*1 S004692, Apr. Crim. No. 24634. [No. 1992.] PEOPLE,
THE Plaintiff and Respondent, MINCEY,
BRYAN JOSEPH Defendant and Appellant.
Counsel Court, Howarth, L. W. under Paul Supreme Joan appointment Hoffman, Rice and Defendant and Tracy Cathy Dreyfuss Appellant. for General, de Steve John K. Van and Daniel E. Kamp Lungren, Attorneys General, Williamson, White and D. George Harley Chief Assistant Attorneys General, Corona, Jr., Assistant and Maxine P. Mayfield, Attorney Rudolf Cutler, General, Deputy Attorneys for and Respondent. Plaintiff
Opinion KENNARD, J. convicted of first Bryan Mincey defendant Joseph A Code, 187; (Pen. degree murder are to the Penal all references statutory § indicated), a child Code unless otherwise three counts of felony endangering 273a, (§ (1)), subd. and two child misdemeanor counts of a endangering 273a, (§ (2)).1 subd. circumstance jury found to be true special allegation that murder was of intentional and involved infliction 190.2, (§ (a)(18).) torture. subd. Defendant was to death. This sentenced VI, Const., 11; 1239, (Cal. (b).) appeal is automatic. art. subd. § § (counts We reverse the misdemeanor a child convictions for endangering 6), and but otherwise affirm the including penalty. death judgment,
I. Phase Facts Guilt Defendant was B.’s boyfriend. Sandra Defendant and Sandra were jointly son, James; charged with the murder of special Sandra’s five-year-old murder, however, circumstance allegation torture was defend- against only ant. Defendant and Sandra were with five charged felony also counts victim; endangering a child. Three of those counts related to the the remain- sister, two ing counts involved the The trial four-year-old Wendy. victim’s severance, granted court Sandra’s for and case pretrial motion proceeded to trial against only defendant.
A. Prosecution Evidence
1. Prior Incidents 20, 1981, On the morning of June San County Bernardino Sheriff Deputy Fontana, Dana Williams went to apartment an where defendant lived with children, Defendant, Sandra her B. and two James young and who Wendy. was table holding a leg, with Sandra the front James arguing yard. mouth, had nose and cuts around his bloody and two lower front Wendy’s teeth were Defendant missing. told the he been and Sandra had deputy fighting she because did not want him the children. He denied disciplining James, hit kicked having or but admitted she him in Sandra after hit hitting swollen, the head with a brick. Defendant’s head and he was red and had scratches on his chest. Defendant also admitted a container throwing defendant, capsules into a “speed” nearby According field. the capsules belonged to Sandra. 1At sentencing, trial court reduced the felony endangering convictions for a child to
misdemeanors. 14, 1983, re- later, again Williams April Deputy two on Nearly years Defendant Sandra B. defendant and a call about a between fight sponded and body, large bumps over his a cut over his James had bruises eye. had her the inside of lip his head. Sandra’s upper black and blue marks on cut, told Defendant her head was swollen. were and the left side of mouth over the fighting disciplining he and Sandra had been Williams that Deputy of James.
2. The Murder James *18 Discovery killing
a. to a call responded At a.m. on the fire department December Sandra, Sandra The had been awakened neighbor. neighbor from B.’s door. and on the crying, screaming, knocking neighbor’s apartment who was Sandra After Sandra Becks saw entering Firefighter Gary B.’s apartment, a The child was wet and lying wrapped on bed next to James. five-year-old blanket; in a he was dead. in Patrick that after defendant had been
Sergeant McCurry placed testified car, deal is. big the back of a defendant “I know what the police said: don’t The kid I croaked. That’s all know.” .12 (taken
Defendant’s blood test indicated morning) 6:15 that same micrograms milliliter of per amphetamines. Physical
b. evidence Both inside and a outside the found substantial apartment, police amount of physical evidence the murder of James. Outside the relating apartment was a The board with blood and fecal material. blood consistent with James’s blood. room was a leather belt with living metal grommets and feces. There near the was also feces on a plastic cup in television. Two small a can in kitchen had pillows trash bloodstains mother, that were consistent with the blood and his of the victim types wet, Sandra B. In the bedroom were a children’s clothes pile of bloodstained and a fan belt with human blood on it.
Additional items of evidence found consisted of clumps bedroom hair, belt; children; brown consistent with the hair of the two a fan adult-size bloodstain; belt; with jeans leather light and an adult-size cartridge plaid shirt with a bloodstain consistent with type. Throughout defendant’s blood blood; the bedroom were blood smears and curtains water-diluted linen closet had blood that was consistent with James’s blood type.
c. evidence Medical Dr. Root He on James’s concluded Irving performed autopsy body. The injuries massive blunt-force were the cause of death. shock of and the repetitive injuries of tissues led to chemical imbalances that tearing resulted tract of the stoppage swelling intestinal and brain. James’s had hundreds of all which could have body injuries, virtually been inflicted within to 48 of death. hours
There were numerous abrasions and bruises on face and head. His James’s abrasions, back had a number of including four lines on left side straight bruised, of his neck and shoulders. The backs of his hands were and there knees, was a band of bruises across legs, his waist. James’s hips, thighs, feet also number had a of bruises and cuts.
The side penis right of the scrotum were bruised. mucous torn, *19 membrane of the anus was there and was a tear inside the rectum two buttocks, to three the inches from a of the anus. Inside the of opening pocket tissue was torn where it had been sheared across itself. Dr. Root testified: “Injuries of that sort a [shearing tearing injuries pocket and of producing tissue under I the are the kinds of see the automobile things skin] tissue, accidents. of tissue Shearing against of It takes a substantial tearing. amount of force to cause injury.” that kind of
In Dr. opinion, Root’s of bruises could been caused many by have buttocks, however, hand James. The hitting could not have shearing been done hand. Of the from the scene and by physical objects recovered trial, shown to Dr. Root at the board was the that could have only object caused the to James’s The injury buttocks. tear the outside of the anus and in the tissue of the buttocks could been caused edge have board by being forced between and then thighs pushed towards anus. The amount of force would required have to have been The edge substantial. the board could also have caused a number of the injuries on straight-line James’s Repeated back. blows with the belt could have caused the cartridge over bruising the buttocks and The thighs. tear inside the rectum was consistent with an injury caused aby fingernail.
Dr. Root stated that James experienced prolonged before his death. pain time amount of between the onset of the and the loss of injuries sensation or to feel ability as result of the effects pain physiological minutes, the injuries was more than a few or more. an hour perhaps Although he could not more be specific, Dr. Root that the metabolic explained changes caused by injuries and the onset of death would taken hours to have have occurred and that James’s loss of sensation of would pain develop, 60 minutes before death. or possibly sister, Lebow on was examined Dr. Max four-year-old Wendy, by James’s these injuries: the date of James’s murder. She showed December neck, face, two to and head that were incurred a period spanning bruises There were also bruises three to twelve hours before the examination. days than her feet. The were less groin, thighs, thighs on bruises on her been hit having hours old. on back were consistent with Injuries Wendy’s have been with a belt with and the to her left could “eyelets,” injuries thigh aby caused a belt. on her waist have been caused belt by Bruises could waist; her her back of the being tightly injuries thigh, around pulled and buttocks have caused a board. Dr. Lebow’s legs, could been That injuries were too extensive to have been accidental. opinion, Wendy’s Geise, five was also view of Dr. Herbert who examined after Wendy days James’s death. Testimony
d. Wendy sister, Wendy, James’s was five when she testified at defendant’s years old She trial. said that on one her teeth occasion defendant had kicked one of out, that she and James had been James died night with a belt whipped bed, because she had wet the and that defendant did most of the whipping. Defendant had been mean always to her.
e.
Interviews of defendant
The police interviewed defendant three times after the
of James.
killing
Each of the interviews was
and
the
On each
tape-recorded
jury.
for
played
occasion,
of,
waived,
defendant was advised
and
his constitutional rights
under
Miranda v.
(1) First interview 23,1983, On December at 12:20 after the p.m., eight hours approximately discovered, murder of James was Detective Sergeant Baker and Brown Larry talked to defendant. Defendant made these statements:
Defendant admitted having spanked James and the Wendy during day murder, but denied having them that He whipped night. had used alcohol or drugs Around night. 10:30 asked Sandra B. defendant to p.m., go to the store and buy some When diapers. defendant returned 15 minutes
later, the children and Sandra in the stated initially were bedroom. Defendant that he front Christmas toys room with the children’s playing when to choke called him He James started and Sandra into bedroom. stated, however, get later that he into the his battery went bedroom and at that time held down on the bed while Sandra charger legs James’s with a defecated whipped During James belt. James and whipping, defendant sent him to the bowel movement. complete bathroom his Thereafter, James, in his again again Sandra who defecated whipped pants. down, When Sandra James’s fell the floor. Defend- feces on pulled pants ant made and left the pick up James taste the feces. Defendant bedroom. him, Sandra then called that James was After saying choking. attempting resuscitation, mouth-to-mouth the shower Sandra defendant James put and rolled him in a blanket. denied that killed doing beating Defendant James; he also denied about blood on knowing injuries, anything Wendy’s walls, or the blood- and board the had found. feces-covered police
(2) Second interview interview, Five horns after first Officer Powell and Detective Larry Brown he had lied in the again talked defendant. Defendant admitted that prior interview about not James the murder. He also hit having day admitted Defendant that Sandra B. had hitting Wendy night. insisted done the denied board. beatings, again any knowledge of the
(3) Third interview 26, 1983, On December Larry Officer Powell and Detective Brown had third interview with defendant. accused B. of administer- Defendant Sandra the fatal He ing beatings. continued to of the board. deny any knowledge defendant, According to and James had been sodomized their Wendy cousin, 15-year-old and would use their own feces as a lubricant. On sexual murder, feces; the night of James’s his defendant made James taste own this was to toilet train him. admitted James and having whipped Defendant murder, three Wendy times on the preceding wetting for morning *21 bed.
B. Evidence Defense Brown,
Three of (Nicole defendant’s friends David and Michael Slapper, Brown) Carla testified that which they saw defendant use amphetamines, caused to defendant be very and “wired.” angry
The defense presented also psychological testimony. and Dr. psychiatric Rath, a Craig licensed clinical defendant had testified that told psychologist, him the following: Defend- death. before James’s day
Defendant had used amphetamines On the morning most of the doing beatings. ant accused Sandra B. of death, in them sexual catching the children after James’s defendant spanked went the store to buy diapers. activities. At Sandra’s defendant request, returned, Defendant wanted to take When he James was rolled a blanket. her welfare check. losing but Sandra refused for fear of James to hospital if he took James to injuries She threatened defendant for James’s to blame James, could not stand up, She and defendant then who hospital. put saw the injuries the shower to revive him. That was the first time defendant asked, Sandra get way,” to James’s buttocks. When he “how did his ass “I him on beat while were After replied, you gone.” placing amphetamines tongue, help. James’s Sandra went out and called for medical IQ functioning Dr. Rath concluded that defendant had an level In Rath’s of a and was immature Dr. 14-year-old, neurologically. organic damage, defendant was not he had no opinion, psychotic, significant and he did have He defendant as major a mental illness. diagnosed disorder, a mixed which he as an “intermittent having personality described explosive disorder.” The disorder would cause accumulated psychological pressures According to come to an to loss of control. “explosion,” leading Rath, Dr. defendant’s acts reflected a desire to rather than an intent to punish kill, and defendant did not acts were James. probably killing know his Forbes,
Dr. Loma a mother had psychiatrist, testified to what defendant’s told her about defendant’s childhood. Defendant’s father was a bmtal man board, who beat his children with a and them. sexually belt molested Rath, Like Dr. Dr. Forbes intermittent diagnosed having defendant as an Forbes, disorder. In the explosive of Dr. defendant did not intend to opinion kill, torture James and did not intend but did intend to participate punishing him. Defendant was not and was not from psychotic suffering amphetamine psychosis. Oliver,
Dr. Anthony he psychiatrist neurologist, testified that found no evidence of He any disorder. criticized the and conclusions of Drs. reports Rath and Forbes as He found no evidence of brain inadequate. organic or damage amphetamine his defendant would have psychosis. opinion, been aware of the fully harm he was James and intended to inflicting on inflict the harm. Beaber,
Dr. Julian a child abuse torture from expert, distinguished punish- ment and child abuse on the basis that the has the long-term goal abuser *22 behavior, controlling while the ultimate of the torturer is the inflic- purpose tion of pain for its own sake.
432
II. Phase Issues Guilt Insufficiency A. Evidence of
Defendant contends his conviction must be reduced degree to second murder because evidence was insufficient to establish murder first degree by torture. The essential elements of first torture murder degree are: (1) the acts the death causing must involve a high degree of of probability death, (2) the defendant must commit the acts with the intent to cause extortion, cruel pain for the suffering of purpose revenge, or persuasion, 247, any for other sadistic purpose. (People Davenport (1985) v. 41 Cal.3d 794, 267 Cal. Rptr. 861].) 710 P.2d kill [221 Intent to is not an element of the (Ibid.) offense.
Defendant argues that here the evidence only of intent to torture was the condition of the victim’s and that as a matter of law intent body, torture cannot be inferred from the solely condition of the victim’s He body. is wrong.
In evidence, a reviewing to the challenge the review sufficiency court ing must determine from the entire record whether a trier of reasonable fact could have found that the prosecution sustained its burden of proof determination, a beyond reasonable doubt. making this the reviewing court must consider the evidence in a most light favorable to judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in of the support judgment. The test is whether decision, substantial evidence supports not whether the evidence proves guilt beyond (People (1990) reasonable doubt. Hayes v. 52 577, 874, Cal.3d 631 376]; Cal.Rptr. 802 P.2d [276 v. Johnson 557, 431, 26 Cal.3d 738, 576 Cal.Rptr. 1255].)2 [162 P.2d 16 A.L.R.4th out, As defendant points of a severity victim’s wounds is not neces- sarily determinative of intent to torture. Severe wounds be inflicted as a may result of an explosion 539, violence (People Steger (1976) v. 16 Cal.3d 547, 161, fn. 3 Cal.Rptr. [128 1206]) P.2d 83 A.L.R.3d or an “act of animal fury” (People Tubby (1949) 34 51]). Cal.2d P.2d 2It is unclear from defendant’s brief whether his challenge to the of the sufficiency evidence is made in connection with the trial court’s denial of the defense judgment motion for acquittal (§ 1118.1), or in guilt connection with the phase entirety. in its applied The standard by the trial court under section ruling 1118.1 in judgment acquittal on a motion for is the same as the applied by standard appellate an reviewing court sufficiency evidence support conviction. v. Ainsworth 1022 [248 755 P.2d The discussion that analyzes follows the sufficiency of the evidence first in the context of whether the presented prosecution’s evidence in the case-in- chief offense, was sufficient to establish every element of the and then in the context of whether the evidence is support sufficient to the conviction.
433 however, follow, of vic severity that because the It not does defendant’s intent determinative of the necessarily is not tim’s wounds torture, be matter law cannot as a of of the wounds the nature victim’s mind A defendant’s state of a state mind. of intent. Intent is of probative statements, must, established by be in of the defendant’s own the absence (People v. Dav the offense. the commission of circumstances surrounding may victim’s 270.) body of the supra, 41 Cal.3d The condition enport, at p. determining “In intent. circumstantial evidence of the requisite establish torture], may intent a murder was with that [to whether committed Among killing. surrounding course consider all circumstances of cases, circumstances, victim’s wounds.” severity in is the many those 546; 41 People Davenport, supra, supra, v. v. Steger, atp. 268.) at Cal.3d p. 162, v. Cal.3d 168 People Wiley [554
Defendant’s reliance 18 on 881], case, P.2d In that court stated: misplaced. defendant] is this “[The solely be inferred from correctly by *24 434 time,
indicate that were inflicted a the inference they supports over period that defendant intended cruel suffering. to inflict and pain
Next, People quoting Sieger, supra, from v. 16 Cal.3d language 548, defendant his argues “misguided, actions constituted a irrational wilful, deliberate, and totally unjustified attempt at rather than or discipline” assume, so, premeditated acts. Defendant that an appears erroneously intent to torture be found if may legally “misguided attempt a at discipline” any process ultimately led to victim’s played part death.
In v. People Steger, supra, 16 which fatal beating Cal.3d involved the child, of a we held that the evidence established that were a beatings “[t]he misguided, irrational and totally unjustified attempt they at but discipline; wilful, deliberate, in a were not criminal (Id. sense or at premeditated.” p. not, however, 548.) did Steger hold or that a child abuse homicide suggest could not also constitute a torture murder. We said in “In Steger. specifically murder, holding the evidence degree does not a conviction of first support course, we do not a can imply, of that murder of a child never be torture In murder. appropriate circumstances a child can be found to be a batterer torturer. All we hold is that here the did not defendant prove prosecution wilful, deliberate, murdered her with a stepchild and intent to premeditated inflict extreme prolonged (Id. at pain.” p. violence,
The death of a may child result from an a mis explosion torture, guided attempt at or discipline, on the of the case. depending facts (People (1987) v. James Cal.App.3d 196 293 Just Cal.Rptr. [241 torture, as child abuse can involve misguided attempt at can discipline involve an intent to cause cruel pain There is no suffering. legal from for immunity conviction first victim degree torture murder because the to be a happened child.
Defendant
that his
argues
first
murder
be
aside
degree
conviction must
set
because the evidence was insufficient to
that he
support
jury’s finding
had acted with a premeditated and deliberate intent
inflict extreme and
prolonged
pain.
he
support,
(1968)
cites
v. Anderson
15
Cal.2d
In Anderson we said that first murder are generally degree convictions (1) motive, affirmed when there is evidence of and method of planning, killing that tends to establish a preconceived design; extremely strong evidence of planning; or evidence in conjunction of motive with either or a planning method of killing that indicates a design to kill. preconceived no evidence of here there is Defendant (70 26-27.) Cal.2d at contends pp. motive, Because the killing. requisite manner or an exacting planning, and premeditated murder the deliberate element first torture is degree 546), rather at Steger, supra, p. intent to inflict torture v. 267), issue (People Davenport, p. kill Cal.3d supra, than intent to *25 motive, to or method evidence is whether there is sufficient of planning, inflict torture. mind, evaluate defendant’s convic-
With we now these considerations case, in the of evidence in this first light tion for murder torture the by judgment for of denial of defendant’s motion context of the trial court’s in the context end and then at the of the case-in-chief acquittal prosecution’s (See post.) whole. fn. decision at the as a jury’s guilt phase The the had on two police prior evidence that prosecution presented In this to James. injuries occasions to calls responded involving physical case, the of James relating killing five-year-old evidence to the physical bedroom, and included and a with blood throughout blood the belts board feces, Dr. and with James’s hair. large a of brown hair consistent clump Root, James Irving the who the testified that physician performed autopsy, death; had that he had incurred hundreds of within to 48 hours of injuries hands, hours; belts, board; been beaten a the lasted that beating with and that as as James have lost the to feel for much might ability pain sensation of any death; an hour before his the the in James’s buttocks that of tissues shearing was caused the being straight edge; a substantial force with a that by applied tear two three caused the by to inches inside rectum was not James’s a tear caused application of force outside the rectum was consistent with but fingernail; and were both of James’s by that there marks behind puncture knees. for
We conclude trial denied the motion court properly judgment of The evidence the was acquittal. by prosecution presented sufficient torture. by to establish element of the offense of murder every occurred, of length time over number of injuries which beatings inflicted, inflicted, with were and variety objects injuries which the the fact that the victim made to planning was eat his own feces established and a preconceived inflict design suffering. cruel and pain
The evidence was that defend- jury’s finding also sufficient support ant was of murder evidence we guilty torture. addition by above, discussed Dr. Oliver in his was David testified that defendant opinion aware of the harm he inflicting was James and to inflict the on intended harm. there Although testimony Craig Dr. Rath that defendant disorder,
suffered from an explosive intermittent he also expressed opinion the disorder’s of control of episodes aggressive impulses loss duration, seconds, be of might brief sometimes often just only couple of minutes, that, and based on review and police reports his interviews of defendant, defendant “lies all As the time.” to the latter we note that aspect, defendant’s version of the events to James’s pertinent leading killing varied in the interviews he had with the From the circum police. stances surrounding James’s and death—including number nature of the wounds, and of time over which were inflicted—and length they expert testimony presented, could have found beyond a reasonably deliberate, reasonable doubt that defendant’s acts were premeditated death, involved a and were with the high probability committed intent to cruel (See cause pain suffering for a sadistic purpose.3 v. Demond *26 574, (1976) 590].) 59 Cal.App.3d Cal.Rptr. 585 [130 B. Instructional Error
1. Instructions Refusal of Defense The trial court gave the standard instruction torture jury defining (CALJIC murder. (4th 8.24 1979).)4 No. ed. The court also gave this instruction: “First degree by murder means of torture under section 189 is deliberate, wilful, murder a committed with and intent to inflict premeditated extreme and In prolonged a pain. determining whether murder was commit- intent, ted with that jury consider all the may circumstances surrounding the killing. those Among circumstances is the of the victim’s severity argues 3Defendant also the Eighth that prohibition against Amendment’s cruel and unusual punishment and principles process of due under Fourteenth require Amendment a distinction be made parents between attempt who abuse their in an to discipline children them murder, and those who torture and that an of solely inference intent to torture cannot be based on the body. condition of parent’s authority victim’s Defendant asserts that a discipline to child, a an authority that does not relationships, compels acceptance exist other of his argument. argument The is devoid of merit. seen, As we have a misguided distinction between discipline child and murder torture is legally recognized. The federal require Constitution does not authority conclusion that the of an discipline individual to a involving child to high probability extends acts of death committed with the intent cause pain to cruel and suffering. Imposition of the death penalty parent, on a person, or other who kills child disproportionate in such a is situation not to the 975, culpability. (See (1988) 905, individual’s People v. Wade 44 Cal.Rptr. Cal.3d 1000 [244 794].) 750 P.2d necessarily require any proof that the degree. such death extortion, persuasion necessarily 4CALJIC No. 8.24 act must involve [J] or The essential acts with the require proof that the defendant intended to kill the a high degree or provided: for elements of such a intent any “Murder which is to sadistic cause cruel probability deceased suffered purpose. murder pain [1] perpetrated by death, and suffering The crime of are pain.” (1) the act or acts torture murder for the the defendant must murder deceased, is purpose by which torture does nor caused revenge, the first commit does it
437 other the exclusion of evidence must not be considered wounds but such on intent.” bearing evidence instructions two refusing give for
Defendant faults the trial court 16 Cal.3d Steger, supra, v. People court after a statement this patterned 548, totally irrational misguided, were a beatings at that “the page disagree. We discipline.”5 at unjustifiable attempt of the case. to the facts A on the law applicable trial court must instruct 1093, addition, to an right has a (f), 1127.) In a defendant (§§ subd. (People Wright v. theory of the defense. instruction that pinpoints must, 600, 1126, 1049].) court 755 P.2d Cal.Rptr. [248 instruction, is, however, “of such an instruction argumentative refuse an favorable to one to draw inferences a character as to invite (1990) 50 Gordon evidence.” from items of parties specified 251]; v. Farmer P.2d Cal.3d Cal.Rptr. 765 P.2d (1989) 47 Cal.3d 913-914 [254 possibility the trial court to asking emphasize unjustifiable attempt were a irrational and beatings “misguided, totally *27 torture,” the court invite rather than defendant to have discipline sought facts, theory than his of to infer the existence of his version of the rather jury instructions, defense. Because of the nature of argumentative proposed the remaining the trial court refused With to properly give respect to them. instructions, instruc- of the two were of portions they repetitive requested Farmer, (People v. already given tions and therefore were refused. properly supra, 913.) 47 Cal.3d at p. to
Also without merit is the trial court’s failure argument defendant’s that State give the of Federal and requested instructions violated a “panoply have Constitutional that his to Rights.” right defendant asserts Specifically, misguided, a requested you beatings 5The first instruction stated: “If that were find above, you totally unjustified attempt discipline irrational and at than torture as defined rather wilful, deliberate, (See may conclude they premeditated.” that were not in a criminal sense or v. Steger, supra, 548.) p. 16 Cal.3d at The second torture under section is proposed instruction read: “Murder means of wilful, deliberate, committed murder to inflict extreme and premeditated with the and intent intent, prolonged pain. jury that determining whether a murder was committed with may surrounding killing. Among of course those circum- consider all the circumstances stances, cases, many against in You are admonished severity is the of the victim’s wounds. evidence, however, giving undue fact have been weight to such as the wounds could in (or totally inflicted killing passion misguided, course of a in the heat of irrational and People (See unjustifiable attempt discipline) at rather than a calculated torture murder.” Steger, supra, p. 16 Cal.3d at determine material evidence jury every issue was presented by violated, that a critical issue factual was removed from the consider- jury’s ation, and that his right present to a defense was Defendant’s impaired. his assertion that acts constituted a is a “misguided discipline” at attempt based directed factually argument attempt at an to the element of negate intent. It is defense. legal Defendant fails to this basic recognize distinction.
2. Trial Court’s Give Manslaughter to Instructions on Refusal
The trial court instructed the first and degree on second murder. jury It refused give defendant’s on proposed voluntary instructions invol untary manslaughter, on the there no factual such ground basis justify instructions. Defendant that the court’s refusal was erroneous for complains two reasons.
First, defendant him argues could have found jury guilty involuntary misdemeanor on child endan- manslaughter, based misdemeanor germent, if it concluded he had failed to intercede Sandra B.’s beating James or he had failed exercise due caution James. disciplining Second, defendant asserts that have found him guilty could involuntary manslaughter because the defend- testimony defense regarding offense, ant’s IQ, talcing amphetamines the time his low his “explosive disorder” personality provided a basis for the to determine that he did not the mental possess state for murder. required
Defendant’s arguments assume either he killer that was not the actual of James or that he did not have the intent kill. to Because a trial court’s failure if, here, instruct on lesser included offense prejudicial is not as jury resolved necessarily the factual question adversely to the defendant under other 668, instructions (People (1990) Turner v. 50 Cal.3d 690-691 [268 706, 887]; 703, Cal.Rptr. 789 P.2d People v. Sedeno 10 Cal.3d 721 913]), [112 518 P.2d we Cal.Rptr. need not decide whether in this case the Here, evidence of required giving instructions the trial manslaughter. on that, court instructed the before jury it could find the circumstance special of true, torture murder to be had it to decide that defendant was the actual killer (see v. 783]; Ross 403 Cal.App.3d but Cal.Rptr. [154 190.2, see (c)) 190.2, subd. (§ § and that he had intent kill subd. (a)(18); People v. Davenport, supra, 41 271). Cal.3d at When the p. true, resolved it necessarily found this circumstance to be allegation special manslaughter.6 defendant the factual on against questions Relating to Sandra B. C. Exclusion Evidence Evidence Use and Prior Child Abuse Drug 1. drugs that Sandra B. had used defense offered to introduce evidence in James’s death.
and abused her children before the that resulted beatings if the prosecu- After the stated that such evidence was admitted prosecution defendant, the trial by tion would also introduce evidence of similar acts evidence court in to exclude the granted prosecution’s motion limine the children and testified to because “Sandra’s abuse of has been conceded issue,” and the evidence would require is not because introduction of evidence of defendant’s abuse to be introduced so that the complete prior would evidence that Sandra or “story” jury, be before the because or defendant “did certain did not establish that Sandra things past” Thus, defendant “did these the court ruled that things present.” evidence of Sandra’s use and child at times unrelated to the date drug abuse Code, 1101), (Evid. James’s death was character evidence improper § irrelevant, cumulative, (id., 352). and would consume time unduly §
Defendant in granting contends the trial court abused its discretion motion in limine. He that the court’s violated prosecution’s ruling asserts confrontation, his rights and due under both compulsory process, process VI, Const., (U.S. the United States and California Constitutions. Amends. XIV; Const., I, Cal. 15.) art. He he of a fair argues also that was deprived § trial because the the excluded evidence prosecution exploited by comparing defendant’s culpability to Sandra B.’s while culpability preventing from learning evidence to Sandra. damaging
We cannot conclude in excluding that the trial court abused its discretion the evidence under Evidence A Code section 352. trial court exclude may evidence under Evidence Code if section 352 its value is substan- probative tially outweighed probability that admission will consume unduly time, issues, create a substantial danger of undue confuse the or prejudice, Code, (Evid. mislead the jury. Cumulative evidence excluded may be § on (People Burgener (1986) this basis. 714 P.2d The court’s exercise of discretion will not be reversed
on absent a clear appeal (Id. of abuse. showing p. torture, complains 6Defendant also by that the instruction on CALJIC perpetrated murder (4th ed.), committed No. 8.24 did specifically being refer to acts a “conscious with disregard for human Any deficiency life.” was by cured the court’s other instructions on 257, (See malice aforethought. v. Garrison Cal.Rptr. 780 [254 419].) 765 P.2d Here, the the discussion of evidence was limited to references to general children, in Sandra B.’s abuse of the in which it prior was a context was clear that in its admission would result the admission similar acts of prior of situation, defendant prosecution. this we conclude the trial by cannot court abused discretion in the evidence its admission of would ruling an require undue time or create consumption danger a substantial of issues, Code, 352.) undue confuse the or prejudice, (Evid. mislead the jury. § Nor did the in concluding trial court abuse its discretion that the evidence would be cumulative. The before the evidence disclosed Sandra B. instance, too had abused the Wendy children. For testified that four-year-old died; defendant did most of the James heard “whipping” night interview in tape-recorded police of defendant which defendant accused that, Sandra B. of officer testified an administering beatings; police case, incident that occurred two years before the murder this defendant children; claimed that Sandra had abused the and there testimony Dr. Rath, a impression, clinical that he formed the initial based on psychologist, defendant, his review of the before reports talking records to that “a good deal of abuse of the children had taken both physical place probably by parties with an unknown extent by party one or the other.”
Because trial court’s was not an abuse of discretion under ruling Evidence Code section we need not address the whether the question court excluded evidence under improperly character Evidence Code section 1101.
Also without merit is argument defendant’s that the excluded evidence him deprived of his right constitutional to a defense. present Application evidence, here, the ordinary rules of trial as the court did does not imper- missibly on a infringe defendant’s right present defense. v. Hall Cal.3d 718 P.2d
2. ’s Sandra B. Invocation Privilege Against Amendment Fifth Self-incrimination
Defendant subpoenaed Sandra B. to at the testify phase of his trial. guilt defendant, Like Sandra was with the charged murder of James. At a court Code, hearing (see outside jury’s 402) Evid. presence the defense § Sandra, questioned who refused to respond, privilege against her asserting self-incrimination under the Amendment of the federal Constitution. Fifth that, counsel, Sandra informed court on the advice she would invoke privilege response asked any question by defendant. The trial denied court defendant’s Sandra B. to in- request compel voke the against privilege self-incrimination in front of the jury.
441 his constitutional violated ruling court’s Defendant contends that Sandra’s argues He a defense. and to present due rights process to Sandra’s the jury by telling infringed not have been interests could wrong. He is Amendment rights. of her Fifth invocation 913, the trial court (a) prohibits subdivision Evidence Code section It further of a privilege. assertion on a witness’s commenting from counsel the inference any not draw may [from “the trier of fact that provides any or as to of the witness the credibility a as to privilege] assertion of 913, subdi- section And Evidence Code in the proceeding.” matter at issue court, party, affected adversely the of an (b) request the vision requires a the exercise of inferences from not draw any the that it jury may instruct in the matter at issue any witness or as to of a credibility as to privilege as well as parties to witnesses statutory applies The prohibition proceeding. B. to invoke Sandra that the trial court compel Defendant’s litigant. request Evidence direct violation jury in the of the was presence the privilege therefore proper. The refusal to do so was Code section 913. court’s his infringes upon Evidence Code section 913 Defendant that argues Defendant’s a defense. and to constitutional to due rights process present Sandra B.’s invocation is based on his argument assumption infer- draw the self-incrimination would allow against privilege But, Sandra, defendant, as had killed James. ence that it who below, draw such an it would have been for improper explained inference. self-incrimina against
A may privilege invoke constitutional person asserted, for be may tion for a reason other than guilt. privilege with charged example, simply prosecution against person to insure that Thus, inferring guilt a crime is not own statements. helped by person’s and is at best improper from the mere exercise of the would be privilege (1991) 53 (See People v. Frierson based on not evidence. speculation, e.g., 730, 440, 1197]; v. Johnson Cal.3d 743 808 P.2d Cal.Rptr. [280 749, 545], Bowles v. 760 Cal.App.3d Cal.Rptr. quoting [114 536, 26]; (D.C. 1970) see App.D.C. United States Cir. 439 F.2d 541-542 [142 com., (1966 ed.) Code Cal. Law Revision Com. 29B West’s Ann. Evid. 80].) To avoid (1986 ed.) p. Ann. Evid. Code p. [Deering’s § § witness assert the privilege potentially prejudicial impact having have in the recommended against jury, past self-incrimination before the we that, in of the witness’s invocation of determining privilege, propriety hearing jury’s presence. trial court hold a outside pretestimonial 431, 441, v. Ford fn. 6 P.2d 76 A.L.R.4th This was done here.
442
A rights defendant’s to due and to a defense do not include process present a to the right to unfounded inference. present jury speculative, factually Frierson, (See 743.) supra, If the trial court this p. Cal.3d case the compel privilege had defendant to Sandra B. to assert permitted it the front of the would have been on to instruct jury, required, request, jury (Evid. draw the very sought jury. to the inference defendant to to present Code, 913, (b).) subd. § reliance
Defendant’s
on United
v. Robinson
We conclude that the trial err in court did not defendant’s refusing request to compel Sandra B. to invoke the her self- privilege against before incrimination.
3. Trial the B. Jury Court’s to Have See Sandra Refusal case-in-chief, the the During prosecution’s trial court allowed defense to call Sandra B. as a witness out of order. After Sandra’s assertion of the Fifth Amendment privilege against jury’s pres- self-incrimination outside ence, the defense court requested that the to see Sandra. The permit prosecution objected on the of lack ground relevancy. defense countered it that was relevant issue in their to the of whether relationship defendant or Sandra was the “in dominant and thus control of personality any incidents.” The particular trial court denied request defendant’s without repeatedly privilege against 7Defendant B.’s characterizes Sandra assertion of the self- testify by incrimination as a refusal to “when called the defense.” Defendant also accuses the prosecution manipulating privilege Sandra’s invocation of the “a deliberate attempt make capital prosecution for the privilege.” from the that Sandra witness’ It is true refused to defense, testify for the because defense it was prosecution, not the that called her as a however, attempt, witness. Defendant’s prosecutorial to insinuate misconduct from Sandra’s assertion of privilege finds no support in the record. Sandra’s The fact that trial was severed from defendant’s and the subsequently fact that she was on the transcripts tried based proceedings in this case by do not manipulation prosecu themselves establish tion. Sandra was independently represented by attorney’s regarding counsel. Her decisions her, best means to including against defend privilege advice invoke the self-incrimina tion, may interest, not have been consistent they with defendant’s do not but establish prosecutorial manipulation any impropriety. or other showing defense case upon renewed being during to it prejudice *32 renew the request. Defendant did not justification. denying discretion provisionally
The did not abuse its trial court Gordon, (See People view Sandra B. jury request defendant’s made during prosecution’s The was request Cal.3d at supra, p. that Sandra testimony expert the defense introduced case-in-chief and before relationship. in their dominant personality rather than defendant was the later being to its without prejudice denied the expressly request trial court renewed, a later time. the issue at the defense to raise allowing again thus erroneous, did not ruling prejudice
Even if it were the trial court’s was not defendant and Sandra B. The relative physical strength defendant. death, and was 45 inches tall time of his James a critical issue. At the defendant or Sandra that either There is no weighed pounds. question extent killed the child. To the sufficient to have physical strength possessed all, assertion related to defendant’s a view of Sandra was relevant at it jury No evidence relationship. in their personality that Sandra was the dominant is strength persons at trial that the relative size or presented physical Rath, addition, a Dr. Craig determinative of “control.” opinion defendant, Sandra by clinical licensed called as a witness psychologist in the relationship. rather than defendant was the dominant personality circumstances, having appear Under these value of Sandra probative before the was minimal. Challenges Wendy’sTestimony
D. to sister, five old at Sandra B.’s and who was Wendy, daughter years James’s trial, Defendant time of was called as a witness prosecution. witness, he was contends that as a Wendy was to incompetent testify her, testimony denied Sixth that her his Amendment to cross-examine right right was unreliable and Amendment to Eighth thus violated both his to due reliable determination and Amendment guilt right his Fourteenth and that the trial court erred when it failed to instruct process, view Wendy’s with caution. We the contentions. testimony reject
1. Competency as a Witness witness, To determine her on voir Wendy as a asked competency judge dire whether knew lying, she the difference between the truth and telling whether she said Wendy would tell the truth responding questions. lie to both well whether it would be a “yes” inquiries, as as to the question said, if the judge judge said his robe was white. At that point, [black] “unless I have objection, is satisfied that she is a competent [the court] witness.” was then Wendy sworn as a witness. counsel,
At the request defense the trial court asked several Wendy questions to her relating memory night James died. did not Wendy did, remember that a police officer took her from her house to a She hospital. however, died, recall several events that occurred the night James including ambulance, doctor, in an riding seeing while talking she was people with the doctor.
Defendant contends that the trial court abused its in discretion concluding that Wendy was competent to because the trial testify, court’s voir dire her of was to determine inadequate whether was Wendy of capable events, her recounting of the impressions pertinent because court did not her impress that she if upon would be did punished she not tell the truth. rule,
As a general “every person, of irrespective age, is to be a qualified Code, witness and no person is disqualified (Evid. to to matter." testify any 700; Code, see 1321.) Pen. A § person may § be as a disqualified witness for one of (1) two reasons: the witness is incapable of expressing himself or understood, herself so as to be or the witness is of incapable understand- Code, 701, ing duty (Evid. to tell the truth. (a).) subd. The party § challenging witness bears burden of proving disqualification, and a trial court’s determination will be upheld absence of a clear abuse of (Adamson discretion. Department v. Social Services 207 of Cal.App.3d 20 [254 Here, the trial court—through its questioning on voir dire—ascertained could Wendy distinguish between truth and and that she under- falsity, stood she had to tell the The truth. court repeatedly impressed upon Wendy truth, the importance of telling extracted repeatedly from her a promise that assertion, she would do so. Contrary defendant’s an actual direct threat of punishment for not the truth telling is not a prerequisite for trial court’s determination that a person is competent to be a witness.
We have reviewed brief Wendy’s Some her testimony. of statements were cross-examination, inconsistent. On defense counsel challenged those incon- sistencies and Wendy’s to recall inability some of the details of what had occurred the night James’s death. Inconsistencies and a testimony failure to however, remember of the aspects subject of the do testimony, disqualify (Adamson Services, a witness. Department v. supra, Social 207 Cal.App.3d at p. They present questions for resolution credibility the trier of fact. McCaughan (1957) P.2d Services, 974]; Department supra, Cal.App.3d p. Social Adamson v. com., 20; (1966 Ann. Evid. Code see Cal. Law Revision Com. 29B West’s (1986 ed.) ed.) pp. 9-10 Ann. Evid. Code pp. [Deering’s § § 331-332].) ruling Wendy did its discretion trial court not abuse as witness. competent testify Challenges Wendy’sTestimony 2. Other Defendant’s an do not challenges testimony require Defendant’s other to Wendy’s he was extended discussion. There is merit to defendant’s assertion that no did denied his to cross-examination: defense counsel cross-examine right Wendy.
Also without merit
claim that his constitutional
to due
right
is defendant’s
under the Fourteenth
process
Eighth
Amendment and
requirement
Amendment
judgment
that a
of death be based on
reliable
sufficiently
evidence were
violated because
was unreliable. Both
Wendy’s testimony
*34
federal and the California
certain
to ensure
Constitutions require
procedure
in
(Ford
(1986)
the
reliability
Wainwright
v.
477 U.S.
fact-finding process.
399,
335, 347-348,
2595];
411
People Geiger
L.Ed.2d
106 S.Ct.
v.
[91
510,
45,
1303,
(1984) 35 Cal.3d
520
674 P.2d
50 A.L.R.4th
Cal.Rptr.
[199
Here,
1055].)
defendant was
He was
fully
given
afforded such protections.
an opportunity
(Ford
to be heard and to cross-examine in a
forum.
v.
judicial
Wainwright, supra,
348-351].)
3. Trial Court’s Failure to Cautionary Give Instruction
We reject defendant’s claim that the trial court erred failing instruct the on its jury own motion that should viewed Wendy’s testimony be 457, with caution. People (1978) v. Thomas 20 Cal.3d 471 Cal.Rptr. [143 215, 433], 573 P.2d we said that the of such an instruction was giving When, here, committed to the discretion of the trial court. as the testimony involved, a child is the trial court is under no duty give cautionary instruction on (See its own People (1990) motion.8 v. 51 Cal.3d Gonzalez 1179, 729, 1159]; 1209-1210 Cal.Rptr. (1988) 800 P.2d Hovey [275 v. 543, 44 Cal.3d 565-566 776].) Cal.Rptr. [244 749 P.2d case, 8After the trial in Legislature this the enacted section That provides 1127f. statute shall, on request the court in a criminal case involving testimony years of a child 10 old younger, or instruct the jury to surrounding consider all of the circumstances the child’s testimony. The statute requires, among other things, be instructed not “discount or testimony distrust of a solely child because he or she is a child.” 446
E. Prosecutorial Misconduct
1. Error Griffin In his to the while closing argument jury, arguing applicability instructions to the evidence discussed the presented, prosecutor briefly of his or her instruction that witness false a material wilfully part distrusted in After testimony testimony. observing is to be other parts kill that defendant never the intent to killing having admitted James or James, remarked, not a witness prosecutor anyway.” “[Defendant]
Defendant prosecu contends that this statement constituted improper torial comment on his Amendment against exercise of the Fifth privilege self-incrimination.
Defendant did not object brevity to the remark. Its prosecutor’s unlikelihood of an adverse inference drawn indicate that an being harm. objection might Accordingly, admonition have cured any possible defendant not now v. may raise the issue on appeal. Guzman 917].) 947-948 P.2d 755 [248 us, if A Even before merit. defendant’s contention is without properly or failure to prosecutor may directly comment on a defendant’s indirectly her (Griffin his or own defense. v. U.S. testify California 106, 109-110, L.Ed.2d may 85 S.Ct. But the prosecutor evidence, comment on state of the failure of the defense to including the introduce material (People Hovey, supra, evidence or to call witnesses. Cal.3d at p.
Here, the made the in the prosecutor summarizing comment at issue to interviews, jury what defendant had said in the were of which police tapes to the played jury during the trial.9 When considered in of the evidence light made, before the jury and the context in which it it that was becomes clear at, the prosecutor’s statement was not directed and would not have been to, understood the as by referring defendant’s failure to testify. Moreover, even if we were the to defendant’s characterization of accept remark, indirect, prosecutor’s it was an brief and mild reference to defend- ant’s failure to as a testify witness without of an inference of any suggestion instruction on willfully false. He in this case thing what happened. the lies and deceits that he the broader 9This could allow a [defendant] quote definition, that from [1] you never admitted prosecution Deception regarding should consciousness of record shows the context told, disregard or the was not a witness did he know he had intended to killing, police basically anything he said about how it guilt. the facts of the let alone an intent to show that he had? Let’s focus in in which the statement was made: “For one anyway. case. Mr. to again, Again Mincey’s credibility kill. kill, Yes, did Mr. I I’m not argue and the kinds of facts he did.” Mincey through to going you happened is so low to ... argue or have 572.) Such references at p. Cal.3d (People Hovey, supra, guilt. in this circumstances error. Under the been held to be harmless uniformly (Ibid.; case, reasonable doubt. harmless certainly beyond the error was 618 P.2d v. Jackson Personal in Guilt Expression 2. Belief or opinion a personal
In arguing prosecutor improperly expressed by three remarks made in defendant guilt, belief defendant’s points prosecutor. “I’m not statement: opening
The first remark occurred the prosecutor’s Junior, on James . . . describe to found going specifically you injuries referred to. Dr. the five that have been year old You’ll see boy. photos it say extensive that. Suffice testimony Root’s is to be on going extremely I that he was think at the end of the case there will be no serious issue tortured will with much different issues actually wrestling to death. You be end of the case.” instance, “If we closing argument: the second said prosecutor still be took the blows that Sandra . . . delivered James . . . would away dead. If delivered the credible we took away Bryan Mincey [blows] evidence be alive So likely today. indicates that James . . . would still very issue, I think on that it is clear that is the most legally culpable. Mr. Mincey actual, evidence, He is the physical perpe- based on the credible actual trator death of James . . . .”
The third argument comment occurred later in the prosecution’s closing when he said: “Mr. evidence that Whitney said there’s no [defense counsel] did I I I made it clear as as could everything. thought many ways [defendant] the prosecution Sandra . . . clearly believes to believe that expects you involved this We beating. believe and should believe you reasons, was the There are lots of but the primary perpetrator. [defendant] *36 reason is biggest Wendy’s testimony.”
A in or belief prosecutor may express personal opinion of the guilt accused when there is a will view substantial danger jury the comments as based on information other than evidence adduced at trial. (People 564].) v. Bain 5 Cal.3d 489 P.2d Cal.Rptr. must, course, The prosecutor’s comments in in be evaluated the context made, which were if they to ascertain there risk that the was a substantial would consider the remarks to be based on information extraneous to the evidence presented trial. v. Green 35 [164 609 P.2d Each of the prosecutor’s challenged remarks here was in made specifically reference to evidence that the prosecutor to, did, circumstances, intended introduce at trial. Under the there was no substantial risk that the would remarks as interpret prosecutor’s to referring information other than evidence adduced at trial.
3. Prosecutor’s to Nonphysical Torture References
Defendant argues that the prosecutor engaged misconduct by to referring torture” in “nonphysical his statement. Defendant opening cites authority no to support his assertion that the mental of torture are aspects irrelevant assessing criminal liability for torture murder. murder,
In addition to first degree defendant was also with five charged counts of endangering a child. Unjustifiable infliction of physical pain or mental is an suffering element of both felony and misdemeanor child 273a, (§ (1), endangering. (2).) subds. reference to “non- prosecutor’s physical torture” was appropriate; it referred to matters within the properly scope charged offenses.
4. During Misconduct Voir Dire
Defendant contends that the prosecutor misconduct engaged during the voir dire of a prospective juror.
These were the relevant remarks prosecutor: “To that a [prove five-year-old death], boy tortured I’m intentionally have going to present mean, some extremely unpleasant I evidence. evi- just appalling dence. just I pictures. Frankly [Not] have attempted to elect that are pictures bad but not as horrible as they could be. But you’re going hear ... [][] pathologist and I’m testify him going to ask to use diagrams and show the injuries, and all of or most you have had you some general description the kind of injuries we’re talking They’re about. terrible. And you might think to I yourself don’t want to listen to this. is he Why this presenting awful stuff. you Do think you would do that?”
Defendant asserts that the prosecutor’s im statements created an proper impression that there existed evidence against defendant of a more damaging nature than the evidence that would be produced at trial. The contention lacks merit.
The prosecutor’s remark was brief and the purpose of the was to inquiry *37 ascertain whether the gruesome nature of the evidence have an might adverse effect on the to sit as a fair and juror’s ability impartial prospective context, reasonably When the statements are read it cannot be juror. concluded that the remark would have on the any significant impact jury; and, error, even if the comment was a reasonable doubt. beyond harmless Jackson, (See People supra, v. 28 Cal.3d at p.
F. Assistance Counsel Ineffective (1)
Defendant contends that his trial ineffective for not counsel was arranging to have excised the the tapes from first two interviews of police defendant certain comments evidence by about police physical murder, relating to statements attributed Sandra and Wendy, (2) assertions defendant was to the lying; objecting jury’s hearing defendant; of the third tape (3) interview of police arguing against defendant’s interest. counsel,
To establish a claim of ineffective assistance of trial defendant must show by a of the evidence that the preponderance attorney’s fell performance below an objective standard of reasonableness under pre norms, that, vailing professional and that there is a reasonable probability conduct, but for counsel’s the result of the would have proceeding been different. Courts must general exercise deferential scrutiny reviewing claims; such the reasonableness of defense counsel’s conduct must be as sessed “under the circumstances as they stood” at the time of counsel’s acts omissions; or “second-guessing” (In (1990) is to be re avoided. Fields Cal.3d 862]; 1069-1070 Cal.Rptr. 800 P.2d [275 Ledesma 216-218 729 P.2d Defendant has failed to establish ineffective we representation, as shall discuss.
Before the tapes police interviews of defendant were to the played jury, prosecutor expressed reservations about excising from the tapes certain comments made by police. prosecutor explained comments at issue in the first two were tapes relatively brief and did add meaning to the answers given defendant in by the interviews. The defense then attorney informed the court that he and cocounsel had weighed competing considerations in playing and decided as a tapes matter of trial tactics to let the first two be in their tapes played to the entirety Defense jury. counsel feared that to excise from the innocuous tapes relatively com- ments by police, lead might to speculation by the jury; suggested counsel that the court handle the matter an admonishment to the jury.
Just before the first tape played, the court admonished the (1) certain portions of the were tape objectionable, the defense had *38 don’t want to have objections “They you any questions
waived its because interviews,” (3) about that their client said of these the anything during any in police their efforts to elicit information from defendant made statements true, that were not statements made the of what other any by police defendant persons against they had told them could not be used because were under and defendant did not have an opportunity not made oath confront and cross-examine those individuals. Before the second was tape the court a similar but more admo- played, gave jury factually specific An the third playing tape. nition. abbreviated admonition preceded in
Defense counsel’s decision have the their entirety tapes played to the did constitute ineffective The enabled jury tapes not assistance. defense counsel to defendant’s version of events before the without get defendant take the witness stand and himself necessity having subject (See to cross-examination. v. Edwards 837-838 P.2d Because defendant had Cal.Rptr.2d steadfastly maintained in three that Sandra each of the interviews tape-recorded police death, B. was for James’s defense counsel’s decision not to responsible that some of the comments be excised from the was request police tapes an reasonable tactical choice: from defendant’s denial of repeated guilt inference drawn he murder of In could be that was innocent of the James. event, in defendant’s statements overall role the events culmi any about his (Evid. in James’s death were nating party. admissible as statements of Code, 1220.) § defend contending argued jury against trial counsel to the interest, dire,
ant’s defendant cites certain remarks counsel. voir During defense counsel mentioned that him how he could sometimes asked people defend a his his clients were guilty person; response was sometimes not, innocent and sometimes were and that it they jury, was for to decide the issue of attorney, guilt or innocence. obvious purpose these remarks was to alleviate bias criminal defense attor possible against The comments also neys. served to of the jury’s emphasize importance assertion, task to the law. to defendant’s counsel did not apply Contrary argue against his client’s interest.
The other comment defendant occurred state- challenged by opening ment when defense counsel that the defense had certain acknowledged statements, instance, problems to overcome: defendant’s inconsistent for could be used to his Counsel’s comment impeach credibility. apprised defense, of the weak an effort to points mitigate potential of tiie evidence that impact prosecution expected present. We conclude that defendant has failed to establish ineffective assistance of counsel at trial. *39 Felony-murder
G. Instructions murder, with charged that defendant was jury The trial court instructed the aforethought malice of a human with killing being defined as “the unlawful the commis- during a human which occurs killing being or the unlawful In human life.” to inherently dangerous to a felony sion or commit attempt murder, instruction, was jury the degree that which did not refer to the was (1) being that a human that the elements of the offense were also told killed, unlawful, was done (3) killing and that the (2) was killing jury with malice the trial court instructed aforethought.10 Additionally, included these instructions endangerment; on the elements of child felony great bodily to or conditions to likely produce references “circumstances jury, prosecutor harm or death . . . .” In his closing argument felony “kind a variation of a referred to first torture murder as a degree murder theory . . . .” issue, that
Defendant that murder was not felony *40 assault, included was within murder of the degree purposes second for second murder degree felony rule where the murder conviction was based on (Id. Here, however, the death child 802-807.) of the abuse as pp. victim. above, it discussed is not that the based the reasonably probable (People torture-murder conviction of defendant on the felony-murder theory. Duncan, 53 supra, 972-973.) Cal.3d at pp. H. Felony Endangerment Child a Necessarily as Included Offense of Torture-murder 1
Count of information charged killing defendant with the unlawful 23, James with malice aforethought on or about December also alleged the 1983. That count committed with special circumstance murder was the intent to kill and that it involved infliction of torture. Count 3 charged that defendant “did wilfully and under circumstances likely produce great cause, bodily harm or death and inflict permit, unjustifiable physical pain and mental suffering . .” upon James . .
Defendant argues that the language accusatory under plead all ing of the elements of in child count 3 are felony endangerment alleged encompassed degree alleged elements of first torture-murder count I, and that the conviction on the must be child-endangerment count reversed because it is a necessarily included offense of torture Not so. murder.
When, here, as in the accusatory pleading describes an offense statu- an tory language, offense is a when the necessarily included offense greater offense be cannot committed without the lesser necessarily committing 92, 748, offense. v. Wolcott 34 Cal.3d 665 [192 adults, P.2d Because the victims of torture murder can as well as be children, it follows that torture murder does not include child necessarily (See re endangerment. In Hess P.2d 5] can be [forcible committed rape without of a contributing delinquency minor].) Child-endangerment
I. Misdemeanor Convictions and Statute of Limitations
Defendant was convicted of misdemeanor child of James endangerment (count 5) (count 6). and Wendy counts Both of the information were based 20, 1981, than two before years more on June that had occurred on acts death. James’s 4,1984, counts to both alleged filed January which was on complaint, information, filed 273a, on which (1)), as did the (§ subd.
be felonies trial, 5 was amended to count the information as During 1984. May 273a, (2)). Following (§ subd. child endangerment misdemeanor allege death, to a misdemeanor. reduced count 6 the trial court judgment of misdemeanor he was convicted Defendant contends that because two before years that occurred child on counts 5 and acts endangerment case, (a)) (§ subd. of limitations one-year the murder this statute He is right. on these two counts. to misdemeanors bars conviction applicable California, raised as case bemay limitations a criminal statute of *41 739, 757 (1981) 28 Cal.3d (People [170 a time time. v. Chadd any bar 798, felony/ If is an alternative 837].) 621 the offense Cal.Rptr. P.2d (a “wobbler”) three-year as a charged felony, misdemeanor initially to the (see 801) regard without applies, statute of limitations for felonies § complaint. filing ultimate reduction to a misdemeanor after the 165, (1987) 169 Superior (Ongley) Court 195 Cal.App.3d [240 If, however, defendant 487].) but the felony the initial is Cal.Rptr. charge misdemeanor, limitation the one-year is convicted of a included necessarily 1 & (§ (b); Epstein, for see Witkin period misdemeanors subd. applies. Defenses, 371, (2d 1988), Cal. Criminal Law ed. p. § 273a, statute, The Sub- child section has two subdivisions. endangerment (1) suffer under division or a child to prohibits wilfully causing permitting for circumstances harm or death. It likely great provides to produce bodily alternative or the state punishment county jail either by imprisonment (2), wilfully thus Under subdivision prison, making offense a “wobbler.” those causing or a child under circumstances other than permitting to suffer likely to harm or death is a misdemeanor. produce great bodily case, charged this count 5 of the amended specifically information 273a, (2). defendant under the subdivision misdemeanor of section provision The record to a also indicates that the trial reduction of count 6 court’s (2), misdemeanor was under alternative subdivision not as the misdemeanor Thus, under subdivision of reductions of these counts section 273a. were based on the as offenses as included misdemeanors and not necessarily alternatives, is, Therefore, the statutory “wobblers.” the convictions on these two for counts are barred statute of limitations by one-year misdemeanors.
454
J. Cumulative Errors Effect
Defendant argues that the cumulative effect errors the guilt of his trial phase requires reversal. We disagree. only significant error convictions, pertained defendant’s misdemeanor which were barred statute of applicable one-year limitations. We corrected the error by revers trial, ing misdemeanor A convictions. defendant is entitled a fair not a (See one. perfect v. Miranda Cal.3d [241 case, 744 P.2d In this defendant received a fair trial. Special
III. Circumstance Issues Vagueness A. Special Torture Circumstance
Citing Maynard (hereafter v. Cartwright Maynard) (1988) 486 U.S. 1853], L.Ed.2d 108 S.Ct. defendant asserts that the special circumstance of torture is as here because it unconstitutionally vague applied case, fails to provide principled way distinguish this where the death penalty imposed, from the “many cases which it was not.” In Maynard, unconstitutional, the United States Court held Supreme on ground an vagueness, circumstance that aggravating allowed heinous, of the death imposition when the penalty murder was “especially atrocious, or cruel.” The court high out that because the pointed language of the aggravating circumstance had not been construed it did narrowly *42 adequately (486 juries inform what must find the they to death impose penalty. accord,
U.S. at 381-382]; 363-364 pp. L.Ed.2d at pp. Godfrey v. [100 420, 429, Georgia (1980) 398, 408-409, 446 U.S. 432 L.Ed.2d 100 S.Ct. 1759]; People 797, Superior v. (Engert) (1982) Court 806 [183 76]; 647 P.2d (11th v. Wainwright 1982) Cir. 685 F.2d Proffitt
The narrowing construction in Maynard absent In present People is here. Davenport, v. 41 supra, Cal.3d at page this court construed the torture special circumstance as requiring kill proof defendant intended to victim, and torture Thus, the and inflicted extreme pain upon living victim. unlike the heinous, worded vaguely aggravating circumstances of “especially atrocious, or cruel” (Maynard, supra, 486 356), U.S. the torture special circumstance involved here has been construed this court and its narrowly by constitutionality has been upheld. Davenport, supra, v. Cal.3d at 266-271; Wade, pp. supra, Cal.3d 993-994.) B. Special Torture Circumstance Instruction
Defendant contends that the torture special finding circumstance must be reversed because the trial court did not instruct the on the element of jury intent to torture. premedi- deliberate and on instruction the standard gave
The trial court an rev.)), gave also and (4th ed. 1979 (CALJIC 8.20 murder No. tated this language included The latter murder. first torture degree instruction on acts with act or must commit such defendant torture: on intent to “[T]he extortion, of revenge, for the suffering purpose cruel and intent to cause pain 1979).) (4th ed. 8.24 (CALJIC No. or for sadistic any purpose.” persuasion murder addition, torture degree that first jury instructed the In court deliberate, wilful, intent premeditated and “with a murder committed pain.” inflict extreme prolonged circumstance, “To instruction: received this jury
On the torture special circumstance, murder as referred in these instructions find that the special true, torture, must be facts following each of infliction of is involving intentional, That the murder 2. murder was [ft] 1. That the proved: [ft] torture, torture, the infliction of To prove involved infliction [ft] its long no matter how must be proved of extreme physical pain infliction duration, element of a necessary the deceased is not Awareness of pain [ft] (4th 1979).) (CALJIC ed. torture.” No. 8.81.18 the charts charts. One of used two his closing argument, prosecutor the torture special murder and degree outlined the elements of first torture so are so broad and also “our facts argued, circumstance.11 prosecutor of these two I difference for purposes on believe there’s no directly point, deliberations, reading for a asked During definitions of torture.” con- chart used summation the transcript “concerning prosecutor’s] [the read The court then cerning reporter definitions of intent.” (see ante). of the chart fn. language did ex instruction the torture circumstance
Although special circum state that the element of the special “infliction torture” plicitly included an inflict cruel we conclude pain, stance intent to requirement *43 in case understood the there is no reasonable this likelihood (Estelle McGuire as find intent torture. v. instruction not it to to requiring __, 399, 475, 482]; 385, (1991) Boyde v. 502 U.S. 112 S.Ct. L.Ed.2d [116 1190, 329, 370, 316, (1990) 110 S.Ct. 494 U.S. 380 L.Ed.2d [108 California Wade, 1198]; 44 People supra, v. Cal.3d at p. pain One, death; to two, the H] 11The kill. First infliction or that the murder involved the infliction of torture. the act or acts which caused the death must [1] [1] suffering prosecutor’s degree And n. Torture of two, torture murder does not extreme for the the defendant must commit such act or acts chart read as follows: Special purpose physical pain Circumstance. of revenge, must be necessarily require any proof “[1] extortion, [J] One, proved Law. involve a that the murder persuasion, [5] no matter [J] I. First To prove high degree with the intent to cause cruel Degree or for how the infliction of was the defendant long any Torture intentional; of its duration.” sadistic probability Murder. intended purpose. torture, [1] and [5] of 456
The torture circumstance to find special required instruction the the murder was and intentional “involved the infliction of torture.” As this 271, in court 41 People Davenport, supra, page observed v. Cal.3d at the Here, word an the implies “torture” intent torture. intent-to- necessarily torture was set in the on first requirement degree forth instruction explicitly also, chart; in in torture murder and the his prosecutor’s reiterated closing argument the that the definition prosecutor jury, correctly, told of torture for of first murder its purposes degree torture was same as definition for Wade, supra, the torture 44 purposes (People circumstance v. special Furthermore, 994-995). Cal.3d at for a pp. jury’s request reading transcripts “concerning prosecution’s] chart” on the definition of intent [the in first torture and degree special murder with torture circum- regard torture, stance indicates that the focus muirder not jury’s premed- was on case, Wade, supra, itation and in 44 deliberation. this as v. Cal.3d 994, at the term page understanding commonsense “tor- import ture,” torture, which an implies intent reinforced to the affirmatively jury. People Pensinger (1991) Cal.3d 1254-1255 (Compare v. 52 [278 899].) 805 Cal.Rptr. P.2d
We also reject defendant’s that the torture circum argument special murder, stance should when the first murder apply is a torture or degree when the victim is a child whom accused could lawfully discipline. As earlier, discussed we have construed the torture circumstance to special satisfy requirements Davenport, Amendment. Eighth (People supra, 41 265-271.) Cal.3d at A pp. further or narrowing limiting this circumstance, special as defendant has suggested, constitutionally is not mandated, all, and must be if accomplished, action. by legislative Jury Issues
IV. Selection Defendant contends that selection the trial court erred during jury excluding prospective juror defendant’s “for cause” overruling to three challenge other jurors. prospective legal for standard evaluating propriety of the exclusion or
inclusion of a prospective
is the
juror
same.
v. Coleman
46
Cal.3d
P.2d
A challenge
to a
prospective
should
juror
be sustained when the
would
juror’s views
“prevent
or substantially
impair”
of his or her duties as a
performance
juror
accordance with the
instructions and
(Wainwright
oath.
v. Witt
*44
841, 851-852,
U.S.
424
844];
[83 L.Ed.2d
S.Ct.
Witherspoon
105
see
v.
Illinois
457 P.2d (People v. Ghent Here, H., there were no said that juror, the excluded Virginia the death to impose which she would vote circumstances under conceivable substantially her or “prevent that views would This showed penalty. response therefore proper. Her exclusion was juror. her as a impair” performance defense, B., responded cause challenged Juror of the three for one vote its would for and although penalty voir dire that he favored the death on torture, aggravating he would consider a case of extreme imposition life without imprisonment and could vote for circumstances mitigating outweighed those mitigation if the circumstances possibility parole in aggravation. had if defendant penalty
Juror that he vote the death G. said would for torture, he that would killed inflicted but intentionally intentionally way depending evidence innocence either guilt consider the and vote for or (Defendant challenge against on facts. exercised eventually peremptory G.) but would not
Juror stated that the death generally penalty V. she favored vote to She that she could be responded it case. further impose every circumstances, and for on the persuaded to vote life imprisonment depending in con- that evidence mental would be mitigating disability appropriate sidering whether to life a sentence of or death. impose jurors, three overruling challenges defendant’s “for cause” these trial not court acted these did indicate jurors statements of properly. their their as views would duties substantially impair the performance Ghent, jurors. (People supra, 767-768.) v. at pp. Cal.3d ineffective Defendant also contends that his defense counsel rendered result, As assistance Jurors B. and V. by failing challenge peremptorily asserts, he In the jurors. defendant was left with preceding two “pro-death” we these paragraph disagreed jurors. with defendant’s characterization we Accordingly, reject defendant’s was ineffec contention his counsel Ledesma, tive for B. and V. peremptorily challenging Jurors supra, 43 Cal.3d at p. Penalty
V. Facts Phase A. Prosecution Evidence B„ the gave
Sandra sole at the prosecution’s penalty phase, witness following testimony:
Sandra had never in caught activity, B. the children sexual engaging any he as defendant claimed had. killed,
On the on which B. and day five-year-old James was both Sandra defendant had taken approximately amphet- three of a quarters gram amines. the morning, defendant beat James and with four-year-old Wendy a belt five six wetting or times for the bed. Sandra then made the children sit on the floor with their legs crossed for and one-half approximately two hours. toilet,
Later in day, the when was on Wendy defendant violently pulled her off it and smeared feces on her then face. Defendant took into Wendy shower, Thereafter, where he her hit head the tile. defendant against beat two children nine to fifteen times a In the evening, with belt. apparently irritated by children’s to a them response defendant beat with question, cartridge belt. blood James’s on bed and on defendant’s splattered pants. When James began cry, to defendant him the with his punched stomach fist.
Around p.m., 9:30 the children were to Each time moved they bed. put their defendant would legs, hit them with James did cartridge belt. When move, shoulders, head, defendant took a board and hit him on the genitals, and back.
During the beatings, James had a bowel movement. Defendant him took into bathroom and hit James’s head the shower Defendant against wall. rectum, feces, then his placed finger up James’s made James eat and kept with hitting James Blood board. came James’s on through got pants the board. When James Sandra said begged defendant defendant stop, he would when stop his arm got tired. defendant threw James Eventually, against the wall and he slid down the When up, wall. James could not sit him Sandra B. took into the shower he then where seemed to revive. She thereafter, him a wrapped blanket. long Not James breathing. stopped When Sandra to leave the attempted get house defendant help, grabbed her and her told could handle the they matter themselves. Sandra neverthe- less went to the called neighbors, who and the paramedics police.
Sandra B. testified that she had not promised, been and did not expect receive, anything her exchange for testimony.
B. Evidence Defense
The first witness called defense was the He prosecuting attorney. testified as He follows: had recommended the filing circum- special defendant, stance allegation against He against but not Sandra B. decided to *46 defendant, reasons: for three not Sandra but against the death penalty seek not; with remorseful, Sandra cooperated was while defendant Sandra was not; he that and believed did while defendant the beginning, from police be, law to Sandra, defendant, As he understood the actual killer. killer. the actual alleged only against be circumstance could the special Walz, serving murderer a convicted was Phillip The next defense witness He testified at Folsom prison. of parole life without possibility a sentence of kennels, life in resembled that prison in dogs live like that prisoners racial war. Sandra Brown, defendant and friends of both who were
Michael and Carla in a brutal children , treat the never seen defendant B. said that had they manner, children. who beat the and that it was Sandra liked Burkhart, the children testified that defendant’s stepbrother,
Kelly defendant, after defendant cuts and bruises he had seen defendant with that defendant to spank would tell had had a and that Sandra fight, and Sandra B. the children harder. Burkhart, had that defendant stated
Defendant’s Marion stepfather, Colorado, ranch Burkhart’s father on a summer of 1975 worked for create any problems. who did not that defendant had been a worker good that in the altercations was the aggressor Burkhart also said that Sandra B. Sandra, hit James Sandra had defendant and occurred between on the child abuse based with a table that defendant was arrested for leg, incident, against hired defend defendant and that Sandra told an attorney defendant the child abuse had lied when she accused charges she abusing the children that day. Burkhart, mother, was a when defendant defendant’s testified that
Betty and that child his real father wanted him to a childless couple, to sell was correct. her at the guilt phase information Dr. Forbes had attributed to made no effort to contact Defendant’s father testified that he had defendant.
C. Prosecution Rebuttal He witness. called David Baker as a rebuttal prosecution Sergeant Sandra testified that Carla had him that she was told by Brown mentioned to B., died, each before James defendant were not speaking that Sandra and other and that defendant was to move out. going Penalty Phase Issues
VI. Defendant has raised numerous contentions penalty pertaining *47 his phase of trial.
A. Testimony Sandra B.’s led
Defendant contends that the “manipulation” by prosecution Sandra to her B. assert Fifth Amendment self-incrimination against privilege when her the to the phase, defendant called as a witness at but waive guilt when the called as at the privilege her a witness prosecution penalty phase. witnesses, A defendant’s of rights constitutional to the attendance compel Amendment, as guaranteed by the Sixth to due as guaranteed and process, Amendment, the Fourteenth when interferes prosecution are violated the with (In the re right defendant’s to witnesses. Martin present 1, 29-30 defendant, however, Cal.3d P.2d bears the burden entirely conduct was showing prosecutor’s to the the and unnecessary duties was proper performance prosecutor’s such a nature as willing testify to transform a defense witness to into one addition, interference, to unwilling testify. defendant must establish is, that link a causal between the defend prosecutorial misconduct and (Id. ant’s inability to the witness. at present p. case,
In this defendant has failed misconduct. to establish prosecutorial defendant’s, Sandra B.’s trial severed from she independently and was represented by At the she her counsel. asserted guilt phase, privilege against self-incrimination on the of her advice not because the attorney, prosecutor had told her to do so. did the in Nor which the prosecutor’s testimony, prosecutor attorney, disclosed substance of his with Sandra’s discussions any indicate interference with right present defendant’s constitutional to testimony witnesses.
B. Trial Court’s Accomplice Failure Give Instructions
Defendant contends that the trial court erred failing give accomplice earlier, As instructions. noted Sandra B. testified the penalty phase. at She had been in the charged same as for the complaint defendant and same offenses, with the exception of circumstances She special allegation. testified penalty phase to circumstances defendant’s surrounding abuse, arrests in 1981 and 1983 for child as as well to the subsequent circumstances culminating James’s death.
The trial court did not instruct that B. jury Sandra was an accomplice whose testimony (See should be corroborated viewed with distrust. did, 3.16, rev.).) The court 3.11, 3.12, (4th ed. 1979 3.18 Nos. CALJIC be witness should however, single testimony by instruct the jury 2.27 (CALJIC No. a fact to prove be sufficient carefully reviewed but would earlier, instructed the court rev.)), guilt phase, at the (4th ed. 1979 (Sandra) in the crime involved person as to another why not to speculate 2.11.5). (CALJIC No. in this trial being prosecuted was not on instruct failing erred that the trial court Defendant contends be should testimony her accomplice if was an that Sandra B. its own motion (See distrust, corroborated. must be her testimony with and that viewed witness, as a an accomplice calls 1111.) We When the agree. prosecution § should be testimony the witness’s the trial court must instruct *48 1268, 1314 (1988) Cal.3d [756 45 (People distrust. v. Williams viewed with aof and the guilt phases the 221].) penalty rule to both applies P.2d This In Miranda, 100.) 44 at p. Cal.3d (See supra, People case. v. death penalty defend addition, the evidence of seeks to introduce when the prosecution conduct, at instructed should be jury criminal the ant’s unadjudicated prior (People must be corroborated. testimony the that accomplice penalty phase 855, 490].) P.2d 759 Cal.Rptr. 46 Cal.3d 734 Easley v. [250 case, that it should view the jury the trial court’s failure to instruct this From the defendant. did not prejudice Sandra B.’s with distrust testimony a Sandra had the that jury have to apparent evidence it must been presented, was told jury herself. for defendant and inculpating exculpating motive that killing; in to James’s leading that Sandra was a the events participant events; the same murder based on both she and defendant were with charged defendant’s; by be decided might and that her case trailing that her case was in court, this the proceedings the rather than based on the record of jury, Moreover, said he the prosecutor to the closing argument jury, case. his true, it would be for was and did not believe that Sandra had said everything circumstances, it is not Under these the to determine her jury credibility. favorable reached a result more that the would have reasonably possible jury with distrust. testimony defendant had to view Sandra’s it been instructed 843-844; Edwards, Gordon People see v. (People supra, v. 54 Cal.3d at pp. 298]; People v. 516 P.2d (1973) 10 Cal.3d 472-473 [110 22 Dail Cal.2d 659 P.2d the to instruct was the trial court’s failure
Similarly nonprejudicial is Failure to do so that must be corroborated. jury testimony accomplice in the record. evidence corroborating harmless when there is sufficient Here, Miranda, 100.) where the evidence at supra, Cal.3d p. there was overwhelming, to connect defendant to the crime was tending other wit by was corroborated corroboration. Sandra B.’s ample testimony evidence defendant linking nesses at the guilt phase, physical circumstances, the crimes. Under these the error did not result an arbitrary or capricious judgment violative of the rights Eighth defendant’s under and Fourteenth Amendments of the federal Constitution. is
Equally unavailing argument challenged defendant’s that failure to instruct was prejudicial because of trial court’s instruction at penalty phase testimony of one witness was sufficient to prove (CALJIC (4th rev.)), fact No. 2.27 ed. because court’s previous at instruction that guilt phase jury speculate should whether the (Sandra) other involved the crime been person had or would (CALJIC 2.11.5). be prosecuted No. case,
In this (4th rev.) CALJIC 2.27 not likely No. ed. 1979 was Williams, (See mislead supra, v jurors. 1313.) p. By 2.27, the time Sandra B. testified and the jury given was CALJIC No. murder, had already found that defendant was of first guilty degree killer, he was the actual and that murder was means of accomplished by Thus, (See People torture. supra, v. Easley, 46 Cal.3d at Sandra’s p. testimony at the was the penalty phase defendant primary perpetrator James’s killing cumulative of what the had found to be true already *49 at the at guilt which Sandra did phase, testify.
With to No. respect (4th 1979), CALJIC 2.11.5 ed. of that giving instruction the guilt at could been at phase not have prejudicial penalty phase. was told jury that Sandra B. was also penalty phase murder, defendant’s, charged with her case was and that her trailing criminal liability be might decided the court without a based on the by jury record of this trial.12
C. Challenges to Exclusion Evidence
1. Sandra B. Defense counsel commenced his cross-examination of Sandra B. ask- by her ing a number of questions relating to her trial. She she did not replied know if she was to a going have trial. She asserted the attorney-client privilege to response whether was her questions it understanding prosecutor argue would for second murder and trial degree might that her be decided the court by (sitting without based on transcribed jury) 12Also meritless is accomplice defendant’s assertion that the error preju instructional was prosecutor dicial because the for credibility. “vouched” Sandra’s When as a witness called defense, prosecutor against testified that he did penalty not seek the death Sandra because he did not believe she Nothing prosecutor’s actual killer. in the statement indicates that he “vouched” credibility for Sandra’s as a witness.
463
attorney-client privilege
asserted
again
case. She
this
proceedings
her of the
had told
attorney
whether her
her
counsel asked
defendant’s
when
with the
murder,
had discussions
whether she
degree
for second
penalty
manslaughter,
for
being prosecuted
about
attorney
or her
prosecutor
to do so.
or intended
trial
her
to
right
had waived
already
she
whether
attorney-client
B.’s assertion
that Sandra
Defendant contends
confrontation,
Eighth
his
to
right
Amendment
violated his Sixth
privilege
verdict,
right
Amendment
Fourteenth
and his
a reliable
right
Amendment
to
evidence.
relevant mitigating
all
present
in
encompasses
confrontation
Amendment
right
the Sixth
Generally,
(Delaware v. Van
testifying.
for
bias or motivation
into a witness’s
quiry
682-683,
674,
S.Ct.
106
L.Ed.2d
(1986) 475 U.S.
678-679 [89
Arsdall
hand,
to discus
applies
on the other
1431].) The attorney-client privilege,
plea
attorney relating
possible
a witness and the witness’s
sions between
1228
Cal.3d
(1989)
[255
v. Johnson
47
bargains.
accord,
1986)
So.2d
1047];
(Fla.
Brookings v. State
767 P.2d
with
conversations
extend to witness’s
does not
[right
to cross-examine
N.W.2d
872]
305 Minn.
[232
v. Hembd
attorney];
State
compare
Farrow
State v.
doctor-patient privilege];
clause negates
[confrontation
[same].)
A.2d
ascertaining (People supra, bias. v. 47 Cal.3d at pp. There is no merit to defendant’s that the sentence Sandra argument might B. have receive hoped to was relevant to the jury’s sentencing decision defendant. The regarding sentence of a codefendant is not relevant to a capital defendant’s determination. v. Belmontes penalty 744, 310].) 810-813 755 P.2d Cal.Rptr. [248
We reject argument defendant’s court a number of trial violated his rights constitutional an when the asked by sustaining objection defense Sandra B. if in she had ever displayed handgun of a presence person named lirvett. The trial ruling question court’s The did not proper. Thus, relate to any issues this case. it was of marginal relevancy Arsdall, would (Delaware consume time. unduly supra, v. Van 475 U.S. at p. 683]; Code, 679 L.Ed.2d at p. [89 Evid. §
Defendant’s contentions find no remaining support the record. 2. Philip Walz Walz,
The defense called as a witness a convicted murderer Philip serving life term without about the condi possibility parole, testify tions of life. prison Before that an testimony, proof the defense made offer of life, that Walz would testify about conditions of the treat prison including ment of child murderers other court voiced concern that prisoners. defendant, the jury might vote for the death if it penalty thought because crimes, of tiie nature of his faced a life After worse than death. prison discussion, further defense counsel said that he decided into inquire above, subject. view of the court’s concern mentioned this anwas informed tactical decision by defense counsel and therefore did not consti tute ineffective assistance of (People Pope (1979) counsel. Cal.3d 590 P.2d A.L.R.4th *51 Reopen 3. Motion to
The prosecution and the defense rested their The May cases on 1985. next the defense moved morning, to on the of reopen ground the that parents defendant’s had arrived stepfather from Colorado and to that testify proposed defendant’s behavior in during his in the stay Colorado summer of 1975 was exemplary, and that defendant had worked hard for the very neighbors of Defense counsel explained that of defendant’s summer.13 stepfather parents that stepfa lines” defendant’s “along be the same that the would testimony cumulative, to testimony the be Finding already proposed ther had testified. the that Defendant contends trial court denied the motion. the mitigating to present his Amendment ruling Eighth right court’s violated evidence. stepfa- what defendant’s was similar to testimony
Because proposed to, to of defendant’s motion had the trial court’s denial already ther testified Green, supra, 27 Cal.3d well discretion. within its reopen p. Bargain
4. Plea Offered trial in evidence excluding Defendant contends the court erred if defendant had been a sentence life without of possibility parole offered of of agree transcript he would submit the case the preliminary to on did The record. At time hearing. contention is not no supported by negotiations. subject defendant offer to introduce evidence of plea until and the negotiations did not arise after both the plea prosecution defense had the attor rested. The trial court’s admonition at time that not, contrary should not did neys arguments refer to negotiations closing assertion, evi to defendant’s from such preclude introducing defense dence before closing argument. Jury
D. Misconduct deliberations, At the end of the first the bailiff day penalty phase room, that a in the he the trial juror noticed had a Bible and so informed deliberations, The next court. their morning, jurors before recommenced jurors the court each questioned presence chambers prosecutor defense counsel. H., the
Juror she had juror first said that questioned, previous day a Bible recess. trial brought into the room the lunch When the after Bible, court asked “We what use had been made Juror H. responded: were all finished we all and were home and some getting ready go people Bible, said, well, I I here. kept making references to the have it right And I do go, you all want—whoever can whoever wants go go, wants mother, 13The defense tape recording was also based on a Mrs. motion made defendant’s Betty recording Burkhart. challenge ruling tape Defendant does not court’s the trial was cumulative. *52 can So stay stay. everybody stayed and so we read a few verses from it.”14 feel, Juror H. I know how and so the explained: “[P]eople clearly reading it, verse knew how I felt it they reading about so was definitely [N]umbers it, like they knew it was a for me I I just hard to read but felt like thing needed to clear that the up Bible is not—there’s different views that come the from Bible that so that was—that was Juror people get, my H. point.” said that there was no further the or the discussion about case verses after the verses were read.
The other jurors confirmed that the Bible verses had been read. Nine of the jurors confirmed that day’s the deliberations were over when the verses read; were two denied in jurors that deliberations had ended the time question. None of the said jurors that the of the verses had influ- reading enced their deliberations.
Following trial court’s examination defense counsel jurors, informed the court that he would move for that not a mistrial. At point, trial court made these fellow their findings: jurors’ to approach “[Juror H.’s] deliberations has been not affected the Bible It by reading of [the verses]. be deemed may to disclose to us Ms. H.’s but that—and approach, beyond is this not which anything would There is no justify discharging jury. harm, for I motion mistrial. find no no denial of Defense any protection.”15 counsel then mentioned that he to excuse might Juror H. and to .move Wherefore it is it is a minister of for defense conscience sake.” what informed the trial court that her purpose does not views that come from the Bible governing and established God. through 5. he defense counsel’s invocation of the Sixth supports cause of fear for Numbers, 15The dissent asserts that Juror Numbers, Romans, 14JurorH. died, good. trial they aas is good, counsel was court, he is a who have result he different support But if authorities. For there is chapter chapter chapter read “but I murderer; you necessary the dissent’s Numbers, died, you views, good God, opposed [$] do what is ‘misstating’ just will Therefore, verses 1 the one verse 16 behavior, verse 21 reads: an felt like I have praise will receive avenger chapter that it murderer characterization be in evil, who struck God’s through says: “But if but for he who resists not H. read the verses “in an needed to clear commanded 35, who be people get, subjection, authority ‘law’.” from the same. afraid; condemnation verses shall “Or if Commandment evil. 5 states: “Let brings him down shall reading be he Do for it does not (Dis. he except wrath so put authority struck him not you Juror H.’s and struck him up that was—that was opn., to death.” imposition the verses was to show that the Bible only want to have no fear of upon 21; upon [1] from every person post, has and For it is a minister to God to because of themselves. down surely erroneous. Juror H. the one who reading God, bear down with his opposed evident Bible Romans, p. of the death with and be is not—there’s be put sword attempt the ordinance an iron those my [5] wrath, chapter to death.” practices point.” For subjection record, however, verses. Juror H. for which hand penalty Authority? object, to prove rulers but also for explained nothing; different exist verses 1 evil. [<][] enmity or that are so God, you that not Do for are
467 associate alternate, discuss it with his he first wanted to an but that substitute “reserve” defense could The court replied with his cocounsel. and however, defense, motion.) such a (The never made the motion. had “The jurors as follows: the admonished the jury
Thereafter trial court I admon- yesterday. to a Bible conclusion of their deliberations access at the No you. room with do take into the again, anything ish not you kind, verses, no newspapers, no no no poems, reference works of any this decide the law of State of California to You are by anything. required law of here in court and the the basis of the evidence adduced case on your with from bring you have that you you State of California. What course, But bear. to your you bring background, heritage, your training, with you.” take other of reference materials any do not types Juror excusing Defendant contends the trial court erred now defendant Alternatively, H. from further service or not a mistrial. declaring H. Juror seeking his counsel was ineffective for not removal of argues We disagree. 1137) to the (§
It misconduct extraneous juror is for a to consider material 1098, (See Cal.3d 1108 e.g., People Holloway (1990) record. v. 50 [269 1127, 1327]; (1988) 44 Cal.3d People 790 P.2d v. Williams Cal.Rptr. 635, 751 Cal.Rptr. 901].) 1156 P.2d Such conduct creates a presumption [245 actually rebutted that no prejudice may showing prejudice be cases, Williams, (People v. 44 supra, occurred. Cal.3d at criminal p. no likeli is rebutted when there is substantial presumption prejudice hood that the vote more of was influenced jurors by exposure of one or (People material. v. 950 improper [269 Marshall A cause 676].) 790 P.2d trial decision whether Cal.Rptr. good court’s exists to excuse a The juror discharge or to is within its discretion. decision will court’s be on if there is substantial evidence upheld appeal any 505, 520, it. (People Burgener, supra, v. support Cal.3d quoting v. Van Houten 113 Cal.App.3d incident, case of the the trial this
Promptly upon learning Bible court each of the were read questioned jurors. jurors said that Bible verses after the completion deliberations did not day, they for the deliberations, discuss the Bible verses. Before to resume allowing jurors the trial court on solely admonished them to decide the case the evidence circumstances, the court’s instructions on the law. Under there was no these substantial likelihood that the incident defendant. prejudiced reasons, Holloway, supra, we 1111-1112.) 50 Cal.3d at For the pp. same reject defendant’s that this Amend- argument incident violated his Eighth ment rights: jury’s the death reliability impose penalty decision was not of the Bible verses. significantly impugned by reading
There is no merit claim his was ineffec to defendant’s that counsel tive for the H. knew the seeking not removal Juror Defense counsel from voir dire of Juror that she did religious H. had close affiliations but not have Indeed, the strong feelings about death penalty. by invoking religious pre in his cepts argument, defense counsel to have addressed the closing appears Thus, very sentiments that Juror H. earlier voir dire. counsel expressed absolute, told the that the laws of are Sixth jury God that the Commandment kill,” shall says “thou not and that he did not “know of any exemption the granted to State of Sixth permitting California the [Commandment] circumstances, the state to kill.” Under these we cannot that conclude defense counsel’s decision had no rational tactical for the seeking basis not removal of Juror H.
E. Inquiry Juror’s About Appeal Automatic trial,
At the start of the the introduction of evidence penalty phase before deliberations, and before jury Juror V. asked the court three The questions. one at issue here asked: “Is there an to a court after appeal higher automatic a death sentence verdict?” themselves,
After discussing the the court and the inquiry among attorneys for both sides talked to V. the other presence jurors. Juror outside of the Juror V. said that he had not discussed any of his with other questions jurors. The court told Juror V. that it was not to to the permitted respond question the automatic to regarding “You are appeal, adding: required address did penalty] phase [guilt] as without reference to you phase, [the that anything may transpire later.” At Juror point, interrupted V. court, saying: “Some had comments been made to that effect without fact, As a discussion. matter of some been comments had made to the first question without The discussion.” if juror, court told “Well that ever comes up, question of what after the is a happens matter penalty phase which the jury is simply not allowed to consider.”
Defendant (1) contends the trial erred in court to instruct the failing entire review, not to consider the availability appellate failing instruct that the law allows for appeal an from either or the guilt verdicts, penalty “deputizing” Juror V. to a of law to explain question the other jurors.
Defendant’s contentions are based on assumption jury as whole, opposed as a single juror, raised question availability record, an however, automatic appeal. the trial court’s supports implied V., finding whole, that it was only Juror not the had jury as a sought on appeared The question issue. appeal” the “automatic clarification of court that informed the Juror V. Juror V.’s name. with writing paper him, that he did occurred to that had something was simply question surround- circumstances Given the jurors. with the other the question discuss its own on duty give, under no court was the trial Juror V.’s ing inquiry, (1984) motion, Ramos (People instruction. cautionary 430].)16 155-159, P.2d fn. *55 had improperly trial court claim that the merit is defendant’s
Also without The court verdict. of the penalty V. to the disregard consequences told Juror the trial court’s that likelihood so. There is no substantial did not do V, the of giving evidence and of Juror before the presentation admonition to instructions, may that to anything “without reference to determine penalty the ameliorating as Juror V. by later” have been understood could transpire Holloway, (See People v. decision. for the life-and-death responsibility Juror V. to “deputize” Nor did the trial court supra, 50 Cal.3d p. the to do so. juror The did instruct the law to other court not jurors. explain would what that the could not consider jury The court told the correctly juror after the happen penalty phase. Aggravation Mitigation
F. and Definitions of deliberations, the asked jury At the its penalty phase commencement of the terms definition of legal the trial court for either a or a legal dictionary the court attorneys, with the conferring and After mitigation aggravation. or to do dictionary them have a jurors told the it would be for to improper The added it would research on the of the terms. court independent meaning already had the the instruction that jury jury with another of supply copy the consideration. jury’s been and that set forth the factors for given that it would be (CALJIC (4th 1979).) The emphasized No. 8.84.1 ed. court aggravation the define the terms jurors for improper attempt the mentioned the instruction. mitigation beyond factors counsel, the trial The of defense next over the morning, objection as defined court the and mitigation, read to of jury meaning aggravation defined as: circumstance “Any Black’s Law was Dictionary. Aggravation or enormity, its or guilt the commission of a crime which increases attending injurious beyond adds to its but which is above consequences this contends that essential constituents of the crime itself.” Defendant nonstatutory aggravat definition to consider improperly encouraged jury decisions, We this court has ing upheld factors. disagree. previous be instructed not argument attorney request 16Defendant’s did his regard, consider in the record. In this availability appellate support review finds no thinking of the issue of jurors record shows defense was counsel’s comment that if one review, defense subsequent thinking of it too. The other appellate jurors probably other were by defense attorney questioned then first. These comments remarked that Juror V. should be request counsel do not constitute a for an instruction. 470 same
propriety given definition here. v. Adcox aggravation 906]; 47 Cal.3d People Dyer P.2d v. Cal.Rptr. [253 1]; 77-78 P.2d see also Marshall, supra, 936-937.) 50 Cal.3d at pp. Defendant also complains mitigation that the trial court’s definition of restricted the improperly jury’s consideration factors to those mitigating “Alleviation, related to the offense. was defined as: abatement or Mitigation of penalty diminution or law punishment imposed by reducing, diminishing, or the amount of or The definition did lessening penalty punishment.” But, restrict the jury’s consideration of factors. as defendant mitigating out, points by the definition’s reference to law” could “punishment imposed have been construed as of death suggesting penalty penalty capital standard case. of the definition was portion This error, however, therefore improper. did not defendant. prejudice *56 once, the definition read Although mitigation of to the the trial jury court twice—before and during jury deliberations—instructed the pursuant (4th 1979), CALJIC No. 8.84.1 ed. which enumerated the various factors addition, that the could in consider its determination of the jury penalty. instructed jury was that the prosecution had burden of proving doubt, existence of that if aggravating beyond factors a reasonable and determined jury aggravating mitigat- circumstances outweighed death, ing circumstances it return if could a sentence of but that the jury determined the mitigating circumstances outweighed aggravating it circumstances must a sentence life impose of without of possibility parole. circumstances, Under these the trial court’s error the definition giving of mitigation (See was harmless under any People standard. v. Hamilton 148-149 P.2d G. Assistance Counsel Ineffective
Defendant claims that in his his trial closing argument counsel encouraged death, the jury to impose sentence of rendering thus ineffective represen- tation. Defendant’s is argument based on a mischaracterization record: he has taken certain statements of defense counsel out the context in which were made. they
For defendant example, focuses on this statement made his by attorney: absolute, “The I laws God believe are is ultimately Bryan [defendant] to deal with going a much than .” higher . Defendant authority you . . asserts that this statement demonstrates ineffective assistance because it suggests inevitability of defendant’s death and it “could have because since God jurors responsibility, been construed as of their relieving But trial immediately preceding would be real . . . counsel’s judge statement, argued against which defendant shows that counsel ignores, “I that the laws the death also have a belief personal imposition penalty: absolute, thou the Sixth which says of God are Commandment very kill the values of western culture shall not is a absolute rule. It reflects very sacred, life I know of any exemption that tell us that human is and don’t very the Sixth permitting State of California granted by [Commandment] the state to kill.”
With to defendant’s contention that his counsel should have asked respect as a below-average intelligence to consider evidence of defendant’s circumstance he did so. The mere fact that the issue could have mitigation, focus, argued been or with a different or does differently, emphasis Ledesma, (See establish ineffective supra, assistance. Cal.3d p.
H. Prosecutorial Misconduct
Defendant contends that the misconduct prosecutor engaged B., vouching for the credibility of Sandra his belief by arguing personal that defendant should receive the death penalty.
In his closing argument, the told the that Sandra B. had prosecutor little very to lose by testifying “because as *57 know she made you taped occurred, statements the to also the which are police night killing] [the virtually identical to her When the testimony.” defense objected, prose cutor said: “Let me it put this There’s no evidence that she way. anything told is police to what contrary she told The court then sustained a you.” Defendant, however, defense objection. did not ask the court for an admo nition to the jury lessen any possible effect. Defendant is thus prejudicial precluded from now (1990) the issue. raising (People v. Miller 50 Cal.3d 954, 492, Ghent, 1289]; 1001 Cal.Rptr. People supra, [269 790 P.2d v. 43 762; Green, Cal.3d at People p. supra, 34.) v. Cal.3d at 27 p.
Later, the asked prosecutor “to back a verdict death jury bring I because think it’s warranted and in this case.” Because defend appropriate ant did object not and did not the trial request court admonish the he jury, Miller, 1001; may not now raise the (People issue. supra, v. 50 Cal.3d at p. Ghent, People 762; Green, v. supra, 43 Cal.3d at p. People supra, v. 34.) Cal.3d at p. event,
In any
the prosecutor’s remarks were not
in
prejudicial
this
that,
case. It may be recalled
in the middle of Sandra B.’s
at the
testimony
The
the defense called the
as a witness.
penalty phase,
prosecutor
prosecutor
he
testified that
had
recommended to the district
to seek
personally
attorney
defendant,
her
the death
not
Sandra because of
penalty against
against
but
In
statements to the
his
taped
police.
closing argument,
prosecutor
out that Sandra’s
statements to the
were
the lines
pointed
taped
police
“along
her
the death
testimony today.”
asking
jury
impose
penalty,
did not disclose
new information to the
prosecutor
any
jury. Although
evidence,
statements of Sandra were
themselves
knew
taped
jury
their
existence and had a
idea of their content. Under these
general
circumstances, it is not
comments
reasonably possible
prosecutor’s
affected the
prejudicially
(People
decision.
v. Burton
jury’s penalty
843,
184,
48 Cal.3d
771 P.2d
Cal.Rptr.
[258
I.
Background
Instructional
Character and
Error—Defendant’s
trial court instructed the
it was to
jury
determining penalty
“[a]ny
consider
other circumstance which extenuates the
of the crime
gravity
190.3,
(§
(k).)
even
it is not a
though
excuse for
crime.”
factor
legal
Defendant contends that
this instruction did not
state that
because
also
could consider
jury
any
background,
of defendant’s character or
aspect
was not able to
disagree.
consider all of the
evidence. We
mitigating
misled,
A reasonable jury, unless it has been
should understand this
instruction as including consideration of
character and back
mitigating
ground
(Boyde California,
evidence.
v.
supra, 494 U.S.
380-383 [108
316, 329-331,110
Gonzalez,
1198-1199];
L.Ed.2d
People
S.Ct.
v.
supra, 51
Cal.3d at
Our
p.
task is to examine the record to ascertain
there was a reasonable
whether
likelihood that the
was misled
the instruction
applied
consideration of the
way
prevented jury
640;
mitigating
evidence.
v. Hayes, supra,
52 Cal.3d at
p.
1294];
Allison
899-901
771 P.2d
*58
Penry v.
compare
Lynaugh (1989)
J. how describing Defendant contends that the trial court’s instruction determinations, mis- with assertedly was to make its jury penalty coupled to argument jury improperly triple allowed leading by prosecutor, conduct, cir- aggravating count defendant’s thereby artificially inflating cumstances and circumstance. eliminating mitigating (4th 1979)): (CALJIC
The trial court this instruction No. 8.84.1 ed. gave defendant, “In which shall determining you is to be on penalty imposed consider all of the evidence which has been received during any part case, instructed). trial of this as You shall (except you may hereafter be consider, factors, if take into and guided following account be (a) The the defendant applicable: circumstances of the crime of which [S[] in convicted and the existence of present proceeding any special circumstance(s) (b) found to be The absence of criminal true. or presence [$] activity by the defendant which involved the use or use of force or attempted violence, (c) or the or threat use or expressed implied to force violence. H] or absence of presence any conviction. . . .” prior felony
During closing argument, noted that the instruction at issue prosecutor was unclear as to how the child endanger- should address crimes of ment of which defendant was convicted in this the incidents case based on in occurred June 1981 and before the events this case that April resulted James’s death.17 contends, so,
Defendant (b) (c) correctly that factors 8.84.1, CALJIC No. (b) (c) which track the language of factors that, view, prosecutor 17The discussed the various factors in his should consider penalty its determination. He explained why “Basically then he had out certain left factors: either a factor was your my irrelevant or irrelevant opinion consideration in or one that point didn’t way one or the other as to what appropriate would be the sentence. I left [J] (b), out—the first one I left out was which is the presence activity by or absence of criminal the defendant which involved the use or attempted express use of force or violence or the or Well, implied threat to use force or violent. really there was no evidence of that in this [J] it, case. There was a lot of talk around but—and exactly prior I don’t know how to handle the crimes you which dealt you with and which handed down verdicts on in this case also. The instruction is not clear you’re whether to treat those prior prior as convictions or criminal acts case, they’re part or whether of this going suggest you you I’m not which should do. fl] *59 frankly I don’t know. You’ll have to decide yourselves. for It’s for that reason that I left that out, murder, one because we know there proceeded was criminal activity that but because case, it was dealt with in this I’m not exactly you sure how I should tell how deal to with that so I left that factor out. may disagree You way with me and decide to view two cases in some your that will (c), affect prior felony verdict. no conviction. That sort of falls into the same [J] trial, category. Mincey Before this Mr. certainly had anything. not been convicted of We know 474 190.3,
section to apply only criminal other than the crimes for which activity Miranda, he in was convicted 44 (People supra, v. present proceeding. 105-106.) Cal.3d at pp. Defendant was convicted of five counts of endan- child, in gering addition to convicted being of murder. Defendant main- tains that the instruction at issue and the allowed the prosecutor’s argument times, is, jury consider defendant’s child abuse convictions three (a), (b), (c) under factors of the instruction. under
Instructing jury CALJIC No. 8.84.1 is in not error the absence Miranda, of misleading argument (See 44 prosecutor. People supra, v. 106; 480, Cal.3d at p. People (1988) 44 Kimble Cal.3d Cal.Rptr. [244 Here, 148].) while commenting that he was not sure how the offenses should be categorized, the prosecutor merely asked that the consider the offenses, not that it consider them two or three times. The prosecutor’s Thus, argument did not mislead the jury. the trial court did err in giving (4th ed.) CALJIC No. 8.84.1 in this (People (1989) case. v. Andrews 200, Cal.3d 226-227 285].) 776 P.2d Cal.Rptr. [260 Age K. as an Aggravating Factor
The trial court instructed the that it could consider defendant’s in its age penalty determination. Defendant argues this was error because age ais rather mitigating than in aggravating factor. We have the past rejected argument. this v. Lewis 50 Cal.3d Cal.Rptr. 892]; 786 P.2d v. Lucky 301-302 [247 1, 753 P.2d Defendant has us no given reason to persuasive reconsider these decisions.
Also, the record does not support defendant’s assertion that the prosecutor improperly argued that defendant’s chronological age aggra- itself was an The vating factor. prosecutor, after saying defendant’s chronological age him, was a factor against noted there was testimony that defendant had the added, intellectual or mental of a age “I teenager. then don’t prosecutor think that particular factor [age] cuts one or the way other this case.” L. Guilt Phase Errors Effect of
Defendant contends the of death judgment must be reversed be cause that, of errors that occurred at the guilt phase of his trial. He urges handled, warned. that. How do we consider two previous . . .” those because prior treat the child abuse cases. Mr. cases, Mincey prior at least from the standpoint two cases is up as we talked about [1] In that connection, you. I’m not sure. He now stands convicted with the of the arrests and how I think it’s psychiatrists, important for they had been you were
475 decision, the “substan- we use the jury’s penalty of evaluating propriety guilt phase, error at the of this standard of tial error” test. Application asserts, death. reversal of the of judgment defendant requires error that penalty phase defendant is a rule of urged by The test of error statutes, with which vested the jury death applied pre-1972 penalty discretion, phase “substantial” penalty thus rendering any absolute penalty 294, 45 Cal.3d (People Lucky, supra, p. reversible. v. error and prejudicial and 1978 no because 1977 longer applies, fn. This strict standard to guide standards death statutes include sufficient penalty constitutionally case, law. (Ibid)) In was tried under the 1978 discretion. this defendant jury at the guilt phase There was one error of that occurred significance misdemeanor child trial. error to defendant’s convictions for pertained earlier, (counts 6). 5 and As those two offenses endangerment explained limitations, were barred statute of thus by applicable one-year requiring that the it is not reason- convictions therefor be set aside. We conclude that different ably phase would have rendered a possible penalty Burton, verdict had this error not occurred at the v. guilt phase. 864; 432, supra, People (1988) 48 Cal.3d at v. Brown 46 Cal.3d p. [250 604, 758 P.2d Cal.Rptr.
M. Impact Penalty Cumulative Phase Errors
Defendant contends that the cumulative errors at the impact penalty record, trial phase compels reversal. Based on our review of the entire we Whether disagree. considered singularly collectively, penalty phase or errors were harmless.
N. Other Challenges Constitutional Sixth, Fifth,
Defendant asserts that his death judgment Eighth violates and Fourteenth (1) Amendments United States Constitution because factors, the trial court failed to delete instructed inapplicable mitigating factor, that extreme mental disturbance could be a instructed mitigating the jury that moral if justification would be a factor believed mitigating only defendant, and (2) admitted allegedly inflammatory photographs; impo- sition of the death penalty is arbitrary, discriminatory, disproportionate; (3) the 1978 sentencing statute is unconstitutional. We have previous cases each rejected (See, of these People contentions. v. Bonin e.g., 1217]; 758 P.2d v. Cal.Rptr. People [250 Ruiz 854]; Cal.3d 612-613 People 749 P.2d v. Miranda, 104; supra, Ghent, 44 Cal.3d at supra, 43 Cal.3d at p. pp. 776-777.)
476 Proportionality
O. Review Defendant contends that his sentence is unconstitutionally disproportion- in in ate both to those convicted of similar offenses and relation comparison to his own culpability.
“Intercase” review is not the federal proportionality required by 37, 29, (1984) (Pulley Constitution v. Harris 465 U.S. 51-54 L.Ed.2d [79 40-43, 871]), 104 S.Ct. and we have declined undertake it consistently 335, 103, (1991) 1 (People Bacigalupo v. Cal.4th 151 820 Cal.Rptr.2d [2 645; 559]; 2d People Hayes, supra, People P. v. 52 Cal.3d at v. Kaurish p. 648, 788, (1990) 2788].) 52 Cal.3d 716 802 P.2d Cal.Rptr. [276 But the of a death imposition subject sentence is to “intracase” review to determine whether the is to a defendant’s penalty disproportionate personal 15; (People v. 1 culpability. Bacigalupo, supra, People Cal.4th at v. p. Andrews, 200, 234.) supra, 49 Cal.3d A grossly dispropor sentence is tionate to the offense for which it is violate the imposed may prohibition I, cruel or unusual in against contained article section 17 of punishment Kaurish, 716; California Constitution. 52 at (People supra, v. Cal.3d p. v. Dillon 34 Cal.3d 478 668 P.2d Cal.Rptr. [194 Defendant asserts that his sentence is be disproportionate murders, cause child homicides fall discipline into class of because special Sandra B. was convicted of and sentenced to six involuntary manslaughter in years because there is prison, as to his actual role the death uncertainty James, and because of his Our review of the below-average intelligence. facts leads us to conclude that the death is not penalty disproportionate defendant’s individual culpability.
Defendant was convicted of tortured to death a child. having five-year-old We have previously rejected that death is a argument disproportionate penalty for a who parent his child “disciplines (People to death.” v. [or her] Wade, 44 supra, Cal.3d 1000.) at p. sentencing on disparity imposed defendant and Sandra B. does not establish that defendant’s sentence is grossly to the he disproportionate offense committed. Evidence of the dis- case, of a position codefendant’s as to evidence opposed codefendant’s offense, complicity involvement is not relevant to the decision at the penalty which is phase, based on the character and record of the individual defendant and the circumstances of the v. Bel- offense. montes, Here, supra, 45 Cal.3d at p. determined on substantial evidence that defendant was the actual killer and that he intended to kill. The evidence of defendant’s is insufficient to make below-average intelligence the sentence disproportionate (See Penry to his individual v. culpability.
477 287-288]; People at pp. L.Ed.2d supra, p. 492 U.S. Lynaugh, [106 1082].) As P.2d Poggi James over recalled, five-year-old and tortured defendant had beaten bemay extended of time. period an *62 Penalty
P. Motion of for Modification his on ruling erred that the trial court Defendant contends to indepen by failing the death sentence for modification of application and findings the jury’s determine whether review the evidence to dently evidence, to state the failing and by to the law and contrary verdict were for its ruling. reasons I “Let me indicate were as follows:
The trial court’s comments pertinent independently I defense. have offered the arguments by have considered It must lessening I the sentence. reasons that could think any considered offor or the penalty remembered that the of the death imposition penalty be the State of by people death is a has been penalty prescribed which do not have lawyers than and Judges, lawyers, judges California. no more and are fast everything as those who to know luxury, you purport do deciding luxury to criticize us in our we don’t have the occupations, in the interest. We whether it is in the interests of or not best society best to us given by people follow the law as we understand it to have been matter. It I find this Legislature. mitigation no elements of [<[[] of the jury is therefore the this that the recommendation judgment of court added.) (Italics should be followed.” 190.4, deemed (e),
Under defendant is section subdivision a capital on the ruling have for a sentence modification. automatically applied evidence of the trial must application, judge reweigh independently whether, in the and determine aggravating mitigating circumstances judge’s of the evidence independent judgment, weight supports (People verdict. Lang Cal.Rptr. 49 Cal.3d 1045 [264 P.2d The for the judge ruling. must also state on the record the reasons Kaurish, (People v. supra, 52 Cal.3d at p.
Here the record shows that the trial did review the judge independently evidence and did determine that the jury’s appropriate. decision judge stated that he had lessening considered reasons for independently sentence, found no elements of that the recom- mitigation, and determined mendation of the recita- jury should be followed. a more Although specific desirable, tion of the trial court’s determination would have the record been shows that the did review. We sufficiently court undertake an independent indepen- trial court failed to defendant’s contention that the reject therefore review the evidence. dently assertion, however, failed to that the trial judge with defendant’s agree
We 190.4, (§ (e).) Ordi- subd. findings. the record the reasons for his state on caution, hearing a new we would remand for out of an abundance of narily, the trial familiar- judge’s because of application on the verdict modification Thus, is no alive. longer But in this case the trial judge with record. ity his to state reasons for we must determine whether the failure judge’s the law and contrary and verdict were not findings decision that the jury’s a reversal of the penalty evidence so defendant as to necessitate prejudiced decision. v. Heishman
753 P.2d
if
a reasonable doubt”
beyond
Even we assume that the strict “harmless
(1966)
Compared aggravating just mitigating circumstances weak, evidence was character and back- relating to defendant’s primarily The in James’s death and ground. beatings duration of that culminated the manner in which the the defense were administered undermine beatings intermittent position person- was the result of an killing explosive, disorder. defendant’s ality intelligence there was Although testimony was lower than was unable to there was no evidence that defendant average, actions, he understand and control his fully suffering or to appreciate at the inflicting times relevant here.
479 Q. Dugger v. Parker 1991, decided Parker
In the United States Court January Supreme 812, 731], 111 (1991) U.S. 308 L.Ed.2d S.Ct. Dugger v. 498 [112 that the sen Defendant contends that Parker conclusion compels and that our given phase tence a codefendant must be admitted at the penalty (See v. Morris People decisions to must be overruled. contrary 720, 949]; Carrera Cal.3d 807 P.2d v. Cal.Rptr. [279 Belmontes, 121]; People 777 P.2d supra, 810-813.) 45 Cal.3d at that Parker argues Defendant also pp. compels of his acceptance arguments relating attorney- to Sandra B.’s assertion of client cross-examination and the trial court’s exclusion of privilege during evidence to Sandra’s abuse of the children. pertaining prior Additionally, defendant asserts that Parker intercase review. requires proportionality Parker does not any of defendant’s contentions. support Dugger, supra, Parker v. 498 U.S. a Florida convicted defendant of two counts of first At an degree advisory sentencing murder. introduced, the defendant hearing, other evidence that none of among things, his had received accomplices the death recommended that penalty. the defendant be sentenced to life But the trial judge, who imprisonment. *64 sentence, under Florida law ultimately decides the overrode the jury’s recommendation as to one of the murders and sentenced defendant to death. The found judge six of the circumstances statutory aggravating present, but no circumstances. The made no statutory mitigating judge order, however, comment about nonstatutory The mitigating evidence. stated are no mitigating “‘[t]here circumstances that outweigh aggravating ” 820, (Id. circumstances.’ at 111 p. __ [112 734].) L.Ed.2d at S.Ct. at p. p. The Florida Court held Supreme that the evidence was insufficient to support circumstances, two of the aggravating but nevertheless affirmed the judg ment based on the erroneous conclusion that trial court had found no mitigating circumstances.
The United States Supreme Court reversed and remanded the case. The high court concluded that the trial did judge nonstatutory consider mitigating (Parker evidence. v. Dugger, supra, 498 U.S. at L.Ed.2d at p. __ [112 p. 111 S.Ct. at p. It held that because the Florida Supreme Court had mischaracterized the trial judge’s decision as finding no circum mitigating (as stances opposed finding circumstances out aggravating weighed the circumstances) mitigating struck two of the trial court’s aggravating circumstance findings, Florida Court was Supreme required on review either to reweigh evidence or to conduct a harmless error _ (Id. 824-825, analysis. at pp. L.Ed.2d 111 at S.Ct. at pp. [112 pp. 738-739.) The United States Supreme Court remanded the case with direc-
480 to reconsider the defend tions to state to initiate appropriate proceedings record, death in and the light sentencing hearing, ant’s sentence _ 827, 111 (Id. trial at L.Ed.2d at S.Ct. at judge’s findings. p. p. 740.) p. case, in in to defendant’s claim this court Parker
Contrary high v. Dugger, supra, U.S. did not hold that evidence of a codefendant’s sentence must be introduced at trial as evidence or that a com mitigating Florida, In parison between sentences codefendants is unlike given required. California, a sentence We specifi codefendant’s is admissible. disposition Belmontes, in cally supra, noted and the Florida rule rejected Cal.3d at 811-813. the conclusion that pages Nothing Parker supports California is Nor does constitutionally required adopt the Florida rule. Parker us to defendant’s Sandra B.’s compel accept arguments concerning assertion of the or the exclusion of evidence of her attorney-client privilege abuse of the prior children.
Also not is defendant’s a fair of the case supported by reading assertion that Dugger, supra, under Parker v. 498 U.S. we must conclude that the trial court here erred it found no elements of stating mitigation on the As ruling automatic motion for modification of penalty. above, discussed court’s reversal in was based on the Florida high Parker Court’s failure a harmless Supreme reweigh the evidence or to conduct (Id. error analysis. p. __ [112 L.Ed.2d at S.Ct. at p. p. case, have, this we in connection with the automatic motion for modifica tion, conducted a harmless error analysis.
VII. Conclusion (counts 6) misdemeanor convictions for a child 5 and are endangering *65 In reversed. all other respects, the is affirmed. judgment Lucas, J., Panelli, J., Arabian, J., Baxter, J., J., C. and George, concurred. MOSK, J., Concurring and Dissenting. in the judgment guilt concur as to I review, and death I eligibility. After have found no error reversal or requiring vacation on either issue.
I however, dissent from the judgment, the I as to sentence of death. As shall there explain, was prejudicial juror misconduct on that bearing question.
The facts are these. his summation at the defense penalty phase, counsel the urged to “I jury spare defendant’s life. . . have a personal . absolute,
belief,” counsel, “that the laws of God are argued very kill’ very which shall not is a absolute rule. says Sixth Commandment ‘Thou life It the of western that tell us that human is very reflects values culture sacred, and I know of to the State California any granted don’t exemption the The . . . laws the Sixth state to kill. permitting [Commandment] added.) I (Internal God believe are . . . .” marks quotation absolute Soon, the commenced deliberations. After for jury excusing panel mention, the trial on the of the day, judge, jurors, bailiff’s noticed that one Hoffman, was, Glenda her what holding a book under arm. He asked it and she had had in the revealed it to be a Bible. He then whether she it asked room, selection, and On Hoffman had jury yes. during she said voir dire jury identified a Baptist, herself as and stated that she was affiliated with an church,” organization called “Campus really Crusade”—which was “not “more than kind just of a of life.” Also on voir employment,” way “[i]t’s dire, at jurors least seven of the other eleven had themselves identified as Christians. deliberations,
The next before the day, recommenced trial judge conducted an into inquiry incident.
Summoning Juror Hoffman into chambers outside the presence other members of the panel, trial “When ... did judge questioned, you take Bible into She “During—after room?” lunch replied, . . . .” He “And did questioned, what use make you Bible?” She replied, “We were all finished and we all go were to home and getting ready Bible, said, well, some people kept making references I I have it right here. And I do go, you all want to—whoever to go wants can go, whoever wants to can stay So stay. and we read a few everybody stayed so verses from it.”
On further questioning by the trial judge, Juror Hoffman stated that she had read for her colleagues Numbers “But if he him 35:16: struck down with died, murderer; an iron object, so he he is a shall murderer be put death.”
She stated that she had also read Numbers if he him 35:21: “Or died, struck down with his hand in enmity as a result he the one who struck him down shall surely be put death.”
In addition 13:1-5, to the foregoing, she stated that she had read Romans as follows.
“Let every be person subjection to governing authorities. For there is God, not authority from except and those which exist are established God. God,
“Therefore, the ordinance has authority opposed he who resists themselves. upon will receive condemnation have opposed who they behavior, evil. Do you but for fear for good are not a cause of “For rulers will have praise and you Do what is good, fear of authority? want to have no the same. from evil, be if do what is But good. you God to for you it is a minister to
‘For God, afraid; it is a minister nothing; for for not bear the sword for it does evil. the one who upon practices who wrath brings an avenger wrath, because of only subjection, to be necessary “Wherefore it is also for conscience’ sake.” but feel, I and so how clearly know added: “. . . [Pjeople
Juror Hoffman it, reading I felt about knew how definitely verse they the Numbers reading it, I felt just me to read but hard for thing like knew it was a they so it was different views that the Bible is not—there’s like I needed to clear up, was my point.” that was—that so people get, come from the Bible presence outside the other into chambers jurors each of the Summoning Hoffman rest, were as Juror whether the facts the trial judge questioned He affirmative. substantially were He received answers that had represented. had had any verses of the Bible reading whether Hoffman’s also questioned He did not substantially negative. that were influence. He received answers matter, answer. hence received no Hoffman herself about this question in the that “what transpired the trial found judge his Following inquiry, 1 through 13 verses Hoffman read Romans room was that Ms. occurred, . . .it that “it 35 verses 16 and 21.” He also found Numbers their deliberations or after had they completed conclusion happened jurors’ approach Hoffman’s “fellow for the . . . .” he found that day Lastly, It be deemed that reading. may to their deliberations has not been affected by that is not that—and beyond to us Ms. Hoffman’s but approach, disclose There no motion for is justify discharging jury. which would anything harm, I has occurred.” any mistrial. find no no denial of protection court, “The had at the jurors to the jury: the trial stated open judge I you admonish conclusion of their access to a Bible yesterday. deliberations reference books No you. do not take into the room with again, anything kind, verses, are no You anything. no no no any poems, newspapers, the basis decide this case on the law of the State of California to required by California. the law of the State of of the evidence adduced here court and
483 What have you with from you bring you your background, your course, heritage, But your training, you bring to bear. do not take any other of reference materials with types you.” deliberations, further
After the jury returned a verdict of death. is, course, It juror misconduct for a to introduce extrinsic material any Code, (See into room. Pen. “Jurors are not allowed to § obtain information from outside sources either as to factual matters or for 612, on the guidance (1988) law.” v. Karls 46 Cal.3d 642 [250 659, 758 P.2d Cal.Rptr.
Consequently, it is misconduct juror for a to introduce extraneous law. 269, People v. (E.g., Marshall 50 Cal.3d 790 Cal.Rptr. [269 676]; P.2d In re Stankewitz
On the very face of the record of the trial juror misconduct is fact, The manifest. majority recognize as they must.
Juror Hoffman room, viz., introduced extrinsic material the jury into Bible. That is undisputed. impropriety cannot be dismissed as the product of incident, inadvertence. Not long before the the trial judge had made plain jurors to the that extrinsic material did belong room when he denied a for a request legal as dictionary “inappropriate.” Neither can the impropriety be justified or even excused as a “response” to defense counsel’s comments during summation. Hoffman was free to dis- agree with the remarks—but that is all.
Further, the extrinsic material Juror Hoffman introduced constituted extra- neous law. That is indisputable. The Bible is an “extra-judicial code of conduct—a code which offenses, mandates death for numerous including filial disobedience and breaking Sabbath .... To the average juror, Webster’s Dictionary book, may be no more than a reference and The Reader’s Digest more than nothing a diverting periodical; but the Bible is an authoritative religious document and is different not just degree, although *68 (Jones supra, Kemp, in kind.” difference is but pronounced,
this F.Supp. p. record. on the face of the
The Juror Hoffman’s misconduct is plain fact She the Bible into the room. took mini- only
The misconduct is disclosed on substance of Juror Hoffman’s mal scrutiny. prove above an evident attempt
Hoffman read the verses set out defense counsel was God’s “law.” “misstating” stated, are “I that the laws of God
Counsel . . . have a belief personal absolute, kill’ which ‘Thou shalt not says that the Sixth Commandment very added.) (Internal is a absolute rule.” marks very quotation remark, Numbers to this the cited from Against passages Hoffman quoted kills his the murderer who establish the “rule” that death must be visited on “with an victim “with his hand”—defendant beat James with his hand—or object”—he grommets. iron also used a leather belt with metal stated, granted counsel I don’t know of Additionally, any exemption “. . . the state to the permitting State of California the Sixth [Commandment] to kill.” remark, Romans to this Hoffman the cited from
Against quoted passage to the secular state’s use of give religious “legitimacy” capital punishment: God, wrath brings an who governmental authority avenger “is minister of the one who upon practices evil.”
Moreover, evident attempt Hoffman read the verses set out above an defend- urge death as the for penalty religiously appropriate punishment Num- ant’s crime. That fact words she from quoted is express very added), be (italics surely bers—“the murderer shall be to death” he “shall put comment, . . . (italics added). to death” It in her put “[P]eople is implied knew it was a hard me thing for to read it. . . .” law It misconduct here did not offend California alone. also juror *69 violated defendant’s under the United States Constitution. rights in sentencing
“It is well settled that not a role religion may play (Jones 1559.) “a Kemp, supra, v. at The has process.” p. jury F.Supp. the law the the trial not its duty apply [jurisdiction] given by judge, of as own of the law or its own of interpretation interpretation precepts Bible, (Ibid.) in whether the should live or die.” determining [defendant] A
“. . . search extrajudicial any for command of ‘law’ from source intentioned, other than the trial matter well is judge, permitted. no how not The use by jurors of an code . . . cannot be deliberating extrajudicial reconciled with the Eighth Amendment’s decision to requirement any death must be the result impose of discretion which is carefully narrowly channelled (Jones and circumscribed by jurisdiction.” secular law of the Kemp, supra, v. 1559.) at F.Supp. p.
Further, situation in which a the court and jury, unsupervised by “[a] counsel, unobserved by could reach a conclusion sources other by consulting than the legal of the court and evidence charge received court actually by is not permitted. ‘The Sixth Amendment that the accused shall guarantees enjoy the right to a trial an and shall be confronted with the impartial jury witnesses and evidence against him. . . . The most general interpretation a fair trial is that it be conducted jurors before under the unprejudiced superintendence of a judge who instructs them as to the law and advises them as to the facts. Judicial control of the of the case juror’s knowledge pursuant to laws of evidence is fundamental to the of bias and prevention materials, dictionaries, books, prejudice.’ Extraneous whether be law or they Bibles, evidence, unless properly received are not allowed the jury room for use aby deliberating jury. should have with it in the evidence, room only those documents received in or perhaps judicially noticed and a copy of court’s if charge reduced to writing—nothing (Jones else.” v. Kemp, supra, 706 at F.Supp. p. original, italics omitted.) citation
Juror misconduct raises a presumption prejudice. (E.g., v. Marshall, 949; Stankewitz, supra, 50 Cal.3d at p. supra, In re 40 Cal.3d at p. 402.) The is indeed presumption heavy when the ato impropriety “goes key issue in Stankewitz, the case (In . . . .” re 402.) supra, at It is heavier still p. when the death is penalty (Ibid.) involved. state must then rebut the “[T]he Marshall, presumption”—if it can—“or lose the supra, verdict.” p. misconduct is by juror raised presumption prejudice
Whether or not as follows. rebutted is resolved reversed or must be in a criminal case
“A to a defendant adverse judgment vote likelihood finds a substantial ‘whenever ... court vacated matter to prejudicial influenced by exposure or more jurors of one the trial part that was to the case itself to the defendant or relating . . jury.’. to the which the case was submitted record on *70 “ reference to by resolved on the is juror ‘The ultimate issue of influence effect, must test, the court standard. objective likelihood an the substantial inherently it is then whether judge material and extrajudicial examine the juror.’ have influenced the likely than, from, indeed less tolerant different and
“Such is ‘prejudice analysis’ The reason is as follows. at trial. for error analysis’ ordinary ‘harmless-error a requires of a trial—which integrity that undermines the Any deficiency counsel, defendant, may present represented by which the proceeding jury—introduces and judge before an argument impartial evidence and without consideration calls for reversal taint fundamental unfairness and misconduct. by jury is threatened deficiency actual Such a prejudice. there is a substan finding in question supports When the misconduct to the influenced was impermissibly tial likelihood that at least one juror detriment, integrity we are to conclude compelled defendant’s circumstances, that the we cannot conclude under trial was undermined: such 950-951, Marshall, at pp. supra, jury was impartial.” omitted.) citations presumption prejudice
The is: Have the rebutted People question established they That is to have say, raised Juror Hoffman’s misconduct? by influ- was improperly that there likelihood that any juror is no substantial enced to defendant’s detriment? went to here: the misconduct exceedingly heavy is presumption
first, last, of this capital jurors penalty phase issue before only trial, viz., taken or spared. whether defendant’s life would be No, have not in their attempt—they
The answer is: have failed influence. By of improper established the absence of a substantial likelihood facts, raised the crucial question its defendant’s murder of James very so, and, its application if what result was applicable whether lex talionis and simple a clear Juror Hoffman by provided The words read yield. would That death. demanded operated—and of retribution principle answer: indeed, what many as it did from coming deemed forceful answer must be conclusion My Itself. Authority an authoritative source—if consider with nonbelievers. a nonreligious society peopled well be different for might who jurors society, trial was not conducted such But the below men and women. were not such judgment sat that none of the other I found judge effectively trial recognize he did misconduct. But influenced Juror Hoffman’s jurors was improperly indeed, herself. It is as to Hoffman finding not—and could not—make such a (In affected. juror that a verdict if even a has been single settled cannot stand Stankewitz, supra, re 40 Cal.3d at p. the jury.
I also that the trial delivered an admonition to recognize judge *71 from Juror arising His words could not have cured or harm prevented any the ques- Hoffman’s misconduct because but avoided they carefully, clearly, True, tion. told the that “You are law judge jurors required by adduced State of California to decide this case on the basis of the evidence here in he did tell them court and the law of the State of California.” But not Rather, that were they not to consider the Bible verses required question. he bring could do so. He said: “What have that implied they you you course, with from you your background, training, you your heritage, your noted, Hoffman, had bring eight including bear.” As at least of the jurors, so, identified themselves as Christians. being they presumably That “brought” verses with them from their “background,” “heritage,” “training.” I
Finally, did return its verdict of death recognize after immediately Juror Hoffman’s misconduct. That fact means only Hoffman’s did not determine the outcome. It impropriety instantly simply does not suggest that it was without influence. improper conclude that the majority have rebutted the presumption prejudice raised Juror Hoffman’s Their is that the reasoning misconduct. trial judge’s any admonition substantial likelihood of negated improper above, have cured or
influence. But as shown words could not judge’s indeed, impliedly the threatened harm: did not bar—but prevented they allowed—consideration of the Bible verses question.1 reasons, I of death. foregoing judgment For would reverse 27, 1992, and the for a was denied Appellant’s petition rehearing May was modified to read as above. opinion printed *72 reach, 1Because of the result I I need not consider whether the federal constitutional violations found require above would reversal in and of themselves. But to address if I were is, course, question, give I response. would an affirmative that error of It the rule reversible, federal constitutional dimension automatically subject is not but rather is harmless-error analysis under the Chapman standard of 386 U.S. California 705, 710-711, 1065], viz., L.Ed.2d 87 S.Ct. harmless [17 A.L.R.3d was the eiror beyond a (Arizona reasonable doubt? The rule covers ordinary all “trial v. Fulmi error[s].” U.S. _, _ - _ _ 302, 329-330, nante 1263-1264].) L.Ed.2d 111 S.Ct. mechanism, Excepted therefrom are “structural defects in the constitution of the trial which (Id. defy analysis by ‘harmless-error’ at p. __ [113 at p. standards.” L.Ed.2d 111 S.Ct. at p. 1265].) The require They appear exception violations here would reversal. to fall within the reversibility: they automatic impartiality question call the into serious thereby very integrity undermine the they the trial. But even if come within the rule of above, analysis, harmless-error the result is the they same: in view of the discussion set out cannot be beyond deemed harmless a reasonable doubt. notes murder torture cannot [citation], or condition or from the mode assault body victim’s is [citation], suffering cause suffered other evidence of intent to injury but statement, however, read in (Ibid.) must be required. also This [Citations].” the context of the case in which it was made. in result trauma Wiley The evidence victim died as a established that the were caused a blunt The had 30 fresh wounds that by instrument. body hammer, bat, inflicted rounded head of by a baseball the claw of a and the 166.) (18 the hammer. wounds were inflicted rapid Cal.3d at The p. conviction, this (Id. 167.) succession. at torture-murder p. affirming hit the court reasoned that the defendant’s that she wanted to statements victim, victim on money the hand that she wanted her back from the “when with considered the manner which the beating [the victim] administered,” (Id. inference permitted an of intent cause at pain. p. Thus, context, Wiley, when 18 language supra, considered from Cal.3d at relied as matter of page on defendant does preclude law an inference of intent to torture on the of the victim’s based condition We body. recognized, have both before after that such an infer- Wiley, ence may (See People be based on the condition v. e.g., of the body. 268; 41 Davenport, supra, supra, 16 at Steger, Cal.3d v. Cal.3d p. 546; People Washington (1969) Cal.Rptr. Cal.2d 1083 [80 479], 458 P.2d v. Butler quoting People Cal.App.2d Here, an the evidence over repeatedly shows defendant beat James wounds, which themselves appreciable period time. nature of the
Notes
notes
correctly
the case
tried
murder with a special
on a
of first
torture
theory
degree
torture,
erred in instructing
circumstance of
and that therefore the trial court
on
murder.
felony
When
findings,
considered as a whole and when considered with the jury’s
there
jury.
is no reasonable
that the instructions misled the
probability
273,
(1991)
v. Duncan
53 Cal.3d
972-973
Cal.Rptr.
[281
131].)
P.2d
murder,
The
instruction related
not its
improper
to the offense of
but
degree. The jury found defendant
of first
murder based on
guilty
degree
instructions that
it
find
required
and deliberation or torture
premeditation
murder,
addition,
or
both.
circumstance verdict
special
required jury
of intent
finding
to kill. The
and
jury’s first
murder verdict
its
degree
special
circumstance finding establish that the
did
not base its conviction on
felony-murder
(See
theory.
People v. Morris
[249
756 P.2d
Cal.Rptr.
Although
his closing argument the
described first
prosecutor
degree
murder,
murder
torture
as a variation of
that comment was
brief
felony
quite
and was immediately
by
followed
a reference to the two elements of first
torture
degree
(acts
murder
that involve
of death
high degree
probability
10The
(1983 rev.).
instruction was a modified version of CALJIC No. 8.10
court
trial
modified the standard
by deleting
instruction
killing
by
the reference to the
of a fetus and
deleting
following
language
during
from
third element of the offense: “occurred
of_a
commission
attempted
or
dangerous
commission
felony inherently
to human
felony
life--is
inherently dangerous
to human life.”
Moreover,
with
suffering).
committed
intent to cause cruel
or
pain
found that
murder
jury specifically
by
James’s
was committed
defendant
kill
with the
intent
that the murder involved the infliction of torture.
886],
v. Smith