*1 Aug. Crim. No. 23362. S004569. 1989.] [No. PEOPLE, Plaintiff and Respondent,
THE CARRERA, Defendant and Appellant. CONSTANTINO *9 Counsel B. Bedrick
Stephen and Doris Brin Walker for Defendant and Appellant. General, White, John K. Van Attorney de Kamp, Steve Chief Assistant General, Attorney Jane N. Kirkland and Edmund D. McMurray, Deputy General, Attorneys for Plaintiff and Respondent.
Opinion ARGUELLES, J.*Defendant Constantino Carrera was with the charged Code, first murder degree (Pen. 187) and robbery (§211) of Carol and § Jack Hayes. Special 190.2, felony circumstances of murder-robbery (§ subd. 190.2, (a)(17)(i)) and multiple (§ murder (a)(3)) subd. were alleged. Defend ant was convicted on the two counts of first degree murder and on the count, robbery and both special circumstances were found to be true. The jury fixed the at death. penalty This is appeal (§ automatic. (b).) subd. We affirm.
FACTS 8, 1982, On the morning of April the bodies of Hayes, Jack and Carol managers California, Imperial Motel in Mojave, were discovered on the floor of their living quarters adjoining They motel office. had been stabbed to death. Carol Hayes fully dressed and had been stabbed 20 to 30 times. Hayes Jack only was clad in a undershorts; T-shirt and his body wounds, had 14 large stab including one to the head where a knife had broken off at the surface of the skull a 3-inch leaving portion embedded inside. Circumstantial testimony evidence—including of one motel guest who had spoken Hayes to Jack between 9 and 9:30 p.m. prior evening Hayes that Carol generally handled the motel office duties before but not after 10 while Jack p.m., took a nap—indicated was killed on couple 7 sometime April between 9 and 10 p.m. records, $238 from Judging the motel approximately was missing from the office receipts.
The attention of police investigators was soon drawn to defendant and Ramiro Ruiz Gonzales (Ruiz), who were arrested without a warrant on * Retired Supreme sitting assignment by Associate Justice of the Court under the Chair person of the Judicial Council. 1 statutory All further references are to the Penal Code unless otherwise indicated. their they saw two flee after might police fearing April intimate, a detec- company in the (Teresa), F. Teresa mutual friend Jack robbery of with murder and charging A complaint tive. *10 murder-robbery multiple-murder and felony Hayes, Carol and with and circumstances, days later. That filed court two in municipal was special afternoon, friends were allowed family members and certain of defendant’s visitors, in these conversations with His county jail. him at the to visit statements, secretly were arguably incriminating several which made morning.2 following arraigned recorded. Defendant was monitored and trial, robbery to endeavored show At the prosecution defendant’s Ruiz, defendant as by and painting and murders were committed defendant or, under theories of alternatively, as at least an accomplice the main actor murder-robbery. The to felony attempted murder defense intentional and Teresa, characterizing de- for the crimes on Ruiz and place responsibility destruc- accessory who had assisted the as at most an after fact fendant to his friends detection.3 tion of evidence help escape Guilt Phase Evidence into five discrete largely categories: (1) evidence at trial fell pivotal at
testimony and was regarding present from defendant others who of 9 10 p.m. April from a between the critical hours and on gathering absent Teresa, who, 7, 1982; and from Mike Santana (2) testimony (Santana) fact, immunity as under charged grants accessories after the testified defendant; testimony (3) regarding from statements made prosecution witnesses, at inmate had been incarcerated with defendant two who murders; county jail, (4) physi- his statements to them about the regarding evidence, bloody motel and items of including clothing cal shoe at the prints burn, to tending that defendant and Ruiz had link defendant attempted murders; and with jailhouse defendant’s conversations his visitors and letters friends. accounts, By years Events 1982. all old April (20 early Ruiz Santana
time) (age 17) afternoon of with spent April well, his Efrain Carrera as (age 19), possibly younger with brother Santana, marijuana. beer and Ruiz and defendant each drinking smoking 2 joint preliminary exami Defendant and Ruiz were held to answer at the conclusion of a police An substan nation that rested on the of six officers and Teresa. information tially charges reiterating complaint superior was filed in court. later 3Ruiz, crime, aged tried was 17 at the time of the first and convicted all counts. He adult, subject allegations special but circumstance and was sen was tried an was not life, years twenty-five possibility parole. The tenced to two consecutive terms of with the Cal.App.3d appeal. (People conviction was affirmed on Gonzales Cal.Rptr. 732].) Early took a small amount of LSD as well. (acid) evening, joined sister, of friends at the house of Santana’s older Carmen Santana group Valadez. the others in addition to Car- Among present during evening, men, old, 14), Sherry were Teresa Tina and H. and 14 (age (12 years Nunez, and Maria Carrera defendant’s older sister. Patience respectively), latecomer, S. (age 15) shortly was a before defendant and Ruiz left arriving with a few of the others. gathering Ruiz, With the all of these exception testified to defendant’s move- Sherry ments. H. saw defendant and Ruiz leave the around 9 party p.m. return around 10. Her younger similarly sister Tina testified that defendant *11 Ruiz and left the around 8:30 or and returned 10. party about 9 or Patience S. boyfriend, testified that she and her on their way to Carmen’s house, drove defendant and Ruiz toward the house at 10 to past walking 10:30. Teresa saw defendant and Ruiz leave the 10. between 9 and She party return, did not see their as she was inside the house at the time. Santana testified that defendant and Ruiz left the at 9 or 9:30 and returned a party later. half-hour Defendant’s brother Efrain offered the first variation from scenario, this that Ruiz left the alone about 8:30 testifying party and that defendant left with Tina H. about 15 minutes later. Defendant and Tina allegedly returned to Carmen’s house later that Ruiz evening, and came alone, yet, back later still 10:30 about or 11. Defendant’s sister Maria and Santana’s sister Carmen did not anyone see come or that go evening. witnesses, story
Defendant’s varied subtly from that of the other not so much the various events as in when those events took to place. According him, Teresa, H., Tina Sherry and and did not even arrive at Carmen’s house until 9 after the arrival time each p.m.—well of them had estimated. He and Tina went to his sister Maria’s house about 9:30 to around a little “mess[] witnesses, while”—an episode mentioned Tina herself or other sister, afternoon, for defendant’s except who the event earlier in the placed and his brother Efrain. Ruiz and Teresa left Carmen’s house about allegedly 10 to out go to Ruiz’s car and came back in the house 30 to 45 minutes later, Santana, at which time hysterically. Teresa was crying According Teresa had remained in the house this and during Teresa testified period, that she had with Ruiz to his car much earlier in gone Defend- evening. ant leaving admitted the house with Ruiz that but evening, testified that he only battery did so find a for car Ruiz help only Ruiz’s and after and absence, Teresa had returned from their own and that he and Ruiz met Patience S. and her boyfriend way while on the back from this errand.
The bulk of this Ruiz from the placed away defendant and the time that Jack and Carol killed. gathering during Hayes were probably party Santana at the Teresa and similarly tended to place The evidence that throughout period. testified, as did de- and Testimony. Teresa Santana
Immunized Witness fendant, H., left house the six them Carmen’s Sherry Tina and boyfriend. Teresa S.’s start from Patience in Ruiz’s car after getting jump area car a deserted Ruiz stopped Santana also testified that both out, defendant, and that later, got Santana Ruiz and little while that, after also said clothes. The two changed and Ruiz their defendant home, at a Ruiz the car Sherry stopped H. at their off Tina and dropping store. liquor store, she and Ruiz went into the while
Teresa testified that Santana time, told her what car. At this defendant remained outside up that he had “messed Defendant first told her evening. had happened he and life” Defendant said his whole and that “had stabbed someone.” money that was owed get had 400 Motel some gone Imperial Ruiz Ruiz, at the Ruiz formerly who had worked there. stabbed woman he saw he cut on the arm when many times; defendant said that her motel that the man came out something. Defendant also told her reaching her *12 came hit in the head.” and Ruiz then they “and him with scissors Santana store, Santana the car the the four to a motel. When back to from and drove rooms, told that “a Ruiz left the car to rent defendant Teresa again and neck, at rooms rented lady’s knife broke off in the in the throat.” Two were rooms; and Santana in one the spent night this motel. Defendant the of Ruiz and Teresa shared other. San- from Teresa’s. testimony According
Santana’s differed somewhat tana, in Ruiz went while he remained liquor defendant and into store however, car He Ruiz rented the motel agreed, with Teresa. he and remained car. testified rooms while defendant and Teresa in the Santana him 400 Motel while told about the events the Imperial and they they told Santana that he were the room shared. Defendant lady Ruiz to rob it and that Ruiz a couple went the motel stabbed cut she for the times. Defendant said he her once on wrist when reached Ruiz then then froze while Ruiz continued to stab her. telephone The man into a the man was and stabbed him. sleeping walked room where Ruiz, him until he fell down. and hit but Ruiz continued stab got up “the stabbing Santana that Ruiz the people, Defendant also told while Santana bigger knife broke he went inside the kitchen and knife.” got $100 and more than further testified that he saw defendant Ruiz divide on it. money that some had blood specks Ruiz, the into store with liquor conflict over who went Despite main Defendant points. and Santana coincided on three Teresa Motel, and Ruiz to rob the defendant cut planned Imperial Carol arm Hayes on the when she reached for and both victims were something, events, many stabbed times. Defendant’s account of the to both according Santana, consistently Teresa and placed greater portion responsibility for the murders on Ruiz. Jones, Inmate Testimony. county Julius a trustee inmate at the Informant there,
jail while defendant was during incarcerated testified the prosecu- tion’s case-in-chief that defendant had often talked himto about the mur- first, at the involved; ders Motel. At defendant denied Imperial being later, he, defendant told Ruiz Jones and Ruiz’s were in- girlfriend volved. The had girl waited outside the car while defendant and Ruiz motel, They only went inside. had meant to rob the but it ended as a up murder. lady Defendant said that the reached for the and he telephone off, her hand cut her hand off.” The man had tried “chopped help his cornered, wife and defend himself but Ruiz him had and defendant and Ruiz went on and killed him. witness,
A further inmate Hill (also Thomas known as Thomas Morse), testified rebuttal for the Hill prosecution. said that defendant told him about the at the 400 Motel. killings Imperial get Defendant had tried to him to read some Hill legal but had not done so and defendant papers, had him finally told about the case. Defendant and “another whose name guy” R” “started with an had to rob the planned They left a but the place. party, guy’s they other car would not start and a ride got from another place friend, “this Mike Santana.” guy, They stabbed the woman and the man. chest, broke, “When stabbed the man in the the knife and . . . [defend- kitchen, ran got into the another knife and came him in back and stuck ant] *13 the head . . . .” Defendant denied talked Hill him having offering or a of a copy transcript read. Defendant testified that he had two transcripts and a in cell Hill police his and that would often remain in the cell report when defendant would out in the Hill go yard. any denied read having that defendant in cell. legal papers had his
Although the inmates’ varied in some Hill respects, and that of in inability was of his to recall name perhaps questionable light Ruiz’s while that of the minor character Mike remembering guy, “this Santana” without difficulty, each inmate a number reported of details consistent with the testimony of other witnesses in the case. Each receiving being denied or offered inducements for testifying.
Physical Evidence. What clothing the actors in these events were principal shoes, wearing, and what role in particular played large this case. Two of shoe had been separate types prints found the blood on the floors at the determined be of Cornet typical a herringbone motel. One was pattern Trax brand matching a rectangular pattern brand shoes. other tennis shoes. defendant, witnesses, him in cor- gray pants, probably including put
All H., Levi’s, Patience S. evening. at of the Tina duroy the start and possibly Santana, others, that a blood they testified saw and Teresa and including house leaving Ruiz Carmen’s when he and were on defendant’s spot pants Santana, Tina, and Teresa defend- evening. According the end the smaller after type gray pants ant into or different changed green had out of the agreed that he gotten left Carmen’s house. Defendant group changing a short but denied his during car Ruiz and Santana stop, with Teresa, Trax brand gray Santana and Patience put clothes. had him into changing and and Santana originally, tennis shoes Teresa Defendant, his brother he his and changed pants. black dress shoes when sister, blue tennis and testified he was his brother’s Nike shoes wearing orange stripes. with defendant, witnesses, Teresa in Bon
The various with the exception put and throughout evening. Jour white Trax brand tennis shoes jeans jeans into Levi’s and white or Defendant testified that she blue changed slightly returning darker tennis shoes with blue after to Carmen’s stripes Ruiz. Ruiz in tennis house with The witnesses blue and tan shoes put pants changed at the Teresa Santana testified that Ruiz from his tennis start. and agreed shoes into black while the car was Defendant stopped.4 slippers shoes, Ruiz changed pants, had his and he testified that saw a pair earlier, jeans he said had been and presumably wearing Teresa Teresa’s in the trunk of the car. tennis shoes day the desert Ruiz Santana the going
Defendant admitted into with He they after the murders to burn some shoes and testified that clothing. changed of brown shoes Ruiz had out of the pair night burned tennis before, Levi’s tennis with blue grayish blue and white shoes Teresa burned wearing. had been Santana testified that stripes corduroy that defendant had jacket, pants, gray Trax tennis shoes been wearing.
At desert site where defendant had Ruiz burn the various helped the items, from detectives found a small tab and Levi Strauss button a zipper coat, a Two soles had a or and four burned shoe soles. pair pants 4 during stop. pants changed pants pair Ruiz his the A seized Santana also testified that splattered samples from apartment from after his arrest blood. Blood Jack Ruiz’s were with five, Ruiz, Hayes, those blood on Teresa and defendant were examined. Of the the Carol only Hayes. pants have come from Carol could rectangular had a Trax brand herringbone pattern Cornet brand two the matched in size and herringbone pattern The burned soles with pattern. color, shoes, day in that Ruiz after style purchased a of new brown pair the rectan- uncertainty the murders. Greater over soles with developed or Trax and whether could have been worn defendant gular pattern Teresa. in 5 in boy’s
Teresa testified that she wore Trax tennis shoes a size April trial; the time of boy’s 1982. A of Trax in a size was too for her at pair big him, that the same felt too small for but that he pair defendant testified testified, measuring could wear them. An after Teresa’s probably expert feet, boy’s that she could wear a size or which would be the equiva 4½ Defendant, hand, wear a girl’s lent of a size or on the other would 6½. 6½; boy’s size a size 6 did not fit him an in-court girl’s during experiment. in number The Trax soles found the remains of the fire to have the proved however, layers “6” inside of the sole. The did not know investigator, police if the number referred to a size 6 a size 6. The best girl’s boy’s or preserved sole, in the two soles measured 9½inches but length, part perhaps inch, as much half an was burned off. The witness testified that the expert in inches in girl’s sole of a Keds brand shoe size measured 9½ jogging each a sixth of length. As the also testified that half size accounts for expert an inch in a 10-inch to a or length, girl’s sole would size 7½ correspond defendant, Teresa, boy’s size which but not wear. The sole of a might exhibit, however, boy’s Trax in a as a shoe size submitted prosecution 1 and a 10-inch sole length, to measure 0½inches proved approximately boy’s then size size correspond girl’s that brand would 4½ Teresa, defendant, wear. which but not could evidence, This that Cornet brand tennis shoes had especially showing burned, crime, been involvement in the but was strongly Ruiz’s supported defendant, only less conclusive as to defendant. Given that and his brother sister, had him Nike tennis shoes and that all other witnesses wearing shoes, he Trax brand the burned Trax shoe soles wearing testified was tennis murders, link the Levi button and tended to defendant to as did Strauss that the latter items were attempt suggest tab.5 Defendant’s zipper testimony had her jeans internally from Teresa’s inconsistent since his bloody burned into Levi’s changing pair pants supposedly from jeans. 14, 1982, Jailhouse of April Conversations. On the afternoon Defendant’s to have several day arraigned, before he was was allowed 5 directly fire linked more with None of the other items found residue could be defendant. *15 Maria, Armando, father, his sister his brother his visitors—including them in allowed to see county and was jail Carmen—at the Santana’s sister time, jail usual practice. as was the more rather than two at a a group were secretly recorded conversations of these transcript Portions of the into evidence. introduced conversations, of the but charges his innocence
In the defendant asserted Carmen, He asked incriminating statements. arguably also made several H., Santana, Sherry not to and Tina and that his visitors ask and requested they and sister stories could him. to his brother testify suggested He against thus discredit from acid and hallucinating tell to that Teresa was suggest her chil- babysitting that he was say He asked his sister to testimony. her that and that evening, that he did not out night go dren on the of April did, he testify, her as she was Ruiz went out alone. He also asked to and talked to his brother evening, Efrain’s Nike tennis shoes wearing different shoe sizes. He directed his brother about his and Efrain’s him this burned and asked to collect partially clothing location He that Ruiz complained evidence and it in a mine shaft the desert. dump tennis shoes that had had messed Cornet everything up purchasing new and, the same as the old ones when told the had seized footprint police he Ruiz had them. thought Ruiz’s said burned pants, H., S., jail, While in several letters to Patience Tina wrote Sherry H. and Ruiz’s from a few of these let- girlfriend. Excerpts former “snitches,” to back him about ters—asking recipients up, complaining that he and Ruiz would be creek” if Teresa and worrying “up [the] Santana testified—were read the jury.
Defendant’s conversations and letters cast doubt on the credi- significant bility gone of the few witnesses who testified that defendant was not from that he at Carmen’s house between 9 and gathering p.m. April they evening, was not Trax brand tennis shoes that wearing gray he clothing wearing. could not remember his movements or what Penalty Phase Evidence called additional witnesses at the penalty phase two prosecution Hahnenkratt, Dorothy Hayes,
the trial. the mother of Carol testified that see, told Hayes both Jack and Carol needed to wear that she had glasses Carol, money or whatev- robbery, give if there was ever a the robbers wanted, confronta- always er and that her avoided daughter physical witnesses, Jones, inmate testified tion and never Julius one of the quarreled. telling overheard defendant guilt that after his at the he phase, three man got prison trustee inmates that Jones was dead when *16 him brought would kill him. He said that these inmates later
that defendant defendant’s message. evidence of defendant’s behavior and defense extensive presented mari- use. Defendant’s sister Maria testified she had seen him smoke
drug day all three the murders. juana, drink and take acid. He had used on the day. cousin testified slurring He was drunk and his words that Defendant’s that he seen defendant take and that when he took “reds” and drugs had “yellows” he act wild and nervous. Defendant testified he had would cocaine, alcohol, . . . (a “crank” substance “like cocaine marijuana, used experienced kind of like a PCP and heroin. He claimed that he had speed”), acid, taking flashbacks from but did not effect on point particular indeed, and, day in had testified at the that he had not question guilt phase day been the acid he took the of the murders. affected had Defendant’s mother testified that he was her eldest son and that she him a no with when he was school. Defendant’s father was problems sober, her and man when he was but would become violent and beat good the children he drunk. She divorced him in and defendant got when her, always had since lived with his father. Defendant had been respectful her, had never hurt and she had never seen him or exhibit violent fight behavior.
A taking testified for the defense on the effects of psychopharmacologist LSD, and the cumulative effect of LSD taking marijuana on on top alcohol He indicated that the effects of the LSD could be intensified usage. by use of the other a be might substances and that that state person influenced to com- subject “hypersuggestability,” capable being easily robbery mit a he would not otherwise commit. He further testified that such overly become and commence a victim person might aggressive stabbing without to a threat. The witness thinking, impulsively responding perceived cross-examination, however, also that the effects of the acknowledged difficult tend to an drugs respect would be to assess and that would had, occasion, had subjective given individual’s evaluation that LSD on a no effect.
Finally, the defense that defend- challenged allegation prosecution’s ant had threatened inmate witness Jones. The three trustee inmates to hav- whom defendant had communicated the threat each denied allegedly made ing day allegedly conversation with defendant on the the threat was and denied told a threat or it on to Jones. Defendant being such passing *17 testified that he had been returned a different cell than block Jones after of the trial and thus could not have made the threat.6 guilt phase
DISCUSSION Guilt Phase Issues error,
Defendant 12 raises some with allegations subsidiary arguments, out, guilt at the As phase. we shall his contentions for the most point part any lack merit. And where error it must be viewed as harmless. appears, 1. Aiding and Abetting Instructions. Defendant contends that the jury was not instructed properly under v. Beeman 35 People (1984) Cal.3d 547 674 P.2d Cal.Rptr. and v. Caldwell 36 People (1984) [199 1318] Cal.3d 681 P.2d an Cal.Rptr. 274], that aider and alleged abettor must have and act with his own “intent or either of com purpose of, or of mitting, encouraging commission facilitating (Bee- offense” man, supra, p. 560), addition to the criminal knowing pur error, of the actual pose perpetrator.7 concede but People contend that the error was not in the prejudicial circumstances of this case. We agree. events,
Under defendant’s version of the he was not present at the Imperi 7, 1982, al 400 Motel on April took no in the part He claimed killings. only his in the participation lay crimes in assisting with the destruction of evidence the day after the killings. Defendant jury contends the could have believed his testimony and still have convicted him robbery, of murder and that he finding had acted with of the knowledge unlawful of the purpose of the perpetrator crimes and that his actions had aided the commission of offenses, (1) because no instruction was on given liability his potential fact, under section 32 accessory as an after the and (2) jury was instruct ed under CALJIC No. 4.51 that “if the evidence beyond establishes reasonable doubt that the defendant aided and abetted the commission of case, fact, fact, the offense charged in this if it ais that he was not at the time present place commission of the alleged offense ... is 6 A deputy sheriff testified that defendant had been transferred to a different cell block from guilt phase that of Jones after the computer but that changed records had not been promptly possible and it was that defendant had been returned to the same upon cell block his return from court. jury given general 7The (all to, jury instructions CALJIC instructions referred noted, unless otherwise 1979) are from the liability—CALJIC 4th ed. aider and abettor Caldwell, (1981 rev.) No. 3.00 (1980 rev.)—found and CALJIC 3.01 No. supra, deficient in 223-224, Beeman, pages 560-561, 36 Cal.3d at pages respectively, 35 Cal.3d at failing require jury to find that an aider and abettor had his own criminal intent. That same present specific defect was in the 8.27—given instruction—CALJIC No. as to the liabil ity degree felony of an aider and murder-robbery. abettor for first not, itself, immaterial and does in and of entitle him an acquittal.” (Cf. v. Croy 41 Cal.3d 15 fn.& 9 710 P.2d Cal.Rptr. Defendant’s failure to an request instruction on the elements of accessory after the fact to murder would bar direct challenge verdicts on the ground that such an instruction given was not v. Hall (People Cal.App.3d duty to instruct sua sponte 289] [no *18 on lesser offenses]; 510, related see Geiger v. People (1984) 35 Cal.3d 530 45, 1303, 674 Cal.Rptr. P.2d 50 A.L.R.4th 1055]), [199 defendant has contends, to mount such a attempted however, here. He challenge the absence of such an instruction precludes us from finding the Beeman error harmless on the rationale that the jury must have rejected defendant’s alibi 92, defense. v. (Cf. Leach 41 People (1985) 105-106 [221 826, Cal.Rptr. 893]; 314, 710 P.2d v. People Johnson (1986) 183 Cal.App.3d 322 Cal.Rptr. 917].) Not so. [227 if, Beeman error must be viewed as harmless under other proper
instructions, jury the necessarily determined that defendant acted with the requisite intent to aid the commission of the crimes. {Crop, 41 Cal.3d supra, 13; at v. p. 703, Sedeno People (1974) 1, 10 Cal.3d 721 518 Cal.Rptr. [112 out, P.2d 913].) As the the People point jury was instructed that find the special circumstance felony true, find, murder-robbery to be it must inter alia, killer, that defendant . . not the actual . . . intentionally aided “[i]f. ... or assisted the actual killer in the commission of the murder in the first degree” and that “the murder was committed in carry order to out or advance the commission of the crime of robbery.” The assert that People jury’s finding on the special circumstance under these instructions dem onstrates that jury necessarily determined defendant intended to aid and abet the underlying robbery. v. Gonzales (People (1986) 192 Cal.App.3d 799, 806-808 Cal.Rptr. 554].) [238
Defendant’s argument contrary on the hinges proposition special circumstance instructions still left open possibility that jury could have based its decision on a finding an committed intentional act that the robbery aided necessarily without finding that de- fendant had the is, intent to bring about the crime. That he argues that although jury found he “intentionally aided” the commission of first murder, degree the predicate finding first degree murder could itself have been based felony on the murder-robbery decision, theory. The jury’s asserts, thus does not compel jury conclusion that the found he intend- ed, Beeman, 597, within the meaning 35 Cal.3d supra, to aid the commis- sion of the (See crime. Crop, 41 supra, Cal.3d at 11-12 & fn. pp. 5.)
311
45
754 P.2d
Cal.Rptr.
In
v. Warren
Cal.3d 471
People
read the
218],
rejected
juror
we
that a reasonable
would
possibility
(id.
circumstance instruction in such a
manner”
at
“hypertechnical
special
advised a
jury
and we concluded that
instruction
p. 488),
adequately
the need to find that an aider and abettor had the intent to kill before the
felony-murder and
circumstances could be found
multiple-murder special
(Id.
487-488;
to be true.
but see id. at
490
p.
opn. Arguelles,
pp.
[conc.
Beeman,
35
J.];
560-561.)
Cal.3d at
Our conclusion there that the
pp.
instruction was
the conclusion here that the
neces
adequate compels
jury
sarily rejected defendant’s version of the events and that the Beeman error
beyond
v.
accordingly
(See
harmless
reasonable doubt.
Chapman
705, 710-711,
U.S.
L.Ed.2d
87 S.Ct.
California
1065];
Dyer
A.L.R.3d
(1988) Cal.3d
2. Failure to Jury Unanimity Give Instruction. Defendant next alone, challenges robbery conviction seeking of the Bee independently *19 man error to set aside his convictions felony murder-robbery by con tending the trial court erred to instruct the CAL failing jury under JIC No. 17.01 that it had to agree unanimously on the act or acts consti Defendant tuting the crime underlying robbery. of charged victims, was with one count of robbery of two asserts the instruction was to avoid the required possibility jurors that some have may found him guilty of one of the robbing victims and the rest guilty of robbing the other.8
By involved, asserting that acts were multiple defendant incorrectly as- sumes that the critical is question whether one or two robberies was com-
mitted. But here Jack and
Hayes
Carol
were the joint custodians of the
motel receipts, and the funds were taken from the immediate
of
presence
both of them by force or violence as to both.
two
Although
counts of
robbery
553,
could have been
v.
charged (People Ramos
30 Cal.3d
(1982)
266,
Cal.Rptr.
908],
639 P.2d
revd. on other grounds sub nom.
[180
v.
1171,
Ramos (1983)
3. Instruction on Others. Defendant Nonprosecution of why 2.11.5 not to consider jury was instructed under CALJIC No. were not for the crimes.9 He contends that persons being prosecuted other Teresa, he, not was Ruiz’s ac this instruction undercut his defense—that jury evaluating that the instruction from complice—and prevented Santana, bias of Teresa and of both of whom testified under grants immunity from prosecution.10 have mother given. instruction should not been Two witnesses—a that, they watching testified while were a Little daughter—had League
baseball Teresa to them that she game Mojave, admitted committed crimes and that defendant for her. The and her two covering daughter substantially testified to a set identical admissions second stepsisters day Mojave made Teresa later that while were playing park. jury Defendant contends the have understood the instruction to might Teresa, defendant, mean that it should not consider the *20 addition, testimony In alleged committed the crimes. as to Teresa’s testimony admissions and the of the inmate witnesses that Santana drove defendant and Ruiz to the and acted a lookout also suggested motel as immunity to Teresa and Santana have exonerated them grants might from But the have understood the charges. jury might murder potential instruction to it from whether this Teresa or preclude considering gave favorably Santana a incentive strong testify (See to prosecution. 746, 257, v. Garrison 47 Cal.3d 779-780 765 People (1989) Cal.Rptr. [254 instruction, given, provides: indicating 9The “There has been evidence in this case that a may person than the have been involved in the crime for which the other defendant was or any why give is on trial. You must not discuss or consideration as to other [¶] person being prosecuted prosecut is not in this trial or whether he or she has been or will be specifically provide: The not be used ed.” use notes for the instruction “This instruction is prosecution person if the other is a witness for either the or the defense." This admonition 874, (People (1988) Rptr v. should be heeded. Marks 45 Cal.3d 1346-1347 Cal. [248 260].) 756 P.2d 10 giving problem There would have been no in here had the trial court instruction why being application prosecuted modified it to limit Ruiz and in defend its was jury unspecified ant’s trial. Even an instruction that the consider whether some should not prosecuted problem “he" would be have created the as the clear reference to would not same by given. Teresa occasioned the use of “he or she” in the instruction as
313 1268, 1312-1313 45 v. Cal.3d (1988) Williams 419]; People P.2d [248 834, 756 P.2d 221].) Cal.Rptr. the instruction misunderstanding appears such a
The potential minimal, however, harm- accordingly the instruction giving and the error 1.01 “to consider all the The under CALJIC No. jury less. was instructed of all the oth- light a and ... each regard instructions as whole of CALJIC No. language . . also instructed in the jurors ers. were believability you of a witness determining 2.20 (1980 rev.) “[i]n or may tendency prove disprove consider that has a reason anything witness, .. . exis- including the truthfulness of the [t]he bias, interest, a or other motive tence or nonexistence of [and] [e]vidence . .” by the witness . . the existence or nonexistence of fact testified to 2.11.5, Rather than “countermanded” or “nullified” CALJIC No. being 2.20, instructions as defendant CALJIC No. considered with other posits, Garrison, delivered a correct of the law. 47 given,11 (See interpretation 780; Cal.3d at v. (1988) Silva p. People Cal.Rptr. [247 573, 754 P.2d a beyond Whether we a “harmless apply Chapman reasonable doubt” standard 386 U.S. at L.Ed.2d (Chapman, supra, p. [17 to confront pp. affecting right defendant’s witnesses 710-711] [error defense]) merely reasonably seek to determine if it is present probable result more favorable to defendant have been reached had CALJIC would 2.11.5 No. not been Watson 46 Cal.2d given (People P.2d jury’s evaluation of witness defend- affecting credibility]), 243] [error ant cannot have been prejudiced.
4. Flight jury Instruction on as Evidence Guilt. The instructed under CALJIC 2.52 flight may No. after crime be considered as evi dence of guilt. Relying v. Parrish People Cal.App.3d 118], 946-948 and a line of cases back to Cal.Rptr. running v. Anjell (1979) 100 Cal.App.3d 669], 199-202 defend ant asserts that the instruction should not have been because he given denied in the crimes and an alibi defense. participation proffered
Defendant’s reliance on these cases is and the CAL- misplaced, giving of JIC No. 2.52 v. (See Cowger (1988) was not error. also 202 People 1066, Cal.App.3d 1073-1076 The Cal.Rptr. 240].) instruction was not [249 11 3.10, 3.11, 3.12, 3.14, jury given (CALJIC was also a series of instructions Nos. 3.18 3.19) testimony accomplices requirements and the accomplice on of and corroboration testimony, might independently operated jury evaluating which have to aid the in the testi Moreover, mony prosecutor suggest arguments of Teresa and Santana. the even did not in his two, jury grants immunity credibility assessing that the could not consider the of the of the strenuously jury argued question and defense counsel that the should Teresa’s and Santana’s testimony on this score. 314 crime, an flight
directed at immediate after but at defendant’s later escape county jail.12 jail being charged from the His from after arrested and escape with the crimes was admissible as of properly indicating guilt. consciousness 547, v. Holt 37 Cal.3d 455 (People (1984) 690 P.2d Cal.Rptr. [208 it have been had the court 1207].) Although would trial deleted preferable “immediately reference the after flight instruction the commission of a jury only crime” and the after defendant was flight instructed crime,” “accused the the argument jury of made clear to that prosecutor’s only jail by defendant’s from was this instruction. escape implicated
5. WitnessInstruction. Defendant next the failure of challenges Informant the sua jury testimony trial court to instruct the of infor- sponte mants, caution, that like of should be viewed with accomplices, care that, and with under distrust. v. Alcala Although conceding 36 1126], testimony Cal.3d P.2d of infor- Cal.Rptr. not subject mants is to the same as that requirements corroboration accomplices, cautionary contends instructions giving as to and the accomplice testimony13 give failure to such instructions as to testimony informant the jury to infer that the permitted highly damaging testimony of inmate informant in this witnesses case was entitled to greater relatively credence than the more Teresa testimony favorable Santana.14
In v. People Hovey (1988) 565-566 Cal.Rptr. rationale, 776], P.2d on Alcala’s we that there relying concluded was sponte duty cautionary no sua to give instructions on informant testi are mony. We rule persuaded any different is warranted simply because such instructions were as to properly given testimony. accomplice
Moreover, the jury fully credibility was instructed here of wit- generally, nesses and with CALJIC 2.23 (Credibility No. of Witnesses— Conviction It Felony), specifically. reasonably is not a result probable 12 apparently advantage escape planned jail Defendant took of an other inmates to es cape recaptured jail, himself. He was in short order from five blocks and used no force attempt and made no to resist or run. 13 light testimony purporting In to link Teresa and Santana to the commission of the accomplices crimes, jury properly given credibility definition instructions on the (Pe ople 298]), Gordon Cal.3d 460 including 516 P.2d CALJIC 3.18: accomplice ought No. “The of an to be viewed distrust. This with you may arbitrarily testimony, does disregard you give not mean such but should to it weight you examining which find it to be entitled after it with care and caution and light of all evidence in the case.” 14 *22 credibility may That the relative significant of the two sets of have been in this witnesses deliberations, by jury’s request, shortly case is demonstrated into its for reinstruction on Beeman, testimony (Cf. 547.) accomplices. p. felons and 35 Cal.3d at more favorable to in- cautionary defendant would have been reached had been given. structions 46 Cal.2d at (Watson, supra, p. 836.) 6. Prosecutorial objections Misconduct. Defendant raises a series of prosecutor’s conduct in this case and the trial separately complains (a) court’s failure to restrain the prosecutor, (b) by limitations the court placed Santana, on the defense cross-examination of (c) admission of hearsay evidence from Santana’s younger brother. framed Although defendant as separate issues on appeal, whether the trial court erred on those other mainly is relevant points determination whether defend- ant’s failure object to the prosecutor’s actions bars him from assigning such, them as error on this As appeal. the contentions are sufficiently interrelated to warrant consideration under the general rubric of prosecuto- rial misconduct. A. Use Tainted Testimony. objection Defendant’s first is that
the prosecutor presented testimony from Santana that contradicted testimo ny the same prosecutor had elicited from Santana at the trial of separate Ruiz a few weeks before. Defendant asserts that Santana’s testimony was false on at least one of the occasions and that his conviction cannot stand due to the attendant corruption of the fact-finding process.15
As noted previously, Santana with (along Teresa) was one of the prosecu- tion’s main witnesses. He provided testimony critical on defendant’s where- abouts the night of the killings, on defendant’s clothing changes clothing that and on evening, defendant’s statements to him of what tran- spired at the Imperial however, 400 Motel. On a few points, Santana’s testimony at defendant’s trial arguably differed from testimony he gave at Ruiz’s trial. trial,
At Ruiz’s Santana testified that Ruiz told him about the at killings; trial, defendant’s Santana testified that defendant told him about the kill- ings. Defendant does not make much of this and in fact discrepancy, there may be no conflict. Santana also testified at defendant’s trial that Ruiz went back and forth between the motel room that Santana shared with defendant Teresa, and the one Ruiz shared with and both Ruiz and may different times have told Santana what earlier that happened evening. Sup- porting this is the interpretation fact that Santana also testified at Ruiz’s trial that defendant was in the room while Ruiz told him what happened, while he testified at defendant’s trial that Ruiz was not present when de- 15 The trial court made part Santana’s at the Ruiz trial ap record on this peal, permitting thus us to consider they defendant’s contentions to the extent are based on testimony by inconsistent Santana. To the extent defendant’s contentions rest on other as trial, pects of the Ruiz properly are not before us here. *23 fendant him told what Neither of these happened. inconsistencies amounts much, that at each trial Santana also except put substantially the same words the mouth of a different speaker. trial,
At Ruiz’s Santana testified that Ruiz—before leaving gathering at Carmen’s him “if I somebody.” house—asked had the nerve to kill verify had Santana Ruiz prosecutor made the statement and returned later, to the point did Ramiro asking you ask if question “[w]hen [Ruiz] you trial, any had to kill guts anybody?” At defendant’s Santana testified that defendant was one who asked him—before leaving the gathering— similar, I had the to kill someone.” guts very While the was phrasing “[i]f this conflict alleged might also be due to nothing more than both Ruiz and defendant similar making comments. trial,
At Ruiz’s Santana testified that Ruiz him told about a knife break- ing when Ruiz was the male victim. stabbing “Q. Did Ramiro say [Ruiz] about anything what he used on the man? A. Said he had a knife. What Q. did he say about the knife in reference to the man? A. When he stabbed him broke, it and after he broke he went inside his kitchen and agot bigger [it] Yes, knife. Q. you Ramiro told that the knife he used on the man broke? A. say he did. Did he Q. where in the kitchen he got this other knife? A. bigger One of the drawers.” The prosecutor allegedly argued jury to the Ruiz the knife broke while Ruiz stabbing was the man and that Ruiz went into the kitchen to get another knife. trial,
At defendant’s Santana’s on this point ambiguous. Did “Q. you defendant tell anything more in reference to what he and Ramiro did the motel? A. That when Ramiro was stabbing [Ruiz] that the knives people, broke off and he went inside the kitchen and a got bigger knife.” The identity of the “he” in question was not in the pursued Santana, questioning and there is nothing inherently improper Santa- na’s testimony or even conflict. The plain jury prosecutor argued case, however, in defendant’s was the one who obtained the knife from the motel kitchen. “According Miguel [Santana], [defendant] it, went into the hotel to rob according defendant. The knife broke off and he went into the kitchen get knife. larger Same we heard from thing witnesses, other jail witnesses.”16 jury witnesses, however, 16The had thing” not heard the “same although from other in chest, mate they witness Hill had testified that stabbed the man in the the knife “[w]hen
broke, kitchen, and . . . got Tino ran into the another knife and came back and [defendant] head, they stuck him in the they got and when stuck him in the head the knife broke. Then knife, another stabbed him in the throat.” *24 in two trials to have differed testimony possi at the thus seems Santana’s may inconsistent argued the have bly respects,17 prosecutor and significant objections to juries. two Defendant raised no versions of the crimes to the Green arguments (see thereon v. questions the prosecutor’s however, 468]), 34 609 and as review 27 Cal.3d P.2d Cal.Rptr. record, the present would us to examine matters outside require appellate before appeal. (See People Pope these are not us on this points properly 412, 426, P.2d fn. 17 Cal.3d 1].)18 A.L.R.4th the objects
B. Direct Examination. Defendant Improper prosecu tor of the of prejudi asked two witnesses that assumed existence questions cial then or in facts not later evidence. as to two placed Except points, and, not object alleged defendant did to the lines of as the errors questioning admonition, timely could have been cured by objection may and prompt not complain now of them at appeal. (Green, supra, p. 34.) on Teresa,
During the of if she recalled questioning asked prosecutor a telling many that he police investigator how knives defendant told her Ruiz had taken with them to the Motel. Imperial 400 She denied recalling number, having given no ever investigator evidence was intro- duced of any by statement Teresa on subject.19 this Defendant did not object however, to these and the questions, jurors were specifically instructed under CALJIC No. 1.02 that “must never assume be true any insinuation suggested by a . . .” question asked a witness. also
Defendant asserts in misconduct the prosecutor’s question- rebuttal Teresa, ing Teresa, of in the course which of then nine pregnant, months was asked whether defendant was the father of her child. Defense counsel’s 17 noted, In points previously addition complains of in inconsistencies San testimony tana’s at the two trials the color wearing on of the shoes defendant and were Ruiz on evening killings. testimony of all point witnesses was so on this inconsistent pressed any that we are hard any see basis for a claim prejudice of misconduct—or to de fendant. 18 The is issue here not so much allegedly one inconsistencies Santana’s as improper by argument prosecutor. question That scope appeal, is outside the this arguments part at the Ruiz trial appellate are not of the record. The sepa issue was raised rately petition corpus, in a majority ultimately writ of habeas which a of this court denied prima for failure to state facie case. 19 complains Defendant also part tape-recorded in a footnote of the introduction of a investigator, statement made police Santana’s sister Carmen to a Carmen which denied missing defendant’s sister Maria her Although had told knives from some her kitchen. objected defense relevancy hearsay counsel of the grounds, admission statement on event, object grounds she did asserted. now In statement showed most police attempted, unsuccessfully, had if to learn defendant and Ruiz had taken may, knives with anything, helped them hotel and if have case. defendant’s
repeated objections to this line of questioning relevancy were sustained on grounds, and defendant now to assert appears misconduct the prosecu- tor’s whether she had been pursuit topic—by asking pregnant previ- ously and whether she had ever had sexual relations with defendant—de- the court’s Given spite rulings. objections that the defense were sustained and that defense counsel did not seek to have the jury admonished to *25 disregard Teresa’s answers to the few questions the final preceded objection, failwe to see a basis for misconduct In claiming any or prejudice. event, relevant, testimony would seem to have been in light of the fact that other had witnesses testified to statements made allegedly by Teresa her, that defendant loved by that she was him pregnant and that he was taking for the responsibility killings protect her.
Defendant asserts similar
in
misconduct
the prosecutor’s
questioning
inmate witness Jones about a note sent to him allegedly
him
promising
$5,000 if he kept quiet concerning defendant’s case and about alleged
threats and
attempts
poison his food. The
link
prosecutor’s
attempts
unsuccessful,
defendant to these incidents were
but defendant asserts that
enabled the
questions
prosecutor to
before the
put
jury unsubstantiated
inferences of other
activity by
criminal
defendant and that the prosecutor
committed
in
misconduct
to the
arguing
jury that defendant had threatened
in jail. (See
v. Perez
people
240-241 [23
But,
before,
Cal.Rptr.
P.2d
C. Abusive Cross-examination. The prosecutor’s cross-examina tion of defendant by was marked multiple objections from defense counsel
on the grounds were questions argumentative or based on prejudi cial facts not in evidence. The trial court objections sustained defense to 28 but denied questions, counsel’s motion for a mistrial. Defendant now con tends that it was prejudicial misconduct for the to belittle and prosecutor defendant,20 harass complains prosecutor injected improperly representative 20A sample questions, emphasis specific portions with on to which de sustained, objections may fense give counsel’s proceedings. were a sense of the tone of the “Q. many people you So how deciding testify did discuss the case with before on what to . . . to? you being you So were jail not truthful when tape, talked to certain individuals in the on Q. truthful, you all being but sudden now are is that correct? . . . Is there some reason Q. being for this . . prosecuted perjury? You are afraid of . . . for You Q. Q. transformation?. course, but, money you were out trying money were not to borrow another [from . . just . Did T.V. happen appear dinners at Maria’s friend]? there mira Q. [some house] culously you saying when went there? . . . lying, You have been Maria and Carmen are Q. by subject asking into the of the trial the death guilt phase penalty killings “a jacket prison blaming defendant whether snitch [for is worse than chamber on these murders?” going gas others] We manner of defend cross-examining do condone prosecutor’s (See ant this case. Hawk v. Court Superior Cal.App.3d objections But the fact remains that defense counsel’s remained, sustained. If counsel believed that a for potential prejudice were jurors she should have admonition to the And the requested specific jury. any were instructed under CALJIC No. 1.02: “As to to which an question sustained, objection you must not have guess might what answer objection. been or as to the reason for the . . . You must not consider [¶] . . . any court; evidence that was stricken out such purpose you matter is to be treated as though had never heard of it.” *26 cross-examination, We cannot see error in the prejudicial prosecutor’s nor does the reference to the chamber Defense passing gas require reversal. object counsel did not to the question; defendant himself later testified that finally he had decided tell the truth because he did not “think it is right for me to go gas do; chamber” for he did not and the something jury was specifically instructed under CALJIC No. 8.83.2 to disregard sub- ject of penalty or in the punishment course of its deliberations. Defendant also contends that
D. Closing Argument. the prosecutor committed misconduct by during closing argument again asserting proven facts on which no evidence had been introduced: (1) that defendant might have attempted order to confront and escape witnesses; threaten that (2) defendant made four admissions to four separate separate that he and Ruiz people killed the couple; (3) that the female victim “had her attack; wrist cut off” during the (4) defendant threatened to stab Teresa’s brother and had “others beat witnesses” to up them; silence (5) that defendant’s concern with seen as a “snitch” being showed that he was part of or had a “gang” “gang mentality”; (6) that the tortured; victims were (7) killings were premeditated; (8) Santana, you defendant asked “Have ever killed before?”—implying might have previously murdered someone.21 you Well, . . . get enough
too? Weren’t you able to letters to them? . . . pretty are a Q. liar, proficient you?” aren’t 21 addition, In prosecutor again brought subject defendant contends that penalty jury by death arguing before the get family that defendant tried to members of his lie him he realized life recognized his at stake . . . .” We have “[w]hen that where [was] special avoidance of a penalty possible circumstance or the death was a motive for defend testimony, may ant’s prosecutor properly acts or impeach cross-examine and seek to 879, establishing (See People such a motive. v. Allison 48 Cal.3d 892 [258 reference, Cal.Rptr. passing 771 P.2d lengthy This in the midst of a discussion of contentions, offer People no substantive to these response we agree may have over prosecutor stepped the line of permissible argument. v. Kirkes (People (1952) 39 Cal.2d P.2d 1]; see Bolton Cal.Rptr. 589 P.2d 396].) There was no suggestion basis for a that defendant sought to escape in order to intimidate He witnesses. did not admit killing his couple Santana; statements to Teresa and both testified that defendant admitted to more than nothing the female victim cutting on the wrist. The female off,” victim’s wrist was cut but not “cut and no of torture were allegations made in the case. And Santana’s was that defendant asked him you “Do have the to kill guts someone?”—not you “Have ever killed be fore?” These statements were not simple hyperbole slight exaggerations in the heat of argument; they were misstatements of the record and poten tially prejudicial to defendant’s case. instances, however, in many
As so other defense object— counsel did not except as to the reference to “a torture situation” on which the trial point court objection sustained the ground on the that the prosecutor had gone misstatements, beyond proper argument. The although bearing potential for prejudice, were not so extreme or so divorced from the record that could not have been cured by objections and prompt admonitions. (People 733, 759, v. Murtishaw (1981) 29 Cal.3d fn. 21 631 P.2d *27 446].) The record reveals no explanation defense counsel’s failure to object, and the question would thus be cognizable only on corpus habeas of a claim part of ineffective assistance of counsel. (See 23 Pope, supra, Cal.3d at pp. 425-426.) The matter is not properly before us here.22
E. Trial Court Errors. Defendant also of trial complains court errors that permitted, exacerbated or failed to cure the impact of the above in- asserts, stances of alleged prosecutorial misconduct. He briefly little with supporting argument beyond a reference to section 104423and quotations decisions, general from principles past that the prosecutor’s misconduct was so pervasive that the court on its own motion should have either admon- jury ished the to disregard the questions and closing argument granted or a mistrial. We cannot agree. witnesses, credibility
the lack of unlikely jury defendant and his seems to have affected the light express verdict in given jury of the subject instructions later not to consider the penalty guilt. in its deliberations on 22 Defendant’s claim ineffective assistance of counsel was also raised in his unsuccessful (Ante, 317, petition corpus. for writ p. 18.) of habeas fn. 23 provides: duty judge statute “It proceedings during shall be the of the to control all trial, and to limit argument the introduction of evidence and the of counsel to relevant matters, and material expeditious with a view to the and effective ascertainment of the truth regarding the matters involved.”
321 First, much objectionable prosecutor’s of what defendant finds to the That necessarily would not even have been court. apparent conduct testimony was inconsistent his at Ruiz’s trial of Santana with might have a different version of the facts prosecutor argued been one who had only by could have known reviewed proceeding And, that a basis for transcript objection Ruiz trial. the extent obligated have been the court was to intervene sua might apparent, might as defense counsel well have had a tactical reason for not sponte We will a trial court for objecting. exercising not fault caution. appropriate More to the a trial court point, sponte duty has no sua to control misconduct; authority relies on to a prosecutorial urge defendant such Perez, duty is no v. longer valid. Defendant looks to 58 Cal.2d People supra, 249-250, pages his his conviction argument that cannot stand support because the trial on its court failed own motion to correct the prosecutor’s misconduct or to a mistrial. But Perez relied on the grant “close case” exception of v. 261-262 People Lyons (1958) Cal.2d P.2d 556] to excuse the failure object defendant’s at trial—an exception Lyons from the drew inartful v. phrasing People Berryman (1936) Cal.2d Green, P.2d In v. 27 Cal.3d we overruled 136].
Berryman and its on this progeny point and that the “close explained case” rule not an exception requirement that object an issue for but rather preserve a statement of the test if appeal for prejudice had, by the issue objection, is, been preserved. at pp. 27-34.) That {Id. case, reversal, erroneous denial may, of an objection a close warrant but a case is close not in does and of itself excuse failure to object impose duty on the court trial to intervene in the absence of objection. (See People Poggi 335-336 P.2d 1082].)
Nor do defendant’s specific more claims of court trial error withstand *28 scrutiny. Defendant objects court limited the improperly cross- examination of Santana. It was and case remains the that defendant failed establish a basis for Santana impeaching testimony with his at the Ruiz is, trial; that defendant failed to apprise any the of court inconsistencies in Santana’s testimony that would have justified such a line of questioning. ante, And, (See also fn. in 18.) light of testimony other at trial (seepost, pp. 322-323), we would be compelled any to conclude that error the trial court have might regard committed in this could not have prejudiced defendant. Defendant objects also the trial ruling court’s permitting Santana’s younger brother that testify three months to the prior killings Ruiz told him he had job lost his the Imperial 400 Motel and the allowing prosecu- tor to out bring that the witness had told that Ruiz police had said he get “would even.” assuming Even that the statement should not have been 322 evidence, testimony
allowed into the was the witness testified equivocal—as he did not recall either that Ruiz had that or made statement that he had told of error police it—and was harmless. Summary.
F. Neither defendant’s of miscon- complaints prosecutorial duct—at least to the cognizable extent on his assertions of appeal—nor by error the trial generally failing court—either in to prevent prosecutorial in misconduct specifically challenged evidentiary rulings—call for reversal his of conviction. 7. Testimony Rebuttal Witness. Defendant next that claims the trial of
court erred call permitting prosecution to inmate witness Hill at the stage, rebuttal that should have been as asserting part called prosecution’s case-in-chief and that the trial court permitted testimony Only to exceed the allowed of rebuttal. the latter need concern scope point us. Although evidently had prosecution Hill contemplated calling as case-in-chief, part its defendant has no made showing prosecu intentionally tion testimony held back the rebuttal and Hill stage was testimony called at that time as his properly on defendant’s statements to him that Teresa was not involved the crimes testimony countered the defendant and others in the defense case that Teresa Ruiz’s partner was 1168, v. 43 killings. (People (1987) Gates Cal.3d 1184 Cal.Rptr. [240 301]; 743 P.2d v. People Thompson (1980) 27 Cal.3d 331-332 [165 289, 611 883].) P.2d Cal.Rptr. testimony of Hill’s of a scope presents something question, closer but error, we are balance not is persuaded present error or that to the
extent was present, for preserved appeal. Defendant asserts that the testimo ny exceeded the proper rebuttal because it scope material “include[d] of the case in the part prosecution’s possession to establish the tend[ed] defendant’s commission of the v. crime.” Carter 48 (People (1957) Cal.2d But, notes, P.2d 665].) the prosecution portions those beyond Hill’s that went a showing that Teresa involved in the crimes did not introduce new or anything significantly different to link crimes; the most the testimony merely reiter part, ated and fortified the parts prosecution’s case-in-chief that had been (See attacked v. defense evidence. People Whitehorn Cal.Rptr. 783]; P.2d Graham 736, 741 Cal.App.3d *29 testimony
Hill’s did introduce a few only new He was the points. witness that defendant in testifying killing admitted of both participating vic- tims, once, that defendant stabbed female victim more than he in the eye by stabbed her (a wound found otherwise pathologist
323 Contrary crimes. to the and that he exist), planned shown to Teresa, testimony of inmate than the explicit Santana and and more in Jones, an active participant defendant as testimony painted witness Hill’s of both victims. the brutal murders within the sound largely of rebuttal evidence rests admission be disturbed on appeal of the trial court and will not
discretion
736,
v.
83
(1978) Cal.App.3d
absence of
abuse.”
Graham
“palpable
(People
1093,
The record in this case will not
6];
(d).)
see
subd.
Cal.Rptr.
741
§
[149
discretion in
allowing
a
that the trial court abused its
support
finding
Moreover,
object
counsel’s failure to
on this
testimony.
rebuttal
defense
on
event.
challenge
appeal
(Thompson, supra,
ground precludes
8. Admission
Jailhouse
Defendant
Tape
challenges,
three
of his
separate grounds,
recordings
jailhouse
admission
tape
before he was arr-
family
day
conversations with
members
friends the
Defendant first
have been
aigned.
suppressed
asserts
should
tapes
only
delay
because
were obtained
as a result of the
of his arraignment
statute,
time
beyond
by
the time mandated
at a
allegedly
with-
contends,
out the assistance of counsel. Defendant
of these
also
independent
grounds,
remedy
two
is
as a
for violation of his
suppression
required
detainee,
statutory right of
as a
that retroactive
privacy
pretrial
asserting
of our
in De
v.
application
decision
Lancie
Court
31 Cal.3d
Superior
(1982)
866,
865
647 P.2d
v.
Cal.Rptr.
142],
rejected
which we
in Donaldson
[183
704,
Court
Superior
(1985)
110],
Cal.3d
672 P.2d
is
Cal.Rptr.
now mandated
v.
by
Kentucky
the rule
A. Arraignment Delay. Defendant was arrested without a warrant shortly before noon on Monday, 1982. He was not until April arraigned Const., the morning By 1982. April (Cal. constitutional art. provision I, by 14) (§ statute subd. (a)), defendant was entitled to be § brought before a magistrate unnecessary delay.” “without As even an accused arrested a upon warrant issued officer previously judicial fortiori, must arraigned days be within two (§ 825), three-day delay here violated defendant’s to a right prompt arraignment. (See Pettingill P.2d analogizes Defendant of his recording jailhouse conversations during the period illegal this detention without to the ob arraignment basis, and, taining of a confession such a during on that period argues the tape recordings should have been even an Recognizing that suppressed.
324 automatically does illegal detention not render confession inadmissible and that a defendant must show the the “produced detention admissions” “an or there was essential connection” the two events (Thompson, between 329-330), 27 Cal.3d at contends supra, pp. arraignment delay defendant the denied him the of him prompt deprived counsel thus appointment “the standard advisement not to on expect any privacy jailhouse the visitor phones.” has nothing
Defendant shown more than “but for” be- relationship would, tween his taping. argument detention and the His prearraignment 303, the rule in Cal. contrary Thompson, 27 3d render supra, inadmissible detention, virtually every period illegal statement obtained of an during for in each such case the defendant for the argue delay, could that but counsel have appointed against would been and would have advised making (1982) statement. v. Cook 135 (See People Cal.App.3d 576].) 792-793 Cal.Rptr. [185
Moreover, has not this issue for preserved appeal. De fendant of the on objected solely introduction tape recordings ground right were obtained violation of the in De privacy recognized Court, Lancie v. 31 Superior any objec Cal.3d 865. He did not raise tion delay based on v. Wein 50 arraignment. (See People Cal.2d (1958) 383, 411 P.2d Defendant that he may asserts nonetheless raise [326 the issue under the case” “capital v. Frank 38 exception People (1985) 415], object Cal.3d 711 700 P.2d because he Cal.Rptr. did evidence, admissibility of the albeit on a different The ground.24 People counter that defendant not fall does within terms of the exception and, overruled, suggest in addition that if exception wrong is not should beyond at least be not extended the facts of the in which it case announced. here, enjoy
As defendant should benefit we need exception one, not reach the other People’s arguments. exception is a limited for only we appeal stated an from a judgment imposing penalty “[o]n death, insufficiency a technical the form of an will be objection disre garded and the entire will be if a record examined determine miscarriage of justice resulted.” 38 In (Frank, supra, 3.) Cal.3d fn. p. Anderson P.2d 1306], we object declined to excuse a failure to on the as an ground asserted issue on reviewable, despite specific objec 24Defendant also asserts that issue is of a the absence tion, question pure proposition inapposite, as a of law. The cases he on this are each relies dealing required (see, e.g., People with such issues as the elements of an offense v. Jenkins Cal.App.3d Cal.Rptr. 904]) admissibility touching and none of evi dence.
325 “Defend- grounds. made on other an had been objection although appeal ... is the objection] to new basis for even allude ant’s failure to [the Frank, in insufficiency’ as appears a ‘technical from such distinguishable have been more merely it ‘could objection was that the defect the where 1129-1130, are equally fn. These words 3.) at (Id. pp. specific.’ [Citation].” waiver, of defendant’s or on the basis Whether on the merits here.25 apt arraignment of on recordings grounds objection tape to admission rejected. delay must be In to his claim addition
B. Counsel. Delayed Appointment of because the required was jailhouse tape recordings the suppression causal link the provided counsel delay arraignment appointment admissions, raises the failure and his defendant illegal between his detention on and asserts appeal as an issue promptly independent to counsel appoint the suppression tape of his to counsel right requires that this violation for a full two weeks after He asserts that was without counsel recordings. arrest, delay a this that he was as result of prejudiced his and complains “the be not to when expect privacy because he lost advised opportunity “the to enter jail telephone,” visitors on the well as talking opportunity authorities, with the a or otherwise plea bargain, cooperate prosecutorial . . . .” . . . had time to make their deals before his co-defendants potential this issue for He could have again preserve appeal. Defendant did not raised issue at and could have asserted that the hearing, the his preliminary ability defend delay of counsel had his himself appointment prejudiced be v. (See, e.g., Jennings and that the information should therefore set aside. 440, 428 66 Cal.2d 874-875 P.2d Superior (1967) Court Cal.Rptr. 304].) He did not and will not be heard to complain alleged do so (See 41 delay (1985) for the first v. Cal.3d appeal. People Phillips time on 27 423]; Cal.Rptr. Pompa-Ortiz (1980) P.2d P.2d Moreover, the not that defend- record before the court does demonstrate ant was in fact counsel after his Defendant asserts arraignment. without 25 delay reply arraignment acknowledges in that he did not raise the Defendant his brief directly recordings, ground challenging tape for but asserts that as a the admission argue taping improperly at a did done time when “defense counsel [defendant] counsel, argument appointed did not" and contends that such should have had but appears in ar sufficiently preserved agree. We cannot The most that raised issue. right generally. gument a suppression passing on the motion is reference to the to counsel regard why . prosecutor] put quite tapings evidence . . with these has on bit of “[The strictly gathering person after a ... I were evidence were made. believe [made] attorney, right argument not charged right to an to counsel.” The does has been and had a time, appointed at recordings did have counsel even tie the to the fact delay. arraignment much tie it to the less initially that: defender of his public appointed the time arraign- behalf; ment did his nothing public defender withdrew from days him four later because of the conflict of representing potential interest *32 arising Ruiz; from the the office prior appointment of to the represent (3) then court private attorney approached by the defendant never represent agreed him; the services for appointment performed defendant therefore had no an attorney temporarily counsel until retained fact, by his In family on his behalf. the shows that appeared record private by counsel was the very day court on defender appointed public was permitted only to withdraw and that he relieved when retained counsel appeared for defendant. No violation of the to counsel right appears on the 599, record v. Hathcock (People (1973) 8 Cal.3d 612-613 [105 540, 504 P.2d is 476]), suppression tape of not warranted recordings ground—even this from the fact that apart defendant’s claims of preju- dice in this continue to be did regard and that he not raise this speculative objection at trial. Retroactivity C. Under De Kentucky v. Lancie v. Superior Griffith of
Court. alternatively Defendant contends of the re- suppression tape is cordings because were obtained in of his required statutory violation We right pretrial of detainee. in De privacy recognized right this Lancie Court, v. Superior supra, Cal.3d holding that the of monitoring detainees’ by conversations was barred sections 2600 and 2601 to the extent that it was done “for the purpose of evidence for use criminal gathering (Id. than proceedings, rather to maintain the . . . .” security jail at p. 877.) recording in the case present was undertaken three months issued, Court, however, before that and in v. Donaldson opinion Superior applying customary our test for determining retro- law, active effect of a decision a new rule De establishing we held Lancie to antecedent inapplicable Declining conduct. to decide whether suppres- violation, sion was even the for a De appropriate remedy Lancie we found that “retroactive of. . . exclusionary] sanction would serve application [an no constructive it restore purpose; would not those whose privacy monitored, innocent only conversations had been but would benefit those who incriminating (Id. made at p. 39.) admissions.”
In Kentucky, U.S. supra, 479 Court aban- Supreme Griffith doned the “clear historic break” exception retroactive of a application new decision. use of Reasoning (1) such factors as case-specific by “reliance law enforcement officials and the burden on the administration of justice” to retroactivity duty determine was inconsistent with court’s as an adjudicative, rather than body justice to do to each legislative, litigant on the merits of his own case and the integrity thus tainted 322-323, 657-658, judicial review at 660- (id. pp. pp. 326-327 L.Ed.2d at treating similar- inequity countenanced that the 661]), exception (id. L.Ed.2d at pp. 327-328 differently at pp. defendants ly situated conduct of criminal “a rule for the the court held new 661-662]), federal, cases, state or retroactively to all is to be prosecutions applied final, no cases yet exception not with on direct review or pending (Id. past.” p. a ‘clear break” with the rule constitutes which new this new rule retroactiv- contends that L.Ed.2d at Defendant p. Lancie his case. of De ity compels application only the rule Griffith, as it specifies to follow We are compelled new rules of decreed for those Court has retroactivity *33 Supreme the federal courts it are on procedure (1) binding criminal announces system, in the federal supervisory powers to the Court’s Supreme pursuant federal federal as a matter of constitu binding or are on state and courts is, to a new rule of law. in establish nothing purports tional That Griffith founded on state constitutional retroactivity for rules of criminal procedure 537, 457 U.S. 542 United States v. Johnson statutory (See law. also 202, 208, And we decline to a similar adopt L.Ed.2d 102 S.Ct. retroactivity rule of for own decisions.26 our . . . standards is to judicial establishing
“Whether
decision
new
by
be
the follow
given
customarily
weighing
retroactive effect is
determined
standards,
the
by
(b)
factors:
the
to be served
the new
ing
“(a)
purpose
standards,
by
extent of reliance
law enforcement authorities
the old
of
the effect on the administration of
of retroactive
(c)
justice
application
. . .
made
the new standards.’
Decisions have
been
generally
[Citations.]
only
is
is
fully
right
retroactive
where the
vindicated
one which
essential
hand, retroactivity
the
is
integrity
fact-finding
of the
On the other
process.
customarily
not
the
to be
is one
is
required when
interest
vindicated
which
v.
merely collateral to a fair determination of
or innocence.”
guilt
(People
409,
1,
Kaanehe
10
P.2d
(1977) 19 Cal.3d
559
[quoted
1028]
Donaldson,
35
in
“In search and seizure
supra,
p. 38].)
Cal.3d
cases, the
test
the
that a decision
generally
leads
conclusion
tripartite
effect.
in Kaanehe
in
given
should not be
retroactive
As explained
[supra],
reliability of
fact-
necessary
such a case
not
to ensure the
the
is
‘[exclusion
at trial.
and the evidence seized is
finding process
compulsion
present
No
is
in
exclusionary
As
rule
those cir
entirely trustworthy.
of the
purpose
officials,
deter
conduct
law enforcement
exclu-
illegal
by
cumstances is to
Lancie,
light
supra,
De
approach,
26In
this
do not decide
Cal.3d
of
we
whether
prosecutions”
be
to have
“a new rule
the conduct of criminal
should
deemed
established
Donaldson,
Griffith,
meaning
supra,
supra,
We
in
within the
of
We find
in
nothing
supra, 479 U.S.
or United States
Johnson,
rule,
457 U.S.
which
of the new
presaged
adoption
that causes us to
our
tripartite
soundness of
test. We
question
existing
agree
system
cannot
of a decision on the
considering
impact
judicial
judicial
is an abdication of our
function
integrity
adjudi
or taints the
indeed,
noted,
cative
as a
Justice
former Chief
of this court has
process;
considerations,
other
such
the need to measure the benefits of a
policy
result,
change against
might
retroactive
counsel
hardship
against
Vadis,
Quo
blanket rule of retroactivity. (See Traynor,
Prospective Overrul
Question
ing: A
Judicial
(1977) Hastings L.J.
540-
Responsibility
542.) Nor are we troubled
our
fact that
standard for determining
retroactivity
similarly
results
different treatment of
situated defendants.
an
That is
justice
unavoidable
on a
basis.
consequence
dispensing
societal
“Inequity arguably results from
the benefit
a new
according
rule
in the
parties
case
which it is announced but
to other litigants
*34
similarly situated in the trial or appellate
who have raised the same
process
issue. But we
the
regard
parties
fact
the
involved are chance
beneficiaries as an
cost
insignificant
for adherence to
of
sound principles
v. Denno
388
301
decision-making.” (Stovall
U.S.
L.Ed.2d
1199, 1206,
D. Summary. We reject defendant’s of the challenges to admission jailhouse tape recordings. Although timing by jail the of the visits allowed officials suggests conversations were monitored for the express of obtaining evidence be purpose against used defendant—in violation of Lancie, the in privacy right we De Cal. subsequently recognized supra, 31 3d 865—defendant has failed to the show connection between arraignment delay delay the in of (or alleged and his appointment counsel) statements admissions, of suppression would warrant his and failed to he preserve Anderson, the issue even the (see under 43 at questioned supra, 1129-1130, fn. pp. “capital case” His contention that 3) exception. retroac- tive De Lancie application by Griffith, of is mandated 479 U.S. supra, merit, lacks retroactivity and we decline to embrace that case’s analysis our place customary of and reasonable test. tripartite 9. Admission Victim Photographs. the Defendant contends that trial court abused its discretion into 51 admitting evidence photographs by of the victims the the proffered crime scene prosecu tion. The objected enlargements to were photographs autopsy photo graphs, showing larger individual wounds much than life-size. Defendant on wounds shown these enlarged photographs—depicting contends that im- the prejudicial cumulative life-size photographs—were other value whatever accordingly outweighed probative the photographs pact have. they might the of a lies within the discretion of
The admission of victim photographs court, will be disturbed on the of that discretion trial exercise clearly outweighed value of the is unless the probative photographs appeal 54; 41 Cal. 3d at p. their effect. prejudicial (Phillips, supra, P.2d We Frierson 25 Cal.3d no discretion here. see abuse of they enlarged
If served no other purpose, photographs helped on the basis of clarify of the medical testified expert—who another’s notes and the author had since died—on autopsy report, 8 Cal.3d at (Hathcock, supra, 621.) location and nature of the wounds. p. at Although somewhat cumulative to life-size were photographs, Furthermore, wilful, theory least useful. as the advanced the prosecutor theory felony-murder deliberate and murder addition to the premeditated relied, relevant to mainly on which were also establish photographs (Ramos, manner killings in which the were committed.27 supra, Frierson, And, 576; 171.) Cal.3d at 25 Cal. p. photographs 3d p. clinical, are not are particularly gruesome. They enlarged, rather depictions wounds, many body. of them disassociated from human Defendant’s “ordinary enlargements contention that the turned knife wounds into gap- seriously likely holes” ing overstates of these impact photographs jurors. *35 10. Testimony Victim’s Mother. claims the trial Defendant
court should
have
the
Carol
to
the
Hayes
testify
not
allowed
mother of
at
that the
irrelevant and at best
guilt phase, contending
testimony
largely
was
Ramos,
cumulative
other evidence.
us
30 Cal. 3d
Citing
to
to People
553, and O’Meara v.
1381], defendant contends that the minimal value of the testimo- probative ny almost to greatly outweighed impact was its and seems prejudicial any testimony by contend that a victim is inherently of murder parent more than prejudicial probative.
Neither case is Ramos involved the introduction into evidence apposite. aof of a murder victim while alive and the identification of the photograph error, by the victim’s Admission of the photograph parent. photograph was as the defense had offered to for which the stipulate point photograph was introduced. O'Meara addressed the same the context of a point case. personal injury Neither decision admission of a speaks parent’s testimony and each at most that the generally, suggests prejudicial impact of a testimony may be than that of other witnesses. Neither parent’s greater decision to alter the purports value/prejudicial analysis probative impact evidence, for the admission of however.
Carol’s mother (1) poor eyesight testified that: Carol had and wore glasses; (2) entry the last the motel was in Carol’s hand- telephone log Jack Carol routine writing; (3) working togeth- followed set when evidence, er evenings testimony in the motel office. with other this Together supported prosecution’s theory that the murders occurred between 9 and 10 because: were found the floor of the motel p.m. (1) glasses front office; entry the last was telephone log for 9:01 under the p.m.; routine, set Carol have couple’s only would handled front office duties until 10 As the time frame of the murders was critical in p.m. evaluating movements of defendant and Ruiz that evening, testimony was plainly relevant. asserts, however,
Defendant that the cumulative of other evidence A establishing same It was not. motel maid testified points.
that she did not seeing glasses. remember Carol wear Carol’s mother knew that Carol had glasses worn since she was and testified to that effect. The regional manager identify of the motel chain could not handwriting have telephone log, testifying either Jack or Carol could made the entry. Carol’s mother testify was able to was that of handwriting her The assistant the motel daughter. manager of testified as to what *36 were, the he did thought work habits but he that couple’s acknowledged know their routine a fact the his nights as handled front office on off. Carol’s mother knew the routine on such occasions and could couple’s testify from and observation. personal knowledge cumulative, testimony
The of Carol’s mother relevant and not was the unemo- “very trial court later observed that she had been factual and tional in her from testimony.” Defendant has identified no prejudice, apart
331 from a be presumed that should suggest prejudice attempt a half-hearted testimony easily out- value of the and the testimony, probative parent’s did have The trial court might that arisen.28 minimal weighed prejudice v. McDowell testimony. (See People allowing its not abuse discretion 551, 530, P.2d 758 1060].) 46 565 Cal.Rptr. Cal.3d (1988) [250 brief, de In a Challenges supplemental 11. to Jurors. Peremptory used his peremptory objected prosecutor for the first time fendant number, nine in who ex from the all challenges jury persons, exclude i.e., who not so about death those were penalty; reservations pressed “irrevocably . . . the death against penalty” permit committed to vote 510, v. (1968) Illinois 391 U.S. Witherspoon their exclusion for cause under 785, 522, 776, 88 S.Ct. Defendant contends footnote 21 L.Ed.2d 1770]. [20 known “death jurors, these otherwise that the exclusion of prospective veniremen,” with combined skeptics” “death-scrupled prose or penalty 10 other Witherspoon cutor’s for cause under of challenges prospective guilt at the jurors, jury conviction-prone phase a produced Sixth and thus violated his Amendment phase, at the death-prone penalty to a fair and right impartial jury.29
We have
a number
occasions as to both the
rejected these claims on
of
v.
(1985)
Chavez
phase
capital
(People
and the
of
case
guilt phase
penalty
823,
49,
372]; People
Cal.3d
827
705 P.2d
v. Turner
Cal.Rptr.
39
[218
302,
196,
37
313-315
P.2d
also
(1984)
Cal.Rptr.
669];
Cal.3d
690
see
[208
329,
803,
v.
35
P.2d
Fields
Cal.3d
374
673
(1983)
Cal.Rptr.
[197
Hovey,
28 Cal. 3d
have
680];
61-69),
consistently
declined
pp.
478,
v.
46
(See,
(1988)
to reconsider the issue.
Keenan
Cal.3d
e.g., People
550, 758
Melton
44 Cal.3d
1081]; People
(1988
503
P.2d
v.
Cal.Rptr.
[250
867,
750 P.2d
has met with no
741].)
argument
The
Cal.Rptr.
[244
v.
(Lockhart
the United States
Court.
greater acceptance
Supreme
137, 147-155,
U.S.
106 S.Ct.
McCree
173-184
L.Ed.2d
of this
contends that the
Despite
weight
precedent,
adverse
defendant
should
issue remains an
one under federal law and that we
reexamine
open
28
testimony
separate
presented
penalty
question
A
is
as to the
Carol’s mother at the
of
Maryland (1987)
phase
Although
Supreme
in Booth v.
trial.
United States
Court
12. Cumulative Error. from Apart that each of the asserting alleged errors reversal, raised on appeal separately warrants defendant contends that the cumulative impact errors—in particular jury’s evaluation of witnesses, the relative credibility witnesses, of the immunized the informant and defendant—“constitutes an extraordinarily strong case for reversal.” Despite potential significance of the witness credibility question, suggested by jury’s deliberations, request, shortly into its for reinstruc- tion on the testimony of felons and there accomplices, was overwhelming evidence of defendant’s guilt, nothing the errors alleged by defendant could have caused the jury to more give credence to defendant’s version of the events. We agree cannot it is reasonably probable result more favor- able to defendant would have been reached in the absence of the alleged (Watson, errors supra, Cal.2d at p. 836) reject and thus defendant’s contention that reversal is required.
Special Circumstances Issues
Defendant challenges jury’s on the findings felony murder-robbery and multiple-murder circumstances special because no “intent to kill” in- struction was given, and also contends the trial court erred in that it ruling lacked the discretion to strike both special circumstances. Neither conten- tion has merit. Anderson,
13. Failure to Instruct on Intent to Kill. In 43 Cal.3d supra, we held: to kill is not an element of the “[I]ntent felony-murder circumstance; special but when the defendant is an aider and killer, abetter rather than the actual intent must be proved before the trier of fact can find the special circumstance to be true.” (Id. at pp. 1138-1139.) We held to the same effect as to the multiple-murder special circumstance. (Id. at pp. 1149-1150.) Defendant asserts that the felony murder-robbery and multiple-murder special circumstances must be set aside here because jury was not instructed it had to find defendant had the intent to kill in order to find either special circumstance to be true.
As we noted in our discussion of Beeman error at guilt (ante, stage pp. 309-311), we have previously concluded that the special circumstance instructions advise a adequately jury of the findings must be made under Anderson. (Warren, 45 Cal.3d 487-488.) There pp. was ac- cordingly no error here.
333 to occasions prior On three Strike Circumstances. Special 14. to Refusal trial, court to strike the trial defendant requested the phase the penalty the prosecution’s even under allegations because the circumstance special and should than Ruiz he less allegedly culpable of the case was theory occasion, trial ruled the court the first a On subject greater penalty. be to occasion, ruled that it would so; the court do on the second that it could not so, allegations; the did not presented support unless the evidence not do standard, occasion, did not do so. the court the applying on third 443, 637 470 Cal.Rptr. v. 30 Cal.3d (1981) on Williams Relying People [179 erroneously refused to the trial court 1029], P.2d defendant contends that circum- special then to discretion to strike exercise its recognize essence, trial contends is the allegations from the case. In what stance to a form of and that he was entitled standard applied wrong court outcome of his review trial based intracase before proportionality case. codefendant’s jury
We if a a may, penalty have that a trial court returns held without imprisonment possi verdict life phase imposing punishment 1385 dismiss the special its under section to bility parole, power exercise thus make the defendant for findings eligible parole. circumstance 826, v. 680 Cal.Rptr. Zimmerman 36 Cal.3d 159 (People (1984) [202 Williams, 30 We also 776]; 489.) P.2d Cal.3d at have held p. findings to authority trial court has the strike the circumstance special a of a case. jury stage capital before returns verdict death the penalty 753 Cal.Rptr. v. Hamilton 45 376-377 (1988) Cal.3d (People P2d But we have not addressed the whether this squarely question may from power prosecution seeking be exercised pretrial preclude (Cf. the death v. Court penalty. Corenevsky Superior Court 360]; Superior 682 P.2d 1649, 1652 Cal.App.3d Cal.Rptr. 113].) here, ultimately need court We not resolve the trial question Assuming its considered defendant’s and denied it on merits. request trial had exercise of discre- proper court its decision was power, Moreover, noted, challenge as is not so much a challenge tion. defendant’s may may trial it not have court’s refusal exercise discretion is an review possessed, attempt interject proportionality as it intracase allegations. of a motion strike the circumstance We guise special this reject attempt.
Penalty Phase Issues death on challenges
Defendant verdict of some penalty phase and, at the also that cumulative grounds guilt phase, asserts separate *39 requires arguments error evidence, reversal. His focus on admission of improper misconduct,
prosecutorial faulty jury instructions or instruc- decisions, by not given. arguments tions Most of his are foreclosed our prior we that are reject here those not. 15. Notice Aggravating objects Evidence. Defendant that two wit- of nesses—inmate Jones and the Hayes—were witness mother Carol testify allowed to the at the had not penalty phase although prosecution notice in given pretrial testimony their would be presented aggravation. Although notice was we given, find no error as to Jones. And cognizable mother, only as to Carol’s we consider this as it relates question to whether circumstances, testimony any the should been or have allowed under with without advance notice.
The a prosecution statutory duty has the provide to defense with advance notice of the evidence it in proposes aggravation to introduce of the in “Except offense. for evidence of the proof special offense circum stances which a subject may defendant to the death no evidence be penalty, by the in presented prosecution aggravation notice of the to unless evidence be introduced has been to the defendant a given within reasonable period court, time determined by prior may the to trial. Evidence be introduced without such notice in to by rebuttal evidence introduced the defendant mitigation.” (§ 190.3.) prosecution
The meet its this obligations failed to case. As to inmate Jones, however, witness the error is not cognizable appeal objec- as no 57, on this ground tion was made. v. 44 108 (People (1987) Miranda Cal.3d 594, 30 & fn. 744 P.2d counsel’s to Cal.Rptr. 1127].) objection Defense [241 testimony the as cumulative was not to preserve sufficient issue Anderson, 1129-1130, Moreover, (Cf. 43 appeal. 3.) Cal.3d at fn. supra, pp. error on any this score harmless. of the notice purpose requirement is to afford a capital defendant to meet opportunity prepare evidence introduced v. Caro aggravation (1988) offense. 46 Cal.3d (People Miranda, 1059 761 see 44 680]; P.2d Cal.Rptr. 96.) Cal.3d In the p. delay absence indication that the in notice had in some fashion affected manner in defense counsel handled which a prior proceedings, appropriate remedy for violation would ordi- narily be grant a continuance as a needed to allow defendant to develop (See v. Howard 419-425 response. (1988) Cal.3d 279]; Cal.Rptr. People Reyes P.2d (1974) 217, 526 P.2d Here, Jones an testified as to threat made defendant within alleged Jones’s that Jones would be “a when he hearing got prison dead man” Defendant guilt phase. defendant at the against
because had testified inmates to of the three testimony testimony this with: countered threat, each whom communicated had allegedly whom defendant day the threat was defendant on the conversation with having denied a Jones; it on to told a threat or passing made denied such being allegedly had been transferred sheriff that defendant deputy although after the guilt phase, cell from that of Jones different block *40 it that possible and was changed promptly records had not been computer cell his return from upon had returned to the same block defendant been a that had been returned to court; testimony he and defendant’s own the and thus phase after the of trial guilt cell block from Jones different made, make, fully the Defendant was have did not threat. could not and not by prejudiced evidence and was therefore aggravating able to meet this testimony.30 to notice of Jones’s the failure advance give mother, was made the objection As to the of Carol’s testimony notice, is us. The and the issue before give properly failure to advance statutory that was under the testimony proper now assert her People in of the offense” to be admitted without proof authorization for “evidence testimony—that the Only notice. so. one small of her portion advance Not statutory and glasses—could exception, be deemed within the wore couple at the Even were the guilt phase. she had testified to that fact previously it testimony objectionable repetitive, that not as penalty phase point on Indeed, testimony. the seem People could not the remainder her support much, inconsistently as in the same argument posits to concede for their testimony—that kept the the no couple breath that the other portions they and would had been instructed to robbers whatever wanted guns, give do to a that the victims anything avoid violent confrontation—established conduct, only in that goes were not the homicidal participants point and with offense. penalty nothing underlying has to do the proof error, testimony the the give That failure to advance notice of was how- ever, As ground. does not establish it was on that that prejudicial brief, testimony extremely not contend that the was as defendant did deaths, led had that to their victims in or induced the conduct participated hardly his in presenting mitiga- can claim to have been case hampered testify. tion lack that mother would by knowledge Carol’s 30 aggravating the use as evidence of statements Defendant also asserts the statute bars made, here, after the trial has commenced and that Jones’s was inadmissible on as Caro, rejected argument supra, page We v. 46 Cal.3d at this score. Indeed, question. showing propensity where for violence is decline to revisit the evidence commenced, it not it be absurd to exclude on even available until after trial has would given accept ground “prior proposition not and we cannot that notice trial” was against a jury allegedly a threat made witness entitled learn of very considering. case were 16. Testimony Victim’s Mother. In Booth Maryland, 482 U.S. invalid, the United States Supreme Court ruled a state statute Amendment, violating Eighth to the extent that it required consider ation of a statement at the victim-impact sentencing of a case. phase capital The statement provided jury with information on charac personal victim, teristics of a the emotional impact of crime on the victim’s family, family members’ opinions and characterizations of the crime and the defendant—information that the Court found was “irrele Supreme vant to a capital sentencing decision” and whose admission “creates a constitutionally risk that the unacceptable jury may the death impose penal in an ty arbitrary and manner.” capricious (Id. at 502-503 pp. L.Ed.2d p. S.Ct. at p. Defendant relies heavily Booth to argue that the testimony of Carol’s mother was improperly admitted at the penal ty phase.
Booth does not
bar
purport
generally
the use of information about a
*41
murder victim at the penalty
The
phase.
Court’s concern
Supreme
lay
mainly in the mandatory requirement that the entire
state-
victim-impact
ment be admitted and in the risk that the jury’s attention would be drawn to
the personal qualities of the victim rather than to the blameworthiness of
the defendant. Although the court “rejected] the contention
. . .
the
victim’s
. . .
personal characteristics
are proper sentencing considerations
in a
451,
case”
U.S.
capital
(482
at
p.
L.Ed.2d at
107 S.Ct. at
p.
[96
the
p. 2535]),
court took
pains
note that
of information
types
“[s]imilar
may well be admissible
because
relate directly to the circumstances of
the crime” and that ’’there may be times
the
victim’s personal charac-
teristics are relevant to rebut an argument
offered
the defendant.”
at
{Id.
fn. 10
p.
L.Ed.2d at
p.
S.Ct. at p. 2535].) Booth thus does
[96
not alter the standard for the admission of such evidence.
also South
(See
_
Carolina Gathers (1989) 490 U.S.
L.Ed.2d
The victim’s mother testified at the
that her
penalty phase
deceased
daughter and son-in-law had poor eyesight, wore glasses, kept
guns,
no
avoided violent confrontations. Such evidence was relevant and admissible
in the prosecution’s case-in-aggravation as “relating] to the circumstances
the crime.” (Booth,
482 U.S. at
fn.
supra,
at
p.
L.Ed.2d
p.
Code,
190.3,
discuss characteristics personal families, family relate the on victims’ the emotional crime the impact (Booth, 482 U.S. at the members’ of the crime or defendant. opinions 448-449, testimo- at 107 S.Ct. at Her p. 503-504 L.Ed.2d pp. pp. robbery- inference that this brutal ny, tending an probative support all without resistance from murder executed in likelihood double was victims, the determining jury weigh presented properly penalty. appropriate arguments, As guilt phase
17. Prosecutorial Misconduct. he did his in- numerous again prosecutor contends that committed argument penalty during proceedings stances of misconduct is nothing There here to warrant reversal. phase. continued reliance prosecutor’s
Defendant first complains Santana to defendant’s motion to strike the oppose “tainted” jury, among circumstances and to other special argue points, had into motel kitchen to find gone defendant was the who person *42 in Jack Hayes’s knife after the one Ruiz was broke off head. using another But no trial denial of the motion to strike and there was error the court’s context, any and thus from misconduct in that prejudice no conceivable trials of de- arguments separate inconsistent prosecutor’s allegedly ante, Ruiz be on only corpus.31(See p. fendant and could considered habeas 317, fn. 18.) testimony prosecutor’s eliciting
Defendant next from complains mother the victims’ character. But the trial court had good Carol’s on mother, testimony of and have deter- previously allowed the Carol’s we No ruling that the error in that was not misconduct is prejudicial. mined defense were overruled. by eliciting objections shown after having for asked charges Defendant also with misconduct prosecutor had mother whether defendant cross-examination of defendant’s during was as no driving. question improper, ever arrested for drunk been objection have on the but no point, or could been introduced evidence was point rejected petition raised writ of habeas claim this was in his for 31Defendant’s on 18.) corpus. (Ante, p. fn. Miranda, was made to the 44 Cal. question (see 108) 3d at and even supra, p. failure, were we to consider the claim that we fail to see despite any how could be shown in view of the prejudice fact that defendant’s mother tes- and, indeed, tified he had not been arrested on such a had never had charge any with the problems police. objects
Defendant also to a number of allegedly inflammatory com ments by made the prosecutor during closing argument. The prosecutor: (1) Hayes “literally asserted Carol tortured” by the number of stab wounds inflicted on her body; (2) jurors asked the to “think of the sheer and terror the pain victims after struck experienced being again again by different knives different of their parts opined bodies” and result; “must have died horrible death” as a (3) implied and Ruiz “just had killed the to torture” couple or to eliminate them as witnesses to robbery; (4) that defendant argued had threatened Teresa’s brother; asserted that the two inmate witnesses against defendant had been attacked because of their testimony. No were objections made at misconduct, trial to any of the comments defendant now claims constituted and we will not consider them on appeal timely objection as a and admoni tion could have cured {Brown, harm. 456.) Cal.3d at Even p. them, were we to examine we would find no error. Given the prejudicial victims, number of wounds inflicted the prosecutor’s reference to the terror probably by the experienced victims was fair characterization of the witnesses, evidence. And his arguments to torture and threats against overstated, although to the extent he example, attributed to defendant not, attacks that the witnesses themselves had were not so divorced from the testimony at trial as to make drawn implications prosecutor plainly unwarranted.
Finally, defendant complains prosecutor improperly urged jury to consider nonstatutory factors in aggravating reaching its verdict. He *43 contends that the prosecutor: (1) referred to defendant’s from prior escape custody and noted there was “no guarantee” might again; (2) not do so argued that defendant’s and the fact drug use that he had “not his life spent in a productive jury consider; manner” were the should points (3) referred remorse; to defendant’s lack of and (4) argued that the lack of evidence on factors, disturbance, three of the statutory mental mitigating or emotional duress, victim made them in participation aggravation. factors As to all remorse, but the on lack argument objection no was The objection made. court, on that was overruled the trial point by and the brief prosecutor’s continuation of his argument cannot constitute misconduct whether or not next, the court’s which turn ruling, we will was correct. The other points
339 44 supra, objection. (Miranda, lack of of the in view not be considered need 108.)32 Cal.3d at p. Defendant con Remorse. Lack on 18. Comment Defendant's comment on the prosecutor in permitting the trial court erred
tends cases, the neither our prior remorse. Under of sorrow or defendant’s lack The prosecutor was error. argument nor the ruling prosecutor’s trial court’s 71 v. Coleman People in the act we condemned did not commit 920, “defend 1159, 248], urging P.2d 459 Cal.Rptr. Cal.2d [80 demon guilty . . . found after he guilt failure to confess his ant’s [was] that there only argued . . . .” The prosecutor lack of remorse his strate[d] the commis after remorse the defendant “a lack of sorrow or was total A the victims.” sorrow for “he didn’t express crime” and that sion of this jury’s consid subject is a proper remorse or lack thereof defendant’s thereon, comment and the (ibid.), prosecutor’s at the penalty phase eration remorse should be deemed that the absence of lacked suggestion which offense, (Miranda, supra, was proper. aggravation a factor 605, 47 Cal.3d 649-650 112; v. Walker (1988) at see also p. 70].) P.2d Cal.Rptr. occasions, Moreover, remorse, is universal- have noted on previous as we case, likely it is stage capital to be relevant at the ly penalty deemed its exercising this factor in the course of have considered jury would not the noted prosecutor point. broad discretion whether or sentencing Keenan, not misled about 510.) jury 46 Cal. 3d at As the was (See p. post, sentencing responsibilities (see evidence or its pertinent discussioa brief no reasonable 344-345), possibility prosecutor’s we see pp. jury’s (People Siripongs (1988) comment could have affected the decision. 754 P.2d 45 Cal.3d Cal.Rptr. evidence guilt phase, At the Escape Attempt. 19. Evidence Nonviolent custody in this case jail defendant’s from while escape
was admitted of and, flight instructed jury as discussed was previously, properly jury given At phase, consciousness of showing guilt. penalty 32 only respect. objectionable one suggests misconduct Even closer examination suggestion that escape attempt and his past nonviolent prosecutor’s reference to defendant’s Boyd (1985) entirely (cf. People v. proper might escape in the future strike us as not argu 782]), but the comments were brief 700 P.2d 38 Cal.3d 81; (See Dyer, p. Miran ably dangerousness. supra, 45 Cal.3d to defendant’s future related da, 110-111.) drug unproductive life were pp. Defendant’s use and supra, 44 Cal. 3d at factor, mitigating only young age, indisputably a was entitled brought up argue that his *44 Rodriguez (1986) Cal.Rptr. 726 weight. 42 788-789 (People v. Cal.3d little mitigating argue fac 113].) prosecutor that the absence of evidence P.2d And the did not only mitigating fac argued properly that the aggravation; he tors made them factors in (Id. 789-790.) pp. present argument permissible. The was were not in this case. tors
standard instructions to consider the evidence and the previously presented instructions previously given. on our that evidence Relying ruling a of nonviolent is not escape attempt (Boyd, admissible at the penalty phase 38 Cal.3d at supra, p. 776), contends reversal is because required these instructions and “in effect” instructed the permitted jury rely upon evidence of the nonviolent as an in escape attempt factor reach aggravating its ing penalty verdict. rejected
We a substantially similar in v. McLain argument People 757 P.2d Cal.Rptr. 569], and our reasoning Moreover, there holds true here as well. defendant takes far negative too a view of the likely effect of the instructions here. Taken in context and as a whole, they a correct statement of provided the law. jurors were instructed to consider all the evidence previously pre-
sented, you may hereafter be “except They instructed.” were told that those instructions previously given, with the exception antisympathy instruction, you “which find to be to this of the trial should applicable part be by you considered reaching decision as to the to be im- penalty And posed.” jury was also advised—in the of an course instruction that rely it could not on evidence introduced to show defendant had committed battery the additional crimes of a witness unless it threatening found beyond a reasonable doubt that defendant committed those crimes—that “[y]ou may any not consider evidence of other activity criminal acts or as an aggravating circumstance.” instructions,
These entirety, viewed their effectively jury instructed the not to consider the evidence. The instruction to all escape consider evidence admitted at the guilt phase was limited the directive to follow specific instructions given at the in the penalty phase event of conflict. The flight given instruction at the not have guilt phase could been to be “[found] to this applicable [penalty] part of the trial” as defendant’s was no guilt longer jury only issue. And the told that the specifically evidence of activity other criminal it could consider was that relating charges battery and threatening (See witness. Robertson (1982) Cal.3d 21, 55, circumstances, fn. 19 655 P.2d In these defendant’s claim that the jury was instructed to consider the at- escape as an factor is tempt aggravating (Cf. too to be Miran- speculative accepted. da, Cal.3d at 102 & fn. p. 25.)
20. Jury Instructions. Defendant certain of the instructions challenges at the given penalty and also error in the trial court’s failure to phase alleges give other instructions although no was made. There is no merit to request any of his contentions. *45 at the on Other Crime. The prosecution
A. Instructions Adequacy of introduced evidence that inmate witness Jones overheard penalty phase a dead county jail defendant tell three other inmates at the Jones “was defendant and got against man” when he to because of his prison kill him. We have found no merit to going that defendant was previously defendant’s that this evidence should have been excluded for the contention failure of the advance notice under section 190.3. prosecution provide here Defendant contends evidence was insufficient to permit crime jury to consider the a as an threatening aggravating witness erroneously circumstance in the case and that the trial court instructed the jury that the crime was one of intent. Neither contention has merit. general
Former section renumbered as section 140 and amend- subsequently “Every willfully ed minor who threatens to use respects, provided: person force or violence of a a crime a a upon person witness to or victim of crime any destroy any any or other or to or person, damage property witness, victim, witness, any or other person, because victim or other any has person provided assistance or information to a law enforcement officer, or to a in a criminal court public prosecutor proceeding juvenile proceeding, is of a misdemeanor.” The guilty jury accordingly instruct- “[ejvery ed that person willfully who threatens to use force or violence upon witness, of a person any witness to a crime or other because the person, or other person has assistance or a provided information to law enforce- officer, ment or to a public a criminal is prosecutor proceeding, guilty of a crime.”
Defendant first objects that the evidence was insufficient because it did Jones, not demonstrate that he had communicated his threat to therefore contends that the trial court jury erred to consid permitting er the charge jury because the could not have found “the essential elements beyond of the crime (Boyd, reasonable doubt.” supra, Cal.3d at p. internal quotation omitted; marks see 41 Cal.3d at Phillips, supra, p. 72.) Defendant evidence, raised no objection sufficiency of the however (see Boyd, Cal.3d at pp. 777-778), and thus offered the trial court no occasion to consider in a outside the hearing jury wheth presence er there was sufficient evidence to prove each element of the offense. (See Phillips, supra, fn. Even if pp. 25.) the contention is proper ly before us on Jones testified not appeal, only that he overheard defendant threat, making but also that the to whom defendant persons allegedly made the threat him. relayed then the threat to There was sufficient evi defendant, dence jury permit consider whether acting through inmates, other threatened Jones within the meaning of the statute. Defendant next asserts the trial court erroneously advised the jury only general intent was required to commit the crime of threatening
342 witness, court contending jury that the should instead have instructed the sponte sua that intent was We specific required. agree. cannot The court trial is under no to instruct the sua on the obligation jury sponte elements other offenses criminal presented uncharged activity (Phillips, 72, 41 at fn. nor supra, p. 25); obliged Cal.3d is it to instruct sua on sponte offense, degree of intent of such required only an provided instructions it does give jury. do mislead v. Malone (See People (1988) 47 48-49 P.2d The instruc tions here were adequate. challenge
Defendant raises one final
to the instruction
on
based
former section
that
right
it violated his constitutional
to
asserting
freedom of
in that
failed
speech
jury
may
it
to advise the
“that speech
only
constitute a crime
if there is ‘clear and
that such
present danger’
will
to
activity.
lead
speech
illegal
to
People’s response
[Citations.]”
argument
this
strikes us as
“While the first ten
to the
quite apt.
amendments
United States Constitution have been
. .
very liberally
construed
.[,]
not yet
have
been extended
far as to
as a
so
hold
form of
protected
speech
threat to Julius Jones that
kill
....
would
Jones
[defendant’s]
[defendant]
Jones,
Jones,
threat to kill
which
had communicated to
[¶] [Defendant’s]
clearly
under
factual
be
setting,
equated
cannot
mere political
Amendment.
under the First
Watts
hyperbole protected
(See
v. United
States
U.S. 705
(1969) 394
L.Ed.2d
Our cases demonstrate that there is prior requirement no the trial sua court instruct on sponte jury the elements of other offenses present activity ed as criminal uncharged relevant its determination penalty (Phillips, 25); Cal.3d at fn. nor supra, p. need trial court sua jury instruct the sponte that its criminal must finding uncharged activity be (Ghent, nothing unanimous. Cal.3d at see im p. 773.) “[W]e individually each proper permitting juror uncharged decide whether and, so, activity beyond criminal has been if proven reasonable doubt (Id. penalty.” deciding be activity given should weight what 774.) p. considering defendant’s In Culpability.
C. Instruction on Codefendant he was verdicts, his contention rejected we challenges guilt phase *47 not to No. 2.11.5 under CALJIC instructed jury because the prejudiced for the be prosecuted been or would had whether other persons consider into was incorporated that this instruction Defendant now contends crimes. to consider jurors given the standard instruction the penalty phase to this part find to be you applicable “which those instructions guilt phase result, the in- that asserting . .” as a prejudice the trial . . He claims of the relative evaluating from jury (1) impermissibly precluded struction: and in its decision on reaching penalty; Ruiz and defendant of culpability and arguing of Ruiz’s sentence advising jury counsel from (2) precluded two, defendant, mercy. receive of the should culpable that as the less and must be upon speculation Defendant’s argument piles speculation relative jury culpa informed the of the fully The at trial rejected. defendant, counsel was there is no indication that bility of Ruiz and and in the crimes. a minor role from that defendant arguing played precluded so, that it did not agree. The verdict indicates jury’s She did in of fact. point fact that is there error This does not constitute error. Nor to a Ruiz’s sentence. The meted out jury punishment was not advised of make at the jury penalty codefendant is irrelevant to the decision the must to death. (People whether the defendant before it should be sentenced phase: 440], v. 541-542 709 P.2d (1985) Cal.Rptr. Brown [220 v. Brown U.S. revd. on other sub nom. grounds California v. Belmontes 45 Cal.3d L.Ed.2d 107 S.Ct. In People found no error in a trial 310], 811-813 755 P.2d we Cal.Rptr. a codefendant’s case. court’s evidence of the ruling barring disposition We can see no error in the less more explicit—and speculative—restrictions jury’s on the deliberations here. placed next complains
D. Failure to Strike Irrelevant Factors. Defendant
mitigating
aggravating
trial court’s failure to delete from the list of
had
read
factors on which no evidence
jury
mitigating
factors
those
argued
been
and also asserts that the
presented,
prosecutor improperly
made them factors
mitigating
the absence of evidence on those
factors
Ghent,
v.
We
the first
of this
aggravation.
rejected
argument
People
prong
v.
(1977
law),
mitigating deserving and defendant less inapplicable leniency. (Rodriguez, 789.) 42 Cal.3d at p. Jury’s Sentencing
E. Finally, Function. defendant challenges penal- ty on the phase ground they instructions did not advise the adequately jury of its and the it discretion factors could consider. Defendant’s argu- extremely sketchy, ment on this point is and we are hard deter- pressed mine if he is prejudice from the failure instruct on the arguing jury “any extent to which could ‘aspect consider other defendant’s [the] . . character record . as a proffers basis for a sentence 858, 878, than death’” less 34 Cal.3d (People Easley (1983) fn. 309, 671 P.2d or if he is 813]), the fact complaining jurors were in the mandatory instructed former language CALJIC No. *48 8.84.2 that you conclude that the circumstances aggravating outweigh “[i]f circumstances, the mitigating you shall a sentence of impose death”—or both. The People’s response is no more helpful.
haveWe examined “the totality penalty of instructions and the given made arguments jury” {Davenport, supra, 286) Cal.3d at p. determine jury whether the was “misled to defendant’s about the prejudice its . .” discretion . . scope sentencing {Brown,supra, at p. Cal.3d fn. We are 17.) persuaded that it was not.
The were jurors instructed the former 8.84.1 CALJIC No. language they that “any could consider other circumstance which extenuates the even gravity crime it is not a excuse though for the crime.” legal Although they 190.3, were not given the “expanded” instruction section (k) by factor recommended Easley, they supra, were they instructed that could specifically pity “consider or for a sympathy family defendant or his as a circumstance in as mitigation” well “[t]he character, background, defendant’s mental or condition con- physical [and] The dition.” did not prosecutor attempt argue that evidence sympathy or factors, of defendant’s were background irrelevant and we are persuad- by ed defendant’s argument jury that the consideration of this evidence was by affected the trial court’s definition of limiting “extenuates” as that which to lessen the real or apparent seriousness of a crime or “lessen[s] tr[ies] by extent of guilt making excuses or for ex- partial affording basis Keenan, (See cuses.” Cal.3d at p. 515.) question fully The the jury whether sentenc- scope understood its closer, may discretion ing be but we find no reversible error. again Although jury “mandatory” was instructed the standard of former language 8.84.2, CALJIC No. both the and defense counsel prosecutor pains took jury advise the weighing its of factors was a rather than a qualitative function; neither made comments although or mechanical quantitative determine whether death jury advised the of its discretion to expressly defendant, neither did suggest was the for this appropriate penalty lacked that on but two occasions used jury prosecutor discretion. jurors reminding “shall” of the instruction the context language law, their to follow the most of his time promises spent arguing in the case. And defense counsel’s factors were aggravating paramount much jury’s weight stress on the unfettered discretion to determine how undoubtedly each factor to advise the of its give helped jury mitigating whole, reasonably role.33 the record as a we do not think it proper Viewing that defendant was possible prejudiced.
21. challenges Cumulative Error. Defendant concludes his to the penalty jury with a brief that this was a close case—the phase proceedings argument more than a and a half—and that the cumula deliberating slightly day tive effect of numerous errors mandates reversal of death sentence. error,
We have seen little that constitutes and that little was not under the standard of review for state law error at the prejudicial penalty reasonably it be phase: possible jury would have rendered different verdict had the error not occurred. 46 Cal.3d at {Brown, supra, 448.) p. *49 190.4,
22. Denial Motion to Modify Sentence. Under section subdivi- sion in (e), defendant case “in capital which the trier of fact has returned a verdict or . . . finding imposing the death shall be penalty deemed to have made an for modification of such verdict application .... In finding on the ruling application, judge shall review the evi- dence, consider, account, take into by and be guided aggravating 190.3, mitigating circumstances referred to in Section shall make determination as to whether the jury’s and verdicts that the findings aggra- vating circumstances outweigh mitigating contrary circumstances are law or the evidence shall state presented. judge record the error, reasons for his As his findings.” penultimate defendant assignment objects to the trial court’s denial of his motion.
Defendant first asserts that the court erred in relying on his threat to inmate witness Jones. The argument here is no different than defendant’s evidence, earlier challenge jury’s consideration of that and it fails for the same reason. Defendant next objects to the court’s failure to consider 33 argued, example, you only you Defense counsel law states are the ones “[t]he assign weight every to each and determining one of the factors that are to be in used your penalty” “you, gentlemen, every you decision on the and that ladies and each and one of individually put weight you are the ones to on each one these factors when take them into consideration with all the evidence.” 346
the lesser sentence Ruiz imposed on as a nonstatutory factor. mitigating there Again, as was no error in the failure jury to advise the of the sentence by mandated, received Ruiz and as proportionality review is a point we moment, shall turn to in a there was no error in the trial court’s failure to take Ruiz’s sentence into account. Finally, objects defendant that the trial court did not consider two letters family from friends. As the letters were motion, to the court proffered only at the time of the on the hearing we Moreover, cannot letters, find error in the court’s ruling. speaking generally defendant’s nature and good helpfulness, added little to the mitigating evidence which was previously before the jury and which was considered the trial court. There was no error the court’s denial of the motion.
23. Proportionality Review. As his final
defendant
argument,
asserts that
his death sentence is disproportionate as compared both to his codefendant
Ruiz and to other convicted murderers in the state.
v.
(See People Dillon
(1983)
And as far as defendant’s individual is culpability we see nothing constitutionally in the disproportionate fact that defendant received codefendant, the death sentence although his solely who because age of his was not subject to the special circumstance allegations or death penalty, did McLain, (Cf. not. 46 Cal.3d 121.) There p. is this death nothing sentence disproportionate any sense to the of a culpability found guilty deaths of two victims from multiple stab wounds in the course robbery. of a
CONCLUSION We reject defendant’s challenges to guilty verdict and judgment death. The is judgment affirmed in its entirety.
Lucas, J., Broussard, J., Panelli, J., J., Kaufman, C. J., Eagleson, concurred.
MOSK, J. concur in judgment I and in general with the rationale of the majority.
It is true that cases hold intercase review is not proportionality required, i.e., an analysis to determine whether of the death imposition this penalty
347 case was to the on other disproportionate penalties imposed persons who 37, (Pulley (1984) have committed similar offenses. v. Harris 465 U.S. 50-51 29, 40-41, L.Ed.2d 104 S.Ct. 871].) [79
It is clear that our state constitutional cruel equally against proscription Const., I, or unusual art. punishment (Cal. 17) a determination requires § whether in this case is punishment defendant’s proportionate However, may individual to do so culpability. require comparison venture, i.e., defendant’s conduct with that of others involved in the same intracase We conducted that v. proportionality. analysis type Dillon 34 488 668 P.2d “In Cal.Rptr. [194 697]: short, defendant received the heaviest penalty provided law while those jointly responsible with him received the . ...” lightest As a result the judgment in Dillon (See was modified. also In re Wells Cal.App.3d Cal.Rptr. 23].)
I also recently intracase urged review in v. proportionality People Adcox (1988) Cal.3d 276-277 763 P.2d There three Cal.Rptr. 906]. in my victim, persons, view for the death of equally responsible received widely disparate sentences.
It is my belief that a trial judge, in fulfilling his duties under Penal Code 190.4, section (e), subdivision should undertake to determine intracase pro- portionality as one the necessary I considerations. do not there suggest would be a different result in this case. Indeed is unlikely, it although codefendant, murder, also convicted of first degree was sentenced not to death but to two consecutive terms of twenty-five years to life. (People Gonzales (1986) However, Cal.App.3d we should trial urge judges to recognize the need for intracase proportionality and to make clear on the record that they have it given consid- appropriate eration. 21, 1989,
Appellant’s petition for a rehearing was denied November the opinion was modified to read as above. printed