*1 S004562.Crim. No. 23252.Feb. [No. 1992.] PEOPLE, THE Plaintiff and Respondent, HOWARD,
ALBERT CECIL Defendant and Appellant.
Counsel Sorenson, Court, Karen Michael S. under and appointment by Supreme Laurence for Defendant and Appellant. General, Van de
John K. and Daniel E. Richard B. Kamp Lungren, Attorneys Williamson, General, Iglehart Chief Assistant Arnold George Attorney General, Anderson, O. and Robert R. Michael J. Overoye Attorneys Assistant Weinberger, Shigemoto Attorneys Thomas Y. and James T. McNally, Deputy General, for Plaintiff and Respondent.
Opinion PANELLI, convicted defendant Albert Cecil Howard of the first A jury J. murder, Code, (Pen. Fried degree mayhem, robbery (Roy) of Lois 187, 203, murder, 211)1 and the attempted attempted mayhem, §§ 187, 203, circumstances, (§§ robbery 664). Fried Gladys special As statutory 1All further citations are to the indicated. Penal Code unless otherwise *16 found the murder the commission during the that defendant committed jury 190.2, (17)(i) (§ (a)(1), and subd. robbery gain. of and for financial burglary (17)(vii).) great The found that defendant inflicted & also jury personally 1203.075, and was over (§ 12022.7) on each victim that each injury bodily (§ 1203.09). returned verdict of At the a age penalty phase, death. below, and we for murder attempted
As discussed reverse convictions strike We also mayhem findings. and the related enhancement attempted In all other finding strike the on the circumstance. financial-gain special judgment affirmed. respects, Facts
I. 25, 1982, May On defendant and in the visiting City was friends relatives Tulare. Defendant had left his to avoid temporarily residence Compton from former retribution his whose he had employer, motorcycle shop burglarized. house, in the a
Early began afternoon at Eddie Franks’s where party defendant, was defendant At the were staying. his mother Paralee party Faulk, Malone, his aunt half brother his Dorothy Haynes, Johnny sister- Malone, Malone, in-law Pamela his half (Ernie) brother Ernest Ernie’s Devine, girlfriend Denise Johnny Washington, and Howard Drinking Green. and socializing continued well into the evening.
Defendant left the several times with Ernie2 party to walk to nearby store beer and wine. The last such The trip began sometime after dark. left two men by of an way alley behind house and returned about 45 returned, minutes later. they When defendant walking was ahead of Ernie carrying brown bag. Defendant paper showed to Eddie contents Franks and carried it into the house.
Eventually, defendant most of other at Eddie’s house found people sister, their toway a second party at the home of defendant’s Lavern Howard. about when Testimony defendant Eddie’s left house was wildly inconsistent. witnesses’ recollections were vague, openly speculative, alcohol, influenced some cases by consumption generally witnesses, impossible reconcile. defendant could According to various have Eddie left Franks’s house as 10:45 or at p.m., any as 8 after early p.m., point between. event, In any by 11:30 p.m. the house included Lavern party Lavem’s
herself, Malone, her Sanders, husband Malone, Richard Pamela Johnny 2Emie Malone charged codefendant, with separately, guilty murder as a found tried an accomplice, and sentenced to life possibility without of parole. Devine, Green, Denise Howard Johnny Washington, Dorothy Haynes, Para- *17 Faulk, Pamela, sister-in-law, lee and defendant. defendant’s recounted at trial what when he happened arrived. Defendant had earlier a desire expressed to arrived, When buy Johnny Malone’s car. defendant he asked if he Johnny did, still wanted When to sell it. said that he defendant Johnny dropped Pamela, wife, $100 $50’s. several bills on the floor—one and two Johnny’s said, more and “[d]rop give you and papers everything.” [$50] [I’ll] $50. Defendant another Lavern Howard dropped also witnessed transaction.
Many people Lavern’s house heard defendant about talking that had earlier something happened Defendant was “excited” evening. testified, and As Lavern later “hyper.” defendant was that he had “boasting” “gotten some money” and down.” Defendant “brought somebody said that but, he had dude" “stomped” “a with his foot. Ernie had “tried him” to stop me, as defendant told the story, “this old mother-fucker seen and he ain’t going to see me no more.” Other heard defendant that he had people brag someone, identified,” in “stomped” face “stomped somebody’s being from or Ernie, “brought down." Lavern somebody also testified that to according defendant, “was to have supposed something to some woman.” [done] Lavern, Besides the witnesses who heard defendant describe incident Sanders, Malone, Devine, included Richard Pamela Denise and Johnny Washington. Defendant’s mother had recounted a similar statement to the but police it at repudiated trial.
About a.m. the next Ernie arrived morning, Malone at Denise Devine’s wallet, When apartment. Denise turned on the lights, she saw a and money, identification cards on the kitchen table. The cards and belonged Roy $540, Gladys Fried. Ernie asked Denise to count the She counted money. Later, a.m., which Ernie pocketed. about defendant arrived with Johnny and Pamela Malone. Defendant told Denise that he bought had car. Johnny’s Ernie and got upset told defendant that “he had to leave because he talked too much.” The morning, next in put Denise the identification cards a bag and discarded them in a dumpster.
About noon that same day, defendant visited Pamela. She asked defendant where he before, had gotten the money to her husband’s car. buy As defendant that he explained had “brought down.” Defendant also somebody detail, in explained, more that he and Ernie had “knocked on somebody’s door, and an old man came to the door.” The man hit” and “got grabbed defendant’s leg. Defendant demonstrated with his foot how he had then “stomped” the man. wife, Fried lived
Roy with his in a house Tulare. Eddie Gladys, Franks’s house was one block away, connected an Mr. Fried by alley. used aluminum and Fried Both had and impaired mobility Mrs. was 71. Albert, sons, their saw and telephoned walkers. The Frieds’ two Leland Ann spoke Albert’s wife Jo On the parents frequently. evening May At p.m. with Mrs. Fried on the until a few minutes before telephone time seemed be order. everything her Yagel
About 3:30 the next Leland’s fiance Janice p.m. day, car daughter Payne stayed Kim to the Frieds’ Janice drove home. one while Kim return When went Mrs. Fried’s medical card. no knock, her Kim saw Mr. Mrs. Fried on answered the door and opened *18 floor, body the on their Fried’s was of his lying top stomachs. Mr. walker on Fried, his a wearing and were turned inside out. Mrs. who was pockets her her her had arm over When Fried lifted nightgown, husband’s back. Mrs. door, to see Kim head who was at the Kim saw her face was bloody. that and yelled Janice the Mr. Fried’s cold help, telephoned police. body was had and no pulse.
The police and medical arrived few later. Fried technicians a minutes Mrs. cold, face, nose, clammy, was and her and breathing eyes, and heavily, mouth showed extensive injuries. The ambulance crew administered aid first and took her the hospital. Rigor Mr. Fried was dead. mortis pronounced in, had set and he in was and fluids. There was lying bodily blood other broken denture material on the been living room floor. The house had ransacked. The Frieds’ later sons confirmed a was large amount cash $2,000 missing. tan, had Leland recently a The repaid “gov- loan cash. ernment-type” into which Mrs. envelope Fried had put money lying was floor, wallet, on the empty. Also were Fried’s he missing Mr. which dollars, ordinarily several hundred kept and the Ann that Jo had purse given Mrs. Fried the An previous Christmas. expert on crime-scene reconstruction testified that the could crimes have been eight committed as few minutes. The autopsy showed that Mr. Fried had suffered blows multiple
head, face, neck, and A chest. blow to neck had separated and larynx trachea from the A spine. blow to the right had eye pushed eyeball backwards and fractured the orbit. head Multiple blows to the had caused intracranial bleeding and bruised the brain. The blows had been delivered with considerable force a firm by or tapering, object hard and were consis- with tent having been delivered a shod by foot. At several places, raised, decedent’s face showed a curlicue of small bruises. There pattern death, minutes, were no defensive wounds. cause which took several was asphyxia with associated cranial and cerebral trauma.
Mrs. Fried had suffered very similar injuries, including blows multiple head, face, and eyes. Her eyelids were so swollen be had to they her Her hemorrhaged. lips gums and the whites of had pulled open, eyes her She had injured, were and her dentures had been knocked out of mouth. contusion, also suffered a or within the brain. bleeding The next defendant went with his sister Lavem to a day, May across the street from the Frieds’ home. to Tavern’s pharmacy According the clerk was about how a friend of hers had been killed. testimony, talking store, Once outside the defendant that “he had murder beef told sister he had to out of town.” He also said that “we’d be about it get hearing on the news.”
Police arrested defendant later that the car he had from day bought Johnny gave Malone. Defendant a false name. Because he was barefoot and hot, the sidewalk he an he like told officer that would to have his shoes shoes, out of the Officer back seat. Otto went to but them Troy get put back because defendant was in the Tater exami- already car. forensic patrol shoes, white, tasselled, nation showed that the black pair plastic, loafers, wing matched the curlicue Five tip pattern on decedent’s face. *19 witnesses had recently seen defendant with such shoes. That same day, cards, police recovered Mr. and Mrs. Frieds’ identification and as charge well as some from the Denise family photographs, outside dumpster in Devine’s The cards were a with a apartment. bearing of bag piece paper the handwritten words “Uncle Ernie.” Police seized Mrs. Fried’s from purse Denise’s apartment.
Defendant, trial, who testified at denied in He involvement the crimes. his in explained statements about a man as references to a “stomping” fight with John his Compton Hughes, former defendant had employer. April, burglarized Hughes’s and motorcycle shop. Hughes his brother later attacked defendant with a pipe broke defendant’s arm. who testified at Hughes, trial, corroborated defendant’s claim that burglarized defendant had the store Hunter, 1982 and later April become involved Alfred defend- fight. ant’s friend years of 15 who had witnessed the that fight, Hughes testified “was kicking defendant. Hunter had been con- stomping” previously Beard, victed of automobile theft and Booker who knew defendant burglary. well, defendant, testified that he had heard “if Hughes threaten that saying didn’t leave he wasn’t never to leave.” Beard Compton going [defendant] had been convicted of automobile theft and a narcotics charge.
Defendant also that he was rather than explained to referring Hughes, Fried, Mr. when he said that the “mother-fucker won’t see face my again.” defendant, According to he made the statement Nov- girlfriend because alene who had remained in Taylor, Compton, telephone told him over the After defendant feared for hearing that had attacked Erskin Bell. this Hughes did not away. testify. his own and decided to Novalene safety stay Taylor him him accusing Bell had assaulted after Hughes confirmed had previously of in the Bell complicity burglary motorcycle shop. been convicted arson. of he had
Defendant denied on 26 that robbed an telling May Pamela Malone defendant, man and woman. he did not see Pamela on elderly According Alston, Melvin day having most the his car spent repaired. afternoon side, a neighbor who on the testified that defendant repaired automobiles house while worked Alston had slept Alston’s Alston on the car. previ- been ously convicted burglary.
Defendant that the he testified used to Malone’s car money buy Johnny came from the Compton wing He denied that the shoes burglary. tip car belonged to him. He admitted owning of shoes “almost pair exactly” like those evidence but said that his were made leather rather than plastic. Finally, the defense exploited contradictory testimony about timing events on which May those accounts emphasizing portrayed defendant leaving Eddie’s p.m., house Lavern’s before 10 when Jo Ann Fried talked with the victims over telephone.
II. Phase Guilt A. Wheeler/Batson Claim.
1. Alleged racial bias. Defendant moved at
quash
trial
*20
panel on the
that the
ground
had used
prosecutor
peremptory challenges to
exclude two Black prospective jurors
(See
their
solely because of
race.
People
Wheeler
What a must party do to establish a prima facie case bias group under Wheeler well is settled. “If a party believes his opponent using alone, peremptory challenges to strike on the jurors bias ground of he group days 3A few motion, after the trial court denied the Wheeler submitted a prosecutor declaration explaining his peremptory challenges. prima Because did not find a the trial court case, declaration, facie request explanations, or prosecutor’s reject consider we People’s argument that defendant waived the by responsive claim submit a failing to declaration. must raise the fashion and make a facie case of such point timely prima First, discrimination he satisfaction of the court. ... should make as Second, he must complete record of the circumstances as is feasible. establish that the excluded are of a persons cognizable group members Third, within the cross-section rule. from all meaning representative the circumstances of the case he must that such strong show likelihood are because of their association rather than persons being challenged group (Wheeler, because of any specific bias.” Cal.3d at italics added, omitted; footnote see also v. Fuentes in this case prosecutor exercised eleven His peremptory challenges. third and fourth were challenges jurors; remaining to Black prospective nine challenges were to Whites. Defendant under Wheeler at the objected dire, conclusion of voir before the just sworn. Defendant’s Wheeler motion was and Black form a timely persons obviously cognizable group. (Wheeler,supra, 22 280.) Cal.3d at defendant’s showing was otherwise His entire motion consisted of these completely inadequate. three sentences: been two Black that advanced to the people “[T]here [have] where were on the point they at one time. Both of them were excluded panel the District by and it is were excluded Attorney, my position they because are black and I they for no other reason. would like make a under motion Wheeler on that basis.”
Thus, defendant relied solely on fact that the had chal prosecutor lenged the two only Black Defendant did not make prospective jurors. any circumstances, effort to set out the other relevant such as the prospective characteristics, dire, individual jurors’ the nature voir or prosecutor’s the prospective jurors’ answers A as limited as questions. showing court, defendant’s offers little practical assistance to the trial which must determine from “all the circumstances of the whether case” there is “a strong likelihood” that prospective jurors have challenged been because of their group (Wheeler, association rather than because of bias. any specific Cal.3d at p.
In view of meager defendant’s that this showing, People argue case is governed People (1982) by v. Rousseau Cal.App.3d 526 [179 Rousseau, Cal.Rptr. “exercised prosecutor peremptory 892]. two challenges against black jurors. trial court notice that these took judicial were the jurors only blacks on the panel. appellant’s attempt [the] satisfy facie required prima case was limited to his statement ‘there were two only blacks on the whole were both panel, they and ” challenged by the district attorney.’ (Id., 536.) at declined The trial court p. case, (Id., to find a facie and the affirmed. prima Court of Appeal 536-537.) pp. defendant’s to show a facie case was
Although clearly attempt prima we have inadequate, not limited our review such cases to counsel’s solely presentation at the time of the motion. other This is because circumstances might support finding of a facie case even a defendant’s prima though has showing been no more detailed than in the case before us. Nor should trial court blind itself to everything defense counsel’s except presentation. Indeed, we have emphasized rulings such trial to consider require judges “all the (Wheeler, circumstances of the case” 280) Cal.3d at and p. observation, call upon judges’ ‘“powers of their trial understanding of ” and their techniques, judicial (People broad experience.’ v. Bittaker 48 Cal.3d (Bittaker), 774 P.2d Cal.Rptr. [259 quoting 659] Wheeler, 281; Batson, supra, 22 Cal.3d at see also p. supra, 476 U.S. at 97p. case, 88].) L.Ed.2d at p. The trial judge this for example, obviously knew that defendant to the same belonged as the and group challenged jurors Wheeler, that his victims did (see not. these are Clearly relevant factors supra, 22 281), Cal.3d at p. were to the they apparent trial court even though defendant did not mention them his Wheeler during motion. reasons,
For these when a trial court denies a Wheeler motion without finding a prima facie case of bias the group reviewing court consid Bittaker, ers the entire 1092; record of voir dire. (E.g., supra, 48 Cal.3d at p. Sanders (Sanders).) fact, 561] As with other findings of we examine the record for evidence to support the trial court’s ruling. Because Wheeler motions call observations, trial upon judges’ personal we view their with rulings “consid erable deference” (Sanders, 501; Batson, on appeal. supra, 51 Cal.3d at cf. supra, 476 U.S. at 88p. L.Ed.2d at If the record “suggests grounds upon which the prosecutor might have reasonably challenged” the jurors in question, we (Bittaker, affirm. 48 Cal.3d at p. T,
Prospective juror “housewife,” Betty who described herself as a was a nonpracticing registered nurse with a degree She had sociology. lived in the county 20 years, was married to a physician, had grown her, children. At voir dire the asked prosecutor among other about her things, views on the death her penalty about medical training. Regarding latter, he explained to her that reason those questions “[t]he [he] ask[ed] sometimes we [was that] run into who jurors have a basic in an expertise area that might be tested in this trial.” Betty T. said she did “not think” that her training would be a problem. Defense did counsel not directly question Betty T. about her degree *22 but did ask how sociology she would consider
1156 evidence She answered regarding background defendant’s childhood. that she that such evidence was could be consid- thought “something that ered, but have She very it would to be believed that weighed carefully.” “other would evidence” also be important. Katie B. was a nurse’s aide the
Prospective juror completed who had 10th lived in grade. She had the for 39 married to a retired years, was county had gardener, Witherspoon/Witt (see no children. the voir dire During 1770]; Witherspoon (1968) v. Illinois 510 88 S.Ct. 391 U.S. L.Ed.2d Wainwright 844]) v. Witt 412 L.Ed.2d 105 S.Ct. 469 U.S. she answered the in the manner passively leading trial the judge’s questions Thus, her the indicated that questions suggested. brief to court she responses had no beliefs that would a vote for the death that she would prevent penalty, it, vote automatically weigh for or and that she would both against contrast, penalties before for one the other. her deciding subsequent or answers to defense counsel’s revealed nonsuggestive questions uncertainty. Asked about her on the death Katie B. re “personal feelings” penalty, sponded, even she the “I though just had the matter with trial court: explored have I never been confronted with question really this before so haven’t it Asked if “if thought over.” she would favor the death the situation penalty warranted,” know, circumstances, “If I responded: she I you know could better, understand it but now I don’t about it I right know so don’t anything know what say.” dire,
The trial who judge, presided good over entire voir was position to decide from all the there relevant circumstances4 whether was a that the “strong likelihood” had T. and Katie prosecutor challenged Betty B. of their solely (Wheeler, because group supra, association. Cal.3d at 280.) p. T.’s Betty professional training Katie B.’s uncertainty apparent about the death penalty “suggested] grounds which the upon prosecutor might have reasonably jurors (Bittaker, challenged” question. supra, Moreover, 1092.) Cal.3d at p. voir dire of two prosecutor’s prospec tive mentioned, which focused jurors, on the just matters not “desulto Wheeler, (Cf. ry.” 281.) p. Although at the removal of all members of a certain may give rise to an inference of group impro (id., priety 280), when the especially belongs defendant to the same group, (Sanders, inference is not conclusive. 51 Cal.3d at p.
Considering all of the (Wheeler, supra, relevant circumstances 280), Cal.3d at we cannot conclude from this record that trial court erred. that, argues 4Defendant that the relevant circumstances include the fact four and one-half case, years grounds after the trial this Wheeler Appeal the Court of reversed on an unrelated case v. Granillo prosecutor. tried later same (People by Cal.App.3d [prosecutor failed carry justification single juror].) his burden of 639] might even if a trial court properly prosecutor’s past determining consider a exists, whether a prima facie case obviously prosecutor’s a court cannot consider a future.
1157 Defendant also that the trial court “abdicated its duties” under argues by denying Wheeler the motion without to requiring prosecutor explain challenges. his the court had occasion to ask for explanations no unless and until it found a facie case of bias. This case is thus group prima 216, 477, (1987) unlike People v. Snow Cal.Rptr. 452], in P.2d which the that the trial serious judge “expressed suspicions some of his exclude Blacks” prosecutor using challenges peremptory further, 161, (1983) but went no v. Hall 35 Cal.3d 168 854], in Cal.Rptr. 672 P.2d which the trial com! asked the prosecutor his explain challenges but made no serious evaluate them. In attempt short, the trial court here did not find a facie case. simply prima Because decision, record of voir dire we supports reject defendant’s claim of error. Alleged gender
2. bias. before we heard Shortly argument case, this defendant asserted the new claim that the prosecutor challenged one prospective juror solely because of her We the claim gender. reject because it was not raised the trial (People Hayes court. 52 Cal.3d Cal.Rptr. (Hayes).) P.2d 376]
The prosecutor exercised 11 peremptory challenges, all to female prospec tive The jurors. as sworn included six female and six male jurors. Defendant did not assert gender bias as a ground for his Wheeler motion. Instead, he argued that two challenges were motivated racial bias solely by and that eight challenges were motivated solely by against bias persons to the opposed death We have penalty. discussed the already first argument. The trial court correctly rejected second argument because persons opposed to the death penalty do not make aup cognizable class for Wheeler (People purposes. Zimmerman 160-161 [202 After motion, the trial court denied the Wheeler the prosecutor submitted a declaration to explain reasons for challenging eight jurors whom defense counsel had described as opposed to the death penalty. prose- cutor stated that he V., had challenged one juror, prospective Lyn not because of her views on capital punishment but because she “was a seductive looking female who prosecutor] [the felt might distract the attention male jurors.” Defendant this statement “an interprets admission of purposeful gender discrimination.”
In Hayes, supra, 52 Cal.3d at we held page that a party may an challenge opponent’s use of peremptory challenges for the first time on appeal. Defendant suggests three reasons why this rule should not apply to his case. None is persuasive.
First, defendant mistakenly asserts that bias was not gender clearly recog- nized as an impermissible basis for the exclusion of until the jurors decision 1417, ((9th 1990) United States v. De Gross Cir. 913 F.2d petition en rehearing banc To the granted). contrary, whatever federal law have may trial, provided at the time of state law clearly permitted a defendant to Wheeler, challenge jurors exclusion of based on In 22 gender. supra, 258, Instead, we did not limit our claims of racial holding bias. we held that a claim of exclusion was whenever improper proper “the persons excluded are members of a within the cognizable group of the meaning Moreover, (Id., representative cross-section rule.” at p. our left opinion no reasonable doubt that women made aup cognizable for the group purposes rule representative cross-section because we relied expressly on opinions (See holding exactly Taylor (1975) that. v. Louisiana 419 U.S. 522, 690, 699-700, 692]; 533 L.Ed.2d [42 95 S.Ct. cf. Ballard v. United 187, 181, (1946) 184-185, 261], States 329 U.S. 191 L.Ed. 67 S.Ct. [91 680, 707, Glasser v. United States 315 U.S. L.Ed. 62 S.Ct. [86 Wheeler, 457]; all cited supra, 267-270.) Cal.3d at pp.
Next, defendant that it argues would have been futile at the time of trial to assert a claim based on the exclusion of a improper single juror. This may have been true under federal law because of Swain v. Alabama U.S. 202 L.Ed.2d 85 S.Ct. Swain created a presumption 824]. peremptory had been challenges exercised and defend- properly a permitted claim, ant to rebut the presumption, thus state a federal equal protection only by “showing] prosecutor’s systematic use of peremptory challenges . . . over a period time” rather than just (Id., case. at single pp. 773-774, L.Ed.2d at pp. The federal courts did not abandon the Swain rule until long after the (Batson, trial this case. supra, 476 U.S. However, 93-98 pp. 85-89].) L.Ed.2d at pp. we had already rejected Swain as a matter of state law and held that a trial court must strike the jury if “any of the questioned could not be peremptory challenges” justified. (Wheeler, 282, 283-287, supra, 22 Cal.3d at added.) pp. italics
Finally, defendant argues that the prosecutor’s decision to volunteer rea- sons for challenging Ms. V. makes the issue on cognizable appeal despite Hayes (supra, 52 605). Cal.3d at p. the federal case on which defendant relies does not support (10th Andrews Deland proposition. v. 1991) Cir. 943 F.2d the Tenth Circuit held that the merely Swain (i.e., presumption that peremptory exercised) have challenges been properly Thus, does not apply when a prosecutor volunteers explanations.5 even under Swain a prosecutor who offered voluntarily explanations authorized thereby Swain, Alabama, 5The Tenth Circuit applied supra, 380 U.S. than Batson rather supra, 476 U.S. because the latter does not apply retroactively on collateral review. the trial showing court to into their without inquire validity requiring Deland, (Andrews supra, systematic discrimination over a of time. period 1178-1179.) 943 F.2d at pp. Swain as a matter of state law we at the time rejected
Because had already Wheeler, (see 283-287), of defendant’s trial Cal.3d at pp. because Wheeler authorized trial courts to into the expressly inquire validity Deland, (ibid.), *25 Andrews of particular has no peremptory challenges Moreover, on this in bearing case. the Tenth Circuit’s nothing opinion that a suggests prosecutor’s decision to volunteer excuses a explanations defendant from the in ordinary obligation to raise claims of error the trial below, court. Because defendant did not raise the claim (Hayes, it is waived. supra, 605.) 52 Cal.3d at p. Representation/Ineffective Cross-sectional Assistance Claim.
B. Defendant next argues that the venire did fairly not the represent Hispanic of Tulare He population attributes the County. alleged underrepre sentation to the trial court’s having excused a of large number prospective jurors for hardship. Defendant waived this claim to raise the by failing point Proc., 225, (Code 1060, below. Civ. (a)(1); subd. see former repealed by § § 1988, 1245, 21, Stats. ch. 4155.) p. For of the defendant purposes appeal, § has restated the claim as one of ineffective assistance based on counsel’s failure to the challenge panel. such a would have challenge been meritorious. Constitutions,
Under the federal and state
a criminal defendant
is
entitled to a jury drawn from a representative cross-section of the commu
Const.,
(U.S.
VI;
nity.
Const.,
I,
16;
Amend.
Duren v. Missouri
Cal.
art.
§
(1979)
579, 583-589,
439 U.S.
358-367
L.Ed.2d
99 S.Ct.
[58
664]
(Duren);
v. Harris
(1984)
36 Cal.3d
48-49
Cal.Rptr.
[201
(Harris).)
coextensive,
433]
federal and state guarantees are
and the analyses
502, 525,
are identical. (People
v. Bell
(1989)
fn.
Harris,
10
(Bell);
778
supra,
[262
P.2d
e.g.,
129]
We need not dwell on the first two of the Duren test. parts Hispanic (Harris, supra, 51), make a distinctive Cal.3d at persons up group sake, we shall assume for without that the argument’s point, deciding alleged According to cen underrepresentation Hispanics significant. data, sus made of the of Tulare Hispanics up 24.8 adult percent population An examination of surnames indicates that made 15.8 County.6 up Hispanics percent jury granted venire 9.6 after court percent pool excuses hardship.7 test,
To third Duren a defendant must show satisfy part that the claimed was “due underrepresentation exclusion of the systematic (Duren, group selection U.S. at process.” p. 364 L.Ed.2d A at defendant this with carry nothing cannot burden more must, addition, than statistical evidence of a One show that the disparity. disparity is the result of an feature of the jury-selection process. improper (Bell, supra, 528-529.) *26 pp.
Defendant to find an in the court’s treatment attempts impropriety of the venirepersons’ claims.8 defendant asserts that hardship Specifically, the trial court a in excusing more lenient standard than applied Hispanics The assertion is While non-Hispanics. critical his an abuse of argument. discretion granting hardship might, theory, excuses for the “upset (Wheeler, balance of the 22 demographic 273), venire” Cal.3d at p. defendant demonstrate cannot exclusion based the even systematic upon criterion, handed (Bell, of a neutral application hardship. such as 49 530.) at p. fact, the does record not defendant’s of support impropriety assertion or abuse of discretion. court evaluated claims of hardship, including instances, by Hispanics. Of these many defendant has identified three in only which he the court believes more lenient standard to applied Hispanics than to Of the three non-Hispanics. Hispanic whose excusal venirepersons defendant now one that questions, jury service would her thought prevent from son being one’s had doctor’s and one paid, said multiple appointments, judicial 6Defendant’s for motion notice of results of the census granted. the federal Code, 452, (See 87, (c) (h); People Evid. subds. & v. Williams 64 Cal. P. § 91 [27 Cardoza, Ribiero, (Patricia pool Pedro) 7Three the members of Eleanor and Frank have apparently Hispanic Spanish surnames that are not in the Census List of included Surnames. persons, up If one includes these made of Hispanics percent 16.4 the venire and percent 12.0 of the pool. 8AIthough percentage the did Hispanics general population in the not match the venire, percentage in the defendant attempted disparity has not to show that this resulted from any improper practice. compares from Defendant off work. would hard to take the time that it be Of did excuse. whom court not non-Hispanic jurors with three these one these, began, the trial would end before one a vacation that planned declined the court’s not but might paid apparently that she be speculated one claimed her matter with employer, invitation to pursue herself, but not for for her employer would be hardship service on jury these Nothing about would not be job jeopardy. her and income since abuse of discretion. suggests an ordinary, which rulings, appear quite 1059, former section as one under Defendant also restates contention jury challenge him to permitted at the time of trial would have which in respect on from the forms departure prescribed based “a material panel (See by repealed and return of the . . . .” former drawing § 1245, 20, challenge did 4155.) Because defendant Stats. ch. § court, as one ineffective he the claim again the trial panel presents 1059, defendant claim within section assistance of counsel. To fit the evaluating for trial court’s lenient standard apparently characterizes the Procedure, which Code Civil as a violation of the hardship claims (Code “undue eligible only hardship.” authorizes excuse of persons Proc., 200, Proc., 204, (b); by Code repealed Civ. subd. see former Civ. § § argues, citing Stats. ch. Defendant § 904], 298-299 Cal.App.3d Buford be as undue did not intend financial cost” treated Legislature every “that hardship. *27 excuses
It is true the trial court an number of large that granted unusually do not hardship. for The court 7 364 We disapproved only requests. (See Thompson (1990) 50 necessarily practices. People of such v. approve 134, Nevertheless, 309, 857].) assuming Cal.Rptr. 158 785 P.2d [266 statutory for that the from the argument’s thereby sake court deviated selection, such a constitutes reversible procedures governing jury deviation 367, if in error v. 52 Cal.3d only (People Wright it results prejudice. 731, 221]; 54 Langdon (1976) 802 398 P.2d Cal.Rptr. [276 defendant Cal.App.3d To show Cal.Rptr. prejudice, his effect that excuses for uncon- merely repeats argument hardship to the claim, already reduced This as we have stitutionally Hispanic representation. merit. explained, lacks
C. Claim Incompetence. Mental by two
Defendant contends the trial court erred on occasions (See ordering, sua a his to stand trial. sponte, hearing on competence 836]; Pate v. S.Ct. Robinson U.S. L.Ed.2d People Pennington (1967) in (Pennington); see also the incidents
942] §§ did not raise a reasonable mental question doubt about his competence, the contention thus lacks merit.
Defendant claims the court should first have ordered a hearing, sua sponte, on the occasion of his motion for a continuance. Five before days selection was begin, to defense counsel informed the that defendant court uveitis, from an suffering inflammation of the and could not see eyes, well. Defendant also suffered from other reportedly physical ailments such headaches, dizziness, and tiredness. Defendant’s testified ophthalmologist that uveitis was a usually of a more serious disease and that symptom defendant needed tests and The treatment. ophthalmologist thought defendant’s other ailments have been due might to over his medical anxiety condition. Counsel moved for a continuance because he feared that defend- ant’s condition would him from prevent effectively participating defense. At the conclusion of the the trial court continued the trial hearing, three approximately months. Neither defense counsel nor else anyone suggested that defendant was mentally defendant incompetent. Apparently treatment; received appropriate no further about his medical complaint condition appears record.
Defendant argues also that the court should have ordered a competence sua on the hearing, sponte, occasion of his motion for a mistrial or change venue. motion was based on harassment apparent by jail personnel during jury-selection the Tulare phase. Deputy assigned sheriffs refused, order, County jail had sometimes a court a law despite permit clerk on the defense team to consult with defendant room. On private other occasions had deputies defendant a crowded kept unnecessarily tank holding after court recessed rather him immediately than returning cell. regular As result of these incidents defendant believed he that was motion, “being punished by staff at the At the jail.” hearing on defense counsel added that defendant was with counsel over the “angry” jail situation, agitated” “so that counsel him hardly “could control at several *28 points,” and “so what is emotionally upset by going on treatment [the] that he is that he is not receiving able to in his really effectively participate trial.” Counsel also asserted that his own to conduct voir dire was ability being defendant’s impaired by with conditions.9 The trial preoccupation jail court denied the motions for mistrial and venue made change of but addi- tional orders regarding defendant’s confinement. Once there was again, no that suggestion defendant was mentally incompetent. 9Defense counsel claims that he also day unreported raised the matter the next at an bench record, hearing
conference. After a to settle the itself the trial court declared “unable to make a special finding” on accuracy (See post.) the et p. seq. counsel’s 1164 For the recollection. argument sake of we assume that counsel’s is accurate. recollection
1163 A are well settled. to defendant’s claim The that apply principles if sponte sua hearing, a competence conduct required trial court is to incompetence. of mental is evidence whenever there substantial necessary, 518; (1982) 32 v. p. 66 Cal.2d at Stankewitz (Pennington, 476]; also see 23 A.L.R.4th Cal.3d Cal.Rptr. Robinson, 822].) Substan L.Ed.2d at 383 U.S. at Pate on a reasonable doubt evidence that raises tial evidence for these is purposes 1115, 1152 (People the Jones issue. (Jones).) P.2d 757] us, say the before we cannot record
Applying principles these doubt as to the evidence raised a reasonable as matter of law that “if, as mentally mental A defendant incompetent defendant’s competence. disability, defendant is developmental mental or the result disorder or to assist unable understand the nature of the criminal proceedings (§ in italics counsel in the conduct of a defense a rational manner.” added.) The motion for a continuance circumstances defendant’s underlying attention, his he and those motion underlying indicated that needed medical were for a the of his confinement unsatis mistrial indicated that conditions he factory. remotely suggested about either incident nothing Thus, to order a mentally the court was incompetent. required hearing. in
Later defense expressly questioned counsel proceedings, client’s at the close of the competence. During phase, People’s penalty case in he did aggravation, defendant decided that not want counsel in to the present mitigating explained evidence.10 Counsel matter court these life argue words: still does not want me to imprison “[Defendant] ment, nor evidence in And he—he wants death present any mitigation. testifies, If he so. are penalty. were to he would tell the We testify jury still He’s me that he wants disagreement on matter. told fact nothing to do tank more with the or the He to sit judge. prefers while the was to client’s desire as penalty Viewing his phase [proceed].” incompetence, competence evidence of asked the to conduct a counsel court hearing. court declined.11
Under section if “a arises mind of as to the judge” doubt in the defendant’s mental “state that doubt judge must competence, mitigation arguments desire a case in are present “Other related to defendant’s not to (See p. seq., discussed below. et post.) *29 prosecutor the present mitigating 11Defendant reiterated his desire not to evidence after closing argument. explained finished his to court that he had been “railroaded” Defendant the “get to higher get wanted to the courts and on here.” out of 1368, (§ subd. record” and solicit defense counsel’s on the matter. opinion case, (a).) In the he believes the such a counsel informs court that “[i]f a defendant is or be the court must order may mentally incompetent,” 1368, a (§ (b).) subd. Because the court this case did not declare hearing. doubt, the based hearing section 1368 did not court to conduct a require on counsel’s solely opinion.
This not to that counsel’s had no To the say opinion importance. is the court must order a whenever there is substantial contrary, hearing (Pennington, supra, 518), whatever incompetence at p. evidence of 66 Cal.2d 162, 103, (1975) (Drope the source v. Missouri 420 U.S. L.Ed.2d 118, In 896]). 95 S.Ct. this decision the court must consider all of making (ibid.), the relevant circumstances opinion undoubtedly counsel’s However, relevant. counsel’s was that his client’s opinion apparent prefer itself, ence for the death constituted substantial evidence of penalty, by The (People mental court that incompetence. correctly rejected position. 915, (1988) 45 Cal.3d 963-965 Cal.Rptr. Guzman circumstances, All of the other relevant defendant’s over including anxiety conditions, his did and his over ophthalmological problem anger jail a different The had that these other compel result. court no reason to believe circumstances were due to mental rather than to the incompetence specific of which defendant had problems complained.12 Unreported D. Conferences.
The record this case not include three bench stenographic does conferences and one conference in judge chambers. the trial Although record, conducted a hearing to settle he declared himself unable to make findings on matter for lack of an recollection of the unre independent ported Defendant contends proceedings. that omissions from record require judgment to be reversed. General opposition, Attorney argues defendant waived the to at the point by failing request reporter waiver, We proceedings question. reject contention not because of a but because defendant has not shown that the were omissions prejudicial. trial this took place place before the enactment of section 190.9 (added by 4994), Stats. ch. all which requires § 12Defendant restates his claim as one based on the appoint trial court’s failure psychiatric expert investigate competence (People Cal.App.3d v. Campbell Code, 214]; 730) right see also Evid. to be and on a denial of his § mentally (In present 657]). at trial re Dennis P.2d 671-672 [335 these alternative formulations do not lead to Absent a a different conclusion. reasonable doubt competence, obligation as to defendant’s mental no trial court had pursue (Jones, 1152; the matter further. Campbell, Cal.3d at p. cf. Cal.App.3d *30 Regardless in be transcribed. cases capital proceedings mean that is to permit is to a record adequate a defendant entitled section (1988) 201 57 [248 Moore (People Cal.App.3d review. ingful appellate in However, that deficiencies defendant’s burden show it is in Chessman are As we said prejudicial. the record 1084], “[i]nconsequential A.L.R.2d P.2d if in truth prejudice party; in a record cannot inaccuracies or omissions omission, the appellant or inaccuracy there does exist some consequential is The Penal Code (Ibid.) it consequential.” must show what is it is why must give judgment effect: “After court hearing appeal, to the same defects, or to which do without to technical errors or regard exceptions, 1258; (§ also rights affect the substantial of the see parties.” §§ The are not the record prejudicial omissions this case because ad defendant to each of the adequate permit argue points purportedly first in the have mentioned the unreported already dressed conferences. We conference, claims to such which Counsel during jury occurred selection. emotionally have informed the court that defendant was conference over conditions defendant’s upset County jail preoc the Tulare and that with the matter voir dire. cupation was counsel’s to conduct impairing ability (See defendant’s ante.) fn. Counsel that he asserted argues constitutional to be at trial in the right mentally present only unreported On the we do not read the record proceeding. grudgingly. so jail counsel the record that at the preceding day, argued on harassment trial, with this “interfering mental state approach [defendant’s] merit which is effect him a fair claim lacks really trial.” While the denying (see ante), 1161 et seq., sufficiently preserved it is clear that counsel for point appellate review.
The same is true of each remaining unreported conferences. conference, second claims that under Evidence defense counsel he moved 352 to Code section strike Albert Fried about his mother’s testimony by conference, after In the physical appearance she was attacked. third counsel claims to have the same statute cross- objected under to the prosecutor’s examination of defendant about defendant’s he had once sold statement that stolen coins to a “fence.” Each these record. objections on the appears Thus, the record is adequate to review even defendant has not permit though conference, renewed claims on In the moved in fourth counsel appeal. limine to restrict cross-examination of a witness for the proposed expert defense. in defendant’s expert, psychiatrist, was aware of matters criminal record that the court had decided not to as circumstances admit aggravation. Counsel asked the on such court to bar cross-examination matters, Here, too, but the court denied the adequate motion. record is
1166 1183, 21, (see post) review fn. because the court and counsel later the summarized conference on the record. unreported that, omissions, Defendant argues also view of the the transcript’s However, United States Constitution the to be reversed. requires judgment (See there is no federal that all be transcribed. requirement proceedings 279, Amend.]; (4th 1982) Adkins v. Bordenkircher Cir. 674 F.2d 283 [14th 397, 402-404, Stephens (5th 1980) v. Zant Cir. 631 F.2d den. and rehg. opn. 446, 480, (1981) mod. 648 F.2d 454 cert. den. U.S. 1035 L.Ed.2d 102 [70 Amendment, Amend.].) S.Ct. Under the Fourteenth the record of 575] [8th must be sufficient to proceedings permit adequate and effective appellate 891, 899, 12, (Griffin review. v. Illinois 351 U.S. L.Ed. 1055]; Draper Washington (1963) S.Ct. 55 A.L.R.2d v. 372 U.S. 899, 905-907, 774].) L.Ed. 2d 496-499 83 S.Ct. Under the Eighth Amendment, the record must be sufficient to ensure there is no substan- that Zant, tial risk the death (Stephens sentence has been arbitrarily imposed. 402-404; 1986) pp. Kemp (11th 631 F.2d at see also Dobbs Cir. 1499, 1514.) F.2d The record in this case meets these standards. Change
E. Motion to Venue. Defendant moved before trial venue on the change ground news of the Fried coverage killing would make it difficult to obtain a fair trial. The trial court denied the On motion. defendant that the appeal, urges court erred and that the failure to venue caused actual change prejudice. matter,
As a we preliminary reject People’s contention that defendant has waived this claim. Because the trial court denied initially motion without prejudice, defendant needed to renew it at the close of voir dire in order to preserve (People issue for v. Hoover appeal. 1074,1085 fact, 203].) In Cal.App.3d defendant did renew his Cal.Rptr. dire, motion on the final of voir day a few hours before the was sworn. defendant, motion, People argue renewing emphasized at the problems jail (See rather than the extent of pretrial publicity. ante.) the record does not demonstrate that the conclusively renewed motion was intended or understood as limited to that ground. Therefore, this issue cannot be resolved on properly theory procedural default.13
Under section the trial court change must motion to grant venue if “there is a reasonable likelihood that trial cannot a fair and impartial preserved 13Because the claim of error has been to consider appeal, is no need there defendant’s argument alternative that a failure to preserve amounted to would have claim ineffective assistance. determination, considers “the a court this in the county.” making be had offense, news coverage, extent of the nature and gravity nature and the community, the defendant the status of community, the size of the (1981) 28 Harris (People v. of the victim.” popularity prominence P.2d 948 [171 *32 serious. How case obviously The in this were offenses charged ever, factor adds While this a serious charge. case involves every capital venue, change. in itself a require it does not weight change to a motion to 90, 771, P.2d 53 809 (People Cooper (1991) Cal.Rptr. Cal.3d 806 [281 v. 334, 53 360 Cal.Rptr. Cal.3d (Cooper); People Jennings 865] (Jennings)) P.2d 1009] in also favor of weighed his as a nonresident Defendant claims that status victims, because, it him in with resident cast venue changing comparison status, however, is of in little an unfavorable This about light.14 argument or his victims there no indication that either defendant weight because is in his race argues gave were Defendant also that community. prominent him The 1980 census describes community. an unfavorable status Black. percent Hilare as 77 White and County’s population percent adult However, questioned prospective both the trial court and defense counsel bias, for cause juror about racial and the court excused a jurors prospective below, here, on did does argue argue that basis. Defendant not and not excused any jurors of the or alternates sworn should also have been actually for racial bias.
The of we not a County, recognized size Tulare which have small does of of venue. community, weigh substantially change favor (People (1989) 48 Cal.Rptr. v. Hamilton 1158-1159 [259 trial, 253,000 (Hamilton).) time of With inhabitants at the 730] Hilare County ranked 20th California’s 58 counties among population. (Ibid.; see also Cal.App.3d Whalen 716 [109 observed, we have most recent successful As previously venue substantially motions have involved communities with smaller popu- Hamilton, (See therein.) lations. Cal.3d at cited cases short, basis, motion, In of asserted gravamen defendant’s as well as its motion, was the extent defendant publicity. pretrial support showed that the media the crimes at significant local had attention to given the time of their in the had commission and months Newspapers before trial. half had an aider and reported defendant’s brother been found guilty involving makes claim prosecutorial penalty phase. 14Defendant a related argument at the (Seep. post.) abettor after defendant as the actual implicating killer. Defendant also presented survey community large on the question exposure pretrial publicity. to the defense According expert who conducted the survey results, its interpreted “6.7% of the 120 respondents interviewed had defendants; However, knowledge of the another 7.5% were not sure. when case, given more (or 33.3%) details about the incident of the Frieds’ remembered the occurrence.” Defendant with supplemented showing this questionnaires submitted to 168 of the who had been prospective jurors these, excused for Of hardship. 60 had heard of the Fried killing. trial,
only 20 had heard that defendant was to stand heard of 10 had only the trial of defendant’s half brother. remainder checked a labelled box “not sure” or chose not to respond.
Defendant argues that the results of these surveys weighed heavily *33 However, favor of changing venue. degree of that exposure publicity defendant claims was far lower than in in other cases which a of change (See, venue was not required. e.g., Jennings, supra, 53 Cal.3d at pp. 359-363 crime, percent sample recalled the and 31 believed the district percent defendant]; had People attorney case v. Coleman very strong against (1989) 48 Cal.3d (Coleman) 768 P.2d 32] [46.3 crime, recalled percent and 31.4 the defendant percent thought definitely or probably guilty].)
Although defendant predicted in limine that pretrial would publicity trial, affect his to obtain ability a fair on we must consider that appeal forecast “in conjunction with the actual (Coleman, selection of the jury.” supra, 135.) 48 Cal .3d at p. This is because review of an order posttrial Thus, denying motion to venue change is even if retrospective. a trial court venue, were in to err denying a motion to change of error would showing in itself reversal justify on The defendant appeal. must also demonstrate that, trial, in view of what actually occurred at it is that a reasonably likely fair trial (People was not fact Edwards had. v. (Edwards); Cooper, supra, Cal.Rptr.2d see also 436] Harris, 805-806;
Cal.3d at pp. People supra, 949.) 28 Cal.3d at p. The jurors alternates sworn to the case stated that try they could and would decide it based on the impartially, evidence presented results, court. In view of the survey defendant that we argues should view sure, such statements with skepticism. To be the jurors’ assertions of impar tiality do not establish automatically that defendant received a fair trial. However, a review of the entire record of voir dire still may demonstrate that (Coleman, pretrial had publicity no prejudicial effect. 48 Cal.3d at p. 135; 360-361; see also Jennings, supra, Harris, Cal.3d at pp. 28 Cal.3d at p. assessing helpful dire case is particularly record voir this the matter of pretrial thoroughly trial court explored because the
prejudice who significant those had and excused juror with each prospective publicity addition, the court’s questions supplemented defense counsel exposure. this on questioning Defendant now counsel’s argues with own. coverage of thorough the court’s was ineffective. subject Moreover, did ask additional counsel left little for counsel to do. matter juror’s prospective responses whenever a publicity about questions to further inquiry. be might point that there some questions suggested court’s alter- two and two jurors the voir dire testimony Defendant interprets As to all news about case. exposure some indicating reports nates alternate, however, defen- necessarily one the record does not support but Main, he had or heard Juror asked whether read interpretation. dant’s I see “There are that hear and killing, many testified: so about anything Warren, asked I Juror particularly.” on television that don’t recall that one “It he accomplice, whether heard about the trial of defendant’s testified: had familiar, like I know the connec- seems the name Malone but don’t what testimony recall Hubler’s tion is.” Warren did not Alternate any publicity. similar: “I them and Malone’s have heard about probably [defendant’s news, I I remembered.” on the but it is that dwelled on or nothing trials] alternates, jurors Hubler did not recall the case. Of all the anything about *34 She alternate the Fried only clearly killing. Babb remembered about hearing the had read a had been and elderly that “an robbed newspaper couple man had been did not about killed.” Babb remember else anything the case and had no defendant’s opinion guilt on or innocence. dire of voir demonstrated the about the summary, following impact had
pretrial publicity jury: jurors on Ten of the and one of alternates no recollection whatever of There the barest of was publicity. possibility Hubler, for jurors Warren and Main and but remem- exposure alternate none bered about the Alternate Babb had heard about the crime but anything case. remembered other an had been robbed and nothing than that elderly couple man juror. killed. Neither of was called to serve as a upon alternates record,
On this we cannot hold that there a reasonable likelihood did defendant not have a fair recollections Vague trial. impartial Indeed, news a of a few do not of venue. reports by jurors compel change greater necessarily much of degree exposure pretrial would not publicity compelled change. have the court to recognized, order As courts have “ is not . . be facts and jurors . that the required totally ignorant ‘[i]t swift, issues In these of days involved. methods and diverse widespread communication, an can be important case interest expected to arouse the public vicinity, scarcely any of those best to serve as qualified jurors will not have formed some or of the merits of the impression opinion case. . It is if . . sufficient can aside his or juror lay impression opinion ” (People render a verdict based on the evidence in court.’ presented Hams, 949-950, 28 Cal.3d at Irvin v. Dowd pp. quoting 751, 755-756, U.S. 722-723 L.Ed.2d 81 S.Ct.
Under the effect on the guidelines, publicity these of pretrial in this case an insignificant. jurors Not did the and alternates lack only “ ” Harris, ‘impression (People or of the merits of the case’ opinion 950), 28 Cal.3d at all but one alternate lacked any pertinent knowledge. Thus, the results of voir dire do not indicate a reasonable likelihood that defendant did in fact receive a fair trial. Because defendant has offered conclusion, no substantial reason to we that the reject doubt this his claim trial court’s failure to venue change judgment. reversal of the requires
F. Denial Continuance. by
Defendant that the trial court abused its discretion argues denying his for a continuance at the conclusion of the request guilt phase. Defendant wished to locate an witness and to his case-in-chief expert reopen for the expert’s one could be found. The lacks testimony, assuming argument merit because defendant did not show cause for a continuance. good arrested, white,
At the time defendant was there was a of black and pair wing shoes his car. Five witnesses had tip seen defendant with such shoes. case-in-chief, During the People’s two and a criminalist testified pathologists that a curlicue pattern of bruises on the deceased victim’s face and neck could have been made by shoes’ decorative While the perforations. bruises reflected the shoes’ exact pattern, no could attribute expert positively *35 decedent’s bruises the to shoes. Defense counsel’s cross-examina- particular addition, tion the emphasized experts’ defendant testified that uncertainty. the were shoes not his. The rebutted defendant’s People testimony by officers, officers. the defendant recalling arresting According to was not shoes when him him wearing they get and asked to out of his car. stopped hot, Because the sidewalk was defendant asked an officer to retrieve his shoes from the back seat of his car. Those shoes were the shoes in evidence. rebuttal,
After the its the defense prosecution completed requested permis- sion to its case-in-chief for reopen expert testimony about the connection between decedent’s and the injuries shoes. Based on counsel’s representation time,” he that was a expecting witness to arrive “at the court any recessed later, however, instead of with A few beginning closing hours argument. call he had wished to the pathologist the court that defense counsel informed efforts to locate and that behalf’ on testify was “unable to [defendant’s] in delay presenting account for successful. To had not been substitute decision “a tactical he had made explained counsel testimony, such had because counsel call an expert in chief’ not to defense case during However, did rebuttal. require not testimony felt the expert prosecution’s mind. Counsel change counsel to had caused testimony officer’s rebuttal that it noting the request, The court denied a 24-hour continuance. requested avail- witness’s the purported misled about unintentionally have been might was, fact, call. no witness to and that there ability traditionally trial during The or denial of a continuance granting (1972) (People v. Laursen judge. of the trial rests within sound discretion 1145]; v. see also 501 P.2d Cal.3d Cal.Rptr. 755 P.2d Cal.Rptr. Grant 45 Cal.3d 844 [248 continuance, defendant had the burden To establish cause for good secure the witness’s due diligence that he had exercised showing attendance, not material and testimony was that the witness’s expected time, cumulative, within a reasonable that the could be obtained testimony be could otherwise testify and that the facts to which witness would 250-251 (Owens Superior Court proven. 1098]; 1050.) see also § standard, Under establish cause good this defendant’s attempt First, that any expert defendant did not show inadequate respects. two within a testimony existed who able offer material willing would be Court, 250- (See Superior pp. time. reasonable Owens Instead, while of further delay defendant could offer the only prospect Second, an securing expert he had not diligent searched. defense been (See ibid.) People’s been aware of witness’s attendance. defense had after those days and had had an additional ten since before trial experts The decision expert. testified to decide whether to a rebuttal experts present testimony further avoiding expert not to do so achieved the tactical benefit of death—testimony to the Fried had kicked to effect that Mr. been that the argues Defendant understandably defendant could wish to avoid. that com- officers’ amounted to a circumstances police testimony change testimony a reevaluation of counsel’s the officers’ pelled decision. shoes; no on the solely bearing dealt with the issue of who owned the it had *36 we cannot matter of On subject testimony. showing, this weak expert conclude that the trial ruling court’s was an abuse of discretion.
Nor did the court’s federal constitutional ruling deny defendant every to due denial of a rights process not compulsory process. “[I]t 1172 if fails to offer even the party more time that violates due process
request (Ungar without counsel.” evidence or is to defend compelled Sarafite Instead, 921, 931, 575, 841].) (1964) 84 S.Ct. 376 U.S. 589 L.Ed.2d [11 case, in every in the circumstances present answer must be found “[t]he the request trial at the time judge the reasons to the particularly presented case, 589, 931-932].) In this (Id., at pp. is denied.” at 591 L.Ed.2d pp. [11 an securing expert he diligent defendant could not show that had been attendance, within a reasonable a substitute would be available witness’s found, time, witness, some say one could be would assuming or that any circumstances, “[g]iv- Under these material and to the defense. thing helpful denial or to the judge regard en the deference due a state trial necessarily continuances,” a claim of the court’s does not ruling support granting (See 376 U.S. Ungar Sarafite, supra, under error the federal Constitution. 932]; (5th 1981) 633 Wainwright Cir. L.Ed.2d at cf. Hicks v. [11 1146, 1149.) F.2d Error.
G. Instructional instructed the Aiding Abetting. 1. on The trial court Instructions because there was of an aider and abettor jury regarding liability Frieds’ Ernie defendant into the accompanied evidence to show that Malone Malone, defendant, Mrs. Fried. We home and that rather than attacked defective held here are subsequently type given that instructions of the because do and abettor must share not that an aider they explain commit, unlawful or intend to or facilitate principal’s encourage, purpose (People (1984) crime. v. Beeman 560-561 Cal.Rptr. 1318].) errors, concede argues People Defendant that these which brief, their murder and us to reverse his convictions for require attempting to commit Fried. Defendant theorizes that the attempting mayhem Mrs. upon him crimes instructions would have to find of these permitted guilty if even Malone had if he Malone’s committed them and even had shared case, intent. Under the circumstances of this the claim has merit. We hold instructional error such as this to be harmless when ordinarily factual of intent defendant question adversely resolved necessarily other, (See, under People instructions. v. Allison properly given e.g., 1294]; 48 Cal.3d P.2d v. Sedeno Cal.Rptr. Indeed, 913].) in this P.2d case the jury bodily found that defendant inflicted expressly personally great 1203.075, 12022.7; (See on injury Mrs. Fried. see also 1203.09 § § [inflic tion of great age on victim over the bodily injury finding While that
1173 defendant the would an inference that the found to be normally support jury (cf. (1988) in the Fried Adcox 47 against People crimes Mrs. v. principal 207, 55, (Adcox)), 247 763 P.2d the Cal.Rptr. People [253 906] conceded at oral that the evidence was insufficient to argument support finding. concessions their brief and at oral leave no basis People’s argument
on which we can determine did not beyond jury a reasonable doubt that the (Chapman base its verdict on the erroneous aiding-and-abetting instructions. 18, 824, 705, 710-711, (1967) v. 24 386 U.S. L.Ed.2d 87 S.Ct. [17 California 26, 1065]; (1988) A.L.R.3d People Dyer 45 Cal.3d Cal.Rptr. [246 209, 1].) 753 P.2d we Accordingly, shall reverse the convictions for at- murder tempted as well as the attempted mayhem, findings related under 1203.075, 1203.09, sections and 12022.7.15 2. Lack Accomplice Testimony. Instructions on Defendant
submitted
instructions
proposed
and effect of
regarding
weight
accom
3.10, 3.11, 3.12,
(CALJIC
plice testimony.
3.18.)
Nos.
The court did not give
instructions,
but the record does not show whether
were withdrawn
they
or refused. Defendant claims on
that the
were
appeal
instructions
necessi
tated
by
testimony
Denise Devine.
the record does not
indicate that defendant made such
an
the trial
argument
court.
event,
any
claim of instructional error lacks
An
merit.
accomplice
for these purposes is “one who is liable to
for the
prosecution
identical
offense charged against the
(§ 1111.)
defendant.
. . .”
bare
Only through
speculation could the
have
jury
concluded that Devine was
guilty
charged offenses as an accomplice. Although
attended the
many people
party
at Eddie
occurred,
Franks’s house on the
night
crimes
no witness
testified that
Malone,
Devine left the house with defendant and Ernie
Malone,
known perpetrators.
Devine’s
came to her
boyfriend,
house the next
with
morning
items stolen from the Frieds. Devine counted some
hid
money,
a purse, and
helped
dispose of stolen identification and credit cards. This
evidence, however, would at most have made her an
after the
accessory
fact.
Mere accessories are not accomplices under section
(People
1111.
v. Daniels
815,
(1991)
122,
52 Cal.3d
Cal.Rptr.
(Daniels);
Defendant also argues that Devine was an accomplice based on a tape- recorded statement Fried by Mrs. to the effect that an unidentified Black murder, 15Because we must reverse the conviction for attempted there is no need to discuss murder, effect of the instructions on attempted People which were erroneous under Lee 43 Cal.3d Cal.Rptr. 752], 670-671 [238 P.2d v. Ratliff 665], 695-696 P.2d *38 1174
woman was her on the night house of the crimes and on fact that at some police had arrested Devine point or threatened her with arrest. However, neither the prosecution nor the defense moved at trial to have Mrs. reason, Fried’s statement admitted into argu- evidence. For this defendant’s ment that the Sixth Amendment to the United States Constitution entitled him to introduce the statement is irrelevant. did hear that Devine jury arrest, had been threatened with but it could her have found properly be an based on accomplice speculation about the reasons for conduct. police law, if
Even Devine was not an as a matter of defendant accomplice that the court argues should nevertheless have submitted issue to the jury based on the evidence presented trial. It is true that a witness’s status is a for the if there question is a genuine evidentiary dispute if “the jury could reasonably from the evidence” that the an witness is [find] 875, 672, (People accomplice. (1974) v. Hoover 12 Cal.3d 880 Cal.Rptr. [117 Daniels, 760]; 867; 528 P.2d see also 52 Cal.3d at v. Gordon p. 460, (1973) 906, 10 Cal.3d 468-469 Cal.Rptr. 516 P.2d [110 case, however, In this there was insufficient evidence to support inference that Devine shared defendant’s criminal or intended to purpose commit, facilitate, (Beeman, supra, or the crime. encourage 35 Cal.3d at Therefore, 560-561.) pp. (Daniels, was a matter law 52 question 867; Hoover, Cal.3d at supra, 12 880), Cal.3d at and the did not court err in failing give the proposed instructions.16
H. YurkoError. trial,
Before
defendant admitted the
that he had
special allegation
served a prison term for
within
burglary
five
Based on
preceding
years.
admission,
this
the trial court enhanced his sentence for the noncapital
667.5,
crimes by
(See
one year.
(b).)
subd.
§
Defendant now contends that
the special finding must be reversed because the trial court
accepted
him,
record,
admission without first advising
expressly and on the
privilege against
(See
(1974)
self-incrimination.
In re Yurko
863-864
(Yurko).)
P.2d
Cal.Rptr.
561]
erred,
While the trial court clearly
parties disagree on
standard
applicable
of review. Defendant
that Yurkoerror
argues
involving
Boykin/Tahl
(see
admonitions
Boykin
(1969)
v. Alabama
We
federal
based our decision Yurkoon the
of
expressly
interpretations
Yurko,
(See
law set
in Boykin
out
and Tahl.
10 Cal.3d at p.
However, the
of
no
overwhelming weight
authority
longer supports
that the federal
when the trial
proposition
Constitution
reversal
requires
court has failed
give
Boykin
admonitions on each of the so-called
explicit
rights.
we have
“The
Accordingly,
holdings.
no choice but to revisit our prior
of an effective waiver of a federal
question
constitutional
a
right
proceed-
is of course
ing
governed by
(Boykin, supra,
federal standards.”
As discussed we now hold that involving Boykin/Tahl Yurkoerror admonitions should be reviewed under the test used to determine the validity test, of guilty under the federal pleas Constitution. Under that is valid plea if the record shows that it is under the affirmatively voluntary intelligent totality (See (1971) circumstances. North Carolina v. 400 U.S. Alford 25, 162, 167-168, 160]; 31 L.Ed.2d Brady [27 91 S.Ct. v. United States 742, 747, (1970) 755-756, 1463]; 397 U.S. 747-748 L.Ed.2d 90 S.Ct. see [25 18, also the cases cited in In post.) fn. the exercise our supervisory powers, we shall continue to that trial courts advise require expressly However, defendants on the Boykin/Tahl record of their errors rights. articulation and waiver of those shall rights to be set aside require plea if the only fails the plea federal test. 238, Boykin,
Before
supra, 395 U.S.
it was well established that a valid
guilty plea
presupposed
waiver
voluntary
intelligent
defendant’s
constitutional trial rights, which include the
self-incrimina-
privilege against
tion, the
confront
right to trial
and the
by jury,
(See
right
one’s accusers.
States,
747,
Brady v. United
supra,
The defendant in pleading guilty had been sentenced to death after show[ed], to five counts of far robbery. taking record plea, “[s]o the judge asked no questions concerning plea, [the defendant] [the (395 did not address the court.” U.S. at L.Ed.2d defendant] review, 277].) On held the trial high court *40 that was error ... “[i]t judge to without an affirmative that it accept petitioner’s guilty plea showing 279]; 242 (Id., was at L.Ed.2d at see also intelligent voluntary.” p. p. id., at 244 in L.Ed.2d at The court its these p. p. explained holding words: “Several in federal constitutional are involved a waiver that rights First, takes when a in place guilty of is entered a state criminal trial. plea Sec- privilege against self-incrimination .... compulsory [Citations.] ond, Third, is the right to trial is the to confront by jury. right [Citations.] one’s accusers. We cannot a waiver of these three presume [Citations.] important (Id., federal from a silent record.” at L.Ed.2d at rights p. 279-280].) pp. later,
Our first Boykin occasion to came five months before interpret only a substantial of federal law on the had The defendant body point developed. because, in (supra, 122) Tahl in Cal.3d contended that his invalid was plea pleading he had waived guilty, by constitutional “more inference than rights by (Id., 126.) at express language.” Boykin We asked whether should be p. interpreted to require explicit waivers of each of the three constitutional we rights. that “the text such Although acknowledged Boykin contain no [ed] terms,” in requirement we express nevertheless that interpreted opinion mentioned—self-incrimination, that “each requiring of the three rights con- frontation, and be jury trial—must enumerated for specifically expressly the benefit of and waived by the accused prior acceptance guilty of his (Tahl, plea.” supra, 132.) Cal.3d at p.
Although we considered the argument that the state Constitution also waivers, required explicit we declined expressly to base our on state holding law. We chose instead on federal law “it rely because our view that [was] Boykin (Tahl, supra, more . . . .” precise showing necessitate^] Cal.3d 131; id., Indeed, at p. 5.) see also 132 & p. fn. we stressed the purported federal ground of our decision by variance noting “[a]ny [between California law and the law of other tilts somewhat jurisdictions] towards (id., added) more tolerance and less precision” at italics by holding (Id., defendant’s was valid under plea California law. 4.) 127-129 & fn. pp.
Five years later we extended Tahl's admonitions requirement express and waivers to in cases which the defendant admits conviction for prior Yurko, (Yurko, sentencing supra, 857.) purposes. we held that the admission of a prior like a sufficiently plea guilty require Tahl, same procedural protections. Again, as we expressly based our decision not on state law rather Boykin but on and our own prior interpreta- (Yurko, tion of that supra, 863.) decision. 10 Cal.3d at p.
The rule that error under Yurko is reversible
se arose
per
later. Neither
Yurkonor Tahl had announced the
rule
so
many words. To
contrary,
each decision we noted that “there may be other circumstances in particular
cases which
warrant the
may
of a
finding
(Yurko,
waiver . . . .”
proper
6;
Tahl,
10 Cal.3d at p.
fn.
cf.
1 Cal.3d at
fn.
However, this apparent qualification went unnoticed
as we
to state
began
cases
subsequent
that the failure to obtain explicit waivers of each of the
Boykin/Tahl
three
rights required
(See
reversal
regardless
Peo
prejudice.
*41
ple Wright,
493-495;
Ibarra,
v.
supra, 43 Cal.3d at pp.
In re
34
supra,
283,
1;
E.,
at p.
fn.
re
In Ronald
supra,
320-321.)
19 Cal.3d at pp.
Tahl,
the 22
since
years
our
interpretation of federal law that opinion
has
garnered
Indeed,
significant
support
the federal courts.
the high
court has never read Boykin as requiring explicit admonitions on each of the
three
Instead,
constitutional rights.
the court has said that the standard for
determining the
validity
a guilty plea “was and remains whether the plea
represents a
voluntary
intelligent choice
the
among
alternative courses
of action
the
open
(North
defendant.”
Alford,
Carolina
400 U.S.
31p.
168],
L.Ed.2d
[27
at p.
citing Boykin, supra,
242
395 U.S. at p.
[23
279];
L.Ed.2d at
States,
p.
see also Brady v.
United
397 U.S. at pp.
747-748
L.Ed.2d at pp. 755-756].)
[25
“The new
in Boykin”
element added
was not a requirement of explicit admonitions and waivers but rather “the
requirement that the record must affirmatively disclose that a defendant who
pleaded guilty entered his plea understanding^ and voluntarily.” (Brady v.
States,
United
747-748,
supra, 397 U.S. at pp.
4
fn.
L.Ed.2d at p.
[25
While the
court
high
has never
our
accepted
interpretation Boykin,
federal appellate courts have expressly rejected it.
Consequently,
weight
of authority today makes it
clear
abundantly
that “the California interpreta-
tion of Boykin
announced Tahl is not
required by
federal Constitution
(United
. . . .”
Pricepaul (9th
States v.
417, 424-425;
1976)
Cir.
540 F.2d
(10th
see also
1973)
916.)
Stinson v. Turner
Cir.
473 F.2d
“Boykin does
not require
articulation of each of the three
specific
rights waived
by
guilty
as it is clear from the
plea,
long
record that the
was
plea
voluntary
(United
and intelligent.
. . .”
Pricepaul, supra,
States v.
540 F.2d at p.
There is wide agreement both on this
and on the
test: The
point
applicable
record must
demonstrate
affirmatively
plea
voluntary
under
intelligent
(See
cited
totality
circumstances.
the cases
below;18 see also North
Alford, supra,
Carolina v.
This does not mean that admonitions and explicit waivers are no an longer important part of process of an accepting plea guilty or admission of law, a prior conviction. Despite of Tahl as a matter rejection of federal explicit admonitions and waivers still serve the led purpose originally us them: are require They the only realistic means of that the assuring judge authority 18The points on these can fairly be described as but overwhelming. All two agree, (the circuits Columbia) those two First and the District of appear not to have addressed the issue. See, e.g., 667, 671; Third (3d 1973) Circuit: United Vallejo States v. Cir. 476 F.2d Davis v. (3d 1972) United States Cir. (4th 470 F.2d 1132. Fourth Circuit: Wade v. Coiner Cir. 1972) 468 F.2d (5th 1060-1061. Fifth Whitley 1991) Circuit: Alexander v. Cir. F.2d 946, 947; Holloway (5th 1988) v. Lynaugh Cir. 838 F.2d Riggins Sixth Circuit: 793-794. (6th 1991) v. McMakin Cir. (7th F.2d Henry Seventh Circuit: 794-795. U.S. Cir. *42 553, 1991) F.2d Eighth (8th 933 1988) 559-560. Circuit: v. Grammer Cir. 848 F.2d Gonzales 894, 897; (8th 1048, 1050-1051; Stacey 1986) v. Solem Cir. (8th 801 F.2d Todd v. Lockhart 626, 1974) Cir. F.2d 628 & (9th 490 fn. 1. Ninth Circuit: United 1991) States v. Carroll Cir. 823, 824-825; F.2d Rodriguez (9th 1254; 932 1986) v. Ricketts Cir. F.2d 798 United 424-425; States Pricepaul, supra, 540 F.2d pp. (9th 1974) at Wilkins v. Erickson Cir. 505 761, 763-764; F.2d (9th United 1973) States v. Sherman Cir. 474 F.2d 305-306. Tenth Turner, Circuit: Stinson v. supra, 473 F.2d pp. Eleventh McChesney 915-916. Circuit: ([former] 1101, 1106-1111; 1973) Henderson 5th Cir. 482 F.2d United States v. Frontero ([former] 1971) 5th Cir. 452 F.2d by decided the former Fifth Circuit on or [cases 30, 1981, September Circuit; before are binding precedent in the Eleventh see Bonner v. City (11th 1981) Prichard Cir. 1207].) 661 F.2d of The Second Circuit has adopted a standard 11(c)(3) of strict adherence to rule Procedure, Federal Rules of Criminal which directs federal district courts to inform defen- Boykin rights dants of their before accepting guilty pleas. (2d 1976) (People v. Joumet Cir. 633, 636; Proc., 544 F.2d but see 11(h), Fed. Rules [codifying Crim. rule 18 U.S.C. Aug. harmless-error test as of because the strict standard is not consti- mandated, tutionally courts in the Second Circuit do apply reviewing guilty pleas it when (See, 583, 587; entered in state e.g., (S.D.N.Y. court. 1978) Guerrero v. Harris F.Supp. (E.D.N.Y. Perry 1976) v. Vincent F.Supp. 1357-1358.) 132.) (Tahl, supra, Cal.3d at leaves record for review. adequate Moreover, beyond ques- the essential wisdom of waivers remains explicit courts, the absence of a tion. We note that the federal district despite defendants on the three constitutional continue to admonish requirement, Boykin under the rule 11 the Federal Rules of Criminal rights aegis of of Proc., U.S.C.; (See 11(c)(3), Procedure. Fed. Rules of Crim. rule see also id., 11(h) test].) rule [codifying harmless-error
For these reasons we admonitions and waivers are emphasize explicit still in this state. We also reaffirm our caveat Tahl that trial courts required “would be well advised to err the time on the side of caution and employ to necessary explain and to obtain waivers of the adequately express rights involved. At stake is the of both the accused and the protection People, latter by assurance that an otherwise sound conviction will not fall due to (1 an inadequate record.” Cal.3d at p.
We next consider whether the affirmatively record this case shows that defendant’s admission of the conviction prior constituted a knowing waiver voluntary of his constitutional For rights. pur these poses, we set out the trial court’s colloquy with defendant and his counsel: Now, . . . special allegation on at the page top, [two]
“The Court: there going be an admission that? Yes, this is the prior conviction of burglary
“[Defense Counsel]: 1980. Howard, All right. Mr. you have a right present this—
“The Court: course, any these allegations, of to the for their determination as to whether they’re true or my not. It is understanding that wish you to waive right it presenting to a is that jury; correct? Yes.
“The Defendant: All You right. realize have the you to force the right “The Court: District Attorney to this and prove evidence bring and witnesses? *43 Yeah.
“The Defendant: And be confronted them? You wish by to waive those “The Court: rights? Yes.
“The Defendant: therefore, And so you are that the asking special allega- “The Court: tion, each time it the alleges prior violation of Section 459 of Penal Code, on the 2nd of are—it is September, you intention to admit your that violation? Yeah."
“Defendant: record, On this the absence of an express waiver of the privilege against self-incrimination does not lead us to conclude that defendant’s admission of the prior was less than and voluntary intelligent. As the Ninth Circuit has explained, is the plea guilty most form of complete “[a] self-incrimination. theBy plea, the defendant he admits that of the guilty is, thus, offense It charged.” “essential that the defendant know that he has a not right to plead guilty, that the record he (United show knows it.” Sherman, States v. 305-306.) 474 F.2d at pp. when the record demonstrates that knowledge there is “no need go farther and attach to such knowledge the talismanic phrase ‘right to incriminate ” 306; (Id., himself.’ 560; at p. see also v. Henry, supra, U.S. F.2d at p. United ([former] States v. 1980) Caston 5th 1113-1116.) Cir. 615 F.2d
The record this case affirmatively demonstrates that defendant he and, thus, knew had a right not to admit the prior conviction not to incriminate himself. The court specifically informed defendant he had a right to force the district attorney prove conviction in prior a trial and that, trial, in such a he would have the rights to a and to confront jury adverse witnesses. The were admonitions not empty words because defend ant was actively represented counsel and by for trial preparing on charges Moreover, which he had pled not guilty. there was a factual strong basis for record, On plea.19 this considering totality relevant circum stances, we conclude that defendant’s admission of the conviction prior voluntary and intelligent despite absence of an explicit admonition on the privilege against self-incrimination. we Accordingly, affirm the find special ing.
I. Erroneous Financial-gain Special Circumstance. found three special-circumstance allegations to be true: 190.2, murder during (§ commission of robbery (a)(17)(i)) subd. (subd. burglary (a)(17)(vii)) (subd. gain (a)(1)). financié Because the financial-gain allegation was based on the it solely robbery, was error to submit the to the allegation This is jury. because there was no evidence to the 19Indeed, subsequently proved prior penalty phase conviction at the through certified records and the testimony of (See p. post.) foundational witnesses. *44 for, or an essential death the consideration effect that “the victim’s [was] to, (People the defendant.” the financial gain sought by prerequisite 994, 328, P.2d (1984) Bigelow Cal.Rptr. 37 Cal.3d [209 723]; (1988) 44 Cal.3d 409-410 cf. v. Howard People A.L.R.4th special-circum- P.2d the erroneous Accordingly, Cal.Rptr. stance must be set aside. finding
III. Penalty Phase frustrated, ef- Defendant his counsel’s strongly ultimately opposed, in forts to a case This circumstance underlies several present mitigation. merit, lack they defendant’s contentions on the contentions appeal. Although do us to set out the of the some require procedural history penalty phase detail. jury Thursday
The returned its verdict of on afternoon. On guilty Tuesday morning, the trial court heard motions in limine to the relating penalty phase. introduce, The wished to one People aggravation, prior circumstances 190.3, felony (see (c)) conviction for and five burglary alleged factor § 190.3, (see (b)). instances of violent criminal conduct Included prior factor § in the latter (§ 245), were an assault a category deadly weapon with (§ 207), kidnapping an incident and obstruction of a involving vandalism (§§ peace 594), (§ 211). officer and two armed robberies According the prosecutor, some of these the state incidents had caused to revoke conviction, however, defendant’s parole. from the none of the Apart burglary counsel, incidents had led to criminal Defense that the charges. arguing People would not be able to prove any uncharged beyond acts doubt, reasonable persuaded court to exclude them all.
Defense counsel next asked the trial court either to a new impanel jury the penalty phase or to permit additional voir dire to determine whether or 190.4, not there was good (See (c).) cause to do so. subd. denied court § the motion.20
At that point, defense counsel announced that he and his client did not words, on agree how to proceed during penalty counsel’s phase. defendant “does not want me argue for life nor imprisonment, present any evidence And he—he mitigation. wants the death If he penalty. were to testifies, he testify would tell the so. We are still disagreement on 20Defendant challenge does not ruling except this on appeal, ask that we reconsider 984,1028-1029 v. Ainsworth 568,755 1017], 45 Cal.3d Cal.Rptr. P.2d People v. Melton 741], 748-750 which support the trial court’s ruling. We decline to do so. *45 in He’s me he do nothing matter. told fact that wants more to with the or the He in the judge. to sit the tank while was to prefers penalty phase Counsel a continuance to the matter [proceed].” order discuss requested further his The to grant with client. court stated that it was a prepared continuance “for a of couple days.” counsel that defendant’s for the
Finally, suggested apparent preference and, death penalty “an irrational act” tantamount to “suicide” on that basis, the asked court to conduct a under competency hearing section 1368. court, The which was with manner in which the “quite impressed witness, defendant conducted himself’ as declined to declare a doubt [had] as to competence (See (a).) and denied the motion. As subd. § discussed, already ruling (See ante.) this was correct. 1163 et seq., When on court reconvened counsel that he arid defendant Friday, reported were still in over disagreement how to conduct the For that penalty phase. reason, counsel to from the requested permission withdraw representation. motion, The denied court its matter understanding of the explaining “Now, if follows: your get client wants to on the stand this situation and before, it has he what wants to to death happened say say regards can penalty, argue still whatever for his There you you want life. is no question about that. . You’re certainly . . more well with this acquainted file, had a closer than I that can think of. And I feel insight anybody you’ve had, done a good job with what I’ll very you deny . . . the motion.” The counsel, court no him placed restrictions on to as he allowing proceed under thought best the circumstances.
The on penalty phase began Defense Monday. counsel informed court had, all, that defendant after consented to the of some presentation mitigat- ing evidence. counsel that defendant’s earlier refusal explained to permit such evidence him had left he unprepared begin and that would need “a line couple witnesses.” The court and days up counsel agreed that the prosecution would begin and that the defense would immediately begin on Wednesday.
Because defense counsel had persuaded court exclude all evidence conduct, of uncharged criminal the case limited aggravation was to a single felony conviction for The conviction burglary. People proved this (see exclusively through 969b) certified records testimony two § witnesses, foundational who identified and com- fingerprints defendant’s pared them with the in the fingerprints records. Defense counsel conducted brief cross-examination. did People present evidence regarding circumstances the prior offense. Because more had no wit- nesses, the court recessed until Wednesday for the convenience defense. record the into the placed and counsel the court morning Wednesday On *46 1165-1166, ante.) Defense (See limine. pp. earlier ruling of an
substance witness on expert as an psychiatrist call a clinical had wished to counsel had However, psychiatrist the opinion his forming defendant’s behalf. conduct. criminal prior the defendant’s that mentioned relied on reports the cross-examining from bar the the court to Defense counsel asked (See Evid. do so. refused to properly but the court the reports, about expert Code, 721, (a).)21 subd. § not he would that counsel announced defense ruling, In of the court’s view words, in my “I feel it’s In reasons. counsel’s witness for tactical
call the not to helpful would be even though [psychiatrist] best interest client’s So at this that cross-examination. the door to that evidence and open present argue.” We are prepared to present. have no witnesses time we would his rested, to begin the prosecutor the court permitted the defense Because and object, one point interrupted Defense counsel jury. to the argument had death penalty that the to forgo arguing led the objection prosecutor deterrent value. counsel informed defense argument, concluded his prosecutor
When kind of any to make defendant did “not want the court that [counsel] that, would defendant argue, if did on his behalf’ and counsel argument to withdraw. did renew his motion Counsel not interrupt proceedings. Instead, wishes. his client’s that he would honor counsel announced any then not to make at this time my counsel’s words: “It would be position I be the feel that would wishes at this my point. and see to client’s argument least detrimental at this time.” approach defendant with following colloquy
At that the court engaged point, jury’s outside the presence: Howard, did make if Thommen counsel] Court: Mr. Mr. [defense “The
an it intention argument—is your disrupting— discretion, the court had ruling arguing challenges 21Defendant this as an abuse However, it is axiomatic power to under Evidence Code section 352. limit cross-examination subject to which his expert “may fully that an witness be cross-examined as to . . . relates, and the reasons upon opinion which his is based expert testimony and the matter Code, that the (Evid. (a).) argument sake of opinion.” Assuming for his subd. for the § the court suggests, was no discretion because power court had the defendant there abuse of the probative it due to argument expressly rejected considered defendant’s on the record regarding expert testimony. the basis of opinion value of cross-examination dimension argues ruling also that the trial court’s of constitutional Defendant was error evidence, i.e., testimony. mitigating expert’s because it led to the exclusion of defend- to shield mitigating the court did not exclude evidence. The declined properly court cross-examination, to call expert ant’s from counsel chose for tactical reasons expert. Yeah. “The Defendant:
“The Court: —and what he’s say something disrupt is that saying; correct? Yeah.
“The Defendant: And he understand that he has indicated to you you “The Court: that; that he him feels could be but don’t want to do helpful arguing you is that right? *47 know, I done been here what you railroaded already,
“The Defendant: I’m I talking about. I’ve been convicted of a murder didn’t do. It’s no use no more. Let me the fighting get higher get to courts and on out of here. further; “The Court: You don’t want Mr. Thommen to is that argue any right?
“The Defendant: No. He’s what he explained would do?
“The Court: “The Defendant: Yeah. If
“The Court: he and gets would up attempts anything, you just the whole disrupt thing? Yeah.
“The Defendant: Is that And he right? you just right that submit it “The Court: prefer now; is right? Yeah, Yeah.”
“The Defendant: courtroom, When the returned to the jury defense counsel made this statement: “Based client’s Cecil has asked me not make upon my requests, to I any argument his behalf. would submit the matter.” court then instructed the on the law and directed them jury to their deliberations. begin later, Forty-seven minutes returned a jury verdict of death.
A. Claims Related to to Counsel to Permit Defendant’s Refusal Defense Present a Case Mitigation. ’’ demonstrates, Improper “self-representation.
1.
defend-
As the record
ant strongly opposed,
frustrated,
and ultimately
efforts to
his counsel’s
court
now
Defendant
contends
in mitigation.
a case
present
client’s expressed
disregard
counsel to
ordered defense
should have
so,
to
that,
defendant
in effect permitted
do
the court
by failing
and
wishes
on that premise,
himself. Based
and to represent
to counsel
right
waive
at the pen
that self-representation
makes the related contentions
defendant
in this
of counsel”
“waiver
and that the so-called
alty phase
impermissible
intelligent.
or
was not
knowing,
was invalid
it
express,
case
because
factually
is both
“self-representation”
Defendant’s claim improper
never
asked
It is
unsound because defendant
factually
unsound.
legally
demonstrates that
unequivocally
himself and
record
because
represent
other
Among
such
during
penalty phase.
to function as
counsel continued
all of
evidence
moved to exclude virtually
counsel
things,
successfully
cross-examination,
continuances,
conducted
obtained two
aggravation,
Counsel also
argument.22
limited
closing
significantly
prosecutor’s
moved,
for a
competency
a new
impanel
albeit
unsuccessfully,
short,
been
reasonably
as could
have
hearing.
counsel
as well
performed
client imposed.
within
drastic limitations his
expected
*48
it
factually
Defendant’s
unsound
as well as
because
claim is
legally
that, if
the
forgo
presentation
assumes
counsel honors his client’s wishes to
We
mitigation,
of a case in
counsel
ceased to function
counsel.
has
in
Lang (1989)
this
that counsel’s decision to honor his client’s wishes amounted to an unrea- sonable interpretation of his ethical obligations and that the court failed to ensure that counsel understood his obligations. Defendant distinguishes Lang, supra, on the ground that counsel that case did not doubt his client’s discussed, mental competence. as we have did already facts not raise a reasonable doubt as to (See defendant’s 1161 et competence. ante.) seq., brief,
In a reply defendant also questions counsel’s failure to present additional evidence mitigating after the trial court denied his motion to limit cross-examination of the (See ante.) witness. proposed expert fn. concedes, however, Defendant that counsel’s “control of the defense strategy was short lived” because defendant thereafter resumed his opposition any concedes, case mitigation. As defendant also it is clear that counsel “did not present available evidence mitigating because desired to be [defendant] sentenced to death” and that counsel “vehemently opposed [defendant’s] *49 circumstances, decision not to present a penalty phase defense.” Under these II, defendant may not complain (Deere of counsel’s supra, 53 acquiescence. 717; Cal.3d at p. Lang, supra, 1032.) 49 Cal.3d at p.
3. Reliability
the verdict.
Finally, defendant
that the
argues
lack of mitigating evidence and argument makes the
constitutionally
verdict
contention,
unreliable. We have previously
this
rejected
and no point would
be served by
at
repeating
length the
in
reasoning
which we
opinions
II,
(See
717;
did so.
supra,
Deere
Lang,
Cal.3d at p.
supra,
B. Brown
People v. Brown
holding
our
asks us to reconsider
Defendant
that the sentenc-
(Brown),
Defendant also explana an give him the court did not because applied constitutional Brown, Cal.3d at (see supra, 40 the weighing process instruction on tory Easley (k) (see People 19) or an factor instruction” fn. “expanded p. 858, 878, 813] 34 Cal.3d fn. 190.3, assertedly and because the prosecutor see factor (Easley); § (k))23 sentencing its discretion. about the nature of jury misled Constitution, on federal extent claims are based To the defendant’s (1990) 494 377-386 Boyde are obviated U.S. they by v. California 316, 327-333, 1190, 1196-1201], in court high which the L.Ed.2d 110 S.Ct. here, given such as those jury statutory language, held that instructions are constitutional. law, it is our practice the extent are based on state
To defendant’s claims have may whether sentencer to review the entire record to determine “the about the of its sentencing been misled defendant’s prejudice scope (Brown, fn. Defendant discretion that the prosecutor emphasized was misled because speculates (“the of section . . a sentence language impose 190.3 trier of fact. shall if outweigh death concludes aggravating that the circumstances [it] added]), circumstances” said that the word “shall” was mitigating [italics and reminded had themselves to “mandatory,” jurors they committed the law.24 have follow cases too numerous to mention we found have, similar remarks to be held that argument harmless. We example, Hamil- misleading simply language (e.g., because it restates statutory ton, supra, 1181), 48 Cal.3d at describes the as man- statutory language *50 Adcox, ”]; supra, Cal.3d at 267 haven’t choice’ datory (e.g., p. ‘you any 47 [“ (1988) v. Hendricks 662 749 P.2d People Cal.3d Cal.Rptr. correctly antisympathy penalty phase. trial court at the We give 23The did not an instruction held, suggests, phase expressly have never as defendant that the trial court at must penalty the guilt antisympathy given phase. countermand an instruction at the 24Here, misconduct, faults prosecutorial as in the other instances of asserted defendant at the failing object argument yet disapproved counsel for to to a of that courts had not form object trial. Under these it is unfair to a failure to as time of circumstances like characterize reason, (Jones, 1151.) of Cal.3d For that we ineffective assistance counsel. (Ibid.) despite object. have considered such claims on their merits counsel’s failure “ ” “ ”]), is a ‘term of command’ and or reminds ‘compulsory’ 836] [“shall” the of their jurors promise to follow the law v. Burton (e.g., 1270]). 771 P.2d Cal.Rptr. defendant,
According prosecutor’s on the lan- emphasis statutory guage was in especially likely to mislead the this case because defense jury counsel did If argue. defendant had his counsel to permitted argue, counsel might have put prosecutor’s remarks into context by emphasiz- ing jury’s sentencing discretion. “shall,” context,
It true is that the term in statutory understood refers only Moreover, to the result of a “weighing” it is process. important convey to the concept “weighing” because it connotes “a mental jury balancing and, hence, that process” “incapable precise description” discretionary. (Brown, However, 541.) 40 Cal.3d at p. was not jury deprived of the fuller context. The prosecutor repeatedly described the sentencing pro cess as one of “weighing” as did the “balancing,” court its instruc addition, tions. the prosecutor identified his own comments on correctly weight factors particular sentencing as and said that he argument “expect[ed] jury] to examine arguments with the same critical eye [the [his] Moreover, that would examine anything [it] this case.” the prosecutor discretion, expressly acknowledged jurors’ moral conceding “[j]us sure,” tice must be tempered by mercy but also arguing justice “must be firm and uncompromising the face of senseless and unnecessary violence and great depravity.”
Defendant also argues that jury was misled about its ability to consider character and background (Cf. evidence in mitigation. Easley, supra, 34 Cal.3d at The claim is somewhat theoretical because defendant did not present such any evidence. On appeal, defendant characterizes as miti gating failure People’s to introduce evidence of violent criminal prior 190.3, activity (b). (See under factor (b).) factor § there is no reason to believe that the jury was misled on this because the point court instructed specifically it to consider “the presence or absence” of such (See ibid.) evidence. The prosecutor did ‘the “point out” absence of factors but such mitigation,” argumentative characterizations of the evi dence are generally harmless (e.g., People v. Mason when, here, (Mason)), 950] especially the prosecutor informs the that his discussion factors sentencing is merely argument to be examined with a “critical eye.”
In summary, the court’s instructions and the remarks prosecutor’s would have led a reasonable juror to understand sentencing that capital
1189 mitigat- relevant any the to consider jury that process permitted a weighing Thus, the we that conclude moral judgment. evidence and to exercise ing Brown, (See supra, 40 the of its discretion. scope was not misled about jury 544, at fn. Cal.3d Davenport Error.
C. for a held that it is improper defendant’s we years
Two after trial factor, in the absence of pertinent argue mitigating to that prosecutor evidence, Davenport v. (People an factor. aggravating becomes mitigating 794, 247, (Daven 41 710 P.2d (1985) Cal.3d 288-290 Cal.Rptr. [221 861] us, the to that argued jury the the port).) prosecutor the case before 190.3, (See duress” an factor. aggravating § lack “extreme was apparent mentioned briefly To the the (g).) argument, prosecutor factor support Fried Mr. to the defendant his assault upon evidence effect that continued that his he despite request stop. accomplice’s Jones, at 53 Cal.3d rejected We have similar claims. many (E.g., 1151; 115, People (1990) Cal.Rptr. 200-201 Gallego v. p. [276 1179, 169]; 1233-1234 (1990) 51 Cal.3d v. Gonzales 1159].) about P.2d While the Cal.Rptr. prosecutor’s argument [275 rule for (g) Davenport, factor incorrect under the later adopted it the affected the reasonably argument several reasons is not that possible First, did to inadmis- jury verdict. not lead the consider jury’s argument evidence or evidence. aggravating sible to mistake evidence mitigating was a This is because in the attack on Mr. Fried personal defendant’s role and, thus, evidence under of the crime” proper aggravating “circumstance[] 190.3, Second, (a).25 section reviewed briefly factor although prosecutor factors, the state of the on several he mischaracterized evidence expressly Third, factor as event to only (g) any was not bound aggravating. jury the prosecutor’s factor the court instructed accept argument (g); regarding Fourth, to jury only aggravat- consider each factor “if applicable.”26 ing evidence can described fairly overwhelming; be circumstances showed crime defendant’s attack Fried have callous and on Mr. been 190.3, (see (a)), brutal § factor statements and conduct subsequent remorse, indicated a distinct lack of he a case chose not to present reason, Kemp 25For the same McClesky prosecutor’s argument did not violate 1756], U.S. L.Ed.2d 107 S.Ct. high in which the warned “[i]t court improper prejudicial aggravating would be and often jurors allow as to speculate wholly (Id., support circumstances without in the at L.Ed.2d evidence.” fn. 293].) argues sentencing 26Defendant the trial court should inapplicable have deleted the instructions, (People factors from the we but argument. have previously rejected that Ghent 776-777 P.2d *52 circumstances, Davenport, supra, Under under these error mitigation. any was harmless. clearly Booth/Gathers Error.
D. reversed under
Defendant that the verdict must be argues penalty about the state and federal law because the to the prosecutor argued jury The federal cases on effect of defendant’s crimes on the victim’s family. (Booth Maryland which defendant relies were decided after his trial long 440, (1987) (Booth); 482 U.S. L.Ed.2d 107 S.Ct. South 496 [96 2529] (1989) Carolina v. S.Ct. Gathers 490 U.S. L.Ed.2d 2207] have, meantime, (Gathers)) (Payne and in the overruled. v. Tennessee been _ (Payne).) 501 U.S. L.Ed.2d S.Ct. 2597] Edwards, In the effect supra, 54 Cal.3d this court considered in Payne. of the court’s decision We concluded that the harm a high specific 190.3, (§ (a)) defendant has caused is a of the crime” factor “circumstance[] and, thus, subject argument phase. of evidence and at the proper penalty (Edwards, supra, 832-836.) 54 Cal.3d at This a return pp. analysis represents to the this state before our understanding apparently prevailed (a) of factor decisions interpretation colored now-overruled by 834-835; (Edwards, Booth and Gathers. supra, at see also pp. Haskett 30 Cal.3d P.2d 863-864 776] (Haskett).)27There is no need reiterate in detail. analysis Edwards's course,
Of
that the
say
prosecutor may argue
impact
about
defendant’s crimes “does not mean that there are no limits on emotional
Instead,
836.)
evidence
(Edwards, supra,
argument.”
p.
“ ‘the
must face
not be
jury
obligation soberly
rationally,
its
and should
each
given
impression
may reign
that emotion
over reason. [Citation.]
case, therefore, the trial court must strike a careful balance between the
hand,
and the
it should allow
probative
prejudicial.
On
one
[Citations.]
evidence and argument on emotional
relevant
that could
though
subjects
provide legitimate
impose
reasons to
to show
or to
sway
mercy
hand,
ultimate sanction. On the other
irrelevant information or inflammatory
rhetoric that diverts the
invites an
jury’s attention from its
role or
proper
”
irrational,
(Id., at
purely subjective
should be curtailed.’
response
Haskett, supra,
864.)
under
law
quoting
30 Cal.3d at
federal
Similarly,
evidence
argument
must
that it renders the
unduly prejudicial
not be “so
argument
pre-Booth
objection
prosecutor’s
27Defendant concedes that an
in this
trial
to the
reasonably
perceived
“would have been futile”
have been
argument
because the
“could
Haskett,
acceptable
(See
pp.
under this
It under evaluate the these standards that we prosecutor’s the evidence which the For these we review on argument. purposes, briefly was based. We do so into context and argument only put argument basis; its that the explain evidentiary expressly argue defendant does not evidence was underlying guilt admitted at improperly phase. Testimony at the established the Mr. Fried had guilt phase following: walker, and needed The impaired mobility an aluminum walker. which was on Mr. in lying body, Fried’s of the crime scene. Mr. appeared photographs sons, Albert, Fried’s two Leland and to establish that a helped large amount cash, missing. cash was Leland had in a recently loan of over repaid, $2,000. Both sons testified that their father carried hun- ordinarily several dred dollars his wallet. Leland remembered a amount of cash seeing large because he and his father had joked about who had more. Albert remembered seeing large amount of cash because his father had him it to given some of buy Mother’s Day present. Because Frieds’ members visited the family often, murder, house their the time testimony helped establish ransacked, the house had been and that particular missing. items were this Fried, wife, context Jo Ann Albert’s mentioned that she knew the Frieds almost well as her own parents.
Based on the foregoing testimony, the prosecutor commented that Mr. “disabled,” man,” Fried was “a family “of value to his because family” he “still can joke” and was “still able to render assistance to children.” [his] The prosecutor also used the members’ family with testimony, together murder, defendant’s own reported statements about to make the follow- ing argument value, about moral culpability: “Mr. Fried is still of worth. [of] value, He’s 74. He’s old. He’s feeble. He’s still of some some worth to this And he community. lives a modest home with his wife him who helped raise his kid—kids in the City Tulare. And into that swaggers the defendant, Cecil Howard. To do what? To kick Mr. Fried to stomp death. To stop this family. This small touch of civilization. . . . For what purpose does Mr. Fried die? We know for money. And that’s a base in itself. purpose But for what other reason? was it him Why for necessary to die? Cecil said ‘naw, this old mother fucker done seen me.’ What caused the end of his life? What caused this on impact his family was Cecil. He saw he seeing him. So had his eyes in. He stomped kicked the throat. Without mercy. Without compassion. Kicked to A death. year old man who has to get around in a walker. with Coldly it. it thought. Doing about with Thinking Mr. purpose. Fried died as a circumstance of the crime. The total lack of any reason him to die is a circumstance of the crime.”
These remarks did not violate by prosecutor state or federal limits on Edwards, argument regarding (See harm a defendant has caused. specific 836; supra, 54 Cal.3d at Payne, supra, 501 U.S. at p.__[115 p. L.Ed.2d 735, S.Ct. at used admitted evidence prosecutor properly to make the obvious points defendant’s crimes were callous and had an on the victim’s impact While the asked the family.28 prosecutor clearly to consider this impact defendant’s moral such assessing culpability, *54 argument (Edwards, at the at appropriate penalty supra, phase. 835-836; Haskett, law, cf. pp. supra, 863.) 30 Cal.3d at Viewed under p. state “ ” “ the argument was not so as to ‘inflammatory’ jury’s ‘divertí] ” (Edwards, 836, attention from its role.’ proper supra, 54 Cal.3d at p. Haskett, law, quoting supra, 864.) 30 Cal.3d at p. Mewed under federal argument was not “so that it unduly prejudicial the trial funda render[ed] mentally (Payne, supra, unfair.” 501 U.S. at p.__[115 p. L.Ed.2d at 111 S.Ct. at p. Accordingly, prosecutor’s argument was not improper.
Defendant also argues that the prosecutor “to appealed potential with the xenophobic prejudice” remark that “Mr. Fried awas member of our community,” that defendant came into it and killed him brutally “[t]he and him,” robbed and that the jury should the death impose penalty to express sure, the community’s outrage. To be it would have been seriously improper to argue defendant’s status as an outsider was relevant to the penalty determination. the prosecutor did not make such an argument. What the did can prosecutor say be fairly understood as a direct reference to defendant’s own that he testimony had come to Hilare about a week before the murder to escape revenge at the hands of his former whose employer, reason, store he had burglarized. For this we do not infer that the lightly prosecutor intended his remarks to have their most damaging meaning or that the jury drew that meaning (Cf. rather than the less one. damaging Donnelly 431, 439, v. De (1974) 416 U.S. L.Ed.2d Christoforo 1868]; 94 S.Ct. Boyde v. California, supra, 494 U.S. at L.Ed.2d p. Mason, at 1200]; p. 110 S.Ct. at p. 965.) 52 Cal.3d at p. any event, the prosecutor’s remarks were not so or inflammatory unduly preju dicial as to warrant reversal under the standards discussed above.
E. CALJIC No. 8.84.1. 8.84.1,
The trial court instructed the jury with CALJIC No. former standard instruction on aggravating circumstances. mitigating Gathers, 28Even under U.S. we have found to be harmless “obvious comments to the effect that crimes caused suffering” family. [the for the victim’s defendant’s] “ (Mason, supra, 52 Cal.3d at prosecutor jurors asked the ‘put [the to [themselves] behind the eyes and in the mind and in the memories of the relatives and said that friends’ and the relatives would ‘weep’ victims”].) for the instruction is because it does not clearly Defendant claims that the erroneous (c) (b) (prior violent criminal and factor activity) state that factor (prior convictions) at the adjudicated to crimes other than those felony apply only 190.3, (§ (b) (c).) argument & We a similar guilt phase. rejected factors v. Miranda Cal.3d 57 1127] (Miranda), the instruc finding it that a would misunderstand unlikely jury However, “to avoid any tion and double- or factors. triple-count aggravating we held that trial courts the future confusion on this also possible point” refer the crimes (b) (c) should instruct that factors do not expressly (Id., underlying determination. fn. guilt (b) it would have been incorrect factors Although jury apply offenses, (c) there is no reason to believe that the did. guilt-phase (b) did he prosecutor Although not mention factor at all. mentioned (c), factor he did so in the only argument context of an about defendant’s *55 (c). conviction for which admitted under prior burglary, factor properly circumstances, Under these (See People defendant’s claim lacks merit. v. 548, 729,754 1306]; Siripongs (1988) 45 Cal.3d 583-584 P.2d Cal.Rptr. [247 Miranda, 44 106.) Cal.3d at p. Age
F. as Aggravating an Factor.
Defendant contends that the trial court and the prosecutor improp led the erly jury to consider an We age defendant’s factor. aggravating find no error. correct,
The court instructed the jury statutory language that it was permitted to consider age of the defendant at the time of the crime.” “[t]he 190.3, (See instruction, (i).) factor Based § on this the prosecutor argued defendant was “31 old. years He’s an adult male. He’s responsible for his acts. This isn’t some kid.” argument was because the proper statutory term “age” refers to “any age-related matter the evidence suggested by byor common or experience morality might inform the choice of reasonably penalty” and because it is well established that “either counsel may argue such any age-related inference in every (People Lucky (1988) case.” v. 45 259, 1, Cal.3d 302 1052].) 753 P.2d Cal.Rptr. [247 G. Automatic Motion the Verdict. for Modification of court, Defendant contends that the trial at the automatic motion for 190.4, (§ modification of the verdict (e)), and Dav- subd. committed Booth enport error and that defense (See counsel rendered ineffective assistance. Booth, 496; supra, 482 U.S. Davenport, 41 The conten- tions lack merit. court, motion,
1. Booth error. The trial before on the ruling automatic permitted to read into the record prosecutor a letter from the victims’ daughter. her letter the wrote that the daughter “pain caused this brutal by vicious killing cannot be described” and asked the judge the death impose penalty. court, letter,
Defendant argues that the trial this violated by hearing (supra, 496). Booth 482 U.S. Among things, other Booth held that it violates the Eighth Amendment to the United States Constitution to present information about the victim’s family’s characterizations and opinions crime, defendant, and the (482 sentence. appropriate U.S. at 508-509 pp. 452].) L.Ed.2d at p. [96 This part of the Booth decision the high survives court’s recent in Payne decision (supra, 501 U.S. at p___ fn. L.Ed.2d [108 739, 2, 2611, at p. fn. 2]). S.Ct. at fn. ‘the broad holding Booth . . . does not extend to proceedings relating to the application modification 190.4[, of a verdict of death under (e)].” section subdivision (People (1990) Benson 52 Cal.3d 802 P.2d Cal.Rptr. 330]; see also Duncan 53 Cal.3d Cal.Rptr. 810 P.2d
Defendant also objects, that a trial correctly, court on the ruling automatic motion may only consider evidence that was presented jury. (People v. Jennings *56 However,
475].)
court,
here,
such an error is not
when the
prejudicial
as
its
explains
ruling solely by reference to information
to the
presented
and not to the extraneous
(See
information.
Lang, supra,
2. Davenport Error. As defendant the trial court argues, tech nically mislabelled several sentencing factors as in view of the “aggravating” lack of pertinent mitigating (Cf. Davenport, supra, evidence. 41 Cal.3d at pp. 288-290.) it is unlikely that the was judge influenced significantly by lack of evidence (d) (extreme on factors mental or emotional distur bance), (e) (consent victim), (f) (moral of (extreme justification), duress), (g) (h) (mental and defect) disease or because such evidence is typically lacking in murder (See cases. People v. Whitt 660 [274 Cal.Rptr. (Whitt).) 798 P.2d The 849] court also mislabeled as aggra vating the absence of evidence under (k) (other factor circum extenuating stances). mistake, however, This did not lead the court disregard mitigat to ing evidence because the defendant presented none. the court Significantly, correctly noted that the absence of prior violent activity criminal was mitigating (b). under factor other any more than defendant’s culpability that aggravated
The factor the crimes. force behind motivating the actual killer and his role as crime, all of the aspects did only plan In words: “Not [defendant] the court’s effect, This killing.” did actual he ultimately he it into but put and defendant’s including had evidentiary support, finding ample important he and that identification he Mr. Fried to avoid “stomped” claim that The that he stop. his accomplice’s request the fatal attack despite continued (degree participa- evidence under factor (j) discussed this court properly relied, on the weight also tion). correctly expressly, court defendant, (a)) and (factor the crime the circumstances of against evidence (factor (c)). In strength view of prior defendant’s conviction relied and the virtual expressly evidence on which the court aggravating evidence, in labelling the court’s technical mistakes absence of mitigating 660; Whitt, (Cf. were 51 Cal.3d at sentencing factors harmless. 1186-1187; Hamilton, (1988) 46 v. Brown pp. Cal.3d Cal.3d
3. assistance Defendant contends that counsel. Ineffective his counsel rendered ineffective assistance at the on the automatic hearing under Booth by failing argument failing object motion to present by 496) 247). (supra, Davenport (supra, 482 U.S. The claim based on counsel’s failure to lacks merit because counsel was argue honoring defendant’s own wish that counsel not which would be “pursue any activity looked as upon including, for . . . life pleading imprisonment,” specifically counsel, according to at the on the automatic motion. The argument hearing claims based on counsel’s failure object lack merit because the cases on Thus, which defendant relies were not decided it until after the trial. long unfair to characterize counsel’s failure ineffective assistance. object event, (Jones, supra, Cal.3d at claims lack any underlying merit for the reasons discussed. already
H. Erroneous Special-circumstance Finding. Effect of
Defendant contends that the erroneous on the finding financial-gain 1180-1181, special (see circumstance ante) to be pp. requires judgment motion, reversed because the court at the automatic as well as the jury, However, considered init the record determining appropriate penalty. does not support contention. The did financial-gain allegation not result in trial, the admission of additional evidence and the any at who prosecutor, mentioned it only did passing, not that it had argue any significance distinct from the valid and robbery-murder burglary-murder Nor findings. court, does it motion, that the appear ruling on the automatic gave erroneous finding any significance from the valid apart findings. Under these
1196 circumstances, possibility there no reasonable that the erroneous finding affected either the court’s on the decision automatic motion or the jury’s Adcox, (See 251-252.) verdict. v. People 47 Cal.3d pp. Request Holdings. I. to Reconsider Previous we prior decisions have held that trial courts are not required identify factors or and particular sentencing as that the 1978 aggravating mitigating death law is the absence such penalty constitutional a despite requirement. 97, 630, (People v. McLain Cal.3d 118 Cal.Rptr. 46 P.2d 757 [249 730, 569]; People (1986) 42 Rodriguez Cal.3d 777-778 Cal.Rptr. P.2d (Rodriguez).) have held We also that the same law is consti- 113] tutional its failure to despite require findings jury unanimity written or on factors, or aggravating proof beyond a reasonable doubt that each aggravat- exists, factors, ing factor that aggravating outweigh factors mitigating death is the appropriate (Rodriguez, Cal.3d at punishment. 777-778.) pp. Finally, we held judicial have that effective review is possible without written findings by (Ibid.; on cf. aggravating circumstances. Frierson 25 Cal.3d 178-179 P.2d law].) death 587] We decline the invitation to penalty reconsider these holdings. Prejudice.
J. Cumulative brief, In his reply defendant contends asserted errors particular, warrant reversal because of their cumulative effect. claims of error to which defendant refers either lack merit or had no effect on the verdict. These include permissible counsel’s decision to honor defendant’s 1184-1185, wish present ante), case mitigation (pp. prosecu- proper tor’s argument ante), about age (p. defendant’s the court’s correct refusal insulate witness from cross-examination proposed expert 21, ante), fn. (p. would been prosecutorial argument that have under the improper only (supra, now-overruled Booth U.S. holdings 496) (supra, and Gathers 805) (see ante). 490 U.S. Defendant also points to his claims under (supra, Brown 512), Easley (supra, 858), Davenport (supra, Cal.3d 247), under but error any harmless, those decisions was clearly (See 1187- already discussed. pp. 1190, ante.) Disposition
IV. *58 for convictions murder attempted and re- attempted are mayhem versed, 1203.09, and 1203.075, the related findings under sections and 190.2, section under finding The special-circumstance are stricken. 12022.7 is the judgment In respects all other (a)(1), is also stricken. subdivision affirmed. J., Arabian, J., Baxter, J.,
Lucas, J., concurred. and George, C. to guilt in the judgment I concur MOSK, J., Dissenting. and Concurring review, warranting reversal I no error After have found eligibility. and death on either question. or vacation dissent, however, (1985) People v. Deere Pursuant to
I as to penalty. 13, 353, 925], I would set aside 710 P.2d Cal.Rptr. Cal.3d 360-368 [222 the United Amendment to Eighth unreliable under the verdict of death as 17, I, California Constitution section States Constitution and article refused, failed, available evi- indeed to introduce defendant and because a such If is to be to follow permitted dence an accused mitigation.1 affir- subsequent and thereby compel imposition course—and practically irrevocably the ultimate sanction—he as well be allowed may mance of avoid, situation, at trial and on a we both death.” At least such “plead of an charade. appeal, unseemly spectacle empty general importance One issue this case raises a of presented question of a sentence- and calls for extended discussion—defendant’s admission enhancement allegation. 274, 238, (1969) 242-244 Boykin v. Alabama U.S. L.Ed.2d [23
279-280, 1709], following 89 S.Ct. the United States stated the Supreme here. For a to be valid under the principles applicable guilty plea defendant’s Amendment, due process knowing clause of the Fourteenth it must be and Such a federal constitutional voluntary. waives several plea effectively three trial rights, including against compul- basic rights—viz., privilege self-incrimination, sory right trial and the to confront right by jury, clause, one’s it accusers. For such a waiver to be valid under the due process must itself be A waiver of the three basic trial knowing valid voluntary. rights cannot be therefore error for a trial presumed from silent record. It is court to an affirmative accept guilty from a defendant without plea course, that the Such a of showing plea knowing showing, voluntary. assures that “the judge any may . . . leaves a record review that adequate 244, (Id. be later sought. . . fn. L.Ed.2d at omitted [23 1Compare (1990) People Cal.Rptr. Sanders 51 Cal.3d 531-533 P.2d Mosk, (dis. opn. J.) (finding constitutionally a verdict of death when 561] unreliable mitigating introduced); available evidence was not People Lang (conc. Mosk, Cal.Rptr. (same); & opn. J.) 1059-1062 dis. 627] v. Williams 1158-1061 P.2d 901] Mosk, (conc. J.) (same). & opn. dis. *59 449], In In re Tahl Cal.3d 122 460 P.2d we Cal.Rptr. that, held that court Boykin before trial requires accepting guilty plea, admonitions, give must the defendant from him express and obtain express waivers, as each of three trial basic rights. 129-133;
The (1 Tahl at holding virtually was unanimous. id. at pp. Peters, dissented, (conc. J.).) & dis. A p. justice stating opn. single only disagreement with the not on disposition—which did depend McComb, (Id. (dis. Boykin. p. J.).) at statement by Moreover, the Tahl holding (1 was close at supported by analysis. Cal.3d 129-133.) We pp. recognized that there were “at least two plausible interpre- (Id. tations of Boykin.” 130.) at One would ask p. merely for “statements in facts the record from which a reasonable could be drawn that presumption a defendant has been of and has apprised voluntarily waived his rights, (Id. has intelligently pleaded guilty.” 130-131.) at other would pp. demand that each of the three trial basic “must be rights specifically enumerated for the expressly benefit and waived the accused by prior (Id. of his acceptance 132.) We We guilty plea.” latter. adopted reasoned: “While the Boykin text in contains no such requirement express terms, we believe it is only fair inference from the . it opinion . . but is the only realistic means of assuring judge ‘the . . . leaves a record ” adequate for any (Ibid.) review that be later may sought.’ Tahl, raised,
At the conclusion of the relevant discussion we impliedly resolve, but declined to the question whether harmless-error was analysis and, so, if available a trial court failed if obligations its what such analysis (1 133.) would entail. Cal.3d p.at
In In re 561], Yurko we held that Boykin and Tahl require before an admission of a accepting sentence-enhancement allegation, the trial court must defendant give admonitions, waivers, express and obtain him from express each of three rights. basic trial 861-863;
The Yurko (10 was holding unanimous. Cal.3d at id. pp. at p. Mosk, (conc. & J.).) dis. (Id. It was opn. also close supported by analysis. reasoned, 861-863.) substance, at pp. We that an admission was ftinction to a ally equivalent (Ibid.) guilty plea. Yurko, raised,
At the conclusion of the relevant discussion in we impliedly resolve, but declined to whether question harmless-error analysis and, if so, available a trial court failed its obligations if such what analysis (10 would entail. Cal.3d at fn.
1199 I and Yurko. Tahl bar, to reconsider undertake majority the In case at the and admonitions requiring express The wisdom of do so. no reason to see ques- “remains waivers, beyond acknowledge, themselves majority as the Moreover, are now ante, themselves the rules at p. (Maj. opn., tion.” . . increases . decisions prior accorded respect well settled. and long “[T]he existence, the and their itself to society adjusts as the with their antiquity, (South Carolina validity.” their upon premised law becomes surrounding 2207] 109 S.Ct. L.Ed.2d 824 (1989) 490 U.S. [104 Gathers out here turns Scalia, reexamination exercise of J.).) (dis. Finally, of opn. declared rules again to declare the result is simply academic: merely to be grounds. than federal constitutional rather on supervisory previously—albeit reconsidered, they be if are indeed to Be it Tahl and Yurko may, that as unconditionally. and categorically then reaffirmed should be with, by persuasive Yurkoare supported of Tahl and begin holdings To and to understand easy clear and unambiguous, discussion. are also They easy apply.
Further, rejected never explicitly Court has the United States Supreme it done so implicitly. either Tahl or Yurko.Nor has Brady v. United States neither majority’s implication, to the Contrary 1463], Carolina v. S.Ct. nor North U.S. 742 L.Ed.2d 90 [25 160], even to S.Ct. purports L.Ed.2d U.S. [27 Alford and admonitions Boykin whether requires express consider question waivers. footnote, that a “The Brady requirement plea states dictum that recog- valid has been voluntary long must be and to be
guilty
intelligent
the record
added in
Boykin
requirement
nized.
new element
was
entered his
guilty
must
disclose that a defendant who
affirmatively
pleaded
747-748,
(397
at
fn.
U.S.
plea understandingly
voluntarily.”
pp.
756],
affirmative
omitted.)
L.Ed.2d at
citation
what the
Precisely
required
Therefore,
figure
Brady
any way.
disclosure demands does not
statement does not
on the issue of
admonitions
quoted
express
bear
waivers.
(1968)
For its states that United States v. Jackson part, Alford 1209], determining new test for L.Ed.2d 88 S.Ct. “established no the plea The standard and remains whether validity guilty was pleas. courses the alternative voluntary intelligent among choice represents (400 pp. of action the defendant.” L.Ed.2d open to U.S. at 31p. 167-168].) Jackson dealt with the whether a entered only question guilty plea too, Here penalty avoid death statement voluntary. quoted does not bear on the issue express admonitions and waivers. *61 must,
I I recognize, as that Tahl and Yurko stand a of against majority lower federal (See, Pricepaul (9th court decisions. United States v. Cir. e.g., 417, 1976) 540 F.2d 424-425 But stand [guilty plea].) they certainly do not (See, (7th 1985) e.g., alone. United States ex rel. v. 774 Miller McGinnis Cir. 819, F.2d 823-824 [guilty plea].) event,
In any dispositive issue is whether Tahl cor- and Yurko were above, I decided. believe were: as rectly they stated discus- supporting sion persuasive. is Yurko, I
Although see no reason us to reconsider Tahl and I believe do that we should consider general question availability and character of analysis. harmless-error This broad been definitively issue has never Otherwise, resolved.2 It should be. the conflicts that have arisen in the case law3 are to and indeed more likely persist grow numerous and severe. more mind, my
To automatic reversal should not result on the omis- erroneous one sion of or more express admonitions and/or to more waivers as one or the three basic trial when a rights or an admission guilty plea accepted.4 is 943, generally 682], 2See v. People Ray (1990) 220 Cal.App.3d Cal.Rptr. [269 945-950 automatically which holds reversible the express erroneous omission of one or more admon itions and/or waivers to one or more of the three when rights basic trial an admission is accepted. Ray discusses including following; (1988) decisions v. People 45 Guzman 915, 467, 917], Cal.3d Cal.Rptr. 968 [248 755 P.2d which holds such on an that an error admission is subject analysis evidently harmless-error under what is the “reasonable probability” 818, People (1956) 243]; standard of v. People Watson 46 Cal.2d P.2d 836 [299 487, (1987) 69, Wright v. 260], Cal.Rptr. 493-495 P.2d which holds that [233 729 such an error on a submission that guilty subject is not tantamount to a is plea to harmless- analysis standard; error under the Watson probability” (1983) “reasonable re Ibarra 34 277, 283, 538, Cal.3d Cal.Rptr. 980], footnote 1 666 P.2d [193 which states in dictum reversible; such an guilty plea error on a automatically (1977) In re Ronald E. 19 315, 781, 684], dictum; Cal.Rptr. 320-321 [137 makes which the same statement in (1989) People 159], v. Johnson 212 Cal.App.3d Cal.Rptr. [261 1182 which holds that reversible; such an error on a guilty plea or an automatically admission is Shippey v. 553], Cal.App.3d 168 Cal.Rptr. which [214 889 holds that such an error on an is subject admission analysis harmless-error under the probability” Watson “reasonable standard; and People 129], Prado Cal.App.3d v. 130 which makes same holding. 3See footnote ante. recognize Boykin 4I can require indeed be construed to regardless automatic reversal Alabama, (E.g., Boykin circumstances. pp. U.S. at L.Ed.2d at 244-249 [23 Harlan, (dis. pp. opn. J.); ante.) also 280-283] see fn. so But I do not read the decision. be able may perhaps court reviewing cases many example, For com- substantially court that the trial finding by harmless declare the error law, is standard, the case by suggested its obligations. with plied States, v. United (Brady affirmatively . disclose[s]” “the record . . whether or 756]) guilty plea that the at p. L.Ed.2d fn. p. 397 U.S. at among choice intelligent voluntary in question “represents admission (North Carolina defendant” to the open of action the alternative courses does 168]). say, That is to L.Ed.2d U.S. at Alford, supra, ato amounts or admission plea that the guilty the record on its face show trial the three basic abandon to exercise or decision knowing voluntary voluntary knowing be or no trial—can The relevant choice—trial rights? itself no trial rights—is or rights if if what is chosen thereby—trial and only understood and intended.5 *62 found, the cases, be cannot in substantial compliance
In other which and in pertinent part the judgment vacate reviewing may simply court At such hearing. evidentiary limited cause the trial court for a remand the to or guilty plea the defendant’s would determine whether hearing, a court reinstate the If it would voluntary. yes, and knowing admission was fact no, admission and allow If or guilty plea it would strike judgment. to the anew. charge defendant to respond allega- the sentence-enhancement
In defendant’s admission of accepting admonitions, case, and obtained gave express tion this the trial court i.e., waivers, trial trial rights, two of the three basic concerning express however, failed, an admonition or to obtain It to such give and confrontation. third, i.e., self- against compulsory such a waiver as to the the privilege was, course, The fatal. error. But it was not incrimination. The omission defendant It told explicitly court with its substantially complied obligations. bring this and to he “the the District to right Attorney prove that had to force him he had the told that evidence and It thereby implicitly witnesses[.]” Hence, on its face mute if he the record shows right to stand at trial so chose. decision to and knowing voluntary that defendant’s admission amounts to a harmless.7 abandon the the error was privilege.6 Accordingly, True, language may that opinion their contains majority apparently 5The are in accord. knowing voluntary and suggest be read to that the relevant choice can be deemed perhaps rule, however, a not itself understood and intended. Such thereby even if what is chosen is he forgo to face or trial if knowingly voluntarily would be unsound. One cannot and choose means; what trial means if he is does not understand trial and he cannot understand what rights. aware of three basic trial suggest that if a majority opinion language may perhaps 6The that be read contains to make an admission but rather right plead guilty defendant knows he has the not to or not necessarily trial, any right not to incriminate himself proceed he must know he has the inference, however, nor by neither fact might supported trial that ensue. Such an would be logic. trial in the course of passing prosecutor’s points 7I note in that the conduct at several jurors troubling. example, peremptory challenges prospective For the Black against all conclusion, I would affirm the in all other although judgment respects, I would reverse it as it the sentence death. imposes insofar KENNARD, J., Concurring Dissenting I join majority affirming defendant’s conviction and death sentence. however, I
Unlike the majority, conclude that defendant did establish case, likelihood, prima facie or a strong selection during jury impermis- sible bias was the basis group peremptory use of prosecutor’s challenges to remove the two only jurors. African-American Once defendant made such showing, the burden shifted to the to show prosecutor bias form group did not the basis for the jurors’ (People removal. Wheeler (1978) 22 Cal.3d P.2d prosecu- tor, however, discharged this burden when he gave plausible reasons for exclusion, jurors’ challenge without or defense. any disagreement by the Thus, there was no reversible error.
I. Defendant, African-American, murder, an charged with the mayhem Fried, murder, robbery and the Roy attempted attempted mayhem *63 Fried, selection, of robbery Gladys both White. the During jury prosecutor used two of his first challenges four to remove the peremptory only two African-American called jurors into the jury box. Defendant moved to quash Wheeler, the jury under panel People supra, v. Cal.3d 258. trial court denied defendant’s motion. The court did so prosecutor without the requiring to give reasons for exercising the defend- challenges, implicitly finding that ant had failed to make a facie prima showing of bias. Several group days later, the filed a prosecutor written declaration his the stating reasons for peremptory challenges. Defendant the now contends that trial court commit- ted prejudicial error when it denied his Wheeler requir- motion without first ing prosecutor the to justify his the African- peremptory challenges of two American jurors. Wheeler,
In People 276-277, v. supra, 22 Cal.3d at we held “the pages that use of to peremptory challenges remove on the sole prospective jurors ground of the group bias violates to trial right by a drawn from a I, representative cross-section of the under article section of community raises a suspicion of discrimination—against invidious racial defendant as well as the Proof, seems, prospective jurors themselves. lacking: it is defendant’s motion under Also, 748], Wheeler Cal.3d 258 [148 the inadequate. prosecutor’s phase at penalty summation the apparent bad an racist because I subtext. But error, not, not, have prejudicial found Deere I need argument and do the determine whether amounted reversible misconduct. to be followed procedure described the
the Constitution.” We then California is party improp- that the opposing a contends party the trial court when by the of bias. challenges group on basis erly exercising peremptory facie prima must make a requirement, objecting party As threshold the a likelihood,” is, case, have been jurors that of showing “strong that the within in a cognizable group membership excluded because their If the trial court finds cross-section rule. of the meaning representative made, offending to the allegedly the burden shifts such a has been showing constitutionally permissible were made show that the challenges party venire, and If it must the justification, quash the no reasons. trial court finds Wheeler, (People v. selection with a new venire. begin jury again 280-282; (1986) 476 Kentucky U.S. 96-98 Cal.3d see also Batson v. at pp. 69, 87-88, L.Ed.2d 106 S.Ct. mentioned, four of evidence by example, types The Wheeler court ofway demonstrate, I case has all tend to bias. shall this would show As group evidence, which the that the prosecutor’s four created types appearance on challenges specific group use of was based not on bias but peremptory discrimination. bias, Wheeler, said in is a that a showing party
Illustrative of we group “has or of the identified from group struck most all members venire, peremptories or has used a number of disproportionate [or her] Here, Wheeler, against (People group.” African- only two prosecutor used remove the peremptory challenges Moreover, American of the first four jurors jurors called. were two jurors he jury.1 before ever prosecutor challenged, “passed” Wheeler, bias, failure Also indicative of we group observed *64 in more than offending challenged] “to allegedly party engage jurors [the dire, (People voir or at desultory indeed to ask them all.” any questions Wheeler, Here, show, 281.) I shall the prosecutor’s as B. and questioning jurors of T. and Katie was brief prospective Betty perfunctory. dire, the initial of voir were
During stage prospective jurors the when the individually their death the questioned prosecu- about views on the penalty, juror tor asked B. three.2 Betty only questions only By T. two and Katie juror comparison, jurors the of most of the other was prosecutor’s questioning more extensive. exercising “passed” 1After his first five his next four peremptory challenges, prosecutor the challenges, expressing satisfaction six additional with the as He later exercised jury chosen.
peremptory challenges. Defendant challenges used all of him. the allotted dialogue prosecutor 2The between the and Betty T. was as follows: dire, At the second of the voir when the defense stage and prosecutor counsel asked more of the general questions the jury, prosecutor questioned He asked if panel only each he or would return a briefly. juror guilty she doubt; if the prosecution verdict its case reasonable Katie proved beyond a Betty B. and T. the other joined jurors affirma- prospective responding The directed his other as a tively. prosecutor most of to the questions whole; if jurors only to that responded During them. questions applied questioning, juror T. she Betty responded registered that was a nonpracticing nurse, juror and Katie B. that she as a The replied worked nurse’s aide. then prosecutor asked these two if their would jurors prospective training witnesses; impair their to said it ability critically evaluate both testimony would not. made no other They response any questions prosecutor to the addressed panel. Wheeler
The third element court discussed an of a being indicator likelihood strong bias is the in the ex- group defendant’s membership cluded and the alleged victim’s in the group to which membership group Wheeler, belong. (People jurors majority Cal.3d at Here, African-American, defendant was as were the excluded but his jurors; victims, two and the were remaining jurors, White.3 Wheeler fourth suggested a factor indicative of facie case of prima group discrimination: that showing the peremptorily challenged jurors only share your As I understand Judge attorney, [Prosecutor]: answers to the and the “Q defense you vote penalty could for the if death the circumstances it? warranted make, I Right. possible “A think I It is right could. that it would be but it decision to possible is also that it would not be the right decision to make. right. you All So ability weigh have the those two alternatives and balance them “Q and take into account all factors give you, you that His Honor will take into can account them and ,the appropriate penalty? choose (Juror “A nods affirmatively.) head pass I’ll for cause.” “[Prosecutor]: dialogue prosecutor between the B. Katie was as follows: talking you You understand what Honor “Q [Prosecutor]: about when he told about the parts two different guilt trial or the three To parts? different determine or first, innocence possible then on the penalty? later “A Yes. Now, You understand Okay. that? you you guilt do understand determine “Q you get innocence first before penalty part? ever to the supposed And that are not to take you *65 into consideration penalty may by what be you determining faced the when defendant are guilt. you Do understand that? Yes, “A I think I do. you You think go along can with might that and not let the face “Q fact that the defendant the penalty death your enter into guilt on deliberations or innocence? “A I don’t think that would bother me. Okay. problem No on “[Prosecutor]: that. Thank you. I cause.” pass for 3The record reflects juror that one had a Spanish surname. sex, age, in in other being respects—such the membership group,
their as the heterogeneous background—as social and economic occupation, and Wheeler, fn. at 280 & 22 Cal.3d supra, p. v. (People a community as whole. in common Here, things some in had 27.) question two prospective jurors the housewives, women, both had both were both were other than race: no obvious similarity these of provided But nursing experience. points some differ- by other and were overshadowed challenge prosecutorial basis for Porterville, to married in was sociology, in had a degree T. lived Betty ences. Club, in the nuclear involved a member of the Sierra was a was physician, movement, juror jury. By comparison, and had served on a freeze previously school, Tulare, was married in from graduated high Katie lived had not B. or any with political was not connected gardener, a retired apparently Thus, in terms of on jury. and had never served a environmental group, grounds on challenge the of likely peremptory factors to influence exercise bias, were dissimilar. jurors other than these group predominantly Cal.3d 1046 People on v. Bittaker Relying it 659], did err when the trial court not majority the concludes that bias, showing group had made a facie prima found that defendant “ might grounds prosecutor because record which ‘suggests upon ” jurors. excluded African-American reasonably challenged’ have the two Bittaker, ante, People v. (Maj. opn., quoting for two reasons. misplaced reliance on Bittaker majority’s First, here, Bittaker, supra, unlike the People situation Wheeler, is not a case in were in guidelines which given above, 280-281, I in Cal.3d at and that detail pages discussed suggested that bias formed the for the group prosecutor’s peremptory basis Bittaker same to which challenges. minority group was not a member of the the excluded all did not remove jurors belonged, jurors prosecutor on the who was no panel were members of there minority group, indication that the jurors dismissed prosecutor’s questioning “desultory.”
Second, case, in why contrast this there were reasons compelling wish in four of prosecutor jurors question: Bittaker would to exclude the them to convict the significant voting had reservations about expressed fifth, defendant of murder death while the who had or to impose penalty,4 “ I studied T feel to be an amateur psychology, said: that would really try she explained 4As we “Juror doubt whether expressed Bittaker: Martin considerable degree body could vote for a verdict of first never been murder a case which the had [police found were the bodies Juror unable locate of two defendant’s victims]. initially Weaver said she automatically that she would imprisonment; return verdict of life *66 ” case, if I in in due (People was this fairness.’ v. psychologist, psychiatrist, Bittaker, 1092.) supra, 48 Cal.3d at This not the case here. B., much Katie when majority makes of the fact that asked juror her
about about the death she had “never been feelings penalty, replied confronted with it But “thought this before” and had over.” [question] Bittaker, unlike the in challenged jurors answers of Cal.3d at Katie B.’s reluctance page response showed no to impose death it the issue penalty; recognition reflected was an simply impor- one In tant of careful answer other asked deserving thought. questions by court, the trial Katie B. said she had no or beliefs that religious personal would prevent voting her from for the death to the penalty. response statement, court’s are is whether trying “What we to find out is so somebody matter strongly opposed that no what the circumstances and what was they couldn’t vote for death she “That’s presented, penalty],” replied, [the not me.” There was no concern about apparent by prosecutor prospective Katie B.’s juror alleged reluctance to the death he asked her impose penalty: questions no on the and did he subject, responses not mention her when filed his written of his reasons for the explanation challenges. peremptory too,
In the juror case of was no. prospective Betty T. there obvious reason for the prosecutor’s removal of her. The that her states majority “profession (she nurse) al training” was a nonpracticing registered suggested basis for disqualification. Yet there was the nature of offenses nothing charged suggest that her her background objectionable would make to the nursing .5The prosecution prosecutor’s affidavit made no mention of juror Betty T.’s professional as his reason for her. training excluding were, sum,
There no reasons immediately justifying the apparent prosecutor’s challenges jurors Katie B. and peremptory against prospective T., the Betty African-American The voir dire only persons called. similar to that in People v. Snow 452], in which “several were venirepersons Black excused routine,
after giving seemingly acceptable prosecutor’s responses equivocated, later judge prosecutor’s challenge and the denied the for cause. Juror Walker case, opined that in a penalty death proof standard of should not be that of reasonable doubt, but absolute proof. Juror Mims was uncertain whether could return a death he verdict told the judge, you ‘If if I somebody, just ask me could kill I don’t know. So I can’t sit ” Bittaker, (People you.’ here and tell 48 Cal.3d at 5This is not to say background that a an nursing unacceptable ground would be for exercising a challenge, but peremptory only apparent that it is not an or reason obvious case, doing so in this is not prima thus it useful the existence of a determining facie bias, prima case. Had the prosecutor trial court found a facie group case of could have prima rebutted the by challenged facie case means of a that he had explanation Betty credible T. because of her professional training rather than her race.
1207 might here jurors the two excluded by given of the answers questions.” Some a the use of peremptory for basis legitimate furnished the prosecution have Snow, But, reveals no record supra, in “the as them. challenge against (Ibid.) excusing jurors].” or reason [the ‘obvious’ ‘apparent’ chal- exercised peremptory in case prosecutor I this the recognize discrimina- single but a African-American “only” jurors, two lenges against (People v. right representative a defendant’s to a exclusion violates tory 707, 716, 75]), 4 818 P.2d (1991) Cal.Rptr. 54 fn. [286 Fuentes Cal.3d African- in all the removing in the this case succeeded prosecutor point Instructive on this jurors tentatively American who were seated. 102], 726 P.2d Cal.Rptr. 42 v. Turner Cal.3d 711 People There, here, challenges to early peremptory the used two prosecutor We commented tentatively the seated. jurors remove African-American only case “was amply of a facie finding prima that the trial court’s implied Thus, to (Id. is no answer an 719.)6 the at it by p. record.” supported than two case that no more of a facie showing prima otherwise sufficient would improperly have struck. To hold otherwise jurors been improperly one or two challenges only of when racially sanction use motivated venire. targeted members of the race are present case of prima In those has facie instances where record established bias, failure an require this court has held that the trial court’s group (People for the peremptory challenges improper. explanation question Snow, 226; 44 supra, People v. at v. Motton Cal.3d 416, 176]; (1979) Cal.3d People v. Allen Cal.Rptr. Wheeler, 30]; 22 Cal.3d at People P.2d v. above, Here, as I the four factors set have established of application called suggest persons forth Wheeler that the two African-American only Bittaker, bias; were excluded because group contrast there were no reasons compelling justifying prosecutor’s Therefore, trial should peremptory challenges these court against jurors. not have chal assumed without that the inquiry prosecutor’s peremptory lenges remove two African-American called were for only jurors erred in constitutionally finding reasons. court permissible Accordingly, case, likelihood, that defendant had not established a facie or a prima strong matter, juror exclusion. This not end the however. discriminatory does II. outset, I case
As mentioned the establishment of a facie prima burden exclusion based on bias shifts the impermissible juror group merely prosecutor challenge a third against 6The in Turner later also exercised a peremptory juror called motion. We African-American who was after the defendant had his Wheeler made (People event prima noted this served to “confirm” the of a facie case. existence Turner, supra, 719-720.) pp. 42 Cal.3d at *68 to the the to show that were party exercising peremptory challenges they Wheeler, made for (People supra, v. constitutionally permissible reasons. 281; Cal.3d at p. Kentucky, supra, Batson v. 476 U.S. at pp. 97-98 [90 Here, so, L.Ed.2d at although by the trial court to do the required his burden of prosecutor discharged demonstrating a nonracial basis his exclusion of the in jurors question. motion,
After the trial court’s denial of defendant’s Wheeler the prosecutor advised the court that he intended to file a the reasons declaration explaining for the The If challenges. trial court “You do so. peremptory responded: may wants to he respond, judicial can.” Thus blessed with authoriza- [defendant] tion,7 the filed a prosecutor declaration explaining challenges. First, three reasons for Katie B. she prosecutor gave removing juror in the him “passive” she answered to believe she way questions, leading Second, might reach a decision that was thought not well out. she was “grossly overweight, unclean and wore an appeared cheap jewel- excess of he ry,” factors believed effective might prevent jurors. interaction with other Third, her in expressions facial and the manner which “com- responded she municated a in able to the of a difficulty being mentally process grasp criminal trial the involving death penalty.” T.,
With to regard juror Betty also articulated three reasons prosecutor First, for his of her. he was concerned that T’s peremptory challenge Betty degree her sociology might assign lead to for a “responsibility person’s economics, conduct to societal such as systems, and environmental influenc- Second, movement; es.” she was involved the nuclear freeze because disobedience, some members of that movement advocate acts of civil prosecutor thought Betty T. hold beliefs that lead her to might would Third, make a decision not based on the law. was dressed Betty style T. that made her look like “an aged to believe hippy,” leading prosecutor that she might be less to willing follow the law this case. so,
Despite trial court’s invitation to do defense counsel made no to the response prosecutor’s articulation of reasons for his peremptory challenges. Defense failure counsel’s to rise to the reasonable respond gives inference that the described prosecutor accurately the facts relating challenged jurors’ appearance and led peremptory behavior that to his chal- lenges of them.
Had the trial court found for his prosecutor’s explanations peremptory challenges convincing, that determination would have undoubtedly been Motion, 7Compare People (court page by Cal.3d at labeled affidavit filed defense as permission,” sought “filed without indicated opposition, affirmatively no affidavit). it took “no action” on the 1194, 1220 (1989) (See People v. Johnson on appeal. accepted or passive . be jurors appear P.2d . . [“if 1047] lawyer for the or unreasonable it would not be unusual types, timid remain”]; types other similar challenge though even peremptorily [them] Wheeler, fear bias on prosecutor may 22 Cal.3d at [“a suggest hair length clothes or of one . . because his juror simply . part Here, evaluated court never actually the trial an unconventional lifestyle”].) Neverthe challenged jurors. the two excluding reasons for prosecutor’s less, no apparent are and there is *69 plausible, the prosecutor’s explanations the (Indeed, jurors’ those of aspects should them. why reject reason we influenced well have significant may that the found prosecutor appearance a prima had established determination that defendant not the trial court’s of in the use peremptory facie case of discrimination group prosecutor’s it is not guesswork, a of challenges.) selection is often matter Jury for reasons such as for exercise challenges unusual to attorneys peremptory the in this case.8 given by prosecutor those (Batson v. by are a of trial jury. Peremptory challenges significant part 89].) Kentucky, They may at be based supra, p. p. 476 U.S. at L.Ed.2d juror [ranging] “on a broad of evidence spectrum suggestive partiality trivial, . from the virtually . . from the serious to the obviously apparently Wheeler, (People supra, to 22 Cal.3d at highly certain the v. speculative.” guard the both sides can p. Through challenges, use of peremptory will against jurors they try the case base possibility that before whom on their particular their decision not on the evidence before them but “undermine the con- prejudices. courts must be careful Accordingly, administration of challenge justice." tribution makes to the generally (Batson Kentucky, v. at L.Ed.2d at No supra, pp. 476 U.S. 98-99 [90 therefore, should party, right peremptory be denied its to exercise statutory Proc., (Code challenges 231) Civ. unless necessary protect opposing § right to a drawn cross-section of the party’s from representative Wheeler, community (People 276-277) v. at or to equal pp. protection (Batson under the law Kentucky, U.S. 82-83]). L.Ed.2d at pp. above,
IAs have discussed failure rebut the defendant’s prosecutor’s T., for plausible Betty reasons Katie B. and challenging prospective jurors so, the trial court’s that he do notwithstanding suggests invitation accuracy those I therefore conclude that under explanations. prosecutor’s juror “passivity” 8The with Katie and lack of prospective concern B.’s understanding process challenged that he several nature of the is reflected in fact (Ruth S.) difficulty or jurors passive other D. Pamela whose seemed who had answers understanding process. the nature of the Wheeler, supra, 22 Cal.3d at page sustained his prosecutor burden of that his explaining peremptory challenges of Katie B. and T. were for Betty constitutionally permissible reasons. I would affirm Accordingly, defendant’s sentence, conviction and death although not for the reasons expressed by majority. Mosk,
Appellant’s J., petition was denied rehearing 1992. April was of the that the opinion should petition be granted.