*1 S004555. Crim. No. Dec. [No. 1992.] 23185. PEOPLE,
THE Plaintiff and Respondent, PROCTOR, WILLIAM ARNOLD and Appellant. Defendant *14 Counsel Lascher,
Edward Lascher L. and Wendy C. under appointments by Court, Supreme for Defendant Appellant. General, John K. Van de and Daniel Steve Kamp Lungren, Attorneys E. White, General, Chief Assistant J. Robert Jibson and William G. Attorney Prahl, General, Deputy Attorneys for Plaintiff and Respondent.
Opinion
GEORGE, J. held in Following guilt of a trial Shasta phase jury defendant William Arnold Proctor was found of various County, guilty (Pen. against offenses committed Mrs. Bonita Stendal: first murder degree Code, 189),1 (§ (2)), degree forcible subd. and first rape §§ (§ 460). The burglary also found that defendant inflicted great bodily 12022.8), (§ and found true injury circumstance special allegations 190.2, (§ (a)(17)(iii)), he committed the murder in the course of subd. rape 190.2, (§ (a)(17)(vii)), course of first and with the degree burglary subd. 190.2, (§ (a)(18)). infliction of torture subd. After the declared a court trial, mistrial as to the defendant’s motion for penalty phase change venue as to that and after further granted phase, proceedings Sacramento the death After defendant’s County imposed penalty. denying verdict, motion for modification of the the court sentenced defendant to (§ (b).) death. This is appeal judgment automatic. subd. We affirm the in its entirety.
Facts 21, 1982, The evidence at trial established that on the evening April Stendal, defendant entered the residence of a widow living Mrs. Bonita alone, tortured, and sometime that the next evening early morning, raped, and murdered her. Defendant then her the trunk of her transported body automobile to a site near a lake miles where he off away, pushed body an embankment. Phase
I. Guilt Evidence prosecution’s
A. The case.
1. The crimes. Stendal, Mrs. Bonita years age, Burney, lived on Ponderosa Street a small mountain located 35 miles in Shasta community Redding east of Mrs. Stendal County. first Elemen- taught grade Burney students at the East tary (other School. The last defendant) than to see her alive on the person
1All further statutory references are to the Penal Code unless otherwise indicated. *15 Schmidt, 21, 1982, schoolteacher, who was a fellow Robert evening April with her in and then encountered Burney at the briefly spoke supermarket her later nearby drugstore, approximately p.m. 10 minutes at the 7:50
Later same Mrs. was neighbor, Olinger, the Stendal’s evening, Patty intersection at through seated her automobile as was the being pushed it Streets, and Ponderosa when Mrs. Stendal’s Marquette muddy she observed driveway vehicle the Stendal’s residence on Ponderosa parked Mrs. Street.2 had During two-year period acquaintance, Olinger of their her and known Mrs. Stendal to her vehicle inside never always park garage in the and known her driveway, had her vehicle clean. always keep Olinger observed the inside at this time. lights on Mrs. Stendal’s residence Humble, 8:55 Dena the sec-
Approximately following morning, a.m. school, at retary Mrs. Stendal’s was notified had failed that Mrs. Stendal arrive. Mrs. Stendal’s residence and no re- Upon telephoning receiving sponse, she telephoned Mrs. Stendal’s next-door neighbor teaching assistant, who informed Humble she did not know where Stendal was. Mrs. residence, Humble then proceeded to Mrs. Stendal’s herself letting unlocked door when walking through house no one to her responded counter, knock. Humble noticed a fork was on the oven kitchen and the door was open. Inside Humble garage, light noticed a was on and both of Mrs. school, Stendal’s automobiles were inside. notified the Returning to Humble police.
Approximately 9:30 that morning, Sergeant Larry Jarrett of Shasta County Sheriff’s Department conducted a brief search of the Stendal resi- dence. He observed that the house was neat very overall. There was an open counter, pickle jar and carving fork on kitchen and a drawer containing bedroom, carving forks large knives was partly bed was open. covered only by sheet. Eoff, Jarrett
Sergeant departed report to his Phil superior, Lieutenant thereafter, Shaeffer, and shortly accompanied by Michael an officer Sergeant identification, specializing evidence and searched they the residence more time, This thoroughly. the officers noticed that lines telephone leading to severed, the kitchen and den had been telephones and the the den drapes had been off the pulled hooks one end. The officers also observed one of the two vehicles in the was water garage from muddy, its dripping wells, fender and there were wipe marks across entire lid outside of its location, 2This witness testified she observed the vehicle in that condition and approxi mately 7:50 p.m. evening. reported This time does correlate testimony with the other witnesses as to the periods. relevant time *16 trunk, trunk. After locksmith opened it was discovered that the items trunk, inside have to been into the outer appeared pushed edges of the and the dust inside recently had been disturbed. 22, 1982,
At 4 p.m. that same day, April Robert and Susan newlyweds Porter their vehicle stopped shoulder of the road near an embankment Britton, at Lake located miles from order to let out their Burney, dog and take a photograph scenery. When Robert Porter looked over the embankment, he discovered a 11 feet from the body lying approximately road. The law couple telephoned enforcement authorities and waited by for their body arrival.
Sergeant Jarrett identified the as that of Mrs. It body Stendal. appeared have been thrown from the Tire tracks of the same roadway. as those design made tires on Mrs. Stendal’s automobile ran to the perpendicular road, and, tracks, from the tire marks led drag of the embankment. top waist, was clad in body a nightgown pulled to the and an unknotted up scarf was around the A draped neck. electric blanket green covered body. The hands were tied behind the victim’s back with four sets of ligatures, made of nylons, cloth and by means of various of “half-hitch” knots. types There were some cuts and “damage” to the face. Jarrett,
On the morning April Sergeant Shaeffer accompanied by and several other returned experts, to Mrs. Stendal’s house order take and obtain photographs floor, Beneath an fingerprints. area on the bedroom rug blood, discovered they a small pool of still which damp, to be proved the same type Mrs. Stendal’s blood. Other bloodstains were located on knob of the bedroom dresser.
That same day, authorities brought several longtime acquaintances Mrs. Stendal into the residence. These individuals observed that a brown or circumstances, beige she purse frequently used was missing, and that certain blanket, such as the unlocked front door and missing bedspread were unusual because Mrs. Stendal always locked the residence and very it kept neat.
On Dr. April Boyd of the San Stephens Francisco City County Coroner’s office an performed on the autopsy He estimated that Mrs. body. Stendal had been killed sometime between the hours of early evening April 21 and the early hours morning 22. She was April not killed at the location at which her body was found but had been there after transported death.
In Dr. Stephens’s opinion, Mrs. Stendal’s death was caused by asphyxia- tion, initiated by nonfatal manual strangulation later stran- by ligature gulation. The face had suffered numerous cuts and bruises from a blunt *17 the and also were swollen. force. The were swollen shut and nose eyes lips nine seven to these resulted from injuries Dr. believed that most of Stephens the neck. There There in the area of blows. were various internal injuries a by dragging a incisions caused were number of shallow stab wounds and some of the area the neck. The curvature of across skin of weapon There deliberately. inflicted and injuries slowly indicated had been they breast right were seven wounds than inches to the area less two deep alive but unable to which had been inflicted while Mrs. Stendal still was were her In Dr. these wounds away Stephens’s opinion, move from assailant. inflicted for the fear. purpose causing pain of death, on the stretching injuries
Prior to Mrs. Stendal had suffered four In the vagina. labia and a fifth which extended into the of injury opening aby foreign object, coroner’s four of these were caused opinion, probably fifth, and the a There inside or on the body. was no semen probably penis. alive, while injury Also Mrs. Stendal had received a blunt-force area of her right There also were blunt-force to her left foot. kidney. injuries used tie her cut her ligatures hands were tied so had into tightly they wrists. There were mortem abrasion attributed to post injuries dragging body.
On April officers returned to the Stendal residence to perform occasion, systematic On of investigation. they this noticed small amounts bed, blood on the bedroom After and nightstand. dismantling removing found, bed, they near the location of head of the one approximately dozen pamphlets. Some of the had blood on them and one pamphlets to contain a Other latent were appeared bloody palm print. palm prints obtained from the booklets. The blood on some of the later was pamphlets identified as being of same as Mrs. Stendal’s. The door to the type master bedroom on the facing side the den to have been with appeared wiped a damp, dirty rag. 2, Sergeant
On Jarrett returned May to the residence and noticed a butt from an unfiltered cigarette cigarette outside a window of the lying residence; there were also indications a hand had been on the window sill obtained). no (although could be fingerprints
2. Evidence involvement. of defendant’s In view of the circumstantial nature connecting of the evidence defendant crimes, to the commission of the and the nature of the defense that was trial, at we presented consider it necessary to set forth substantial detail the evidence to defendant’s activities relating immediately preceding following commission of the murder. (who age
Mrs. Stendal’s son David of at the approximately years trial) time he of had lived with Mrs. until when moved to Stendal trial) (20 Chico. David had defendant time years age known (26 trial) Robert at the time Manley years age years for several often had smoked with David had concealed marijuana marijuana them. *18 in various locations within the Stendal residence until 1979 or sometime mother, 1980. resided with Manley Manley, his Neta less than one block from the Stendal residence. 18, 1981, 9, 1982,
From defendant February to was not April present In Burney area. late defendant commenced a four-week January School, general at Truck he received truck-driving course Western where instruction tying knots. Students at the were to tie several taught school knots, types trucker’s which knots were identical to those found on the ligatures used to bind Mrs. Stendal’s wrists. Stendal,
Approximately two weeks to the murder of Mrs. defendant prior returned to live with his mother and two brothers Burney. early hours of either morning Saturday, 16 or defendant and Friday April Robert Manley made four or five obscene or “crank” calls from telephone residence Manley to various residents. Robert tele- Burney Manley phoned Mrs. Stendal and told her he would like have relations with to sexual her. Defendant made a unnamed separate obscene call to an telephone person. 21, 1982, residence,
On April defendant hitchhiked to the Manley arriving approximately p.m. Mrs. returned from work at 3 Prior to 5 Manley p.m. Mrs. p.m., Manley drove defendant to a market to Burney purchase liquor. residence, When returned they to the the three had a drink and then Manley ate dinner at 5 p.m. 5:30 defendant and Robert Approximately p.m., Manley store, walked to a local convenience where two Manley purchased packs (the unfiltered Camel smoked), brand and both cigarettes type they giving one pack to defendant. returned drink They Manley residence to television, watch a baseball game and remained there after Mrs. Manley at departed Defendant had three p.m. game or four drinks. baseball commenced approximately 7:35 Between 8 and 8:30 defend- p.m. p.m. p.m., ant his mother to he telephoned was at the residence and report Manley intended to remain there the night. for 8:30 defendant
Approximately p.m. Robert departed, informing Manley that he was going one of the local bars to and would a woman “pick up” left, thongs, wearing he defendant was When night. return later to spend socks, shirt, bor- windbreaker and a gold-colored a blue jeans, white blue jacket have his own defendant did not Manley, from Robert because rowed his at the residence defendant arrived after 8:30 Shortly p.m., with him. resi- Bohall, Manley from lived five to six blocks friend who Jeffrey re- Defendant the Stendal residence. five blocks from dence and four to when he departed until before p.m., mained at that location sometime Defendant inquired butt.” drinks and “get piece to have a few order declined. Bohall’s him Bohall but accompany whether Bohall wanted visit, mother, Bohall, testified defendant’s during was home Juanita who light- or cream-colored and an off-white wearing jeans defendant was blue remember his not clearly She could with a rust-brown trim. weight jacket lightweight. shoes were thought they but 10:30 p.m. to her residence between
When Mrs. returned Manley Manley retired defendant was not When Robert evening, present. p.m. *19 movie, defendant a game late-night 2:30 a.m. after the baseball and watching 5:30 and 6 When left for work between still had not returned. Mrs. Manley a.m., According to defendant’s defendant not at the residence. Manley was mother, Proctor, residence did return to the Proctor Julia defendant during night of 21. April aunt, sunrise, defendant’s
After at 5:30 a.m. on the morning April Palkki, the street front of defendant across walking Sharon observed residence, feet from Mrs. which Palkki’s was located approximately residence, in Johnson Stendal’s several miles from defendant’s residence loose-fitting blue wearing Park on outskirts of Defendant was Burney. socks, sandals, was a pair gloves white and what be jeans, appeared a.m., defendant from Between 6 a.m. and 7 dangling right pants pocket. his brother, Proctor, give Ed him to have their mother telephoned instructing his witness observed defendant a ride home from the local market. Another time When during period. defendant from that location the same telephoning and a wearing jeans defendant’s mother him was blue defendant picked up, windbreaker, did not which she did not His mother gold-colored recognize. testified he wearing remember the defendant was but of footwear type owned a pair thongs. and tele- Manley 11:30 a.m. on Robert arose
Approximately April defendant, (defend- had his who informed that defendant seen phoned Manley driven with her. ant’s) mother downtown the and had home previous evening When Robert defendant whether he had watched the baseball Manley asked movie, home, game, the television at defend- late-night program other not, ant he tired and sleep. he had and stated was wanted to responded Defendant to meet agreed Manley Robert after defendant’s doing laundry. residence, Later day, Manley that Robert and his mother drove to the Proctor where they defendant. in order picked up They proceeded Redding purchase tickets to a jacket concert. Defendant returned Robert at Manley’s time, and Manley observed it was cleaner than it had when he had been given it to defendant the After off and previous evening. being dropped tickets, obtaining Robert and defendant met two Manley women spent night with them at a in Redding. motel On the morning of April Shasta officers defendant and County brought Robert to the Manley sheriff’s station for Defendant told Ser- questioning. geant Jarrett that he had been at Manley’s Robert residence until 8:30 p.m. April and then had into he gone Burney. Defendant stated had received a ride home evening from an unidentified man in a pickup residence, mother, truck. At his defendant had some knives for his sharpened and had been home several hours before at Defendant did retiring p.m. not arise until 9 a.m. on and did April not leave the residence until after when he p.m., went to Redding with Robert Manley spent night a motel. Defendant showed Jarrett a motel room which defendant receipt, volunteered he had “for an kept anything alibi case flared Defendant up.” denied having visited Mrs. Stendal’s residence.
Defendant placed custody for violation he admitted to the parole officers. One of the officers observed that had defendant suffered abrasions knee, below each and that there were what to be five or six appeared *20 somewhat parallel scratch marks above right defendant’s knee. On April Dr. examined Stephens defendant’s and determined leg injuries they proba- old, were bly two and days had not been sustained of through any layers but rather while clothing defendant’s were uncovered. The were legs injuries similar to injuries Dr. had Stephens observed other sexual assault cases.
On May Mrs. Proctor visited defendant and afterward custody informed one of detectives that her had her son asked to tell Sergeant Jarrett that he had been at home on the of the murder. When night Mrs. otherwise, Proctor had advised defendant she had told Jarrett defend- already ant asked her to tell Jarrett that defendant had been at a that party evening.
The bloody obtained palm print from one match pamphlet proved to other, defendant’s and the palm print, latent obtained from the palm prints booklets also matched A defendant’s faint palm prints. very from print footwear was found at the location where the was discovered and body to be similar proved design to the tread of a recovered from pair thongs of defendant’s On possession. defendant was May under arrest for placed murder of Mrs. Stendal. case.
B. defense to the several years prior Defendant had known Robert for Manley Stendal, Mrs. David had known murder. He testified he was with acquainted had inside the Stendal Stendal three to four and been approximately years, and Manley residence on Defendant testified twenty thirty or occasions. occasions, on many David Stendal had used and marijuana amphetamines and on at least two prior had broken into the Stendal residence Manley him A testified that had informed Manley occasions. defense investigator locating drugs. that one entries had been for the purpose that, he had evening, Defendant testified after drinking previous morning day awakened on the to Monday Tuesday prior murder, with the bruises on his which the officers later had noticed. legs 21, 1982, he and Defendant further testified that on the afternoon of April drank mixed with residence. Defendant Manley whiskey Manley cola at Chico, wanted talk Manley to attend a concert Manley began retrieving various he had in the drugs which knew David Stendal secreted residence, Stendal and which intended to sell Manley defendant believed order to raise After or three money having tickets. two purchase drinks, defendant left the after Manley shortly p.m. household 8:30 residence, he remained or 10 proceeded Jeffrey Bohall’s where until 9:30 After p.m. Bohall refused to defendant to defendant left accompany “party,” on foot to purchase (his Camel filtered brand and at a Light, cigarettes type) hours, store. The walk him liquor to the store took one and one-half and he returned to Manley’s residence approximately midnight.
Upon arriving, defendant was unable to locate and retired to an Manley later, upstairs bedroom. Defendant awoke several at dawn on 22. hours April Defendant could find but at time a note ad- Manley, this discovered dresser, dressed to defendant on the side of the him notifying Manley had departed to “check Stendal’s stash” and would return Defendant shortly. *21 decided to follow to the Stendal residence. Manley arrived,
When defendant door was but Mrs. Stendal’s garage open automobile was not inside the The were turned on the front garage. lights room, knock, and after no one through to his defendant entered responded the unlocked door. Defendant did locate either Robert sliding glass Stendal, Manley or Mrs. he but noticed a of blood next to the bed that puddle kind “just of tested” by touching it with the back of his hand. He noticed some pamphlets between the bed and a did nightstand touching but not recall which his later were Defendant pamphlets upon palm detected. prints market, immediately ran out the back door he to the where his telephoned home, mother to ask him that she At pick up. defendant for several slept hours and telephoned Robert Manley approximately 1:30 22. p.m. April He did not launder his clothing.
After defendant and were Manley off dropped Redding by Manley’s mother, told Manley defendant that the Mrs. Stendal had previous evening, become ill and had Manley driven her to the Manley could not hospital. explain defendant there why was blood on the floor of the Stendal residence. murder,
The found defendant guilty degree first and rape, burglary, with an enhancement for great true the bodily injury, found three charged special-circumstance After the allegations. agree could not as to penalty, mistrial was declared. Defendant renewed his motion for change venue, which was granted, and retrial of the was conducted penalty phase in Sacramento County. Penalty
II. Phase Evidence
A. The prosecution’s case. The prosecution evidence presented to the County jury Sacramento sub- stantially similar to the evidence to the presented County Shasta jury, including following: Mrs. Stendal was last seen shortly alive before 21, 1982; 8 p.m. on April that when she failed to appear following day school, commenced; for a brief search that the body was discovered on April 22,1982; and that subsequent forensic examination of the revealed the body injuries described above. The evidence obtained at Mrs. Stendal’s residence was presented, as was the testimony of Mrs. and Robert Manley Manley concerning defendant’s actions and whereabouts on the evening of The murder. two witnesses who had observed defendant near the murder 22, 1982, scene on the early morning April testified. The prosecution presented evidence of defendant’s with familiarity trucker’s knots. addition, the prosecutor defense counsel that in 1980 and stipulated convictions, defendant had suffered two second degree burglary 1981 also had been convicted of vehicle theft.
B. case. defense The defense presented two witnesses. Defendant’s brother Ed testified that defendant did not have difficulty getting “dates.” At 9 a.m. on April 1982, Ed returned from a to find defendant trip at the Proctor residence. *22 From that time until 12 p.m., defendant Ed a Defend- helped repair vehicle. ant did not wash his clothes that morning. family father left the defendant’s
Defendant’s mother testified year. his sophomore after high out school Defendant had of dropped 1981. led. easily who him as a follower characterized Defendant’s mother to disrespectful him be hostile known Defendant’s mother had not Mrs. Stendal about derogatory say anything women in or to general, particular. death. fixed the penalty the jury the penalty phase,
At the conclusion of
Discussion Phase Issues
I. Guilt venue. change
A. Motion of for his repeated erred denying Defendant the trial court contends 1033, subdivision to section venue.3 Pursuant change motions for of if “there is a venue for of (a), change the court must a motion grant in the cannot be had fair and trial impartial reasonable likelihood that a context “means some likelihood” this “reasonable county.” phrase ” not,’ than merely more “something less than ‘more than thing probable ” 687, 659, (1988) Cal.Rptr. 46 Cal.3d (People v. Bonin ‘possible.’ [250 motion, defendant bears 1217].) In on such a as to which ruling 758 P.2d and nature of the gravity burden of the trial court considers as factors proof, crime, nature of the the size and the extent and nature of publicity, victim, (People v. the accused. the status and the status of community, of 436]; (1991) 819 P.2d Edwards Cal.Rptr.2d People Cooper Bonin, 865]; 672-673.) change the denial of a following “On after a judgment appeal venue, denying erred the defendant must show both that the court motion, i.e., reasonably motion it was of venue that at the time of the change i.e., had, was prejudicial, fair trial and that the error likely that a could not be had. it that a fair trial was not in reasonably likely [Citations.]” [is] fact added; 787, 807, Edwards, supra, 54 Cal.3d italics (People v. 771, 805-806.) Cooper, supra, 53 Cal.3d defendant on of a regard showing required
With first part the trial ultimate we a standard of de novo review of court’s appeal, employ 14, 1982, 2, 1982, September on entering plea guilty August 3After of not on defendant 23, 1982, venue, September change summarily moved for a which motion was denied Court, On ground Rules of rule 841. comply on the the motion did not with California venue, 8, 1982, consid change which the court October defendant filed a second motion 7, 1982, his motion defendant renewed ered and denied on October On December 1982. venue, change for which was heard and denied on that date. *23 524 (People
determination of Edwards, reasonable of an unfair trial. v. likelihood 807; 771, 787, supra, 54 Cal.3d 53 Cal.3d People Cooper, supra, v. 805-806; Bonin, 659, People 676-677.) v. supra, 46 Cal.3d This our requires determination independent of the of the five factors weight controlling Bonin, 659, 676-677; (People described supra, above. v. 46 Cal.3d v. People 144, 184, (1985) 41 480].) Balderas Cal.3d 177 711 P.2d Cal.Rptr. [222 With regard second of the whether part showing, order to determine had a pretrial publicity prejudicial effect on the we examine the jury, also 1132, voir dire (1992) of the 1 jurors. v. Howard Cal.4th 1167 [5 1315]; 824 P.2d Cal.Rptr.2d People (1987) v. Anderson 43 Cal.3d Balderas, 1306]; 1131 742 41 Cal.Rptr. People supra, P.2d v. 144, 177.) Cal.3d offenses,
Although defendant was with charged very every serious capital case a serious presents charge. weight This factor adds to a motion Howard, for change of venue but is 1 dispositive. (People v. 1132, 1167; 771, 806; Cal.4th People Cooper, supra, Balderas, supra, 41 144,177.) The nature acts committed upon venue, the victim is a factor that would tend to a but not support change murders, to the of a degree case serial involving for example. (Compare Jennings 360 factor, Defendant that the urges second the nature and extent of pretrial publicity, virtually compelled of venue. of his renewed change support motion, defendant produced of articles copies appearing newspapers two (six News, in the Inter-Mountain and approximately twenty Redding Record Searchlight, 1982) between 1982 and and more than April August sixty copy-notes from local television or radio broadcasts which aired during the same period. of these news detailed the Many condition which reports death; Mrs. Stendal’s body was found and the circumstances of her several included the circumstance that had defendant’s been found at the palm print scene, murder and several reported that the intended to seek the prosecutor death penalty because of the heinous nature of the crime.
The defense also produced the results a telephone public-opinion survey conducted on 21 September 1982. The survey revealed contacted, of 169 persons (or 136 contacted) 80 of those had heard percent case; (or 55 percent contacted) of those had heard of an arrest made; (or been having contacted) 31 percent of those had an formed (of as to opinion 52) (or defendant’s guilt, those persons percent) had formed their from opinion reading Record Searchlight 5 other persons had formed their from opinion reading Inter-Mountain News. *24 a of survey change
Defendant that the results of the urges compelled however, the was not survey, venue. The of indicated degree exposure of venue been greater required. than other cases in which a has not change 334, 359, (See, People supra, e.g., Jennings, percent v. 53 Cal.3d 361 [72 recalled the there case very strong offenses and 31 believed was a percent 112, defendant]; against the People (1989) v. 48 Cal.3d Coleman 813, 768 P.2d the crime 31.4 Cal.Rptr. percent recalled percent 32] [46.3 believed the defendant was definitely guilty].) or probably
An additional consideration is that the of the be impact publicity may mitigated due the time of between of news lapse issuance publication reports and commencement of v. (E.g., People Jennings, selection. 334, supra, 53 Cal.3d months trial did [publicity eleven not prior Anderson, venue]; require of change People supra, v. 43 Cal.3d [danger months]; of prejudice reduced significantly lapse with of five (1972) v. Welch 8 Cal.3d 113-114 225] reports ending just one [news over month to trial did not venue prior require change].) Passage of weighs (People time against change a of venue. Edwards, supra, 808.) 54 Cal.3d case,
In the present of the lapse nearly three months between issuance 17, 1982, of the last report August commencement of jury 10, 1982, selection on November helped dispel potentially prejudicial effect of the news reports of killing. Although extent and content of a pretrial indicate publicity potential for the circumstances that prejudice, trial, had reports abated in the months that trial preceding held in (35 Redding miles from a not the Burney), larger community locus of crime, lead us to conclude that a of venue change upon based pretrial publicity was strongly indicated. “ next factor to be considered size is the ‘The community.
larger the local population, the more is that likely it about preconceptions case have not become imbedded in the public consciousness.’ [Citation.]” Jennings, supra, 363.) The size the county by of determinative; rather, itself is not the critical factor is whether it can be shown that the size of the population enough is to neutralize large or dilute of adverse impact (Ibid.) publicity.
Defendant’s trial took place late 1982. Shasta County, which 3,850.2 Cal., encompasses (State square miles of Cal. Statistical Abstract A-l, 2), 122,100, table p. then had a population approximately it ranking Cal., 28th out of (State 58 counties the state Cal. Statistical Abstract, B-3, supra, 15). out, table p. As defendant has pointed cases have more frequently of similar size with involving populations counties counties. populous more involving venue than cases changes occasioned Balderas, 178-179.) not agree We do (See however, the death penalty case involving with the suggestion, every Therefore, if of this size. county merits a venue it arises change venue, it is not change of a this factor somewhat favor although weighs *25 determinative. the of status and prominence
The fourth and fifth factors are the respective a Stendal was In Mrs. Burney, defendant and his victim. the town of in community, the well-liked active participant well-known and apparently was described as in system, had 20 the school Burney years’ experience had any that she It does not appear kids.” having “taught everyone’s small, the in area outside greater-county or status the particular prominence 3,000) in had a of (Burney population approximately town then isolated of whose Burney, was a resident longtime which she lived. Defendant also he the brief fairly periods were interrupted only by ties to the community had he facilities. Although previously at Youth Authority California spent offenses, and news accounts felony convicted of nonviolent been several Youth at the California murder his confinement prior after the reported to, commitment, stranger means a by he was no burglary on a Authority Balderas, in, 41 Cal.3d (see supra, People v. community friendless to appear involvement does not 179), his criminal degree prior and the of Burney. of community even in the small notoriety earned him any great have defendant within the victim and Although respective positions venue, not this factor does for a change lend community might support in a of venue. change favor of weigh heavily in total, weigh not strongly described factors do
Considered above have might indicate a venue change but against change, simply favor of or that, an possibility he established although desirable. It appears been venue, his of proving defendant failed to burden carry trial this unfair County from Shasta that drawn jurors was a reasonable likelihood there the pretrial publicity fixed as a result of opinions have formed such would (See with impartiality. make the determinations required could not they that Bonin, 659, 678.) 46 Cal.3d supra, v. People however, issue, next to we turn of the the relative closeness
Considering did defendant ruling—that trial court’s whether error thé the question is, whether the record his burden—would be carry prejudicial, not fair trial. receive a he did not fact a reasonable likelihood demonstrates mind, determine voir dire to we consider With this purpose pretrial publicity have been jurors may prejudiced whether case, in mind no of a surrounding deprivation bearing presumption concerning law from process juror of due arises exposure publicity P.2d case. v. Daniels Cal.3d 853 [802 People Cooper, In not where supra, prejudice v. 53 Cal.3d was shown “ ” three had only jurors been information’ concern exposed ‘prejudicial the case all had fair. ing they and on examination stated could be jurors (Id., at 807.) In p. People Jennings, supra, prejudice not they established demonstrated were jurors where voir dire selected 363.) (Id., “tainted” In by the modest at pretrial publicity. p. Bonin, where, supra, even was not prejudice demonstrated though prior jurors to trial 10 of the and 3 of the 4 alternates had been exposed news most had received and minimal coverage, exposure. indirect (I Anderson, d., 678.) p. no *26 prejudice was found where of the no of eight jurors knowledge selected had issues, case, the facts or the three of others had read little about the one details, recalled the in general case terms but in and juror none of its each he stated or she had formed no and and reach opinion could would a decision based on the (Id., 1131.) evidence at In presented trial. p. Balderas, supra, 41 Cal.3d no where six of prejudice demonstrated case, the selected jurors professed ignorance of the four recalled pretrial reading reports, but none had followed the All case or recalled details. many of the selected stated jurors they could aside any impressions set obtained outside the courtroom and could consider the evidence without being preju Welch, diced pretrial publicity. each facts, of the selected jurors was unfamiliar had with not formed any innocence, of the opinion defendant’s or guilt or stated he or she act could and (Id., 114.) fairly impartially. at p. case,
In the defendant present out that all but three had points jurors television, radio, watched on heard on read in some newspapers reveals, however, thing concerning the case. Our review of the record that of case, most those jurors had only received minimal pretrial exposure to the that such exposure took a place during well commencement of period before trial, that the jurors had not been informed of the evidence linking occurred, defendant to the case but that the only murder had when that on questioned subject, of all these attested their jurors ability put aside they had learned everything about the case and to decide the issues based solely the evidence at trial. presented that,
We also observe in renewing the motion upon completion of selection, defendant did rely not upon actually substance of the answers given voir dire to contend the jurors had formed based opinions upon fact, defendant, in acknowledged the assurances of pretrial publicity; Rather, the case. knowledge would aside of jurors they that put prior that, on the percentage defendant reiterated the made earlier based only point indicated had they of defendant’s who persons answering telephone poll those who actually formed an it was some of opinion, reasonably likely their served no matter what opinion, on the also had formed an dire on subject. had been the voir this responses that trial court granted defendant that the circumstance urges Finally, retrial the penalty phase his motion for a of venue change prior for recognized prejudice. court the true suggests belatedly potential the trial demonstrates, however, defendant’s renewal of his The record that upon the court motion the first trial of the penalty phase, at the conclusion of had been intensive the motion on the there expressly granted ground trial, of the additional the entire during guilt penalty phases publicity basis, and therefore the likelihood which the media had attended on a daily a fair in the had county trial diminished. evidence, has we defendant totality considered conclude Having reasonably met both it was demonstrating not his burden on appeal a a fair trial in Shasta absent likely County change he could receive venue, that it was he did not fact receive fair trial. reasonably likely Therefore, is reversal not required.
B. evidence. Sufficiency of degree
1. First murder. murder, In degree prosecution pro- of the of first support allegation deliberation, ceeded torture three alternate theories: and upon premeditation murder, (based of and bur- felony upon rape and murder the commission defendant, under of these According guilt proved his was not glary). theories. entire in the most favorable to the
Having light reviewed the record fact trier of fact reason every and the existence of judgment presuming evidence, could that a rational trier have deduced from the we conclude ably elements of of fact could have found a reasonable doubt the essential beyond (People under first murder. defendant’s each of these theories of guilt degree 1210, 640, 899]; P.2d Pensinger (1991) v. 805 Cal.Rptr. 1237 [278 431, 557, P.2d People (1980) v. Johnson 576 606 [162 738, 1255].) 16 A.L.R.4th
a. Premeditation deliberation. case, one, circumstantial evi a such based present upon as dence, we must whether the circumstances reasonably justify decide
529 fact, also might of the trier but our findings of circumstances opinion with not warrant rever- reasonably contrary be reconciled a would finding 1117, 1124 (1992) sal 2 judgment. (People v. Cal.4th [9 Perez 577, 831 P.2d Cal.Rptr.2d
In order a to ascertain whether evidence is sufficient to sustain deliberation, first finding of murder based we degree premeditation upon motive, method, examine there generally whether is evidence of planning, Perez, 2 these Cal.4th although supra, factors are not exclusive. v. 1125; Cal.4th 489, (1992) Thomas 2 v. 517 Cal.Rptr.2d 101]; v. 2d People Raley Cal.4th 887 Cal. Rptr Edwards, 712]; P.2d 813-814.) When the record discloses evidence all three the verdict categories, Otherwise, will be sustained. generally for first murder degree convictions “ have been where typically there is ‘either upheld very strong evidence or some planning, evidence of motive with or a conjunction planning deliberate manner killing.’ (People Raley, supra, Cal.4th [Citations.]” 870, 887.)
Our review the record reveals all three falling evidence within With categories. (the respect evidence planning, cigarette unfiltered butt found near a window and a windowsill) on the an handprint supports inference defendant a of time spent period just outside Mrs. Stendal’s her, residence observing before Once entering to commit offenses. inside, defendant rendered the subject victim his control complete victim, her tying hands and cutting After lines. telephone binding had defendant significant period of time which to contemplate plan her eventual death he engaged (See People various acts torture. Raley, supra, 887.) Cal.4th *28 clear,
Although evidence of defendant’s motive is a trier less rational of fact could have determined that defendant’s motive Mrs. murdering Stendal was to avoid detection for the sexual and abuses he physical other Perez, (See 1117, had committed her. against People supra, 2 v. Cal.4th 1126; 870, People 887; Raley, supra, v. 2 People (1990) Cal.4th v. Turner 50 668, 706, Cal.3d 688 Cal.Rptr. 887].) [268 the manner Finally, of killing of The supports finding premeditation. evidence establishes that defendant strangled victim—first sequentially and then manually, means of by her ligature—after subjecting to prolonged physical wounds, abuse of through infliction various of some types of wounds, which were not During random. the infliction of these defendant could have quickly dispatched by victim stabbing beating, means of and
530 an unreflecting suggest had he chosen do so. These circumstances do not to violence, kill by to the victim design of but rather a explosion preconceived chosen, in the process. means to her prolong agony particular 787, 814; Edwards, 2 supra, People Raley, 54 v. (People supra, v. Cal.3d see evidence, 870, Therefore, circum- 887.) although Cal.4th we conclude the stantial, premeditation for an inference of affords an foundation adequate deliberation, a rational and is sufficient such a conclusion support to trier of fact.
b. murder. Torture defendant finding is support The also sufficient evidence “ ‘Torture murder is killed the with the intent torture her. victim wilful, intent to “murder committed with a deliberate and premeditated ” 2 (People Raley, supra, inflict v. extreme and prolonged pain.” [Citation.]’ 870, 888, 1210,1239.) Pensinger, supra, Cal.4th People v. quoting intent, warrant punishing per Such considered sufficiently culpable murder, for pain for is the calculated intent to cause degree first petrator “ ‘ extortion, sadistic revenge, “the or for other persuasion of purpose ’ ” 870, 888, 2 v. Raley, v. Cal.4th (People quoting purpose.” 135, 881]; P.2d see also Wiley(1976) Cal.3d 554 Cal.Rptr. 18 168 [133 P.2d v. 1101 774 Cal.Rptr. Bittaker Cal.3d 659]; (1985) 41 People Davenport Cal.3d “However, relationship P.2d there must be a causal between death, as defines the crime
torturous act and Penal Code section 189 Pensinger, supra, murder ‘by (People means of torture. [Citation.]” 1210, 1239, 267.) Davenport, supra, Cal.3d People v. quoting Defendant, “drag” relying the evidence that numerous upon for the knife across the victim’s chest were not inflicted apparently wounds death, causal death and did not cause asserts that no causing purpose death. torturous and Mrs. Stendal’s relationship exists between these acts her death caused by This the additional evidence that ignores assertion bound, beaten, strangulation after she not had been only manual ligature described, received just but also had a series and stabbed the manner (described below), inflicted over her entire fully more injuries additional murder-by-torture totality body. finding encompasses acts which led to victim’s death. brutal and the circumstances *29 443, 542]; (1985) Cal. 456 see also Cal.Rptr. 169 App.3d [215 Talamantez 498]; (1990) v. Joseph St. 226 297 Cal.App.3d Cal.Rptr. [276 v. People Hindmarsh 185 349 Cal.App.3d in The acts of into their constituent elements may torture be segregated rather, death; to the order determine whether act caused single by itself any
531 (People is the that the v. it continuum of sadistic violence constitutes torture. Talamantez, 456.) supra, Cal.App.3d p. 169 at case,
In the the victim was to two present subjected strangulation by skin, methods, different her wrists were so as to cut into her tightly bound she have her be was beaten the face caused to severely enough eyes swollen, swollen shut and her to be she severe blows to other received lips of parts body, her and repeated, she suffered stab wounds incision-type neck, chest, her that amply breast area. We conclude this evidence the Mrs. supports finding by Stendal’s death was about torture. brought Defendant contends the trial court erred the additionally instructing 8.24,4 pursuant to the then-current version of CALJIC No. because the evidence did not establish that the the victim’s As torture caused death. above, explained there ample was evidence to demonstrate that the murder Thus, did accomplished by means of torture. the trial court not err giving this instruction. it in the
Although is of his of challenge context to the sufficiency the evidence to the torture-murder support special-circumstance finding defendant the questions also sufficiency of the evidence to establish torture, intent for the sake of convenience we review related this claim this point our because opinion, intent to torture also be present must order to sustain of degree conviction first murder on a of torture theory murder. Again relying exclusively on evidence of marks on “drag” chest, victim’s defendant urges that the intent to torture be specific may not inferred from the solely condition of the even body, victim’s because severe wounds be as with may consistent “an violence” with explosion of as torture. Mincey v. 2 (1992) Cal.4th Cal.Rptr.2d P.2d 388]; 870, 888; People Raley, v. supra, Cal.4th People Davenport, supra, which, 268.) Intent is a state of mind by unless established statements, the defendant’s own must be proved circumstances sur rounding commission offense (People Mincey, supra, Cal.4th 408, 433; see also v. Pensinger, supra, 1239), which include the severity of the (People Mincey, victim’s wounds. 408, 433.)
Cal.4th case, wounds, In the present coroner testified that many the victim’s marks, knife “drag” particularly were inflicted while still she was alive Instns., (Cal. (4th 1979)), 4The version of CALJIC 8.24 Jury No. ed. Crim. read to one, provided in jury, pertinent part: “The essential elements of murder are the act or [torture] death, two, which acts caused death high degree must involve a probability must defendant commit such act or acts pain suffering with the intent to cause cruel for extor[t]ion, purpose revenge, persua[s]ion or purpose.” for sadistic *30 The avoiding had rendered of further attack. incapable but after she been slow, had been revealed that a methodical relatively approach wounds sudden, infliction, from having in their rather than their resulted employed wounds, re- the the many including The nature of of explosive violence. knife the well as the peated body, blows to the face to other of as parts and marks, a period administered substantial “drag” that were over suggests they on the suffering of time inflict cruel and that defendant intended to pain victim. with the that the victim was isolated Considered circumstances acts, this evidence estab- from these prevented resisting escaping during or lishes defendant’s intent to torture the victim. Felony murder.
c. degree of finding The evidence is sufficient a first support also to murder, underlying whether the felony murder based the upon theory have as is to be or “We felony rape burglary. required considered had the the find the part felony-murder perpetrator of the doctrine that felonies, enumerated even where that intent to commit one specific Hernandez felony is a crime such rape. [Citations.]” 1289].) It is also established Cal.3d P.2d Cal.Rptr. of the killing felony, that the need not occur the midst of commission to, to, an afterthought so as that is incidental long felony merely 348; (Id., Hayes (1990) 52 killing. see p. him to the linking of evidence ruges
Defendant that the items only found near the cigarette are the unfiltered butt rape commission residence, night residence on and certain question, his presence seen which were to marks on legs expert opined marks his an similar cir additional other of sexual assaults. Defendant perpetrators ignores present evidence that a short time to the commission prior cumstantial offenses, a nature to harassing calls of making telephone he participated call a sexual and was when his made a present companion various persons committed, victim. On were evening to the murder offenses nature woman, a witness that he going pick up defendant informed one was he evidence that Mrs. going “get that was a of butt.” piece another death, her This raped, was uncontradicted. forcibly prior Stendal evidence, with was tied considered the circumstances victim in the art of trucker’s manner consistent with defendant’s formal education knots, his knee right that the abrasions defendant’s knees and above below unclothed, were incurred were and that these by defendant while his legs abrasions were in other cases of sexual consistent with observed injuries assault, defendant finding amply support jury’s implied specifically
533 intended to that the a mere incident of the rape rape commit and was not murder. is a support
Defendant also there insufficient evidence to urges burglary of murder the of finding felony underlying felony based upon there is no the with the demonstrating because evidence he entered residence (§ 459), felonious intent Such requisite this case the intent to commit rape. intent must usually be inferred from all the and circumstances revealed facts evidence, the because can it be only proved directly. rarely (1974) Matson 41 Cal.3d view Cal.Rptr. (1) of the described evidence of conduct in the previously defendant’s hours residence, preceding (2) his the entry spent Stendal the evidence he residence, period immediately time outside the presumably contemplating act, (3) his next the methodical manner in which defendant isolated abuse, victim and committed the rape, physical finally nonsexual itself, murder it is that clear a rational trier fact conclude defendant could had the felonious requisite intent to his into the residence. prior entry Special
C. circumstances issues. 1. special Torture-murder circumstance.5
Defendant contends the trial court erred to failing instruct jury that find order to the special circumstance under charged section 190.2, (a)(18) true, (murder subdivision torture), to had involving be it to determine that defendant (Peo to possessed intent torture Stendal. Mrs. ple v. Davenport, supra, 41 Cal.3d 271.) defendant’s jury case was instructed order find to the torture-murder circumstance special true, intentional, it must proved: be “1. That the murder was 2. That [¶] torture, the murder involved the infliction of prove To the infliction of [¶] torture, the infliction of extreme physical must be no pain proved matter how duration, long its Awareness of [ft] the deceased pain by is a necessary (CALJIC element of torture.” (4th 1979).) No. 8.81.18 ed.
Although this instruction did not inform specifically that the torture,” “infliction of torture” concept included an “intent nothing to in the instruction was inconsistent with that of the Simi understanding concept. 408, 455, in People to larly juries Mincey, supra, 2 Cal.4th and People 794], v. Wade P.2d noted, previously 5As we have sufficiency discussed defendant’s attack circumstance, evidence of the special torture-murder specifically that the evidence was torture, claim insufficient establish intent in resolving defendant’s related evidence was insufficient degree sustain his conviction theory of first murder on a ante, (See torture 530-532.) murder. pp. first torture degree both as to guilt phase was instructed present degree The first circumstance. special murder and as to the torture-murder *32 “intent to that an jury torture murder instruction informed specifically 1979)) a (4th was (CALJIC No. 8.24 ed. suffering” cause cruel pain Wade, in record in “nothing present element the offense. As required of have drawn . . . distinction in this case was to suggests jury likely 994.) (44 at p. in in Cal.3d the use the term ‘torture’ the two instructions.” of Wade, Also, at suggested counsel “neither the nor defense prosecutor as established circumstance could be that a torture-murder any point special 994-995.) (Id., intent at pp. without first an to torture.” proving 1254-1255, sure, People Pensinger, supra, To be v. Wade, 975, 990, was instructed supra, 44 People Cal.App.3d v. murder, the intent to torture and therefore degree theories of first multiple verdict on the first the mere basis the guilt not be established on may 52 we Pensinger, supra, In v. Cal.3d charge. murder degree addition, because, neither finding reversed the circumstance special whether the defendant discussed the issue nor defense counsel prosecutor victim, the murder-by- either in the context of had intended to torture the circum- special murder or the torture-murder theory degree torture of first (Id., 1255.) at p. stance. case, contrast, in closing argument
In by prosecutor the present cause cruel For pain. that defendant’s intent was to stressed repeatedly he wanted “He murder her but asserted: wanted to example, prosecutor also her Defense counsel her die and he wanted her to feel death.” slowly to rebuttal, the prose- Finally, the instruction on intent to torture. repeated the intent had demonstrated reiterated that the evidence prosecution’s cutor kill In further contrast to and also the intent to the victim. to torture 1210, 1255, evi- overwhelming there was Pensinger, supra, torture, of the various light dence as described above. of intent to record, no reasonable we conclude there is instructions and entire trial that the the torture-murder special-circumstance likelihood understood Mincey, (People v. as not a of intent to torture. requiring finding instruction U.S._,_ 408, 455; (1991) McGuire 502 Cal.4th see Estelle v. 385, 399, 475,482]; (1992) 1 Cal.4th People Kelly L.Ed.2d S.Ct. Cal.Rptr.2d finding to support Defendant’s claim that the evidence is insufficient “Proof rejected. a circumstance must be torture-murder special . . circumstance . a murder committed under the torture-murder special 190.2, defendant (§ (a)), proof of first murder subd. requires proof degree 190.2, and the (§ (a)(18)), kill intended and to torture the victim subd. (Ibid.)” infliction of an act victim. painful living extremely upon 247, 271.) Davenport supra, Unlike the section 189 definition Cal.3d torture, 190.2, (a)(18), murder that the section subdivision requires 271.) defendant have (41 acted with intent to kill. p. above,
As discussed evidence support detail there was ample murder, jury’s finding of first degree and to establish that defendant intended victim, alive, to torture his did so while she still and intended kill her. Felony-murder special 2. circumstances.
Defendant contends the trial erred to instruct failing court the jury that order to find the charged circumstances under special section 190.2, true, (a)(17)(iii) subdivision (vii) be it had to (rape) (burglary), to determine that kill defendant the intent possessed to Mrs. Stendal. Subse case, to the trial in quent this such an instruction was this court’s required by 131, decision in Superior Carlos v. (1983) Court 35 Cal.3d [197 79, 862], Cal.Rptr. 672 P.2d Defendant also even had contends that the instructions correctly reflected the intent there is insufficient requirement, intent, evidence to support findings of and that these two circum special stance findings therefore must be set aside.
Defendant’s claims are by rendered moot this court’s intervening decision Anderson, 1104, 1147, in People v. supra, 43 Cal.3d which over expressly Anderson, ruled Carlos on this point. we held that “intent kill to is not an circumstance; element felony-murder special but when the defendant killer, anis aider and abettor rather than the actual intent must proved.” be (Ibid.) The rule enunciated Anderson applies both to crimes committed after Anderson decision and crimes committed to the prior Carlos (People 123, 143, decision. v. (1988) Hamilton 46 Cal.3d fn. 5 [249 1348]; Cal.Rptr. P.2d People (1987) v. Easter 197 Cal.App.3d 746]; 185-187 Cal.Rptr. People see v. 50 Cal.3d Ramirez 1182-1183 The offenses in this case were committed prior Carlos. case,
In the present evidence was susceptible only two reasonable interpretations—that defendant was the actual killer or he that was not at all crime; involved in the there nowas evidence he as an aider participated only and abetter. intent to kill Accordingly, was not an element of the felony- murder defendant, special circumstances charged against and the trial court required was not to instruct on such intent as an element of the alleged Hamilton, special (People 142-143; circumstances. v. supra, 46 Cal.3d Easter, v. supra, 197 185.) Cal.App.3d issue Although defendant support finding whether there was sufficient evidence to defendant’s the intent to kill therefore is moot the context of possessed contention, above) that the evi- (as we have described concluded present dence sufficient defendant’s intent to kill. is to establish case, murder in the
In the defendant was guilty because present circumstance properly perpetration rape, rape-murder special if defendant intended to found to have been it was established that proved were of one continuous part commit and the and the rape, rape killing 577, 631-632; (See People Hayes, supra, transaction. Hernandez, 315, 348.) As is demonstrated amply evidence, a that defendant possessed rational trier of fact could have found merely was not rape, rape intent to commit and that specific against incidental to the but of a continuous course of violence killing, part victim, in her culminating murder. rule with regard finding burglary-murder same applies 577, 632; see Hayes, supra, circumstance. special *34 Hernandez, 315, 348.) A rational trier of fact People supra, v. 47 Cal.3d defendant intended to commit burglary, could have found both that properly the eventual were of burglary killing part and that of the residence and the 577, (See People Hayes, supra, one 52 Cal.3d continuous transaction. 632.) Jury
D. deliberations. juror.
1. Substitution aof 1982, 15, The retired at December recess- jury to deliberate 3:40 p.m. the after The ing day following for less than one hour of deliberations. deliberations, the before further the court announced that one of morning, ill, an had become and both to his jurors parties stipulated replacement sworn, After the the juror. judge jury alternate alternate was the trial advised deliberations, its it connection stating helpful to resume “would be start, that kind of start from commencing your again, you with deliberations scratch, as speak, your thinking so to so that Mr. Rhoades has the benefit of him two well as an for his also.” deliberated give opportunity input jury after substitution the alternate before its days juror returning and one-half verdict.
Defendant contends the did not all embody court’s admonition (1976) of the People elements instruction v. Collins required by Collins, In that 687 552 P.2d this court directed Cal.Rptr. [131 742].
537 the to jury “the court instruct set aside and all deliberations disregard past anew. The be that begin deliberating should further advised one jury an discharged juror its members has been with alternate replaced law; the law the defendant provided by grants that to and to 12 to a after full of the who right only participation jurors reached verdict verdict; if jury return a that this be assured ultimately right only may begins again remaining deliberations from the and that each beginning; juror must aside and the earlier as if original disregard they set deliberations (Id., 694; (1990) had not been had.” Anderson see p. also Cal.3d 1107].) 482-483 P.2d Cal.Rptr.
Defendant’s rejected. contention must be to “kind By instructing start, scratch, start from so to the court that the speak,” implied should disregard v. Odle its previous (1988) deliberations. By this directive providing
the context of advising jurors give alternate benefit of the other jurors’ thoughts, as well as to give benefit the alternate’s jurors input, court further were emphasized begin deliberations anew Furthermore, with the full participation alternate. the court did not suggest the jury might not have to reconsider matter already Odle, considered or decided. (Compare People comments erroneously [court’s that the alternate be implied brought should “up speed” on matters already decided].) discussed and possibly erred, Finally, even assuming the court no prejudice occurred. determining whether Collins error was we consider whether prejudicial, may is case a close one and *35 the time the compare jury deliberating spent Odle, before and after the substitution of the supra, juror. alternate v. Industries, 386, 405; 45 Cal.3d Griesel v. Dart 578, Inc. (1979) 23 Cal.3d 213, Odle, 585 [153 591 P.2d 503].) In People supra, Cal.Rptr. v. 45 Cal.3d 386, we concluded there was no where the case prejudice against defendant was and where overwhelming the jury only deliberated of one part afternoon to prior substitution alternate juror two and one-half (Id., Collins, days 406.) 687, thereafter. supra, p. at 17 Cal.3d itself, we determined the error was not where prejudicial the case against defendant was very and the strong, jury had deliberated little more than one hour to prior substitution of alternate and had returned a verdict after (Id., 690, several additional hours. 697.) pp. case,
In the present the evidence against defendant extremely was The strong. had deliberated jury less than one hour to prior substitution alternate, and continued to deliberate for two and one-half thereaf days It ter. is not reasonably probable the outcome of the trial would have been 538 instructed, its begin exact to language, more
different had the been jury 687, 697; Collins, (See deliberations anew. 818, 243].) (1956) 46 Cal.2d 836 P.2d People v. Watson [299 numerical division. jury’s The comments on the 2. trial court’s 16, 1982, deliber- full day 4 December the first Thursday, At p.m. ations, an had reached jury that the a to court jury conveyed message court, as to how guidance proceed. and was impasse requesting that the foreman received jury’s message, requested it had stating revealing without jurors, the numerical division of the inform the court as to verdict.6 guilty verdict or a guilty numbers for respective numerical into the jury’s the court’s inquiry Defendant contends into of inquiring the trial. practice division the fairness of impaired “[T]he division, are for convic many out how finding numerical without jury’s [People approved v.] for many acquittal, expressly tion and how 353)].” 442 (69 P.2d [(1968) Cal.2d Cal.Rptr. Carter 726 P.2d (1986) Cal.Rptr. (People Rodriguez “statutory in the of the court’s 113].) discharge Such is justified inquiry ‘unless, rendered at the expiration that a verdict is assuring responsibility that there it satisfactorily appears time as the court deem may proper, of such Code, 1140.)” (Pen. can agree.’ § that the probability is no reasonable Carter (People v. exchange 6The record of the is as follows: Forrester, I Court: All your “The received the box. Mr. right, jurors we have our back in However, your message, going I’m properly appreciate message as to a numerical count. right? you questions, have to ask a few all Okay. “The Foreman: count, “The Court: Have the issue of murder? that would be the jurors voted on the first “The Foreman: Uh-huh. is, “The Court: Without [iic] you would tell me that numeral count telling way me which numerical count? way, but what is the what the numerical count is. Don’t tell me which “The Foreman: Eleven to one. II, now, “The Court: Eleven to one. All on the Count right, jurors have the taken a vote charge? rape No, “The Foreman: we haven’t. *36 III, burglary charge? the jurors yet Have the taken a vote as on Count “The Court: No, we haven’t. “The Foreman: the—well, “The Court: All that information with I think with right, now in connection moment—well, let me ask at the importance to the Court that it would be of that if presented the numerical count on you you are at the moment as far as the you this. Where do think consider- you think that further charge, on the first the count of murder? Do eleven to one ation— Yeah, a just—we’re we kind of at standstill.” “The Foreman: court, jurors this nature for indicating was not unusual in a case of point At this the that it following day. the the longer single day, jury to deliberate than a recessed until
539
out,
in federal
defendant
the rule is otherwise
court
Although, points
345,
(see
47
(1926)
v. United
We also disagree with defendant’s contention that the court’s de order a until the claring following recess the once it had ascertained vote morning, was the had split, implied court found with the vote “something wrong” determination, which be might remedied a rest. The night’s “ ” 1140, pursuant to section whether there is a ‘reasonable probability’ agreement, within rests the sound of the trial discretion court. (1990)
Miller 994 1289].) [269 the court Although must take care to its without power coercing exercise the into jury abdicating its favor of independent judgment considerations of compromise (ibid.), the expediency court direct further delibera may tions its upon reasonable conclusion that such direction would be perceived “ ‘as a means enabling jurors the their understanding enhance of the case rather than as mere pressure to reach a on the verdict basis of matters already discussed and (Ibid.) considered.’ Nothing [Citation.]” the trial court’s comment in the present case may be construed as an properly verdict; the attempt pressure to reach a court correctly concluded there was a reasonable probability jurors could agree on verdict.
3. The trial court’s comments on testimony. defendant’s 17,1982, jury continued its deliberations on Friday, December at one point requesting that the be instructions reread. At 4:20 p.m. day, court was informed that one the jurors sought to disqualify herself on the one,” is, she ground “the not in person with the other agreement After eleven. explaining that this circumstance afforded no basis for disqual- ification, the trial judge commented complexity case deliberated, relatively brief period had reread instruction as to and, defendant’s entitlement to the individual of each opinion juror, noting hour, lateness of recessed the deliberations of the jury. brief, supplemental 7In his urges defendant practice that we reconsider the California inquiry, such permitting acknowledges but he rejected also we requests have similar in other (See, e.g., cases. (1991) recent v. Price Cal.Rptr.2d Cal.4th 610]; P.2d Breaux 1 Cal.4th Cal.Rptr.2d P.2d We reason, case, discern no upon based present circumstances of the reconsider this issue. *37 Decem- Monday morning, on of deliberations jury Prior to the resumption comments: following delivered the the court ber alternates, for the purpose and the of the gentlemen jury “Ladies and case, Constitution of I by in this am deciding permitted assisting you issues, testimony and the the evidence California on the to comment retired to me before you And it to that witness. occurred credibility those along that some comment morning deliberations this continue your some assistance to you. lines be of might
“Now, intended to be comments are my mind that keep should you exclusive judges are the binding you, you and are advisory only, of the witnesses. and of the you credibility of fact submitted questions comments, if if agree, they do not you or all of the disregard any You should of the credibility and the views of the evidence your do not with agree witnesses.” killing, unlawful lawful and
After the difference between outlining killing case but that the was no this question court stated there were before the then indicated the issues victim was unlawful. court defend- doubt that a reasonable beyond whether the had proved prosecution and, and, so, if degree, if in what the killing, for legally responsible ant circum- proved special had prosecution in the first whether degree, whether the prosecutor must determine The court also stated stances. a reasonable doubt. charges beyond had proved rape burglary connection, “Now, there have been several The court continued: where- corn! his concerning to the defendant out of statements attributed morning early the 21st and the night and activities on the of April abouts himto are inconsistent 22nd. These statements attributed hours of April here court testimony and are inconsistent with his with one another also hours of morning April evening early his activities that concerning the 22nd.
“Now, Bergh him in of Bonita has the house attorney placed the district I which think bloody right palm print, three one through palm prints; Stendal to, first and on the being palm testified was created blood by Mr. Collins that, Mr. Collins has testified to the booklet. addition to then transferred latent, that, left were there was a dry palm By they there were two prints. chemical, latent, it had had to be applied which was print, palm And where it be seen. raise that could palm print of the booklets to one that could be seen Again, only one dry palm print right palm. another chemicals, and that was on a different booklet. being after treated with *38 “Now, the has and as to what defendant testified an given you explanation he did that house which the morning explains bloody that presence dry but does the the two or latent palm print, presence palm not of explain circumstances, I prints. Under those the testi- difficulty believing have Now, of the defendant. comments are intended to be mony again, my are not advisory only and on as are the exclusive of binding you you judges the of fact to and of the of the witnesses. questions you credibility submitted if disregard You should all of the I’ve made any they or comments that do not with agree views of the evidence and the your credibility of witnesses.” then commenced its for jury deliberations After day. recessing
for lunch and at 2:55 reconvening it informed the court it had reached p.m., a Prior verdict. to of seating jury, defendant’s counsel he had stated an to objection the court’s comments. The court admonished counsel that he should have made his objection earlier.
Defendant right contends his to due of law was violated process comment, because he was not apprised advance of the court’s intention to and that the content of the court’s comments fell outside the range permitted by our decisions. We do agree right defendant’s to due of process law was violated by court’s failure to advance notice its provide of defendant, intended comments. out Although, pointed by the trial court required was by statute to afford advance notice of jury intended instruc tions, defendant has not directed our attention to similar statutory judicial fact, requirement pertaining judicial comment. because statutory provision authorizing judicial comment is in the contained same 1127; section as that governing (§ (f)), instructions see subd. § and the Legislature, while expressly providing that courts are to afford notice (§ 1093.5), instructions has declined to such a impose requirement comment, judicial case of we may no such presume requirement intended by Legislature as to the latter Defendant relies subject. prima rily Rodriguez, in which the trial court provided the parties comments, with advance notice of its intended indeed, numerous drafts of the comments made in ultimately that case were prepared by prosecutor discussed at length court counsel advance, (id., 13.) at p. fn. Although it would be better practice notice, afford counsel advance we decline defendant’s that we suggestion elevate our recitation of the particular procedural the Rodriguez aspects case legal status requirement.
Next, defendant challenges substance of the trial court’s com VI, ments. Article section the California Constitution permits court *39 credibility testimony on the evidence and the to “make such comment of determination of the any witness as in is for the necessary proper its opinion to allow the added.) The of this is (Italics purpose provision cause.” in evidence to assist and training analyzing court “to utilize its experience (People v. Cook (1983) 33 a verdict. jury reaching just the [Citations.]” Rodriguez, 400, 159, People 86].) In v. 658 P.2d Cal.Rptr. Cal.3d 407 [189 Cook, 730, 765-770, People supra, 42 v. portion Cal.3d we overruled that 400, 413, not make supra, may which held that a trial court it has reached an the evidence once the has announced comment on deliberations, may a trial court not although and concluded that impasse of the issue of or innocence guilt an on the ultimate directly express opinion trial, from appropriate at of the it is not any stage prohibited accused in its indicated an initial deadlock simply because the has comment 769-770; 42 see Rodriguez, supra, deliberations. Cal.3d at pp. v. 867, 713, People v. Melton (1988) 44 750 P.2d Cal.Rptr. Cal.3d 735 [244 741].)
In of constitutionally contours generally summarizing permissible comment, supra, in People Rodriguez, authorized we observed v. judicial 730, on the Cal.3d that “the decisions admonish that comment judicial accurate, nonargumentative, scrupulously evidence must be temperate, comment, not, in withdraw fair. The trial court may guise privileged consideration, record, expressly material evidence from the distort the jury’s verdict, factfind- jury’s direct a or otherwise ultimate impliedly usurp 766; (Id., v. Gates (1987) 43 Cal.3d at ing power. p. [Citations.]” Rodriguez, supra, In trial we also noted that a Cal.3d it not effec- commentary, long court has “broad latitude fair so does need not control the verdict. For it is settled that the court tively example, summaries, neutral, bland, may itself but confine colorless focus evidence, critically particular views about its expressing persuasiveness. Therefore, (Id., added.) at italics the circumstance [Citations.]” case, emphasis the trial court chose to out for present single particular the crime the evidence of defendant’s at concerning presence fingerprints scene, and defendant’s inconsistent did not render its comments testimony, “ Rodriguez, As noted restrict his comments to improper. judge may ‘[A] credibility single witness of the and need not evidence or to the portions ” (Id., sum all the both favorable and unfavorable. up testimony, [Citations.]’ added.) italics p. case, defend the trial court observed that present essentially ant during had made inconsistent statements his whereabouts concerning his in the and that defendant’s as to pertinent period, testimony presence residence, did not bloody palm while explaining presence print, the trial dry causing of the two or latent explain presence palm prints, did court to entertain trial court credibility. doubts as defendant’s supra, inaccurately (People Rodriguez, state or distort any testimony 730, 766, 769; Cook, 408), and its People comment that defendant’s testimony presence bloody “explains *40 palm print” an to than the permitted helpful jury inference more defendant might have drawn in the absence of the the court Although comment. context, commented upon in defendant’s a it did not credibility specific innocence, comment on defendant’s did guilt or nor it direct that the jury Moreover, comments, reach a given verdict.8 both to and after its the prior court admonished the jury that it was free to those We disregard comments. conclude the that trial court’s remarks fell within the of the constitu- scope tional privilege. Penalty
II. Phase Issues Alleged prosecutorial
A. misconduct. Defendant asserts the committed in prosecutor closing misconduct argument, “[Cjircumstantial when he stated the is following: evidence the world, best in evidence the if the circumstantial evidence is good enough, [¶] case, course, And in this we’ve the got best evidence circumstantial you’re ever going get.” objects Defendant to the this designation of world,” evidence as the in “best evidence but the later acknowledges jury was instructed correctly (1979 rev.) to CALJIC No. according 2.00 that: “Both direct evidence and circumstantial are evidence as a means acceptable Neither proof. is entitled to any greater weight than the Any other.” present 8The case clearly distinguishable is People Cal.App.3d from v. Flores 17 579, 138], Cal.Rptr. 588 appellate [95 in which the court reversed the defendant’s conviction heroin, possession for case, comments upon based the trial court’s on the evidence. In that witness, officer, prosecution the sole police a away testified he saw the throw defendant a heroin, packet of and the defendant testified he not Upon learning jury’s did do so. that the seven, vote was divided five to the court the jury opinion told that in its it a very simple, was case, straightforward that the perhaps court had heard more evidence the jury than had time,” because the court had “been in this period business for some it really that was a question truth, who telling was that if the believed the officer who testified he saw the defendant throw the packet of away, heroin it guilty, must believe the defendant that credible, explanation defendant’s presence of his behavior of the was officer that not, defendant had a motive to lie whereas officer did that defendant had not provided any lie, why indication the officer had motive to that the trial court “would not spent have two minutes deciding this case because I have decided would that the defendant guilty." (Id. p. omitted.) fn. italics We believe the by comments made the trial present begin court in the case do not approach this level of jury’s decisionmaking. intervention 544 on the have this
misapprehension part would been corrected Furthermore, instruction. because defendant did not timely object request admonition, v. Mitcham an error is deemed waived on any appeal. 1277]; (1992) Cal.4th Cal.Rptr.2d Hendricks (1988) 44 Cal.3d P.2d Defendant’s claim statement constituted an prosecutor’s improper expression of his belief this evidence must be personal concerning rejected on the same ground.
Defendant next asserts the
argument violated the rule
prosecutor’s
247, 288-290,
in Davenport, supra,
by representing
the absence of the
following
mitigation
circumstances
constituted factors
in aggravation under section
190.3:
mental or emotional disturbance on
(factor (d)),
of defendant
part
victim’s
or consent
participation
(factor
(e)),
homicidal
act
and any circumstances
defendant
causing
*41
in
reasonably
(factor
(f)).
believe
moral
for his conduct
justification
in Davenport we
Although
admonished that such
should not be
argument
(id.,
“in the
permitted
290),
future”
at
we
p.
nevertheless have
the
applied
tried,
case,
rule to cases
Davenport. (People v.
as was the
present
prior
68,
276,
Beardslee
(1991)
1311].)
53 Cal.3d
112
806 P.2d
Cal.Rptr.
[279
observe,
We
we
in
have
the
that defendant’s failure to
past,
object to
(Peo-
the
remarks
challenged
precludes a claim of
misconduct.
prosecutorial
1,
ple
495,
Visciotti
(1992)
388];
v.
2
Cal.4th
79
825 P.2d
Cal.Rptr.2d
[5
115,
679,
People Gallego (1990)
v.
52 Cal.3d
200
802 P.2d
Cal.Rptr.
[276
169];
People
730,
Rodriguez, supra,
42
790.)
v.
Cal.3d
Even assuming, as
brief,
defendant has
in
Davenport
urged
his supplemental
that
error served to
exacerbate so-called “Brown”
(People
v. Brown
(1985)
error
Cal.3d 512
40
637,
(revd.
709 P.2d
Cal.Rptr.
[220
on other
v.
grounds
440]
California
Brown
934,
(1987)
The record remark objection discloses defendant’s to the prosecutor’s was sustained. The for trial court denied defense counsel’s an request additional curative instruction the basis that the had not prosecutor claimed defendant’s lack of remorse was a factor the court aggravation, it had explaining sustained the objection because the statement constituted a conclusion.
We conclude the trial court correct that the had ruling prosecutor not cited lack of remorse as a factor in aggravation, court did although err in sustaining the defense’s that the objection statement prosecutor’s Thus, an expressed impermissible *42 conclusion. trial court did not commit error refusing defendant’s an for additional instruction request admonition.
Finally, defendant urges that prosecutor prejudicial committed misconduct by erroneously that claiming the evidence of defendant’s past demonstrated that he “is a violent person.”10 object Defendant’s failure to and request a curative instruction or admonition waives claim he might follows; prosecutor’s 9The case, comment in context is as suggest “And let me that in this there 21st, is no basis sympathy for for William Proctor. is April This what he does on 1982. 22nd, what That’s he does on April 21st. On April he He absolutely what’s do? shows no remorse.” After the court sustained the objection, defense the prosecutor continued: “What does he do goes on the 22nd? He about nothing his business like happened. goes He to Redding. goes He with Bob Manley. they go And there the purpose having for of The fun. [1] 22nd, 1982, spent April fun, that, defendant having less twenty-four than hours after he did and I submit there is no sympathy basis for for this William Proctor case.” canvassing 10After supporting imposition factors of the death penalty, prosecutor “Now, commented: I that is nothing submit there that presented you has been to that would extenuate this crime. is nothing There background about the you defendant’s that heard that aunt, normal, would extenuate this According crime. average [¶] his he was a boy growing that, up, and his mother said essentially, only thing you I recall. The know about his background him, is that he’s history had little of burglary, things takes belong don’t 1248; People 53 Cal.3d Sully, supra, appeal. have on 730, 790.) Rodriguez, supra, defend-
Nonetheless, we reject had timely objected, defendant assuming remark was that the prosecutor’s the merits. We conclude claim on ant’s in commit- defendant displayed on the extreme violence based justifiable had informed earlier offenses. prosecutor ting present was a factor of violence history lack of any of defendant’s the circumstance defend- regarding made the comment Although prosecutor mitigation. is apparent it background, while his discussing a violent being person ant’s he was remarks that the prosecutor’s of the entirety from the context defend- characterizing in the case present defendant’s conduct referring to person.” ant as a “violent Error.
B. Instructional mitigating aggravating Instruction on
1. factors. the jury pursuant instruction of Defendant contends the court’s Amend rev.)11 his (4th Eighth violated No. 8.84.2 ed. 1979 CALJIC former reliable deter constitutionally federal to a ment under the Constitution right confused the have may because the instruction mination of penalty, and mitigating weighing aggravating process the nature concerning circumstances. Brown, constitutionality we supra, upheld 190.3, incorporating instruction while that an acknowledging
of section scope as to jurors the section mislead “might mandatory language Bonin, (People v. their discretion and sentencing responsibility.” 706; (1988) 45 Cal.3d v. Hamilton reasonably a jury concern that We expressed *43 me, that is not background. To you what know about his person. and he is a violent That’s extenuating circumstances.’’ 8.84.2, as follows: “[I]t of CALJIC former No. gave 11The court the revised version 1979 in the state death or confinement your duty penalties, to determine which of the two is now After imposed upon the defendant. possibility parole, [¶] of shall be prison for life without evidence, arguments of considered the having having after heard and heard all of the and counsel, consider, account, factors of guided by applicable be the you shall take into and you If have been instructed. mitigating upon you circumstances which aggravating [¶] and circumstances, shall mitigating you outweigh the aggravating conclude that the circumstances However, mitigating circumstances determine that the impose you a sentence of death. if circumstances, in the a sentence of confinement outweigh aggravating you impose the shall may particular consider a parole. you of Before prison possibility state for life without [¶] true, aggravating of that must be satisfied of the existence aggravating you circumstance to be beyond circumstance a reasonable doubt.”
547 understand the to define the determination might language instruction “ ” “ counting a of ‘a mere mechanical finding of facts’ or penalty ‘simply ’ ” (Ibid.) of factors each side of the We also expressed “scale.” imaginary the the to concern that understand instruction jury reasonably might require if in outweigh of death the factors those imposition penalty aggravation in in even mitigation, where that does not punishment appear appropriate Hamilton, view of (People supra, all the circumstances of the case. v. 370-371; Brown, 540-544.) Cal.3d at 40 Cal.3d at pp. People supra, v. pp. For those (Such case), cases in predating Brown as the which the jury present 190.3, was instructed we we would review language section advised each on its appeal merits determine whether the have particular jury might Hamilton, been misled to the supra, defendant’s prejudice. v. 351, 371; Brown, 544, Cal.3d People 17.) supra, v. 40 Cal.3d at fn. p. case, Brown, In the with concern present regard to first expressed 512, instructed, supra, 40 Cal.3d we observe was according account, defendant’s request, as follows: “In considering, taking into circumstances, being guided by the not aggravating mitigating you may decide the effect of such circumstances by simple process counting the number of circumstances on each side. The weight of such particular oppos- number, ing circumstances is not determined the relative rather by but their relative convincing force on the ultimate question punishment.” Moreover, neither the prosecutor nor suggested defense counsel the jury simply (See should count the factors. (1991) Webster 54 Cal.3d 411, 1273]; 451-452 Cal.Rptr. [285 814 P.2d (1988) Howard 279]; 435-436 P.2d Cal.Rptr. People Myers Accordingly, we conclude the not misled into mechanically counting aggra- vating and mitigating factors. Brown,
With to the regard second concern described because, defendant dire, asserts the jury was misled during voir prosecutor obtained assurances from the prospective jurors they would have their difficulty discharging responsibility impose death in the event the penalty circumstances aggravating outweighed those because, mitigation, during closing argument, prosecutor emphasized section language 190.3. After repeating mandatory language of the statute, the prosecutor stated: “So if you aggravating conclude that the circumstances, circumstances outweigh the are mitigating obligated to you death, a return verdict of And we spent [f] considerable amount of time on *44 issue, dire voir on this case, and you indicated that if that was the that would be verdict.” In your concluding his the argument, prosecutor commented that the jury had “an important, awesome and responsibility,” asked them to
548 under the law of a death verdict “not because want to but because you return necessary. you.” California it’s Thank we remarks to be harmless. For numerous cases have found such misleading is not argument we have concluded that a
example, prosecutor’s People v. Hamilton language (e.g., because it restates the simply statutory 1142, 701, 730]), (1989) 774 P.2d describes 48 Cal.3d 1181 Cal.Rptr. [259 (1988) Cal.3d People tiie v. Adcox 47 statutory language mandatory (e.g., 207, 55, the word emphasized 267 763 P.2d Cal.Rptr. [prosecutor [253 906] choice”]; People v. “shall” and advised the that haven’t jury “you Hendricks, 635, 653-655, 44 supra, Cal.3d 662 [prosecutor emphasized “shall,” word it as a “term of command” with a describing compulsory one]; 42 (1986) People and the as an “automatic” v. Allen meaning, process 1222, 849, argued: Cal.3d 1279 P.2d Cal.Rptr. [prosecutor 729 [232 115] “ Shall, ”]), or may, might, maybe. very explicit. . . not not not It is . . .’ People the law. v. (E.g., that the decision is dictated emphasizes jury’s 843, 184, 1270]; (1989) Burton 48 Cal.3d 771 P.2d Cal.Rptr. [258 444, 829, (1988) 755 P.2d People Cal.Rptr. v. Grant 45 Cal.3d 857 [248 894].)
Moreover, in had an that the concluding, prosecutor emphasized jurors Burton, (See People supra, awesome “important, responsibility.” 843, case, 871.) People (1988) This is Milner not a such as 669], in Cal.3d 227 753 P.2d which Cal.Rptr. prosecutor [246 “assured the and did have to ‘shoulder the jurors again that not again they burden the law told them and personal responsibility,’ again again encouraged them from what is and even ‘protects’ deciding ‘just right,’ Burton, 257; (Id., them to ‘hide’ behind the law.” see p. law, 872.) jury 48 Cal.3d Nor did the admonish the prosecutor rather should jury, than determined the issue whether the defendant (Cf. (1989) suffer life v. Farmer imprisonment death. Furthermore, whole, 940].) 765 P.2d taken as a Cal.Rptr. section mandatory statements prosecutor’s concerning aspect (See People were a v. Kaurish argument. 190.3 minor of his part closing The instructions this case also that the decision as given implied jury’s was not to twice was jury be automatic or mechanical. penalty it duty informed had the to decide which of the two possible punishments evidence, should be was advised to consider the imposed, arguments counsel, and the “if factors and was aggravating mitigating applicable,” told that if a did factor was not found to be that circumstance mitigating, render it an it aggravating aggravat- factor unless the determined to be in- ing beyond a reasonable doubt. At defendant’s request, structed that it was of defend- obligated weigh elements sympathetic conscience, background ant’s so against might those which offend
549 defendant, that it could for but doing, mercy consider pity, sympathy, it governed could not be by conjecture, prejudice, public opinion. were entitled to the
also was instructed that defendant and the prosecution individual of each opinion juror. discre-
Finally, jury’s the comments of defense counsel underscored the tion to decide which under the circumstances: penalty appropriate jurors singular counsel advised the that each of them had an independent, to determine the it was not a democratic or responsibility punishment, effort, and that community each would have to live with verdict. Defense factors, counsel told the felt jurors weigh they to consider Grant, 829, 856-857; (See People People v. 45 v. appropriate. supra, Cal.3d 1127, 635, 44 (1988) 901].) Williams Cal.3d 1149 Cal. 751 P.2d Rptr [245 Moreover, factor, defense counsel stressed that the a factor most important in mitigation, was the absence of violence in defendant’s past, thereby underscoring jurors’ duty to consider the factors individually. counsel,
From the arguments both of the and defense and from prosecutor instructions, jurors would have were understood they required determine the appropriate for defendant the enumerated penalty by weighing Burton, 843, factors. (People supra, 873.) v. Viewing 48 Cal.3d instruc- whole, tions and arguments as a we are there satisfied is no reasonable likelihood that the jury was misled as to the of its scope sentencing respon- Clair, sibility. (People v. supra, 662-663.)12 Cal.4th 2. Instruction on special consideration circumstances. multiple
Defendant contends the trial court failed to
an instruction on
give
multiple special circumstances as
in People
our decision
v.
required by
(1984)
Harris,
Harris
A subsequently of this court majority Melton, 713, it is we concluded that In Melton 765-768. supra, death-eligible that a to determine for state constitutionally legitimate death, if, in the as deserving of is and thus more murderer more culpable, case, in order burglary committed Melton he robbed the victim but only murder, these offenses because to facilitate robbery commission interests, relevant to which is involve each of violations of distinct (Id., decision 767.) crime. at p. determination of the seriousness of the based similar claims reject cases to subsequent Melton has been applied 612, (1991) 54 Cal.3d 691-692 People Mickey [286 Harris. v. (E.g., upon 471, 801, 84]; (1990) 51 Cal.3d 529 Sanders People 818 P.2d v. Cal.Rptr. Hernandez, 537, 561]; supra, 47 Cal.3d People 797 P.2d v. Cal.Rptr. 315, 357-358.) we defendant’s contention. reject Accordingly, brief, requires that Melton also
In defendant contends his supplemental the bases for that the acts providing that the receive instruction more be weighed not each burglary) may circumstances special (rape determination, is, under the circumstances that both than once the penalty 190.3, factor to section the crime and circumstances special (pursuant as Melton, 44 supra, thereon). (People v. (a), patterned and the instruction has a sua 768.) that the trial court urges defendant Although Cal.3d instruct, defendant’s upon only to so we have indicated duty sponte (1991) 54 Ashmus should be given. such an instruction request 214]; v. Morris People P.2d Cal.3d 820 Cal.Rptr.2d 997 [2 Melton, 949]; Cal.3d 713, 768.) supra,
Moreover, misleading of any the absence we have observed likeli- the substantial demonstrating an event argument by prosecutor Morris, (People v. required. reversal is not “double-counting,” hood of 152, 224; Melton, 768-769.) supra, Cal.3d case, than the offenses other did not prosecutor suggest the present making as acts circumstances and special murder be considered dually heinous; brutality showing the facts he underscored simply murder more the acts. 190.3, (a). section Constitutionality C. factor of section Defendant challenges constitutionality portion fact shall take “In the trier of penalty, that provides: determining 190.3 crime of (a) The circumstances of the account . . . relevant: into [as] [¶] the exist proceeding the defendant was convicted the present which Defendant con to be trué . . . .” any ence of circumstance found special crime,” to permit vague tends the “the circumstances of the is too phrase, distinction between those murders that warrant the death meaningful and those that do not. penalty
The United States that the circum- Court itself has established Supreme *47 stances a the surrounding offense constitute one of criteria capital upon which the jury (See, Penry should base its v. penalty e.g., determination. 302, 256, 277-278, Lynaugh (1989) 492 U.S. 318 L.Ed.2d 109 S.Ct. [106 2934]; 448, 496, 440, Maryland (1987) Booth v. 482 U.S. 502 L.Ed.2d [96 2529], 107 (1991)_ S.Ct. overruled grounds Payne on other v. Tennessee _ 720, 2597]; U.S. 111 (1976) L.Ed.2d S.Ct. Jurek v. Texas 428 U.S. [115 262, 929, 939-940, 274 L.Ed.2d 96 S.Ct. (plur. opn.).) high [49 2950] court has not stated or that the factor of the “circumstances of the implied offense” is unconstitutionally vague.
Defendant also contends section 190.3 is unconstitutional as to applied because, him unlike the case where the typical jury same decides both issues of and guilt his penalty, case afforded the one jurors only to opportunity their express at the outrage the of offenses—by assigning degree punish- ment—and therefore the jury was more to set the maximum prone penalty. evidence, counsel, in the Nothing of arguments or the instructions Furthermore, this supports assertion. because it was defendant who requested and, definition, the change of venue he jury, new is not a position to claim prejudice from the granting of his motion. We also note that that, defendant has no provided for the when new authority proposition penalty jury has been impaneled, state may permit determine the appropriate on the punishment basis of the same criteria that would have had a applied single determined both issues of and guilt Defendant penalty. has not provided basis for us to conclude section 190.3 is unconstitutional.
D. Denial application automatic the verdict. of for of modification Defendant contends the court erred in the automatic denying motion to 190.4, the verdict modify pursuant (e). to section subdivision Under section, the trial “function judge’s is not to make an and de independent determination, novo penalty but rather reweigh the evi independently dence of aggravating mitigating circumstances and then to determine whether, in the judge’s independent judgment, weight the evidence supports jury’s verdict. Lang (1989) v. [Citations.]” 627], Cal.Rptr. P.2d italics original; Edwards, supra, 54 846.) Cal.3d The trial must set forth his or her judge reasons with sufficient particularity (54 to allow effective review. appellate 846; Cal.3d at p. Kelly
1. The circumstances crime. People Rodriguez, supra, defendant Relying upon determin its reasons for adequately contends the trial court did not specify 190.3, (a) crime), amounted (the factor circumstances of the ing that section case, statement of an factor. we held the court’s aggravating motion, whole, was insufficient “to assure reasons for as a denying review,” simply and effective where the trial court thoughtful appellate evidence, counsel, that, considered the all the having arguments stated circumstances, factors aggravating aggravating mitigating all the the evidence outweighed mitigation weight supported those and the (Id., 792-794.) verdict of death. jury’s pp. *48 case, comments,
In in the section considering the the trial court’s present in extensive (a) 190.3 were far more generally particular, factors and factor motion, and the court detailed. its the automatic explaining ruling denying evidence, considered the aggravating commented that it had reviewed the factors, whether the verdict jury’s and and made a determination mitigating circum- (that the the outweighed mitigating circumstances aggravating stances) defense counsel’s Following was to law or to the evidence. contrary in were not suffi- that the offenses committed the case argument present it examined grievous to the death the court stated had ciently justify penalty, jury’s and and had found that the carefully testimony reviewed the presented that defendant was verdict was of the evidence and supported by weight guilty beyond a reasonable doubt. turn,
The in devoting court then considered each section 190.3 factor (a), of the crime. greatest amount of time to factor the circumstances evidence, lines in the court summarized the that the emphasizing telephone beaten, cut, den kitchen and the had been and that the victim had been raped, stabbed, in described tortured defendant. The court intentionally by concern- body testimony detail the condition of and recounted the expert in inflicting nature of the victim’s and defendant’s ing injuries purpose body The court also that defendant had the victim’s transported them. noted location. to another 190.3, (a), sufficiently
The trial court’s discourse on section factor was It is detailed and the determination made the court. thorough justify by did trial the court far more elaboration than readily apparent provided in Rodriguez, supra, defendant does not indicate court Cal.3d in what additional elements he believes the court should have considered whether the constituted a factor deciding capital circumstances of offense We its reasons for aggravation. conclude the court stated adequately that the determining circumstances of the crime constituted an aggravating factor.
2. role in the crime. Defendant’s 190.3,
Section factor (j), specifies the matters to be among considered the trier of fact is determining penalty “[w]hether the defendant was an to the accomplice offense his participation that, commission offense was minor.” contends relatively Defendant because the evidence merely established the it 0), of factor inapplicability consider, for the trial improper court to in aggravation, factor circumstance that defendant acted alone.
We have indicated or implied numerous prior (j) decisions that factor factor, bemay considered only as a mitigating and that where the defendant is not minor, an whose accomplice is participation offense relatively the factor is simply inapplicable and should not be considered as aggravat- Daniels, 815, 889; ing. supra, 52 People Cal.3d Gallego, supra, 115, 200; Gonzalez, 1179, 1233-1234; Cal.3d People v. supra, 51 Cal.3d Hamilton, 1142, 1184; supra, Burton, People v. 843, 865; v. Walker 643-644 [253 *49 863, 70]; Hernandez, 315, 765 Cal.Rptr. P.2d People v. supra, 47 Cal.3d 363-364; Adcox, People 207, 273; v. supra, 47 Cal.3d People v. Moore 63, (1988) 494, & 1218]; 92 fn. 13 Cal.Rptr. People [252 P.2d 612, v. 659, Karis 1189]; Cal.3d Cal.Rptr. 758 P.2d Brown, People 432, 10; v. supra, 46 Cal.3d 455-456 & People fn. v. 548, Siripongs (1988) 45 Cal.3d 582-583
1306]; see Davenport, supra, v. 288-290.) Cal.3d Nonethe- less, Howard, in People 1132,1195, supra, 1 Cal.4th we approved the trial court’s treatment of evidence of that defendant’s sole participation aggra- vating under factor We need (j). not decide the issue raised by apparent decisions, conflict among these because error in the any case would present not have been prejudicial.
The People indicate that the if in failing, the trial any, court’s consider- 190.3, (under ation section factor (j)) evidence that defendant had alone, acted consists in the court’s already considered having defendant’s and active singular role in the offense when the court reviewed the circum- 190.3, stances of the brief, offense under (a). section factor his reply did, fact, defendant contends that the trial court in err this regard. reveals, however, Our review of the record that at no time timing court’s discomse on the circumstances of the did offense it emphasize, mention, reviewed That the court had acted alone. even that defendant offense) does (and the nature of of the offense defendant’s commission exclusive defendant’s that the court considered not lead to the conclusion under section aggravation in the acts as a circumstance participation 190.3, consideration, 190.3, under section (a). Aside from the court’s factor offense, reference in the other only of defendant’s role (j), factor in the context alone was made circumstance that defendant acted court to the 190.3, defendant had whether (g), addressing factor of its review of section In the of another person. duress or under the domination acted under extreme that, review, defendant had because noted simply latter of its court part alone, twice The court did not consider factor (g) inapplicable. acted carrying out conceiving alone evidence that defendant had acted offense, therefore, under this circumstance considering error 865; Burton, supra, 48 factor was harmless. (j) Adcox, 273.) felony convictions. age prior 3. Defendant’s that, in determining erred Defendant next asserts the trial court at the and one-half months three age (twenty years, defendant’s although factor,” the circumstances offense) be a mitigating time of the “could felonies, had probation violated defendant had been convicted of three prior he committed the present at the time March and was on parole offense, aggravating nor an mitigating rendered defendant’s neither a age factor. crime, can be age properly the circumstances of the
Depending upon (People v. Mit- factor. aggravating either as a or an mitigating considered Edwards, 1027,1076; *50 cham, supra, 54 Cal.3d supra, Cal.4th “ suggested by matter 844.) any age-related It functions ‘as a for metonym might reasonably morality common experience the evidence or ” Mitcham, 1 Cal.4th supra, the choice of penalty.’ inform 1076.)
Therefore, treat obligated in the trial court was case present Moreover, although we believe that in mitigation. as factor age defendant’s weighed in it essence imprecisely, court itself somewhat expressed in conclud- convictions felony defendant’s and his age prior two factors of record, that he was the circumstance in defendant’s light prior ing, offense he the present at the time committed years age between 20 and factors these weighed much The court weight. properly was not entitled to (See, People Hamil- assessing e.g., whether the penalty appropriate. ton, 1186-1187.)13 48 Cal.3d at pp.
4. Consideration other circumstances. extenuating
Defendant contends that the court stated its reasons inadequately for concluding no circumstances were under section mitigating present 190.3, (k),14 factor and that the court’s statement did not indicate it had witnesses, assessed the of the determined the force of credibility probative the testimony, and weighed evidence. above,
As described the court reiterated that it had evaluated all the evidence and expressly considered the evidence or evidence absence of factor, relating to each successive the evidence examining carefully 190.3, mitigation. After its views as to the expressing of section applicability law, (k), factor the court stated: “As the Court required by has considered all the evidence adduced at the penalty phase of the trial and has been guided by factors, the aforesaid heard and having considered the arguments counsel, the Court concludes and finds that the aggravating circumstances do in fact outweigh mitigating circumstances and therefore the find- jury’s that, is ing supported by evidence.” The court stated its independent evidence, review of all the it found the verdict jury’s was not to the contrary law or the evidence.
The trial court’s comments make clear that it understood its fully obliga- witnesses, tion to assess the of the credibility determine the probative force evidence, testimony, weigh all including information pertain- ing 190.3, to defendant and applicable under (k). section factor We conclude the statement of reasons given by trial court for its determination (k) pursuant factor was adequate. contention, brief,
We also reject the raised defendant’s that the reply court, in to its referring finding that the jury’s verdict was not to the contrary 13Because the trial court did not consider any aggravating “invalid (including any factor” aggravating factor not supported by evidence) substantial denying the motion under section 190.4, (e), 326, 337-340, subdivision U.S._,_[119 Sochor v. Florida L.Ed.2d 2114, 2120-2123], brief, 112 S.Ct. cited in defendant’s supplemental application has no to the present case. *51 is, 14The court stated: quote, final factor “[T]he other circumstances which extenuate crime, gravity crime, of the though even legal it is not a excuse for the including but not character, limited to the defendant’s background, history, mental physical condition and condition, quote. end The evidence [¶] adduced at penalty phase of the trial causes the court to find that there are no circumstances which gravity extenuate the of the crimes which you Therefore, committed and you for which have been convicted. the Court finds that this factor constitutes neither a mitigating nor aggravating an factor.” evidence, law or the demonstrated it misconstrued its task reviewing the evidence The statements made by under section 190.4. independently reveal that it its to accurately duty reweigh independently court perceived then deter- the evidence of and circumstances and aggravating mitigating whether, in evidence mine its independent judgment, weight Edwards, 190.4, (§ (e); the jury’s People verdict. subd. v. supported 787, 846; 991, 1045.) People Lang, supra, 54 Cal.3d 49 Cal.3d view the numerous in which the reiterated that it indepen- instances trial court evidence, had with which the court dently reviewed and particularity evidence, and reviewed the we understood properly conclude court 190.4, (e). it section subdivision performed obligation imposed upon
III. Conclusion judgment is affirmed its entirety.
Lucas, J., J., Arabian, J., Panelli, J., Baxter, C. concurred. I KENNARD, J., in the judgment. I concur Concurring Dissenting. write to that the trial courts to comment on separately emphasize authority of the evidence is to exercised with subject strict limitations and must be caution, that, extreme and to view consistent with this court’s express my law, well-established case Penal section 190.3 cannot be (j) factor Code an circumstance. aggravating
I. Const., VI, (Cal. 10), (Pen. Our Constitution well statutes art. as our § Code, (f), 1127), to comment grant authority subd. trial courts the §§ on the is a testimony countervailing of witnesses. But there credibility Const., (U.S. consideration. The Constitutions of both the United States Const., I, VI) 16) Amend. (Cal. grant and the State of California art. also § trial, a criminal defendant the a that the right right requires and that jury be the jury exclusive arbiter of of fact and the questions credibility (See (1986) witnesses. e.g., Rodriguez [230 113]; (1958) v. Friend 97]; People 577-578 P.2d P.2d Ottey There is an inherent between the of a trial court to authority tension comment on the evidence and to a trial. of a criminal defendant right A always court’s exercise of its the evidence authority poses comment on of a danger right judge presiding violation of trial. Because
557 (Bollenbach v. on the jury has substantial influence necessarily over a trial 350, 354, 607, 402]), 66 S.Ct. (1946) 326 612 L.Ed. United States U.S. [90 it an risk appreciable evidence carries with comment on the every judicial in deference to the evidence its own view of the jury may discount (1983) Cal.Rptr. 33 407 (People v. Cook Cal.3d judge’s opinion. [189 Therefore, 86].) right jury interest protecting 658 P.2d of authority grant trial while to our state Constitution’s giving efficacy evidence, limitations on courts have strict appellate imposed comment on authority the trial court’s to comment.
Thus, for a “necessary a trial the evidence must be court’s comments on Const., VI, 10.) (Cal. art. must They determination of the cause.” proper § assist, coerce, 42 at (People Rodriguez, supra, not Cal.3d jury. pp. v. 767-768.) The are the exclusive jurors they judges court must inform the Code, (Pen. witnesses. of all of fact and of questions credibility 1127; (1967) 426 People v. Brock 66 Cal.2d 651 Cal.Rptr. § P.2d the rights comments must be made with a view to protecting Brock, 650.) of the at must be (People supra, They defendant. v. 66 Cal.2d p. accurate, fair, and restraint. temperate, and made with wisdom scrupulously Cook, (People 408.) (1) v. supra, 33 Cal.3d at The comments be p. may Brock, argumentative (ibid.); (2) (People distort the the record law or v. 650; Friend, supra, 577); (3) 66 People supra, Cal.2d v. at p. at p. Brock, withdraw evidence (People supra, from the consideration v. at jury’s Cook, 650); (4) p. expressly (People supra, or direct a verdict v. 33 impliedly 408; Brock, Cal.3d at supra, 650); (5) v. 66 at p. express Cal.2d or p. a view on the (People ultimate issue of guilt innocence Melton 44 741]). Cal.3d case, close, In this the trial court’s comments came but did not perilously cross, the line between assistance and coercion. permissible jury prohibited The court made its remarks without notice to counsel and after it was aware comments, however, that the had jury deadlocked 11 to 1. The were accurate comments, and did not distort record. and after the Immediately before the court reminded the that it was the exclusive arbiter of questions witnesses, fact and the and that it was free to credibility disregard any or all of the trial court’s comments. The then continued its deliberations Cook, for supra, four hours. at approximately (Compare People v. comments].) returned p. [jury verdict minutes after trial court’s balance, On giving consideration to all of the circumstances which Melton, trial court’s comments were made supra, p. 735) in the context (see Rodriguez, state of the existing law 765-770), Cal.3d at I agree with the conclusion that pp. majority’s *53 558
the trial court’s comments were within the scope its under article authority VI, however, section 10 of the I state Constitution. emphasize, that a trial exercised, all, court’s to comment if option evidence should be at only with great caution.
II. As a result of numerous decisions in of this court recent it is now years, well established that the in circumstance described (j) factor of Penal Code (hereafter section 190.3 factor can (j)) be Yet the only mitigating. majority ante, now treats this issue as (see 553), unresolved maj. even opn„ p. though it was resolved In so years ago. a harmful and doing, majority injects entirely needless into the uncertainty center of our death law. penalty
Factor directs the (j) of a penalty phase case to consider capital “[wjhether or not the defendant was an accomplice to the offense and his participation the commission offense was minor” relatively Thus, deciding whether to if impose death the defendant an penalty. is minor, accomplice whose role the offense relatively jurors must consider this fact aas circumstance in mitigation, although they are free to it give whatever deem If weight they these appropriate. conditions are not satisfied, factor is (j) as the inapplicable, defendant’s conduct this regard ” is not “more serious than ‘normal’ for a who has been convicted of person 815, murder with special (People (1991) circumstances. v. Daniels 52 Cal.3d 122, 906]; 889 802 P.2d Cal.Rptr. People (1989) [277 v. Burton 48 Cal.3d 843, 184, 1270]; 864-865 Cal.Rptr. (1988) 771 P.2d People [258 v. Adcox 47 207, 55, 906]; Cal.3d 273 Cal.Rptr. People Siripongs (1988) 763 P.2d v. [253 548, 729, 45 1306]; 583 754 P.2d Cal.Rptr. People see also v. [247 247, Davenport (1985) 794, 41 Cal.3d 289-290 710 P.2d Cal.Rptr. [221 861].)
When, here, murder, the defendant is the sole perpetrator factor (j) does not as this court held apply, has on numerous occasions. v. Daniels, 889; supra, 52 Cal.3d at p. People (1989) v. Hamilton 48 Cal.3d 1142, 701, 730]; 1184 Cal.Rptr. (1988) 774 P.2d People [259 v. Hernandez 315, 199, 1289]; 47 Cal.3d 364 763 P.2d Cal.Rptr. People [253 v. Karis 612, (1988) 659, 1189]; 46 Cal.3d People 758 P.2d v. Cal.Rptr. [250 432, (1988) 604, Brown 46 Cal.3d 455-456 & fn. 10 758 P.2d Cal.Rptr. [250 1135]; 583; People v. Siripongs, supra, 45 Cal.3d p. People see also v. 115, 679, Gallego (1990) 169]; 52 Cal.3d Cal.Rptr. 802 P.2d [276 People (1990) 51 Cal.3d 1233-12349 Cal.Rptr. [275 Gonzalez 1159]; Burton, 864-865; 800 P.2d People v. supra, 48 Cal.3d at pp. People Adcox, 273; 47 Cal.3d at (1988) v. Walker p. 70]; P.2d Moore
643-644 Cal.Rptr. & fn. 13 *54 in of all these cases continuing validity The doubt majority puts in with v. Howard asserting they are now conflict” “apparent But the (1992) 1 Cal.4th 1195 Cal.Rptr.2d 1315]. in the one Howard no or to opinion provided reasoning analysis support in with this otherwise sentence that is inconsistent opinion arguably line even of the unbroken nor did it discuss or authority, acknowledge in (j) decisions The Howard that factor contrary suggestion listed above. can therefore be aggravating be carries no force and should persuasive disapproved. Hernandez, 315, 364,
In People v. this said that supra, 47 Cal.3d court murders, in because defendant that case was the sole perpetrator G) factor did not . a unanimous “obviously apply . . .” What was obvious to in court has become obscure to the current and for no majority, Hernandez reason. The good mandate of this court is to settle of law important questions Court, (Cal. 29(a)), Rules of rule I decline join not to unsettle them. to G). in majority unsettling and of factor proper meaning scope MOSK, J. dissent. I view, my court committed as it did by commenting reversible error
on the evidence and defendant’s credibility.
I Trial on the question of or innocence was conducted in late guilt that, rural Shasta It was County. charged year, on of that April defendant burglarized residence of Bonita Stendal the small Bergh mountain community Burney and there and murder the proceeded rape woman; it was alleged that he inflicted intentionally great bodily injury Stendal the course of the and the he murdered her burglary and that rape, under special circumstances of felony-murder-burglary, felony-murder- and torture rape, murder.
Between December 8 and evidence to establish People presented guilt. defendant’s Included were three residence: a palm prints Stendal’s hand, bloody visible from print defendant’s and two and latent right dry hand, prints, one from his right the other from his were left. Also offered various extrajudicial statements he had made to his activities and relating whereabouts on 21 and April 22.
On deny December defendant evidence. He took the stand to presented involvement the crimes and to his attempt explain palm prints extrajudicial statements. He himself and to his sought exculpate inculpate friend Robert Manley.
On December and defense counsel delivered their prosecutor was, course, summations. that defendant was prosecutor’s position murdered; He someone guilty. argued, part, follows: Stendal had been defendant; was obviously responsible; prints that someone was his palm residence; true, him in testimony the Stendal he placed gave exculpatory about his activities and whereabouts on within house April *55 without; stand, however, and his statements on the did the palm not explain court, and were inconsistent with his which turn prints statements out other; result, were with testimony inconsistent each as a his exculpatory lacked Defense His counsel’s was to the credibility. position contrary. argument included an to counter all the attempt practically prosecutor’s points. murder,
Also on December and rape, was instructed on and the circumstance and alle- burglary charges special great-bodily-injury The then gations. panel commenced its deliberations and less than an spent hour at the task. The court proceedings day. recessed the for the
On December instructed the court morning’s opening, effectively the jury begin its deliberations anew after it substituted an alternate juror members, whom, stated, of one of the place original as it it had discharged on stipulation because of a sudden illness. The deliberated about four panel and hours. The foreman then to the court that the one-quarter jurors reported were at an and The court impasse requested proceed. direction how to asked whether The had voted on murder. The foreman said panel yes. court asked for the numerical count disclosure of the as to position without or innocence. The The guilt foreman said to 1. court asked whether had voted on The foreman said no. The court the same panel rape. posed about The foreman The court then question burglary. gave same answer. unusual, the jurors informed faced a situation that was not and they need time more to make their determinations. It recessed the might proceed- for the ings day. 17, the
On December deliberated about two and one-half or three and At the one-half hours. foreman’s the court reread the instructions to request, The jury deliberated about one and one-half hours m'ore. panel. afternoon, Late that the foreman sent the court a note that Juror Mae Lois Turner—who was Black evidently only person panel—“would on the like to disqualify self. Would like to be replaced by alternate.” court, in the members of the Juror open presence panel, other asked, Turner you confirmed the The court is it wish to report. “Why answered, one,” “I’m She “Because I’m the the one disqualify yourself?” stated, who is—there is eleven I’m the The court “That would to one. one.” If be—that’s not for have some justification disqualification. you prob- lem—” She “I “I interjected, don’t have any problem, Judge,” explained, have I my opinion and don’t want to be—I don’t want to be into pressured doing I something, have their and have mine.” court they opinion, “Well, that, responded, that’s fine. There is with so long no problem remarked, you’re discussing the evidence.” One of the is jurors “Everybody getting tired with one another.”
Addressing jurors, all the court stated that the case was complicated and relatively little time had been deliberations. It reread the spent instruction that both the People and defendant were entitled to the individual opinion juror. of each It jurors also reminded the were under a they duty to proceed conscientiously, expressed its belief that were they doing so. It then noted the lateness of the It determined hour. that the had not panel voted on any of charges allegations other than murder. It recessed the until *56 proceedings December 20.
On December without notice to the or defendant and before resumed, deliberations the court made a jurors comment to the and alternate jurors the evidence concerning and defendant’s It with a credibility. opened statement that its words were intended to be were “advisory only” and “not It binding.” then proceeded: there was no that the of Stendal question killing murder; rather, was the basic question was whether defendant murderer; residence; true, his palm him in prints placed the Stendal he gave exculpatory testimony about his activities and whereabouts 21 and on April without; stand, however, within the house and his statements on the did not explain palm prints and were inconsistent with his of statements out court, other; result, which in turn were inconsistent with each as a his exculpatory lacked testimony It credibility. by closed its statement repeating that its words were intended to be and were “advisory only” binding.”1 “not then deliberated about three and one-half or four and one-half hours. It returned guilty verdicts on each of the charges and true findings on each of the allegations. gentlemen alternates, 1“Ladies and of and the purpose assisting you for the of case, deciding this permitted I am comment by the of California to on the [Constitution
issues, the evidence and the testimony credibility any of witness. And it occurred to me you that before retired to comment your continue deliberations morning along this that some those might lines be of some assistance to you. “Now, you keep my should in mind that advisory only, comments are intended to be are not binding you, as you are the judges exclusive of questions of fact submitted to you comments, and of the credibility the witnesses. You disregard should all of the any or
II VI, VI, (hereafter article Article section 10 the California Constitution 10) com- in relevant that “The court make such may section declares part witness as any ment on the evidence and the testimony credibility the cause.” its is for the determination of opinion necessary proper you credibility and the agree, they agree your if do not if do not with views of the evidence of the witnesses. “Now, definition, law, killing of one ‘homicide’ means the by under California word another, Now, the instructions that I’ve being by lawfully unlawfully. human either under given given you in that connection you, the word homicide includes murder. And I’ve degree murder. There is degree on first as well as instructions on second instructions murder however, homicide, by killing person of another—of a word also means the lawful of some excusable or another. And that’s in situations where the act occurs as a result case, do have a justifiable—under killing. particular for In this we the law—reason justifiable killing being by any shouldn’t be doubt or lawful of a human another. There death, killing of anyone’s killing Bergh Stendal was an unlawful mind that the Bonita was killed in self by person. absolutely is no evidence whatsoever that she her another There any be doubt in any type defense or other of reason or that she killed herself. There shouldn’t case, that we have an unlawful anyone’s presented mind on the facts that have been in this killing person. of Ms. Stendal another “Now, State, proved attorney, case whether the the district has question the real this is killing. legally responsible for the That’s beyond a reasonable doubt that the defendant is here, basically beyond a reasonable doubt that proved the issue as well as if the State has doubt legally killing, they proved beyond a reasonable responsible defendant is for the have they’ve proved degree degree. that it’s murder in the first or murder in the second And if degree, you go they on to whether beyond a reasonable doubt that it’s murder in the first circumstances that have proved beyond special a reasonable doubt one or more of they’ve proved as to whether you upon been mentioned. And are also called to determine *57 committed rape, they proved whether beyond a reasonable doubt that the defendant committed burglary. a a beyond reasonable doubt defendant “Now, connection, the defendant out in that there have been several statements attributed to early concerning night April the 21st and the of court his whereabouts and activities on the of with one morning April of the 22nd. These statements attributed to him are inconsistent hours concerning his activities that testimony are also inconsistent with his here in court another and evening early morning April and in the hours of the 22nd. “Now, through Bergh of Stendal attorney placed the district has him in the house Bonita being palm created blood on the bloody right palm print. by one . . was palm prints; three that, By dry palm prints. .... In addition to . . . there were two first and then transferred latent, that, dry was latent.... And another palm print, were there was a left which they right palm. . . print of the . palm “Now, given you explanation as to what he did in that the defendant has testified and an explain but does not morning explains presence bloody palm print, which of the house that circumstances, difficulty I have presence dry palm prints. of the two or latent Under those Now, to be again, comments are intended believing testimony my of the defendant. in advisory only binding you you judges questions and are not on are the exclusive of the any or all you credibility disregard submitted to and of the of the witnesses. You should fact and the they agree your of the comments that I’ve made if do not with views the evidence credibility of the witnesses.”
563 The is to allow purpose the trial to use his provision judge “training in analyzing in testimony” “experience determining credibility witnesses” “to assist the jurors what evidence has a determining bearing on the disputed issues the case aid them in evidence and to weighing 645, 321, . . (People (1967) . v. Brock 426 Cal.Rptr. [58 889], herein, P.2d “overruled” on a point not v. Cook implicated 400, 413, (1983) 86], fn. 13 658 P.2d Cal.Rptr. [189 herein, overruled turn on a point People v. implicated Rodriguez course, The provision, of is to the subject criminal defendant’s right trial by under both the United States California Constitutions. charter, Sixth Amendment to the federal as made to the applicable states by the due Amendment, process clause of the Fourteenth declares that “In all criminal prosecutions, the accused shall enjoy right to a. . . an trial[] I, impartial jury . . . .” Article section 16 of the state charter provides that “Trial by jury is an inviolate right shall be secured to all . . . .” VI,
Under article section a court has broad power delivering comment. (E.g., People Rodriguez, v. supra, 766.) Cal.3d at But that p. power Brock, is not unlimited. (E.g., People supra, 650.) v. 66 Cal.2d at p. noted, As the constitutional authority has been given judges for the must, purpose jurors. course, of assisting A judge cleave fast to the judicial role and not (See, that of an adopt advocate. e.g., People v. Friend (1958) 50 Cal.2d P.2d former VI [construing 97] 19 of art. § Const., of Cal. which was the predecessor of 10 of VI present art. of Cal. § Const., and was virtually thereto], identical relevant part “overruled” on a herein, point Cook, not implicated supra, v. 33 Cal.3d at fn. p. Also, 13.) further, frustrate, remarks he make may must and not defendant’s “right to independent jury determination of the facts bearing his guilt or (People innocence.” Rodriguez, supra, 766.) at p. Accordingly, he not state may or suggest his own views on guilt or innocence.
Cook, 412-413; supra, at pp. see People Rodriguez, supra, 770.) To p. do would so “necessarily with the jurors’ ability interfere[] freely perform their Cook, fact-finding responsibility.” (People v. 413.) at p. *58 only broad,
Not is the court’s power to comment it is also “most potent.” (People 233, v. (1946) Robinson 73 Cal.App.2d 237 P.2d [166 17] [constru “ ing former 19 of art. VI of Const.].) § Cal. ‘The influence of the trial judge the on is jury and necessarily [citation], properly great weight,’ and jurors are ever pi.” watchful of the words that fall from hi (Bollenbach v. United 607, (1946) States 350, 326 354, U.S. 612 L.Ed. [90 66 S.Ct. “The point need not be labored that the members of the jury great are apt give to
564 weight to hint the as to his on the weight from judge opinion Robinson, (People or witnesses . v. credibility evidence the the . . 237.) great at must exercise its “with supra, p. Accordingly, power the court 14 (People (1975) Cal.Rptr. 886 [123 care” v. Rincon-Pineda 845]) 538 and “with wisdom and restraint” P.2d 92 A.L.R.3d 207]), (1968) v. 331 (People Cal.App.2d Cal.Rptr. Shannon 260 [67 (People Rincon- “lest the the as trier of fact” v. province jury [it invade] Brock, Pineda, 886) (People supra, at or indeed “control the verdicts” v. p. 650). 66 supra, Cal.2d at p. that,
It even if it ever a cautiously, passes follows so court proceeds VI, the of what is under article section 10 its beyond bounds when permitted duty comment rather than to its jury properly “hinders helps perform (1975) considering (People case.” 753 Cal.App.3d v. Oliver 46 368].) Such a for where the remark Cal.Rptr. situation is present, example, called for the a means to avoid the determinations “provides jury preliminary for instructions on the law and instead to on words of rely Brock, at (People supra, p. v. judge returning conviction.” 651.) A to court also exceeds the what is “tantamount permissible by making an convict” argument (People Cal.App.3d to v. Flores 138]) its views fortiori—by stating suggesting and—a or own Cook, 412-413). (People supra, or at guilt pp. innocence v. Ill record, I
Applying foregoing facts of conclude principles the court it did on the evidence committed reversible error by commenting credibility. defendant’s
Error is manifest. with, begin (People
To the court “with care” v. great did not proceed Rincon-Pineda, 886) and restraint” supra, Cal.3d at “with wisdom p. Indeed, Shannon, 331). at (People supra, its interven- Cal.App.2d p. tion was three had since the altogether precipitous. days passed Almost full had had last deliberated. was before premature jurors Comment returned to also their task and some It was difficulty. imprudent expressed without notice to and defendant.
More to an troubling, argument court’s comment “tantamount Flores, 588) indeed convict” at (People supra, p. 17 Cal.App.3d only the court itself could suggested guilty, believed defendant was duty have than its properly rather help[ed] perform “hinder[ed] Oliver, 753). considering p. the case” Cal.App.3d *59 that and the substance of the prosecutor’s Recall the summation part murdered; comment to the Stendal had been court’s were same effect: residence; true, in he gave defendant’s him her palm prints exculpa- placed on 21 and tory testimony April about his activities and whereabouts without; stand, however, within did the house and his statements on the not the and were with his out of explain palm prints inconsistent statements court, result, other; which in turn as a were inconsistent with each his exculpatory testimony credibility. lacked
It is that the would have plain heard the court’s comment as tanta- jury mount an to argument for conviction. How could it not? The substance of the comment was the same as it part summation: added prosecutor’s was, and it nothing subtracted The summation nothing. prosecutor’s literally, an argument for conviction. The court’s comment effectively approved record, adopted what was urged therein. From all that face on the appears the did court not deliver the words in the manner passionate evidently the employed by it prosecutor. But delivered them nonetheless.
It is also plain would jury have heard court’s comment to that the suggest court itself believed defendant guilty. Again, how could it not? Innocence on depended credibility defendant’s exculpatory testimony. court own in expressed its view on the no question uncertain “. I terms: . . have in difficulty believing testimony of defendant.” It follows court’s comment could have hindered the only proper consideration the case. The remark allowed panel “to rely on the words of the judge a conviction” returning and so “avoid the preliminary determinations called for (People the instructions law” Brock, supra, p. 651)—determinations clearly it found difficult. sure,
To be the court told the jurors that its comment was intended to be “advisory statement, only” was “not binding.” Such an incidental how- ever, is “insufficient to neutralize” the improper remark’s effect.” “potent Cook, 9.) 33 Cal.3d at p. fn.
The majority’s discussion is generally unobjectionable so far as it goes. But it does simply far go enough. It fails discern that the court’s and, comment was such, argument tantamount an for conviction could only have hindered the the proper consideration of the That case. trial judge’s words were not identical those other cases is obvious—and unimportant. I turn now from the fact of error to its consequences. “Particularly trial,” this,
criminal such as “the judge’s last is word be decisive apt to *60 566 States, (Bollenbach L.Ed. at p.
word.” v. United 326 U.S. at p. 354].) it Evidently, The court’s erroneous comment was its final remark. thereafter, the verdicts on jury guilty About four hours returned dispositive. all the and true on all the it had charges findings allegations—even though nine any been unable to verdict or agree finding approximately hours that I am “of the that the error . . . preceded. Accordingly, opinion Const., VI, (Cal. 13.)2 has resulted in a miscarriage justice.” art. § IV I make the passing, following observations.
First, I to the believe that a contrary majority’s implication, challenge, _ Stringer based on v. Black 503 U.S. L.Ed.2d S.Ct. (Stringer), standard instruction on the determination of jury 1130] would penalty surely prove substantial.
In Stringer, the United States held that “if State uses Court a Supreme aggravating deciding factors who shall be for the death or eligible penalty who shall receive the death it cannot use factors which as a penalty, practical matter fail to guide Eighth sentencer’s discretion” contravention of the 381-382, (503 Amendment. U.S. at L.Ed.2d at S.Ct. at p.__[117 pp. p. 1139].) It our the use of explained: “Although require do not precedents factors, aggravating have not a State in which they permitted aggravating are factors decisive to use factors A vague imprecise vague or content. aggravating factor for the whether a employed purpose determining defendant is eligible for the death fails to channel the sentencer’s penalty A discretion. vague factor used is aggravating weighing process worse, sense for it creates the risk that the will treat the defendant as more deserving of the death than he penalty might by relying otherwise be upon (Id. existence of an illusory circumstance.” L.Ed.2d at p.__[117 381-382, course, pp. S.Ct. at Of p. “aggravating California uses Code, 190.2, factors”—labeled (Pen. circumstances” subd. “special § (a))—to determine death eligibility. “aggravating It also uses factors”— (id., 190.3)—to bearing very label decide between life and death. § A narrow Stringer could challenge specifically attack one or more of the factors set out in the standard instruction on the determination and, reason, penalty as for that vague to invite an likely arbitrary reach, 2Because of the result I I need not and do not consider whether the court’s erroneous comment effectively right denied defendant his by jury to trial under either the Sixth I, Amendment to the United States Constitution article 16 of the California section Constitution or both. *61 in of choice of violation the Amendment capricious punishment Eighth (a), Defendant raises such a claim factor which covers circum- against “[t]he stances of the crime.” The dismiss I am dubious. That point. the majority United States itself established that the circum- Supreme Court has “[t]he stances surrounding upon a offense constitute one of criteria capital ante, which should base its at opn., determination” penalty (maj. p. in original) italics no what consequence. is of What is is not dispositive announce, on jurists courts appellate may juries may but what laypersons understand.
A Stringer broader attack challenge generally could the standard jury and, instruction on vague the determination of at penalty very as its core for reason, that highly invite an and of likely arbitrary choice capricious punishment violation the Eighth Amendment. Certainly, instruction more raises it questions than answers. For what example, on does determination of turn? do the penalty What terms and “miti “aggravation” gation” mean? Which of the factors are and/or potentially aggravating (See mitigating? (1991) v. Bacigalupo Cal.4th 152-154 [2 Mosk, Cal.Rptr.2d (conc. J.), opn. vacated 559] _ remanded sub nom. Bacigalupo 506 U.S. California 32], L.Ed.2d 113 S.Ct. for Stringer further consideration light _ Black, supra, 503 U.S. L.Ed.2d S.Ct.
Second, (j)—“[w]hether factor not the or defendant was an accomplice the offense and his in the participation commission of was offense relatively minor”—is potentially and not mitigating potentially aggravating. “ ‘[Aggravation’ means which that increases the defendant’s moral personal culpability above level of that blameworthiness inheres the capital contrast, By offense. ‘mitigation’ means that which reduces his culpability that below level.” Bacigalupo, (conc, supra, Cal.4th p. Mosk, opn. J.).) Numerous decisions of by many this court of its members establish the fact that (j) factor is only. her potentially mitigating concur herein, ring and dissenting opinion beyond Justice Kennard proves point peradventure. Reason also establishes fact. in factor question posed for (j) was, calls one of two A answers. that the determination defendant actuality, a minor to the accomplice may lead conclusion that his culpability was less than that generally by reflected commission of But the offense. a determination he did not such a play simply role does not lead to the conclusion that his culpability greater. Loose uncertain dictum arguably to the which contrary, appears that does not cite single opinion authority present any should analysis, be forthwith. It disapproved used, should be as majority, “create” a “conflict” where none exists.
V it did on Because the court committed reversible error by commenting I judgment. evidence and defendant’s would reverse the credibility, Mosk, J., 10,1993. for a was denied March Appellant’s petition rehearing Kennard, J., were of the should be granted. opinion petition