S189373
IN THE SUPREME COURT OF CALIFORNIA
June 8, 2023
Riverside County Superior Court, RIF079858
Justice Corrigan authored the opinion of the Court, in which Chief Justice Guerrero and Justices Liu, Kruger, Groban, Jenkins, and Evans concurred.
Opinion of the Court by Corrigan, J.
Defendant Lester Harland Wilson tortured and killed Uwe Durbin. In the process, he kidnapped Uwe1 and his family members and raped the girlfriend of Uwe’s brother. A jury convicted him in 2000 of first degree murder, two counts of forcible rape, and enhancements for personal use of a firearm.2 Finding true special circumstances for committing murder
Following a retrial in 2010, defendant was again sentenced to death. We affirm this judgment.
I. BACKGROUND
A. Prosecution’s Aggravating Evidence
1. Underlying Offenses and Special Circumstances
Uwe Durbin was struggling financially in 1997 and lived at the homes of various friends. He stayed for a time with defendant and his wife, Barbara Phillips.4
Defendant suspected Uwe had stolen his television. On the morning of June 8, 1997, defendant and Phillips went looking for Uwe at his brother’s apartment. When Mike Durbin opened the door, defendant put a gun to his head and pushed his way inside. Phillips followed. Mike’s girlfriend, Lisa R., was there, along with their infant son and Lisa’s two older children. Defendant demanded to know where “his stuff” was and where he could find Uwe. Mike did not know what he was talking about and did not reply.
Still pointing the gun at Mike’s head, defendant ordered the entire family to leave with him. Defendant and Mike got into Mike’s car; Lisa and the children joined Phillips in her car. As Mike pulled out of the carport, Uwe walked up. Defendant jumped out and confronted Uwe about the television. After Uwe denied all knowledge of it, defendant fоrced him into the backseat of Mike’s car. The two cars were driven to defendant’s house.
Everyone assembled in the living room, where defendant and Phillips demanded that their property be returned. When Uwe maintained he had taken nothing, defendant shot him in the knee. Mike rose from the couch but stopped when defendant pointed the gun at him. Mike asked if his family
Defendant bound Uwe’s hands and legs with duct tape then left with Mike to reclaim the television. Retrieval efforts were unavailing. Defendant returned to the house, gave the gun to Phillips, then left again, leaving Phillips to guard the family. Mike asked Phillips to let them go, but she responded angrily that they were all going to die.
Defendant returned with three men. He rolled plastic sheeting over the bedroom floor and all four men took turns beating Uwe, hitting him with steel weights and choking him with a chain. After about an hour, the men emerged laughing. They were covered in Uwe’s blood and dripping with sweat. One of the men said Uwe and Mike’s family all had to die. Lisa and Mike begged to be released, promising to pay for the television or give the men anything they wanted. When Mike offered his life in exchange for his children’s freedom, he was brought into the room with Uwe and bound to a chair with duct tape. Blood and tissue covered the walls and floor. Uwe had been so severely beaten that he was unrecоgnizable. He was still breathing and occasionally moaned in pain. The men resumed the beating, forcing Mike to watch. At one point Uwe was forced to drink urine from a cup. Defendant brought his pit bull into the room, and, when the dog would not attack Uwe, defendant became angry and beat the animal with his fists. He choked Uwe with the dog’s collar and burned parts of Uwe’s midsection with a blowtorch. Someone poured bleach over the wounds. Beyond an occasional moan, Uwe no longer reacted to the torment.
The men said they were going to let Lisa go and brought her and the baby into the room to say goodbye. Lisa and the children left with Nicole Thompson, a friend of the men assaulting Uwe. While Lisa and the children were held at Thompson’s house, defendant arrived. He took Lisa and the baby to a nearby park but would not let the other children join them. Telling Lisa she “needed to give him some assurance that [she] wasn’t going to say anything,” defendant raped her. He said her family would be released but “Uwe wasn’t going to be leaving.” They picked up Lisa’s older children and returned to defendant’s house. There, defendant and Phillips argued about how to proceed. Phillips did not want to let Mike’s family leave, but defendant protested, “ ‘Well, what are we going to do with all these bodies?’ ” Lisa heard the sound of a blowtorch and Uwe screaming.
Defendant sent Mike away with Phillips to look for a bicycle. By that point, the other men had left, and defendant was alone in the house with Lisa
Phillips ordered Lisa to clean up bloodstains in the house. Defendant and Phillips then drove away with Uwe, telling Mike and his family to leave in their own car. Mike and Lisa ultimately called the police.
The next morning, Uwe’s body was found in a concrete drainage ditch along the 91 freeway. There were bloodstains on a guardrail and a length of bloody, knotted rope lay near the road’s shoulder. Four .380-caliber bullet casings and one intact bullet were found near the body.
A search of defendant’s house revealed numerous blood smears and drippings, bloody gloves, a roll of plastic sheeting, and torn pieces of duct tape. There was a hole in the drywall surrounded by blood and hair, with a bottle of bleach nearby. A half-empty box of .380 bullets was found inside a purse. Several pieces of bloody cloth and bits of duct tape were found in defendant’s car, along with seven live .380-caliber rounds in the glove box.
An autopsy revealed that Uwe’s body was riddled with injuries. He had sustained multiple blunt force injuries to his face, head, and body. His ribs, skull, jaw, nose, and other facial bones were fractured. Teeth that had been knocked out were found loose in his mouth. A ligature mark on his neck was consistent with strangulation by a chain. A shoe imprint on his back was consistеnt with “stomping.” It was also possible he was burned. Uwe had been shot in the head five times at close range. A .380-caliber bullet was extracted from his knee.
2. Victim Impact
Mike and Lisa’s relationship did not survive the trauma of the incident. Mike became angry and abusive, suffering nightmares and replaying the events in his mind. Lisa’s life went into a “downhill spiral” and was never the same after the incident. Even ten years later and after two and a half years of counseling, she still had nightmares and was afraid of people. The children were also traumatized. The oldest child was removed from the home because he had violent episodes and ran around the house stabbing things with a knife. Mike missed Uwe, his only brother.
Uwe’s mother, Helga Durbin-Axt, described his childhood in West Germany. Uwe had an older sister and was especially close to his brother Mike.
3. Prior Crimes
Katri K. met defendant soon after she came to the United States from Finland in 1992. She was 21 years old. Once they began dating, she lived with defendant and his mother. Katri and defendant had violent arguments during which he assaulted her. During one argument, he choked her into unconsciousness. After another violent quarrel, defendant hit, raped, and sodomized her. The next day, a friend took Katri to the hospital, where she was interviewed by police. Katri eventually returned to Finland.
In 1996, a couple reported that their car had been shot at by someone in another car. Both identified defendant as the shooter, but neither was willing to so testify.
B. Defense’s Mitigating Evidence
Defendant presented extensive evidence of his difficult upbringing. He was conceived when his mother, Marsha, was raped at age 12 or 13 by a family friend. His father eventually married Marsha, had another child with her, and moved the family from Indiana to Los Angeles. Defendant’s father physically abused Marsha, who frequently ran away with the children. Once, his father choked Marsha and said she would not live to see 18. She eventually divorced him and married defendant’s stepfather, Michael Woodson.
Woodson was a criminal and a drug addict. He and Marsha made money from credit card fraud, sometimes enlisting defendant to help them. There were guns and drugs in the house. When defendant was 10 or 11 years old, Woodson began beating him with his fists. He was once jailed for domestic violence. When defendant was a teenager, Woodson was accused of murder. He was tried three times and ultimately acquitted. Defendant was interviewed by the police and had to testify at Woodson’s trial.
During this period, Marsha frequently sent her children to Indiana to be cared for by their grandparents. As a result, defendant attended ten different schools in Los Angeles and was placed in special education classes due to his behavioral problems and difficulty reading. His third-grade teacher reported that he had 21 absences, was frequently late, and did not get along with
Several children, both relatives and foster children, lived with defendant in his grandparents’ home. They were disciplined severely for even minor transgressions. Defendant’s grandmother whipped the children with various implements and sometimes locked them in a small furnace room. One child was forced to sit in the hallway with a urine-soaked sheet over her head and had her hand held to the furnace flame. Another was hit on the head with a butcher knife. A third was forced to eat on the floor.
A substantial amount of penalty phase testimony described the misdeeds of defendant’s biological father, Lester Wilson, Sr. (Wilson), although it is unclear how much time defendant spent with him. Defendant and his sister were not allowed to visit their father but sometimes skipped school and went to his house. During one visit, Wilson got defendant drunk, then tried to molest defendant’s sister. Wilson sexually abused one of defendant’s half-sisters when she was 12 and violently raped her when she was 16. He sexually abused another half-sister, took her along on a drive-by shooting, and once appeared to kill a man in front of her. He later went to prison for murdering a woman who was pregnant with his child. Defendant’s half-sister testified that Wilson had picked her up and taken her to a McDonald’s while the woman lay dead in the car.
Several family members expressed love for defendant and stayed in contact with him while he was in prison. His grandmother frequently sent photos of defendant’s 15-year-old daughter, whom she was raising. The daughter often wrote and visited defendant in jail and prison. He advised her to stay in school, pursue a career, and not repeat his mistakes. A half-brother, 25 years younger than defendant, described happy moments and testified that defendant helped him with reading and homework, drove him to football practice, and attended his games. Defendant continued to give him advice from jail, serving as a kind of surrogate father. Similarly, a half-sister, more than 20 years defendant’s junior, frequently sought his advice about life, parenting, and relationships.
II. DISCUSSION
A. Double Jeopardy
Defendant contends this penalty retrial violated state and federal constitutional protections against double jeopardy. The claim is contrary to settled law. Because defendant’s original death judgment was reversed for legal
1. Background
Defendant’s first jury returned a death verdict. On automatic appeal, he argued the trial court erroneously dismissed a juror during penalty phase deliberations. We agreed and reversed the penalty verdict while upholding the guilt judgment. (Wilson, supra, 44 Cal.4th at p. 842.) Briefly stated, the facts concerning the penalty reversal are as follows.5
Juror No. 5 was the only juror in the previous trial who, like defendant, was African-American. (Wilson, supra, 44 Cal.4th at p. 813.) He joined the unanimous jury in convicting defendant on all counts in the guilt phase. (Ibid.) During penalty phase deliberations, Juror No. 5 had initially leaned toward the death penalty but later announced he had changed his mind and favored a life sentence. (Id. at p. 814.) He became the sole holdout for life imprisonment. (Ibid.) The next day, Juror No. 1 sent the court a note accusing Juror No. 5 of misconduct for considering facts not in evidence, discussing the case with a juror before deliberations, telling other jurors they could not understand his position because they were not Black, and refusing to follow the court’s instruction that death is a penalty worse than life imprisonment. (Id. at pp. 815–816.) After discussing the note with counsel, the court examined each juror individually then made a detailed ruling. (Id. at p. 816.)
First, although Juror No. 5 had said in voir dire that he would ignore race in reaching a decision, the court recalled that the juror’s demeanor was evasive. (Wilson, supra, 44 Cal.4th at p. 817.) Second, the court credited Juror No. 1’s account of hearing Juror No. 5 say, after Mike’s guilt phase testimony, “ ‘ “How can you hold someone responsible for their actions?” ’ ” and “ ‘ “This is what you expect when you have no authority figure.” ’ ” (Ibid.) Third, the court found that Juror No. 5 made a number of statements during penalty deliberations referencing race and asserting other jurors could not understand evidence about defendant’s background because they were not Black. (Id. at p. 818.)6 Finally, although Juror No. 5 may have made statements to the contrary, the court was satisfied that the juror could follow the instruction stating death is a worse punishment than life imprisonment
basis, and improperly considered race and racial stereotypes in violation of the instructions. (Id. at pp. 819–820.) It dismissed the juror for misconduct. (Id. at p. 820.)
The next day, Juror No. 5 was replaсed by an alternate, Juror No. 17. Shortly after deliberations resumed, the jury sent a note informing the court that the new juror “is unable to give the death penalty” and “feels very strongly about this.” When questioned, Juror No. 17 explained that his views on the death penalty had changed over the course of the trial. He now realized his “conscience and the law conflict,” making it impossible for him to vote for the death penalty. His view was based not on the circumstances of this particular case but on his strongly held religious beliefs. He explained that he had weighed the aggravating and mitigating evidence but found himself incapable of imposing the death penalty due to feelings grounded in his Catholic faith. The court found him disqualified, excused him, and replaced him with another alternate. The next day, the jury returned a verdict fixing the penalty at death.
We concluded the trial court erred in dismissing Juror No. 5. The record did not establish that the juror had intentionally concealed information, and any unintentional concealment of his views did not render him unable to perform his duty as a juror. (Wilson, supra, 44 Cal.4th at pp. 823–824.) “Juror No. 5’s particular view of the evidence, refracted through the prism of his own experience as an African-American man who had raised a son, showed neither a refusal to deliberate nor an inability to perform his duty as a juror to a demonstrable reality.” (Id. at p. 824.) Nor did the juror improperly rely on facts not in evidence. Rather, he merely relied “on his life experiences to interpret the evidence presented.” (Id. at p. 825.)
Interpreting evidence based on a juror’s own life experiences, we explained, is not misconduct in the penalty phase of a capital trial. (Id. at pp. 830–831.) Finally, the record demonstrated that Juror No. 5 could follow an instruction to treat death as the most severe penalty (id. at pp. 834–836) and did not establish that the juror had prejudged the penalty question (id. at pp. 840–841). Although discharging Juror No. 5 did not affect the guilt verdict, it required reversal of the penalty judgment. (Id. at pp. 841–842.) This disposition rendered it unnecessary for us to address defendant’s claim that the court also erred in dismissing Juror No. 17. (Id. at p. 841, fn. 19.)
After the remittitur issued, defendant filed a motion asserting that constitutional double jeopardy principles barred the prosecution from retrying the
2. Discussion
The Fifth Amendment of the United States Constitution states that no person shall “be subject for the same offense to be twice put in jeopardy of life or limb.” (
“At its core, the double jeopardy clause ‘protect[s] an individual from being subjected to the hazards of trial and possible сonviction more than once for an alleged offense.’ (Green v. United States (1957) 355 U.S. 184, 187.) The policy underlying the double jeopardy protection ‘is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual . . . thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity.’ (Id. at p. 187.)” (Eroshevich, supra, 60 Cal.4th at p. 588.)
Whether double jeopardy principles bar a second prosecution depends on how the first trial ended. “An acquittal is accorded special weight.” (United States v. DiFrancesco (1980) 449 U.S. 117, 129 (DiFrancesco).) “The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal” (Arizona v. Washington (1978) 434 U.S. 497, 503), because permitting a second trial, “however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty.’ ” (United States v. Scott (1978) 437 U.S. 82, 91 (Scott).)
The result may be different if the first trial ends in a conviction that is later overturned. “It has long been settled . . . that the Double Jeopardy Clause’s
A settled exception to this rule permitting retrial after a successful appeal occurs when a conviction has been reversed due to insufficiency of the evidence. (DiFrancesco, supra, 449 U.S. at p. 131; see Burks v. United States (1978) 437 U.S. 1, 16.) “When the evidence is legally insufficient, it means that ‘ “the government’s case was so lacking that it should not have even been submitted to the jury.” ’ ” (Eroshevich, supra, 60 Cal.4th at p. 591Lockhart, supra, 488 U.S. at p. 40.) “While the former is in effect a finding ‘that the government has failed to prove its case’ against the defendant, the latter ‘implies nothing with respect to the guilt or innocence of the defendant,’ but is simply ‘a determination that [he] has been convicted through a judicial process which is defectivе in some fundamental respect.’ ” (Ibid.)
In Hernandez, supra, 30 Cal.4th 1, we considered how these principles apply when a conviction has been reversed due to the improper discharge of a seated juror. Near the end of Hernandez’s trial for child sexual abuse, a juror
We granted review and disagreed with the Court of Appeal’s double jeopardy holding. (Hernandez, supra, 30 Cal.4th at p. 6.) Our analysis began with the general rule that “the double jeopardy guarantee imposes no limitation on the power to retry a defendant who has succeeded in having his conviction set aside on appeal on grounds other than insufficiency of evidence.” (Ibid.) If sufficient evidence exists to support a conviction, we noted, retrial does not oppress the defendant but provides a renewed opportunity for the defendant to obtain a fair trial free from error. (Id. at p. 7; see Lockhart, supra, 488 U.S. at p. 42.) Moreover, as the high court had observed in DiFrancesco, supra, 449 U.S. at page 131 and United States v. Tateo (1964) 377 U.S. 463, 466 (Tateo), “it would be a ‘ “high price indeed for soсiety to pay” ’ if reversible trial errors resulted in immunity from punishment.” (Hernandez, at p. 8.)
Policy concerns raised by Hernandez and the Court of Appeal did not support a departure from this rule. Cases discussing a defendant’s “ ‘valued right to have his trial completed by a particular tribunal’ ” (Crist v. Bretz (1978) 437 U.S. 28, 36 (Crist)) simply concerned the rule that jeopardy attaches when a jury is empaneled and sworn (see id. at p. 35). Other cited cases considered the double jeopardy consequences of granting an unnecessary mistrial (see Stone v. Superior Court (1982) 31 Cal.3d 503, 516, abrogated in part by Blueford v. Arkansas (2012) 566 U.S. 599). (Hernandez, supra, 30 Cal.4th at p. 8.) The cited cases did not stand for the broad “proposition that [a] defendant becomes immune from further prosecution merely because one particular juror is improperly discharged, an alternate substituted, and an actual verdict duly entered.” (Ibid.) An alternate juror is, after all, part of the same jury selected by the defendant. (Id. at p. 9.) Thus, even if it is unauthorized, substitution of a regular juror with an alternate does not deprive the defendant of his chosen jury. (Ibid.) Nor were we persuaded that the discharge of Hernandez’s juror gave the prosecution “any concrete advantage” (ibid.), considering the juror’s assurances that she could be fair to both sides. Finally, we discounted the Court of Appeal’s fear
Accordingly, we held that “error in discharging a juror should be treated no differently from any оther trial error leading to reversal on appeal, such as prejudicial instructional or evidentiary error or ordinary prosecutorial misconduct.” (Hernandez, supra, 30 Cal.4th at p. 10, italics added.) In view of the clear and settled law “that, as a general rule, errors other than insufficiency of evidence do not preclude retrial following reversal of conviction” (ibid.), we concluded double jeopardy principles did not bar retrial (id. at p. 11). A concurrence by Justice Werdegar urged a narrow construction of this holding. She observed that the double jeopardy consequences of the error might have differed “had the trial court dismissed more than a single juror, had it not replaced the discharged juror with a sworn alternate, had the court reopened voir dire and permitted additional peremptory challenges, or had the court’s purpose in discharging the juror been to influence the verdict.” (Id. at p. 13 (conc. opn. of Werdegar, J.).)
We have not previously addressed whether Hernandez applies to retrial following the improper discharge of a juror from the penalty phase of a capital trial. Forty years before Hernandez, People v. Hamilton (1963) 60 Cal.2d 105, disapproved in part in People v. Daniels (1991) 52 Cal.3d 815, held that the erroneous dismissal of a juror during a capital trial’s penalty phase warranted reversal. Although mindful of the time and expense a new penalty trial would likely involve, we remanded with specific directions that such a retrial be conducted. (Hamilton at p. 138.) The issue of double jeopardy was not raised or addressed, however. More recently, People v. Armstrong (2016) 1 Cal.5th 432 held that the improper removal of a juror during guilt phase deliberations of a capital trial warranted reversal of the entire judgment. Citing Hernandez, this court held unanimously and unequivocally: “There is no double jeopardy bar to retrial of the case” (id. at p. 454), under either the federal or state constitutions (id. at p. 460).
We now make explicit what was implicit in Armstrong’s holding: As a general rule, the erroneous discharge of a capital juror is no different from any other trial error warranting reversal of judgment, and double jeopardy protections impose no obstacle to retrial. (See Hernandez, supra, 30 Cal.4th at p. 10.) Unlike a reversal for insufficiency of the evidence, the erroneous removal of a single juror cannot be analogized to an acquittal. Retrial of the penalty phase after such an error does not place the defendant twice in jeopardy; rather, it provides a second opportunity for a trial free from prejudicial error. (See Hatch, supra, 22 Cal.4th at p. 274.)
Defendant first broadly asserts Hernandez’s holding should not extend to penalty retrials. His suggestion that double jeopardy protections apply with different or greater force in capital cases is belied by United States Supreme Court precedent, however. Bullington v. Missouri (1981) 451 U.S. 430, 439 confirmed that the double jeopardy clause applies to capital-sentencing proceedings that “have the hallmarks of the trial on guilt or innocence.” In this context, a verdict of life imprisonment signifies that the jury has found that the predicate for imposing a death sentence has not been established. “A verdict of acquittal on the issue of guilt is, of course, absolutely final. The values that underlie this principle . . . are equally applicable when a jury has rejected the State’s claim that the defendant deserves to die.” (Id. at p. 445.) In that event, the jury’s rejection of the state’s case for the death penalty is the functional equivalent of an acquittal on the state’s separate charge that the death penalty is called for. However, the double jeopardy bar to retrial applies only if the “first life sentence was an ‘acquittal’ based on findings sufficient to establish legal entitlement to the life sentence.” (Sattazahn v. Pennsylvania (2003) 537 U.S. 101, 108 (Sattazahn).) In Sattazahn, the defendant was sentenced to life imprisonment in accordance with a Pennsylvania statute requiring such a disposition when his jury deadlocked at the penalty phase. (Id. at pp. 103–104.) After his murder conviction was reversed on appeal, he was retried and sentenced to death. (Id. at p. 105.) Sattazahn asserted double jeopardy precluded the imposition of this more severe sentence in the second trial, but the high court disagreed. It stressed that “the touchstone for double-jeopardy protection in capital-sentencing proceedings is whether there has been an ‘acquittal,’ ” and neither the first jury’s deadlock on penalty nor the trial judge’s entry of a life sentence in accordance with the Pennsylvania statute constituted an acquittal. (Id. at p. 109.)
Here, defendant‘s first penalty trial did not result in an acquittal or its equivalent. He was sentenced to death. When the death penalty has been imposed, reversal of that judgment on appeal generally does not bar retrial unless the reviewing court determines the evidence was “legally insufficient to justify impositiоn of the death penalty.” (Poland v. Arizona (1986) 476 U.S. 147, 157.) Reversal of the penalty judgment in defendant‘s first automatic appeal was not based on insufficient evidence. Instead, we reversed because of the erroneous excusal of a juror. (Wilson, supra, 44 Cal.4th at pp. 841-842.) That reversal was not the equivalent of an “acquittal” for double jeopardy purposes. (See Poland, at p. 157.) Because neither the jury nor this court “acquitted” defendant in his first trial, double jeopardy did not bar his retrial. (See Sattazahn, supra, 537 U.S. at p. 109.)
Defendant also cites the practical impediments to penalty retrials, but these complaints suffer from the same shortcoming. Defendant observes that, due to delays inherent in the appellate process, penalty retrials will typically occur several years after the original trial. Memories may fade; witnesses may become unavailable; evidence may be lost or destroyed. Conversely, retrial gives the prosecution an opportunity to present “new or better evidence” in support of its position. For example, defendant notes, a new forensic pathologist testified in his second penalty trial about signs that Uwe may have been burned with a blowtorch, contrary to expert testimony in the first trial. Finally, defendant urges that barring penalty retrials would bring closure to victims and financial savings to the criminal justice system. Yet these arguments apply to all retrials after reversal of a judgment on appeal. There will always be a period of delay, and the resulting difficulties with witnesses and evidence are likely to impact the prosecution as well as the defense. The defense also has the same opportunity as the prosecution to marshal new and favorable evidence. And, while barring retrials would more expeditiously end criminal proceedings, these benefits have never been considered sufficient to make society pay the “high price” of reducing or eliminating a statutorily prescribed punishment due to trial errors. (Tateo, supra, 377 U.S. at p. 466.)
Defendant posits two additional reasons for distinguishing Hernandez. Whereas the dismissed juror in Hernandez did not obviously favor the defense and said she “was . . . ‘committed to being fair‘” (Hernandez, supra, 30 Cal.4th at p. 10), Juror No. 5 was the lone holdоut for life imprisonment. Defendant contends discharging him gave the prosecution a clear advantage. That is so, and that is why the penalty verdict was reversed. But the cases are
Additionally, defendant notes that only one juror was dismissed in Hernandez, whereas the trial court dismissed two jurors in his prior trial. He attaches significance to this difference because Justice Werdegar‘s concurrence in Hernandez stated the double jeopardy result might have been different if, inter alia, “the trial court [had] dismissed more than a single juror.” (Hernandez, supra, 30 Cal.4th at p. 13 (conc. opn. of Werdegar, J.).) Read in context, however, it is clear this statement was meant to contrast the removal of a single juror with the more problematic situations in which multiple jurors are improperly discharged or an empaneled juror is replaced with someone from the venire rather than a sworn alternate. (See id. at pp. 12-13.)7 Here, as in Hernandez, the court dismissed a single juror and replaced him with a sworn alternate. Almost immediately, that alternate, Juror No. 17, was dismissed for reasons unrelated to the dismissal of Juror No. 5. The seat was then filled with another sworn alternate. Defendant spends considerable effort arguing that the discharge of Juror No. 17 was error, but we did not reach that question in defendant‘s prior appeal and need not reach it now. Even if the court had erred a second time in discharging Juror No. 17, the remedy would have been the same. Defendant was entitled to reversal of the judgment, an outcome he received. No authority suggests double jeopardy bars retrial if the trial court commits more than one reversible error. Moreover, because “an alternate juror, even if improperly seated, is part of the same jury chosen by the defendant” (Hernandez, at p. 9), the substitution of a new alternate for Juror No. 17 did not deprive defendant of his “‘valued right to have his trial completed by a particular tribunal‘” (Crist, supra, 437 U.S. at p. 36).
Finally, defendant asserts double jeopardy protections barred retrial because “the trial court manipulated the penalty phase jury to ensure a death verdict.” The court below impliedly rejected this claim when it denied defendant‘s plea of once in jeopardy. Substantial evidence supports that finding. The court in defendant‘s first trial undertook a careful and thorough inquiry of the entire panel before dismissing Juror No. 5 (see Wilson, supra, 44 Cal.4th at pp. 816-822) and questioned Juror No. 17 at length before determining he was unqualified to serve for an unrelated reason (see ante, at pp. 11-12). Assuming judicial misconduct of this nature could trigger a double
B. Due Process
Defendant separately contends the penalty retrial violated due process because it failed to satisfy the heightened reliability required of capital cases. (See Woodson, supra, 428 U.S. at p. 305.) A similar claim was raised in Sattazahn, and the high court rejected it as “nothing more than [the] double-jeopardy claim in different clothing.” (Sattazahn, supra, 537 U.S. at p. 116.) The same is true here.
Defendant offers no support for his assertion that the penalty retrial deprived him of a fair opportunity to challenge the prosecution‘s case or assert his own position that death was an inappropriate penalty in his particular circumstances. Defendant was aware of the prosecution‘s strategy from the first trial; he was represented by the same attorney in both cases; he had adequate time to prepare; and he presented a robust mitigation defense through multiple witnesses.
Rather than pointing to any deficiency in the retrial proceeding, defendant instead renews his complaint that the court in his first trial erred by dismissing the alternate (Juror No. 17) called to replace Juror No. 5. But defendant “already has been afforded a new penalty phase trial free from such error,” and that is the judgment now before us. (People v. Slaughter (2002) 27 Cal.4th 1187, 1207.) As discussed, the discharge of Juror No. 17 did not deprive defendant of his chosen jury because the juror was replaced with another sworn alternate. Attempting to shoehorn his facts into one of the possible double jeopardy exceptions noted in Justice Werdegar‘s Hernandez concurrence, defendant claims the discharge of Juror No. 17 “was remarkably similar to reopening voir dire.” (See Hernandez, supra, 30 Cal.4th at p. 13 (conc. opn. of Werdegar, J.).) But that assertion is belied by the facts. The court did not reopen voir dire, nor did it grant or permit the use of any extra peremptory challenges. It simply discharged a juror who found it “impossible” to impose the death penalty and seated another sworn alternate. Any error the court may have made in discharging Juror No. 17 was remedied by our reversal of defendant‘s first death judgment.
Retrial of the penalty phase did not violate double jeopardy, and defendant has failed to support a due process claim. Like the United States Supreme Court, “[w]e decline to use the Due Process Clause as a device for extending the double jeopardy protection to cases where it otherwise would
C. Counsel‘s Conflict of Interest
Defendant claims the court erred in failing to inquire about defense counsel‘s conflict of interest upon learning that defendant had raised ineffective assistance of counsel claims in a pending habeas corpus petition. He also faults the court for failing to explore whether he wanted to obtain substitute counsel. We conclude both claims lack merit on this record.
Michael Belter represented defendant in his first trial. A county agency that secures counsel for indigent defendants arranged for Belter to represent defendant in the retrial and sought his appointment. The court observed it would be sensible for Belter to handle the case again, and the prosecution agreed it would be the most efficient way to proceed. Advised of the impending appointment, defendant wanted to see Belter and requested a transfer to the Riverside jail to facilitate their meetings. When the court asked if appointing Belter and cocounsel Christopher Harmon would be agreeable to defendant, he responded, “Well, I can‘t really say nothing ‘til they show up.” At the next hearing on January 9, 2009, the parties discussed scheduling a trial readiness conference. The court asked if defendant had been able to meet with Belter, and defendant said, “Yes, actually, I havе an objection to Mr. Belter. But since he‘s not here, I really don‘t want to raise it.” The court responded that defendant could “take that up with counsel or wait until the next hearing.”
Belter made his first appearance for defendant six weeks later, on February 20, 2009, at a trial readiness conference. Belter advised the court that defendant had filed a habeas corpus petition related to his first trial and that petition was pending in this court. Belter wanted to meet with appellate and habeas counsel before proceeding further. Defendant apparently attempted to speak at that point because the court interrupted itself to say: “You need to talk to your attorney, sir, before you address the Court.” The record does not indicate whether defendant spoke to Belter or cocounsel Harmon, but Belter next responded: “Mr. Wilson - he‘s conferred with me this morning. He wants the Court to be aware that there are pending issues with respect to the guilt phase of his case, competency of trial counsel in that proceeding, and other issues. And those are in the habeas petition that is still pending before the Supreme Court.”
At the next hearing, Belter noted that, although the penalty phase issues raised in defendant‘s habeas corpus petition had been mooted by our decision
Beyond his inchoate objection before Belter appeared on his behalf, defendant made no explicit request to discharge his attorney or to have a new attorney appointed. He now contends the trial court was on notice that Belter had a conflict of interest and its failure to inquire about the conflict requires reversal. We find no reversible error.
“A criminal defendant is guaranteed the right to the assistance of counsel by the Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution. This constitutional right includes the correlative right to representation free from any conflict of interest that undermines counsel‘s loyalty to his or her client. [Citations.] It has long been held that under both Constitutions, a defendant is deprived of his or her constitutional right to the assistance of counsel in certain circumstances when, despite the physical presence of a defense attorney at trial, that attorney labored under a conflict of interest that compromised his or her loyalty to the defendant.’ [Citation.] ‘As a general proposition, such conflicts “embrace all situations in which an attorney‘s loyalty to, or еfforts on behalf of, a client are threatened by his responsibilities to another client or a third person or his own interests. [Citation.]“‘” (People v. Doolin (2009) 45 Cal.4th 390, 417.)
“Under the federal Constitution, prejudice is presumed when counsel suffers from an actual conflict of interest. (Cuyler v. Sullivan (1980) 446 U.S. 335 [64 L.Ed.2d 333, 100 S.Ct. 1708].) This presumption arises, however, ‘only if the defendant demonstrates that counsel “actively represented conflicting interests” and that “an actual conflict of interest adversely affected his lawyer‘s performance.“’ (Strickland v. Washington (1984) 466 U.S. 668, 692 [80 L.Ed.2d 674, 104 S.Ct. 2052], quoting Cuyler, at p. 348.) An actual conflict of interest means ‘a conflict that affected counsel‘s performance - as opposed to a mere theoretical division of loyalties.’ (Mickens v. Taylor (2002) 535 U.S. 162, 171 [152 L.Ed.2d 291, 122 S.Ct. 1237], italics omitted.) Under the federal precedents, which we have also applied to claims of conflict of interest under the California Constitution, a defendant is required to show that counsel performed deficiently and a reasonable probability exists that, but for counsel‘s deficiencies, the result of the proceeding would have
When the trial court knows, or reasonably should know, of the possibility that defense counsel has a conflict of interest, it has a duty to inquire into the matter. (Wood v. Georgia (1981) 450 U.S. 261, 272; People v. Bonin (1989) 47 Cal.3d 808, 836.) Defendant claims the court was put on notice about the possibility of a conflict because he voiced “an objection” to Belter at a pretrial hearing before Belter‘s first appearance. But defendant declined to pursue the matter further. He did not specify what that objection was, or the basis for it. There was no reason for the court to presume it had anything to dо with a potential conflict of interest.
Defendant also asserts the court should have become aware of a potential conflict because it was told defendant had a habeas corpus petition pending that alleged ineffective assistance of counsel claims from his first trial. We need not resolve whether the existence of pending ineffective assistance claims was sufficient to put the court on notice of a potential conflict. Even assuming the court should have inquired about a potential conflict, defendant fails to show prejudice. “When a defendant claims that a trial court‘s inquiry into a potential conflict was inadequate, the defendant still must demonstrate ‘the impact of the conflict on counsel‘s performance.’ [Citations.] ‘Absent a demonstration of prejudice, we will not remand to the trial court for further inquiry.‘” (People v. Rices (2017) 4 Cal.5th 49, 64; see People v. Nguyen (2015) 61 Cal.4th 1015, 1071.)
To demonstrate a prejudicial conflict of interest, a defendant must show that defense counsel was burdened by an actual conflict of interest that adversely affected counsel‘s performance. (Mickens v. Taylor, supra, 535 U.S. at p. 171; People v. Perez (2018) 4 Cal.5th 421, 435.) “When determining whether counsel‘s performance was ‘adversely affected’ by the purported conflict under this standard, we consider whether ‘counsel “pulled his punches,” i.e., whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict.“’ [Citation.] This analysis will often turn on choices that a lawyer could have made, but did not make. In order to determine whether those choices resulted from the alleged сonflict of interest, we must analyze the record to determine whether a lawyer who did not face the same conflict would have made different choices as well as whether counsel‘s choices were the product of tactical reasons rather than the alleged conflict of interest.” (Perez, at pp. 435-436.)
Moreover, the record on appeal does not support defendant‘s speculation that Belter shaped his defense strategy to avoid an ineffective assistance finding. Contrary to defendant‘s assertion, the record indicates that Belter did pursue evidence supporting a neurological defense. Early in the proceedings, Belter obtained an order for defendant to be examined by a neuropsychologist. When testing could not be conducted because defendant was shackled, Belter obtained a second order requiring jail officiаls to use some other form of restraint so that defendant could be tested with his hands free. The results of that testing are not in the record, nor is there any other evidence to support defendant‘s claim that Belter failed to present a neurological defense due to a conflict of interest. We do not know the results of any neuropsychological examination, or what opinions the defense expert may have formed. Whatever those results, counsel may have reasonably decided to focus instead on defendant‘s social history as evidence in mitigation. As we noted in defendant‘s prior appeal, “It is not the typical American family in which a child is conceived by his father‘s rape of his mother when she was a preteen, the child‘s father is convicted of rape and attempted murder and sent to prison, the child‘s stepfather is similarly tried for murder, and the child‘s stepfather beats the child to the point where the child suffers convulsions.” (Wilson, supra, 44 Cal.4th at pp. 830-831.) Counsel took steps to evaluate the question of cognitive deficits and presented extensive mitigation, including detailed evidence of defendant‘s difficult childhood presented through 14 different witnesses, many of them family members. The record does not support defendant‘s assertion that counsel‘s performance was impaired by a conflict of interest.
In a related claim, defendant contends his unelaborated “objection” to Belter at the January 9 hearing was tantamount to a request for substitute counsel under People v. Marsden (1970) 2 Cal.3d 118. He argues the court‘s failure to inquire into this request was “reversible рer se.” On this record, the claim fails.
“The legal principles governing a Marsden motion are well settled.” (People v. Johnson (2018) 6 Cal.5th 541, 572 (Johnson).) If a defendant who asserts inadequate representation seeks
Defendant gave no clear indication he wanted a substitute attorney and never requested one. After obtaining a transfer so that he could be housed closer to Belter, and before Belter made his first appearance, defendant said, “I have an objection to Mr. Belter,” but he explicitly declined to explain what his objection was or what remedy, if any, he sought. The court responded that defendant could “take that up with counsel or wait until the next hearing.” Defendant did not renew his objection to Belter at the next hearing, nor did he request substitute counsel at any time thereafter.
Discussion of the pending habeas corpus petition, however, does make this a close call. At defendant‘s urging, Belter informed the court that the petition included unresolved ineffective assistance of counsel issues related to the guilt phase of trial. Certainly one plausible reason for making the court aware of the pending claims involving Belter, especially in light of defendant‘s earlier “objection,” would have been to articulate grounds for requesting new counsel. Yet neither defendant nor Belter ever stated that defendant wanted substitute counsel, and we will not lightly assume that counsel violated his ethical and professional duties by failing to convey such a request by his client. Under the circumstances, defendant‘s bare statement that he had “an objection” does not constitute a clear indication that he wanted to obtain new counsel. Expressions of dissatisfaction with appointed counsel that might be inferred here were not sufficient to trigger the court‘s obligation to hold a Marsden hearing. (See Johnson, supra, 6 Cal.5th at pp. 572-574 the remedy being sought. At the same time, the court must take care not to interfere with the attorney-client relationship.
Defendant contends he would have expressed a desire for new counsel at the February 20 hearing but the trial court prevented him from speaking. Because the court was aware that he objected to Belter, defendant argues it was especially problematic for the court to admonish him that he was
Considering the precise words of the court‘s admonition, we conclude the record does not support defendant‘s assertion that the court prevented him from speaking up to object to his attorney. She simply gave him the prudent direction to talk to counsel “before [he] address[ed] the Court.” This statement left open defendant‘s option to address the court directly after he had conferred with counsel. The next statement on the record was Belter‘s, however, explaining that defendant wanted the court to be aware there were pending habeas claims in the Supreme Court regarding “competency of trial counsel.” After Belter complied with defendant‘s request, defendant made no further effort to address the court. If the record had demonstrated that defendant was trying to make a Marsden motion and Belter elided or misrepresented defendant‘s feelings in his statement to the court, this might be a different case. But the factual basis for that conclusion does not appear here. The record on appeal contains no evidence Belter misrepresented defendant‘s feelings in his statement to the court, that defendant demonstrated any desire to speak further, or that he was prevented from raising thе issue subsequently. Accordingly, defendant has failed to show the court committed reversible error.
D. Challenges to Death Penalty Statute
Defendant raises many challenges to the constitutionality of California‘s death penalty statute but acknowledges that we have previously rejected them. We decline his invitation to depart from our settled precedents, which hold:
The class of offenders eligible for the death penalty under
The capital jury‘s penalty decision is normative rather than factual. (Beck and Cruz, supra, 8 Cal.5th at p. 670.) For this reason, California‘s death penalty scheme does not violate the federal Constitution for failing to require written findings (People v. Rhoades (2019) 8 Cal.5th 393, 455 (Rhoades)); unanimous findings as to the existence of aggravating factors or unadjudicated criminal activity (Morales, supra, 10 Cal.5th at pp. 113-114); or findings beyond a reasonable doubt as to the existence of aggravating factors (other than
The federal Constitution does not require intercase proportionality review. (Hoyt, supra, 8 Cal.5th at p. 955; Rhoades, at pp. 455-456.) To the extent defendant complains he was unconstitutionally denied intracase рroportionality review, California provides such review upon request (see, e.g., People v. Landry (2016) 2 Cal.5th 52, 125; People v. Virgil (2011) 51 Cal.4th 1210, 1287), but defendant raised no such claim in this appeal. California‘s capital sentencing scheme does not violate international norms of human decency or the Eighth Amendment. (People v. Suarez (2020) 10 Cal.5th 116, 189 (Suarez); Navarro, supra, 12 Cal.5th at p. 346.) Nor does the death penalty law violate equal protection by providing different procedures for capital and noncapital defendants. (Fayed, supra, 9 Cal.5th at p. 214; Rhoades, at p. 456.)
E. Restitution Fine
At the conclusion of defendant‘s first trial, the probation department recommended a $10,000 felony restitution fine. The court, however, imposed a lesser fine of $4,000. Defendant did not object or offer evidence concerning his ability to pay, nor did he dispute the propriety of the fine in his first appeal. After the penalty retrial, the court questioned whether the amount of restitution fines and fees needed to be revisited. It expressed an inclination to simply adopt the previous orders fixing fines, fees, and restitution. Defense counsel asked that the court “not order additional restitution” without a hearing. When the subject was addressed at the next hearing, the prosecutor represented that defendant had been paying restitution pursuant to the original court order, and no additional costs had been submitted by the victims. He recommended that the court impose no further restitution. The court remarked, “Then I don‘t think I need to revisit restitution,” and defense counsel responded, “Yes.”
Defendant now contends that in setting the $4,000 restitution fine, the court failed to take account of his ability to pay. He asserts that there was an intervening change in
Defendant failed to raise an issue concerning his ability to pay at either sentencing proceeding. The claim is therefore forfeited on appeal. (People v. Miracle (2018) 6 Cal.5th 318, 356; People v. Williams (2015) 61 Cal.4th 1244, 1291; People v. Avila (2009) 46 Cal.4th 680, 729.) In any event, we may assume the trial court was aware of and fulfilled its statutory duty to consider ability to pay when setting the restitution fine. (
F. Relief under Senate Bill No. 1437
Defendant filed a supplemental brief shortly before oral argument asking this court to vacate his murder conviction because it may have been based on a felony-murder theory that was rejected by the Legislature in Senate Bill No. 1437 (2017-2018 Reg. Sess.) (Senate Bill 1437). We delayed submission of the case and received full briefing of the issue. We now conclude defendant is not entitled to relief because any error brought about by retroactive application of Senate Bill 1437 is harmless beyond a reasonable doubt.
“Under the felony-murder doctrine as it existed at the time of [defendant‘s] trial, ‘when the defendant or an accomplice kill[ed] someone during the commission, or attempted commission, of an inherently dangerous felony,’ the defendant could be found guilty of the crime of murder, without any showing of ‘an intent to kill, or even implied malice, but merely an intent to commit the underlying felony.’ (People v. Gonzalez (2012) 54 Cal.4th 643, 654 [142 Cal. Rptr. 3d 893, 278 P.3d 1242].) Murders occurring during certain violent or serious felonies were of the first degree, while all others were of the second degree. (
Senate Bill 1437 also created a procedural mechanism for those convicted of murder under prior law to seek retroactive relief. (See
(
Because Senate Bill 1437 created this “specific mechanism for retroаctive application of its ameliorative provisions” (Gentile, supra, 10 Cal.5th at p. 853), we reasoned in Gentile that the
Defendant contends the recent amendments to
We addressed the finality of a murder conviction under somewhat similar circumstances in People v. Jackson (1967) 67 Cal.2d 96. After this court affirmed Jackson‘s death judgment on appeal, he obtained a reversal of the penalty judgment in a habeas corpus proceeding. The penalty phase was retried and Jackson again received the death penalty. (Id. at pp. 97-98.) On appeal from that second judgment, Jackson, like defendant here, sought the benefit of an ameliorative change in the law.10 We concluded the new rule, concerning admissibility of a defendant‘s extrajudicial statements, could not be applied retroactively to Jackson‘s guilt judgment because that judgment had long before become final. (Jackson, at p. 98.) We explained that when a penalty phase judgment alone is reversed, “the original judgment on the issue of guilt remains final during the retrial of the penalty issue and during all appellate proceedings reviewing the trial court‘s decision
Only a defendant whose conviction for murder, attempted murder, or manslaughter ”is not final may challenge on direct appeal the validity of that conviction based оn” changes to the murder statutes enacted by Senate Bill 1437. (
When a court instructs on two theories of an offense, only one of which is legally valid, the problem is known as “alternative-theory error.” (People v. Aledamat (2018) 8 Cal.5th 1, 9 (Aledamat); see In re Lopez (2023) 14 Cal.5th 562, 567 (Lopez).) Defendant‘s jury was instructed it could find him guilty of first degree murder based on either a premeditation and deliberation or a felony-murder analysis. Of course, the jury could have concluded, consistent with premeditation and deliberation requirements, that defendant himself shot Uwe intending to kill him. However, it is at least possible they were not sure whether defendant or Phillips fired the fatal shots. In that case, the felony-murder theory would have come into play. The Attorney General concedes that, after Senate Bill 1437‘s changes to
The Courts of Appeal have handled claims under
In view of the uncertainties in how
Aledamat discussed the standard of prejudice applicable to alternative-theory error. (Aledamat, supra, 8 Cal.5th at p. 9.) It held that “no higher standard of review applies to alternative-theory error than applies to other misdescriptions of the elements [of an offense]. The same beyond a reasonable doubt standard applies to all ....” (Ibid.) Under this standard, a conviction must be reversed unless a reviewing court, “after examining the entire cause, including the evidence, and considering all relevant circumstances, . . . determines the error was harmless beyond a reasonable doubt.” (Id. at p. 13; see Chapman, supra, 386 U.S. at p. 24.)
As amended by Senate Bill 1437, a defendant is guilty of first degree felony murder if he is the “actual killer” (
Here, the jury found that Uwe‘s murder was committed while defendant “was engaged in the commission of the crime of kidnapping.” The jury was instructed that the kidnapping must not be “merely incidental to the commission of the murder.” The jury also found that, in committing the murder, defendant personally used a handgun. Defendant argues this finding on the firearm enhancement does not compel a conclusion that the jury found him to be the actual killer because the “elements of felony murder included the kidnapping, for which there was clear evidence that [he] used a firearm.” Regardless of whether the jury found defendant to be “the actual killer” under
The verdicts are also relevant to the second prong of
was supported by uncontroverted evidence establishing that, after kidnapping Uwe at gunpoint, defendant shot him in the kneecap, brutally beat and tortured him for hours, then drove him to a remote location where he was killed. Any rational juror who found that defendant personally used a firearm in committing a kidnapping or homicide, and inflicted “extreme cruel physical pain and suffering” (CALJIC No. 8.81.18) upon the murder victim, would necessarily have found that defendant acted with reckless indifference to human life.
III. DISPOSITION
The judgment is affirmed.
CORRIGAN, J.
We Concur:
GUERRERO, C. J.
LIU, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
EVANS, J.