*1 Mar. No. 20911. 1988.] [Crim. PEOPLE, Respondent,
THE Plаintiff and WILLIAMS, Appellant. KEITH DANIEL Defendant Mar. No. 23904. [Crim. 1988.] Corpus. KEITH WILLIAMS on Habeas
In re DANIEL *12 Counsel Mazer,
Richard B. Court, under by the appointment Supreme *13 Defendant and Appellant and Petitioner. General,
John K. Van de Attorney D. Kamp, McMurray, Edmund Garrett Beaumont, Jibson, General, Jana Tuton and J. Attorneys Robert Deputy for Plaintiff and Respondent.
Opinion EAGLESON, J. jury A convicted Keith Daniel Williams of three counts Code, of first degree (Pen. murder with 189)1 special circumstances §§ (§ 190.2) and use of a 12022.5). firearm The same found that he was (§ jury sane during commission of the determined that was offenses and death the appropriate for each penalty (§ 190). offense This is automatic appeal (§ A 1239). for writ of in petition conjunction habeas was filed with corpus
1All references to code sections are to the Penal Code unless otherwise indicated. exami- careful thereon. Upon and an order show cause issued appeal, find no prejudicial defendant’s numerous we arguments, nation of each of has failed error the conviction. We also conclude that appellant and affirm offered record evidence either on the basis of the appellate establish trial counsel his corpus of habeas that petition of writ support there- We shall failed constitutionally representation. to provide adequate multi- conviction, single affirm modified to reflect a fore of as judgment ha- circumstance, The for writ petition and ple-murder special penalty. beas be denied. will corpus the murder was in count I with charged
Defendant information willful, deliber Miguel The Vargas. alleged killing information ate, com committed during with malice express and premeditated; committing used a robbery (§ 211); and that defendant firearm mission existed alleged It was also that three circumstances special offense. Meza, and also Salvador Lourdes Vargas murdered willfully committed the murder of deliberation Miguel Vargas with a to be true. premeditation during jury The found each robbery. allegation In Vargas. II defendant was the murder of Salvador count with charged circumstance, The in the first allegations only additional differed special each also the murder found charging Again jury Miguel Vargas. allegation to be true. willful,
Count III charged premeditat- defendant with the deliberate Meza, ed murder of Lourdes this murder had been committed alleging robbery, with malice and express kidnapping the commission during circum- (§ firearm. 207), rape (§ 261), special with use of a The four stances were that murdered and Salvador alleged Miguel defendant also and a Vargas, and committed the during rape murder of Lourdes Meza rape, found did not during that the offense occur kidnapping. circumstance, rejected allegations rape special and otherwise found III to be true. count In we sum- a multifaceted attack on the conviction and sentence which *14 below, in the trial marize here and address defendant that argues detail criminal other erroneously court admitted his record and prior evidence of conduct; erroneously; and lay criminal evidence was admitted opinion by appointed he received assistance constitutionally inadequate He also guilt, counsel and of the trial.2 during sanity, penalty phases in corpus proceeding in the appeal Evidence outside the record on was introduced habeas support sec appropriate claim. Reference this evidence in the of this will be made to where separately opinion dealing appeal. corpus petition tions with The habeas will be of this opinion. in treated this one more than with and convicted of
argues charged that he was improperly circumstance, and robbery kidnap- and that the “multiple-murder” special not separately because he was circumstances must set side ping special with and convicted of those offenses. charged In his he sane at the time of commis- attack on the finding offense, instructions to the sion of the defendant claims that the court’s that he was alleges As to the trial confusing penalty were and erroneous. were misconduct; that the court’s instructions prejudiced prosecutorial in and psychiatrists in the appointment error occurred adequate; during guilt evidence admitted jury to consider various permitting trial; declining court erred in sanity and of the that the trial phases aas modify disproportionate and that the death is penalty; penalty law, under penalty matter of law. In addition he that the death argues sentenced, convicted, tried, under the and unconstitutional which he was Constitution. and Amendments to the United States Eighth Fourteenth Guilt Phase Evidence of alcohol quantity With the evidence as to the exception conflicting his mental and defendant had its effect on drugs possible consumed and homicides, essentially at time undisputed. state the evidence is commenced The events to and most relevant the homicides leading up Tyson Robert during the latter half of 1978 when defendant and September several other a .22 (hereafter Tyson) pistol identified as stole Beretta Judd, week, in On Satur- Terry Coming. items from their of one employer camp- their day, parked who had September they couple robbed Modesto, its them the camper er the John Street Park from taking Tyson residence robbery they contents. After drove the camper On Sunday. were sold on near Galt where the contents were removed. Some Cam- Monday, the area of Lake camper October drove the appellant Kar- identified as Tyson Tyson, anche and burned it. Karen (hereafter en) him another vehicle. accompanied valuables The other the items in the was a checkbook. Among camper for sale were at residence and offered Tyson taken from camper kept from four-day over the yard period there sale conducted Karen Meza, lived Lourdes who through October 4 October 7. Miguel Vargas Merced, yard sale on a ranch near attended the dairy with Miguel and defendant’s Friday, English 6. their limited Notwithstanding October interest in conveyed Miguel purchasing limited Spanish, registration that the road-tested the car and noted Miguel’s car. Defendant *15 time. in at that purchase agreed upon was No was glove compartment. to load easy been it have and Karen that would Tyson Defendant told a field. them to the car and take the trunk of and Lourdes into Miguel Saturday and com- Tyson home on returned to the and Lourdes Miguel $1,500 on check written the car with a sale. Defendant paid pleted took Defendant robbery. earlier in the Modesto one of the checks stolen car, slip the registration possession but retained Miguel of the possession when be turned over to defendant that it would understanding with the car. for the Miguel receipt Monday. gave check on Defendant cleared buy to home and offered Tyson returned to the day Miguel Later that of bills a “wad” At time Miguel displayed Beretta from defendant. Miguel noted that Defendant payment. from which he to make proposed check in his shirt pocket. had the home which Tyson and drove to the Sunday,
On October Their Vargas. cousin Salvador Miguel Miguel’s and Lourdes shared with rob, and Lourdes. they killing Miguel was to and had discussed purpose possession, he had seen in money Miguel’s Defendant intended to take the also any might planned and to take other items that He pawned. the receipt obtain the and to retrieve both the check and registration slip Defendant, 10- fully loaded defendant had for the car. armed with the given Beretta, .22 Storm- Tyson, shot armed with a 9-shot semiautomatic find a only early evening arrived at the home Luger pistol, Vargas in the car their visiting. weapons were complicating factor—guests Leaving Lourdes, visi- and their three they joined Miguel, the house: group had he was scheduled tors. Salvador retired to an bedroom as upstairs car’s work at Defendant excellent p.m. spoke performance in his Miguel pocket assured that the check which still had mileage, Miguel Monday help he at the good, Miguel and said would meet bank him the check. cash their car Tyson
The visitors soon returned to departed. Defendant they their interest Miguel again expressed where retrieved had guns. Beretta they the Beretta. When reentered defendant held the purchasing Tyson neck. he was defendant’s Miguel’s Miguel thought joking pulled loaded, arm away, gun to defendant later that his own explaining he floor. then suggest- and that had seen Salvador on the second Defendant drink, declined had he they go ed all out for a but because together Miguel it Tyson bring that he some beer and get work. and defendant proposed Tyson. to the house. Defendant left with
Tyson that he his once plan testified defendant would abandon hoped house, Rather, Tyson that they left the but defendant did not do so. he told to take him out then.” Defendant then outlined right “wanted *16 de- while Tyson Tyson Miguel scheme that to make lie down telling was Vargas fendant took Salvador then returned to the upstairs. care of The pair joking house. the door. believed Miguel opened Miguel again down, him Tyson repeat- when defendant ordered to lie but he did so when ran Salvador yelled ed command. Defendant the stairs where he at up and Tyson Miguel upstairs. Lourdes to be He then directed quiet. bring Tyson When so he saw ordered lying did Salvador on floor. Defendant Tyson into He Miguel a bedroom and told him to lie down. then directed take and took to a downstairs Tyson Lourdes downstairs shoot her. her they if bedroom. He heard defendant Salvador Miguel threaten to shoot and did not tell their shots. money him where was. He then heard four cross-examina- testimony
Defendant described homicides in his tion, had been to both that of the Merced acknowledging trip to purpose Lourdes, rob and He shot Miguel killing and that he had discussed them. a after at him when turned with Miguel, hollering money, about the Miguel and and gun Miguel at defendant. did not at defendant lunged point gun seemed to be that trying escape. other evidence established Although been bodies of and Salvador inside the room and had Miguel were found found, Miguel shot the location shot where defendant testified that he bedroom, crawl- the door and as began then shot Salvador Salvador ifas to enter twice in the head and then ing the bedroom. He shot Salvador Miguel, shot He moving, gun who was a second time. then took hand, still the auto Miguel held in his as check receipt well as the which were in shirt second was under Miguel’s pocket, gun and a on the bed. pillow Tyson the Tyson telling
Defendant ordered view the bodies upstairs to carnage Tyson disarm disobeyed occurred because had defendant’s order table, left the Miguel. took Defendant Lourdes’s wallet from kitchen house with he Tyson unpopulat- and Lourdes. drove to He testified way ed area near defend- killing Sonora for Lourdes. On purpose Tyson ant had her. in the while defendant intercourse with remained car her her took to have intercourse with saying only into a field he wanted 9, 1978, There, he Monday, again. early in the October hours morning “I f. shot her . .d Tyson: four times. When he to the car said to returned . . . Tyson her I to retrieve [her], and I killed love to kill.” He then ordered car would be no Tyson some beer so there cans thrown out fingerprints. Monday morning. were discovered on Miguel bodies of Salvador the location
Tyson on October led authorities to surrendered arrested body near Sonora found. of Lourdes was Defendant where *17 While in for trial. to Merced and returned in Arizona in late November custody in Arizona he confessed. from a pro- resulting capacity primarily diminished
The defense was described Defendant’s mother alcohol abuse. drug course of and longed which she childhood early in his of illness suffered defendant symptoms a head he also suffered She testified that of epilepsy. believed were indicative and unconsciousness. caused a concussion when he was which injury of his became aware in 1972 she heavily, he drank and marriage After “acid,” mescaline, In Octo- and marijuana, “speed.” including use of drugs, home in in her spoon needles and a burned ber 1978 she found three or four her during staying been Coming September where defendant had absence. of alco- testimony his use regarding
Defendant corroborated his mother’s when beverages alcoholic began drinking hol and controlled substances. He old, years opportunity he was 14 or 15 them whenever consuming home left his mother’s itself. His increased when he presented consumption beer, available, usually at 19. He drank whatever was wine age as as a daily high sometimes stole from a store. His was liquor consumption beer, He would case of 24 cans of and he also out” on heroin. “strung was often drink before or with the beer. pint tequila alcohol was The first which was unable to obtain period during petitioner Tracy age when he was confined to Vocational at at the Deuel Institution available, He was 19. Prison-made but it made defendant sick. “pruno” was he re- confined for months and as soon as began drinking again He leased. His wife him when she came to him brought pick up. alcohol to continued to drink when institutionalized. His first commitment except that Deuel of a the next was motorcycle, Vocational Institution for theft of a to the federal for interstate penitentiary transportation at Lompoc stolen car. He was violation after a assault recommitted for parole deadly with a weapon. shot 8 he drank straight
While at the farmhouse Merced on October Just he whiskey trip from a and had a beer with it. to that glass prior consumed two or three fifths of alcohol. alcohol,
In age addition to his consumption it. “mellowed” get heroin whenever he could Alcohol began “chipping” let him in state in which he did not defendant. Heroin a drеam-like put mescaline, “acid,” him. he also used things bother Defendant testified that Methedrine, Benzedrine, cocaine, directly injected He marijuana. speed trip into on an go eight-hour his veins. When he ate mescaline would hero- using “speed,” began 1978 he Corning hallucination. In September in, barbiturates, Valium, marijuana. homi- leading up in some detail the events
Defendant described cides, explaining Modesto robbery park, at the commencing with morning, smoked Valium in the day on that he had used morphine again he had Friday, October marijuana, and consumed diet On pills. *18 and heroin, marijuana, He had also smoked used and Valium. morphine, of glasses or three of beer as well as two had drunk two to three 6-packs less, but had he had used Saturday LSD. On In the he had tequila. evening wine, wife, ingest- drunk Cindy, had shared a of heroin with his former bag Valium, to 4 p.m. Prior marijuana. and smoked injected ed morphine, checks money forged from the a of heroin. With the Sunday bag he used heroin, but it proved more in Stockton he purchased that had been cashed twice, time. Before one cc each using He injected morphine to be “bunk.” beer, and smoked cans of eight Merced he drank leaving approximately tablets, con- “blue” Valium to Merced he ate four marijuana. way On the beer, a of glass home drank Vargas and at the sumed another cans of eight Sonora, cans of he drank two way to whiskey. Later that on the evening, beer. in his use drug attorney’s pattern
In to his about the response questions life, from the time continuously defendant he had used drugs testified that old, he was which during the time years including On cross- street. than on the where it was easier to obtain them prison acts of criminal his prior examination he that he remembered acknowledged lines, a assault with state a a car across stealing motorcycle, transporting any made to deadly objection of alcohol. No teenage and thefts weapon, objec- An theft. motorcycle these other than to that about the questions De- overruled. a in evidence was tion that the assumed fact not question house, to halfway from a acknowledged escaped fendant also that he from prison parole to an anticipated which he had been transferred prior drugs. from withdrawn July 1978. While in he had been prison the Judd workshop from a admitted the Beretta taking Defendant rifle a had taken Tyson pellet he and residence. He also acknowledged tools, using drugs. that time he was and and testified that at defend- Brannan, to determine appointed Dr. a who had been psychiatrist trial, was to stand competency his sanity ant’s at the time of the offense and mental capaci- as to defendant’s as an his expert give opinion also called defense, Dr. In however. ty. testimony helpful His did not prove illness that mental any not suffer from Brannan’s defendant did opinion purpose for the kidnap rob or him the intent to having would from preclude examination, determine, based on robbery. The witness could drugs influence of have been under might extent to which defendant offenses, actually had time of the or whether alcohol at the deliberate, malice. kill and to harbor intend to ability to premeditate, thereof, alcohol, testified, however, or a combination drugs witness those mental to have ability tendency to affect a person’s could have higher have a states, time would all of the drugs but that a who used person four to approximately would occur tolerance. The intoxication peak drug of a who person given hypothetical six hours after intake. The witness was whiskey thirty within proof eight-ounce glass eighty-six consumed at about the two beers at 8 killing p.m. minutes to an hour to a prior an hour Valium tablets within time; and four same six 12-ounce cans beer marijuana three that; to 4 had smoked p.m. before four hours prior beer, in a minimum a cc of injected morphine drunk cans of cigarettes, eight blues and Valium solution; and on the had eaten twelve night preceding *19 heroin. The of street as an of a injected eighth teaspoon as well morphine, have an slurred sleepy, speech, witness that the would be opined person walk, and from drowsy. euphoric and be He feel irregular might sleepy it be The doctor believed would history on the of use. morphine, depending of that nature unusual for a to have and mental effects person physical elements of intent affecting ability without to form person’s specific hypo- In ingested crime. of the witness a who opinion person and talk to rush walk drugs, upstairs, thetical of but was able quantity on drugs. intoxicated without his would not too rapidly slurring speech, rationally and did not think ability If his was clouded so that he thinking however, clouded also be clearly, ability his would plan premeditate extent, not be able to premeditate, or to some and he would impaired witness, deliberate, defendant did In the of the opinion and harbor malice. although illnesses that affected his brain any not suffer from chronic alcohol be an might alcoholic. average intelligence. Dr. Brannan believed that defendant was of at least heavily under He that a an offense while person testified who committed of the memory influence of not be to have recall drugs expected would details, high a vehicle at successfully nor he be expected operate would sociopath was a By history over a considerable distance. speeds under the being who would be of three without killing people capable examina- during the influence of Defendant had shown no remorse drugs. had heard in said and the witness tion. Based on what defendant what court, kill. have intended to Dr. Brannan believed that defendant could recross, that his examination
Dr. Brannan objection, testified on without authority and “rejects had told him that he report reflected that defendant to use his words. always He does not for this rehabilitation bullshit go will. jail. He inside or outside goes to the same code of ethics whether he’s very against He’s Mexicans.” prejudiced
Guilt Phase 1. Prior Uncharged Admission Evidence Crimes Convictions of the theft of prop-
Defendant asserts error in the admission of evidence John robbery from at the erty Terry Judd and of the Corning, camper Modesto, robbery, Street kill and the Park in the threat to the victims not admis- subsequent arson of the He that the evidence was argues camper. intent, sible (b), under Evidence Code section subdivision provide motive, mind, show his state of and was not admissible to premeditation, or to rebut his defense. capacity diminished history—the
Defendant also evidence of his criminal argues prior theft, motorcycle of a stolen deadly transportation assault with a weapon, vehicle, impeach- from admitted for escape custody—was properly defense. ment was not rebut diminished capacity admissible to We Be- address first the crimes.3 admissibility uncharged evidence inherently special cause of other prejudicial evidence criminal conduct is *20 govern admissibility. among rules of an offense is the uncharged Evidence statutory to all evidence is admissible. exceptions the rule that relevant Code, evidence of (Evid. As in the form of 351.) character evidence § specific prove instances of conduct it made inadmissible unlawful is offense subdivision charged defendant’s conduct the instance of the a (a) (b) provides of Evidence Code 1101. section section Subdivision admission, limited in section prohibits basis for however: this “Nothing crime, or wrong, admission of civil evidence that a committed person motive, other act relevant some as (such opportunity, when fact prove intent, or of mistake identity, or absence preparation, plan, knowledge, when such Even accident) other than his to commit acts.” disposition admissible, be subjected special evidence of criminal conduct must prior inherent scrutiny outweighs prejudice to insure that its value probative criminal conduct as may uncharged in the that a consider possibility Code, (Evid. crimes. evidence of the defendant’s to commit propensity 1, 761, 457 352; P.2d v. Schader 71 Cal.2d 772 (1969) Cal.Rptr. People § [80 841].) 8, 1982, re questions June prior 3Inasmuch as the offenses this case were committed I, California admissibility section 28 of the lated to the of evidence are unaffected article 567, 77, 82, 1]; Cal.Rptr. 679 P.2d (People (1984) fn. 1 Constitution. v. Tassell 36 Cal.3d [201 692, 251, 149].) P.2d (1983) Cal.Rptr. v. 667
People Smith 34 Cal.3d 257 [193
905 crimes uncharged of evidence of The considerations admission governing 303, 314-316 27 Cal.3d (1980) were examined in v. People Thompson [165 289, any evidence that involves “The admission of P.2d Cal.Rptr. 883]. has a ‘highly is tried being crimes other than those for which a defendant has fact. This court effect’ on the trier of inflammatory and prejudicial be of evidence must admissibility of this type warned that the repeatedly analysis’ closely pertinent ‘scrutinized with care.’ reasoned great ‘[A] its determination be made of can factors must be undertaken before admissibility. to be admitted usually sought
“Evidence of an offense is uncharged that, true, an inference proves as ‘evidence if found to be a fact from which may Revision) (4th of another fact CALJIC 2.00 (See (1979 be drawn.’ No. evidence, admissibility ed. its 1979).) As with othеr of circumstantial types materiality sought three factors: of the fact depends upon (1) principal tendency to be or crime to proved uncharged prove disproved; (2) rule fact; (3) any material the existence of disprove policy requiring exclusion of relevant evidence. [Citations.] “In order to satisfy materiality, sought the fact requirement be may be either an ultimate fact in the or an intermedi proved proceeding ate may fact ‘from which such ultimate or inferred.’ presumed fact[ ] Further, ‘actually ultimate fact to be must be proved [Citation.] If dispute.’ ‘actually an accused has not placed [Citation.] [ultimate issue,’ evidence uncharged may offenses not be admitted to prove fact] it. v. Thomas 20 Cal.3d (People Cal.Rptr. 433];
P.2d see also Antick Cal.3d 475, 539 P.2d . . 43]; .) guilty The fact that an accused has pleaded not sufficient to him ‘in elements of the crimes place charged against Schader, 761, 775-776, issue.’ 71 Cal.2d fn. (People 13.) *21 “In ascertaining tendency whether evidence of other crimes has a fact, the prove material the court must first determine whether or not the uncharged naturally, by offense serves reasonable inference’ ‘logically, to establish that fact. The court ‘must look behind the label [Citations.] describing similarity the kind of or relation the offense [uncharged] between offense; and the similarity it must examine the elements of charged precise between the offenses with to the issue for which the evidence is respect itself link between proffered satisfy that each of the chain inference the former and If reasonably the latter is the connection strong.’ [Citation.] clear, between the in uncharged offense and the ultimate fact is not dispute the evidence in fns. omit- (Italics original, should excluded. [Citations.]” ted.)
906 mind,
With these in of evidence examine the items guidelines specific we to which this claim is directed.
A. The Judd Theft afternoon, 30,
Terry Judd he noticed testified that on Saturday September hammer, semiautomatic, router, rifle, that his a Beretta a a a pellet gun, a area. were shed reciprocating missing shop saw from the an trial.4 objection relevancy was to the evidence to issue in the the evidence, that, the Although objection did not as crimes specify prior 1101, subdivi theft inadmissible under Code sections 352 and Evidence Thomp (b), admissibility sion unless it satisfied criteria summarized son, 303, sufliciently we supra, specific 27 Cal. 3d believe that it was i.e., a evi objection, People offering encompass Thompson were defendant, dence of by criminal conduct uncharged necessary People’s issue of the issue to the put any element offense or relevant, any case-in-chief to which that crime and that relevance might by inherently evidence if outweighed prejudi have admissible was its cial nature.
A set admis may verdict not be aside on the basis the erroneous evidence, has sion of even if error prejudicial, party asserting unless the timely admission of preserved objection a question specific evidence, Code, motion to (Evid. strike or exclude evidence. 1, 1, 22, 353; 27 8 609 People (1980) v. Green Cal.3d fn. Cal.Rptr. § [164 49, 43, 1 468]; P.2d v. 30 Cal.3d fn. see also Collie People (1981) [177 458, 534, on objection 634 23 A Cal.Rptr. 776].) general P.2d A.L.R.4th an grounds relevancy adequate respect is not issue with preserve (1976) admission v. McDaniel (People other-crimes evidence for appeal. 156, 467, 16 Cal.3d 545 P.2d If the defendant Cal.Rptr. 843].) 176 [127 of an objects the evidence to be show commission offered will offense, uncharged bear admissibili demonstrating the burden People Schader, 772, 761, 71 fn. no ty. (People 4.) particular Cal.2d While of objection form 56 required (1976) Cal.App.3d Gibson (People way as to objection be made in such 302]), must [128 alert the trial the basis court to the nature evidence and anticipated which opportunity exclusion is and to afford the sought, establish its Lumber Cal. admissibility. (See Bundy v. Sierra Co. P. Cramer v. 622]; Cal.App.3d Morrison Cal.Rptr. 865].) *22 objection his or Although did not the nature of identify specific defendant crime, People and the uncharged state that the would show an evidence 4 Honor, grounds of object question upon I’m the going Counsel stated: “Your to to that relevancy, to some unless he relates it issue in this trial.”
907 had jury the offer of statement proof, prosecutor’s opening made no the cir The the to be introduced.5 already made clear the nature of evidence in deter considered in an is made should be objection cumstances which 358, 369-370 v. 55 Cal.2d (1961) its Golden mining sufficiency. (See People here, 80, When, have the People as 448].) 359 P.2d Cal.Rptr. [11 of an the commission already made it clear that the еvidence will show crime, People that the the defendant on uncharged objects grounds and case, the any evidence is relevant to issue the have not shown that the deter admissibility must be is sufficient to alert the court that objection 1101, (b), under the Evidence sections subdivision mined criteria of Code 303, 353, 314-318.6 supra, and and v. 27 Cal.3d People Thompson, The that the of the Judd thefts People argue now evidence intent, in issue relevant to establish an element of the offenses charged put by People’s defendant’s diminished defense.7 Under the anticipated capacity jury prosecutor presented The had the that would be that defendant advised evidence Tyson they fired to working weapons had been who owned two which had for Judd Beretta week, gether, Tyson were “during and that Mr. Williams Mr. left on the 29th and that saw, router, drill, again—nor to be seen Mr. his his reciprocating not Judd were or or weapons, pellet gun.” prosecutor or one of his Beretta as a rifle and The also told the as well jury reported police missing. that Judd had items to as We think it clear that this state the expected Tyson indicated that had stolen ment the be would infer that defendant missing the items. here, made, distinguish objection 6The of statement the and the it was context which Green, 1, 21-22, People rely. People supra, from v. There the this case 27 Cal.3d on which the objection argued been the question leading, appeal trial defendant that that but on there evidence should have excluded because it was of other crimes. We stated been evidence objection testimony ground the were questions the on that the sole “[d]efendant’s ‘leading’ wholly preserve did not now a claim of a basis of exclusion such as he different 8, 22, (27 added.) p. raises.” Cal.3d at italics fn. argues uncharged may Defendant be introduced until the de that evidence of crimes not puts fendant in issue the the He relies on statement point to which evidence is relevant. our 303, 315, People Thompson, supra, guilty put v. does not in issue plea 27 Cal.3d that a of not course, elements in their People, of the The the burden case-in-chief offense. bear identity proving charged perpetrator. the elements of crime and as of defendant admissible, 303, that, Thompson, supra, 27 of un did not hold if otherwise evidence Cal.3d charged may during showing an crimes on a People’s be introduced case-in-chief identity perpetrator, if the issue will be raised as to of the of the the existence element or necessary judge offense is satisfied to establish an element the evidence not, course, 1118.1.) (See may required avoid a directed verdict. defendant § any either court or to raise issue prosecutor alert defenses he intends Collie, may (See 43; (1979) 23 People People be in doubt. v. Belton Cal.3d Cal.3d 195, 485].) proof Cal.Rptr. In order burden of 591 P.2d to meet their [153 uncharged permitted, necessary, must be when to introduce otherwise admissible evidence 604, 775, 1126];Peo (People Cal.Rptr. 685 P.2d crimes. Alcala 36 Cal.3d ple v. Montalvo 331-332 482 P.2d 49 A.L.R.3d 4 Cal.3d case, 518].) identity perpe In this there been no of the of the example, had other evidence murders, weapon, evi stolen Beretta been to be the murder trator and had the shown sufficiently might identity theft of the theft relevant on the issue of since the dence have been gun permitted possession he was the date of inference that still in
908 theory the Judd thefts marked the of a crime that included beginning spree robbery They and culminated in the murders. camper suggest money evidence of defendant’s need for and the series of acts designed money, robbery, obtain the Judd theft and the demon- including camper strated that and alcohol intoxication did not affect his drug the defendant’s is, ability to if conduct—that he was mad there was engage purposeful method to Alternatively they his madness. that the evidence was suggest admissible to show a common scheme or that as evidence of a plan, arguing larger plan unnecessary of which these offenses were it was to show part that the offenses were similar.
Without
question defendant’s mental state was
issue
this trial.
during
187,
He was
murder in
charged
(§§
188.)
with
which malice is an element.
The
alleged
information
that the murder was of the first
in that it
degree
willful, deliberate,
and that it was committed with ex-
premeditated,
malice, i.e.,
press
that an
intent to kill was
Each of
express
present. (§ 188.)
these specific mental states is an element of the offense on
which
People
bear the
beyond
1096; Mullaney
burden of
v.
proof
(§
reasonable doubt.
508,
Wilbur
However, no evidence was offered to suggest ingested thefts, drugs alcohol at the time of the Judd if he had used or that and/or only (See 318; Thompson, supra, People the murders a week later. 27 Cal.3d Schader, 774-775.) 71 Cal.2d
909 times, amount amount was similar to the such substances at those Thus, if the proposed in the offenses. ingested charged hours prior demonstrate that defendant’s tolerance admissibility basis for was to mental states that specific was so that his to achieve the drugs high capacity been affected were elements offenses would not have charged they time were of alcohol and at the ingestion drugs of large quantities committed, evidence that defend- fails. There was no argument simply it was mental state at the time he committed the theft as ant’s was same same, committed, it so at the time the murders were or that if it was the was of similar and alcohol notwithstanding ingestion quantities drugs was both times. The value of the evidence was minimal and probative clearly by its effect. outweighed potential prejudicial if as
The conclusion does not differ a common scheme or is offered plan identify the basis for Judd thefts. It is not enough admission of the admissible common or as the now do. plan People such as scheme purpose existed, They uncharged must also that such a that the plan actually show Tassell, 77, offense was a v. 84), thereof 36 Cal. 3d part (People supra, cumulative, the evidence of the offense is not and that the evi uncharged sufficiently dence is v. probative outweigh (People its effect. prejudicial Alcala, 604, 631-632; 36 supra, Cal.3d v. 27 Cal.3d People Thompson, supra, 303, 166, 318; 719, v. People Guerrero Cal.Rptr. Cal.3d Schader, 366]; P.2d v. People 774-775.) 71 Cal.2d supra,
The evidence does not engaged conclusion that defendant was support in a series of offenses that were of “a part parcel single conception Tassell, plot,” “grand v. It design.” 84.) Cal.3d at (People supra, p. establishes more than a series of directed nothing against random crimes targets of opportunity necessity and committed whenever financial dictated. Furthermore, even were the Judd theft course of part larger planned conduct, criminal this common scheme been evidence is not shown have relevant to an issue in the case. The ability to con “engage purposeful duct,” relevant, the issue to which the the evidence was People argue not an issue in the ability case-in-chief. Such an could not establish People’s any of the mental elements of the crimes circumstances special and/or charged ability The conduct” engage information. “purposeful would only be relevant to rebut a defense of or alcohol-induced drug- (See Conley unconsciousness. 64 Cal.2d 323-324 People 815, 411 P.2d 911].) may not in their case-in-chief fanciful anticipate defenses in order to create an issue as a basis for intro duction of evidence of highly prejudicial (People offenses. uncharged Schader, 775-776, fn. 13.) 71 Cal.2d
Because robbery we shall conclude that the evidence of the camper admissible, however, arson was and because the other evidence of guilt of evidence admission are satisfied that the erroneous overwhelming, we prejudicial. the Judd theft was not regarding *25 Robbery/Arson B. The Camper robbery was camрer evidence of the argues now that
Although appellant case, on this to admission object he did not any not relevant to issue Kar- testimony of through introduced the evidence The ground. People her to incident in explaining had described the Tyson en to whom appellant to they brought Tyson had obtained the which camper how and Robert her home. of the theft only objection regarding
The defense to admission of evidence had admit- that testimony by Tyson Karen was to camper the absence based on objection ted his to her. The was participation cor- statement to establish defendant’s out-of-court evidence other than show to by the People The evidence was offered delicti of that offense. pus mind, intent, were the homicides and motive when defendant’s state of committed, showing killer alternatively identity of the prove scheme or plan. common permitted was before the witness objection
The trial court overruled advised the cautionary but instructions. These instructions gave to answer that defendant show might the evidence to be received although trial, must it than for which he was had committed a crime other commit disposition be used to he had a bad character or prove identity showing The court also the limited explained purpose crimes. crimes, was an committed intent which charged of the who person method, crimes, or scheme and a plan, element of those characteristic charged offenses. committing camper the Judd admissibility of evidence of People’s
The theories were, first, during all committed they and the homicides were offenses to obtain motive intent to steal and had a common crime with the “spree” source of had no money Tyson unemployed, because defendant and were and, second, relevant funds, the evidence income and were without Salvador, The evidence and Lourdes. killing Miguel to defendant’s intent notwithstanding robbery both an intent to commit and that would show was capable intoxication defendant drug defense of alcohol anticipated malice, kill, harboring the intent to steal as well as having and/or and deliberate. could premeditate is applicable delicti rule
The now concede that the People corpus of those the commission prove crimes introduced uncharged evidence 911 77, 21, v. 33 Cal.3d Robertson (People crimes. however, rule was satisfied delicti 279].) agree, corpus We that the P.2d The robbery. camper of the admitting no error in the evidence there was testimony regarding of Karen’s delicti was established independently corpus the events in detail extrajudicial Tyson admission. described defendant’s no further accomplice, Street he was an Although the John Park. robbery camper since the testimony of his was required corroboration 516, Belton, 523.) v. 23 Cal.3d charged (People not a offense. the discretion offense
order of delicti of an is within proof corpus Code, Amaya (1952) 1094; 320; judge. People the trial Evid. (§§ § Cal.2d 324]; Mehaffey Cal.2d P.2d *26 not exercised may here have Although 547-548 P.2d the court 12].) [197 discretion, a basis perceive, do that defendant does not we suggest, testimony to that prior of Karen’s on to conclude that the admission which to admit the evidence was The court’s failure Tyson prejudicial. possible When is received properly under this irrelevant. evidence rationale is Schader, the basis for the is not material. ruling (People court’s 189, 777; 414].) P.2d Berry Cal.2d 32 Cal.2d Wilcox as of the camper Inasmuch there was no error in evidence admitting been excluded on robbery, that evidence should have defendant’s claim objection may be grounds by other than counsel in his put those forward failure on only object considered to the context of his claim counsel’s other demonstrates grounds representation. ineffective topic assistance is a constitutionally
Whether counsel afforded adequate however, context, no to we find be discussed In this below. separately the evidence was indicia of in the failure because incompetence object to motive, The which identity. relevant to to check and thus both intent from Miguel used to car pay purchased for the appellant purportedly acknowledged of those One camper robbery. purpose one stolen in the logical check. The Miguel’s to home in Merced was to retrieve the trip as conclusion is that he would identified the perpe- defendant feared that That the robbery negоtiated. trator of the if were the check to be camper is check was circumstantial Miguel’s body when was discovered missing killer, intent rob and evidence that and that had the appellant was to kill when he check. took the only for objecting
The record on does not reveal counsel’s reason appeal However, only basis for grounds. delicti if a meritorious corpus objection incompe exists objection suggest possible does failure make tence, if does only objectionable prejudicial evidence admission meri Manifestly, failure make a reversal. incompetence warrant the outcome of evidence neither affects objection tless the admission of the case nor standards performance demonstrates that falls below accepted of professional competence. robbery admission of evidence does not afford regarding camper
a basis While theory by for relief under either defendant. put forward robbery evidence of the arson is not as as that probative regarding theft, it too was relevant to defendant’s as the killer and motive for identity killing, destroy since it also evidence demonstrated defendant’s effort to him to the linking robbery. We find neither error the admission of constitutionally evidence nor a basis for holding that counsel failed to afford assistance in adequate failing object to its admission on the now ground by suggested defendant.
C. Prior-crimes Evidence intro acknowledges history Defendant that evidence of his criminal testimony, duced his own elicited direct examination his own during counsel. It is axiomatic who himself offers inadmissible party evidence is to assert error in thereto. v. Moran estopped regard (People (1970) Cal.3d 463 P.2d He 763].) argues, *27 however, that counsel this the trial court had presented only evidence after ruled that the prosecutor would be to offer evidence of permitted prior convictions to rebut the diminished that was to be capacity present defense ed. We infer from his basis for error the argument urging defendant’s admission of testimony his own is that an on ruling erroneous preliminary admissibility of by evidence to be offered prosecution compelled him, reasons, for tactical to claims was the evidence he now present inadmissible.
We need not re decide here in such whether circumstances that there be a quirement timely objection to the introduction specific of evidence to of preserve question admissibility (see for appeal applies Green, Code, 353, 1, (a); 21-22), Evid. subd. v. Cal.3d People 27 § because an in limine is ruling admissibility on is not if the evidence binding 870, later v. 36 885-886 (See (1984) introduced. Cal.3d People Campa [206 114, 686 v. 15 Cal.Rptr. 634]; (Zolnay) (1975) P.2d Court People Superior 729, 798, Cal.3d 735 542 v. Cal.Rptr. 1390]; P.2d Saidi-Tabatabai [125 257, 510]; Court 253 266 Superior Cal.Rptr. People Cal.App.2d [61 71, v. a Beasley (1967) 485].) 250 76-77 Just as Cal.App.2d Cal.Rptr. [58 court, trial to make an ruling use of “is no priors impeach, position informed determination evidence” prior hearing People’s (People here, Delgado (1973) 399]), where Cal.App.3d Cal.Rptr. indicated an intent to offer evidence of criminal conduct prior his mental appellant’s by demonstrating rebut diminished defense capacity crimes, make an informed court could not the trial during capacity prior evidence. none of the a it had heard decision at time when was ruled this evidence the court had Contrary to claim that appellant’s admissible, rule.8 declined to court in fact properly record supports nor the habeas corpus
Neither record on appeal, crimi- prior introduced the evidence conclusion that counsel defendant’s tactically preferable that this only nal conduct he believed was because of defendant. cross-examination through it come in on rebuttal or having evidence The record on is conclusion susceptible appeal charged show offered as diminished defense to part capacity damage, brain offenses like those in the were the past product by the People counsel made a decision not to introduction oppose tactical is inference confirmed evidence criminal conduct. That regarding past declaration, pro- counsel’s evidence in the habeas corpus submitted as that he of defendant’s criminal conduct ceeding past introduced evidence he capacity because the evidence relevant to the diminished believed he no on admis- ruling defense intended tо offer. Since there was trial court that defendant offered sibility priors and the record refutes the claim he only necessity the evidence of out of after all history doing his criminal could to claims was he prevent anticipated, estopped the error now Angeles such error. Constr. Los urge City Warner (Cf. Corp. 299-300, P.2d Cal.3d fn. 17 waiver 996] [no if evidence objection overruled and introduced to overcome estoppel party case made opponent].) *28 8 case-in-chief, during question prosecutor presented People’s The had arose after the statement, opening present he would evi
defendant’s when defense counsel indicated that his child capacity, dence of diminished and stated that defendant’s mother would describe objected prosecutor Out that such evidence presence hood illnesses. of the guilt phase. explained be that his evidence would not relevant at the Defendant’s counsel “diagnosed a condi injuries; serious head would show defendant had suffered two history drugs; hospital epilepsy”; of extensive use of alcohol and had been tion had a may pre have a explained ized in a mental He that the caused institution. childhood diseases sent mental defect. relevant, age “I prosecutor, in 16 were response, stated that if evidence accidents charged suppose bring would be for us to in the fact that with relevant [it] prison system as in and convicted about crimes after that and was out of the federal six [of] Authority found epileptic to nor was he ever well as the California Youth and never found context, insanity.” a mentally to In which did not involve have been insane or treated for this evidence, “Unfortunately only: present ruling admissibility stated such court may added.) originally (Italics . . . At the conclu- be relevant the evidence comes in .” if chambers, objection of the overruling People’s to the nature sion of the discussion in after objections argument, judge specific his to items of evidence expressed intent to consider regard to when offered: “. . . do and we’ll as we need with We’ll do the best we can rule specific evidence.”
914
Defendant’s further argument that the court erroneously admitted evi- offense, i.e., dence of an uncharged custody halfway from in a escape house, is also answered shortly. He object failed to when the prosecutor elicited this evidence during cross-examination of defendant. Although counsel evidence, states his declaration that he has no recall of this this too, failure object, is consistent with counsel’s tactical decision apparent or let in bring evidence of this type. The admission of evidence was not, event, in any prejudicial.
D. Lay-opinion Testimony admission,
Defendant also error in urges over his objection that the witnesses had not been qualified testimony as experts, Hauser, detective, by Ron who returned defendant to Merced from 1978, Visher, Arizona in officer, and Charles a correctional who was then manager the Merced County jail, that in their defendant was opinion not “strung out” they when observed him.9
Although lay opinion with regard alcohol-induced intoxication and sobriety has been held to be admissible if “[Rationally based on the percep Code, 800, tion of the witness” (Evid. subd. (a); v. Garcia 27 People (1972) § 639, Cal.App.3d 643 Cal.Rptr. 69]; In re G. Joseph [104 Cal.App.3d Cal.Rptr. 25]), the admissibility of as to opinion [87 drug-induced intoxication appears never to have been considered this court. Defendant offers no basis which upon evidence of distinguish intoxication, however, drug-induced and the Court of has held that Appeal laid, if sufficient foundation is lay opinion testimony person is under the influence of narcotics is admissible. v. Moore (People 158, 165 Cal.App.2d 857]; P.2d see also People Newberry (1962) [160 Cal.App.2d [point waived by object, failure to but 23] is doubtful whether testimony that a person “[i]t is under the influence of a narcotic requires expert qualifications on the part witness”].) Nunn (1956) 46 Cal.2d 466-467 813], P.2d on which defendant relies is not contrary. In that case we held that the court properly admitted opinion testimony of a officer police experienced interviewing *29 addicts on whether more addiction resulted from use of medication or pain from criminal association. We noted that the officer had qualified as expert since he had knowledge of the causes of addiction not by possessed man. average No issue was before the court with to lay respect opinion 9“Strung variously out” is physically defined (as as: “1: long drug debilitated from term addiction) 2: addicted to drug 3: stupefied (Webster’s intoxicated or drug from Ninth use.” Collegiate (1984) New p. 1170.) Dict. This source notes the first known use of the term as cir ca 1959.
915 withdrawal, average which the drug subjects intoxication or with regarding of man manifestations has some as to the outward knowledge particularly 55, these v. 260 59 (1968) conditions. Cruz People Cal.App.2d [66 relies, narcotic 772], on which identification of defendant also involved substances, a different very subject.
Lay scientific knowl opinion testimony is admissible where no particular when the matters edge required, necessity or as “a matter of practical . . . observed are enable accurate too or too subtle to complex witness] [the v. ly (Manney them in convey any to court or other manner.” also Housing Authority 69]; 79 459 P.2d see (1947) Cal.App.2d [180 v. v. People Ravey 154]; Eger 122 703 P.2d (1954) Cal.App.2d [265 May 281].) Stores 558 P.2d Department (1953) Cal.App.2d [261 The manifestation of less subtle drug intoxication and withdrawal are no intoxication, and, than sufficiently those of unfortunately may alcohol be common today lay are them. The courts persons capable recognizing several states have so concluded. collected cases in Annot. (See A.L.R.4th 905.) Reasoning layman that a had himself LSD ingested who company defendant and had knowl observed its effects had special edge, Wisconsin Court held he offer his Supreme opinion could tablets by consumed defendant were LSD. The witness’s lack of scientific training only evidence, went weight admissibility. (State Johnson, Johnson (1972) Wis.2d 561 N.W.2d 717].) Relying Illinois, Appellate Court of Davis Ill.App.3d N.E.2d 8], held that with laya proper testimony foundation the opinion witness that defendant was under the influence of would admissi drugs ble.
Here, however, no was offered the witnesses. The “opinion” objection was to Detective Hauser’s “lack of as an qualification expert” to the imprecision of the term after a “strung objection out.” This was made foundation had been laid encoun ascertaining that his work tered who persons were out.” the court “strung Although overruled objection that, and the court “I if acknowledged don’t know we know what term,” to, anybody knows by the directed subsequent were questions testimony was about Detective He Hauser’s observations. specific sick, nauseated, testified that he did not see trembling or shaking excessively, and sweating that defendant did not complain pain discomfort. Visher, he, too,
Charles jail testified that was familiar with manager, out,” the condition of inmates who were that he had not “strung noticed In anything indicated to him that defendant was out.” “strung response objection to defendant’s of lack of grounds motion strike on
916 should define ruled that the witness and foundation the court
qualification the reference was to explained the term as he understood it. Visher nervousness, in control of not generally inmate reflected “lack of sleep, who This witness also testified drug usage. he attributed to himself’ which nausea, or discom- him vomiting, pain defendant had not complained fort, excessively. or sweating and to be appear perspiring did their regarding these witnesses testified
Defendant acknowledges observations, testimony prosecu- allowed but argues admitting definition out” “strung using symptomatolo- tor to his to the term give own in this validity. Any misconception gy of heroin withdrawal that lacked It cross-examination. been out on brought could and should have regard recalled, also, by defendant offered drug usage must be that the evidence of heroin, many of of drugs, included a wide spectrum was not limited to but had tes- own medical expert which are considered addictive.10Defendant’s which, after defendant described tified defendant about an interview with time the offenses that at the drugs implied he had been using, committed as this witness were Inasmuch “strung drugs. he was out” testimony the rebuttal testimony, used that term twice during witnesses, with any issue objected by which defendant the next two term, lack of definition of the from regard imprecision prejudice have been waived. appears
2. Counsel Adequacy of constitutionally
Defendant next
claim that he did not receive
pursues
In further
of the trial.
guilt phase
counsel at the
adequate representation
the facts
failed to investigate
of this claim he asserts that counsel
support
relevant
by obtaining
defendant’s diminished
defense
underlying
capacity
records,
seek
to section 987.9
and did not means of a motion pursuant
or a
psychiatrist,
an investigator,
funds with which
retain
public
11
to seek suppres
He
that counsel failed
claims also
psychopharmacologist.
of Miran
in violation
sion of his confession on
that it was obtained
grounds
86 S.Ct.
L.Ed.2d
da Arizona
U.S.
Tyson
testimony
974];
A.L.R.3d
did not
to exclude
attempt
illеgal police
they
through
Karen on
had been discovered
grounds that
using “speed
returning Coming
September
he “started”
10Hetestified that after
barbiturates,
and,
drinking, and used
also
heroin and some
valium
. . . weed.” He was
liquid morphine.
capital
indigent
de
grant
to counsel for an
permits
Section 987.9
the trial court to
funds
(See
necessary ancillary
Superior
expense
Keenan
payment
services.
fendant
108].)
that de
The record confirms
Court
917 of evidence did not to admission object and as noted earlier procedures; criminal defendant’s record. singly not by defendant do
The omissions identified Therefore, this record.12 together establish a for relief on appellate basis in his identical claim claim will be addressed in the context defendant’s corpus application. habeas
A. Failure to Investigate capac- a diminished Defendant claims that counsel had outlined although two ity during suffered by injuries defense to be evidence of head supported abuse, accidents, institution, and drug diagnosis in a mental hospitalization this as underpinnings” he did “factual epileptic, investigate only by defense. He asserts that was examined the two physicians defendant to stand appointed competence to render regarding defendant’s opinions trial, and counsel sanity, diminished motions capacity; during pretrial by that there were those “filed” those stated medical records addition to obtain, records experts that counsel wanted to and that none of these obtained. however, establish, was not
The record on that defendant appeal does not by any examined or that failed to relevant other counsel obtain expert, records, or that had favorable steps either of these been taken evidence would, claim defense have made This might, even been available. must only corpus be considered as one raised the habeas properly proceeding.
B. Failure to Suppress Confession Novem- early morning
Defendant was
in Arizona
hours of
arrested
24, 1978,
ber
for his
on
all
the warrants
regarding
bulletins
teletyped
points
notified
immediately
arrest sent Merced
Arizona officers
officials.
County
Kingman,
Merced
and
Harris went to
Deputy
Sheriff’s office
John
Arizona,
Harris
the same
10
day, arriving
p.m.
midnight.
between
describing
20-
interviewed defendant
his
25-minute statement
taped
Before
he advised
of his rights pursuant
offenses.
so
doing
Arizona,
acknowledged
Miranda v.
After
counsel withdrew the Miranda waiver
hearing
tape
suppres
failure to seek
tion.
Defendant now claims that counsel’s
an earlier
product
sion of the
on
that it was
of
grounds
confession
advice and
interrogation
by Arizona officers without Miranda
conducted
on
does not
Again,
support
waivers reflects
the record
incompetence.
appeal
Arizona
The
Harris that an
testimony Deputy
of
predicate assumption.
told
does not
taped
officer
Harris that an earlier conversation
been
with
a
theory
part
defendant’s
that the interview
Harris
support
by the
interrogated
“continuous
that defendant was
interrogation process,”
officers,
been
Arizona
if
took
there had
no
place
or that
such interrogation
Miranda
States
Inasmuch of the possible as the record confirms that counsel was aware there no objection objection, Miranda-based one such interposed law.13 applicable room for inference that was not aware of the counsel C. The Testimony Tyson and Karen Defendant assistance is demonstrated argues next ineffective and Karen testimony Tyson counsel’s suppression failure to seek of the Tyson home grounds on that it was the of an unlawful search product on ap the record Again, conducted to Karen’s consent. pursuant coerced Equal does not occurred. suggestion that a search peal support however, voluntarily ly appears is the rule that when a witness important, appear on testimony subject court his is not that basis. suppression product ance of a that witness must be the testimony witness or pre His product of an unlawful arrest. Counsel did seek to exclude the confession as the pursuant Arizona warrant. motion 1538.5 the arrest without an trial to section was based on urged appeal Denial of that motion is not on as error. argu- is even Amendment before suppression a violation “fruit” of Fourth L.Ed.2d 445 U.S. United States v. Crews ably required. (See 30 Cal.3d Teresinski 1244]; S.Ct. as identity Tyson perpetra- 753].)14 640 P.2d Neither witness was offenses, Karen wife as possible nor that tor of misconduct.15 any as the result of police ascertained booth a telephone a Stockton officer from telephoned police Karen and had Tyson, she was with Thursday, October told officer *33 of the The in Friday. support him affidavit surrendering talked into on at the met with Karen Officers Harris and Hauser recites that complaint There is no everything. home said she to tell them Tyson where she wanted that testimony claim in this or in for defendant’s document Karen’s support nonconsensual, the home was con- that a search of entry the officers’ was time, it was without that if was undertaken ducted at this such search Karen’s consent. to surrender-
Tyson
secretly
prior
testified that when met
with Karen
said
house and had
ing she told him that
officers had searched the
police
an
abetting, being
could
for aiding,
that she
be arrested and prosecuted
that
accessory after
for
She told him
receiving
the fact and
stolen property.
14
identifying
argued
testimony
In Crews it
the defendant had
had been
that the victim’s
procured through
exploitation
defendant as a result of
been
the
of an unlawful arrest of
by
The
photograph
subsequently
and
the witness.
court found
which
was taken
identified
testimony
poisonous
doc
the identification
within the
of the
tree”
too attenuated to be
“fruit
(Wong
407].) The
Sun
83 S.Ct.
trine.
v. United States
these had protection Harris and promised testimony supports if he this Again, nothing children surrendered. сonsent, that assertion that search was without a warrant conducted threatened, testimony or her cooperation Karen was or that either her initially had lied to the officers involuntary. She testified that she stolen, but her state they and that her that in the home was told property which upon ment she is an insufficient basis was “scared” this time her or that police cooperation to conclude that the conduct was improper16 “scared” reason good coerced.17Under the circumstances she knew her she any police from conduct on the officers: apart part him in escap husband had three and she had assisted committed murders engendered use of term misconduct ing. implies police neither fear, nor that her was coerced. cooperation merito- testimony, arguably based on this an argument, Defendant’s testimony rious basis counsel to exclude attempt existed *34 on Tyson appeal. and is the record by Karen simply supported claim the Petitioner offered evidence to this support no additional however, documentary habeas corpus proceeding. supplied Respondent, by A dis- deputy evidence to refute declaration speculative allegations. his reflect careful attorney *35 recital, defend to which on the This strategy of Defendant’s counsel.” part included, counsel’s ant since it reflected objected as not being properly trial, was at occurring rather matters thought process, unreported than in appeal in counsel on made the declaration made apparent response to had counsel a that trial his motion for settled statement that he believed motion, such a not make Beagle made a “If trial counsel did but that: motion, on ap his contention as part defendant needs this information of this The order counsel.” peal that received ineffective assistance of “any statement court directed the to a settled prepare court superior hearing After a matters the court useful on appeal.” finds potentially statement, de denied judge the trial objections defendant’s to the settled statement, trial reasoning that fendant’s motion to strike that portion the statement. had the to include right counsel the prosecutor by application the record correction of Defendant has not further sought Therefore, Court, although 12(b).) rule (Cal. to this court. Rules of “oral unreported reflect an may trial not strategy recital counsel’s regarding v. Gzikowski (see People 36(b) under rule may be settled proceeding” it 1145]), 580, 584-585, 651 P.2d fn. 2 (1982) Cal.3d both is now it. The recital part ignore of the record and we find no reason claim and sup- refutes the the failure reflects object incompetence document, that the of this ports independent conclusion reached above an errone- compelled by introduction defendant of this evidence was not admitted, but ous that it was introduced ruling by the court would defect, illness, strategy furtherance the defense mental showing disease, harbor the capacity defendant’s drug intoxication reduced specific mental elements of offenses. charged reason- Defendant that the elected was one which a argues strategy However, ably competent attorney repre- would choose. counsel here offenses, de- had not but had senting only defendant who admitted addition, was to police. accomplice scribed them in detail In both testify against him. Defendant no other that was suggests strategy him and before likely “‘reasonably more foreseeable as such protect 412, 424.) trial.’” 23 Cal.3d Pope, supra, (People inference, The does not less a conclu- record on warrant much appeal sion, that in his constitutionally counsel rendered assistance inadequate trial of the representation of defendant trial. guilt phase 3. Multiple-murder Circumstances Special 190.2, as (c)(5)
Section 1977 death law created penalty subdivision of the life without circumstance” of death or “special authorizing imposition been the fact that a has this possibility proceeding “defendant parole de- convicted of one murder of the or second more than offense of first . .” this . under gree. charged six circumstances complaint special murder that defendant provision, respect with each of the counts alleging also “been convicted” of the murder proceeding same other two murder victims. *36 defendant hearing the pretrial stage, that at
Noting preliminary murder, literally argues of any not been convicted offense of committed, any as to of that he was cause unlawfully probable without not move He that defendant did special these circumstances. acknowledges 995) and superior (§ in the to set aside information on this ground court in the any this a of defects normally that would waiver omission constitute however, re with that compliance commitment. He (§ 996.) argues, a at did not quirement appear permit is excused because that time the law (see on a section 995 motion challenge allegations circumstances special (Grilli) Cal.Rptr. v. 84 506 (1978) Cal.App.3d Court Superior [148 does not state offense allegation separate enhancement 740] [sentence 923 any that in case motion])18 be on 995 may challenged therefore not § trial counsel’s example is a further of to make the motion to strike failure incompetence. the alleg as a result of no to demonstrate that
Defendant makes attempt cir special an information these edly including commitment on improper v. Pom prejudice. (People a fair trial or suffered cumstances he was denied 851, 519, 941].) P.2d Nor 612 27 Cal.3d 529 (1980) Cal.Rptr. pa-Ortiz [165 defendant was motion demonstrate that does counsel’s failure make the denied the caliber denied a defense or otherwise potentially meritorious Amendment or entitled under Sixth which representation I, 15 of California article section Constitution. theory
We infer under either approach that defendant’s prejudice have they not been that had circumstances been stricken would special these for the eligibility found true and thus not have been bases for death would at prejudice Even were we to penalty.19 expand Pompa-Ortiz concept examination, or trial from defects in the flowing preliminary recognize omissions counsel to the examination preliminary related conduct grounds as a basis for reversal of a on of ineffective subsequent conviction 742, 520, re 528 476 (cf. counsel In Hannie (1970) Cal.Rptr. Cal.3d 110]) P.2d that relief not be here a section 995 would warranted since ground motion made on this would lack merit.
We do that a dispute petitioner’s that evidence logic argument in defendant has been “convicted” the same of another murder proceeding be cannot on a presented hearing complaint charging preliminary 190.2, murders and section multiple special related circumstances under clear, however, subdivision It is the defend- (c)(5). requirement that the “has ant been convicted” other same is a jurisdiction- murders trial al former prerequisite penalty conduct of the trial authorized section 190.4. That cannot and until the defendant finding need not made has been one been found to be guilty found the murders has charged (1979) Cal.Rptr. 720], Superior Cal.App.3d 18Ghent Court decided after 944 [153 13, 1978, case, preliminary distinguished December examination Grilli held this sufficiency allegations may a underlying special be tested on of evidence circumstances approving section 995 This conclusion Ghent motion. court thereafter reached the same 862], and Superior Cal.Rptr. Carlos v. Court 672 P.2d 35 Cal.3d 137 [197 Superior Ramos Court 32 Cal.3d P.2d 589]. charging a transac Unlike the situation of defendant who must stand trial counts motion, tionally might and who unrelated offense that have been stricken on section 995 may regarding prejudice suffer from admission of evidence the commission of *37 offense, 190.2, upon (c)(5), special circum here the evidence which the section subdivision charged. de regardless special were of Thus stances based was admissible circumstances guilt phase prejudice fendant no of the trial. suffered at the of the first It follows that the not have intended degree. Legislature could probable evidence sufficient to establish cause believe the defendant had been “convicted” of those offenses be at the presented preliminary suggested by examination. To read the statute the manner defendant would as eliminate murder a circumstance. multiple special
Both sense statutory common and established rules of construction pre- 190.2, clude that The of interpretation. language (c)(5), section subdivision is clear unambiguous as it the trial. applies insofar not, contends,
The is question statutory as defendant one of construction 190.2, involving section evi- (c)(5), subdivision but rather of quantum dence necessary to establish a probable reasonable believe that cause defendant him will be convicted of which for eligible offenses render death penalty under this circumstance. of special proper application sections 87220 A and 99521is the The rule is well established. question. defendant is “legally committed” within section insofar meaning issue, as the if quantum evidence is in “it from the appears [preliminary] committed, examination a been public offense has and there is sufficient cause to believe the “The guilty (§ defendant thereof.” subd. (a)].) [now term cause’ ‘sufficient is generally equivalent probable ‘reasonable cause,’ is, such a state of as of ordinary facts would lead a man caution or prudence to believe and a conscientiously strong entertain suspicion the guilt accused.” Uhlemann 9 Cal.3d (People 657, 511 When a sought P.2d review is 609].) magistrate’s trial, order a committing on a for superior petition for court writ 999a, prohibition applies filed section the same test pursuant recognizing justify that will a need not be prosecution “[e]vidence sufficient to a conviction. An information will not be set aside or support prosecution thereon if is prohibited ground there some rational assum- ing the possibility that an and the offense has been committed accused If, however, “(a) public 20Section 872: that a has appears it from the examination offense committed, thereof, guilty been mag there is sufficient cause to believe the defendant him, order, by following istrate signed must make complaint or indorse on the offense, (or any effect: ‘It appearing complaint to me that the mentioned offense in within fact, thereof), committed, according stating generally nature been has and that thereof, there is guilty sufficient cause to believe named A.B. I order the within that he ” held to answer to the same.’ 21Section 995: 995a, “(a) Subject (b) to subdivision or information set of Section the indictment shall be motion, aside arraigned, the court in which the or her upon defendant is in either found, endorsed, following [jf] [j|] (A) If it cases: is an indictment: Where it is presented prescribed [j[] (B) as in this code. That the defendant has been indicted without probable [([] (2) (A) filing reasonable [j|] cause. If is an That it information: before the [j|] (B) thereof legally magistrate, the defendant had not been de- committed That the [j|] (b) probable fendant had been . . . .” committed without reasonable or cause. *38 as judgment its may not substitute reviewing of it. A court guilty every legitimate and magistrate, for that of of the evidence weight the evidence must court from may reviewing inference that be drawn v. Court (Caughlin Superior in favor of the information.” be drawn 587, 461, 211].) 481 P.2d Cal.3d 464-465 Cal.Rptr. of the evidence sufficiency to test
The same standard is applied a special inclusion in the information the commitment on or support Court, Cal.App.3d (§ 739). (Ghent Superior circumstance overlap substantive 955.) many allegations Since circumstance special the latter cause as to charged, finding probable offense offenses of the elements cause the identical establishes as to necessarily probable only need circumstance, courts reviewing and the magistrate special satisfy of the circumstances identify the additional elements special the prob- has to establish presented themselves that sufficient evidence been able existence of those additional elements. 190.2, literally
In cannot the context of a court (c)(5), section subdivision untried has been probable yet find cause to believe that a defendant as logical special convicted. The of sections 872 and 995 to this application For circumstance is as as however. suggests, not obscure trial, be found circumstance to be found true at the defendant must special murder, least or counts to which guilty two counts of and the count first are be of the de special allegations circumstance must appended degree The additional elements verdict first gree. justify which would murder as to which cause shown are set forth section probable must be If cause to may 189. that evidence is sufficient the find magistrate probable murder, upon believe the defendant based “committed” first degree that, he be” at this “may necessary convicted It not offense. stage that the believe the defend pretrial magistrate probable find cause to Cal.3d ant “has been” convicted. (See also Anderson 1148-1149 a similar 1306], 742 P.2d rejecting law.) claim under
Defendant makes no claim that cause as to these elements probable The commitment for established accordance with these standards. challenge trial on this special circumstance was not therefore vulnerable motion, by a section 995 incompetent counsel cаnnot deemed make failing ground such motion on the suggested.
4. as Elements Separately Charge Failure Crimes Included Other Circumstances Special special
Defendant also two charged allegations with circumstance, 190.2, (murder (c)(3)(i) defined former section subdivision *39 190.2,
in the course of robbery) and one each of section (c)(3)(ii) subdivision (murder 190.2, in the course of and section kidnapping) subdivision (c)(3)(iii) (murder in the All rape). course of but the last were found true.
Former section 190.4
a
provided
“[wjhenever
circumstance
special
crime,
requires proof of the commission or
commission of a
such
attempted
crime shall be charged to the
proved pursuant
general law
applying
not, however,
the trial and conviction of the crime.” Defendant was
with,
charged
nor were
verdicts returned on the
separate
underly
offenses
ing
special circumstances—robbery (§ 211),
(§ 207), or
kidnapping
rape
261,
Robertson,
(§
subd. (2)). This court held in both
v.
People
supra,
21,
Cal.3d
v.
Defendant asks the court to reconsider this that the arguing of the purpose that the requirement crime be underlying “proved pursuant to the general law to the trial and conviction applying of crime” was to ensure accuracy reliability of the only verdict. The offered support for the assumption reliability of the verdict would be enhanced is that the attention of the jury would then be properly “quan- focused on the tum of evidence as to each element of that crime.” He notes also possibility that jury return might a not verdict as to the crime guilty which could then be asserted as inconsistent with a that the related finding special circumstance was true. out,
As correctly defendant points subsequent Valasquez we stated Green, both 27 Cal. 3d Green, and People Thompson, supra, 303, 322, 27 Cal.3d quoting that a valid conviction of the underlying crime is a “necessary condition” circumstance a related finding special allegation context, true. That entirely statement was made in an different however, and does not preclude upholding special circumstance when the notice given by the charge adequate, jury the instructions given exist, required that all of the elements of the crime be found to underlying and the jury was correctly instructed that the defendant’s crime guilt must be proven beyond a reasonable doubt. In those circumstances the jury’s attention is focused directly on the crime and it is proven according to the general only law. The return of circumstances verdict special confirming jury’s that the finding defendant was of the crime is a guilty defect in form not substance.22The instructions on these matters given recognize charge underlying We that the omission and verdict on the substantive being may crime separate imposed, results there no “conviction” on which a sentence No prejudice in all demonstrable adequate respects.23 in this case were the additional him with charge resulted from the failure to robbery, crimes kidnapping rape. Circumstances
5. Multiple-murder Special Redundant *40 190.2, (3) subdivision Defendant next claims that section only single a charging must to permit 1977 death law be construed penalty While ac single in multiple-murder special prosecution. circumstance as an killings the multiple the of consideration of propriety knowledging factor, circumstances argues he that the of aggravating proliferation special a single the in favor of death. Since jury based thereon skewed verdict is sufficient to render de finding multiple-murder special-circumstance only one should argues fendant for the death eligible penalty, death at This arbitrary penalty phase. be to avoid of the charged imposition 1222, Cal.Rptr. court so held in v. Allen 42 Cal.3d 1273 People (1986) [232 730, 849, also, Rodriguez v. 42 Cal.3d 788 (1986) 729 P.2d (See People 115]. 36, 667, Harris 36 Cal.3d 726 P.2d v. Cal.Rptr. 113]; [230 782, Broussard, Any 679 P.2d error opn. J.).) Cal.Rptr. (plur. 433] in is harm more than one circumstance charging multiple-murder special in less however. It is the selection the guilt phase, penalty may findings cumulative have impact. prejudicial 6. The Kidnapping Special Circumstance Green, 1,
Defendant, relying 27 Cal. 3d chal on People lenges the the murder Meza finding during committed of Lourdes of a described in commission circumstance kidnapping, special 190.2, section In considered the subdivision Green this court (a)(17)(ii). be committed special circumstance element a murder meaning where commission of’ offense and concluded that the related “during kill, incidental to only the defendant’s intent and the related offense is murder, in the murder to have been committed cannot be said related circumstance commission of the offense. To construe the special underlying all legislative otherwise would be inconsistent with the purpose murderers who circumstances—that between those special distinguishing from penalty the death possible imposition deserve consideration aside, may punished for the the murder verdict be the defendant not be held should set prejudice regard, however. position lesser offense. A defendant is no to claim in that beyond special proved that the must a reasonable court instructed circumstances willful, doubt; killing underlying intentional in the course of the instructed on deliberate and offense; offense; applica underlying the elements instructed on instructed on of each underlying bility capacity specific-intent elements of murder and diminished regard. offenses. claims no error in Defendant this those who do not. held Green therefore that the circumstance of special the commission of one of the killing during felonies enumerated section 190.2, (a)(17), only subdivision existed if the was to advance the killing independent (27 61.) felonious Cal. 3d at purpose. p.
This trial took to our decision in Green. The trial place prior court was not aware of this construction of the kidnapping special circumstance and thus did not jury instruct accordance with that decision.24Defendant that this omission argues requires that the circumstance be set aside special because he has been the right denied to have the determine a material issue. (People Modesto 59 Cal.2d This,
P.2d 33].) he contends constitutes a se per miscarriage justice VI, within the of article meaning section of the California Constitution *41 524, as in applied Modesto and v. St. Martin People (1970) Cal.3d [83 166, 463 Cal.Rptr. 390].) P.2d
We disagree. Assuming that such an instruction would have been re
case,
in this
quired
omission could not have
defendant. The
prejudiced
evidence that defendant’s
Lourdes Meza was not
purpose
kidnapping
kill
simply to
is more than sufficient. It
In
overwhelming.
is
such circum
felony-murder
stances the failure of a
instruction to
special-circumstance
fully
conform Green is not
prejudicial and
omission does
require
(See
733,
reversal.
v. Murtishaw
Cal.3d
People
(1981) 29
Cal.Rptr.
631 P.2d
Cf.
v. Croy
41 Cal.3d
446].
592,
the benefit of that doubt and find that the circumstance paragraph tenth not true.” The evidence Meza leaves of defendant’s Lourdes purpose kidnapping no for a killed contrary Tyson already room conclusion. had Appellant only other kid of the farmhouse when Lourdes Meza was occupants He had no napped. Appellant conceded that he intended to kill her also. reason to take her from life for the the house other than to her prolong wallet, purpose already sexual assault. He hаd of her so possession kidnapping robbery sugges not for the and there is no purpose tion that it have might any been for reason other than to flee the immediate Thus, discovery scene to avoid while the sexual assault. accomplishing Green, unlike 27 Cal. 3d robbery where the was an opportunistic murder, crime committed incidentally during the here the con inescapable clusion is that the had an kidnapping rather than incidental independent, 190.2, The purpose. jury did not find the (§ circumstance subd. rape special true, (a)(17)(iii)) but that determination is not since the dispositive jury only to find whether not the murder occurred during commission attempted commission of not whether the rape, kidnapping had felonious murder, sexual assault in addition to as a purpose. found that appellant kidnapped Lourdes Meza. It did so on the
basis of evidence so strong that no rational jury could have found that he did not have a felonious purpose other than his ultimate her. goal killing *42 Upon review the entire record we can say with confidence that the omission of an instruction independent felonious is an purpose element the kidnapping special beyond circumstance was harmless a reasonable doubt since no jury rational could have failed to find that a other than purpose and in addition to her killing precipitated kidnap- ping.
There no error being prejudicial the defendant at the guilt phase trial, the conviction of defendant on the three counts of first murder degree is affirmed. The verdicts the six finding circumstances special allegations based on multiple murder true are modified to reflect a single multiple- murder special circumstance. The remaining circumstance verdicts special are affirmed.
Sanity Phase
1. Instructions
At the trial on defendant’s of not reason of plea guilty insanity (§§ 6, 1017, subd. 1026) he evidence in the presented form of the reports of two court-appointed psychiatrists and an electroencephalogram (EEG)
test, as exhibits.25 Neither jury which counsel both read to the and lodged insane. The psychiatrist electroencephalo- had concluded defendant was the prosecutor, was normal.26 Before this evidence was gram presented statement, instruct his to the that the court would opening explained jury insanity finding “dependent upon and the would be concept legal defect, the defendant you whether find for mental illness or mental [szc] of his wrongfulness lacked substantial to either capacity appreciate conduct or or not the defendant criminality of his conduct or whether the law.” was able to conform his conduct to the requirements mental illness or The court instructed the after first jury, explaining is abnormality insanity: was “A necessarily legal person the same as defect, if, he lacks legally insane as a result of mental disease or mental of his conduct or to criminality substantial either to capacity appreciate conform his The court also conduct of law.” requirements instructed, damaged “A become diseased or person however: whose brain has by the so as to render him intoxicating liquor, drugs use or narcotics incapable knowing understanding wrong, legally that his act was insanity insane.” temporary legal Other instructions informed the insanity fully legal was was “not recognized impulse that irresistible unless as a result of lacked sub person mental disease or mental defect to conform criminality stantial of his conduct or capacity appreciate his conduct to the requirements of law.” parties stipulated presentation in this manner. Defendant’s of the evidence they strategy counsel defendant and stated “the record” that this had been discussed with proceeding asserted that it permission.” “were in this fashion his consent and He also with my proceed fashion.” “belief this is the best interest of client to in this personally procedure. Defendant affirmed his desire to follow this Brannan, M.D., any report has frank 26The of Max stated: “There is no evidence alleged . mental illness or time of the incident. . that he is insane or that he insane at the my opinion legally alleged legally sane at he was incident and he is *43 sane at the time of present him to lack time ... he not have a or defect that would cause did mental disease capacity criminality (wrongfulness) of or to appreciate substantial to his conduct either requirements conform his . . . conduct to the of the law. present . . . There is no . . is sane at the time evidence that he has ever been insane.. [H]e others, danger . . . ... he safеty he remains a himself included because to the health and relating personality sociopathic is . . . because but disorder not of mental illness because impulsiveness acting thinking.” to without M.D., legally report LLoyd, The A. “. . . was sane at the of Richard stated: the defendant alleged caused him time of the offense ... have a mental disease or defect which he did not criminality, wrongfulness, capacity appreciate to lack substantial either of his conduct to probably . does requirements or to conform his . . the defendant conduct law personality have a disorder.” consumption physician regarding his of alcohol and Each had noted defendant’s statement making drugs reaching report subsequent in his Each had reviewed the EEG conclusions. report opinion changed. and had his not stated that was M.D., Hopkins, reported: “Impression, W. nor- Elwood who had administered the EEG mal awake EEG.” regarding drug-induced the court’s instruction argues
Defendant italics, erroneously M’Naghten stated damage, brain noted above definition rather than the “substantial legal insanity capacity” definition of 275, 583 Cal.Rptr. v. Drew 22 Cal.3d adopted People (1978) [149 The in the instructions. 1318], correctly remaining P.2d which was stated instruction, Drew and People he was that derived from suggests, correct 171, “A 516 P.2d Kelly person 10 Cal.3d 875]: defect, insane, if, mental either of mental disease or legally as a result by (alcohol) continued use of long caused temporary permanent, (drugs) use of (alcohol) even after the effects of recent (drugs) (narcotics) off, appreciate have lacks substantial to either (narcotics) capacity worn criminality require of his conduct or to conform his conduct merely insanity must and not insanity ments of the law. be settled Legal [fl] use (alcohol) (drugs) mental condition recent temporary produced (1978 rev.).) No. 4.02 (narcotics).” (CALJIC concede,
The that the court erred in agree, giving we error, however, instruction in harmless. M’Naghten language. In Drew this court that in the absence of a definition of statutory noted insanity many courts in this of the common law country adopted that courts of Fin. England M’Naghten’s enunciated Case Clark & if “at the 722], that insane Eng.Rep. person legally act, time of the committing laboring accused was under party reason, mind, such a defect of from disease of the as not to know the nature or, it, of the act he was if he that he did quality doing; did know know he was what was We this test was doing wrong.” concluded that in its failure not affect inadequate encompass mental illness which did abilities to this but did render a of con- cognitive degree, person incapable him or herself in with ducting accordance the standards he or she knew insanity We required law. therefore the definition of adopted legal Institute, recommended by the American Law or the “ALI test”—‘“A person is not for criminal conduct if at responsible the time of such conduct as a result of mental disease or defect he lacks substantial either to capacity appreciate criminality [wrongfulness] of his conduct or to conform his Drew, conduct to the of law.’” 22 Cal.3d requirements (People That 345,)27 insanity definition of mental defect or illness encompassed regardless etiology drug-induced and thus mental defect applied illness.
We are confident
the
that
error did not
defendant
the cir-
prejudice
cumstances of this case. The
in the
definition was twice included
proper
27 statutory
reinstating M’Naghten
supplant
A
adopted,
definition
the
test has since been
25,
ing
(§
(b); People
the
definition.
v.
subd.
Skinner
932 instructions, opening
court’s in the explained prosecutor’s had been to insanity The instruction was drug-induced supplemental statement. find insanity the was to jury the basic instruction under which defining to capacity insane at the of the if he either lacked defendant time offenses his that his criminal to control capacity understand conduct was or lacked incon- jury conflicting, conduct. If the understood the instructions to be Thus sistency to only was as the second of the definition. prong Drew/ALI defect jury have the rule to if it found mental could understood be that only if insanity or caused existed by drugs (including alcohol) illness legal this, it was defendant did not know was If he did know wrong. his conduct him that the or illness rendered relevant mental defect drug-induced incapable conforming conduct. illness; no mental defect or
There is no direct evidence the record of wrong- or appreciate direct evidence that defendant did not could not conduct; mental fulness of his no direct that as result of evidence of the defect or illness unable to his conduct. All defendаnt was control sane evidence offered was defendant was expert by legally defendant that addition, under rejected test. In the evidence jury Drew/ALI trial, diminished capacity guilt phase offered defendant at the verdicts which reflect that de- returning by necessary implication findings destroyed fendant type did not suffer from mental defect or illness of a malice, i.e., his harbor of acts ability to to understand law’s proscription life, conduct highly to and his to conform his dangerous human obligation (see People law Cruz Cal.3d 830]; 324), any or other People Conley, P.2d Cal.2d mental element of the charged offenses. whether, only ability, but question cognitive this notwithstanding instruction,
for the erroneous concluded defendant jury might have illness he suffered from a mental defect as a result of which drug-induced intentional, lacked the from three capacity committing premedi- refrain tated, only and deliberate on which this conclusion theory murders. The conduct, been of criminal might have reached is that defendant’s pattern use, one commenced his was circumstantial heavy drug which prior We reason- evidence of mental defect illness caused use.28 find this argues insanity longstand Although defense his that the “essence” of his ing drugs, theory jury. three ex use of alcohol and was not None of the this articulated sort, amining any opined on physicians damage psychiatrists found brain the two who any argument question his found neither mental defect nor mental illness from cause. In sanity jury only that the make its own as to counsel defendant asked decision doctors, history, “What light explained past he incidents defendant’s how case,. closing you usage . . . . .’’In drug physical know about the and ... condition . stating “important in expressed opinion this sociopathic, his own that defendant was
933 was prejudi- the error far too to warrant a conclusion ing speculative that as of consideration deserving In any cial. the absence of evidence capacity substantial lacked result of mental defect or illness defendant was no and there not prejudice control his actions the error did Cruz, 26 Const., VI, v. 13; supra, art. justice. People miscarriage (Cal. § 233, 251-252.) Cal.3d
2. Adequacy Counsel claims, preparation to counsel’s he with respect as did
Appellant “wholly investigate failed” for trial of the that counsel guilt phase, fail defense, only on the this assertion basing factual of the underpinnings record that the activity. He notes ure of the record to reflect investigative or psy of an independent psychiatrist includes no motion for appointment 13 Code, v. Lines 730; People to aid the defense Evid. chologist (see § 500, 225, the ap and none for 793]) 531 P.2d Cal.3d records the medical of other to obtain pointment with which experts As facility. health relevant to defendant’s earlier in a mental hospitalization such counsel, reflect evidence of of the record to the failure incompetency in this context indicia of more value investigative probative effort has no It than it did the guilt phase. with to counsel’s regard representation concluding establishes neither an a basis for actual failure to nor investigate was not that evidence available and insanity supportive plea basis, not A factual offered as result of counsel’s failure to discover it. had may be speculation, judgment must be established before reversal of a Washington v. grounds of ineffective assistance of counsel. (Strickland 674, 695, 2052]; U.S. L.Ed.2d S.Ct. 412, 425; 10 Cal.3d Pope, Cal.3d People Stephenson, supra, 661.) object appointment
Defendant next that the failure to argues trial of the same to stand competency to determine his psychiatrists ineffective (§ 1368) sanity (§ 1026) at the time of the offense constituted any respect assistance. He does not existed doubt with suggest there nor the prosecutor to stand trial. Neither defense counsel competence examination, indicated had not requested a and the court competency that a the examination doubt existed as is section when required compe undertaken mental present because of a doubt as to a defendant’s tence. examine
The record reflects an that the judge psychiatrists order offenses, his sanity present defendant and on his at the time of the report instructions, light thinking commit the impulsive and could the court’s acts without again says same offense it himself.” towards others or himself. In fact *46 934 from dimin- he suffered and whether the time of the offenses
“sanity,” at deliberate, kill, to premedi- to to ished to form the intent capacity specific tate, malice, reflect maturely upon and to and meaningfully to harbor record of the in the is no indication of his acts. There gravity contemplated insanity Arguing of the entry plea. reason for the order from the apart incri- notes that to defendant objected counsel should have this procedure, been have examination statements made a minating during competency Tarantino immunity (see a created subject judicially to exclusion under 465, 61]) Cal.Rptr. Court 48 469-470 Superior Cal.App.3d [122 1026 are section under appointed whereas statements made to psychiatrists issue state in his mental admissible at the if a defendant guilt phase places that extent. thereby his self-incrimination privilege against and waives 94, 651 P.2d Cal.Rptr. 32 Cal.3d Arcega (1982) (People 406 P.2d 338]; In re Cal.2d Spencer (1965) 33].) infer from which to is an insufficient basis
Again, object the failure to no statements Defendant points counsel rendered ineffective assistance. been excluded have might made to these at trial that admitted experts in the order. included had the to stand trial not been subject competency issue, a diminished time sanity Inasmuch as of the at the offenses the psychia- to all that defense it was capacity anticipated, apparent of the offenses circumstances extensively trists would into both the probe testimony reports and that the history, and defendant’s social and mental might nothing Since guilt would be admissible at the phase. to present relevant about his that was reveal commission of the offenses there capacity, diminished would be irrelevant on the issue of competency not been to stand trial object, was no reason to and since competency of different for appointment no for a questioned, purpose request there was subject. on that opine psychiatrists into the to read decision
Defendant also counsel’s tactical questions he was sane record the which concluded psychiatrists’ reports As noted offenses. charged guilty conclusion that he was supported above, decision in a tactical but that this was there is no question understanding his He making expressed of which defendant participated.29 says were harm Many now psychiatrists which defendant of the statements made might supported have jury are those which ful and should not have been laid before the homici defendant’s undiagnosed accounted for conclusion that mental illness or defect some frame of drinking, get “I into another conduct. his statements that when dal These included now, I it I don’t remember. a lot of relate to that frame of mind mind. It’s hard for me to it was day killings said: “I think my In reference to the of these don’t understand actions.” that, in an people almost killed three something building up in me. Prior to I had that was crazy.” before, just lady. pretty my I was robbery. night killed old armed I had almost I don’t looking a side of me person, like at looking me as a different He also said: “It’s like to the psychia- statements Defendant’s agreement procedure. already admit- the evidence history trists were consistent with regarding *47 been to with- have would procedure ted alternative guilt phase. record appellate conclude on the insanity draw It is not plea. possible range beyond so was one that counsel’s tactical decision not to do make. would attorneys defense tactical that criminal competent decisions 412, 424.) Cal.3d (People Pope, supra, to defendant’s were relevant statements to the psychiatrists
Defendant’s
were
strategy
jury
psychiatrists
to convince the
attempting
did,
fact,
amount-
in
from mental illness or defect
wrong, and that he
suffer
have
should
on
that counsel
ing
insanity.
appeal
Defendant’s claim
legal
sought
meritless. Had counsel
sought a
instruction is
limiting
patently
the infor-
to show
only
instruction that the statements could be considered
based,
were
mation
he was sane
psychiatrists’ opinions
which
upon
as evidence of
not have asked the
to consider the statements
could
burden
legal insanity,
prepon-
an issue on which he bore the
of proof
Drew,
333, 348-349.)
derance
of evidence.
Cal.3d
(People
is demonstrated
Finally,
incompetence
defendant claims
counsel’s
insanity in
his
on
object
failure to
to the erroneous instruction
drug-induced
ante,
930-
(see
pp.
which the
rather
test
M’Naghten
than
Drew/AIA
any
above that
931)
legal
was used to define
We have concluded
insanity.
Therefore,
error in
failure
regard
this
was not
counsel’s
prejudicial.
reversal on
object to the erroneous
not afford a basis for
instruction does
The Habeas claim, also Defendant’s for habeas based on petition corpus writ of above, -failed to made on counsel briefly discussed trial appeal afford in him constitutionally defending against adequate representation these charges. aspects We found no for reversal the several basis major conduct opinion. counsel’s considered earlier in this Because crazy, trip’s long ... I I’m but happening understand. This been time. don’t think you’re you just something right people for it because is not when three the fuck of shoot pissed off.” lies thrust of claim that counsel failed to afford an defense adequate offer evidence failure of counsel to and to obtain and alleged investigate, omis- of the diminished defense which was supportive capacity presented, allegedly guilt, sanity, penalty phases sions which affected the trial, juncture. at this petition it is to consider the habeas appropriate corpus corpus,
Under the for writs of habeas procedures governing petitions to state a summarily have denied for failure petition might this case been incompetent relief on entitling petitioner grounds facie case prima inves- failed to Although alleged adequately counsel. that counsel petitioner *48 defense, he failed his diminished tigate adequately present capacity or counsel knew facts that: based on facts that allege demonstrating (1) in- further should have known counsel would have undertaken competent additional evi- such would have vestigation; (2) investigation produced or omissions verdicts; (3) or counsel’s might dence that have affected the otherwise resulted in prejudice. We did so for two
The court nonetheless issued an order to show cause.30 to risk the reasons—because this is a case in which we did not wish capital sufficiently allegations had failed to make his possibility petitioner habeas corpus procedures, because he was unaware of the complete proper 2 (1970) in In re Saunders may by language and because he have been led 1033, 633, alleging to believe that 921], Cal.3d 1043 472 P.2d Cal.Rptr. [88 relief. The order show failure to alone establishes a investigate right issued, however, of establish cause bears the burden having now petitioner (See 142, 160 to relief. v. Frierson Cal.3d ing right People (1979) [158 281, 587].) 599 P.2d Cal.Rptr. afford the
When the for the is the failure of counsel to basis petition I, 16 the California article section representation guaranteed by quality Constitution, inexcusably that counsel only must not petitioner prove introduce or failed to objections, failed to make or particular investigations evidence, omissions that the items of but must also demonstrate particular meritori of a potentially the denial of or inadequate presentation resulted 572, 583-584 v. Fosselman 33 Cal.3d (People ous defense. [189 855, that the omission 1144].) 659 P.2d It must also Cal.Rptr. appear reasonably which a were not attributable to a tactical decision omissions v. attorney (People would make. criminal defense competent, experienced Frierson, 142, “trial demonstrates that showing This supra, 158.) Cal.3d reasonably competent counsel failed to act a manner to be expected implicit preliminary Normally, “an determina the issuance of an order to show cause is which, if specific facts petitioner prima a sufficient facie statement tion that has made established, Hochberg (1970) 2 (In corpus existing law.” re him to habeas relief under entitle 870, 875, 681, Cal.Rptr. 1].) fn. 4 471 P.2d Cal.3d 23 Cal.3d v. supra, (People Pope, advocates.” diligent as attorneys acting 412, 425.) counsel did
Thus, grounds judgment entitled to reversal of to be assistance, carry must the petitioner constitutionally adequate not provide reality,” simply as a “demonstrable of proving prejudice his burden (People of counsel. or omissions as to the effect of the errors speculation 820].) 517 P.2d 10 Cal.3d Stephenson Saunders, (In 2 Cal.3d supra, re moreover. Errorless counsel is not required, knew or that counsel must demonstrate 1033,1041.) petitioner must necessary, and investigation have known that further should failed to that counsel of the evidence the nature and relevance establish de capacity relates to a diminished If that evidence or discover. present considered fense, evidence will be present the failure to discover to conclude caused a reasonable only if it have prejudicial might an ele that constituted capacity lacked the mental actually the defendant Robertson, 33 Cal. 3d (See ment offense. charged 43-44.) *49 is measured under by
The standards of counsel competence which Amendments, in referred earlier Sixth and Fourteenth to which we have I, 16. Except this those under article section parallel opinion, applied of rise to a give presumption cases which circumstances unlikely any lawyer provide because it “so that could ineffectiveness is assistance,” and has prepare effective as when insufficient time to investigate L.Ed.2d 466 U.S. (United been allowed States v. Cronic [80 657, 669, shown. The defendant 104 S.Ct. actual must be 2039]) prejudice about a brought must demonstrate either that counsel’s conduct of the trial a that justifying breakdown of the adversarial process “presumption [the] (id. at satisfy conviction was reliable to the Constitution” insufficiently that, at that there is a reasonable 670]), probability L.Ed.2d p. p. [80 errors, would but for counsel’s the result of the unprofessional proceeding A is a sufficient probability have been different. reasonable probability Washington, supra, (Strickland undermine confidence the outcome. making prejudice 466 U.S. L.Ed.2d at “A court 698].) p. that the showing must ask if the defendant has met the burden of inquiry have been different absent reasonably likely decision reached would (Id. 699].) errors.” L.Ed.2d at p. p.
1. The Petition of, but failed claims that counsel was aware specifically
Petitioner and supported that have obtain medical and records would psychiatric defenses; un- being that insanity and corroborated the diminished capacity coun- aware section 987.9 that funds that were available under purpose investigator independent experts sel failed to obtain services had medi- defense; counsel had failed consult assist in that developing by reason entry guilty cal before of not psychiatric plea and experts evidence. that had insanity; investigate penalty-phase counsel failed to penalty He to call at the also claims that counsel had failed as witnesses mitigating have offered phase mother and sisters who would petitioner’s evidence. exhibits, medical by is them the among several petition accompanied coun- counsel; of trial by
records that had not been obtained a declaration sel; criminal defense by attorneys three includes practice declarations whose trial had not afforded the opinions quality who offer their counsel attorneys; and representation to be criminal defense expected competent who, by a declaration based on his review the medical psychiatrist counsel, psychiatric opines and materials reports supplied appellate medical been available at trial and records psychiatric been stronger could have examining psychiatrists presented. defense 2. The Return valid,
In the return judgment asserts that respondent constitutionally ade- has not that he petitioner demonstrated was denied in some assistance his trial concedes that quate Respondent counsel. reasonably com- counsel’s fell respects performance below expected argues preju- defense but omissions did petent attorneys, that counsel’s *50 reasonably dice a more favorable petitioner probable that it is result have would followed absent counsel’s omissions.
In particular any psychiat- noted absence evidence that respondent testimony peti- ric exist more favorable experts who would have offered and offense tioner on the of his at the time question capacity mental have should out that the records claims counsel points which petitioner theory capacity would not have of diminished supported obtained trial, have that would any theory capacity at other of diminished pursued with been consistent the evidence presented.
3. Traverse The petition-
The claims in the which repeats petition upon traverse made at of counsel his assertion that he effective assistance er bases was denied trial, accompanying and exhibits by reference the incorporates petition accompany it. Additional exhibits the traverse. of habeas for writ accompany petition the exhibits which
Among Community Hospital a. Medical records from Clairemont corpus are: facility as emergency patient San Petitioner to that was admitted Diego. on May 1976. Terminal
b. records from Federal Correctional Institution Medical February 1977. facility in that patient Island. Petitioner was He c. in which he states: by A declaration trial counsel petitioner’s clerk, second law investigator, of a defense not obtained services formal trial. He made no attorney, or for independent experts petitioner’s of section for was unaware purposes motion to obtain funds these funds have sought Had he been aware of that would provision 987.9. for funds under it. He make two informal to trial about inquiries prior did availability of in chambers with defense and discussed the funds purposes, of the trial He had also discussed funds with the administrator judge. He from both investigatory attorneys. for contract understood budget no funds were available. The insanity primarily diminished defenses were based capacity been history alcohol and Counsel had petitioner’s long drug abuse. by San petitioner’s Diego hospitalization psychiat-
advised mother of his ric the possi- reasons. Both made reference to court-appointed psychiatrists bility hospi- of such and both mentioned that records hospitalization, mother also advised might by talization exist. Counsel had been petitioner’s on a of occasions had been seen number petitioner psychiatrists medical or any while incarcerated in federal Counsel did not obtain prison. records, she would psychiatric although mother stated that petitioner’s men- counsel inquire Diego about the San Neither she nor hospitalization. with matter the records again. obtaining tioned the Counsel did not discuss petitioner.31 only in connection persons interviewed counsel declaration also stated that the aunt, psy court-appointed petitioner, petitioner’s
with the case mother and two were witnesses, transcript prosecution chiatrists. He did not interview but had available the Tyson, made interviews earlier trial of which he believed covered the same factual issues and *51 psychia prosecution unnecessary. court-appointed with witnesses The interviews with the accuracy testi purpose determining reports their trists were for the of the of the and whether mony by insanity plea had been guilty the reports. would be consistent with not reason of thereby psychiatrists information purpose obtaining entered for the of services of the and the petitioner was time capacity relevant to the diminished defense. Counsel at no believed that er legally purpose preserve appeal a claim of letting plea insane. His in stand was to for expected the denying separate juries phases ror for three He his motion for the of the trial. calling sanity very reports phase the trial to be He read the into the record instead brief. testimony giv testimony psychiatrists duplicative the because he would be of the believed the Petitioner, money. whom by Reading report time and to en one at trial. would also save had although Counsel called no at the trial penalty witnesses early trial hear-
considered the aunt. The had attended some calling aunt but had had advised that to court. Counsel been ings, stopped coming ill, well. mother aunt was and that did not Petitioner’s petitioner she know have been testimony had been at the and her would guilt phase called anyone else who suggested Neither nor his mother duplicative. petitioner testify, could counsel of them. although inquire did M.D., Satten, a A d. declaration and declaration supplemental Joseph as an has both who qualified expert board-certified has psychiatrist defend- examined mental condition of criminal regarding and testified many ants on Based on review of the reports psychia- occasions. his trial, medical records trists who examined advance of petitioner Institution, and his from Clairemont Federal Medical Hospital trial, Dr. that a diminished defense was understanding presented capacity helped Satten medical could have opined his declaration that the records verify state- significantly stronger defense. The records would present lead to petitioner ments that otherwise to be would self-serving; appeared be- additional areas of some for defendant inquiry; sympathy create they constructively cause reveal to attempt psychiatric his deal with crime. linked symptoms to the Satten, defendant, his
Dr. who at that time offerеd had not examined analysis and time of conclusions mental state at the regarding petitioner’s offenses. dis- His was “intermittent “Presumptive Diagnosis” explosive Abuse, (DSM-III order rule alcohol 312.32); out and “Substance Epilepsy” 305.OX, (DSM-III and heroin 305.5X).” Satten, discussion,
Dr. de- in his states accompanying petitioner’s scription “suggests possi- his mental state a dissociative and the process Disorder,” of an in an bility change Intermittent and that a Explosive explained “essentially, ‘you’re law- proposed procedure, agreed, saying had counsel ” yer.’ decision, have Spencer counsel not supra, Had been aware of the 63 Cal.2d he would sanity phase much and did not importance expect prevail attached to it. He did at the importance jury to make psychiatrists’ reports. attach much He intended allow the excising prejudicial what it or matter from of them would. He did not consider irrelevant reports, moving petitioner. or of the reports to limit the use or statements therein testify. He did not petitioner petitioner Counsel discussed with the decision that would pursuant Beagle, impeachment of prevent make a motion 6 Cal. 3d priors admissible petitioner prior with He believed the would be evidence of convictions. impeachment potential purposes bring and decided them out on direct to limit their they inas capacity defense impact and because he believed were relevant to the diminished abuse during following period drug alcohol much as the offenses had occurred testimony about prosecutor eliciting petitioner petitioner. Counsel has no recall of from *52 uncharged irrelevant inadmissible. escape, an and believes that such evidence was and of by some degree manifested generally individual’s state of consciousness He that outburst. believes usually amnesia violent accompanies “at an during episode offense took place evidence shows that petitioner’s to dissociation,” not have the petitioner capacity least and did partial murder, not first that he could necessary the mental degree form states deliberate, kill, harbor or meaningfully form the intent or premeditate, this period petitioner malice. He also that it is possible during believes he could not conform insanity met the then test applicable legal his conduct to the the law. requirements a of Dr.
e. Also the traverse as an was declaration accompanying exhibit Smith, a and has David E. is both and physician pharmacologist who and in consult- treating teaching, extensive substance abusers experience led in this His review of materials testifying expert and as an field. ing, alcoholism, him suffered from the disease to believe that petitioner not be that an mental condition could adequate diagnosis petitioner’s history made without a than that obtained complete petitioner more the time of trial.
Dr. Smith were familiar concludes that examining psychiatrists they with the disease of not have they alcoholism been would kill, concluded that able petitioner was to form the intent premeditate, malice, gravity harbor or on the of his maturely reflect meaningfully in- actions. He from acute alcohol petitioner suffering concludes toxication, which in individual alcoholism often leads to suffering from “gray-outs” capacity. “black-outs” and diminished mental Dr. Smith that an examining psychiatrist also that the view asserts tasks as driv- intoxicated could not such person perform complex physical unfamiliarity ing running up and down stairs indicates the psychiatrist’s alcoholism, with “medically with and is Persons petitioner’s incorrect.” states, alcohol, history, he intoxicated manifest pathological “when with intoxication with a marked and become personality change hyperactive, also aggressive possible personality changes assaultive. It is that these accompanied memory and assaultive behaviors a marked impair- will ment.”
He also a a or “blackout” there explains person “grayout” that when has memory is a loss of Petitioner primary memory secondary while retained. it described this when he said that examining symptom psychiatrist it, black though “watching was as were movie that had lots of breaks memory Dr. Smith loses but declares that when spots.” person primary secondary second- memory through has he is able to reconstruct events actually memory and the events he cannot ary piece together is able to *53 he believed then examined defendant Dr. Smith not Although recall. mental nоt harbor the specific could petitioner that at the time of the offense first murder. degree that are elements of states confessions, and two had reviewed defendant’s expert Because neither re- his offering opinion interviewed him prior had examined or neither to file permission court granted mental capacity, defendant’s garding Dr. Smith. Dr. Satten and additional declarations of the he was Dr. had stated that In his declaration Satten original “at least during episode offenses occurred that defendant’s opinion to form dissociation,” the capacity not have and that defendant did partial murder, not form the that he could to first necessary degree the mental state deliberate, malice. He kill, or harbor meaningfully premeditate, intent to legal applicable met the then this during period also believed that require- conform his conduct test of in that he could not insanity confessions, a one- ments of After his review defendant’s the law. defendant, that his opin- Dr. Satten declared interview of and-one-half-hour unchanged, were previously ion which he had reached diagnosis While victims. of the two male . . . with to the death regard “particularly mental states ability evidence of to form petitioner’s there is more victim to the female murder with necessary degree respect to constitute first a case and in this after a review of all the material my it is still opinion, form the meaningfully with that he could petitioner, interview personal he was still murder because degree mental states to constitute first requisite of drugs influence in a dissociative state and also under the significantly testify to this Dr. Satten would killing.” at the time of this alcohol and/or called as a were he witness. opinion it apparent Dr. Smith stated that was
In his declaration postexamination on medica- that defendant was to him the examination of defendant during be- He impairment.” tion has “substantial residual neuropsychic and still suffering psychotic time of the offenses defendant was lieves that at the result as a and alcohol chemically drugs dependent that he episode, those obtaining single goal was directed at of which his behavior drugs substances, ingested behavior defendant and that in his compulsive goal-ori- Any interruption “toxic triggering psychosis.” and alcohol intoxica- greater reaction.” activity “rage ented would produce In reaction, reality occurs. tion, break with until a complete greater time of the at the in a toxic state psychotic defendant was opinion of Dr. in the opinion episode, of such a psychotic One indication killings. events, Dr. Smith, which memory of the loss of primary was defendant’s during testimony by defendant evident in the trial Smith believed was de- in his opinion declared that Dr. Smith his examination of defendant. *54 deliberate, kill, harbor not fendant could form the intent to premeditate, of his actions. malice, on the meaningfully maturely gravity reflect a witness. testify He if called as would to this effect
4. Disposition with
A
traverse
petition
allegations
the factual
comparison
matters
no
factual
those of the return
are
disputed
satisfies us that there
Frierson, supra,
v.
necessary. (People
resolution. A
requiring
reference is
190,
142,
Cal.Rptr.
160;
25
194
Cal.3d
In re
23 Cal.3d
(1979)
Lawler
[151
833,
Based on the exhibits and declarations summarized showing contends that he corpus has met burden on habeas be avail- counsel a defense potentially might was on notice that meritorious able, defense, a result of and that as counsel failed to investigate counsel’s counsel’s failure he argues denied that defense at trial. He failure to of several investigate poten- resulted in the withdrawal complete tially upon basis meritorious defenses and of an informed counsel deprived “any” defense at which make choices the concerning presentation circumstances, claimed, trial. In these must be presumed it is prejudice judgment set the court to compel aside. The be to alternative would on the speculate effect of counsel’s omissions. in defense rule which espoused by defendant is cases appropriate
counsel
of which
wholly fails
defense
investigate
meritorious
potentially
aware,
he is or should be
or counsel
and as a result
is withdrawn
the defense
to whether
incapable
respect
an informed
making
tactical decision with
the defense
Cal.3d
should
(See
be offered.
v. Shaw
People
This is not however. concededly Here counsel failed to obtain a medical one subsequently record which reflected expert concluded incident of which have prior violence could been precipitated mental expert condition which the has concluded existed at time of the This is not charged offenses here. a case in which to investi- counsel failed condition, gate contrary, defendant’s mental however. To the although availability unaware of the of funds under section 987.9 engage experts, to did insanity thereby counsel have defendant enter an plea, brought about the two appointment of who psychiatrists examined defendant and their only offense, offered on opinions sanity not his at the time of the but also on whether his capacity so diminished that to or did he was unable not harbor the mental states which are elements of offenses. charged defendant that Although states counsel not ex- “independent” did engage neutral, those who were perts, were In appointed experts. court-appointed circumstances, these it cannot be said investigate that counsel failed to capacity diminished defense which he did is that the present. problem went, so far as investigation, it failed to evidence produce supportive Frierson, 142, The rule therefore, defense. 25 supra, Cal.3d is not disposi- tive.
Defendant proceeds having identified assumption counsel’s omissions he has established ineffective assistance in the prepara tion and presentation of may defense. Before such a conclusion be here, where reached counsel did of ex obtain the services investigate state, whether, perts evaluating mental we defendant’s must consider: having opinions experts two insane legally defendant was not not suffer and did from a duty diminished counsel was under capacity, and, seek if opinions; additional so whether his do so preju failure to defense. analysis diced the This is performance whether counsel’s required I, is to be measured guarantee under the of counsel in article section found Constitution, 15 of the California or under the Sixth and Fourteenth former, Amendments United States Constitution. Under Fosselman, 572, we stated the rule in v. 33 584: People supra, Cal.3d “[I]n cases in which a claim of ineffective assistance of on acts or counsel is based defense, not may omissions amounting prove withdrawal of a a defendant such ineffectiveness if with perform he establishes that his counsel failed to it a determination reasonably and that probable reasonable is competence in the absence more the defendant would have resulted favorable to Watson, 425; supra, Cal. 3d at failings. (Pope, p. counsel’s supra, standard 46 Cal.2d at the Sixth Amendment p. 836.)” Under must of the adversarial process establish either there a breakdown reli insufficiently such that the presumption as to warrant conviction Cronic, 466 U.S. satisfy (United supra, able the Constitution States v. 648, likely were 670]), or that counsel’s omissions L.Ed.2d Washington, have the trial. (Strickland affected the outcome of 699].) U.S. L.Ed.2d counsel’s failure the first we
Addressing question, conclude characterized as may experts seek the advice “independent” has declarations constitutionally assistance. Defendant offered inadequate in whose by attorneys in the of criminal defendants engaged representation *56 have of a opinion sought psychiatrist defense counsel should appointment on entry insanity plea advise him of the not reason of prior guilty by of whether to enter and should have the advice a plea, psycho- obtained was “inexcus They that failure to do so in this case pharmacologist. opine by able.” But defendant has whom he experts not demonstrated that they not to believe qualified was examined were that counsel had reason were not to determine whether mental was qualified capacity defendant’s have diminished at the time of the His concluded present experts offenses. that, same because the did not arrive at the psychiatric experts appointed did, as unfamiliar with alcoholism diagnosis they appointed experts are We cannot of one drug dependence. accept expert the opinion contrary diagno because another has reached a with to a respect conclusion sis the other is Defendant does not so unqualified. argue.32 himself Frierson, 25 Cal. 3d attorney
Defendant’s did that which we held in 142, factual investigate He “reasonable required. was made efforts in an attempt to underlying capacity framework the defense” of diminished in the form of to bolster opinion obtain additional evidence expert re does not that counsel seek Competent representation defense. demand will expert examinations of defendant until an is found who petitive a that made in offer Defendant’s claim here is not unlike supportive opinion. 32 Brannan, psychiatric experts who appointed record that Dr. Max one of the The reveals defendant, a ro graduate University School. He had examined was a Tulane Medical by residency tating internship, practiced general medi followed a at Folsom State Prison. He four-year residency psychiatry. He had cine school for a until 1958 when he returned to specializing continuing program at the been field and was in a since education expert, University frequently at at the time of trial. He had testified as California Davis prosecution. on behalf of both defendants by by psychiatrists accompanied a vi- report court-appointed curriculum Neither was detailing qualifications. tae their
In re (1978) Cal.App.3d Grissom Cal.Rptr. 96], where the court lawyers admonished that defense legal are not expected practice defensive medicine equivalent ordering in the multiple hope tests information, one will useful produce being “tests they forego peril at (Id., branded As we incompetent.” p. 849.) at observed in v. Stan worth Cal.3d 522 P.2d 1058]: did undertake an inquiry to determine the mental capacity “[c]ounsel and . . . found no evidence of diminished Defendant’s capacity. ability produce years evidence four later not in itself conflicting does establish that the factual test is inquiry inadequate. whether proper the original counsel was inquiry light of facts he knew adequate at should have known the time the inquiry was undertaken.” Even we were to conclude that opin- counsel should have another sought ion or it does opinions, reasonably a more appear probable that favor- able determination would have been reached but for counsel’s failure to locate the two they who now state that experts believe defendant was unable kill, deliberate, malice, to form the intent to or to or harbor premeditate, in a dissociative state the time of the offenses. None of these mental states was necessary element at the it guilt where seems clear phase that the verdicts of first murder were degree felony-murder based theory. testimony Defendant’s own established he intended to both that steal, killings and that the place robbery. took in the perpetration Neither *57 the Dr. declaration of Satten nor Dr. that of Smith that defendant suggests of incapable having did not have the intent to steal when he went to Salvador, the of home Miguel, and Lourdes or that this intent did not exist at the time he robbed and killed them.
The questions to addressed in this standard of are: applying prejudice does this record now demonstrate that if counsel had obtained the records from Clairemont Hospital and the Federal Correctional Institution and made them available the he experts who examined or had petitioner, obtained the of services or more the “independent” knowledgeable experts, diminished defense been capacity Might would have significantly stronger? the have medical records affected the jury’s determination whether peti- of tioner lacked the mental states which are of first elements murder degree the time the homicides? of the records that Might have convinced expert these lacked mental states and thus on enabled counsel to offer evidence form question expert of opinion?
In Dr. opinion Satten the not records which trial counsel did obtain, consider, examining and which the experts therefore did not would have a conclusion that supported petitioner suffered from or black- grayouts outs In at the time of the Dr. opinion examining offenses. Smith the from alcoholism suffered that recognized petitioner should have experts conditions, requisite harbor the could not which these and brought about evidence the additional believed that mental states. Thus each declarant kill the intend to did not have might jury petitioner persuaded har- did not victims, killings, or deliberated the had not premeditated victims. bor malice when he shot the reasonably not appear entire record it does
Considered of the light hospitali- earlier or the records of defendant’s these probable opinions sanity phases verdicts at the guilt zation would have affected the officers, testimony and his trial trial. Defendant’s statement to California murders to the leading details of the events many demonstrated his recall of those events. most of of at least two of the victims. He admitted preplanning confessions, testimony of jury petition- The heard one these as well as the evidence of heard direct Tyson er and that of and Karen. The therefore events. recall of the activity and of his detailed preplanning by petitioner, inability circumstantial evidence opinions only the declarants offer harbor mental states. requisite of explosive The declaration of Dr. the diagnosis Satten does relate disorder and its to the evidence dissociation” accompanying “partial them.33 good recall of the events and had petitioner preplanned testimony leading up to and petitioner good In his events own exhibited recall of the subsequent killing Miguel Vargas. those to the It seems inconceivable of Salvador and detailing product “secondary memory” Dr. Smith. After this could be the described murders, drugs ingested day petitioner testified prior the various alcohol scene, trip stating through after we left Galt about the to the murder that “we Lockford went out picked up . . . another little town six-pack and we in Lockford. And then we went into Oakland, six-pack And picked up side of another there. Oakland—not Oakdale. Then we bit, places and then stopped shot on in some then we into Merced. We drove around a little two, Vali the number of we went to the bar. And we had two beers there.” He also recalled scene, activity leaving with um tablets he took en route after described *58 victim, Meza, get Shop Store to stopped third in at a or 7-Eleven Lourdes the car. “We Kwik And, said, amade gas. going get get And first Bob like I the chick was out and some beer. her, something. lunge something slapped her or towards either the door or and I backhanded get I went into the bar— Bob knocked her back in the seat. I told Bob to back in the car and got pack or into the store and a six of beer.” immediately killing Mi- preceding of Salvador and Petitioner also described the events guel, Tyson briefly Tyson him that Vargas when he and and told Robert had left the house they supposed to explained was in the reentered “Bob’s Salvador house. Petitioner that when house, downstairs, go supposed to watch them on have—when we in the whoever Bob’s was got gun. gun .... And I was to the floor and watch them. Now he’s a And the was loaded they gun.” go upstairs if he After and check out this other Mexican male. I didn’t know had coming petitioner gone was out had entered and had to the second floor he saw “Lourdes I told coming this bedroom .... bathroom. And this other Mexican male was out of saying I kept trying get him I understand what was ‘down.’ to tell him to down ... he didn’t then, they some time put up got . . . their . . . down to the floor at hands Salvador the male upstairs. And Bob led up bring .... I Mexican male hollered Bob to come the other
It is also noteworthy only that both considered defendant’s men experts offenses, tal state at the time of the the substantial evidence notwithstanding that the crimes were It is well established that where preplanned. such intent has been formed and a defendant’s continues to control actions offense, in an committing committing his intoxication while the crime does negate Hough not the intent element (See offense. People Cal.2d 444]; P.2d Coleman Cal.2d P.2d 349].) Finally, the medical records themselves do support defense of diminished that was on the capacity presented They basis of do not defendant’s alcohol intoxication. past drug and/or confirm the belief of mother that suffered from petitioner’s petitioner epilep sy, or mental defect injury as result of a head to the extent that except they incorporate history statement of that and indicate petitioner’s in while the Federal Correctional Institution had taken Dilantin. petitioner made, No diagnosis of or brain and the Clairemont epilepsy damage found that report were inconsistent with a petitioner’s psychiatric problems disorder, seizure that his violent were noting episodes precipitated anger and were in directed character rather than of disordered being the product cerebral electric activity.34 him, the other Mexican upstairs male male in front or he didn’t lead he—Mexican him, gun something him. He had the brought upstairs hollering on him in .... Bob started Miguel Mexican. That’s when down on went down and the other Mexican male went hands and knees.” Harris, detective, County John petitioner’s Merced in petitioner interviewed after arrest Arizona. He testified petitioner killed the three victims had confessed to him that he had Merced, he, Tyson and that he arriving peti- and had discussed the matter before and that tioner, pulled trigger Tyson on all three. he and had locat- Petitioner told Harris that residence, left, while, ed the victims’ talked with the and then after decid- victims for a short do, ing Tyson stayed what each was petitioner upstairs, Petitioner went while downstairs. Tyson bring told Harris that he upstairs, had located a male and a female and told floor, upstairs. placed they
male He him on the shot him in the took the female with head Tyson holding They them. left the purchased house the female the hair. beer a town Modesto, Tuolumne, outside of and drove to the female. In and had intercourse with Tuo- County petitioner lomne took the female from the car in some hills and shot her the head times, four times. Petitioner told Harris that he had shot each of the male Mexicans two killing They after thought killing Tyson “sniveling.” the female he then about because he was Tyson’s petitioner tape drove back to A picked up residence where females and left. the two petitioner’s statement played to Harris was in evidence. admitted exhibits, “Admitting 34The first Hospital (San Diego) of these the Clairemont General 20, 1976, which petitioner May psychiatric pa Form” indicates that was admitted on as a admitting diagnosis tient with Psychosis,” and a final Schizophrenic of “Bable Effective diagnosis “Explosive Personality discharged (depression).” He was Affective disorder 20, 1976, May with “improved.” a notation *59 accompanied by Summary,” reports This document is “Discharge a re- as well as detailed garding May impression. the initial physician’s “impression” examination and A dictated on 21, 1976, disorder, petitioner undiagnosed psychiatric was that was an ex- suffered from an hyperactive history sociopathy, child with “might primary of well affective disor- and have der, although explosive personality epileptiform, temporal epilepsy and cannot or seizures be ruled out.” In the light any of these we cannot that had or all shortcomings say this evidence been it have affected the verdicts. The presented might petition therefore must be denied insofar as it seeks to the convictions and invalidate on additional findings sanity. We consider below the relevance of the evidence to the decision and whether counsel’s failure to obtain penalty present may it have affected that decision.
Penalty-phase Error Defendant challenges the led to the penalty-phase proceedings impo- that sition of the judgment death on several We conclude that grounds. although jury erroneously considered the three murders as six special circumstances, and counsel inexcusably insanity thereby pursued plea, again putting jury before the defendant’s threat to kill if released from again prison, neither requires reversal of the We also conclude judgment death. that none of defendant’s other has merit. arguments jury instructions,35
The wаs instructed under standard penalty-phase it should consider any special circumstances it had found true as factors report neurological of a May physician consultation a different dictated on history blackouts, given by recited the petitioner by heavy drinking, preceded often outbursts, explosive examination, EEGs, series, neurologic but concluded that the skull normal, and brain history scan were and that the diagnosis was inconsistent of seizure with a episodes virtually always disorder. “The are precipitated anger are in charac- directed indicating they ter activity.” are not due physician to disordered cerebral This electric concluded that primarily psychiatric. treatment was Copies laboratory, occupational therapy, reports accompany and other also these Clair- Hospital reports. They scan, EEG, emont reporting include one a normal brain normal nor- X-ray, mal skull and normal electrocardiogram. The second set of exhibits is from the Federal Correctional Institution at Terminal Island petitioner where hospitalized January sprain, discharge, for lumbosacral on 1978. On while in complained convalescent status he given that the medication him was ineffective. 12, 1977, These records April include an request petitioner consultation which recites “had seizure [accompanied by] Dilantin; taking contusions” and had not been his and a con- was, report 25, 1977, Dilantin, sultation petitioner April taking as of complained Institution, double vision. On petitioner completed admission to the Federal Correctional history a medical reported which he that he had been Di- treated for “blackouts” San ego, hospitalized had been injury, rejected military for a head had been service for “men- reasons,” tal and had history petitioner’s report suffered frontal headaches. A clinical
relevant to the
jury
The
found the six
multi
appropriate penalty.
charged
ple-murder special
Presumably,
circumstances true.
these special
circumstances were considered as factors relevant to the
determina
penalty
tion. No
state is served
the consideration of more than one
purpose
multiple-murder
circumstance inasmuch as the
factor
special
culpability
which this
circumstance
reflects is that the defendant
special
finding
has
committed more
murder.
than one
This factor is
of the
present regardless
number of murders in excess of the
one of which
defendant is convicted.
Although
jury may
number
properly
aggravating
consider that
as
factor, when
murder is identified as a
circumstance the
multiple
special
First,
circumstance,
potential
may be
as a
impact
greater.
special
multiple
murder is
out as a factor which the
singled
having
state identifies as
particu
addition,
lar relevance to the
decision. In
penalty
greater
and of potentially
significance, the
could have
multiple-murder special-circumstance findings
an unwarranted
on the
impact
jury’s selection of
appropriate penalty if
jury
influenced
the sheer number of
circumstances which in
special
Thus,
some cases increase in
the number
geometric proportion to
of victims.
consideration of more than one
circumstance
multiple-murder
special
serves neither the legislative purpose
identifying
those murderers whose
crimes make them eligible for the death penalty,
overriding
nor the
consti
tutionally mandated
the discretion of
purpose
channelling
focusing
jury so as to avoid arbitrary and
of the death
capricious imposition
penalty.
29, 42,
(See Pulley v. Harris
465 U.S.
L.Ed.2d
S.Ct.
871];
1171, 1179,
v. Ramos
U.S.
L.Ed.2d
California
Therefore, failure jury to instruct the at the to consider penalty phase only one multiple-murder circumstance was error. We see special also no “C. Whether or not the offense was committed under the while defendant was influence of extreme mental or emotional disturbance. “D. Whether participant or not the victim awas in the defendant’s homicidal conduct or consented to the homicidal act. “E. Whether or not the offense was committed under circumstances which defendant reasonably justification believed to be a moral or extenuation for his conduct. “F. Whether or not the defendant acted under extreme duress or under the substantial do- person. mination another “G. capacity appreciate Whether or not at the time of offense the of the defendant criminality requirements of his conduct or of law was im- tо conform his conduct to paired as a result of mental disease or the effects of intoxication. age “H. The the time of the crime. participation “I. Whether or accomplice not the defendant was an to the offense and his relatively the commission of the offense was minor. Any “J. gravity though other circumstance which extenuates the of the crime even it is not legal excuse for the crime.” any aggravation was also instructed: evidence “You must not consider as to activity by criminal attempted defendant which did not involve the use or use of force or vio- expressed lence or Which did implied not involve the threat to use violence.” force or
951 Allen, v. the (People this error verdict. affected possibility 1222, any, inconsequential if 3d The of the error 1281.) Cal. impact, in the sentenc as a constitutional defect reasonably cannot be characterized 862, L.Ed.2d 888-889 U.S. ing process. (Zant Stephens 939, 463 U.S. v. Florida 2733]; Barclay 103 S.Ct. see also 1148-1149, 3418].) 103 S.Ct. L.Ed.2d it should jury to the The error here resulted from the instruction as an aggravat- true consider each the circumstances it had found special of special-circum- the found six ing jury multiple-murder factor. Because had true, only single been a special should have allegations stance when there could, base circumstance, jury led the theoretically, have the instruction of number special on the sheer culpability its assessment of defendant’s After consideration rather than the conduct. underlying circumstances case, that the the entire in we that the possibility of record this conclude decision, sheer number may even in on the jury part, have based its penalty true, than on defendant’s con- of circumstances it had found rather special duct, would have jury is far that the suggest too remote and speculative single special reached different verdict it considered the murders as a by the no reference prose- circumstance. Review the record here reveals his penalty- during cutor circumstances multiple-murder special actual number victims argument. jurors were well aware of the phase their factor which aggravating consideration of as an multiple murder state the decision was being the identifies as relevant to particularly penalty for reason believed Only jury were we assume that the some permissible. six they generated multiple- that the murders were heinous because more special-circumstance cross-charging murder the would allegations through the failure limit the to a circum- single special factor multiple-murder in this case was stance result in manner which prejudice. Nothing tried, instructions, basis on affords penalty phase argument and number of which to speculate may that the have been influenced jury conclude, did People We as we multiple-murder special circumstances. Allen, 1222, 1281-1283, harmless. supra, 42 Cal.3d error was the impact
We must in combination with also consider whether this error of the trial the sanity penalty phases of defense counsel’s conduct of mit no evidence in affected the Counsel penalty presented decision. defendant’s plea the trial.36At the trial on igation penalty phase immediately insanity, penalty which guilty by preceded reason of trial, however, psychia of one appointed counsel introduced evaluation sane. His trist even both had concluded that defendant though experts youth, hospitalizations, and presented He had troubled however evidence defendant’s relied, defect, guilt during phase. possible mitigating on which he mental evidence evidence
decision to do than before plea put so rather withdraw for this decision only of a nature. The potentially explanation prejudicial his claim appeal offered that he preserve counsel was wanted *62 testimony, sanity phase error in the denial of a to hear the separate jury the opinion. would of they that he decided to let the make what jurors case, that compe- In not one the circumstances of this this decision was authority tent counsel make reasons. There is no present would for tactical at the jury for the a defendant is entitled to a separate that proposition make a attorney an might of a trial. Even that sanity-phase accepting for an jury lay appellate motion for a in order to a foundation separate no in there was to have such a this case argument seeking right recognized, he wanted evidence defendant was insanе. explanation Counsel’s the of error for and therefore with proceeded the claim preserve appeal, by reason of sanity guilty rather than the of not phase withdrawing plea insanity, this lack evidence would have on whether ignores the impact jury argument. court would consider the merits of the appellate separate read the justify Nor is this the decision to explanation adequate psychia- record, if trist’s into the rather than the as a witness report calling expert on any counsel believed it would offer evidence possible that the expert a verdict returned.37In by insanity might which of not reason of be guilty evi- jury to read the before the electing report jury, placed counsel dence that counsel should be to his client recognized prejudicial have could guilt- at the of the penalty phase. only jury expert’s Not was the reminded testimony very he was phase prejudiced that defendant had stated that Mexicans, scorn for rehabilita- against sanity but at the defendant’s phase tion and if were made known prediction that he would kill released again jury.38 the explains corpus proceeding that he Counsel further in a in the habeas declaration filed any testimony dupli report
read the would expert rather than call the because he believed cative, by reading report he would expert having guilt phase, testified at the and thus county’s money. nothing conclusion that reasoning save time and the to alter our This does competent this was not a tactical decision. way he call off this report following: if he his would included the “He said that had just said he would crap. trip is a of‘S.’ He whole bunch He said he thinks this whole bunch coming get like to it over to him. with and take what go hospi- jail any good, saying he wants to to a “He does not think will do him but he is not jail tal. him. He said is not hard on him but out there is hard on twenty years get probably do the same prison if he will out and “He said that he does thing again. going there. He said he does not understand what is on out half of his life- regularity for more than “He has been institutions off and on with some time, years age. since he was 13 Two, that, one, authority always he does by telling rejects will. up “He sums it me he Three, goes by he is inside or go for rehab the same code of ethics whether bullshit. Four, jail. very prejudiced against Mexicans. outside of he is << jury per- which No limitations were placed purposes At trial. sanity of the phase at the to consider the evidence presented mitted all of should consider they was instructed phase jury penalty deci- their making penalty phases the evidence at the earlier presented would be considered evidence Defendant’s aware that this sion. counsel was prosecu- certainly not overlooked jury, the evidence closing Referring part psychiatrist’s in his to another argument. tor talk about they heard defendant he reminded report jurors he told That is violent conduct he talked to the psychiatrist. “when prior He told robbery, killed in a him that he had the people almost previously [fl] argument, in his junkie.” closing them that he had cut And previously up choose life without advising possibility that it must between *63 death, that the jury psychiatrist reminded the parole the prosecutor conscience, told doctor believed defendant and that he had had no I’m in it again.” out 20 I’d do all over years, “[i]f 10, noon jury shortly April Counsel read before on this report At 2:33 p.m. 1979. The penalty following morning. trial was conducted the 11, 1979, returned of death. April jury its verdicts decision, Counsel’s tactical leading highly prejudi- the introduction by cial evidence at the considered sanity evidence which was phase, in determining range perfor- was not within the penalty, acceptable by attorneys mance criminal defendants. representing
Nonetheless, earlier, omis noted an inexcusable as we have even by sion or that a defend lapse grounds counsel does not warrant reversal on ant received unless the defendant constitutionally inadequate representation 466 Washington, prejudiced (Strickland counsel’s conduct. 29, U.S. 690 41 Cal.3d 695]; Phillips (1985) L.Ed.2d People [80 711 P.2d 423].) [222 a United Supreme Strickland was case. In that States capital decision Court, time, re- first of the constitutional meaning considered the “actual in cases which quirement effective assistance counsel purpose ineffectiveness” The court that because the was claimed. reasoned any trial, forjudging a fair benchmark requirement is to ensure “[t]he claim conduct undermined of ineffectiveness must be whether so counsel’s that the trial cannоt of the adversarial proper functioning process L.Ed.2d relied on as a U.S. at having just (466 p. result.” produced [80 a 692-693].) capital at pp. applies penalty phase The same standard others, rea- safety “I himself danger think remains a to the health included. thinking say sociopathic, impulsive son I this is and acts because I think he is without himself, says fact he himself.” again could commit same toward this offense others or in its like a trial adversari- “sufficiently case since a is sentencing proceeding . . . that decision counsel’s al format and the existence of standards for ensure role at trial—to role in the to counsel’s proceeding comparable result under the just that the adversarial works to a testing process produce (Id. 693].) L.Ed.2d at p. decision.” at 686-687 governing pp. standards [80 therefore, first unless the defendant Reversal of a conviction is not required, deficient, and then actually demonstrates that counsel’s performance showing “This prejudiced. requires demonstrates that his defense was trial, of a fair the defendant counsel’s errors were so serious as to deprive it showings, makes both trial whose result is reliable. Unless a defendant from a break- death sentence resulted cannot be said that the conviction or at unreliable.” (Id. in the that renders the result adversary process down counsel, if professionally “An error even p. 693].) L.Ed.2d at p. unreasonable, of a criminal aside the setting judgment does not warrant proceeding judgment.” (Id. p. if the error had no effect on L.Ed.2d at 696].) p. above, that in do some dispute,
We have concluded and the fell below counsel’s in his defense of respects performance appellant *64 defense counsel. standard to be criminal expected competent, experienced failures Only the second need be addressed here. Did counsel’s question otherwise, trial, said it be that the deny a fair or stated can appellant penalty the adversarial verdicts of death in a breakdown of this case are the result of unreliable? at the verdicts process which renders these penalty phase question . . the is “When a a death sentence . challenges defendant errors, that, the sen- whether there is a absent the reasonable probability court, re- independently to the extent it tencer—including appellate of aggravat- the evidence —would have concluded that the balance weighs v. (Strickland and death.” ing circumstances did not warrant mitigating court 698].) Washington, 466 U.S. 695 L.Ed.2d at supra, “[A] [80 the burden met the must ask if the defendant has making prejudice inquiry likely have been reasonably showing that the decision reached would 698].) at p. different absent the at L.Ed.2d (Id. p. errors.” [80 the United by suggested the standards the Applying techniques and facts of this analysis States the Supreme making prejudice Court for case, Given the this burden. we conclude that defendant has not carried factors, repre- and the quality number of overwhelming aggravating trial, trial was not at the that sentation that counsel did offer penalty process, in the adversarial fundamentally unfair. There was no breakdown but have different that the result would been reasonably likely and it not failings. counsel’s Penalty-phase Claims Other The question penalty. trial on the was at the presented No evidence bore no People counsel that jury prior argument was instructed inapplicable. and that the doubt standard burden of reasonable proof, all of the consider jury instructed the court Following argument, trial, account the into taking during any evidence presented part factors.39 statutory aggravating mitigating
1. Instructions jurors had told argument jury prosecutor
During outweighed circumstances they be if aggravating would instructed argument shall death.” to this says you Referring “it mitigating impose otherwise, say “the law does jury stating court instructed the then you restricting the other.”40 instruction was given shall do one or No evidence jury’s beyond that them to consider the directing discretion No aggravating given circumstances. instruction mitigating this the trial that phase sympathy restricted action the basis of mercy defendant. 36 Cal.3d (Cf. toward v. People Lanphear Easley 680 P.2d 34 Cal.3d Cal.Rptr. 1081]; 309, 671 P.2d to sub had been instructed 813].) prior “in guilt special determining mission of circumstances issues that whether defendant is . . . not be guilty you governed or not must sentiment, mere conjecture, prejudice, opinion sympathy, passion, public at the public feeling,” penalty but no limitation was comparable imposed trial. sympathy As there is no to instruct obligation expressly Allen, may for a Cal.3d (see People considered *65 1222, there no 1276), error in this regard. 39 ante, 35, p. See 950. footnote 40 convey mandatory penal In impression contrast instructions which the that death is a 637, 512, 544, ty (see 440]), (1985) v. Brown 40 P.2d People Cal.Rptr. Cal.3d fn. 17 709 [220 penalty. jury’s appropriate the limit in selecting instructions here did not the discretion the “Now, argument gentlemen, during
The full stated: if instruction ladies and the course you you you any being says impose thought heard the as shall comment about law that it mitigat you outweigh if aggravating sentence death conclude circumstances circumstances, me, ing you impose mitigating—excuse imprisonment without the or shall life you possibility mitigating outweigh aggravating feel that cir parole if circumstances cumstances, you not the applies I tell that’s law that to the case. you go way way may you go this. in which “You use those. As the in which about But the you. you say it one up about And the law shall do or the other. is does in your duty penalties, or confinement “It is to determine of the two death now which prison possibility parole, imposed the defendant. state life without shall be for account all having having all of case and taken into “After considered the evidence in this instructed, you you applicable whether the upon factors which have been shall determine prison penalty imposed in the state on the shall be death or confinement to be parole.’’ life possibility of without
956 Guiding Jury
A.
Discretion
were
claims
that the instructions
constitu-
given
Defendant
nonetheless
by
jury’s
to “channel” the
discretion
tionally
they
because
failed
inadequate
and detailed guid-
the “clear and
standards”
affording
objective
“specific
by
to be
by
required
ance” held
the United States
Court
Supreme
Amendment.
in
language
on isolated
Defendant’s
based
Eighth
argument,
153,
Georgia
in
v.
428 U.S.
198
Gregg
(1976)
the court’s decisions
[49
859, 888-889,
(1976)
v.
428 U.S.
2909],
L.Ed.2d
96 S.Ct.
Florida
Proffitt
242,
913, 923,
first to the
2960],
253
L.Ed.2d
96 S.Ct.
is directed
[49
scheme,
statutory
(former
death
itself
190-
penalty
statute
§§
expressed
He
of this court
190.5).
acknowledges
contrary
conclusion
Frierson,
142,
v.
v.
both
People
25 Cal.3d
and reaffirmed
People
supra,
603,
264,
618 P.2d
Jackson
28 Cal.3d
315-317
Cal.Rptr.
149]
[168
935,
679, 623 P.2d
v. Harris
28 Cal.3d
to do so.
necessity
but
We find no
240],
urges reconsideration.
law in this
Any
regard
issue as to the
of the 1977 death
adequacy
penalty
Pulley
opinion
has been resolved
the United States
Court’s
Supreme
Harris,
L.Ed.2d
where the court said:
42],
U.S.
“By
jury
beyond
find at least one
circumstance
requiring
special
doubt, the
death
to a small subclass of
reasonable
statute limits the
sentence
factors,
cases.
to de-
capital-eligible
statutory
applied
list
relevant
subclass,
fendants
this
within
‘provide[s]
guidance
lessen[s]
arbitrary
Pulley (9th
chance of
of the death
application
penalty,’ [Harris
F.2d,
Cir.
discretion will
1982)]
jury’s
at
that the
‘guaranteeing]
deliberate,’ id,
jury’s
be
and its
1195. The
‘discre-
guided
consideration
suitably
must be
and limited
as to minimize
risk of
tion
directed
so
Its
wholly arbitrary
Gregg,
B. Mandatory Penalty Reference *66 were be inadequate
Defendant that the instructions argues also the interjected prosecutor’s cause the court disregard the admonition to statute, that on argument, imposi based in the 1978 death language penalty if that mandatory aggravating tion of the death was the found penalty jury this and circumstances He that admonition outweighed mitigating. claims way . But the in may the related instruction use . . which “you that those. shall do or you say you about it is . . . the law one go up you does not might, “those” ambiguous. sug- the other” were The latter reference to the aggra- that could consider jury mean either the be understood to gests, the circumstances, could determine jury the that vating mitigating by the in the manner proposed prosecutor. penalty the and some corrected prescience, with disagree. properly We The court reversal that necessitated thereby type and avoided error the prosecutor That in 884-885. Easley, supra, Cal.3d of the penalty free to they that were correctly jury the adequately instruction and advised circumstances but were and aggravating mitigating consider relevant the outcome by upon either based impose not law to required penalty a mechanical weighing process.41 Factors Nonstatutory Aggravating
C. Consideration of to consider jury the instructions also Defendant claims that permitted statute. He reasons that because by factors not authorized aggravating factors, it per- statutory did not instruction mandate consideration of the other them, jury mitted the but also consider only disrеgard instructed nonstatutory disagree. expressly factors. we The Again, jury and consider, take into account determining “you that in shall penalty empha- by” the factors. had also been statutory be This guided obligation and defendant's during by sized both the closing arguments prosecutor created counsel. instruction which defendant now claims clarifying to the earlier only as to this directed ambiguity responsibility clearly by statement the prosecutor. that all evidence
It also urged jury that because the court instructed relied considered, guilt may offered at the might jurors have phase factors, i.e., of defendant's evidence part nonstatutory aggravating force use of or threat to use criminal conduct which did not past involve the however, 190.3, did, instructions (former (b)) subd. its decision. The § be considered. include this factors to advising jury limitation crimi- Any further on the of defendant’s jury’s past limitation consideration for the evidence nal conduct would have consideration of precluded Ms it, which he based for which and purpose upon introduced had been his plea mercy, judgment penalty-phase decision into use, brought affected and that that was “[ejvery incident drug case, whether it be other it be the incident in Modesto or whether prosecutor’s opening penalty- This conclusion is buttressed the fact after the recess, attor phase argument, during the court’s conference with defendant’s counsel it’s man ney argument something advised the of his “if comes out that outset instructions, whatev datory, you your obligation disregard hear be to don’t that in the would dis may something being mandatory your judgment er counsel have use said about cretion.” *67 involved. heavily drugs in was . . . were all situations which
conduct [sic] an effect on . . . do have drugs one the other We cannot erase from somebody mind, . . . he’s not they culpability sometimes affect person’s .” . . . is history, history significant and that that is devoid of a Reasonable Doubt Beyond D. Prior Crimes Proof of that the court claim we defendant’s reject For the same reason conduct criminal in to instruct the that before the failing jury prior erred the crimes penalty, in determining appropriate could be considered stated A of this court doubt. beyond plurality must be a reasonable proven Robertson, 21, 53, rule of People that the in 33 Cal.3d 889], was 457 P.2d Stanworth 71 Cal.2d during penalty evidence jury consideration of other-crimes applicable law. Stan- under the 1977 death penalty of a trial conducted capital phase during penalty a defendant is now settled that worth held “[i]t may jury that the an instruction to the effect of a trial is entitled to phase of such other the commission only evidence of other crimes when consider doubt,” so the court must and that beyond a reasonable proved crimes in Robertson and Stan- crimes sua The evidence of other sponte. instruct Justice factor. as an by aggravating worth was introduced the prosecution Broussard, instruc of Robertson the that on the facts concurring, concluded noted, however, evidence that other-crimes should have been He given. tion trial, among which at a purposes penalty was often admissible for other a mitigating impaired, mental faculties were to show that the defendant’s “there is suggested, Justice Broussard factor. When offered for this purpose, consider that can met before the no doubt standard to be reasonable 61.) evidence.” Cal.3d at (33 p. Robertson is present Justice Broussard exception anticipated by and relied on introduced
here. The crimes was uncharged evidence of He sanity, and penalty. trial—guilt, defendant at all three of the phases testimony guilt phase crimes at in his admitted commission of these during into the record read which he his statements to the psychiatrists reasonably be said that cannot In circumstances it sanity these phase.42 robbery in the disputes admitted the commission Defendant the'conclusion that he Modesto, He that his the victims. claims force directed at John Street Park in or that he used completed been he told only Tyson robbery, after it had testimony initiated his testimo This characterization of purpose.” air “for that the victims to run and fired fact, “get us a ride.” The Tyson ny said he would is inaccurate. In testified - ’’Well, on,” Tyson down” Tyson, then “threw him. [sic drew] then told head and followed bumper of the car. “But head on the he fell and hit his on the victims but was so drunk that know, them, try you them to tell already I told them to tell he like threw down on them. And camper . . . look Tyson got the back of the ground. . . . into to come out and hit the And me, my I head. And told keys them over ing keys. but he threw for some And he threw the *68 has no burden Defendant their commission. must prove the prosecution consid- have might the jury Although standard. under the reasonable-doubt the mitigation than other for a purpose of other crimes ered the evidence evidence, intro- this here that jury the no to instruct obligation court had factor unless defendant, aggravating not be considered duced could in doubt, mitigation could be considered but beyond a reasonable proved Constitution, statutory and nor the our standard. Neither under a lesser re- proceedings the trial of criminal rules judicially governing pronounced by jury. (Cf. made such distinctions metaphysical quires 353, 407 P.2d 63 Cal.2d 265] [“The Aranda not beyond is which ‘a mental jury gymnastic the to upon perform rule calls jury asked the Defendant anybody’s ”].) else’ only their but powers, now be heard may He not offenses. he had committed the prior believe that they did. to complain Factors Statutory
E. to Irrelevant Reference to delete failing erred in next that the court argues Defendant aggravat the instruction on irrelevant factors from mitigating reference to (e), factors (d) He cites in mitigating particular circumstances. ing to the homicidal in or consented whether the victim was a participant conduct, be that the defendant and whether the circumstances were such or extenuated. morally justified lieved his conduct to be argument We not in defendant’s agree implicit do with the assumption statute, instruction, factors. irrelevant that the included given pursuant of defend- While all the the circumstances factors were applicable crimes, the jury they ant’s relevant in the determination were has Legislature in the fact that the penalty. Their relevance lies appropriate of an each in the selection identified of them as a consideration proper jury the attention of The instruction calls appropriate penalty. assists the thereby in
range sentencing of factors considered all capital heinousness of defendant and jury weighing in relative culpability or her offense. the factors that An attention to jury’s instruction which directs the selecting appro- state considers relevant assists particularly people to keys. keys. just and told the get got I turned around him to And he And know, caps over they they two or three jump popped, And I I don’t run. And broke. their heads.” guns in their hands Tyson petitioner that he and both On cross-examination testified talking.” testified they Defendant approached camper, and both of them “did the when peti- dispute was as to whether pocket. The that he took a wallet from the male victim’s back being an ac- dispute as fleeing couple There no tioner shot at the the air. a crime in which robbery that it was participant tive or as to whether he admitted threatened force involved. discretion. jury’s the focus of the *69 by narrowing channeling priate penalty in light penalty the to determine the helps jury appropriate The instruction thereby relevant. The instruction of all the factors which the state considers arbitrarily may be imposed lessens the that the of death possibility penalty 57, 104-105 44 Cal.3d v. Miranda capriciously. (Accord People (1987) 739, 594, 43 Cal.3d 744 P.2d v. Ghent Cal.Rptr. 1127]; People 82, P.2d 1250].) 776-777 739 Cal.Rptr. statutory mitigat any
We with defendant that the absence of agree v. (People Davenport ing aggravating factors should not be considered 794, 247, no 861]), P.2d but 41 Cal.3d 289 [221 it should look to the that suggest jury instruction was here that given might Although at the absence of factors from that mitigating perspective. here, recalling to those that were not applicable referred factors prosecutor go he did not their jury presence, for the evidence that would disprove factor aggravating that their absence was an beyond argue that to approach asked the Rather he properly which militated in favor of the death penalty. for the defendant?” mitigates “do find jury rhetorically, you anything you weigh mitigati jury “weigh aggravating exhorted ng.”43 Penalty
F. Selection Reasonable-Doubt Standard Application of reversed be must be judgment Defendant next that the contends a reasonable beyond must find jury cause the was not instructed that it claim. The reject that doubt We penalty. that death was the appropriate “no burden of jury People trial court instructed the properly jury regard now given We are satisfied that the instructions proof.” by a capital evidence ing obligation any mitigating proffered its to consider of cer high degree with the jurors are adequate impress Since the death tainty juror penalty. a should have before voting impose moral individual juror’s is a judgment reflecting decision normative Allen, v. supra, (see People assessment of the defendant’s culpability neither standard is a reasonable-doubt 1287), Cal.3d application Miranda, also, constitutionally (See People nor appropriate compelled. make one refer opening argument prosecutor did point penalty-phase At one in his suggested that its absence should inapplicable might ence to an factor have to the you must weighed aggravating another consideration as an factor. He stated: “Now is, to this homici participate or consent make connection with this offense did the victims factor, aggravating or your intelligence, it’s either an dal act? I don’t mean to insult but it’s a on, however, example mitigation, the suggest mitigating it’s a He as an factor.” went robbery. return to He did not participation coperpetrator was shot the victim of who object argument. We do not to the “aggravating concept factor” and defendant did not argument prejudicial. deem the to have been either misconduct or 107; Rodriguez, Cal.3d 42 Cal.3d 777- supra, 779.)
G. Other Claims Defendant his earlier claims of error with repeats regard capacity in which Lloyd Doctors Brannan and were and to the admission appointed in evidence at the guilt sanity trials of the statements he incriminating *70 made to these error psychiatrists, urging same errors as penalty phase jury because the was instructed to consider all of the evidence presented during those in He that the phases determining argues also penalty. statements were obtained in his Fifth violation of Amendment privilege self-incrimination, against and asserts in the failure to again error court’s instruct the that the jury statements could not be considered of truth the facts contained therein.
Only the self-incrimination claim differs from
re
those considered and
jected above. Defendant
objection
made no
to consideration
the evidence
of
on this or any other
ground
is therefore
from
its
precluded
urging
admission as error on appeal. As discussed above this omission
appears
have been a deliberate tactical
by
choice
counsel who intended to and did
rely on defendant’s background as
for his
that defend
support
argument
ant’s culpability was affected by intoxication
mental defect.44An
and/or
objection would have
any
been meritless in
event. The
of a
appointment
psychiatrist
1026
pursuant
only
sections
and 1027 made
in
response
the defendant’s entry of a
of
plea
insanity.
reason of
guilty
examination,
defendant,
initiated at the behest of the
is not “compelled”
and Miranda warnings are not required.
Statements made to the
examining
are
psychiatrist
admissible at the
guilt
sanity
of
phases
trial if the defendant puts his mental state in
v. Arcega, supra,
issue. (People
504,
32 Cal. 3d
521.) At the
his mental
penalty phase
again placed
issue,
state
inviting
jury
to reject death as the
appropriate penalty
of his
light
history of mental illness or diminished
capacity. Although
question
admissibility at the
evidence ob
penalty phase
psychiatric
sanity
tained in a
examination was not
v.
Arcega
resolved in
or Estelle Smith
359,
violates neither his Fifth Amendment self-incrimination nor right against his Sixth Amendment right to counsel. Even if the his defendant or counsel is not aware at the time of the all examination of uses possible which his statements might put, they he is on notice that are admissible in rebuttal in such proceedings. (Buchanan Kentucky v. 483 U.S. _ 402, 336, 354-357, 2906, L.Ed.2d 2916-2919].) 107 S.Ct. Defendant next contends that in misconduct prosecutor engaged during opening closing penalty-phase arguments by making law, inflammatory evidence, statements based on facts not in misstating the factors, and making reference to irrelevant thereby “corrupted entire penalty phase the trial.” Not we only disagree do with the assertion that specific portions the argument which defendant cites as misconduct were but improper, we notе that object any defendant failed to aspect argument. Haskett (People (1982) 30 Cal.3d Green, 776]; P.2d 27 Cal. 27.)46The 3d trial court promptly and properly corrected the erroneous statement of the prosecutor *71 the regarding jury’s in obligation and cir weighing aggravating mitigating cumstances. To the extent that any other have part argument might been or misleading it improper, by could have been clarified or a cured Murtishaw, prompt admonition had there been a timely objection. (People supra, 29 Cal.3d 757-758.)
Defendant first cites the prosecutor’s reference to “irrelevant” aggravat- ing and In mitigating factors. his opening argument the listed prosecutor form, abbreviated the 10 statutory by jury factors to be considered the selecting the appropriate and then examined their penalty, relevance pointing or presence absence of evidence to establish the existence of such assumed, factors. As to each he and invited the implication jury to his accept assumption, that the factor was The aggravating mitigating. 46Defendant unreported notes that an conference held at the bench at the close of the prosecutor’s opening penalty-phase argument and deduces that defense counsel made an ob jection at that time. He asserting judge interrupted mischaracterizes the record in that the the prosecutor. clearly The prosecutor record establishes that the had concluded. He asked the jury them, to consider his comments while spoke defendant’s counsel and told them that speak he would again. to them opened argument Because defense counsel with advice to ignore what “something mandatory” had been said being about if the instructions were oth erwise, defendant objected now asserts that counsel must have to all of the “misconduct” he identifies, alternatively now incompetent. equally probable, It is if not more since the conference, judge judge initiated the sought that the himself to correct misstatement as to law, “mandatory” nature of the post. an issue to be addressed Defendant’s assertion that attempts” he has made “several strenuous to ascertain what oc- curred at unreported “several crucial attempts bench conferences” and that such were appears “futile” disingenuous unreported at best. A part settled statement of conferences is transcript record. The proceedings attempt reflects no to obtain settlement of the rec- ord as to this conference. did not that the of a factor or factors argument suggest mitigating absence was itself aggravating.
With the circumstances of the offense the asked regard prosecutor murdered, jurors and the had persons recall three been willful, deliberate, two killings found the to be and that premeditated, robbery. had occurred commission summarized briefly then prosecutor the evidence of violent prior conduct,
criminal that which defendant had in his inter- including described views with examining psychiatrists. factor, to the third under mental or
Referring acting extreme emotional disturbance, the jurors asked the their prosecutor recall deliberations during phase as to guilt impaired capacity, consider the evidence related committed, to the manner and circumstances in which the were killings petitioner’s statement to the officers who him from Arizona. transported remorse,
With respect prosecutor evidence emphasized regarding defendant’s actions after murder Miguel Salvador as Vargas demonstrating lack of remorse. As to whether defendant acted under Tyson, domination of the prosecutor recalled the evidence took planned crimes, in committing lead and had described Tyson as “sniveling.” *72 factor,
The final the whether victims the in or consented to participated acts, homicidal was with dismissed this comment: “I don’t mean to insult factor, your but intelligence, it’s a it’s an either or aggravating mitigat- it’s a scenario, factor.” The ing prosecutor then a suggested robbery in the which victim of a murder was robbery one robbers shot by the resisting victim, as an example by of “consent” felony, to consenting concluding the case, that “in particular insult, this it would seem to seriously insult the mind of any juror say reasonable to that the victims in case this participated in any of acts the that resulted in the deaths of and Miguel Salvador.”
After a brief discussion of the and evidence similar reference to Lourdes Meza’s lack of consent or the the participation, prosecutor then referred to any absence of basis for concluding that defendant believed his acts were morally justified, again suggesting might circumstances in which that factor then present. briefly He summed up by and the mentioning dismissing that, other if factors present, might be considered mitigating—whether defendant awas “mere accomplice,” was under the “substantial domination Tyson, of capacity lacked appreciate criminality of his conduct or mental was capacity substantially any rele- impaired,” whether other possibility, prosecutor
vant factor was In relation mitigating. a He was not was not suggested age, years, mitigating. defendant’s be assessed. but of an in should youngster, age responsibility which by asserting The that defendant argument appar- closed this prosecutor by when asked ently recalling had an intent to kill and evidence that home, officer which came to door of the victim’s person replied. just “He’s a Mexican.” confusing melange somewhat closing argument prosecutor’s
ideas, in defendant’s lack of remorse reflected emphasizing apparent again,47 it years to Dr. if in 20 he would do statement Brannan that released of diminished and the that had been offered rebut the defense evidence capacity. the statu- reference to all 10 of
Defendant first asserts as misconduct the law, and tory penalty factors in of the 1977 death enumerated section 190.3 earlier, out argument based We As we have disagree. pointed thereon. statutory Legis- are that the instructions on all of the factors properly given particu- lature the state believes are has identified as considerations which is It that it larly relevant selection follows penalty. appropriate jury determining in for counsel in to assist the proper argument thereof, factors, it. A capital relevance of lack in the case before those or has been the death jury, lacking penalty the overview of cases which have, by factors range that a with the imposed might is not familiar judge When counsel do which is in such cases. culpability appropriately assessed its relation arguing this summarizing marshalling evidence as the state those factors of the full of factors identified light range relevant, particular able to particularly place is better capital of these If all are made aware defendant’s conduct perspective. jurors directed, factors, their channeled exercise discretion is further penalty death possibility arbitrary capricious imposition *73 Indeed, encouraged by guidance lessened. the this giving jury type U.S. Georgia, 428 Gregg supra, the United States Court in Supreme recognized jury inexperi- that 885], L.Ed.2d where the court and recognize it prop- ence in difficult for sentencing might jurors make there: The court said erly use information relevant to the sentence choice. the regarding be if the jury given guidance will alleviated problem “[T]he argument lacked remorse was prosecutor’s that defendant Defendant claims that the evi support Circumstantial conclusion. misconduct because there was no evidence to that argument among his support which was arguably that dence had been introduced which did Mexican,” de “just and the evidence of police the officer victim was statement to that one killings. the fendant’s conduct after State, orga- the representing defendant that the crime and the factors about decision.” sentencing the relevant to society, particularly nized deems that the participation here statement the prosecutor The single mitigat- aggravating to be either factor had to the homicidal-act consent misconduct appli- as defendant does—as fairly be characterized ing cannot circumstances related every argument emphasized factor. The cable the or involvement any prior relationship and the lack of the crime Similarly, subject argument. Tyson, proper defendant and victims with age in which jury the situation argument age explained about an aggra- age not that defendant’s suggest but did might mitigating, neutral posture. factor in a itself left that argument factor. The vating asked factors the statutory prosecutor After his examination these, Some- you up?” do add these consider how rhetorically: you “So as that there you anything he asked: “Do find time later in his peroration you weigh Weigh aggravating for the defendant? mitigates mitigating. conscientiously ... this list of circumstances you go through
“Now can circumstances you tell us that the mitigating to сonsider and that find outweigh aggravating.” misconduct, into it a reading as assigns argument
Defendant also this factors jury aggravating mitigating that the should suggestion weigh determina- in numerical terms and make the selection a penalty quantitative reversal tion. Unlike the instruction that necessitated Again, disagree. we Brown, law, under the 40 Cal.3d a case tried it must jury mandatory impose here was not instructed in terms that outweighed death if it found the penalty aggravating circumstances mitigating. jury had told the at the
Although argument prosecutor outset law, “if jury something this defense had warned the was the counsel hear that in the mandatory, you that indicates it’s don’t you comes out instructions, may whatever counsel your disregard would be to obligation mandatory your judgment and use being have said about something Then, any corrected mis- after the the court closing argument, discretion.” “that jury jury regard, telling have had understanding might told the is not the to this case” applies expressly law factors, you. it is And way you up use the “the about might go while it v. Easley, say you (Cf. People shall do one or the other.” the law does *74 858, that the with defendant 881-884.) agree 34 Cal.3d We do not supra, the weigh mitigating the weigh aggravating exhortation to prosecutor’s 966 and if this impres-
factors a or numerical implied comparison, mechanical the dissipated sion were left have doubt it was adequately we no court’s instructions. on lack
We the comment reject prosecutor’s defendant’s claim that self-incrimina privilege against of remorse violated his Fifth Amendment tion, is not a statuto that consideration constituted misconduct because may silence factor. on a defendant’s ry aggravating Prosecutorial comment v. (Griffin in some against instances violate the self-incrimination. privilege 106, 1229].) argu 380 85 S.Ct. The (1965) U.S. 609 L.Ed.2d [14 California ment here not, however, indirectly, the atten directly either or call to did testify Vargas (1973) the v. (cf. People tion of defendant’s failure to 15, it 959]), prear Cal.3d 509 P.2d nor was directed Cal.Rptr. [108 an exercise might rest silence in that silence reflect circumstances which asserted the of that This not a in which the defendant privilege. case the psychi He described the crimes to privilege. police. He confessed to atrists, trial, in his in none of his statements about testimony but did no crimes he Comment this omission invaded express regarding sorrow. constitutional or right privilege.48
The as a factor relevant presence absence of remorse was recognized v. (1969) decision Coleman penalty prior under the law (People 1159, 920, it 248]), although Cal.2d is not 459 P.2d Cal.Rptr. [80 The statutorily the 1978 law. among enumerated factors aggravating held in v. 772-773 Boyd court 38 Cal.3d may 700 P.2d not introduce 782], prosecutor that under the 1978 law the statutory evidence factors. Because that is irrelevant to aggravating however, factor, universally remorse is as mitigating a accepted possibly absence prosecutor may call to the attention of the jury apparent remorse in a has another human defendant has admitted that he killed who Ghent, 739, 771.) being. (People 43 Cal.3d It was no further than that. prosecutor’s here went argument construed to accord with the and the has been prior law 1977 statute necessity any juror, reference to a without prohibit consideration references instruction have in mind. The argument, prosecutor’s would rejected theory Supreme advanced defend explicitly The United States Court has ant, privilege against holding having to waive his placing position in the penalty capital testify phase self-incrimination in order or deliver an allocution at may not limit the privilege, and he impermissibly case does not his exercise of the burden fortiori, may only penalty. A not com gives as to effect evidence he to consideration evidence to the guilt-phase plain prosecutor’s on the relevance of other comment compelled unduly penalty privilege because he would decision burdens his exercise of testify (See 402 U.S. 213-217 Crampton it in v. Ohio to waive order to in rebuttal. 711, 729-732, 1454], California.) L.Ed.2d with McGautha 91 S.Ct. decided *75 have done more than hardly defendant’s lack of remorse could apparent call jury’s the attention to that which from the evidence. apparent was nonstatutory
Even were 1977 law construed to reference to prohibit factors lack of remorse aggravating argument at penalty phase, not should be considered in the rule could aggravating selecting penalty, a his decision prevent capital juror bringing knowledge from to bear on gained from his life Court has The United States experience. Supreme indicаted constitutionally that to do so would be impermissible.
“Any decision calls for the exercise of It is neither sentencing judgment. possible nor desirable for a to whom the state entrusts an person important vacuum, judgment to decide as if he had no . . . We experiences. [H] have never that the United suggested requires States Constitution that the sentencing should be transformed into a process rigid mechanical pars- ing of statutory factors. But to aggravating separate the sentenc- attempt er’s decision inevitably from his would do It is experiences precisely that. moral, factual, entirely fitting for the legal judgment judges Florida, jurors to play meaningful role in v. sentencing.” (Barclay supra, 939, 1134, 463 U.S. L.Ed.2d 1144].) [77
The prosecutor’s reference to defendant’s lack of apparent remorse not misconduct.
Defendant next assigns as misconduct comments prosecutor’s victims, to the about jury that this asserting portion argument was an appeal to passion prejudice. objec note there no Again, we tion on this ground, but such In objection would not have been meritorious. fact, the argument to be no more than The idea appeared key low rhetoric. 694, of retribution was not v. put (Cf. Floyd forth. 1 Cal. 3d People 721, 608, 464 P.2d Nor Cal.Rptr. 64].) did the prosecutor appeal racial prejudice seriously otherwise in conduct which threatened engage juror objectivity. (Cf. Bain Cal.3d 848-849 489 P.2d He 564].) asked that the not simply jury forget victims jurors and that the they consider the lives have had. This might Haskett, argument is permissible at the penalty phase. (People Cal.3d 864.)
Defendant also urges that there was misconduct ask prosecutor’s dire, ing jurors to recall their on voir “promise” jurors that if sworn as they would consider of the death if imposition penalty appropri it was ate. We no jurors find error of their reminding obligation penalty phase consider the death This did penalty. argument improperly convey prosecutor’s personal view or belief *76 anwas one. The use of the word “promise”
the case was an appropriate oaths by jurors’ of the assumed the description obligation accurate it the court that was now by consistent with the instruction the subsequent should which of the two “duty” jury possible penalties of the to select imposed. to the alleged the reference prosecutor’s
Defendant also
that
argues
her
finding that
prior
of
Meza was
“rape”
improper
light
Lourdes
attempted perpetra
or
perpetration
murder was not committed
the
during
“intercourse,”
tion
was to
rape.
during argument
of
actual statement
not, however,
by this
like that condemned
rape. This reference was
Haskett,
jury
that the
Because we conclude there was no prosecutorial further need not consider defendant’s we argument, penalty-phase such for objection necessary appeal review claims no preserve case; that capital of a penalty phase misconduct when it occurs during curb the by failing to intervene to trial court denied defendant fair trial defendant’s argument to consider the opening penalty-phase his counsel asked the In intoxication, mind, referred to “capacity,” it was affected and whether state which, said, “drugs important factor.” were report of Dr. Brannan had concluded object establishes misconduct; defense counsel’s failure asserted or that constitutionally representation. ineffective Modification
Motion *77 190.4, every “In case in which (e), provided: Former section subdivision the death finding penalty, a verdict or imposing the trier of fact has returned modification have made an for application the shall be deemed to 1181. In of Section (7) to subdivision finding pursuant of such verdict or evidence, consider, take shall review the judge on the the ruling application account, circum- the and by aggravating mitigating into and be guided 190.3, and shall make an determi- independent stances referred to in Section jury’s findings the evidence the supports nation as to the of weight whether The findings. flj] record the reason for his and verdicts. He shall state on the and direct ruling the reasons for his on the judge application shall set forth minutes, The denial of the mo- they be entered on the Clerk’s [fl] of Section verdict to subdivision pursuant dification of death penalty automatic appeal pursuant shall be reviewed on the defendant’s of the shall be (b) granting application subdivision of Section 1239. (a) of subdivision reviewed on the people’s appeal pursuant paragraph 1238.” of Section
The trial court for in a four- denied defendant’s modification application after for denial from the bench.50 ruling, orally stating the reasons page considering stating procedural background, ruling applica After the the “In the recited: tion, evidence, has the and taken account the evidence Court reviewed considered into offense, true, by upon special jury aggra each and each circumstance found to be and the vating mitigating in and circumstances referred to Penal Code section 190.3. multiple gunshot in wounds on each “The three deaths this case occurred as the result of decedent, by inflicted all Defendant. Merced, co-defendant, Tyson, more “Defendant Williams and traveled from Galt to his miles, killing of purpose robbing and the three decedents. The home than 75 for the stated easily Tyson inquiries, appropriate was not made found decedents found. Williams guests depart- guests. After place and visited with the three decedents and their three ed, Tyson pur- accomplish in a minutes to their intended Williams and left but returned few pose. certainly by quarrel, passion, no heat of none aroused the conduct or words “There was no Wil- apparently Blows were struck on at least one of the decedents either victims. Tyson Miguel liams before and Salvador were killed. or kidnapped. purse was taken Williams. She was re- “Thereafter Lourdes Meza was Her traveling place which she was quired to acts of sexual intercourse while to submit Unclothed, placed She was into a field. she was on her hands and knees. killed. She was taken days body body Her was left in the field. The was discovered five later. shot four times. prison. previously been to the CYA and “The defendant has committed shots, though people. stealing camper presumably he fired not at “In Modesto mentally emotionally “The disturbed at the time of commission Defendant was Tyson Migu- (He unhappy failing weapon to take a from these offenses. said he was with el.) considered judge the motion the denying
Defendant now contends that determination. contrary to the factors to the evidence irrelevant penalty In first court’s statement argues of this claim defendant support sexual intercourse that Lourdes Meza “was submit to acts of required to the contrary killed” traveling while at which she was place having evidence because he was circumstance acquitted special commission attempted committed that murder the commission during rape. Tyson testimony kidnapped
Defendant during admitted Meza, her out of car he attempted get slapped Lourdes that when she backseat, inter- he had sexual Tyson knocked her into the and that find special with instructed that to course her thereafter. The to find that: true it had rape circumstance of murder the commission *78 two, “One, willful, that and premeditated, that the murder was deliberate the commission of the act during the personally present was death, death, and, three, defendant, that with intent to cause causing acts and, four, at- that commission or during the murder was committed the of a commission tempted rape.” if the took argument jury rape
In the prosecutor explаined only during took the commis- place place the car the nevertheless killing if because the victim yet sion of defendant had not reached a safe haven rape foreman, the jury, through the present. During jury still deliberations not certain in our as to the relevant time “We’re period, stating: inquired of as to of to the occurrence minds what time we must consider as period she the be time the crime actually whether it must done at the of when rape, they point murdered the of time left Merced to the period or from when of the occurrence.” in the felony on murder
The court reread to the jury then the instructions in- of the circumstance special commission No. and rape (CALJIC 8.21) is above (CALJIC quoted struction No. the of which 884.3), latter conduct. participants in the homicidal “The victims did not consent and were he was reasonably to have believed “No circumstance could have the Defendant caused morally any justified killing of victims. the leader, Tyson. Mr. “The Defendant was the not a follower of about, enough life. enough young appreciate “The Defendant is old know The only by of explanation given dislike Mexicans.’ “The the Defendant was ‘intense acts were cruel and calculated. emotionally during trial. “The the entire Defendant was calm trial, during the the “Having foregoing the and all evidence received considered all of other any modify ver- of the several ample support there no reason Court finds is evidence to killing people and Particularly, of three jury. in view the intentional dicts rendered of modify might again, finds no reason to do the Court statement the Defendant that he it jury penalty should death.” finding for each offense verdict during the com- murder was committed that “the includes requirement for a copy foreman asked of a The rape.” mission or commission attempted No. read CALJIC the court again instruction and felony-murder did not occur that the murder finding then returned verdicts jury 8.21. finding rape special or as a result of the commission during rape untrue. circumstance evidence rejected that the jury
It is clear this of events sequence from commission or attempted murder occurred the commission during It is rape. commission of as a the commission or attempted result of rape any If no necessarily rape. found there had been jury not clear that had been a rape, that the did believe there inference it is possible, in relation thereto the time of the murder otherwise about question do not establish have been Inasmuch as the verdicts superfluous. would however, it is permissible we need not decide whether acquittal rape, draw such inferences. of his prior
Defendant also to the court’s consideration objects the commitment Authority commitment to the Youth grounds offense, theft of threats of force. motorcycle, did not involve force or have merit should not There is to defendant’s claim that this commitment relevant the factors enumerated any been considered. It was not *79 In factor. only 190.3 and have been considered an aggravating section could not consider the the context the it is clear that the did ruling judge the underlying only establishing possibility offense for its value in probative that defendant suffered from mental disease or defect.
Nonetheless, this minor offense we cannot conclude that consideration of numerous other by a who had reviewed all of the evidence and recited judge “ample factors in was found ruling judge substantial his prejudicial.51 tied his determina support evidence” to the verdicts of death and expressly an “intention modify the to the fact that there had been tion not verdicts it do by “might al of three a defendant who had stated killing people” in consid any We are error beyond satisfied reasonable doubt that again.” We do not Youth commitment harmless. Authority the was ering during that the court’s reference to defendant’s calm demeanor agree remorse, or other may trial A demeanor reflect improper. was defendant’s jury jury, wise arouse in either Because sympathy judge. Mo robbery Street Park in Defendant also claims consideration of the in the John beyond doubt that defendant
desto was error because the had not found a reasonable evidence merit for the above—the committed that offense. This claim lacks reasons discussed decide, therefore, apply by judge must was introduced defendant. We need whether jury in its deter proof ruling on a motion for modification as does the the same standard in appropriate рenalty. mination of the death, modify permitted in whether to verdict of must be
judge deciding (People any mitigating to consider evidence that is relevant and potentially 167), appropriate Cal.3d this is relevant to Lanphear, supra, consideration. court not have considered irrelevant
Defendant’s claim should factors, he neces- statutory and his that in them absent finding suggestion reasons above. sarily lacks merit for the discussed aggravation found the factors the state considers particularly Awareness and consideration of review- less in judge relevant decision is no penalty important ing jury’s jury. decision than to for his only
Defendant also attacks the court’s recital that the explanation claims, This, he is by conduct offered defendant was his hatred of Mexicans. inaccurate which among as defendant offered several other explanations, accept were find no The court did not drugs impropriety. and alcohol. We there Although defendant’s evidence alcohol intoxication. drug and/or kill killing, robbery, willingness was another motive defendant’s We do not influenced dislike of Mexicans. cannot and clearly his belief in any the court to blind itself to this whether require determining justification moral other factor was mitigating present.
Proportionality Finally, death defendant claims that the penalty disproportionate offenses, his background, personal offenses facts of the light claim, This characteristics. made that the decision anticipation Pulley 1982) Court of for the Circuit in Harris v. Cir. (9th Ninth Appeals be given 692 F.2d would control the review to type proportionality Harris, court, Pulley 37.) this 465 U.S. premature. (See constitutionally Although we believe that review is not proportionality *80 have, we as Rodriguez, 778), mandated 42 Cal.3d (see People do, We the court in noted would the record. have Pulley we reviewed multiple concluded that the evidence circumstances supports special murder, in the commis- robbery, murder the commission of and murder We no affected the sion of have also concluded that error kidnapping. circumstances, No basis sanity, penalty. verdicts of guilt, special dispropor- to in this is which conclude the death case appears upon penalty to the United States Eighth tionate otherwise violates the Amendment I, 17 of California Constitution. Constitution or article section and the to is discharged The is affirmed. The order show cause judgment is denied. corpus for writ of habeas petition Lucas, J., Panelli, J., J., concurred. Arguelles, C. that there I am of the
MOSK, J. judgment. opinion concur in the I spe- to that the going guilt, multiple-murder occurred no error prejudicial valid, that there occurred finding unquestionably cial-circumstance is no error to prejudicial going penalty. cannot, however, I with disagree
I in the of the court: join opinion findings felony-murder majority’s special-circumstance conclusion that the are valid. with, felonious
To I believe that advancement of an begin independent as felony-murder circumstance special is element purpose felony- have been instructed on in connection with each of such should We held as much murder circumstances this case. alleged special to 61-62. choose not majority v. Green 27 Cal. 3d People (1980) view, and, in cannot do so. my this dispute point simply Further, conclusion, I that failure contrary majority’s to the believe subject instruct on the element not independent-felonious-purpose and that on record the error cannot general analysis, harmless-error this My held reasons are as follows. nonprejudicial. P.2d (1988)
In
v. Kimble
In none of the is available on this record: opinion, exceptions felony-mur- erroneous instruction was in connection with each of the given second, did true; der special-circumstance allegations found to be third, not concede the issue of felonious the issue independent purpose; other, in- him necessarily adversely properly given resolved under structions—indeed, it not even consideration. presented jury’s summary, failing
In I would conclude that the trial court erred felony-murder instruct on felonious with independent purpose regard rec- I would further that on this allegations. conclude special-circumstance *81 allegations ord the error cannot be deemed harmless with respect found true.
Nevertheless, is unques- since the circumstance multiple-murder special valid, fact and been established. In view of that tionably death has eligibility in the absence of prejudicial error at guilt I am penalty phase, to concur in the compelled judgment.
KAUFMAN, J. Notwithstanding the numerous trial errors and defects identified in the majority I have opinion, concluded that on the basis entire record there is no reasonable possibility that absent these errors and defects, the jury would have reached determinations more favorable to convictions, defendant. I therefore concur the judgment affirming circumstances special as findings modified and the penalty of death.
Broussard, J., concurred. 9, 1988, Appellant’s petition rehearing May denied and the was modified to opinion read as printed above. trict who states that notes prosecuted petitioner his first advice from the time of rights to his Miranda petitioner regarding arrest, any discussing about hesitancy and that never indicated petitioner authorities, authorities, Tyson and what he had done with Arizona Merced Karen, police review of the petitioner’s and girlfriend. prosecutor’s made Karen do not reports at the time of and statement of the arrest Tyson support the search of the by contention that an unlawful petitioner to induce her any home took were made place threats improper statement and cooperation. 28, 1978, A second the November transcript exhibit an unofficial commenced at interview of interview Arizona officers. The the outset his a.m. and concluded at 4:17 a.m. advised at Petitioner was him; used right against to remain silent and that he could be anything said he while attorney, had a to have present he consult with an one right if he questioned, questioning and to have one before being appointed one; any his rights could not afford to hire and that he could exercise argue Tyson investigat Karen 16Defendant does not that the statement attribute untrue, ing probable arrest Karen. officers was or that there was no cause to her, “implied” from a threat no Defendant escalates an threat to take Karen’s children record, threat, coop argues her where mentioned in the into an actual basis involuntary. eration Peti- statement. any make or to any time decline to answer questions his statement. making this before that he understood tioner stated the trial transcript from the excerpt reporter’s The third exhibit is an that he Tyson confirmed crime in which Tyson, partner, petitioner’s did not she said that Karen who himself and contacted give up decided to a detective with her to touch get run. He instructed want to therefore no basis upon find we Again, in Stockton. had met the sheriff’s office exclude this motions made meritorious which counsel have might evidence. Criminal Conduct D. Evidence Prior Convictions and guilt at the of counsel his final of errors or omissions “example” As object of counsel to the failure defendant directs our attention phase, con defendant’s of evidence of admission for the purpose impeachment theft, state vehicle across victions for of a motor motorcycle transportation lines, deadly weapon, his arrest for assault with a or conviction escape. record pursuant A settled statement was and made prepared part As motion of defendant. 36(b) to rule of the California Rules of Court on counsel, it recites: judge, executed his trial and the trial prosecutor 313, 492 Beagle (99 Cal.Rptr. “7. A 6 Cal.3d [People Beagle (1972) trial made, because of the motion filed 1)] objection P.2d was not nor was
Notes
notes injury accident, motorcycle of a head in 1968 in a and another in 1977 while at the Federal Institution, Correctional explosion and a concussion in 1973 from a bomb which resulted ear, partial hearing loss of sequela.” one “no 190.3, (CAUIC This 8.88.1), given instruction language No. in the of former section di factors, rected the following consider the applicable: if “A. The circumstances of the crime present of which the defendant convicted in the proceeding any and the special existence of circumstances found to be true. presence “B. The activity by or absence of criminal the defendant which involved the use attempted use of expressed implied force or violence or the threat to use force or vio- lence.