*1 Apr. S010164. 1995.] [No. PEOPLE,

THE Plaintiff and Respondent, BEELER, GENE

RODNEY Defendant Appellant.

Counsel O’Donnell, Court, A. under Kenneth Pierce appointment by Supreme Schaeffer, Rottman, Clara A. John Steve Wilmer Harris and Freeling, Pope, Scholer, Fierman, & Handler for Defendant and Kaye, Hays Appellant. General, Williamson, Daniel E. Chief Assistant Lungren, Attorney George General, Schons, General, W. Keith I. Attorney Gary Attorney Assistant General, and Patti W. for Plaintiff and Motley Ranger, Deputy Attorneys Respondent.

Opinion THE COURT. Gene Beeler was convicted of one Defendant Rodney Code, (Pen. 187) count first murder and one count of degree burglary § Code, (Pen. 459) Code, (Pen. committed with the use of a firearm personal § 12022.5). The found to be jury true circumstance that the special § Code, 190.2, (Pen. murder was committed a subd. during burglary. § (a)(17)(vii).) The returned a verdict of death. This is automatic. jury appeal Code, 1239, (Pen. (b).) subd. We affirm its judgment entirety. §

Guilt Phase Facts

1. The Prosecution of the case was that defendant entered the prosecution’s theory residence of Stevenson to commit unoccupied Anthony Joseph (Tony) defendant, that, returned home and discovered and as burglary, Tony house, fled the defendant shot him. The evidence was Tony key prosecution as follows: 30,1985, before 11

Shortly a.m. on December was found on a Tony lying lawn near the house where he with his brothers Dino Stevenson resided (Michael) had

(Dino) Tony Michael Stevenson in the City Orange. Tony the scene. been shot in the back. Police and were called to paramedics died on the lawn. with a screw- open

The house’s rear door had been sliding-glass pried bedrooms, house, ransacked. had been the brothers’ driver. The including across strewn .22-caliber semiautomatic Marlin rifle were Bullets for Tony’s Michael’s bedroom rifle was shattered on the floor. his bed. The hallway rifle. to the butt of door had a that was attributed large gash Tony’s an chain and from the house were jewelry (including gold Missing camera, cash, $1,200 charm), a dark blue gym Italian a 35-millimeter gold Rolex watch. Also taken was Michael’s .22-caliber and Dino’s fake bag, revolver, which he had unloaded under his bed single-action Ruger kept two bullets nearby. on the of a as defendant’s was found being top

A identified fingerprint in the southwest bedroom. metal file cabinet wound—a An showed that died from a Tony single gunshot autopsy left side of his back at an upward .22-calibér bullet that entered the long-rifle no exit his heart. There was struck his left lung, pierced 45-degree angle, shot from when the The muzzle was more than two feet away Tony wound. rifle but could was fired from .22-caliber was fired. The bullet Tony’s revolver similar to the .22-caliber single-action Ruger have been fired from a recovered.) (That never from Michael’s bedroom. gun one taken the street in front of the hole in a car parked Police found a bullet she had car at parked house. The car’s owner testified Stevenson *13 tests showed the of the Ballistics morning killing. location about 9:30 but could police was consistent with a .22-caliber long-rifle projectile, bullet of the bullet because conclusions as to the nature or source make no further door. In the car of extensive to it caused through damage by passing from either it had been fired could not determine whether they particular, rifle. Michael’s revolver or Tony’s front, but the screen house was main door of the Stevenson open,

The bullet to be a small had what appeared door was closed. The screen door ran a hole, screen. Police was found on the no residue although gun powder hole in the car door to the bullet the hole in the screen door from string fired from inside could have been the bullet found in the car concluded that car. the screen door into the the house through found on the experiment conducting string The homicide investigator lawn of the front of and and trimmed” well taken care landscaped “very indentation, where it appeared “a rounded Stevenson residence an portion down, knee, lawn underneath into the right had fallen a something possibly indentation, there rounded portion, And then next to the right string. (Italics up.” been actually pulled was a disturbance where the had grass the house inside been shot from added.) The was that had Tony implication a from burglar. as he across the to escape was running yard trying resided at 1144 Street. Floyd Raney and his brothers resided Everett Tony in his Raney at 1104 Everett Street. About the time the killing, into his with the door when he heard a motor He went running. garage, open, across the street. Defendant and saw a truck parked directly driveway pickup wore blue and what He Raney’s garage. pale jeans appeared approached cat the wall in be a solid blue shirt. Defendant asked Raney, “My jumped there, and see if cat is back Would look back backyard. you please, my your cat, but there?” into his to look for the when he backyard Raney stepped across the street in the returned to the defendant “was takin’ off garage, trial, of defendant’s truck as being truck.” At identified Raney photograph similar to the truck saw that Raney day. to west. The street immediately

Everett Street runs east parallel wall, between south is East Rose Avenue. A block about six feet runs high, and those on the of the houses on the south side of Everett backyards The north side of East Rose. Lavada Hoskins resided at 1115 East Rose. common ran the rear of her morning wall along edge backyard. Mrs. Hoskins was in her to her next-door neighbor, killing, backyard, talking the block Mrs. Fern Await. Both women saw a man along top walking about 10:30 a.m. and wall. Mrs. Await recalled time as between being face, 11:30 a.m. Neither woman saw the man’s but Mrs. Hoskins recalled small, dark Mrs. him a blue shirt and wearing carrying sports bag. plaid Await did not see a but she recalled the man was work wearing pants bag, and a shirt that solid blue. Mrs. Await read and were required eyeglasses was not her when she saw the man on the wall. wearing glasses Hoskins, Await, unknown in the

Neither nor saw other Raney persons area at the time of the approximate killing. *14 (the laminated aas company)

Defendant worked at a products company line and reported senior Jim Anderson also worked at operator. company of the to defendant. Anderson recalled that defendant left work early day a.m., about 10 and did not return until the afternoon. killing, cards, in of time testi- Calvin Brunsting, company’s manager charge 30, 1985, indicated that he clocked fied defendant’s card for December December into work that at 5:45 a.m. Sometime after day approximately he card the time defendant asked to write on defendant’s Brunsting day. the following left on December 30 and the time he came to work Brun- times. said he had the clock for those Defendant forgotten punch card defendant’s indicated on with defendant’s and sting complied request for December 30 that he left work at 3:40 p.m. that, one day with testified

John Lorenzi worked defendant. Lorenzi to him at said defendant between Christmas and New Year’s Eve work, “John, I were you If was—if let me ask you hypothetical question. act, house, in the caught you someone who lived there robbing somebody’s kill somebody?” Lorenzi Did you would shoot him?” you replied, “Why? “No, Defendant became asshole.” upset responded, Anderson, Jim Defendant later had a similar with co-worker exchange him, if were a house and robbing asking “Hypothetically speaking, you there, is, had a came home—the that lived this came home and you guy guy “No, I him?” I wouldn’t. wouldn’t would shoot Anderson gun, you replied, in do did you something, with. did myself position begin Why, put kill done so and walked away. Defendant denied you somebody?” having 1,1986, to sell Dino’s watch Sometime after defendant January attempted 7, 1986, defendant sold to an acquain- $500. to Anderson for On January from Stevensons’ house. Defendant’s tance the Italian charm taken gold Police found in defendant’s lockers for its workers. employer provided from the house. locker the camera and lens taken 2. The Defense defense was that defendant’s employment supervisor, primary theory the actual killer.

Mitchell in the and was burglary Jackley, participated for the prosecution Jackley granted immunity exchange testifying trial, defense called him to testify. at defendant’s At hearing. preliminary on two Defendant attacked Jackley denied Stevenson. Jackley Tony killing crime details basic fronts: intimate of the suggested Jackley’s knowledge killer; a similar had been he have been the may Jackley charged earlier, for the in that crime several but after he testified prosecution years case, dismissed. were charges

A. Jackley’s knowledge defendant the day killing testified he had breakfast with Jackley defendant afterward defendant to work. Later the day, authorized leave *15 Stevenson house and told that defendant had entered the Jackley allegedly thereafter, defend- stole the key killed Stevenson. Sometime Jackley Tony camera, locker, so that with silk gloves observed a and handled it ant’s work on it. he would not leave fingerprints 9, 1986, and implicated

On called Jackley anonymously police January anonymously in claimed he called defendant the Stevenson killing. Jackley two in crime be because he was concerned he might implicated one social First, at least had been in the house on reasons. victim’s Jackley found be might occasion before the and was afraid his killing fingerprints Second, Stevenson.) Jackley there. wife was with Dino (Jackley’s acquainted also admitted testified he had been with a murder. Jackley charged prior defendant, i.e., had defendant from a ring received stolen having goods stolen a allegedly during rape robbery. of the crime told that defendant account

Jackley police gave following house, he was in the “The he it to me is that while Jackley: way explained ah, is, ah, name, his— in and his came Tony apparently’s brought him. was Rodney his in? Ya. Called his His was with brought dog dog. dog him some friends or his was with and he he was saying dog thought calling somethin’ and the fuck did after that then—what else he said say?—he right bedrooms, took was in one of the he said place, Rodney apparently somethin’, and went behind the comer or somethin’ like that.... And the went into room. He me he came out [Tony] his told guy [Tony] [defendant] with a ah rifle and told him he beat the shit out of him was goddamn gonna it, with and he’s to do . . . And he gonna bodily damage. [sz'c] [defendant] said somethin’ to the effect that in the into an altercation they got hallway, rifle, and that the came at him used it like a club—.” guy crime, testified to other details of the told to him Jackley allegedly defendant: defendant had “hit” two rooms in Stevenson house and was in a third when he was Defendant took a .22-caliber interrupted by Tony. revolver from the house and shot in the back with a bullet Tony hollow-point as from the house. fell on the front lawn. Tony running away Tony Defendant on the back of’ the area “down a brick wall escaped running Stevenson house. He left his truck He had a conversation with a had idling. (This outside the house at the end last reference was of the wall. person defendant.) to the conversation between apparently Floyd Raney B. Jackley’s crimes prior wife, his and two of

Jackley, his were arrested acquaintances connection with Carolina. in South admitted he robbery-murder Jackley *16 these but with one of acquaintances committed burglary

had previously case, the South As in the one of involvement in the killing. present denied an anony- killing Jackley, Carolina defendants confessed allegedly defendant, knew Jackley mous call was made to police implicating those crime, from and he had received stolen goods details of the many however, were Carolina against Jackley, defendants. The South charges his after he for the prosecution against acquaintances. testified dropped in which he knew the three other burglaries admitted to Jackley victims, the Stevenson similar to those taken from (2) the items taken were house, in of the houses. Based were not found and his fingerprints crime, that one could defendant argued these similarities to present in this killer and the principal burglar was the Jackley conclude reasonably case.

Penalty Phase Facts 1. The Prosecution three burglary evidence of defendant’s prior

The prosecution presented evi- The also presented prosecution convictions—in 1976. in one carrier morning a female newspaper early dence that defendant raped him, and to to fellate her to remove her clothing, Defendant forced 1985. to a co-worker in vulgar language He boasted intercourse. vaginal engage after robbing the woman intercourse with had sexual having later that day her.

2. Defense and a a psychologist, former neighbors, defendant’s family, Members of others, for several years he was subjected testified among psychiatrist, verbal, his abuse by stepmother. and sexual extreme psychological, physical, him with beat She repeatedly “a little bastard.” often called defendant She of stairs buckles, flight him down a sticks, and threw and brushes belt him to chained him.) beat She sometimes (His father also his hands tied. his defecate in him to urinate forced for several days, basement post his his feces on as well. She smeared beat him for that and then underpants, their from his thumbs She once pulled hands over flames. face and held his he vomited. fruit until him to eat preserves She forced sockets. re- defendant’s Walker, testified to a licensed psychologist,

Dr. Lenore Walker, the step- to Dr. According his stepmother. of abuse counting him she dressed look like a girl, him to defendant she wanted mother told him dressed her and dresses and made wash dishes while daughter’s panties *17 of him She tied a around his “. . . it in back like a girl. string penis, pulling him, and tying penis so that couldn’t see he had a in front of you penis she Then him . . . his waist and he looked better that telling way. [¶] enemas, at first a tampon, moved into him Vaseline and giving using taking soiled, bloody tampons a and then would her own just clean she use tampon, addition, insert and make him insert them in his anus. . . . In she would [¶] well, she her as and in her so she was him touch tampons vagina having would area so make him fondle her area and have him lick her vagina vagina she could him at that reach a climax. . . . She would also masturbate [¶] older, he some of it is as he older—between the age—as got progressing got of time of 10 and but not allow him to reach an two-year period orgasm. When he was a little older and he would reach an she would take the orgasm, semen and smear it all over his face and he for In would be that. punished addition, climax, in order to him from a she would prevent reaching squeeze testicles, his and he remembers that done with to him. Later being great pain on, she would have intercourse with him in her and insert his penis vagina him but not allow to reach an orgasm.” homes,

Defendant was taken from his and lived in foster eventually family Nevada, mental a in and hospitals, youth authority facility finally prison. Dr. Walker further testified that she believed defendant had in fact been molested as he described. She believed that because of his he sexually past maladies, suffered a of mental and disasso- variety including schizophrenia ciation, to, which in best be described as but more general might comparable than, severe stress Dr. Walker stated that defend- post-traumatic syndrome. confused, ant is and a need to be and very guilt feelings punished, his to steal was not motivated but a he tendency by greed, by compulsion could not control. Defendant told her he would often wake in the middle up of a and not know what he was there. burglary doing Cahill,

John a counselor at a Nevada where defendant had youth camp incarcerated, testified, “Well, been I’d he was the other say picked by He was—he was kind of a tended be boys. character and pitiful easily manipulated on.” generally picked Noble,

Dr. Ernest the California psychiatrist employed Department Corrections, testified that he had examined defendant in one of 1971 during his incarcerations: “I felt that he had been in a brought up very highly chaotic home environment. And I felt his was vicious stepmother extremely to him. ... I felt some that she had set head his ways up template prison incarceration . . . .” Dr. Noble also observed that very early distorted, be

defendant’s thumbs thus to confirm his appeared tending them had from their sockets. description having pulled Wells, Dr. a clinical who Stephen examined defendant and psychologist records, reviewed his also testified to a of abuse: “Given the lengthy history nature, mental, the administration and the prolonged severity abuse, it was and the sexual I would that taken all physical, say together, The physical almost an to recover from. impossible group experiences alone, in Utah I saw her abuse which his admitted to me when stepmother itself, testified that extreme. . . .” Dr. Wells further profound *18 the abuse. defendant suffered severe emotional caused problems that he was wife testified Defendant had two minor children. Defendant’s Selden, had testified he father. Dr. John a clinical loving psychologist, been defendant’s son for numerous behavioral treating prob- five-year-old was under son seemed attached to him. Defendant’s family lems. His very from financial Dr. Selden believed stress medical and great problems. welfare. defendant concerned for his children’s very was

Discussion is that he suffers from severe Defendant’s contention on primary appeal assertion, he raises several brain Based on that damage. arguments organic verdict, and the death circumstance finding, against guilt special brain relate to all sentence. Because the based on alleged damage arguments trial, directed we will first address defendant’s other challenges phases Second, circumstance and to the we shall turn to the special only guilt phase. are not based on the brain damage allegation. issues that phase penalty Third, based on the al- shall resolve defendant’s contentions we multiple brain leged damage. Brain Alleged Damage

Guilt Phase Issues Other Than 1. Juror McCoskey 26, 1988, Juror

On before the trial’s guilt began, May shortly phase she could the court clerk to “she was not sure that say McCoskey telephoned was very fulfill her duties as a . . . nature of the case itself juror [t]he down to her. . . .” The clerk noted that “had broken upsetting McCoskey informed on the On the court counsel May and was crying phone.” excused, outburst, recommended that emotional she be McCoskey’s Defense accordingly. asked counsel to counsel and asked stipulate agreed court to an alternate The juror. prosecutor request. seat declined the court’s to serve as juror. about her ability The court then McCoskey questioned heart, emotional phone for her She had an change apologized apparent The court call, serve. be able to that she believed herself to stated follows: was as refused to an seat alternate juror. proceeding from you call the phone clerk received Ms. McCoskey, my “[Court]: on this service which she tells me were about very distraught possible you case? shock, I’m all right—. I think I kind of in a state of but

“[Juror]: factors feel have kind of you disabling You no longer “[Court]: What was it that troubled you? on the case? regards sitting I I on it. You said our I—I think was a state of shock that was “[Juror]: it, I were one in and the seriousness of and think—I think eight, possibilities I be could fair. *19 us, You do the whole with realize—you’ve gone through thing

“[Court]: communication and the all the other jurors with without private you there be a ultimately may through serving sitting present—that problem of this defendant. Is and is that what what’s judgment bothering you, that concern, caused as a you gravity juror? responsibility that, And I to—I and think about but Yes. had had to really stop “[Juror]: I’m okay— Is there about the communication that we’ve talked to anything

“[Court]: now, need to add to or further concern? you privately, you any that No. “[Juror]: sense, So in a fair if we sit this case and believe the you through

“[Court]: is not will have voting guilty? person guilty, you any problem No. “[Juror]: I’m now? And about the trial we’re about to start talking

“[Court]: Right. “[Juror]: And if it turns out that convinced a reasonable you’re beyond

“[Court]: receive, doubt that he’s from the evidence that would have guilty you you any problems voting guilty? No, no problems.

“[Juror]: trial, Now once we into the of the if ever get penalty phase we “[Court]: do, know you we’re hear and bad about the going good things things man’s life. When we’ve finished with that weighing you go through end, trial, in the if we have the process ever to that will get phase you ability come back with a verdict of what the just regardless consequences be? may Yes.

“[Juror]: So, words, in other if conscience tells that the your you appro- “[Court]: verdict is life without can vote that priate you parole, way? Yes.

“[Juror]: And if the death is the conscience tells your you penalty “[Court]: verdict, think can vote that too? appropriate you you way, Yes. “[Juror]: now, else, there with the court? Is need discuss anything you

“[Court]: I’m honor. sorry, your very “[Juror]: I because All don’t mean to embarrass Okay. right. you,

“[Court]: decisions in we’ve talked to that shouldn’t affect you privately your *20 this case. any regard throughout Okay? Okay.

“[Juror]: I’m that became so with the sorry you emotionally charged “[Court]: responsibilities. be, know, to—the I didn’t know if I would able to—able just you

“[Juror]: heard, fair, different I know—not I know I could be fair. things you being Is there at home that’s to be a something problem? going “[Court]: No. “[Juror]: chance, now. If ... All Let me one last you right. give you

“[Court]: case, that want off this I that the will stipulate you have a suspicion attorneys If another thing. be excused. satisfied that can do the that’s you’re you job,

975 I I do it.” feel can “[Juror]: was unable to

Defendant contends Juror McCoskey emotionally fulfill court’s dismiss McCoskey her duties and that trial refusal to Const., (U.S. violated due defendant’s federal constitutional to rights process Const., Amends.), (U.S. Amend.), 5th & 6th 14th an impartial jury Const., (U.S. Amend.). We reliable determination 8th penalty reject contentions. in the

“A or her functions . . . must juror’s his inability perform appear v. record as a and bias not be reality’ (People ‘demonstrable may presumed.” 1477, 865], (1990) 1484 citing Thomas 218 Cal.App.3d Cal.Rptr. [267 782, 687, (1976) v. Cal.3d 552 P.2d Collins 17 696 People Cal.Rptr. [131 742]; 55, 217, (1971) v. 6 Cal.3d 60 P.2d People Compton Cal.Rptr. [98 537].) The record reflects no demonstrable was reality McCoskey Moreover, unable to serve as a under Penal Code section which juror. cause, allows a trial court to remove a on a of “The juror finding good determination cause’ this context is one for the exercise ‘good calling discretion; if the court’s there is substantial evidence supporting decision, Thomas, it will be v. upheld appeal.” (People supra, 1484.) at trial Substantial evidence court’s Cal.App.3d p. supports determination that could her In to careful fulfill McCoskey duty. response court, she made clear her belief that she could be questioning by and able to serve her In that circum impartial despite prior misgivings. stance, the trial court was within its discretion not to remove her from the v. (People jury. Goldberg Cal.App.3d Cal.Rptr. 192 [207 her cause to who recanted good discharge juror ultimately initially 431] [no claimed Franklin inability judge impartially]; People [same].) 25-26 Cal.App.3d Cal.Rptr. 94] 2. Alleged Failure to and Preserve Evidence Investigate

Defendant contends the his of due violated prosecution right it, (or, as he two critical process by failing preserve puts by destroying) First, evidence. he asserts the victim’s pieces exculpatory autopsy *21 because discolorations the victim’s hands were not excised inadequate Second, and examined. defendant contends the mate prosecution destroyed rial exculpatory evidence the rifle found at the crime scene. by test-firing

As defendant trial failed acknowledges, counsel to to the object alleged in the or the rifle shortcomings testing. are thus autopsy objections Code, (Evid. 353; waived and be direct cannot raised on appeal. People § 115, 679, (1990) 169]; Gallego 52 Cal.3d 179-180 Cal.Rptr. 802 P.2d [276 976 749, 83, (1988) 759 v. Coleman 46 Cal.3d 777-778

People Cal.Rptr. [251 1260].) P.2d constitu on the The federal

We also these contentions merits. reject only tional to preserve of due a on the state guarantee process imposes duty in role such “. . . evidence that be to might expected play significant see materiality, To meet this standard of constitutional defense. suspect’s 342, [97], L.Ed.2d [(1976)], United States v. 427 U.S. at Agurs 109-110 [49 353-354, 2392], value evidence must both an S.Ct. possess exculpatory 96 and be of such a nature that was before the evidence destroyed, apparent be to obtain evidence other that the defendant would unable comparable 479, (1984) v. Trombetta 467 U.S. (California available means.” reasonably 413, 422, 2528], (Trombetta)-, 104 S.Ct. fn. omitted 488-489 L.Ed.2d [81 494, 779, 862 P.2d v. Webb 6 Cal.4th 519-520 People Cal.Rptr.2d [24 1194, 569, 779]; Cal.Rptr. v. Johnson 47 Cal.3d People [255 when, 1047].) further limited as P.2d The state’s is responsibility case, . . the failure of the State to the defendant’s is to “. present challenge more can be said than that it could material of which no evidentiary preserve tests, have exonerated the the results of which might have been subjected 51, L.Ed.2d (1988) 488 U.S. (Arizona v. Youngblood defendant.” [102 circumstance, 333].) a criminal defendant In this “unless 109 S.Ct. failure to potentially show bad faith on the part police, preserve can (Id., at of due of law.” p. evidence does not constitute a denial process useful 289].) or absence of bad faith by L.Ed.2d at “The presence p. [102 on the must turn necessarily of the Due Process Clause police purposes at the time it value of the evidence of the exculpatory police’s knowledge * 288].) L.Ed.2d at (Id., Applying at fn. p. was lost or destroyed.” p. no constitutionally we find these to the two items question, principles items had no then-apparent because the conduct by police improper value. exculpatory hands

A. Discolorations on the victim’s hands. on the victim’s showed discolorations Autopsy photographs that he could on cross-examination testified The prosecution’s pathologist or whether they were bruises not determine whether these discolorations not been discolored areas had time of death because the occurred close to the Defendant and examined excised from the victim’s body microscopically. undermined his ability the discolorations contends this failure to examine of a shot in the heat struggle claim that the victim was substantiate his evidence, for scene He asserts the crime was not intentional. killing and that indicated hallway, struggle the shattered rifle in example, evidence have been the hands would “physical bruises on the victim’s struggle.” link him to that necessary victim] [the *22 evidence Even with the benefit of we are not hindsight, persuaded had would have had value. If an examination any meaningful exculpatory evidence were such burglary, revealed the victim’s hands bruised during defend- would struggled not to the conclusion he had necessarily point Moreover, min- ant. defendant only even that conclusion would have aided himself or his if to at all. That the victim was imally, protect struggling killed. home does not itself that he was intentionally by negate finding One he was killed could as conclude to the just reasonably contrary—that he because The lack of value is also demon- struggling. exculpatory strated defense counsel’s to the various by argument jury. Emphasizing detail, of the crime scene evidence counsel that the aspects argued killing refer, however, was not intentional. Counsel did not to the discolorations on the victim’s hands and did not the victim had been suggest bruised during defendant, Even if viewed in the most favorable to alleged struggle. light the best that can be said is that the evidence of have had some bruising might minimal value. That is not The constitutional exculpatory enough. duty evidence is “limited to evidence that be preserve might expected play role in the significant (Trombetta, defense.” 467 U.S. suspect’s supra, 413, 422], added, omitted.) L.Ed.2d italics fh. We find be far- fetched the notion that a would find jury anything significantly exculpatory fact, fact, in the if it was a that a resident was shot while to defend struggling himself and his home from a We therefore cannot conclude that the burglar. were aware their police value during investigation any exculpatory bruises on the victim’s hands. possible

B. Test-firing of rifle

Defendant contends a of the rifle found in the victim’s test-firing house material destroyed evidence a determina exculpatory by precluding tion whether the rifle had been fired the victim on the of the by day killing. reasons, We this contention for reject several defendant’s failure to including establish as a factual that the he seeks was not done. predicate testing Slonina, as a firearms in the Stanley employed County specialist Orange Sheriff’s crime testified he recovered and examined the rifle at laboratory, the crime scene on the of the Defense counsel did not ask day killing. rifle, Slonina on cross-examination if he checked the of the temperature smelled or conducted other field examination to determine gunpowder, assume, however, if the rifle had been fired. Even if we that no such recently made, determination was defendant also fails to show the test-firing pre cluded the further he claims should or could have been done. testing Perhaps most obvious omission is defendant’s failure to establish the existence of any subsequent test that would have shown whether the rifle was laboratory fired on the cannot day killing. fairly charge Defendant prosecu tion with been precluding testing possible. have may

Moreover, if be even we assume to true defendant’s factual premise have the would testing further and that such test-firing precluded testing shown to show the rifle was fired the of the defendant has failed day killing, the have reason would have had value that would testing any exculpatory Webb, (See, 6 Cal.4th been to the v. ably e.g., People supra, apparent police. 494, have 518-520 the defendant’s contention that should [rejecting police revolver].) Evidence the rifle was fired the of the preserved day killing it fired would not have established was victim—the to defend key Moreover, we find most attenuated ant’s claim. the notion defendant could establish a lack of intent based on the fact that by showing struggle rifle. As the victim have fired the claim might regarding hands, the victim’s the victim’s himself discolorations on struggle protect killed. or his home does not itself he was negate finding intentionally Evidence that the rifle was fired the of the would not have day killing played 479, (Trombetta, “a role defense.” 467 U.S. significant suspect’s supra, added, 413, 422], omitted.) fn. L.Ed.2d italics [81 Report 3. Admission Autopsy Bolduc, who conducted the

Dr. autopsy George pathologist victim, who The instead called a did not testify. prosecution pathologist did not in the to testify regarding autopsy report, participate autopsy which, under was admitted into evidence defendant’s objection, despite 1271, to the hearsay Code section the business records exception Evidence of the was error for several rule. Defendant contends admission report failed to establish the trustwor reasons: the prosecution autopsy report’s thiness; (2) Dr. Bolduc was not unavailable and should have been required into evidence without an opportunity admission testify; report to cross-examine Dr. Bolduc violated defendant’s constitutional defendant confrontation; (4) the contained inadmissible medical right report We conclude the admitted into evidence. report properly opinion. A. Trustworthiness as a states that a document is admissible

Evidence Code section 1271 method and time business record if sources of information and only “[t]he Code, (Evid. trustworthiness.” were such as to indicate its preparation the burden of (d).) of the evidence has subd. proponent § (1992) 3 Cal.4th 534-535 (People trustworthiness. establishing Diaz Witkin, 1986) 1171]; (3d Evidence ed. 834 P.2d Cal. Cal.Rptr.2d court, however, Trial, 1726, 1681.) The trial Introduction of Evidence at p. § foundation is whether sufficient has “. . . wide discretion determining On exercise of that as a business record. appeal, laid to evidence qualify *24 can be overturned a clear of abuse.” v. only upon showing (People discretion 632, (1988) 434].) 205 638-639 Lugashi Cal.App.3d Cal.Rptr. [252 Fukumoto, find no Dr. a We abuse discretion this case. testified, Bolduc, Dr. who had worked the same office as pathologist albeit over defendant’s confrontation-clause objection, regarding autopsy further of the office and testified that standard procedures operating proce were followed in the Stevenson and in the documentation of dures autopsy Moreover, the trial court was aware that Dr. Bolduc had autopsy. left the office under coroner’s unfavorable conditions. Before the apparently evidence, was admitted into the testifying acknowledged report pathologist on cross-examination that Dr. Bolduc had caused a bit of consterna “quite tion” in a murder case his conclusion the cause of by basing prior regarding death rather than on medical evidence. police report By admitting evidence, into the court found the to be report impliedly trustworthy report nevertheless. The terms under which Dr. Bolduc the coroner’s departed office and his asserted misconduct in a unrelated case were facts for prior, consider—and, indeed, the trial court to even raise might questions—but did not mandate they that the in this case was finding autopsy report untrustworthy.

B. Dr. Bolduc’s unavailability Defendant contends admission of the was error because it “was report on the premised conclusion that Dr. Bolduc was unavailable.” puzzling assertion, Defendant does not of this but he seems clearly explain point to contend that because the was not report to be sufficiently trustworthy admitted under Evidence Code section 1271 his constitutional right confrontation entitled him to cross-examine Dr. Bolduc the re- regarding (Evidence Code section 1271 port. itself states no that the requirement contents.) who the business record person prepared its We testify regarding 41, a similar rejected (1992) contention in v. Clark 3 Cal.4th 158 People [10 554, 561], 833 P.2d in which the conducted an Cal.Rptr.2d who physician autopsy died before called to about his prepared report being testify case, A different was as in the report. physician permitted, present testify about the over the defendant’s We that the report objection. explained report was admitted into evidence as an official record under Evidence properly Thus, Code section 1280. “The contents of Dr. examining Carpenter’s [the were admitted under a rooted’ to the physician’s] report ‘firmly exception rule that hearsay carries sufficient indicia of reliability satisfy require- 159; ments of the (3 confrontation clause.” People Cal.4th at see also p. 423, Denies 442 error in Cal.App.2d Cal.Rptr. [33 896] [no allowing other than the coroner to physician examining testify regarding v. Wardlow

autopsy report]; People Cal.App.3d [same].) Cal.Rptr. 500] the report

The same obtains in the even principle though case present records exception admitted under Code Evidence section the business rule, to the section rather than under Evidence Code hearsay trust- same showing official records cases exception. require “[T]he the business worthiness in under to an official record as is regard required *25 in these law declared records . . . Section 1280 constitutes the exception. that is the of trustworthiness cases same by explicitly requiring showing com., Ann. (Cal. in Section 1271.” Law Revision Com. Deering’s required 1280, omitted].) In of our (1965 ed.) Evid. Code 438 light p. [citations § within discretion in Dr. finding conclusion that the trial court was its to be under Evidence Code Bolduc’s reliable admitted report sufficiently 1271, section defendant’s of confrontation not violated. was right C. opinion Medical was inadmissible because it

Defendant asserts the briefly autopsy report of the contained Dr. Bolduc’s medical cause example, opinions, First, not raise We for several reasons. defendant did disagree victim’s death. Rather, of the report this at trial. he to admission objection objected autopsy record under exception on the it was not to the business ground subject i.e., The that the report Evidence Code section 1271. present objection, Dr. Bolduc’s is therefore waived. contained opinions, Second, to which he defendant even now does not specify opinions We the cause of death. regarding Dr. Bolduc’s objects except opinion decline to address an opinions. objection unspecified

Third, death was not Bolduc’s conclusion the cause of Dr. regarding sure, been (7) To be some medical has inadmissible opinion opinion. Evidence Code the business records of deemed inadmissible under exception 486, (1974) Cal.Rptr. 12 Cal.3d 502-503 (People Reyes section 1271. v. [116 217, admissible]; Terrell v. People 526 P.2d not [psychiatric opinion 225] (1955) 57 P.2d [physician’s opinion 138 Cal.App.2d 155] admissible].) in those cases The reasoning had criminal abortion patient that, the evidence records exception, to be admissible under the business condition, event; act, neither a conclusion is “. . must be record of an . a conditions, act, event; acts not be based upon an condition or it ormay may (138 . . .” the conclusion. drawing or events observed person however, “It is true that 57.) at As the Terrell court explained, Cal.App.2d p. condition, for fact or a a example, some are a statement of a diagnoses

981 a man has suffered fracture of the femur is a diagnosis compound record of what has seen not true person making but this is diagnosis where the is at but the of the arrived diagnosis reasoning it person making 58; (138 from the of at consideration different factors.” many p. Cal.App.2d People subjec 12 Cal.3d inadmissible Reyes, supra, [holding Terrell, tive supra, made in psychiatric opinion noting distinction 57].) The same obtains in the present Cal.App.2d reasoning wound case. Dr. bullet Bolduc’s conclusion the cause of death—a regarding to the in kind heart—was based on his direct and is no different observation femur, from a a broken noted in Terrell an diagnosis example Indeed, observed fact. all of Dr. Bolduc’s of this relevant conclusions are (1) He concluded in that: is type. his “There an entrance report gunshot [i.e., (2) wound of the left . chest . .” “This is a distant posterior back]. The gunshot wound entrance. . . . wound free of bums or is gunpowder, shot the heart. direction stippling.” “The pierced [bullet] forwards, track is and left to up None these degrees right degrees.” *26 conclusions, death, of including that the cause was regarding inadmissible under Evidence Code section 1271.

Fourth, discussion, even Dr. assuming, that Bolduc’s conclusion solely the cause of regarding death—the which only defendant opinion specifi- cally objects—was inadmissible it harmless. We opinion, was note v. People 47], which, (1959) Williams 364 a murder in Cal.App.2d P.2d case [345 case, inas the a testified the of an present physician contents regarding observed, autopsy conducted another The court by sole physician. “[T]he and served only the records in the was to purpose by trial establish cause of death. not this Appellant certainly was because prejudiced by testimony here, neither at trial nor does he life fact that the of seriously challenge (Id., the deceased was 391.) terminated at Likewise by gunshot wound.” p. here, Dr. Bolduc’s conclusion that victim died from a wound to gunshot the heart is not Nor does defendant Dr. conclu- disputed. dispute Bolduc’s sion that the victim was in the shot back. Richard criminalist Similarly, Brown testified of that the from independently distance autopsy report gun muzzle to the victim was at least two feet. Admission of these conclu- sions was not to defendant. prejudicial Circumstance

Special Issues Other Than Brain Alleged Damage Defendant contends the of in the circumstance murder special finding Code, 190.2, (Pen. commission of a (a)(17)(vii)) subd. must be burglary § instructions, set aside (1) (2) for three reasons: evi- improper insufficient dence, and (3) his brain We at this alleged damage. address point instructions and evidence but later will discuss the brain contention damage in with connection the other issues related to that allegation. v. we note this case is to the of Carlos subject holding

Before proceeding, 131, 79, (1983) 153-154 672 P.2d Court 35 Cal.3d Superior Cal.Rptr. [197 (Carlos), circumstance proof that felony-murder special required 862] holding kill. We later defendant’s intent to overruled Carlos anwas defendant intent to kill must be where the only charged proved v. (People killer. aider and abettor to the homicide and the actual 585, P.2d (1987) Anderson 43 Cal.3d 1138-1147 Cal.Rptr. [240 held, however, during committed 1306].) We that for crimes subsequently Anderson, intent of an the Carlos requirement between Carlos period 173, 227 Fierro 1 Cal.4th to kill would (People [3 govern. 1302].) The this case was during 821 P.2d killing Cal.Rptr.2d period. Circumstance Special

1. Instructions the intent- A malice is not sufficient to establish finding implied Carlos, v. Ramos 35 Cal.3d 131. supra, (People to-kill requirement 136, 148, 430].) Defendant fn. 3 P.2d 37 Cal.3d Cal.Rptr. malice trial court “left the that implied contends the incorrectly impression to kill.” We are not sufficient to establish the intent persuaded. requisite to the circumstance court instructed the jury respect special trial circumstance, to in these find that the referred as follows: “To special true, it must be of a is burglary instructions as murder the commission *27 or intended to being intended to kill a human . . . that the defendant proved evidence of . . . The only another in the of a human killing being. aid [¶] Stevenson is circumstan intended to kill Mr. whether defendant specifically is true that the circumstance alleged tial evidence. You find may only special Mr. with the that theory circumstances are not consistent only if the proved Stevenson, be reconciled Mr. but cannot Beeler had the intent to kill specific Also, evidence as to whether conclusion. if the with other rational [¶] is intent to kill Mr. Stevenson susceptible defendant had the required specific to the existence one of which . . . of two reasonable points interpretations, to the absence of specific and the other of which of intent specific points intent, to the absence to that which points it is your duty adopt interpretation (Italics added.) of intent.” specific insufficient in two respects. this instruction was

Defendant contends contentions, his acknowledg- of we note to the merits those turning Before the intent to kill instruction counsel did not to object ment that “. . . defense does not this failure to object court.” Defendant contends in the lower 1259, “The under Penal Code section appellate constitute a waiver because modified, or even instruction refused also review any given, court may court, no was made thereto in the lower if the substantial though objection below, were explain of the defendant affected As we shall rights thereby.” We therefore we find no merit to defendant's to the instructions. objections were need of whether those objections not decide the procedural question however, note, under Penal Code We section 1259. properly preserved have should what defendant to be is that the trial court appears asserting In the absence a circumstance instruction. explained special however, an trial court is to explain under no request, obligation amplify 298, instruction. v. Bonin Cal.3d (People Cal.Rptr. 460]; 765 P.2d People Anderson Cal.2d Cal.Rptr. 639 [51 366].) 414 P.2d We shall address the of defendant’s nevertheless merits contentions. contends,

He first “The court to barely failed passing, explain that ‘intent to kill’ means the intent the life of to take a human This being." above, contention is belied the record. As stated circumstance special instruction included the that “the defendant intended to explicit requirement kill a human ...” being.

Defendant more contends trial court vigorously failed instruct the malice was not jury sufficient establish a intent to implied specific discretion, kill and that the error failed to channel thus jury’s violating Amendment to the Eighth federal Constitution. He the trial points that, court’s earlier instruction murder “When it is regarding charge shown that a resulted an killing from the intentional act with doing malice, no other be implied mental state need shown to establish the mental state of malice Defendant contends the of an aforethought.” absence instruc- tion that intent to kill more requires than malice finding implied may have caused the to conclude “that malice was jury reasonably implied sufficient to establish intent to kill.” We specific the contention. reject circumstance special instruction did not refer killing to a malice and thus would not have caused the to refer to the definition of malice jury Moreover, as now suggested by defendant. instruc- circumstance special *28 tion and to referred a to kill.” The repeatedly explicitly intent “specific “ stated, earlier instructions malice ‘Malice’ is when there regarding express is manifested an intention kill a human ‘Malice’ is unlawfully being. [H act, when the results an implied killing from intentional the unjustified life, natural of which are is shown that where it consequences dangerous the defendant consciously the of that the disregarded high degree probability act would result in death.” The definition is malice language implied Thus, not with a simply consistent the notion of intent to kill. even specific malice, if the did to the jury refer definition of in that definition nothing would have that was a suggested implied malice with congruent specific intent to kill.

Moreover, the realistic prosecutor’s closing argument pos- foreclosed any of kill sibility special had to find intent to jury believing they Now, that is circumstance. “The defendant intended kill being. the human Describing difference between circumstance.” felony-murder special all, see, of a chart can first shown to the he further “As jury, explained, you crimes, the chart here I have ‘felony-murder’ with counts and the is, red where down where circumstance’ I have it in red also ‘special up is, that, ‘murder’ but under ‘intent to kill’ with circumstance’ I have ‘special and that is to show the distinction between the two. You can supposed [U find the conceiv- defendant in the first guilty felony-murder degree here, not even at these facts but find the defendant ably, looking conceivably not, true, or the circumstance not even it’s special though felony-murder related, kill; [i.e., because of the intent to is needed.” intent]

We defendant’s contention the misled reject jury perhaps instructions into circumstance to be true finding felony-murder special based on a malice. only showing implied

2. Evidence Intent to Kill Specific

Defendant contends the circumstance is not special supported by constitu substantial evidence and thus violates the California and federal however, tional due He process guaranties. agrees, respondent “ . . after standard of review of this factual is whether ‘. general question evidence in the most to the all the favorable viewing light prosecution’ rational trier of fact could have found the elements of the crime beyond reasonable doubt.” v. Edwards 54 Cal.3d (People 436].) asserts three reasons why 819 P.2d Cal.Rptr.2d Respondent is of a intent to kill finding supported. specific contends defendant fired two shots a single-action Respondent from evidence revolver while inside the house.—Defendant asserts the standing were does not show that both shots were fired from the revolver or that they body; fired from inside the house. One bullet was retrieved from the victim’s from his the other bullet was found car across the street lodged parked from house. The recovered from was not fired Tony’s bullet Tony’s body rifle but could have been fired from a .22-caliber single-action .22-caliber Thus, Michael’s bedroom. revolver similar to the one taken from Ruger inference at least one shot is correct that the evidence an respondent supports however, car, was fired from the revolver. The bullet in the was extensively *29 from and the conclusion that could be drawn damaged by impact, only a .22-caliber was that the bullet was consistent with laboratory testing from either Michael’s That bullet could have been fired long-rifle projectile. revolver or Tony’s respondent rifle. Defendant is therefore correct that overstates fired the evidence it establishes that two shots were by asserting that the asserting from the is in revolver. likewise too Respondent expansive There shots fired from inside the house. evidence establishes the two were a in the single was bullet hole front screen door. only respon- the evidence does not mandate the inferences on which Although relies, it does those there was one only dent inferences. The fact permit bullet hole in the screen door does not refute the inference that necesarily both shots were fired from inside the house. One of the shots could have been fired while the door was while the shooter was open perhaps in the showed that “It standing Trajectory testing was consistent doorway. residence, for someone to have fired a the inside have a clear line of weapon fire and hit the car out in front the residence.” This the clearly permits at shot inference that least one was fired from the inside residence. More- over, test, in same connection with the found in the lawn police front an indentation underneath the used directly to measure the “a string trajectory, down, rounded where it had fallen a portion appeared something possibly knee, into the right lawn underneath the And then next to the string. right indentation, the rounded was there a disturbance where the portion, grass had been The lawn indentation actually pulled the inference up.” permitted victim the was shot and fell in the from line the house to the trajectory This, turn, car. in would support the inference that both shots fired were location, i.e., Moreover, from the same from the inside house. the bullet revolver, retrieved from the victim’s could have been fired from body the the bullet from the was the car same type as the bullet projectile retrieved the from body. victim’s evidence taken foregoing as whole the clearly that permits inferences two shots were fired from the revolver and that were both they fired from inside the house. Most important, dispute over how shots were fired from many which and from what location weapon minimum, is At largely beside point. bare the record infer- supports shots, ences that defendant fired two one of which in the struck victim back. contends the victim was in the back Respondent shot while fleeing who defendant, was in act of the victim’s home.— burglarizing

from Defendant contends there is no credible evidence of where the victim was when he was shot. Defendant points testimony by prosecution’s he could state pathologist “the exact was when position gun was fired or gun the exact position the deceased was when the gun fired.” Defendant seems suggest that the victim have been inside shot may that, inside, the house rather than on the outside lawn and if he was shot defendant, fact would of a support theory struggle which might *30 however, intent. The evidence at least negate specific equally, also supports the inference the sought by prosecution. Defendant’s contention is also beside the The evidence showed the victim was shot in point. the back from a distance of at least two feet. This an inference that he was plainly supports shot while fleeing. the be contends fatal shot the heart.—To Respondent pierced victim’s

sure, location of the internal precise necessarily wound does not itself establish that defendant aimed for the intended to victim’s heart or that he kill, but this evidence does at least is sufficient. inference. That permit Moreover, the far more fact is that the shot in the back victim was persuasive in the of area the heart. Evidence the bullet added little to the heart pierced case. prosecution’s short, evidence,

In differing inferences could have been drawn from the true, and the have found the jury might circumstance not to be special based on defendant’s there was a perhaps suggestion on some struggle other But that is not the If the evidence theory. point. reasonably justifies court’s that the evidence could finding jury, reviewing opinion also be reconciled with some view does not warrant a reversal of contrary (Jackson finding. Virginia U.S. 316-320 L.Ed.2d 560, 571-574, 2781].) S.Ct. We hold the circumstance is special finding substantial evidence. amply supported by Phase Issues Other Than Brain

Penalty Alleged Damage 1. Death Juror Father Coley’s of

Defendant contends the verdict was coerced because the trial court penalty to continue his father’s improperly required juror deliberating despite 12, 1988, deliberations, death. On after two Tuesday, July days penalty one of the Michael informed court that the jurors, Coley, by telephone father had died. took later that juror’s following proceeding place in the chambers outside the morning counsel for both judge’s presence sides:

“The Court: Juror called in there this indicated Coley morning, that, death in his Other than no other other than he formal family. message out state at two o’clock in the afternoon I asked the expected fly today. clerk to hold of him and find out the called both of it. Court get particulars counsel. Neither have honored their West- 20-minute call. gone They’ve minster Court. The court has been able to I contact one of parties, believe, and were an hour limit. The court is to cause they beyond going *31 to jury begin deliberations I’m again. a record of the infor- simply making mation I’ve received from this and that is juror, that the member that family father, there, is is deceased his have a close they he needs to be relationship, and he will be back—Monday?

“Juror Coley: Monday. “The Court: The court’s to cause the deliberations going jury begin and we’ll again recess for the early convenience of this sometime juror, before noon. And after I to the I is that will speak attorneys, probability not excuse this and will not juror an in and will alternate his seat place that we will expect deliberations on begin So even if again Monday. show, do not that is the attorneys information that Mr. will have and Coley he will be to come back on required unless there’s some other Monday, severe family us of problem you notify by phone. Okay?

“Juror Coley: Okay.” thereafter, a.m., arrived, about 10:20 Shortly all counsel and the court them provided with a of the earlier conference transcript between the court and Juror Defense counsel Coley. concern: “Mr. Barnett: I ask the expressed court to seat the alternate I’m juror. afraid that deliberations by terminating sometime before noon the feel some jury may sense of in urgency reaching a verdict Or if don’t today. reach a verdict they that if today, have to they come back next week that’s them going our estimate and put beyond they feel forced to reach a may verdict.” The estimate to which counsel referred was the court’s earlier representation during selection that “It’s jury possible that we could ago of weeks into couple and the July outermost probability is that the middle of would July terminate the responsibility juries on the case.” The on [sz'c] which the court Monday to resume proposed deliberations would have been 18. July

Defense counsel and the then prosecutor had explained they arrived a few minutes late for the with Juror meeting because had Coley been they together another courthouse. The court “Excellent. responded: I’m not at that, folks. . . angry you . Had the court known I wouldn’t have talked to the juror Defense counsel privately.” then his concern explained that the juror draw a might inference negative from the court’s comment to the juror that counsel had not to the court’s appeared response call. The court “You’re agreed: What would ask the probably right. court to do?” you Counsel excused, that the be requested juror that his explaining primary concern was absence, reference to counsel’s prior but the effect of Juror allowing continue Coley deliberations: is, honor,

“Mr. Barnett: The that the him no problem your court gave to, I instructions as how to deal with the other suppose—that’s jurors words, to his In other we don’t he’s told respect them; present problem. know what them, off, that he’s told we’re I have to informally be hey, gonna 2:00, catch a . . . at or I have to come back next week if we don’t plane reach a verdict this What time was the court morning. excusing planning *32 the jury today?

“The Court: In 20 minutes. “Mr. Barnett: One additional for the excusal of point Mr. argument is that there’s no the of the Coley, way death of a predict impact family member, counsel, court, himself, no for the or the the way juror effect that have on him in the may of a death case.” penalty phase The court stated it would reconvene the in jury court at a.m. to open clear about any counsel had not been earlier. up misimpression why present time, however, Before that returned verdict. Defendant reiterated jury a. his that the verdict had been coerced. The objection court overruled “I don’t believe there’s objection, factor of coercion.” court stating any then queried jury: verdict,

“The Court: Prior to the court about the the court is inquiring aware that number Mr. had a death in his and that juror eight, Coley, family he was to have to leave area at two o’clock this afternoon. Did going any feel the of that incident in jurors at verdict? pressure arriving your Directed at Mr. Wilcox the foreman. No, so, Foreman: I don’t believe

“Jury honor. your “The Court: If now any feels that need additional time to juror they time, discuss the case or reconsider the verdict because of the I’ll pressure that, hear from that juror. has a like raise any Any juror feeling please your hand. Did the fact that Mr. was to be excused and there was a Coley going 18th, that we would the case anew on have probability begin Monday reached, to do with the verdict that Mr. Wilcox? anything you’ve No, Foreman: Sir. “Jury that,

“The Court: Do feel in that there than you any way differently so, be some in the verdict because of the of time? If might impropriety press raise hand.” please your

Defendant contends the trial court’s of this matter con handling stituted error in two His contention is Juror respects. primary Coley have should not been allowed deliberate further that and that the day verdict was coerced under the He circumstances. also asserts the trial penalty “committed in court constitutional error in conversation engaging private awith outside the of Beeler or his There no juror counsel.” presence error.

A trial court’s decision whether to cause discharge juror good under Penal Code section 1089 is to review subject under abuse-of- 932, discretion (People standard. Ashmus 54 Cal.3d 986-987 [2 (Ashmus); 820 P.2d re Cal.Rptr.2d In Mendes 214] Cal.3d (Mendes).) 592 P.2d Cal.Rptr. Nothing 318] the record shows an abuse of discretion in this case. To the contrary, court accommodated Juror to the Coley fullest extent by to recess offering the trial and truncate deliberations *33 day so he could question Likewise, leave town. the trial court was in the best to observe position demeanor. in record indicates juror’s Nothing there was communi any cation between the court and that was not included in the Coley record but which have cast on might doubt Juror to Penal Code Coley’s ability proceed. section 190.9 that all a requires in case must con proceedings be capital ducted on the record with a court “It is reporter present. that presumed Code, has (Evid. official been duty regularly 664.) The performed.” pre § obtains in this case. sumption

We do not that a more suggest detailed the court would have inquiry by served no For if Juror had purpose. Coley been example, questioned regard- his or state mind if he ing had stated record his affirmatively ability thereof, or lack to willingness, such information proceed, would assist us in determining whether the trial court abused its discretion in allowing Coley to continue deliberating. such is it Although is not re- inquiry preferred, Ashmus, As quired. 932, 987, we in explained 54 supra, Cal.3d a is hearing not in all required circumstances. The court’s discretion deciding whether to a discharge juror the discretion encompasses to decide what specific procedures to whether a employ including to conduct or hearing detailed (Accord, Mendes, 847, inquiry. 852.) 23 Cal.3d supra, Moreover, the record no inference that Juror supports coerced. Coley He did not be request to discharged. Neither did he to the trial court’s object decision to allow deliberations to continue To briefly. defendant’s accept coercion, claim of we would to jury have assume without evidence any the record that Juror sowas distracted Coley his father’s felt by death that he to return a compelled verdict that other speedy were aware of the jurors situation and were somehow affected it. by We not such may make properly “ assumptions. The inability perform functions of a juror . . must

990 ” (Mendes, . supra, a demonstrable . . reality in the record as appear 847, 852, (1971) Cal.3d People Compton Cal.3d quoting in the record shows a “demonstrable 537].) P.2d Nothing Cal.Rptr. duties or that he felt was unable to his discharge that Juror reality” Coley not indicate a reiterate that the record does coerced to return a verdict. We not or even to be accommodated by Juror to be discharged request by Coley Moreover, a had reserved already Juror Coley to deliberate that having day. clear of his father’s death. The court made when he informed the court flight to leave sufficiently early day that Juror would be allowed Coley to the court’s for his Coley agreed proposal. travel to the flight. airport time, dis- asked for additional Coley in the record suggests Nothing time any pressure. or was subjected with the court’s proposal, agreed indicate that other was affected juror the record does not Similarly, circumstances. us, i.e., a case in situation before had same We have previously death, but we have dealt after a deliberating family which a continued juror converse, i.e., of a family who was because discharged a juror with the Mendes, to the trial the defendant objected In 23 Cal.3d death. supra, to be who without a hearing juror requested excused court’s having In a later night. capital brother had died the previous because his excused deliberations case, during court summarily discharged penalty the trial 54 Cal.3d (Ashmus, supra, died the preceding night. whose mother had juror *34 cases, but those results do in both 986-987.) We the discharge upheld cases, in case. In both those of coercion this defendant’s claim not support issue in both was whether from the discharge jury. the jurors requested We held in its discretion granting juror’s request. the trial court abused was not cause for the discharge to determine good both cases that a hearing the circum- established under cause was so clearly because good required or even contrast, to be discharged Juror did not Coley request stances. By the court of his father’s he informed day deliberations not resume the that death. of law that the as a matter would have us assume defendant

Apparently, is presumptively that the debilitating juror is so death of a juror’s parent We do be affected. thusly some would jurors to deliberate. Perhaps unable saddened by is likely conclusion that a person not the intuitive gainsay Indeed, a death family that we have recognized death of his or her parent. Ashmus, 847, 852; 23 Cal.3d (Mendes, supra, be difficult for a juror. can not mean that 987.) every juror does That recognition 54 Cal.3d supra, arises, necessarily when it even or that such difficulty, is affected equally duties. his or her unable to juror perform renders that contention secondary note defendant’s need only briefly We with Juror communication in an ex parte erred by engaging the trial court (This to contention seems directed the fact of the Coley. communication rather than to its substance. To the extent defendant to the objects substance communication, relates to the of Juror objection coercion alleged above.) If, We that contention as defend- rejected have as Coley. explained contends, record, ant albeit without distressed any support Coley was affairs, to and had a need his the situation been arrange have pressing might exacerbated if court had refused him counsel even until speak brief, arrived at the court. for It is error a trial court to in a simply engage administrative communication when informed of a death in a juror’s family. and common sense dictate that a court be allowed to what Reality learn has Ashmus, 932, 986-987; (See, Mendes, happened. e.g., supra, Cal.3d supra, course, 852.) 23 Cal.3d Of a at court some err point might by going what is but that beyond necessary, not reached in administratively point this case.

2. Death Penalty on Family Effect of Defendant’s

Defendant contends trial court erred by refusing allow defend ant’s counsel to examine on Robert the effect of a death Lippold penalty defendant’s was a family. (He licensed clinical Lippold psychologist. per formed psychological evaluation defendant’s mother in Utah, juvenile court in Salt Lake and he in the City, testified action present regarding evaluation. That of his is not relevant to portion testimony this issue.) later worked in the Lippold State Nevada for nine prison system as a years psychologist, superintendent of women’s and warden of prison, a maximum He he security testified had the prison. this opportunity during period interview the families on death row. people We have not previously decided whether explicitly evidence of the effect of a death on the penalty defendant’s family is pertinent “constitutionally *35 771, 844, mitigation” evidence. v. (People (1991) 53 Cal.3d Cooper fn. 14 90, 865]; Fierro, 173, P.2d Cal.Rptr. [281 809 v. 1 People supra, Cal.4th 241; 103,143 People 335, v. Bacigalupo Cal.4th Cal.Rptr.2d [2 559].) because, P.2d we need not decide this if Again, even such evidence admissible, otherwise be might Lippold’s was not proposed testimony ad missible because he no had of defendant’s personal knowledge family. most that could have stated would have been his Lippold opinion regarding the effect on those families of whom he did have This personal knowledge. would have been an the opinion regarding general. death Such an penalty would not be opinion relevant to the which is to tailor proper the inquiry, defendant’s “to his punishment personal and moral guilt.” responsibility (Enmund v. 1140, 1154, Florida 458 U.S. L.Ed.2d 3368], added.) S.Ct. italics “The focus in a trial of capital penalty phase

case is on the character and record of the individual offender.” (.People Johnson, 1194, 1249.) supra, 47 Cal.3d The court did not err in excluding based on his with other Lippold’s proposed testimony experience families. *36 matter, The contains no further references to this so defendant’s trial record omission, be verified. on this contends assertion cannot Relying respondent the seized Although we should not address the issue of manuscript. respon- correct that the record does not the prove manuscript dent is technically counsel, doubt withheld we have no reason to appellate from appellate Indeed, counsel’s assertion were not with the they provided manuscript. lost, does not that the been has either the respondent dispute manuscript In or the trial court. the which be jail light not to uncertainty, appears counsel, to we attributable defendant’s shall address the claim the merits. that, contends, as defendant the never Assuming manuscript was produced counsel, to his we nevertheless the claim on the reject merits. appellate that, the Defendant contends but for seizure of the it have would manuscript, assertion, however, been his at it available for defense trial. This assumes above, was in not As fact available his defense. the trial court explained ordered the to the the the submit to court. jailers manuscript Although be we now decline to whether it was manuscript may missing, speculate to unavailable counsel trial. in the record Nothing that trial during suggests counsel ever the the thusWe requested manuscript during penalty phase. find no error.

Moreover, if trial counsel had so little interest in manuscript they that themselves, did not even seek read the we see no manuscript merit defendant’s contention on that seizure appeal manuscript’s somehow Thus, seizure, his restricted defense. penalty phase even if did improper, First, not defendant. is prejudice in other Prejudice lacking respects. appel- late counsel contend defendant suffers from severe brain organic damage, which raises serious concerns about his that work ability reproduce This as product. assertion assumes a fact that defendant is brain damaged. Moreover, the assertion of is for what it does not prejudice important say. counsel do contend defendant Appellate to rewrite or recon- attempted struct life that was story allegedly subject manuscript. is contention that he only may have been to do That unable so. is not a (It also seems showing prejudice. a bit stretched to that contend defend- ant, brain although life damaged, composed but that 50-page story Second, same brain him damage precluded time.) from so a second doing admissible, counsel do not assert that the would itself have been manuscript but that it would only have assisted counsel at trial. Counsel fail to explain to this court trial why counsel could not have obtained the same information Third, defendant’s regarding him. background by defendant interviewing does not point any mitigating evidence he was unable to as introduce a result of the seizure Put he does not manuscript. differently, show how the was material or manuscript irreplaceable. Alleged

4. Cumulative Guilt Phase Errors Affecting Penalty Verdict Defendant contends there were errors the trial’s multiple during guilt phase that raised serious about he questions finding intentionally *37 (1) In he to: the absence of substantial points

killed the victim. particular, (2) killed the failure that defendant intentionally Tony, prejudicial evidence of defendant’s brain organic damage, improper evidence present of the felony-murder special instruction on the intent-to-kill requirement evidence, circumstance, (5) the destruction exculpatory improper is (The from his cell. last assertion seizure of the life story manuscript with in connection defendant raises the seizure alleged only curious because brief, however, to contend of his he seems In this portion penalty phase. error.) possi- it Defendant contends “there is a reasonable was guilt phase death,” absent return a other than that a would verdict bility penalty jury however, not, Defendant does (Boldface explain these errors. original.) errors affected the verdict with how these alleged penalty any particularity that he intentionally cast doubt on the they finding other than to say determination, relates, but not to penalty killed the victim. That argument short, In of defendant’s itself. finding point to the circumstance special event, because we have rejected clear. In it is misplaced is not argument errors were error. If none of the claimed these claims of guilt phase errors, errors that somehow cannot constitute cumulative individual they “ noted, ‘is as have often defendant verdict. we Finally, affected penalty ’ ” (1987) 44 one.” v. Miranda (People entitled to a “fair trial not a perfect 594, 1127], P.2d Schneble quoting Cal.Rptr. Cal.3d 123 [241 340, 345-346, S.Ct. L.Ed.2d (1972) 405 U.S. Florida [31 was somehow so 1056].) If means to suggest guilt phase defendant verdict, we unfair and influenced thereby penalty flawed that it was that contention as well. reject Death as Penalty Disproportionate

5. to his the death is

Defendant contends penalty disproportionate constitutional and thus violates the proscriptions crime and circumstances Const, Amends; Const., 8th & 14th Cal. (U.S. cruel and unusual punishment. I, the actual killer and 17.) found that he was jury We disagree. art. § of death of the “Accordingly, penalty he intended to kill. the imposition v. McLain (People Amendment.” on defendant does not violate the Eighth 97, 121, 569].) 757 P.2d (1988) 46 Cal.3d fn. 7 Cal.Rptr. Defendant points do not cast doubt on this The facts general proposition. of violent history “Beeler had no prior to the following aspects killing: did not know no Beeler crimes. There were to the eyewitnesses killing. entered the when he There was no evidence the armed victim. burglar returned home house. The Stevenson prosecution victim’s conceded that rifle, with his course of a and attacked the during burglary burglar Stevenson’s force to cause a Michael sufficient in the door of large gash

995 room. There was substantial evidence of a between the victim and struggle killer, the shot a the his and victim was once with owned handgun The even left victim’s brother. that the intruder prosecution acknowledged the without victim knowing victim’s house whether the was dead simply wounded.” of the

Defendant’s characterization evidence is flawed. The that assertion defendant had no of violent crime and It is false history is false misleading. because he and had robbed a woman. That is violence. previously raped Defendant’s is to the view extent it life misleading suggests law-abiding three because he had convictions. More if even we burglary important, facts, otherwise defendant’s characterization of the are these accept hardly demonstrate, circumstances that or even the death is suggest, penalty inap- Rather, tell a of a killer entered home of propriate. they story who the an innocent and it. The resident burglarized inadvertently returned stranger home, and, crime, the after was shot in back. interrupted the struggling, killer left the victim to die.

Defendant contends death also is “shocks and penalty inappropriate childhood, the conscience” in horrible light of his his brain his damage, efforts to for his and the that his provide family, fact most recent prior childhood, conviction nine old. We are not years Neither his persuaded. circumstance, his own nor his from family’s interlude crime renders dispro- portionate death for this penalty defendant’s this innocent victim killing under the circumstances of this case. We consider separately alleged 1001-1010), brain at but at this we note damage (post, pp. juncture need only (1) there is insufficient evidence in the record appeal support conclusion that defendant fact (2) does in suffer brain damage; organic evidence of brain would not render damage necessarily the death penalty cruel or unusual. v. 348 (People Poggi Cal.3d Cal.Rptr. [246 1082]; 753 P.2d cf. U.S. 330-335 Penry Lynaugh 256, 285-289, L.Ed.2d S.Ct. of a retarded mentally 1056] [Execution defendant is Amendment.].) categorically Eighth More- prohibited by over, we know from record nothing in this case of the specifics effect, alleged and what if damage it have had on any, might defendant’s mental state or actions.

6. Alleged Penalty Phase Instructional Errors Defendant asserts three errors in the instructions. He penalty jury phase first contends the trial court “left the incorrectly impression implied malice was sufficient to establish to kill” intent requisite felony- murder special circumstance. That contention is more considered in properly issues,

connection with the guilt circumstance special and we have {Ante, it in that rejected 982-986.) at part opinion. We turn pp. now to defendant’s two contentions. remaining

A. Alleged and aggravating mitigating confusion of factors

The trial court instructed the with the revision of jury 8.84.1, CALJIC No. which set forth the factors for to consider jury its rendering verdict. The instruction penalty included the of Penal language 190.3, (k) (hereafter Code section (k)), factor factor which directed the jury to consider other circumstance “[a]ny which extenuates of the the gravity crime even it is not a though legal excuse for the crime and any sympathetic. or other of the defendant’s aspect character or record that the defendant death, offers as a basis for a sentence less than whether or not related to the offense for which he (k) is trial. . . .” “The of factor language which, crime, refers to circumstances extenuate the not to gravity circumstances which enhance it.” v. 38 Cal.3d (People Boyd 782].) 700 P.2d Defendant does not Cal.Rptr. CALJIC No. object contends, however, 8.84.1. He the court erred an addi by giving tional instruction that “The list of factors which I have read to just you contains every factor which consider.” He aggravating you asserts this may statement instructed (k) that factor could be an wrongly jury aggravating factor as well as a factor. We are not mitigating persuaded.

Defendant the additional instruction requested to which he now objects. error, contends the if was therefore invited. Respondent any, We need not decide whether there was invited error because the instruction of which defendant now was not error. As defendant complains explained request instruction, it was a correct of ing statement the law to the extent it made clear the could consider those factors jury only identified in aggravating CALJIC No. 8.84.1. (People Boyd, 775.) 38 Cal.3d Nor can supra, the additional instruction be read (k) even to that factor reasonably suggest sure, could be considered anas factor. To be as the trial court aggravating noted, the instruction could have been proposed more written. “The clearly second sentence in defendant’s two is inaccurate proposed [instruction] words, which reads ‘In other the factors I have read to are the just you only factors consider in you may aggravation’—because there are factors in court, however, also there.” The deleted mitigation this defend sentence with ant’s consent. in the remainder of Nothing defendant’s additional instruction (k) could be taken to mean that factor could be fairly an factor. aggravating (k) The factor instruction itself negated such any The was meaning. jury (k) instructed that factor other “any circumstance which extenuates of the crime even it is not a gravity though legal excuse for the crime record that character or other of the defendant’s any sympathetic aspect death, than whether or a basis a sentence less as offers defendant (Italics added.) The language he is on trial.” offense for which related to the instruction, not, have led a juror the additional (k) could even with of factor of (k) as an factor. possibility view factor evidence aggravating defendant was further negated by giving now asserted confusion “The mitigating instruction that: absence any particular his proposed factor, the absence of must not consider is not an aggravating you factor short, In as a factor in aggravation.” the enumerated factors mitigating view, that a would would have to conclude juror defendant’s we accept consider evidence as aggravating believe that he or she was to extenuating *40 stan We as unrealistic. reject being proper evidence. that view is to “. . . whether dard for instructions scrutinizing ambiguous jury inquire or there is a reasonable likelihood that the misconstrued jury misapplied 564, 629, words . . . .” v. Clair 2 Cal.4th 663 Cal.Rptr.2d (People [7 705].) 828 P.2d likelihood in this case. There was no such on weighing B. instruction proposed Refusal of defendant’s in trial court’s refusal to deliver his Defendant asserts error proposed 10, stated, of life return a verdict instruction No. which “You jury may without the of even if the aggravating imprisonment possibility parole find to be factors find true factors you you outweigh mitigating [to be] for the defendant or true. This is so because or your sympathy compassion alone, factor, can, for his standing other family, any single mitigating a sentence of life without the parole.” justify imprisonment possibility in v. People The refusal was not error. We a similar argument rejected Edwards: “Defendant contends the court erred in his refusing request also factors substantially instruct the ‘If determine that the jury, you aggravating factors, of death or a may finding return a outweigh mitigating you added.) In (Italics in of life without the finding prison possibility parole.’ Boyde at p. 326, v. California S.Ct. [(1990)]. at pp. 494 U.S. 1195-1196], ^[370] at high pages court 376-377 upheld [108 an almost L.Ed.2d ‘shall the death instruction—that the diametrically opposite jury impose’ if it outweigh concluded that the circumstances penalty aggravating in the word ‘shall’ circumstances. We about mitigating misgivings expressed 544-545, [(1985)] and footnote v. Brown 40 Cal.3d at People pages We have instruct as was done this case. recommended that future courts v. Ed now was urged required.” (People never the instruction suggested wards, defendant in 842.) The instruction requested by 54 Cal.3d at supra, p. one we held was not case different from the materially present conclude the trial in Edwards. We adhere to the same view and required court refused the instruction. properly

7. Assorted. Claims Previously Rejected Defendant asserts six additional that he briefly acknowledges claims these issues rejected “have been recent of this Court.” Two of opinions to defendant’s brain and are our decision alleged damage, relate resolved (Post, 1001-1010.) these on that issue. at We reiterate our pp. rejection as follows: contentions

A. aliens Legal Defendant contends the trial court erred in his motion to include denying lawful resident in the We have held that resident aliens are jury aliens pool. not a is to be included in the cognizable group constitutionally required (Rubio Court 24 Cal.3d 98-100 jury pool. Superior Proc., 203, 595]; (a)(1) P.2d see also Code Civ. subd. Cal.Rptr. § States”].) who are not citizens of the United [disqualifying “[p]ersons B. Inter case proportionality

Defendant contends the absence of mechanism for intercase propor- *41 him the to show his sentence violates the review denies tionality opportunity (U.S. Amendment’s of cruel and unusual Eighth proscription punishment. Const., Amend.) review is not 8th We have held that such consistently Fierro, 173, 253.) 1 Cal.4th mandated. v. (People supra, constitutionally C. 1978 statute sentencing the statute is unconstitutional sentencing

Defendant contends 1978 capital (1) the aggravat- it lacks the identification of following safeguards: because factors, (2) the findings regarding aggravat- and written ing mitigating jury factors, (3) a burden of on the prosecution and ing mitigating proof doubt, a reasonable and jury establish all factors aggravating beyond each of these the factors. We have unanimity regarding aggravating rejected 1210, (1991) 52 Cal.3d 1265 contentions. v. (People Pensinger [278 640, of factors not People 805 P.2d required]; Cal.Rptr. 899] [identification 692, P.2d Cal.3d 809 Cox 692 Cal.Rptr. 351] [no [280 or unanimity, proof constitutional of written findings, jury requirement doubt].) a reasonable beyond juvenile

D. Destruction Beeler’s records of the dismissing contends the by Defendant trial court erred of defend destruction circumstance as a sanction for the allegation special of that in a resident ant’s records Nevada. Defendant had been juvenile months nine Youth Camp approximately Mountain state’s Spring winter the of that approximately made an offer proof Defendant and 1968. were intentionally camp records from all of defendant’s the and sealing statute that seemed require a Nevada burned. Despite of 24 years, reached age after the subject juvenile of all records retention (The at that time. the records of destroying had authority policy the youth lawful.) Accord- the destruction was whether to this action disputed parties defendant, mitigating would have provided records destroyed ing childhood, and perhaps abused background, his troubled regarding evidence other circumstances. motion, follows: versus as reasoning “People

The trial court denied 1361], 615 P.2d tells us [(1980)] Cal.Rptr. Zamora 28 Cal.3d remedies, if any, a dismissal. of evidence requires not every suppression destruction proper of a fair trial. Lawful need assure the defendant only in a result malicious destruction may Illegal no sanctions. require evidence sup on the materiality dismissal. The sanction depends Finally, the evidence materiality suppressed. or degree pressed, and future future cases of the sanctions upon court must consider the impact sanctions, that the benefit outweigh any if must any, conduct. The police time, court must same At the from gains suppression. prosecution and a sanction prevents in law enforcement consider the interest public In this trial, carefully. should be considered punishment, appropriate the destruc attending no conduct destruction of records has sinister case the phase dismissing penalty evil can be cured by tion. No governmental Court were destroyed Mountain Juvenile The records of Spring proceedings. least as indicated by at in an effort to maintain confidentiality, burning hazard. It is witness, to be a fire after were declared one immediately they *42 any of this defendant give of files that the destruction juvenile improbable the lawful to the It also appears whatsoever prosecution. advantage commit records of defendant’s juvenile controlling authorities [Nevada] custom, Mountain, the bare have modified habit and by ment at Spring construed in out-of-state authorities properly written law that the [Nevada] 24 at to also authorize sealing transcripts age the language authorizing This confidentiality to maintain permanently. destruction of such records court, therefore, records the defendant’s juvenile construes the law involving that a statute never contemplated as follows: The framers of the [Nevada] future, would, murder in another in the do a capital defendant some 20 years the—for by records should be maintained state and did not intend that their later, access to such 20 have the defendant’s benefit so that he might, years authorities evidence. custom and practice [Nevada] mitigating Through have, have, fact, all the defendant’s destroy could would in did lawfully Therefore, de records were whatever records near of 24. presumably age are earlier, sanctions nor they to the issue are irrelevant stroyed totally 1000

material. This court now rules there shall be no dismissal of the penalty nor is the defendant entitled to other sanction.” phase proceedings, simple We with the trial court’s this issue for one agree disposition reason. of whether the destruction the Nevada authorities was Regardless by law, under that state’s at the time those records were proper destroyed, action, which 20 before defendant’s trial this approximately years neither the records themselves nor their destruction had any cognizable nexus whatsoever with the case. As above present explained ante, (see 976), connection with another of defendant’s claims the federal p. of due on the state to constitutional guarantee process imposes duty such “. . . evidence that be a signifi preserve only might expected play cant role in the defense. To meet this standard of constitutional suspect’s [97], [(1976)] see United States v. 427 U.S. at 109-110 Agurs materiality, [49 353-354, 342, 2392], evidence must . . . an L.Ed.2d S.Ct. possess value that was before the evidence was destroyed exculpatory apparent 479, 413, 422], (Trombetta, 467 U.S. L.Ed.2d fn. . . . .” 488-489 supra, [81 1194, 569, omitted; Cal.3d Cal.Rptr. v. Johnson People [255 criminal 1047].) defendant can show bad faith on 767 P.2d “[U]nless does not useful evidence of the failure to part police, preserve potentially (Arizona v. Youngblood, supra, a denial of due of law.” process constitute 281, 51, of bad 289].) “The or absence 488 U.S. L.Ed.2d presence [102 must necessarily of the Due Process Clause faith police purposes at value of the evidence on the knowledge exculpatory turn police’s * L.Ed.2d at (Id., at fn. p. the time it was lost or destroyed.” p. records in 288].) these to the juvenile ques Applying principles tion, the trial conduct. As suggested by we find no constitutionally improper court, officials could records were the Nevada destroyed, when the contain some to foresee the records might have been reasonably expected evidence 20 later. years mitigating Sentencing Probation Report

8. Trial Court’s Reading of Before hear scheduled to the trial court was On December Penal motions, under the automatic application several including post-trial The court 190.4, of verdict. (e) subdivision for modification Code section *43 received, and stated, the Probation has read and considered court “[The] of death as well as a commitment and various letters Report Sentencing error. contends this was prejudicial Defendant submitted by People.” is to defer reading “the Defendant is correct that preferable procedure for modifica on the automatic application until after ruling report probation 262, 287 Cal.Rptr. 50 Cal.3d v. Lewis [266 tion of verdict.” (People 959, 1012 834, 892]; (1992) 3 Cal.4th [13 v. Hill People 786 P.2d

1001 “ 475, limited 984].) ‘In is making ruling judge 839 P.2d Cal.Rptr.2d v. (People that was before the penalty jury.’ to consideration of the evidence 495, 1, 388].) The 825 P.2d [(1992)] 2 Cal.4th 78 Cal.Rptr.2d Visciotti [5 Hill, course, v. into evidence.” (People was not admitted report, probation 1013.) 3 Cal.4th at p. supra, contrary contention of error. “Absent

We nevertheless defendant’s reject record, influenced in the we assume the trial court was not indication Hill, at Cal.4th p. v. supra, on the ruling (People report application.” on the 1013.) The record in this case shows the trial court relied only evidence, Moreover, carefully not the or letters. the court probation report evidence, circum- and mitigating reviewed the including aggravating concluded, evidence, and all of the the court’s “Considering personal stances doubt, assessment is that the factors in all reasonable aggravation, beyond facts, hold, On these we those overwhelmingly outweigh mitigation.” error, v. “There was no no Livaditis certainly prejudice.” (People Hill, 759, 72, 297]; supra, Cal.4th 831 P.2d People Cal.Rptr.2d 959, 1013.) Cal.4th Brain Relating Alleged Organic Damage

Issues 1. Factual Brain Background Damage Allegation brain is as background regarding alleged damage dispute follows: The returned its verdict on 1988. jury penalty July Sentencing was scheduled for counsel obtained a 1988. Defendant’s September continuance of that until November On that date counsel hearing 1988. continuance, another were involved in requested they heavily explaining another case. Counsel also stated:

“Also there is a matter Mr. He my which Beeler has brought attention[.] last week learned the in his case of only significance significance possible received, a head he he was injury subsequent symptoms apparently treated for both in I think that. investigate we should prison locally.

“The Court: He didn’t know when he had a head he had a head injury injury?

“Mr. Standifer: He so he didn’t know after it apparently unconscious it, about but he all did not know the and did not it to report of it significance us.

“The Court: motion for in the seems to be addressed Certainly something new trial.

“Mr. Standifer: That’s exactly right.

“The Court: Sure. it,

“Mr. And about Standifer: that is that I—we didn’t know point [the] it Mr. Beeler didn’t tell us about it because he learned that only recently be might significant.”

The for a continuance until December 1988. court granted request date, had they On that the court held an in camera Counsel stated hearing. blackouts, but defendant’s of a few isolated investigated prior report frequent defendant had told them earlier that he had begun suffering just day and of counsel blackouts. Defendant raised an issue of ineffective assistance an not received “wished to have another because he had lawyer appointed [sz'c, EKG EEG and a CAT scan [computerized (electroencephalogram)] had doctors axial Counsel we “[although tomography].” explained had, to this issues based on the information we it was our judgment address that defendant that those tests were not Counsel required. explained point attorney. wanted the court to relieve his counsel or to an additional appoint “CAT Scan and EEG Defendant stated that he wanted to be tested with a denied the motion to I feel there is The court something wrong.” because 27, 1989, until January counsel but continued sentencing again, relieve brain counsel could further investigate possibility organic so that damage. 27, 1989, counsel’s request

On the court defense January granted 24, 1989, to until March days, another continuance of approximately with defendant’s brain testing. proceed 24, 1989, another continuance.

On March defense counsel requested yet a PET scan Counsel that defendant had been given (positron represented before that counsel had received two emission only days tomography) that Mr. Beeler may this “. . . a from a hearing physician indicating report that the motion for new trial and have brain and I’m damage asking organic evidence to be continued to 5.” Counsel no sentencing May presented Rather, has he that “He only substantiate his claim. explained doctor] [the indicate his me a an oral and some documents which given report, report, I those and need to have him finalize conclusions brain regarding damage a results and I need to have those results analyzed conclusions and I that amount of is necessary forensic and believe that time neurologist, concluded, “I but the court these tasks.” complete prosecutor objected, the motion for think if I order forward with new trial simply they go discretion even it would be an abuse of the court’s at this time sentencing

1003 it has. So over the objection People, it’s taken us as as long though for I’m it’s a hard and fast date the continuance. grants hoping court notify . I’m to that the suggest prosecutor . . sentencing. going [¶] words, I allow on the 5th In other May]. victims that we will go probably [of will that we forward go the continuance to this date with expectation with with the courtroom filled So let’s not come to the courtroom again day. and ask for a continuance again.” victims almost 10 months since the court’s and the of

Despite warning passing 5, continuances), counsel at the May 8 months of defense verdict (including continuance, 1989, this time on the ground still another hearing requested to evaluate defendant’s needed for a defense expert that more time was his own dec- condition. One of defendant’s counsel submitted neurological had his efforts to obtain an of various tests that analysis laration forth setting him of done and stated that some doctors had told problems been Counsel, however, no of testimony any expert defendant’s brain. presented for The court denied this even a neurological problem. request suggesting continuance, for new trial and the and the motion deny another proceeded the death sentence. Defendant the verdict and application modify imposed for a sixth contin- (1) the contends the trial court erred by denying: request uance, trial, (2) (3) modify motion for new the application contention, additional facts as We shall each forth setting verdict. address necessary. a

2. Denial Further Continuance of “Continuances shall be a showing good granted only upon 1050, Code, contin (Pen. (e).) “The or denial cause.” subd. granting § discretion of the trial uance trial rests within the sound during traditionally 268, 1132, (1992) v. 1 Cal.4th 1171 Cal.Rptr.2d Howard judge.” (People [5 an abuse of 1315].) 824 P.2d “The is on to establish burden defendant] [the 498, discretion . . . .” v. Rhines judicial (People Cal.App.3d 478].) order of denial is seldom attacked.” successfully Cal.Rptr. [182 “[A]n Trial, 2502, 1989) (5 (2d Witkin & Cal. Criminal Law ed. p. Epstein, § 3002.) We conclude the trial court did not abuse its discretion denying 5, 1989, defendant’s further continuance. May request An factor court is whether a continuance for a trial to consider important (Owens would be useful. Court 28 Cal.3d Superior 1098].) that to 617 P.2d Defendant demonstrate Cal.Rptr. acknowledges the usefulness of a continuance a must show both party materiality the evidence the continuance and that such evidence could necessitating case, be obtained within a reasonable time. In this defendant’s counsel record as of failed to show either element on the May 1989. First, it, counsel’s declaration was all the court had before declara- *46 newly tion was most It stated that the so-called equivocal. repeatedly evidence and defend- “suggests” discovered relevant” with “appears problems Moreover, that (Italics added.) ant’s mental state. counsel seemed to assume material of some of brain would be relevant to a type organic damage proof In- in that issue. Counsel’s declaration permitted only speculation regard. deed, the never even indication whether counsel provided any regarding Second, before, there was sustained or after the trial. alleged damage during, evidence, material, be obtained was no the even if could showing adequate time. The and continuances permit within a reasonable lengthy delays prior the additional time would have yielded serious doubt whether requested the re- evidence. The declaration also offered no assurance meaningful sufficient, doctor continuance would be that "... this stating only quested needed early August believes that he can conclude medical work by continuance, added.) in its (Italics In court noted denying this year.” remarks, failure to final that “I have made conclusions from simply your that counsel failed to establish to the court. . . .” We anything agree present have useful. We on the record that a further continuance would been hold that defendant has failed to show the abused its therefore court trial 5, 1989, continuance when it denied his for a further May request discretion that he have brain might damage to continue to explore possibility be relevant. might

3. New Trial Motion for contends the court should have his motion granted

Defendant trial of severe for a trial based on the discovered evidence new allegedly newly based on brain “In on a motion for new trial ruling organic damage. evidence, factors: discovered the trial court considers following newly discovered; evidence, be newly “T. That the and not its merely materiality, 3. That it be such as to 2. That the evidence be not cumulative merely; cause; 4. That the party render a different result on a retrial probable it at the not with reasonable have discovered and produced could diligence trial; 5. be shown the best evidence of which case and That these facts ’ ” 312, (1993) 5 Cal.4th Delgado Cal.Rptr.2d admits.” v. (People [19 shown, 811].) discretion is 851 P.2d a clear abuse of “[U]nless v. on (People denial of the motion will not be interfered with appeal.” 156,178-179 467, 545 P.2d 843]. McDaniel 16 Cal.3d Cal.Rptr. [127 to show We find no abuse of discretion because defendant failed trial, be on retrial. The motion for new a different result would probable must, retrial, the issue of a different outcome on including probable time, course, before be decided on the evidence the court at that actually above, of evidence that be As all the might developed. the basis explained it declaration vague equivocal court had before was counsel’s extremely it It was so tenuous that results of the brain testing. regarding alleged . even likely. outcome remotely did not make a different clearly probable, trial. An that is “so This to warrant a new affidavit insufficient plainly new the denial a motion for trial. (People vague general” supports P. denial of new trial Kloss [affirming Cal. 459] case].) a murder even

Counsel’s declaration did not comport statutory requirement states, trial Code subdivision 8 “. . . for a new motion. Penal section *47 of a motion for new trial is made the discovered ground newly When a upon thereof, evidence, in the the defendant must at the produce hearing, support the whom such evidence is to be by expected given, witnesses of affidavits affidavits, such the court may if time is the defendant procure required by as, the for of time under all the the motion such length of hearing postpone case, Defendant (Italics added.) of seem circumstances the reasonable.” may could affidavit who have presented did not witness produce single by any instead credible evidence of his brain organic damage, submitting alleged the motion for the “It is that declaration of counsel. to be noted only alleged evidence, trial, made on the of discovered ground newly a new which was not an affidavit of a whom discovered was witness supported by by newly Code, (See 1181.) was to Pen. The was made evidence be affidavit given. § It thus there was not a sufficient for defendant. by attorney appears evidence, and basis for a new trial on the of discovered ground newly legal v. (People the court would have been in motion.” justified denying 279, 57]; (1962) v. Cal.Rptr. People 282-283 Ethridge Cal.App.2d [22 459, (1893) affidavit the proper Fice 97 Cal. P. by [32 531] [no here, Penal witness].) was insufficient under Likewise counsel’s declaration different also to show probable Code section 1181. It was insufficient outcome on retrial. did its discretion in denying

We conclude the trial court not abuse for a new on the discovered evidence newly motion trial based allegedly brain damage. Motion Neurological

4. Consideration Evidence Modification on his the trial erred in action taking any Defendant contends court 190.4, (e), for Penal subdivision automatic under Code section application He as follows: “Where relevant modification verdict. reasons penalty court, to the trial evidence not heard is made available by mitigation jury intended the section trial court cannot check perform procedural relevant (1) mitigating motion without either ignoring 190.4 improperly evidence; or evidence not to the improperly considering presented jury. words, it, Either choice is error.” In other as defendant have the trial would no neither has court could nor grant deny argument application. sure, in shall merit. To be on the the trial court ruling application, Code, 190.4, (e); (Pen. subd. consider evidence not to the presented jury. § Lewis, true, however, 287.) is defend 50 Cal.3d Not People supra, ant’s correlative that the trial court had to consider the “evidence.” premise Cal.Rptr. He relies on v. Robertson 48 Cal.3d 53-55 People 1109], that, in automatic 767 P.2d for the on the ruling proposition modification, exclude relevant for the trial court should not application Robertson, however, evidence from consideration. dealt only mitigating case, no evidence evidence that had been to the In the jury. presented present was no brain to the There alleged damage jury. presented strained evidence for the court to consider. Under defendant’s regard view, trial— and novel material to the court’s attention after brought if, case, even as in this it is more than a nothing vague speculative a trial declaration of counsel—would be “evidence” that would preclude court from one or on an automatic under the other ruling way application 190.4, (e). section There is no subdivision authority precedent logic *48 We that view. it. reject Finding

5. Brain on Circumstance Alleged Damage Special Effect of brain undermines Defendant contends the evidence of his alleged damage (This intent to kill. circumstance that he had finding specific special intent.) of a As case is to the now-abandoned subject requirement specific on the in connection with defendant’s other claims based we have explained To the damage. brain there was no evidence at trial of such damage, alleged counsel, we he relies on the declaration of his reject extent post-trial doubt on the well. The contention this information casts claim as post-trial is, effect, that a different of way arguing circumstance just special We have defendant’s motion for new trial should have been granted. rejected contention, is exceedingly vague that counsel’s declaration explaining to the level of being Without whether it even rises general. deciding that the of can conclude confidently admissible evidence brain we damage, of defendant’s does not in undermine the jury’s finding declaration any way best, doctor be able might intent. At the declaration that a suggests specific have affected have brain might damage might to conclude that defendant close to to kill. This is not being his to form intent ability specific sufficient to raise doubt. Assistance Counsel

6. of Ineffective to effective counsel Defendant contends his constitutional right his neurological was violated his counsel's failure to sooner by investigate in two he contends counsel were inadequate condition. More specifically, to investigate He first “were ineffective for they failing contends respects. that, trial “once Beeler’s health trial.” He also asserts during neurological counsel learned that Beeler suffered from a severe neurological impairment, impair counsel evidence of this was ineffective in failing present expert 5, 1989,” for a further ment to the when it denied his request court May entitlement continuance and his motion for new trial. “To establish defendant of counsel the burden is on the to relief ineffective assistance of to act in the manner to be expected to show trial counsel failed (2) it is as advocates diligent reasonably competent attorneys acting have re determination would that a more favorable reasonably probable Lewis, supra, sulted in the absence of counsel’s failings.” (People 262, 288.) Cal.3d

A. trial Investigation during contends the record “. . . is with references

Defendant replete that counsel had sufficient indications of brain damage demonstrating warrant an his at least time investigation neurological health] [of Beeler’s trial.” Defendant to the of two testimony penalty phase points defendant’s witnesses that he claims should have this triggered penalty phase We are not persuaded. inquiry. Walker,

Dr. Lenore a forensic testified defendant suffered psychologist, disassociation, i.e., of what he from events loss or unawareness memory Wells, “. . . Dr. another also testified doing. Stephen psychologist, *49 there to be a much an element of what is called dissociation appears very consciousness, a awareness of involving memory person is—person’s [szc] he what is The did not that they any doing.” psychologists testify suspected brain in the record a conclusion that organic damage. Nothing supports evidence of loss and disassociation should have alerted counsel to a memory need for for brain Nor did defendant’s neurological testing organic damage. own that such needed. was psychologists testify testing that,

Dr. Walker also testified when defendant was a child he was sub- emotional, to terrible his A jected physical, stepmother. sexual abuse by likewise, childhood testified other an neighbor things recounting among incident in which defendant was down a of stairs. Defendant pushed flight to his of mental health contends this points “long history problems” should have some history into a triggered investigation neurological possible link to those in the record the conclusion problems. Again, nothing supports that defendant’s terrible childhood and an infer- prior diagnoses supported ence of brain that would warrant organic damage testing. neurological short, that the

In record does not defendant’s contention support testing. counsel to seek neurological evidence at trial should have caused his B. trial Investigation after after the verdict also counsel’s penalty

Defendant challenges performance returned, in an expert their “. . . lack of diligence procuring was asserting conten his brain This damage.” the court about organic witness enlighten does suffer from organic its that defendant in tion assumes as premise fact we that inference. As on does appeal support brain record damage. on with other contentions based in detail above connection have explained not a (ante, 1003-1005), the record contains at damage pp. brain alleged that defendant has brain any by any competent expert declaration single in that is his counsel’s regard kind. The information only damage counsel could offer com a sixth continuance. Whether declaration seeking Code, (Evid. brain is most doubtful. damage testimony regarding petent discussion, But, assume, decla that counsel’s 720.) even if we solely § evidence, the declaration itself as being ration could be considered suffers not establish that defendant at best. The record does tenuous hearsay that counsel were therefore cannot conclude brain We damage. from organic the court an witness to enlighten not “. . . expert ineffective for procuring does not Because the record brain damage.” his organic about [defendant’s] brain from organic damage, in fact suffers establish that defendant an opinion counsel should have obtained expert’s of whether his question raised, all, if at that must be is a about that brain damage question conclude We cannot appeal for writ of habeas corpus. petition that is not a “fact” regarding should have obtained expert opinion counsel be a fact. in the record to demonstrated aware of defendant’s counsel became means to contend defendant

Perhaps and thus blackouts of defendant’s alleged learned brain when damage they this brain damage. Again, obtained expert opinion regarding should have if true— of the blackouts—even much. The occurrence view assumes too Likewise, knowledge counsel’s establish brain damage. does not *50 counsel knew of brain damage. did not mean that blackouts as defendant, be construed may to his favorably argument Viewed most blackouts, should more of defendant’s counsel when learned they follows: were blackouts obtained whether expert opinion regarding have promptly however, the argument brain Even in this damage. light, caused by organic of black- claim First, with the that a defendant’s it begins assumption fails. well, a counsel, duty on as and the trial court outs necessarily imposes defendant whether neurological obtain to determine testing sophisticated is insufficient to such a broad and support has brain This record damage. rule. One can foresee its easily consequences. Merely by claiming inflexible them, defendant would be entitled to brain after trial a blackout or series of case, is not the as this take months might, complete. Delay testing and even if concern. Such not establish brain testing might any damage, only is were whether it would be of any legal consequence some damage proven, Second, at best. defendant’s view is also factually entirely speculative blackouts, more, because it assumes that a without neces- flawed person’s fails, create a medical need for Defendant how- neurological testing. sarily ever, to establish on the record such medical any protocol. however, that, caution,

We in an abundance of acknowledge, perhaps and counsel undertook trial court this case authorized neurological testing, undertaken, that, to obtain that Defendant assumes once the task was testing. had a the matter. for the counsel duty diligently pursue Only purpose rule, will discussion and without broad we stating any accept assump- record, however, that tion as correct. We cannot conclude from this being counsel were not so would us to in detail as diligent. Doing require speculate to the circumstances faced actions. We decline to so counsel their speculate. reason, from

For the same defendant fails to establish any prejudice failures, counsel’s trial. The whether or after alleged dining faulty premise of defendant’s is also its conclusion. His is that he argument faulty premise suffers severe brain and his conclusion is that he was damage, prejudiced because the was not told of the brain This must fail argument jury damage. because defendant has failed to establish brain on the appeal damage best, record. At all we know characterization from the record is his counsel’s of what the brain show. That is not a sufficient basis on which testing might we can conclude that “it is that a more favorable reasonably probable determination would have resulted in the absence of counsel’s failings.” Lewis, 288.) (People 50 Cal.3d at To the we cannot supra, p. contrary, effect, make an informed if decision what brain- regarding any, alleged evidence have had on the we do not know damage might because what jury show, indeed, that evidence would whether would it show brain damage. “evidence” of brain in the record is counsel’s only damage appellate declaration. We doubt defendant means to that the verdict suggest jury’s would have been different if had been with counsel’s decla- they provided If, however, contention, ration. that is his It seems obvious that we it. reject would be most his counsel’s statements jury skeptical regarding lay client’s condition. Such from an neurological information would not be *51 Indeed, unbiased source. Nor would it be from a source. knowledgeable (Evid. even be to is doubtful. whether counsel would competent testify Code, 720.) §

Moreover, counsel, we the fact that the information from from apart of information in counsel’s cannot conclude the substance contained made a more favorable reasonably probable. declaration would have result not establish that have record does explained, sufficiently As we already one that suffers from much less any malady, might defendant neurological We are to how a have jury might affected verdict. asked speculate have it evidence—if was evidence—of highly possible reacted speculative in such double engage We decline damage. speculation. brain was denied In we cannot conclude on defendant summary, appeal The of there was ineffec- effective assistance of counsel. whether question habeas tive assistance counsel is left to a corpus proceeding. properly

Disposition in its The is affirmed judgment entirety. I concurin the as to

MOSK, J., judgment Concurring Dissenting. review, I have After found sentence. eligibility, noncapital death guilt, error defect. no reversible or other dissent, however, to the of death. from the as sentence judgment

I that, Juror relating Kennard matter handling I Justice agree did, error under the it committed prejudicial as court superior Coley I United States Constitution. her join persuasive analysis. is view that reversal without my required

I write to express separately to the charter. federal regard law. Such conclu- committed error under California court superior

sion is in Justice Kennard’s discussion. implicit I section 13 is in and of itself. do overlook

This error reversible aside, be set “No shall or judgment VI of the California Constitution: article cause, of the of misdirection or jury, trial granted, any ground new evidence, as to or for error any rejection any admission improper unless, matter of or for error as to any procedure, matter of pleading, evidence, cause, the court including the an examination of the entire after resulted in a of has complained be of error shall opinion

1011 VI, 13, however, Article section effectively miscarriage justice.” 889 In re 9 Cal.4th abrogated Carpenter Cal.Rptr.2d There, of this court reversed without P.2d a bare majority judgment 985]. resulted whether a had expressing any opinion “miscarriage justice” I cause, evidence.” even indeed without “entire examining including follow that here. precedent reasons, of death.

For the I would reverse the foregoing judgment in the KENNARD, J., majority’s I concur Concurring Dissenting. as to but affirmance and the circumstance judgment guilt special as to the of death. penalty case,

The father of Juror Michael one of the in this died Coley, jurors deliberations over whether defendant Beeler should receive jury’s during and, the death The trial court then met ex with Juror Coley penalty. parte without into his emotional condition or admonition to inquiring giving any verdict, a rushed or guard against considered directed Juror poorly Coley resume deliberations after the death of his father under a immediately one-hour deadline. holds that the trial court did not err and that majority the verdict of returned death under these circumstances is sound. jury

Justice and I Baxter both that the trial court erred. Unlike Justice agree Baxter, however, I am of the view that we must conclude on this record that Therefore, the error was I would not this prejudicial. leave issue resolu- tion on habeas but would resolve it on corpus, and reverse the appeal as to the of death. judgment penalty

I On a the start of the third Tuesday morning, day jury’s penalty deliberations, father, Juror informed phase the court clerk that his with Coley whom he had a “close had died and that he needed to relationship,” just leave the state that afternoon on a to attend his father’s funeral. p.m. flight The court met with Juror briefly around 10 a.m. Defendant was not Coley nor was his counsel or the present, Both were prosecutor. attorneys together a.m., at another courthouse and had at which time telephoned court at 9 the bailiff told them of Juror Coley’s the court’s situation but not of plans talk to Juror a.m., When both Coley. the court at attorneys called 9:40 again the bailiff informed them that Juror to court coming would be at Coley a.m., a.m. Counsel proceeded directly court 10:20 after the and arrived at court had concluded its ex parte with Juror meeting Coley.

In its ex parte meeting Juror first discussed the trial court Coley, matter with Juror off Coley their summarized record. The court then

discussion on Without into Juror the record. emotional inquiring Coley’s admonitions, state or him or the other the court instructed jurors any giving hour, him to an at resume deliberations with the for jury approximately which time the days the would until six adjourn following Monday, jury later. arrived, the defense

Deliberations resumed. When counsel and defendant to to objected Coley deliberations and moved Juror continuing replace later, less an the A alternate The trial court denied short time juror. request. deliberations, had hour it had the it than an after resumed announced jury the reached a verdict. The trial court whether jury inquired panel or the had affected the death of Juror father Coley’s by verdict been imminent Juror The deadline posed by Coley’s departure. jury foreperson no returned answered “no” to both other questions; juror responded. jury a verdict of death.

II the to the trial court’s conduct analyzes directing jury The majority manner it did the death of Juror Coley’s continue deliberations in the after 1089, if a of Penal section which provides father in terms Code solely is found to be unable to . cause shown to the court good . . juror “upon good his or . and cause requests discharge appears . . perform duty, therefor, . . . .” More fundamen- the order him be may discharged court however, also the trial court’s are implicated by constitutional rights, tal course of action. to decide the case solely

“Due means and jury capable willing process it, ever the and a trial watchful judge prevent prejudicial evidence before of such occurrences when they occurrences and determine effect 209, 78, 86, U.S. 217 L.Ed.2d (Smith (1982) v. 455 Phillips [71 happen.” 940], added.) At as well as the phase guilt 102 S.Ct. italics phase penalty “ indifferent”; trial, its and ‘verdict “must stand jury impartial a capital ” trial,’ and not be may at the developed must be based evidence upon Illinois (Morgan v. influenced other external consideration. by any 492, 501-502, 2222, 112 2228- 719, S.Ct. 504 L.Ed.2d U.S. 726-728 [119 Indeed, ‘need for reliabil- is a 2229].) “heightened at the there penalty phase ” (Caldwell determination is that death ity appropriate punishment’ 246, 231, 320, 105 S.Ct. L.Ed.2d v. All U.S. 340 Mississippi [86 discre- sentencing reliable exercise 2633]), “the responsible 239]). (id. at at tion” 329 L.Ed.2d p. p. [86 were Here, of Juror father Coley’s the death surrounding events v. U.S. (Smith Phillips, supra, occurrences.” “prejudicial potentially however, 86].) The trial court’s formulated L.Ed.2d response, [71 counsel, his without the defendant and knowledge aggravated presence the risk would the case on the “solely that the not decide unacceptably jury evidence it” manner ‘need for (ibid.) before in a “heightened satisfying ” (Caldwell L.Ed.2d Mississippi, 472 U.S. reliability’ supra, 231, 246]) in capital sentencing. *54 fact, more,

The trial was not court’s error here the mere without that a Rather, to of juror continued sit after the death an immediate member. family the error (1) has three The trial court’s that aspects: requirement Juror Coley resume on the of deliberations his father’s death immediately morning without into or a record Juror making of emotional inquiring Coley’s condition without him or the and other admonition not to giving jurors any (2) rush their deliberations. The court’s that resume requirement jury for an hour if it deliberations under condition that did not reach a verdict within that brief time it would have to return later. schedule days six This created a risk that and or Juror the other great Coley jurors, unconsciously otherwise, would hasten their deliberations and uncertainties suppress any to reach a verdict within an that Juror could be disagreements hour so Coley on his so and that would not have to a week later to resume way return they (3) The in these an ex deliberations. court’s action decisions by reaching and parte unrecorded with Juror partially Coley, denying proceeding thereby defendant his and counsel an to and the court’s opportunity participate, refusal to it reconsider the course had once defendant and his adopted counsel did and appear object. not who suffers a

Although every juror death in will need to be family the trial court’s mode of here discharged, failed to ensure that proceeding Juror and the other Coley would return an unhurried that jurors verdict of and product composed deliberate reflection. As the and concurring observes, dissenting by Justice Baxter courts have opinion aptly long recog- nized the human that the death of an can reality immediate member family calm, have a effect on and can and profound jurors disrupt dispassionate, focused deliberation must to bear on sworn task they bring their of deciding or, here, as guilt whether a defendant to should be death. in Accordingly, put this case there was a risk that the great emotional trauma of the death of his father deliberations, would cloud Juror well it as as a risk that would Coley’s also distract other jurors. court, however,

The trial not did Juror into emotional inquire Coley’s condition. It did not ask him whether he was distressed or whether he felt of capable deliberations did resuming It Juror immediately. give Coley or the other any admonitions ensure jurors that deliberations continued in calm, unhurried manner.

1014

Instead, the trial court exacerbated the potential prejudice by directing Juror to resume deliberations with the Coley other under the jurors pressure a verdict within an hour to avoid returning to return a week having later. That deadline created a incentive for the strong reach a verdict jurors within that brief however much period, they might attempt put incentive out of their minds and deliberate fully conscientiously. should not jurors have been in that (See placed compromising position. 342, 346, v. Hutchinson People Cal.2d Cal.Rptr. [78 P.2d remarks at the end of a if day 132] [bailiff’s deliberations jury did not reach “ verdict a few minutes it would be locked were up overnight ”]; to have influenced

‘likely the verdict v. Carter improperly’ People 68 Cal.2d 442 P.2d Cal.Rptr. 353] [conviction reversed; returned verdict 10 minutes after jury told that if there was being no verdict within a half-hour the be would locked for the court jury up night; looked to whether “the independent judgment jury displaced] [was favor of considerations of compromise People Crowley expediency”]; *55 71, (1950) reversed; 101 78-79 P.2d Cal.App.2d jury, [224 748] [conviction told at 4:30 if being that no verdict was reached 5 upon p.m. the by p.m. jury would be locked for the returned a verdict 5 up night, at p.m.].) the trial court acted without the

Finally, or of participation presence counsel or defendant. This ex further parte proceeding contributed to the error, for had counsel and defendant been when the court present to spoke Juror there doubtless Coley, would have been into Juror inquiry Coley’s emotional condition and deliberations for the objection resuming brief before Juror had to period Defense counsel did raise these Coley depart. informed of what the objections immediately trial court had upon being done, before the returned its verdict. jury defendant is the to be at guaranteed right present any stage

“[A] criminal that is critical to its outcome if his would proceeding presence contribute to the (1987) fairness of the v. (Kentucky Stincer 482 procedure.” 730, 631, 647, U.S. 745 2658].) L.Ed.2d 107 S.Ct. In due particular, [96 and the to counsel the defendant the be process right give right present with counsel at communications of between the court and substance a juror. 731, v. (People Wright 52 Cal.3d 802 402 P.2d Cal.Rptr. [276 “ 221].) ‘This rule ex is based on the [against parte precept communications] that a defendant should be afforded an to evaluate the adequate opportunity of a propriety proposed judicial in order to an pose objection response a suggest different case.’ reply more the defendant’s favorable to [Cita- (Ibid.) tions.]”

Here, had would defendant and have they his been present, counsel contributed to by the deliberations ensuring probing fairness of the jury’s of in manner the emotionally deliberating whether Juror was Coley capable the and certain by by making California federal Constitutions and required This is deadline. that the was not to the external of a subject jury pressure the once counsel shown the defense did objections questions pose Thus, in court. the defendant arrived trial court’s ex parte proceeding was error.

Because “such communications . . federal consti parte] . constitute [ex error,” from tutional is unless the establish reversal can required prosecution v. the is record the error “harmless a reasonable doubt.” beyond (People 403; at see supra, Cal.3d also 51 Cal.3d Wright, p. People Whitt Kennard, P.2d (conc. & dis. of opn. Cal.Rptr. 849] J.).) The has not carried its of burden error harmless prosecution showing a reasonable doubt on the record before us.1 beyond excused, Nor can trial court’s decision to ex proceed parte be as do, brief, that it was majority attempts ground merely routine administrative communication. Juror where could Coley asking was he of how to get coffee or reimbursed for He was cup get mileage. informing an court of event had emotionally disturbing occurred and his just did, need to leave the In immediately. state as it trial court made acting decision, defense, an ex without the as to parte whether participation Juror Coley deliberations and whether delibera- capable continuing tions should resume under deadline Juror presented by Coley’s impend- *56 ing These are not mere departure. administrative decisions.

III The to majority misguidedly attempts its conclusion that error support no occurred the by on record’s to relying silences as Juror Coley’s emotional by 932, 1 The two cases majority, People relied on the v. Cal.3d Ashmus 986-987 Cal.Rptr.2d 820 P.2d and In Cal.Rptr. 214] re Mendes 23 Cal.3d 852 [153 318], 592 P.2d acting its conclusion that the did not parte trial court err in ex are not contrary. to the Both involved discharge cases the a hearing juror trial court’s without of a juror’s after a in the death family. discharge immediate a parte possibly The ex impaired juror Mendes, as occurred in and Ashmus compliance whether in or not Penal Code section whether not the juror any is actually impaired, moots constitutional question any because it possibility removes juror judgment in impaired that an would sit Any the proceeding case. error in to discharge absence of juror the the counsel and the defendant could not harm right the jury, presence defendant’s to nor could the impartial an the defendant and his counsel have impartiality jury, the further since the increased the possibly juror contrast, impaired longer was no parte panel. ex this By decision in case a possibly impaired to retain juror (not parte to further ex decision to have mention the jury deadline) deliberate under denying was not defendant his similarly It risked harmless. right impartial furthermore, jury; to an counsel presence and his would have of defendant reduced the risk of that erroneous and occurring. unfair outcome state and the effect of the trial court’s deadline on the deliberations. jury’s it is to recall that the trial court did not Initially, important record its entire conversation with Juror but recited a of the Coley only information summary the court had received from Juror holds that defendant’s Coley. majority claim fails because this record does not show a Juror partial by request be to does not show a Juror that he Coley discharged, by not request Coley death, be to deliberate on the of his father’s and does not required day show other was affected any juror circumstances. record, however, These in the to are defendant. A gaps chargeable of the trial court’s error was its failure to defendant to significant part permit make a full record of the relevant circumstances or to make such a record itself. In so the court did not defendant the to doing deny opportunity only make a record when to into contemporaneous (important attempting inquire and transient mental like a state after subjective conditions emotional juror’s a death in the to It also denied defendant family). opportunity forever make a record of the effect of the death of Juror father and the trial Coley’s court’s deadline on the deliberations and mental of Juror processes Coley and the other because under Evidence Code section 1150 such jurors, matters be into before the verdict is reached.2 Evidence may only inquired Code section 1150 from as to “the effect of prohibits jurors testifying [any] condition, statement, conduct, or event either in him upon juror influencing to assent to or dissent from the verdict or the mental concerning processes by Code, 1150, (Evid. (a); which it was determined.” see People subd. also § Hutchinson, 71 Cal.2d at influences that supra, p. only improper [“The be under section 1150 ... are those to may proved open sight, hearing, corroboration.”].) the other senses and thus Evidence Code section subject “ 1150 codifies the rule facts long-standing juror ‘may testify influence, of the existence of the but he bearing upon question disturbing cannot be how far that influence his permitted testify operated upon postverdict inquiry 2 Accordingly, jurors improper the trial court’s and cannot be support jury used to questions conclusion that no error occurred. The court’s to the asked *57 Coley’s Coley’s about the of influence of the death of Juror father and Juror imminent departure arriving processes jurors By on the mental of the in at their verdict of death. its i.e., inquiry, sought prohibits, the court answers that Evidence Code section 1150 “the effect statement, conduct, condition, [any] juror influencing of or a him upon event either to concerning processes by assent to or dissent from the or the mental which it was verdict Hutchinson, Code, 1150, supra, (Evid. (a); People determined.” subd. see v. 71 Cal.2d also § 349-350.) pp. at Moreover, admissible, ineffectual, inquiry cursory even if it were and the trial court’s consisting only questions panel Only jury foreperson of two to the the answered. as a whole. any questions Coley any juror. The trial court did ask other individually of Juror The panel put manner in which the trial as a whole questions court framed the two it asked response any juror disagreed foreperson’s the burden on to volunteer who with the disagreement just agreed they and had all to jurors disown before the verdict other the moments before.

1017 ” 193, (1894) 207].) mind.’ v. Stokes 103 Cal. P. (People 197 Although [37 Evidence Code section 1150 a prohibits postverdict inquiries juror’s into mental it not bar does its processes, preverdict inquiries. “By language, very this section to how error applies only postverdict inquiries into or miscon duct had affected the the The verdict. section juror reaching [Citation.] does not individual of jurors [during to prohibit questioning deliberations] harm, harm, assure the court there will be no to obviate such or to future of (1991) the effectiveness an admonition.” v. strengthen 53 (People Cooper 771, 90, 865], Cal.3d 838 P.2d Cal.Rptr. original italics.) 809 [281 reliance on the record’s silences on majority’s imposes erroneously defendant the of the trial court’s error and the burden of consequences held, it harmless.3 As the United Court States has viola- proving Supreme tions of fundamental cannot be because “the rights ignored precise simply . . . be cannot shown from a v. consequences (Riggins trial transcript.” 479, 491, Nevada 504 U.S. L.Ed.2d 112 S.Ct. [118 1816].) “The actual the impact particular on practice judgment jurors cannot be determined. But this left always fully Court has no doubt that the of deleterious effects on fundamental probability calls for close rights judi- cial Courts scrutiny. must do best can to they [Citations.] evaluate reason, of a effects based likely particular procedure, on principle, (Estelle common human v. Williams experience.” U.S. 126, 130, 1691]; Stokes, L.Ed.2d 96 S.Ct. also see People supra, “ Cal. at pp. [reversing 198-199 conviction where an was shown ‘irregularity ”

which have influenced’ may verdict because jury’s cannot say “[w]e that the verdict of is based the evidence guilty wholly upon introduced at trial”].)

Accordingly, its majority’s support attempt position by resting record that trial court’s error has in crucial left forever mute respects reason, must fail. Because and common principle, human teach experience us that a deadline for deliberation of a death father are both calm, substantial impediments focused dispassionate, decisionmaking; because the trial court took no to ameliorate the steps these impact ignores 3 The majority significant also practical with which it obstacles has burdened defendant him requiring at this late date investigate and make record that the trial *58 error, court should have made. of Because the trial is faced comt’s defendant with the difficult to attempting task locate Coley Juror persuading and them jurors and the other to voluntarily they a man assist whom have his efforts in to overturn the sentenced to death agreed they verdict that to. impedi- in the record shows that these nothing because and impediments; case, I would in and effects this expected not have their ordinary ments did phase judgment.4 reverse the penalty

IV a the trial court at a death in the family, has suffered When juror is able to into whether the juror minimum conduct a sensitive inquiry should reasonable interval. will be able to do so after a continue deliberations other members of and to the juror to the affected admonitions Appropriate resume they if and when deliberations assure that the may help panel evidence, manner, on the focused solely in a calm and dispassionate continue can be of deliberations resumption rush to judgment. without any and the of a pressure not deliberate under do jurors scheduled so that in the to participate can be afforded an opportunity The defendant deadline. inherent risk of prejudice best to avoid substantial decision as to how court that the trial relevant circumstances to out bring the situation and has not explored. case, I reverse would Accordingly, in this however. that occurred

None of of death. the judgment with the disagree

BAXTER, J., Dissenting. I respectfully Concurring not err in its handling court did that the trial conclusion majority’s concur, I Juror father. Coley’s the death of that arose on circumstances conviction and however, defendant’s affirming in the majority’s judgment for a basis on does provide the record appeal sentence because death the error was prejudicial. determining within a father had died was this: Juror Coley’s the situation

Put simply, the third for day returned to court Tuesday before Coley few hours his close to the court he was emotionally told deliberations. Coley penalty told Coley to the funeral. The court to fly and had to leave early father board his deliberations, be recessed in time for Coley which would resume some there was unless following Monday he must return the and that flight, Mendes, 847, 852, 4 Likewise, majority relies supra, 23 Cal.3d in In re one of the cases brother had on, whose juror record as to the emotional state of a no evidence there was juror] died, make it grief exceedingly [the “normal would difficult presumed we but evidence, counsel, and the arguments of instructions the court’s on the to concentrate (Ibid.) “normal presume ordinary not to There is no reason effects jury’s deliberations.” Nor, in Mendes contrary to the record majority, in this case as well. did the grief’ operated Instead, here, juror to be excused. as not contain any request by the the record did contain be juror juror and the exchange request by between the court showed no full only request had occurred. discharged. We inferred such

1019 other his return that time. severe at The court did not problem prevented offer how In the to he was not juror any guidance proceed. particular, death, admonished to refrain from the other and he was telling jurors not told that the of time—either for to the press returning or getting airport the his the delib- week—must not affect or following judgment independent other erations of the jurors.

This rife of lack of created a situation with the any precaution possibility few, most are are more For there if situations that prejudice. people, any, the of a and than hours of after the loss debilitating distracting grief shortly mother, father, child, or This exper- conclusion no sibling. requires judicial tise; in it is inherent human have that a long Courts experience. recognized immediate who has suffered a death in or her juror very his recently family deliberations, is often in an emotional not suited state for jury especially Annot., when the is at (See defendant’s life stake. Illness or Death of very Member of Juror’s as Justification for and Dis- Family Declaring Mistrial 1062; (1928) in Criminal Case Crim- charging Jury A.L.R. Wharton’s (14th 1978) 61, cases, inal 325.) Law ed. In the one of earliest p. reported § trial, the two ill families of became jurors a murder and those during jurors were The excused. court noted that not illness in a every juror’s family cause, would warrant excusal for and that cause had not shown in good been that case the because record did not show nature or of the the severity illnesses or needed to be their The jurors families. court however, what be if explained, would cause shown. “It good certainly that, no if or requires show the wife child of a is at the argument juror death, of he would in point not be a state of mind duties discharge him, which devolved with that upon calmness and degree patience, deliberation, which was due in of cases of this investigation magnitude and it importance; would unquestionably duty be the court to under discharge juror (Parsons (1853) such circumstances.” v. The State 50, 53, added.) dictum, Ala. italics Although the observation was obiter same court made later clear that serious illness death a juror’s family was of extreme importance, (Hawes in a case. v. especially State capital (1890) 302, Indeed, 88 Ala. 37 So. (Hawes).) the court rejected [7 311] capital contention that a wife whose became ill juror critically defendant’s should not been have The court found a discharged. manifest for necessity Parsons, discharge, its decision in pointing 22 Ala. prior supra, and to an intervening by decision another high state’s court that the death of a juror’s son required (Hawes, the juror’s at discharge. supra, p. So. citing State v. Davis 31 W.Va. 390 S.E. Commonwealth 24] (9 Fells 36 Va. Leigh) 618-619 [impending by juror’s childbirth wife held to be a necessity juror’s discharge].) development the law on this examined point subsequently the Georgia Supreme Court in case which it capital rejected

1020 defendant’s of double based on in plea jeopardy his claim that trial a prior juror should not have been discharged because his mother had died. merely cases, After earlier the canvassing court “As civiliza eloquently explained, tion and refinement have there has been a progressed, growing disposition on the of the courts to the part influence of the and recognize feelings mind, emotions the as this . . . upon producing necessity discharge]. [for One whose mind is disturbed and distracted sudden is by grief [¶]... in no certainly condition to the and of discharge grave responsible duty another for his life. trying What would be in a fit judge condition to preside case, on the trial of a summoned to the capital upon being deathbed of his wife, child, his or his mother? And would court hold that a who is judge informed, case, died, while that his wife has trying just cannot return to his home, funeral, and her attend but must on with the trial? No man of go sensibilities, me, it seems to would be ordinary in a state of mind to proper case, his functions as a on the trial of a under discharge judge such circumstances, and he should not be to do so. As was said in the compelled [(1882) (13 632)], case of State v. Tatman Iowa 59 471 N.W. ‘the law makes no such inhuman If what has been said is true as to a requirements.’ judge, it is true as to a In order to his he must equally juror. perform duty properly, his close and give undivided attention to the as delivered each testimony, by witness, law, and to the as the given by court. He must both charge carry mind, other, and his one to the and it is often carefully apply necessary that he should make nice distinctions in the of the law. It is not application to be that a will this under the expected juror perform duty properly, circumstances shown the record in this case. The to be by consid question is, ered not whether the in view of the of juror, greater importance trying than of the last tribute of affection and to his prisoner paying respect mother, should aside his and undisturbed in departed put grief, proceed whether, fact, of his but as a performance matter of he is of duty, capable not, If this. the ends of that he be from doing justice require discharged [(1888) What was said the court in the case jury. of State v. Davis (7 24)] W.Va. S.E. where the account of the juror discharged son, death of his will in the case: ‘Observation teaches apply equally present us, if, indeed, we have not learned from sad that natural experience, father, child, result of information to a of the death of a is suddenly imparted him, time, to unfit for the to attend to business. . . . His would grief if, unfit him for the of such an And naturally discharge important [jury] duty. 613], as [(1838) (9 the court said in Fell’s Case Va. of Leigh) object fair, verdict, the trial is to obtain a there is little just, prospect impartial it, of under such circumstances. of the cases of in the This is one spoken case, is, in that where a condition of his mind opinion from the juror peculiar on the feelings, manifestly case atten disqualified bestowing from (Stocks tion and to a verdict.” impartial just consideration which is necessary v. State 847, 849].) 91 Ga. 831 S.E.

Other courts have embraced the same “It no principle. requires argument show the effect mind of the upon information juror upon receiving of his to render him death mother was that calm and incapable deliberate consideration and which is due in the reasoning investigation [i.e., cases of this and magnitude murder v. State importance (Spelce case].” *61 694, (1924) 412 In 698].) (1927) 20 So. Salistean v. State 115 Ala.App. [103 N.W.107, (Salistean), Neb. 838 53 A.L.R. an a arson [215 prosecution, 105] newborn child died and his wife ill after He juror’s was the birth. seriously observed, was The court of discharged. “The serious illness compassionately would, the the wife of and the death of his child as of juror a matter common have caused him distress of mind knowledge, him from incapacitated the case To consideration. have continued with trial under giving such conditions would have been inhuman. It have been to would equivalent 109; the case (Id., to eleven at v. trying jurors.” (1900) Woodward State 42 p. 135, Tex. Crim. 188 S.W. of juror [58 murder case became [child 139] ill].) critically cases,

More recent not in the vivid of our learned though language judicial contexts, in a predecessors though arising continue to reflect variety that a death in a recognition juror’s raises serious his family question or her to deliberate in the ability (Weaver death’s immediate aftermath. State 45 243 So.2d Ala.App. [reversing [228 manslaughter 857] conviction ground mistrial should have been when granted juror’s died]; mother (9th 1980) 350, United States v. Smith Cir. 621 F.2d 351 held to have consented to impliedly [defendant mistrial when mother juror’s stroke]; 1976) had Malota v. State 336 So.2d (Fla.Dist.Ct.App.

[affirming judgment rendered after a was substituted for replacement juror killed]; whose juror was Allen v. nephew 1993) State (Tex.Crim.App. S.W.2d excusal [approving juror whose aunt and brother-in-law died]; People v. Portalatin 105 Misc.2d 725 N.Y.S.2d 58] mistrial [approved declared when juror’s stroke].) father suffered I do not agree with the in some of the suggestion cases that a foregoing death family necessarily requires In juror’s discharge. my view that goes however, cases, too far. I discuss those because reflect a they long-standing acknowledgment have, that a death in a juror’s immediate can at family least temporarily, a effect on a profound juror’s deliberate. such ability Any diminution of the juror’s is of ability gravest when importance decision is whether the defendant shall live die.

This sensitive situation from arising the death of Juror father was Coley’s even made more troublesome time deadline Juror He facing Coley. return in which he had an incentive for the jury was faced a situation within to depart as as His was scheduled flight verdict soon possible. him court allowed (Indeed, hours. common realities of travel suggest courthouse, time, that, the airport, travel to if to leave the barely enough him chores, had told The court handle and board the flight.) preboarding then, recalled the that, he would be if return a verdict before tiie did not jury week, be neces- been told would the time the had jurors following beyond Moreover, leave his have had to Juror would Coley for the trial. sary and, likelihood, still have short time in all would after a very grieving family his father’s death. The untimely pressure been and unsettled by upset fate with undue dispatch plainly great. decide defendant’s also cannot be discounted. It would *62 on the other jurors The likely pressure death, as did not tell them of his father’s be fanciful to believe Juror Coley Indeed, absent such infor- an occasion as one is to bear. likely momentous mation, as to deliberations were being would have been perplexed why they short, knew of the death and the In almost certainly truncated that day. they 109, court, 107, Salistean 215 N.W. supra, percep- time As the pressure. observed, been would have jurors naturally “the the other sympathy tively of anxious to the dispose and tend to render them with him in his of misfortune the would not Under such circumstances jury case as as quickly possible. of the issue which the importance case the careful consideration the give here, in addition to (Italics added.) having sympathy Likewise merited.” himself) faced with the (and were the other jurors Coley Juror Coley, later if could not return a they return several days of to having prospect And, Juror was faced Coley an hour. verdict within approximately penalty with the father while wrestling weighty his burying with the prospect would be live or die. normal Any person of whether defendant should issue the former. to be able better to bear shed the latter burden so as to tempted circumstances, that—within the hour I am troubled the fact Under these re- resume deliberations—the jury court directed Juror to Coley after the verdict. turned its death us, we have situation before but have not had the same

We previously has suffered such a encountered a who by juror the acknowledged difficulty 831, 592 In 23 Cal.3d 847 Cal.Rptr. loss. In re Mendes family [153 trial court’s having to the (Mendes), P.2d the defendant objected 318] the night. whose brother had died previous excused without a a hearing juror hearing be excused without a “[u]nless We cautioned that a should not juror an informed on which to reach facts establish a sufficient basis clearly the (Id., at is p. cause for the excusal present. and decision” that intelligent good nothing held and we knew 852.) although Even no had been hearing though circumstances, that we had “. no in the we . . the explained difficulty, us, McQuown’s case that the reason for Mrs. concluding [juror] before to be . grief excused constituted cause.’ . . request clearly ‘good [N]ormal McQuown would on the make it for Mrs. concentrate exceedingly difficult evidence, counsel, the court’s and jury’s instructions arguments view, deliberations. In.our a would have been and hearing perhaps pointless (Ibid., case, added.) callous.” italics In a later we the trial upheld capital court’s deliberations of a whose summary discharge during penalty juror mother had died v. Ashmus preceding night. (People Cal.3d (Ashmus).) 986-987 820 P.2d We Cal.Rptr.2d observed 214] that “. . . a mother’s death is ... ‘obviously tragic disturbing ” Ashmus, (Id., 987) event.’ at I p. agree with that majority supra, 54 932, Mendes, Cal.3d 23 Cal.3d are supra, factually distinguishable from case present because those cases the had jurors to be requested whereas the record discharged, does reflect that Juror present Coley believe, I made such that request. though, the distinction misses the mark. In neither case did this court on the itself. place any importance request Rather, situation, i.e., our basic point was a death in juror’s is so family, fraught no of record is patently difficulty inquiry necessary establish that fact. It seems to me the converse of this logical is that a is principle hearing before required allowing juror proceed immediately with further deliberations.

The substance the ex communication between the court and parte Juror (I did not Coley ameliorate the situation. with that agree majority mere fact the communication was not error. Some administrative discre- tion must be allowed the trial court in with unexpected circumstanc- dealing es.) To the contrary, communication worsened the because the problem court did to assure that nothing deliberations would be unaffected by Juror Indeed, loss. Coley’s the court failed even to on record inquire whether Juror wished to Coley be from further service. Faced a discharged circumstance that had an obvious potential creating problems, especially for Juror Coley’s to ability deliberate properly, trial court should have at a inquired minimum in some detail and on the record as to Juror Coley’s emotional state and cautioned him not to let his father’s death affect his deliberations, not to specifically rush them. court also should have directed not to Coley contrast, inform the other of the jurors By problem. when Juror had McCoskey emotional problems with the trial and discussed “ court, them with the the court cautioned her that . properly ‘. . because we’ve talked to you privately that shouldn’t affect your decisions in ” ante, . any regard . . .’ 974.) at (Maj. opn., p.

I do not that a suggest who has juror suffered a death family cannot under any circumstance be allowed to continue Nor I deliberations. do suggest deliberations, even in the immediate was unable to continue

Juror Coley course, has death. Of a trial court aftermath of of his father’s learning be allowed whether and when such a should juror discretion to determine inheres, however, the deliberations allowing resume deliberations. Danger recognized the death. Courts have long continue within hours of only an into the deliberations. extrinsic and extreme stress such event interjects (Ante, a 1018-1022.) is literally at When the decision facing jury pp. that, defendant, when the matter of and death for the prudence requires life detailed the court make a reasonably court is notified of the juror’s tragedy, to continue delibera the record to determine the juror’s ability inquiry it) an exercise (or court’s action rather lack of was less tions. Here the trial (Cf. of that discretion. People of discretion than it was an abandonment P.2d (1988) 45 Marks Cal.3d Cal.Rptr. 260] [“We not to hear a matter constitutes find the notion that an agreement illogical court erred in not matter.”].) conducting I believe the trial hearing court, record, counsel arrived in on the after meaningful inquiry preferably the circumstances. to resume deliberations under into Juror Coley’s ability (defense counsel was exacerbated when prosecution) The situation detail stated his and in reasonable in court. Defense counsel promptly arrived concerns, which, At that the court were valid. point, as I have explained, into conduct the inquiry belatedly, proper should have attempted, although he should have been to determine whether circumstances and Juror Coley’s have The court also should deliberations that day. allowed to continue of his circumstance had told the other jurors whether Juror Coley inquired if later a verdict have to resume a week the fact that deliberations would Instead, all the court rejected before he left early day. were not returned earlier that counsel’s to state it would explain of counsel’s objections, except short, *64 its earlier error of In the court repeated absence was not improper. informed determination and not making any an conducting adequate inquiry that day. whether deliberations should continue Nevertheless, the death affirming I in the judgment concur majority’s error, i.e., the failure to inquire adequately because the trial court’s sentence us, serve, as it did the deprives into Juror Coley’s willingness ability decision, court, based on the an informed basis on which to make trial of any record, been allowed to proceed. should have whether Juror regarding Coley state, mental facts of Juror Coley’s We do not know specific simply him, or facts who observed his own account or those whether by other jurors, circumstances to the he communicated his whether regarding decide on We cannot properly rushed its verdict. therefore whether jury on an can be decided That question that the error was prejudicial. appeal informed basis if and when it is raised in only for writ of habeas petition corpus. Mosk, J.,

Appellant’s for a petition was denied June rehearing 1995. Kennard, J., were of the that the should be opinion granted. petition Notes Written 3. Seizure of Defendant’s defendant, to he considerable time at his trial According spent counsel’s an of his life request preparing approximately 50-page manuscript for use the but the document was taken story during penalty phase, by jailers from his cell. does not defendant’s statement of prison (Respondent dispute Counsel, seizure.) facts the who had not the seen the regarding manuscript, this to the court’s attention at an camera from brought proceeding which the was excluded. The court ordered that the be prosecutor manuscript under seal the court. produced kept by Defendant’s counsel assert after appellate they requested manuscript trial, but that the court was unable to it. Defendant contends produce him seizure and loss of the of an to manuscript deprived opportunity present defense He further contends the loss complete during penalty phase. because his serious brain raises a alleged damage irreparable question he to whether has the work. ability reproduce merits, Before to the we first the status of the record. turning explain Defendant is correct that the trial court ordered defendant’s to jailers place in the court’s so that it could be under seal. manuscript custody kept Later, 19, 1990, on March counsel filed a to review the appellate request of all in camera the November transcripts proceedings, including at which the court ordered The trial hearing production manuscript. court’s order did not but stated that all purport grant deny request in camera had been to this court. Defendant moved for forwarded transcripts motion, The trial court that the stating reconsideration. denied again had been sent further investigation this court. After transcripts reconsideration, court, communication with this defendant again sought that no had been sent to this court. This was correctly explaining transcripts confirmed court clerk. the trial court defend- granted superior Finally, ant’s to review the that had been under seal. request manuscript placed defendant, however, was still not manuscript produced. According