*1 Aug. S006229. 1994.] [No. PEOPLE,
THE Plaintiff Respondent, TURNER,
MELVIN Defendant Appellant.
Counsel Court, Horowitz, Edward J. under Supreme appointment Adrienne Dell Defendant Appellant. General, Williamson, Chief Assistant
Daniel E. Attorney George Lungren, General, Pollack, General, Attorney Carol Wendelin Assistant Attorney Frierson, Johnson, S. Linda C. Sharon Wooden Robert Susan Lee Henry, General, Davis, Jr., for Plaintiff and William H. Attorneys Richard Deputy and Respondent.
Opinion
this
ARABIAN, J.
following
case reaches us
after
retrial
again
—This
In reversing,
court’s reversal
defendant’s conviction
death sentence.
of showing
we concluded that the
failed
sustain its burden
prosecution
that the
not excluded because of group
challenged prospective jurors
bias,
and the trial court failed to
its
into
discharge
inquire
duty
in violation of
evaluate the
carefully
prosecutor’s proffered explanations,
890, 583 P.2d
(1978)
v. Wheeler
At the retrial found defendant two ensuing jury guilty Code, (a), (Pen. 189),1 murder degree counts of first subd. and §§ (a used further found that defendant had a firearm personally handgun). 12022.5, 1203.06, also (a)(1).) subd. The found true (§§ jury multiple- 190.2, (§ murder and subd. robbery-murder special-circumstance allegations. (a)(3) (17)(i).) & Defendant was also found of two counts of guilty robbery (§211), and as those counts were personal-use-of-a-firearm allegations found to be true. also Defendant was found one count theft guilty grand Code, 10851.) (Veh. vehicle. §
Defendant waived his trial as three personally right by jury prior conviction felony The court found the to be allegations. allegations true. At fixed the for murder in penalty phase, jury the first penalty degree death, with circumstances special thereafter the court a imposed sentence of death.2 Const., (Cal. VI, case is before on again us automatic appeal. art. 11; 1239, (b).) follow, For subd. the reasons we conclude that the
§ § should be judgment affirmed.
I. Facts
A. Guilt Phase
1. Prosecution Evidence 11, 1979, On the night July defendant drove codefendant Teague Scott to the Torrance Hampton where defendant had worked as Airport, security guard. While at the airport, defendant followed a yellow Mazda RX7 that Scott wanted to steal. The vehicle outside a stopped hangar. victims, Hill, When Jr., Dr. S. George and Ms. Joella surgeon, schoolteacher, Champion, got out of the Mazda and entered the hangar, Scott out of their car got A followed them. robbery ensued, which during the victims’ jewelry was taken at gunpoint. The foot, victims were then bound hand and gagged, forced to sit against the wall Each victim hangar. was shot in head once at close range by a .38-caliber gun. Death was immediate.
The victims’ bodies were discovered at approximately 12. p.m. July The door to the hangar, which contained an airplane owned by Champion, statutory 1A11 references contained herein are to the California Penal Code unless otherwise indicated. counts, remaining 2As to the years, defendant was sentenced ato total term of 13 8 months prison. in state This stayed pursuant sentence was to section 654. *16 locked, was The estimated the times was inside on. coroner light and the 11, or 12. My early morning My as the evening death late on murders, a installed recently the time of the Torrance Airport At the at various microphones that included monitoring system 24-hour noise indicated that recording in and around the The July tape locations airport. noises, shots, with were recorded gun consistent approximately two sharp that date in the area where the bodies at 11:16 on three seconds apart p.m. were found. cars, in to Los the Mazda and driving Angeles separate
After taking and the stolen Scott Hill’s car kept and Scott divided property. defendant The was key it. car abandoning it around for two before days drove found on the near car. Scott’s ground fingerprints subsequently found on the car and the key. 12, 1979, use Hill’s on defendant attempted
Early morning July He a Cadillac with driving card to was gasoline. Arco credit purchase a stolen commercial Defendant admitted using and white green body top. vehicle, to his car. so that the card could not be traced on the plate Bums, Steven and signed Defendant the credit card attendant gave The the vehicle’s license number. contained slip. charge charge slip but that he said the card was Atterberry, good, station Willie manager, li- Hill’s driver’s Defendant gave Atterberry needed some identification. Defendant was Black Hill and old. years cense. was White approximately said, license.” your old. “No. I need driver’s years Atterberry said, let I “This is all have.” Atterberry Defendant responded, “[W]ait owner, defendant he with the station me check on it.” While was talking Hill’s wife estranged off. The card was given police. drove charge and two in mail. charge later received license slips 31, 1979, were seen by police Chrysler On Scott July Tribet, in and out of the driving defendant’s by stepfather, owned Nathaniel After a lot at Horseshoe Card Club in Gardena. high-speed valet parking chase, finger- the vehicle and Defendant’s escaped. defendant abandoned were taken handguns Scott arrested. Two were found the car. was prints One a Smith & Wesson .38-special-caliber from the car. of these guns, revolver, evidence to be was determined ballistics subsequently been sitting. It the seat where Scott had murder was located under weapon. he the murder Scott’s were found on weapon, fingerprints of Hill’s watch. Omega possession gold owner of the murder which
Nathaniel Tribet was registered weapon, brother, Roy work Defendant’s guard. had used as security *17 Turner, after Tribet had an had retrieved the from Tribet’s van weapon the on before the murders. lent defendant Roy gun accident few months to gun gave The last time saw the was when he it Roy several occasions. it would be sold to Scott. defendant and/or Scott with the expectation on items of that she had been seen Champion’s jewelry wearing Several of her were to night the murder linked defendant. On subsequently August arrest, at the time of defendant’s chain was Champion’s unique gold rope found from the rear view mirror in hanging recently defendant’s repainted Cadillac. Her custom-made with a stone engraved, gold ring green turquoise friend, Austin, was in the of defendant’s Reverta who was with possession at him the time of his arrest. Austin Defendant the to hold that gave ring because he observed the him. night police following Defendant’s residence was searched early August 1979. defend- bedroom, ant’s Torrance Police Officer Emilio Paerels retrieved from card, green jacket Inland Door and Gate Champion’s condominium and her Gold “SAM card” from a discount store Redondo Beach. made
Defendant several inconsistent statements his involvement regarding 5, 1979, in the Torrance murders. On defendant was August interviewed by Police Officer the Compton Kay Barger-Collins3 unrelated Julia regarding interview, Marmor homicide.4 this During defendant volunteered informa- tion regarding Torrance murders. Defendant was then interviewed by Torrance Police Officer Green and his Officer partner Paerels. Officer did Barger-Collins not in this interview. participate Defendant waived his counsel, to right remain silent to and stated that he was to speaking officers of his own free will. He further there stated that had been no mention of Torrance officials him offering immunity any other promises or threats with to regard the airport murders.
Defendant stated that while he at was when the murders airport occurred, Rather, he was not the one who pulled he trigger. stood merely Scott, at the door guard for not hangar did enter the Once hangar. Scott had wall, bound the victims and them placed with their backs to the defendant began running to the car because he thought they leaving. were car, Halfway defendant heard one shot then another. trial, 3In Compton this Police Officer was known Barger. as Officer At the time of changed she had her clarity, name Collins. For parties refer their briefs to her as Barger-Collins, Officer as she was at times referred to adopted trial. We have purposes opinion.
reference for of this jury 4The in this case never investigation learned that defendant was at this time under for the unrelated murder of They Julia simply Barger-Collins Marmor. informed that Officer was interviewing defendant an regarding unrelated matter. Defendant Scott divided the re- property. subsequently Defendant to Austin. with a stone he later Scott green gave $60 and gold ring ceived he did had victims the head because he shot the robbery told defendant him. Defendant said witnesses behind to testify against want to leave blame him for the crime. Defendant then Scott was trying learned asked, in a seriousness of an involvement double “I’m curious ... Defendant responded ... are us? you voluntarily talking murder. Why no “not to sit and take murder nobody.” that he was going up rap *18 at his defendant was interviewed inter- again. On August request, Police conducted Officer and Gardena Officer by view was Barger-Collins Both of were the Marmor homicide. Dale Pierce. these officers investigating he and waived his stated that was aware of and freely voluntarily Defendant noted that they constitutional Officer rights. Barger-Collins talking that there were “some additional state- about the Torrance homicides and clarification, to that need or statements that wish[ed] ments [defendant] change.” murders, entered that on of the he and Scott
Defendant stated the night in the to locate Mazda. purse after defendant was unable hangar Champion’s Scott then tied bound the woman. Scott defendant the gave gun. Defendant man. up victims, sitting tied and on
Scott told defendant to watch the who were he told defendant their knees. After Scott had all gathered property, at was shoot. Defendant cocked which already gun, pointed said, Scott ear his was on the temple, finger trigger. woman’s and rob, shoot, we I told we cuz can’t you, “Remember what we anybody got over behind.” her and it with hollering, get leave a witness Scott “shoot kept and would shaking trembling pull we can leave.” Defendant stood so hand, off, and Scott went gun Champion defendant’s grabbed trigger. one Scott then took the and shot Hill the head. fell. gun Approximately two minute between the shootings. transpired 5 interview was tape
Defendant admitted trial that after August made for the he bailiff that the statement defendant on told a played jury, so but he 5 was “not bad” as the one made August August thought around “get he could that.” Vincent, 13, 1979, charged
On Armand who had been with August remodeling misdemeanor violations of home without repair performing license, to and from Torrance courthouse a contractor’s was on a bus jail Vincent, who and Scott as conversed about the minders. with defendant they wristband, defendant, who wearing was a blue was handcuffed to was from defendant and a red wristband. Scott wearing orange separated said, a screen. When Scott “I didn’t have idea we were any going Vincent “Well, know, man, dead kill witnesses anyone,” responded, you don’t talk.” In Scott’s “How did do it?” defendant response question, you shots, said he “killed the man and then the woman” with two and that the victims were tied with their hands behind their back.
2. Evidence Defense The defense evidence consisted of defendant’s third version primarily inconsistencies, on the events for earlier night explanation question, and other witness testimony Vincent’s recollection. challenging
Defendant testified on his own behalf. He had been convicted previously stolen He time in where he receiving property burglary. spent prison, Scott, *19 met who was in for Scott told he defendant would kill prison robbery. he robbed. Defendant people considered Scott a friend.
Defendant was released in He April 1979. was hired as a security guard, and worked time at the part Torrance He was fired sometime Airport. before the murders.
Scott was release, released several months after defendant. his Scott Upon called defendant. Scott and defendant saw each other a half dozen to dozen times before 11. Defendant July sold Scott the later used in the murders. gun murders,
On the of the Hill night and left their car and entered Champion Mazda, the hangar. After examining Scott entered the and hangar pulled on gun the victims. The had been gun in Scott’s waistband. Scott had not defendant, told observed, and defendant had not that Scott had a gun. “had to have been” gun covered Scott’s Defendant green jacket. stayed acting outside as a lookout for the guard. security Scott had the victims lie on the and ground him Hill’s give and keys purse. Scott then tore Champion’s into up cloth and rags long strings made Hill tie up Scott then tied Champion. Hill. Defendant was up still at the watching door.
Scott victims “helped their place] backs up against [the wall.” Scott put everything a blue Hill bag had been and went back to the carrying, wall for something. Defendant assumed Scott was leaving, and started ran, toward running defendant’s car. As defendant he heard about gunshots, as far apart as the noise monitoring recording. There, friend Angie’s. at defendant’s and spent night
Scott defendant he shot victims $60. and Scott said ring gave turquoise Scott left his green jacket Scott days. the Mazda for a couple because he needed credit card gasoline discovered Hill’s Defendant Angie’s. subsequently use, license, in the unsuccessfully attempted pocket which he later helped for the Defendant jury. this jacket Defendant modeled jacket. Mazda, time with Scott. and continued to spend rid of the get Scott a lookout only original being his changed story Defendant claimed Barger- of Officer extensive because to an of more participation admission Barger-Collins Defendant had known threats and coercion. Collins’s for her as an her and had worked He considered a friend several years. informant in the past. 5, 1979, statement, with defendant spoke making August
Before officer and She said she would talk to defendant’s “parole Barger-Collins. to the me out.” hold and talk judge get him lift parole get statement, 7, 1979, inconsistent with and which was to his Prior August statement, Barger-Collins than August more self-incriminating me, statement.” In changed my threats on so I pressure “appl[ied] told him as a narcotics informant. she threatened to expose “[S]he particular, in this in order to in—on part that she wanted more involvement my me her, if with I did not cooperate convincing everything, sound it, me.” “I help basically I to be She wouldn’t exposed. that was was going *20 behalf as far as more on my what she meant she wanted got participation changed in and so forth.” involved being robbery Accordingly, of more extensive a lookout to an admission being his original story only Mazda, the hangar, inside into looking going about lying participation, and the time between the murder holding weapon, victims tying up, shots. “a threat because most
Defendant cared lot” about Barger-Collins’s he in to his Such family. exposure had turned were dealing drugs people and with other in his with his relationships family would cause hardship in most stabbed or killed He also knew that “snitches” get prison. people. however, Defendant, to the woman” shooting also testified that he “admitted “told me of threatened but because Barger-Collins because exposure, to me out that I said it would not matter because she going get anything out, I if that is what was get going so it meant way involving myself any to do.” time to the prior
Defendant further testified that at some indeterminate information, murders, $250 and that had had him for Barger-Collins paid Cadillac used this cost to money part get repainted. pay bus, denied ever Vincent on the prison Defendant seeing discussing on the bus. did not recall ever being murders with Scott Defendant hand- bus; rather, in a cage. cuffed another he was person kept separate West, Los who Angeles County Department Captain Jerry Sheriff’s bureau, worked at the sheriff’s testified that a August 1979 transportation a blue wristband would not be handcuffed to wearing person ordinarily red someone a wristband. wearing
3. Rebuttal Evidence Bond, Los a Angeles County Sheriff’s Joe bus driver from Deputy jail 1972 to testified that it was that a with a possible prisoner charged misdemeanor would handcuffed to a He wearing red wristband. prisoner identified a sheriff’s inmate department special handling request keep defendant, from Scott but away stated that such a would be satisfied request defendant and Scott on keeping different sides of screen. testified that Barger-Collins her purpose defendant on interviewing 5 was in August time, reference to the unrelated Marmor homicide. theAt murders, she knew about the nothing Torrance and defendant volunteered she everything found out about the murders. had not seen
Barger-Collins defendant from 1976 until August 1979. did, however, She have numerous contacts with defendant in her official as duties a homicide detective between She did not 1976. recall whether he had her given information other regarding deal- people’s drug ings, and she had never worked in narcotics or detail. She never drug gave defendant money for information. While she had used informants past, she had never paid information. did money She not consider defendant a friend, and never socialized with him. these she During years developed defendant, with rapport but she did not know if he trusted her. *21 denied
Barger-Collins to him threatening expose defendant. She did tell at some point to his 7 prior August statement that she would to his speak officer and probation to the While she judge. told defendant she he thought was about lying the unrelated homicide she was she investigating, denied indicating that she was not pleased with what he was Defendant was saying. the one who requested the 7 August interview with Barger-Collins.
4. Surrebuttal Evidence tall, Defendant was 5 feet and 2 inches and 144 weighed approximately pounds. Scott was tall, approximately feet and weighed 175 Mr. pounds. Perlo, 180 and pounds, 6 feet tall and between weighed who was
Stan from defendant’s closet apparently the recovered green jacket modeled size, and have would fit a Scott’s would person that it demonstrate Perlo of the murders. found jacket on weapon night concealed loose fitting. and that it was not and large him under his binding armpits, Penalty B. Phase
1. Evidence Prosecution the trial court informed the jury Pursuant to request, prosecution’s been convicted of three felonies receiving defendant had previously With the submission and attempted robbery. stolen property, burglary, convictions, the rested. prior
2. Evidence Defense sisters, and one of his Delores testified Honeywood, Defendant’s mother addition, witnesses, In alcohol abuse. these defend- as to defendant’s father’s sisters, Turner, ant, Bettie Ann testified regarding and another defendant’s wife defendant’s father inflicted his and physical the verbal and abuse children, and defendant’s efforts otherwise monetarily support and family. testified that his father when defendant was
Defendant further disappeared in school until the 10th grade about or 14 old. Defendant remained years His older siblings. and then out to his mother and younger dropped help brothers or sisters did often his mother give any money help. as a Defendant into trouble with law began getting teenager by cars, He was convicted of committing shoplifting, stealing burglaries. He used mari- stolen receiving robbery, property, attempted burglary. old, 16 or on the when was juana years prison, night murders. lack intended to kill on
Defendant testified as of notice that Scott at his of the murders. He remorse at time July expressed presence continued he shot to the the victims. deny response inquiry prosecutor’s defend- whether it would have been to see certain events regarding possible ant vantage made statements from his previously regarding point *22 door, in to state that he had fact defendant modified his hangar testimony entered of hangar “a times.” couple 3, 1979, on August
Since his defendant had taken classes to imprisonment himself raise his educational level and understand better. Defendant tried to other who came to who were young people gang-affiliated, and help prison a desire to deter others from in his following expressed footsteps.
Dr. Michael Paul a clinical clinical Maloney, psychologist professor Medicine, of at the Southern University California School psychiatry testified that he a evaluation on defendant performed general psychological in November 1979. Dr. “obtained much Maloney history pretty [defendant’s] from birth until the time I saw him.” a He administered number of tests, academic intelligence achievement used devices that infor- gave mation about defendant’s motor “perceptual processes,” performed evaluation of general defendant’s Defendant evidenced no personality. signs mental significant disturbance and was not His psychotic. intelligence normal, to be but he an appeared potentially “academic experiential deficit.”
Dr. Maloney had re-examined defendant one month approximately earlier. occasion, On another Dr. Maloney’s assistant psychological readministered some of similar, the same tests given in 1979. The test results were defendant’s overall mental state did seem not different” than when “grossly Dr. Maloney examined him in 1979.
Dr. noted Maloney according records, some of defendant’s prison defendant had taken several academic in courses while prison, receiving grades from A to C ranging minus. He that this indicated opined defendant’s to make ability use productive of his time because prison the classes were Dr. mandatory. did not Maloney discover in anything investigation regarding any “violent attacks ... in connection with” defendant. Defend- records, ant’s pre-1979 prison counselor’s including described defend- reports, ant as a “follower" and “not really problematic,” one who was appropriate for medium security. Dr. Maloney had “no data indicate that [defendant] would not function appropriately" prison. Dr. Maloney’s opinion, defendant had potential to make some sort contribution in prison by using his time productively and as an serving other who example persons were incarcerated.
Dr. Maloney observed that defendant had a “chaotic history,” including home, multiple father, siblings, broken an alcoholic and possible learning disorder. He was of the that defendant would have opinion trouble function- If, as a however, ing responsible person society. defendant were impris- life, oned for his entire would be probably nonproblematic.
162
II. Discussion Phase
A. Guilt
1. Issues Pretrial Prosecutor
a. Motion to Recuse his motion denying the trial court erred Defendant contends that Martin, that this error neces District Robert Attorney to recuse Deputy is without merit. a trial. This contention sitates new a conflict of recuse Martin on the “that ground Defendant moved to it that the defendant would unlikely exists such as would render interest that Martin relied on the fact was a fair trial.” Defendant receive above, trial, noted first in which the as in defendant’s judgment, prosecutor Defendant also noted that Martin was the for Wheeler error. was reversed that argued then of Jose Fuentes. Defendant in the trial prosecutor ongoing [Bjlack limit number of challenges “Martin’s use peremptory in conflict with his not to duty first is jurors defendant’s potential trial] [in account of their race on the solely presump- on challenge potential jurors be to consider the as a will unable impartially tion that jurors group [B]lack further noted that case a defendant.” Defendant State’s against [B]lack in which 10 of the 14 a case Martin currently “trying capital [Fuentes] Defend- he used in that case were against challenges [B]lacks.” peremptory if the is not drawn that he could not “receive a fair trial jury ant contended Therefore, Mr. a cross-section of the .... community from representative for the defendant.” The must be recused in order to ensure a fair trial Martin reasons. trial court denied the motion without stating any attorney 1424 to recuse district Section that motion provides it a conflict of “shall not unless is shown the evidence that granted would such as would it unlikely interest exists render 141, 148 (See Cal.3d (1983) receive a fair trial.” v. Conner People [193 281, 148, 5]; (1991) 666 P.2d v. Breaux Cal.4th Cal.Rptr. People [3 conflict, “within the of section P.2d A meaning Cal..Rptr.2d 1424, exists whenever the of a case evidence a reasonable circumstances not exercise its discretion possibility may office attorney’s] [district Conner, v. 34 Cal.3d function in an evenhanded manner.” supra, ary 148.) recuse was “In whether a a motion to determining p. ruling standard.” (People court abuse-of-discretion proper, reviewing applies 1348]; v. 756 P.2d Hamilton Breaux, 293-294.) 1 Cal.4th at supra, pp. *24 well We conclude that the trial court acted within its discretion in concern in denying making the motion to recuse. Defendant’s sole this would, future, in the him motion was that Martin act a deny representative However, in of the and thus a fair trial. community cross-section jurors we are not that Martin’s earlier error meant that the persuaded district would not “exercise function attorney discretionary making peremp [his] [in Conner, in an this tory challenges] evenhanded manner" in trial. 148.) at 34 Cal.3d To follow defendant’s supra, p. argument its logical conclusion, trial, time a makes a at mistake a he will any prosecutor automatically recusal at We subject any retrial. find no subsequent basis this result in section 1424.
Moreover, I, in Turner we concluded that while Martin failed to sustain his burden that his were not showing challenges peremptory predicated bias, the of the group reasons was “inadequacy prosecutor’s compounded by the court’s of those reasons at face apparent acceptance value. In each instance the court listened to the without prosecutor question promptly I, denied the (Turner motion without comment.” 42 Cal.3d at supra, pp. Thus, 727-728.) the trial court here was within its discretion in impliedly that Martin’s lack concluding in first trial did not adequate explanation mean he “a vendetta possessed against Black defendants and Black jurors,” as defendant asserts. II.A.l.b., as discussed more in
Finally, fully post, defendant has the part remedy responding Wheeler perceived violation by timely objecting stating facie case of prima The group bias. trial court could have concluded that the reasonably of this was availability remedy sufficient to curtail any possible iteration of Martin’s first trial error.
Defendant advances two additional reasons of his recusal support motion. These arguments not raised below and were therefore waived. Moreover, both of the alleged that Martin made improprieties, inconsistent trials, arguments defendant’s and Scott’s separate and that committed trial, Wheeler error in this occurred after the trial on the judge’s ruling motion, recusal and thus are not considered us in properly by reviewing trial court’s on that motion. ruling claims,
Defendant further “The of a conflict actuality appearance impropriety increased by Martin’s similar intervening conduct in” Peo motion, v. Fuentes. ple At time of the the Fuentes trial was ongoing. verdict in that case was reversed ultimately this court v. Fuentes 818 P.2d While Martin’s 75]. actions were criticized in Justice Mosk’s the basis for concurring opinion, failure to whether the was the trial court’s determine reversal majority’s to the chal particular asserted reasons jurors actually applied prosecutor’s (Id. 722) not misconduct on part prosecutor. pp.
lenged, Moreover, after the court’s here. ruling our opinion appeared long *25 did its in denying trial court not abuse discretion
We conclude that recusal motion. defendant’s Exercise Peremptory Challenges
b. Prosecutor’s of used Defendant contends prosecutor impermissibly peremptory in from the to exclude members a cognizable group jury challenges a from a cross- of his to trial drawn right by jury representative violation I, section 16 of the Califor of the article community, guaranteed by section Constitution, and of the prospective jurors’ right equal protection. nia are merit. These claims without Black, White. used is and both victims were The prosecutor
Defendant Black jurors. of his six against four peremptory challenges prospective Black used of his seven challenges against Defendant two peremptory whom identified as both of jurors, prosecution prospective five that was contained jurors. ultimately impaneled acceptable jury Black jurors. remove
It is that the challenges well settled use of peremptory on the based on basis of a bias jurors presumed prospective solely group Constitu in a violates both the state and federal racial membership group Wheeler, 276-277; Batson v. 22 Cal.3d at (People supra, tions. v. pp. 82-83,106 79, 69, 1712]; see (1986) U.S. 89 L.Ed.2d S.Ct. Kentucky 476 [90 _ _ 89, 97, _, (1994) v. ex rel. T.B. U.S. L.Ed.2d J.E.B. Alabama [128 1419, Batson, 1421].) a party 114 S.Ct. Under Wheeler and ‘“[i]f believes his is to strike challenges jurors opponent using peremptory alone, bias he must raise the fashion ground group point timely make a case of such to the of the prima facie discrimination satisfaction First, ... make as record circumstances court. he should a of the complete Second, are as is feasible. he must that the excluded persons establish members of a within the meaning cognizable group representative Third, he must cross-section rule. from all the circumstances of the case strong show a likelihood that such are because persons being challenged ” 1132, 1 1153- (1992) their v. group (People association.’ Howard Cal.4th 268, 1315], 1154 824 P.2d v. Cal.Rptr.2d People italics original; [5 140, 664, (1993) 664].) Garceau 6 Cal.4th 171 P.2d 862 Cal.Rptr.2d [24 If the trial court finds that the has facie established prima case, the burden shifts to the “a race-neutral expla prosecution provide related to case to for the challenge. nation be tried” peremptory particular
165
714;
Fuentes,
Kentucky,
Cal.3d at
Batson v.
supra,
v.
54
supra,
p.
(People
However,
88].)
need not
416 U.S.
L.Ed.2d at p.
explanation
97 p.
[90
(Batson Kentucky,
v.
416
challenge
supra,
be sufficient to
cause.
justify
88];
(1989)
v.
L.Ed.2d at
see
Johnson
U.S. at
97 p.
p.
[90
569,
1194,
1047].)
Jurors
excused
P.2d
may
Cal.Rptr.
[255
is
so
as
long
based on “hunches” and even
exclusion
“arbitrary”
permissible,
v. Hall
(People
the reasons are not based on
bias.
impermissible group
161,
(1983)
854].)
672 P.2d
Cal.3d
[197
is
uses
There
that a
his or her
presumption
prosecutor
peremptory
Clair
2 Cal.4th
a constitutional manner.
challenges
828 P.2d
We
deference
the trial
great
Cal.Rptr.2d
give
court in
sham
*26
bona fide reasons from
excuses.
v.
(People
distinguishing
Fuentes,
714;
Wheeler,
(1) Prima Facie Case We conclude that the trial court within acted its discretion in that no case determining prima facie had been established for prospective Palmer, Shaw, jurors Herman Alice and William Montgomery.
At the end voir dire session in which Palmer and jurors prospective stated, Shaw were challenged peremptorily by the the trial prosecutor, judge record, “For the Juror Palmer Juror were both Shaw Black.” Defense counsel then made a Wheeler motion as to two In jurors. those prospective existed, arguing that a facie case counsel both prima defense stated that Black, and had indicated that they could be fair and impartial. stated,
The trial court “Let me I indicate before ask the to prosecutor that—at this respond I’m not facie that there’s point, making finding prima been [Bjlacks any systematic exclusion of from the But for the jury. record case, in the I’m going ask the prosecutor give me—to articulate the reasons excused those why two But I want the record to be jurors. clear that I’m making not as a request any result of facie prima finding exclusion of on the of color. I’m prospective jurors basis it Again, doing because of the reason that the case was And I reversed. want the record just to be as clear as it can be. So that’s the I’m reason for that why asking The response.” “I prosecutor think the law is clear that unless a responded, made, facie is prima case there is no The response required by People.” answered, for the doing “I law is clear. I’m this merely think the court with the court’s The then prosecutor complied reasons I’ve articulated.” his reasons. and delineated request challenge against
After the exercised peremptory prospective prosecutor the trial asked both counsel to bench approach Juror Montgomery, judge stated, “I on the record that Mr. is Black.” Montgomery want to put mistrial, the “district has attorney Defense counsel moved for a asserting Black, and his Montgomery dismissed was minority groups,” systematically addition, noted that defense counsel Montgom- answers “appropriate.” view on the death favor prosecution. ery’s penalty appeared record, stated, I find no The “Let me indicate for the again, prima judge as to this why juror facie case for requiring prosecution respond the record will reflect there are five Blacks on presently excused. And again, who were at the time the did accept jury the jury present prosecutor . . And I’m also into consideration . . . that one . taking juror, panel. Turner, the defense was a Black whom juror who excused by juror—a [was] have on the ... So at this would kept jury panel. prosecution Martin, to ask Mr. if could state reasons your ... I am going you point, with to Mr. regard Montgomery.” prosecutor complied. *27 issue of whether a
We first conclude that resolution of the prima not solicitation facie case was made is mooted the trial court’s by subsequent (Cf. New for his v. justifications challenges. prosecutor’s Hernandez 352, 395, 405, York U.S. L.Ed.2d 111 S.Ct. 1859] no of a facie finding prima [prosecutor justified challenges although express made, of discrim case had been hence issue of whether a facie case prima Fuentes, moot]; ination had been made became v. 54 Cal.3d at People supra, Fuentes, 717.) counsel made v. defense p. supra, the first of several Wheeler motions “after the exercised each of prosecutor (Id. 712.) at his initial four Black challenges against jurors.” p. prospective “The trial court asked the for an but the prosecutor prosecutor explanation, (Ibid.) was not one.” The court indicated that before trial prepared give ” “ commenced, (Ibid.) it would ‘have set forth the the reasons by People.’ thereafter excused four more three of prosecutor jurors, prospective (Ibid.) whom Black. “When defense counsel on Wheeler again objected the court stated that it would ‘consider grounds, objection] [counsel’s (Ibid.) motion’ but did further into the matter.” continuing inquire dire, “At the conclusion of voir the court addressed Wheeler finally Fuentes, 712.) motion.” v. 54 Cal.3d at After (People hearing supra, p. for his challenges, two hours of the approximately justifications prosecutor’s (Id. 712-713.) “On the the matter under submission. at pp. the court took facie had been the court ruled that no showing following morning, prima however, examined the this the court ruling, prosecu- made. Despite [then] (Id. Black at jurors. tor’s reasons for excusing” prospective p. purported added.) italics trial, the trial court’s statement that before it would We concluded that the reasons set and the court’s instructions “have People,” forth voir dire that the obtain his records and his following justify prosecutor that the court had found a implicitly challenges, “clearly prima indicate[d] race,” facie case of exclusion on the basis of its improper despite contrary Fuentes, on the at ruling supra, Cal.3d following day. pp. 715-716, italics in We instructed trial courts on the original.) proper proce- made, dure: “When a Wheeler motion is the motion party opposing motion, i.e., should an to the given opportunity argue respond no facie case has been made. At this no for the prima point explanation exercise of the need be After peremptory challenges given. argument, trial court should rule on whether a facie has been expressly prima showing 716-717, (Id. made.” fn. italics in pp. original.) With the trial court here followed these nearly clairvoyant accuracy, even guidelines, retrial our decision in though Fuentes. preceded Prior to reasons soliciting prosecutor’s justifying challenges, case, court ruled that it did not find a expressly facie and that it prima only asked the for his prosecutor justifications purposes completing record in case the court on with its conclusion. Under these appeal disagreed circumstances, the issue of whether a facie case has been established prima moot, is not even though into the reasons subsequent inquiry prosecutor’s Thus, record,, occurs. when an court is with such a appellate presented *28 concludes that the trial determined court no properly that facie case prima made, it need not review the of counsel’s for the adequacy justifications peremptory challenges.
Second, we conclude that the trial court here acted within its
discretion in
that defendant
determining
had failed to state a
facie case
prima
of discrimination. In
defendant failed to establish from all the
particular,
circumstances of the case a
likelihood that such
were
strong
persons
being
Howard,
because
challenged
of their
association.
v.
group
(People
supra,
Rather,
1154.)
Cal.4th at
p.
bases for
a
facie case
only
establishing prima
cited
defense
counsel were that all of the challenged prospective jurors
were Black and either had indicated that
could be fair and
they
impartial
in fact favored the
This is insufficient.
v. Rousseau
prosecution.
(People
526,
(1982) 129
536-537
counsel’s
Cal.App.3d
Cal.Rptr.
[179
892] [defense
“ ‘there
two
on the whole
panel,
they
that
were only
[B]lacks
statement
”
a
district
fails to establish
challenged by
attorney’
were both
prima
1154-1155;
Howard,
case];
v.
at
see
Cal.4th
People
supra,
pp.
People
facie
1174,
(1986)
Cal.Rptr.
v. Dominick
1193-1196
Cal.App.3d
[227
course, a trial
should not “blind itself to everything
Of
court
except
Howard,
v.
1 Cal.4th at
(People
supra,
defense counsel’s presentation.”
p.
dire,
Here,
observed
was in
1155.)
the trial
who had
the voir
the best
judge,
relevant
to determine under “all the
circumstances”
case
position
“
”
there was a
likelihood’
these
were
‘strong
jurors
whether
prospective
Howard,
v.
“because of their
association.”
group
(People
being challenged
Johnson,
1156;
v.
(2) Race-neutral Reasons that have stated above once an court concludes the trial We appellate made it court determined that no facie case was need not properly prima for the review counsel’s if adequacy justifications, any, peremptory However, case, of this we given procedural history challenges. unique trial have elected to such an evaluation. We conclude that the court perform acted within its discretion in the reasons determining proffered by which prosecutor challenges, supported by support peremptory *29 record, were race-neutral. Juror Herman Palmer Prospective Palmer, the ob
In his reasons for Mr. stating excusing prosecutor that Palmer “had an extremely poor English language. served grasp
169 there were between to deliberate exceedingly long pauses He had He couldn’t understand the He had a very poor comprehension. questions. acknowledged to him the court.” The given prosecutor instructions difficult, but observed that he had are somewhat “Witherspoon” questions twice, once, not but three times.” for Palmer “not repeated questions 776, (1968) U.S. 510 L.Ed.2d 88 S.Ct. v. Illinois (Witherspoon [20 841, 1770]; (1985) v. Witt U.S. 412 L.Ed.2d see Wainwright [83 844]; (1987) 43 Cal.3d S.Ct. v. Ghent 767-769 Cal.Rptr. [239 1250].) P.2d The stated that Palmer had then to look the word prosecutor attempted up “deterrent” in the and the court noted that he could not locate it. dictionary, Palmer “had no answers in And he sat on a many questionnaire. hung “found him as to in favor of jury.” Finally, prosecutor being questionable the death Palmer would penalty.” prosecutor got impression modify his answers on who was him. Because it was the depending questioning he stage could locate a better early challenges, prosecutor thought counsel, than Palmer. After defense the court juror hearing argument by stated that it “listened he carefully prosecutor’s] explanation why [the made the found the to be reasons and denied challenge,” adequate, motion. course,
Of where a concern for a to understand prosecutor’s juror’s ability record, is it is a basis for v. supported by (People proper challenge. Barber Defend Cal.App.3d 397-399 however, ant that this basis argues, was insufficient here because the prose cutor did not excuse other non-Black who similar intellec jurors displayed However, tual limitations. we have previously rejected procedure an “undue places of the stated reasons for the emphasis comparisons challenged excusáis with similar characteristics of nonmembers of the group who were not that such a challenged by prosecutor,” noting comparison is one-sided and that it is realistic to a trial to make such expect judge Johnson, detailed midtrial. v. 47 Cal.3d at comparisons supra, p. 1220.) addition, we have observed that “the factors same used evaluating
juror may different on the number of given weight depending peremptory has at the time of the exercise of the challenges lawyer particular Thus, Johnson, 1220.) at the challenge.” (People supra, p. of voir dire a exercise his beginning freely prosecutor may challenges who to have or communi against person appears difficulty understanding if cating, later be more hesitant with his on the that he challenges ground soon, exhausts them too be forced to to trial with an even more may go *30 Moreover, (Ibid.) “the of the selection very dynamics jury problematic juror. record, difficult, if not on a cold to evaluate make it process impossible, of one with the retention of another challenge juror the compare peremptory 1221.) (Id. on to be similar.”5 at appears substantially p. juror paper [who] a Palmer’s of on a constitutes Finally, experience sitting hung jury the which can reach a prosecution, jury concern for seeks that legitimate sum, In the trial court did not abuse its discretion in unanimous verdict. these race-neutral sufficient to finding satisfy explanations prosecution’s burden. Shaw
Prospective Juror Alice Maureen Shaw, for Ms. noted excusing prosecutor reasons stating it from Shaw’s herself seemed “there’s body language way expressing within deal of her. She seems mad or hostile about some hostility great The directed at conceded that thing.” hostility might prosecutor him, but he it would be her on the thought “very jury. that chancy” put
The noted Shaw “said she didn’t think that that prosecutor justice of the of her Martin ascertain done the murder father child.” could not whether that would favor defense or The more experience prosecution. her, he the more “there he that was a questioned got feeling boiling pot within her.” had her being Shaw also witnessed fiancé shot and seriously was uncertain effect had injured. shooting Martin what this on her. In Shaw’s described defendant as man young “she questionnaire, I asked she from an And when her whether outstanding family. [who came] defendant, dire, knew the she that.” ultimately then On voir Shaw repeated stated that did not she know defendant.
The also with the prosecutor expressed concern that Shaw trained Services, of Social because he one time had been the “Direc- Department tor of Welfare for the State California.” “hottest During period events,” welfare he had a him number suits filed against personally in the not ask about this reported media. did Shaw prosecutor he did not to announce that had been After subject because wish his job. counsel, the “listened hearing by defense court stated that it argument made carefully challenge,” prosecutor’s] explanation why [the found reasons to be the motion. denied adequate, similarly argues reject justifications 5Defendant that we should Martin’s other asserted excusing the challenged prospective jurors to the he did not excuse other non-Black extent jurors apparently exhibiting reject arguments We these for the the same limitations. likewise just reasons stated. *31 made on the basis of a challenges upheld peremptory We have repeatedly (See with law enforcement. People juror’s negative experience prospective 863, 70]; 605, 765 P.2d (1988) Cal.3d 625-626 v. Walker [253 275, 277, addition, Wheeler, 18.) fn. In v. Cal.3d at supra, pp. People “ to ‘bare looks and are made in challenges properly response peremptory ” one side. v. (People alienate by prospective juror may gestures’ Wheeler, 276.) court acted within its 22 Cal.3d at The trial supra, p. reasons race-neutral as to this juror. discretion in finding prosecutor’s Juror William Montgomery Prospective
In his reasons for Mr. stating excusing Montgomery, prosecutor said, is the death He would juror definitely against opposing penalty. “[T]his if never commit on that. . . . said he was faced with the completely [H]e issue, he would most vote for life rather than death.” The likely prosecutor said that he did “not wish to run the risk of on that putting somebody panel that feels that life without the strongly imprisonment possibility parole would what would lean to and vote for.” The trial court they probably found that the and sufficient to prosecutor’s explanations “adequate the use of the The court also observed that justify peremptory challenge.” to this did which “just prior challenge, prosecutor jury panel accept included five [B]lacks.”
We have “the previously upheld exercise of prosecutor’s peremptory who, challenges against death al- penalty jurors skeptics—i.e., prospective Illinois, not excusable for though cause under v. Witherspoon supra, 391 U.S. nevertheless reservations about the death expressed penalty Walker, 624; . . . .” 47 Cal.3d at see v. Pride supra, p. 3 Cal.4th 833 P.2d We see no Cal.Rptr.2d reason to reconsider that conclusion here. The trial court acted within its discretion in reasons race-neutral as to this finding prosecutor’s juror.
Prospective Juror William Erwin
Defendant did not challenge People’s peremptory challenge Erwin, William either at the time he was excused or when prospective juror the trial later that judge stated for the record that Erwin was day expressly Black. The next defendant day, objected Wheeler to the grounds prose Shaw, cutor’s peremptory challenge Palmer and prospective jurors that motion was argued. Later that to the day, objected prosecu tor’s peremptory challenge the course prospective juror Montgomery. of these defense proceedings, counsel stated that Black prospective four had been excused jurors Erwin. The prosecution, apparently including “The last time there was articulation requested
trial responded court This two who were excused.” statement jurors] with [prospective regard *32 that no had been made recognition to be the court’s objection appears We raised Erwin. conclude defendant waived objection, regarding excusal, the trial court did time on to Erwin’s and that for first appeal, err reasons findings regarding not in make failing request prospec Howard, 1 Cal.4th at (See People tive dismissal. v. supra, pp. juror’s 577, 874, 1157-1159; (1990) v. 52 Cal.3d People Hayes [276 376].) 802 P.2d on court in the Wheeler motions based
Because trial denying at least one race-neutral these reasons found proffered implicitly explanation no abuse of discretion occurred. for each peremptory challenge, questioned Moreover, Pride, 230.) because no race- v. 3 Cal.4th at supra, p. made, rights based were the equal challenges protection peremptory (See (1991) Ohio were not denied. Powers v. subject jurors prospective 411, 400, 424, 111 S.Ct. U.S. L.Ed.2d 409 [113 finding concerning the trial court “never made any Defendant asserts that his use of Martin’s for of peremptory challeng ‘explanations’ adequacy addition, above, In on relying es.” set forth the record is otherwise. As Fuentes, 707, that the defendant asserts trial supra, judge However, into the reasons. the basis failed to prosecutor’s adequately inquire court’s to determine whether for our reversal Fuentes was trial failure reasons to the asserted prosecutor’s actually applied particular jurors Here, contrast, 722.) (Id. at the trial court by carefully challenged. pp. reasons each excusing elicited the prosecutor’s particular juror counsel these reasons in extended discussion with both engaged regarding before the Wheeler motions. denying on the exclusion of two defendant
Finally, initially challenged appeal Black alternate He has since withdrawn jurors. expressly prospective event, no claim letter brief and at oral alternate argument. any jurors in, any and hence it is to consider whether unnecessary ever substituted Moreover, in their Batson violation Wheeler violation occurred selection. any could have defendant. possibly prejudiced Motions
c. Evidence Suppress (1) Statements Suppression of Defendant’s should been Defendant contends that his statements have August because were the of an delay arraigning suppressed they product illegal 825,6 counsel for him in violation of former section and appointing contravened the 48-hour rule for determinations of cause judicial probable forth in Riverside v. 500 U.S. County McLaughlin set 49, Defendant that “a new trial should be L.Ed.2d S.Ct. asserts 1661]. ordered on this alone.” We conclude that ground any delay arraigning and reasonable and did not him. necessary prejudice (a) Factual Background 3, 1979, Defendant was arrested on Friday August charges conspir- *33 to commit and an in acy robbery being ex-felon of a On the possession gun. 5, afternoon of while still in on Sunday, August custody these charges, defendant was informed that he was under arrest for the Torrance Airport murders. He made the statements on the afternoon of challenged Tuesday, 7, and was on the August arraigned 8. morning August 7, 1979, Defendant moved to both his 5 and his suppress August August on statements that the grounds statements were not and that voluntary were obtained while he was in they detained violation of being illegally motion, former section 825. At the on this evidentiary hearing Torrance Green, Police Officer the investigating officer of the Torrance Airport murders, testified in detail about his intense of the case between preparation Friday night at noon. Green Tuesday observed that after defendant’s statement, he now had two Sunday who at the suspects being acknowledged scene, murder but who were blaming each other. He felt “obligated]... and isolate who was the try man. ...” Green’s actual gun investigation defendant concluded on He then most of Sunday night. spent Monday Tuesday morning case to be to the district preparing presented attorney’s 1979, 6In section provided: “The defendant must all cases be taken before the magistrate event, arrest, unnecessary without delay, any and in within two days after his excluding however, Sundays holidays; provided, days prescribed that when the two session, expire herein at a time magistrate when the court in sitting which the is is not in such time shall be extended to regular judicial include the duration of the next court session on the day immediately following.” (a), Section provided: subdivision “When an arrest is made arrested, without by peace a warrant private person, person officer or if not otherwise released, shall, unnecessary delay, without be taken before the nearest or most accessible magistrate triable, county in the in which the complaint stating charge offense is and a against person the arrested magistrate.” parties shall be laid before such While the do not to, reveal, point warrant, and the record does parties not an arrest have assumed both appeal below and on two-day that the applies limitation of section 825 to a warrantless arrest. People Hughes (1974) (See Youngblood 508]; Cal.App.3d Cal.Rptr. 673-674 [113 (1988) 1302, 1334, v. Gates (dis. Cal.App.3d Cal.Rptr. George, fn. 3 opn. of [246 775] J.); 757, 787, v. Bonillas but see fn. 11 771 P.2d issue, parties deciding Because the have not raised the we also assume without that the two-day limitation is applicable. included interview coordinating transcripts prepar- office and filed. This Green under Officer was the impres- ing reports regarding investigation. him, circumstances, in a sion that section case required alleging special of all submitted to the district office attorney’s to include two copies papers submission, actual defense attorneys. including copies, potential 500 pages. approximately South Munic- Officer Green filed the defendant in against Bay complaint . . at noon. Green “knew as a matter of . Court ipal Tuesday policy, do and defendant was arraigned wouldn’t afternoon they arraignments,” Green had that officers Wednesday morning. requested investigating to the homicide not ask defendant reference “any questions Marmor Torrance murders.” The 7 interview was not done with Officer August or at his and no Torrance officers at- knowledge Green’s request, police law tended the interview. No one at time from enforcement any any agency Green put that Officer off requested filing complaint. Aranda, Court called the de- Judge
South Bay Municipal Benjamin fense, arraignments as regarding felony testified court’s policies *34 held after 10 o’clock in the were not August general, arraignments 1979. time, a had If an was needed after that morning. arraignment special request be to the then to court. Whether to made the judge assigned arraignment such a on the and the number granted depended judge request particular of calendar. seriousness of the would already charge probably cases on The it.” there was no not “enter into Aranda recalled that Judge specifically in the directives mention of to the 10 a.m. rule any arraignment exception departments sent 1979. police
The first concluded that court denied the motion to The court suppress. occasions, his three and know- rights defendant was advised of on properly section “825 as without coercion waived those It interpreted ingly rights. of to and including Tuesday.” the the defendant allowing arraignment up With The that the was obviously complicated. court observed case very intent, not it did interpret to Officer Green’s the court stated that regard attorney’s section of submitted to the district require copies all papers Green had office but found that Officer attorneys, to be to defense provided acted belief such were law. by faith that good copies required “[H]e or for nefarious illegal was not that time untoward taking any purpose any District . . the case Attorney’s . personal attempt delay taking office.” did fail to Officer Green finding court also made “a factual that case filed with
take on the date that he defendant arraignment no there were court South he was of the impression in the because Bay Court,” allowed in the afternoon the South Bay Municipal arraignments and that Officer Green’s had been substantiated Aran- testimony by Judge found da’s to the same effect. The court that “at no did testimony point office Detective Green of the case to nor delay taking prosecutor’s did he than the defendant for other arraignment any purpose delay he testified to. I find he did not either the purposes specifically delay taking office the case to nor the of the defendant for prosecutor’s arraigning the defendant in so that he could any custody longer purpose keeping interview the defendant.” found that if the Finally, arraign- court even ment was after the in section “defendant’s statements period prescribed coercion,” on not made as result of but [August 7] any promises—any “were made freely voluntarily beyond reasonable doubt.”
(b) Analysis
On
does
appeal, defendant
not renew
that his state
challenge
Rather,
7, 1979,
ments were
he
that his
involuntary.
contends
August
statements should have been suppressed because
were the
of an
they
product
unreasonable
under
delay
County
section
Riverside v. McLaugh
lin,
Section 825 an held within two requires arraignment days arrest, Here, defendant’s excluding Sundays holidays. argues, ruled, and the trial court that this As two-day expired Tuesday. period above, noted defendant’s statements were within made this period, although Gates, was not (See until arraigned Wednesday Youngblood morning. supra, 1315.) Cal.App.3d p. *35 course,
Of section 825 does not a “authorize detention in two-day Instead, all cases. ‘a limit what placed] be considered a upon may [is and a of necessary delay, detention less than two if unreasonable under days, circumstances, the is in violation of and the statute’ of the Constitution.” 289, 303, v. (People Thompson (1980) 27 Cal.3d 329 611 Cal.Rptr. [165 However, P.2d 883].) murder is consid of charge generally “[t]he ered to be the most of all serious and it not be charges, criminal should 817, (1969) publicized lightly v. 270 casually.” (People King Cal.App.2d Here, 823 145].) the of Cal.Rptr. case involved double potential [76 charges murder, robbery, and the concomitant of circumstances. In view the special involved, of the decisions the discernment complexity charging including of each level of the was not unreasonable. suspect’s culpability, delay Bonillas, 787; (People v. 48 Cal.3d at v. 270 supra, People King, supra, p. at 823 in the p. “for of Cal.App.2d [delay arraignment purpose untangling skein of circumstantial evidence which five in varying implicated suspects and whom to degrees” deciding with murder charge upheld].) 176 addition, used time from the indicates that Officer Green the record defendant, but rather to not to further Wednesday investigate
Monday for submission to district necessary reports transcripts coordinate the Indeed, he office and filing complaint. attorney’s complete not be interviewed about Torrance defendant requested specifically Thus, is evidence that murder there no investigators. murders the Marmor state- challenged for delayed obtaining the arraignment purposes 787-788; Bonillas, v. King, Cal.3d at People v. 48 (People supra, pp. ments. 823.) at 270 p. supra, Cal.App.2d
Moreover, resulted arraignment to assert how in any delay defendant fails the fact that he was in 7 statements. Defendant does not challenge his August At his to remain silent to counsel. informed of and waived right fully interview, trial, defendant requested it was established defendant is one in but contend otherwise. Delay arraignment does now v. Morris of a statement. (People factor voluntariness determining 152, 720, 949]; v. 200 807 P.2d (1991) People 53 Cal.3d [279 statement, 329.) Cal.3d at To exclusion of Thompson, supra, p. justify or that there that the admissions delay defendant must show produced detention admissions was an essential connection between the illegal 329-330; v. (See Rogers at Thompson, supra, v. 27 Cal.3d guilt. pp. (1955) P.2d No such connec Court 10-11 [291 Superior tion is demonstrated here.
Rather, it is “nonsensical” believe asserts that baldly made the challenged he 7 interview and requested August would have and that the been and had counsel statements if arraigned appointed, is This arraignment. were a direct delay statements product Bonillas, 788-789.) at supra, insufficient. v. Cal.3d pp. violated also that the arraignment Defendant argues delay in County set forth determinations of cause judicial probable 48-hour rule L.Ed.2d Riverside v. 500 U.S. at McLaughlin, pages supra, page [114 of 71-72], L.Ed.2d 420 U.S. and Gerstein Pugh 71-72, (state and reliable determination S.Ct. “must fair provide 854] *36 of liberty, for restraint cause as a condition probable any significant pretrial either be a officer by and this determination must made judicial [fn. omitted] (1994)_U.S._, arrest”). (See Powell v. Nevada before after promptly 1, 7, 1280, all _[128 retroactive to [McLaughlin 114 S.Ct. L.Ed.2d 1283] where, to does direct us decided].) not it was Defendant not cases final when 5 7 statements or in either written motion to his and August his suppress motion, Amendment challenge on this his Fourth argument oral 39-page is raised. or arraignment in either a cause determination delay probable
177 claim not in Our own review of the record indicates that this was raised motion, and oral overwhelm- defendant’s written that counsel’s argument violated, on and and what focused whether sections 825 849 ingly factors on the and of making effect other voluntariness delay defendant’s statements. the oral on statements at the motion even only argument remotely a Gerstein claim are the “The is
suggest
following:
requirement
really
in both state and federal
as
one to
recognized
practices
being
prevent
it
for
interrogation.
unwarranted
To make
the accused to be
police
possible
advised of
him to
bail
promptly
right
his
counsel
enable
obtain
and to
have the issue
cause
a judicial
arrest determined
probable
by
officer,” and “the failure to take the arrestee
a
before
without
magistrate
is,
fact,
unreasonable or
unnecessary
false
It is
delay
imprisonment.”
from
context
these statements
apparent
reference
“federal
practice[]”
(McNabb
to the McNabb-Mallory rule
v. United States
(1943)
819,
608];
Moreover, we decline to find that a Gerstein was made this argument case when counsel amade in a single reference passing argument 39-page the determination of cause officer. We therefore probable by judicial conclude defendant waived his Fourth Amendment claim not making specific and on timely this v. objection ground below. Ashmus 932, 973, (1991) 112, 54 Cal.3d fn. 10 820 P.2d Cal.Rptr.2d [general [2 214] rule that to the questions relating evidence will not admissibility reviewed on in the appeal absence of specific and in the timely objection trial court on the ground to be sought Benson urged People appeal]; (1990) 754, 786, 330]; fn. 7 802 P.2d Cal.Rptr. [276 v. Rogers Cal.3d P.2d sum, the trial did court err defendant’s motion to denying 7, 1979, suppress his August statements.
(2) Warrantless Detention Defendant contends that the threatened and actual detention of defendant unlawful, and Scott was contends that evidence discovered in implicitly defendant abandoned Chrysler should therefore have been suppressed. We conclude that the discovery the evidence was not the of an product detention, unlawful threatened or actual and that the motion to this suppress evidence was therefore denied under properly both Fourth and Four- Constitution, teenth I, Amendments to the federal and article section 13 of *37 1979, in defendant’s crimes occurred the Constitution. Because California the in June electorate subject Proposition by are not the they passage Constitution, I, the article amendment to California 1982 and the consequent (d). Smith subdivision section 667 P.2d (a) Factual Background John Mitchell testified at the section Officer Michael Ard and Officer 31, 1979, in they patrol the were on July 1538.5 On hearing. evening as a Ard had 10 years’ police vehicle. Officer experience marked police officer, 1-year 20 arrests in the same area over a for period and had made in modus Robbers would work pairs operand!. robbery involving particular clubs; would which were with leaving at card one identify patrons in a car and the other would wait apparently substantial sums of money, home, and club. The would then follow one of these patrons outside the pair there rob the victim. Scott, men, were seen two later identified as defendant
That evening, out of the valet area Ard and Mitchell driving Chrysler parking Officers driver, in was the and Scott of the Horseshoe Card Club Gardena. Defendant who was familiar with the people performed was the Officer Ard passenger. service, in car worked at the club. and knew that neither person valet club, to see defendant The officers left the and returned five minutes later lot. Officer Ard wondered and Scott the Horseshoe Club reentering parking club.” were if were there to someone if they “cruising they pick up returned, The left for 15 minutes. When they officers again approximately of the club’s Officer Ard saw defendant out driving before midnight, shortly what were they doing He was to wonder driveway. “starting just exactly lot.” parking so he order to stopped Ard was “too late to the front get plate,” Officer clear, he could back and look the rear up plate. wait for traffic to so that screeching. he a loud noise and tires engine As soon as he heard stopped, vehicle. from Chrysler accelerating rapidly away police began one Chrysler approximately Officer Ard backed up pursued Officer Ard not the siren. and a half blocks. He tinned on red but light occurred, and he have may followed the because a crime thought Chrysler them, he would have If he had the two men were scene. leaving stopped such a reckless manner. asked them why they driving thought Chrysler in the direction Officer Ard proceeded generally Scott to street. He drove He Scott on the past gone. spotted walking *38 on, the and parked locate the The car was and with Chrysler. running, lights Both doors were unlocked. Officer Ard backed up, appeared unoccupied. car, of and to because wanted to talk with out the told Scott he jumped stop car, of him. Scott denied in or the being any Chrysler, any knowledge When Ard said he was from a local store. Officer asserted that liquor coming there was not an store Scott continued to insist liquor nearby, open been in a store. liquor meantime,
In the Officer the if Mitchell vehicle to see the approached other was still in the He man car. entered the vehicle to retrieve a of piece in the sight identification on center console in order to plain possibly who had been in the He off the identify ignition car. also turned Chrysler’s The identification was Scott’s state card. lights. identification parole Ard, Officer Mitchell the card to Officer who showed it to gave parole Scott. Officer Ard went then to retrieve the from the box registration glove door, of the car. When he opened the he noticed a barrel passenger gun from protruding under floor mat on the of side the front seat. passenger This was later determined gun the murder Ard retrieved the weapon. gun registration and Scott under Scott was in placed arrest. possession Hill’s gold watch. The car was Omega Nathaniel Tribet. registered
The trial court denied the motion to The court found the suppress. out Chrysler accelerated of the club’s lot “not as a result of parking any movement on the of the part vehicle.” “That acceleration ... oc- police curred as a result other than the officers anything perhaps looking direction, their and it was after that acceleration occurred that the officer then went the as same direction the So the acceleration of Chrysler. the Chrysler, the wheels not as result of squealing any was action other than what was legitimate on the of the That perfectly part officers. is in the looking direction heard viewing Chrysler. After having of the vehicle, wheels and was squealing what acceleration of the observing then officers were quite that vehicle. So proper following there no illegal activity activity officers.” improper part police The court further found that once the officers observed car accelerat- and then ing “they had a disappearing, detain who perfect right they viewed to be the of that occupant vehicle.” The attempts ascertain registered owner of (which the abandoned vehicle led to discovery evidence that defendant sought to suppress) legal.
(b) Analysis asserts Defendant an unlawful threatened and actual detention car, occurred when Officer Ard “stopped his marked backed patrol up *39 is to then followed it.” While it difficult parse Chiysler, towards asserts is and what facts he asserting, support claim actually which contention, these claims has merit. which none of Constitution oc in violation of the California No threatened detention above, Officer Ard their vehicle. As noted when the officers stopped curred a loud noise tires that as he he heard engine testified as soon stopped, from the police Chrysler accelerating rapidly away and the screeching, began However, near that a vehicle had defendant’s police stopped the fact vehicle. to the officers not communicate a reasonable that person vehicle would (See (1979) 100 and Scott. v. People intended to detain defendant Menifee 235, Thus, the trial court 682].) reasonably Cal.Rptr. 239 Cal.App.3d [160 (Cf. v. People no detention had occurred. that threatened illegal concluded to for trial court at 238-240 Menifee, supra, 100 Cal.App.3d pp. [reasonable defendants threatened officer’s act of toward walking briskly conclude that detention].)7 in of the California Constitution
Nor did actual detention violation any vehicle. The officer did merely stop occur when the officer his stopped ‘may personally or individual on that the suspicion person an “accost[ ] ” (1979) 24 Bower Cal.3d criminal v. activity.’ involved some 856, 21 638, 115], (1978) In re C. Tony P.2d quoting 643 597 Cal.Rptr. [156 888, 366, 582 P.2d There was no use Cal.Rptr. Cal.3d 895 [148 halt, of the police no and no use flashing sirens or command lights, or control the direction vehicle or otherwise vehicle to block defendant’s 465, (1972) 7 Cal.3d (See his v. People Siegenthaler movement. speed flight upon sight P.2d 499 Cal.Rptr. 499] 469 [103 [defendant’s of defendant’s infringement induced officers’ officers’ vehicle not 124, 128-130 (1979) v. Rico 97 People Cal.App.3d [158 rights]; for five car and it following [momentarily spotlighting moving 573] Moreover, detention].) over not a pulled before driver voluntarily minutes car was to back his Officer Ard testified that purpose stopping police license plate. in order better view of defendant’s vehicle’s aget up Fourth and Fourteenth Nor was there detention under the any or, Rather, ... where force Amendments. seizure either “requires physical absent, v. Hodari authority.” (California is submission to the assertion of D., 697], in original.) at at italics U.S. L.Ed.2d supra, p. p. [113 here. None was present course, from away accelerated
Of once defendant rapidly car, screeching, car a loud noise and tires engine with his police making (See course, v. continuing validity in California. has no 7Of California Menifee 690, 697, 1547]; (1991) Cal. 111 S.Ct. Hodari D. 626 & fn. 2 L.Ed.2d [113 499 U.S. Const., I, (d).) subd. art. § law, reasonably officers acted him. police following Under federal still no D., seizure at (California occurred this v. Hodari U.S. point. supra, p. L.Ed.2d at which p. [police pursuit constitutes show 699] seizure].) individual is not a authority enjoining fleeing Under stop law, state detention that occurred was based on any applicable specific articulable facts Officer Ard causing subjectively reasonably “suspect some to crime taken activity relating place occurring ha[d] [was] *40 occur, (2) or about to he intend to or detain person stop [ed] [was] C., (In in that re activity." 893.) involved 21 Cal.3d at Tony supra, p. We conclude that the discovery evidence in the Chrysler abandoned by detention, defendant was of an unlawful product threatened actual and defendant’s motion to this evidence was therefore suppress properly denied.
(3) Entry Into Chrysler Defendant concedes that the warrantless an expressly search of automobile glove compartment may be conducted lawfully based proba However, ble cause alone without any showing of actual exigency. defend ant contends that Officer Ard’s into the search entry Chrysler solely to box for glove registration information was unlawful because officer did not first to obtain that attempt same information through less intrusive electronic means. Accordingly, asserts that the discovery resulting of the .38-caliber revolver was likewise unlawful and should have been addition, suppressed. because defendant’s arrest was direct result the revolver’s discovery, all statements made by defendant following arrest, unlawful all physical evidence seized in conjunction with his arrest, must similarly suppressed. above,
As recounted Officer Ard went to the to retrieve its Chrysler registration from the glove door, box. he When opened passenger noticed a gun barrel from under a protruding floor mat on the side passenger of the front seat. This gun was later determined be the murder weapon. Ard retrieved the gun registration placed Scott under arrest. Defend- ant this a “urges” court rule that an “before officer enters a adopt vehicle certificate, to search for a registration the officer must to obtain try checks, information radio through terminals or other computer technological means.”
We
a
rejected
similar claim
v. Webster
Webster had an vehicle, also a Chrysler. ownership of his disclaimed passengers and visor (Ibid.) searched the car’s glove compartment Abbott then car, retrieved wallet While in the the officer saw and registration papers. linked defendant ultimately front seat which in the middle lying (Id. 428-430.) at murder. pp. car he . . . entered the acted when properly
We concluded that “Abbott now, Then, as the Vehicle finding registration. limited for the purpose officer, others, in- among Highway Code allowed Patrol] [California title in order to determine ownership. vehicle and its a registrable spect Webster, Code, 2805, (Veh. (a).)” (People supra, p. subd. § limits, an to enter a 430.) this statute authorizes officer Within constitutional for the re- an immediate warrantless search vehicle and conduct stopped (Ibid.) documents. quired *41 for on the highway that the car was detained validly
We further observed violation, ownership, of its disclaimed all occupants traffic moving Webster, warrant. v. (People to arrest for an outstanding Webster was subject situation, 430, Thus, Abbott 431.) “uncertain at that 54 Cal.3d supra, pp. its to ascertain entitled to the inspect Chrysler’s registration was amply owner before deciding whether to release or impound the vehicle. ... [1] Moreover, the who had reason to believe that every occupants, . . . Abbott the not be able to find or produce registration disclaimed would ownership, 444, 23 447 (See [(1972)] Martin Cal.App.3d on their own. v. People [100 [(1977)] 272]; 74 Cal.App.3d Jackson v. Court compare Superior Cal.Rptr. 361, 431.) 299].)” (Id. at 368 Cal.Rptr. p. [142 abandoned, to
Here, observed have been and the Chrysler person of the vehicle. let alone knowledge, ownership, disclaimed any passenger it the middle of night. had as a and was He also been identified parolee, circumstances, to the vehicle for was entitled search Under these Officer Ard Webster, to the glove Officer Ard confined his search its As registration. v. a traditional of vehicle registration. compartment, repository 431; Webster, (1983) 33 Cal.3d see v. Chavers supra, People 54 Cal.3d at p. in this appropri- 658 P.2d While engaged 470 Cal.Rptr. [189 “The on the floor. view ate Officer Ard saw activity, gun plain where of evidence in view from position observation and seizure plain (People v. prohibited.” has a to is not constitutionally officer right Webster, 431.) 54 Cal.3d at supra, p. 361, 367- Court 74 on Jackson v. Superior Cal.App.3d
Relying (1969) 2 (Fishback) Court Superior v. People Cal.Rptr. [142 299] 766], defendant asserts that Officer Ard’s Cal.App.3d into to search box entry Chrysler solely glove registration did first information was unreasonable because the officer to attempt obtain that same information less intrusive electronic means. How through ever, both Jackson and Fishback were on concerns and premised privacy or cases abandoned vehicles. distinguished involving unoccupied expressly Jackson, 368; (People v. at v. Court supra, Cal.App.3d p. People Superior 308-309; Webster, (Fishback), see supra, Cal.App.3d at pp. Moreover, 431.) Officer Ard testified he “wanted supra, p. if car been registration maybe see I cold-plated something. Thus, if don’t know the plates belonged it.” defendant’s contrary there was no argument, less intrusive means to ascertain the abandoned sum, occurred, vehicle owner’s identity. no search and seizure illegal the motion to the evidence was suppress denied. properly
(4) Reverta Austin’s Arrest Defendant contends trial court erred in his motion denying evidence as suppress obtained a result of the arrest Reverta 15-year-old Austin because she May was arrested without cause probable pursuant an unconstitutionally vague curfew ordinance.8 This contention is without merit.
(a) Background Factual arrest, to Scott’s Subsequent Gardena Police Officer Pierce learned that Tribet, to according owner, Nathaniel defendant, the Chrysler’s registered Scott, was be to “supposed possession vehicle.” Officer Pierce also learned that defendant was a recent Defendant’s parolee. parole agent, Collins, true, Ed informed Pierce that if it was or if he had reasonable cause believe, that defendant had with been another in a vehicle which parolee contained then weapons, defendant was in violation and Pierce parole, had 3, Collins’s to arrest permission defendant. On August Officer Pierce showed Officer Ard a photo and Ard identified as spread, defendant driver of the who fled. Chrysler 3, after 10
Shortly p.m. on August Pierce received information that a person matching defendant’s was a description driving newly white painted Cadillac area. He was Compton the license number. provided plate issue, 8At the time of the crimes at a defendant could exclusionary invoke the rule to challenge Fourth Amendment breaches when the rights person Fourth Amendment of a other than (1955) defendant were violated. 855].) Martin 45 Cal.2d 761 [290 P.2d (In The law today is otherwise. re Lance W. 694 P.2d Cadillac had tried a in a white-over-green Pierce had learned that person also murder, after his and that defendant Hill’s at a station gas to use credit card a white-over-green in May driving a late 1979 while had been issued citation observed on the Cadillac that with same license number plate vehicle evening. defendant and Officer William Moreno located
Pierce and his partner a female passenger, was by his vehicle. Defendant stopped accompanied Reverta Austin. Pierce ordered 15-year-old later determined He then arrested defendant for conspiracy and Austin out of the vehicle. presence and for being parolee possession commit robbery firearm. officers, police including
The two Torrance officers joined Paerels, until Pierce who had the Cadillac arrived. following Officer been He had previously murders. investigating Hill/Champion Paerels was station, Cadillac at the and that gas learned the used description time of her of a chain gold had been in possession rope Champion but not roof was “bright death. Paerels noticed that the Cadillac’s body paint was that “the interior door observed shiny.” passenger open, outside of the paint was as the white doorjambs green opposed rope bloodstains on the vehicle headliner and gold He also observed body." chain from the rear-view mirror. suspended for identification. She had
Officer Paerels asked the female passenger was claimed her Turner and that she married Betty none. She name was married, then said but had known defendant to defendant. She she was not that did ages She various birthdates and corresponding two months. gave led “to not match. These inconsistencies and her Paerels youthful appearance He to me.” It was 10:35 believe she lying approximately p.m. knew that the arrested her for a of Los curfew violation. He Angeles City *43 to had no driver’s license vehicle was and that Austin going impounded, or She him “she resided at a location far from other identification. told that at where we that she no number home." Officer phone and had to her in that Paerels it was “an alternative release thought unacceptable area, for her I wanted to arrest her in event.” any own But safety. was not certain how many
Officer Paerels also arrested her because he yet in the He was concerned were involved Torrance murders. people Airport the that Reverta Austin be an because she was in could accomplice presence minders, of an ex-felon “who had a link” to the the gold very, very strong item chain he saw in the the vehicle the of an interior of matched description victim, the taken from the female homicide and there was blood on headliner Austin, she known In conversation with she said that had of vehicle. months, for a that included the date of the defendant for two or time period he also that she had defendant when had accompanied murders. She said car Paerels that Austin have thought might that repainted day. picked up evidence, further that it was to take her into to custody necessary on He could not search her the street because investigate possibility. they addition, name, were in In to she lied Paerels about her public place. of “All these me age, date birth. factors led to the conclusion that it on necessary was to take her into stolen custody charge receiving property.” station, a routine search of Austin at the
During booking police an officer Austin witnessed remove custom-made Champion’s gold ring with green stone from her turquoise clothing. Austin testified at trial that defendant hold, said, us,” her the gave ring night that to “The is police watching us.” She “following ring her bra. Defendant testified put that gave Austin the I knew I ring followed and I knew being where “[b]ecause that had came from.” ring
The trial court determined that Austin’s arrest was lawful. The court stated truthful,” it found “the officer’s and, ... to be testimony completely circumstances, based totality denied motion to suppress.
(b) Analysis Defendant contends that the trial court erred his motion denying to suppress found on Austin ring and her statements obtained aas result of her unlawful arrest. defendant claims that particular, Austin was arrested without probable cause believe she had received stolen property to an pursuant curfew ordinance. unconstitutionally vague These contentions are without merit. ‘
“A peace officer arrest a without a may warrant person [w]henever has reasonable cause to [the believe that the officer] be arrested person has 830, committed a . felony, . v. (1967) 65 Cal. 2d (People Talley 492, 564]; 423 P.2d see (3).) [56 former subd. “Cause to § arrest exists when the facts known arresting officer would lead a care and person ordinary prudence entertain an honest and strong that the suspicion arrested is person crime.” v. guilty Price 1 Cal.4th 610]; P.2d Cal.Rptr.2d People Terry *44 362, (1970) 409, 2 Cal.3d 466 P.2d Cal.Rptr. [85 Here, the facts were sufficient to warrant Officer Paerels to strongly suspect that Austin had either received stolen or was an property certain how yet to murder. Paerels was not many or accessory
accomplice murders. Austin was in the Airport involved the Torrance were people to, of, indeed, an ex-felon at one claimed to married point and presence murders, chain in the interior of the vehicle gold linked to the strongly victim, and there of an item taken from the female matched the description had known defendant for blood on the headliner of vehicle. Austin was up that included the date of the murders and picked time period Cadillac, of the vehicle used at the which matched the description repainted addition, station, had lied In Paerels believed Austin with him gas day. factors, Paerels had to her and date of birth. Given all of these age him about (Cf. (1973) Martin People cause to arrest Austin.9 v. probable 1161]; 511 P.2d and Williams 695-696 Cal.Rptr. [108 that officer had 567-568 evidence Cal.App.3d 349] [no with defendant stolen car or knew passenger anything conversation any driver between and passenger].) relationship sum, we conclude the trial court denied defendant’s properly to the to and Austin’s statements ring linking
motion suppress as a result of Austin’s arrest. adduced ring Trial Failure to
d. Court’s Rearraign that the trial committed reversible error Defendant contends court trial, him the from his first which to on failing original charges rearraign meritless. were retrial. This contention is recharged upon information, two of first In the defendant was with counts charged original IV), (counts II), (counts I III and murder two counts of robbery degree V). to (count theft auto Firearm-use as allegations alleged grand circumstances multiple-murder counts I-IV. Robbery-murder special were alleged. trial, he returned conviction at first reversal defendant’s
Upon 20, 1987, to On filed an court for retrial. March superior prosecution receiving to the information three convictions: alleging prior amendment Defendant was attempted rearraigned stolen property, burglary, robbery. amendment, reading on in the waived further alleged the convictions it, and personally amendment and statement of with to any rights respect denied the conviction Defendant did allegations. object prior Rather, he him on information. rearraign original proceeded failure receipt of probable Austin for 9Because we conclude that Officer Paerels had cause arrest argument that Austin’s arrest was property, stolen we need not address defendant’s alternative premised vague unconstitutionally curfew statute. invalid because it was an
187 if of trial his not to these had been reentered. original as plea guilty charges trial, he of information. reading At waived formal
“The an or a to inform the of is purpose arraignment rearraignment him and to him to accused charge against give fairly opportunity to it.... If the defendant to the basic and a trial is pleads plead charge, it, (In had on of an been served.” re has Mitchell purpose arraignment 667,670 281,365 (1961) 177].) 56 Cal.2d P.2d Defend [16Cal.Rptr. ant cites no authority as well requiring rearraignment original charges newly as before “Nor alleged prior convictions a retrial. do we perceive any such for v. Tahtinen logical practical necessity procedure.” 127, (1958) 50 Cal.2d P.2d no “cites authority [323 442] [defendant mistrial”].) after a in requiring rearraignment record this case reveals that defendant understood the him on which had clearly against charges retrial, obtained a to successfully and was defend vigorously prepared those against charges. event, below,
In any not defendant has waived the objecting right assert error on with to the appeal (See failure to v. respect rearraign. People 828, 818, (1963) Murphy fn. 3 382 P.2d Cal.Rptr. [31 346] substantial rights [defendants’ suffered no detriment when no they made demand for arraignment on amended information or objection failure so arraign, and went to trial on their impliedly pleas of not prior guilty]; People (1963) 587]; Collins Cal.App.2d [31 v. Walker 164-165 P.2d Cal.App.2d Defendant asserts that the failure to rearraign because prejudicial eight since defendant years passed had been informed his constitu- him, tional and the rights charges against and he should not be presumed have in understood him his charges against rights light Dr. Maloney’s testimony regarding low intelligence defi- learning ciencies. Because we found have no error in we need not failing rearraign, address note, however, defendant’s claim We prejudice. that defendant’s claim is purely speculative. Dr. did not Maloney testify, defendant does claim, not, fact, that he did understand the charges him or his against at rights defense, the retrial. retrial, His his own including testimony would belie such a claim.
2. Trial Issues
a. Vincent’s Admissibility Testimony
(1) Factual Background Defendant contends that the trial court erred permitting jailhouse informant Armand Vincent to Scott’s in a testify regarding statements *46 defendant, both shooting which defendant admitted with during
conversation his own statements were inadmis- not contend that victims. Defendant does and were hearsay that Scott’s statements were We conclude sible. to defendant’s statements. to context admitted supply properly the trial court before the challenged testimony jury, Vincent’s Prior to hearing interview. After argument, of Vincent’s police examined transcript statements, Vincent, as by recounted court ruled that defendant’s the trial Code sections 1220 and and that under Evidence were admissible to defend- context and give meaning were admissible Scott’s statements ant’s statements. 13, 1979, he rode on a testified that on
Before the Vincent August jury, court- to and from the Torrance with defendant and Scott bus county jail violations of with misdemeanor performing Vincent was charged house. license. Defendant was without contractor’s remodeling home repair Vincent, across from Vincent. Scott was and Scott was seated handcuffed to a wire screen. and Vincent by from defendant separated Torrance Airport and Scott discussed the During trip, “I’m in for a double jail saying, conversation began murders. Scott said, “I thought knew about. This is cold.” Scott murder that I nothing “I didn’t robbery Airport.” do a little at the Torrance we were out just “Well, you Turner anyone.” have idea we were kill going responded, any man, know, talk.” dead witnesses don’t said, I am in the car thinking “We had them tied ... out
Scott up. . . . did do it?” Defendant Why apparently is . . cool. . everything you repeated response. said, asked, “I the man and did do it?” Defendant killed
Scott “How you his left at his said then the woman.” He index pointed finger temple the victims two shots. He also said that shot them. Defendant said there were killing their Defendant never denied were tied with their hands behind back. the victims. said, over are all gun my my fingerprints
Scott left the car “[Y]ou said, “Well, rid of it.” Defendant laughed it.” Defendant should have you got it, said, for man.” take rap “[Y]ou card, said, didn’t you With to Hill’s credit Scott regard gasoline “[W]hy Defendant rid of the card? did use the credit card?” Why you responded, get I “I I time thought enough it would be cool use card. thought license on the car.” because we had changed plates Vincent, “You this You Defendant threatened heard conversation. saying, mouth shut or be dead.” Vincent and Scott keep your you’ll subsequently cell. shared a *47 testified,
After Vincent the trial court the that were to jury they instructed the to the that consider statements attributed to Scott extent “only they give to the statements of The statements of are not meaning [defendant]. [Scott] ...[;] to be considered for the truth of the matter asserted are the sole you as to whether made the statements testified to and judges [defendant] whether such statements are true in or in At of whole the conclusion part.” the further guilt phase, instructed that were not to consider jury they evidence admitted for it any for which was purpose except purpose (CALJIC 2.09.) admitted. No. The was also instructed on admissions jury (1980 and confessions to CALJIC No. and rev.) 2.70 on admissions pursuant to (1980 rev.). CALJIC No. 2.71 pursuant
(2) Analysis Defendant asserts Scott’s that statements were inadmissible hear earlier, say, As he resulting prejudice. noted does not assert that own his statements were admitted. We conclude the trial court improperly properly admitted Scott’s statements to to give meaning defendant’s statements ad 1220,10 mitted under Evidence Code section and these state allowing ments for this limited was within the trial purpose court’s discretion under Code Evidence section 352.
An out-of-court is statement if properly admitted a nonhearsay identified, purpose the statement admitting is and the nonhearsay purpose is relevant to an issue (1984) v. dispute. (People Armendariz 573, 664, 243]; (1988) [209 693 P.2d Cal.Rptr. v. People Bunyard Cal.3d 1204-1205 795]; 756 P.2d Cal.Rptr. [249 see 126 Cal.App.3d Scalzi ‘one important 61] [“ of category of nonhearsay evidence—evidence a declarant’s statement that is offered to prove that the statement imparted certain information to the hearer hearer, true, and that the such information be believing to acted in confor with that mity belief. is statement since it hearsay, is hearer’s to reaction the statement that is the relevant fact sought to not the proved, truth ”].) matter asserted in the statement.’
Here, Scott’s identification of the location of and robberies as murders the Torrance Airport, and inquiries regarding and how why provides: 10Section 1220 “Evidence of a is not made hearsay statement inadmissible against rule when offered party declarant in an action to which he is a in either his representative individual or capacity, regardless of whether statement was made in his or representative individual capacity.” victims, statements and to defendant’s shot the context gave in this Defendant disagrees, crimes at issue case. tethered them to the was totally unnecessary statements that “recitation arguing [Scott’s] ” that the effect “only to defendant’s meaning’ responses, ‘give the claim . . . was to with jury of Scott’s statements provide admission ” we kill have idea going anyone.’ that Scott ‘didn’t any know, man, statements, “Well, However, alone, you defendant’s standing woman,” talk,” man then the don’t “I killed the dead witnesses shots, their two the victims were tied with them with and that killed back, his his index finger behind their gesture putting hands them, not necessar- shooting, he shot referred simply temple saying *48 Moreover, at issue in this the jury case. ily shooting repeatedly of for the truth that were not to consider Scott’s statements instructed they asserted, We but to context to defendant’s statements. give the matter merely v. (People Delgado that followed the court’s instructions. the jury presume 529, 811]; 312, v. 851 P.2d (1993) People 5 Cal.4th 331 Cal.Rptr.2d [19 689, 801, 612, 84].) 818 P.2d (1991) 54 Cal.3d fn. Mickey Cal.Rptr. [286 from that Scott’s public defense counsel was precluded arguing Finally, in and did self-serving, on the bus were calculated and entirely statements of on the basis informa- fact that Vincent fabricated the conversation argue cell. Vincent Scott when the two shared deliberately jail tion to relayed relevant, addition, above, in statements were that they as noted Scott’s we admissions. Accordingly, context and defendant’s gave meaning that the requirements governing conclude Scott’s statments satisfied We further nonhearsay admission of out-of-court statements for purpose. that of to defendant’s meaning conclude the value Scott’s statements give or of undue prejudice, admissions substantially outweighed any probability of or danger misleading jury.11 confusing of further contends that the admission Scott’s statements
Defendant the United States violated his Sixth Amendment of confrontation under right of have such an in context rejected argument Constitution. We repeatedly or has expressly admissions on the that “once the defendant adoptive ground another, own the statements become his statements impliedly adopted admissions, and on basis are admissible that as well-recognized exception 604, (1988) to the rule.” v. Silva hearsay (People [247 1070], in v. Preston People 754 P.2d italics original; Cal.Rptr. deemed the Cal.3d 315-316 508 P.2d “Being admissions, the veracity own we are no concerned with longer defendant’s contention, unnecessary respondent’s 11It on which the trial is therefore to address further as jury, court ruled nor Scott’s statements were also admissible neither instructed that adoptive under Code 1221. admissions Evidence section or of the declarant. no original confrontation is credibility Accordingly, right when those statements are admitted as admissions with- adoptive impinged Silva, providing (People out cross-examination declarant.” v. Preston, 624.) As we stated in v. supra, Cal.3d at “We supra, p. no find merit the contention that the admission of this evidence [adoptive confrontation, defendant’s Sixth impaired Amendment right admissions] cross-examination of his accuser. The evidence was admitted not to truth of the statements but to show defendant’s prove to them. response Credibility of the witnesses who testified that heard they these accusations and observed defendant’s and the to be to their response, weight given testimony were issue and they cross-examined voir dire and Preston, jury." 315-316.) before the supra, 9 Cal.3d at pp. We find this reasoning persuasive concluding admission Scott’s statements did similarly not violate defendant’s Sixth rights. Amendment asserted, Scott’s statements were not admitted for the truth of the matter admissions, as substantive evidence defendant’s but were nonhearsay Thus, context to gave those admissions. only credibility the witness who testified that he heard these statements and defendant’s thereto response was at issue.
b. Prosecutor’s Argument Scott’s Statements Regarding Defendant contends that the prosecutor to the improperly argued statements, Vincent, that Scott’s jury as to testified were substantive by evidence of defendant’s intent to kill. In particular, challenges Martin’s opening argument in which the that argued defendant’s prosecutor the cocking demonstrated he had the gun intent to shoot and to kill. Martin said, observed that the victims had been tied and “So already cock up why the gun at this . . . point? Clearly this action by defendant showed his intent to back, shoot and to . . kill. . When you that hammer pull you’ve done one-half of the shooting You don’t have to already. have it pull have it physically pull back and go forward. You’ve it got already cocked and you just touch it. I (Indicating) suggest that’s exactly why gun was cocked by the defendant. And it was consistent with what Scott said in his on the bus. question ‘We had them tied did to you have kill them?’ up. Why ’’ said, ‘Well, And the defendant dead witnesses don’t talk.’ In his closing to the argument Martin to jury, responded defense counsel’s summation how bus regarding prison conversation from Vincent’s began by reading Turner, “Mr. testimony. Scott said to Mr. ‘I’m in for a jail double murder I that know about. This is nothing cold. ... I had no idea. ... I thought we were out to do a little I didn’t have we robbery. idea were to any going ” “ kill anyone.’ ‘Well, Vincent testified that defendant responded, you ” know, man, . . . dead witnesses don’t talk.’ satisfy he “failed to the outset because claims at
We defendant’s reject for admonition of misconduct and request rule assignment general requiring of which he now complains,” by prosecutor as of the comments any to (1993) Cal.4th Berryman is v. no applicable. exception claim that to defendant’s Contrary P.2d Cal.Rptr.2d to for the failure object . . . may imagined no tactical basis “simply must object and that “the failure to accordingly, these circumstances” under counsel,” ineffective defense representation by to constitute be deemed not construe the concluded that the would jury well have counsel may evidence statements were substantive as Scott’s argument statements kill, no was intent thus determined that objection to defendant’s necessary. Martin’s did claims on the merits. argument
We also defendant’s reject as substantive evidence of defendant’s Scott’s statements alone not present Rather, accusation, that the as argued responded to kill. the prosecutor intent defendant, This consistent with the to was indicative of such intent. was by using solely give meaning court’s limitation of Scott’s statements trial no was confused jury There was responses. danger the defendant’s that Scott’s statements into believing or misled prosecutor’s argument Clair, (See intent to kill. substantive evidence defendant’s were Indeed, above, noted 686-687.) jury as we have Cal.4th pp. supra, not use Scott’s statements was admonished specifically repeatedly Moreover, made by it also instructed that statements this purpose. evidence. attorneys give that the court erred refusing
Defendant further contends trial have cured some might prejudicial instruction “that proposed possibly *50 of The trial court concluded that this instruc- effects Scott’s statements.”12 Defendant already given. tion was addressed instructions adequately by erroneous, is no this was and none why asserts reason ruling apparent. by of made proposed provided: 12The “Evidence has been received statements instruction persons the not under oath. outside of courtroom when First, respect your you consider the “With to these task threefold. must statements is determining credibility, you credibility of the In his the witness who testifies about statement. credibility guided by relating the of must be the standards to all witnesses. “Second, by you testimony concerning person the statement another with should view having generally the unable to state the exact caution because witnesses best of motives are by changing of words to language by person used another and are liable the omission or the convey language a false used. impression of “Third, you credibility made out-of-court person must determine the who determining you guided by In the standards statement. whether is credibile should [sfc] given you concerning credibility by the that to of witnesses and additional considerations oath, you observe that person making the under that were unable to statement not subject not person’s or the he made the statement and that he was demeanor manner which to cross-examination.” c. Prosecutor’s Arguments Inconsistent committed Defendant contends that the error prosecutor prejudicial at his by making closing argument trial codefendant Scott’s regarding intent kill that to was inconsistent with the he made at argument Scott’s trial. trial, defendant at asserts that Scott’s Martin particular, argued that both victims, trial, kill Scott and defendant intended to whereas at defendant’s Martin that to kill argued intended the victims. only According to defendant, such a at defendant’s trial allowed Martin to position argue the statements, ante, of (see substance Scott’s as recounted by Vincent pt. II.A.2.a.), that he had no idea defendant was to kill the victims. going defendant, to Martin’s
According Scott’s closing argument case was Rather, transcribed. defendant infers from Martin’s “a to defense response motion absence of evidence concerning that Scott aided and intentionally abetted the murders” that made such a prosecutor closing argument.13 “ defendant,
According Martin argued ‘there was of great deal evidence as to the subjective intent that meets the objective requirement of the instructions which His Honor has to be approved given. We would it certainly is a say gross misstatement of both the facts and the argument has, make the statements that [defense there’s no evidence to counsel] ” the intent support to aid and abet.’ Defendant contrasts this with argument trial, Martin’s statements in argument defendant’s closing which was trial, to Scott’s subsequent which Martin recounted defendant’s statement that it was Scott’s idea to tie the victims. up Martin “Scott argued, clearly wanted to That was the reason for escape. victims. But not to kill tying them. ... It well may be that Scott wanted to tie the victims. But only escape.”
Defendant asserts that these “inconsistent” arguments prosecutorial misconduct because violated the they doctrine judicial estoppel various Rules Professional Conduct. We defendant’s reject claim at the outset because he “failed rule satisfy general requiring assignment misconduct and request admonition toas any the comments prosecutor of which he now complains,” and no exception is applicable. *51 (People Berryman, 1072.) 6 Cal.4th at supra, p.
We also reject defendant’s claims on the merits. Even defend- assuming ant’s claim of is an inconsistency inference drawn properly premised case, from a motion in another hearing such error was not any prejudicial. separately request 13Defendant has judicial filed a transcripts. notice of the Scott trial hereby deny We that motion moot. as First, alleged Martin’s misconduct allowed Martin assertion that defendant’s that he had no idea defendant substance Scott’s statements to argue of the record kill the victims is demonstrated portion was to going Rather, trial, statements from this relies. in the quoted on which defendant that it Scott’s is from was testimony extrapolating prosecutor defendant’s event, we above to the victims. In have concluded any already idea tie up were evidence did not that Scott’s statements substantive that Martin argue to kill. of defendant’s intent
Moreover, show extent defendant relies on these statements to that kill, in that lacked intent to his claim of this case Scott Martin argued in this remains The record case reveals unpersuasive. misconduct prejudicial it reflected the evidence insofar as argument fairly that the prosecutor’s Moreover, for the crimes. culpability according related to defendant’s killer, defendant, Martin in both trials that defendant was actual asserted is Accordingly, that was an aider and abettor. it not reasonably and Scott a more favorable to defendant would have been reached that result probable misconduct, that Scott lacked argument in the absence any alleged 818, P.2d to kill. v. Watson Cal.2d intent Dr. Maloney’s Testimony d. Proposed in the guilt contends the court erred excluding Defendant trial a and forensic Dr. Michael Paul clinical testimony by Maloney, phase that defendant was a “follower” and therefore less likely psychologist, This contention is without merit. have been the shooter. he defendant
Dr. testified that November interviewed Maloney con- hearing him to series tests. subjected During subsequent Dr. stated that these tests Maloney ducted outside presence jury, Scale, included a Wechsler Adult achievement wide-range Intelligence test, test, test. He an and a Bender Gestalt “Amens” picture vocabulary was but that there was a concluded that defendant’s intelligence quotient that his native was ability fair amount of in his variability performance in his verbal expression, normal. Defendant deficient probably certain deficits his education experience.
Dr. tests be readministered to defendant in caused these Maloney and Dr. reinterviewed defendant 1987. September August Maloney At no time in range. examining The results in the same general Dr. from a mental defendant did form suffered Maloney opinion also testi- illness other than a disorder.” Dr. Maloney “possible personality mental did a “mental defect” or a “primary fied not have disorder.” *52 the on the that it was not
The trial court excluded testimony grounds relevant, relevance, even if it was found to have some “its probative and that the that its outweighed by probability value admission substantially [was] of time or create consumption necessitate undue substantial danger [would] or of of undue the issues prejudice, confusing misleading jury.” matter, our As review of above record reveals no preliminary Dr. at the that defendant was testimony by Maloney hearing generally Rather, follower and have therefore less been shooter. likely such infer a conclusion from Dr. loosely statements appears Maloney’s defendant’s test results. More Dr. did not regarding importantly, Maloney assert as to whether any defendant had been a follower on the opinion night murders, and what effect such a behavioral characteristic would have such, had on his ability As Dr. pull trigger. on voir Maloney’s testimony dire failed to support defendant advanced. hypothesis
The trial court therefore acted within its discretion excluding evidence as irrelevant under Evidence Code section and in concluding in the alternative that any probative value was substantially outweighed by that its admission would probability necessitate undue consumption time, issues, and create substantial undue danger prejudice, confusing or of misleading the under Evidence Code section 352. jury
e. Torrance Airport Taping Experiment Defendant contends that the trial court erred in prejudicially admitting evidence of a Torrance Airport taping because of a lack of experiment admission, proper foundation for its and that this error requires reversal of both the and the guilt This penalty judgments. contention is meritless.
(1) Factual Background murders, At the time of the the Torrance Airport installed recently an aircraft noise monitoring system that included at microphones various loca- tions and around the airport. The system was 24 hours operational a day. victims, After the discovery ascertained that police July tape noises, contained two consistent sharp with gunshots, three approximately seconds made apart, 11:16 approximately two sounds p.m. picked up by 6 and microphones the two closest to the microphones *53 196 discovered, not more distant by the were and micro- where victims
hangar a sound airport personnel subsequently performed The and police phones.14 system. in that was recorded on the noise monitoring the hangar experiment of and original tapes A on both the hearing admissibility experimental the Zimmerman, of an expert outside Jack jury. was held the presence he in that was instrumental devel- design, acoustical testified analysis, of the The was monitoring system. system and installation noise opment, time, June of At that at the Torrance 1979. Airport May installed No and test-run to ensure it was operating properly. was calibrated system were of malfunction found. instances in and around sounds from various sites microphones reproduced
Eleven that recorded on channels to a dictaphone tape were airport separate on the were to time-code recording assigned recorder. Other channels 25 hours. aircraft Each lasted tape approximately various radio frequencies. was Torrance. of City system accepted discovered, Airport the Torrance Nay, After the victims were Charles of the noise listened to 12 hours noise abatement officer and specialist, July heard, of 11 July As a result what he turned July tapes. tape 11 and over to the police. Green, 19, 1979, 11:30 with p.m.,
On between 11:00 and Officer July assistance, an in the at the same loca- experiment hangar Nay’s performed Green a .38-caliber tion where the victims were discovered. Officer caused had be fired at close into a mass of that range clay times gun eight of used vest as a Because the ammunition bullet-proof backstop. type uncertain, Green different types murders at that time Officer used the hangar bullets for the different shots. Some test shots fired with and in it was door others closed. open, Limited, Pellicano, Audio lis- Laboratory Forensic
Anthony president to both the and the test July July recording. tened original recording an audio of the tapes Pellicano examination performed analysis recorded the an President Kennedy, assassination President analysis Nixon and an of the used analysis tapes infamous tapes containing gap, in the DeLorean case. He had been an federal testify as qualified expert and state court times. He was voice chairperson approximately identification and examiners committee the National Forensic audiotape stipulated microphone hangar from the parties approximately 11 was 825 feet 14The 1,425 occurred, microphone feet from the approximately murders 6 was where the hangar. *54 member of the of and had Center. He was also a Acoustical America Society been involved with and examinations over 16 analysis years. audiotape All of the test shots were 6 and and eight picked up by microphones not other Pellicano the sounds clearly by any microphone. aurally compared of the test shots with the sounds on the Pellicano also original recording. examined the information “an of different with the through array algorithms and and other and computer spectrum analyzer electronic devices” “dis- them so could see an He played you the graphically impulse." compared July 11 to the the from known shots and found that the renderings renderings correlated. He determined that the the impulses impulses on two different same, to be the that emanated from the tapes appeared they approximately same place, and that to be the of they results and “appear[ed] gunshots sounds from gunshots.”
Defendant the 11 argued that lacked July foundation and would cause tape the to to jury as the of the speculate identity sounds it contained. He objected to the July 19 Pellicano’s the tape apparently graphic representation on sounds that on the that the tape grounds was not conducted experiment under circumstances on sufficiently similar those the July experiment sounds, should have included a variety and Officer merely gunshots, Green was not to conduct qualified the experiment.
The trial court ruled that the could jury hear both the 11 the July July 19 With to the tapes. regard July the court found the would tape, jury not be speculating, but would be listening to sounds by a sound picked up effective, recording efficient, system reliable,” that was “extremely that the was relevant tape to the issue of “the of time length between shots,” and “what jury] caused those sounds." [the The court also believe[s] on its own motion allowed the under Evidence Code tape section 352.
As for the July 19 the court tape, concluded that “the was experiment conducted, properly had numerous between the similarity touch[s]tones evidence with reference to [before ... killings court] cause me find that it’s evidence that should before the go the court jury.” particular, observed that the evidence indicated that the victims were by killed contact wounds to the head at on 11 at approximately p.m. July particular Likewise, location within the hangar. was conducted at the experiment same location within the discovered, hangar the victims were at approx- the same imately time used night, gun was .38-caliber revolver of the same barrel as the length murder weapon, gun contact with placed model, at most a 32d or 16th of an inch from the away and the bullets clay as “were close as the experimenters could come the bullets . . that were . motion, On own the court also allowed used in the its killings.” apparently Code also under Evidence section 352. court evidence experiment on the July sounds representations allowed use Pellicano’s graphic on the that these and five of the shots July tape ground tape on the whether the sounds would also assist graphs jury determining two devices.” “were made similar impulse-causing tapes Pellicano, trial, Zimmerman,
At and Charles testified Nay Jack Anthony *55 were for the 11 and Both the tapes. played jury, 19 regarding July July tapes of the these and sounds on Pellicano’s computer graphic representations chart were introduced. Pellicano testified and his tapes time-comparison 11 and gunshots, the on the were consistent with impulses July tape part was seconds.” Defendant difference between the two sounds “3.0754 that the running testified that he heard as was toward gunshots the subsequently on the about far as the sounds apart his car on the of murders were as night the 11 tape. July
(2) Analysis above, admission of the challenges As noted on defendant appeal is on the that it lacked foundation. The law July ground governing 19 tape of evidence bears the burden settled. “The proponent experimental on an of and on the whether such evidence rests production proof question (1989) foundation.” v. Bonin 847 adequate 765 P.2d Admission such evidence depends upon (1) the The must be foundational items: following experiment proof similar, relevant; (2) it must have been conducted under at least substantially identical, the conditions as those of although necessarily absolutely occurrence; (3) the the concern actual individual testifying qualifications some and must demonstrated with ing experimentation particularity; time, evidence of the will not consume undue confuse experiment issues, (Ibid.) or mislead the jury.
We determined that these conclude that the trial court properly First, was evidence foundational items were satisfied here. the experimental what two sounds on the relevant to assist the jury determining sharp the sounds July 11 them the tape by allowing opportunity compare of the with what were known to be actual .38-caliber Identification gunshots. undermined regarding sounds as defendant’s statements gunshots August murders, the inference of the timing supported circumstances that there was time one to fire both shots. only person
Second, under similar condi- substantially experiment performed It at the same location as tions as the actual occurrence. was performed murders, time, the same the same caliber approximately using gun ammunition, similar and the same recording equipment.
Third, Pellicano’s in this area were well qualifications established. Fi- time, assisted, evidence of the nally, did not consume undue experiment misled, not confused or the jury. asserts, however,
Defendant that the second criterion of simi- substantial was not satisfied. larity particular, that because it is not argues known definitively what caused the sounds it is July tape, to conduct an under impossible experiment conditions similar to the actual course, occurrence. Of if it was known what caused the definitively sounds on the July tape, would have been experiment unnecessary. was to purpose experiment assist the jury this factual making determination by them to allowing the actual compare firing a .38-caliber with the sounds on gun assertion, July to defendant’s tape. Contrary *56 the experiment was not rendered inadmissible it because could not conclu- sively that the 11 “prove” sounds were July gunshots.
Defendant also argues the evidence was experimental inadmissible and misled the prejudicially because it jury contained the sound of only .38-caliber not gun a car firing, or a tire backfiring out or a blowing However, firecracker. the addition of such other sounds for the jury’s would do comparison little to affect whether the circumstances under which the experiment was performed were similar to substantially those at existing murders, the time of the and was unnecessary satisfy prosecutor’s burden Moreover, of proof this criterion. defendant did not seek to introduce his own experimental evidence containing such other sounds. Officer Finally, Green conceded in subsequently front of the that there jury had been no if “testing to see a firecracker or a hammer on metal or the of a closing door or hangar backfires of car of that anything nature would have made a sound on the monitoring system.”
f. Admission Prior Convictions Defendant contends that the trial court failed to exercise properly its discretion in defendant’s admitting convictions for stolen prior receiving and second property degree This claim is burglary. without merit.
Prior to his trial
defendant
testimony,
moved to exclude for
purposes
his
impeachment
1974 conviction for
stolen
1976 con-
receiving
property,
viction for second degree
and
conviction
burglary,
1976
for attempted
Because
robbery.
defendant’s crimes occurred
to the
prior
adoption
court
that the
agreed
trial
parties
8 in June
Proposition
Cal.Rptr.
Beagle
law was
v.
People
[99
governing
1],
(1985)
convictions purposes because it conviction attempted robbery It excluded evidence 788. in the case. similar to that substantially charged present involved conduct time, remote in the court used that the offenses were not too determining or of the murders. of either the first trial Hill/Champion date used to him were that the two convictions prior impeach Defendant asserts (See Beagle, be Cal.3d supra, too time to admissible. remote calculation, and 11 or 453.) either 10 at convictions occurred By p. retrial. He asserts that “Beagle before the 1987 years respectively is to be determined of remoteness indicates that clearly question Because testimony.” conviction and the date of time between the length trial, the time defendant contends did not testify original trial. extends to the 1987 period Rather, it a convic such states that fact contains no indication. Beagle “ aby legally before and has been followed long
tion that ‘occurred [which] ” life, on the of remoteness.’ ground should excluded generally blameless *57 453.) We are hesitant to characterize v. 6 Cal.3d at supra, (People Beagle, p. diminished to commit crimes because of ability imprison defendant’s from until the retrial as “legally ment for all but several months 1976 1987 (1987) 825 (See Cal.App.3d life.” v. Massey [237 blameless 192 People life” because led blameless “legally Cal.Rptr. apparently 734] [defendant Thus, time].) assuming, for of the relevant even was incarcerated most is from the dates of that the time period without deciding, appropriate retrial, trial as the trial and not the original convictions until the 1987 ruled, court acted would still conclude that trial court we apparently (See remote. its that the convictions were not too within discretion finding (1980) 108 215-216 Cal.Rptr. v. McFarland People Cal.App.3d [166 convictions]; nine-year-old admission of seven- and [upholding 429] use [sustaining v. Benton Cal.App.3d 12] old].) least conviction at eleven years vis-á-vis Scott Defendant also asserts that “since credibility [defendant’s] case, issue in since Scott’s statements implicating was a critical for defense Turner as shooter were admitted without any opportunity Scott, Scott credibility have accorded greater impeach jury likely may on We than Turner that critical issue.” are at a loss to discern how this assertion relates to the of defendant’s convictions. To the admissibility prior extent defendant that their is admission was unfair because defend- arguing convictions, ant did not have an Scott with his opportunity impeach prior we Defendant’s convictions were admissible reject argument. prior because he elected solely Beagle, As we stated in impeachment testify. “We do not. . . or countenance a defend- form of blackmail encourage by ants. No witness own defendant who elects to in his including testify behalf is entitled to a false aura of supra, veracity.” (People Beagle, 453.) Cal.3d at is there Nor is evidence that when defendant elected to p. any he was under the testify, operating mistaken that Scott would impression testifying subject impeachment.
Defendant also that admission of the convictions was cumu- argues prior lative to evidence of defendant’s criminal record adduced already during below, trial. Defendant did not make this and it is argument therefore merits, waived. On the we conclude that evidence of the convictions was not cumulative to less references on which defendant relies specific that defend- ant had been on from the California parole Youth that he had Authority, Scott, been in with and that he prison had had several contacts with Officer as a Barger-Collins result of criminal activity. sum, we conclude that the trial court acted within its discretion
in admitting for evidence of purposes impeachment defendant’s prior convictions. Instructional
g. Error (1) Flight Commission a Crime After Defendant contends the trial committed court error instruct prejudicial ing on jury flight because defendant’s 31 did not occur flight July *58 after the immediately crime, crime or after accused of the immediately being and the identity was at that time perpetrator unresolved. We rejected an identical claim in (1991) v. Mason People 909 Cal.Rptr. [277 166, 950], 802 P.2d and defendant asserts no reason for us to revisit the (Id. 941-943; issue. also pp. (1991) see v. People Pensinger Cal.3d 1210, 640, 899].) 805 P.2d [278
(2) Jailhouse Testimony Informant Defendant contends erred in the trial court to sua instruct failing sponte that the should jury view Vincent’s with Armand caution because testimony informant is unreliable. Defendant jailhouse inherently of a testimony in v. Pensinger, this court’s
acknowledges contrary authority supra, 13, reason for us to revisit footnote and asserts no Cal.3d at page Moreover, to Vin- challenge opportunity issue.15 defendant ample in his challenge memory and did fact credibility, strenuously cent’s forward. motive coming Guilt False Statements
(3) by Consciousness of court’s claims that he was trial prejudiced by giving Defendant of by willfully of CALJIC No. 2.03 consciousness shown concerning guilt statements, because this instruction “overemphasiz[ed] credibility false prob there were serious credibility lems with testimony, although [defendant’s] Defendant with the of several witnesses.” testimony problems prosecution have CALJIC No. 2.21 regard asserts that the trial court should only given any of of witness who is right reject testimony all ing jury his her Defendant also testimony. in a material or part false willfully refused to a curative instruction give asserts the trial court improperly defendant. These contentions are without merit. requested (1984 rev.) No. 2.03 was instructed in the of CALJIC jury language The as this trial the made willfully follows: “If find that before defendant you concerning charge false or statements deliberately misleading upon tried, consider such statements as which is now being you may is not consciousness but it suffi- circumstance tending guilt, prove to such a circumstance weight given cient of itself to prove guilt. course, Of if are matters for determination.” significance, your and its any, trial but testimony, this has do with a defendant’s nothing instruction Thus, conten- defendant’s pretrial rather focuses defendant’s statements. revealed problems tion that the instruction highlights credibility improperly in trial testimony his is unfounded.
Moreover, based instruction when have repeatedly upheld “[w]e th[is] 1 Cal.4th Kelly Cal.Rptr.2d evidence.” upon was assert that such evidence 822 P.2d Defendant does not Indeed, his stated here. trial lacking testimony, expressly 7, 1979, We conclude statement were false. August certain portions there no error the instruction. giving 1127a, case, Legislature section subsequent note to the trial in this enacted 15We in-custody (b), an any proceeding “In which provides which in subdivision criminal trial *59 request witness, upon party, jury the court shall instruct
informant testifies as a caution and close part testimony in-custody ‘The informant should be viewed with of an ” (Italics added.) scrutiny. .. further that the trial court Defendant asserts refused to improperly give curative instruction defendant.16 The trial court “possibly” requested by refused to the instruction on the that its content was “covered give ground more CALJIC instructions.” accurately by adequately present A trial court refuse to may instructions when properly give requested they are either erroneous or of other instructions Defend repetitive already given. erroneous, ant asserts no reason the trial court’s conclusion was why is none apparent. Reasonable Doubt Proposed Instruction
The trial court the standard CALJIC No. instruction on gave 2.90 jury instruction, reasonable doubt. Defendant which the proposed following trial court refused: “An conviction is a belief abiding with staying power. Even absolute if it positivism, wanes after some undetermined and undeter- time, Therefore, minable is insufficient. not kind of just any conviction will doubt, a reasonable it must dispel be the kind Defendant abiding only.” asserts that “such an instruction should be whenever given requested by defendant,” and in cases particularly involving “potential capital punishment issues.” credibility have, however, occasions,
We on numerous determined that CALJIC No. doubt,” is “a 2.90 sound of reasonable and that constitutionally description additional instructions on reasonable doubt “[n]o necessary.” (People [are] Morris, 214; supra, 53 Cal.3d at (1994)_U.S___ see Victor v. Nebraska p. _ 583, 591, 600, 1239, 1243, L.Ed.2d S.Ct. We conclude that the jury adequately instructed on this issue.
B. Phase Penalty
1. Juror Turner
Defendant contends that the trial court erred his refusing request to remove Juror Turner when Barry Turner’s informed the court employer that he would not be for the remainder of his paid service. We conclude jury that the trial court exercised its discretion in properly this juror keeping the jury. proposed 16The instruction was as follows: competent “The law makes the defendant a behalf, witness his own testimony you, and his is entitled to full and fair consideration
the same as any may that of other disregard testimony merely witness. You his because he presumed is the defendant. He prosecution is to be contrary innocent until the establishes the by convincing proof beyond testimony a reasonable doubt. His is entitled to full credit when you truth, believe that he spoken has testimony proof any and his is sufficient fact to you which truthfully believe weigh he has testified. testimony by You should the same you standards as weigh testimony would any other witness.” *60 18, 1987, a note Juror On the court was sent from or about September McKee Is there can call any way you Nine read as follows: “Judge which [JD Co.) for my Aircraft so that I an extension may get my (Hughes employer is for 22 The Current for the to Policy company pay days[;] service? jury [JO [JQ in this far. can days help you provide I have exceeded this thus by Any Thank Much. Juror Very matter will be # greatly appreciated. you [JO [JO [JQ R. Turner.” Barry court, counsel, not revealed by objected by
Subsequent inquiries from argument be After granted by Hughes. hearing that no extension would counsel, his the court Juror Turner without revealing employer’s questioned “Sir, sent a number of you The occurred: have response. following colloquy letter Aircraft and their with with days regard Hughes policy regard ago letter, this, . Let me sir. With to that service? . . ask you regard jury or If would of it went one the other. way the outcome my inquiry—let’s say outcome, the outcome affect your ability it would went—depending in this Turner to “No, as a fair and matter all?” responded, serve impartial juror asked, “If tell me that there is no they would The court then it not.” extension, if me an would of those any types extension or tell there is they in this affect to serve as a fair and ability juror responses your impartial asked, “No, court then Turner would not.” The they matter.” responded, to rush to kind any any either of those cause in responses you way “Would “No, in this would not.” again, they of decision matter?” Turner responded There was no counsel. inquiry “[bjased
The court then ruled that upon my questions juror I he of him answers to the find that observations during questions, And that would to me he honestly truthfully answered knowingly. Therefore, the that he be excused continue to as a stay juror. request proper is denied.” motion, denied the
Defendant then moved a mistrial. The trial court dire, the he had observed the voir noting guilt proceed- that jurors through Turner observed ings, and part penalty proceedings, the letter. the court’s of him during regarding particular questioning answers, answers, honest court found that “his answers were knowing be affected by answers and in no would responsive way not kind of an extension Hughes denying any outcome denying letter to if could anything That—he made the see days. inquiry it that he no that—that if was done done and there was indication in this would in have to rush or fail to deliberate way anything properly any matter. . . .” time, “If at whether before or after any
Section 1089 provides part, final . . . . . cause of the case . good submission jury, juror upon
205 the court is found to be unable to his ... the court duty, shown to perform alternate, order him to be the name an may draw who shall discharged trial, 1123, time then take his in the box At the jury ....’’ section place which has since been “If before the has repealed, provided part, jury court, returned its verdict into a . . . . . . cause shown to juror upon good the court is found to be unable to his the court him perform order duty, may to be A discharged.” “good cause” determination is one for the calling discretion, exercise of the court’s and if there is any substantial evidence decision, it will be v. supporting upheld appeal. (People Burgener 505, 112, (1986) 1251]; 41 Cal.3d 520 714P.2d see People v. Cal.Rptr. [224 Ashmus, 54 Cal.3d at supra, 987 court’s absent p. ruling abuse upheld [trial discretion].)
We conclude that the trial court acted well within its discretion in deter- that Juror mining Turner was able to his duties perform regardless outcome of his for an extension Turner was request by Hughes. unequivocal deliberate, responses the result would not affect his ability the trial court was in the best to observe his position demeanor and assess his credibility. assertions, to defendant’s
Contrary there is no rule a trial lacks judge discretion to refuse a request replace juror whenever alternate are jurors available to be substituted in. Such a se rule would cause per unnecessary when, case, disruption, as in this particularly the same has jury already deliberated during guilt phase from which together, alternates process sum, are excluded. we discern no error.
2. Instructional Error Defendant contends that the trial court should have sua instructed sponte that it could not jury return a verdict of death unless it found beyond reasonable doubt that the evidence death instead of life supported imprison- ment without We have possibility parole. this conten- repeatedly rejected tion and defendant asserts no reason for us to revisit it now. v. 1148, (1992) 834, McPeters 2 Cal.4th 146]; 832 P.2d Cal.Rptr.2d [9 883, v. People (1988) Williams 44 Cal.3d 960-961 Cal.Rptr. [245 395]; P.2d see v. Gates Rather, 743 P.2d “Since the decision imposing appropri- [of
ate is a penalty] normative individual judgment reflecting moral juror’s assessment , of the defendant’s .. . of a reasonable- culpability application doubt standard is neither (Peo- nor appropriate constitutionally compelled.” Williams, ple supra, 960.) Cal.3d at p. Against
3. Scott Charges Reference court forbade defense coun- erroneously that the trial Defendant contends fact that the did referring closing prosecution sel from argument is This contention meritless. The record seek the death Scott. penalty against *62 refer in closing of evidence that counsel below to any sought is devoid the to the had death prosecutor sought penalty against whether argument That claim has therefore been waived. Scott. sentence, extent that he to refer to Scott’s sought
To the defendant asserts the hearing that has been waived. a outside During claim expressly presence commented, of on the court argument, the jury regarding parameters closing “I kind related to don’t want reference to of sentence any any specifically instance, this like For I don’t want reference with any case or that. anything that.” what Scott received or such like Defense regard Teague Hampton to would, course, to that because the counsel “I of mention responded, expect in. is and he’s in and has not evidence is Scott alive Teague Hampton prison the and I will not been executed. I will mention that of evidence part sentence, but is not evidence—but in mention that sentence part is the he’s and was in The court subsequently evidence fact alive prison.” stated, . that “It to me the relevance . . appears only mentioning [Scott’s] from the alive—would be for the of draw that jury purpose having that did not receive the death Defense counsel conclusion penalty.” all, “Not . . . The reason for it is when your give at honor. responded, you a death have no of a mistake. When person you rectifying penalty way to is life without of there is a possibility way rectify person given parole fact, course, . . .1 not As a matter of going sentencing. mistake. am into sentence and could have been on He could be the death given appeal. [Scott] case, but I be I know and I don’t believe that to be don’t appeal. I am to tell them am to it before the . . . not up jury. going not going bring go not going Scott had a trial and he’s convicted ... we are anything into sentence at all.” [Scott’s] waived, if claim not the trial court acted
Even this had been to Scott’s sen allow defense counsel refer appropriately refusing tence, the fact that the to allow reference to implicitly refusing It well death Scott. is against not prosecution sought penalty meted is irrelevant to established that out to a codefendant punishment “[t]he the defendant the decision the must make at whether penalty jury phase: (1989) Cal.3d should sentenced death.” v. Carrera before it 49 291, 348, 121]; (1991) 53 P.2d v. Beardslee People Cal.Rptr. [261 276, here was P.2d The jury Cal.3d 111-112 [279 culpability informed of relative fully regarding the parties’ positions defendants, from that he the two and defendant was precluded arguing Carrera, (See supra, a minor role in the crimes. played 343.) at p. have that a
Defendant asserts that recent authorities suggested “[s]everal However, while the consider a sentence to codefendant." jury may given Dugger court in Parker v. 498 U.S. 313-318 L.Ed.2d high 821-824, 111 S.Ct. did conclude that the trial court had implicitly 731] considered such in Parker evidence consid sentencing, nothing compels eration codefendant’s sentence at penalty phase. remaining authorities defendant cites v. Mor support opposite proposition. (People ris, 53 Cal.3d at have supra, rejected the contention p. repeatedly [“We must be directed to consider capital juries the relative of an severity *63 factor.”]; Carrera, sentence as v. accomplice’s mitigating People supra, 49 Cal.3d at is there in error the fact that the was not p. any jury [“Nor advised of sentence. The meted out to a codefend punishment [codefendant’s] ant is irrelevant to the decision the must at the make jury penalty phase: whether the death.”]; defendant before it should be to sentenced v. People 1, 525, Malone (1988) 47 Cal.3d 53-54 762 P.2d Cal.Rptr. [252 1249] refusal to [upholding instruct to consider nature or jury disposition defendant’s crime charges against partner].)
4. Prosecutorial Error Defendant asserts that Martin’s and inconsistent assertions con- improper Scott’s intent kill also cerning to constituted error at the prejudicial penalty ante, (See phase II.A.2.C.) defendant’s trial. pt. Because we conclude not, event, above that the claim was waived and there in was any any misconduct the prejudicial we further the guilt reject claim phase, these and inconsistent “improper assertions . . . had a on the bearing penalty phase Turner’s trial.”
5. Constitutionality State Capital Sentencing Scheme fashion summary and without critical defendant asserts that analysis, several features of California’s capital scheme violate the federal sentencing Constitution. Defendant that we have acknowledges previously rejected following arguments, but states that have not been in they finally adjudicated the federal courts.
Defendant asserts that the failure to delete factors sentencing inapplicable from instructions in of section given violated the language Eighth 190.3 Amendment that it to an defendant of his individualized deprived right This factors. argument only permissible determination based sentencing (1992) v. Clark 3 Cal.4th this court. rejected by been repeatedly has 554, 561]; (1991) 53 41, People Cooper 833 P.2d Cal.Rptr.2d 169 [10 771, 90, 865]; v. Miranda 809 P.2d Cal.Rptr. Cal.3d [281 P.2d 104-105 [241 assertion, Further, “effec- did not to defendant’s prosecutor contrary do with nothing which had ... how a factor tively suggest[] jury To the contrary, as prosecutor be considered aggravation.” the case could “if only to consider factors applicable.” was jury emphasized to label each factor as aggravating that the failure Defendant also contends factors it defendant rendered the for the as jurors applied or mitigating left as to guidance without vague jury because unconstitutionally Moreover, it the jury of the factor. allowed meaning application mental or emotional distur- age such factors as aggravation consider constitutionally only mitigation. be considered may bance which 190.3, (i), (a), (b), and factors upheld court has section high recently unconstitutionally vague. (Tuilaepa factors against challenge _ _ 750, 764, _, 114 S.Ct. (1994) U.S. L.Ed.2d v. California need not *64 stated that sentencer 2638].) capital In so the court doing, “[a] deci- sentencing fact in the capital how to weigh any particular instructed Indeed, 764].) we have held (Id. repeatedly at L.Ed.2d at p__[129 p. sion.” factors as sentencing to identify that “trial courts are not required particular law is constitu- penalty and that the 1978 death mitigating or aggravating Howard, v. (People supra, the absence of such a requirement.” tional despite 865, 1196; 1 (1992) v. Cal.4th 973 [4 Pinholster People 1 Cal.4th at p. 765, 571].) 824 P.2d Cal.Rptr.2d potential mitigat in the list of
Defendant asserts that the inclusion in instructions as “extreme” and “substantial” adjectives factors of such ing 190.3, (d) as a barrier factors and acted (g), in the of section language given the Amendment. Eighth in violation of to the consideration of mitigation 190.3, However, (d), which in the of section factor instructions language while defend crime was committed allows the to consider whether the jury does not unconsti or emotional disturbance” ant suffered “extreme mental distur mental or emotional from tutionally preclude jury considering Rather, in section the “catchall” that are not “extreme.” provisions bances extenuates 190.3, circumstance which (k), other “referring ‘[a]ny factor crime,’ or mental of nonextreme allow consideration gravity 163; v. Clark, People v. 3 Cal.4th supra, p. emotional conditions.” (People 64, 244].) 527, 770 P.2d (1989) Cal.Rptr. 48 Cal.3d 567-568 [257 Morales
209 Moreover, 190.3, instructions of section factor which (g), language to consider whether acted allows the under “extreme” duress jury under domination” of another include or “substantial lesser forms person, and (k), duress domination when read in with factor and there- conjunction fore do not act as a barrier to the consideration of evidence. mitigating 207, 55, (1988) v. Adcox 47 Cal.3d 270 (People 763 P.2d Cal.Rptr. [253 Morales, 906]; 567-568.) see v. 48 People supra, Cal.3d at pp.
Defendant next contends that the trial court’s failure to written require on the factors selected it findings by jury aggravating by deprived defendant of his due Amendment process Eighth rights meaningful review. We have this appellate claim. v. Fauber previously rejected (People 24, (1992) 249]; Cal.4th 831 P.2d v. Cox Cal.Rptr.2d [9 P.2d Defendant contends that the lack of any requirement intracase intercase proportionality, and of such any undertaking this case at the time or trial on appeal, violates defendant’s right since such equal protection inmates, review is afforded to noncapital Amendment Eighth requires that a death sentence not be imposed arbitrarily capriciously, poten- have, tially factors must be mitigating considered the sentences We “ however, observed that previously convicted under the death ‘[p]ersons are penalty situated to manifestly similarly convicted under the persons Determinate Act and Sentencing cannot assert a meritorious accordingly claim to the “benefits” of the act under the clause . . . .’” equal protection Cox, supra, 691.) Cal.3d at p.
Defendant contends that use of any criminal unadjudicated activity by jury during violated sentencing phase to due rights under process Here, however, Amendment. Eighth was instructed that aside jury *65 convictions, from defendant’s three prior could they not consider “any evidence of other crime any as an circumstance.” We aggravating presume that the jury followed the court’s instructions. v. (People Delgado, supra, 331; Cal.4th at p. Mickey, supra, 17.) Cal.3d at fn. p. C. Posttrial
1. New Trial Motion Defendant claims that the trial court erred in his motion for new denying trial based on discovered newly evidence Officer regarding Barger-Collins’s with defendant. The relationship discovered evidence newly consisted of both a 1976 probation which defendant contended report contained informa- tion that to her contrary trial had used defendant testimony, Barger-Collins informant, Hughes, parole agent and the of Mildred testimony
as a paid fact, In and probation report who wrote report. investigator allegedly name of the officer to whom Hughes as testimony ambiguous We conclude that officer ever paid money. and whether spoke, the motion for new acted within its discretion the trial court denying that trial.
a. Factual Background for trial in on the basis discovered newly Defendant moved a new part defendant. relationship Officer with regarding Barger-Collins’s evidence regarding violation report evidence consisted of a 1976 supplemental This dictated Mildred then Hughes, parole agent defendant. The was report by testified at the Authority, hearing the California Youth who with investigator was not There signed Hughes. new trial motion. The document on the that had read transcribed was no indication Hughes tape report When reread the report on the document. any Hughes made corrections word “collaborated” used she discovered a name misspelled instead “corroborated.” one “had had at a relationship parolee
Defendant and Hughes point for he was some working defendant told her “that parole agent.” until could “remember the name on the She not woman police department.” two conversations with I read the document.” had Hughes telephone for her working who told her defendant was woman officer Compton police informant, valuable information as “and that he had her some given very an sort, but felt like at this of this she certain robberies things regarding he on both He was ... setting up burglaries that was sides. point working “Did she her them.” In to the question, and also about informing response said, Hughes she him for that information?” relate to you paying “Yes, don’t know—I never asked about she said he was but I being paid, . said Melvin was working like that. . . What I recall is she anything her, IBut money. but I her ever that she him paid cannot recall saying had a I she was him subsequently assumed guess money.” Hughes paying told who told her conversation with another officer Compton police as an informant. In the she use defendant “Detective Barker” should Barker, not Barger. had referred to Detective Hughes report, *66 1976, her name at the Officer also testified hearing.17 Barger-Collins Baker who had worked with an Officer Richard was Officer She Barger. police Concomitant with motion Barger-Collins retired as a officer 17Officer 1980. trial, Compton personnel file sought Barger-Collins’s Police disclosure of for new defendant First, the sought discovery purposes. for two privilege. her assertion of Defendant over ever from defendant. She did not remember hearing obtained information or office the name of Mildred employee by contacted being parole She did not recall 1976 that defendant had been Hughes. saying July for for several and had received for various money her months working tips in the While would not crimes char- regarding community. Barger-Collins informant, acterize as an he had her information about given defendant She recall ever alleged activity by criminal other did not persons. paying else for she defendant or information the time worked for the anyone during Police Compton Department. denied the a new stated trial court motion for trial. The court that with
regard the violation to the extent that it’s “supplemental report, newly trial, discovered with any evidence all . . . if it had regard phases introduced, been I would rule it would be irrelevant because it’s [szc] would have to do to a extent with who the relevancy great was regard money that, paid by.” “was about Hughes very unclear and could only speculate . . . as to paid who Therefore in it money. would be my opinion irrelevant. relevant, was a
“Assuming there determination made that it was because document; is, in the ambiguities that the name spelled wrong, ” ‘Barker,’ it was and because of as to who “I ambiguity paid money, would have excluded it under . . 352. . in, that I
“Assuming would have let the arguendo, document and would not have trial, excluded it under with to the regard motion new I find that it would be of little value in view very overwhelming evidence against defendant in this matter—all of evidence being fresh in ... It my mind. would been of have so little value it would not have changed the outcome of of the trial.” any portion might records a disability reveal that could departure account for both her and her lack of recall, and impeach Barger-Collins would allow defendant regarding her mental state. Second, sought any they implicit records to the extent explicit contained or references to defendant or contact with defendant. The trial court pursuant denied the motion to Evidence Code section subdivision (b)(3), records, stating that it had read they and that the information contained was so remote as to make practical regard disclosure little or no benefit to the with reasons defense counsel had asserted it needed the court records. The sealed the records as court’s exhibit No. 9. Defendant subsequently requested appeal independent we unseal the exhibit. Our review of personnel disability records did not reveal a account that could for both Barger-Collins’s departure they any implicit and her recall at trial. Nor did contain lack of explicit reference to we Accordingly, request. defendant or contact with defendant. denied the
b. Analysis “ new rests so a motion for a trial completely ‘The determination be unless a that its action will not disturbed court’s discretion within ” v. (People unmistakable of discretion clearly appears.’ abuse manifest 834, 1268, 221]; P.2d (1988) Cal.Rptr. 1318 [248 Williams “ 328.) determining v. 5 Cal.4th Delgado, supra, p. ‘[I]n see People motion, on such each exercise discretion there has been a proper whether ” v. (People Dyer own factual background.’ be from its case must judged 209, P.2d Cal.3d (1988) 45 [246 on discovered newly on motion for new trial based a ruling “‘1. That the evidence, factors: following court considers the trial discovered; 2. evidence, That the newly its materiality, and not merely a different That be such as render 3. it merely; evidence be not cumulative cause; with 4. That could not the party on retrial result probable trial; at the and 5. That it produced have discovered diligence reasonable ” which the case admits.’ best evidence of be shown these facts 86]; P. v. Delgado, 247-248 People 73 Cal. v. Sutton 328.) 5 Cal.4th at supra, p.
Here, evidence was the new impeaching defendant asserts that Scott was the actual shooter. of whether defendant or critical to issue in relied on the inconsistencies heavily notes that the People Defendant incon statements, for the and that defendant’s only defendant’s explanation on the able to persuade sistencies was that was Barger-Collins role than and her threats to acknowledge greater basis of their relationship evidence, “could new If the had been aware of the jury had. truly jury on statements believed Turner’s of his inconsistent explanation have likely The evidence would have “likely provided jury 1979.” August shooter.” of who was the with a reasonable doubt... question in denying acted within its discretion We conclude that the trial court evidence that the discovered determining newly motion for new trial and on retrial. probable been such as to render a different result would have Sutton, had heard 247.) 73 Cal. at (See supra, jury p. inconsistencies, chose to for his and apparently defendant’s explanation himself his 7 statement August implicating disbelieve testimony influence robbery procured by Barger-Collins’s murder and multiple Moreover, of defendant’s guilt there was evidence strong and coercion.
213 statement, addition Vincent’s August including testimony regarding defendant’s admission of murder on the bus jail and defendant’s possession and use certain items to the victims. belonging contrast, the document and By defendant to introduce testimony sought at the new trial as hearing ambiguous to the name of the officer to whom Thus, and whether that Hughes spoke, officer ever paid money. the evidence did not contradict the evidence introduced strongest against defendant; rather, it was at best evidence of speculative Barger-Collins’s sum, untruthfulness on a collateral In we conclude that the trial point. court acted within its discretion in the motion for new trial based on denying Hughes’s probation report testimony.18
2. Reduction to Sentence Life Defendant contends that his sentence should be reduced to life imprison- ment without possibility because of Martin’s parole “unprofessional inconsistent the failure argument,” of the trial court to apply concepts intracase proportionality, because the reasons stated the trial court for by to reduce refusing the sentence failed to take these considerations into account.
We have on the already rejected merits defendant’s claim that Martin committed prejudicial misconduct prosecutorial inconsistent ar- by making guments, and his claim that the lack of intracase violates his proportionality Therefore, right equal protection. the trial court did not err in failing expressly consider them in (Cf. its ruling. v. Frierson Cal.3d P.2d addition, defendant notes that the trial court stated that evidence “[t]he clearly beyond reasonable any doubt established the defendant was not under duress nor under any domination of his crime partner anyone else—substantial domination or otherwise. There was no absolutely domination or duress at all. Because there was no evidence from which I could even domination, infer such duress and/or this factor is given abso- no lutely weight mitigation.” Defendant asserts that “these justifications the trial by court should not be considered because the trial court had excluded improperly proposed Dr. to the testimony Maloney effect that Turner was a and could follower-type therefore have been induced to factor, our disposition 18Given on the third remaining we need not reach the factors of the (People Delgado, Sutton test supra, 7), p. 5 Cal.4th at fn. or review the trial court’s trial, i.e., other denying bases for the motion for newly new if discovered evidence trial, proffered had been irrelevant, the trial court would have concluded it was and if relevant, would have excluded it under Evidence Code section 352. shoot the victims.” and did not personally crimes Scott participate of this evidence at the court’s exclusion trial already upheld We have *69 our review of the record in this discussion that We noted guilt phase. on voir dire that defendant was Dr. by Maloney no testimony revealed have been shooter. therefore less likely a follower and generally Moreover, and still did not did at the testify penalty phase, Maloney Dr. Scott that he was by a follower so dominated defendant was opine sum, we conclude that the criminal to involve himself activity. induced to modify. did err in motion denying trial court Counsel D. Assistance Ineffective of the issues if this court should find that any contends that
Defendant counsel failed preserve were waived because his trial raised by them, to defendant provided also find that the representation we must that the issue of was ineffective. He also asserts on these issues counsel assist- to demonstrate ineffective showing he made a sufficient whether has immaterial he will address at this time” because of counsel is “simply ance in his for writ of habeas assistance of counsel petition issues of ineffective not consider this claim further. We therefore do corpus.
Conclusion above, set is affirmed.19 For reasons forth the judgment J., Kennard, Baxter, J., J., Lucas, J., J., Werdegar, George, C. concurred.
MOSK, .—I concur in the judgment. J. of the court.
I also concur generally opinion “remoteness” it to me that the I write to state that seems separately plain use a witness as seeks to to impeach of a conviction that prior felony party conviction, or is from the witness suffered the he testifies measured the date later, therefor, to the date the whichever is was released from imprisonment Evid., 609(b), 28 U.S.C. (Cf. Fed. Rules rule witness takes the stand. release conviction or of the “remoteness” from “the date [measuring conviction, whichever for that of the witness from the confinement imposed developed To the arguments sufficiently cognizable. to be 19We that are discuss those indeed, and, claims, without development asserts other without perfunctorily extent defendant made, contentions, they they properly are not clear are intended to discrete indication rejected are on that basis. is the date”].) later The law deems relevant the between the comparison he person as was then and as is now. It person asks this implicitly question: “The witness was a criminal (Cf. once: is he today?” rehabilitated Gold, & Federal Practice Wright and Procedure pp. § Evid., 254-255 609(b), U.S.C.].) Fed. Rules rule [under Appellant’s petition rehearing was denied September opinion modified to read as printed above.