*1 No. 21979. Dec. 1985.] [Crim. PEOPLE, Plaintiff and Respondent,
THE BALDERAS, Defendant and
DAVID Appellant.
Counsel O’Connor, Allan Court, B. under by the appointment Supreme Defendant and Appellant. General,
George Deukmejian and John K. Van Robert de Kamp, Attorneys Philibosian, General, H. Chief Assistant Arnold O. Attorney Overoye, General, Assistant Joel Eddie T. Keller and L. Attorney Carey, Raymond II, General, Brosterhous for Plaintiff and Deputy Attorneys Respondent. Opinion was tried David Balderas
GRODIN, In a single proceeding, J. from three and arising on sixteen counts set forth two informations felony information, de first No. charged incidents. The separate principal early morning Corrine S. fendant with L. and Randy crimes against defendant, two charged, as convicted of December 1979. The jury Code, 2071) robbery (Pen. of forcible § counts each kidnapping oral (3)), (§ former subd. (§ 211), one count each of forcible rape otherwise indicated. Penal Code unless statutory 1AH references are to the *16 288a, 286, (§ (c)), (§ subd. copulation (c)). and subd. As to each sodomy count, the (a found used jury that defendant had a firearm sawed-off shot- (§ gun). 12022.5.)
Information committed No. 21050 also Neil charged offenses against 24, incident, Wanner later in the of In December 1979. the Wanner morning (§ was convicted of robbery 209), for of kidnapping purposes (§ 211), robbery and first (§ 187). murder The verdict degree specified defendant intentionally inflicted the great bodily during injury kidnapping and (§ 12022.7.) Wanner. robbery A that defendant charge possessed 24, 12020, sawed-off on (§ December shotgun (a)) subd. was also law, Under the 1978 upheld. death the found true a penalty charged circumstance committed special that defendant the Wanner murder while in the engaged (§ 190.2, commission attempted commission a robbery. (a)(17)(i).) subd. information, 21762,
A second No. defendant with an charged escape from on custody (§ August (b).) 1980. subd. Included were two counts each assault (i.e., on a deadly weapon officer two police jail (§ guards) (b)) (of subd. (§§ 236, and false guards) the imprisonment 237). Defendant was convicted on all counts.
The jury assessed the death for the murder. The trial court penalty denied defendant’s motion for newa trial and affirmed the death sentence. (§ 190.4, (e).) subd. It also a total sentence of 20 íé on imposed years the offenses, noncapital (action a conviction in a trial including separate No. 20849) for an (Veh. Code, auto theft on committed January 1980. 10851.)3 The § trial action No. 20849 had also served as a probation revocation conviction, in action No. hearing a 1978 auto-theft and defendant’s had been probation revoked. action No. 19490 Sentencing was consolidated with the instant the The court proceeding. imposed upper offense, term of three years for the 1978 the to run sentence concurrently with those for the other counts. Defendant received days custody, 2Allegations that defendant used a firearm in the of Wanner commission the crimes were apparently withdrawn before trial. offense, upper eight 3Defendant received the term years principal noncapital for the 264), (§ rape plus two-year “firearm” base added enhancement. To this term were con totalling secutive subordinate terms permissible years charged the maximum five for other 667.5, (c), as including kidnap felonies listed “violent” under section subdivision S., pings Randy and robberies of and shotgun possession, escape, L. Corrine deadly weapon jail guards, assaults on the conviction. and 1980 auto theft An additional years two consecutive copulation each were assessed for the “violent” oral felonies of and S., 1170.1, sodomy (§ (a).) plus year Corrine two-thirds of a each firearm use. subd. stayed Warmer, robbery The court sentence on kidnapping of Neil false jail guards, imprisonment of pursuant to section 654. *17 162 if
work, 2900.5, 4019.) court ordered that good-time (§§ credit. The reason, any the death sentence was or out for any overturned not carried con- be served sentence murder should ultimately for Wanner imposed to all others. is secutively This automatic. appeal for the crimes We all reject defendant’s to his convictions challenges However, circumstance” we sole determina- charged. reverse the “special in a was tion—that the murder defendant engaged was committed while (§ 190.2, subd. not instructed robbery (a)(17)(i))—because (People this circumstance intent to kill. special a of finding specific requires 265, 550, 684 539, (1984) v. Garcia 36 Cal.Rptr. Cal.3d 555-556 [205 366, 826], S.Ct. P.2d 105 (1985) cert. den. U.S. 1229 L.Ed.2d 469 [84 1229]; 152-154 (1983) Carlos v. 35 Cal.3d Superior [197 Court This, turn, that the 862].) judgment Cal.Rptr. requires 302, 329- be death overturned. Turner (E.g., People v. Whitt 36 330 P.2d People For on 1161].) any penalty P.2d guidance retrial, are likely we issues which discuss certain briefly penalty-phase recur and have not been decided. yet
I. Guilt Trial A. Prosecution case. defendant, Hix, testified
Under a a friend of grant Joseph immunity, on the evening that he and defendant a in Bakersfield party attended 23-24, had Wall- drinking premixed Harvey December 1979. The two been “crank” While banger during day.4 cocktails all snorting preceding PCP believed he had its defendant had used in the Hix discontinued past, weeks, PCP on or use in recent and he did see defendant use the day 23. evening December
About asked to borrow Hix’s car to leave defendant midnight, party; drunk. saw defendant seemed Hix next defendant around 8:30 the next 24, at Hix’s house. Defendant looked and acted sober. December morning, that, a he run car into a leaving He said after had Hix’s ditch party, Lamont, lived, both While rural road near where and had abandoned it. home, said, in a he had come black walking upon couple parked woman, car, her forced them at the of a kidnapped raped point shotgun, re parties’ The 4“Crank” methamphetamine, powerful street term stimulant. generally available spective narcotics experts composition actual “crank” differed on the composed on the street. prosecution’s usual “crank” is expert suggested that the street caffeine; mostly of “crank” expert opined milder that the stimulants defense such as available Kern County methamphetamine. was real engage oral and left both victims in copulation, separate places their cut off. clothing *18 that, L. and
Randy Corrine S. testified sometime after on De- midnight 24, 1979, cember they were in front of her mother’s Lamont parked home car, in Randy’s a 1965 white Chevrolet A man both Impala. positively identified as defendant the driver’s side from between two build- approached street, across the ings at his side. He on the car holding shotgun tapped window and asked if the knew a woman named “Black” or couple Black- urn” from whom he was to narcotics. When both supposed purchase replied “no,” he stuck the in the window. gun at Holding weapon Randy’s head, he into the got car and ordered to drive as directed. Randy fields, an erratic
During into rural journey defendant divested and Randy Corrine of their leather coats and jewelry, Corrine’s and including rings and the earrings watches the two had as Christmas He exchanged presents. then ordered Corrine to remove her clothes and throw her undergarments window; him, out she He told her to in the back seat with complied. get where he forced her to in oral her. engage and this copulation raped During time, he continued to train the on was still shotgun who Randy, driving. end,
After the car at an isolated dead defendant made Corrine stopped get in back with him where new acts of oral and again, oc- copulation rape curred. The routine was several more times repeated during wandering back toward Lamont—“over four” in trip all.
A and, dust storm was outside one blowing defendant told point, Randy Later, to over until pull visibility defendant improved. smashed the rearview mirror with the when he noticed shotgun it to Randy using get look at him. defendant
Finally, clothes, ordered to and take off Randy stop his which did. Defendant Randy held a knife at throat and Randy’s asked if he could feel how it was. Then he cut off the sharp skirt portion Corrine’s dress and the and legs pockets Randy’s pants.5 car,
Soon was told to Randy Defendant ordered him out of the stop again. him back cut-off gave his and directed him to lie down in the pants, road- cold, The weather was way. and and was naked windy Randy except and his socks. Before defendant “I pants leaving, Randy, you told hope freeze, nigger.” 5Randy Randy testified that during episode copulate this defendant threatened to force orally any him never but carried out the threat. Corrine did not remember such comment
by defendant. in the driver’s seat and told her continue
Defendant Corrine placed himself, but she said was too Defendant drove away she upset. driving, console, with the center one hand steering brandishing sitting area, in another isolated forced again other. He stopped shotgun time, her. During oral and sodomized this engage Corrine copulation, said, I give her and then “Do think a fuck you he asked about children kill her so damn He also declared he should she could about kids?” your him. identify out, dress, her the cut-off ordered Corrine threw Finally, *19 car. her fields to a house trailer whose way through in the Corrine made left her taken the next Vaginal day call the swabs dis- helped police. residents closed presence sperm. cross-examination, off disclosed defendant an odor gave
On Randy PCP, did any associated with but Corrine not notice smell. Both said Randy erratic, were seemed excited and his instructions but driving that defendant was clear and his coordination normal. his speech at Hix’s house testi- morning, When defendant showed later Hix up fied, out Hix’s two set in defendant’s brother’s to find car. They pickup house; went defendant’s front was a white 1965 Chevrolet parked past taken which defendant said he had from the black Hix and couple. Impala hours; drove each defendant around the Bakersfield area for several took “crank” time. The “crank” Hix feel more during some this made alert only wide-awake, and and he noticed no different effect on defendant. ran low on two home of a The truck and the at the friend of gas, stopped borrow a was Hix’s to small amount When fuel needed a gas money. time, Center, Hix to and defendant drove Kern Medical County second lot, some to steal from cars. In the money parked saw hoping parking they in a man truck. Defendant he was sitting announced to rob pickup going man. he wanted no of a robbery said and told defendant he be part Hix would Jaurez, of Rachel where the previous home had taken night’s at the party then took the sawed-off Defendant which he had shotgun, brought place. truck, to over and in. occupied got walked along, father, Neil, his testified that had him Wanner at the med- dropped Steve a.m., to wait intending in the about Wanners’ while pickup ical center When examined. Steve ankle was Neil emerged, and the broken Steve’s Steve never saw had his father alive disappeared, again. pickup Wanner later, Hix drove the Balderas or two hours truck house. One Jaurez Hix, defendant arrived in the driving he pickup had commandeered. truck, church,
Balderas followed Bakersfield defendant near a to an alley where defendant in the left the to Lamont other two returned vehicle. The Balderas truck. that,
Defendant told Hix to the isolated rob- when he and his victim got scene, down, bery victim struggle ensued. knocked the Defendant when turned, defendant’s back with some object hit him the victim from the truck. Defendant When defendant leg. then shot in the the victim started leave in to be truck, left begged the victim commandeered cross-examination, behind bleed to death. On Defendant left anyway. Hix disclosed that shoot not mean to he did said repeatedly victim.
Hix and defendant off the returned to house after dropping defendant’s borrowed pickup from There, his defendant went wallet through brother. he said he had taken from identification the victim. The wallet contained *20 for Neil Wanner. and its Defendant and Hix the wallet contents then burned in the back yard.
Neil Wanner’s nude dirt road on was on a little-used the body discovered morning December between his legs There a hammer and 1979. was another tool within five covered bloody feet of his A a rag arms. upraised wound on shotgun the left bled to death. and Wanner had leg pelvis.
Bakersfield and Kern warrant for a search de- County police executed fendant’s on residence S.’s watch about March 1980. Corrine and Neil Wanner’s partially burned wallet Defendant’s father were recovered. was a wearing Corrine; to it in he had found the ring belonging he said driveway residence L.’s car a visit. during Randy Christmas ultimately found in a field near Lamont. Henson,
Cletus defendant, another corroborated Hix’s acquaintance of version of defendant’s account of the of December 23- morning night Henson, 1979. According to house came Henson’s one defendant to around morning Christmas and said Henson drove somebody. he had shot defendant to Bakersfield so Hen- he had left there. could on a car he check son a abandoned glimpsed pickup the description truck’s matching Wanner in an where alley the Wanner Defendant vehicle by police. was later found him, said he had robbed but when leave truck’s owner to and was going he to truck, turned into the get something back with victim hit him in the truckbed; from the on his back. De- defendant showed welt Henson a red blow, said, fendant had the victim. The shooting to the he responded by aid, him but defendant told to hell” and “go victim had medical pled a since he carried usually “knew” defendant had used shotgun, left. Henson one. defendant’s account of the incident with the black
Henson testified to also he at a before. Defendant told Henson had drunk gotten the night couple Hix’s He black car. commandeered the couple’s and “high-centered” party home, “have but then decided to sex walking girl.” auto to avoid [the] in the back while holding He to her several times seat “made love” man’s head. to the shotgun said he had taken from white Chevrolet defendant
Henson saw the 1965 Hix, Henson, around and defendant moved it several the black couple; vehicle; stripping times. Hix had testified Henson participated intent, but when returned to the last they this was his spot Henson conceded it, it. admitted to a had beaten them to Henson had taken someone they he PCP. He said had ap- history dealing drugs, principally using in order to a deal for narcotics get the authorities about proached who, arrested, Henson. declined to implicate associate when had December 23- element to all the necessary intent steal was Specific of Randy 24 crimes kidnappings sex offenses and except “simple” by L. and Corrine S. called prose- Dr. Siegel, psychopharmacologist cution, form specific view that defendant’s expressed capacity intent had been relied the ab- diminished use. The witness drug *21 crimes, day sence evidence that defendant taken PCP on had the mu- ingested, had probable composition “crank” defendant alcohol, caffeine, and de- tually effect of counteracting methamphetamines, fendant’s on Randy clear and sound the assault speech during coordination S., L. and Corrine and the activities. nature of his purposeful Two from cus- Kern County jail guards escaped testified that defendant on tody Wiggins 1980. Sheriff August Defendant overpowered Deputy inmate, an exercise a took during period; Wiggins second then Reynolds, a The with “shank.”6 tied hostage Wiggins two announced escape plans, and, directions, room, with his where doors up, opened into a multipurpose on the floor. was The would kill Wiggins placed inmates told Wiggins they said, him he is in cooperated; Reynolds unless “You know Balderas what I here for. If don’t do what I’m on loose you say, you.” to turn him going he be indicated did intend to and Wiggins hero since he had wife and children. Defendant “Fuck replied, you your too.” family, stabbing weapon. prison-made 6A is a “shank” vents,
After two tried ceiling inmates in vain to leave some through the exercise Reynolds directed to for outside to keys Wiggins telephone call; Sheriff’s was also taken yard. Aide Lindini he Wiggins’ responded bound, and were hostage relieved of his and both keys. Wiggins, Lindini locked in an over- jail enclosed area. Defendant and removed their Reynolds alls, under which took were clothes. Defendant they Wig- street wearing gins’ wallet and wore Jail documents record- Wiggins’ jail. shoes out of ed the escape. that,
Evidence on was refused one custody, elicited while in defendant hair, occasion he was give of his but that willing blood and samples pubic so to do at the time of trial.
B. case. Defense
The sole defense to the of diminished capacity respect spe- S., Wanner, cific-intent (i.e., crimes and the robberies of Neil Corrine Ran- L.; the dy first Wanner for and robbery; degree kidnapping purposes murder felony based robbery). on commission of a defense principal Linder, witness was Ronald a Ph.D. in health science education who had done extensive based into abuse. Linder his inter- drug opinion research Hix, views with defendant, These suggested Henson. defendant was a “chronic ingested abuser” who had substantial doses of poly-drug PCP and “crank” crimes and charged week before the was sub- during stantially intoxicated on alcohol when left the December 23-24 he party. Linder noted that PCP remains in the up year, tissues increases drive, inhibitions, reduces and causes hallucinations psychotic symp- toms. He expressed the view that “intended” to commandeer vehicles and to but that he would not commit Wanner have robbery, committed the under the influence crimes of December 23-24 except drugs.7
II. Penalty Trial
A. Prosecution case. Hartnett,
The Dr. who had done a prosecution ju- called a psychiatrist court venile in Hartnett testified probation evaluation of defendant 1975. Linder, On charged 7In interviews conduct. direct essentially with defendant admitted counsel, bearing on by opinion examination as his defense Linder disclosed these admissions specific about intent. was consider defendant’s statements Linder The admonished to 400, (1965) (See Spencer purpose only, guilt. for that In re not as evidence his 782, (1973) 33]; People Cal.App.3d 31 786 Cal.Rptr. 412 P.2d v. Danis [107 406 [46 675].) interview, that, basis of he diagnosed on the a 45-to-50-minute unstructured condition, Hartnett as an “antisocial This having defendant personality.” callous, selfish, which said, characterized behavior by impulsive frequent- is into he subject society. conflict with Antisocial ly personalities, brings declared, remorse, tol- exhibit a lack of and empathy. They loyalty, guilt, or and cannot learn from badly erate frustration experience punishment. in to rationalize and others. said he cautious tend blame Hartnett They condition, Hart- this since is low. the potential improvement diagnosing for, not asked and did an whether drugs might was not express, opinion nett influenced defendant’s behavior.8 have cross-examination, he administered one intelligence the witness said
On IQ of indicated an retarded.” The test, 75—“mildly which borderline situation, a bad members many also revealed home family interview roof; one with his defendant said he was in constant conflict under living father. alcoholic introduced robberies uncharged
The evidence three prosecution from Ac- after allegedly custody. which his participated escape Rey- to restaurant defendant and his fellow employees, escapee, cording nolds, robbed Table on the Cozy evening Restaurant San Diego 23, 1980. Mih- They brandished and forced handguns manager, August Rezian, $2,000 hand over some from the safe. restaurant’s alis office were then in the walk-in and told would they workers placed refrigerator before in Re- they be if the robbers The two emerged departed killed left. Rezian waitress Nolan identified both rob- zian’s car. and Cheryl positively days two later. lineups bers photo and were as of a similar Reynolds
Defendant identified the perpetrators at a McDonald’s of August restaurant in Santa Clara on robbery evening both robbers and were Again, employees 1980. displayed handguns, herded into restaurant’s freezer. James Judson was divested of Manager $1,725 to turn watch forced over from the safe cash registers. his defendant and were identified Judson in Reynolds by Again, positively soon after the lineup robbery. photo grounds testimony had moved in limine exclude Hartnett’s it was 8Defendant an (See dangerousness.” People prediction of “future v. Murtishaw improper seq. et cert. den. U.S. 1280].) The testimony 102 S.Ct. trial court concluded that the proper L.Ed.2d guilt phase defendant at the as to of drug of evidence introduced influence rebuttal evidence, reasoned, possible bore on the crimes. That court “mitigating
use on his *23 mental or and “mental of “extreme emotional disturbance” disease or de circumstances” criminality fect, ability appreciate impairing the or act lawfully. . . intoxication” or . 190.3, (h).) (d), (See subds. § Two men robbed in on September the Miller’s store Upland Outpost A into the 1980. man Borland Timothy identified as took Reynolds manager store’s office at forced to the safe. empty where Borland was gunpoint, Meanwhile, defendant, robber, held a handgun other identified as other the floor. The robbers left employees, who had been made to lie on $2,300 with in the store’s brown leather money bag. Houston,
Defendant was on October arrested in a Texas apartment Miller’s 1980. a officers found the During consent search premises, which showed Outpost $413 with still in it. were seized bag Photographs Rezian’s car and a Judson’s watch taken in one of the robberies. money bag was discovered on he in when was later arrested Reynolds Michigan.
The court took notice that defendant had suffered two judicial “prior” felony convictions—for the 1978 and 1980 auto thefts.
B. case. Defense
Defendant’s mother testified to his he was but said drug problem always well-behaved and nonviolent at home. testified he was a Raymond Gaygan family life; friend who had known defendant all never his had Gaygan prob- lems with defendant and knew of no involvement in violence. Drucker, defense called Dr. who had court-appointed psychiatrist
also been a PCP, Defendant had told he pharmacist. Drucker ingested “crank,” and alcohol of December during day evening “loaded” car, when he left the in Hix’s and was party carrying shotgun for self-protection in of his activities. His light drug-selling memory abandoning Hix’s car was but he most fuzzy, remembered of what had happened the black Defendant recalled to have forc- couple. deciding ible sex with the woman. Defendant used more PCP and “crank” the next Wanner, before morning the homicide victim. encountering Drucker, According truck, when defendant commandeered Wanner’s the victim asked killed; whether he was to be defendant assured going him there was no scene, such intention. At the defendant forced robbery Wanner so he strip would be once defendant left in handicapped getting help the truck. The occurred shooting for the after the during struggle shotgun victim struck him fired, from behind. When the he gun panicked; aput towel on Wanner’s wounded and fled in leg the truck. Defendant did victim; remember said, plea from the he “I help could tell by at his looking face he was in I didn’t know what to do.” pain.
Drucker found Wanner, activity planning-type robbery of but not Defendant, he killing. “excitement, fired the thought, a state of gun confusion, and intoxication.”
170 cross-examination,
On Drucker of “antisocial agreed diagnosis and indicated that would decrease the personality” drugs simply judgment might with which defendant otherwise evaluate an for antisocial opportunity behavior. Drucker conceded that what he violat- defendant knew was doing could ed the law. Drucker not say impul- whether defendant behaved more if he had been sober. than sively
III. Pretrial Issues 1. Severance and consolidation trials.
The trial court denied defendant’s motion to sever the trial robberies, and forcible sex L. crimes and Corrine kidnappings, upon Randy S. from that for the murder of kidnapping, Neil Wanner. robbery, court also overruled defendant’s objection to consolidation the trial for the those with that violent charges escape. his
Defendant renews
con-
separate-trial
here. He
arguments
properly
below,
cedes, as he did
that the three
were
groups
charges
properly
“as a matter of
under
954.9 All
joined
pleading”
section
were of the “same
class,” in the statute’s
they
since
involved the common ele-
terminology,
ment of assaultive behavior
(1972)
v. Rhoden
against
(People
6
person.
519,
751,
Cal.3d
524-525
1143];
P.2d
v. Su-
Cal.Rptr.
492
Coleman
[99
cert,
(1981)
129,
Court
116
perior
86],
135
Cal.App.3d
Cal.Rptr.
[172
den.,
846,
Even where joinder has permitted trial court discretion sever 954.) counts “in express (§ the interests of justice.” 9Section provides part: accusatory pleading in relevant “An may charge two or more commission, together different offenses connected in their ... or two or more different offenses, counts, or separate offenses of the same class crimes more under and if two or court, accusatory pleadings may are filed such cases in the same court order them [P]rovided, triable, be consolidated. . . . that the court in a case is which the interests shown, may justice good and for order cause its discretion that the different offenses accusatory pleading counts set forth in the be tried or divided two or more separately into groups groups separately. and each of said tried ...” *25 However, “on clear an only defendant can abuse of discretion establish ” (Williams 441, (1984) 36 Cal.3d v. Superior Court showing prejudice. 700, 699].) 447 683 P.2d Cal.Rptr. [204 consoli
We must evaluate for severance and objections motions (People dation in made then known. then and the facts light showings 196, 669]; 302, v. Turner 37 P.2d (1984) Cal.3d 312 690 Cal.Rptr. [208 161, 277, 461 P.2d People (1969) v. 1 Brawley Cal.Rptr. Cal.3d 292 [82 361], 993 (1971) cert. v. 400 U.S. den. sub nom. Baker [27 California 319, 441, 462]; (1954) L.Ed.2d S.Ct. v. 332 91 Santo People 249], (1955) P.2d 348 U.S. cert. den. sub nom. Graham v. [273 California 749, 451]; Cal.2d L.Ed.2d 75 see v. Clark 62 People 959 S.Ct. [99 870, 784, 856].) 402 P.2d The burden dem [44 that consolidation was a abuse onstrating or denial severance prejudicial it; of discretion is him must be who asserts upon prejudice proved, “[a] bald assertion is not prejudice enough.” (People Kemp cert, den., Cal.2d 368 U.S. 359].) 932 L.Ed.2d 82 S.Ct. court,
Before trial that the cases had People only urged hand, Defendant, numerous common on the other only witnesses. argued that capital should never be He no noncapital joined. charges provided further information about how arise under cir prejudice might specific cumstances of these cases.
The existence of capital bears on the issue of severance charges certainly Williams, Coleman, (see 453; supra, supra, Cal.3d 116 Cal.App.3d atp. 137-140), but pp. in the cases that severance is nothing prior suggests whenever required are capital involved. We cannot based on charges say, the minimal court, showings made both it abused parties the trial that its discretion in a consolidated trial. permitting
However, case, subsequent to the consolidation-severance in this hearing Williams, we provided, a detailed of the factors which should description be considered in In deciding request trials. motions separate arising Williams, after the trial court itself should these cannot evaluate factors. We but, fault the trial so, court this case for to do under pre-Williams failing circumstances, fair, we deem it and economical to prudent, apply Williams analysis ourselves to defendant’s claim of consolidation. improper Williams,
Under the first step whether a assessing combined trial was is to prejudicial determine whether evidence on each the joined charges admissible, would have been under Evidence Code section in separate so, trials on the others. (36 If inference of any prejudice dispelled. 448-449.) at pp. People urge the two December would 1979 incidents have been cross-admissible in trials to show a similar modus separate operand! bearing .)10 (Evid. Code,
on identity.
(b)
subd.
further
They
suggest §
*26
the 1980
would have been
escape
admissible in trials of the earlier charges
to show consciousness of
also circumstantial evidence of
guilt,
identity.
(See,
436,
e.g., People
(1984)
547,
v. Holt
37 Cal.3d
455
Cal.Rptr.
[208
1207],
11;
362,
P.2d
690
and fn.
(1970)
v.
2 Cal.3d
People
Terry
395 [85
409,
961],
466
Cal.Rptr.
P.2d
dism. (1972)
cert.
We cannot
defendant’s
since it
on
accept
argument,
events
depends
which occurred at trial and would not
have been
at
necessarily
apparent
time the issues of
(Clark,
severance and consolidation were decided.
supra,
62 Cal.
883.)
at p.
There are certain
December
similarities in the two
1979
time,
vehicles,
incidents—the
in
proximity
the use
commandeering
of a
and the
shotgun,
of the victims
partial
complete disrobing
(presum
However,
to hinder them
ably
aid).
in
we are not certain
seeking
they share
marks so distinct in number and
tend
significance
they logically
isolate the same person
(See
as the
of both.
v.
People
Thornton
perpetrator
cert,
(1974)
738,
11
467,
Cal.3d
267],
755-760
P.2d
523
Cal.Rptr.
[114
(1975)
393,
den.
420 U.S.
924
L.Ed.2d
95 S.Ct.
disapproved
[43
other grounds,
on
(1979)
v. Flannel
However, even if evidence on the would not have been joined charges trials, cross-admissible in a court does not abuse separate necessarily its 10 1980, “Since charged the crimes here occurred in we need not consider whether 1979 by (People section 1101 was Proposition adopted affected at the June election. 149].) Smith Cal.3d P.2d 258-263 Thompson, 11In spe we on a explained logically that even if other-crimes evidence bears issue, basis, identity, cific such as it is not admissible on that under Evidence Code sections Here, “actually dispute.” People 1101 and if the issue on which it bears is not in incidents, presented eyewitness extraju charged multiple in of the identifications two three two, dicial Defense physical linking admissions in evidence him to two. evidence, alibi, presented counsel made no and relied challenge persuasive serious to this no tactic, Indeed, solely realizing on a defense of the limitations of that capacity. diminished general-intent counsel conceded to the that he had “no real to the crimes defense” Thus, urges, identity he cases alleged. dispute” any there was no “actual about of the justify which would cross-admission of evidence from the others. “ ‘ discretion discretion the cases for trial. by joining judge’s “[T]he evidence of admitting than his discretion in refusing severance is broader on offenses. . on motion to sever based uncharged . .”’ ruling [A] effect, but in the value as weighing probative against prejudicial are added to the joinder pro the beneficial results from weighing process even stronger bative-value the defendant to make an side. This requires whether effect than would be showing prejudicial required determining (Williams, to admit supra, other-crimes evidence in severed trial.” Matson, 41; at Cole 13 Cal.3d at see also p. supra, p. quoting man, 138-139.) supra, 116 Cal.App.3d pp.
Williams that refusal to be abuse of suggested sever an discre might tion where evidence the crimes to be tried would not be cross- jointly trials; (2) admissible in separate certain of the are charges unusually likely *27 defendant; to inflame the the against a “weak” case has been joined case, case, with a or with another “weak” so “strong” that the “spillover” effect of evidence on several aggregate charges well alter the outcome might all; of some or (36 and one of the any carries the death charges penalty. Coleman, 452-454; Cal.3d at see pp. also supra, Cal.App.3d 139-140.) pp.
However, noted, as the “substantial” or “clear” neces prejudice to show abuse sary of discretion does not on the lack of cross- depend and admissibility the existence of alone. capital charges Determi nation of exercise, a severance issue is “a highly individualized necessarily dependent the upon (Wil of particular circumstances each individual case.” liams, supra, 452.) 36 Cal.3d at p.
Defendant he suggests was in that a prejudiced “strong” noncapital case—the robberies and sex crimes L. and against Corrine S.—was Randy with joined a “weaker” case—the capital Wanner homicide—causing “spillover” effect however, to leading his murder conviction. de Again, fendant made no before the trial showing court on which specific prejudice flow might joint from of trial these And if charges. even the trial court had known, at the time severance, defendant moved for the of relative strength cases, prosecution it would not have abused its discretion deciding that the beneficial of effects consolidated trial outweighed potential prej udice.
Defendant weak, argues evidence the Wanner case relatively but his contention is not There was no to the Wanner persuasive. eyewitness homicide, but the evidence connecting defendant that crime was very It convincing. included the of discovery Warmer’s burned and buried wallet
in defendant’s back yard and own defendant’s admissions to two acquaint- Hix, these, he
anees. One testified saw defendant commandeer Joseph de- Wanner truck the medical center lot and later parking helped from wallet. The two on all essential agreed fendant witnesses dispose evidence in details. We see no substantial likelihood the overpowering case resolve otherwise L.-Coróne S. would doubts Randy jury might Neil killer. have about Wanner’s identity Moreover, offenses, there was charged while defendant was serious no or calculated inflame or jury, evidence charge particularly prejudice such as the child in Coleman or the warfare” molestation charges “gang All the were out charged evidence Williams. crimes here carried against adults an whose were standards personal. By individual motives sad brutal, 1980’s, they the 1970’s were particularly repulsive, We that defendant has not demonstrated this prong sensational. conclude Williams “prejudice.” hand, benefits be judicial gained
On the other there were substantial had within trial. The two criminal occurred from a consolidated episodes homicide, other, if robbery hours of each and the Wanner prosecution believed, were an aftermath to events of the essentially previous evidence witnesses, there be common The court was informed that would evening. *28 witnesses, Hix and and that true. Two of the prosecution proved principal Henson, Hix related to them about both incidents. defendant’s admissions and defendant was also witness Wanner’s abduction percipient helped of evidence of the Wanner crimes. dispose
Moreover, to all the defense defendant a diminished capacity presented S., L., of Coróne specific-intent Randy the robberies charges (including Wanner), December and Neil of and alcohol on based on his ingestion drugs issue, 23 and 1979. on this psychopharmacologist Two of the witnesses defense, were for the and for the Linder Siegel prosecution psychologist incidents, to the as of testimony. common two was most their two Kern conducted a common Finally, investigation County police incidents, common and it to assume that there would be was reasonable circumstances, con- witnesses. the court could police Under the properly prej- clude of a trial its outweighed that beneficial effects joint potential udice. it try
Defendant that was unduly predomi urges prejudicial crimes L. and Coróne S. Randy together intent” nantly “general against Wanner, only with the offenses since the against intent” “specific capital The defense offered diminished “mix” of capacity. confusing general sole instructions, him of his intent specific deprived defendant urges, means of avoiding conviction for murder. capital sever, could contention is the trial court meritless. On a motion to was, which instructed,
assume the about would be correctly jury as this crimi- offenses by general intent and which were satisfied required specific nal intent.
Moreover, if a even theoretical basis of “diminished capacity” prejudice would de- have induced a cases involving careful trial court to sever fense, (See we can reverse after of only “miscarriage justice.” trial for a Const., VI, Cal. 13.) art. In the diminished capacity we note regard, § defense was so weak in unlikely all cases that combination charges to have affected in of them. jury’s any assessment that defense witness, Linder,
Defendant’s own Dr. the case for expert undermined diminished in that a “chronic capacity acknowledged several He respects. abuser” such as poly-drug defendant tolerance greater greater develops PCP, those at issue the most substance drugs—particularly powerful here—so that doses effect. will not have a high necessarily fully intoxicating
Dr. Linder further admitted that does not ingestion drugs necessarily Moreover, prevent formation of in re- criminal intent. a letter specific vealed cross-examination, own he set forth defendant’s description his PCP, under the symptoms influence of which included particularly slurred and bad speech coordination. All who saw defendant dur- witnesses car, this ing that, period agreed when Hix’s he leaving party except did that, exhibit those Dr. admitted symptoms. Finally, spite Linder intoxication, his alleged to steal L.’s Randy “intended” car and also “intended” to rob buy Neil Wanner order to gasoline.
The prosecution introduced that substantial evidence defendant’s actions rational, both during December 1979 incidents were and coor- purposeful, dinated within the context of the crimes he Under committing. was these circumstances, we cannot that trial conclude the consolidated prejudiced defendant’s assertions of diminished capacity.
Defendant under suggests that was the facts joinder prejudicial case, instructions in this since it have led to convict de may jurors some fendant of the first murder degree of Wanner based on evidence that felony so, defendant robbed Randy L. and Corrine S. This is he because urges, neither the instructions nor the verdict de forms indicated that expressly fendant must have been in the engaged Wanner in to be robbery order of of the guilty first degree murder felony Wanner. of consolidation, it
To the extent this is an cannot argument against allowing it relies on facts which could not have been contemplated since prevail, that To defendant complaining when issue was decided. the extent is simply verdict, context, his In of an contention is meritless. ambiguous equally misled, there is no chance the and murder verdict substantial its is jury a were told that continues fatally ambiguous. jurors robbery during “hot from the crime scene is “hot or but when flight” pursuit” completed robber eluded his and reached a of pursuers place temporary safety has There was no evidence goods. stolen unchallenged possession from “hotly in “hot or was flight,” being defendant was pursued,” time at the he accosted Wanner some robbery eight L.-Corrine S. Randy Indeed, Corrine, after defendant abandoning simply nine hours later. drove He and Hix then out on a Hix’s house in Chevrolet. set Randy’s leisurely Hix’s to recover abandoned car. journey on the and murder Wanner a focused of as robbery
The prosecution sep- Wanner incident. The evidence indicated that defendant shot arate within him when Wanner’s resistance moments after defendant robbing prevented crime scene. The determined that leaving from jury expressly and, in that he Wanner its circumstance finding, had robbed had special doubt, if the Beyond while engaged robbery. killed Wanner murder doctrine, on the found defend- felony-murder was based conviction Wanner.12 Wanner while in the robbery killing engaged ant guilty it case is error to urges always join capital Defendant different committed different victims at a time against offenses noncapital must, course, motions examine severance carefully Courts and place. trial, which accrue from a and this may joint partic prejudice potential Nonetheless, any case. neither Williams nor other true in a ularly capital broad rule such a se from the per departure general decision suggests We decline to defendant’s case-by-case analysis. adopt suggestion. its discre truly court never exercised Defendant trial suggests tion, told that “from half three- since it was falsely prosecutor two cases. witnesses were common to the the prosecution quarters” this turned to be an we doubt the exaggeration, While brief comment out Nor is there influence on the court’s decision. major fraction stated was *30 by circumstance” jury “special 12Nor could the have been confused on these facts the instruction, of special that the circumstance of murder in the commission a which indicated (§ 190.2, (a)(17)(i)) by one “immediate robbery subd. could be committed who was in robbery. Nothing after of a in the case defendant was flight” suggested the commission night events flight” previous in “immediate from the of the when he commandeered Neil cir may reject “special Wanner’s therefore also defendant’s truck. We contention that the compromised by identity finding ambiguity robbery cumstance” over the of the victim on which the relied.
177 declared, written both in his evidence of faith. The correctly bad prosecutor at law enforcement and the severance the same opposition hearing, chosen He have simply were in both personnel engaged investigations. may two through after the fact evidence in the cases present investigative trial; minor of the as we separate officers. were a element They relatively seen, indeed have several of the witnesses were common. most important Defendant abused discre- has failed to demonstrate that the trial court its actual, tion or that from trial he suffered substantial a arising joint prejudice the the against him. We conclude that decision consolidate charges trial, severance, and to deny was not improper.
2. Venue.
Defendant of that he was denial his motion argues prejudiced of venue. change We disagree. are A of principles change well-established. venue must be when the granted defendant shows a likelihood that a reasonable fair trial cannot be had the (1981) v. Harris original county. (People 28 Cal.3d cert, 935, den., 679, 948 623 454 Cal.Rptr. P.2d U.S. 882 [171 [70 L.Ed.2d 102 365].) S.Ct. When the denial of reviewing a motion for venue, change of the court an makes de appellate independent termination five crime, nature of factors: the and the controlling gravity extent the and nature of the the size and nature of the publicity, community, victim, the status of the (Martinez and status of the accused. v. Superior Court 502].) Cal.3d On review, postconviction we must also the voir dire of examine prospective and actual to determine jurors whether did in have fact a pretrial publicity (Harris, effect. prejudicial 949.) supra, p. offenses,
Defendant was with the most charged capital serious murder, and that fact (Wil in favor of a change venue. weighs strongly liams v. Superior Court 799].) Nonetheless,
P.2d has failed to demonstrate rea sonable likelihood that he a fair Kern County. could obtain trial in Californian,
The Bakersfield the three county’s principal newspaper, stations, Bakersfield television and several local radio stations reported S.; Wanner; crimes against Randy L. and Corrine killing progress arrest, police investigation; defendant’s crimes while escape, fugi- tive, rearrest; and milestones in his significant legal case (e.g., mistrial). hearing preliminary occurred Coverage only when new event the case arose. The most recent article at the time of newspaper
178 earlier; a week it re- simply was dated the December venue hearing would be heard. that the venue motion ported case was “more that the acknowledged The Californian’s crime reporter homicides that County’s year Kern among than newsworthy average” and was from “a fairly prominent part because the victim was kidnapped town,” of which and sex crimes and because of the earlier kidnapping were uniformly straightforward defendant was also accused. But the reports Williams, and extensive” (compare and factual. were not “continuous They or 590-592) nor exceptionally long prominent, Cal.3d at supra, pp. elements of the or hostility-provoking did not dwell on sensational they any attention due such serious offenses While matter received the case. the citizens, “no different in or degree intensity the was local against publicity (Odle here.” of the kind involved than of other the usual reporting [crimes] Court Superior Indeed, claim that the publicity makes no 225].)13 general pretrial unfair, unusual, inflammatory. was of a accounts second by newspaper he
Defendant claims was prejudiced in the articles as the inmate with who was identified Reynolds, escape by coinci- 1980. County jail August By had fled the Kern whom defendant 24, 1980, the dence, on December first occurred second Reynolds’ escape before and less than one month de- of Wanner homicide anniversary have been may confusing, While perhaps fendant’s trial. these reports it had no jurors suggests the voir dire prospective evidence surrounding discussion, (See post.) actual effect. prejudicial material to the for a necessity is also community The size of the relevant it likely the more is that venue The the local population, change. larger in the not become imbedded con- public about the case have preconceptions 581.) Kern (Martinez, County, Cal.3d at p. sciousness. supra, 405,600, California’s 58 ranked 14th counties among 1981 population Cal., B-3, Abstract table (State Cal. Statistical respect. or ordered on 15.) Cases in which venue were review changes granted p. the authorities’ belief that the early investigation killing written in the stressed 13Stories gun during robbery. struggled victim for the Before accidentally had occurred when the arrested, and at least one radio station defendant was two television stations announced that $1,000 offering reward for county’s Program leading information Secret Witness day after defendant’s arrest slayer. of the On March was an to conviction nounced, which story in run a “human interest” homicide the Californian did victim’s of “it family’s responses, bring effect won’t family The to the him was interviewed. back” it,” longest guy predictable. who did were article glad they got and “I’m in the largely adequacy it jailbreak, jail focused security Californian concerned combination, were not these media references at all Singly and in out procedures. charged. crimes ordinary for the nature of the
179
have
Wil-
usually involved counties with
(E.g.,
much smaller populations.
liams,
117,000
34
supra,
Cal.3d
County,
at
592
p.
population];
[Placer
Martinez,
106,500
[same,
supra,
Two prospective jurors expressed bias “Mexicans” and another against two said they could be All were objective involving case drugs. indicates, So excused. far as record other defendant had no associations Frazier, which might community arouse hostility supra, (compare murder]), and he to have been p. [“hippie”-related relatively appears (Cf., 470, 488 v. Jurado anonymous. People Cal.App.3d 509].) citizens, two, All the victims were and the jail guards, law-abiding However, worked for law enforcement. none was prominent especially Wanner, mechanic, L. worked Neil community. Randy as victim, homicide was a clerk. The offenses these grocery persons against friends, were of vital concern to their but in their status nothing families calculated engender unusual emotion in the community. The most reason for compelling venue contention rejecting defendant’s that, fact, the evidence he was not denied a fair Defendant cites jury. that a substantial had county’s surveys showing percentage population However, with modern communica some awareness of the case. *33 tions, to serve as will not have of those best “scarcely any qualified jurors Thus, formed some or as to the merits of the case.” opinion impression is not . . . that the be of the facts and required jurors totally ignorant “[i]t involved. ... It sufficient if the can aside his juror lay impression issues in or and render a verdict based on the evidence court.” presented opinion 751, 756, 81 (Irvin v. Dowd 366 U.S. 722-723 L.Ed.2d Harris, 949-950.) at S.Ct. in quoted supra, pp. venire of the were examined to obtain the 12 Some 59 members whatever and 3 alternates. Of these to know nothing jurors professed recall; case; 11 described and another only vaguest expressed Five others revealed more tangible some based on media familiarity reports. tried, to the be and all but one of this latter group connections events to members called were were excused for cause.14 The nine remaining panel never about since were excused such they questioned pretrial publicity, as medical and financial grounds hardship. Another
Of the actual six indicated of the case. jurors, ignorance pretrial had read or recalled four or heard but none had followed the case reports, details. Juror Omelez disclosed he a friend who was a friend of many had Neil Wanner’s Juror revealed that the murdered man “or daughter. Essary niece; his father” lived next niece had door her and the discussed Essary that no fact but other details. dire,
All the voir seated stated on unrestricted jurors unequivocally, could set aside they formed outside the courtroom and any impressions consider the evidence without Defense counsel none prejudice. challenged cause, of the final or alternates for and he had used jurors only his (§ 1070) when he These 26peremptory challenges jury. facts accepted fair, indicators that the were and that the defense itself jurors are so strong Harris, Jurado, 950; (See 28 Cal.3d at supra, supra, concluded. p. sum, 491.) In no has demonstrated p. Cal.App.3d reasonable it of his trial in Kern rendered unfair. County that retention likelihood when the court erred at the venue it re hearing claims Defendant death attitudes on the De community penalty. surveys to consider fused show that a cannot representative would surveys these urges fendant juror might him that the other have juror had told a fellow said juror Watts 14Prospective challenge by Prospective defense. peremptory on a excused was Watts the victim. known he had revealing after confused bias anti-defense general excused Parker juror Mino, Brewer, Moore, and were jurors, prospective Three with another. escape defendant’s victim. they known the had they said when for cause excused be in obtained capital case Kern because of the number County large of persons excludable for absolute or anti-death views. pro- penalty noted,
As the trial court the statistics offered were on the meaningless issue, attitudes, venue since afforded they no with statewide comparisons Thus, with those counties. basis for conclud adjoining they no provided that the situation in Kern ing County was abnormal or that a more repre sentative could be panel convened another location. evidence was excluded.15 proffered properly
3. Double jeopardy. 13, 1980,
On August was and a sworn to jury empaneled witness L., the charges S., try Corrine involving Randy and Neil Wanner. On Au 14, Juror Rolnick gust that an for reported the district investigator attorney’s office had telephoned Rolnick’s wife to about his views on the inquire death After penalty. hearing testimony from the investigator, Judge Ferguson de a mistrial. clared
In his brief that, on opening appeal, defendant under the circum- urged stances, further trial of these charges was barred by double jeopardy argument clause. His was based on the that mistrial was premise actually declared, 15, and the on jury discharged, by another on the August judge, motion, court’s own and without the consent or defendant and presence his counsel.
The record refutes the contention. The reporter’s transcript August 14 counsel, reveals that defense with defendant moved for a present, mistrial before who Judge Ferguson, granted the motion that day. on The next day, Jelletich, 15, August Judge presiding another department, convened the absence, in Judge Ferguson’s advised the jury jurors Judge Ferguson’s order, and discharged jury. court’s minute orders show the same mistrial, of events. Defendant clearly consented to a sequence even if he his counsel were not when present Jelletich Judge performed min- Hence, of dismissing isterial function the jury. defendant waived any double (1973) claim. v. Hathcock (People 8 Cal.3d 613-614 jeopardy [105 peripherally hearing introduced at the venue suggesting 15Evidence that blacks and underrepresented comparison Hispanics percentages were list to their of the County. A majority recently of Kern court population this held that a showing total such prima “unrepresentativeness” make a facie case of jury panel of the is sufficient on a (People the venire. v. Harris quash 51-55 Cal.Rptr. motion [201 cert, den., 433], 365].) U.S. 965 L.Ed.2d 105 S.Ct. Defendant here, confining Moreover, motion his no efforts to the made such venue issue. extremely it is quoted, survey defendant, statistics derived from a that doubtful commissioned were satisfy enough to the Harris test. reliable 540, 504 v. Green People P.2d overruled on other grounds, 468].) P.2d Jury
IV. Selection Issues 1. Restriction dire. counsel’s voir of defense his restricted
Defendant the trial court argues improperly notes, the court pre counsel’s voir dire of the As defendant jury panel. ability about their jurors vented counsel from questioning prospective cir doctrines of legal instructions counsel wished to describe on the apply diminished there was no We conclude cumstantial evidence capacity. error or on the prejudice facts. particular bias,” be
A
excused for cause if he or she reveals “actual
juror may
is,
case,
“a
state mind ...
reference to the
or to either
parties,
*35
without
which will
him from
with entire
prevent
acting
impartiality
.” (§ 1073.)
to the
of
. .
substantial
either
prejudice
rights
party,
counsel may
instructing,
While
not use voir dire for the
of
educat
purpose
reasonable oral
may
he
conduct a
ing, cajoling,
prejudicing
jury,
a
to determine the
for cause.
inquiry
prospective jurors
challenge
basis
369,
1078;
815,
v.
(§
(1973)
Crowe
8
824
People
Cal.3d
Cal.Rptr.
[106
752,
58].)
193];
P.2d
v.
P.
(1912)
506
Edwards
163 Cal.
753
People
[127
trial,
At the time of
from asking
defendant’s
counsel
precluded
(Edwards,
to a
su
questions pertinent only
peremptory challenge.
possible
rule,
on
Under this
it was
clear
could be examined
pra.)
not
whether jurors
the “actual
their attitudes about
doctrines
law order to uncover
specific
to
such
bias”
a
for
Some cases
that
necessary
suggested
cause.
challenge
reveal actual bias. (E.g.,
sometimes be
to
specific inquiries might
necessary
665,
705],
843,
v.
350
(1960)
Love
53
P.2d
People
Cal.2d
852 Cal.Rptr.
[3
1,
383,
457],
fn.
394
P.2d
People
(1958)
v. Wein
50 Cal.2d
citing
[326
cert, den.,
99,
98], overruled on another
gated could questioning only pertain challenges cause. Williams on juror concluded that reasonable examination of attitudes relevant doctrines of law should be since it reveal a subtle might permitted, or unconscious bias for exercise of a calling peremptory challenge. 402-412.) (Pp. filed,
Williams it was only trials conducted after applies except for the trial of 15.) fn. (P. that case. How ever, this court has never Wil ruled left unresolved question liams—whether reasonable into must be legal inquiry specific prejudices as the basis We now conclude that permitted challenge cause. for reasonable of this kind under the questions prior should have been permitted rule. Persons who harbor trial “ac legal display prejudices pertinent bias,” since tual are unable to they act with the “entire re impartiality” jurors. quired
Though Williams is not directly on its logically extends point, reasoning the issue presented here.16 Williams noted at modem increasing length awareness that general about questions prospective juror’s willingness to *36 “follow law” are not well forms of calculated to reveal specific preju- dice bias. In the first about whether place, a general questions juror follow will instructions only have one One answer—“yes.” who “right” wishes to seem fair-minded of unlikely is to company peers give a negative response.
More a fundamentally, member to such panel may reply questions in faith, entire good no of having doctrines and knowledge specific prin- he or she will be ciples asked to “His answer be to may tme apply. that
extent he is to willing act as the him. generally instructs But judge it is to untenable conclude that the veniremen’s declaration general willing- to ness is obey judge tantamount to an oath that he would not [sic] instruction, to hesitate conceivable no apply any matter how repugnant to dissenting 16In opinion, his Justice Lucas “majority, criticizes the in cases such as [Wil- case,” and the for liams] present allegedly “ignoring]” the teachings of Justice Tobriner People Crowe v. 193]. Williams, holding We observe that basic which beyond extended voir dire questions cause, was involving challenge for unanimous. The Chief disagreed only Justice as to the standard, disagreed and Justice scope only the new Richardson prejudice. as to Justice course, Tobriner, among concurring. was those a that promise
him. Hence the answer is merely predictable [Fn. omitted.] held bias against par- overtly some substantial cannot to reveal be expected (Williams, at italics supra, ticular ...” 29 Cal.3d p. doctrines. added.) of the
The Edwards rule was intended to prevent abuses time-consuming to overt bias. relevant truly voir dire not to examination preclude process, follow law and if to willingness Even a has his juror proclaimed general instructions, cal reasonable questioning rule should not further prohibit a par unwillingness admission actual apply elicit a juror’s culated to Any of law to the trial. ticular rule pertinent impending a basis for challenge overt of that kind and would form the degree resistance on for cause “actual bias.”17 grounds hand, the power preclude
On the other courts have had always or which will which are instructional or questions merely argumentative, will they reveal consume undue time without likelihood a substantial standard: Williams a an grounds appropriate challenge. Again, provides to the trial material need be allowed on a doctrine both questioning only (29 410.) and controversial. Cal.3d at p.
Here, barred wrongly questions defendant claims that the court evidence on circumstantial jurors’ about willingness instructions apply evidence” ques and diminished on “circumstantial Any limitation capacity. would discretion, think, juror average tions not an an abuse of since we hand, it the other probably not On with the court’s instructions. disagree on disfavor well known looks substantial segment public court was aware that controversial doctrine of capacity. diminished trial; role in the major diminished capacity were principles likely to play indeed, the guilt phase. diminished offered capacity was the defense sole voir dire holding, answers depart juror’s 17Inso we do not general from the rule that (E.g., People 312-313 Preston true. presumed are *37 443, People 300]; 473 Magee (1963) 508 v. Cal.App.2d [31 P.2d 217 only that 688].) This rule means den. U.S. cert. 376 925 L.Ed.2d [11 84 S.Ct. questions given to speculate answers may courts not after the on the veracity fact of Indeed, claim that actually juror’s a asked. It the scope questioning. does limit may juror since the goes, it generally may he or she can follow law as be “true” as far through careful with it specific of a bearing not be aware bias on the case until confronted event, ante.) (See discussion, of troth presumption dire examination. text any voir In bias always by number concealed jurors’ be rebutted can other their affidavits that one by on People v. Castaldia giving (E.g., false answers voir dire. 104].) be to use the permitted P.2d logical It therefore should seems that counsel course, bias, Of if a questioning process itself to uncover actual or unconscious. conscious juror clearly response partic he could a apply stated to or appropriate questions that she bias, purposes challenge ular doctrine without for answer should be taken true as may always “badger” cause. prevent juror for Courts into repetitive questions designed a false admission of bias. At the time of the court’s one had volun- ruling, already prospective juror teered he that could not or “go with notion that alcohol along” drug Thus, use absolves someone of for acts. the court responsibility criminal would have erred had it at- restricted counsel from unduly probing jurors’ toward titudes that doctrine.
However, the record that voir unreasonably dire was not con- suggests aired, fined. The diminished issue was well capacity any deficiency examination arose from the defense’s own lack of primarily diligence.
Voir dire as proceeded follows: the court first general addressed questions to the entire venire panel; included were on general ability and questions to follow willingness the law. The names members were then panel lot, drawn by and they were seated in the box. After further jury preliminary from questions the court to elicit for excuse or designed grounds hardship bias, obvious each of the 12 was in chambers individually questioned of death purposes qualification. (People Hovey (1980) 28 Cal.3d 80- 1301].) survived Any juror who challenge box, returned to the stage where he was further examined by both counsel the presence of other members. Counsel admonished panel the other jurors if present their answers would be different respond than those of the juror actually being Whenever questioned. any juror was ex cused, lot, seated, another’s name was drawn he was process continued in that fashion until both counsel had accepted jury. dire, in the voir
Early told the prosecutor jurors would panel have it”; decide more crimes, than “who done all elements of the including state, mental be must proved reasonable doubt. beyond Several times the first two during days, he mentioned without objection from defense that the counsel evidence include might defendant’s consumption drugs He alcohol. further that the explained case involve the might effects of such substances on defendant’s mental state and that both sides might intro- evidence, duce including expert psychological testimony, this issue. The prosecutor asked if of these any things jurors might prejudice against de- fendant, if could evaluate they expert psychological fairly, if testimony they mentioned, had of law” “any difficulty” “any body and if they be- lieved are automatically absolved persons responsibility for acts they commit while under the influence of or alcohol. drugs noted,
As Smith volunteered juror such prospective during questioning *38 not with the “go that he could notion that along” intoxication diminishes The was juror criminal dismissed on responsibility. a peremptory challenge defense, but defense counsel did little the else by during this to period attitudes on the diminished juror capacity doctrine. pursue dire, of voir cocounsel January day On the third and final Birchfield, dire, in voir examined who had not taken defense previously part to the Ms. first He began question juror, the time. prospective juror circum- as has talked about Essary, Leddy follows: “Mr. prosecutor] [the trial, Court, you will give stantial evidence latter stage and at the evidence what is circumstantial instruction not specific dealing only and the instructions but how are to view this evidence one you, as a juror, counsel off in (Italics added.) with the The court cut deals possibility—.” midsentence, instruc- it not counsel to talk about specific did wish saying could on court advised that counsel ask tions circumstantial evidence. The on circumstantial evidence juror whether would follow instructions not, her whether she what telling or but could not “get specific agreed the law is that regard.” bench,
After a court and counsel brief off-the-record discussion at on retired to There if the court’s ruling chambers. counsel asked avoiding discussions of “the law in to the diminished particular” capacity applied to instruct doctrine as well. it covered all The court that replied attempts noted that to the “and that’s a matter of The court it argue jury, degree.” both leeway” discussing had counsel “considerable “diminished given mind, intoxication, when you . . but it’s state of . capacity, drugs, [and] I’m say, and what getting they going start into the instructions specific (Italics added.) cut off.” you “to of law was have necessary
Counsel that some discussion an argued a serious case.” court voir dire on such re- intelligent complete if, ., can . . you “I diminished capacity, don’t care on certainly sponded, it, law, I deem I don’t think you as ... haven’t been you instructing am talking know what I to—you have to read an fellows about. instruction on a . . I to instruct the jury particular . know when are you attempting [f] them. it and across to You repeat repeat point trying get point . . it. I don’t that and I think that is the situation here. . want to do you [f] know, I You we start. All think right. I’m it before stop just going record is clear. ...”
Thus, the but it clearly court the line at questions, drew instructional did preclude general attitudes on probe juror principle culpa- be or intoxication—the bility might affected mental state controversial Indeed, noted, essence of the court diminished doctrine. as the capacity had been able to ask on the issue prosecutor pertinent questions without to instruction. resorting 11 of the
At the time the court’s members only panel ruling, re- accepted by to be before a 12-member mained both questioned *39 sides. One of the Ms. “no” remaining jurors, open Hosking, replied court when asked if she at her own could be fair. Examined in chambers request, juror she “understood that were related to this explained drugs case, I and have an to hear about unswerving disability anything good declared, drugs.” “[M]y she “is that the use does not feeling,” drugs eliminate your excused for cause responsibility any way.” She was stipulation. other had been jurors, who remaining present throughout sessions, the open-court voir dire on examination that individual responded they could be fair and would not differently any questions answer to other posed jurors. Defense counsel made no further effort explore intoxication, state, attitudes about or mental the effects these drugs, on things criminal mem- remaining Five the eleven responsibility. panel bers ended on the up final jury. sum,
In it well aware that defense appears were prospective jurors state, intoxication, based on mental and use was at issue. All members drug declared, of the final jury they both would group individually, as not let these facts affect for permission their deliberations. Counsel sought more detailed late in the voir dire He failed all questioning only process. times to take full of the considerable latitude he was allowed in advantage Hence, cause, exploring juror bias. for purposes possible challenges the jurors’ general declarations of fairness must be true. presumed
Moreover, two excused of their prospective were because attitudes jurors issue, on the diminished no challenges counsel made further capacity ground. this He half after his available accepted using only circumstances, peremptory we challenges. say Under these cannot that the court’s restriction on voir dire prejudicial. questioning improper
2. court’s voir or innocence juror dire on attitudes toward guilt Effect of and penalty.
During the voir dire for death sequestered process qualification (see Hovey, supra, 80-81; Cal.3d at see also v. Illinois Witherspoon pp. (1968) 391 U.S. 776, 784-785, 1770]), 521-523 L.Ed.2d 88 S.Ct. member, court asked each individual out of the other panel presence prospective jurors, five which be as questions, may follows: paraphrased (1) Would you refuse automatically the death impose regardless penalty of the evidence or the law in the case? If defendant were found guilty of first degree murder with circumstances at the special would guilt phase, you automatically vote to the death without impose to the penalty regard evidence or the law? Would death your penalty views from prevent you an making impartial decision as defendant’s guilt? (4) Are views your such you would never vote to the death impose penalty? (5) Are your
188 in the death you penalty views such that would refuse to consider imposing this case? figure the by that the questions, posed
Defendant contends form of these and unduly jurors jurors guilt- to whom most look for made the guidance, re- (4) unnecessarily In defendant particular, urges, question death-prone. on the (1), attention juror’s and both concentrated question peated be might in death penalty that this was a case which the judge’s opinion Moreover, (5), warning by appropriate. suggests, question case,” further absolute to death “in this juror against penalty opposition that “this in believed the implied penalty case” was one which the court death be might warranted. but artfully,
We that the been drafted more agree questions could have never we see no counsel error. We note at the outset that defense prejudicial substance. to or in objected any court’s either in form questions, that, isolate we to think the were Beyond attempts reasonable questions or against excludable for cause because their absolute bias jurors pp. death 28 Cal.3d (Witherspoon, Hovey, see penalty. supra; supra, 20-21, 4; and fn. (1961) Cal.Rptr, v. Cal.2d 94-95 People Hughes [17 33].) 367 P.2d scruples at anti-death penalty aimed questions be intended seemed that a could satisfy Witherspoon's juror mandate excluded for made it “unmistak views the death unless he against penalty ably regard clear” that those vote death against views would force him to evidence, less of the issue law or him from judging or would prevent 522-523, L.Ed.2d fn. 21 guilt (391 innocence U.S. at fairly. pp. [20 785].) at p. In strictly.
Our decisions under
that limitation
Witherspoon interpreted
v.
456 P.2d
People
(1970)
Williams
Cal.Rptr.
[79
disfa
we concluded
“we
suspicion
must
with considerable
regard
was subse
vor
exclusion of a
the voir dire examination
any
juror—where
not based on
phrased
Witherspoon
question
decision—which
quent
(P. 634.) In People
in the terms
so
Witherspoon
unmistakably suggests.”
(Lan
We must view its efforts in that context.18
Here, (1) an question obvious reference to Witherspoon's ruling that states may exclude who “that would au jurors unequivocally say they vote the of tomatically against regard without imposition punishment capital them, any to evidence that the before might be at the trial of case developed (391 . 785], . U.S. in fn. L.Ed.2d at italics at p. original.) p. [20 words, Question (4) to the same issue and it does appears phrase in different However, not derive from a directly Witherspoon the court quotation. may (1) have felt that offered for question misunder enough opportunity juror even standing that an answer to that alone would be unequivocal question ambiguous.
Question (5) seems in addressed to the which passage Witherspoon pro- vides that cannot be in of prospective juror expected say advance “[a] trial whether he would in fact vote for the in case extreme the before penalty The most that him. can be of a in demanded venireman this is that regard law, he be consider all of the willing state and that penalties by provided committed, he be irrevocably before the trial has to vote begun, against of regardless the death the and penalty might circumstances of facts in the course the emerge proceeding. (Ibid., ...” first in italics original.) of of doctrine, In the historic difficulties in light the we applying Witherspoon the say cannot that mere predominance of pro-death anti-death over penalty rendered questions the voir an penalty court’s dire abuse of discretion. on can
Nor
this record
we determine that
error was
De
any
prejudicial.
fendant
extensive
argues
on
issue
questioning
the death
the
penalty
by
most respected
court’s
figure desensitizes the
to their
re
jurors
sentencing
them,
of
even in advance
the
sponsibility
subconsciously persuades
guilt
trial, that the case is a
one
proper
for consideration of the extreme punish
found,
Hovey,
In
we
supra,
ment.
on the
by
basis
extensive studies cited
there, that
the
such
petitioner
may
effects
arise from
death
process
decision,
trial,
18Witherspoon was the law at the
but
time
defendant’s 1981
in a recent
Supreme
States
drastically
opinion,
the United
Court
new
Witherspoon.
has
limited
Wainwright
Witt
We that the acknowledged sequestered We of that process. cedure not eliminate all the “untoward effects” might *42 re sometimes Witherspoon questioning also conceded that extensive bias-in have similar to eliminate ambiguous might quired juror responses However, effects, said we li[i]t ducing even in a sequestered setting. same unknown at this entail the dire would whether such voir point personal {Id., of for voir dire.” dangers bias do inducing as the current procedures 81, evidence, know and we added.) at italics cited no p. Here defendant has none, bias of which that a court induces suggests pro-guilt pro-death unwillingness a about his simply by asking more sequestered juror questions do so. the death than intention to impose about his penalty preconceived that the jurors penalty trial court advised consistently sequestered degree would be if found of first guilty reached defendant was phase only It made the first of the trial. also murder circumstances at special phase decision, if would be in necessary, jury’s clear that the one was penalty in that context. Counsel The court’s were framed questions hands. voir dire further on his death penalty full given juror was each opportunity question views, pro-death penalty views. One was excused for juror stipulation by All members or excluded on Witherspoon grounds. but none was challenged and, law on guilt penalty, the final could follow the jury of insisted they noted, half his only peremptory using as after accepted jury that the probability see no substantial We challenges. the jury’s impartiality.19 form of court’s questions prejudiced mandamus; voir dire sequestered of 19Hovey pretrial petition principle a arose on for grounds, not on constitutional powers, justified by supervisory we there announced our was when 80.) decided (28 have never We thus prospective only. p. it made Cal.3d at and was impression, first as matter of raised a procedure, a death bias-inducing qualification claims of course, juror a exclusion erroneous appeal. a on Of support would reversal of conviction of se, reason to appears no per but there Witherspoon reversal grounds was for in violation no contention is Where harsh standard. to the of voir dire judge objections form excluded, all facts and circumstances we will evaluate juror improperly made that unfair questions had an voir dire claim that reviewing posttrial prejudice when probable Harris, pretrial (Cf., p. at 949 supra, [effect 28 Cal.3d jurors. unexcluded on effect bias].) juror publicity
191 3. Exclusion as unable to death de- persons impose penalty from nial representative jury guilt phase.
Defendant
who
claims that the exclusion of
state they
persons
510,
cannot vote for the
521-
death
391 U.S.
penalty (Witherspoon, supra,
522,
776,
fn. 21
785])
L.Ed.2d
denies a
accused
capital
guilt jury
[20
which is
to make
representative
community.
He lacks standing
claim,
since no
his
on Wither-
juror in
case was excluded
prospective
425,
spoon
(See
(1980)
grounds.
v.
26 Cal.3d
433
People
Velasquez
[162
306,
remanded,
341],
606
Cal.Rptr.
P.2d
vacated and
L.Ed.2d 267].)20 S.Ct.
V. Guilt Special and Circumstance Issues 1. Restriction on cross-examination witness. prosecution that, instances, Defendant urges two he was restricted in improperly Hix, his cross-examination of witness. We Joseph major find prosecution no merit in either claim.
Defendant first urges the trial court erred in an sustaining objection to counsel’s question whether Hix and defendant had taken narcotics at defendant’s house on which, other than on days December 24—the date Hix, to according defendant made his admissions. Defendant incriminating urges evidence of habitual narcotics use would have Hix’s impeached recall general abilities. perceptive
Evidence of habitual or to narcotics alcohol use not admissible impeach perception memory unless there is on the effect expert testimony probable such use those (1966) faculties. v. 241 (People Pargo Cal.App.2d 594, 600 719]; 2 Cal.Rptr. (1969) see v. People Cal.App.3d [50 Ramirez 345, 350 Cal.Rptr. on other grounds, People [82 v. disapproved 20We note that the United Supreme recently granted States Court certiorari to review the cert, only contrary 226, (8th federal (Grigsby Mabry 1985) decision. v. Cir. F.2d 758 — — granted (Oct. 7, sub nom. 1985) 48, Lockhart v. McCree U.S. L.Ed.2d 106 S.Ct. [88 59].)
192 833]; People (1973)
Schueren
At another counsel asked point were in The witness custody replied, a few not?” ago, you months were motion, the jury “Yes.” On the was stricken prosecution’s the answer error, and answer admonished. Defendant this was since the argues question testimony were relevant to for false in return promises leniency possible at defendant’s trial. context,
In shows contention The record cannot be sustained. “custody” ques- court overruled the initially objection prosecution’s tion and answer. The then occurred: following interchange “Mr. Lorenz investigator] Q. Did you talk Mr. White prosecution [defense counsel]: [a IA. about kind of a deal? shortening sentence or some your getting [f] didn’t A. Nobody. talk Mr. White [1] Mr. Nobody. Lorenz: all. [t] Q. Who All right. did you That’s all talk to about I have. ” (Italics that? [f] added.) chambers, moved
Court and counsel then retired to where prosecutor *44 to counsel stated only strike the answer. Defense “custody” question he “understood” Hix on a drunk that had been in misdemeanor custody conviction, the charges had several other misdemeanor driving pending time, and was about reduction or elimination the authorities approached by could return for his Counsel said he pending charges testimony. not confirm his he no because had access to “understanding” police custodial records. The that it saw no relevance in the “custo- court replied issue unless dy” defendant could show Hix received some consideration on However, that sentence. left the matter on open it further discovery Hix’s whether have been related custody might to a deal with the authorities. never The issue arose again.21
Prior convictions are a felony sometimes admissible to impeach Code, (Evid. 788), but credibility witness’ on misdemeanor “custody” § suggests impression the trial court under the mistaken the fact 21Defendant admission, by witness’ but must be custody proved not established official could be ruling. this was not basis of the makes clear that court’s The record documents.
193 course, (id., 787). accused has a charges generally Of an § Promises, confrontational to lie. right a witness’ bias or motive expose authorities, or however unreason expectations, from the hopes leniency able, (1974) U.S. may (Davis such a Alaska supply motive. v. 347, 353-354,
315-318 1105]; (1978) L.Ed.2d v. Allen People 94 S.Ct. [39 6]; v. Brown Cal.App.3d 931-932 Cal.Rptr. People [144 876, on other Cal.App.3d grounds, Cal.Rptr. disapproved v. Chi Ko 557 P.2d People (1976) Cal.3d Wong 698 [135 976]; see People Lent 484-485 545].) therefore The fact of Hix’s “custody” might deal, be relevant if the if the formed the basis for or custody fact of itself made custody charges. Hix more to a on the other vulnerable deal pending The court was if it must probably believed that counsel make wrong prima case the issue by witness’ motivation before exploring facie direct examination of the witness. normal remedies against repetitive were “badgering” questions available.
Here, however, at a time when the was still on the “custody” admission record, counsel himself cut off into the abruptly inquiry possibility deal, restricted, related comment, which had not been with the inquiry chambers, all I Thereafter, have.” the court struck only “[t]hat’s “custody” reference, discussion of a deal intact. The leaving remaining court stressed that it would not deal possible restrict directed at a questions and would be willing rule on the issue if more infor- again “custody” mation turned up. Counsel never matter further. Under pursued circumstances, defendant’s claim restrict- unduly “custody” ruling ed his into a inquiry deal is unpersuasive.
2. Prosecutorial misconduct.
The jury was instructed that an must be testimony accomplice’s corroborated caution, and viewed with Hix was an and defendant claims as Hence, a matter accomplice of law. committed urges, he the prosecutor *45 misconduct by to the arguing Hix was not an accomplice.
The evidence suggests Hix leave December lent defendant his car to the 23-24 drove party, defendant knew to the scene of the Wanner kidnapping, Wanner, of defendant’s intent to rob later of Wan dispose defendant helped effects, car, ner’s personal have L.’s and was may Randy helped strip grant ed immunity for his in But assistance testimony. Hix’s him, most, of evidence of an disposing the various makes acces crimes fact; after the a sory mere is not an v. Hoo accessory (People accomplice. 194 875, 672, 760].)22
ver 528 P.2d 879 [117 a An and he as may chargeable aider abettor be an since is accomplice affirmed not of (Hoover, but that one is supra), recently guilty we principal the and a crime unless he or assists aiding abetting encourages, promotes, It and shares the is not enough criminal perpetrator perpetrator’s purpose. with knowl that the as an and abettor assistance give aider person charged of criminal v. Beeman edge perpetrator’s purpose. (People 1318].) 556-561 Here, his car with there was no that Hix lent defendant evidence or intent that it in the commission knowledge would assist defendant crimes. Hix to for the crim Though and defendant later drove the hospital cars, inal disas purpose money immediately from Hix stealing parked Wanner, he want sociated himself from rob saying defendant’s new to plan ed no of a behind. part robbery. He then drove defendant away, leaving Such acts are insufficient to Hix and accomplice, under Beeman make an we see no in the impropriety prosecutor’s argument.
3. Evidence and hair give samples. to blood pubic defendant’s refusal 1, 1980, On August days five months after defendant’s arrest and twelve before the first trial was to obtained a court order begin, prosecution for blood and these were hair from defendant. pubic samples Apparently, to be S. On with the collected from Corrine compared materials vaginal trial, County while a Kern August awaiting defendant was custody sheriff After consultation deputy collect the attempted samples. counsel, defendant Thereaf untimely. refused on the demand grounds ter, from {Ante, 181-182.) a mistrial was Defendant escaped declared. pp. custody on 20 and was in October 1980. August recaptured 22, 1981, four the second trial was scheduled January
On before days start, Defendant samples. Bakersfield Police Officer sought Glaser again “accomplice” testimony is defined explained, an whose must be corroborated 22AsHoover charged against the prosecution for identical “one who is liable to as statute offense (§ given.” is testimony accomplice trial in the cause in which the it would added.) charged with offense as the defendant order to be the identical “In italics provisions section principal to be a under necessary for the witness considered be they . whether commission of crime . . persons concerned includes ‘[a] which commission, offense, or not and abet in its constituting the aid the act directly commit only an . One liable as encouraged commission. . its have advised present, being chargeable with an provisions of 32 and separate sections accessory under 879.) (12 p. Cal.3d at offense.” “identical harbors, committed, who, felony has been “after a accessory as one an defines Section knowledge guilty purpose. Section felony” with principal such or aids conceals $5,000 fine, accessories, im- provided, except as otherwise punishment limits the *46 year, or both such fine county jail for one years or in the prison for five state prisonment imprisonment. matter, Counsel, refused. on was in the another sum- coincidentally jail moned for obey consultation. He defendant not to the “un- again advised timely” demand. No were taken. samples trial, the 3, 1981,
On sixth the the morning February day prosecutor to elicit from Glaser the fact of refusal to sought give defendant’s samples, to show Defense apparently consciousness of the sex crimes. coun- guilt objected. sel A followed in Glaser was questioned discussion chambers. on voir dire about the The court that the events 22. January suggested first refusal, January counsel, before tend might made consultation to However, show it guilty the concluded that would issue court knowledge. order,
a new order for if with the new complied defendant all samples; evidence of Counsel prior refusals would be excluded. defendant promised would comply. recess, the
Following noon advised that the police chemist prosecutor saw no use time, for at that the swab taken from Corrine since S. samples Indeed, in December reliable 1979 was too old to comparison. yield conceded, would prosecutor the chemist now that the same advised have 1, 1980, true been under the samples any collected at time August order. The had no prosecutor also stated that hairs previously foreign pubic were on found Corrine S.
Nonetheless, circumstances, under the court ruled the first these that Jan- 22 refusal uary was admissible. was obtained from This evidence Glaser. Glaser his awareness that acknowledged cross-examination defendant “now” willing give samples. excluded,
Defendant that his refusal should have been be urges cause the prosecution acted bad faith. He the authorities delib suggests erately delayed their for until before the demands scheduled just samples trials order to rob defense of to refute any time test iricriminating asserts, results. he “knew all Alternatively, along” prosecution tardy samples were useless and demands to trap made the defendant only into refusals. incriminating
We need not decide whether defendant’s refusal to should give samples irrelevance, excluded, been have or for since we either “bad faith” see no reversible committed Other evidence prejudice. sex crimes Corrine The fact of
charged overwhelming. S. was de against evidence, This very fendant’s refusal to was revealed give samples briefly. best, on cross-examination weakly was balanced incriminating disclosure that defendant later became willing give samples. that, interim, the usefulness of the
never heard in the samples pros *47 196 do not reasonably into We think it question. prob had been called
ecution have the verdict. (People of the evidence would altered that omission able 818, (1957) den. 355 Cal.2d P.2d cert. (1956) 46 v. Watson 55, 70].)23 L.Ed.2d S.Ct. U.S. 846 [2 Voluntary manslaughter instruction.
4. Wanner, of the to the of first murder degree
With charge respect offense voluntary manslaugh on the lesser included of was instructed jury “nonstatutory” The defined ver only instruction ter. Tidwell, offense, su (See, based on e.g., of that diminished capacity. sion 86.)24 3 Cal.3d at p. pra, sua sponte that was also entitled to a instruc
Defendant he urges as a a sudden or manslaughter killing quarrel defining voluntary “upon tion 192, 1.) subd. to the evidence he (§ He shot points heat of passion.” robbery. the victim’s attack The con by during when Wanner provoked merit. lacks tention murder, on all and theories was instructed jury degrees including
The felony-murder both on and on the murder based premeditation first degree murder, and murder not First all other degree premeditated pred- doctrine. the element of felony, requires commission an “mal- underlying on icated 187.) heat of (§ passion” A a sudden or killing “upon quarrel is ice.” than murder in the sense that manslaughter rather it is an voluntary deemed (§ 192.) intentional homicide “without malice.” unlawful or “heat to reduce a murder necessary passion” based provocation must as would malice be such arouse manslaughter feelings on pain “an or reasonable “an man ordinarily person” ordinary or of av rage (People Berry disposition.” erage 777].) 556 P.2d The “heat of passion” instruction is not if no cognizable
warranted
there is
evidence
This
theory.
court has
jury
23The
is true of defendant’s claim that the
should
been admonished
same
have
to limit
Randy
L.
against
of the refusal to
crimes
and Corrine S. It seems highly
its consideration
jury
give samples,
unlikely
readily
pertinent
used defendant’s refusal to
understood as
Indeed,
crimes, as
that he later
Wanner.
might
evidence
killed
an admonishment
to sex
have
disadvantage
focusing
jury’s
very
to defendant’s
attention on a
worked
minor bit of
testimony.
requires
accused of a murder which
the mental states of
24Where
intent to
malice,
due
capacity
unconsciousness
to voluntary
diminished
intoxication may
kill and
malice,
murder
preventing
voluntary
element of
conviction. But
negate
intoxication
The defendant
guilty
such an intentional homicide.
stands
“nonstatutory”
excuse
cannot
be instructed on
manslaughter,
manslaughter
must
voluntary
alternative
People
v. Graham
(See
315-317,
also
warrants.
the evidence
where
153].)
4 [78
fns.
*48
concluded,
discussion,
under similar circumstances and without extended
that
of
cannot “con
“predictable
felony
conduct
a
victim”
a
resisting
stitute the kind
to vol
of
a murder
provocation
charge
sufficient
reduce
untary
(1980) 28
manslaughter.
v. Jackson
(People
[Citation omitted.]”
conc,
see
618 P.2d
[plur. opn.;
[168
149]
cert,
Newman, J.,
den.,
of
opn.
Mosk,
Of neither can ever reduce “heat of nor a passion” provocation murder properly based man- voluntary on the doctrine to felony-murder and an slaughter, instruction that effect be error. This is so because would “malice,” the mental state which murder from vol- otherwise distinguishes untary manslaughter, is not an The mental only element of murder. felony state murder required felony is that for commission necessary underlying felony. Dillon (People 697].)
Thus, there is a fundamental factual distinction between first degree hand, murder deliberate, on the felony one and on the murder premeditated other. The latter, former but a unin variety “includes also only behavior, tended homicides from ordinary reckless or resulting negligence, accident; or pure it both embraces calculated conduct and acts committed in panic rage, illness, alcohol; or dominion or under the or drugs, mental and it condemns alike are consequences highly conceivably that probable, or possible, All, wholly {Id., added.) unforeseeable.” italics p.
Were we to on recognize any theory a “heat of manslaugh passion ter” victim, defense based resistance by a an accidental felony killing murder, course a be felony would an while intentional homicide or at the “panic rage” victim’s resistance a offense. would constitute lesser Such cannot be the law. We conclude there nowas instructional error.
5. Failure to instruct that jury felony-murder circumstance re- special intent kill. quires specific instructed,
Defendant’s was other jury among things, any unintentional, intentional in the is first killing, commission of robbery Dillon, 187, 189; (§§ murder. degree 475-477.) 34 Cal.3d at supra, pp. found defendant murder also found true first guilty degree circumstance,” occurred while defendant single “special the murder was in the of a robbery. commission or commission engaged attempted (§ 190.2, (a)(17)(i).) subd. finding, On the basis of this circumstance special with became for one of or life eligible only two death penalties, out parole. kill briefs, that the defendant has urged his opening supplemental
In unintentional, doctrine cannot and that the felony-murder Wanner ing mur offense of first degree an unintentional homicide to the capital elevate ” that he defendant suggests circumstances. To the extent with “special der com homicide of first murder based on a solely be convicted degree cannot (Dillon, him. we have resolved that issue during felony, against mitted *49 However, the remain 476-477.) at we have accepted 34 Cal.3d pp. supra, under the capital defendant’s he cannot be sentenced premise—that der killing. unintentional of the 1978 death law for an penalty provisions Carlos, to be confined we ruled that a murderer cannot supra, In unless he or she specifically of death or life without parole punishments law, therefore, the must jury to kill. Under the death 1978 penalty intended on solely that it cannot find a circumstance” based “special be instructed finds an intent to kill. of an unless it also underlying felony commission Garcia, rule 152-154.) at In the Carlos was (35 pp. supra, Cal.3d (36 all Carlos was filed. Cal.3d to cases still when pending made applicable reversal 550.) We conclude that Carlos and Garcia compel at p. in this circumstance and the of death case. finding judgment of the special notes, his was not circumstance defendant instructed that special As murder in an intent of first the course of a degree robbery requires finding Garcia, held se of a felony- In we that this error reversal requires per kill. (1) circumstance unless defendant has conceded the special finding murder intent, (2) the issue him under was resolved necessarily against issue 555-556; other, (36 v. Sedeno People instructions Cal.3d at see proper pp. 721 P.2d disapproved 10 Cal.3d 518 (1974) Flannel, (the v. Sedeno People other 25 Cal.3d grounds, supra, on “the kill was issue that intent to parties recognized exception)), issue, command and ... all evidence at their on that presented [and] but shows not establishes the intent as a matter law only necessary record 556; (36 evidence not of consideration.” Cal.3d worthy p. contrary Thornton, 20; 768-769, v. Cantrell People 11 Cal.3d fn. supra, at pp. see 1256], disapproved Flannel, (the Cantrell People supra, grounds, on other exception)). Thomton conceded an intentional record indicates that in the trial defendant
Nothing his strategy tailored at most an inference that defendant It establishes killing. an intent did not have to prove the prosecution assumption on kill. applies exception nor the Cantrell-Thomton Sedeño
Moreover, neither the murder as felony on both premeditation was instructed The jury here. conviction, the basis for a verdict does first murder and the jury’s degree Hence, which there is no inference specify necessary it chose. theory that the of murder. jury found an when it convicted defendant intent to kill Indeed, the stated in his he prosecutor closing argument several times intentional, murder, was not but was claiming relying an premeditated doctrine, kill. felony-murder which no intent to required Nor does the of law. Accord- evidence reveal an intent to kill as a matter Henson, he said fired his ing prosecution witnesses Hix and defendant or in when the victim attacked him weapon accidentally, response, panic with a hand tool. he Henson did protested testified that repeatedly not mean to shoot The fatal wound Wanner. corroborates position wound, this story. not in an area of the victim’s vital thigh, and the organs, location it was fully went off before raised suggests gun *50 or aimed.
Hix and Henson both testified that defendant left Wanner at the isolated However, scene of the the victim’s shooting help. despite bleeding pleas even if it was to defendant that the wound be fatal unless he apparent might treatment, Wanner obtain helped a could conclude that de reasonably fendant’s behavior the malice” from arising “an suggests only “implied abandoned and (§ 188.) heart.” We have made clear malignant base, this form of to the malice”—a antisocial indifference “implied prob that one ability death—does not the Carlos standard of causing satisfy kill, intent to which means the intent to take another’s life. (People specific v. Ramos P.2d at fn. cert. den. U.S. L.Ed.2d 105 S.Ct. 1119 [86 2367].) to reversal we conclude that defendant is entitled of
Accordingly, the Retrial of the circumstance and the special finding penalty judgment. must be before robbery-murder allegation jury prop circumstance special instructed on intent to kill.25 the erly necessity
6. Multiple prosecution. that the offense of first underlying degree
Defendant out points life, murder is by years parole. felony punishable possibility However, 190.) also circumstance” that the (See charging “special § of the same felony, murder occurred in the commission underlying pros conceded at trial that suggests prosecutor killing 25Defendant Wanner was ac prosecutor this assertion. The argu cidental. The record does not confirm most the said in claiming” was “not an intentional homicide. Now both parties ment was that he are issue, both must have importance opportunity of the intent aware introduce all their command on that issue. evidence at minimum to a of life without ecution accused may subject penalty pos that, Defendant under and constitutional statutory claims sibility parole. conviction of double against multiple prosecution, principles jeopardy further “lesser included offense” of first murder degree felony precludes of first murder with degree felony offense” “greater “prosecution” 654;26 Const., (§ see U.S. Amend. circumstance. felony-murder special 2; Const., I, 15.) Cal. art. cl. § V. murder do
This contention lacks merit. laws first governing degree under one statute for an act for not contemplate “multiple prosecution” Rather, as which defendant has been convicted under another. already clause of section 654 that an intentional they first permits, simply provide (Carlos, 152-154) first murder 35 Cal.3d at with one or degree supra, pp. circumstances be to the of death.27 may subject punishment more special the law that the first When such a offense is capital alleged, provides degree conviction must a determination whether a murder precede capital “special Defendant’s effort to characterize this circumstance” exists. two-step pro- for the same act must fail. cedure as “multiple prosecution” Penalty Issues VI.
1. as to “other crimes” which be *51 Statutory vagueness may considered at phase. penalty that,
Section 190.3 other the provides among things, jury, “[i]n determining penalty, . . . shall take into account [as] relevant: [1] (a) The circumstances of the crime of which the defendant was convicted in the and the existence of circumstance proceeding any special found to present (b) . . . . be true The or absence of criminal presence activity by the [f] which or involved the use force violence or attempted violence, (c) or threat use force or The express implied presence [and] [1] or absence any conviction. ...” Defendant prior felony suggests that these “inconsistent and are for void contradictory” provisions vagueness, since, first consideration of “other crimes” by limiting to “violent” of- provides: 26Section 654 “An punishable act omission which is made ways different by provisions may punished provisions, different this code be under either of such but in one; punished acquittal no case can it be under more than an or conviction under either one prosecution any bars a for the same act or omission under other.” 27Indeed, 190, initiative, part penalty degree section of the 1978 death defines first murder “death, single punishment as a whose shall be confinement in the prison state for offense possibility parole, life without or confinement prison the state for a term years of 25 life,” provided in” penalty through to be “determined as sections 190.1 190.5. These punishment single clearly imply degree for the of first depends statutes murder offense not, statutory special alleged proved. or more circumstances are and on whether one If so, death-or-life-without-parole penalties penalty applies; apply. if 25-to-life
201 fenses, conviction” intro- they to the suggest jury any felony “prior duced was for a violent crime. by prosecution (b) (c)
The and of subdivisions argument meaning specious. plain of section violent criminal any activity 190.3 is that the must consider jury conviction,28 defendant, whether or not it led to and and prosecution (italics added), conviction” of- any felony underlying whether “prior 762, (1985) Cal.3d (See fense was violent or nonviolent. v. 38 People Boyd 1, in the 782].) statutory A instructed jury [215 (see 8.84.1(b), (c)) CALJIC No. could understand oth- scarcely language erwise. The statute is not unconstitutionally vague.
2. Use “prior” felony aggravation. convictions
The trial court took of defendant’s convictions for notice judicial as the 1978 1980 auto thefts and them before the placed “prior 190.3, (§ subd. (c).) convictions” to be considered in felony aggravation. admissible Defendant contends that neither conviction was for this purpose neither, claims, since he occurred to commission of the 1979 capital prior offense.
We find merit in defendant’s contention that the felony convic- “prior (c) described in are limited to tion subdivision of section 190.3 those [s]” courts entered commission of the crime. California have con- capital before so statutes which call for harsher treatment on sistently interpreted penal the basis of convictions.” v. McGee People “prior (E.g., criminal” enhancement]; People Superior Court [“habitual (1930) 208 Cal. P. In re [eligibility probation]; 691 [284 449] [same]; People Cal.App.2d Cal.Rptr. 831] Pfeiffer v. 74, 77, (1966) 245 fn. 77-78 pp. Cal.App.2d Diaz *52 cf., deferral]; In re for narcotics addiction treatment Cal- [eligibility 666] (1976) 17 P.2d houn 1235] [court’s conviction” existing to decide whether defendant with shall “prior power rationale of such serve terms concurrently consecutively].) presumed with the law an offender undeterred his brushes de- by prior laws is that (Diaz, 1.) criminal fn. more severe treatment. at supra, serves convictions” a play that argument “prior We substantial recognize no (c) mandates increased role under section Subdivision different 190.3. as One could does argue, on the basis of convictions. “prior” punishment dissent, increase only Lucas in that the subdivision seeks Justice fuller picture of the determination reliability sentencing by giving acquitted. was any crime of which defendant 28The statute bars introduction of evidence That would be for general propensity criminality. picture defendant’s after commission of the cap- if nonviolent convictions incurred incomplete excluded. were ital offense time limitation introduction of
Indeed, (b) no on the imposes subdivision crimes; violence consider criminal may the jury presumably “violent” Therefore, one time in the defendant’s life. any might has occurred at which conclude, no more than (c)’s “conviction” requirement subdivision to some weight that “nonviolent felonies are entitled [in judgment policy determination], if evidenced a conviction—otherwise by but only the penalty will its value. outweigh probative and trouble the crime proving time added.) italics (Boyd, supra, p. ...” (c) intends convictions to be the sole quick that subdivision We agree nonviolent felonies. But we relevant marginally way proving reliable its sole intent. that is doubt (c) drafters intended subdivision as but limitation on the initiative’s
Had felonies, of nonviolent it could have used the proof simply method The word is redundant in other convictions.” “any felony “prior” phrase since, context, no other “conviction” would be avail- logically, felony that it had already introduction at the trial unless been capital penalty able Yet, (b), the contrast with subdivision drafters inserted sharp entered. (c) submit We distinct word in subdivision can word this “prior.” one a nonviolent conviction is admissible if meaning—that only only have before commission of the offense. entered capital it was limited a death of nonviolent criminality penalty Given the importance determination, it drafters seems to assume initiative’s intended plausible of nonviolent convictions for their most material only purpose—to the use by prior that the was undeterred capital demonstrate offense successful fel- (b) (c) subdivisions We therefore conclude that ony prosecutions. (b) allows in all have Subdivision evidence section 190.3 separate purposes. for violence. Subdi- to show defendant’s criminality propensity of violent “convictions” to show nonviolent (c) felony vision allows “prior” criminality—that of habitual it was the culmination offense the capital criminal sanctions.29 the community’s previous undeterred *53 noted, in all evidence of violent crime to be introduced allows evidence section 190.3 29As phase, expressly but it penalty factor at the intro aggravating as an considered and forbids they except felony crimes where resulted in of nonviolent convictions. evidence duction which is “other crimes” evidence admissible and between relevant distinction This careful statutory purpose that the Lucas’s contention is place not refutes Justice to which is that penalty jury. the evidence before “bad character” conceivably relevant all
203 reference to (c)’s “prior” we determine that subdivision Accordingly, rule, limited, in the California convictions is line with long-standing Hence, at any convictions entered before the crime was committed. capital retrial, theft not be defendant’s conviction for the auto should 1980 penalty admitted, since of Wanner. it occurred after the December slaying 1979 not, however,
We do the con defendant’s that accept suggestion viction for the auto theft on this 1978 is also inadmissible basis. Defendant 10851, in 1978 for violation of section which prosecuted Vehicle Code is either as a as a He *54 crimes” at penalty phase. “other uncharged Use
3. as law denies due insofar process that the 1978 Defendant argues consider, decided defendant’s already guilt which has it a jury permits crimes on which defendant was neither violent other on the issue penalty, 190.3, (b).) defendant jury, Such a (§ penalty subd. nor convicted. charged defendant’s serious criminality. view of contends, its prior is prejudiced crimes as an factor Moreover, aggravating of uncharged he use suggests, unconvicted offenses which were of the death penalty allows imposition deemed unworthy prosecution. were to decide the empaneled jury
We cannot Even if a separate agree. hear, mitigation, aggravation it would be entitled “[t]he penalty, was convicted in the which the defendant crime of circumstances of the existence of circumstance any special “the including present proceeding,” 190.3, (a).) Under these circumstan- (§ subd. found true” at the trial. guilt ces, unitary jury outweighs any for a “sup- preference the strong legislative 190.4, (See in the single-jury process. to defendant disadvantage” § posed Fields, 753; cf., Thornton, (c); p. supra, Cal.3d supra, subd. 351-352.) Cal.3d at pp. course, would extend to same-jury argument logically
If
accepted,
and to all
to more than
try
all
at the
efforts
penalty phase,
factual disputes
As the line of cases
the “reasonable
one crime to the same jury.
applying
(see,
evidence of “other crimes” demonstrates
e.g.,
doubt” standard to
(1982) 33 Cal.3d
53-55
v. Robertson
People
[188
(1967) 65
279];
v. Tahl
736-738
P.2d
People
cert, den.,
294,
205 359, 375-376, Estelle v. Smith 454, (1981) 451 U.S. 472-473 L.Ed.2d [68 Jurek v. Texas 1866]; 262, 276 L.Ed.2d (1976) 101 S.Ct. 428 U.S. [49 929, 941, den., 875 L.Ed.2d 96 S.Ct. 429 U.S. [pl. opn.], rehg. [50 2950] 158, 153, Georgia (1976) 428 U.S. 198]; 97 S.Ct. v. 203-204 Gregg [49 859, 891-892, den., 875 L.Ed.2d S.Ct. 429 U.S. 96 [pl. opn.], rehg. 2909] v. Ramos 158, 197, 198]; L.Ed.2d 97 S.Ct. 97 S.Ct. see also [50 California 1171, 1186, (1983) 23; U.S. 103 463 and fn. L.Ed.2d S.Ct. 1009 [77 Zant 3446], Stephens (1983) 462 U.S. 886-887 L.Ed.2d [77 255-255, 2733].) 103 S.Ct. It never that this suggested penalty has must be evidence heard aby jury. separate
As is therefore we must also defendant’s reject argument apparent, other that crimes are inadmissible in a trial. to per Contrary se penalty defendant’s of suggestion, admission evidence of criminal vio uncharged lence does not the death for a offense which impose noncapital penalty Rather, was never defendant convicted. the evidence of if criminality, (Robertson, a supra, beyond reasonable at doubt 53- proved pp. 55), is one factor the simply is consider in penalty jury deciding punishment for the offense.32 appropriate capital Other penalty phase
4. issues. Defendant raises number of other to the challenges his penalty phase We deem it unnecessary trial. them address here.
VII. Conclusion
judgment
guilt is
as
upheld
to all counts. The single special cir-
cumstance finding—that defendant committed a first
murder
degree
while
Bartholomew,
Washington Supreme
32The
supra,
judgment
Court’s
was vacated on
Court,
to the United
Supreme
certiorari
tion in
States
and the
was remanded for
case
reconsidera
Zant,
light
supra.
(Washington
(1984)
v. Bartholomew
In court observed that “voir as designed counsel, be self-destructive. jurors, by unsuitable if over-extended may, out examination, dire is with the weight voir burdened the excess rococo If ” (1973) 8 itself can be v. Crowe (People structure endangered. trial case, 193].) an earlier from Quoting P.2d noted in Crowe the tendency proceedings ‘“an increasing prolong we tedious exam- side to inordinately by indulge counsel either allowing view, but no with definite jurors, apparently purpose object ination a advisability peremp- the the hope eliciting something indicating with voir at- (Id., 821.) . . .’” We dire . further decried challenge p. tory “ facts by counsel ‘to educate the to the particular tempts jury panel case, way, vote the to commit themselves to compel jurors particular case, to for or jury against particular party, argue to prejudice (P. or to instruct the matters of law.’” jury, indoctrinate omitted.) fn. Supreme sitting by under assignment *Retired Associate Justice Court the Chair of the Judicial Council.
person
Crowe,
inhibition,
error,
we
In
found no
and no
or constitutional
statutory
ex-
in a
the trial
entire voir dire
whereby
conducted the
procedure
judge
himself,
which,
submit
amination
counsel to
if reason-
permitting
questions
able, would be
we con-
propounded by
this
judge. Approving
practice,
cluded in Crowe that
“direct examination
counsel has
perverted
pur-
dire,
of voir
transformed the examination of
into contest
pose
jurors
between counsel for the
selection of a
to his cause and
jury partial
selected,
attainment of
which may
so
a contest
ov-
rapport
jurors
the actual
(P.
omitted.)
ershadow
trial on the merits.”
fn.
Although
Crowe’s immediate
an amendment to Penal Code
holding
abrogated by
*57
counsel,
section
direct examination
Crowe’s
permitting
by
insights
concerns remain
and
as valid and
as when written
compelling today
years
Williams,
The
in cases such
majority,
as
v.
ago.
People
supra, 29 Cal.3d
case,
the
and
present
has
those
and
ignored
has
counsel
teachings
given
to conduct
leeway
broad
protracted
aimed
fishing expeditions ostensibly
developing challenges
but
particular jurors,
to the
equally susceptible
various abuses
in Crowe. I cannot
catalogued
join my colleagues
their
from
continued
Crowe’s admonition
departure
against unduly overextending
voir dire process.
the
The costs to the
are
judicial process
too
simply
great.
I also dissent to that
of the
portion
which sets aside the
judgment
special
circumstances
and
finding
reverses
penalty
death
reason of
People
Garcia
v.
Cal.3d 539
Cal.Rptr.
and
Court
Superior
Carlos
Finally, to that of the portion which majority opinion directs the court, on trial retrial of the penalty phase, exclude evidence of defend- ant’s 1980 felony auto theft conviction. The reasons majority that the con- viction inadmissible it because did not occur prior defendant’s com- offense, mission of capital not accordingly, was con- “prior viction” within the of the 1978 meaning (Pen. Code, death law. penalty 190.3, subd. (c).) This which holding, § would withhold from the penalty vital jury information regarding record, defendant’s character and criminal is patently wrong.
The initial paragraph section 190.3 states that at the trial “evi- penalty dence bemay both the presented by and the people defendant as to any matter relevant to aggravation, mitigation, sentence but including, offense, to, any of the prior
limited nature and circumstance present or conviction or convic- conviction or convictions whether not such felony violence, of other criminal involved crime of or absence presence tions involved of . . . defendant which the use or use activity by attempted violence, and the or threat to force or implied express [or use] defendant’s character, condition.” background, mental condition and history, physical added.) (Italics
The section forth factors sentencing continues by setting specific account, trier of “The which the fact take into or including presence must (Subd. (c).) any absence conviction.” obvious prior felony purpose 190.3, to consider entirety, of section when read in its is to permit all relevant facts aid the trier of fact in and circumstances which might can an How it making intelligent, possibly decision. nonarbitrary penalty convictions, that the those sub- be defendant’s even argued felony occurring offense, to his factors are irrelevant for the trier capital sequent improper Court, of fact’s consideration? In States Supreme the words the United “consideration character and record of individual offender” is a *58 determination “constitutionally of the death indispensible part” pro- penalty (Woodson v. (1976) North L.Ed.2d cess. Carolina 428 U.S. [49 944, 961, Thus, 2978], added.) 96 S.Ct. conviction which felony italics any defendant has is relevant to capital sentencing highly the suffered to prior is under section 190.3. clearly the determination and admissible penalty view, to trier of fact information my deprive In the of relevant regarding of defeats the background statutory purpose assuring defendant’s overriding the the in both offense and carefully that cases is tailored to penalty capital suffered, offender. should one who for of Why example, plethora the convictions commission of murder be treated identi- felony his following led a for who blameless cally, capital the offender sentencing purposes, is such an what who convicted following life offense? And of the offender Code, (b), subd. (Pen. of from attempting escape jail prison §§ (b)) subd. offense? Should his incarceration for a following capital not the of that demonstrated refusal to penalty jury be told defendant’s his accept peacefully punishment?
I would affirm the in its judgment entirety. MOSK, I concurin of from aside setting but dissent judgment guilt J. circumstance and the special finding penalty.
The evidence is to show an kill within the requirements sufficient intent to Superior of Carlos Court Cal.3d 131 The P.2d stress accidental nature majority original shooting. 862]. so, was not That be it is debatable. But the may though original shooting deliberate, the ultimate cause of death: it was the intentional abandonment that death was defendant of his wounded victim with mortally knowledge the inevitable result. describe the conduct as majority foregoing demonstrating “implied
malice” for a I merely and thus basis second murder verdict. degree conduct, find the admitted in of all the deliberate criminal light activity it, demonstrates the intent another’s life to be preceding specific clear, forfeited. The defendant’s intentional both from his dec- purpose was larations and his actions: to victim from prevent bleeding reaching from which he could defendant and cause place safety eventually identify him to be prosecuted.
While in it is true this case the to the pre-Carlos argued jury prosecutor immaterial, that intent to kill was the issue of intent was litigated pro con as of a diminished through experts, part defense. The capacity purpose defendant’s diminished urging capacity was to convince the that he could not form intent kill. required hand,
Since I have I add a pen comment on separate opinion One Lucas. can Justice understand his the federal affinity for system, trial judge which the conducts most if not voir all of the dire examination He to look jurors. prospective appears nostalgia People v. Crowe which Justice and a Tobriner majority California. I approved practice dissented *59 Crowe. Within a year acted to Legislature repudiate Crowe ma- Penal by amending Code section 1078 once jority to assure again right of counsel to conduct voir dire examination. Thus of Justice quarrel Lucas policy with the Whenever essentially Legislature. abuses of occur, v. juror inquiry People (1981) Williams Cal.3d 408 [174 317, 628 P.2d Cal.Rptr. control in the trial provides adequate judge incursions into prevent irrelevancy. hand, On the errors, issue I find that the any, if urged by are harmless within Constitution, VI, of California article proscription section 13.
I would affirm the
its
judgment in
entirety.
BIRD,
J.,C.
I concur
Concurring
Dissenting.
aside
setting
the special circumstance
and the
reversal
finding
penalty judgment
for Carlos-Garcia
(Carlos
error.
Superior Court
862];
P.2d
v. Garcia
majority’s opinion. 27, 1986,
On March modified read as above. printed were opinions or misdemeanor. notes he punishable felony court, entered a no guilty which has plea municipal felony jurisdiction, and was on placed (See 1203.) without sentence. probation imposition of § Hence, reasons, when, 1980, he a conviction” “felony only occurred court revoked and sentenced to state superior probation prison. defendant and, The contention lacks merit. The a on complaint felony, charged July 1978, 11, defendant pled auto before a guilty felony theft A magistrate. a may take magistrate felony plea, after which case guilty proceeds court as if had plea (§ 859a.) occurred there. superior 8, 1978, aAt sentencing hearing court withheld August superior sentence and granted probation. But use of this did not procedure prevent case from a constituting (See conviction” as of “prior that time. 1203.4.) statute, For of a conviction” purposes defendant “prior § suffers a such conviction when he v. pleads guilty. People (1959) Banks (E.g., 53 669, 102]; Cal.2d 390-391 348 P.2d see also Stephens v. (1959) Toomey 182].) P.2d And a felony-misde offense is deemed a for all meanor felony purposes specific exceptions Banks, 17; see, (§ not relevant here. e.g., supra, 381-382, at pp. 8; (1969) fit. People Bozigian Cal.App.2d 379 [75 .)30 auto theft 876] thus produced admissible 190.3, conviction” felony under section “prior subdivision (c).31 (1) offense a misdemeanor “judgment” section is after 30Under is entered which (2) prison; other “punishment than” state the court designates imposes the offense a sentence, granting probation imposition when without or misdemeanor when committing Authority, declaration; application to the Youth or on for such a (3) the offense objection; charged without defendant’s as a misdemeanor committing magistrate misdemeanor; discharged defendant is the offense a from his declares Youth Authority commitment. “multiple prosecution” argues proscription 31Defendant section 654 was vio theft, for the convicted and sentenced 1978 auto he was lated because the theft was also case in the 1980 and in a probation revoke his misdemeanor used drunk-driving probation criminal conduct to revoke subsequent only But use of imposition matter. results in already crimes of which defendant for the earlier been has convicted. Section punishment