*1 S026040. Mar. [No. 2005.] PEOPLE,

THE Plaintiff Respondent, VIEIRA,

RICHARD JOHN Defendant and Appellant.

Counsel Rubin, Court, Richard L. under appointment Supreme *9 and Appellant. General, Anderson,

Bill Attorney Robert R. Chief Assistant Lockyer, Attorney Graves, General, General, Jibson, Jo J. Assistant Robert Mary Attorney O’Sullivan, Chatman, John A. Julie A. Hokans and Catherine Deputy General, for Plaintiff and Attorneys Respondent.

Opinion MORENO, A juryconvicted defendant Richard Vieira John of four J. Code, (Pen. counts 187).1 of murder An enhancement for use of a personal § was found true each deadly (§ (b).) for count. subd. Defend- weapon ant was also convicted of one count of (§ 182.) to commit murder. conspiracy The circumstance of murder as special was found true to each count. multiple 190.2, (§ (a)(3).) subd. At the fixed the penalty phase, jury for penalty one, count the murder of Richard at life Ritchey, without imprisonment murder, For the three other parole. murders and commit conspiracy returned verdict of death. The court denied defendant’s motion to (§ 190.4, modify (e)) death verdict subd. sentenced defendant to life without first imprisonment parole count and to death on the other four counts, count, with a one-year enhancement for each terms all to run consecutively. (§

Defendant’s appeal (b).) automatic. subd. We reverse the death sentence as to conspiracy commit murder count and remand so that defendant be resentenced to a term of 25 may to fife We years imprisonment. uphold defendant’s death sentence to the other as three counts and in all other affirm respects judgment. Background

I. Factual Phase Guilt A.

At the time the murders took defendant lived at a location place known as “the at 4150 Road in Camp” Finney Salida in Stanislaus County. of a consisted number of houses and lived Camp trailers. in a Beck, trailer with codefendant David near a house codefendant by occupied Gerald Cruz and his wife. Codefendant Jason lived in LaMarsh another statutory All are references to the Penal Code unless otherwise indicated. of this trailer. Cruz was the leader informal acknowledged group. nearby Everyone Beck was generally charge discipline. group pooled but did not live group, their Ron was also associated with money. Willey time Defendant held a low status at the the relevant during period. Camp Evans,2 who involved Michelle was also group. group within a “slave” to for a time LaMarsh’s testified that was girlfriend, was cooking, such as given the other members of the tasks group, children, to her Cruz’s various bathing undertaking repairs. According Beck, order, Cruz’s various defendant was beaten testimony, late in his He was also the task of given guarding camp deficiencies work. as often construction work. night, days doing into the well as spending *10 and Beck and masks Cruz and assault several bought weapons camouflage murders, a baton. knives. Two weeks before the they police-style purchased residents, 50’s, the Franklin a man in his was known One of Camp Raper, and attendant from his trailer. noise other activities selling drugs to be use, drug and well as needles and other drug sale as hypodermic upon customers, a Cruz and left Mr. became concern to by paraphernalia Raper’s concern treatment of an elderly other residents. Also of was Camp Raper’s trailer, to refused Jiggs. Jiggs’s man named used his electricity power Raper it, him and threatened to kill the latter Jiggs to for when compensate Cruz, former’s to Evans’s threatened to disconnect the according power. in the and this looked out for became testimony, by people Camp, upset initially He and to leave the but Camp, behavior. others asked Raper Raper refused. a group.

Then of confrontations between and Cruz’s began Raper series car the street and set it fire. Raper Cruz and others across on pushed Raper’s But and had his trailer towed to 5223 Elm Street. to leave agreed Camp near Cruz’s destroyed returned soon after and a fence newly repaired Raper and to Two weeks before jail. house. Cruz had arrested taken Raper murders, a and others in the into alterca- got Jason LaMarsh group physical residence, at Elm him of accusing stealing with the latter’s Street tion Raper Later the evening, their until others broke same guns, up fight. one of Colwell, Elm Street during one at the residence present Dennis people and other drove and was Cruz the fight, slowly by Camp pursued him, to car and beat seeking residents. Colwell from the dragged Camp They at Street residence. Defendant tell them what was the Elm going have him took watched as beating place. 2 Evans, commit degree conspiracy murder and to charged who was with the same first defendant, one-year bargain a in which she received a charges plea as entered into

murder exchange testimony. in her trial sentence sister, residence,

Michelle Evans’s had lived at the Elm but Tanya, Street evicted around same as was time moved his trailer there. Raper Raper lived in the residence there a kind and allowed others to as of “crash stay murders, The afternoon of the Cruz asked Evans to a diagram pad.” prepare Beck, LaMarsh, Evans, residence. Later that Cruz met day, Willey and defendant LaMarsh’s Cruz to go trailer. announced plan over to the Elm Street residence “to do ’em leave Cruz and no witnesses.” each a and an gave Evans’s task was to person plan entry assignment. visitor, enter the residence as to account for all the residence people room, to and move them into the to attempt living back window open up then leave wait the car. to LaMarsh was enter with her. Beck was Cruz, come the back through window. and defendant were Willey come through the front door supposed after Evans had her completed assignment. Cruz told the that whoever “messed out group up” carrying victims, their would he assignments “join” looked at defend- directly ant when he made the statement.

Cruz bats, then handed be out used. There were weapons two baseball knives, Ka-bar knife an M-9 knife. Cruz took one of the awith along baton. Defendant was bat police given baseball and also had own his residence, .22-caliber handgun. Before Elm Street defendant and going *11 were seen Willey their and swinging bats around” to rock “dancing hard music. Defendant and others on put masks. camouflage then to the Elm Street residence group proceeded after just midnight 21, 1990, Colwell, on May over in a driving together Mercury Zephyr. Raper, time, and two others the at house the present Richard and Darlene Ritchey Paris, (“Emmie”) Alvarez, were murdered. Donna who been had in sleeping one of the bedrooms when the attack to a began, managed escape house. neighbor’s ran the front and

Ritchey through (Earl door into the street. A neighbor Creekmore) and Evans testified that Cruz Willey Ritchey caught up beat him. Cruz slit then his throat with knife. his and Colwell’s Raper’s wounds, throats were also slit and had they severe skull multiple including case, fractures inflicted aby baseball bat or In police baton. the Raper’s top the head caved was there were severe to the lacerations brain. Defendant killed Emmie Paris. The after the murder told that day he Evans Paris began and Cruz ordered him shut hit screaming her up. with her a baseball bat several but times did not succeed in her. silencing failed, then Cruz handed him his knife and he her. stabbed When this also defendant Paris’s hair and sawed at throat “it her grabbed her till felt like head was off.” come Evans testified he when he her going laughed that told coroner, for the this. to Dr. who performed According Emoehazy, autopsy died from a wound to throat. slicing Paris Gardner, later, his Mary in a conversation with days girlfriend,

Two admitted denied killing been at the murder scene but having her that He LaMarsh Alvarez to allowing escape, telling blamed anyone. because she had to leave no Gardner became upset been witnesses. plan and defendant said that they three who were killed knew people die, and should not have been there. deserved to had been “warned” they and Ka-bar knife the crime scene found baseball bat investigating Police victims, as that as well several masks with bloodstains those of matching Deckard, the had the killers. Sheriff’s detective principal been worn from her of one of Donna Alvarez and investigator, description questioned LaMarsh, seen, men had and with the help acquainted she passersby able included LaMarsh. he was to assemble photographic lineup soon Suspicion identified him as been one assailants. having Alvarez arrested, Evans was subsequent focused residents. Camp statements, Defendant was initially interrogated her codefendants. implicated murders, he knew acknowledging and released the after the day he had he role in the murders and claiming codefendants but had denying later, occurred. Two days been at the Oakdale Motel the homicides night he arrested and further He admitted interrogated. participated defendant was at the murder scene. Initially the murders and that he planning present interview, to stand that it had been his function guard he stated during hall, he he had struck one of the but in the interview admitted that later stated that he several baseball bat Defendant victims in times with legs condoned” the murders. “completely role in the murders that on no witnesses

The defense put disputing below, the core to defendant. As will be explained Evans and others attributed *12 defendant’s cult member- testimony was regarding of the defense apparently reasons criminal intent. For and his to form ship incapacity requisite witness, below, was not Randy Cemy, permit- defense discussed principal ted testify guilt to at phase. Phase Penalty

B. the circumstances of the prosecution argued solely At the penalty phase, felony criminal or activity prior did not violent allege the crime and past on defendant’s part. convictions friends,

The defense called several childhood and neighbors family mem- bers, who defendant as a and nonviolent His portrayed fairly youth. quiet father introduced him to when defendant smoking marijuana eight was years time, user, old. Since that defendant became a habitual it marijuana smoking school, once least a week. He also had trouble his a condition having mother, Vieira, Barbara identified as which caused him to have “lazy eye,” to be held difficulty reading and back the sixth year grade. Defendant did not school. He left his school after complete regular high high team, to failing make the football in a continuation school enrolling high after, which he left after for he being suspended marijuana. Soon possessing found work sheetrock with his father and later his He hanging uncle. never learned how to drive. His mother he a good testified that was and boy eager to do chores around the house. sister,

Defendant’s testified that it she Angela Young, was who introduced to Cruz and circle (He his when defendant 15. was was 21 at time murders.) Defendant’s sister lived for a few months and 1988 with Cruz and in a others house in Modesto. Cruz led others in occult and study the performance of occult rituals that supposedly robes, candles, included Cruz chanting. told “to sacrifice Young your first newborn ... can ever it greatest thing you do” that was “for ,” the satisfaction of Satan . . . there although was no evidence such had house, sacrifices occurred. Young soon moved out of the but for arranged brother, her who was seeking from the independence family, move in. Defendant’s sister and mother testified to changes they noticed defend- ant he after went to live with Cruz. He Cruz required permission from to visit visit, his family, when he did he would telephone Cruz ask permission tired, for stay dinner to have beer. He looked with dark circles always thin, under eyes, his and was nervous and He withdrawn. often appeared have been beaten with black fat up, slashes on eyes, his arms. lips,

A sheriff to the deputy assigned testified defendant had no county jail incidents misconduct in his one and four months of approximately year incarceration. cults, a retired

Randy Cemy, sheriff who an deputy had become expert and lectured on cults law agencies, enforcement also for the testified *13 cults, review of study diary his general defense. Based on his Cruz, and living the murder while with in the 18 months before had written defendant, that defendant was formed the Cerny opinion interviews with his Cruz as leader. Defendant a “cult style group” involved in deprivation, regular control” that included sleep to “a of mind subject process and of contact with others family and minimization physical punishment, included shock to the According diary, punishment the group. outside wire, from members of electric other beatings with an exposed treatments that was testified it forms of sexual humiliation. Cerny and various group, of Cruz’s many defendant had internalized from the diary apparent himself so that Cruz’s health he the desire sacrifice values: in it expressed Cruz “merciful” in gratitude being and expressed would improve mistake. a certain also described Cerny him beaten when he made having with Cruz directing occult and satanic having underpinnings, cult as the books of the occultist English to read study members of group reincarnation, and to be the of whom Cruz believed himself Crowley, Alistair rituals. engage various cross-examination, he no verifying admitted had Cerny way On related, He also occurred. diary actually events described in behest, about which defendant wrote diary of the prosecution’s portions entertaining to another member group, administering punishment had fantasies about woman who rejected and sometimes violent obsessive him, heavy drugs. in the use group’s participating

II. Pretrial Issues

A. Denial Motion to Venue Change venue, during made several times his change Defendant contends motion denied, was error under state which he claims was wrongly the proceedings, under to be tried an unbiased of his right law a violation Sixth, the United States Constitution. Amendments to Fourteenth Eighth court committed no error. conclude We

1. The Law “ when the defendant shows must be granted ‘A of venue change relief, be a fair trial cannot that in the absence such likelihood reasonable *14 had. on for Whether raised writ of mandate or on petition appeal [Citations.] conviction, from of reviewing the court must exam judgment independently ine the record and a determine de novo whether fair trial is or was obtainable. The factors to be considered are the nature the gravity of [Citations.] offense, the nature and extent of the the size the news of commu coverage, the status of the in nity, defendant the community, popularity ” of the prominence (1989) victim.’ (People Williams Cal.3d Cal.Rptr. (Williams).) 774 P.2d 146] course,

As we further stated in Williams: “Of question presented on a .from of conviction is on appeal judgment necessarily different from that a for writ petition of mandate. effect of prejudicial ...[][]... [B]ecause before is publicity selection jury necessarily it is settled tha speculative, t “any doubt as to the of removal. . . be necessity should resolved in favor of ’ a venue trial, change.” After in of a favor venue presumption [Citation.] change is unnecessary, the matter then may be of the analyzed light actual, voir dire of available and the actual pool selected. jury panel whether, venue, then question is light of failure is change it reasonably likely that defendant in fact received a fair trial. [][] [Citation.] Whether raised on for writ of mandate or petition from a appeal judgment conviction, however, of the standard of review same. A of showing actual ‘shall not be prejudice In a required.’ motion for pretrial [Citations.] venue, change defendant need only demonstrate a ‘reasonable likelihood’ that absent such relief a fair be trial cannot had. On after appeal [Citation.] judgment, must show reasonable likelihood that fair trial case, was not had. In either “reasonable phrase [Citations.] likelihood” ‘[t]he ’ denotes a lesser standard of than “more than not.” proof probable [Cita (Williams, 48 Cal.3d at supra, 1125-1126.) tions.]” pp.

2. The Trial Court’s Rulings In ruling venue, on the defense motion for change court factors, reviewed the pertinent case to then-recent comparing capital case venue, in which this court denied change v. Coleman 112,133-136 48 Cal.3d (Coleman). Cal.Rptr. to the As 32] offense, gravity and nature the court admitted this factor weighed venue, favor of the change of given murders and the multiple “sensational aspects” case. factor,

The trial court concluded that the second the nature and extent the news coverage, weigh did not of a change favor of venue. There had *15 and and articles “large pictorial descriptive been a number of sometimes 1, 1990, Bee, 22 and June in the Modesto May about the murders” between County. the the circulation in Stanislaus There was newspaper largest on stations the same of time. during period intensive local television coverage Coleman, i.e., was to that in it But that coverage comparable “quickly ” “ and not and as in other cases in subsided” ‘persistent pervasive’ (Coleman, supra, 48 Cal.3d at which a of venue was warranted. change court that articles that 134.) initially reported The trial found pp. in the case were by neo-Nazi and use connection with activity drug tempered drug later officials that the were not or killings comments law enforcement by Moreover, by race media mentioned defendant name coverage only related. the once or twice news during coverage. data well trial court also examined how survey regarding acquainted

The and the defendant. the of were with the crime County Stanislaus people a conducted by private Defendant had submitted recent telephone poll of to that 263 out According survey, respon- Alan Peacock. investigator dents, two-thirds, the hearing killings had recalled about approximately had an that the opinion persons formed approximately percent, for crimes The the guilty. prosecution, arguing against arrested the were motion, in conducting of Peacock’s expertise venue change disputed that 72 The its own survey, showing submitted survey. prosecution telephone and 21 hearing something out recall about case of 100 could respondents trial that in of had as to defendant’s court observed guilt. those opinions Coleman, case, had heard of the but 31 only thought 46 percent percent was not itself by to be and that this substantial percentage defendant guilty, for venue. grounds changing factor, of also did not in favor a community, weigh

The third the size of a small because in community important in venue. “The size of change in the likely public a crime is to be embedded rural community, major a a time than in urban longer populous more consciousness deeply Coleman, (Coleman, supra, 134.) concluded that Cal.3d In we area.” p. (cid:127) 300,000 with a of Sonoma County, population approximately centers, ... is substantially of the population one state’s “[tjhough major has ordered venue which this court than most of counties from larger (Ibid.) The trial court size case concluded that the the present changes.” 370,000 according of approximately Stanislaus with a County, population census, a venue change. also did not compel status also the fourth fifth factors—the The trial court found did not victim—also and the popularity prominence venue, and the victims as both defendant in favor of change weigh factors, the court of all the above Based its assessment were unknown. concluded that a “there’s reasonable likelihood that will receive [defendant] fair County” this but the court reserved final until voir judgment dire revealed the actual state knowledge prospective pool. 22, 1991, renewed motion for of venue on August change after review of disclosed questionnaires jurors completed prospective two-thirds of the had approximately heard of case prospective jurors *16 and about 13 said they had formed an percent based what opinion they motion, had read. The court denied the that there was a sufficient observing of number who had jurors yet not formed opinions. again

Defendant renewed the of motion for venue on change August 26. H., dismissed, The out defense that pointed Juror before she was Prospective had indicated she overheard three in the persons, jurors, perhaps prospective courthouse their belief discussing that should receive the death appellant Defense counsel penalty. argued that this incident underscored the “ominous in the atmosphere” which trial would be taking The court affirmed place. its earlier holding.

Finally, defendant raised the venue issue in his a motion for new trial. Kirk McCallister, specially to defendant in the appointed represent new trial motion, claimed that the of pretrial survey conducted community prejudice Alan Peacock for defense counsel previous was flawed and that Mr. Peacock Schoenthaler, lacked professional qualifications. Dr. who had Stephen pre- codefendants, pared community for the trial of prejudice survey defendant’s Cruz, Beck, LaMarsh, (hereafter and Willey trial), the Cruz was called on to The testify. same trial who judge over presided granted defendant’s had trial, change of venue in the Cruz commenced which after defendant’s trial. Dr. Schoenthaler’s survey showed other among things percent- age of who had heard of the case people and who had formed an of opinion the defendants’ guilt—60 of the percent hearing case 30 percent forming an in opinion—was higher significantly community survey than prejudice in the of pool jurors and prospective among jurors. the actual Defense argued counsel that it was unrealistic to that of the nine in jurors suppose case, case who had of the an prior knowledge none had formed opinion.3 The trial court It denied the motion. found greater pretrial publicity trial, trial, the Cruz as a result of about publicity defendant’s justified motion, argument, This as simple formulated in new trial was flawed for a reason. The people polled community prejudice survey randomly in the were chosen the seated whereas not, jurors were and prospective jurors forming opinion likely who admitted an not would have force, however, jury. argument been seated on the The has some when it comes to the entire panel prospective jurors, (23 173) approximately which percent forming admitted to an opinion, significantly community large. less than the at court also denied the motion “based in venue in former trial. The change challenge to the voir dire the failure to on actual answers juror [and] for cause . . . .” them on Appeal Contentions

3. initially claims the trial court erred on appeal based on venue motion and not new trial granting granting change he this In these change making arguments, compares the failure venue. Williams, supra, 48 Cal.3d case in which we reversed capital case of venue motion. grant due to the court’s failure judgment change First, of the case. Defendant makes several based on arguments notoriety case, as had heard of the percent prospective jurors approximately Second, in Williams case. nine of 12 jurors to 52 seated opposed percent (Williams, of 12 Williams. case, as eight had heard compared in Williams were 1128.) supra, reports 48 Cal.3d p. newspaper “ ” sensational,” body’ the victim’s ‘bullet-riddled describing “frequently *17 murder, defendant was also argues, several times. Coverage quadruple reader, sensational, the or at least to leave an on likely impression frequently the a and lead The articles referred to number of front articles. page in White One article organization. defendants as of a Nazi or part supremacist section, Bee, the “B” Metro the Modesto on the front of page reported trial, defendant’s hearing recounting descrip- six months before preliminary cut off the head of Emmie “nearly to Detective Deckard of how he had tion an illegal was later as the of product Paris.” The confession suppressed later deemed inadmis- Press of evidence interrogation. coverage incriminating (48 1127.) Williams. also in Cal.3d at significant p. sible was found be the extent of community may Defendant also claims that prejudice had jurors and of some of the excused who comments behavior gauged by and to the view or discussed the case been exposed overheard had exhausted was further the fact he points defendant guilty. do would lead whereas failure to so challenges, all 20 of his peremptory v. (See People with the jury. the inference that the defense is satisfied 468, 680, 1035]; P.2d Dennis 524 950 (1998) Cal.Rptr.2d 17 Cal.4th [71 122, 815, 802 v. Daniels (1991) 52 Cal.3d 853-854 Cal.Rptr. P.2d between Williams and are differences significant

There nonetheless Of great significance undermine defendant’s case that present position. at the time of had County, size of Placer which Williams was the noted, 117,000. at As (Williams, 1126.) Cal.3d supra, of 48 p. population three times at time of trial a over had County population Stanislaus 80,000. The small size of of Modesto with city greater, including community Williams was reflected in the fact that over one-third of the case, of number knew connected to the potential jurors including people victim, members of her and the district family, attorney investigators, (Id., 1130.) which not the case here. at p.

Moreover, there was a although around the time flurry publicity murders, and some articles around the time prejudicial preliminary case, trial, in defendant’s six Williams hearing months “the prior did not cease but continued at a publicity fairly until the start of steady pace (Williams, supra, trial.” at 1127-1128.) 48 Cal.3d We also found pp. impor tant in Williams the status the victim: the victim was a “ ” White woman whose family had in the whereas ‘prominence community,’ Sacramento, outsider, the defendant was from an and a Black man in county Blacks, “social, with less than 1 percent resulting racial and sexual (Williams, circumstances, supra, overtones.” 1129.) Cal.3d at In such p. “the risk that the enormously verdict be based on a desire high may or the fear of social revenge, ostracism as the cost of a verdict.” mitigated (Id. case, 1131.) There no p. were such overtones in the present victims, Paris, defendant characterizes although Emmie aas especially (Odle v. Court Superior “posthumous celebrity” (1982) 32 Cal.3d 225]), 654 P.2d this Cal.Rptr. case does not situation present an outsider defendant against victim with “long extensive ties to the Marlow community.”4 Cal.4th 46 [17 Coffman [distinguishing Williams on similar grounds].) 30] *18 sum, In our review of the record in independent relevant factors light above discussed does not defendant’s contention that the support trial court abused its discretion in the of venue denying change motion.5 4 argues Defendant also that survey the placed percentage Schoenthaler the the commu of nity had prejudged percent, that the case at 46 the percent more than in the earlier Peacock 29 survey that had judged been found to have the guilty, defendants on which the trial court’s however, partly percent decision was The figure, based. 46 misleading. figure is That comprises eligible a percentage jurors surveyed of prejudged they who the case because either (1) categorically against (2) were penalty; the death or had formed an opinion that if they were guilty, get (3) defendants should the penalty; opinion death formed had the that were guilty. categories defendants But the two pertinent change first are not to a in venue noted, survey motion. As the reported percent eligible Schoenthaler 30 juror respondents prejudged guilt, had figure virtually finding defendants’ equal survey. to the of the Peacock 5 shortcoming One the proceeding, by in voir dire which was the exclusively conducted trial above, judge, appears jurors in the record. As noted familiarity nine of indicated some with questionnaires. the in their questionnaires jurors case The asked what details of the the case jurors remembered but a number of did not they indicate the extent to which familiar were case, stating only with the they that “read about The newspaper. it” in trial court did not jurors subject they voir dire knowledge opinion. on of their and whether had formed an Although jurors professed questionnaires in not their to have formed an opinion, “[a]

B. Murder Multiple VoirDire on dire, Prior to the commencement of voir defense counsel submitted contained the “Do following you that jury questionnaire question: proposed for death instead of life imprisonment feel would vote you automatically The the defendant of two or more murders?” you guilty no if found parole be covered Court” objected that the areas “should prosecution subject that he death dire. Defense counsel stated appreciated in its voir qualification “the in all aspects that Court would be doing questioning [death dire], something get I think the Court will need voir but qualification would an idea of . . . to ask that get questions intelligently started on to what was views on the death jurors’ penalty. question out” bring prospective Moreover, in the judge’s not included the jury questionnaire. questions .6Defendant claims did not ask this or a similar jurors question prospective ability his into the jurors error refusing request inquire prospective murder without in the case of parole multiple to vote for life imprisonment he contends reversal of penalty phase convictions. More specifically, (2002) v. 28 Cal.4th holding People our Cash judgment compelled by 545, (Cash). He claims 718-723 further 332] due a fair these errors violated his rights equal protection, process, that found in trial cruel and unusual protection against punishment 5th, 8th, Const., 6th, & 14th (U.S. States and California Constitutions. United Const., I, 7, 15, Amends.; there no error. 17.) We conclude Cal. art. §§ defense, that the would introduce into In Cash the anticipating prosecution elderly age the defendant’s murder his grandparents aggravation (Williams, supra, 48 Cal.3d at juror’s is not conclusive.” impartiality declaration of ... 1129.) p. Jennings Cal.Rptr. As we stated in Cal.3d jurors and actual to determine prospective examine ‘the dire of 807 P.2d voir 1009]: “[W]e ” voir The lack of such dire pretrial publicity prejudicial did in fact have effect.’ whether light jurors indicated troubling, prospective of the fact particularly this case is therefore totality case. questionnaires they had heard of the Given preliminary circumstances, jurors pretrial publicity, the fact that the nature sporadic however—the appear discussed above—it does professed opinion, no other factors to form dire denial of the voir engage of voir dire led to an erroneous court’s failure to in this kind request. *19 6 following questions: asked five typical qualification A death voir dire the B., are you feelings penalty about the death which any do have “BY THE COURT: Mrs. Q. degree person guilty a of first murder? strong you would never find so that strong you which are so that would any feelings penalty have about the death you Do “Q. to be special find a circumstance true? never you strong are that would any feelings penalty about the death which so you Do have “Q. possible sentence? where it was impose penalty vote to the death never you strong are that would death which so you any feelings penalty Do have about the “Q. you the opportunity? case had always impose penalty the death your mind would penalty which in you any feelings the death Do have about “Q. your ability juror?” act as a substantially interfere with to

285 to ask a juror during voir dire whether there were attempted “ prospective ” “ the particular crimes’ which would have caused ‘automati ‘any juror ” (Cash, vote 719.) to for the death Cal.4th supra, cally 28 penalty.’ p. trial court ruled the and also denied motion question improper, subsequent to ask prospective jurors whether there were circumstances any aggravating (Ibid.) would cause them to for the vote death automatically penalty.

We held the trial court erred. We our with an began analysis articulation of the basic dire of voir cases: principles capital “Prospective be jurors may excused for cause when their views on capital punishment would or prevent of their duties substantially impair performance as 412, Witt 841, (Wainwright jurors. (1985) 469 U.S. L.Ed.2d [83 “ ‘ S.Ct. ‘The real is “whether the question juror’s views about capital would punishment prevent or verdict impair juror’s return a ability ’ ” ’ death in the case the juror.” Because the qualification [Citations.] before standard operates in same manner whether views are juror’s prospective for or death v. Illinois against penalty (Morgan U.S. 726-728 2222]), L.Ed.2d 112 S.Ct. it is true that the ‘real equally question’ whether the juror’s views about would capital punishment prevent impair juror’s to return a verdict of life ability without parole in the case before the juror.” (Cash, supra, 719-720.) Cal.4th at pp.

We therefore found error trial court’s refusal of the defense’s voir dire: proposed trial ruling court’s defendant’s prohibited “[T]he from attorney voir inquiring dire whether during would prospective jurors vote for the automatically death if the defendant had penalty previously committed another murder. Because in case defendant’s of a this guilt prior murder murders of (specifically, prior his was a fact grandparents) general or circumstance was present case that could cause jurors some invariably vote for the death penalty, regardless of strength circumstances, mitigating the defense should have been permitted probe as to prospective jurors’ attitudes that fact or circumstance. In prohibiting murder, voir dire on a fact prior great be of likely significance to (Cash, jurors, the trial court erred.” supra, prospective 721.) 28 Cal.4th at p. Cash's Of for case particular importance was discussion of present v. Medina (1995) 11 Cal.4th 745-746 Medina, 2], relies, “In which Attorney General particularly trial court declined to initially voir dire on whether permit jurors prospective could vote life if the imprisonment defendant had committed multiple murders, but later the trial court its changed ruling allowed such dictum questioning. doubt that the court’s initial Despite expressing ruling incorrect, we held that the initial did ruling the defendant prejudice ‘after the because trial court clarified its to the position respect multiple *20 to this murder failed ask to reexamine on juror question, Medina, supra, Here, contrast, 746.) 11 Cal.4th at p. by topic.’ never altered its erroneous and defendant had no ruling, trial court opportu- (Cash, to reexamine with to the murder nity any juror prior question.” respect supra, 722.) Cal.4th at p.

As our discussion of Medina in Cash categorical a trial court’s suggests, of into could vote life juror an whether a for prohibition inquiry prospective be error. without for a defendant convicted of murder would parole multiple aggravating mitigating murder falls into the or circum- Multiple category (Cash, be to “likely jurors.” stances to of great significance prospective supra, 721.) this 28 Cal.4th at The General does not p. Attorney dispute Rather, that not denied the argues General defendant was point.7 Attorney dire murder. We to conduct voir on subject multiple agree. opportunity on the trial court did not include the sought-after Although question murder in the it never that defense suggested multiple jury questionnaire, voir The trial ruled that counsel could not raise the issue in dire. court never did not to the object was question inappropriate, prosecutor itself, but that the better asked only question opined question “probably sure, this the court.” To be as discussed more the next by fully part the most did part the trial court conducted voir dire itself for opinion, But the trial court jurors. not allow counsel to directly question prospective I that would voir dire questions made clear it on permit “supplemental if ask me to ask.” Defense counsel never to you suggested would ask it voir dire on the murder. The court multiple presented court that subject he to ask death jurors regarding penalty the questions planned prospective stated that he had “no legal objections.” and defense counsel invitation to ask contends on court’s appeal for limited allowing “was questions clearly purpose supplemental to certain individual attorneys suggest clarifying questions respect an counsel to additional jurors, suggest general questions invitation for But record that contention. The be directed to the full belies jury panel.” dire, for into its voir example, question trial court general incorporated that the informing jurors prosecu- suggested by prosecution prospective bargain be a witness who had entered into calling plea tion would to be Whether whether believed they plea bargaining improper. inquiring brief, argued opinion we our Attorney respondent’s in the filed before issued General Cash, defense counsel that Medina made required permit clear the trial court is not multiple murderers. In jurors’ penalty on the death prospective into views inquiry defendant’s request, Attorney dispute General does not supplemental briefing filed our contrary subject this to our denying the to voir dire the opportunity contention that right an impartial Amendment Cash holding in and would violate defendant’s Fourteenth jury.

287 not the trial court have an general would additional voir approved question dire about asking attitudes toward murderers is unclear. What juror’s multiple that did is clear is defendant not such a Nor does he contend request question. court had a trial sua ask the on voir dire sponte duty question merely it because was informed that defense such counsel desired be question in included the questionnaire.

Thus, not, contends, whether his claim of Cash as question is error was but rather properly whether error was committed. preserved, Although asking jury in the would multiple-murder question questionnaire been have refusal to include the was not error so improper, question long as there was an ask voir dire. Because opportunity question during defendant did not to have the trial court attempt conduct murder multiple dire, during voir and the court inquiry trial no to rule given opportunity on the of that we conclude propriety inquiry, defendant cannot claim error. Cash, Medina, 722; (See supra, 28 Cal.4th v. People supra, p. 11 Cal.4th at 746.) p.

C. Failure to Conduct Qualification Individual Death Dire Voir dire, Defendant claims the court erred in voir conducting group dire, particularly voir death-qualification violating his constitutional thereby due rights to an process, and to be free of impartial jury cruel unusual Const., 5th, 8th, (U.S. 6th, Amends.; punishment. Const., I, & 14th Cal. art. 7, 15, 17.) We conclude no error was §§ committed. Hovey Court 128,

In Superior (1980) Cal.3d Cal.Rptr. 1301], P.2d we held that order minimize prejudicial potentially “[i]n declares, dire], effects voir open-court this court its pursuant supervi [of authority over California sory criminal that in future procedure, cases capital that dire voir of each portion which prospective juror deals issues which involve should be done death-qualifying individually (Fns. v. Waidla omitted.) In sequestration.” 22 Cal.4th 46], 713-714 we recognized that our holding Hovey had been Code of Civil abrogated by Procedure section part 115 enacted That Proposition voters section provides 1990. cases,” cases, that part in criminal pertinent death “including penalty “[v]oir shall, dire of any jurors where occur prospective in the practicable, presence Proc., of the other jurors.” (Code 223.) Civ. § that Code of argues Civil Procedure section 223 unconstitu- is tional Hovey’s because death requirement individual which qualification, overruled, this court has not He based. is incorrect. “In constitutionally Hovey ... we indicated we clearly rule to our adopted pursuant under over criminal and not authority California procedure supervisory we did so because effects constitutional compulsion, prejudicial *22 in had not been shown voir dire court open associated with death-qualifying v. Anderson (1987) 43 Cal.3d to actual only be but potential.” 742 P.2d 1135 Cal.Rptr.

Further, of Procedure section 223 contends that Code Civil defendant case, refer and because its Hovey did overrule because it did not to that can be taken as that voir dire take “where practicable” caveat group place made Hovey. essentially argument by codification of This was v. in Covarrubias Court (1998) 60 1168 Superior defendant Cal.App.4th Covarrubias The in examined at length language, court Cal.Rptr.2d 91]. that 115 and concluded and ballot behind arguments Proposition purpose that Hovey’s overrule individual holding “section 223 intended to (Covarrubias, voir dire is death during qualification.” sequestered required 1178.) We in supra, holding at endorsed Covarrubias’s Cal.App.4th p. Waidla, 713-714, at and do so here. supra, again v. 22 Cal.4th People pages dire case was not defendant claims that voir in his Finally, “practi 223. of of Civil Procedure section meaning cable” within the Code “[S]ection to determine the advisability the trial court with discretion 223 vests of other dire in the conducting presence jurors.” of voir practicability Court, (Covarrubias v. 1184.) at A trial Superior supra, p. Cal.App.4th that to exercise its discretion to determine practica court fails altogether (Ibid.) with its statutory obligation. voir dire has not complied bility group be dire be determined to cases that voir group may Our have suggested actual, when, case, to in than it is result rather in a shown given impracticable Anderson, 1135.) (See supra, bias. Cal.3d merely p. potential, actual bias in the group there was such indication of Defendant contends motion, new case. In defendant’s trial voir dire process present dire two to the voir again prospective here on defendant appeal, points E., asked who when affirmatively Robert C. and answered jurors, Henry case in which such that every about death your feelings penalty “[a]re it?” you to death would penalty impose have the you opportunity impose cases, indicated the answers court that ways In both responded *23 dire, “I because think ... it’s ... an creating death.” atmosphere guilt not, however, individual, Defense counsel did voir dire propose sequestered as a solution to this but rather have the perceived problem, to trial sought court conduct voir dire when death-qualification only prospective jurors’ attitudes toward death as in the were penalty, expressed questionnaire, unclear. Defendant did raise the not issue of individual voir dire until his motion for a new trial. Defendant’s is claim therefore not preserved appeal. were, if it

Even it is without merit. that possibility prospective have jurors been may answering in manner questions believed they court to actual, wanted hear identifies most rather than bias and potential, is not a basis for a judgment. The trial court did not reversing abuse its discretion in with voir proceeding dire. group

III. Guilt Phase Issues A. Duress Instruction Refusal of instruction,

Defense counsel requested which trial court following refused to “If the give: agreed participated plan [to commit in the honest belief that life or his was in physical safety murder] if he did not danger he would not act malice and agree with participate, contended, could not be to guilty commit murder.” Defendant conspiracy now, and contends that the evidence such an instruction and that supported the trial court therefore erred it. to We consider turn each refusing give instruction, i.e, two in the parts whether case defense present can duress malice and be a negate whether it can defense to conspiracy commit murder.

1. Duress and Malice Penal Code section 26 declares to be a defense against duress perfect charges criminal when the “committed the act or made the person charged that had they under or menaces sufficient to show omission threats charged if cause to and did believe their lives would be endangered they reasonable defense does not crimes refused.” That section also this provides apply We that duress could rejected with death.” recently argument “punishable a first thereby reducing the elements of malice or negate premeditation, v. Anderson (People murder to or second murder. degree manslaughter degree 50 P.3d We (2002) 28 Cal.4th 781-784 Anderson, More- holding decline defendant’s invitation to reconsider over, cannot, law, intent, a matter of malice or negate because duress as murder, of a we further defendant’s degree reject elements first premeditation charged could intent for one that duress argument negate requisite Anderson, supra, (See 28 Cal.4th at degree a first murder. aiding abetting 784.) p. to Commit Murder Conspiracy

2. murder, not it duress be defense although may contends correct, is to a commit murder. Even he assuming defense conspiracy error, a duress the trial committed no because the facts did support court v. Flannel Cal.3d 684-685 Cal.Rptr. instruction. *24 84, to on a defense when theory only 603 P.2d court instruct obliged [trial 1] is there substantial evidence to support].) characteristic of all the duress upholding

“The common decisions [a the of threatened action: each lies in and the immediacy imminency defense] a immedi aggressor threatening the situation of active present represents v. (People of none a future harm.” ate danger; depict phantasmagoria v. 119, 342]; Otis 125 P.2d see also (1959) 174 Cal.App.2d [344 Bacigalupo In (1991) Cal.4th instruction, defendant to a duress arguing points that evidence supports and the others in of Michelle Evans that Cruz had told defendant testimony murders, went off to commit the in their before meeting just they group, that if of the attack on during person that one them “messed any up” Raper, Evans testified that Cruz looked intended murder victims. would “join” testified, as when made that threat. Evans also at defendant he directly above, beaten and tortured on that Cruz had ordered defendant recounted several occasions. in the evidence a duress instruction

We that substantial disagree supports Rather, fact defendant’s to the that strongly the evidence points case. present a fear for his not motivated by murders was principally participation life, in Cruz as a of figure authority. but stemmed from his belief rather murder had been formulated after the immediately plan Defendant’s behavior music), energetic to rock his dancing participation a bat and around (swinging out the his murder statements Detective carrying plan, subsequent Deckard and Gardner that he condoned murders Mary die, deserved a that he victims are not consistent with defense was to commit an threat the murders immediate imminent to his compelled by Deckard, life. did Nor defendant hint in Gardner his conversations Evans in the immediate aftermath of murders that fear his life a was is, motive. While fact that defendant was dominated Cruz primary as below, discussed at the factor could consider phase penalty trial, did it within the meaning constitute duress of section 26. The of defense duress therefore not available to defendant as to crime.8 Defendant also that a claims sentence of death for who someone commit ted a murder under duress would constitute cruel and unusual punishment Const., violation the United States (U.S. and California Constitutions 8th Amend.; Const., I, Cal. 17) art. because such an outcome would § impose ‘. . . so disproportionate “penalty crime for which it is inflicted that it ” shocks the conscience and offends fundamental notions of human dignity.’ Frierson 25 Cal.3d 599 P.2d Cal.Rptr. 587].) We need not decide an whether individual who kills because he faces the imminent choice between life or taking his own can be likely forfeiting above, constitutionally sentenced death. As explained immediately not this case.

B. Exclusion Cult Expert Testimony contends trial court erred in refusing to admit the guilt phase testimony Randy was a former Stanislaus Cemy. Cemy County Sheriff’s detective who in the specialized cults. Defense counsel study defendant, offered Cemy’s testimony to establish that under mind control Cmz, was unable to form the state techniques mental for first required *25 murder. degree The trial court excluded because he Cemy’s testimony was defect, not a on whether a qualified defendant had “mental expert mental disorder, or mental at committed disease” the time he the murders. Defendant erred, claims the trial him court and that the error of his to deprived rights Fifth, Sixth, due under process and Fourteenth compulsory process Amendments to the United States Constitution. We conclude there was no error. 8 Trial counsel recognize himself came to of a at inappropriateness duress defense instruction, guilt discussing When phase. modification duress he stated: “I tend to agree that the state prosecutor] of the evidence that to permit alluded earlier would not a [the

logical argument to the that was in place.” imminent fear of his life in the first [defendant] to or is

A trial court’s decision admit exclude evidence reviewable 1, for of Cal.4th (People Rodriguez abuse discretion. 9-10 [82 413, 618].) No abuse occurred here. 971 P.2d such Cal.Rptr.2d a whether a defendant had the to form “Expert capacity opinion did an of a or form such charged actually mental state that is element offense 28[9] of not admissible at the a trial. Sections guilt intent is phase [Citation.] 29[10] of to introduction of evidence mental illness when relevant permit a an whether a defendant formed a mental state is element actually offense, an a but do an to offer on whether not charged permit expert opinion had a mental state whether the mental to form or capacity specific v. Coddington the defendant harbored such mental state.” actually omitted, 528, 1081], 2 P.3d (2000) 23 Cal.4th fns. Cal.Rptr.2d (2001) 25 on another Price v. Court Cal.4th Superior overruled point Here, court fn. 13 25 P.3d or a was not concluded that who was not a Cemy, psychologist psychiatrist, to an as to whether defendant suffered from a mental render qualified opinion would raise a doubt about illness at time he committed the murders that murder; had nor degree whether defendant the mental state first requisite mental about the between Cemy qualified testify generally relationship was 582-583.) We (See of behavior. types Coddington, pp. illness certain determining Cemy’s conclude trial court did not abuse its discretion be should excluded. any guilt not relevant issue testimony phase Photographs C. Admission of trial, “the defense counsel moved in limine exclude gmesome

Before to Darlene Paris.” Counsel injuries argued photo- photographs 352, because their should be excluded under Evidence Code section graphs disease, defect, “(a) shall mental or mental disorder Section 28 states: Evidence mental state, including, but not negate capacity not admitted show or to form mental be deliberation, to, intent, aforethought, knowledge, premeditation, or malice purpose, limited disease, defect, or mental the accused committed the act. Evidence mental mental which solely actually formed a on the issue of whether or not accused disorder admissible intent, deliberated, aforethought, when a required premeditated, or harbored malice specific (b) be charged. public policy As there shall no defense of specific intent crime is a matter 0] impulse action capacity, responsibility, or irresistible criminal or diminished diminished hearing (c) insanity hearing. applicable This shall be to an juvenile adjudication section 0] discretion, (d) pursuant Nothing this section limit court’s pursuant to Section 1026. shall Code, the accused evidence on whether psychiatric psychological to the Evidence to exclude defect, disease, alleged or mental disorder at the time of the offense.” had a mental mental *26 10 action, any testifying about a guilt phase expert “In the of a criminal Section 29 states: illness, disorder, testify as shall to whether mental mental or mental defect not defendant’s to, states, include, are limited required or have mental which but not defendant had did not intent, The as to knowledge, aforethought, charged. question crimes or malice purpose, by the be decided trier required not have the mental states shall whether the defendant had did of fact.”

293 value and slight, effect was considerable their prejudicial probative there because was “no issue of the cause of the death of the victims or did location or extent of their wounds.” The trial court exclude some of admission but of two that defendant challenged allowed photographs, first, 46, now claims were admitted in exhibit error. The No. showed People’s skull, it, which, as the looked described picture Raper’s prosecutor second, “much like ... a hard-boiled shown after it cracked.” The egg 57, exhibit No. showed a view of Paris’s slashed throat. Defendant People’s error, Fifth, now contends this was under Evidence Code section 352 and Sixth, Eighth and Fourteenth Amendments to the United States Constitution. 57,

The General exhibit Attorney argues by No. the extent of showing Paris, the wounds inflicted and her near under- decapitation, graphically mined defendant’s defense that he not did intend and did not act any killing with malice or We the trial court did abuse premeditation. agree not its discretion in admitting and committed neither nor photograph statutory constitutional error. 46,

As for exhibit No. defendant did object to of the admission claim of photograph, his error is therefore forfeited. Even if an objection made, had been no reversal is warranted. rules governing admissibil admissible, ity evidence are settled: all photographic relevant evidence is statute, unless excluded under federal or state Constitution or have courts broad discretion in determining relevance of evidence but lack discretion to admit v. Scheid (1997) irrelevant evidence. 16 1, 348, Cal.4th 13-14 748], therein.) 939 P.2d Cal.Rptr.2d cases cited [65 of a “are Photographs murder victim always relevant how the prove occurred, crime charged and the obliged ‘not these prosecution prove ” witnesses,’ solely details from the of live even in the testimony absence of defense of the (People v. challenge particular case. aspects prosecution’s Pollock (2004) 353]; 32 Cal.4th P.3d see Cal.Rptr.3d Scheid, supra, 15.) Cal.4th at We are not after p. say, prepared skull, examining the that the trial subject photograph Raper’s court abused its broad discretion in implicitly its value concluding outweighed its probative effect. were prejudicial Even we to assume the we find contrary, would admission of the harmless photograph given strength evidence defendant’s in the People v. Weaver (See four murders. participation Cal.4th 933-934

D. Cumulative Error we find no valid claim of error on we defendant’s reject Because appeal, be reversed for cumulative guilt contention that his must phase judgment error. Special Eligibility

IV. Circumstances/Death Issues Circumstance Special A. Multiple-murder circumstance

Defendant claims that the multiple-murder special narrow his because it fails to rights violates Amendment Eighth adequately are have the class of murderers who for the death We eligible penalty. 656; v. 23 Cal.4th at Coddington, supra, this argument. (People rejected p. 231, 246 v. Phelps (1988) see also 484 U.S. L.Ed.2d Lowenfield 546].) our S.Ct. Defendant advances no reason to reconsider persuasive position. to Commit Murder Alone Cannot Make

B. Conspiracy Defendant Death Eligible death separate

Defendant contends trial court erred imposing for commit murder. As the General Attorney sentence him to upon conspiracy concedes, correct, have held that to commit is and we conspiracy Lawley is not a crime. 27 Cal.4th death-eligible murder in Lawley, 171-172 As “[u]nder (see 1260), we our to an unauthorized sentence statutory modify § power reflecting direct the trial court to issue an amended abstract of judgment shall murder, Attor to commit which the conspiracy sentence appropriate to . . . .” in this case for 25 life ney agrees years General imprisonment 171-172, (Id. omitted.) fn. at pp. Penalty

V. The Phase Remark Objection Mother’s Sustaining A. Defendant’s mother, called defendant’s Barbara At defense penalty phase, Vieira, direct his the end of defense counsel’s behalf. Toward testify examination, She death do [your you?” he asked her: “What would son’s] her moved to strike destroy “His death would me.” replied: prosecution now claims and the trial court sustained motion. remark committed error and violated defendant’s doing trial court so prejudicial evidence. Amendment Eighth right mitigating present *28 A statement about how a defendant’s death would make the family member suffer is not relevant individualized of defend an determination v. Sanders (1995) (People ant’s be excluded. 11 culpability may properly 751, 475, 420].) Cal.4th P.2d As we 546 905 stated Cal.Rptr.2d [46 Sanders: “The would that specific whether members questions family prefer defendant not be executed that a will or believe death sentence stigmatize not, however, record, character, them are to the defendant’s strictly relevant (Ibid.) v. Ochoa or individual weAs People further clarified in personality.” 353, 408, (1998) 19 Cal.4th 456 P.2d “A defendant Cal.Rptr.2d 966 [79 442]: others, may offer evidence he or she loved is members family that these individuals want him or her to live. But evidence is relevant this because it of constitutes indirect evidence the character. The jury defendant’s die, must decide whether the defendant deserves to the not whether defend ant’s deserves suffer the of member executed.” family having pain family case,

In the Barbara Vieira’s statement went the present beyond expression of her desire that defendant the be death which would have spared penalty, evidence, been character permissible spoke directly impact close, execution would have on her. Although we conclude the question Moreover, trial court did not abuse its discretion in her striking testimony. error, even if it error was harmless. It that Barbara is evident Vieira communicated to the of her jury, by whole she loved and testimony, valued her son and that were his crimes the result of association his Cruz and his followers. Her that his statement death would her would destroy not have added to the significantly jury’s of defendant’s character. picture v. Heishman (See 147, People (1988) 45 Cal.3d 753 Cal.Rptr. [246 P.2d 629].)

B. Prosecutorial Misconduct During Penalty Closing Phase Argument Defendant claims three instances prosecutorial during misconduct each of which he violated penalty phase, claims his Amendment Eighth right to a fair determination phase. These instances will be consid- penalty ered in turn.

1. Commenting on Lack Remorse Defendant’s During closing argument, commented on prosecutor briefly defendant’s lack remorse. Defendant comment contends that such allowed factor, remorse, lack prosecutor argue nonstatutory aggravating the death Boyd (See (1985) contravention of statute. penalty Cal.3d 772-776 P.2d We have 782].) held that Cal.Rptr. such comment is not misconduct when calls to the prosecution jury’s attention that the factor of remorse is not so as the mitigating long present, at the not comment on defendant’s failure testify does prosecution 83, 147-148 v. Crittenden (People 9 Cal.4th phase. penalty case, In the did not prosecutor present lack used an factor and did aggravating of remorse could be as suggest at the Nor could comment defendant’s silence penalty phase. prosecu error, i.e., characterized as committing Davenport tor’s be argument properly v. Davenport factor as an mitigation aggravating lack of arguing *29 861]); see (1985) 41 Cal.3d Cal.Rptr. 288-290 [221 Crittenden, supra, the 148-149.) Cal.4th at We therefore conclude pp. this instance. did not commit misconduct in prosecutor Mercy Statement Regarding 2. for Defendant 190.3, the (k), The under factor told the section jury prosecutor the determining could and for defendant in mercy consider jury sympathy if “I’d show you The then added: be prosecutor happy appropriate penalty. and that he showed those that exact same mercy sympathy people [defendant] none.” Defendant contends this was night. absolutely on Elm Street that It’s held, for argue, as we it is the prosecutor misconduct. But have proper evidence, does deserve on the that a defendant not sympathy. based capital Ochoa, supra, 464-465.) did no Cal.4th prosecutor pp. more than this. the and Bible Regarding Prosecutor’s Statements

3. Writings

Philosophical referring by that the committed misconduct Defendant contends prosecutor defendant Bible order to to sentence religion persuade to the in delivered some- following, death. In points particular, argument: where in middle prosecutor’s this not an I want to tell is you I want touch on. And “Something of have I in event only any you factor. bring up subject aggravating it, . . that. I can . reservations about then any hopefully help at all. from of This is not religion. aggravating “That’s the subject ‘Gee, it says Bible they say, to time have a because problem time kill,” I will mine the Lord. shall ’ is “Vengeance sayeth “Thou not , . . goes . it very But in the next passage That’s found Romans. repay.” bears not the sword ruler says, and calls for punishment capital ‘[t]he God, him to execute wrath for revenger upon in vain he is minister ruler, whatever. government, He’s about that doeth evil.’ talking “Now, the ethic the Old believe Judeo-Christian comes from Testament—I there the first five books—called Torah in the Jewish And are religion. that’s, one, two that are found there. And very important concepts capital for murder is in order to punishment necessary preserve sanctity life, and, two, human the severest of death can underscore the only penalty life. severity taking Exodus,

“The really verses to 14: interesting chapter passage ‘Whoever strikes shall another man kills him be to death. But if he put God, did act with they intent but met act of flee to a by may slayer which I will like you.’ Kind of life without place appoint possibility haven, ‘But if a man parole, sanctuary. has the to kill another presumption you shall take even from to be treachery, him altar to death.’ There is my put killer, no sanctuary for the intentional to the according Bible.

“Now, I’ll leave it at That that. event have just any you *30 reservations about in this religion case.” v.

We recently considered a very similar People argument prosecutorial Slaughter 27 Cal.4th 47 1208-1209 P.3d Cal.Rptr.2d (id. heldWe this line argument 1209), of to be at but improper 262]. p. nonetheless First, the defendant’s upheld death sentence for several reasons. we noted that the had forfeited the issue at by failing object trial. (Ibid.) Second, we held that such did forfeiture not constitute necessarily “ ‘ counsel, ineffective assistance of that choice of when to realfirming “[t]he object is a of inherently matter not tactics reviewable on ordinarily ”’ (Id. 1210.) at appeal.” p.

Third, we held the misconduct to be prosecutor’s After nonprejudicial. issue, our case law this reviewing on we stated: “Biblical references that in v. rival in length those in the present case were found harmless Wash [(1993)] 1107], Cal.4th references, because after the biblical ‘the making embarked a prosecutor upon and detailed devoted lengthy argument exclusively to the evidence in aggra vation He .... did not return to the of God or but instead subject religion, a sentence of based urged death defendant’s moral upon for the culpability Thus, light crimes in of the statutory factors. do not the objection we believe able remarks could have the reasonably diminished sense of jury’s responsibil the ity, displaced court’s instructions. There is no that possibility [Citation.] would have a reached more verdict had jury favorable the misconduct not The true in the case. The occurred. same is present prosecu [][] [Citation.]’ were but during tor’s biblical references his penalty phase argument improper Slaughter, supra, 1211.) harmless.” Cal.4th p. in the did not object

The same can be said case. Defense counsel present and we from an examination argument, say biblical cannot prosecution’s tiie record that the lack of constitutes ineffective objection appellate Moreover, above argument only assistance counsel. the biblical was quoted that focused argument primarily explaining small part prosecutorial factors statutory aggravating it should conclude jury why factors. We therefore conclude that misconduct outweighed mitigating was prejudicial.11 claims misconduct in the also prosecutorial prosecutor’s quota- of Lord which identified to the as a “in the old judge

tion he Denning,12 as Court of That stated Appeal England.” quotation, by prosecutor, “Punishment its denuncia- as follows: is in which way society expresses law, it tion of In order to maintain for the is essential wrongdoing. respect crimes that the inflicted for should reflect punishment grave adequately felt of citizens them. It is mistake great revulsion majority or reformative or being consider as deterrent objects punishment truth else .... that some crimes are so nothing preventive because wrong- insists on outrageous society adequate punishment it, it is a deterrent or not.” doer deserves whether irrespective merely There was no misconduct. The this case asked prosecutor *31 to make that this defendant deserved the individualized determination jury were outrageous, regardless death for these crimes because they particularly deter other crimes. There was no of whether or not his execution would the would obscured the understanding likelihood have argument jury’s proper at of its role the phase. penalty 11 condemning clearly prosecutorial reliance on biblical We note that our statements closing argument in cases filed late authority were made a series of 1992 penalty phase Wash, 260-261; supra, People v. (1992) Sandoval (See 4 v. pp. Cal.4th at and 1993. 6 155, 342, 862]; People v. Wrest (1992) 3 Cal.4th Cal.Rptr.2d 841 P.2d Cal.4th [14 193-194 511, 1088, 1020].) argument prosecutor’s closing 839 P.2d 1991 Cal.Rptr.2d 1107 [13 argument prosecutorial do whether biblical these decisions. We not decide predated a more deliberately holdings decisions constitutes and contravenes those postdates warranting phase judgment. penalty misconduct reversal of the prosecutorial form of serious 12 briefs, “Dinning,” spelled apparently but and in the the name is Lord transcript In Appeal, of English on the Court between Thompson Denning, to Lord who served

refers Alfred 6, (Lord (Mar. 1982, Denning, The Times London years as Master the Rolls. 1944 20 1999) A-21.) p.

299 Error C. Instructional Alleged he claims error which of instructional various alleges types Eighth determination under the a fair

violates his to right penalty no merit We find to the United States Constitution. Fourteenth Amendments claims. in these 8.85, ex No. which various defects in CALJIC

Defendant claims as must jury weigh, factors mitigating the various aggravating plains First, that the trial court should defendant contends set forth in section 190.3. evidence, there was no factors for which mitigating have omitted those to point those factors including gave prosecutor opportunity because contends, least, At the very to the lack of evidence. mitigating instruction according requested trial court should have instructed jury, 1, an could not be considered No. that absence of a factor mitigating held, “a could not have juror factor. But as we have reasonable aggravating . amounted to the mitigation presence believed . . that the absence 754, v. Benson 52 Cal.3d aggravation.” (People Cal.Rptr. contention, And, 330].) P.2d nothing defendant’s contrary factors the absence of various argument noting mitigating prosecution’s factors. Nor need aggravating would have misled the consider them as jury have which factors were mitigating aggravating. instruction labeled factors (Id. 801.) Nor was the failure to delete mitigating p. inapplicable (1996) 13 Cal.4th from the instruction constitutional error. v. Ostand 190.3, Nor is section “the of the crime of (a), factor to consider circumstances asking jury unconstitu the defendant was convicted in the proceeding,” which present Sanders, 563-564.) 11 Cal.4th at tionally vague. (People supra, pp. been instructed according Defendant contends the should have jury have instruction No. which would requested specified types under section evidence that could be considered in mitigation penalty phase 190.3, (k), to consider other circumstance jury “any factor permitting which extenuates the of the crime.” For gravity example, requested would have made clear that the could consider “whether instruction *32 and solicited others to crimes” “whether by was participate of the other the defendant or dominance leadership occupied position clear, (k) factor is for in the crimes.” As we have made adequate participants circumstance, extenuating that it take account of informing jury may mitigating jury and there is no need to further instruct specific (See circumstances. People Hines 997, v. (1997) 15 Cal.4th 1068 [64 594, Cal.Rptr.2d 938 P.2d the need for a [rejecting doubt” “lingering 388] instruction in addition (k)].) to factor It is generally task of defense counsel in its instructions, rather closing argument, than the trial court its to make clear to the jury which evidence or penalty phase circumstances should be considered (k). under factor extenuating

Defendant claims error in the trial court’s failure to instruct accord 3, ing requested instruction No. that the consider that jury may accomplice Michelle Evans was permitted to a lesser plead guilty offense although The trial court equally culpable. refused to deliver the instruction and directed defense counsel not to argue that to the The trial court did point jury. not err. “The sentence received an by is not accomplice or constitutionally statutorily relevant as a factor in Such mitigation. information does not bear on the circumstances of the crime or on the capital defendant’s own character and record.” (People v. Bemore 809, (2000) 22 Cal.4th Cal.Rptr.2d [94 1152].) 996 P.2d

Defendant also claims a defect in CALJIC No. 8.88. The instructed that per instruction that weighing various circumstances “[i]n you determine simply under relevant evidence which penalty justified and totality of the appropriate considering aggravating circumstances with the of the totality circumstances. To mitigating return a judgment death, each of must be you that the persuaded aggravating evidence is so substantial with the comparison circumstances that it mitigating warrants death instead of (Italics life without added.) parole.” argues instruction’s language to the referring of the “totality” aggravating circumstances im- mitigating erroneously that a plied single circumstance mitigating could not all outweigh aggravating circumstances hence could not serve as a basis the more lenient sentence. We have rejected argument: “Certainly, juror [a reasonable] would not have . . . interpreted language to the referring ‘totality’ aggravating circumstances in a mitigating ‘death oriented’ fashion to ‘relateQ’ to the solely ... of the ‘quantity factors’ not to their or ‘quality,’ ‘ “a mere mechanical to entail counting of factors on each side of the scale imaginary There is no reasonable likelihood that the jury misconstrued or misapplied challenged instruction in violation of the or Fourteenth Eighth Amendment to the United States Constitution or any other legal principle.” Berryman provision (1993) 6 Cal.4th 40], 1099-1100 864 P.2d overiuled Cal.Rptr.2d on other v. Hill 800, 823, grounds 17 Cal.4th fn. 1 952 P.2d

301 the jury that the trial court’s failure to instruct Defendant argues standard, standard of doubt or indeed any on a reasonable penalty phase true, outweighs evidence is or for finding aggravating proof, evidence, Fifth, and Fourteenth violated defendant’s mitigating Eighth federal does not Amendment Not so. “The Constitution rights. require each doubt to find a reasonable jury beyond prosecution proved factor, those in that the circumstances in aggravation outweigh aggravating v. Hawthorne appropriate penalty.” (People or that death is mitigation, “ 133, 43, 118].) 4 P.2d ‘Unlike (1992) Cal.4th 841 Cal.Rptr.2d [14 determination, and norma “the function is moral guilt sentencing inherently tive, and, hence, not factual” to a susceptible burden-of-proof [citation] ” 1153, v. Box (People (2000) 23 Cal.4th quantification.’ [99 69, 130].) 5 P.3d Cal.Rptr.2d

Defendant contends that the should have been instructed that jury has the burden of to convince the that death prosecution jury persuasion was the We have this routinely rejected argument. appropriate penalty. “[T]he or has no burden of that death is the prosecution appropriate proof penalty, exist, that one or more in order to obtain a factors or crimes aggravating v. Anderson (2001) of death.” (People judgment 25 Cal.4th Nor, 347].) 22 P.3d to defendant’s should Cal.Rptr.2d contrary argument, been instructed jury have on a life without presumption parole “[Njeither sentence. death nor life is presumptively appropriate inappropri circumstances, ate under set of but in all cases the determination of the juror.” remains a for each individual appropriate penalty question Samayoa 15 Cal.4th

D. Trial Court’s Death Modify Sentence Refusal The trial court refused defendant’s motion to verdict of modify 190.4, death the trial (e). section subdivision Defendant contends pursuant court erred. We disagree.

Defendant focuses on a statement made the trial court in the course of by its refusal the motion. The court stated: “The function modify explaining evidence, of the court in this motion is to review the consider and to take into circumstances, and be account guided by aggravating mitigating then make a determination as to and verdicts were jury’s finding whether or were not to law.” Defendant contends that the italicized contrary portion its this statement on the trial court’s misunderstanding represents part function, of its and that this undermines misunderstanding validity proper on the motion to the verdict. ruling modify

As we have stated: “In on a verdict-modification ruling application, (e) to ‘make an the trial section 190.4 judge required [subdivision] *34 of the death determination whether independent imposition penalty upon evidence and the law.’ defendant is of relevant light applicable proper decision that That is to he must determine whether say, jury’s [Citations.] death is under all circumstances adequately supported. appropriate i.e., And he must make that determination independently, [Citation.] the evidence accordance with the he himself believes deserves. weight Cal.3d v. Marshall Cal.Rptr. [Citation.]” the italicized of the trial court’s statement above Although portion quoted some doubt about whether the trial court understood that it was to may leave 190.4, (e), under section subdivision its review the verdict independently The court “Naturally, next statement removes doubt. stated: very determinations.” A review of court did the evidence in those reweigh making of reasons for defendant’s denying the remainder of court’s statement motion, of each aggravating in which it its assessment explained independent each, makes clear the given factor and the relative mitigating weight trial court understood its role and acted accordingly. proper error can be found in the court’s

Defendant also contends trial court that a could be made” that the death sentence statement “strong argument victim, would not have been if had been the sole justified light Raper defendant’s lack of a criminal record and violent as well as his past, subservient status in Cruz’s cult. Defendant that the murder argues Raper alone would not have made defendant death and that the court’s eligible, the death under a circumstance only statement it sentence might modify that would have made defendant for the death shows ineligible penalty 190.4, that the its function under section abrogated” court “effectively (e). subdivision the trial court’s statements. The trial

Defendant distorts the meaning as a means of explaining court used the of the sole murder example Raper the court concluded the it evidence. While weight mitigating gave inconsiderable, and could have led to a reversal evidence was not mitigating committed, crime been of the death sentence had a less aggravated the four outweigh did not in the trial court’s judgment evidence mitigating as murders in which defendant gruesome participated perpetrator planned, that it The trial did not as defendant suggest, implies, court accomplice. defendant was guilty would affirm the verdict because automatically context, in the trial we find no error murder. Taken its proper multiple court’s statements. Penalty

E. to the Death Law Challenges Constitutional the state’s death Defendant makes various constitutional challenges *35 law, from a fair obtaining that the law him contending penalty prevented Amendments determination and Fourteenth Eighth penalty required these have no challenges to the United States Constitution. We conclude validity. to make

Defendant contends that the should have been jury required and the factors that it found in findings regarding aggravation explicit (1998) We have that claim. v. 18 Cal.4th mitigation. Kipp rejected (People 349, 716, 1169].) 381 P.2d Cal.Rptr.2d 956 [75 unconstitutionally contends that his death sentence is and defendant arbitrary, discriminatory requests disproportionate. Specifically, review, that his sentence be due reversed to intercase pursuant proportionality convictions, to his lack of and that he acted out his his contention prior youth, of fear for his own life. an Additionally, intracase requests propor review, codefendants who received less tionality claiming some of his severe sentences were more than he was. It well settled that culpable Anderson, 602.) neither is v. 25 Cal.4th at For that (People required. supra, p. reason, we also defendant’s related claim that reject comparative appellate review is constitutionally compelled.

Defendant contends that the California death statute violates penalty due law channel or limit the sentencer’s process failing sufficiently discretion to and death sentences because prevent wholly arbitrary capricious is neither told which factors are nor is aggravating mitigating, given any direction as to how to to those factors. Defendant is assign weight incorrect. “We have the contention that the factors rejected sentencing section are unconstitutional because do not which they specify [in 190.3] factors are v. which are aggravating mitigating. (People [Citations].” 926, 291, (2001) 25 Cal.4th 1041 25 P.3d Cunningham Cal.Rptr.2d [108 addition, held, 519].) In as the United States Court has a capital Supreme sentencer need be instructed how to factors weigh sentencing may “ be ‘unbridled discretion in the death given whether determining penalty should be after it has found that the defendant is a member of the imposed ” (1994) made class for that v. 512 eligible (Tuilaepa penalty.’ California 967, 750, 2630].)13 U.S. 979-980 L.Ed.2d 114 S.Ct. [129

Defendant contends that the death fails to California statute penalty narrow the death violates class of offenders for the thus eligible penalty Ring v. Arizona rejected argument reply We have also found in defendant’s brief that 556, (2002) requires L.Ed.2d to reassess 536 U.S. 584 122 S.Ct. us 2428] 73, v. (2004) constitutionality penalty of the death 32 Cal.4th 139 [8 statute. Valdez Cal.Rptr.3d 82 P.3d I, Amendment, section 17 of the California Constitu- and article Eighth contention, defendant offers a statistical based analysis tion. In this support of murder convictions for years on an examination of published appeals fails to the statistics show that the California statute claiming defendants, of the the class of because death-eligible particularly narrow and the felony broad circumstance various lying-in-wait sweep special did in We come to the same conclusion as we murder circumstances. special Frye 18 Cal.4th 183], their that California’s circumstances ‘are not overinclusive by “special to reconsider number or terms.’ . . . Defendant’s statistics do not us persuade of these decisions.” validity *36 the California death scheme is Defendant contends penalty unbridled attorneys unconstitutional because it allows individual district This as to which cases will be as death cases. prosecuted penalty discretion v. Lucas People (1995) we 12 Cal.4th is without merit. As stated argument 415, 525, 477 P.2d “Prosecutors have broad 907 Cal.Rptr.2d [48 373]: crime. . . . Absent discretion to decide whom to and for what charge, proof or vindictive as a matter defendant who has general invidious prosecution, death been convicted of a crime under a constitutional duly penalty capital heard exercise statute not be may complain appeal prosecutor’s circumstances and seeking of discretion in him with charging special not raised a claim of invidious death Because defendant has penalty.” or vindictive his fails. argument discrimination prosecution, 190.3, (d), constitutionally Defendant contends that section factor “extreme mental or consider only defective because it directs jury therefore, to the (italics added) Eighth contrary emotional disturbance” Amendment, to consider all available mitigating does not permit jury finds the same defect in factor which directs (g), jury evidence. Defendant “whether or not defendant acted under extreme duress or under to consider the substantial domination of another person.” (Italics added.) But as we have not, held, read in (d) in factors do when (g) these adjectives qualifying (k), factor from with the catchall preclude conjunction provisions disturbance, duress, domina emotional less extreme forms of considering 137, Turner (1994) 8 Cal.4th 208-209 People (See Cal.Rptr.2d tion. v. [32 762, P.2d 878 the methods of execution employed

Defendant contends that that his Fourteenth Amendment and requests California violate the Eighth methods bear But the of those constitutionality death sentence be vacated. “ ‘ and not on the the execution of the sentence on the “solely legality ’ ” Samayoa, supra, v. 15 Cal.4th at (People of the sentence itself.” validity 864.) p.

305 F. Violations International Law

Defendant that various errors made at trial and various contends of the trial violate international law. As we have explained, aspects have “been held international treaties and resolutions to which he points 739, v. Ghent (1987) effective as domestic law” 43 Cal.3d 779 [239 82, v. Hillhouse People 1250]); (2002) see also 27 Cal.4th Cal.Rptr. 45, 754]), and a basis for 40 P.3d are therefore not Cal.Rptr.2d reversing judgment.

G. Cumulative Error are, Defendant contends various errors taken penalty phase together, reversal of the death sentence. Because we identified prejudicial require one harmless error at the only biblical penalty phase—the prosecution’s references—the claim of cumulative error is without merit.

VI. Restitution Fine $5,000 Defendant contends that the trial court erred in restitu- imposing tion fine the time of sentence to former section 1202.4 and former pursuant Government Code (a). section subdivision to an points statute, amendment (see the latter effective September Saelee 790]), added which Cal.App.4th *37 that the language of the restitution fine is to the defend- imposition “subject (Italics omitted.)14 ant’s to ability He contends that he has no to pay.” ability $5,000 fine and the fine should pay be reduced to the minimum. statutory amendment; is not entitled to benefit from the it 1992 1994, 1106, 3, However, (Stats. 6547.) in ch. a repealed 1994. pp. § defendant generally is entitled to benefit from amendments that become Here, effective while his case is on of restitution appeal. question 1202.4, should be considered under the current of Penal Code version section fine, which detailed to the a provides guidance trial court restitution setting consideration of a date including defendant’s “The is the ability pay. key date of final If the statute judgment. amendatory lessening punishment becomes to the date the final effective of conviction becomes prior judgment then, it, in our and not the old statute in effect when the opinion, prohibited committed, 740, (In re Estrada act was (1965) 63 Cal.2d 744 applies.” [48 14 13967, (a) provided pertinent part Former Government Code section subdivision at the offenses, time defendant person felony was sentenced that “if the is convicted of one or more impose separate the court shall a and additional fine of not than one hundred restitution less 1991, 657, 1, ($100) ($10,000).” (Stats. dollars and not more than ten thousand dollars ch. § 3020.) p. pertinent person The amendment stated in part: 1992 is convicted of one or “[I]f offenses, felony more impose separate the court shall a and additional restitution fine of not ($200), subject ability pay, to the than two hundred less dollars and not more defendant’s 1992, 682, 4, 2922, ($10,000).” (Stats. added.) than ten thousand dollars ch. p. italics § 306 T. we cited with 172, Pedro 948].) “In case 408 P.2d approval

Cal.Rptr. that, retroactive of an for the holding determining application purpose statute, a not final until the time for amendment to a criminal judgment the United States Court has for a writ of certiorari Supreme petitioning (In 74, 1041, T. 884 re Pedro (1994) 8 Cal.4th 1046 Cal.Rptr.2d passed. [36 In re Pine 1022], (1977) Cal.Rptr. P.2d citing Cal.App.3d [136 Bell L.Ed.2d Maryland v. 718]; (1964) 378 U.S. see also which, at rule such proceeding 84 S.Ct. applies 1814] [‘The [criminal] final the time of the has reached legislation, yet disposition supervening (People Nasalga it’].)” in the court authorized to review highest 784, 789, Cal.4th fn. 5 Disposition

VII. murder count the death sentence as to the to commit We reverse conspiracy to the trial court to issue an amended abstract judgment and remand We for 25 to life for count. years sentence reflecting imprisonment of the also remand to the trial court for reconsideration question choose not fine under the statute. If the currently restitution applicable remand, fine shall be reduced to contest the matter on defendant’s restitution counts, as to the three other judgment to the minimum. death statutory in all other is affirmed. judgment respects, J., J., J., Baxter, J., J., Chin, Brown, concurred. C. George, Werdegar, KENNARD, J., Dissenting.—I join majority uphold- Concurring Code, 187) (Pen. for murder with the special defendant’s conviction ing § Code, 190.2, (a)(3)). I write (Pen. murder subd. circumstance of multiple § however, of one analysis guilt out a problem separately, point of cult testimony Randy issue: the trial court’s exclusion expert phase Cemy. *38 that with the conclusion majority’s prosecutor’s

Because I disagree defendant, I would death did not calling biblical argument prejudice death. reverse the judgment

I murder, and a submissive defendant was 21 old years At the time of occult, Gerald Cruz. cult headed codefendant by of an satanic member that included regular of mind control Defendant was to subjected process humiliation, and mini- sexual severe physical punishment, sleep deprivation, “slave,” the cult’s Defendant acted as family. of contact with his mization children, chores, as a acting handy- Cruz’s cooking, bathing household doing man, He Cruz’s sought to the cultists’ camp. at staying night guard up showed diary of matters. Defendant’s for even the most trivial permission that he had internalized of Cruz’s values: Defendant wrote of the many desire to sacrifice himself so that Cruz’s health would and he improve expressed gratitude for Cruz “merciful” when being Cruz refrained from him having beaten.

Cruz was at Franklin angry whom Cruz accused Raper, bringing illegal drugs attracting users to the drug vicinity cultists’ camp. One Cruz decided day, to kill everyone residence. Cruz Raper’s gave cultists, defendant, including exact orders on what to do and threatened to kill who anyone “messed When victim Emmie Paris encountered up.” defendant kitchen, she to scream. Raper’s began Cruz ordered defendant to shut her and he handed defendant a knife. up, Defendant killed Paris with the knife. Defendant was convicted of the murder of Paris. Other cult members killed house; three other at the people was convicted as an accomplice those killings.

II trial, At the guilt phase defendant’s capital trial court refused let retired cults, Sheriff Deputy Randy “as an Cemy testify expert study in the cults, mind control of members of how cults and what effect it operate has on the members.” later testified at (Cemy the penalty phase.)

After a to determine hearing Cemy’s as an qualifications expert, court cults, that acknowledged was a Cemy on and that the qualified expert of cult subject behavior was one beyond common and could knowledge court, be suitably however, addressed an by expert opinion. barred Cemy from before the testifying at the guilt “Penal Code phase, explaining: Section disease, such evidence requires a . . . regard mental mental defect or mental disorder defendant. The Court is not satisfied that Mr. has the Cemy control, expertise testify mind if about any, brought disease, a member being defect, of a cult ais mental mental or mental disorder as to Mr. Vieira or as to other person.” Defense counsel then said, “I never disease, disorder, intended to ask him if had a anyone mental or defect.” The trial court “I understand. But to replied: get [CALJIC No.] 3.32 jury instruction 28], Penal Code incorporating [the section the testimony defect, disorder, has to relate to a mental mental or mental disease or it’s irrelevant.”

The trial court defendant, could well have concluded that notwithstanding disclaimer, his was disease, offering Cemy’s as evidence of mental testimony defect, disorder, inadmissible, and that such testimony either because was not Cemy to render qualified an opinion these mental states or *39 because it was of diminished testimony barred Penal capacity Code section 28. The is that problem the trial court did not decide whether disease, defect, defendant was offering evidence of mental or disorder. that, admissible, to the to be evidence relating Instead court assumed disease, defect, or mental elements of a crime must be evidence of mental disorder. the use incorrect. Penal Code section 28 limits only

That assumption disorder; disease, defect, mental to show mental mental or of evidence offered that a defendant lacked the such evidence not be introduced to show may crime, but it is mental state essential to a any charged to capacity form actually or not the accused admissible on issue whether formed to state.1 There is no rule that evidence offered show mental required to murder must be evidence of absence of a mental state essential first degree disease, defect, a mental or a mental disorder. To the contrary, mental defect, disease, mental who not have a mental mental or does intent lack the mental state to commit a specific disorder still may required crime, entitled evidence from which the could infer jury is to present if cult was not Cemy absence of the mental state. Even requisite expert disease, defect, disorder, mental he still be might as to testify qualified behavior, cult from which the could testimony jury about testify qualified mental at the time of the murders. draw inferences about defendant’s state if the trial court erred in cult from barring Cerny testifying But even expert Although jury the defense at the that error was harmless. guilt phase, infer could have relied on absence Cemy’s testimony premeditation, kill- the evidence that defendant was a in the willing participant light residence, he to the to kill found at agreed anyone Raper ings—he plan Paris, and he told his when he described the murder of Emmie laughed reasonably that the victims deserved to die—it is not probable girlfriend (1956) 46 Cal.2d (See would have done so. v. Watson the jury Moreover, heard defendant’s evidence when the jury eventually expert how cults use at the of the trial and testified Cemy penalty phase explained isolation, dominate and and occult ritual to deprivation, punishment, sleep returned a death their members. The nevertheless jury control minds of verdict.

Ill trial, argued of defendant’s At the phase capital prosecutor penalty the death biblical justified imposition certain passages disease, defect, (a), mental or mental reads: “Evidence of mental Section subdivision state, negate the to form mental capacity be admitted to show or disorder shall not intent, deliberation, to, or malice knowledge, premeditation, including, purpose, but not limited disease, mental act. Evidence of mental aforethought, which the accused committed the defect, not the accused solely on the issue of whether or or mental disorder is admissible deliberated, intent, malice or harbored required specific premeditated, actually formed a charged.” aforethought, specific when a intent crime *40 ‘Gee, from time to time have a

penalty: “People because in problem they say, kill,” it Bible “Thou shall not says, is mine “Vengeance sayeth ’ Lord. I will That’s found in Romans. But in the next repay.” very pas- , . . . it sage on and calls for goes ruler capital punishment says, ‘[t]he God, bears not the sword in vain for he is minister of toor revenger ruler, execute wrath him that doeth upon evil.’ He’s about the talking government, whatever.

“Now, the Judeo-Christian ethic comes from the Old Testament—I believe the first five books—called the Torah in the Jewish And there religion. are that’s, one, two very that are important found there. And concepts capital for murder punishment is in necessary order to preserve sanctity life, and, two, human the severest only of death can penalty underscore the severity life. taking

“The Exodus, really interesting is in passage verses 12 to 14: chapter ‘Whoever strikes another man and kills him shall be to death. But if he put did not act God, with intent but met act of they by flee slayer may which I will for place Kind of like appoint you.’ life without possibility haven, parole, ‘But if a sanctuary. man has the to kill another presumption by treachery, you shall take him even from my altar to be to death.’ There put killer, no sanctuary for the intentional to the Bible. according “Now, I’ll leave it at that. That was in the just event you have any reservations about in religion this case.” In People v. Slaughter (2002) 27 Cal.4th 1208-1209 477, 47

Cal.Rptr.2d the same (Slaughter), as prosecutor 262] involved here the same presented biblical argument for the death This court penalty. held that in unanimously making this argument, committed prosecutor But, misconduct. to the Slaughter, according there majority was no preju- dice to the defendant. It reasoned: “Biblical references that rival in length those case were found v. Wash present harmless in [(1993)] Cal.4th 1107], 861 P.2d because after making references, the biblical ‘the embarked prosecutor and detailed upon lengthy argument devoted exclusively to the evidence in .... He did aggravation return to the of God or subject but instead religion, a sentence of death urged based defendant’s moral upon crimes in culpability light ” factors.’ (Slaughter, supra, statutory 1211.) 27 Cal.4th at p.

I dissented in Slaughter, joined Justice Moreno. The dissent stated: “The assertion majority’s that the prosecutor’s argument must be improper considered harmless because it was of a ‘part longer argument properly focused the factors in upon aggravation and mitigation’ makes little [citation] sense. Under that logic, refer prosecutors may freely to biblical authority when cases, their making penalty arguments juries capital secure *41 for that this never reverse a death resulting judgment court will knowledge misconduct, that the also an only prosecutors present argument this provided on the factors. statutory aggravating mitigating Appeals focusing in when jurors cases are authority jury arguments capital prejudicial divine balanced use mitigating for whom the factors aggravating appear closely doubts, their as the considerations to resolve religious prosecutor’s improper 1187, (conc. Cal.4th (Slaughter, supra, invites them to do.” 27 1228 argument Kennard, J.).) & dis. opn. 1187, here Slaughter, supra, 27 Cal.4th majority majority

Like it biblical harmless because argument considers prosecutor’s improper which of the total focused only primarily was part prosecutor’s peroration, ante, 296-297.) (Maj. on the factors. aggravating mitigating opn., pp. supra, Slaughter, agree Even if I were to that the improper argument 1187, I do not—the harmless nature Cal.4th harmless—which Slaughter argument argu- would not demonstrate that biblical improper here was ment harmless. Slaughter, supra, not as a murder as those in 27 Cal.4th aggravated

This is defendant, own and for the Slaughter, 1187. In on his initiative acting them. robbery, killing shot three two of purpose personally people, so, act on Defendant here killed one In he did not person. doing personally benefit, an own initiative or for his own but as obedient slave his personal leader Gerald Cruz. cult

Moreover, was not here there is a factor crime that statutory mitigating “under duress or Slaughter, supra, Acting 27 Cal.4th 1187. extreme present factor of another is mitigating under the substantial domination person” 190.3, Code, (Pen. if factor which the must take into account relevant. jury § case, under In this the evidence shows that acted (g).) Cruz, every cult leader who controlled substantial domination of Gerald did not follow of defendant’s life and threatened to kill who anyone aspect leader, it is influence of a satanic cult his orders. Absent the pernicious murder. that defendant would have committed doubtful (see People it is reasonably possible The test of is whether prejudice 1032]; 486, 285, P.3d Michaels (2003) 28 Cal.4th Cal.Rptr.2d v. Jackson 13 Cal.4th that, argument, biblical 1254]) without improper prosecutor’s The circumstances here meet not have returned a verdict death. would Thus, death. I would reverse the penalty test. May was denied rehearing petition

Appellants’ Kennard, J., was of read as above. was modified to printed opinion be granted. that the should petition opinion notes with the law. Defendant and not in conformity were inappropriate Robert C. same whose voir dire followed jurors panel prospective that to the same affirmative give unqualified response E. did not Henry several jurors, including persons He surmises that these prospective question. case, trial court’s influenced were as on the were jurors who seated law that E. and answers conformed gave to Robert C. and Henry responses untruthful, i.e., understated their they been may pro-death-penalty but have this argument trial motion bolster sought in the new bias. effect, from Dr. Schoenthaler the Hawthorne testimony concerning phenom- enon observed in social research the act of observation whereby science observed, the behavior as changes subjects of the when research subjects their behavior change to conform what as the they perceive expectations al., (See the researchers. Implications Daubert/Kumho et Risinger Observer Science: Hidden Problems Expectation Forensic Effects 1, 20, Suggestion 90.) Cal. L.Rev. fn. threshold, At the General did not Attorney claims object below voir dire and issue is waived. It group defense appears counsel to the objected questioning voir repetitive death-qualification