People v. Zapien

4, 1993.] S004762. Crim. No. 26289. Mar. [No. PEOPLE,

THE Respondent, Plaintiff and ZAPIEN,

CONRAD JESS and Appellant.

Counsel Miller, Regalia Starr & Roach & Chris G. Crosby, Heafey, May, Gasparich, Michael J. Defendant and Appellant. and Hassen for General, Steve Attorneys de Daniel E. Lungren, John K. Van and Kamp Williamson, White, Attor- Chief George Richard B. and Assistant Iglehart General, General, Jr., Carol T. Fogel, Attorney Edward Assistant neys Nicola, General, Pollack, de Assistant Donald E. Acting Attorney Wendelin Katz, Willhite, Jr., Deputy Lee and Robert F. Thomas L. Susan Frierson General, for Plaintiff and Attorneys Respondent.

Opinion trial, convicted, first

GEORGE, J. a of following jury was Code, 187, (Pen. (a))1 with the circumstances special murder subd. degree § and an course of burglary that the was committed killing during 190.2, (a)(17)). Defendant also was convicted (§ subd. attempted robbery (§ 664/211). jury The (§ 459) robbery and degree first burglary attempted (b)) and a (§ knife found that defendant used a subd. personally 12022.5, The offense. (§ (a)) firearm the commission each subd. man- voluntary convicted of allegations previously defendant been offenses, terms and had served for these slaughter robbery, prior prison 667.5, (a) (§§ (a), true. subds. were tried to court and found subd. tried to which fixed the (b).) punishment was penalty phase jury, verdict, After of the penalty at death. the motion modification denying (Cal. the trial court entered This is automatic. judgment appeal accordingly. VI, Const., 11; (b).) subd. We affirm the judgment. art. § §

Facts 19, 1984, murder May During year at least one period preceding Blanco, Gonzales, married to had an affair with who was Ruby Yeyo she sister, moved into Blanco had By April Yeyo Inez Blanco. He his Gonzales’s Barbara told Lompoc, County. house Santa Ruby wife that he and wanted to married that Gonzales get Gonzales so they to have an at his to reverse a tubal going operation, expense, ligation could have children together. argu- Inez Blanco had period, public

On several occasions this during her to have ments and altercations with Gonzales and threatened physical statutory 1All further references are to the Penal Code unless otherwise indicated. murder,

killed. On Blanco saw Gonza- one occasion before the Inez shortly The wearing expensive Yeyo les an bracelet that to Blanco. gold belonged diamonds, in bracelet bore the name some of which had “Yeyo” spelled out from Inez jewelry belonged grandmother. come that had to Inez Blanco’s bracelet, give Blanco demanded but Gonzales refused to it to her. murder, 18,1984, May was the day preceding wedding anniversary Blanco, Yeyo and Inez Inez in twice visited Lompoc, Blanco. who lived hand, in her husband at Oxnard that hold his but day attempted work to he refused and asked her leave. automobile,

Later that Inez was in day, stop sign Blanco her at a stopped Oxnard, in when defendant him a long called to her. She had not seen for Defendant, time and him invited to enter the “a drug vehicle. who had asked his problem,” sister to loan him She declined. Defendant money. searched under the automobile’s floor and found some which mats coins Inez he Blanco said could keep. later and Inez drove They parted, Blanco home Lompoc. 19, 1984,

Approximately a.m. on Inez May Blanco was awakened aby defendant, call telephone from who asked for an advance of from money estate, their mother’s of which Inez Blanco was executrix. She Inez refused. later Blanco told a police officer that her brother had seemed for desperate money. after

Shortly 5 a.m. that Yeyo Blanco left house day, Gonzales’s Ruby work, go leaving the front door unlocked. Gonzales was awake but remained Yeyo bed. drove Blanco his wife’s home and noticed her by Oldsmobile Cutlass automobile was not there. house,

Soon after Blanco Yeyo left Gonzales’s 13-year-old daughter Marci was awakened sound of her mother Marci screaming help. seized a broom and ran into the where her mother was hallway, wrestling awith man whom Marci did not Marci recognize. began hitting the man over then, head mother, with the broom handle and her ran to urging “Chato, Her telephone mother was I police. leave me will yelling, alone. give you money and the jewelry.” While Marci using was the telephone, heard shot, she a gunshot. She informed her mother had been police ran hall, back to the and heard two more her gunshots. Observing three younger bedroom, sisters in the standing she hallway, them into pushed instructing a dark, them to remain there. The assailant ran off. Because it was Marci was detail, unable to describe attacker but said he wearing long- was a shirt, vest, sleeved plaid a and baseball cap. Subsequently, long-sleeved house. Ruby and a Gonzales’s shirt vest were found behind plaid alley blood, to be was and found analyzed The shirt stained with which with the blood. consistent victim’s

An five times and revealed that Gonzales had been stabbed autopsy in the shoulder with a .22-caliber been shot three times the head once the head any fired at one of range, firearm. shots had been close immedi- fatal and have rendered the victim wounds would have been would unconscious. ately Blanco, murder, who with Inez after

Shortly police investigators spoke her She lived a few blocks the scene of the crime. told them from in vehicle. was that she have left might keys automobile and missing she day When returned to Gonzales’s house on Yeyo Ruby Blanco murdered, he her and diamond bracelet gold was removed from bedroom his in her had called $600 and cash. told Marti that mother Upon being by “Chato,” was, he instructed Yeyo killer Blanco said know who that might else, and stated her to the or to repeat anyone not to that information police he “would work out.” everything murder, had her Gonzales during Ruby

Sometime the month preceding one in to meet been at a restaurant Oxnard with Blanco Yeyo happened brothers, Valentino, Ruby Chato. of Inez Blanco’s who used the nickname occasion, minutes Gonzales was with Valentino no more than five on this that, earlier, she had evidence was two years but received establishing in the date of for a few with was jail worked weeks Valentino. Valentino murder, evidence but the introduced into photographs prosecution in two brothers were similar Valentino defendant to establish that the appearance. murder, in his home leaving on the

Approximately day upon a.m. Valdez (located Pastor Joe Lompoc), Oxnard miles from approximately in front defendant an that was parked found on the seat of automobile lying time, rehabili- home. had to attempted of Valdez’s For some Pastor Valdez in locations addicts them to homes various drug referring tate Christian was defendant 20 years, around the state. Pastor Valdez known for if him that defendant had told drug previously aware had “a problem,” home, Valdez. felt the to Christian he should see Pastor go he ever need to tired, under and Pastor “assumed” he was appeared Valdez his he was in to belonged influence of Defendant said the vehicle drugs. sister. ready he was men Valdez asked defendant whether spoke,

As the Pastor home, Valdez Pastor a Christian and defendant he was. replied go Madera, him who a Christian home telephoned colleague operated gave name, and made him to meet defendant at the arrangements bus station. Pastor bus Oxnard telephoned Greyhound Valdez depot defendant had no inquire concerning Although luggage, bus schedule. unusual, Valdez did not find that because his often experience persons went to Christian homes with “but the clothes on their Pastor nothing back.” Valdez did not recall what but stated wearing day clothes defendant that defendant wore either a or a frequently baseball wool cap cap. murder,

About time of the defendant in a truck slept parked sometimes at his brother’s did house Oxnard. He not inform that residence anyone at of his to leave town. plans Madera,

When defendant arrived at Christian home in he registered under the false name Jess He be Pantoja. appeared suffering drug from withdrawal. 22, 1984,

On Inez May in Blanco’s automobile was found a lot parking adjacent to the in Greyhound bus depot Oxnard. Defendant’s fingerprints outside, mirror,

were found on the driver’s side rearview the inside rearview mirror, and the gearshift lever. The position of found on the fingerprints gearshift lever indicated defendant was the last who drove the person circumstances, As automobile. a result of the a foregoing warrant was issued for defendant’s arrest on a charge of auto theft.

Defendant in remained Madera for two nearly months then transferred Phoenix, Arizona, to another Christian home in he registered where under the false name Mejia. Jess He informed the director he program was wanted police and remained there until the closed several program months later. Phoenix,

During his in stay defendant also used the false name Jess Moran. He used Ids roommate’s Social Security card to obtain employment, from which he when subsequently discharged it was discovered he had falsified his a in identity. told friend Phoenix he had shot during someone later robbery, adding that defendant was “wanted for believed, however, murder in California.” The witness that defendant was referring to a of a robbery fast-food restaurant. Defendant told another friend that he previously had owned a .22-caliber This handgun. witness stated that defendant long-sleeved wore consistently shirts.

In March police investigators discovered defendant had placed collect telephone calls from Phoenix to his sisters California. On March subsequently warrant and was arrested on the auto-theft defendant arrest, defendant was time his California. At the was extradited to to stab the victim. knife as that used general type same carrying Gonzales, Blanco Yeyo murder of two months after the Approximately evidence, whose admission Inez Blanco. Additional resumed with living error, with the will summarized connection defendant characterizes as be arguments. discussion of defendant’s

Discussion

Guilt Phase Issues Multiple Hearsay Admission

1. into evidence admitting Defendant contends the trial court erred Perez, they of Mariella because statements testimony tape-recorded set within the hearsay exception, contain that does not fall multiple hearsay inconsistent statements. prior forth Evidence Code section that, Inez, testified who also is named daughter, Inez Blanco’s 15-year-old murdered, uncle) had (her Gonzales was defendant morning Ruby also denied her mother and sisters. She come to the house she shared with come to the house on her sister Juanita that defendant had having told older he had that clothing, of the murder with blood on his hands morning Gonzales, received from their mother admitted and that he had killing to the Oldsmobile. keys field of the murder trip day

Juanita testified she was on a school her sister Inez ever told returned home the She denied that following day. the murder her had on the morning that defendant come to their house Gonzales, killed had admitted clothing, having with blood on his hands and Juanita also received their mother the to the Oldsmobile. keys and had from her Inez had denied told her friend Mariella Perez that sister having close made such a statement. killed, after Gonzales was

Perez testified that one approximately year bedroom, and, in Perez’s Juanita Blanco visited her while were alone they defendant had learned her sister Inez that told her that Juanita had from on his shirt and come to their house the of the murder with blood morning stating did recall Juanita Blanco had to their mother. Perez spoken victim, had given or that their mother killing defendant had admitted her defendant the to automobile. keys Ast then related Perez’s out-of- attorney investigator

District Kenneth court to him that told Perez that Juanita’s statement Juanita Blanco had had prosecutor mother defendant the to the Oldsmobile. The given keys for the In the first played recordings of two interviews of Perez. jury tape interview, had, Perez stated that the elder Inez Blanco on numerous occa- sions, threatened to kill the victim. Perez also recounted statement give Juanita Blanco that her sister Inez had seen their mother defendant the the Oldsmobile on the of the Perez keys Additionally, murder. morning asserted that a man did her she not know had entered house and threatened her in an effort her not to disclose information persuade concerning murder. interview,

In the second Perez related a statement made Juanita Blanco murder, approximately one month to the that at least one earlier prior year murder, her mother had planned have victim killed. after the Shortly Juanita Blanco stated Perez that she her had suspected mother planned murder, because her mother had not at the theft appeared surprised Oldsmobile. murder, one

Approximately week after the Inez her Blanco and three murder, daughters moved out of Lompoc. long Sometime after the Juanita visit, and her Blanco two sisters visited Perez. stated During that Juanita her sister Inez had seen defendant at the their front door of on the house murder, him,” morning “with blood all over and that defendant am I inquired, “What do?” going to Juanita’s mother defendant gave automobile, her keys to and defendant left. When Perez was asked about the her, man who had entered her house and threatened Perez at first declined to matter, discuss the it was saying important,” “not and then denied the incident had occurred. contends the trial court erred Perez’s admitting testi statements,

mony and tape-recorded because the hearsay to the exception rule prior Code, (set inconsistent statements 1235) forth in Evid. does § not allow admission of multiple hearsay. does not to point any holds, authority which so but reliance places great on the absence of any reported decisions upholding the admission of multiple hearsay on this basis. We are unpersuaded.

Evidence Code section 1235 authorizes the admission into evidence of states, a prior witness’s inconsistent statement. It pertinent part: “Evidence of a statement made aby witness is made not inadmissible rule if hearsay the statement is inconsistent with his hearing at the testimony . . . .” Evidence Code section 1201 authorizes the admission into evidence “A the scope exception statement within of an of It states: multiple hearsay. the evidence of rule is not inadmissible on the that hearsay ground to if evidence of one is evidence such consists hearsay hearsay such statement of exception more statements each of which meets the an requirements or rule.” hearsay hearsay Read these two statutes admission together, permit multiple (Cf. where each level constitutes a inconsistent statement. hearsay prior 252, 643, People v. Whitt 51 Cal.3d fn. 15 Cal.Rptr. P.2d Such is the situation case. present

The Inez that defend younger out-of-court statement Blanco on his ant had come to her house the of the murder with blood morning mother, is and had to the Oldsmobile from her person, keys obtained inconsistent with her denial at trial that had made such a statement. she described recounting out-of-court statement of Juanita Blanco above of her inconsistent her denial at that she made statement sister is with trial a statement. Blanco had told such Perez’s out-of-court statement Juanita is given keys her that Juanita’s mother had defendant the the Oldsmobile with she did recall Juanita testimony inconsistent Perez’s at trial that having Blanco made this statement.2 are unaware addressing question

We decision any published precise whether is admissible each level constitutes multiple hearsay hearsay where a inconsistent statement. But none of the decisions similar prior addressing suggests that such evidence inadmissible. questions is This court has the admission multiple appropriate upheld hearsay (People Pensinger (1991) circumstances 52 Cal.3d 1266 [278 899]), and Cal.Rptr. 805 P.2d the Court of has Appeal upheld admission of where a hearsay one of the levels was multiple hearsay prior 112-113 Ricky inconsistent statement. In re 82 Cal.App.3d B. 828], a witness testified he had overheard conversation between the denied discussion person defendant another but that the that, concerned a stolen A officer van. was police permitted testify prior trial, conversation, the witness had stated the overheard during defendant and his The Court of having discussed stolen van. companion admitted, ruled hearsay this because Appeal multiple properly witness’s statement to the was a statement pretrial prior officer inconsistent memory” 2The trial court this was a of be deemed an found that “convenient loss and could 981, (People (1971) v. Green implied prior denial of her statement. Cal.3d 988-989 [92 494, Cal.Rptr. ruling, does not find challenge 479 P.2d Defendant this and we do it erroneous. Code, (Evid. 1235) the overheard constituted either an conversation § Code, 1220, (Evid. admission or an the defendant by admission adoptive §§ 1221). state- consisting of a inconsistent Similarly, multiple hearsay prior an held in ment and admission of the defendant was received properly 107], People v. Earnest Cal.Rptr. 741-743 Cal.App.3d and People v. Petersen 890-891 Cal.App.3d 590]. where, case,

The situation is no different in each level as the of present hearsay constitutes a inconsistent prior statement.

Defendant contends reason for the rule embodied Evidence Code statements, section allowing admission of prior inconsistent applies only single-level The state hearsay. prior reason inconsistent ment of a witness bemay received is that the declarant is in court present subject to cross-examination. “The has witness who told one story aforetime another has today to all the vistas truth opened gates which the common law practice of cross-examination and re-examination face, was invented to The explore. reasons for the whether change carelessness, terror, forgetfulness, or be pity, greed, may explored the two fact, oath, questioners the presence of the trier of casting under on light which is the true and which story the false. It is hard to escape the view that statement, evidence aof inconsistent prior when declarant is stand to can, if it he explain has high degree the examined safeguards of testimo (2 ny.” Rule, 251, McCormick (4th on Evidence 1992) ed. Hearsay p. § omitted.) fn.

Defendant this asserts rationale does not where apply multiple involved, hearsay is because “the no jury testing has way reliability the third party who reportedly saw the event or heard the admission.” case, because, Defendant’s is argument not well taken present “third party admission,” who reportedly saw the event heard or Blanco, younger Inez was called aas witness and was subject to cross- examination. The thus jury was able to her assess The same is credibility. true of Juanita Blanco and Mariella Perez. reason rule allowing admission of prior inconsistent statements was satisfied. received, contends the multiple should not have hearsay been

because each declarant having denied the alleged made prior inconsistent concern, statement, statement.3 This an alleged inconsistent prior which made, fabricated, declarant denies having have been may applies above, 3As noted court trial deemed Perez’s inability to recall certain to be statements implied an denial. settled that the It is hearsay. and to hearsay multiple equally single not render statement does declarant’s denial of the inconsistent prior (1988) 45 Cal.3d (People Lucky statement inadmissible. 1052]; (1974) 11 Cal.3d People v. Strickland 753 P.2d

Cal.Rptr. recognized it has been To the contrary, 523 P.2d could be than that “the favorable to the cross-examiner result is more and an was made that the statement produced by eliciting an admission Evidence, (2 McCormick of of . . . .” explanation change position 123-124.) supra, at pp. jury why case demonstrate present

The circumstances of of a witness’s the significance must be to consider and determine permitted statement, made having the witness denies inconsistent even where prior According of multiple hearsay. of the statement consists statement proof Perez, that defendant came Inez her sister Juanita Blanco told younger given keys after the murder and was shortly to the Blanco residence event The of this importance the Oldsmobile the elder Inez Blanco. by sisters; it not incriminated only have been lost on the Blanco could hardly murder, in the crime. their mother their uncle a brutal but also implicated sister, observations, even to her Inez did not reveal her The Blanco younger crime, shared after the Juanita until after were made. a long they Nearly year friend, Perez, If her conversation. private this secret with close family true, therefore, had the have been surprising Perez’s account is it would uncle, sister, admitted murder trial of their Inez Blanco or her at the younger these statements. making sure, never were that Perez lied and the statements

To be it is possible in nearly testimony. falsehood adheres all made. But the possibility her and judge Perez’s testimony had a full to evaluate jury opportunity her sister. It Juanita Blanco and as well as credibility, credibility her denials of their that Juanita’s and sister’s would make little sense to hold It was contrary. rendered Perez’s to the testimony statements inadmissible this crucial and to determine the value of for the to resolve this conflict jury evidence. piece if inconsis- multiple hearsay consisting prior observes admissible, his own may by testimony is “a single person

tent statements declarants, each with number of any prior introduce statements ‘inconsistent’ To forestall this of whom ever the statements.” adamantly deny making occurrence, rule” that bright-line defendant that this court “establish a urges single contradict a only prior inconsistent statement be used “to prior may declarant.” desirable,

If not by such a rule is it must be established Legislature, statutes. this court. “Our function is not to the wisdom of judge

955 to a has legislative body Nor are we insert what empowered [Citation.] (Wells Fargo Superior Bank v. omitted from its enactments. [Citation.]” 1082, 841, 1025].) Court (1991) 53 811 P.2d Cal.Rptr. Cal.3d 1099 [282 violated Defendant contends admission of this multiple hearsay his under the the witnesses rights state federal Constitutions to confront Const., Amend; Const., I, (U.S. 15.) The against him. 6th Cal. art. § in evidence a inconsistent statement does not violate the receipt prior confrontation of the federal and state where the clauses Constitutions (California declarant testifies at trial and is to cross-examination. v. subject 149, Green 489, 500-501, 1930]; 399 U.S. 164 90 L.Ed.2d S.Ct. [26 People v. 26 Cal.3d 605 Chavez 361 P.2d [161 involved, 401].) The is conclusion no different where hearsay is multiple statement, each segment evidence hearsay constitutes a inconsistent prior and each declarant testifies at trial and In subject is to cross-examination. situations, both retains the the declarant opportunity question “[defendant to as to the circumstances surrounding statements and to elicit from prior the declarant an explanation the inconsistencies in his statement prior Chavez, his on-the-stand testimony.” (People supra, v. 26 at Cal.3d pp. 360-361.) he asserts was unable to “confront” the Inez younger statement, regarding

Blanco her out-of-court because she denied having above, made that As statement. noted denial declarant’s she made the inconsistent statement (People Lucky, does render it inadmissible. v. supra, 289.) Cal.3d To the it contrary, recognized has been that the declarant’s denial places defendant if than stronger position declarant had admitted (California making inconsistent statement. v. Green, supra, 497-498].) U.S. L.Ed.2d at pp. [26 rejecting argument that inconsistent statements prior should be excluded because the defendant is denied the to opportunity cross-examine made, declarant at the time the statement was the United State Supreme Court observed: “The most successful at cross-examination the time the prior statement made could hardly hope accomplish more than has been already by the fact accomplished the witness is now telling different, Green, (California inconsistent supra, story . . . .” 399 U.S. 149, 159 497].) L.Ed.2d at The p. explained court enhanced, attack the ability prior statement be may because the witness “should be more than willing give the usual for the suggested explanations statement, inaccuracy of his prior such faulty as perception or undue haste (Id. recounting defendant, the event.” at p. 160 L.Ed.2d p. however, still must witness, contend with the circumstance that the although favor, having in the defendant’s admits testify previously now willing statement. made an unfavorable

If, case, declarant denies made the inconsis- having as present statement, earlier for the stronger attacking tent the defendant has a basis if the making be the case the declarant had admitted statement than would the denial that he or she had made statement. The declarant’s inconsistent declarant’s as would credibility statement does not weaken the alleged prior made a statement. having contradictory the declarant’s admission of inadmissible, defend- were that Perez’s out-of-court statements arguing Green, v. from the decision following ant relies on the sentence California 149, “If the witness admits the supra, 158 L.Ed.2d at p. 399 U.S. [26 497]: his, the is if there evidence to show statement statement is or is other prior his, can be jury and the faulty negligible of is danger reproduction statements same conflicting confident that it has before it two denied having Inez Blanco younger witness.” Defendant out that the points her, suggest- and that the “other evidence" made the statement attributed to which, Perez of testimony the statement was made consists of ing contends, defendant was untrustworthy.

We conclude Perez’s constitutes sufficient evidence testimony support Perez’s credi- that the statement was made. finding by jury disputed Barnes (People was for the to determine. v. although challenged, jury bility, 228, 42 Cal.3d 303-304 721 P.2d Cal.Rptr. [228 to establish hearsay, It is true that case the use of present multiple made, danger faulty ‘the the inconsistent statement was increased Green, supra, (California of the declarant’s statement. v. reproduction” prior 498, 497].) factor does single 399 U.S. 158 L.Ed.2d at But this pp. [26 rule different that set forth warrant of a from dispositively application Green, above, because, v. as noted supra, especially California declarant’s denial that she made the statement alleged prior actually places the defendant in a the statement than had she stronger to attack position admitted making it. with each value of evidence decreases

Although probative hearsay level 408 (People v. Dehnel 99 hearsay Cal.App.3d [160 279]), be more hearsay may one instance of particular multiple reliable than another instance of to be accorded single hearsay. weight Barnes, (People supra, Perez’s statements was for the jury to determine. 284, 303-304.) 42 Cal.3d It is that the determine the credi- preferable jury evidence based the circumstances rather bility hearsay upon totality of

957 than that this an the number arbitrary solely upon court establish rule based of levels of evidence bars the admission of hearsay. existing No rule of where each level constitutes a multiple-hearsay hearsay prior testimony statement, inconsistent and we decline to establish such a rule.

Defendant, statement have contending should multiple-hearsay witness, been excluded Perez because was an unreliable cites the decision 638, 653, Wright (1990) Idaho v. U.S. S.Ct. L.Ed.2d that the proposition evidence has the proponent hearsay 3139] burden of the evidence establishing that bears “sufficient indicia of reliabil ity to withstand scrutiny under the But require Clause.” this [Confrontation] ment if applies only is unable to prosecution produce declarant and (Id. the declarant “is shown to be unavailable.” L.Ed.2d at p. p. 652].) unavailable, Where the declarant is the defendant has no opportunity declarant, to confront and cross-examine the and the out-of-court statement ” be must excluded it (ibid.) unless “bears of adequate reliability’ ‘indicia such that testing (Id. “adversarial add reliability.” would little to its at 821 p. 656].) L.Ed.2d at p. [111

The rule foregoing does not to the of apply admission inconsistent prior because, court, statements when the in declarant testifies the defendant may confront and cross-examine the The witness. admission inconsistent prior statements does not offend the confrontation clause—not because such needed, statements are so inherently reliable that testing” “adversarial is but because the declarant is present court and such testing” “adversarial can occur as the defendant confronts and cross-examines the witness. controlled, therefore,

The present case is by the holding Califor Green, nia v. supra, that “the Confrontation Clause is not violated by statements, admitting a declarant’s out-of-court as is long as declarant as a testifying witness and subject to full and effective cross-examination.” Green, (California v. supra, 497].) 399 U.S. 158 L.Ed.2d at The p. [26 primary reason for this rule is that “the inability to cross-examine the witness at the time he made his statement prior cannot be shown to be easily of crucial significance as as the long defendant is assured of full and effective (Id. cross-examination at the time of p. trial.” at 159 L.Ed.2d at [26 497].) p. In holding, so the high court those distinguished cases which required evidence to possess “indicia of reliability,” because such cases addressed “precisely opposite situation—situations where statements have been admitted in the absence of the declarant and any without chance to cross-examine him (Id. at trial.” at 499].) 161 p. L.Ed.2d p. [26 case,

In the present the prosecution was not to required demonstrate that Perez’s testimony bore certain “indicia of The reliability.” circumstances of Perez’s defendant that cast upon reliability recounted doubt therefore, inadmis- not render the statement testimony, multiple-hearsay do sible, weight jury determining but were factors for the to consider the evidence. “was probative testimony

Defendant asserts that the value Perez’s that the thus its effect” and evidence clearly outweighed by prejudicial have been excluded Evidence Code section 352.4 pursuant should was at trial. objection record reflects that no this made ground an duty express of such an the trial had no make objection, absence court Evidence based under ruling upon weighing prejudice relevance (People section 52 Cal.3d Code 352. Anderson 1107].) Cal.Rptr. P.2d does in what Perez’s testimony unduly

Nor defendant explain respect that it is a result more favorable prejudicial, stating only reasonably probable testimony. defendant would absence of Perez’s have been reached 352. is not the referred in Evidence Code section This sort of prejudice (People v. Hole 436-437 Cal.App.3d which of evidence under Evidence “The exclusion prejudice to a damage section 352 to avoid is not the or designed prejudice Code is relevant, evidence.” probative defense that flows from naturally highly 612, 659, Karis 758 P.2d (People (1988) Cal.Rptr. v. 46 Cal.3d 638 [250 358, 1189]; (1983) v. People Yu 143 377 Cal.Rptr. [191 Cal.App.3d “Rather, in the uses the word sense of etymological ‘prejudging’ statute its (People or cause of factors. person basis extraneous [Citation.]” 508, 940].) No Farmer 47 912 765 P.2d Cal.Rptr. Cal.3d testimony. such Marietta Perez’s prejudice ensued from admission of at TestimonyPreviously by 2. Given Marietta Admission Perez of Hearing the Evidence 402 Code Section case, defense, its

At the of the of during presentation request of a transcript the trial court admitted into evidence three portions reporter’s 16, 1986, testimony hearing of the Marietta Perez at the December given by Code, 402) jury conducted Evid. of the (pursuant presence outside § determine the her Defense testimony. of admissibility multiple-hearsay in and which counsel was to read to 10 answers permitted jury questions stated, contrary Perez had her before contrary testimony jury occasions, nor her statements made neither Blanco on other that Juanita may pertinent in court provides, part: 4Evidence Code section 352 “The in its discretion its outweighed by if is probative substantially probability exclude evidence its value danger prejudice will . . . admission create substantial of undue . . . .” murder, Inez were at home on the of the that the younger sisters morning Blanco had not said were when he clothing bloody defendant’s hands house, came to the Blancos’ no one had to Perez’s home and come evidence, her and the warned not to then offered into testify. prosecutor court ruled over of the entire objection, transcript admissible Perez testimony given by at the prior hearing.5 in

Evidence Code section of an provides, part “Where pertinent part: act, declaration, conversation, or in by is evidence one writing given party, the whole on the same be into an adverse subject may by party inquired

“In Evidence do Code section the courts applying draw narrow lines ‘In around the exact the event a subject inquiry. statement admitted in evidence constitutes corre a conversation or part spondence, is entitled to have opponent evidence all that was placed said or written or to the by declarant the course such conversation or correspondence, provided upon, the other statements have some bearing or with, connection the admission or declaration in evidence. . . .’ [Citations.]” (Pe ople v. Hamilton 48 Cal.3d 730], 774 P.2d italics in original.)

Defendant introduced portions of the Perez testimony given by held hearing outside the presence jury, order to demonstrate that this testimony differed from her later testimony before the and from jury entitled, statements she had made on other occasions. The were People therefore, to introduce the remainder of Perez’s testimony for purpose context, her placing allegedly inconsistent statements their pro proper vided that the remaining testimony “some or bearing upon, connection with” the inconsistent statements (People introduced defendant. v. Hamil ton, supra, 48 Cal.3d at omitted.) italics p.

The statements introduced by defendant concerned Perez’s multiple-hear- say testimony relating Juanita Blanco’s her Inez’s repetition of sister state- ment (regarding defendant’s visit to the Blanco residence the morning of the murder) and whether Perez later had in been warned not to the assist murder investigation. Perez’s testimony at the hearing less than comprises six full pages reporter’s Perez transcript. first described the nature of her 5The portion of the reporter’s transcript by parties only cited the the reflects that court transcript marked the testimony Perez’s as an exhibit and ruled it was admissible. A by declaration the court clerk that transcript states the was received in evidence. Defendant states he does not know whether this was given exhibit to jury, the but asserts we should presume it People was. The point, concede the stating: “For present purposes, counsel respondent does appellant’s not take issue position with that it should assumed that the be transcript in was fact the jury.” before the We accept [iic] concession People’s the assume the transcript was admitted into evidence and to the jury. submitted recounted her conversation family, with the Blanco and then relationship sister, The Inez. the of Juanita’s concerning with Juanita Blanco statement she had warned concerned whether been testimony remainder of Perez’s testimony The with Perez’s only portion to the authorities. cooperate defense by relate those introduced the portions did not to directly That relation- the Blanco relationship family. Perez’s of her with description Blanco, connec- in or bearing upon, with Juanita had “some particular ship, relating concerning her Juanita’s testimony tion with” multiple-hearsay sister, did trial court Accordingly, Juanita’s Inez. the statement made by entire not err to Evidence Code section admitting, pursuant hearing. Perez at the testimony given by prior “without even court Perez’s testimony

Defendant states the trial admitted During The record support does not this assertion. reviewing” transcript. entire testi- to admit Perez’s argument concerning prosecutor’s request I transcript?” see the “May from court mony prior hearing, inquired, to me stated: appears its the court “It Immediately prior making ruling, The line 16. Perez’s in its testimony pertinent part goes up that Miss therefore, that It appears, rest is between counsel colloquy argument.” its making court before carefully transcript the trial rather reviewed ruling. exercise his trial failed to

Relying claim that the court part upon testimony, discretion did not of Perez’s transcript its because it review testimony erred exclude the refusing defendant contends the court prior section 352 effect prejudicial Evidence Code because pursuant however, above, outweighed evidence its As probative explained value. did trial court review the transcript. “ ‘must

The record of a based on Evidence Code section 352 ruling judge weigh against show that the trial did fact affirmatively prejudice Cal.3d value . (People . . .’ v. Heishman probative [Citations.]” case, 629].) In the after 753 P.2d present reiterated his ruling, objection trial court made its defense counsel I have was based on Evidence Code section The court “Yes. responded: 352. I testimony. about whether the would confused whole thought jury be trial don’t indicate the they believe would.” record thus is sufficient to discretion, court understood to Evidence pursuant its and exercised its duty, (45 170.) section 352. at p. Code Cal.3d observe, given

We that the admission of the entire additionally, testimony Perez at the Evidence Code could have by hearing preju- section diced defendant. he much was cumula- acknowledges, As of this testimony tive Perez to testimony given by jury. portions, before Other small

such as the that Juanita reversed the when she charges telephoned statement Perez, were irrelevant nonprejudicial. Tape Recording

3. The Prosecution’s Intentional Destruction a by Prepared the Defense selected, had jury

After been but before statements were opening given, Assistant District Steven Plumer stated at a conference Attorney conducted outside of the an audio presence jury tape recording defense had belonging to counsel been discovered one inadvertently the prosecutors, District Van and his chief Deputy Attorney Gary Camp, officer, Heidt, investigating Detective and had been de- Sergeant Harry disclosure, stroyed intentionally by hearing Heidt. Two after this days commenced outside the presence jury, following: revealing 4,1986, Heidt,

On October jury begun, after selection had Van Camp and car,” while in a traveling discovered “county envelope a sealed bearing Davis, name of Assistant Public Defender Bill attorney the defense case, and a return present address of the Santa Barbara Public Defender’s Office. From the of the it shape to contain an audio envelope, appeared cassette tape. Heidt,

According Sergeant he to Van that Heidt suggested Camp contents, a “found prepare property” report envelope and its which be Instead, would “standard procedure” under such Van circumstances. Camp opined that the relate to the tape might case and asked Heidt present to listen to it and to him “report what was on the tape.” Heidt testified that instead of to the listening he tape recording, threw the sealed into envelope a trash dumpster approximately minutes after the envelope was discovered. later, days

Two Heidt spoke Van who Heidt Camp, whether inquired anything from report to the listening Heidt told Van tape recording. he Camp had not it listened to and “expressed feelings being about [his] in that placed position,” explaining it hearing that Heidt felt would have been him “unethical” for to have listened Heidt tape recording. that, concerned, stated to Van as far as Camp Heidt was “the tape was never found.” later,

Nearly 24, 1986, Hebert, three weeks on October R. the chief of O. the Lompoc Police Department, Sergeant summoned Heidt to determine whether Heidt had knowledge argument of a heated to have occurred alleged between Van and a member Camp Heidt Lompoc Police Department. Hebert whether there knew of that Chief then nothing inquired incident. he Heidt that responded were between Heidt and Van any problems Camp. Hebert, and, by did have some further Chief inquiry without problems of the volunteered the the and destruction concerning discovery information of had “bothered” envelope Heidt testified his destruction the tape recording. him, eviden- and he it was to disclose the incident before the important felt court defense was aware of began of the trial the and the tiary phase “[s]o Plumer Attorney what Chief Hebert informed Assistant District happened.” who, begin the before statements were to opening October day trial, the at the of the defense counsel of incident. guilt phase notified coincided with discovery envelope Van recollection the the Camp’s Heidt’s, denied Heidt to listen Sergeant except instructing Van Camp Heidt, he instead that tape recording, testifying gave envelope “I to do it.” don’t want it. You take it and decide what with stating: you he had Assistant Defender Bill Davis dictated . represented Public in his of the strengths which revealed tape recording question, perceptions case, trial meeting which weaknesses of for preparation discussed of his strategy experienced to be with members office. his contents of had for use at tape recording been transcribed it in an meeting. sealing envelope Davis last saw the after tape recording A it sealed placing county September copy automobile on 1986. defense and was reviewed transcription by was introduced counsel trial court camera. court, Barbara

Prior to the District of Santa any ruling by Attorney Sneddon, the role County, prosecutor, replacing Thomas assumed of trial Van been Camp. Sneddon later to the that Van had represented Camp court demoted, $52,000 year in a from resulting salary per approx- decrease $27,000 imately year. per denial,

The trial found that his had instructed Camp, despite court Van Heidt listen to further found that Heidt Sergeant recording but tape had not done instead recording listening so and without disposed to it. incident, light defendant dismissal of foregoing moved sanctions, or the entire Santa

charges, other recusal of appropriate Office, Barbara District to conduct County (3) a continuance Attorney’s investigation. further research and The trial each of the mo- court denied We in each tions. shall consider whether erred separately the trial court instance, but first we the trial court’s address contention that to the tape neither Heidt nor had listened

finding—that Sergeant Camp Van recording—was “legally erroneous.” Camp Nor Finding

A. The Trial Court’s That Neither Heidt Van Tape Recording Had to Listened the

Defendant the trial the the urged court to dismiss case because prosecution (See had the defense the camp” by listening tape recording. “invad[ed] Municipal Barber v. Court Cal.3d 756 [157 case, 598 P.2d declined the trial court to dismiss or some impose sanction, other it because found the had not listened to the prosecution tape us, At if recording. argument oral before counsel conceded that prosecution the did listen to the no sanction should be tape, imposed. however, contends,

Defendant the in finding that trial court erred because, the as prosecution recording not listened to the a tape sanction Sergeant Heidt’s destruction of the trial court recording, the tape required reject he recording, Heidt’s denial that had listened to the find and to instead that the prosecution had listened to it. claims that Heidt’s (as destruction cassette itself tape distinguished from contents the recording) and destruction of the envelope containing tape cassette defense “deprived only evidence it could use physical Heidt impeach and Van regarding whether unsealed the Camp they claim, and listened to the In envelope tape.” of this an support expert forensic acoustics testified for the “in defense that instances” he could many determine from an examination of a tape the known machines recording, which it had upon been recorded and whether it had been played, played upon any machine other than those the known Using known machines. machines, the expert would prepare tape” a “test it to the compare tape at recording issue. differences Any tape” between “test and the tape at recording issue would indicate that the latter had been played machine different from known machines. order for such be testing to it productive, is “critical” that the recording cassette used to make the tape new; new, issue be if it is not differences between it and the “test tape” be might “attributable to prior use of the Defense tape.” counsel Davis testified the he used An tape was new. identification expert fingerprint also testified it is possible detect on an fingerprints envelope, on a holder, tape cassette and on the cassette itself. tape Defendant does not he assert was harmed destruction of contents of the tape nor could recording, he. Defense counsel had dictated the contents of the recording, had been thus transcription prepared, preserving contents of the recording despite destruction of cassette tape. to discard the for Heidt highly improper that it was beyond dispute

It is mate might counsel and contain it to defense knowing belonged envelope, in Hitch People the decisions v. case. Citing rial to the pertinent present 9, v. Zamora People 527 P.2d (1974) Cal.3d 641 Cal.Rptr. 361] [117 573, 1361], defendant contends 615 P.2d (1980) 28 Cal.3d 88 Cal.Rptr. [167 for Heidt’s destruction trial court was as a sanction required, the had listened Camp find that Heidt and Van and the cassette to envelope tape, conclude, however, its the trial court did not abuse We that recording. to the such a impose in inappropriate discretion it would be determining sanction. Hitch, supra, in Cal.3d

“The law is no found longer applicable 641, decisions. in States Court Supreme two United subsequent but 413, 422, L.Ed.2d (1984) 467 U.S. 488-489 v. Trombetta [81 California 2528], the Constitution duty the court held: ‘Whatever high 104 S.Ct. evidence, limited to that must be duty on the States to imposes preserve in role the significant suspect’s evidence be might expected play that [citation], evi materiality constitutional defense. To meet this standard of value that was before apparent dence must both an possess exculpatory be that the defendant would evidence was and be of such a nature destroyed, means.’ available reasonably unable to obtain evidence other comparable 488 U.S. (Fn. omitted.) Youngblood v. recently, More [ft] Arizona 281, 289, 333], ‘unless a court held that L.Ed.2d 109 S.Ct. failure to police, defendant can show bad faith on the part criminal due a denial of useful evidence does not constitute potentially preserve ” (1991) 53 Cal.3d 810-811 (People Cooper of law.’ process the high This court has expressly adopted 809 P.2d (Ibid.) Youngblood. holdings court’s Trombetta and its progeny case is different from Trombetta present or guilt were not relevant to defendant’s that the and cassette envelope tape innocence, had engaged but related to whether solely prosecution in Trom But the do not assert that the rule announced People misconduct. and we no reason this rule—formulated why betta is inapplicable, perceive apply in the context destruction evidence—should not of a of exculpatory official wrongdoing. with force to the destruction of evidence of equal that, case, In the had the and the cassette urges envelope defendant present determine it contained been could have been tested to tape preserved, they had been tape recording whether the had been and the envelope opened it But this value” of the and the cassette played. “exculpatory envelope tape (as recording) contained to the contents of the was not opposed tape apparent at the time Heidt of them. Sergeant disposed Although certainly Heidt recording might possess reason to contents of suspect tape value, did recording the destruction of the contents of exculpatory tape not lessen defendant’s Heidt’s ability challenge testimony prose- Therefore, cution did not listen to the the destruction of contents tape. tape recording affords no basis for of the sanction that imposition trial be court Heidt’s and find that the required reject testimony prosecu- tion listened to the recording. tape

Neither does the destruction and the cassette them envelope tape selves, from the apart recording, destruction of the contents of the tape a afford basis for imposing sanction. The record before us requested the trial supports court’s that the value implied finding allegedly exculpatory of the and the envelope cassette themselves was at the time not apparent 870, Heidt threw (See them away. People v. Medina 51 Cal.3d 893 849, P.2d [274 sanction for destruction of a bottle 1282] [no bearing because the fingerprint, officer who “could not destroyed the bottle whether, extent, know at the time the were taken prints or to what the Perrier bottle’s matched print It prints”].) was reasonable for the trial

court to conclude that Heidt had and the destroyed envelope cassette tape without aware being that later they would assume evidentiary significance words, on the issue whether Heidt had listened In to the other recording. that, record supports conclusion at the time the and the cassette envelope were discovered and destroyed, Sergeant Heidt had no reason to believe that the envelope and the cassette themselves from the contents of the (apart tape would recording) in “play significant role the suspect’s (Califor defense.” nia v. 413, 422, Trombetta 467 U.S. L.Ed.2d 104 S.Ct. [81 2528].)

Heidt contents, acted clearly in wrongly of the disposing envelope its case, but under the circumstances of the this act did present improper defendant deprive of due process of law or otherwise deny defendant a fair trial. high court has made it clear that the destruction of evidence lawby enforcement officials if deprives defendant of due of law process only value exculpatory of the evidence was the evidence “apparent ‘before was destroyed.’ (Arizona Youngblood (1988) v. [Citation.]” 488 U.S. * 56-57, 281, 288, 333], fn. L.Ed.2d 109 S.Ct. italics in original.) Trombetta, v. the high court found no constitutional violation California where record allegation “[t]he no of official contained] animus towards or respondents of a conscious effort to evidence.” suppress exculpatory Trombetta, (California supra, 467 U.S. L.Ed.2d case, We have observed that the trial present court found reasonably that the value exculpatory and the envelope (as cassette so themselves Heidt defendant) disposed at the time apparent was not characterized that, it was although highly them. The record conclusion supports cassette, deprive he did not Heidt destroy for intend improper defendant. Accord- evidence otherwise harm defendant of or to exculpatory testi- Heidt’s believing court did not abuse its discretion trial ingly, and, accord- it opening that he had discarded the without mony envelope finding an adverse by making to sanction the ingly, declining prosecution recording. that the had listened to the tape prosecution the trial judge, also contends it was improper of Heidt opinion Heidt’s to consider the assessing credibility, personal In announcing the bench. had formed to his judge prior appointment the trial the tape recording, Heidt did not listen to finding Sergeant his now, public me being deputy stated: the evidence before judge “[F]rom then, Heidt Sergeant and knew years defender here for a couple [sic] then, it would not I knew Heidt Sergeant as a district deputy attorney he And that’s he have what he said did. have me that would done surprised no at trial to this statement objection not listen to it.” Defendant voiced judge. the trial raise this that defendant’s failure to

We with the General agree Attorney (Guadalupe A. v. in claim of error. issue the trial court his precludes present 100, 570]; Gimbel Superior Court (1991) 108 Cal.Rptr. 234 Cal.App.3d [285 77, 88].) defend- v. Laramie Had (1960) 181 85-86 Cal.App.2d [5 fashion, in have had an ant a the trial would judge raised the issue timely contacts with Sergeant to disclose the extent to which his prior opportunity and, unable to act had affected if the trial was ruling judge Heidt his then could have judge and defendant had so the trial impartially requested, Defend- another credibility judge. transferred the of Heidt’s determination time on appeal. ant therefore not raise this issue for the first may did err Having finding prosecution concluded trial court that the trial did we defendant’s contention not listen to turn to tape, for Heidt’s intentional court should have dismissed the case as a sanction destruction the tape recording. Dismiss

B. Denial Motion to of Defendant’s the case must be a number of defendant asserts Citing grounds, sanction an appropriate dismissed. Defendant contends that dismissal is without recording because Heidt the contents of the Sergeant destroyed tape sure, To be this is whether were essential to the case. knowing they defense was improper, reason that Heidt’s destruction of the cassette primary we do not condone his conduct. But though even Heidt’s destruction of the tape recording clearly war- improper, imposition sanctions is ranted if only defendant suffered prejudice as result of Heidt’s misconduct. theAs United States Supreme Court a related context: explained “[T]he interest society unlawful and the deterring police conduct public in having interest receive juries all evidence of a crime are probative same, worse, properly balanced in the by putting police not a position would have in if they been no error had police or misconduct occurred. 431, (Nix and citations (1984) v. Williams [Fn. 467 U.S. omitted.]” [81 377, 387, L.Ed.2d 2501].) 104 S.Ct. above,

As noted the destruction of the contents of did tape recording defendant, not prejudice because the contents of the tape recording been therefore, preserved by It would have transcription. been inappropriate, the trial court to sanctions for impose the destruction of the contents of tape recording, the severe particularly sanction of dismissal. “[A]bsent thereof, demonstrable or prejudice, substantial threat dismissal of the indict- ment is plainly even inappropriate, though the violation the defendant’s [of right may (United have been counsel] deliberate. States v. Morrison [Fn.]” 361, 564, 569, 449 U.S. L.Ed.2d 101 S.Ct.

Where misconduct, it appears that the state has engaged burden evidence, falls upon People prove, by preponderance of the that sanctions are not warranted because the defendant was not prejudiced by Williams, (Nix misconduct. v. supra, 467 U.S. L.Ed.2d 387-388]; Murphy Comm’n 378 U.S. fn. 18 [12 Waterfront 678, 695, L.Ed.2d 84 S.Ct. met that burden People here. The evidence established that the did prosecution not listen to the tape recording and that a transcription tape recording been made and inwas the possession of defense counsel. The prosecution gained nothing by the destruction of the tape, and defendant lost nothing.

Defendant also contends dismissal is an appropriate sanction because the prosecution have may concluded, listened to the tape recording. We have however, that the trial court held properly contrary. denying dismissal, defendant’s motion for the court invited defendant to reopen issue in the event the in manner which the prosecution its case presented reflected an awareness of the contents of the recording. Defendant did tape not move to reopen issue and made no showing of such awareness on the part of the prosecution. In of light the breadth discovery of common cases, capital a substantial change the prosecution’s strategy resulting from access to the tape most recording would have been likely apparent the defense. Thus the record before us affords the imposition no basis for to the tape listened prosecution upon premise sanction based any recording. because should have been dismissed contends the case finally

Defendant of Van consisting misconduct prosecutorial the cumulative effect of Van recording, to the tape Heidt to listen Sergeant instruction to Camp’s witnesses, interviewing prosecution method of unethical Camp’s allegedly file, and his lying the court defense witnesses from his of a list of copying Heidt listen to the tape he had instructed oath denying under demonstrate, however, in- that these has failed to Defendant recording. misconduct, his cumulatively, or prejudiced either alleged singly stances of sanctions impose did not err refusing the trial court Accordingly, case. Morrison, (United supra, 449 U.S. States v. on the prosecution. 564, 568-569].)

L.Ed.2d County Santa Barbara Motion to Recuse C. Denial of Defendant’s Attorney District Sneddon Sneddon, person- Thomas County, Santa Barbara Attorney

The District prelimi- before the shortly from its until inception this case ally prosecuted Martinez Attorney it to District Deputy when he nary hearing, assigned Later, Deputy the case to reassigned Sneddon the preliminary hearing. Van for trial. Attorney Camp District noted, in the destruction of when Van previously Camp’s participation

As case from the Camp Sneddon removed Van light, came to tape recording subsequently of trial prosecutor. assumed the role personally denied the recused. The trial court Sneddon Attorney moved to have District motion. “shall attorney a district a motion to recuse

Section states that interest evidence that a conflict it is shown not be unless granted receive a would that the defendant unlikely as would render it exists such ‘conflict,’ exists when of section meaning trial.” within fair “[A] that the possibility evidence a reasonable ever the circumstances of a case evenhanded function an discretionary exercise its DA’s office may Cal.Rptr. Cal.3d 148 (People v. Conner 34 manner.” to recuse a motion 5].) “In whether a on determining ruling 666 P.2d standard. [Cita the abuse-of-discretion reviewing a court proper, applies (1988) 46 Cal.3d (People v. Hamilton tions.]” P.2d have been should Sneddon contends District Attorney of Van investigation terminated (1) he his prematurely

recused because misconduct, (2) charge he filed a Vehicle Code section 10851 Camp’s evidence, defendant, it was not substantial by against knowing supported (3) he a conviction to personal obtaining protect had interest a order his office negative himself and from publicity.

The trial court concluded there was no evidence Van misconduct Camp’s the fair receiving would defendant from a regarding tape recording prevent trial, Van been from the trial court once had removed case. The Camp further that Inez gave found Blanco’s denial that she defendant permission take her the a Vehicle automobile constituted reasonable basis for filing that, Code but if was that charge section even it charge improper filed, to have been error was cured when was dismissed. any charge Nothing suggested defendant could not a fair trial on the remaining receive Finally, the trial court ruled charges. remaining allegations that misconduct, considered or did not create a reasonable singly cumulatively, that defendant not receive fair trial. possibility could motion, that the urging trial erred in defend- court recusal denying ant to a letter points to Van which Sneddon Van Camp condemned actions. We Camp’s perceive fail to letter supports how this claim that Sneddon have should been recused. Sneddon’s condemnation of Van Camp’s unethical conduct was letter appropriate. The entirely appar- an ently was initial in the step imposition of administrative To discipline. there would been contrary, have cause had failed for concern Sneddon action, take such or he otherwise Van Camp’s condone appeared misconduct.

Defendant also asserts Sneddon his investigation terminated internal into Van Camp’s misconduct when trial court required prosecution disclose to defense any information uncovered that Assistant inquiry. District Plumer Attorney Steven testified when Van involve- Camp’s 27, 1986, ment with tape recording was disclosed October Sneddon Plumer instructed to inform defense and to have attorney counsel district Heidt, investigator Charles Watkins interview Van and others who Camp, 28, 1986, might possess relevant information. On October Plumer appeared trial before the court and related he had concerning information received the discovery and destruction The containing cassette. envelope trial court scheduled a hearing for the following day. 29, 1986,

At the hearing on brought investigator October Plumer Wat- kins’s handwritten notes of his interviews and the defense provided copies to at its request. court advised Sergeant Heidt would be hearing to continued the in next order to him an day allow to consult opportunity the attorney’s counsel then that district attorney. requested with an Defense of the further conducting any investigation be “restrained” from office or, alternative, in reveal be to recording required tape destruction The trial that any investigation. to the defense information received from attorney’s by ordered that such obtained district any court information same Plumer advised day, office be disclosed to the defense. On that directed he had from Watkins. Sneddon Sneddon of information received investigation. a of his investigator that prepare summary 30, 1986, District held at which hearing Deputy On October was Heidt, Hebert, investigator Van of Police Attorney Sergeant Chief Camp, Watkins, instructed hearing, this Sneddon Following others testified. attorney’s that no the district investigation by Plumer further be conducted office, General’s Attorney and the matter was referred to subsequently 31, 1986, duties Plumer Van of his office. On October relieved Camp him As this “administrative relating placed suspension.” to case and above, that Van subsequently noted Sneddon the court represented Camp demoted, $52,000 in per year was a decrease from resulting salary $27,000 approximately year. per had an in the us district

Nothing attorney record before suggests conducted discontinuing being motive that was improper investigation An destruction his office. had been held by evidentiary hearing regarding Attorney referred and the matter later was tape recording, Const., V, Code, 13; (Cal. 12550.) Defendant General’s office. art. Gov. § § the district does not what would have been served had explain purpose office its own attorney’s investigation. continued acted

The trial court claim that Sneddon additional rejected it was charge, knowing Code unethically filing the Vehicle section 10851 evidence, Inez instead that by finding substantial the court supported her auto- denial she had defendant to take given permission Blanco’s This filing charge. mobile constituted a reasonable basis for the that Sned- is substantial evidence. circumstances finding supported by at a when Inez don filed Vehicle Code section time charge unclear, moved Blanco’s in the and later degree crimes participation not constitute investigation, to dismiss further does charge following unethical conduct demonstrate that Sneddon had an motive or improper the case. prosecuting nega- that Sneddon had stake” in “personal avoiding asserts all

tive thus was led to to obtain a “at publicity, conviction attempt defendant, demonstrated, This according costs.” motive is improper Perez, Inez multiple-hearsay Sneddon’s introduction of the statements evidence “which would testimony, Blanco’s and other hearing preliminary held that the trial introduced We have by have been other prosecutors.” Perez as well court admitted statements of as properly multiple-hearsay defend- Inez We find hearing testimony. unpersuasive Blanco’s preliminary items of evidence ant’s claim that these and other unspecified unsupported would not have been introduced other by prosecutors. 31, 1986, the

Defendant also makes reference the fact that on October day initial destruction of following evidentiary hearing concerning the tape recording, attorney’s bargain the district office made a offer to plea defendant of a sentence of life possibility parole without imprisonment the event he were to enter It offer was stated this would be plea guilty. withdrawn if not This not raised accepted that circumstance was as a day. recusal, ground for to the only was trial court’s attention brought another context more than month after had denied the one the court recusal motion. Defendant is on this precluded arguing therefore from now basis that the court in denying trial erred the recusal motion.

We conclude trial court did not denying abuse its discretion defendant’s motion to recuse Attorney District Sneddon.

D. Denial Motion Continuance of Defendant’s for 4, 1986, On Thursday, December after the court denied day trial (which motion to recuse the was district also attorney day scheduled opening statements), for defendant filed for a motion discovery seeking list names and addresses of all witnesses interviewed by former trial Van prosecutor and of all Camp persons during those present interviews. The motion included a for sufficient continuance request “[a] the purpose of conducting . . . That same morn- independent interviews.” ing, prosecution provided the defense with “a list of 50 and between 60” persons Van Camp The defense it wished inter- interviewed. stated view 24 of persons. those further Following proceedings, discussions and case was continued to December Monday, 8.

When trial resumed on December defendant filed a motion for mistrial that, on the ground because Van Camp’s misconduct not revealed until sworn, after the had been jury defendant had been denied an opportunity ask “many critical questions” on voir dire. The did not specify motion nature of questions. these a declaration the motion for support of mistrial, defense counsel stated that interviews of some the witnesses (on the list of witnesses interviewed Van “at least four Camp) disclosed Defense counsel more instances of misconduct.” apparent prosecutorial estimated that “the needed to into all the areas of type of look inquiry sixty misconduct will take a minimum to potential prosecutorial thirty of days.” mistrial, a the defense it arguing support “basically” of stated a continuance. The trial court denied for mistrial

seeking both motion continuance, “I continuing and the motion for further: will entertain a stating continuance need one to showing you motion for . . . a upon proper certain other And we will—I will to investigate sympathetic witnesses. be I have me your enough right grant needs. But don’t before now to recess, continuance.” a trial resumed with the Following prosecutor’s defense counsel’s statements. opening

On defendant does not the trial court’s denial of appeal, challenge mistrial, motion for its denial of the for continuance. only but motion “The denial of a motion the midst of granting or for continuance a trial rests within the of the trial who traditionally judge sound discretion must consider not the benefit which the but only moving party anticipates result, also the likelihood that such will the burden on other wit benefit nesses, and, all, and the court whether will be jurors justice above substantial In the a accomplished or defeated of the motion. lack of by granting defendant, of an abuse of a denial showing prejudice discretion or of of his motion for a continuance cannot in a reversal of a judgment result 192, (People conviction. v. Laursen Cal.3d 204 [Citations.]” 1145]; (1988) 45 People 501 P.2d see also v. Ainsworth Cal.Rptr. Cal.3d 755 P.2d

In the It case trial court did not abuse its discretion. present expressed sympathy investigate defendant’s desire to possibility additional instances of misconduct Van a brief Camp, granted delay court, however, from December denied defend to December 1986. ant’s for an midtrial “a minimum of request thirty additional continuance of to sixty days” because of the burden such a would inflict delay upon witnesses, other jurors, and the But the court invited defendant court. renew his motion for continuance upon showing relating specific witnesses, “I will has not noting: be needs.” Defendant sympathetic your cited any of the record that he ever renewed his portion establishing request.

Defendant also has not he was the denial of prejudiced by demonstrated his motion for continuance. defense counsel initial Although represented that misconduct, interviews had disclosed additional instances of the record does not reflect that such misconduct had evidence to be alleged any bearing upon trial, introduced at or otherwise defendant of a fair trial. We have deprived conclude, therefore, no basis to that the additional defense investigation counsel wished to conduct would have relevant evidence. produced

4. Preliminary Hearing Testimony Admission Blanco Inez Alleged

A. Rights Violation and of Defendant’s of Confrontation Cross-examination court,

Before the elder Inez Blanco was called to the trial on its testify, motion, own appointed counsel to advise her her against of self- privilege later, incrimination. Several days called Inez Blanco as a prosecutor witness at a hearing conducted outside the the jury. of After presence further, answering a few preliminary she declined questions, testify counsel, pursuant to advice of her on the incriminate ground might she herself.

A hearing was held to determine whether the would be prosecution permitted introduce into evidence a of transcript testimony given by Code, Inez Blanco at (Evid. the preliminary 402.) Defendant hearing. § called as a witness David Stanley, attorney who defendant at represented the preliminary hearing. testified Stanley that because of delays obtaining work, discovery from the prosecution, and the of other he had had press insufficient time to prepare for the preliminary recalled that hearing. Stanley at the time of the preliminary defendant in- hearing, charges against cluded alleged two special circumstances: murder for hire or financial gain, 190.2, murder committed during (§ course of a robbery. subds. (a)(1), (a)(17).) Defendant also was in a charged, separate with complaint, Code, unlawfully taking (Veh. a vehicle (a)). subd. One of Stan- § ley’s primary goals was to eliminate the circumstances if special allegations, possible, and he believed the allegation of murder hire gain for or financial was He “particularly weak.” understood the to be that prosecution’s theory Inez Blanco had “procured services” of defendant to commit the murder.

When the prosecution completed its direct examination Inez of Blanco the preliminary hearing, concluded Stanley “there was no direct evidence whatsoever which would an inference that there had murder support been a hire, weak only very circumstantial evidence that in any way would therefore, associate with the . . killing Determining, . .” [defendant] there was no need to (in contest Blanco’s Stanley focused instead credibility, his witness) cross-examination of the on not evi- inadvertently revealing dence supportive murder-for-hire view was that allegation. Stanley’s that the if he “didn’t some evidence bring damaging blunder out out, from the had not that when brought departed prosecution [Blanco] stand, to fall gain going witness financial allegation [murder for] my goal.” That was wayside. certainly ensue, that, also was aware should a of the trial Stanley penalty phase had, as defendant and it therefore family Blanco was as close member kind rude “was ... not to alienate her or very important by any her, kind of tactics but rather to maintain a roughshod examining positive her maintaining cooperation with her relationship speculation dismissed the hearing, magistrate At the conclusion of the preliminary that the murder was for financial allegation gain. Subsequently, committed the People’s a vehicle was dismissed on charge unlawfully taking motion.

Based Inez Blanco’s invocation of her self-incrim- upon privilege against Code, ination, 240.) (Evid. trial court found she was unavailable. § that her hear- argued unavailability, preliminary Blanco’s despite inadmissible, and was is unreliable ing testimony testimony because hearing defendant’s motive for Blanco at the cross-examining preliminary differed her at trial. trial court cross-examining from his motive for ruled was hearing that the of her at transcript testimony preliminary her did defendant give permis- admissible for that she not except testimony automobile, her the Vehicle Code section dismissing sion to take because of her 10851 stated it no believed that charge prosecution longer portion was the Evidence Code section 402 testimony Following hearing, true. the jury. of Blanco’s was read to transcript preliminary hearing testimony testimony Defendant contends that the admission at trial of this 1291, under violated Evidence section as well as his of confrontation right the federal and state Constitutions. 1291, (a),

Evidence part: Code section subdivision provides, pertinent “Evidence of made rule testimony hearsay former is not inadmissible if (2) the declarant is The party unavailable as a witness and: [][]... [][] whom the a to the action or against testimony former is offered was party and proceeding right oppor- which the was and had the testimony given to cross-examine the declarant with motive similar to tunity an interest and that which he has at the his motive for Defendant contends that hearing.” and cross-examining materially Blanco at “differed preliminary hearing trial, feared substantially” from his motives at because counsel (1) defense

975 damag- reveal hearing might the earlier that extensive cross-examination at of murder for allegation evidence circumstance regarding special ing which subse- prove financial which the had failed gain prosecution dismissed, Blanco because (2) he did wish to alienate quently a during penalty phase.6 she be a crucial witness might possible a witness cross-examining motive Frequently, will differ or her motive for cross- hearing from his during preliminary of an hearing testimony at trial. For the examining preliminary witness under Evidence Code section unavailable witness to be admissible at trial 1291, identical, (People v. Alcala only these motives need not be “similar.” 432, 4 (1992) P.2d Admission Cal.Rptr.2d Cal.4th [15 Evi witness is under permitted former of an unavailable testimony dence Code offend the confrontation clauses section 1291 does not to cross- the federal or state Constitutions—not because the opportunity an exact examine the witness at the is considered preliminary hearing Page Barber (see v. substitute for the of cross-examination at trial right 255, 260, 1318]), but because 390 U.S. L.Ed.2d 88 S.Ct. tire of the defendant’s justice balancing interests of are deemed served aby in effective to effective interest right against cross-examination the public’s 597, 606, (Ohio Roberts v. L.Ed.2d prosecution. 448 U.S. Malone, 2531]; People supra, 24.) 100 S.Ct. 47 Cal.3d Inez Blanco cross-examining Defendant’s interest and motive for existing those during preliminary hearing sufficiently were similar to trial testi so as to the admission of Blanco’s permit preliminary hearing occasions, mony. On both Blanco’s her contacts with testimony relating murder, defendant the day money, the defendant’s need for preceding murder, disappearance of Blanco’s automobile near the time of same to establish defendant’s Defendant’s interest tendency guilt. in motive this was identical at both discrediting testimony proceedings. chose, considerations, Defense counsel’s that he for testimony strategic testi- not to cross-examine Blanco not render her former vigorously does mony inadmissible. As as defendant was for long given opportunity cross-examination, satisfied; effective were statutory requirements of this evidence did not on whether defendant availed admissibility depend Green, 990; 981, (People supra, himself fully of that v. 3 Cal.3d opportunity. 355, People Sul (1981) 893].) v. 122 367 Cal.App.3d Cal.Rptr. [175 States v. Salerno United Defendant relies the decision in 510 upon U.S.__[120 2503], in L.Ed.2d S.Ct. which the trial court precluded against 6Defendant does not contest that self-incrimi privilege Blanco’s invocation of her Code, 240; (Evid. nation rendered her as a People unavailable witness. Malone § 1249].) Cal.Rptr. Cal.3d 762 P.2d two the grand jury before testimony given introducing defendant from incriminate might the ground they at trial on testify witnesses who refused it because is opinion important asserts: “The Salerno Defendant themselves. in examining a ‘similar motive’ not have may that a prosecutor demonstrates Defendant is exist at trial. as Jury” might in front of a Grand a witness mistaken, on opinion no expressed court Salerno high because the Instead, for Appeals to the Court of remanded the matter the court question. 264].) at (Id. p. L.Ed.2d p._[120 of this issue. consideration overruling reasoning trial court’s asserts the additionally flawed,” because “seriously to this evidence objection if defendant’s interests even be admissible court stated the evidence would at trial were hearing the preliminary Blanco at cross-examining not, not, single whether this determine We need and do different.” “entirely as to the the trial court on the of misunderstanding part reflects a comment an unavailable of testimony for admission of former requirements “ established firmly is better or more ‘No rule of decision witness. reason and propriety, a sounder basis of resting nor one by authority, upon law, decision, will not be disturbed itself correct than that a or ruling of any theory If right upon reason. given wrong because appeal merely case, regardless sustained it must be the law applicable to its conclusion.’ the trial court which have moved may considerations 1,19 (1974) 11 Cal.3d Examiners (D’Amico v. Board Medical [Citation.]” admit ruling court’s The trial 520 P.2d because, Inez Blanco was correct hearing testimony ting preliminary above, cross-examining and interest” for as defendant’s “motive explained law, were, as a matter and at trial hearing Inez Blanco at the preliminary Code section of Evidence sufficiently satisfy requirements similar 1291. Law Right to Due Process Alleged

B. Violation of Defendant’s 19, 1985) was filed (amended A on Mar. separate felony complaint (Veh. automobile. Inez Blanco’s unlawfully taking defendant with charging Code, 10851, for the (a).) joined, purpose was complaint subd. This § defend- case charging with the the complaint present preliminary hearing, ant with murder. 1985, Blanco began September

At the which on preliminary hearing, occurred, the murder morning testified that her automobile was stolen on the the else) to take (or defendant anyone permission and that she had not given above, other concerning testify As Blanco went on to vehicle. explained matters, Defendant was at trial. which was introduced testimony ultimately and,

held an on charge taking to answer on the automobile unlawfully 17, 1985, offense filed. charging an information that was September the On the filed motion to consolidate November prosecution information unlawful of an with infor- charging taking automobile mation in the case. The court that motion December present granted trial on 17, 1986, On an September charge taking 1985. unlawfully motion, automobile was on the which People’s dismissed was premised “the following ground: no that the defendant longer believe People actually took or used the vehicle without the and there- permission owner’s fore lack evidence to convict.” sufficient]

During Attorney motion to recuse the Office of the District Barbara, Martinez, of Santa County Attorney District Deputy Eugene at the prosecutor hearing, testified that at the time of this preliminary he Inez hearing, assumed had induced Blanco defendant to commit murder and “thought there was a she about good was possibility lying” taken her having automobile without her permission, believing, however, the remainder of her testimony to be truthful.

Defendant contends he denied due of law process because prosecutor, for the Inez purpose inducing Blanco at testify prelim filed inary hearing, and maintained defendant the of unlaw against charge vehicle, taking a fully knowing that that was based false charge upon and that trial testimony Blanco would her exercise Fifth Amendment not, privilege against self-incrimination and refuse to We need testify. not, do determine whether the record before us establishes the first factual premise (that of this contention filed and main prosecution improperly defendant, tained a charge against knowing it was based false testimo upon ny), because it is clear record before us remaining does not establish the premises of this contention: that the prosecutor’s purpose filing maintaining Vehicle alleged Code was to violation induce Blanco to that the testify, of this filing charge fact induced Blanco to at the testify preliminary hearing, and the prosecution knew Blanco would refuse to at trial. testify

The trial court found the prosecutor did an purpose not have improper Inez introducing Blanco’s did preliminary that she hearing testimony give defendant permission to take her in the automobile. record Nothing before compels us us reject that finding. addition,

In defendant does explain not the Vehicle Code why filing section 10851 against charge defendant would Inez Blanco induced have at circumstance testify hearing. light special the preliminary for gain, that defendant the murder for hire or financial allegation committed could have filing hardly the unlawful-taking-of-a-vehicle charge at she was an suspect convinced Blanco that the did not least prosecution sug- prosecution The available to the accomplice to murder. evidence hired it who defendant person would have believed that gests logically was Inez Blanco. the prosecution, would a that

Finally, nothing finding record support trial, at testify induced her to knowing Inez Blanco would refuse to at testify hearing. the preliminary (1985) Trevino People

Defendant relies v. upon observation 719], prosecutor may Cal.3d 704 P.2d that “the an bring charges against supported by proba- criminal individual unless cause,” 324 U.S. holding Ragen ble and the White 1348, 1352, conviction, 978], the use of by L.Ed. 65 S.Ct. “that a secured is a denial attorney, known to be such perjured testimony prosecuting for of due Neither of these decisions basis process. provides [Citations.]” reversal of the in the case. judgment present not, not, (1) that

We need and do determine whether the record establishes that preliminary hearing Inez at the by testifying Blanco committed perjury and, so, automobile, her if she did not take give defendant permission unlaw- charge that the knew was prosecutor testimony perjured. this trial, and disputed portion a vehicle was dismissed fully taking prior at Blanco’s not admitted into evidence preliminary was hearing testimony testimony trial. of Blanco’s suggests remaining that the Nothing portions has (which trial) received were defendant perjured. Accordingly, were failed to that was admitted at the trial or establish perjured testimony used some indirect manner to secure his conviction.

5. Blanco’s Inconsistent Statements Admission Prior Inez In her Inez Blanco denied that when at the testimony hearing, preliminary murder, desperate he was for she saw defendant the day preceding her on that occa- admitted he have automobile money, may but she driven to the jury, After was read testimony sion. Blanco’s preliminary hearing Stevens, Vernon called as witness Police prosecution Lompoc Sergeant Blanco hearing, who testified without to the objection prior preliminary drive had asked to had told him the murder defendant day preceding that defendant further her automobile but she had refused. Blanco had stated refused. money, had made which she requests also repeated Defendant contends the this evidence violated his admission of him, he had to confront the witnesses because no to right against opportunity (People her cross-examine Inez Blanco statement. v. regarding inconsistent Beyea (1974) 38 254].) the We asked Cal.Rptr. parties Cal.App.3d [113 to defendant supplemental addressing submit briefs the whether question objected to the Defendant he did timely admission of this evidence. concedes a raise to the admission Stevens’s testi separate objection Sergeant of statements, mony Inez Blanco’s but contends such an regarding inconsistent objection “was within of Inez objection to introduction incorporated hearing testimony.” Blanco’s We preliminary disagree. (a),

Evidence Code section a provides judg subdivision ment shall not be reversed because of erroneous admission of evidence unless there was a timely objection “so stated as to make clear the specific ground of . . objection . .” “The reason for the is manifest: requirement a grounded a specifically objection body to defined evidence serves to error. It prevent allows trial to consider judge excluding the evidence or its limiting admission avoid It prejudice. also possible propo allows foundation, nent of the evidence lay additional modify proof, offer or take other to minimize the steps designed of reversal. prospect [Citation.]” (People Morris 53 Cal.3d 187-188 Cal.Rptr. noted,

P.2d As the admis previously objected defendant sion of Inez hearing Blanco’s and the trial court preliminary testimony, not, however, overruled properly objection. object Defendant did to the admission Sergeant Stevens’s and did not the trial court testimony apprise of the contention he now makes if Inez appeal, namely, that even admissible, Blanco’s preliminary hearing testimony Sergeant Stevens’s testimony relating Blanco’s inconsistent prior statements was inadmissible. further he did not object asserts to the Sergeant admission of stated, Stevens’s testimony because the trial court defend- ruling upon ant’s objection to the admission of Inez hearing Blanco’s testi- preliminary “I’ve mony: made I my ruling. That’s all the argument subject.” want on the The quoted statement indicates only that court would entertain no further argument concerning defendant’s Inez objection to the admission of Blan- co’s hearing preliminary court did not defendant testimony; preclude from raising objections additional other evidence. People v. Frank

Finally, defendant cites plurality opinion 711, 729, 415], Cal.3d footnote 3 for the 700 P.2d that “On proposition an appeal judgment from imposing penalty death, a technical in the form be disre- insufficiency objection of an will contention, “Here, . . .” garded . As we noted rejecting how- similar ever, there was not a ‘technical objection’; form of an insufficiency 980 306, 45 331 (People (1988) Cal.3d objection Poggi

there was no at all.” v. 886, 1082]; (1991) 53 Jennings v. People 753 P.2d see also Cal.Rptr. [246 334, 780, 1009].) issue 357 this Accordingly, Cal.3d 807 P.2d Cal.Rptr. [279 (1972) v. 8 (People not be raised for the first time on Welch appeal. may 106, 217, 225].) 114-115 Cal.Rptr. Cal.3d 501 P.2d had if review and trial court Even the issue had been for preserved statements, would judgment erred Blanco’s reversal of admitting reasonable beyond because such error was harmless required, any be 705, L.Ed.2d 87 S.Ct. (Chapman v. 386 U.S. 18 doubt. California 1065]; 194.) Beyea, v. People supra, A.L.R.3d Cal.App.3d driven Inez Blanco’s that defendant have her automobile “may” statement it an significant the murder is extent day preceding only provided inside the fingerprints explanation presence innocent for of testified, however, that prosecution’s fingerprint vehicle. expert lever defendant location of defendant’s on the indicated fingerprint gearshift vehicle was Additionally, was the last to drive the vehicle. Blanco’s person town, found near the bus station from which defendant left parked vehicle, driving Pastor Valdez he had seen defendant similar testified Therefore, of the admission belonged which defendant had said his sister. had not driven her automo- Blanco’s out-of-court statement defendant affected the day bile the the murder could not have outcome preceding trial. defendant of Blanco’s statement that

Similarly, admission out-of-court verdict, in light had asked her could not affected the for have money had searched hearing Blanco’s that defendant testimony preliminary a.m., her vehicle for an advance requesting coins and had her at 3 telephoned of funds from their estate. We error the admission any mother’s conclude of this evidence was harmless reasonable doubt. beyond a on challenging that in the he from precluded contends event is testimony because appeal Sergeant admission of Stevens’s court, he effective defense failed to the trial was denied the object assistance of and the must be reversed on judgment counsel basis. courts will reverse convictions on the “Reviewing ground if the record discloses that inadequate counsel only appeal affirmatively (People counsel had no tactical act purpose rational for his or omission.” P.2d Fosselman 33 Cal.3d 581 [189 case, have might defense counsel present reasonably testimony chosen for to object tactical reasons not Stevens’s Sergeant because, re evidence was although this favorable to the some People it also Inez spects, benefited defendant insofar as it served to impeach Also, above, as noted preliminary hearing Sergeant Blanco’s testimony. case, in light Stevens’s to defendant’s testimony very damaging was not the other evidence Inez Blanco establishing money that defendant asked prior to the murder and drove her after the Defense automobile murder. therefore, concluded, counsel have that defendant’s interests reasonably may evidence, were served because it by impeached better the admission of this Inez Blanco’s hearing testimony. preliminary claim he

Defendant’s that was denied effective assistance of counsel also fails another A for reason. will not be reversed based on judgment denial of effective a unless there is reasonable representation probability that, but for counsel’s the result would been more failings, have favorable to 1027, the (People (1992) defendant. v. 1 1058 Mitcham Cal.4th [5 230, 171, 1277]; People (1987) 824 P.2d v. Cal.Rptr.2d Ledesma Cal.3d 404, 839]; 216-218 729 P.2d Cal.Rptr. Washington see Strickland v. [233 674, 693-699, (1984) 466 U.S. L.Ed.2d 687-696 S.Ct. above, 2052].) As noted even if the evidence had challenged been excluded, it is a more reasonably determination favorable to probable defendant would have resulted. Accomplice

6. Instructions Inez Blanco testified that she met day with defendant the the preceding murder, that, that defendant asked her for repeatedly money shortly after murder, she discovered her automobile had been stolen. Her testimony tended to connect defendant with crime by providing possible motives (defendant’s desire sister) and for money revenge on behalf of his and by automobile, establishing that Inez Blanco’s which later was linked defend ant, had been taken from her (located a residence few blocks from the scene) murder near the time of the murder. Defendant contends the trial court should have instructed the Inez Blanco was an accom jury law, plice to murder as a matter of and that her testimony required corroboration and should be viewed with distrust. The People, disputing law, assertion that Blanco was an a as matter accomplice argue trial court was not “the required give standard accomplice instructions” absent defense because such instructions request, would have been inconsistent with defendant’s of the case. the evidence theory Although does not law, establish that Blanco was an as matter accomplice we agree with defendant that accomplice instructions should have given, been but conclude the trial court’s omission was harmless error.

Section 1111 an defines accomplice “as one who is liable to prosecution for the identical charged offense against defendant. . The section . .” “A further conviction be had provides: cannot of an upon testimony unless it be corroborated such evidence tend to accomplice other as shall offense; connect defendant with the commission of the and the corrob- oration is not sufficient if it shows the commission of the offense or merely the circumstances thereof.” “ the trial is sufficient to testimony given upon ‘[W]henever

warrant the conclusion upon part that a witness jury implicating ” defendant was an accomplice,’ trial court must instruct the sua jury, determine sponte, to whether the (People witness was an accomplice. Bevins 54 Cal.2d 351 P.2d If the law, establishes that the witness testimony was an as a matter of accomplice must be so jury (People (1964) instructed. v. Robinson 61 Cal.2d 890, case, 394 Cal.Rptr. 970].) 392 P.2d either the trial [38 court also must “(1) instruct the sua jury, sponte, that the testimony accomplice [citations], witness is (2) to be viewed with distrust that the defendant cannot be convicted on the basis of the it accomplice’s testimony unless is 460, 466, corroborated (People (1973) . . . .” v. Gordon 10 Cal.3d fn. 3 906, 298].) 516 P.2d Cal.Rptr. [110

Nonetheless, “the failure to instruct on accomplice testimony pursuant 1111 section is where harmless there is sufficient evidence in corroborating the record. The corroboration be established en- requisite may [Citations.] circumstantial tirely by evidence. Such evidence slight be ‘may [Citations.] ” and entitled to little (Peo- consideration when standing alone. [Citations.]’ 57, ple 594, v. Miranda 44 Cal.3d 744 P.2d Cal.Rptr. [241 1127].) evidence “Corroborating ‘must tend to the defendant and implicate therefore must relate to some act or fact which anis element of the crime but it is not necessary that the corroborative evidence be sufficient itself to establish element every of the offense charged.’ (People Sully [Citation.]” (1991) 53 Cal.3d Cal.Rptr. 812 P.2d case, In the there present was more than ample corroborating evidence. Evidence was introduced that the Inez establishing younger Blanco said defendant at the appeared Blanco residence after the shortly murder with blood on his and stated: “What am I person to do?” Two going witnesses testified that Inez Blanco’s her automobile was not front of house the morning the murder One occurred. witness added that Inez-Blanco appeared surprised that her upon learning automobile was Pastor missing. Joe Valdez testified that on the of the murder an day driving defendant was automobile which defendant said belonged to his sister. Defendant left town bus, on a and Inez Blanco’s later automobile was found at the bus abandoned The station. prosecution’s testified that the expert defendant’s position of person on the lever indicated that defendant was last fingerprint gearshift Furthermore, flight to have driven vehicle. evidence of defendant’s after an the murder was committed inference of conscious shortly “supports which be guilt implied may ness of and constitutes an admission properly (Peo considered as testimony. corroborative of an accomplice’s [Citation.]” ple v. Garrison 47 Cal.3d 765 P.2d sufficient, therefore, 419].) The other evidence of guilt was Blanco, corroborate the elder testimony of the Inez error committed any by the trial in failing court to instruct of an jury regarding testimony accomplice harmless. Photograph Admission the Murder Victim While Alive

7. prosecution The offered into evidence a taken of the victim photograph while In the alive. fur photograph, she was coat and wearing gold jewelry. objected ground was irrelevant because photograph “[i]dentity is not an issue.” trial court objection overruled the admitted the photograph. have

“Although we held that of victims while alive photographs should not be admitted if have ‘no in they any contested bearing issue [citation], case’ the court has discretion to such if admit rele photographs 771, vant. (People Cooper, supra, v. In 821.) [Citation.]” 53 Cal.3d case, present the victim was engaged in an adulterous with relationship defendant’s brother-in-law. and Anger on the jealousy part sister was asserted as a factor motivating for murder. Under these circumstances, alive, photograph of victim while she was showing dressed, attractive and well had some relevance.

Defendant asserts the photograph of the victim taken while she was alive case, was unusually in prejudicial this because it showed the victim wearing coat, fur murder, a jewelry thus a suggesting as motive for the robbery when fact the victim was prosperous and was welfare. receiving however, Rather than establishing prejudice, the photograph’s depiction Ruby Gonzales as a likely victim enhanced robbery its relevance status, its supported admissibility. Regardless of victim’s her economic possession of valuable items of personal a property provided motive robbery. free was to offer evidence contrary. to the event, In any of the tendency photograph to establish victim owned expensive furs and jewlery would have been Inez cumulative. Blanco testi- fied she saw the $6,000. victim a wearing diamond necklace valued It is therefore, not reasonably probable, that a result more favorable to defendant 984 v. (People not been admitted. had this photograph

would have been reached 818, 243]; Taylor v. People see Cal.2d 837 P.2d Watson 46 [299 391, 1142]; 719, People P.2d Cal.Rptr. 52 Cal.3d 731 718, 475; Anderson, (1990) 51 Cal.3d People v. Frank supra, 52 Cal.3d P.2d Cal.Rptr. Findings Special Circumstances 8. above, erred in trial court that the argument, to his discussed

Referring as a matter of an accomplice that Inez Blanco was jury to instruct failing with be viewed corroboration and should and that her testimony required law distrust, reversal of the also requires defendant that this omission argues circumstances, the murder was committed that findings, as jury’s special As explained and a burglary. the commission of an during attempted robbery harmless, above, testimony Inez Blanco’s is because such error any (Ante, 981-982.) at pp. corroborated. sufficiently (1980) 27 Cal.3d v. Green People on the rule stated

Relying 468], circumstances is finding special 609 P.2d .[164 murder,” to the if is incidental burglary] merely “the robbery improper [or special to sustain the that the evidence is insufficient defendant contends Green, object” the “sole findings. disagree. circumstances We (Ibid.) murder. crime” of facilitate or conceal the primary was “to robbery clothes, to conceal order rings The defendant took the victim’s purse, There is no are dissimilar. her The facts case identity. present in order to robbery defendant committed the or burglary attempted indication facilitate or conceal murder.

Instead, defendant finding the evidence is sufficient to sustain defendant testified that then kill his victim. Inez Blanco intended to rob and and valuable jewelry and that the victim both cash kept needed money, addition, Marci testified Ruby 13-year-old daughter Gonzales’s her home. attacker, “I the money her will give you her mother with pleading she heard defendant’s that proves this statement jewelry.” argues and the victim, money he her offer of was kill the because refused sole to purpose valuables, her, The could reasonably killed left nothing. jury and with and victim’s An of the interpretation otherwise. equally plausible have concluded demand for is that the victim was to responding statement the A without completing and reason defendant fled money jewelry. likely the telephoned police. was that he knew Marci Gonzales had robbery (1980) 27 People Thompson holding Defendant relies upon case, In that defendant Cal.3d 303 611 P.2d Cal.Rptr. 883]. to be married and engaged entered the residence who were couple at but the cash and jewelry produced demanded did take money gunpoint victims, later he did not After demanding want these stating things. automobile, to the the defendant said receiving and victims’ key ” “ me,’ woman, I’m why ‘You know here and know who sent and shot you victims, (Id. 311.) killing surviving both The victim testified p. man. her harm former husband had threatened to kill her fiance and her. We held the evidence was insufficient to sustain circumstances special findings that the murder was of a during robbery committed the commission and that the burglary, reasoning defendant’s refusal to valuables that accept were to him given was inconsistent with an intent steal and statement made by just the defendant prior shooting the victims revealed that his true purpose to shoot victims. We concluded that the defendant’s demand and to the victim’s automo- acceptance key bile, context, viewed in indicated a desire for a than means of rather escape an intent to steal.

The case is different present Thompson, supra, from Cal.3d 303. Gonzales offered to defendant give but such valuables money jewelry, refused, were not produced and actually Thompson. as was the case record the inference in the supports case that defendant present intended first kill Gonzales then her steal but money jewelry, abandoned this Also, plan when the victim’s daughter police. summoned the unlike the in Thompson, defendant defendant case did present not state that his intention was not to steal.

Defendant contends that (made his statements extrajudicial shortly before murder), sister, requesting from his money cannot be used to establish the corpus delicti of the alleged special Although circumstances. it is true that “the corpus delicti of felony-based special circumstances must be established independently of an extrajudicial (People accused’s statements” v. Mattson 887], 37 Cal.3d P.2d fn. omitted), no such occurred in error case.7 present

“ elements, ‘The corpus delicti a crime consists of two the fact of harm, or injury loss or and the existence of a criminal as its agency 5, 1990, 7On June 115). section (Prop. 190.41 enacted voter provides initiative It corpus that “the felony-based delicti of a special (17) circumstance paragraph enumerated in (a) of subdivision of Section need not be proved independently 190.2 aof extrajudicial statement.” We have only held that section applies 190.41 crimes committed 140, 179, its after effective (People date. v. Mickle Cal.3d Cal.Rptr. 54 fn. 22 [284 290]; 814 Tapia P.2d Superior v. Court Cal.3d 297-299 807 P.2d however, and need circumstantial may be Such proof, cause.’ [Citation.] inference the reasonable facie showing ‘permitting or slight prima be only supra, 53 (People Jennings, v. crime was committed.’ [Citation.]” that a must produce evidence the 364.) People of quantum Cal.3d “[T]he 368.) (Id. at p. . . .” delicti rule is modest. quite satisfy corpus order to correctly regarding instructed in the case was jury present rule, element of the evidence of each there was some delicti corpus Specifically, defendant’s statements. circumstances of independent special “the defendant her mother offered of Marci Gonzales that testimony an the occurrence of to establish tending is evidence jewelry” money the victim’s offer was inference being a reasonable robbery, attempted and jewelry. her for money a demand from assailant made response supra, (People Jennings, delicti rule. satisfy corpus This is sufficient to 334, 367.) 53 Cal.3d

Penalty Phase Issues Underlying Evidence the Circumstances 9. Admission of of Manslaughter Voluntary 1973 Conviction of

Defendant’s trial, defendant’s 1978 conviction of the records of At the penalty phase were received manslaughter of voluntary and his 1973 conviction robbery then Department Dunham of the Oxnard Police Sergeant evidence. Charles 20, 1973, at the arriving June upon testified that on approximately p.m. crime, St. John’s body being transported of a he witnessed a scene scene, an automobile crime which included Dunham described the Hospital. seat, photographs and identified with amounts of blood on back large A knife used to harvest type area. surrounding the automobile and having the knife as the vehicle. Dunham described lettuce was found inside curve.” six inches “with a long sharp a blade approximately Levin, he emergency practice testified physician, specialized Dr. Roy 20, 1973, when, he June treated General County Hospital at Ventura He performed in critical condition. a knife wound who was victim of wound, died. From an examination but emergency surgery, patient or “thin-bladed sword the murder was a weapon Dr. Levin concluded identified an autopsy Dr. Levin long. inches bayonet” approximately he had treated. photograph patient 20, 1973, in her was standing testified that on June she Romero

Mary when Dunham by Sergeant front near the scene of the crime described yard in the back of an taking she heard a scream and observed a seat fight place She and and he just automobile. then saw guy running, guy screaming, “[a] ground.” fell to the The fled the scene. person running case, After the his moved the prosecutor rested defendant to strike foundation,” of Dr. Levin on and testimony “[g]rounds relevance lack of the prosecution because had failed to connection allegedly “any proper make between the the testimony physician Additionally, case . . . .” defendant moved for a mistrial of re- the penalty phase. prosecutor quested, granted, was his case to the permission reopen present Salas. testimony Robert 20, 1973,

Salas testified that on June he was a homicide detective in the Oxnard Police Department and was called to the scene of a crime. He victim, examined who the sidewalk and have lying appeared to been stabbed. Salas went to the where he saw the and spoke victim hospital, with Dr. Levin. Salas identified the identified autopsy photograph previously Dr. by Levin as depicting wound suffered the victim. by At conclu- sion of testimony, Salas’s the prosecution again rested its case.'Defendant mistrial, renewed his motions to strike of Dr. testimony Levin and for and those motions were denied. contends trial in admitting court erred evidence

circumstances his 1973 underlying conviction of voluntary manslaughter, because that ruling allowed the prosecution relitigate the circumstances of crime, violated defendant’s protection against constitutional twice being placed jeopardy, and him a denied We have speedy rejected trial. such 173, claims on several (People occasions. v. Fierro Cal.4th 231 [3 426, 1302], Cal.Rptr.2d therein.) P.2d cited cases Defendant also contends the trial court have should excluded evidence foregoing pursuant Evidence Code section because its prejudicial effect outweighed its probative value. object Defendant did not on this ground the trial court and may not raise the issue for the time first Anderson, on appeal. (People v. supra, 477.) 52 Cal.3d Even had this waived, not contention been it would fail. “The short answer to this claim is is evidence made expressly (b) admissible factor of section 190.3. The court is not given discretion under Evidence Code section exclude this evidence when offered at the where penalty phase ... question for jury is one of fact in determining guilt. [Fn. omitted.]” Karis, (People supra, 641.) 46 Cal.3d

Defendant contends the trial court erred in denying his motion to Levin, strike the testimony of Dr. because no evidence was admitted estab lishing that defendant’s conviction of voluntary manslaughter arose from 988 on object Defendant failed to Levin. by the victim treated Dr.

stabbing of court, however, the first raise this issue for may in basis the trial this Code, 353.) (Evid. time appeal. on § court, of the testimony physi- to the objected only

In defendant the trial cian, identify inability that the solely ground physician’s on ob- In the prosecutor his irrelevant. testimony response, victim rendered case, who witness an additional calling his reopen tained permission was the same the scene of the crime that the victim from transported testified did defendant object At no time treated person by physician. of which defendant crime at was not the crime

ground that the issue was convicted. subsequently erred, not be would phase

Even had the trial court retrial of the penalty would not have jury because there is no reasonable required, possibility stricken.8 Dr. Levin been testimony the death had the of imposed penalty 604, 432, P.2d 758 (1988) Cal.Rptr. 46 Cal.3d 448 (People v. Brown [250 of the of the testimony Defendant did not to the admission object 20,1973, Levin’s incident. Dr. stabbing the June concerning other witnesses the jury’s penalty that was to affect nothing likely added testimony determination. Relevant Right to Introduce Alleged

10. Limitation on Defendant’s Mitigation in Evidence that, evidence introducing

The trial court defendant from precluded conduct con Van unethical following prosecutor Camp’s disclosure defendant a Sneddon offered recording, Attorney District cerning tape possibility which included of life without bargain prison a sentence plea evidence that Van introducing from also parole. precluded Velo, witness, disclosing by John Camp improperly “primed” potential called as a witness an interview. Velo was not during information to Velo evidence concern defendant to introduce the trial. The trial court did allow Van recording Camp. the destruction of the found ing tape 990, 98 L.Ed.2d Lockett v. Ohio 438 U.S. 2954], “that the Eighth Court ruled Supreme S.Ct. the United States sentencer, kind rarest all but the Fourteenth Amendments that the require trial court erred of his contention that the authority support 8Defendant cites no erroneous, even if testimony, Levin’s denying his motion for mistrial. The admission Dr. (See Larios penalty phase. required would not have the trial court to declare mistrial P.2d Superior 491]: *‘[M]ere Court 24 Cal.3d do not constitute evidentiary ruling[],” procedure, errors of law or such as . . erroneous [an]. mistrial.) legal necessity to declare a case, factor, from considering, mitigating any not be as a capital precluded a or the of aspect any of defendant’s character record of circumstances the offense that the defendant as a for a sentence less than basis proffers footnote, (Italics in omitted.) death.” added high fns. a court original, of this in limits the traditional “Nothing opinion authority clarification: this exclude, irrelevant, court to bearing a as evidence not defendant’s character, record, 604, (Id. prior p. or the circumstances of his offense.” 990].) fn. 12 L.Ed.2d at p. [57 case,

In the in present trial court acted within its traditional authority excluding evidence relating alleged Van misconduct Camp’s prosecutorial in a witness not in interviewing potential who was called to testify, excluding evidence plea of offered but bargain by prosecution rejected defendant. The by proffered evidence did not bear defendant’s charac upon ter, record, and, thus, prior or the circumstances of his offense did not 792, constitute evidence. 2 mitigating (People (1992) v. Fauber Cal.4th 857 24, 815, 249]; Cal.Rptr.2d People (1991) 831 P.2d v. 52 [9 Daniels Cal.3d 122, 90]; 878 Cal.Rptr. People Wright (1990) 802 P.2d v. [277 52 Cal.3d 367, 731, 221]; 431 802 P.2d Cal.Rptr. People Thompson (1988) [276 v. 45 86, 245, Cal.3d 221]; 138-139 Cal.Rptr. People 753 P.2d v. Belmontes [246 744, (1988) 126, 45 310]; Cal.3d 811 755 P.2d People [248 v. Cal.Rptr. 1168, 666, (1987) Gates 43 Cal.3d 1210 301].) 743 P.2d Cal.Rptr. [240 Defendant contends that evidence Van used Camp improperly sug gestive techniques interview a prospective witness was “relevant to the issue of lingering doubt. . .” This held . court has that at the penalty phase, jurors may consider any doubts lingering defendant’s concerning guilt. (People v. Kaurish 52 Cal.3d 802 P.2d 278].) evidence, But this does not mean that the defendant may introduce otherwise admissible at the penalty for the of phase, purpose creating doubt as to the guilt. Defendant relies in upon holding (D.Ariz. 1986) v. Ricketts Jeffers 1334, 1358,

F.Supp. evidence plea bargains offered the prosecu tion which included lesser punishment “should be considered a mitigat [as ing under the factor] mandates of .” Lockett. . . “Decisions law, lower federal courts interpreting federal are not although persuasive, binding on state (Raven courts. Deukmejian (1990) v. 52 Cal.3d [Citation.]” above, [276 Cal.Rptr. 801 P.2d As we explained disagree with the federal district court’s decision interpretation Ohio, Fauber, Lockett v. supra, 438 U.S. (People supra, 586. v. 2 Cal.4th 792, 857.) Ricketts, Accordingly, we decline to adopt holding v. Jeffers supra. Constitutionality Section 190.3

11. oral argument, In a letter submitted to this court before shortly Black Stringer 503 U.S. defendant cites the recent decision _ 367, 112 that section 190.3 L.Ed.2d S.Ct and contends 1130] because it Amendment to the United States Constitution Eighth violates mitigating, which are aggravating which factors are designate fails to held, We have unbridled discretion.9 allowing jury exercise thereby however, jury that the factors listed section 190.3 “properly require the offense and the surrounding concentrate the circumstances both upon offender, bearing rather than factors no rational on having extraneous upon or aggravating of the We believe appropriateness penalty. to any nature of these various factors should be self-evident mitigating (People v. within the context of each case.” person particular reasonable 603, 264, 149]; see Jackson (1980) 28 Cal.3d 316 618 P.2d Cal.Rptr. [168 870, 678, People Raley (1992) 2 P.2d Cal.4th 830 Cal.Rptr.2d also v. 919 [8 Furthermore, 712].) and arbitrary capri “the constitutional prohibition a sentenc by capital cious determinations is not violated capital sentencing in deter unbridled discretion ing jury to exercise permits ‘scheme.that after has found that whether the death should be it mining penalty imposed eligible penalty by the defendant is a member of the class made 992, 1009, (California v. Ramos 22 (1983) statute.’ 463 U.S. fn. [Citation.]” 1171, 1185-1186, Rodriguez 3446]; People v. L.Ed.2d 103 S.Ct. [77 730, 667, in 42 Cal.3d 778 726 P.2d Cal.Rptr. Nothing [230 _ Black, Stringer supra, or decision v. 503 U.S. L.Ed.2d 367] [117 398, 1759], Godfrey Georgia v. S.Ct. 446 U.S. 420 L.Ed.2d defendant, also cited a conclusion. by supports contrary victed murder in consented to the homicidal act. circumstances uation for his be the crime of which the defendant was convicted in the shall take into account or violence or the any special while the defendant was under the (e) Whether or not the victim absence of absence of Whether or not the defendant was an commission extenuates the gravity effects of intoxication. conduct to the 9Section punished by substantial domination of another capacity of criminal 190.3 any prior felony conviction. circumstances found to be true of the offense was conduct, requirements which the defendant the defendant to death or provides, express activity by of the crime even first [f] any ^[1] by (g) or degree, of law was (i) life in implied Whether or not defendant acted under extreme duress or under the defendant which involved the use or pertinent part, appreciate ^[1] relatively following influence of extreme mental or prison with reasonably age (f) person. threat to use force or violence. accomplice participant impaired a though Whether or not the offense was committed ^[1] of the defendant at the time of the crime. without the finding pursuant minor, factors if relevant: (d) fj] (h) that in believed to be a moral criminality Whether or not the offense as a result of it is not a of one or more to in the Whether or not at the time of the offense to Section [f] the offense present proceeding determining possibility (k) Any defendant’s homicidal conduct or legal of his conduct or mental 190.1. [J] ^[5] excuse for the crime.” special of other circumstance emotional disturbance. whether a defendant (a) parole, disease or H] his justification attempted The circumstances, and the existence (c) (b) participation circumstances of “the trier of fact The The was committed to conform his defect, use of force presence presence or or exten Q] which in the or the under shall con H] Q or of Testimony 12. Admission Frank Medina’s that, evidence the time of the charged introduced offenses, he and had conquered drugs his addiction to converted rebuttal, Medina, called as witness Frank who Christianity. People that, murder, testified when defendant subsequent commission Arizona, was in heroin and asked Medina where using defendant was defendant could Defendant later was of some shoplift clothing. possession clothing, new which he sell to Medina others order to attempted obtain money purchase drugs. testimony Defendant contends Medina’s was inadmissible. in People Boyd (1985)

As we held v. 38 Cal.3d 782], People 700 P.2d Rodriguez, supra, Cal.3d evidence 190.3, which would be at the inadmissible under section as penalty phase case-in-chief, the prosecution’s part may be admissible on rebuttal to “ counter evidence of character ‘The good introduced defendant. for theory such rebuttal permitting argument evidence and is not that it factor, a proves statutory it aggravating but that undermines defendant’s ” Fierro, claim good that his weighs character in (People favor of v. mercy.’ “ 173, 237, 1 supra, Cal.4th in original.) italics of rebuttal must scope ‘[T]he be and evidence specific, or presented argued directly as rebuttal must relate ato or particular incident character trait in defendant offers his own behalf.’ (Id. 237-238.) at pp. [Citation.]”

Medina’s testimony satisfied those Defendant had intro- requirements. that, crimes, duced evidence prior to he had overcome his heroin addiction and had converted to testimony Medina’s tended to Christianity. cast doubt upon defendant’s evidence of his good establishing character by that defendant had used drugs had stolen to while drug his habit support in Arizona. This was rebuttal. proper

13. The Argument Prosecutor’s

A. Victim-impactArgument briefs,

In his opening reply defendant contends portions prosecutor’s argument were improper under the in Mary decision Booth v. (1987) 440, land 482 U.S. 496 L.Ed.2d 107 [96 S.Ct. violated the 2529] Eighth Constitution, Amendment United States because the prosecutor focused on the effect of murder on the (See victim’s children. also South Carolina (1989) 876, v. Gathers 490 U.S. 805 L.Ed.2d 109 S.Ct. [104 2207].) brief, In his supplemental defendant acknowledges that the decision 992 in Gathers) Payne in v. (as was the decision largely Booth was overruled _ 720, (People (1991) 111 S.Ct. v. 501 U.S. L.Ed.2d 2597].

Tennessee [115 199, 489, 101].) P.2d (1992) 2 Cal.4th 535 828 Cal.Rptr.2d Thomas [7 however, Defendant, Payne concurring relies a upon opinion crime upon to the that a reference proposition prosecutor’s impact case, clause process victim violate due may, particular if infects Amendment to States it “so Fourteenth the United Constitution (Payne so it unfair . . . .” as to render sentencing proceeding fundamentally _ 740, _, 720, 111 (1991) v. L.Ed.2d S.Ct. Tennessee U.S. 2597] [115 O’Connor, (conc. this J.).) portion Defendant did not at trial to object opn. and, therefore, raising is from this argument precluded the prosecutor’s 955, (People Cal.Rptr. issue on v. Duncan Cal.3d appeal. [281 Miranda, supra, in People decisions v. Nothing 810 P.2d our 57, 112-113, People Cal.3d or v. Ghent 43 Cal.3d 771-772 defendant, 1250], suggests contrary 739 P.2d cited rule.

Defendant’s contention fails on the merits. The remarks prosecutor’s also from its jury’s proper were not “so as to divert attention inflammatory Fierro, supra, 1 (People role an irrational v. or invite response. [Citation.]” 173, 235.) Cal.4th in People further our urges holding, us to reconsider recent 436], (1991) 54

Edwards Cal.3d 787 819 P.2d Cal.Rptr.2d evidence the harm at of caused the defendant’s actions is admissible the by 190.3, (a), under section as penalty phase factor one of the “circumstances of rejected crime.” The defendant were and arguments raised considered Fierro, (see in supra, 235), Edwards also People v. Cal.4th we have not been a presented argument with would reexamina- any justify tion ruling. of this a

B. to Cartoon Reference following concluded with the de- prosecutor opening argument his he of a cartoon in a scription had seen the editorial section of newspaper: “[Tjhere’s a of a picture gun, hand and a smoke out of barrel coming it, And it gun. underneath ‘the murderer did not simply says hesitate ” to the death give penalty Why to the victims. should you?’ Defendant reference was it elimi contends this “because improper nates individualized any consideration for the particular defendant trial.” too, Defendant has waived to this contention at trial this by not objecting Green, supra, 27 Cal.3d argument. (People of v. portion prosecutor’s 27.)

We reject also claim on the merits. not to hesitate to Urging jurors impose the death is not the them their penalty equivalent urging ignore responsibility making to follow the their court’s instructions decision. event, remark, erroneous, if any this isolated even it been have had could not been to the prejudicial defense. 14. the Jury Regarding Failure Instruct Evidence Prior

Unadjudicated Crimes Admitted Guilt Phase trial, During guilt phase of evidence was admitted establishing that, Arizona, while defendant stated to a friend that “he had shot during someone” a robbery and also shot an “chickened accomplice who him” out on during an Defendant told another friend that attempted robbery. and, incident, he had shot two persons during had committed a separate robbery. contends trial court erred at the penalty phase

failing to instruct the sua jury, sponte, “that evidence introduced at guilt was, phase tending to show have committed may other crimes as [defendant] law, a matter of insufficient to he prove such committed crimes it must be considered in determining penalty.” the absence of a “[I]n the trial no such request, court is under duty give an instruction at the penalty phase regard guilt evidence received at the (People phase.” Lang 49 Cal.3d

P.2d We therefore reject defendant’s claim of instructional error.

15. to Excuse Juror Schwark Refusal On trial, the fourth day jury deliberations at the phase penalty Schwark, Juror David outside the of the other presence jurors, informed court that the he previous night inadvertently had overheard television news report announcing that had made against defendant “threats the guards . . if given . he were the death The penalty.” the juror court informed that evidence of such a threat “never came you before because it amounted to something more than probably no a rumor” him just and asked whether he could base his verdict solely upon the Schwark in the evidence. answered confirmed, affirmative and in response to an additional that he still inquiry, could be fair and impartial. excused,

Defendant asked that Schwark be and “I the trial court ruled: saw an honest man who said he I could be honest with and Mr. have to Zapien, 994 subsequently The trial court him. He on the going stay jury.”

believe is news the determined had no of jurors, they knowledge the other polled denied defendant’s motion for mistrial. report, that, juror nothing the did although observes correctly the proceed outside court his inadvertent information

improper, receipt prejudice is considered “misconduct” and creates a ings presumption which, rebutted, (1990) if new v. 50 (People Holloway not a trial. requires 530, “‘[Wjhether 1327].) Cal.3d P.2d 790 Cal.Rptr. [269 evidence outside receiving defendant has been misconduct injured by jury has been jury’s impartiality of court whether the necessarily depends upon affected, been burden of has adversely prosecutor’s proof whether If the been contradicted. and whether asserted defense has lightened any affirmative, inis the defendant has been any answer to of these questions hand, must be On the since and the conviction reversed. other prejudiced reversible, record if a review of the entire misconduct is not se jury per the miscon that has suffered no from appellant prejudice demonstrates (People v. duct a reversal is not Williams compelled.’ [Citation.]” Cal.3d 751 P.2d 827 P.2d People Cal.Rptr.2d

In Cal.4th 408 Mincey 388], during phase a Bible into the room juror jury penalty brought of this verses with other The trial court learned jurors. deliberations read and, following day, misconduct at end of the court day questioned case the basis solely them decide the jurors individually, admonishing law, of the evidence received court and the court’s instructions on the ruled that appeal, to take materials into room. On we any jury written no had because “there was been rebutted presumption prejudice (Id. the incident defendant. substantial likelihood that prejudiced [Citation.]” 467.) at p.

The same in the Juror informed the present is true case. Schwark trial court at the he received earliest opportunity inadvertently information held a the case. trial court outside concerning hearing, divulge which he presence jurors, other Schwark would not pledged this information to it in his jurors disregard his fellow and would performing duties as a he The trial juror. his still could be fair and opinion, impartial. court, demeanor, which had it the benefit of Schwark’s stated observing believed him. According proper finding, deference to this we uphold court, of the trial ruling concluding the record rebuts presumption and that there no is substantial likelihood incident prejudice prejudiced defendant.

Defendant argues that the defense juror’s answers to questions posed counsel revealed that role receipt information necessarily affected entirely . . . . Do feel that would be able to you you

“[Defense Counsel]: that out if put mind as never heard your you it? Yes.

“[Juror]: “Q: do Okay. you think could do that? That’s a little bit of an Why you unfair but— question, conscience,

“A: it bothers I’m here. I Obviously, my why and that’s want you to know I want I it. know it not everybody to it. be fair recognize may to the defendant I I that know that. All can you tell is that decision that any I court, would make would be based upon whatever was and presented I that’s all can say. level, “Q: course, is, Okay. The next past your feelings, personal

course, that that can’t be communicated to else. anybody that, “A: I understand I I would pledge would do that. Now, “Q: Okay. there may be people talking about that would things directly contradict what said on—what heard the news talk you people about. How does that affect your ability to deliberate?

“A: I information, if Obviously, am not that I going disclose have that I can’t refute if someone were to make that I charge. would not be able to stand up it strongly say, refute T have some other information.’ So I would simply have to play passive role if like ever something came up. That’s all I tell can you.

“Q: Okay. And— me, that, “A: And that has concerned is part what the deliberation could mean, I I play? that is a I concern. have to be careful about that.” juror’s focuses statement he that would have to “a play passive role” if the subject of defendant’s future dangerousness was raised context, during however, deliberations. Read in the juror’s remarks indicated he only that would be careful not to reveal other to the jurors information he received whole, outside the court Taken proceedings. as a juror’s responses the trial support court’s finding that no resulted. prejudice Defendant also stresses the following remark by the court Juror regarding “I Schwark: an saw honest man who said he could be honest with Mr. 996 I have this demonstrates to believe him.” Defendant contends

Zapien, testi- juror’s the court believed it was to erroneously compelled accept too this statement mony, regardless credibility. interprets its It is clear the context that it did from court’s comment literally. true, it but that testimony consider itself bound to Schwark’s as accept did, fact, in believe the the truth. At the conclusion merely juror telling man, of Schwark’s “I at the he seems testimony, court observed: look me to be honorable.” eminently

Defendant relies our in 50 People Holloway, supra, decision v. upon 1098, Cal.3d which reversed a of death because a had read a judgment juror article that the defendant was on from after newspaper stating prison parole time having served a woman with a After the assaulting deadly weapon. guilt verdicts had been that he had read this phase signed, juror disclosed turn, article to a fellow That The juror. juror, informed the court. article, court who had read the as well as other questioned juror two and ruled jurors, that no had resulted. This court reversed the prejudice “ ‘ “A judgment, noting: facts juryman may testify any bearing upon influence, of the existence of the he question but cannot be disturbing ’ permitted testify how far that influence his mind.” operated upon [Citation.]” (I 1109.) at p. d.

This statement Holloway, supra, 50 Cal.3d is based upon in Evidence Code evi proscription section 1150 admission of against dence of a juror’s mental a verdict.10 It does not processes reaching court, verdict, preclude of misconduct upon learning to rendition of a prior from questioning jurors concerning admonishing misconduct and them to such disregard influences. 53 improper (People Cooper, supra, v. 771, 838.) Cal.3d To the this court has held that contrary, presumption “[t]he of prejudice be an may dispelled by admonition to disregard improper information. (People Pinholster Cal.4th [Citations.]” Cal.Rptr.2d P.2d “We generally jurors observe presume (Ibid.) such instructions.” trial court the present case Schwark questioned Juror inadvertent,

concerning his but improper, of information receipt concerning the case. The effect of this was to questioning admonish juror 10Evidence Code (a), section “Upon inquiry validity subdivision states: an as to the verdict, made, of a any may otherwise admissible evidence be received as to statements or conduct, conditions, room, occurring, or events either within or without jury of such a character as is likely to have improperly. influenced the verdict No evidence is admissible to statement, conduct, condition, show the effect of such upon juror or event either in influencing him to assent to or dissent concerning processes by from the verdict or the mental which it was determined.” information, he would do. Unlike the which Schwark disregard pledged (until in Holloway, supra, guilt phase 50 Cal.3d who after juror article, verdicts had been hid the fact he had read the signed) newspaper news Juror Schwark disclosed his inadvertent to the television exposure (See People after to it. report morning disregard it occurred and promised circumstances, Cooper, supra, v. 838.) Under these the trial Cal.3d court was not him an alternate required to excuse Schwark and with replace juror. “A trial exists excuse good court’s decision whether cause to a juror or to is within its discretion. The court’s decision discharge jury will be if evidence upheld on there is substantial to it. appeal any support (People supra, 467.) We Mincey, reject Cal.4th [Citations.]” defendant’s claim of prejudicial error. 16. The Trial Alleged Improper Court’s Consideration Matter in

Denying the Penalty Automatic Motion Verdict for Modification of During argument regarding automatic for modification of application 190.4, (e), verdict penalty pursuant to section subdivision the prosecutor referred (attached to a number of citizen to the petitions probation report) urging of the death imposition Defendant and the court penalty. objected, there, stated: “I’m not to rule I going on know that but public outcry. they’re there, I haven’t read the I just names. know there’s a I can’t lot names but discussion, sentence Mr. Zapien public After further the follow- outcry.” ing colloquy occurred:

“The Court: I’ve made my clear. position “[The You’re not refer it? going Prosecutor]: “The I Court: don’t think the court I think were they can do that unless evidence, here court and heard I all the don’t what they’re know relying law, I know what I’m upon. I have relying upon, that’s the and that’s what to do. it, All If right. you’re going ignore

“[The that’s fine. Prosecutor]: it, “The Court: I didn’t I I say ignore said knew there were a lot of people signed

who all I petitions. That’s know. I’m “[The If trying to words the court’s mouth. put you Prosecutor]: it, don’t want me to address I I’ll won’t. move on. . . sentence,

The court denied subsequently the motion for modification of making no reference to the citizen petitions. erroneously peti contends the court considered these verdict,

tions on the motion because ruling penalty for modification the court stated it would not The record does not “ignore” petitions. A the court’s entire discussion support argument. reading that, the citizen concerning petitions although objected reveals court actions, it prosecutor’s use of the word the court’s “ignore” describing in refused to consider the the motion for properly petitions denying modification. in

Relying upon Maryland, supra, decision Booth v. 482 U.S. defendant also in contends the trial court erred considering impact Gathers, (See murder on the supra, victim’s children. also South Carolina v. 805.) 490 U.S. We have held that “the Booth and holding broad Gathers does not extend to proceedings relating to the for modification of application 190.4(e). verdict of death under (People section v. Benson [Citation.]” Moreover, (1990) 52 Cal.3d 330].) 802 P.2d as above, noted “[d]uring pendency of this both Booth Gathers appeal U.S.__[115 were largely (Payne overruled. v. Tennessee L.Ed.2d 111 S.Ct. We have since held that the inflicted injury by defendant—including of the crime on the of the victim—is impact family crime, one circumstances of the evidence of which is admissible under 190.3, Thomas, (a). section factor (People supra, Cal.4th [Citations.]” 489, 535.) We reject therefore defendant’s claim that the trial court commit ted error in the automatic ruling upon motion for modification of the penalty verdict.

Conclusion

The judgment is affirmed.

Lucas, J., Panelli, J., Arabian, J., Baxter, J., C. concurred.

MOSK, J. dissent. I I shall

As the trial court committed reversible error when it explain, denied a motion defendant made grounds to dismiss the information on the misconduct gross prosecution.

At a hearing in most of concerning prosecutorial question, misconduct the basic facts pertinent here were established beyond dispute. 4,1986,

On October A. Van Gary attorney serving district Camp, deputy Sneddon, Jr., under Santa Barbara District Thomas W. County Attorney Heidt, a detective in use Harry sergeant Police had Lompoc Department, of an automobile from the vehicle Van the trial county’s was pool. Camp chief officer investigating this matter. Heidt was the assigned to

prosecutor in his counterpart Kenneth R. Ast was for the Police Lompoc Department. investigator main Van chose Ast as his attorney’s Camp the district office. the crimes directing investigation over Heidt. Van was Camp actively trial. selection was Jury and was the case for personally preparing progress. Attorney Camp happened

On the date District Van question, Deputy find a under a seat automobile. legal-size county envelope sealed; “Bill Public De- it bore the name Davis”—Assistant envelope Davis, the return fender William A. defendant’s counsel—and who was Office; Defender’s and it address of the Santa Barbara Public County an in a cassette box. Davis appeared audiotape to contain cassette before; he had days left the the vehicle some inadvertently envelope the finding envelope, had contents of the transcribed. On already tape Van kind he knew that Davis was Camp’s “eyes light[ed] since up,” Heidt, He handed the to and told attorney. envelope Sergeant him to listen to the he had tape report and back what heard. contents, is,

As to it did its “was not evidence.” That strategy tape constitute or guilt information admissible at trial relevant to defendant’s Rather, else, innocence. it . . .” something something “was more sensitive . detailed, It comprised Davis’s dictated concerns about defense personally trial, strategy for discussion with certain senior prepared colleagues, reflecting his confidential with defendant and also his communications conclusions, research, impressions, concerning and theories both opinions, the favorable and It heavily unfavorable of the case. bore aspects credibility of a number of crucial therein. early witnesses named From action, life of the it was that the turn more on apparent outcome would form, than In filled testimony evidence. transcribed the contents physical more than six pages single-spaced type.

On October District Van Heidt Deputy Attorney Camp Sergeant about the spoke Heidt told Van that he had thrown strategy tape. Camp away materials, concerned, tape and that “as far as accompanying [he] was never tape found." Neither Van nor Heidt had intention of Camp any disclosing to what had anyone they done. followed,

During weeks that Attorney District Van Deputy Camp continued, basis, on a daily direct the of the crimes actively investigation and to the case personally prepare for trial. His efforts extended into areas covered strategy the crucial wit- tape, including credibility of named nesses therein. Hebert,

On October R. O. chief of the Department, Police Lompoc summoned Heidt his an Sergeant inquire “argu- office to into reports mentative” telephone conversation between a member of the department one of District Sneddon’s He Heidt Attorney suspected Sergeant staff. month, and Deputy District Van were involved. Earlier that Attorney Camp there had been some Heidt discord: Van wanted to remain available Camp trial, Ast, his throughout apparently “something go-fer” to serve as main Heidt wished himself attend a investigator; to absent for a period in the he police training investigation of homicides—a had program program had to miss once when before he was called an actual away investigate Hebert, homicide. the meeting with Heidt disclaimed knowledge end, “argumentative” he telephone conversation. Toward disclosed incident. At the he strategy tape hearing, stated that the incident had been him “bothering” since its occurrence. But he that he “didn’t also admitted into go” Hebert’s office “with the intention of divulging [he] destroyed” the items question. statements,

On October in- eve of Chief Hebert very opening formed Assistant District Steven B. Plumer of what he had been Attorney incident, told by Sergeant Heidt about the and Plumer trans- strategy tape mitted the information to Assistant Public Defender Davis.

On October the trial court the opened hearing concerning prosecutorial misconduct. 30,

On October it defendant appears, moved to dismiss the information on the grounds of gross misconduct by prosecution. 31,

On October Assistant District Plumer advised the trial court Attorney and defense counsel that District Sneddon had made an “adminis- Attorney decision,” trative effective Attorney to remove District immediately, Deputy Later, Van from the case and Camp to substitute himself. Sneddon sus- pended and demoted Van for his incident. Camp part strategy tape

The extended hearing from the end of October through beginning called; December. Many witnesses were much testimony given. was 3, On December the trial court close. It then brought hearing proceeded deny motion dismiss. 8,

On December District Sneddon and Public Defender Attorney Assistant statements, Davis made their opening of evidence the presentation commenced. any

The misconduct foregoing gross beyond facts establish prosecutorial Heidt intentionally District Van Deputy Attorney Camp Sergeant doubt. the violation was invaded the defense camp. Although premeditated, indeed the invasion. This up deliberate. then covered They intentionally well In the invasion and cover- premeditated violation as as deliberate. up, they very beginning committed divers offenses. For at example, the episode, materials they appropriated strategy tape accompanying (Pen. knew Defender —property they belonged to Assistant Public Davis. Code, later, 485.) (Id., Sometime the items. they destroyed § maliciously 594, end, (a).) subd. By § had entered into an least they implied agreement (Id., obstruct and had acted furtherance thereof. justice Indeed, (a)(5).) subd. § Van his efforts this Camp persisted regard denied, oath, throughout the He under hearing. that he told Heidt to listen to The trial he strategy tape. falsely. court found that testified impliedly (Id., (a).) subd. §

Obviously, gross misconduct established these facts prosecutorial by infringed protections afforded defendant attorney-client privilege Code, (Evid. Proc., (Code 950 et and the seq.) work doctrine Civ. product § 2018; id., 1127, 1, former (h), 3805). § subd. It Stats. ch. p. § § also his under implicated rights the United States and California Constitu- tions, including guaranties to unreasonable searches and seizures relating Const., IV; (U.S. Const., I, 13), Amend. Cal. art. the assistance of counsel § Const., VI; (U.S. Const., I, 15), Amend. Cal. art. and due of law process § Const., (U.S. XIV; Const., I, Amend. 15). Cal. art. § Although most of the basic facts here were established pertinent beyond one dispute, was not. Did the prosecution’s unlawful invasion the defense camp extend to the contents of the strategy trial court answered tape? in the question negative. it made a of fact that Crucially, finding Sergeant Heidt had not listened to the It erred. tape. with,

To begin trial court’s does not to be as finding appear supported, 969, it must be (e.g., People (1986) v. Louis 42 Cal.3d 984-985 [232 110, Cal.Rptr. 180]), 728 P.2d by substantial evidence. The relied in court on part Sergeant Heidt’s testimony at the its hearing, part personal on evidence, of him knowledge over the The years. former was albeit latter, course, weight. dubious The The was not. refuse to hear majority any complaint from defendant about the court’s an “testimony” as “unsworn refusal, however, witness.” Their cannot transform nonevidence into evidence. event,

In any the trial court’s is finding as a matter of law. unsupported requested court to find adversely to prosecution 1002 He argued to the strategy tape.

issue whether Heidt had listened Sergeant have contradicted his that Heidt had evidence that could destroyed only box, cassette, tape The cassette testimony. condition of envelope, established, the extent of the suggested, prosecu- would have and perhaps have unlawful the defense For one could camp. example, tion’s invasion of unsealed, whether the had whether the cassette determined been envelope removed, handled, whether whether had box had been the cassette been It finding. to make the requested been court refused tape played. inwas error. reasons, Ser- have found that

For the trial court should purely practical so, have Heidt had to the Had it done it would geant strategy tape. listened in such declared most effective terms that the cannot engage prosecution up- misconduct with discussion gross Regrettably, majority’s impunity. deliver an the court’s refusal of an adverse be read to holding finding may the evidence. different do the deed and then altogether message: destroy aside, law to Practical reasons the trial court was California required by Evidence Code strategy find that Heidt had listened to the Sergeant tape. 413 “In to draw from the section what inferences provides: determining consider, may evidence or facts in the case the trier of fact against party, by testimony other failure to or his among things, party’s explain deny him, such evidence facts in his willful against suppression or the case or thereto, (1980) if In People evidence such be the case.” v. Zamora relating 573, 1361], we that an 28 Cal.3d 88 615 P.2d concluded Cal.Rptr. [167 there disclosed: the finding adverse was under the circumstances required in bad state had evidence of official destroyed wrongdoing, although (Id. 93-94, Tobriner, J.); id. at by p. faith. 99-103 pp. (plur. opn. Bird, fortiori,

(conc. J.).) & A an was finding required dis. C. adverse opn. under the here: evidence of official destroyed circumstances the state had majority’s and had done so in bad faith. to the wrongdoing, Contrary after v. Zamora remains law on this suggestion, good point California 413, 2528], and (1984) S.Ct. Trombetta 467 U.S. 479 L.Ed.2d 281, S.Ct. Youngblood(1988) v. 488 U.S. 51 L.Ed.2d 333]. Arizona (See People Cooper Cal.Rptr. 53 Cal.3d 811 [281 865]; People P.2d v. Medina 51 Cal.3d 894 [274 799 P.2d

Moreover, the trial court was the United States Constitution required find an appear, Heidt had listened to the As will Sergeant strategy tape. due adverse right the denial of finding required remedy of law under the process Fourteenth Amendment. Trombetta,

In Su- U.S. the United States supra, v. 467 California Court stated: “Under the Due Process Clause of the Fourteenth preme Amendment, criminal must with of prosecutions notions comport prevailing fundamental fairness. We have this fairness to long standard of interpreted that criminal defendants require meaningful be afforded a opportunity defense. To present complete safeguard right, the Court has developed ‘what might be called the loosely area of access constitutionally guaranteed to evidence.’ Taken this of delivers together, constitutional group privileges accused, evidence exculpatory into the hands thereby of protecting innocent from erroneous conviction of our crimi- ensuring integrity (Id. 420], nal justice system.” omitted.) at p. L.Ed.2d at citation p. [81 The Trombetta court went on to declare all but that the expressly Four- teenth Amendment’s due process clause on the states a imposes duty preserve evidence on behalf of criminal The obligation, defendants. how- ever, is not absolute and It is “limited unqualified. to evidence that be might expected to play significant role (California defense.” v. suspect’s Trombetta, supra, 467 U.S. p. 422].) L.Ed.2d at Such evidence p. [81 at “must both possess an value exculpatory that was before the apparent evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” (Id. at p. 423].) L.Ed.2d at p. [81

In Youngblood, supra, Arizona 488 U.S. the court “again consid- ‘what might loosely ered] be called the area of constitutionally guaranteed ” access to (Id. evidence.’ at 55p. 287].) L.Ed.2d at p. It did not retreat from the core teaching Trombetta. But it did hold that “unless a criminal defendant can [state], show bad faith part failure to preserve potentially useful evidence does not constitute a denial of due process (Id. law.” 58 p. L.Ed.2d at p. course,

Of Trombetta Youngblood are not directly to the applicable decisions, case at In bar. both of those the evidence of which the court spoke comprised facts bearing on the criminal defendant’s guilt or innocence— specifically, facts generally admissible at trial that him might exculpate matter, legal contrast, responsibility. this the “evidence” with which we are concerned consists of facts relating to the state’s conduct criminal proceeding itself—specifically, facts generally inadmissible at trial that might inculpate prosecution undermining system’s integrity.

Although not directly applicable, Trombetta and Youngblood govern by analogy. stated,

As the Fourteenth due Amendment’s clause on the process imposes states a duty to preserve evidence on behalf of defendants. Since the criminal the integrity constitutional of fundamental fairness seeks to ensure guaranty of the the “evidence” facts system, inculpating to be must include preserved however, the This cannot be absolute and prosecution. obligation, unquali- It fied. must be limited to “evidence” that be might expected play in the “evidence” significant role of misconduct. Such proof prosecutorial must both an value before its destruc- possess inculpatory that apparent tion, and a nature be such that the defendant would be unable to obtain material means. If or information other available comparable by reasonably faith, the acts in “evidence” this prosecution bad its failure to preserve sort constitutes a right denial of to due of law. process

Without in question, “evidence” that the this prosecution destroyed box, cassette, case—the cassette envelope, strategy and foresee- tape—might have ably established misconduct on the of the part prosecution. with,

To begin “evidence” an value that was possessed inculpatory But, before its The apparent destruction. as majority disagree. explained, condition items would estab- question have suggested perhaps lished the extent of the unlawful the defense prosecution’s camp. invasion of Indeed, Heidt conceded as much The Sergeant hearing. majority at state that was reasonable Heidt had the trial court to conclude that “[i]t destroyed” the items “without aware assume being they later would evidentiary significance on the issue whether Heidt had listened to the” ante, 965.) Quite It was strategy tape. (Maj. opn., contrary. at p. altogether unreasonable for the court to have come to conclusion other any than that Heidt had destroyed items order to ensure that issue would never in the arise first place.

Next, the “evidence” was such that material or information comparable could not be obtained defendant other available means. by reasonably do not majority disagree. Nor could Heidt himself they. Sergeant admitted the fact.

Further, the “evidence” was in bad faith. destroyed by prosecution Here, I majority disagree. do am at a loss. mean They seriously cannot Heidt acted in Sergeant faith. state that Heidt “did not intend good They defendant of deprive exculpatory evidence or to otherwise harm defend- ante, 966.) (Maj. opn., ant.” Heidt intended to defendant p. plainly deprive evidence him inculpating prosecution thereby to from prevent If, fact, uncovering its unlawful invasion defense Heidt camp.

not listened to the he strategy tape, would still be of bad faith. such guilty situation, he would have the items with reckless destroyed question disregard of both their nature their importance. misconduct, erred the trial court when

Faced with the prosecution’s gross denied it defendant’s motion to dismiss. indeed the sanction and

Dismissal was It was an required. appropriate invaded the defense only unlawfully sanction. The appropriate prosecution strategy was the camp object and covered the invasion. Its unlawfully up The From taint the case must be deemed substantial. tape. introduced into on, testimony. turn on early largely it was that the outcome would apparent crucial witnesses. District Deputy bore on tape heavily credibility the case Van the crimes and Attorney Camp’s investigate prepare efforts Moreover, for trial taint have been extended into this area. would main difficult to It would have been hard to detect: it affected not the purge. case, detected, If have hard to lines of but the interstices. it would been True, Attorney remove: it the case. District Sneddon spread throughout in he was himself to have taken no the misconduct. But appears part trial the shortness time between practically compelled by hearing he Only by take Van as found them. Camp’s investigation preparation defendant. dismissal could the court have harm to effectively prevented record, however, On this Dis- prejudice dismissal with was not required. trict Attorney Sneddon should have been allowed to the crimes investigate the case anew. An further would prepare absolute bar to prosecution have been uncalled for.

Relying basically United States v. Morrison 449 U.S. 361 [66 665], L.Ed.2d S.Ct. dismissal as a sanction. majority reject Morrison, however, is inapposite. It deals with the only appropriateness, under federal criminal of dismissal I that the procedure, agree with prejudice. prosecution should not have been in put a worse than it would have position had it not in occupied engaged misconduct. But it would not have simply been such a put position by dismissal without prejudice. the trial court’s

Clearly, erroneous denial of defendant’s motion to dismiss reversal of the requires judgment. Surely, No other result is reasonable. harmless-error is not determine analysis available. Such analysis attempts of the trial under the outcome review the absence of the error complained case, But in the absence of. of the error committed the court in this that the record trial discloses would not have been held the first place.1 above, I For reasons stated the judgment. would reverse passing, following 1In I make the my concurring opinion People observation. Gallego (1990) 169], 52 Cal.3d 115 “jury 802 P.2d I stated that a should be able to identify the . . . circumstances” “as specified penalty in the standard instructions ’’ ‘aggravating’ (Id. or ‘mitigating’ by p. itself’ because “their nature is ‘self-evident.’ case, KENNARD, J., Dissenting. In thisdeath before trial penalty shortly begin, was to the prosecution gained access to a confidential tape recording that contained details of defense strategy counsel’s trial and references communications between A privileged defendant and his member attorney. the of team then prosecution unlawfully the This destroyed tape recording. act of destruction the defense prevented showing by from expert testimony that the prosecution had listened to the The holds that this tape. majority whatsoever, invasion the of defense no sanction and camp required affirms sentence of death. discuss, I As I shall disagree. of the United precedents States Supreme court, Court and of this as well as basic of fair that the concepts play, require reversed, judgment of conviction and sentence of death be and that the case be remanded for a new trial free taint of and prosecutorial illegality unfair advantage.

I Davis, Defendant’s attorney, Assistant Public Defender Bill dictated a cassette in tape recording preparation meeting for a with other strategy in attorneys his office. The revealed his detailed tape perceptions of and strengths weaknesses case as well as his trial complete strategy, and contained privileged information obtained from defendant. After the transcribed, tape Davis inadvertently left it a car. county After jury selection this case had this capital begun, prosecutor case, Deputy District Attorney Van and Heidt of Gary Camp, Sergeant Harry Police Lompoc found a sealed Department car. The envelope county envelope showed the name of Assistant Public Defender and the Davis address of the public defender’s office. The to contain a envelope appeared Heidt, cassette tape. Van According his that the Camp expressed belief Mosk, (conc. opn. J.), added.) italics any given Whether jury actually is able to do so not, depends peculiar on the facts of the may guidance individual case. If it is it be without the by demanded Eighth Stringer Amendment as construed in v. Black 503 U.S. _[117 true, state, L.Ed.2d 112 S.Ct. It majority is as the that “the 1130]. constitutional prohibition on arbitrary capricious sentencing capital determinations is not violated capital sentencing ‘scheme permits jury to exercise unbridled discretion in determin ing whether penalty the death imposed should be after it has found that the defendant is a ” member of the eligible class made penalty by for that statute.’ (California v. Ramos 992, 1009, 1171, 1185-1186,103 true, 463 U.S. fn. 22 3446].) L.Ed.2d S.Ct. But it is not as the majority suggest, the California “scheme” allows “unbridled discretion.” In Stringer, Supreme United States aggravating Court held that “if a State uses factors in Code, deciding . . . who (Pen. shall receive penalty”—as the death does California 190.3)—“it cannot use factors practical guide § which as a matter fail to the sentencer’s Black, discretion” in Eighth contravention of the (Stringer supra, Amendment. 503 U.S. at _ p. p. L.Ed.2d at p. 112 S.Ct. at case, relate Heidt might “report” to this and told to listen to tape tape that, himto what Heidt that he did not do so and was on testified tape. instead of threw the complying regarding with found procedures property, sealed into a trash 15 minutes later. The and its envelope dumpster envelope contents were never recovered. later,

Three weeks during which time the continued its inves- prosecution case, tigation into this death interviewing numerous witnesses penalty its trial the chief preparing strategy, Police Lompoc Department learned of Heidt’s destruction of the defense chief notified tape. police office, the district attorney’s which in turn counsel of the told defense incident. District Attorney Thomas Sneddon then an internal investi- began gation of the misconduct. When the trial court ordered the prosecution provide defense of information the mis- complete discovery relating to conduct, District Sneddon terminated internal Attorney his immediately investigation of re- deputy’s Attorney misconduct. District Sneddon case, him, Van moved Camp from the demoted and the case prosecuted personally. case,

Defendant moved for dismissal of the recusal the county District office, Attorney’s and a continuance to conduct further and research inves- tigation. The trial court reviewed in chambers a the defense transcript of tape that had been before the prepared destruction tape’s prosecution. motions,

At the hearing defendant’s defendant argued that Sergeant Heidt’s destruction of the tape the defense of the “deprived only physical evidence it could use to impeach Heidt and Van Camp regarding whether unsealed the they envelope listened to the tape.” presented could, the testimony of a forensic acoustics if who stated he he had expert Moreover, determine tape, whether it had been played. according to Heidt, another defense if the expert, had not been tape destroyed by finger- evidence print could determine whether Heidt Van or taken Camp sealed tape from its envelope handled it.

In making his preliminary District Van finding Attorney Deputy Camp Sergeant Heidt had not listened to the the trial tape, judge stated that he relied in expressly on his part knowledge and personal opinion Heidt, with whom he had worked as a defender and deputy public deputy attorney district the county.1 The trial court denied all relief requested by defense, and the case proceeded to trial. motions, 1In passing on the defense it was improper for the judge rely upon trial his personal opinion Sergeant Heidt’s credibility (See based on facts not in the record. Guadalupe A. v. Superior Court 234 Cal.App.3d I 108-109 [285

II the tape because the destruction of prosecution’s Defendant contends that whether the had played made it to determine prosecution impossible sanction, should, have it established that the trial court as a deemed tape, has merit. argument had done so. This prosecution Trombetta under v. this contention majority analyzes California (Trombetta) and

(1984) 467 U.S. 479 L.Ed.2d 104 S.Ct. 2528] 109 S.Ct. Youngblood U.S. 51 L.Ed.2d 333] Arizona potentially of these cases concern the destruction of (Youngblood). Both evidence, and, determining a test for they establish exculpatory accordingly, value of the on the exculpatory whether to sanctions based impose part destroyed. evidence however, case, of exculpatory involve the destruction

This does not possible prosecutorial evidence. What was here was evidence of destroyed misconduct, which, occurred, if the work-product privilege, it violated to counsel. right and defendant’s Sixth Amendment attorney-client privilege, a violation of a such evidence is as much Although destruction of evi- of exculpatory to due as is the destruction right process dence, turn sanctions here cannot the test for whether to determining impose so, no Were it to do destroyed. on the value of the evidence exculpatory could the of evidence of misconduct prosecutorial sanctions for destruction on a criminal bearing ever because such evidence has no direct imposed, be innocence, value. lacking any exculpatory or thus guilt the facts of Youngblood Trombetta and to majority, by apply attempting case, round hole. this tries to force a into a square peg to that set forth But even if one were to a test apply roughly analogous here should to determine whether the trial court Youngblood Trombetta and a test to of such application have some sanction on the imposed prosecution, were that severe sanctions the facts of this case the conclusion compels sanctions requires the trial failure to impose called for and that court’s of the defendant. judgment against reversal criteria establish three Youngblood Trombetta and together,

Considered due process a defendant’s right that must be met to establish a violation of the destroyed by prosecution. of law when evidence has been exculpatory First, that was value “exculpatory the evidence must destroyed possess U.S. at (Trombetta, supra, 467 the evidence was apparent destroyed.” before however, that, on facts judge’s trial reliance agree by object to the majority, failing with the (Id. 108.) record, p. review. at defense did not preserve question outside the Second, 823].) L.Ed.2d at p. the defendant must show bad faith on p. [81 part (Youngblood, prosecution. supra, 488 U.S. p. Third, 289].) L.Ed.2d at p. evidence must be “of such a nature that the defendant would be unable to obtain evidence other reason- comparable available ably (Trombetta, means.” supra, 467 U.S. at L.Ed.2d at p. here, were, p. To the extent these are requirements applicable they view, my satisfied.

With test, respect to the first criterion the Trombetta!Youngblood majority concludes that the value of the and the “exculpatory envelope cassette themselves was not apparent at the time Heidt threw them away.” ante, (Maj. opn., 965.) at p. The majority’s literal to this approach criterion that, earlier, fails to I recognize as noted the materials on the defense tape that was destroyed by contained prosecution no evidence that have might Thus, exculpated defendant. it is meaningless to speak “exculpatory evidence” in this case. order to this criterion give significance case, context of this concept value” “exculpatory must be refocused and broadened. Rather than whether asking the “evidence” that de- was stroyed possessed “exculpatory value that was apparent prosecution] [to before was destroyed,” [it] it is sensible to reframe the here this inquiry Did the way: material that was destroyed to the case that possess importance was apparent to the prosecution before it was destroyed?

The importance of the defense tape that was destroyed by prosecution cannot be disputed. Both Deputy District Attorney Van Camp Sergeant Heidt had strong reason to suspect that the defense or its attorney’s tape contents contained Indeed, important information relating to the case. to have appears been the reason that Van prompted to order Heidt Camp record, listen to the tape. On this value potential tape certainly to apparent Van Camp and Heidt before the latter’s destruction the of tape. As to the test, second criterion of the TrombettaJYoungblood here there is compelling evidence of bad faith by the prosecution. Instead filling of out a found-property report returning the to tape defendant’s counsel through channels, Heidt, the proper Sergeant knowing the tape inten- important, tionally destroyed the tape by it throwing away. This action violated Penal (it Code section 594 crime is a to maliciously destroy personal property of another). (See Code, 6200.) also Gov. §

With regard to the third and final requirement, that the the destruction of defendant, material prejudiced the the denies the majority that prosecution’s destruction of the defense attorney’s tape prejudiced defendant. According to the “the majority, destruction of the contents the of did tape recording that the testimony prosecution defendant’s Heidt’s ability challenge lessen ante, 965.) the Although at p. did not listen to the tape.” (Maj. opn., defendant, the of the not have tape may prejudiced destruction of contents did, I destruction of the itself as shall tape explain. based on the destruc-

At the on defendant’s motion for sanctions hearing if the that testimony tion of the the defense tape, presented undisputed recovered, have the defense could been envelope containing tape by had been listened to produced indicating tape evidence that the the originally Such evidence would include the condition of prosecution. container; the sealed on the or its fingerprints tape of envelope; presence evidence (wound unwound); and the of other position presence or tape dirt, its cracks on the or tape such as breaks or handling, smudges, rips, Moreover, of a testimony tape- container. the defense presented undisputed Hecker, if had been recording tape Michael who said expert, recovered, have determine if it had been played it could been analyzed team, searching a machine than the the defense by other one used by Under distinctive mechanical or characteristics on the these magnetic tape. circumstances, I am the view that the destruction prosecution’s the defense it of attorney’s by any oppor- defense tape prejudiced depriving had indeed listened to the tape. to show that tunity prosecution Therefore, court Trom- high to the extent the criteria set forth case, Youngblood finding betta and are to this applicable they require vio- attorney’s tape intentional destruction of the defense prosecution’s lated due When a court finds that the right prosecu- defendant’s process. manner, tion has violated a “the court must choose rights this State’s most barring between further or ... prosecution suppressing (Trombetta, U.S. at L.Ed.2d at supra, p. evidence.” probative p. evidence that Because misconduct this case did not concern Thus, trial, evidence might suppress. have been introduced at there is no if Youngblood Trombetta and is reversal of the remedy judgment apply, case, defendant, and to with directions to the trial court to dismiss against in this case is remedy further Whether this is an prosecution. appropriate bar I below. shall question explore Ill evidence

This case does not involve the be- suppression exculpatory itself, cause the defense that was was not tape destroyed by prosecution contain, and did not evidence that have been introduced at any might of sort trial, much evidence have defendant. less that might exculpated earlier, As I detailed noted contained defense counsel’s destroyed tape trial and of the case strategy his of the and weaknesses perceptions strengths

1011 defendant. sanction for the against argues appropriate that the him from tape, prevented showing prose- destruction of which that it, listened deem did cution had is to it established the prosecution listen to the tape.

There no case But in v. People is this court’s decision Zamora point. 573, (1980) (Zamora) 28 Cal.3d 88 P.2d Cal.Rptr. may 1361] There, provide some guidance. charged resisting defendant was with arrest and with He battery police sought discovery past on a officer. records of unsustained use of made citizens excessive complaints alleging force by the officers the names of the all complainants, involved. for Except those destroyed records been about weeks before the defendant’s two arrest, him of the depriving might testify to locate witnesses who opportunity about the officers’ use excessive past force. Zamora, this court determined that the court in not trial erred imposing

any sanction for the rejected destruction of the records. We police dismissal, remedy of held was a instruction proper jury sanction that the officers “used or excessive force on each occasion when unnecessary [them], were filed complaints against but that records later complaint (Zamora, said, were supra, destroyed.” 102-103.) 28 Cal.3d pp. We “We would thus tailor the sanction to for the compensate wrong exact done (Id. . . . .” at p. 103.) Our in approach to remedial Zamora sanctions (See remains law. good v. People Cooper Cal.3d 811 [281 865]; 809 P.2d Cal.Rptr. People Medina Cal.3d 799 P.2d Zamora, In determining the in sanction this court to three proper looked First, the factors. Zamora court considered “the particular circumstances destruction,” loss attending or lawful noting that destruction [the] proper sanction, warranted no but that illegal malicious destruction could result (Zamora, Here, dismissal. supra, 100.) 28 Cal.3d at p. prosecution’s destruction of confidential tape to the was belonging attorney defense faith, both illegal and done bad as previously. discussed Second, the Zamora court noted that “the sanction on the mate- depends (Zamora, of the evidence riality supra, 100.) suppressed.” 28 Cal.3d at As p. earlier, I pointed out this case does not might concern evidence that have trial; been introduced at taking but “materiality” synonym to be a it importance, cannot be denied that in capital this murder case the tape defense containing counsel’s distillation his trial great strategy importance case.

Third, that, sanction, court stated Zamora at a arriving proper “the courts must consider the cases and impact sanction future upon 1012 Here, 100.) this (Zamora, at supra, p. 28 Cal.3d

future conduct.” police sanction, a to provide judicial in favor of a substantial factor weighs in the future.2 similar misconduct engage disincentive to Zamora, that the records showing from the defense was prevented In destruction; this fact of their evidence by have led to favorable would on the issue adverse to the prosecution a sanction required deprivation Here, that the showing from the defense was prevented force. excessive destruction; this fact of the tape’s played tape by prosecution on the issue the prosecution a adverse to finding deprivation requires Zamora, the sanction As tape. whether the had listened to prosecution wrong for the exact to compensate this case should also be “tailor[ed]... (Zamora, 103.) In of the light applicable Cal.3d at supra, p. done . . . .” 28 law, of the the willful destruction sanction for judicial case the appropriate in fact listen to it. team did deem it established that the prosecution is to tape in Zamora.3 This sanction that parallels

IV deemed it should have that the trial court Based on conclusion my defense listened to the team had that members of the prosecution established that conclusion. I turn to the strategy consequences tape, free from unreasonable A the assistance of counsel right (See, e.g., Amendment. the Sixth by interference is government protected 41-42, 97 L.Ed.2d Bursey (1977) U.S. 558 429 [51 Weatherford When, here, access 837].) unlawfully gained has S.Ct. as the prosecution materials, unrea- thereby has defense strategy prosecution confidential counsel. to the assistance of right interfered with the defendant’s sonably grade IV to Camp Van from Deputy Attorney District Attorney 2District Sneddon demoted a demonstrates substantial sanction I as a result of his actions in this case. This grade issue, and a commendable of the seriousness of the recognition by attorney the district however, courts, responsibility have a broader willingness to address it within his office. The misconduct, discretionary and therefore this egregious structural disincentives for to establish warranted, judicial sanction cannot substitute for by attorney, although the district action agencies, and has prosecutorial cases and other possesses general applicability to future the force of law as well. comparable situations. imposed civil cases in parallels also sanctions 3This sanction impose an (b)(2), may court subdivision Under Code of Civil Procedure section “[t]he action in established in the designated facts shall be taken as ordering issue sanction discovery by the misuse of the party adversely affected accordance with the claim Cal.App.4th (See, process.” e.g., Kuhns v. State of California 300, 302, Richards, 773]; Cal.App.2d Cal.Rptr.2d Caryl Superior Inc. v. Court issue, party an adverse is destruction of evidence or critical materials When the here, life, protection to no less is case should be entitled defendant on trial for his or her as plaintiff ordinary than a or defendant in an civil case.

1013 (1981) United States v. 449 U.S. 361 L.Ed.2d 101 S.Ct. Morrison [66 665], without government which concerned who met with defendant agents counsel, her court that cases knowledge or of the stated permission are to the rule that Sixth Amendment “involving subject general deprivations from remedies should be tailored to suffered the constitutional injury interests,” (id. violation and should not unnecessarily infringe competing at p. 568]) 364 L.Ed.2d “absent or p. prejudice, at that demonstrable [66 thereof, substantial threat of the indictment is plainly inappropri- dismissal ate, even though (Id. at may p. violation have been deliberate.” 365 [66 L.Ed.2d at It is from an of that p. apparent examination Morrison high (Id. court was to referring p. a dismissal that would retrial. preclude Israel, 569]; 2fn. L.Ed.2d at see 2 Criminal p. LaFave & Procedure [66 11.8, 75-76.) pp. § case,

In this did prosecution’s intentional the defense destruction of result in prejudice (United “or tape substantial threat thereof’? States v. Morrison, supra, 449 U.S. at p. p. 569].) L.Ed.2d at This court’s [66 decision in Barber Municipal v. Court Cal.3d 742 (Barber) 598 P.2d is instructive. Barber was decided on Although 818] state constitutional grounds, facts are in this In comparable those case. Barber, the had in a participated defendants sit-in at a nuclear power plant, and were charged with trespass. defendants held with meetings their attorneys to trial plan Later learned strategy. they codefendant anwas undercover officer. police Although there was no showing that officer that, passed information to the this court held on the prosecution, facts case, of only effective is the “[t]he dismissal of the remedy underlying (Id. charges.” 760.) at p. Barber, we rejected the prosecution’s argument that an exclusionary

remedy would suffice. We noted that “the enforcement of exclusionary an rule would involve exceedingly difficult of problems proof aggrieved for the client,” and that in such are circumstances forms of prejudice “[s]ubtle nearly impossible (Barber, 757.) to isolate.” supra, Cal.3d at p.

The practical problems showing when prejudice prosecution actual has illegitimately invaded the defense camp gained attorney- access materials, here, client privileged as were happened explained Briggs (D.C. 1983) Goodwin Cir. 698 F.2d “It 494-495 App.D.C. 3200]: would be virtually for an out impossible any or court to sort how appellant particular piece information possession prosecution or consciously factored into subconsciously each those [prosecutorial] Mere decisions. possession by prosecution of otherwise confidential about knowledge defense’s or is sufficient strategy position itself establish detriment to the criminal Such defendant. information is ‘inherently detrimental, . . . unfairly advantage[s] the prosecution, threaten[s] ” subvert the (See adversary system justice.’ criminal also United States v. (3d 200, Levy 1978) Cir. 577 F.2d 209 think that the into inquiry [“We prejudice must at the stop where point confidences are actu- attorney-client ally disclosed to the government enforcement in- agencies responsible case.”]; accord, vestigating prosecuting (3d United States v. Costanzo 1984) 251, Cir. F.2d 257.) 740

I find additional in guidance the United States Supreme Court’s decision _ in 302, v. Fulminante 499 U.S. 111 Arizona L.Ed.2d S.Ct. [113 There, court, Chief Justice 1246]. Rehnquist, for a of the speaking majority distinguished between “trial error” and “structural error” for the purpose determining whether a federal constitutional violation could be analyzed under the “harmless beyond a reasonable doubt” test enunciated in Chapman 705, 824, v. 386 U.S. 18 L.Ed.2d 87 S.Ct. 24 [17 A.L.R.3d California defendant, to determine prejudice 1065] to the or whether such a violation error,” instead automatic required reversal. “Trial court high explained, would be constitutional any error “which occurred during presentation of the case to the and which jury, may therefore be assessed in quantitatively the context of other evidence in presented order to determine whether its admission was harmless beyond (499 a reasonable doubt.” U.S. at p.__[113 L.Ed.2d at 111 p. 1264].) S.Ct. at p. contrast, said,

By the high court other errors are “structural defect[s] affecting framework within which the trial rather proceeds, than simply an Fulminante, error the trial process (Arizona itself.” v. supra, 499 U.S. at p._ L.Ed.2d at 111 p. 1265].) [113 S.Ct. at Such structural p. defects trial, include denial of the right to public and denial the right to self- (Ibid.) representation.

When the prosecution unlawfully gains access to defense trial strategy, that violation of the defendant’s rights is not curable an exclusionary remedy, because the harm of the violation is not that it evidence produced obtained, that was unlawfully and there is nothing to exclude. Nor is it susceptible to harmless error analysis, because the constitutional violation did not occur “during presentation of the case to the jury,” therefore may not be “quantitatively assessed the context of other evidence pre- sented order to determine whether its admission was harmless beyond a Fulminante, (Arizona reasonable doubt.” v. supra, 499 U.S. at p._ words, L.Ed.2d at p. S.Ct. at In p. other such violation of the attorney-client privilege and the Sixth Amendment right to counsel is error,” more akin to a “structural defect” than to a “trial to use the phrase- ology majority v. Fulminante. Arizona

When, here, as has invaded defense unlawfully camp prosecution materials, “substan- gained attorney-client access to there is a privileged Morrison, tial threat of within meaning of United States v. prejudice” 569], supra, at at and a “structural page page U.S. L.Ed.2d defect trial affecting framework within which the within the proceeds” Fulminante, meaning supra, 499 U.S. at L.Ed.2d page_[113 Arizona circumstance, 1265], at page 111 S.Ct. mean- page only this ingful at the court level remedy trial is dismissal.

V A “is the prosecutor representative of an a ordinary not to contro- party versy, but of a sovereignty govern whose is obligation impartially as all; interest, therefore, as compelling obligation its at and govern whose case, a criminal prosecution it justice is that shall win a but that shall be 1314, 1321, (Berger done.” United States 295 U.S. L.Ed. 629]; accord, Conduct, 55 S.Ct. ABA 3.8.) Model e.g., Rules of Prof. rule “It is as much prosecutor’s] to refrain duty [a from methods calculated improper to produce a wrongful conviction as it every is use means legitimate States, bring just about a one.” (Berger supra, v. United L.Ed.2d p. 1321].) at p. This court has is essential that emphasized the public “[i]t have absolute confidence integrity impartiality system our of criminal justice.” (People v. Rhodes Cal.3d 185 [115 524 P.2d

These considerations are always important, they but take on added impor- when, here, tance as ultimate society’s sanction capital punishment is at trial, issue. In a death it is penalty essential that have a public high degree confidence that its in court seek representatives conviction and punishment without obtaining unfair any over the defendant. advantage

The prosecution’s interference with defendant’s right to counsel this case does not mean that defendant can never receive a fair trial on these retrial, under charges any At circumstances. both prosecution will defense have the advantage of their knowledge of adversary’s strategy, Thus, based record of the first trial. a retrial will occur on “level playing field.” This will erase any appearance and assure that impropriety no unfair advantage had been exploited. to the trial court to dismiss

I reverse the with instructions judgment would refiling charges. the case and to permit Mosk, J., for a was denied 1993. rehearing April

Appellant’s petition Kennard, J., granted. should be were of the opinion petition

Case Details

Case Name: People v. Zapien

Court Name: California Supreme Court

Date Published: Mar 4, 1993

Citation: 846 P.2d 704

Docket Number: S004762. Crim. 26289

Court Abbreviation: Cal.