
he
sequence
therefore has forfeited the issue for
of
purposes
event,
In
we
appeal.
any
fail to discern
It is
any
likely
prejudice.
equally
defendant benefitted from the
the admonishment
jury hearing
me
against
chanical
of factors
counting
before it retired to deliberate.
immediately
32
out,
points
As defendant
giving
the court
misspoke
sympathy
also
when
his additional
Wharton,
instruction
on People
supra,
based
v.
Defendant further contends
trial
that a sentence of life
without
imprisonment
on its own motion
never be considered for
meant
that defendant would
possibility
parole
held, however,
are
that trial courts
not required—
We
have
repeatedly
parole.
sentence
or on the court’s own motion—to instruct
either upon request,
out,
be
because
will
parole
inexorably
of life without
carried
possibility
(See,
e.g.,
be
the law.
an instruction would
an incorrect statement
such
(2010)
People v. Letner and Tobin
Cal.Rptr.3d
50 Cal.4th
203-204
*77
Holt,
619,
v.
746,
cases];
Cal.4th
People
supra,
15
[collecting
Defendant’s remaining about this instruction also lack complaints The merit. court not was to instruct the required (1) it could return a verdict of life without imprisonment even if the circum possibility parole stances in aggravation in outweighed (2) those it mitigation; was required return verdict life without if it found that possibility parole did aggravating factors not outweigh factors or that death mitigating not the (3) it could appropriate punishment; return a verdict of life without possibility parole even absence of evidence. complete mitigating Fuiava, Lee, v. (People supra, 53 Cal.4th 733; People supra, v. 51 Cal.4th at p. Lewis, 652; v. at People supra, p. at 533.) Cal.4th The term “so p. substantial” as used in CALJIC No. not 8.88 is unconstitutionally vague Lewis, v. supra, 533) does not p. direct a verdict in improperly favor of death if the jury finds aggravation outweighs (cf. mitigation ” Carter, supra, 30 Cal.4th at ‘so p. substantial’ does language [“ create unconstitutional death]). favor of presumption Defendant complains the instruction of an “deprived important procedural protection [him] California law affords defendants” in due noncapital violation of process law, but his claim fails because he does not identify any assertedly analogous noncapital procedural protection.
Finally, we have
that
rejected claims
the
“multiple use
counting”
of various facts and circumstances of the murder—for
the circum
example,
stance that it was committed during a
a
of
robbery—as
first
theory
degree
murder,
circumstance,
a basis for the
and an
special
aggravating factor
190.3,
pursuant
(a),
section
factor
“artificially
statutory
inflate[s]
(People
287,
factors
death”
Hughes
favoring
(2002)
v.
27
Cal.4th
405 [116
401,
432];
P.3d
see
People
Taylor,
v.
Cal.Rptr.2d
39
supra,
4. Asserted penalty of constitutionality of to the of Califor- challenges Defendant raises number Sixth, scheme, Fifth, and Fourteenth Eighth, death based on the nia’s As he we have acknowledges, Amendments to federal Constitution. with no these contentions in cases. Presented rejected prior consistently decisions, reconsideration, to those as follows. reason we adhere compelling true, that, if circumstances found 190.2—setting Section out the special narrows render a defendant for the death eligible penalty—adequately overbroad, and is not impermissibly defendants category death-eligible Sixth, Fifth, and Fourteenth Eighth thus to the of the requirements conforming Jones, at 54 Cal.4th supra, to the federal Constitution. v. (People Amendments 85; Blair, 752.) at supra, v. Cal.4th People p. p. 190.3, the crime as the circumstances of
Section
factor (a)—designating
may
assessing
consider in
jury
appropriate penalty—is
factor
arbitrary and
on its face and does not allow for
vague
impermissibly
Sixth,
Fifth,
or
Fourteenth
Eighth
in violation
sentencing
capricious
Jones,
at
54 Cal.4th
supra,
v.
(People
Amendments
the federal Constitution.
752-753;
Blair,
85;
v.
Cal.4th at
see Tuilaepa
supra,
pp.
v.
p.
People
on its
(a)
vague
not unconstitutionally
There is cruel and unusual against Eighth or the Amendment’s guarantee, proscription clause, due Amendment’s process Fourteenth punishments, doubt the existence aggravating find reasonable beyond jury unanimously factors or factors outweigh mitigating factors or that the aggravating Clark, at 52 Cal.4th supra, v. (People death is the appropriate penalty. 1007; Blair, those 753.) Cal.4th at Neither p. v. People supra, p. require Code section nor Evidence constitutional provisions, the “preponderance that the be instructed employ alternative Castaneda, at 51 Cal.4th v. (People supra, proof. evidence” standard of Cowan, 509.) at The federal 1355; 50 Cal.4th supra, p. see v. p. instructed, be for purposes that the jury does not compel Constitution or persuasion bears the burden proof that the “tie-breaking,” prosecution the burden of bears proof. or that neither party phase, *79 Cowan, 509.) 1355; at The Castaneda, supra, p. v. People at see supra, p. as to the written findings that the jury provide of the statute to require failure
91 existence of factors or a statement its reasons for aggravating written of the death not render it defective under the Eighth does imposing Lewis, 533-534; v. (People Fourteenth Amendments. 43 Cal.4th at supra, pp. Rogers, People supra, 893.) v. 39 Cal.4th at in the United States Nothing p. Court’s recent Supreme the Sixth Amendment’s jurisprudence interpreting v. New trial Apprendi Jersey jury guarantee—from (2000) 530 U.S. 466 2348], (2007) L.Ed.2d 120 S.Ct. Cunningham through v. [147 California U.S. 270 L.Ed.2d these S.Ct. conclusions. 856]—alters Fuiava, Cowan, 732; (People v. supra, supra, 53 Cal.4th at at People v. p. Further, 509.) there no violation p. is of laws due equal protection the statutes’ failure to afford defendants some of the capital procedural Fuiava, v. supra, safeguards guaranteed to at (People defendants. noncapital Clark, 732; People supra, p. 1008.) v. at p.
“The reliance on jury’s unadjudicated criminal as a factor activity 190.3, under aggravation (b), section factor without unanimously agreeing on doubt, its existence beyond reasonable does not a defendant of deprive Constitution, rights guaranteed the federal by the Sixth Amendment including Clark, right 1007; accord, trial.” (People supra, 52 Cal.4th at p. jury v. Blair, v. People supra, 753.) at Cal.4th p. contention,
Contrary defendant’s intercase review is not proportionality trial, the due required by process, fair or cruel equal protection, and unusual v. punishment clauses the federal Constitution. (People Rogers, supra, Clark, 894; Cal.4th at supra, 52 Cal.4th at p. see v. p. 1008.) hand, “On the other defendant capital is entitled under the California Constitution to intracase review to determine whether proportionality of death is to the disproportionate defendant’s culpability.” Rogers, supra, 894.) 39 Cal.4th at To the extent p. defendant contends his sentence sense, in this we disproportionate disagree. “To determine whether defendant’s sentence is to his individual disproportionate culpability, offense, we motive, examine circumstances of the including its the extent involvement, committed, defendant’s the manner in which the crime was acts, consequences defendant’s and defendant’s characteristics personal (Id. including age, prior 895.) mental criminality, at capabilities.” p. Here, the jury determined that defendant with his participated two accom in a scheme to plices enter residence of his victim ruse for the elderly inside, purpose stealing therein. Once property defendant directed his accomplices restrain the victim—who had been helpless trying only help then shot him accomplices—and Although to death. defendant did not murder, led instigate burglary that to the could have found that he willingly actively in it and some participated assumed control point over actions of his the use of threats and accomplices, part by *80 alone concluded that defendant The further could have jury intimidation. victim, he the victim kill the so because believed doing intended and did which robbery, and crimes burglary could him as identify perpetrator than an “eight-ball” and his cohorts less in the end netted defendant value. Based on the other items of little and few methamphetamine apparent facts, could have determined defendant above the jury reasonably who did not receive death penalty. more than his culpable accomplices Further, at the time of crimes was a mature man his 40’s defendant crimes, who, his had as a result of long prior spent with a criminal record evidence defendant his a locked There was no facility. bulk of adult life in at the time of the offenses. intoxicated severely was mentally incapacitated ibid.) (See facts do not demonstrate disproportionality. These as a the death “California does not Finally, employ penalty because ’ ” ‘ crimes,” its numbers of imposition for substantial “regular punishment it of the violative decency rendering international norms of does not violate 1008; accord, Clark, 52 Cal.4th at supra, p. Amendment. v. Eighth (People Castaneda, 1356.) at Nor does imposition v. 51 Cal.4th People p. supra, “ ‘inasmuch as international the federal Constitution the death violate ” Blair, Cal.4th at (People supra, law is a of our law.’ v. part on Civil Political 754-755.) Neither the International Covenant pp. law death sentence nor other of international any prohibits Rights provision and federal accordance with state was defendant’s sentence—in rendered—as Castaneda, at v. supra, and statutory requirements. constitutional 1356; Lewis, 538.) at p. Cal.4th supra, p. Cumulative error
5. at the errors that occurred cumulative effect of the Defendant contends the law, equal trial denied him due process of his guilt penalty phases laws, in violation fair and reliable trial fundamentally and a protection Fifth, Fourth, Sixth, and Fourteenth Eighth under the rights of his Constitution and parallel provisions Amendments to the federal Constitution, guilt judgments. reversal of requiring California during penalty the trial court’s repeating, one error: only We have found . . . instructions, “not influenced mere that the be the directive phase however, concluded, under the error was harmless We have sympathy.” ante, errors to no additional 86.) Because there were (See p. standard. cumulate, this claim fails. Disposition
III. reasons, entirety. its we affirm judgment the foregoing For J., Chin, J., Baxter, J., concurred. J., J., Corrigan, Kennard, Werdegar, *81 LIU, J., Concurring. I jointhe court’s as to the issue of the opinion except trial court’s of disparate treatment a small number of prospective jurors whose written showed their questionnaires ambiguity concerning ability the follow court’s instructions their views on the death despite personal the trial penalty. Although court’s actions did not result a ultimately error, skewed and do write jury thus not constitute reversible I panel “ to underscore the trial separately obligation of courts to ‘evenhand- proceed ” when their ed[ly]’ exercising broad discretion to conduct death-qualification 461, voir dire. v. Thornton (2007) 41 Cal.4th 425 Cal.Rptr.3d 3].) P.3d I.
The of a process selecting in a case is as it capital as is important difficult, as the record before us Jury illustrates. selection in this case took 1,000 over seven the record days; from voir dire alone consumed more than 2,500 pages of total in the trial court The approximately pages transcript. of majority that time was the written and spent reviewing questionnaires conducting individual of the of the 158 members who questioning jury pool record, remained after excusáis. Based on this extensive it is clear hardship manner, that the trial court conducted voir dire in a conscientious today’s opinion rejects defendant’s claims selection regarding jury by undertaking ante, careful thorough examination of the record. at (Maj. opn., 24—53.) pp.
I with the agree court the record does not defendant’s claim of support systematic ante, bias in the trial court’s conduct of voir dire. at (Maj. opn., time, 39-41.) pp. At same is it that the trial court made more apparent extensive efforts rehabilitate some jurors who the death supported penalty it than did to rehabilitate least one who the death juror opposed penalty, even though written of questionnaires jurors those showed the same degree of ambiguity their aside their concerning ability set views personal and follow the law. Below I the trial court’s two compare treatment of (Y.C. C.Pa.) pro-death-penalty jurors with its treatment one of anti-death-penalty jurors (B.H.). So that readers can come to their own conclusions regarding the trial court’s treatment of these I have jurors, included at the end of Questions this of each opinion responses juror to through (the of the written that ask about questionnaire questions directly the death as well as the of the penalty) transcript trial court’s questioning each voir juror during dire.
Prospective Y.C.The answers Y.C. to written given by question- Juror naire were strongly Y.C. an- supportive capital punishment. repeatedly swered she “yes” to whether automatically would vote for death penalty, evidence, if a defendant was convicted first regardless penalty phase (Questions 32). She answered and a circumstance murder degree special killing elderly of murder for man to whether convicted “yes” everyone regardless should receive the death shotgun robbery penalty, during and the introduced regarding evidence be 12). death should (Question mandatory defendant She also said the 15). Y.C. answered (Question “Murder circumstance” & murder/special (Question 22), eye” whether she believed in the “an for an adage eye “yes” law has adopted statement that California questionnaire’s despite *82 to she for she “no” whether could put the answered “eye eye” principle, the court given by of her mind and the that out concept apply principles addition, 23). “no” whether she could set aside (Question In Y.C. answered to the regarding what the law should be feelings regarding
her own personal 27) “Do not (Question and death and follow the court’s instructions penalty moral any religious training set aside know” to whether she could case to the law according given by the death and decide the penalty regarding 25). answered “Do not know” to whether she (Question the court Y.C. also of that life without the possibility could the court’s accept representation 28), whether and she answered to exactly (Question “yes” means that parole the in life and the cost of providing the cost of someone for jail keeping her the deciding be considerations for in penalty would process appellate hand, to 29). Y.C. answered whether she would (Question “yes” On the other and submitted about the base any penalty listen to evidence openmindedly and on such evidence instructions solely her decision about the penalty 13). (Question this Y.C.
The focused on inconsistency, providing trial court’s questioning that, in her held beliefs favor to confirm strongly with the opportunity despite and set those beliefs follow the death she could aside penalty, personal Y.C. by instructing The trial court began law as instructed the trial court. and of a trial. between the guilt phase penalty phase capital distinction would in event of phase, then that explained penalty The court whether she could When asked evidence. mitigating hear aggravating outweighed if the evidence in aggravation for the death vote penalty said, whether “I I could.” When asked in believe mitigation, evidence Y.C. the factors if vote for life without the possibility parole she could said, don’t[,] I “I really Y.C. aggravation, factors in mitigation outweighed said, “I could. Okay. Honor” and then don’t know at this Your really point, COURT; You have hear court “THE know. I The followed just.” up: You Y.C.; I before can something I’d have to hear right. That’s the evidence? [f] COURT; words, that decision couldn’t make you THE So in other say. FH] Y.C.: That’s right.” to both sides? until listen you’d [f] Questions 22 and 23 her answers to to ask Y.C. about The court proceeded the principle she could not set aside where Y.C. said of the questionnaire, eye “an for an the law: . . . eye” follow “THE COURT: Based on the answers that me do want you’ve given previous questions you change [<JQ that answer? Y.C.: THE And Okay. Yes. COURT: answer your [][] to that yes is now that would be able you to follow the court’s instructions Yes, and base what your decision on hear in court? Y.C.: sir. . . .” you [f] Further, whether, asked Question when answering “Do not know” to despite 28, she could now the court’s that life without accept representation that, said, “Yes, possibility means sir.” parole Y.C. The court then exactly Question examined 29 where Y.C. said the life cost for jailing person would be providing appellate considerations her in process deciding Well, “THE penalty: COURT: are you let that influence going No, which deciding to decide on? I Y.C.: don’t think so. THE [§] [f] words, COURT: In other you’re not dollars and either going put [cents] No, before other way consideration? Y.C.: sir. This is Not important. [f] I something take lightly.” Regarding Question Y.C.’s answer to she evidence, would vote for the automatically death regardless ‘Yes,’ court “You answered that one inquired: based on your answers to the questions I answered would be previously no also?” Y.C. “I replied: *83 dire, believe so.” At the end the of voir Y.C. said: “Those are rather questions [][](cid:127) n ... hicky. (cid:127) Get you thinking one way. [f] Just change [f] ...[][]... everything.”
Prospective answers, C.Pa. Like Y.C.’s the Juror gave answers C.Pa. to the written were questionnaire strongly of the death C.Pa. supportive penalty. indicated that she always the death impose” “[w]ould of penalty “regardless the (Question 9) evidence” and that her the view on death penalty was “Take a life / the (Question 10). pay price” She answered “yes” and “Non- negotiable” to whether everyone convicted of murder robbery should receive the death (Question 12). penalty, regardless evidence C.Pa. also answered to whether she “yes” believed in the “an an adage for eye eye” (Question 22), and she answered to “no” whether she could that put concept out her mind and the (Question 23). the court In apply principles given by addition, C.Pa. answered “no” to whether would agree she to the accept court’s that life the representation without means possibility parole exactly (Question 28), whether, that and she “yes” answered to if there was a penalty trial, of a she phase would in case every vote for the death automatically than rather life in penalty prison (Question without the parole possibility hand, 32). On the other C.Pa. answered whether she could set aside “yes” her feelings what the personal regarding law should be the death regarding and follow the as penalty 27). law instructed the court (Question the Noting the trial court inconsistency, instructed C.Pa. on the extensively and law asked applicable numerous the follow- leading including questions, “THE ing: COURT: Do that if Okay. you got understand to the you penalty factors, evidence would phase be introduced aggravation that the indicating factors, that not it is mitigation indicating death is and penalty appropriate, factors one weigh against and that as a would be asked to those you juror the the law court given you by another under the instructions on that’s that? the You understand decide which is appropriate punishment, [ft] [ft] as the law THE And understand that Okay. you C.Pa.: Yes. COURT: [ft] California, the death is not automatic upon stands in State of penalty this one of the two available conviction the crime of nature. It’s simply what the punishment and it’s decide punishments appropriate up C.Pa.: Yes. THE COURT: is under instruction court? given by [ft] [ft] that, do feel would be able follow you Okay. Understanding evidence in favor of the death fairly court’s instructions and evaluate the death and arrive at a rational decision? penalty against [ft] penalty that if were Yes.” followed C.Pa. stated she up, C.Pa.: When defense counsel defendant, mind set my “I would not feel it was fair to someone put this but the judge’s on the death type jury,” penalty “[w]ith I mind.” The trial court denied defendant’s definitions would have open has in court. The for cause “based on the answers here juror challenge did fully can assured the that she follow court’s instructions court answers original given.” understand the B.H. Now
Prospective Y.C. the trial court’s treatment of compare Juror she On B.H. indicated with its treatment of B.H. her questionnaire, C.Pa. indicating “Strongly but did not check death opposed option death impose penalty, or “Will never under circumstances oppose” B.H. answered “None. ?” to (Question 9). of the evidence” regardless circumstances, if she believes the death under what asking any, question she 17). to whether (Question “yes” is She answered appropriate circumstance, vote first murder for degree special would hesitate to *84 doubt, of deciding to the task a reasonable avoid beyond just even if proven 30). And (Question feel the death penalty” the explaining,“I against penalty, vote automatically to would in case every she whether she “yes” answered evidence, “Í regardless explaining, [am] the death against penalty Y.C., hand, like B.H. 31). the (Question the On other death against penalty” evidence any openmindedly to whether she would listen “yes” answered on solely and her decision about the the base penalty submitted about penalty C.Pa., 13). like B.H. answered (Question And such evidence and instructions the what her feelings regarding she could set aside personal whether “yes” by and the law as instructed be the death follow law should regarding penalty short, ambiguous was no less (Question 27). B.PI.’s the court In questionnaire than Y.C.’s. C.Pa.’s or voir different from its was starkly the trial court’s voir dire of B.H.
But as B.H. the trial court entirety, questioned C.Pa. In its dire of Y.C. and [B.H.], questions we have right. just couple “THE COURT: All follows: be I think we’ll And don’t to the questionnaire. on answers your based you all, Question detaining too All First of in answer to you long. Okay? right. [f] you indicated death correct? B.H.: Yes. you penalty, oppose [f] [f] THE COURT: in and were you And then asked—10 were asked you views on the death You left that blank. B.H.: your explain penalty. [f] either, A, Uh-huh. THE COURT: And can left it you explain why you [f] blank, B, what are? didn’t what to your views B.H.: Because I know [f] down, THE COURT: So weren’t sure what Okay. just say? put you [f] [f] B.H.: Uh-huh. THE COURT: And have views on death your penalty [f] [j[] over No. changed time? B.H.: THE COURT: I’m not clear here on [][] here, some answers what feel Is about your exactly you your feeling [f] death such that under no penalty you circumstances could vote to approve it? B.H.: Under no circumstances. THE COURT: None whatsoever? [f] [<J0 whatsoever, None B.H.: THE COURT: So if—even if this were Okay. [f] most horrible in crime B.H.: Even if. THE even history? COURT: And [f] [f] if defendant was the worst could B.H.: I person history, you not—[f] [j[] it. don’t believe in THE COURT: All Thank You’re right. you, ma’am. excused.” there was no
Although difference in the degree ambiguity CJPa.’s and Y.C.’s other, on the one questionnaires hand and B.H.’s on the questionnaire there was a clear difference in how the trial court went about resolving Y.C., ambiguity. With and C.Pa. the trial court respect from the outset carefully instructed methodically each on the juror law applicable asked each if juror she could follow each of the law set aspect forth contrast, By court. court trial did not give B.H. on the instruction law. After five brief initial applicable the court asked questions, B.H. whether “your about the death feeling such that under no penalty circumstances [is] you could vote to it.” The approve fact B.H. answered no “Under circumstances” “None (or less) whatsoever” is no more probative B.H.’s ability to follow law than the categorical answers that comparably Pa. and did (and C. Y.C. would have on if the given give questionnaires) their had court asked them whether simply “your feeling about death is such that would vote for it in first murder automatically every degree law, case.” By instructing C.Pa. Y.C. on the the court applicable them the one’s impressed upon distinction between views important personal death and the law death The court did governing penalty. B.H. crucial impress this distinction and did not upon whether inquire *85 law, could B.H. set aside her views and follow the even B.H. personal though had indicated on her that questionnaire she could do so.
“ should courts be evenhanded in their to questions ‘[T]rial prospective dire, jurors during the of “death-qualification” the voir and should portion into the jurors’ attitudes both for and the inquire against death to penalty determine whether these will views their to serve as impair ability jurors.’ Thornton, v. supra, 425.) 41 Cal.4th at Trial are courts p. [Citation.]” 98 dire, in a that relies conducting heavily
afforded broad discretion voir process on of and merits deference from the demeanor observing prospective jurors ante, v. 26; (See Martinez at see also reviewing maj. opn., courts. p. Uttecht 399, 732, 77]; 47 445 213 P.3d v. (2009) Cal.4th Cal.Rptr.3d [97 1014, 1, Brown 2218].) there (2007) 551 L.Ed.2d 127 S.Ct. But U.S. 9 [167 the death are penalty is no reason to think that who prospective jurors oppose of law than who following jurors strongly less the capable prospective the this clear: “It is entirely death Precedent makes penalty. possible, support course, a should never of that even who believes that juror capital punishment be who committed to its abolition could nonethe irrevocably inflicted and is his to his views to he to be perceived duty less subordinate what personal (Witherspoon and law of the abide his oath as to the State.” juror obey 510, 514-515, 776, Illinois 1770]; 88 S.Ct. (1968) U.S. fn. 7 L.Ed.2d [20 137, see Lockhart v. McCree (1986) U.S. L.Ed.2d 106 S.Ct. the (Lockhart) to remember that not all who is important oppose [“It 1758] cases; to cause those who death are removal for in subject capital penalty as that death nevertheless serve unjust may believe the is firmly penalty that are to long willing in cases so as state jurors they clearly they capital law.”].) the of aside own beliefs in deference to rule set their temporarily as to the law is fidelity one’s views from one’s Separating personal is the of duty every as it is essential to our That core justice system. familiar and of as serving judge, vested with the responsibility person privilege he is to the citizen when or she called obligation it is also most basic every we serve as to set judges Just as individuals who duty civic as juror. expect law, that law faithfully presumes aside their views personal apply are penalty or death resolutely citizens who resolutely support oppose (See as serving jurors. aside their views when setting personal capable Lockhart, Y.C., C.Pa., Here, supra, 176.) dire at the voir p. U.S. through that it careful is proceed premise possible, B.H. appeared law, should who death jurors say instruction on rehabilitate “automatically” would vote say they be for murder who “mandatory” case, not to rehabilitate a who juror in but every death penalty possible not “under no circumstances.” By would vote for the death says she law B.H. could follow the on the law or whether asking B.H. instructing case C.Pa. that exactly her beliefs—while doing despite personal evenhanded manner. Y.C.—the court did not proceed ante, at fn. p. does (maj. opn., as posit, today’s opinion It is possible id. in B.H.’s 15; something that trial court observed 47-48), pp. B.H. to question it have been demeanor would suggested pointless excusal I do that this is establish disagree adequate further. by itself, considered cause, discretion. But not an abuse of B.H. for is not of demeanor responsive to the trial court’s observation deference In the face dire evenhandedly. court did not conduct voir that the trial claim
99 in C.Pa.’s ambiguity trial court did not voir dire questionnaire, begin C.Pa.: “Is about the death by asking your feeling such would penalty you always the death And in the regardless evidence?” face impose penalty in ambiguity Y.C.’s the trial court did not dire questionnaire, voir begin Y.C.: “Is asking your about the death such that feeling would penalty vote automatically for the death in first every degree murder case?” Had the trial court asked such to those the court asked questions—parallel B.H.—there is no reason think C.Pa. and Y.C. would have given any different answers than what indicated they in their and on questionnaires, demeanor, the basis of their answers and the trial court well have might concluded that there be would no in C.Pa. point and Y.C. further. questioning But we will never examined know because the trial court in ambiguity C.Pa.’s and Y.C.’s different line of questionnaires through markedly ques- than what examine tioning trial court used to in B.H.’s ambiguity questionnaire.
Moreover, this differential treatment cannot itself be explained by anything to do having demeanor jurors’ because the disparity questioning occurred at the very beginning of each juror’s voir dire. Although today’s notes that the opinion trial court had the opportunity assess each juror’s ante, demeanor “both 40, during questioning” at (maj. opn., pp. before 49, added; 39, see id. italics 15), fn. it p. is clear hardly what of a aspects juror’s demeanor before would have questioning enabled the court to deter C.Pa., mine B.H., that Y.C. and but not were potentially receptive and, instruction on the law to the particular, to set aside one’s obligation views on the death personal While our penalty. cases have often counseled deference to of demeanor perceptions when juror gives conflicting answers v. Jones equivocal 1, voir dire” “[d]uring (2012) 54 Cal.4th 383, 41 496]; v. Duenas Cal.Rptr.3d 275 P.3d see People (2012) [140 55 1, 820, Cal.4th 887]; 11-12 v. Hamilton 281 P.3d People Cal.Rptr.3d [144 (2009) 863, 286, 45 Cal.4th 898]; P.3d Cal.Rptr.3d [89 Stewart (2004) 33 Cal.4th 271]), P.3d Cal.Rptr.3d today’s (because opinion cannot) does it cite any of this court precedent reliance, that has much placed if on a trial court’s unstated any, perceptions of demeanor before This is not questioning. for such a surprising, precedent would tend to erode review in this context appellate almost to the vanishing point.
Thus, court, the trial while careful and generally conscientious in the jury selection was not process, evenhanded in its voir dire of jurors prospective Y.C., C.Pa., instances, and B.H. In those the trial court seemed to proceed the impermissible assumption jurors who the death are oppose less their capable fulfilling civic than who duty jurors the death support penalty.
100 however, not trial court’s treatment those does jurors,
The of disparate did not defendant’s warrant reversal of the death because it render judgment ” “ 1215, v. Carter (2005) unfair.’ Cal.4th ‘fundamentally trial 838, counsel 544].) 117 P.3d Defense did seek Cal.Rptr.3d [32 B.H., B.H. nor did he to the court’s excusal of object question opportunity as Y.C. to B.H. was not the same C.Pa. and Although given opportunity law, it is either declare her follow the that defense counsel ability possible B.H.’s once voir dire agreed with court’s evaluation of demeanor implicit the court’s of B.H. or had some other reason excusal began agreeing that (Or it not relevant on direct defense counsel is possible, though appeal, Meanwhile, to do court did not so.) should have but failed trial objected defense counsel’s challenges abuse its discretion in for-cause denying could set and Y.C. both confirmed that jurors ultimately they C.Pa. because and follow as instructed the court. aside their beliefs the law personal Moreover, trial the record as a whole that court’s disparate shows Y.C., C.Pa., (See B.H. did in a biased maj. treatment of not result jury. ante, 40.) at opn., p. sum, here is not with the outcome death-qualification
In problem court’s of but rather the lack of in the voir dire symmetry pro- with process, the same whose written anti-death-penalty presented jurors questionnaires the discretion of trial courts to conduct degree ambiguity. Although broad, voir dire is it must be exercised evenhandedly. death-qualification
II. leading court used improperly Defendant further contends trial C.Pa., Y.C. whereas to rehabilitate like jurors questions pro-death-penalty limited, like it with anti-death-penalty jurors relied on closed-ended questions court’s leading the trial use of B.H. I agree today’s opinion ante, at 29, (See maj. opn., pp. fell within its broad discretion. questions the two modes of 34-35.) I further find that the between disparity questioning However, court’s did in a I would underscore the not result biased jury. to the of more exclusion leading “caution overreliance against questions ante, omitted.) fn. open-ended questions.” (Maj. opn., p. v. Mills (2010) 48 leading questions
We addressed subject 276], an “even- which involved P.3d Cal.4th 158 Cal.Rptr.3d the one here: rehabilitation improper claim similar to raised handedness” examination and dismissal in contrast jurors cursory pro-death-penalty claim, we “Nor does In said: jurors. rejecting anti-death-penalty to rehabilitate when leading questions attempting court’s occasional use of courts We our trial a lack of trust ‘death-leaning’ jurors suggest impartiality. dire and the the voir procedure importance understand appreciate need to be ‘evenhanded’ in ain case. questioning prospective jurors capital We the trial court assume formulated its based on questions [Citation.] individual of each characteristics juror, including juror’s questionnaire *88 answers and in-court demeanor. To these choices would encour- second-guess the trial court in the same of all age engage substantially questioning circumstance, of their we prospective jurors individual irrespective something (Id. have 190.) declined to do.” at p.
I have above the trial different why court’s explained approaches hand, other, C.Pa. and Y.C. on one and B.H. on the questioning cannot be demeanor, the explained by jurors’ in-court or other questionnaires, case, individual circumstance on the record. In this the trial apparent court’s use of leading seemed to blur the line between questions probing juror’s true views and there were suggesting answers to the right wrong court’s Y.C., The entire voir dire of questions. contains little in the example, way of Y.C. her views in her It expressing own words. consists almost entirely or “yes” “no” answers to lengthy in which the court recites leading questions law asks if Y.C. can it. The follow voir dire with Y.C. begins speaking (“Uh-huh.” somewhat informally “Um-hmm.”), but “Right.” “Okay.” as dire voir Y.C. proceeds, to the court with increasingly responds greater “No, (“Yes, dire, deference sir.”). sir.” In the latter half of the voir she several answers on her repudiates she concludes questionnaire, by saying: “Those [1] n (cid:127) (cid:127) (cid:127) (cid:127) questions [1] (cid:127) Just change everything.” are rather tricky. [][]... [f] . . . Get you thinking one way. dire, the end
By of the voir Y.C. to be what she appears telling judge thinks he wants to hear or what she believes “correct” answers are. This is are, hardly Most called surprising. and conceive of people jury duty as, themselves citizens. “Given law-abiding of the of a formality setting court, over which the trial in a superior judge presides commanding display v. Guerra of authority” (2009) 176 Cal.App.4th 943 [98 175]), it is natural for a to accord deference Cal.Rptr.3d prospective juror and to judge answer when the “yes” judge individually instructs juror hand, on the law and “can asks follow instructions?” On one this my answers, seems to the extent problematic Y.C.’s given increasing hand, deference to the not reveal judge, might her real views. On the other it is that the his possible judge, through has succeeded leading questions, Y.C. the distinction between one’s views impressing upon following personal law, as as the following well to do the latter and not the duty jurors former. The same can be said of the trial fairly court’s of C.Pa. questioning case, But if that is the then it only underscores court’s inconsistency not B.H. in the same manner. questioning court is well-taken: high
I
offered
a sister
following guidance
believe
or
answers
predetermine
“We have
close-ended
disapproved
questions
We have
encouraged
elicit narrow
and ‘no’
‘yes’
responses. [Citation.]
into a juror’s
that will provide insight
formulation of additional questions
voir dire examina
on the
a court must control
controversy. Obviously,
views
tion,
The court
it
but in
so it must remain neutral.
must
doing
proselytize;
dire
answers to voir
‘right’
‘wrong’
must not indicate its views
extensive, fair and balanced.”
The voir dire should be probing,
questioning.
A.2d
(2000) 163 N.J.
(State
Jersey
New
v. Papasavvas
40]
[751
the trial court’s conduct of voir dire in State v.
In
(Papasavvas).)
approving
624],
“There was
A.2d
the court observed:
(1991)
This is not to say questions are not detailed answers on issues that jurors give requires prospective tend to But because leading questions conversation. everyday typically part elicit narrow answers or ‘yes’ be “close-ended questions predetermine 585), N.J. at and because ‘no’ (Papasavvas, supra, p. responses” thinks is a trial cause a what she juror give authority judge may views, trial statement of her true “correct” answer rather than considered to the on leading courts should be careful to avoid overreliance questions to state their views of more allow jurors exclusion open-ended questions in their own words. March 2013. for a was denied rehearing petition
Appellant’s LIU, OF APPENDIX TO CONCURRING OPINION J. Questionnaire (Questions 9-32) Y.C.: Juror The are in italics. Where prospective juror’s prospective responses the juror’s was asked to select juror among multiple pre-printed responses, an “X.” selections are indicated Check the about the death
9. which best describes entry your feeling penalty:
_ always regardless Would of the evidence impose _ X Strongly support Oppose _ _ Strongly Support oppose _ Will consider
_ Will never under circumstances death impose penalty, regardless
the evidence. 10. Please views on the death your explain penalty: “you” think another’s is inconsequential—prepare pay If life
ultimate decide to take that penalty!—if “you” person’s life— *90 11. In what if have ways, any, views about the death your changed penalty over time?
Has been the same. always case, 12. In this the defendant is with murder for charged killing elderly man with a Do shotgun. you think convicted of such a murder everyone committed during should receive the death robbery regardless penalty, the evidence which introduced and the regarding is penalty defendant? _ X
Yes No Please explain: The murder was probably necessary 13. If were selected as a in this case and if the to a you juror jury got would to listen evidence penalty phase, you agree open-mindedly any submitted about the and base decision about the penalty, your penalty solely evidence on such and instructions? X
Yes No Please explain: or too often? feel that the death is used too seldom 14. Do you penalty Please explain: & sen- row is overcrowded with convicted
Too seldom—death time—too much money criminals way overdoing appeal tenced these supporting spent folks! be for mandatory any
15. Do feel the death should penalty you crime? Please particular type explain: circumstance.
Yes.Murder & murder/special the death should be a sentence possible 16. Do feel that you penalty circumstances? Please than first murder with degree special crime other explain:
Yes. murder. Any circumstances, believe that the death penalty if do any, you 17. Under what is appropriate?
See #15. question circumstances, that the death if do believe any, you 18. Under what is inappropriate? murder & circumstance. murder/special
For but anything murder with degree special defendant was convicted of first If a 19. circumstance, vote for the death would you automatically do feel Please without possibility parole? life against imprisonment explain: *91 #14.
Yes. See question murder degree convicted of first that if a defendant was 20. Do feel you circumstance, vote automatically against would you and a special Please explain: of parole? and for life without possibility death No. deciding defendant before about the want to know you
21. What would without possibility or life imprisonment the death penalty whether to impose Please explain: parole? he little another human Why disregard had such for life.
22. Do believe in the “An for an you adage: eye eye”? _
Yes No _X_
What does the “An for an mean to adage eye eye” you? lay your sin another & take their down you against prepare If life
own. Is belief in your religious this based conviction? adage upon _
Yes No JL_ 23. California an law has not for Will adopted “eye eye” principle. you be able to out of mind put “eye eye” concept your apply the Court gives you? principles _
Yes No X 24. Have had or moral the death you any religious training regarding penalty? _
Yes X No Source: family
From & church 25. Could set such and decide according aside this case training the law which the Court will give you? _ _
Yes No Please explain: Do not know.
26. Do that either advocates for the death you belong any organization or the abolition of death penalty? *92 _ No X
Yes
If what yes, organization(s): what 27. Could set aside own your feelings regarding you you personal the law as the think the law should be the death and follow regarding penalty, Court you? instructs _ X
Yes No
Please comment: If are in this case and if the to a jury got 28. selected as you juror would the court’s that life without agree phase, you accept representation that, be life means that the sentence would exactly possibility parole without the of parole? possibility _ _
Yes No Please explain:
Do not know. is, in without the In life deciding prison possibility 29. penalty—that for life be a or death—would the costs of someone keeping jail parole for you? consideration
Yes X No explain: Please a consideration? be appellate process Would costs providing X No explain: Yes Please verdict, circumstance that a murder with a
30. first Knowing degree special second, true, and cause to enter a found could cause jury “penalty” phase, death, life to have to consider without possibility parole, murder, reason, or for a degree hesitate to vote for first would you, any true, circumstance, thing beyond if the evidence either such special proved doubt, to avoid the task of deciding penalty? reasonable just ___ No X Please explain: Yes and found the of first murder degree If found the defendant guilty
31. evidence, true, regardless circumstance to be would you, special the death case every automatically about feelings penalty, because your the death vote against penalty? Please
Yes X No explain: *93 such, there was a that if the death penalty about feelings 32. Are your the death vote trial, automatically case would in every of a you phase penalty of parole? without the possibility than life in prison rather penalty _ Please explain; Yes X No Dire Y.C.: Voir here off your questionnaire of questions COURT: Just Okay. couple
THE all done. be you’ll after we’re through number seven one, that in answer your question indicated you Number case, information in general about this something said that had heard you you the newspaper? article. read the whole don’t believe I even
Y.C.: Some small—I didn’t here now right you don’t—as sit you you THE COURT: And Okay. or innocence guilt what read about you form based on any opinion defendant in this matter? No, I didn’t.
Y.C.: sir. may of what you us that regardless THE COURT: And can you promise base that you’ll come back to some you point have read if does anything court, in the Bee? not what read you hear here in decision on what your you Y.C.: Yes. Thank you.
THE COURT: was charged that the defendant indicated you With reference to question to you. to read question killing elderly—I’m going with murder of an elderly killing with murder for the defendant is charged “In this case a murder of such convicted everyone Do think shotgun. you man with a death receive the penalty should robbery the commission of during introduced by which is regarding of the evidence regardless answered, “Yes. The murder probably You and the defendant?” not necessary.” in this said, as a juror “If were selected 13 it
Then in the next question to listen open would you agree to the phase, case and if the jury got *94 evidence mindedly submitted about the and base decision penalty your solely such evidence and instructions.” And also answered you to that. yes that—So Okay. See,
Y.C.: I’ve a confusion got about the first and the part penalty part. That’s where I’m confused. getting
THE COURT: That’s I wanted to why with explore you.
You understand there are two here in this trial? phases possible Y.C.: Yes.
THE COURT: Okay.
Y.C.: Uh-huh.
THE COURT: And you get first is called the phase guilt phase?
Y.C.: Okay. THE COURT: And within the guilt evidence would be introduced phase show whether the defendant did nor did not commit the crime that he is charged committed. And whether having circumstances special crime in that are true alleged or not?
Y.C.: Okay.
THE COURT: And in this case circumstances are that special murder was committed course of during robbery, right?
Y.C.: Right.
THE COURT: You understand that far? Okay. so
Y.C.: Yes. THE COURT: Then if and the other found Okay. you jurors beyond reasonable doubt that the defendant was as and the guilty charged special true, circumstances were would then move in to what’s called the penalty You understand? phase.
Y.C.: Um-hmm. be evidence there would in the phase COURT: And
THE means factors which which called aggravation, which is would be presented death should that the tend to indicate believes would the prosecution the defendant believes factors that which means be or mitigation, imposed, without life should not be imposed, that the death penalty would indicate You understand? be the sentence. should possibility parole Y.C.: Um-hmm. *95 be able to listen to that would you Okay. Understanding
THE COURT: in the evidence outweighed in aggravation and if the evidence evidence the death be able to vote for penalty? would mitigation, you I I could. Y.C.: believe
THE COURT: Yes?
Y.C.: Yes. hand, and you if listen to the evidence you
THE COURT: And on the other the factors in aggravation, in mitigation outweigh believe that the factors vote the sentence of life without you possibility parole? could don’t at this Honor. your Y.C.: I don’t I know really really point, Well, THE COURT: you— You I just.
Y.C.: I could. know. Okay. to hear the evidence? THE COURT: You have - I can say. have to hear before something Y.C.: That’s I’d right. words, decision until couldn’t make that THE COURT: So in other you listen to both sides? you’d
Y.C.: That’s right. there were more determine whether mind your
THE COURT: And be than factors the death should imposed factors indicating not? should indicating they
Y.C.: Yes.
THE COURT: Or vice versa?
Y.C.: Yes.
THE COURT: Right?
Y.C.: Right.
THE COURT: And do have either Okay. you hesitancy way voting either if believe that way that’s what the evidence indicates?
Y.C.: No.
THE COURT: No?
Y.C.: I do. *96 THE COURT: You indicated that in Okay. answer to question you believe in the an for an adage You said if eye eye. you said what yes, you said, does it mean. You “If sin other and take the life then you against prepare said, down own.” And lay your “Is that based on you religious convic- said, tion?” You said And then yes. you “California law has not adopted for an eye eye principle.”
“Would be able to that out of the mind and you put concept apply that the court and the principle gives you,” answer to that said no.
Based on the answers that me to the do you’ve given previous questions want to that answer? you change
Y.C.: Yes. THE COURT: And answer to that is now that would be Okay. your yes you able to follow the court’s instructions and base decision what your you hear in court? Yes, At
Y.C.: sir. the time of the in the room day jury assembly people it little hard was a to concentrate on the questions.
THE In a COURT: here indicated that in Okay. couple places you well, said, “If in the deciding, actually selected as question you juror case and the to the would got agree penalty phase you accept that means exactly that life without of parole
court’s representation possibility And you of parole?” be life without possibility that sentence would said “Don’t know.” in there as you get
Are now if you willing right your concept—if accept if life without that conduct as yourself possibility would—will juror you defendant, to life without that the if he’s sentenced means exactly parole there stay be sentenced to life in will will prison possibility parole, that concept? without Are you willing accept parole. Yes,
Y.C.: sir. conduct in the jury THE COURT: And are . . . to so you willing yourself room? Yes,
Y.C.: sir. Thank you.
THE COURT: Okay. said, life in And and 30. You “In it’s deciding penalty prison without or death would the cost of someone keeping possibility parole for life be a consideration?” You said “Yes.” jail “And would the cost of be a consideration” providing appellate process yes. answered you back there and you got Did mean that that that would—when you *97 if to that deserved got were about whether this case you thinking you point tend to the death life would you without penalty possibility parole some dollars for vote the death because that would save way you penalty wouldn’t have to be warehoused? the state because the defendant (cid:127) Honor, Well, I I’ll to that because object DEFENSE COUNSEL: Your in fact that life without is parole think studies have shown possibilities cheaper. Well, not yours,
THE not—I’m asking juror’s concept, COURT: that’s Mr. Spokes. answer,
Y.C.: That behind my reasoning my yes. Well, influence in deciding are to let that going you THE COURT: you decide on? which penalty No,
Y.C.: I don’t think so. words, THE COURT: In other you’re going dollars cents put either before other consideration? way No,
Y.C.: sir. This is Not I take important. something lightly. hand, THE COURT: And on the other to the regard appellate process if were to vote for the death you would be to vote penalty you swayed other because of cost of an if that is the situation? way appeal
Y.C.: No.
THE COURT: No?
Y.C.: No.
THE COURT: Okay. said,
Then on answer to 31 “If found the defendant you you guilty true, murder and found circumstances to be would first-degree you special of the evidence because of about the death regardless your feelings vote the death And said Is that a automatically against you yes. penalty.” answer? wrong
Y.C.: I believe so. THE COURT: is no? your actually So answer to question Y.C.: Would be a no.
THE COURT: Correct? Yes,
Y.C.: correct. said, THE COURT: And with 22—32 “Are you your respect question the death that if there was a about such feelings penalty phase *98 for the death You answered automatically would case vote every penalty?” “Yes,” I that one and based on answers to the your questions previously answered would that be no also? I so. Those are rather tricky.
Y.C.: believe questions THE COURT: Kind of confusing?
Y.C.: Yes. Get one you thinking way.
THE COURT: All right.
Y.C.: Just change everything.
THE COURT: Either side have any questions?
DEFENSE COUNSEL: I have no questions.
PROSECUTOR: No Your Honor. questions, Pass for cause.
DEFENSE COUNSEL: I’d enter a based on the answers to challenge 12, 19, 23, 28, 32. questions
THE COURT: Denied. Questionnaire (Questions 9-32)
C.Pa.: Juror The are in juror’s italics. Where prospective responses prospective was asked to select juror among juror’s multiple pre-printed responses, selections are indicated an “X.” Check the which best describes about the death entry your feeling
9. penalty:
X Would always of the evidence impose regardless _ _ Strongly support Oppose _ _ Support Strongly oppose (cid:127) _ Will consider
_ Will never under death impose penalty,regardless circumstances
the evidence. 10. Please on the views death explain your penalty:
Take a pay price / life 11. In what if have views about the death ways, any, your changed over time?
None case, an elderly In the defendant is with murder for charged killing 12. this of such a murder man with a Do think convicted shotgun. you everyone regardless should receive the death robbery penalty, committed during and the which is introduced by evidence regarding penalty defendant? _ Please
Yes X No explain:
Non-negotiable to a in this case and if the jury got 13. If were selected as a you juror evidence any to listen agree open-mindedly would penalty phase, you solely decision about the your penalty submitted about the base penalty, on such evidence and instructions? _
Yes X No Please explain: is used too seldom or too often? 14. Do feel that the death you penalty Please explain: circled the words “too seldom” in printed question.]
[C.Pa. for mandatory any death should be 15. Do feel you Please of crime? type explain: particular murder, i.e., as death because assault—such victim yes, degree first
heart attack should be a sentence feel that the death penalty possible 16. Do you circumstances? Please murder with crime other than first degree special explain:
no, i.e., crime passion circumstances, believe that the death penalty if do any, you 17. Under what is appropriate? intent, planned.
Willful circumstances; the death do believe that if any, Under what
18.
is inappropriate?
no victim loss of life. If a 19. defendant was convicted of first degree murder with a special circumstance, do you feel that you would vote for the automatically death life penalty against without imprisonment Please possibility parole? explain: circumstance special wld have to be considered w/in parameter of
judicial interpretation 20. Do feel you that if a defendant was convicted of first murder degree circumstance, and a .special would you vote automatically against death and for life without possibility parole? Please explain:
unknown all w/o info. 21. What would you want to know about the defendant before deciding whether to the death impose or life without imprisonment possibility Please parole? explain: I wld hope to be crime considering only, & not child- unfortunate
hood, etc. 22. Do you believe in the “An adage: for an eye eye”?
Yes X No
What does the “An adage for an eye mean to eye” you?
Take a life, give your own. Is your belief in this adage based conviction? upon religious _
Yes No X 23. California law has not for an adopted “eye eye” Will principle. you be able to put “eye for an eye” out of concept your mind and apply the Court principles gives you? _
Yes No X 24. Have had any or moral religious training the death regarding penalty? _
Yes No X Source: decide according 25. set aside such this case training Could you the law which the Court will give you? *101 _ _
Yes No Please explain:
N/A either for the death 26. Do advocates you belong any organization of death or the abolition the penalty? penalty _
Yes No X
If what yes, organization(s): what feelings you set aside own personal regarding 27. Could you your law the as the think the be death follow regarding law should penalty, Court instructs you? _
Yes X No
Please comment: and if the got 28. If are selected as a this case juror jury that life the court’s without representation would you agree accept phase, that, that the sentence would be life exactly of means the possibility parole without parole? possibility _
Yes No X Please explain: is, In life in without possibility deciding penalty—that prison 29. for be a someone in life jail or the costs keeping death—would parole consideration for you? _ No Please
Yes X explain: be a consideration? of providing appellate process Would the costs _ Yes No X Please explain: verdict, circumstance with a special that a first murder degree
30. Knowing second, true, and cause to enter a “penalty” phase, could cause the jury found death, life without the possibility parole, to have to consider reason, murder, would you, any hesitate to vote for first or for a degree circumstance, true, special if evidence either such proved thing beyond doubt, reasonable just avoid task of deciding penalty? _
Yes No X Please explain: 31. If you found defendant of first murder found the guilty degree true, evidence, circumstance to be would special you, regardless because of about the your feelings death case penalty, every automatically vote against death penalty? _
Yes No X Please explain: such, 32. Are your about the death if feelings there was a *102 trial, of a penalty phase you would case vote every automatically for the death rather than life in penalty without the prison possibility parole? _ X
Yes No Please explain: C.Pa.: Dire Voir
THE COURT: Good How are morning, you? [C.Pa.].
C.Pa.: Thank Fine. you. THE COURT: Just a here couple based on questions your questionnaire. said, In answer to which question you was check the which entry best describes your feelings about the death “Should—would penalty: always impose regardless evidence.” said, then
Okay. And in answer to question you you “Could set aside your death personal feeling regarding the what think the penalty you law should be regarding death follow the law as court instruct penalty, said you” you yes.
So I need to talk with about this. you
C.Pa.: Okay.
THE A COURT: little bit.
As the law stands in California at the order time in to have the present death be available as a a penalty have to punishment couple things happen. second, all, it has to it a murder committed First of has to be first-degree circumstances. committed under what’s called special be during killing are a It could be things. circumstances number of Special officer, a it it could be during law could be during robbery, of a enforcement that crimes laundry it could list during types be rape, kidnapping cause the death be available. could
You understand that?
C.Pa.; (Nods head.) if would. need to out loud THE COURT: You answer C.Pa.: Yes.
THE COURT: Thanks. Okay. where case. One is the guilt phase
A death couple phases defendant did or did to show whether the the evidence would be presented he is with. charged not commit the crime not, is, circumstances are true or special
Whether circumstances *103 in this case. robbery that it was during that?
You understand Yes.
C.Pa.: guilty if found defendant you understand that only THE COURT: You move to the you penalty phase to be true would and the circumstances special life without to decide between death penalty would have you where of parole. possibility that?
You understand
C.Pa.: Yes. to the got penalty understand that if you you Do Okay.
THE COURT: that the factors indicating introduced in aggravation, evidence would be phase factors, it is not indicating that and mitigation is death penalty appropriate, against those factors one weigh would asked that be you juror as the court and that’s given you on the law under the instructions another decide which is the appropriate punishment.
You understand that?
C.Pa.: Yes. THE COURT: And understand that as the law stands in the State Okay. you California, the death is not the crime automatic conviction of penalty upon of this nature. It’s of the one two available and it’s simply punishments up instruction decide what the is under the appropriate punishment by the court? given
C.Pa.: Yes. that,
THE COURT: that Okay. do feel would be Understanding you you able follow court’s instructions and evaluate the evidence in fairly favor of the death and against the death and arrive at a rational decision?
C.Pa.: Yes. THE COURT: Okay. your So in mind then the checked answer you initially, would the death you always impose penalty regardless evidence, is not as your answer sit there you right now. Honor,
C.Pa.: Your I did not have a definition of murder one with special circumstances when I filling that out.
THE COURT: So didn’t Okay. understand?
C.Pa.: No. I understand it now.
THE And COURT: understanding the situation now?
C.Pa.: Yes. *104 THE COURT: There’s no hesitation in mind about to be your your ability fair in impartial correct is that correct? deciding penalty; C.Pa.: Right.
THE is, And COURT: if in mind the in that your circumstances mitigation, those which things favor life without of more possibility parole, weighed in mind heavily your than those indicating death should be penalty would imposed, you have hesitation for without any voting life possibility parole?
C.Pa.: No hesitation. hand, if felt that the factors in you aggravation, THE COURT: On the other is, death that life or that indicating that those things those that life without indicating possibility parole appropriate, outweighed hesitancy voting way? would have you is more appropriate, No, sir. C.Pa.:
THE COURT: Okay. an eye eye—. about
There was some questions C.Pa.: Um-hmm. in that believed you
THE there and were asked whether you COURT:—in adage? Yes,
A. I do.
THE An for an eye eye? COURT: law, as in there. You understand that
And then there’s another question for an concept. with the go along eye eye I have it to does you, explained is, That it is not automatic?
C.Pa.: Yes. they automatically put are somebody THE COURT: If a kills person that? death. Do understand you Yes,
C.Pa.: sir. that, for an eye can Understanding you eye Okay. put THE COURT: I it to you? the law as out of mind and follow your explain concept Yes. C.Pa.: as a “If selected you’re
THE COURT: All In answer right. question would agree to a phase the case and if jury got juror of parole that life without the possibility the court’s accept representation life would be without possibility that that sentence exactly means no. You indicated parole?” without life the—since punishment
As as we know since far re-instituted, I in the guess instituted or has been possibility parole or the seventies, has ever been paroled, to that no one that’s been sentenced *105 mechanism, boards, that there is no group no no there is parole fact there is a person. can of such grant parole
Do you understand that?
C.Pa.: Yes.
THE COURT: As I it to now. explain you
If I it to that that explain you you willing are life way accept without possibility means that and not have be parole influenced what might later on down the road? happen
C.Pa.: Yes.
THE COURT: Okay.
All I right. don’t think I have any further questions.
[***] THE COURT: Challenge is denied on the based answers here in court. The has assured the court she juror can follow court’s and did instructions not fully understand the answers original given. Questionnaire
B.H.: (Questions 9-32) Juror The juror’s prospective responses are italics. Where prospective juror asked to select among multiple pre-printed responses, juror’s selections are indicated “X.” by an Check
9. which best entry describes your feeling about the death penalty:
Would always regardless of the impose evidence Strongly support Oppose _X_ _ Support Strongly oppose Will consider
Will never under impose circumstances death penalty, regardless of the evidence. *106 death
10. Please views explain your penalty: [blank] changed views the death your penalty
11. In what if have about any, ways, over time?
[blank] case, an elderly the defendant is with murder for charged killing 12. In this of such a murder a Do think convicted everyone man with shotgun. you death regardless should receive the penalty, committed during robbery and the is introduced by the evidence which regarding penalty defendant? _ No X Please explain:
Yes case and if the juror jury got selected as a this 13. If were you evidence listen you agree any would open-mindedly penalty phase, about the penalty solely about and base decision your submitted the penalty, on such evidence instructions? _ X No Please explain:
Yes too often? death is used seldom 14. Do feel that the you too Please explain: it used to
I don’t hear being often. for any be mandatory the death should 15. Do feel you crime? Please explain: type particular
?No. should be sentence that the death penalty possible 16. Do feel you circumstances? Please first murder with special other than degree crime explain:
? No. circumstances, the death penalty if do believe that any, 17. what Under is appropriate? ?
None. *107 circumstances, 18. Under what do any, if believe that death you penalty is inappropriate?
Under no circumstances 19. If a defendant was convicted of first murder with a degree special circumstance, do feel that would you vote for the you death automatically life penalty without against imprisonment possibility parole? Please explain:
No. 20. Do feel that if a you defendant was convicted of first murder degree circumstance, and a would special automatically vote you against death life without Please possibility parole? explain:
No. ? 21. What you would want about know the defendant before deciding whether to the death or life impose without imprisonment possibility Please parole? explain:
Nothing
22. Do you believe in the “An adage: eye for an eye”? _
Yes No X
What does the “An adage for an mean eye eye” to you? ?
Nothing Is your belief this adage based conviction? upon religious _
Yes No X 23. law California has not for an Will adopted “eye eye” principle. you be able to “eye for an put eye” out of mind and concept your apply the Court principles gives you? X
Yes No death you any training regarding 24. Have had moral religious Source: penalty?
Yes No X according and decide this case 25. Could set aside such training Court will to you? the law which the give *108 _ X No Please
Yes explain: either for the death Do advocates you belong organization 26. any or the of the death penalty? abolition penalty
Yes No X yes, organization(s):
If what what feelings regarding you aside own your personal 27. Could set you the law as law be the death and follow regarding, penalty, think the should you? Court instructs _ No
Yes X
Please comment: and if the got as a in this case jury If are selected you juror
28. that life without the court’s representation would you agree accept phase, that, life that the would be exactly sentence of means parole possibility of the possibility parole? without _ No Please explain:
Yes X is, life without possibility in prison In deciding penalty—that 29. for life be someone in jail the costs or death—would keeping parole you? consideration for _ No Please explain:
Yes X then the death penalty be better it would feel Would the costs be a consideration? providing appellate process _ _
Yes No Please explain: ? verdict,
30. that a Knowing degree first murder with a circumstance special true, second, found could cause the jury enter a and cause “penalty” phase, death, to have to consider life without possibility parole, reason, murder, would for hesitate to you, vote first or for a degree circumstance, true, if the evidence special either such thing beyond proved doubt, any reasonable to avoid the just task deciding penalty? _ X Yes No Please explain: I the death against feel
31. If found the defendant guilty degree of first murder and found the *109 true, evidence, circumstance to be special would regardless of you, because your feelings about death case penalty, every automatically vote against death penalty? _ X
Yes No Please explain: I against death penalty such,
32. Are your feelings about death if there was a penalty trial, of a penalty would in phase you case vote every automatically for death rather than life prison without possibility parole? _
Yes X No Please explain: B.H.: Voir Dire row, ma’am,
THE in, COURT: there in the Right front about third chair fourth, wherever.
B.H.: here? Right
THE COURT: Okay. good. Very [B.H.], All right. we have a just based on couple questions you your answers to And I don’t think we’ll be questionnaire. too detaining you long. Okay? all, indicated that Question you you in answer to
All First' right. correct? the death oppose penalty, Yes.
B.H.: asked you were were then in 10 and asked—10 THE COURT: And You left that blank. on the death penalty. views explain your B.H.: Uh-huh. or, B, either, A, blank, it left can you why you
THE COURT: And explain are? what views your down. know
B.H.: I didn’t what put Because sure to say? So weren’t what you just
THE COURT: Okay.
B.H.: Uh-huh. over time? changed on death your And have views
THE COURT: No. B.H.: what exactly some of answers not clear here on your
THE COURT: I’m *110 here. feel you no circumstances such that under the death about feeling
Is your it? vote to you approve could Under no circumstances.
B.H.: whatsoever?
THE COURT: None None
B.H.: whatsoever. horrible crime were most if this So if—even COURT: Okay. THE history? Even if.
B.H.: THE COURT: And even if the defendant was the worst person history, could not— B.H.: I don’t believe in it.
THE COURT: All
Thank
right.
ma’am.
you,
You’re excused.
notes
that I
criminalist,”
consulted
awith
defense
and
notes been
those
available
“[h]ad
time,
to me at that
I
able
may have been
to direct the
in a new
criminalist
notes,
direction.” Counsel
that
argued
without
“the criminalist was unable
to reach
conclusion other
that
[(the
than
which Duane Lovaas
prosecu-
is,
tion’s
had reached”—that
that a
expert)]
shell had
12-gauge shotgun
been
loaded behind a
shell
fired
20-gauge
into the victim. He added the notes
theories,
might
alternate
as the
support
such
that two rounds had been
theory
fired.
motion,
The court denied the mistrial
“we have some
explaining,
time yet
films,
this trial. I would suggest you take those
have them looked at by
your
criminalist,
and if
investigator,
necessary, by your
and we will see what
there,
If it turns
develops.
out'there’s some
evidence
we’ll take a
exculpatory
out,
look at it at
time.”
that
Defense counsel
“a number
objected,
pointing
these
are of shoe
that were
taken at
photographs
prints
the scene
apparently
on,
of the crime. If we’d have had
back
those
have been
early
may
we
able to
track down some shoes.
Now
.
two
later. .
. There’s
you’re talking
years
[][]
not much chance we’re
be
able to find
going
those shoes.” Finally,
notes,
Miller’s
regarding
counsel noted that after his criminalist had exam-
evidence,
ined the
it had been
and returned
physical
“packaged
to the
up”
sheriff’s
The court
department.
was “not
in-
responded
problem
continued,
soluble” and
“I would
let
defense
suggest
[the
criminalist]
stuff,
take a look at this
and if he thinks there’s
that he can do about
anything
it,
can
him
certainly
make
[you]
to do whatever it is he
arrangements
thinks he
to do.”
needs
Defense counsel did not raise the
matter
The
discovery
again.
defense
its cross-examination of Miller six
completed
later.
days
Defendant contends the
failure to
disclose
prosecutor’s
timely
Miller’s
handwritten notes
the seven
rolls
film
unprinted
prevented effective
64
cross-examination
Miller
amounted to misconduct. We generally
Brady
Maryland
(1963)
such claims under the rubric of
v.