*1 Dec. 1995.] S007780. [No. PEOPLE, and Respondent, Plaintiff

THE SANCHEZ, Defendant and Appellant. BRIAN TEDDY *15 Counsel Court, and Rivkind, Defendant for the Supreme under appointment

Nina Appellant. Williamson, General, Assistant Chief Attorney George

Daniel E. Lungren, General, General, Anderson, Shirley Attorney R. Assistant Robert Attorney General, Kaida, and Plaintiff for Deputy Attorneys A. Nelson and Judy Respondent.

Opinion to a right Brian Sanchez waived LUCAS, Teddy C. J. After submitted the circumstances and guilt phases, trial at the and jury special transcripts, of the hearing case for a court trial on basis preliminary of murders of Juan degree Bocanegra, trial court found him the first guilty Code, 187; (Pen. all Woodrow Wilson Tatman Juanita and Bocanegra, § noted). The otherwise court references are to the Penal Code unless statutory 190.2, (§ found true the allegation multiple-murder special-circumstance but untrue the (a)(3)) subd. as murders found Bocanegra only, that had been charged special-circumstance allegations robbery-murder 190.2, (a)(17)(i)). The court (§ and murders subd. Bocanegra Tatman used within the also found that defendant and deadly dangerous weapon murders, (b) of section and Bocanegra subdivision both meaning Tatman, that defendant was but not of robbery guilty guilty of Juan and Juanita At conclusion of (§211). robbery Bocanegra trial, a verdict of The trial court denied returned a death. penalty We affirm modify defendant’s motion to the verdict and entered judgment. in its judgment entirety.

I. Facts

A. Guilt Phase Facts

1. The Murders Bocanegra 3, 1987, On the found the bodies Juan February afternoon of police room, sewing in their Juanita was found in her Juanita home. Bocanegra was in the Both sustained extensive stab Juan found kitchen. had A around Juani- wounds and head of fabric was tied injuries. piece loosely neck, ta’s her wrist. another cloth found on piece

Kern Sheriff’s County criminalist Gregory Laskowski the blood analyzed found at the scene and concluded that both victims were their killed where bodies were found. The blood splatter evidence showed that began the attack in the near the hallway bathroom. The then fight moved to the kitchen where amounts of blood large indicated that a took struggle place throughout room. The evidence indicated a fierce struggle occurred throughout house. Small amounts of diluted in blood bathroom suggested someone cleaned after the attack. up

Laskowski also found evidence of two of shoe tracks on the floor of types kitchen; the Bocanegra another, one had a print “chevron pattern” and partial print, contained a sole “wavy A full design.” shoe in the wavy design track bathroom was consistent with the found Both print kitchen. victims shoes; were found without Juanita’s bloodstained were found slippers hallway.

Police found a knife block with four in the empty spaces kitchen. Two knives, bloodstains, without were in the kitchen sink. There were slash marks on the cabinets above the knife holder. directly That same evening, recovered a knife police and sharpening stone that to have appeared blood on them. No were fingerprints found on these items. But did police find a bloody to defendant’s palm print Robert belonging accomplice Reyes on the doorknob inside the front door. Bocanegra on Autopsies performed both Juan and Juanita revealed that died as a result of massive they hemor- wounds, due to stab rhaging multiple of instrument although type inflicted the wounds could not be determined. conclusively 4, 1987,

On February Colt Bocanegras’ station Dodge wagon found abandoned. There were extensive bloodstains on both the interior and exterior of the car. Fingerprints belonging were found on Joey Bocanegra the interior driver’s and rear door right windows and on the rear door handle.

Two items of evidence linked defendant to the crimes. The missing Bocanegra television set was found in the same room at the Bakersfield Inn murders, where defendant at the stayed time of the and defendant sold the vacuum cleaner Bocanegras’ to Maria a clerk Rodriguez, employed by inn. The evidence used to convict remaining defendant was based primarily crime, on the circumstances of the made statements incriminating Stratton, defendant to police Bob investigator informant Rufus jailhouse Hernandez, and Michael newspaper reporter Trihey. *17 Murder

2. The Tatman man undernourished, frail, 72-year-old a Tatman was Woodrow Wilson rooma rented a He confined to wheelchair. alcohol and was who often drank watching and Inn, his alcohol drinking and days Bakersfield spent also and she as a maid the inn by Rose McGrew employed television. in his been last care for Tatman and had She on the helped lived premises. lived at and also worked Maria Charboneau on 1987. February room checks, his and inn, managed of Tatman’s Social Security and she took care Security Social received two February, first Tatman finances. In the week $100. $80 and Tatman between gave On Charboneau February checks. saw him alive. was the last time she That 4, 1987, that Tatman’s McGrew noticed of February

On afternoon mail, which and he had not yet up were still drawn picked drapes found the room and check. McGrew entered included his Social Security with He was covered on the floor near his bed. body, lying Tatman’s television, from electric skillet were missing radio and Tatman’s bedspread. the room. blunt killed “massive by

The indicated that Tatman was report autopsy and caused lung which his left injury collapsed force to left chest” consistent with a heel substantial The blow the chest was hemorrhaging. by two inches or with the of an instrument approximately stomp application three inches size. and

Tatman also sustained several stab wounds to chest superficial abdomen, as as a head It lower well injury. appeared superficial mortem, or contributed to had been inflicted intra none injuries post abdom- It not what instrument caused the lower death. could be determined aby it that the chest wounds were inflicted although inal injuries, appeared John who pathologist performed screwdriver. Dr. forensic Holloway, were caused one or could not determine whether the wounds autopsy, more individuals.

a. Statements Made Jailhouse Hernandez Informant for two months during Rufus Hernandez was incarcerated with defendant second degree 1987. He had been with stolen charged receiving property Defendant to Hernandez about the murders Bocanegra burglary. spoke he received six months in whereby Hernandez entered into a plea bargain and three for his county jail years’ probation exchange testimony. Hernandez testified that defendant told him he went with Joey Bocanegra to the house. Bocanegra Hernandez’s testimony was inconsistent as whether defendant said they went with the plan robbing Bocanegras with the only from plan borrowing money Juan Defendant Bocanegra. waited outside for but entered the house Joey, when he heard and Juan Joey in the arguing *18 Defendant claimed he tried hallway. stop unsuccessfully Juan with a fight by curved metal bar. He hitting thereafter threw the bar in the front yard. Defendant did not whether had stabbed Juan before say Joey or after defendant hit him.

Juanita, room, who heard the commotion from another came out of the bedroom Defendant yelling. a slipped puddle blood as he over jumped Juan to reach He Juanita. thereafter grabbed Juanita and told that he Joey should “shut his mother. up” then stabbed his Joey mother repeatedly room, her into the pushed where she sewing was found. Defendant did not Juanita; tell Hernandez that he did other than hold anything instead defend- ant claimed that he saw stab both Joey victims with a kitchen knife. Defendant ended his with story the comment that after the murders he threw the bar into the front and that the knife yard, was thrown into a canal. television, toolbox, Defendant noted that took the Joey and his parents’ hatchback automobile. Hernandez thereafter defendant’s reported statements to police Stratton. investigator

b. Statements Made to Police Stratton Investigator 19, 1987, On February Stratton met with defendant in the Kern County jail. Defendant had contacted the his because he police through attorney wished to offer statements about the crimes. Before Bocanegra commencing interview, defendant waived his right to counsel after receiving admonitions Miranda v. required by 384 U.S. 436 [16 Arizona L.Ed.2d Thereafter, 86 S.Ct. 10 A.L.R.3d he told Stratton 974]. a.m., that about murders, on the of the day he met Bocanegra Joey on the Bocanegra street and to him for a few minutes before spoke Joey walked home. Defendant then walked by Bocanegra house and observed Joey the home. At leaving the interview point, with Stratton ended. later,

One week Stratton again spoke defendant. At this point, defendant asked Stratton a series of hypothetical “What if I was questions, including: house; in the what present if hit his Joey dad after his dad had refused to give him some money; what if dad Joey’s hit him back and what if Joey got real mad and dad; a knife and grabbed started what if stabbing Joey’s mother didn’t know what was because she was in another room?” happening Boggs Detective to Homicide Made

c. Statements rights, his Miranda after waiving March On Defend- Boggs. Detective Homicide Tatman murder about the interviewed to talk and agreed murders for the Bocanegra been arrested already ant had of his life in the rest be he could spending he believed officer because to the prison. Tatman of his to rob him he wanted told that defendant testified

Boggs that, he because told Boggs one. Defendant he needed because refrigerator at the time alcohol (from drugs) ingesting intoxicated was so of events. not remember the sequence he could robbery, *19 bath- to Tatman’s open asked pry Reyes to According Boggs, inside, removed the Reyes Once screwdriver. Reyes’s room window with to a room next moved it and defendant of Tatman’s refrigerator, contents Omalez, of the perpetrators. a friend rented by Vicky door that had been room, Tatman to Tatman’s he returned told that when Boggs Defendant in his hand. with a screwdriver over him awake and was standing was Reyes because was this acting way he had no idea why Reyes Defendant claimed his removed they to awaken Tatman while men had discussed not trying both chest, bed and Tatman off the in the pulled then hit Tatman Reyes property. floor, with the movements downward and made multiple lunging onto the blocked his the bed Defendant asserted that partially screwdriver in his hand. After view, Reyes Tatman. stabbing believed was Reyes but he nonetheless murder, Vickie Omal- returned to both defendant and Reyes completed room. ez’s Trihey Comments to Michael

d. Postarrest Defendant’s Prior to Californian. was a for the Bakersfield Michael Trihey reporter trial, against five times about the charges pending he interviewed defendant entitled, 25, 1988, article a Trihey the paper published him. On April Death, defend- According Trihey, No. System Says Asks Own Accused for and the Bocanegras murderer” and that told him that he was a “triple ant checks. were killed for their Social Security Tatman B. Phase Evidence Penalty criminal activity evidence of defendant’s

The introduced prosecution 190.3, (b).) factor (§ of force or violence. the use or use involving attempted 7, 1982, On defendant assaulted store owner Hassan Ahmad Ammarie May after defendant asked him bacon” “get Ammarie to some and Ammarie Defendant refused. stabbed Ammarie the left shoulder and neck. Ammarie hospitalized for two weeks the attack. following 2, 1982, On June defendant attacked an Arthur Melendez acquaintance, Pena, after Pena refused with defendant’s demand for comply money.

Several had witnesses who testified at the also testi- preliminary hearing fied at the Detective penalty phase. Homicide testified defendant had Boggs room, him that after told Tatman’s he removing possessions to Omalez’s and back, “kicked drank some smoked some some food Reyes whiskey, ate dope, and relaxed for rest just Informant Rufus and evening.” Hernandez Police Detective also Stratton testified that defendant told he Hernandez that took active an role in and Tatman beat- Bocanegra slayings—including Juan and ing Bocanegra, Juanita and beating assisting Reyes stabbing Tatman. Stratton him Hernandez’s statements to that defendant and repeated went Juan and Joey Bocanegra Juanita’s house rob them planned to McGrew, Tatman was robbed for Social check. Rose Security maid, the Bakersfield Inn her repeated guilt about how she phase testimony discovered Tatman’s body. *20 murders,

With to the regard Hernandez testified Bocanegra that defendant entered house with a bar and to “ran father and him up Joey’s grabbed and him held there until went and the knife and beat him Joey got they just room, and stabbed him.” When Juanita out walked of her sewing her: “rushed” “That’s when both started her. . . they killing They . just bar, stabbed her numerous times and in hit her the head a few times with time, and the at the same time of that I doing Joey somehow guess managed room, to her back I get inside the while he was . . .” guess, her. The hitting also prosecution introduced six color of the victims and photographs forty- eight other color photographs of the and Tatman Bocanegra crime scenes. Criminalist that Greg Laskowski testified the blood of splatter the hallway Bocanegra house consistent with the prosecution’s theory occurred multiple stabbings there. friends,

Defendant’s phase evidence consisted penalty of testimony relatives, and a social to the effect that defendant’s anthropologist dysfunc- tional and poverty-stricken, life migratory his family severely hampered live to ability life. Defendant was his mother productive rejected by his birth and was sent to with following live his When he was grandparents. old, three defendant’s mother and years wrenched stepfather unexpectedly there- home to move to Arkansas. Shortly his from grandparents’ defendant after, took defendant and mother left defendant’s stepfather, defendant’s with remarried a man Defendant’s mother brother to California. his half children, five additional children. thereafter had and the couple three abusers were alcoholics and drug and his stepfather Defendant’s mother who His other and the children. grandparents, were violent with each who defendant, drugs. drank and abused heavily of also charge were often acute in their middle 30’s of mother and died Both defendant’s stepfather but took to drugs tried to take care of his siblings, alcoholism. Defendant no to crime because he had difficult life. He turned eventually escape him for life as an adult. marketable skills to job prepare to the jury defense counsel Frank Gary attempted persuade Penalty phase without the defendant should receive a sentence of life possibility remainder of his life in prison.” parole “spend

II. Discussion A. Guilt and Circumstance Phase Issues Special Transcripts

1. Submission on Validity Preliminary Hearing trial, 11, 1988, On the second defendant’s chief day July guilt phase counsel, Toton, submit trial moved to circumstance guilt special (Cocounsel on the Frank was also phases preliminary hearing transcript. Toton stated that defendant had agreed present during proceedings.) witnesses, confront waive his to a trial and to and to offer no evidence, additional allowed subject being argue legal admissibility *21 of the The next the court informed the that testimony. day, although parties issue, it had not researched the it would allow Toton to take tentative waivers of constitutional from defendant. These nonbind- nonbinding rights waivers included defendant’s waiver of his self-incrimina- ing right against tion.

The the motion. She stated that she prosecutor, Ryals, although opposed to from he willing a defendant that was accept stipulation guilty and a the circumstance and to to charges special allegations proceed directly trial, she would not to the submission of the case on the penalty stipulate preliminary hearing transcripts.

On the court told the that it the had believed July parties prosecution the to a trial in the circumstance but that right jury guilt special phases informed

it would entertain further from Toton argument defendant. court the submission was a at made proposal compromise Toton’s Defendant wanted to request. originally had to plead guilty Toton not that a but would consent to such capital charges, believing a plea, amount plea would to ineffective assistance under guilty of counsel Cal.3d 412 2 A.L.R.4th Pope P.2d Cal.Rptr. 1]. that if the court Ryals argued granted defendant’s to submit request on the case basis preliminary hearing transcripts, prosecution would be from foreclosed additional proffering gathered evidence since told the preliminary hearing. Ryals court the additional evidence was essential to (who convict defendant and included testimony by Rodriguez stolen from the purchased scenes), murder to property Trihey, reporter confessed, officer, whom defendant a and an of the Bakers- police employee field Inn. Toton and that the Ryals agreed should be allowed to prosecution present additional evidence the guilt and that the would phase, defense rebuttal evidence present argue the case. Toton then stated to the court: then, Let me because there is lot of attempt things going “Mr. Toton: on, see to if is correct. my understanding “We are to prepared jury waive trial on the guilt on the phase, special circumstance.

“Mrs. will additional be Ryals present evidence. We will able present additional evidence and the matter. argue and, words,

“At it will penalty be phase, statutory, other we understand that she has to on the facts and put circumstances of the case itself. were,

“Regular rules of will evidence at this ifas as if apply point they there had been a trial on the jury and that Mr. Sanchez be guilt would phase, to so waive his to a prepared trial on both on both separately guilt phase and special circumstance. “Mr. Frank and I would be that on prepared consent join People’s also join.” *22 It sounds all right, good.” sounds

“The Court: The trial court then allowed Toton to inform defendant of his constitu- rights, tional but ruled that the waivers would not bind defendant until the to and by jury to trial his rights waived Defendant morning. following witnesses, not to and did was not asked but cross-examine and confront He repeatedly self-incrimination. against of the right his waiver repeat and however, rights his constitutional waiving he was that acknowledged, waivers Once the voluntarily.” “freely entered decision was the court between taken, occurred following colloquy were defendant: to Toton have talked Frank and Mr. it that. . . Mr. I take Court:

“The the waivers? about at some length you Yes, sir.

“The Defendant: them? feel understood you

“The Court: Do you Yes, sir, I believe I do.

“The Defendant: it, at least since had some time to think about “The Court: And have you later, to I take it? talked they you about 10:30 this morning, Yes, “The Defendant: sir.

“The Court: And have about it? thought you Yes,

“The Defendant: sir. witnesses, confront So far as are “The Court: you losing your right to the court through will be those witnesses whose testimony presented examination, them in a chance to cross-examine won’t you get preliminary this court. You understand that?

“Defendant: Yes sir. And are then? giving right

“The Court: you up Yes, “The Defendant: sir. so far as the witnesses called ... augment Now,

“The Court: case, behalf, called in this case and/or in witnesses live People’s your that? will have the understand confrontation and you you *23 Yes, sir. “The Defendant:

“The I have to tell that some of the in the state of you Court: cases that when a case to the to determine the say present California you judge on or innocence the basis that’s guilt preliminary hearing transcript, a slow plea. sometimes called guilty Yes,

“The Defendant: sir. before, I “The Court: don’t know whether have heard that you language but in the it’s used cases. Yes,

“The Defendant: sir. And I to be of that. I you want aware am not telling you “The Court: case, how I am to decide this but is an aura of in the cases there going be you should aware of fact. Yes, “The Defendant: sir. And do understand that? you

“The Court: Yes, sir.

“The Defendant: “The Court: And a trial are you willing give up your right by jury both as to the of the two homicides and of the other enhance- guilt alleged circumstances; ments and the is that special right?

“The Defendant: Yes. “The Court: And know have the and we are you you right, ready give all you on those issues. Yes, Honor, I understand all that. your

“The Defendant: And you nonetheless it give up? “The Court: Yes, sir.”

“The Defendant: thereafter, the court confirmed that defendant understood he Shortly again constitutional waiving important rights: *24 decision? your satisfied with Court: Are you “The Yes, sir, confident. I am very Defendant: “The here. record of everything we have know got Court: Because you

“The else, think about I didn’t tell gee, kind of hard to somebody to be It’s going at me. My [a]ttorney growled The coerced me. it. The judge [d]istrict know, be kind of hard to say it’s going You kicked me around. lawyers with here. Are satisfied you candid with us have been very that after you that? sir, Yes, I am satisfied. very Defendant:

“The I make satisfied. will I believe are you Court: You seem satisfied. “The a finding.” that kind of trial and confrontation his intent to waive his jury

Defendant confirmed court or was made by but no mention rights following morning, self-incrimination. counsel of defendant’s right against the case on the that because submitting Defendant now contends (or a slow to pleading guilty tantamount preliminary hearing basis under Bunnell v. Superior trial court committed reversible error plea), (hereafter (1975) 13 531 P.2d Court Cal.3d 592 Cal.Rptr. 1086] [119 Bunnell) waivers that defendant would binding when it failed to advise He Fifth Amendment self-incrimination. be right against relinquishing him of the direct conse also contends that the court’s failure to advise reversal, does the fact that he was of a conviction as requires quences waiver. unaware of the ramifications of his initial submission and legal a. Slow Plea Bunnell,

In held to submit a case for this court that a stipulation decision on must be advice preliminary hearing transcripts accompanied of a constitutional rights jury waiver defendant’s regarding personal cross-examine, trial, silence, i.e., advice and and to confront and Boykin-Tahl L.Ed.2d S.Ct. waivers. v. Alabama U.S. 238 (Boykin [23 449].) 1709]; 460 P.2d The In re Tahl 1 Cal.3d 122 Cal.Rptr. held, he had been advised of his Bunnell court “the record shall reflect that witnesses, trial, and against to a to confront and cross-examine . . waivers of the enumerated constitutional self-incrimination. . Express shall In rights ... all defend- appear. guilty and submission plea cases ant shall be advised of the direct as the such consequences conviction *25 (Bunnell, of .” permissible range punishment statute . . provided by . 605.)

13 Cal.3d at p. Thereafter, (1987) in v. People Hendricks 43 584 Cal.3d Cal.Rptr. [238 66, (hereafter Hendricks) 737 P.2d we held that the mandate of 1350] Boykin-Tahl to of applies only and submissions on the pleas guilty prelimi or slow nary hearing virtue of which transcript, pleas, “by [defendant] surrenders one more of the three (Id., at A specified rights.” slow is defined as a submission of plea to the guilt phase court on the basis of the preliminary hearing that is tantamount transcripts to a of plea guilty because is guilt on the face of the apparent and transcripts conviction is a foregone conclusion if no defense is offered. (1987) 43 (People Wright Cal.3d 496 Cal.Rptr. 729 P.2d [233 Wright].) 260] [hereafter whether Deciding difficult, a submission is a slow is often plea courts review such generally based on pleas defendant’s to willingness contest the court trial. guilt during “Submissions that are not considered slow (1) include those in which pleas involves preliminary hearing substantial cross-examination of the prosecution witnesses and the presentation (2) defense evidence or the facts revealed at the examination are preliminary but essentially undisputed counsel makes an to the court to argument as to be legal significance (Ibid.; accorded them.” see In re Mosely 1 913, 924-925, Cal.3d fn. 9 464 P.2d Cal.Rptr. [extending, [83 473] dictum, Tahl advisement and waiver cases which requirement defend ant’s submission on preliminary is hearing transcript tantamount to a guilty plea].)

Defendant claims that because counsel did not for argue of all acquittal no charges defense to some of presented his submission was charges, a slow tantamount to a plea observes, But guilty as the plea. Wright court court, in appellate “[a]n whether a submission determining is a slow plea, must assess the circumstances of the entire It is not for proceeding. enough a court to reviewing count the number of simply witnesses who testified at hearing following submission. A submission that prospectively ap peared to be a slow turn plea may out be part a full-blown trial if counsel contested the of evidence for sufficiency those counts or presented another potentially meritorious legal argument against conviction. Con a submission versely, that did not to be a appear slow plea because defendant reserved the and call testify witnesses or to argue the sufficiency (see evidence v. Guerra Cal.App.3d 627]) turn Cal.Rptr. may out to be a slow if the plea defense no evidence or presented argument If it contesting guilt. on appears [% defense, the submission advanced a substantial whole that the defendant Sometimes, to a plea guilty. be considered to be tantamount cannot make a tactical decision to best defense is weak. He may defendant’s or more of several counts as of an overall part concede as to one guilt under these circumstances is not a slow defense A submission strategy. plea, and Tahl to Boykin and the trial court is not constitutionally compelled by is to assure that the tactical decision administer guilty-plea safeguards waivers in such a The advisements and voluntary intelligent. that underlie our case are as a matter of the only judicial policies required 496-497.) decision in Bunnell.” Cal.3d (Wright, supra, pp. *26 case,

In the submission on the defendant’s present preliminary was not a slow Defense counsel Toton conducted hearing transcripts plea. of the substantial cross-examination the witnesses prosecution during pre Toton also called witnesses Hernandez and liminary hearing. prosecution defense, Detective Stratton to for the Hernandez about testify questioned whether he had to defendant with the intent of agreed testify against making in a deal his own case. addition,

In the close of the following prosecution’s guilt phase presenta- tion, Toton renewed his motions to strike of the trial of portions testimony (the Maria Detective and William Freeman Rodriguez, Boggs, patrolman who seized two screwdrivers from defendant that had been stolen the from residence), and then moved for a of Bocanegra of all the judgment acquittal charges.

In the motion for arguing Toton asserted there was insufficient acquittal, evidence of defendant’s of the and murder and that the guilt robbery charges, failed to the charge circumstance In properly special allegations. addition, Toton asserted that no physical evidence linked defendant to the murders. He that Bocanegra argued the no evidence of prosecution presented murders, premeditation those and that defendant’s hypothetical questions to Detective Stratton should not be used as evidence of murder. Toton also out that pointed defendant’s statements to newsman incriminating Trihey crime, kill, implied knowledge but not to intent that there was no evidence that defendant robbed the or that defendant had the Bocanegras intent kill to either the specific or Tatman. Bocanegras Toton’s the closing argument was extensive. following guilt phase equally evidence, law, He asserted there was insufficient as a matter to prove beyond reasonable doubt that defendant committed the robberies charged and the murders because the Bocanegra of Hernandez and testimony Trihey best,

was not At he credible. evidence argued, Bocanegra murders a verdict He also asserted that the supported voluntary manslaughter. had failed to intent to kill prosecution prove specific necessary support circumstance special allegations. It therefore that defense counsel’s cross-examination was appears substan tial, and that the facts argued he as at the constantly presented prelim should be viewed as not inary first murder hearing supporting degree facts convictions. These assertion defendant’s support People’s submission on hearing for the preliminary transcripts guilt special circumstance of the trial not tantamount to a phases guilty plea.(Wright, 496.) Cal.3d supra, p.

For submissions not to a tantamount a trial court’s failure to guilty plea, advise the self-incrimination is right against implicated only (Hendricks, to the extent defendant surrendered 43 Cal.3d at right. here, submission defendant never Through stipulated surren dered his self-incrimination because he chose not privilege testify during Because defendant never surrendered his guilt phase proceedings. *27 self-incrimination, no a against there was of on-the- requirement personal, (Ibid.) record waiver.

b. Consequences Conviction of next

Defendant contends the trial court committed reversible error when it failed to advise him a conviction of and guilt special circumstances could lead to a death sentence. Without an of understanding of possible and circumstances consequences submitting guilt special asserts, on the defendant waiver of preliminary hearing transcripts, any constitutional is invalid. rights

We find defendant’s On submission on a argument unavailing. transcript of a must defendant be told of the preliminary hearing, maximum potential (1988) minimum terms of v. Dakin 200 imprisonment. (People Nonetheless, 1033 206].) a court’s Cal.App.3d failure Cal.Rptr. [248 to this with rule if it comply requires only reversal is a reasonably probable result to more favorable the defendant would have in been reached absence 495; of the (Wright, error. at supra, Cal.3d v. Watson p. People 243].) Cal.2d P.2d find We no such Defendant had prejudice. been advised of counsel thoroughly by consequences pleading guilty and of the of his He consequences rights. constitutional was well waiving sentence, and, aware that he faced a death to possible according reporter the record that It is clear from own death. asked for his even Trihey, insisted on the a trial and to right would have waived defendant if even hearing transcripts on the preliminary of the guilt phase submission sentence. a death court that he faced possible told he specifically Other Claims c. ramifications told of the legal that he was not

Defendant asserts limit to that pre evidence between Toton Ryals of the agreement to the (2) of the absence of a defense hearing, sented at the preliminary Defend charges. first degree felony-murder and the Tatman robbery Tatman to the charges that he was unaware the defense challenge *28 2. the Evidence Sufficiencyof of

Defendant contends there was insufficient evidence premedita tion and deliberation to his convictions for the first murders support degree alternative, of both if Juan and Juanita In the he asserts that even Bocanegra. there was sufficient evidence to convict him of the murders on an Bocanegra aider and abettor the evidence a second theory, degree supported only murder conviction because the failed to intended prosecution Joey prove deliberation, kill with parents premeditation aided and abetted in the murders.1 We convinced beyond need not be a reasonable on doubt that the murders were Our inquiry premeditated. 1987, February eight 1Defendant’s crimes were committed in before our October months People 585, (1987) v. Anderson Cal.Rptr. decision in P.2d 1987 43 Cal.3d 1104 742 [240 1306], 79, Superior (1983) which overruled Carlos Court Cal.Rptr. 131 672 v. 35 Cal.3d [197 32 “in of light the whole record whether

appeal any rational trier of fact [is] could have found the essential elements of the crime a beyond reasonable 463, (1995) 826, doubt.” v. Davis 10 Cal.4th 511 (People Cal.Rptr.2d [41 Davis]’, 896 P.2d (1979) see Jackson v. Virginia 443 U.S. 119] [hereafter 307, 560, 573-574, 2781].) 318-319 L.Ed.2d S.Ct. The 99 standard of [61 review is the same when the on circumstantial evidence. People rely mainly (1995) 764, 543, v. (People Stanley 10 Cal.4th 793 P.2d Cal.Rptr.2d 897 [42 481]; 919, 467, (1988) see also v. Bean 46 People Cal.3d 932 Cal.Rptr. [251 760 P.2d based on circumstantial evidence will be affirmed 996] [conviction if circumstances trier of fact’s The reasonably justify record does findings].) not either of defendant’s contentions. support cases,

As we in have observed numerous we test apply tripartite (1968) 550, v. People 942], Anderson 70 Cal.2d 15 447 P.2d CaL.Rptr. [73 in whether the evidence is deciding sufficient to a support finding premeditation and deliberation (1) based on these three factors: planning (2) (established motive activity; and/or by prior conduct with relationship victim); 26-27; (3) (Id., and manner of killing. v. Wharton pp. People 522, (1991) 631, 53 Cal.3d 546-547 P.2d CaL.Rptr. 809 [280 290] [hereafter Wharton]; 841, 849, (1982) cf. v. People Haskett 30 Cal.3d fn. [180 776].) 640 P.2d CaL.Rptr. court sustains verdicts of first degree [T]his murder when there typically is evidence of all three and otherwise types at least requires (1) evidence of or extremely strong (2) evidence of conjunction (3).” (Anderson, with either Cal.2d at p. We have that the Anderson factors recently explained do not establish rules, normative but instead for our In provide guidelines v. analysis. People Thomas Cal.4th 828 P.2d we Cal.Rptr.2d [7 101] observed: “The Anderson was intended as a framework to analysis assist courts in reviewing whether the evidence assessing an inference supports that the resulted from killing reflection and preexisting consid- weighing erations. It did not refashion the elements of first murder or alter the degree substantive law in any way."

Thereafter, (1992) 2 Cal.4th 1125 Cal.Rptr.2d Perez *29 577, (hereafter 831 P.2d Perez) statement, we reiterated the Thomas 1159] and added that Anderson are guidelines not normative. descriptive, “[t]he 862], Therefore, killer, P.2d whether or not the actual we defendant was must find he harbored the intent apply (People to kill for the multiple-murder special circumstance v. Turner (1984) 302, 196, 669].) 37 Cal.3d Cal.Rptr. Although 328-329 P.2d [208 690 parties do (and not raise the issue because the case was tried to the court thus the “intent kill” requirement instructions), did not arise in the usual we note the “intent context of kill” requirement applied nonetheless. in assessing courts reviewing of Anderson was to aid The goal [Citation.] inference that the killing is of an the evidence supportive whether rather than of considerations reflection and weighing result of preexisting In identifying categories or rash unconsidered impulse. [Citation.] [*]fl mere deliberation, did not and Anderson on of evidence bearing premeditation exclude all other and list that would types to establish an exhaustive purport a and finding premeditation evidence that could support combinations of factors, for of re- . . The Anderson while helpful purposes deliberation. . murder, view, nor are a sine non to first finding degree premeditated not qua Davis, 511.) (See exclusive.” 10 Cal.4th they p. are it not that the Anderson we have that is recognized necessary Finally, be a “factors be in some combination or that accorded they present special 195, (1992) v. Pride 3 Cal.4th (People particular weight.” [10 Nonetheless, 636, 643].) the factors 833 P.2d we are guided by Cal.Rptr.2d a result of in our determination whether the murder occurred as “preexisting (Ibid.) rather than unconsidered or rash reflection impulse.” We find substantial evidence the trial court’s supports finding kill that he intended to Joey Bocanegra parents, premeditated murders, deliberated the and that defendant can be found liable vicariously observed, an for murders as an aider and abettor. As we have aider and abettor must with of the criminal act knowledge purpose and with an intent either of or of perpetrator committing, encouraging of, commission the offense. v. Beeman 35 Cal.3d facilitating (People Beeman].) 674 P.2d We have Cal.Rptr. [199 1318] [hereafter also that if the aider and abettor undertakes acts “with the intent recognized that the actual be he is facilitated perpetrator’s purpose thereby, principal and liable for the commission of the Croy offense.” (People 1, 12, 190.2, 392]; Cal.3d fn. 5 710 P.2d see also Cal.Rptr. §§ Thus, (c) (d), 971.) & subds. the basis of for the liability perpetrator applies to the aider and abettor and extends to “the natural and reasonable conse of the acts he quences aids and knowingly intelligently encourages.” (Beeman, supra, 35 Cal.3d at As we we conclude explain, kill, that defendant shared intent to and in commit Joey’s assisting Joey crimes, understood, facilitated, ting the full extent of criminal Joey’s purpose. testified, Stratton, admitted

Hernandez and defendant to Detective waited outside while entered his house. initially Joey parents’ Defendant then entered the house after the sounds of a between fight hearing and Juan. Defendant told Hernandez that he went inside the house to Joey father, break up fight between and his but the facts belie his stated Joey *30 house, intent. When defendant entered the he saw Joey with his fighting aid, father. Rather than come to Juan’s a curved grabbed metal bar and commenced Juan. beating actions, to defendant’s

Joey’s statements to according wit prosecution nesses, indicated that deliberated over his Joey father’s killing. Joey initially then, kitchen, struck Juan in the and in the hallway obtained a knife that he view, kill, used latest, to stab Juan. In our formed a clear intent to Joey at the father, the altercation with his during and obtained a kitchen knife to carry out that Our cases hold plan. that planning activity over a occurring “ short of time is sufficient to find period The true test is not premeditation. the duration of time as much as it is the extent of the reflection. Thoughts cold, follow each other with may great and rapidity calculated judgment may (Perez, be arrived at ....’” quickly supra, Cal.4th at p. quoting v. Thomas 7].) 25 Cal.2d P.2d There was also evidence of ample motive. The evidence a supports inference strong that entered his Joey house to rob them. parents’ When his father resisted the was motivated to robbery, Joey murder him in order to access to both gain money tangible a television set. goods, including Substantial evidence a that supports believed Juan stood in finding Joey of his way plan. the trial court could

Finally, infer from the evidence that the manner of tended to demonstrate killing acted with Joey and delibera- premeditation rooms, tion. The attack occurred in a series of that Juan’s indicating repeated to break from his attempts murderers were away thwarted consistently him, attackers’ relentless pursuit even after he was wounded. A gravely rational finder of fact could infer that the manner of when killing, combined with Joey’s kitchen, retrieval of the knife and defendant’s retrieval of a Juan, metal bar used in a clubbing defenseless is sufficient to support trier of fact’s implied finding formed the to kill Joey plan his parents altercation, during defendant, located the murder with weapon, along Davis, murdered his deliberately (See father. 511.) 10 Cal.4th supra, at p. The same evidence the trial supports court’s finding defendant shared Juan, intent Joey’s liable, kill plan to and thus was as an aider and abettor, (Beeman, for Juan’s murder. Cal.3d at The killing of Juan ended after a knife attack and prolonged from which Juan beating attempted defend himself. Defendant’s involvement in the mur- personal der was substantial. lookout, Far from as merely Juan acting beating dead, after he was already defendant was involved in actively assisting Joey *31 a curved himself with arming act of admitted murder. Defendant’s in Juan’s he indicates and Juan Joey altercation between metal bar before joining planning 2 Cal.4th at (Perez, supra, p. [evidence shared Joey’s plan. house victim’s entering act of defendant’s surreptitiously shown by activity Wharton, kitchen]; 53 Cal.3d supra, p. knife from victim’s obtaining planning activity].) hammer constituted act of retrieving 547 [defendant’s evidence, infer defendant know- reasonably the trier of fact could this From (Beeman, and abettor. murder as an aider or assisted in Juan’s engaged ingly 556.) Cal.3d at p. supra, murder, does not the evidence similarly defendant asserts

As to Juanita’s not kill Juanita He claims that he “did personally the conviction. support there is “no He asserts that she was stabbed to death by Joey.” [because] down, her back to held Juanita push in the record that helped evidence [he] room, was her.” contact with her while Joey stabbing or had sewing any that no evidence to the People’s theory He contends that there is support is Juanita with a bar and that simply defendant aided Joey by hitting “[t]here aided, or even was initial of Juanita actually no evidence that grabbing [his] aid, of his mother.” defend- Finally, intended to Joey’s stabbing subsequent to tie and Juanita are ant asserts in his brief that his “efforts gag reply inconsistent with an intent to kill her.” altogether refutes defendant’s the evidence the court’s verdicts and

Again, supports Hernandez testified defendant told him that the murder during contention. Juan, her Juanita screamed. Defendant Juanita and told to “shut Joey grabbed A then stabbed his mother 26 times. bloodstained up.” Joey garment neck, tied with a around Juanita’s and her wrists had been wrapped together of fabric. The Juanita died of the that piece pathologist (Holloway) opined wounds and neck stab that the constriction of her was a ligature possible cause. She also had severe con- contributing scalp injuries Holloway cluded were consistent with those inflicted a bar or less than long by pipe diameter, inch in one-half similar to the instrument used defendant to inflict Juan’s wounds. The trial could infer from the scalp reasonably court evidence that Juanita was killed order to her from a keep being percipient Thus, witness to the murder of her the evidence in the husband. viewing most favorable to “rational trier of fact” light we conclude a People, could have been “that the was the result of persuaded killing preexisting reflection and of considerations rather than mere unconsidered weighing (Perez, 1125.) rash 2 Cal.4th at Defendant’s impulse.” supra, p. participation murder, in Juanita’s like his in Juan’s aiding killing, clearly abetting (Beeman, that defendant her murder. supports finding aided and abetted 35 Cal.3d at defendant contends into a evidence he “waded Finally, showing fight” and struck the victim several ineffectual blows already progress *32 scene, with instrument found on the an no more than proves an unlawful claims, shown, When is nothing further defendant the killing. is presumption that the evidence of supports based on the differing degrees guilt, same Thus, asserts, conduct. defendant he should have been convicted of murder (See in the second People Woods degree. Cal.App.4th 231]; 1586-1587 see also v. Wells Cal.Rptr.2d Cal.2d [11 493].) P.2d 616-617 We defendant’s the reject interpretation of evidence. Far from “wading ineffectual, into a and fight” being we have shown the how evidence clearly that reflects defendant aided and in Joey abetted both Juan and killing Juanita. We thus conclude there was sufficient evidence the to support verdict of first finding guilty degree murder.

3. Denial Motions to Withdraw

Defendant asserts that his the to effective assistance of coun sel under the and federal state was Constitutions violated when the trial court two denied motions to filed withdraw defense counsel Toton and Frank. The first was motion filed on the to ground defendant refused follow their advice with newsman and by speaking Trihey discussing Bocanegra motion, murders. In denying court asked defendant if he felt he could continue to work The with counsel. court told defendant: “You’ve a little got done, case, in it. say Whatever if you’ve it’s damaged it’s your damaged case; case, if it hasn’t your it is damaged your hasn’t. What’s done done. And it down comes to a really now whatever has been question again done, whatever has been is be said to there going whether have these you or another attorneys attorney to The attorneys appointed represent you.” court then told defendant it would not relieve counsel from the case unless defendant told the court he no trusted them. longer Defendant replied: there, but, know, “There is a little bit mistrust I’m to with you willing stay them, out, know, but if want I you won’t them.” The they court stop withdraw, thereafter denied the motion to counsel that it had the informing “highest for both regard” attorneys, but whatever done defendant had “has on the happened attorney case is to live with any going have that.” later, Two months an article in following the Bakersfield Cali- published fornian in which Trihey wrote that defendant told him he was “a triple crimes,” killer” who “deserves to die for his Frank filed a second motion to on withdraw the ground his continued of defendant would representation require proffering perjured testimony, violations resulting motion, court again Conduct. Toton joined Professional Rules of thereafter. was begin shortly that trial ground it on denied both motions an failure grant claims that court’s Defendant on the submit the guilt counsel to phase discretion that led abuse of in a breakdown and resulted complete transcripts hearing preliminary relationship. attorney-client *33 to by attorney a motion an deny

The whether to or grant determination and the trial court will be reversed is within the sound discretion of withdraw v. (People abuse discretion. showing on a clear of of only on appeal 462, 616, 769]; P.2d (1983) 668 34 Cal.3d Cal.Rptr. [194 McKenzie 753 P.2d (1988) 45 Cal.3d Lucky Cal.Rptr. v. People [247 observe, the of on record. As 1052].) We find no abuse discretion this People defendant’s the of the motions is the that finding in court’s denial implicit or his media not an of his distrust discussion of case with the indication Rather, of the indicative his merely dissatisfaction with counsel. conduct was Indeed, to for his crimes. desire to admit atone unwavering culpability to counsel to withdraw would not have alleviated any prejudice allowing his with does the record indicate defendant caused contact nor by press, desire to submit that motion to withdraw influenced defendant’s denying Even hearing issue on the basis of preliminary transcripts. guilt counsel were with defendant’s failure to heed their though dissatisfied media, advice and not with the the record shows defendant’s discuss case continuing to counsel was not counsel’s right representation. jeopardized Thus, not show with counsel any disagreement because defendant does that in a in resulted breakdown relationship complete attorney-client trial, not to a fair we conclude the trial court did abuse jeopardized (See its in to discretion counsels’ motions withdraw. denying (1990) (conc. Douglas 50 Cal.3d 788 P.2d Cal.Rptr. 640] Mosk, J.) of denial motion opn. attorneys, of to substitute reviewing [In court it It ruling “focuses on the itself and the record on which is made. does .”].) not . . look matters . subsequent Disciplinary Proceedings Against

4. Cocounsel Toton Background a. 26, 1988,

On guilt special the last of in the July day testimony trial, of Faces Attorney circumstances an article titled phase Bakersfield Disbarment on the front of the edition appeared morning page Toton, for Bakersfield Californian. The article noted that “attorney triple Sanchez,” (1) faced disbarment for allegedly failing killer Ted potential funds, manner, (2) turn over his clients of funds notify receipt timely clients. accounting an communicate with his provide receipts, addition, observed that Toton was scheduled to before In the article appear Review which would make the California State Bar’s thereafter Department, recommendation. Toton alone was aware of the proceedings its disciplinary to the article’s publication. prior Toton, Frank, met in chambers with and defendant to Ryals,

The court “make discuss the article. court as Ryals requested inquiry [defend- ant], as to his Mr. Toton is of whether knowledge problems facing, benefit, not are rushed this trial for Mr. Toton’s if there is we. being through so much as a rush . . . .” After Frank to discuss the agreed disciplinary the court to meet in camera with defendant proceedings evening, agreed with the defense the following morning. next

When Frank and defendant met with the court camera the morning, *34 Frank indicated that he had met with defendant and learned that defendant article, read the and that Frank had no of the knowledge had July The to article. disciplinary proceedings prior reading following colloquy occurred: then me this Court: One of the that concerns about incident is things “The a waived in

fact of the date of 25th and the fact that trial was August jury case, and now we’re at that of the case where a Code this stage [Penal 1118.1 is under submission. And I somebody reviewing suppose section] this case could one of the reasons that Mr. Toton that say maybe suggested to trial be waived was the fact that the trial could be jury prior completed time to be some kind of that Californian that there’s suggests going a in As—and if we had had a we would still his case. ruling clearly jury, time, I doubt we would have been at that and whether going really seriously in have been a even to have to take evidence as of 25th position begun little bit. day August. That situation worried me a “And I wonder if have discussed this with client. you your Yes, article Honor. I that the your advised [defendant] “Mr. Frank: did that Mr. Toton’s for certainly presentation motivation imply pursuing indicated, has, in he of the case in the manner which he least that perhaps did that because of his own or agenda. personal plans problems,

“I an advised that he had to be represented by the right [defendant] conflict, who was sort of attorney any free from completely absolutely decision-making have whose attorney to an that had [defendant] his own plans problems, any personal was unfettered by process and whose to an whose representation he have attorney that had the right consider- attorney’s was based not on any decision-making process [defendant], in this case.” the client but best interests of ations on the Frank that had to spoken to he verify The court then questioned that read the Bakersfield Califor- he had proceedings, about the disciplinary action article, against that was unaware of any disciplinary nian he he court asked defendant if the date of the article. The Toton prior was this “one Mr. Toton pushing article reason implied believed the own time considerations.” Defend- was because of his personal case forward know, was sir, this we had discussed—you “Not because really ant replied: So there anyway. really—I this in the way beginning wanted go part—I he it his own incidences doing [szc].” never felt that was for really was his idea alone earlier that it The court confirmed defendant’s position The court next asked defendant to “waive the under circumstances.” any for “and for certain other motions if he wanted to make a motion mistrial discussion ensued: has The following view the that this gotten?” publicity will something happen What I’m concerned is that [about] “The Court: I was I what doing; down the line and then will I didn’t know you say, gee, would That should have asked for mistrial at that time. probably point late, want you be too because I’m an indication getting probably *35 in this Is Toton’s have case. might waive Mr. difficulties any problems that right?

“The Defendant: Yes.

“The I didn’t make that clear. Court: very

“The Defendant: Yeah. is, down the line I want to you go

“The Court: What I’m don’t saying I’ve mind. my and then all of a sudden say, gee, changed “The Defendant: Yeah. that? You understand can’t do that. Probably you

“The Court: Yes, I understand that. “The Defendant:

“The Are you Court: satisfied with the state of the record at this point? “The Defendant: Yes sir. I’m satisfied. very threatened

“The Court: Nobody you get you this? say No, sir ... . “The Defendant: satisfied, sir,

“The Court: Are that Mr. Toton’s you dilemma with State Bar had to do with the waiver of the trial? nothing am,

“Mr. Frank: I yes.

“The Court: And are Mr. Sanchez? you,

“The I Defendant: am too.” 31, 1989, The Toton was not disbarred until March well after parties agree defendant’s trial was this we address below completed. Against background, effect, defendant’s several arguments Toton’s disbarment and its if regarding on the fairness of defendant’s any, trial.

b. Federal Constitutional Claims

Defendant first asserts that on learning pending disciplinary Toton, action “terminate” the court was against Toton’s required appoint ment as defendant’s counsel. Defendant claims that the court’s failure to remove Toton as counsel denied him his to the effective assistance of Amendment, counsel under the Sixth denied him due under the process Amendment, Fourteenth him of a reliable determination of deprived under the penalty Amendment. Eighth

We are not In order to establish a violation of the persuaded. counsel, to effective assistance of a defendant must show that counsel’s performance was when measured inadequate the standard of a rea against ’ sonably competent attorney, and that counsel s defend performance prejudiced ant’s case in such a manner that his “so undermined the representation of the proper functioning adversarial that the trial cannot be relied process (Strickland on as (1984) a result.” 466 Washington having produced v. just 668, 674, 692-693, Strick U.S. 686 L.Ed.2d S.Ct. 104 [80 2052] [hereafter land]; Wharton, Moreover, supra, 575.) 53 Cal.3d at “a court need not p.

41 before examining deficient was whether counsel’s performance determine as result of the deficien- alleged a by suffered the prejudice 699].) L.Ed.2d at at (Strickland, p. 466 U.S. 697 supra, p. [80 cies.” that, for but is “reasonable probability shown when there a is Prejudice errors, have would the result of proceeding counsel’s unprofessional to under- is sufficient a A reasonable probability probability been different. 1247, 48 1257 (In (1989) re Cal.3d in the outcome.” Sixto mine confidence Strickland, 164]; 466 U.S. at supra, p. 694 [80 774 P.2d Cal.Rptr. [259 he 697-698].) show that was prejudiced If defendant fails to L.Ed.2d at pp. claim his ineffective assistance we reject counsel’s performance, may (Strick- was inadequate. whether counsel’s performance

without determining land, 699-700].) L.Ed.2d at 466 U.S. at supra, p. pp. 697 [80 on two defendant relies argument,

To federal constitutional support in cases, of in reversed sentences minder Illinois which the courts appellate was proceed where the defense subject disciplinary cases same attorney v. Williams (People murder trials for the same crime. ings during separate Williams]; (1982) Ill.Dec. 444 N.E.2d 93 Ill.2d 309 136] [hereafter [67 Ill.Dec. 445 N.E.2d 535] People Rainge Ill.App.3d [68 Rainge].) [hereafter murder, Williams, of counts of

In convicted the defendant two him death. The Illinois Supreme sentenced kidnapping, rape, sentence, he over his that Court affirmed defendant’s conviction and protest of counsel. While the defendant’s had been denied effective assistance defendant’s attorney for on the petition rehearing appeal pending, Hearing in action in which the before the same court a disciplinary appeared and Disciplin Board and Review Board of the Illinois Attorney Registration of be disbarred because attorney Commission recommended that ary The Court misconduct in the estate of a client. Illinois handling Supreme (In re Ill.2d 431 ordered the disbarred. Weston attorney 236].) Ill.Dec. N.E.2d to it in attorney

Based on information presented disciplinary action, court for rehearing. the Williams the defendant’s granted petition disbarment, of After the effectiveness counsel light reconsidering held the court reversed the defendant’s and sentence. The court conviction conviction, even the evidence defendant’s though light supported assurance, it disbarment “no can with longer say, any degree [the guaranteed by received effective assistance counsel defendant] (Williams, 444 N.E.2d Constitution.” *37 conviction,

In the Williams court cited numerous reversing examples assistance, of inaction counsel that it believed demonstrated ineffective by 42 “the failure

including to make a motion to suppress evidence physical seized from car—evidence which was to the [defendant’s] crucial perhaps case; State’s the failure to to the object the Canadian testimony concerning study on hair comparisons; the failure to object material prejudicial ; received . . by . the failure to object testimony [the defendant’s] concerning good (444 character of the decedents . .. N.E.2d at pp. 142-143.) The court admitted that it had examined” in the “originally appeal “the more errors . . significant (Id., . and found no error.” plain p.143.) disbarment, But in of counsel’s light the court reconsidered its original aware, affirmance of the conviction. The court stated: are now for the “[W]e time, first of the circumstances under which unique counsel in this case was facts, at the time operating of the In trial. of these capital light we can no longer characterize counsel’s decision not to make the motion to suppress . . . evidence or to take other action on his client’s behalf as professional misjudgments made with full facts. . . . ^[*] n It is apparent to us that the knowledge unique of the facts in this case applicable law and the require tests, that we forgo application either of the established normally applied in determining whether a defendant been has of his deprived constitutional to the indicated, assistance of counsel. As we originally [Citations.] voluminous record here shows that there were instances where counsel many made able and and vigorous and we objections cannot char- presentations, acterize his as performance actual or as of such a low caliber incompetence as to believe, however, reduce the trial to a farce or sham. We considering case, circumstances and unique of events in this which sequence capital ever, will if be rarely, that the duplicated, interests of justice require . . . Williams be (Ibid.) a new granted trial.” codefendants, Adams,

Defendant Williams’s two Rainge were sepa tried and also found rately guilty above murders and sentenced to life imprisonment. 535.) (Rainge, supra, 445 N.E.2d Defendant Rainge represented same who by had Williams. The attorney represented Illinois Court of held in Appeal abeyance its decision in the Rainge case pending Williams, decision in 444 N.E.2d supra, because “numerous issues raised Williams, in the court supreme were common by issues based upon the same record which were raised in the instant appeal Rainge Thereafter, Adams.” (Rainge, 445 supra, N.E.2d at court p. Rainge reversed murder Rainge’s convictions because “the similar interests of Wil liams and and the similar Rainge issue raised on the same record require be [Williams], Rainge granted new trial. As in we base our decision ‘the upon unique circumstances of events in this sequence ” ever, case which will capital if be rarely, duplicated.’ (Rainge, supra, Williams, 142; N.E.2d at p. quoting N.E.2d at but see v. Neal Ill.Dec. 462 N.E.2d Ill.App.3d

43 not same counsel Rainge finding and and Williams [distinguishing 816] case].) incompetent noncapital Rainge should follow the Williams that we

Defendant asserts case, Bar State facts” of this the the courts and find that on “unique com of defendant and tainted his representation Toton against proceedings But unlike and sentence. of the conviction constitutionality the promised Williams, of counsel had “numerous instances inaction who asserted (Williams, of assistance counsel” he was denied effective demonstrate 142), to no “instances inaction” points 444 N.E.2d at p. that, in would allow the court to characterize of the pending discipline, light Indeed, the record is clear that as Toton’s representation incompetent. of the prelimi to the submission on basis phase defendant agreed guilt in the case. even factual issues remained nary hearing though transcripts had found “no error” prior learning the Williams court Although plain counsel, action once the court became aware pending against disciplinary matter, it lost “decision not to of the confidence that counsel’s disciplinary take action his make the motion or to other on suppress [certain evidence] with full client’s behalf as made professional misjudgments knowledge (Id., law and the facts.” at applicable contrast, defendant herein does not assert that Toton’s disci- By pending his an argument. case. The record would not such prejudiced support pline Toton witnesses cross-examined at vigorously preliminary prosecution motions, defense hearing during including made several guilt phase, counsel, for one assistant which was and motions for granted, appointed that severance and additional motions indicated he was discovery, pretrial addition, his client. In Toton made a vigorously representing comprehensive Thus, no closing argument there is indication on guilt phase.

record that counsel’s was less than representation anything competent, defendant fails to us persuade that counsel’s ineffective representation on the basis action him. solely against of the disciplinary pending State

c. Constitutional Claim next if

Defendant asserts even we find no federal constitutional violation, he was his counsel under right denied to effective assistance of I, article section which states that a California Constitution in a case to have the assistance of “defendant criminal has ... counsel for the defendant’s defense. . . .” Defendant relies on our decision re in In Johnson P.2d Cal.4th 689 Cal.Rptr.2d 1317] (hereafter Johnson) to his Toton was unfit to represent support argument him trial. during capital *39 Johnson,

In the defendant was convicted in of July 1989 cocaine selling violation of (Johnson, Health and Code section 11352. 1 Safety supra, defendant, 694.) Cal.4th at Unknown to the his counsel had been sus p. from the of law to the pended practice prior representation pursuant 6102, Business and Professions Code section under a conviction following 288, (a) Penal Code section subdivision a lewd or act lascivious (committing fear). a child force or against In while using May State Bar disciplin counsel, were ary proceedings pending he We against resigned. accepted (Johnson, resignation 694.) 1989. Cal.4th September supra, at p. we refused to that a Although “presume lacks suspended attorney profes (1 699), sional Cal.4th at we nonetheless reversed the Court competence” p. habeas We Appeal judgment relief. held that denying corpus representa counsel, tion one who has from the State Bar resigned denies effective and observed: a “Representation who has never been admitted to by person of law or has admission practice denies a defend fraudulently procured I, ant his under article section as a matter of rights law. So too does who, licensed, a representation by person has although formerly resigned from the State Bar. The court will not examine the of the quality represen tation in such cases since an essential element of the constitutional right counsel is counsel’s (Id., status as a member of the State Bar.” at fn. p. Thus, omitted.) held, we once an from the resigns State Bar with attorney status, and is charges pending, transferred to inactive immediately all for is no a attorney, considered member of the bar and is purposes, longer not licensed to law. Such an practice of a defend attorney’s representation ant, therefore, I, violates article section and denies the defendant effec tive assistance of (1 701.) counsel. Cal.4th at p.

In Johnson’s conviction on ineffective reversing assistance how grounds, ever, we that mere emphasized of an from suspension attorney practice under Business and Professions Code section 6102 conviction of upon any or other offense felony moral does not involving alone create a turpitude or presumption incompetence defendant of his to counsel deprive right I, Indeed, (Johnson, under article 699.) section 15. 1 Cal.4th at supra, we p. observed that even a of an suspension section 6102 does attorney pursuant establish, law, law, not as a matter of that the is unfit to attorney practice “a conclusion an who has an attorney committed offense moral is unfit to law turpitude is not on the practice necessarily judgment (Johnson, attorney’s at professional competence.” supra, Cal.4th p. whether, case, We have not addressed as in this previously disciplinary that are an of a proceedings crim- pending during attorney’s representation inal defendant render the assistance of counsel when no ineffective there is under status. But on inactive attorney placement suspension fact disciplinary proceedings that the Johnson’s we can conclude reasoning, automatically render Toton’s did not counsel Toton pending against were counsel. to effective defendant’s or prejudice performance inadequate Strickland, 699].) As L.Ed.2d p. 466 U.S. at (See also Toton observe, [defendant], defense counsel “While the People representing *40 Code and Professions under Business suspension not even to subject was In attempt of crime. an had not been convicted any because he section 6102 counsel, defense to equates of his right [defendant] establish denial to with State Bar proceedings to challenge failure alleged counsel Toton’s fact, Johnson.” In Bar unlike from the State in resignation the attorney’s Johnson, Bar at all times during a member of the State Toton was in attorney “ a breach of or morally by profes- of defendant. ‘Erring his representation ” of the law.’ a lack of knowledge not indicate necessarily sional ethics does not that 699.) We are (Johnson, persuaded 1 Cal.4th at supra, simply p. his influenced way represen- any Toton’s unrelated disciplinary problems (See of unfit a matter law. of or otherwise rendered him as tation defendant Johnson, 699-702.) at 1 Cal.4th pp. Interest Alleged

d. of Conflict him rendered that Toton’s disciplinary proceedings Defendant’s claim of if considered under the rubric “‘is no more incompetent persuasive to assist A defendant’s effective conflict of interest. criminal right Constitutions, counsel, of state and federal ance both the by guaranteed (Wood of interest. v. includes the to free from conflicts right representation 230, 1097]; 261, 220, Georgia (1981) 450 271 L.Ed.2d 101 S.Ct. U.S. [67 465, 1115, v. Jones 811 P.2d People (1991) Cal.Rptr. 53 Cal.3d 1134 [282 to unconflicted counsel under the 757].) To establish a violation of right Constitution, no at must who raised trial objection federal ‘a defendant of affected his lawyer’s demonstrate an actual conflict interest adversely that of same under our To violation establish a performance.’ [Citation.] Constitution, an a need that the record supports state defendant show only of the defendant was ‘informed that counsel’s speculation’ representation ” Kirk (People interest.’ v. affected the claimed conflict of by adversely 988, 818, 248].) P.2d patrick 874 7 Cal.4th 1009 Cal.Rptr.2d [30 P.2d Jones In v. Cal.3d 1115 People Cal.Rptr. [282 (hereafter Jones) arise also of interest may we observed 757] “[conflicts situations in which an in various factual ‘embrace all settings. Broadly, they to, of, on are threatened his attorney’s by or efforts behalf a client loyalty ” his interests.’ to another client or a third own by responsibilities person (Id., (1989) 47 Bonin Cal.3d quoting Bonin].) Cal.Rptr. 765 P.2d 460] [hereafter

Defendant that the alleged contends conflict interest between himself and “own Toton caused Toton’s interest” expediting disbarment, prior trial defendant’s prejudice. Defendant asserts the fact of action pending disciplinary gave Toton incentive strong to finish defendant’s case as as that Toton’s quickly possible, implying desire end the case led to a deficient constitutionally performance. record,

Based on the we not are appellate persuaded by defendant’s observed, As we have the record shows that Toton was not arguments. until eight disbarred months the court and of the learned after him, one month after proceedings against completion penalty trial. There is phase defendant’s no indication that the disciplinary and, indeed, influenced the proceedings Toton’s there pace representation, is substantial evidence on record that would conclusion. support opposite *41 foremost,

First and it was Toton who advised not to defendant plead guilty and instead to the and submit circumstance issues on basis guilt special the of the preliminary This alternative to a hearing transcripts. plea guilty case, allowed counsel to contest the mo- People’s various defense present court, to tions make a than generally stronger case for defendant Thus, would have been available a Toton following guilty plea. counsel actually trial desire prolonged defendant’s to notwithstanding proceed to the directly penalty phase.

Moreover, interest, if even we were perceive to either an actual conflict of law, as required federal or to conclude by the record an “informed supports Constitution, of a speculation” conflict as under state our required intentionally {Ante, waived conflict on knowingly any the record. at pp. 38-39.) addition,

In defense counsel Frank that informed court he satisfied Toton’s “had do pending discipline to with the waiver of the nothing jury Frank, At a trial.” later in camera attended defense hearing counsel that, case, defendant admitted in his was his partially submitting it desire circumstances,” waive trial “under that he had any had a “lengthy Frank, discussion” his with defense counsel and that he regarding rights wanted to maintain status quo.

The fact that defendant did not with discuss Toton’s pending discipline Here, him not does assist defendant’s conflict that claim. defendant asserts his “discussion with Frank could not for Toton. substitute a discussion with admission, his own Frank knew By impending about his cocounsel’s nothing of the Bakersfield on the front page until news appeared [discipline] own assistant fact from his hid this important .... Toton newspaper indicates that in the record Nothing the news became public. counsel until of the than did the readers the [discipline] more about Frank knew any for Toton to speak was not able Californian. Frank simply Bakersfield future conduct on the proceedings] of the [disciplinary discussing impact to discuss with [defendant] Frank in position defense [a] was] [nor guilt affected Toton’s have already might how [disciplinary] proceedings however, show, Toton’s assurances how Defendant fails phase strategy.” he wanted to whether him in determining would have assisted or perspective better conflict, him with a provided or how Toton would have waive the drawbacks that the court about potential than given by explanation continued representation. Toton’s its to ensure that the trial court failed in duty

Defendant next asserts with counsel. waived conflict knowingly intelligently any he a know that defense counsel has “When a trial court knows should client, into the matter his it must inquire conflict of with interest possible discovers and act what its response inquiry [citation].” [citations] that a waiver of (Jones, If the court determines 53 Cal.3d at ‘“(1) the defendant has conflict is it must itself necessary, satisfy representation drawbacks of discussed potential [potentially conflicted] wishes, counsel, (2) if has been made or he outside that he with attorney, *42 of in aware of the and possible consequences representation dangers [such] case, (4) and (3) his that he of his to conflict-free right representation, knows ” (Bonin, 47 at he to Cal.3d right.’ supra, wishes waive that voluntarily 86, 837, (1983) Cal.Rptr. v. 35 Cal.3d 110 p. People quoting [197 Mroczko 52, 835].) A conflict or to 672 P.2d trial failure to into the inquire court’s to to error if the defendant its amounts reversible adequately respond inquiry conflict show “that an actual conflict of interest existed and that that can at (Bonin, 47 Cal.3d supra, affected counsel’s adversely pp. performance.” 837-838; Strickland, at 466 L.Ed.2d supra, pp. cf. U.S. at p. [80 696-697].) in “never asked

Defendant asserts that trial court [defendant] clear, to to right whether he was waive unambiguous willing language to “determine counsel.” He also of the court’s failure unimpaired complains Toton whether misuse of client funds indicate that alleged might [Toton’s] funds in had financial which affect his work or of might handling difficulties case, of state did the ask Toton about timetable [defendant’s] [nor court] affect, have bar how the bar or might proceedings proceeding might [or ask] affected, conduct of Toton’s case.” [defendant’s]

In whether a defendant the nature of a deciding understands possible counsel, conflict of interest with the trial court need not each explore (Jones, foreseeable conflict and at consequence. supra, Cal.3d Nor does a defendant’s waiver of conflict-free counsel extend to merely on (Ibid.) matters discussed the record. As we observed Maxwell Court 30 Cal.3d Superior 639 P.2d Cal.Rptr. 333], 18 A.L.R.4th that are that strict seem nor necessary neither “[r]ules (See workable.” also v. Clark 3 Cal.4th 140 [10 554, 833 all Cal.Rptr.2d P.2d found even adequate though 561] [waiver Thus, conceivable of not ramifications conflict at explained].) looking record, we whole must determine whether defendant was aware of Toton, drawbacks and potential possible of and consequences retaining whether he understood his to conflict-free and counsel knowingly waived that right.

It is clear record belies defendant’s The argument. court’s re- to the asserted conflict of interest was sponse under the circum- appropriate stances; it was immediate and informed of his under the petitioner rights indicates, facts. As the record the court discussed the conflict with existed, was careful to parties, ensure defendant was aware that a conflict and confirmed that his waiver the conflict was and voluntary knowing. (Ante, 37-40.) Defendant even pp. declined the court’s invitation to make mistrial, a motion for he that was satisfied the state emphasizing with Thus, circumstances, record. light all we conclude the court gave mistrial, counsel, defendant an declare relieve opportunity view, voice his on the record. In our objections the trial an court conducted conflict, into the we adequate inquiry are satisfied that defendant’s Jones, waiver was (See knowing 53 Cal.3d voluntary. at pp. 1137-1138.)

5. Reporter Under Immunity Shield Law California

a. Background arrest, (ante, As 21), observed in the statement of facts at his following defendant was interviewed by Michael a for the Trihey, reporter Bakersfield Californian. The an newspaper published article based on five Trihey’s Death, article, interviews with defendant. The entitled Accused Asks Own for No, System Says was on 1988. The that published article observed April murderer, murderer,” “Ted Sanchez a says he’s a that triple and all three victims “were killed for their social checks.” The article also security revealed defendant’s of “I am not an feelings innocent man. If a man guilt: feels he should guilty be allowed to he plead revealed that guilty,” wanted to die the in chamber: “I want to do I gas the should right thing. go In I to die.” deserve I don’t need no appeals. the chamber. to gas straight by the crimes for addition, Trihey reenacted that defendant the article noted a in to show how arm, he got prison, with the tattoos one covered “raising on the same inter- articles based was inflicted.” Earlier fatal knife wound 12, 1988, that defend- views, reported on February one published including “he to die or but felt deserves either Juan Juanita ant not kill” actually “did the because he helped when the slaying happened, because he was present had been to the who intervene save couple, he didn’t killers and because as telling The same article also quoted kind him for years.” to ” “ and, at dad’ that, going a knife started ‘Joey grabbed Trihey “ The clubbing Bocanegra.” when in’ and began ‘that’s Reyes [Juan] stepped had “they smoking told all been Trihey that defendant article also stated as that admitting Defendant was PCP” the crimes. quoted before committing “ murders, T was just was scared .... It time of the Bocanegra fear, It been mixed how to it. could have respond I and I didn’t know to felt I me been a lot. through PCP ... . I’ve taking emotions because of the know, [*]Q I I no One angel.. thing, have a of bad You am things. done lot I’ve lot other but I haven’t went things have not murdered done a of nobody. ” he “didn’t article defendant as asserting far yet.’ Finally, quoted ‘I’m other than to not say, guilty to talk about Taiman case want ” that.’ to as a witness Trihey During prosecution subpoenaed guilt phase 25, 1988, Trihey to in his article. as the events he testify reported April and for a filed motion to the subpoena Bakersfield Californian a quash obtained order the disclosure of information protective against unpublished defendant, by from on the that the information ground sought protected I, Const., (hereafter law). (Cal. art. the California Shield Law shield § Code, (b); 1070.)2 the court she subd. Evid. After assured prosecutor § only, to Trihey intended limit statements questioning published that it would on a basis.” When “question by court indicated rule question Constution, I, (b), pertinent part: in “A 2California subdivision states article section editor, publisher, or a reporter, person employed upon newspaper, or other connected with service, magazine, any or periodical publication, press or other or a association or wire contempt by be person employed, adjudged who has been so or shall not connected judicial, legislative, any having power issue body, body or administrative or other any subpoenas, refusing procured for information while so connected to disclose the source publication, for magazine or for other or employed publication newspaper, periodical in a or receiving refusing gathering, any unpublished prepared disclose information obtained *44 processing public. or of information for communication to the tf subdivision, not dissemi- ‘unpublished in includes information “As used this information’ not related public by sought, nated is whether or person to the from whom disclosure notes, outtakes, includes, to, information has but is not limited all been disseminated through tapes public disseminated to the photographs, or other data of whatever sort not itself 50 testify, called to Toton prosecutor Trihey The court allowed objected. to to a motion to strike.

Trihey testify, subject times, then that he testified interviewed defendant five and that Trihey told defendant him he was “a murderer" that “all three triple [victims] were for their killed social checks.” When Toton asked if he security Trihey defendant, had any any made interviews with tape recordings Trihey’s objected ground counsel on the that the violated law. The question the shield court then discontinued the cross-examination the submission of pending defense counsel’s and authorities. points

The next day, of the shield law to argued application in protect information would him unpublished Trihey’s possession deny his self-incrimination, Fifth Amendment against and his right Sixth Amendment counsel, to rights confrontation and the effective as well assistance as (Evid. to introduce statutory his entire conversation with Trihey. Code, act, declaration, conversation, 356 or is part writing given [when § in evidence one be by whole into adverse party, may inquired party].) Defense counsel moved court either strike or to Trihey’s testimony order Trihey furnish defendant with all information unpublished regarding the interviews. The made court the following ruling: I am to rule that haven’t over hurdle of going you gotten

“The Court: v. [Hammarley (1979) Court Superior (153 388 Cal.App.3d Cal.Rptr. 608)] and v. [Hallissy Superior (248 Court 200 Cal.App.3d 635)] at Cal.Rptr. this and that cross-examine Mr. point, you may Trihey have, we concerning any material either this current article printed the one before.

“I am also to tell that the court’s at this is without going you ruling point prejudice and the court does not intend to this make case.” ruling Thereafter, the court clarified its ruling the following colloquy: one, “Mr. Toton: I Number can cross-examine on Trihey Mr. any published article.

“The Court: Absolutely. communication, a medium of published upon whether or not or related to information based such has been material disseminated.” (See Delaney Evidence Code section 1070 contains substantially language. similar Superior Cal.Rptr. Court 50 Cal.3d P.2d 934] [hereafter Delaney].) *45 article. any published And contents of Toton: “Mr. Court: Absolutely.

“The behind the published from inquiring would be Toton: I prohibited “Mr. material? Court: At this point.

“The is [Hammarley], [Hallissy] prong as to which I am not clear Toton: “Mr. lacking. Well, is no issue now there I think there is any, don’t

“The Court: forth. so is and can be impeached that somehow Mr. Trihey lying my that Werdel called to Mr. Hallissy] “That penultimate paragraph [in is language. attention pretty strong off, is starts [A]rguably? That the one that

“Mr. Toton: “The Court: Right. understand, the second So that if I it’s prong [the

“Mr. Toton: Hallissy Hammarley test relied on by is is that lacking; which court] correct, Honor? your Right.”

“The Court: limiting court the scope Defendant now claims the trial erred objections. and renews his trial court Trihey’s testimony Shield Law Newsperson’s b. of the

In had to meet the second that defendant failed ruling prong test, construction Hammarley Hammarley’s the court was referring of a and its shield law under Evidence Code section development the statute test that the court in whether determining assisted four-pronged undisclosed corroborating should from to reveal newsperson having protect with a named individual sources interviews pertaining newsperson’s (Hammarley who was the witness in a murder case. prosecution’s principal *46 52

v. Court Superior 89 392-394 Cal.App.3d Cal.Rptr. [153 608] Hammarley].) [hereafter

The court reviewed Hammarley the and intent of legislative history observed, the shield law. The court “The information’ ‘unpublished provi sions of section 1070 were added amendment in 1974. by [Evidence Code] time, Prior the statutory source privilege expressly encompassed only omitted.) disclosure.” (Hammarley, supra, 89 at fn. The Cal.App.3d p. court held that “the statutory information is privilege protecting unpublished not limited to material which lead might to the disclosure of a [newsper sources, confidential but all information encompasses son’s] the acquired by in the course of his [newsperson] áctivities which he has not professional (Id., 397-398.) disseminated to the at public.” pp.

The Hammarley court then stated its test for whether a determining defendant has met his burden in “Faced overcoming statutory protection. with a claim of the burden is on the privilege, to avoid the party seeking to demonstrate not privilege competently that the evidence is only sought case, relevant and to his necessary but that it is not available from source a Moreover, less intrusive as with to discover upon privilege. any attempt evidence to a claim of a defendant must show a subject reasonable privilege, that the evidence (89 result in his possibility sought might exoneration.” 399.) at Cal.App.3d p. later,

Nine years Court Hallissy Superior 200 Cal.App.3d (hereafter the court used the Cal.Rptr. Hallissy), Hammarley 635] test to a grant from A newsperson immunity revealing sources. unpublished brief review of Hallissy’s facts is instructive.

A defendant was with three counts first murder charged degree (§§ 198), and with the multiple-murder murder-for-financial-gain special 190.2, (§ (a)(1) (3).) circumstances. subd. & Prior to the preliminary hearing, the defendant was interviewed for the Contra Costa by Times. reporter (Hallissy, supra, at Information Cal.App.3d gathered during entitled, the interview was in the in an I published article Killed paper Many {Ibid.) article, Pay. Following publication amended prosecutor for the complaint to allege circumstance. murder-for-financial-gain special (Ibid.) The defendant then subpoenaed Hallissy, reporter, appear with the preliminary hearing (Ibid.) notes of the interview. The unpublished trial court granted Hallissy’s motion to on the quash subpoena ground that the information unpublished was protected the First Amendment of by Constitution, I, the United States (b), article section subdivision the state Constitution. court, held that the defendant Court of Appeal trial

In affirming Hammarley. (Hallissy, supra, meet the second prong had failed to *47 observed, 1046.) ap- The court “Arguably [defendant] at p. Cal.App.3d attack his own he wishes to of relevancy: showing an adequate proaches to the he have made statements that may inconsistent credibility by using to demonstrate made no attempt interview. But he has during reporter case, exists, evidence, to his necessary if it is item of that this particular 1046.) at 200 (Hallissy, supra, Cal.App.3d p. Hammarley.” of prong second to review appli have had the five we opportunity During past years, (See Delaney, of criminal cases. e.g., law in the context cation of the shield a cases as Hallissy and 785.) Hammarley While 50 Cal.3d using supra, whether the determining our own test for from which to develop benchmark case, we facts of a under the should a reporter particular shield law protect criminal defendant held “that a those cases to the extent they disapproved source regardless show the lack of an alternative must in case every noted, 813, 29.) fn. We 50 Cal.3d at (Delaney, supra, p. circumstances.” we however, with the test were consistent Hammarley Hallissy that both (Delaney, threshold showing required.” to the Delaney adopted “[a]s 808, 22.) 50 Cal.3d at fn. supra, p. whether the shield law should apply

In its test for fashioning determining facts, that the law a set of court held Delaney protects particular to disclose held in of court for refusal from newsperson being contempt information, information either or the source of the unpublished reporter’s 50 Cal.3d 796- (Delaney, supra, pp. whether published unpublished. 771, 90, 797; (1991) 820-821 cf. v. 53 Cal.3d People Cooper Cal.Rptr. [281 Nonetheless, the court Delaney P.2d Cooper].) 809 865] [hereafter the shield law must yield that “a under recognized protection newsperson’s when the news- to a criminal defendant’s constitutional to a fair trial on that right.” refusal to disclose information would unduly infringe person’s of 50 Cal.3d at “In order to disclosure (Delaney, supra, p. compel law, make information covered the shield the defendant must a threshold will assist of a reasonable that the information materially showing possibility his defense. The need not be detailed or but it must rest on showing specific, made, If is showing more than mere the threshold speculation. [Citation.] court then balances various factors in whether to disclo determining compel 820, 53 Cal.3d at sure of the information. (Cooper, supra, [Citation.]” 809-813.) 50 Cal.3d at Delaney, supra, paraphrasing pp. 50 Delaney,

The trial court’s in this case both ruling predated 785, on Cal.3d 53 Cal.3d but that fact does not bear Cooper, supra, Indeed, our decision. defendant concedes states the Delaney applicable standard. makes arguments

Defendant several shield law against application (1) this Trihey’s case: assertion was immunity privilege premature court because the had not him in of court before adjudged he contempt (2) invoked failed immunity; foundation for invok- Trihey lay proper invoked, (3) the immunity; even ing assuming immunity properly defendant met Delaney's threshold test for a claim for defeating immunity; (4) in this case was denied application prejudicial defend- immunity ant his federal constitutional to confrontation and rights under the discovery (see, Sixth and Fourteenth Amendments Davis v. Alaska e.g., 1105]; U.S. L.Ed.2d S.Ct. Lee Illinois *48 514, 525-526, 476 540 U.S. L.Ed.2d 106 to S.Ct. [right [90 2056] confront and cross-examine witnesses is functional that right promotes trials]; (1986) in criminal Delaware v. Arsdall 475 U.S. reliability Van 674, 683, L.Ed.2d 106 S.Ct. to confront and cross- [right [89 1431] cross-examination]; examine witnesses to right includes adequate Pennsyl- 40, 56-57, (1987) vania v. Ritchie U.S. L.Ed.2d 107 S.Ct. [94 defendants have in government’s [criminal assistance compel- 989] witnesses]); attendance of ling favorable Toton’s failure to cross- examine on in Trihey inconsistent statements contained the article alleged record, defendant of deprived effective assistance of counsel. On we this are not by defendant’s contentions. persuaded

First, with to his the respect assertion that of claim timing Trihey’s law, of should bar of the shield immunity application defendant relies on New York Times Co. v. Court 51 Cal.3d 453 Superior Cal.Rptr. (hereafter Times), 796 P.2d New York in which we held that a 811] for relief under law precontempt petition the shield was extraordinary pre Times, however, defendant, filed. New maturely York not does assist for it was based on relief “would reasoning precontempt deprive trial courts of the decide in the first instance whether the opportunity shield law (Id. to the facts of applies a case.” at p. Times, whether,

In New York court was asked to decide a products action liability against a car manufacturer for of arising out an damages accident, automobile the manufacturer could subpoena the unpublished pho- of the accident taken tographs by After the newspaper reporter. publisher invoked the shield law immunity refused with the manufac- comply turer’s the trial court ordered the subpoena, production photographs. Before being adjudged the Court of contempt, publisher petitioned for an Appeal (51 writ and extraordinary the court’s order. Cal.3d at stay 457.) The Court of p. issued a writ of Appeal mandate trial ordering that, court to deny manufacturer’s motion to compel, finding unlike held that in which we have in a criminal proceeding, of immunity application showing immunity overcome its may application the defendant constitution, the shield under the federal him of a fair trial would deprive “ in civil journalists litigation ‘absolute to nonparty law provides protection ” (Ibid.) information.’ to disclose being unpublished from compelled Times, in New York we observed we relief publisher Although granted not a from contempt, the shield law an immunity that because provides 458-459.) This (51 Cal.3d at pp. the writ petition premature. privilege, on the concern that precontempt was based finding practical prematurity to determine whether would frustrate the trial court’s ability relief 459.) We reasoned: (Id. in the first instance. should immunity apply court would reviewing “Premature interference in trial proceedings deprive records for this determination. Premature courts of factual making adequate relief also to avoid the of choosing would allow newspersons responsibility A between information or held in disclosing being contempt. newsperson to make that choice until after a decision aby would have no incentive court. The result would be an increased burden on reviewing reviewing *49 (Id., 459-460.) courts.” pp. does not

The above while based on reasoning, clearly practical grounds, foreclose a claim of in the trial court the witness immunity by nonparty stand, cross-examination. while on the witness during By invoking immunity choice, Times, is discussed in New York between newsperson making the information he or she believes falls under the ambit of the disclosing law, shield or (51 460.) held in Cal.3d at That was the being contempt. p. choice made and the Bakersfield Californian when properly by Trihey shield law cross-examination. raising immunity during Defendant’s claim that failed foundation for Trihey lay proper raising First, the shield law is defendant failed to on this equally unavailing. object Code, 353, he has (Evid. waived the claim on ground. Accordingly, appeal. § (a).) however, subd. Had he made the fail his claim would proper objection, on the merits. I,

We held in Delaney, 50 Cal.3d at that under article supra, page Constitution, (b) section subdivision of the state a newsperson claiming shield law “must show he that is one of the protection types persons law, enumerated in the that the information or in was ‘obtained prepared or gathering, of information for communication to the receiving processing and that the information has not public,’ been ‘disseminated to public ” from whom disclosure sought.’ (Delaney, supra, is 50 Cal.3d at person I, 805, fn.17, Const., (b).) Cal. p. quoting art. subd. Once that showing § made, the is burden shifts to the show “a party opposing immunity (50 will possibility reasonable the information assist his defense.” materially Cal.3d at italics p. original.) met his foundational In motion to of his

Trihey requirements. support he filed a he was a quash People’s subpoena, declaration stating news by the Bakersfield Californian that his reporter employed Newspaper, 12, 1988, 25, 1988, sources for articles on defendant February April information, the source or sources of while so some procured “[were] connected or for in the also employed, publication newspaper.” Trihey declared that the for information the stories gathered unpublished “[was] not been disseminated to the . . . for the public except specific [had] article,” information in said news and that such published unpublished “[a]ll information was or in the obtained prepared gathering, process- receiving of information ing for communication to the Defendant has public.” pro- and, fact, vided evidence would no contradict declaration Trihey’s concedes the notes and were subject within tapes “unpublished information” meaning shield law.3

Once met the law Trihey shield defendant was requirements, to show required that nondisclosure would him of his federal deprive constitutional fair to a trial. (Delaney, 50 Cal.3d at As observed, ante, burden, this in order to meet this defendant had to page, make a threshold showing that it was reasonably unpublished possible *50 information he to his sought defense. necessary (Delaney, supra, 808.) Cal.3d p. Delaney did not and could

Although not what evidence specify test, would meet its threshold the court did observe that the defendant need not evidence he would prove sought discover lead his exoneration and that “the defendant’s not be or it need detailed but must showing specific, rest on more than mere speculation.” (Delaney, Cal.3d at Some “[Ejvidence the court examples provided are instructive: establish may defense,’ offense, offense, an a lesser included a lesser ‘imperfect related crime; a lesser of the degree same the impeach credibility of a prosecution litigated question defendant the assumption alleged tapes 3Because on the that notes and (at pertaining least those Trihey) unpublished to the interviews with were information within law, meaning of the shield we do not address issue whether the fact that himself was the source of some the information rendered outside protection it of the shield law. or, cases, witness; circumstances relevant to establish mitigating as capital determination. constitutional to a A criminal defendant’s the penalty omitted.) (Ibid.., fn. of his defense.” trial includes these aspects fair burden, defendant attacks his own to meet his In attempting the course of he made inconsistent statements during credibility by claiming his confused state of mind at the interviews that would have exposed statements the interviews took He asserts his alleged unpublished time place. that defendant had also could have been used to Trihey’s testimony impeach for their he murderer” and that “all three were killed told him was a “triple he the information social checks.” But defendant never shows how security defense, his or how it differed in content from would assist sought materially cross-examination, information available for testimony published scared, that taken defendant’s statements that he was he had including (PCP), and that he had not murdered Defendant phencyclidine anyone. of, about, asserts that he “needed and cross-examination simply discovery records of the interviews to Trihey’s testimony. unpublished impeach article, Unlike other attributed to in the statements 25th April [defendant] Rather, murderer’ was not a direct it was Trihey’s assertion ‘triple quotation. a conclusion drawn have Trihey’s material Trihey. unpublished might shown his murder’ was his own ‘triple testimony interpretation account, Moreover, not an actual admission. discovery [defendant’s] cross-examination have conclusion was not might proven Trihey’s The supported by interviews. have shown that tapes might [defendant] killer’; never said he was a murderer’ or a that he did not hit ‘triple ‘triple Juanita; either Juan or that he did to aid or abet that he did not nothing Joey; killed; intend that either Juan or Juanita be that he tried to from stop Joey killing his or that he feels parents; because he failed to guilty prevent homicides. of these would have bolstered Any possibilities [defendant’s] insufficiency argument.” evidence

The evidence defendant claims have alleged would assisted materially defense consists of more than statements court nothing that a self-serving *51 could conclude were either too to assist defendant or reasonably speculative harm, assist, Indeed, would rather than the defense. this case is materially 1041, similar to 200 at Hallisy, supra, which court Cal.App.3d page rejected defendant’s to attack his own attempt credibility by subpoenaing record, a reporter’s interview notes. Based on this and under the unpublished test, more recent Delaney threshold we find that defendant has failed to make the threshold that showing interview publication alleged unpublished Trihey information would have assisted the defense possessed by materially and defeated claim of under the shield Trihey’s immunity law.4 addition, above,

In for the claim same reasons noted we defendant’s reject he that was denied his to confront and right Trihey cross-examine discover and evidence under the Sixth and Fourteenth Amendments. present The record shows the that court statements as rejected Trihey’s proof Moreover, defendant killed the victims for their Social checks. Security found court untrue the circumstance the murders of special that allegations Juan and Juanita were committed and found Bocanegra during robbery Thus, defendant not of the in connection with it guilty robbery that crime. the court afforded little and defendant appears weight Trihey’s testimony, was not denied his federal constitutional to a fair trial because right simply the court allowed the to be introduced. testimony

In a related based on state defend argument independent grounds, ant claims that of the shield law denied him his “to the application statements he made to Defendant asserts the complete Trihey.” unpublished statements should have been the defense under Code provided Evidence 356, section him to allowing into the entire conversation with inquire Trihey. however, Defendant fails acknowledge, “section 356 evidence” is Witkin, to the (1 under the shield law. Cal. subject immunity provided (3d 1986) Evidence, Evidence ed. Circumstantial and cases §319, p. addition, cited.) In defendant fails to show how the statements unpublished he he made to alleged would have in its Trihey placed Trihey’s testimony context, proper or that the information had some connection with sought (See (1993) Trihey’s testimony. People Zapien Cal.4th 959 [17 704]; (1989) 846 P.2d Cal.Rptr.2d see also v. Hamilton 701, 774 Cal.3d 730].) P.2d Cal.Rptr. we

Finally, defendant’s assertion that counsel’s failure to reject cross-examine before denied Trihey closing him effective argument I, assistance of counsel under article section 15 of the California Constitu tion, and the Sixth and Fourteenth Amendments to the federal Constitution. claim, In order to succeed in his “defendant must show deficient perfor mance under an standard of objective reasonableness and professional 4Because we showing conclude that defendant has required failed to meet the threshold Delaney, supra, 808-809, pages 50 Cal.3d at argument we do not discuss his alternative Delaney he has satisfied the balancing factors determining for whether a defendant is entitled newsperson’s to a unpublished information. These factors include a consideration of “whether sensitive, the information sought is confidential or protected by the interests to be the shield importance defendant,” and, law ... depending information to the criminal on the facts, (Id., particular whether there is an alternative source for unpublished information. *52 effect on of an adverse under a test of reasonable probability prejudice 1048, (1993) Cal.Rptr.2d 6 Cal.4th v. (People Berryman [25 outcome.” (1987) v. Ledesma cf. Berryman]; People 864 P.2d 40] [hereafter and state [discussing P.2d Cal.Rptr. Cal.3d 215-218 839] satisfy counsel].) does not Defendant to effective assistance of federal test. of the foregoing either prong discussed, argument the court his closing Toton convinced during

As not his decision not be substantial weight; should given Trihey’s testimony material was as to the contents of the published to cross-examine Trihey state- the nature of defendant’s alleged contradictory sound strategy, given have that cross-examination would ments. Defendant does not establish information, additional information about the revealed new or that any any Hence, we cannot interviews would have influenced the court’s judgment. to be deficient. In any find counsel’s failure to cross-examination Trihey event, the fact that the court dismissed the robbery charges against given defendant, alle- and found not true the robbery-murder special-circumstance we discern no to defendant based on counsel’s gation, prejudice perfor- (Berryman, mance. 6 Cal.4th at

6. Prosecutorial Misconduct Alleged

Defendant contends that Prosecutor committed Ryals prejudicial misconduct in her He claims that guilt closing Ryals’s phase argument. that there was no argument evidence other than and anyone Joey Bocanegra defendant committed the murders was false. As evidence of the knowingly faith, bad defendant cites statements she prosecutor’s allegedly contrary made to the court in the during subsequent pretrial hearings prosecution Because the asserted evidence of misconduct is not within the Reyes. notice, record or our we do not reach the merits of appellate judicial defendant’s claim on To the extent defendant has a valid claim appeal. trial, misconduct based on prosecutorial events after his occurring record, therefore not reflected in the claim be must appellate presented for writ of habeas by petition rather than corpus by appeal.5 (1) judicial 5Defendant has filed a motion for notice of the records filed in this court and the (No. 85-0-15827), (2) California State Bar Court in In re Toton the record and exhibits filed Court, Reyes Superior in the Appeal Court of in guilty plea sentencing v. records County filed in Superior People Reyes (Super. County, the Kern Court v. Ct. Kern No. 34638-C), charges County Superior the record of dismissal of filed in Kem Court (Evid. Code, Bocanegra (d).) (Super. County). deny Ct. Kern subd. We § request Reyes as to the improperly augment appellate records because it would record. We *53 60

7. Cumulative Guilt Phase Error Defendant contends his conviction be should reversed because of the of cumulative effect on the guilt errors. He relies Califor- alleged phase Constitution, I, 15, nia article section and the Sixth and Fourteenth Amend- ments to the United States Constitution. contention, however, to defendant’s

Contrary he has not sustained any his claims of error. we find no in Accordingly, cumulative deficiency guilt (1991) phase proceedings support (People reversal. v. Ashmus 54 932, 112, Cal.3d 1006 Ashmus].) 820 P.2d Cal.Rptr.2d [2 214] [hereafter B. Phase Penalty

1. Constitutionality the 1978 Death Penalty Law Defendant contends that the 1978 death law is penalty unconstitutional under the United States and California it Constitutions because fails to narrow the class of death-eligible murderers and thus renders “the over of intentional first whelming majority murderers” death degree eligible. Defendant cites statistics of all first murder convictions in degree which a defendant found death eligible, and concludes: “The vice Cali fornia is scheme not one of any circumstances taken alone special is unconstitutional—each identifies a subclass of all first arguably degree murders more of the death deserving than other members of penalty that, class. The vice is taken together, the circumstances special cover (and all first virtually murders degree a substantial of all murders), majority and, thus, they perform no at narrowing function all.” Principally, relies on Justice Blackman’s dissent in (1994) v. Tuilaepa California __, 767-774, 750, U.S. 2630], L.Ed.2d 114 S.Ct. which he [129 stated: circumstances, “By 20 such creating nearly special California creates an (Id. death extraordinarily large L.Ed.2d at pool.” p__[129 pp. 773-774] (dis. Blackman, J.).) opn.

We have considered and this repeatedly rejected identical claim beginning with our decision in v. People Rodriguez Cal.3d 770-779 [230 (See 726 P.2d Cal.Rptr. v. Crittenden 9 Cal.4th 113]. 154-156 887].) Moreover, Cal.Rptr.2d P.2d Tuilaepa deny request remaining as to the ground documents on the that reference to them is unnecessary (Turner, to our discussion of the issues raised defendant. 8 Cal.4th at 193-194.) pp. *54 cases, and in a number of court California, supra, high has previous that “the of definition” of factors recognized proper degree death-eligibility “is not of mathematical the court has susceptible confirmed that precision”; our death law avoids constitutional because it is not penalty impediments it unnecessarily vague, narrows the class of suitably death-eligible persons, for an individualized determination. v. Cal provides penalty (Tuilaepa 512 U.S. at L.Ed. at ifornia, supra, and cases pp._-_[129 pp. 761-764] cited.) Defendant’s fails to us to (Ash convince revisit the issue. argument mus, 1009-1010.) 54 Cal.3d at pp.

2. Court-conducted Voir Adequacy Dire of

Defendant asserts that the trial court abused its discretion 26, selection because jury process its voir dire omitted the questioning July 1988, article in the newspaper Bakersfield Californian that focused on the disbarment proceedings pending defense counsel Toton. The against article also mentioned that Toton had been “admitted appointed represent triple move, killer Ted Sanchez” and that “in an unusual waived a jury [Toton] month, trial this out a cutting jury-selection that could process have taken months.”

Even defense, cocounsel Frank though conducted the defend- penalty phase ant that the court’s complains failure to question prospective jurors on the contents of specifically the article about Toton prejudiced jury made it unable to render a fair and impartial verdict in violation of his right to a fair and impartial under the due jury process jury trial of provisions the federal and Const, (U.S. Const., state VI, XIV; Constitutions. Amends. Cal. I, 16.)

art. Although defendant mentions the fact that neither § defense counsel nor the district article, attorney about the questioned jury the thrust of defendant’s is argument that the trial court “did not even begin to cover a subject on the bearing of impartiality and that the jury,” lack of into specific the effect of inquiry of Toton’s any knowledge pending disbarment on the potential jurors made it “impossible conclude that was fair and penalty jury [defendant’s] impartial.”6

Defendant’s First, is argument it is evident unconvincing. from the record that defendant failed to his claim preserve voir dire improper by objecting asserts, 6Defendant analysis, also without the failure to conduct voir dire on the contents of the article violated former Code of Civil Procedure section 1078. That section was trial, during effect shortly defendant’s but repealed by Proposition thereafter 115 and 223, Code of Civil Procedure section adopted which practice the federal of court-conducted dire, voir allowing the attorneys to supplement jury only showing examination on a good cause. Code of Civil Procedure section provides 223 also that a trial court’s exercise of during discretion voir dire shall not be disturbed in the miscarriage justice. absence of a (Cal. Const, VI, art. Former Code of Civil governs Procedure section § which this to the court’s trial. v. Viscotti questioning during Cal.4th (People merits, 388].) 825 P.2d On Cal.Rptr.2d our [5 review of the record shows the trial court’s voir dire insured an adequately impartial jury, without unnecessarily exposing to the information very found could his case. prejudice

In v. Wash 6 Cal.4th 215 861 P.2d Cal.Rptr.2d *55 (hereafter Wash) we held that the trial court although 1107] has “consider able discretion” in the voir dire the court process, must allow counsel to ask challenges. to assist questions counsel in the exercise of designed peremptory 253; d., see also (I p. People (1981) v. Williams 29 Cal.3d 407 869].) 628 P.2d Cal.Rptr. [174

The Wash, trial court with its under complied 6 Cal.4th obligation supra, 215, to assist counsel and to ensure a fair the impartial jury by requiring 201 to fill out a prospective jurors one-page the questionnaire asking panel case, so, members whether ever had heard of the they and if to name their (See source. v. Chaney 234 Cal.App.3d [286 must be Cal.Rptr. extracted from 79] [information assess their jurors serve, Of the impartiality].) jurors selected to told the eventually court eight case, counsel, had never heard of they defendant’s were not familiar with and either did not subscribe to or did not read on a consistent basis the addition, Bakersfield Californian. In to further pursuant questioning by court, four of these indicated did jurors not believe they read everything they in the newspaper.

Two other who jurors acknowledged read the Bakersfield they Californian observed that had never heard they of defendant’s case.

Two of the twelve selected had jurors prior defendant’s knowledge case, but their voir dire responses indicated that their to the clearly exposure articles about newspaper defendant’s case was limited to an awareness of the facts and general circumstances of the and Tatman murders. Bocanegra Their of the case did knowledge not include any information specific case, conferred a jurors, counsel to a reasonable imposed examination of but on the duty trial court prospective jurors to “examine the impartial jury.” to select a fair and complaining Because defendant is that the impartial jury, trial court failed to ensure a fair and statutory language difference in the between former Code of Civil Procedure section 1078 and Code of Civil inconsequential. Procedure section 223 is To the extent defendant is claiming judge that the trial did not select impartial penalty phase jury a fair and under former Code of Civil Procedure section rejected, being showing jury his claim is there no was unfair or biased. Thus, trial court it Toton’s disbarment. appears regarding pending the general well within its discretion proposing question acted unnecessarily disbarment without of Toton’s knowledge pending jurors’ avoided The court’s thus strategy about that matter. trial educating jury troubles, defendant a fair of Toton’s while assuring informing facts, find (Wash, we 6 Cal.4th at Under these impartial jury. concerning dire to the trial court did not err in voir limiting general questions 415, (See 500 U.S. Virginia Mu’Min pretrial publicity. 493, 507-508, issue of 111 S.Ct. of trial on judge

L.Ed.2d [findings 1899] error].) should be absent manifest juror impartiality upheld 3. Alleged Prejudicial Autopsy Photographs Effect of

The trial court admitted into evidence 44 photographs, including of Juan and Juanita photographs autopsies Bocanegra depicting *56 (Exhibits 14.) extensive nature of their wounds. Nos. 13 & The scalp autopsy had been excluded from the a successful photographs guilt following phase motion in limine by defendant. The trial court overruled defendant’s objec however, to the tion admission of the for the autopsy photographs, penalty We first review his contention that the phase. trial court erred in admitting cumulative, the because were autopsy photographs they misleading and their effect their inflammatory, prejudicial substantially outweighed value. probative

In defendant’s overruling the court stated: “These wounds objection, scalp are absolutely that the see. And are not very important jury the kind of they bad, that, bad, I’ll autopsy all pictures—they’re say are but autopsy pictures not the blood and they’re of sometimes see in guts type thing you far, far, far, And I think autopsy the effect is and I pictures. can’t prejudicial stress it enough, the value of these outweighed by probative wounds.” scalp

Defendant contends the trial court committed in error admit- prejudicial exhibits ting Nos. 13 and 14 in violation of his to a fair trial reliable determination penalty under the Eighth and Fourteenth Amendments of the federal Constitution. The thrust of his is that the argument were not photos determination, relevant to the were cumulative to penalty the of testimony (the Dr. forensic Holloway who the on pathologist performed autopsies Bocanegras), misled the as to seriously defendant’s in jury culpability sum, In Bocanegra murders. the sole purpose allowing photo- asserts, graphs, was to shock and improperly horrify jury. Defendant to the points prosecutor’s explanation as to she jury why believed the autopsy photographs were evidence important and asserts her comment actually exploited effect of the prejudicial evidence: “You will have the available to Look at pictures you. wounds. You make the scalp whatever, decision. But would not have Bocanegra] been killed but for [Mrs. Sanchez, Brian and he is as help Teddy just murder as guilty Joey Defendant claims that because Bocanegra.” value of the probative effect, was their photographs clearly their admis- outweighed by prejudicial sion violated his constitutional rights.

The decision whether to admit is within the trial court’s photographs discretion and will not be disturbed unless their effect substan prejudicial (See their tially outweighs value. 2 Cal.4th probative People Hardy 825 P.2d Cal.Rptr.2d Hardy] 781] [hereafter [admission photos within trial court penalty phase discretion unless effect prejudicial value]; Wharton, outweighs probative [same].) 53 Cal.3d at We supra, p. have examined exhibits determined Nos. 13 and 14 and have are not so “they horrific or that we can conclude the trial shocking court abused its discretion in them.” admitting (Hardy, Cal.4th at The crime, familiar with the facts of the and the had substantial photographs value probative defendant’s demonstrating as an aider and culpability abettor, and as corroborative of Hernandez’s testimony defend implicating Moreover, ant the crimes. the probative value of the was not photographs diminished because the wounds alone simply were not fatal to the scalp *57 victims. The corroborated the testimonial photographs evidence and were “relevant to a determination of the of the death appropriateness penalty.” 870, v. (People (1992) 678, 2 Raley Cal.4th 914 830 P.2d Cal.Rptr.2d [8 omitted, 712], fn. 754, (1990) v. Benson 52 citing Cal.3d 786 [276 827, 330], 802 134, P.2d Cal.Rptr. (1990) People Thompson 50 Cal.3d 309, 182 785 P.2d Cal.Rptr. [266 intent to kill or lack 857] [“Defendant’s thereof was one of crime.”].) the circumstances the

Defendant’s claim that there was no as to the circumstances of the dispute murders is not the facts. Defense supported by counsel Frank at the argued penalty that defendant phase should be the death if the spared penalty jury had a doubt” about the “lingering extent of defendant’s in the participation Bocanegra killings.

Nor is defendant (1960) 843, assisted People v. Love 53 by Cal.2d 856-857 705], 350 P.2d Cal.Rptr. in which we [3 held that the trial court’s admission of a photograph victim’s face as she was showing and of dying, tape recording her last words as she on a lay hospital table

65 inflame because it “served primarily was in extreme pain, prejudicial contrast, Here, 857). autopsy (Id., of the at jurors.” passions were clearly probative wounds scalp the Bocanegras’ depicting photographs wounded, (ii) defendant’s were which the victims (i) the manner in of the abettor, (iii) malice and aggravation aider and as an culpability (1988) crime, v. Milner (iv) ultimate (People penalty. appropriate 669]; Hardy, supra, cf. P.2d Cal.Rptr. Cal.3d 199-200.) Cal.4th at p. we need

Because we find no error admitting autopsy photographs, of other during defendant’s claims that admission photographs not address 9, 18, the wounds on the (exhibits Nos. 19 & depicting the penalty phase Tatman) did not render harmless the effect prejudicial Bocanegras that, do address defendant’s related argument Nor we photos. autopsy we conclude the admission of these “undercut assuming photographs trial from the admission" of the photographs, prejudice resulting autopsy admission. Neither counsel was ineffective for to their failing object is of our conclusion that the court did not err in argument persuasive light at the admitting autopsy photographs penalty phase.7 4. Prosecutorial Misconduct

a. Improper Argument

Defendant several instances in he claims which alleges Ryals (1) committed misconduct to the prejudicial by: improperly arguing jury killer; (2) defendant was in her Tatman’s actual erroneously asserting open screwdriver, statement that the murder Tatman was a and that ing weapon defendant; (3) was seized from that the weapon suggesting defendant for the Tatman when sentencing murder the penalty phase applied murders; evidence; to the only Bocanegra failing false presenting correct allegedly information the cause of Juan misleading regarding *58 death; Bocanegra’s the evidence of defendant’s involve misstating ment in the murders. Bocanegra misconduct,

Defendant failed to to these instances of object any alleged or to seek a curative admonition. He waived the issues for has therefore argument, 7In an abbreviated defendant overruled contends that the trial court erred when it objection Bocanegra his to the photographs depicting admission of the bloodstains at the 32-43, (exhibits 55-66) People residence improper Nos. on the basis of foundation. As the observe, properly evidentiary the trial alleged court concluded that the deficiencies affected weight jury give admissibility. photographs was to their and not 171; (1980) Cal.3d 2 Cal.4th at v. Green appeal. (Hardy, supra, p. 468].) 609 P.2d to Defendant seeks Cal.Rptr. exception or rule that a would waiver have been futile timely by asserting objection (27 34). not have harm agree. could cured the Cal.3d at We do not pp. fails An from defendant could have cured harm and defendant objection any to demonstrate otherwise.

Moreover, did occur As we in detail error that was harmless. any explain below, have, times, although may the limits prosecutor pushed could not misconduct did occur have contributed proper advocacy, any to verdict and was thus rendered harmless.

Defendant contends told the that he Ryals jury was Tatman’s improperly killer, actual and that Tatman was killed with a screwdriver him. seized from Defendant also asserts that treated defendant’s conviction Ryals improperly (without circumstances) under section as crime. Her special capital defendant, argument, claims violated the doctrines collateral estoppel double and denied him his under state constitutional both the jeopardy, rights federal Constitutions. claim,

Defendant’s first that the to the prosecutor improperly argued killer, he that was Tatman’s actual on the was based comments following made during prosecutor’s closing argument:

“First, old, Tatman, man, bound, Mr. an sick wheelchair from living Inn, in the Bakersfield a match payday hardly for the defendant payday friend, alone much less for the defendant and Robert his Reyes. bed,

“Think of the old man his because lying burglars fearful there were in his little room at the Bakersfield Inn. Think of how that fear turned as he horror realized that weren’t but that they intended just burglars they his take life. how he must have felt when him. Imagine they approached course, “Of told the he in the had no actual police part murder, then, that, that he watched do it. But when buddy think of you think that the defendant learned to lie to authorities at an I believe early age, Dr. said the he Wright grade. third Remember that denied to the also police murders, anything facts but then remember any concerning Bocanegra he told what Rufus Hernandez.

“He told Rufus Hernandez what the two of Mr. how them killed happened, Tatman, not how Robert or how Mr. [Reyes] killed Mr. Tatman he killed are you Think of that when killed Mr. Tatman. but how they Tatman be. in this case should what considering penalty could have taken taken the food. They

“The two men could have and not was in that room taken that everything could have They refrigerator. They hundred who less than one weighed pounds. that old man touched out, room, stripped cleared it even into that gone completely could have him, all. hurt him at him never harmed never from under bed clothes out chose, for some didn’t do that. They didn’t do that. The defendant But they ultimate, reason, violence, useless, ultimate commit an act of senseless to violence, murder.” act rebuttal, it not to told the that should prosecutor jury attempt

In her facts, but then asked the to deliberate over what jury relitigate guilt phase evidence was in the had told it: “You do not know what presented she to at this time. You You are not hearing. relitigate hear[d] previous told the of the Tatman murder. You know what the defendant circumstances know what the defendant told because heard that. But also you you police this and to weigh Rufus Hernandez because heard that. It is to you up you struck the fatal blow.” deliberate on that and to determine who exactly was to ask “the argument Defendant asserts that the effect above the trial court’s not true verdict on the robbery disregard completely under Count I which and necessarily murder circumstance special implicitly was the actual killer in the Tatman rejected charges [defendant] homicide and that he harbored an intent to kill in the crime.” committing Defendant claims to elevate a murder Ryals’s argument sought noncapital which defendant was an into a murder violation of the accomplice capital double under the Fifth against following guarantee jeopardy acquittal I, Amendment to the United States Constitution and article section 15 of the Constitution, (See California and the related doctrine of collateral estoppel. Bunnell, 610-602; Ashe v. e.g., supra, 13 Cal.3d at see also Swensen pp. 469, 476, S.Ct. 397 U.S. L.Ed.2d [barring [25 1189] of ultimate issue of determined in Lucido v. fact relitigation prior litigation]; Court 51 Cal.3d 795 P.2d Superior Cal.Rptr. case].) 2 A.L.R.5th similar standard in state [applying 995] In to the court’s guilt phase making argument, points verdict, (and as an not which the court found defendant acted accomplice killer) actual in the Tatman murder: *60 murder],

“As to the first count Tatman the Court finds defendant [the of murder and fixes that as in guilty murder murder the first based on degree the murder rule. felony finds

“The Court that it is not true that the murder of Woodrow Wilson in Tatman was committed while the defendant was the commission engaged or commission of a to wit: The of felony, crime within attempted robbery, mean, the circumstance section. does I meaning special That not add, hasten that I do was to not think there in that robbery progress; simply means that I find that the was an aider defendant and abettor of the robbery that, but that the homicide occurred the in commission of therefore it’s a first murder.” felony degree

The observe that this verdict The inconsistent. confusion appears over is the the verdict fact that the highlighted in early guilt phase (and to arguments, prosecutor the concede the court to appeared appeared that could be agree) defendant found of second guilty only degree felony course, murder in connection with the Tatman Of killing. any inconsistency in the was verdict harmless our law that light recognizing accomplice status is sufficient to elevate a defendant’s in the crime to the complicity circumstance as as acted with robbery-murder special long defendant “intent Anderson, 1138-1139.) v. kill.” 43 Cal.3d at (People supra, pp. from What is clear the verdict is the court’s defendant aided finding and abetted was and that murder verdict based on the robbery, clear, however, rule. It is less felony-murder whether court found or was defendant was not the killer. If we court actual assume the found the circumstance untrue because the neither special had prosecution proved killer, kill, defendant was actual nor that he had the intent prosecuto- rial argument as to actual killer status attempting relitigate guilt phase Haskett, was v. (People 30 Cal.3d at 864-866 improper. pp. [prosecu- tion at must from phase refrain penalty attacking retrying acquittals on which could not the extent charges guilt To phase jury agree].) Ryals however, crossed the line misconduct was not proper argument, any to defendant because is not a result prejudicial it more reasonably possible favorable to would have occurred. Defendant was convicted of 190.2, (a)(3)), murders Juan and Juanita subd. multiple Bocanegra (§ aware of defendant’s criminal violent prior activity 190.3, (b) Thus, (§ (c)).& factors references to defendant’s role Ryals’s could Tatman murder not have affected the outcome of the penalty Montiel 5 Cal.4th phase. (People Cal.Rptr.2d 855 P.2d Montiel].) [hereafter 1277] *61 the misled deliberately the prosecutor next claims that

Defendant murdered Tatman was actually comment that her statement opening jury by from the Bocanegra had been stolen a that with screwdriver by Reyes Code, (See Bus. & Prof. person. later found on defendant’s residence false 6068, a (d) by never to mislead judge [duty attorney subd. § 502, 536-540 law]; (1989) [262 v. 49 Cal.3d fact or Bell statement or jury 1, judge for to mislead P.2d [improper prosecutor 778 129] Cal.Rptr. comment law].) the prosecutor’s or Defendant asserts facts by misstating mortally was Tatman indicating evidence guilt contradicted phase chest,” with left consistent force to the injury a “massive blunt by wounded three (with two to a a dimension of similar by object a heel blow stomp were wounds inches). the screwdriver autopsy report, According death. contribute to Tatman’s wounds that did not actually stab superficial contends, evi of the misstatement the prosecutor’s defendant Accordingly, v. (see, Darden e.g., unfair fundamentally dence rendered phase penalty 158,106 168, 144, S.Ct. (1986) 2464] 183 L.Ed.2d Wainwright 477 U.S. [91 Amendment]), and violates Fourteenth misconduct [egregious prosecutorial 320, 340-341 (Caldwell v. 472 U.S. Mississippi [86 unreliable 231, 246-247, 2633]). L.Ed.2d 105 S.Ct. as the actual murder weapon inaccurate reference to screwdriver

Any defendant) be (or was on could not properly comment that the found weapon a fair trial. as or so as to defendant deny characterized prejudicial egregious P.2d Wrest Cal.4th (People Cal.Rptr.2d When, here, to the 1020].) as on comments focuses the prosecutor’s point there that the jury is whether is reasonable jury, possibility question construed or remarks an any objectionable applied complained-of (Berryman, manner. 6 Cal.4th at

Here, wounds were inflicted upon was told that nonfatal stab jury only the cause of Tatman’s Tatman. Forensic testified that Holloway pathologist also stated that Holloway death was massive blunt force chest. injury stab some of the Tatman were injuries by multiple superficial sustained of a to the “none of which would be construed as capable wounds chest themselves,” wound to the abdomen cause of death in and a stab superficial not been which “would itself have a fatal wound.” that, addition, testified on March

In Bakersfield Police Detective Boggs told he had entered Tatman’s Reyes him after room, threatening he over in a manner Reyes hotel saw Tatman standing hand, that and stabbed Tatman with a screwdriver in his “freaked out” Reyes the screwdriver enter with a screwdriver defendant never saw although at all times.” Tatman’s and that the screwdriver body, Reyes “possessed Moreover, jury consistently admonished the court that it was to consider evidence and that the only presented, statements of opening not were to be considered lawyers evidence. The court admonished the trial, that: “The to remember is that what important thing in a lawyers say statements, what in their what in their they say argument, they say opening those not are evidence. are what simply They just telling you they expect *62 case, however, You have to prove. decide this on what based hear you [1D under oath from the witness or based on stand some documents or pictures that I for your admit consideration. What a ... is not says lawyer [H (See 1.02.) evidence.” CALJIC No. The court its admonition repeated closing arguments. following

Taken in as an context to counter defense attempt argument counsel’s defendant did not in the Tatman it is not participate reasonably killing, the possible inaccurate remarks the Tatman mur- prosecutor’s alleged about 1072.) Moreover, der misled the jury. (Berryman, Cal.4th at the supra, p. court’s instruction that the were not lawyers’ opening statements closing to be evidence considered the vitiated the effect by of jury misleading any inaccurate The remarks. court’s instructions are in their determinative state- law, ment of and we the treated the presume jury court’s instructions as law, and the statements of comments as words prosecutor’s spoken an by Thomas, in advocate an Cal.4th attempt persuade. (People at supra, p. 538.) We cannot conclude on this record that the isolated prosecutor’s of mischaracterization the evidence in her misled statement the opening jury. Defendant also asserts that the circumstances of by the discussing Tatman during the killing penalty misled phase, prosecutor improperly into it could sentence defendant for the jury believing to death murder of alone, when Tatman have should been considered for the penalty only crimes, in which the Bocanegra multiple-murder circumstance special was found true.

Defendant’s is The of the argument circumstances Tatman misplaced. 190.3, crime were as an section argued factor under properly aggravating (a) (circumstances factor of the crime and the of any existence special Montiel, 190.1). (See circumstances found to be true to section pursuant (a) 5 Cal.4th fn. of section 190.3 covers the [factor of circumstances all crimes in the More- adjudicated capital proceeding].) over, defense counsel reminded the of aider and defendant’s abettor status in the Tatman murder when he stated: “Ted did not kill Sanchez Mr. Tatman he nor did share in Robert intent Reyes’s to kill Mr. Tatman. Ted’s role in that incident was limited to of Mr. tragic some Tatman’s removing Hence, we find no error property.” occurred discus- Ryals’s prosecutorial sion of the circumstances of the Tatman murder at the phase. penalty which claims of misconduct to

Defendant’s other prosecutorial record. For no are not objection example, there was defense supported allowed Detective to tes contention that the prosecutor Boggs defendant’s who or defendant—that both men had him—Reyes as to told falsely tify murder, is disagree back” and “relaxed” after Tatman simply “kicked evidence, no indicates that way as to the of ment interpretation addition, In false from Boggs. or elicited testimony Ryals encouraged Dr. Holloway’s misconduct in correct failing did not commit prosecutor “con to Juan as a Bocanegra nonfatal wounds scalp characterization The “other of death. characteriza cause” rather than an condition” tributory was minimally to Juan’s death of the wounds as contributing tion scalp in the murders. assessment defendant’s culpability significant jury’s head to the victim’s The facts showed that defendant struck blows disabling Moreover, cause stabbing while him. Joey any misperceptions *63 the statement that the Juan’s death were corrected by prosecutor’s opening bar, with a not the actual blows wounds inflicted defendant metal “were by what the man. The actual that killed the man. were of killed They only part to the was the wound inflicted his son while defendant by blow man stab was him in the head with an iron beating pipe.” the committed misconduct by defendant’s claim that

Finally, prosecutor would been asserting that the not have killed without defend Bocanegras The the that ant’s assistance is without merit. evidence view supported both while “The restrained victims stabbed them. Joey Bocanegra broad of to their came well within the discretion state argument parties views as to what the shows what inferences be drawn may evidence therefrom.” v. 1 Cal.4th 540 (People Kelly Cal.Rptr.2d 385].) 822 P.2d

b. Assistance Counsel of Ineffective to

Defendant that counsel’s failure to the above complains object misconduct to assistance of coun alleged amounted ineffective prejudicial Ledesma, (See This sel. claim lacks merit. v. Cal.3d supra, pp. 215-216.) In Frank out closing consistently cocounsel argument, pointed of the inaccurate statements to the it prosecution’s jury, reminding evidence for Counsel’s in presented. performance demonstrating jury attention to detail rather argument reveals counsel’s prosecutor’s improper than careful Counsel’s references incompetence. during prosecutor’s misstatements demonstrates that defense counsel aware misstate and, not to ments in reasonable chose exercising professional judgment, event, no for tactical reasons. In we find reasonable object any probability (Ibid.) case. that defense counsel’s failure to defendant’s object prejudiced c. Cross-examination Robin Sanchez noted, wife, Sanchez, defendant’s Robin testified in

As previously nice, her defendant was a who trustworthy baby-sat mitigation person witness, she asked her whether children. On cross-examination of Ryals been in been violent since he’s was “aware of the fact [defendant has] counsel to the Sanchez “no.” Defense jail?” replied, objected question Thereafter, it. told the trial court admonished the disregard Ryals be would court that she had one more rebuttal witness whose testimony short,” in her and the trial was continued a order to allow day “very, very, reconvened, re witness. When the court it defendant’s granted locate the witness, for an offer of with to the rebuttal proof regard response quest withdrew her of the witness. which the prosecutor proposed presentation her Defendant claims that the used cross-examina- deliberately prosecutor while insinuation” that defendant was violent tion to an place “insupportable conduct in violation of People without custody proof alleged Bell, asking Cal.3d deliberate questions [counsel’s misconduct].) inadmissible for answers is calling We find error. Defendant’s wife was cross-examined prosecutor no *64 a nice and trustworthy in to her that defendant was testimony response her “It is well established that the who children. babysat prosecution person has heard of acts of a defense . . . witness whether he may inquire [or she] so or conduct the defendant inconsistent with the witness’s testimony by about as the have a faith belief that the acts or conduct long People good (1988) v. Siripongs which wish to took they actually place. (People inquire 548, 729, 1306].)” v. (People Cal.3d 578 754 P.2d 45 Cal.Rptr. [247 342, 155, (1992) 4 841 P.2d Sandoval Cal.4th 188-189 Cal.Rptr.2d [14 862].) addition, testimony,

In the court sustained defendant’s to the objection instructed; “As to any the it. The was also admonishing jury disregard jury sustained, to what to which an was must not as guess question objection you You the answer have been or as to the reason for that might objection. [H a which by question must never assume to be true insinuation any suggested [^QA be considered may was to a witness. is not evidence put question And must not it to the answer which follows it. meaning you as only supplies was or any consider for offer of evidence that any rejected any purpose [^Q be treated the Such matter is to evidence that was stricken out court. by first have never heard it.” Given the fact that three degree as though you before the jury, any murder and two assault convictions were prior properly

73 defendant’s received may regarding have jury information improper (See verdict. jury’s not have affected the in could jail for violence propensity circumstances, is these there no Montiel, Under 5 Cal.4th a more favorable would have reached that the jury reasonable possibility v. Brown (See People misconduct. alleged in the absence verdict 604, 1135]; see also P.2d Cal.Rptr. 46 Cal.3d 448-449 [250 824].) S.Ct. U.S. 18 L.Ed.2d [17 Chapman California “LWOP” Sentence Meaning d. Discussion of of of it “think told the should jury During closing argument, Ryals Tatman, Bocanegra, Mr. Mrs. Juan and Juanita Bocanegra, Mr. think of them, consid not because of but not feel for you sorry passion, because died. they have felt on the before evening horror those must ering people It means parole. Then of life without the meaning possibility think It meals It television. eating day. watching means three a means being alive. with a It means visits having conjugal It a having library, gymnasium. means sustained, to the objection argument wife.” Defense counsel’s your life without statement about what disregard was admonished “the jury Defendant contends was like after three meals parole day.” possibility in favor of death. vote improperly swayed jury above comment sugges- carried the improper We counsel’s disagree. Nothing argument sentencing tion should take its seriously responsibility. not jury as an brief would be a reasonable Ryals’s statement interpreted the prose- to contrast “victim evidence impact” against penalty attempt is allowed under both cution believed defendant deserved. Such evidence (1991) 501 federal and state v. Tennessee U.S. (Payne precedent. 2597]; (1991) 54 Cal.3d

L.Ed.2d 111 S.Ct. v. Edwards *65 P.2d that the immediate [concluding 833-836 Cal.Rptr.2d [1 436] a a murder introduced as “circumstance of injurious of be impact capital may 190.3, crime” (a)]). the under factor We find no basis for reversal in section the prosecutor’s argument.8 brief, trial, penalty 8In in before the trial a footnote his defendant observes that the court granted jury guilt phase. fact request the not be told who was the trier of in the guilt the prosecutor’s jury to as trier of the Defendant now claims that the two references counsel, however,

phase jury. to the Defense was deliberate misconduct calculated mislead instruction, believing highlight would the refused a curative that such an admonition harm prosecutor’s caused the comments. though the of fact did not amount Defendant asserts that even the comments about trier to error, willingness by attorney overstep “a the limits of they suggest reversible the district advocacy by referring proper argument.” Although prosecutor pushed proper the the limits of 5. Court’s Guilt Phase Verdicts Reading of

Prior to at defense counsel Frank’s re phase arguments, penalty verdict, the trial court read the information and summarized the guilt quest, for circumstances In findings, jury. summarizing including special verdict, 3, 1988, the court to read from the minute purported August which had omitted the verdict as to certain in the charged order allegations information information. For defendant had been in the charged example, 190.2, (a)(3)) with circumstance subd. (§ with multiple-murder special 3 order found to the Tatman and murders. The Bocanegra August respect Bocanegra circumstance with to the true multiple-murder special respect in the murders and did not include the Tatman murder only special-circum order, the to read from the 3 minute August stance disposition. Purporting 190.2, the section subdivision court included Tatman as of inexplicably part is not (a)(3) finding when it summarized the verdict to the That jury. finding in the record of the minute order. copy Frank to the jury

Also during penalty phase argument, explained verdict, in the Tatman and discussed meaning felony-murder charges in an defendant’s role as an in the Tatman and murder robbery accomplice inconsistent verdicts finding the court’s apparent attempt clarify allegedly Tatman, murder and but degree robbery first guilty not true the circumstance. Frank’s finding robbery-murder special explana- successful tion of the verdict was felony-murder interrupted by Ryals’s Defendant now that the court’s erroneous inclusion objection. complains the Tatman murder as of the multiple-murder special-circumstance part murders, (or and its failure to allow counsel finding Bocanegra explain its inconsistent verdict and special-circum- adequately explain) allegedly to “the use of false stance in the Tatman murder verdicts amounted finding evidence in in violation of defendant’s misleading capital sentencing” Amendment Fourteenth Amendment to due right Eighth process, 154,_, (See to a fair trial. Carolina 512 U.S. Simmons South 133, 143-144, fn. 5 L.Ed.2d 114 S.Ct. process 2195] [due be informed that defendant is for sentencing ineligible parole requires at issue and state law where defendant’s future is dangerousness prohibits defendant’s release on Townsend v. Burke 334 U.S. parole]; 1690, 1693-1694, L.Ed. 68 S.Ct. on dismissed 740-741 [92 1252] [reliance not denied defendant due charges proved noncapital sentencing process]; *66 575, 583-584, Johnson v. 486 U.S. 584 L.Ed.2d Mississippi [100 grounds 108 S.Ct. death sentence on Amendment [reversing Eighth 1981] guilt during penalty the course of the phase “jury,” any misstep to the trier of fact as a made trial was harmless. reversed]; see also had been of conviction that prior for counsel’s use P.2d Cal.Rptr. fn. Melton Cal.3d toas finding [robbery-murder special-circumstance Melton]

741] [hereafter kill].) of intent to requires finding accomplice First, did not counsel object unpersuasive.

We find defendant’s arguments the of reading multiple-murder special-circumstances to the court’s incorrect occurred, Hence, 2 Cal.4th it waived. (Hardy, supra, if error was verdict. any Moreover, find error any we would even if counsel had objected, at p. incorrectly multiple-murder special-circum- court made in the the reading the to the court’s verdict as confusion caused any by stance findings, to harmless an admonition could have been rendered charges, Tatman jury. addition, to the jury

In Frank’s penalty phase argument explained was of “The what the Tatman verdict: of meaning significance [defendant] facts, of, wasn’t would submit to establishes lot of you, convicted I one, Tatman. You he did not kill Woodrow number that himself [Wilson] evidence, the evidence. I think can infer from the from heard you Tatman, it Robert that it was not Ted Sanchez who killed Mr. was verdicts I submit to that can infer from what you logically you’ve Reyes. you [H kill nor did he share in Robert heard Ted Sanchez did not Mr. Tatman was intent to kill Tatman. Ted’s role in that incident tragic Mr. Reyes’ Mr. You heard the limited some of Tatman’s removing property. ['JO evidence. Mr. Tatman was not to even have known that supposed had taken. been ...” property kill,

Frank next “Robert took it himself to jury: Reyes upon repeated but Ted had no in Frank then the multiple-murder that.” part explained the circumstances of findings special-circumstance argued 190.3, (a). murders as a under section factor Bocanegra factor mitigating “Now let’s turn to the charges involving Bocanegras. Teddy Mr. in count two of the Information with killed Bocanegra charged having Mrs. having Bocanegra. count three Information with killed count with it the murder had been Each carried circumstance that special committed the course of a he was found during Although guilty robbery. murders Mr. and circumstance that the Bocanegra, Mrs. the special In murders occurred the course of a were not found true. during robbery addition, he was found as was alleged not guilty robbing Bocanegras count five. can

“I that the of all this is that infer you importance you submit he do over house did not Ted—that when Ted went to the Bocanegra when *67 fact, so with the intent to rob him. In I would submit that can infer that you criminal when he went over to that house he didn’t intend to commit any acts and that it wasn’t until after and his father against Bocanegras, Joey started that about criminal fighting Teddy thought engaging any activity.

“Now, I all this to attention because the bring law can your says you take into account the circumstances of the crimes when deliberate on you 190.3, (a)]. issue of and that is for in . . . factor penalty, provided [section factor, “Now this factor is looked as an general, upon being aggravating value, I to you one doesn’t contain but submit usually any mitigating that, case, in this if look at the facts and of what you closely circumstances residence[s], at the Tatman and will find transpired Bocanegra you signifi- cant values there.” mitigating defendant, thereafter

Frank told that it was not who killed jury Reyes, Tatman, criminal and that defendant “had no intent when he went over house.” He also that these same facts could be Bocanegras’] argued [the 190.3, (k). as evidence under factor section Frank’s interpreted mitigating clarified for the about the verdict argument likely jury any misperceptions that occurred in of the court’s statement the verdict. light

We conclude error the court made in the court’s verdict statement was any harmless. Defendant the court read the verdict and circum- requested special stance and failed to correct the court or offer instructions findings, clarifying in order to have had about the remedy any misperceptions jury may Moreover, verdict. counsel’s of the verdict to the jury during explanation more than clarified confusion the have argument any potential jury may The did not men- court’s experienced following explanation. prosecutor verdict, tion the erroneous on its inclusion. Defendant was capitalize murder, convicted of three counts of first one degree including supportable as well as two counts of use of a special-circumstance allegation, deadly circumstances, and one count of Under these there is no weapon, robbery. reasonable that consideration of the court’s possibility confusing potentially verdict could have influenced the reading guilt jury. phase improperly (Cf. 53 Cal.3d Jennings Cal.Rptr. 389-391 [279 807 P.2d error in court’s failure to tailor instruction that [any 1009] evidence,” “consider all even those of which defendant was charges acquit- ted, rendered harmless instructions and other valid charges].)

6. Instructional Errors Alleged at the Defendant contends several instructional errors occurred penalty phase.

77 Doubt a. Residual state and federal trial court violated the asserts the

Defendant and a due equal protection, guaranteeing process, constitutional provisions , on “residual or his instruction rejecting proffered fair trial by erroneously to “con asked the jury instruction doubt.” Defendant’s proposed lingering Sanchez’s doubt as to Mr. residual or lingering as a factor mitigating sider defendant Although has been convicted.” the crimes of which he for guilt a residual do not require federal Constitutions that the state and recognizes instruction, this have been given he the instruction should asserts doubt 190.3, on section He relies it was warranted evidence. by case because “on any points discretion to instruct the (f), jury which gives judge factor 190.3, issue,” factor holds section and case law that of law pertinent doubt” instruction should a court to the “residual (f) give may require 678, 618, 20 (1991) Cox 53 Cal.3d fn. warrant it. v. (People [280 evidence 692, residual may require P.2d 351] [evidence 809 Cal.Rptr. [hereafter Cox] 86, instruction]; (1988) 45 Cal.3d 134 Thompson People [246 doubt 245, defend consider residual doubt of 753 P.2d may Cal.Rptr. 37] [court trial]; cf. v. Kaurish People intent during phase capital ant’s penalty 788, 648, 278].) 802 P.2d (1990) Claiming 52 Cal.Rptr. Cal.3d 705-706 [276 him of the first guilty degree was insufficient find that the evidence doubt” defendant contends “residual Bocanegra, murders of Mr. and Mrs. crimes that could be considered “a circumstance of capital 190.3, (a) (k).” and under both factors jury [section] claims, true, consider We find error. It is as defendant that the jury’s no inno of residual doubt is assert may possible ation proper; 190.3, (a) as a under factors and cence to factor in section jury mitigation 1183, (k). Cal.Rptr.2d v. Johnson 3 Cal.4th 1259-1262 (People [14 1159, 1]; (1969) 71 842 P.2d cf. v. Coleman Cal.2d People [80 248].) no under either state 459 P.2d But there is Cal.Rptr. requirement, law, that instruct the to consider any or federal the court specifically jury (Franklin v. 487 U.S. residual doubt of defendant’s guilt. Lynaugh 155, 165-166, 2320]; Cox, 108 S.Ct. 173-174 L.Ed.2d [101 677-678; (1995) 11 Cal.4th 694 Cal.3d at see also v. Medina pp. 2].) P.2d Cal.Rptr.2d

Here, the trial it could consider court instructed the “[t]he convicted in the present circumstances of the crime of which defendant was to be true” found existence of circumstance proceeding any special 190.3, (a)), extenuates the factor which (§ other circumstance “any crime, crime, for the even it excuse is not gravity though legal or record that or any other character sympathetic aspect the defendant’s death, as a for the defendant offers basis a sentence less than whether not (id.., (k)). related to the offense for which he is on trial” factor These instructions on the scope mitigating circumstances encom sufficiently *69 the of residual doubt about defendant’s passed concept guilt. (People v. 324, 106, Price 1 P.2d Cal.4th 488 821 Cal.Rptr.2d [rejecting [3 610] that the defendant’s claim court erred in to failing instruct on specifically 190.3, residual doubt when was instructed under jury properly section (a) (k)].) factors and addition, observed,

In we as have defense counsel told the that the jury the circumstances of crimes could be viewed as evidence of mitigating 190.3, to defendant’s intent kill. He also to the that section emphasized jury (k) factor allows it to of the any “consider defendant’s character aspect death,” for record he offers as a basis a sentence less than the and asked whether it had “some doubts about what would seen” jury lingering have [it] if had been the it inside residence at the time of the murders. In Bocanegra of the instructions to the and counsel’s we light proper given jury, argument, court err conclude the trial did not defendant’s instruc rejecting specific Johnson, tion on doubt. v. lingering supra, 3 Cal.4th at (People p.1252.) b. Between (a), (b), (c) Section 190.3 Factors and Overlap the

Section 190.3 to consider the circumstances requires jury 190.3, (a)), (id., offense (§ factor the violent criminal presence activity (b)), (id., (c)). factor and convictions factor The prior felony jury (Former instructed in the 8.84.1.) CALJIC No. Defend statutory language. ant now claims the court erred to the differences between by failing clarify factors, the above thus the consideration the allowing jury give multiple under evidence all these factors. He also that the instruc aggravating asserts tions the erroneously permitted jury consider defendant’s assaults prior (b) both (c), under factors and inflated improperly weight jury should have to either crime. given prior 190.3, (b), have

We noted section concerns crimes than factor other for (Melton, those which defendant 44 being supra, is Cal.3d at prosecuted p. 763; 321, v. People Fudge 7 Cal.4th 1125 875 Cal.Rptr.2d [31 P.2d we directed Fudge]), give 36] have that courts should [hereafter instructions “to clarifying any may by avoid confusion” that be caused (Montiel, 887, 938; above factors. 5 Cal 4th at v. Miranda supra, People pp. 57,106, (1987) 44 Cal.3d 1127].) fn. 26 P.2d But we 744 Cal.Rptr. [241 have found that the absence of instructions is harm consistently clarifying (Montiel, 938), less 5 at Cal.4th and that the standard instructions supra, p.

79 (Peo section 190.3.” under ‘double-counting’ “inherently encourage do not 269; (1988) Pride, v. Bonin Cal.3d at 3 Cal.4th supra, p. ple Therefore, if 1217].) “even one or P.2d Cal.Rptr. criminal incident under consider a jurors mistakenly particular more will factor, single a reasonable jury give there little risk that is wrong 939; at (Montiel, Cal.4th p. incident consideration.” duplicative Moreover, both the prosecutor 7 Cal.4th Fudge, supra, evidence under use explained defense counsel separately proper Thus, have faced may confusion any factors. separate potential both counsel’s addressed adequately of the instructions was light im and the absence any Accordingly, given arguments arguments. *70 evidence, to clarify we find that the court’s failure admitted properly not the outcome of the trial. of each factor did affect scope Instructional Error c. Other Claims of have which he acknowledges raises several other contentions

Defendant He to federal review. been this court. raises issues by preserve rejected (i) CAUIC No. 8.84.1 Former court when his delete

Defendant contends the erred it rejected request crime) (e) (whether in and factors victim inapplicable participated mitigating (moral (f) crime) for of section from its standard justification statutory 190.3 instructions, into the irrelevant considerations jury’s penalty injected deliberations, him a fair and reliable of his depriving penalty determination under the and Fourteenth Amendments. Eighth however, “if

The to consider the factors instructed all jury, properly and later told to “take into account be applicable” guided by” 8.84.1; (Former Cal.4th at factors. CAUIC No. 7 applicable Fudge, supra, p. cases, we have followed jury As in we assume properly previous evi- the instruction and concluded that factors not supported by mitigating (Ibid.) dence were not simply “applicable.”

(ii) Factors Nonstatutory Aggravating Defendant also the trial court to instruct by failing asserts erred not to in determining penalty. consider evidence nonstatutory aggravating contention, We and defendant has not per- have this repeatedly rejected (See suaded us to our conclusion. Hawthorne e.g., reconsider People 133, (1992) 4 Cal.4th 79-80 841 P.2d Cal.Rptr.2d 118] [hereafter [14 80

Hawthorne].) Nor was the trial court to label required various factors as (Montiel, exclusively aggravating mitigating. supra, Cal.4th at 1277]; 855 P.2d Cal.Rptr.2d [21 v. Livaditis Cal.4th 297].) 831 P.2d Cal.Rptr.2d (iii) Limiting Modifiers

Defendant contends the trial court violated the Eighth Amendment deletion refusing requested of the adjectives “extreme” and “substantial” in 190.3, instructions in given (d) (whether of section language factors defendant was under the influence of extreme mental or emotional distur- bance at offense), time of (whether and (g) defendant acted under extreme duress or substantial domination of another We have this person). rejected cases, argument numerous and defendant has failed to us that we persuade should (Turner, 208-209, reconsider these decisions. 8 Cal.4th at pp. 190.3, cases cited provision (k) section [catchall factor referring “any other circumstance which extenuates the gravity crime” allows consideration of nonextreme mental or emotional conditions when read conjunction with on (d) instructions factors and (g)].)

(iv) Former CALJIC No. 8.84.2 Defendant contends the trial court violated the federal Constitution by rejecting instruction that would have the required jury to unanimously find the existence of an factor before aggravating it and considering to find a reasonable beyond doubt that the aggravating factors outweighed the Instead, factors before mitigating the choosing death. the penalty court instructed 8.84.2, the jury pursuant to former CALJIC No. which informed the it must “be jury guided by factors of applicable and aggravating mitigating circumstances which had been upon instructed.” The instruc [it] tion also emphasized determination jury the penalty did not involve a mere mechanical weighing but an process, individual required assessment of the and aggravating (and mitigating circumstances assignment of “whatever moral or sympathetic value” it deemed in deter appropriate) mining the sentence. Defendant claims CALJIC No. 8.84.2 failed to inform it must find jury that the factors aggravating outweighed mitigating that, factors and if it found factors mitigating outweighed aggravating factors, it must a impose sentence of life without We have parole. previously contentions, these rejected and defendant has failed to us to persuade Cox, reconsider our (See 618, decisions. 692.) 53 Cal.3d supra, As we have previously recognized, the federal Constitution nothing requires factor, to find the existence of unanimously an aggravating

81 each aggravat- People proved reasonable doubt beyond or to find a factor, outweighed mitigating circumstances that the aggravating ing 79; 4 at ones, (Hawthorne, Cal.4th supra, p. or that death is appropriate. 777-779.) 42 at Unlike determi- pp. Cal.3d Rodriguez, supra, v. People normative, is moral and inherently function sentencing nation of “the guilt, 779), at and thus “not 42 Cal.3d supra, suscepti- not factual” (Rodriguez, p. (Hawthorne, supra, 4 Cal.4th at p. ble quantification.” burden-of-proof CALJIC No. 8.84.2 is impermissibly we with defendant that agree Nor do 222 (1992) v. 503 U.S. [117 under Black misleading Stringer vague 367, our statute is have held that “assuming 112 S.Ct. We 1130]. L.Ed.2d 190.3,] (a) (circumstanc- factors Stringer, to the rationale of subject [section (b) (other violent guilt es of adjudicated capital proceeding), crimes crime) with- (i) (defendant’s time age capital criminal activity), these the sentencer’s stand Each of factors vagueness challenges. ‘[directs] facts about the understandable commonly attention specific, provable, on his moral culpabili- defendant and the crime that bear might capital 382, 569, . .’ 4 Cal.4th (People Tuilaepa Cal.Rptr.2d . v. ty. [15 599, 1142]; see also Cal.4th 648-649 People Noguera P.2d 1160]; [1992)] 4 P.2d v. Proctor Cal.4th Cal.Rptr.2d [15 1100].) 842 P.2d Similar considerations 550-551 Cal.Rptr.2d (c) convictions), (d) (k), through to factor and to factors apply felony (prior which further channel the sentencer’s additional by identifying discretion offense and offender which about the [specific provable capital facts] (Montiel, to the determination.” state deems properly pertinent penalty omitted.) 5 Cal.4th at fn. *72 the about Finally, complains following portion jury death, “To of of must be instructions: return a each judgment you persuaded that are with the miti- the factors so substantial in comparison aggravating that factors it warrants death instead of life in without prison parole.” gating (Former 8.84.2.) CALJIC that the “so substan- No. Defendant asserts words tial” to an verdict. As the are and lead impermissibly vague arbitrary penalty out, v. Sully in People we the identical People point rejected argument 163], P.2d in 53 Cal.3d 1244-1245 Cal.Rptr. [283 which we the to the that adequately conveyed jury observed that instruction it in comparison must be that the “bad” evidence is so substantial persuaded evidence, (Id., with is the “good” penalty. p. death appropriate 1244.) No. conveyed jury Former CALJIC 8.84.2 to adequately its in and we determining seriousness of obligation appropriate penalty, find error in 53 Cal.3d at (Sully, supra, pp. no instruction. giving 1244-1245.)

(v) Written Factors Findings Aggravating to to Defendant contends the trial court erred by failing require jury render written on the factors it selected. We have findings aggravating no held that are not find findings accordingly, such repeatedly required, 209; Cox, 692.) (Turner, error. 8 Cal.4th at 53 Cal.3d at supra, supra, p. p. 7. Alleged Davenport Error

Defendant claims the that the ab prosecutor improperly implied 190.3, (e) (f) sence of evidence under section factors should mitigating (See be considered as evidence. aggravating Davenport 861].) Cal.3d 710 P.2d We find no error. 288-290 Cal.Rptr. no The told that there “was evidence” factor prosecutor simply jury evidence, (e), (f) and also that she could not recall factor any argued hearing but that if the heard it the evidence could be considered in jury mitigation. Moreover, instructed, was to defendant’s jury specifically pursuant that the “absence of factor is not to be request, any particular mitigation It treated as factor is followed any aggravation.” presumed jury (Turner, the court’s instruction. 8 Cal.4th at 190.3, (k) 8. Section Factor

Defendant that the court erred in his instruc complains rejecting tions discussing childhood and that were background, required aug 190.3, (k) ment the section factor instruction. We The disagree. jury could aware that it consider defendant’s childhood in under fully mitigation (k); factor it was further instructed that this factor allowed the jury consider or other of the defendant’s character or “any sympathetic aspect record that the defendant for In offers as a basis a sentence less than death.” addition, the was instructed that it was “free to whatever assign moral value deem and all of the various sympathetic you each appropriate death, factors” and that return a each of must be judgment you [t]o that the evidence is so substan persuaded and/or circumstances aggravating tial in with the circumstances that it warrants death comparison mitigating *73 instructions, the instead of life without These combined with argu parole.” defend ments of the it could consider as Ryals (informing jury mitigating character) (k) ant’s and and Frank that factor background (telling jury includes of that he of evidence defendant’s character or any background misunderstood fers), lead us to conclude there the that is no possibility its to consider defendant’s and character sentencing obligation background (See in the v. Webb 6 Cal.4th determining People appropriate penalty. Webb].) 534 Cal.Rptr.2d 862 P.2d 779] [hereafter

83 Review Proportionality 9. intercase proportion- of intracase and that the lack complains

Defendant under Califor- the scheme sentencing in this case renders ality review and in the Amendment law under arbitrary Eighth nia’s death penalty is afforded to because such review his protection rights violation of equal We the in numerous cases. have argument defendants. rejected noncapital Turner, (See Cal.4th supra, p. e.g., 190.4, (e) Motion

10. Section Subdivision error in the trial court committed Defendant contends prejudicial death sentence for modification of the his automatic motion denying 190.4, evidence of (e)) it to consider (§ mitigating subd. because failed 190.3, (§ to his siblings and kindness family defendant’s dysfunctional (k)). We are not factor persuaded. 190.3, (a)-(i), that several concluding section factors reviewing

After defendant, did (the court note factors did not mitigating apply statutory PCP murders pursuant that defendant have been on may high during (h)), factor the court “Are there other that mitigate asked: circumstances Moreover, [defendant], of I think not.” before against aggravation motion, modification court that it had considered stated denying both defendant’s motion to and the of response, reduce penalty People’s Thus, although which referred to court mitigating defendant’s evidence. did of his family not mention defendant’s evidence specifically mitigating life, 190.3, (k) statement evidence the court’s section factor shows regarding evidence, it all about testimony considered pertinent penalty phase including defendant’s life his behavior toward his but family siblings, merely found The the motion for it record is clear in on unpersuasive. ruling modification, trial evi- court assessed the independently weight factor, under each its defendant’s dence and stated reasons for denying (See Cal.Rptr.2d motion. Pinholster Cal.4th 971 [4 571].) P.2d We record all constitutional and conclude on this (Hawthorne, considerations in the were observed court’s statutory ruling. 80.)9 4 Cal.4th at brief, regarding 9In complains a footnote in his about court’s statement 190.3, (whether or (g) section factor not defendant acted under extreme duress substantial another) because on nature of the Tatman domination the court commented the brutal killing, killing Joey’s parents. by Joey Bocanegra mentioned that helped defendant was summarizing indicates the Defendant asserts that the court’s the evidence court “mistake” note, erroneously We perpetrator” believed defendant all three murders. was the “main *74 84

11. Cumulative Error combination, Defendant claims the errors at the penalty phase caused cumulative a reversal of After review warranting prejudice penalty. record, of the we misconduct that did occur did disagree. Any prosecutorial not influence the fairness of defendant’s trial or significantly detrimentally (Ashmus, affect the of the 54 supra, determination jury’s appropriate penalty. 1006.) Cal.3d at p.

12. Penalty Disproportionate

Defendant contends his death sentence to his is disproportionate I, under the Amendment and article section 17 of culpability Eighth Constitution, California which that is preclude punishment disproportionate (Webb, to a defendant’s 6 individual Cal.4th culpability. supra, Defendant a that the constitutional against complains proscription dispropor tionate has been violated in this case because his accom penalty especially in the received either 25 murders to life plices years pursuant negotiated (Robert or had the dismissed on insufficient evidence Reyes), plea charges grounds (Joey Bocanegra). 441, (1983)

Defendant relies on v. Dillon 34 Cal.3d 479 People [194 390, 697], 668 P.2d in which the reduced a life sentence Cal.Rptr. court on a with no convictions for a first imposed 17-year-old prior noncapital But, murder to a sentence for second as we murder. degree felony degree stated, have Dillon does not mandate the of intracase subsequently type review defendant. v. Hill 3 Cal.4th proportionality (People sought 959, Hill].) 1013 P.2d Cal.Rptr.2d [13 984] [hereafter observe,

As the intracase review is “an examina- proportionality tion of whether defendant’s death sentence is to his individual proportionate culpability irrespective (People on others.” punishment imposed 906], Adcox 47 Cal.3d 763 P.2d italics Cal.Rptr. [253 “The Amendment to the federal does not original.) Eighth Constitution us to into our determination require incorporate any proportionality compar- ison of defendant’s sentence with that of whether another culpable person, 1014; (Hill, v. Harris charged uncharged.” Pulley Cal.4th at p. 29, 42, (1984) 465 U.S. L.Ed.2d 104 S.Ct. [upholding 871] review].) California’s absence of comparative proportionality however, penalty court observed defendant could not receive the death for the Tatman murder, Joey persuaded Bocanegra and we are not that the court’s brief reference to revealed any Bocanegra confusion about defendant’s role in the murders.

85 for “intracase proportionality.” we defendant’s Accordingly, reject plea three first murders of degree evidence shows that he committed brutal The innocent defenseless victims as an accomplice, only thirty-three days from an he was from state on prison parole eight-year prison after released violent In of the evidence at term for two assaults. light presented imposed trial, (3 to Cal.4th at is proportionate culpability. p. penalty defendant’s 1014.)10

III. Conclusion Based on the we conclude should be affirmed in foregoing, judgment entirety. its

Kennard, J., Arabian, J., Baxter, J., J., J., concurred. George, Werdegar, MOSK, J. concur in the judgment. I

I write to on the separately prevent any of the reader misapprehension part (1987) as to the of People v. Hendricks 43 Cal.3d meaning 584 [238 66, 1350], 737 P.2d and the Cal.Rptr. (1987) v. 43 vitality People Wright 69, Cal.3d 487 P.2d Both Cal.Rptr. 729 Hendricks and Wright [233 260]. deal (1969) with the of Boykin v. Alabama U.S. 238 requirement 395 [23 1709], L.Ed.2d 89 S.Ct. and In re Tahl 1 Cal.3d 122 [81 that, 449], circumstances, 460 P.2d under Cal.Rptr. a trial specified court must obtain from a criminal defendant a on-the-record waiver personal, of certain of his under the United rights States his Constitution—namely, self-incrimination, trial, privilege against and his right confront adverse witnesses. Hendricks holds that those circum expressly stances obtain when the “only defendant to a agrees submission procedure . . . virtue of which he by surrenders one or more of the three specified Hendricks, rights.” v. (People 43 Cal.3d at It holds impliedly People 10The judicial ask that we take copy notice of a of the amicus curiae brief filed (CAP) Maynard Cartwright Appellate Project the California in v. U.S. 1853], L.Ed.2d sought S.Ct. Defendant notice of the records filed in the Court of People Reyes (F016750, Appeal app. pending). People The claim the CAP brief is relevant to defendant’s contention that penalty the California death statute does not ade quately eligible narrow the field of They death “represents murders. assert the brief opinion records, Reyes penalty the California death experts contrary.” As to the they contends are relevant to his claims prosecutorial dispro misconduct and portionate penalty, and he observes that refer to these records in their brief. We grant request brief, Appellate as to the Califomiat Project deny request as to the but stated, ante, Reyes appellate record for the reasons pages 59-60. footnote *76 that the must court take waiver as to the only rights actually earlier, To surrendered. the extent that which Wright, was decided is to the it is no contrary, good law. longer 21, 1996, for a petition was denied

Appellant’s rehearing February Mosk, J., Kennard, J., was modified to read opinion as above. printed were of the that the opinion should be petition granted. ant notes especially Moreover, defend on of insufficient evidence. would rest solely ground claims, defense to “rebuttal” he limited his ant Toton never explained to the witnesses. The lack of as explanation procedural aspects any asserts, defendant the case on the hearing transcripts, submitting preliminary renders his waiver and submission void. As to defendant’s that he was unaware of the ramifications legal claims conviction, waiver, we conclude his submission and and the probability in of defendant’s reservation of his no such advisement was required light in evidence and to contest his alleged guilt additional right present observe, Bunnell, to the court. As the 13 Cal.3d argument that a defendant be advised of the that his submission requires probability will not result a conviction of the offenses does only “[i]f reserve the additional evidence and does not advise the court present (Id., that he will contest his to the court. . . .” guilt argument