*1 2,Mar. S036864. 2006.] [No. PEOPLE,
THE Plaintiff and Respondent, GUERRA, JOSE Appellant. FRANCISCO *10 Counsel Defenders, Hersek, and Arnold S. Coffin and J. State Public Michael
Lynne Defender, Erickson, Public for Defendant and Appellant. State Deputy General, Anderson, Attorney R. Chief Assistant Bill Robert Lockyer, Attorney General, Hamanaka, General, Sharlene A. Assistant Attorney Pamela C. General, Games, Honnaka, Attorneys Keith and Alene M. Deputy H. Borjon for Plaintiff and Respondent.
Opinion
CHIN, Code, (Pen. This isan automatic subd. appeal (b))1 from § J. judgment death under the 1978 death law. A convicted penalty jury Jose Francisco Guerra of the first murder of degree Kathleen (§ (a).) Powell. subd. found true the circumstance special that defendant murdered allegation Powell while in the engaged attempted 190.2, (§ commission of former rape (a)(17)(iii), subd. now subd. (a)(17)(C))2 and further found that defendant used a personally deadly dangerous knife, to commit the weapon, (§ (b), murder former subd. now subd. trial, (b)(1)). After a (§ set the penalty death. et penalty 190.1 seq.) The trial court denied defendant’s motions (§ 1181) for new trial and to 190.4, modify (§ (e)) verdict penalty subd. and sentenced defendant death. This is automatic. appeal
We affirm the judgment.
I. Facts
A. Guilt Phase
1. The Prosecution’s Case Sims, In October Kathleen Powell lived with her boyfriend, Charles *11 on Kirkside Road in Los Angeles. house next door to Powell’s residence was remodeled. Defendant was a being construction worker at the remodeling site. 25, 1990,
On October around 7:15 Sims arrived home and found p.m., Powell’s body on the lying utility room floor in a of blood with a knife pool on of her chest. The room top utility extended from the kitchen and had a door to the backyard. a.m., in the
Earlier around morning, 10:00 Powell beckoned to Odell Braziel, site, one of the at workers the construction to come to her house. Powell had hired Braziel about a week before murder to some repair Thereafter, dents in her car and detail it. Powell had him occasionally given food and as beverages well as sandwiches share with the other plates house, said, construction workers. When Braziel reached Powell’s she “I have statutory All further references are to the Penal Code unless otherwise indicated. 2 During pretrial proceedings, granted request special trial court defendant’s to strike the 190.2, allegations (§ circumstance lying the murder was committed while in wait (a)(15)) (§ 190.2, during (a)(17)(vii), subd. and burglary commission of a former subd. now (a)(17)(G)). subd. mind, You, all I don’t you’re I can’t these feeding people. problem. keep car,” [defendant, Jose but “I with Francisco
working my got problem house.” Braziel suggested I can’t him from away my keep Francisco]. conversation, contractor, their During she tell Sims or the or call police. room door and into utility defendant walked into Powell’s house through ended, left, and Braziel Powell asked him to the kitchen. The conversation site, take defendant back to the site. When he returned to the remodeling contractor, Canale, of Powell’s Braziel informed A1 an electrical complaint. lunch, After defendant Braziel to him a of beer. Braziel buy asked quart beer, returned thereafter with the found defendant on Powell’s shortly standing Sloane, Eric the site back and him the beer. Around 2:30 patio, gave p.m., testified that Braziel had arrived site. Sloane manager, remodeling considerable that defendant was Powell “pestering” spent complained time at her house As Sloane walked around the site during day. looking defendant, for he heard the to Powell’s close and observed gate backyard defendant from a the two houses. When Sloane asked emerge hedge dividing defendant what on Powell’s he noticed defendant’s doing property, were eyes bloodshot and his breath carried a odor of alcohol. Sloane strong asked defendant whether he had been and defendant that he drinking, said had been robbed of his life He savings previous night. apologized him Sloane and assured that he would not to Powell’s go property again. Sloane, Braziel, After his encounter with defendant told see me “Forget you there.” thereafter,
Shortly Braziel found defendant on Powell’s back Braziel patio. leave, testified he tried to defendant to but defendant his persuade gyrated me, “in a sexual me for Braziel hips way” “Kathy Kathy.” repeated, demonstrated defendant’s movement for the jury by simultaneously gyrating the lower of his forward. Braziel observed portion body thrusting hips door and about three feet sliding glass go step through patio into Powell’s den as the Powell answered the just rang. telephone telephone in the front of the house. part *12 Semere, Powell’s,
Octave a coworker of testified that sometime between Powell, he 3:00 and 3:30 he Powell. While to speaking p.m. p.m., telephoned could hear Powell’s door and close. Powell hollered sliding glass open he say “Jose” to out of the house and asked Semere whether knew how to get out” in he did a enter “get but not. Semere heard second Spanish, person Powell’s doors and heard a man’s voice to her in through sliding glass say that, “this Jose is and “not to trust him.” He then heard English guy crazy” door to sliding glass get Powell tell third who had come person through out of her house.
Meanwhile, den, was just Braziel told defendant that Powell Powell’s “Kathy-me, and did not like him romantically. repeated friendly earlier, sitting and continued to A few while gyrate days me-Kathy” hips. coworkers, and with several defendant had made similar statements around term for female and word slang used gyrations Spanish “panocha,” drunk in reference to Powell. Braziel believed defendant was genitalia, breath, words, and he slurred his had a odor of alcohol on his strong because out, “Francisco, don’t why you go had Powell then called difficulty standing. indicated, with a find to do?” and you something to work? don’t Why motion, with Accord- for Braziel to leave and take defendant him. “shooing” Braziel, to the jobsite. she him to take back ing “begged” defendant and lock Braziel warned Powell that she should “watch out” for her door. He then returned to the with defendant. jobsite him her friend’s house
Braziel testified that Powell had take arranged in the to work on the friend’s car. Powell had told him she was going evening her on her to take a and asked him to wake 4:00 up p.m. by tapping nap said, her she “Francisco back window. When Braziel woke Powell from nap, and was Braziel asked was in house when I was door my asleep, my open.” there, I I defendant was and she “I know. know. her how she knew explained, I my feel him. I know he was there. I locked doors and woke my up, could doors were open.” informed Canale about Powell’s fear
Braziel returned to the and jobsite after this that defendant had been in her house. Canale testified sometime conversation, about 12 to 15 feet away he was on an electrical working panel window, he observed from Powell’s room. room utility Through utility to the leading in the room near the door utility defendant standing opened a brown substance from a glass Defendant was backyard. drinking based on the odor of alcohol Canale believed was Jack Daniels whiskey out of Powell’s from the room. Defendant walked in and utility emanating room several times. utility contractor, Romanak, at the testified that he arrived
John an electrical him that 4:15 and 4:30 Canale informed site between remodeling p.m. p.m. then Powell. Defendant drinking bothering defendant had been and asked, Canale understood the “Que of the kitchen and pasa?” out staggered “Nada,” mean, meaning “What’s happening?” responded, phrase commented, Romanak Defendant emitted a odor alcohol. strong “nothing.” He seems awful Romanak suggested “What’s with this wrong guy? uptight.” Braziel his tools day. away their tools and leave for away put they put car, defendant into her got met Powell in front of her house. After side, reached for the back Powell on the driver’s upper approached hand, body leaned his simultaneously upper driver’s seat with his right *13 car, said something if kiss her. Defendant head into her as possibly Powell, him. Powell back” “jerked did not understand but Braziel Spanish she was afraid seat. She said from defendant and towards passenger away her doors. and would start locking Michel, after 4:00 testified that sometime p.m., Powell’s neighbor,
Susan her site. He asked walked by remodeling defendant as she she observed answered, no, that she house. Michel she had come from Powell’s whether lived on the comer. house before 5:00 Ayshea Levy’s shortly
Powell and Braziel arrived at 15 minutes later. could detail car. Powell left 10 to Levy’s so Braziel p.m. Levy’s his work on car around 7:30 Levy’s p.m., After Braziel completed Gonzalez, intersection of Pico and Roberto him a ride to the gardener, gave La Brea. 7:15
Powell was her work shift at 7:00 Around begin p.m. scheduled Sims found Powell dead in their room and called 911. utility p.m., in her car Los Police Detective Kurt Wachter found Powell’s Angeles purse with the in the Powell’s wallet was on the bar area of her keys ignition. house. The knife on Powell’s chest matched the knife set in Powell’s kitchen. The door from the room into Powell’s was locked leading utility backyard awith deadbolt. The side door to the house remodeled was key-to-key being ajar.
Several of defendant’s and his were found bloody fingerprints palm print room, on the found on walls of Powell’s and his utility bloody palm print the kitchen counter Blood collected being house remodeled. samples from the wall in Powell’s room and the fence bearing utility palm print blood Powell’s front and were consistent with Powell’s backyards separating as were blood collected from the kitchen counter and type, samples A in Powell’s kitchen mg in the house remodeled. throw telephone being contained a that had the same as a lug-sole bloody shoe bloody print pattern remodeled. The shoe on the room in the house dining being print carpet have been of a work boot. pattern Wachter, Guzman who acted Sergio
Detective assisted Officer by 26, 1990, translator, before his arrest on interviewed defendant on October her that he knew Powell until he was shown the same Defendant denied day. that he contact with Powell and said having He denied had photograph. arrived at home had never been in her or house. Defendant stated that he yard to a search of his 5:30 Powell was murdered. He consented day p.m. boots that he said he cowboy the officers the clothes gave apartment *14 wore that The was laundered and folded in day. clothing freshly the closet. The clothes and boots contained no blood. Examiner, Golden,
The Los Medical Angeles County Irwin deter- Deputy mined that Powell died from numerous fatal stab wounds her upper body and stab wounds to her neck. multiple “through-and-through” Dr. Golden breasts, shoulder, observed several small wounds on her front and poke right shoulder; breast; right back a slicing or wound on each and slashing defensive wounds on her and He arms hands. testified the wounds were poke small, some to be “very some were and appeared triangular, lengthwise, to be of the just nicks skin . . . with the appeared of a compatible tip sharp instrument.” The wounds on Powell’s and poke breasts back shoulder right were inflicted while she was alive. The wounds on her shoulder poke right were inflicted at or near the time of death. The knife that was found lying her chest could have inflicted the stab wounds.
There was no trauma other vaginal evidence of a sexual assault. physical blouse, brassiere, slacks, Powell was clothed in fully and shoes. panties, front, back, Powell’s shirt contained slits cuts to the and sleeves. multiple blood-soaked, Her were but panties not cut or tom.
2. The Case Defense Defendant testified in his own defense and denied Powell. He stated killing murder, that on the day when defendant encountered Sloane near the houses, between the two he had been driveway from the coming garage not the to Powell’s gate leading backyard. Defendant denied Sloane he telling had been and had been on Powell’s He could drinking not recall property. whether he told Sloane that he had been robbed. recently
Defendant testified he had three or four beers that but he did tell day, Braziel to him buy beer. work crew left the at He jobsite 4:30 p.m. left, the last worker to leave. he he Before decided to swim in the He pool. had removed his shirt and boots when he heard next door. screaming house, Defendant walked to Powell’s entered back through sliding glass door, and found Powell in a “little bit of blood.” He tried to lift her lying her shoulders but saw by that she had “too wounds” and laid her many back down. Defendant his hand on the wall to balance he put himself as stood. He returned to the jobsite Defendant did picked up telephone. scared, not know whom to call because he was and he did how to not know redressed, call He 911. washed in the and walked to the bus up pool, stop around 5:40 p.m.
Defendant arrived home 5:45 He called his wife but did not tell her p.m. about the crime he because was afraid she would have been with him upset and would “bawl out or something.” [him] when interviewed they he lied to officers testified that police
Defendant him would thought house because he and denied he had been Powell’s Guatemala, in his native testified that be beaten officers. *15 incriminating obtain often beat and torture people are and corrupt police on the wall near were fingerprints When officers told defendant evidence. house but was he he been in Powell’s might told them have body, Powell’s too drunk to remember. not match the from did taken defendant’s apartment
A second of shoes pair house. remodeling found the crime scene or at the shoe prints 3. Rebuttal Evidence “wife,” he testified that generally
Defendant’s Antonia Juventina Salguero,3 tennis only special shoes Defendant his brown boots wore to work. wore taken that he had off Salguero and to work. Defendant told occasions never did into the about 5:35 Defendant not p.m. his shoes socks and went pool until or six months tell went into Powell’s house about five Salguero he would when angry after the murder. admitted that she become Salguero and had threatened to leave him. defendant helped people murder, Paz, that on Manuel told the day defendant’s nephew, police drunk. had at his about 6:30 and was p.m. arrived apartment Evidence Surrebuttal 4. Powell, left a wall with his hand.
When defendant tried to he touched help himself body. around Powell’s He did remember how positioned Penalty Phase B. Prosecution’s The Evidence
1. testimony victim The evidence through prosecution presented impact father, Sims, Powell’s and Powell’s Hector Tobar. ex-boyfriend, conduct additional evidence defendant’s prosecution presented Maderos, de who lived in a force threats of force. Guerra involving Angela Guatemala, around evening testified that one town small Republic the forest walking accompanied by she was home year through Defendant, had he was whom she known since Ramirez. 12-year-old Edgar Salguero defendant and privilege apply did not because The trial court found the marital formally been married. had never bom, them, machete, in front wielded a jumped them from prevented going forward. He wore a bandanna over his face. De Maderos ran into a field, and Ramirez ran to de Maderos’s house for help. caught up her, with de Maderos and told “You’re here with a guerilla. I am going and I’m you Maderos, to kill rape going Defendant kicked de you.” causing fall, machete, her to her throat poked with the numerous causing marks. His bandanna puncture fell off during Defendant left struggle. when de Maderos’s husband and son and fired a approached shot. He left sheath, behind his machete with the initials F.G. De Maderos did not report the attack to the because she police was afraid that would they not investigate the incident and that attack, defendant would kill her. The after day Ramirez, defendant told “I did scare I?” you yesterday, didn’t Ramirez *16 “How responded, come did that you to us unjustly, like that?” unfairly, and smiled just laughed at him. 2. The Evidence Defense medic, officer,
Defendant worked as a and farmer police in Guatemala. He often sick, his helped family members of his when were community they or He injured, took hungry. injured to the people blood when hospital, gave needed, and visited horseback people by to them medical give injections, when needed. wife,
Defendant’s testified that Salguero, defendant was accused of shoot- this, someone ing whom he had tried to After told defendant help. Salguero that if he continued to she would no help people, love him. longer
II. Discussion
A. Pretrial and Jury Selection Issues
1. Denial Funding an Alcohol-induced Request of for Electroencephalogram Test Defendant contends the trial court denied his erroneously multiple requests to conduct an funding test, alcohol-induced (BEG) electroencephalogram thus his violating under statutory rights section and various 987.9 state federal constitutional rights.4 4 Regarding this claim and appeal, argues most other claims raised on defendant also that the infringed asserted error or misconduct rights various of his constitutional to a fair and reliable trial, trial. In most of those instances in which defendant raised the issue at he failed to explicitly make some all arguments or of the constitutional urges appeal. he now on Unless indicated, otherwise appellate claim is of a kind required that either no action defendant preserve (e.g.,
to it affecting an erroneous instruction rights) defendant’s substantial or
a. Procedural Background occasions, to conduct alcohol-induced funding sought On three defendant REG an alcohol-induced psychosis that he have suffered the basis ingestion murder due on the Powell’s allergic day reaction alcohol, intent specific unable to form requisite and as a result was doubted each because it offense. The court denied charged request admissible, whether the test could would be whether the test results occasion, a and whether reactions to alcohol on previous duplicate person’s reactions allergic test that could determine only this test particular receiv- that a had already alcohol. The court noted defense psychiatrist $2000, hours for otherwise approved ed and it additional approved investigations.
b. Law Applicable right has a and constitutional indigent statutory An 987.9, (§ services defense. ancillary reasonably necessary prepare (a); Court Cal.3d Corenevsky subd. 319-320 Superior The defendant has the burden Cal.Rptr. demonstrating Court, (Corenevsky the need for the services. v. Superior requested 320.) The trial court should view a motion for assistance with considerable *17 the a liberality, only but it should also order services requested upon showing on are trial court’s order a they reasonably {Ibid.) On a necessary. appeal, is for of v. ancillary motion for services reviewed abuse discretion. 155, 385, 365]; (1996) 14 926 P.2d Cal.4th 234 Cal.Rptr.2d Alvarez [58 Court, 321.) no abuse in this Corenevsky at We find such Superior p. case. for reasonably
Defendant failed demonstrate the test was his necessary defense. Counsel no facts blacked out or suf- provided showing defendant his of on the Powell was any fered loss due to alcohol memory ingestion day Thus, that he have suffered a murdered. defendant’s assertion pathologi- cal alcohol or amnesia on reaction to that induced a state unconsciousness Also, as the trial court day the Powell was murdered mere speculation. legal court application involved facts or standards defendant asked the trial same by argument a trial error misconduct had the additional apply, accompanied new that the or extent, legal consequence forfeited his violating the Constitution. To that defendant has not 428, People Partida (See (2005) on 37 Cal.4th 433-439 appeal. [35 new constitutional claims 1158, 1195, People 765]; (2004) v. Cole fn. 6 Cal.Rptr.3d 122 P.3d see also 811]; v. Yeoman 117-118 [2 instance, conclude, rejection, we on except In the latter where otherwise merits, actually on the before that court of a claim that the trial court erred issue as well. No necessarily rejection newly asserted constitutional claim leads to of defendant’s cases, none. required provide and we therefore separate constitutional discussion is in such noted, counsel failed to establish how test conditions would proposed on the duplicate circumstances the murder and day yield relevant and Indeed, reliable information. counsel no for his provided explanation request that defendant be administered even during test defendant tequila though beer admitted he drank of the murder. day Ake v. Oklahoma defendant’s Contrary argument, U.S. 68 L.Ed.2d 105 S.Ct. does not different a conclusion. In compel 1087] Ake, Court held an Supreme defendant is entitled to to a indigent access for in psychiatrist assistance a defense he when makes a preparing prelimi- nary showing at the time of the sanity offense is to be a likely (Id. at significant factor trial. Defendant no evidence that presented a suffered pathological reaction to alcohol on day Powell’s murder. The record shows defendant had as Ake to a access psychiatrist, requires: funds, defense $2000 had received in psychiatrist trial court-approved court approved additional hours for further investigation.
Moreover, error in any defendant’s denying funds was harm- request less. Defendant’s were in palm prints fingerprints found Powell’s blood inside her room and also utility on the the remodeling site. countertop testified he inside went Powell’s house when he heard screaming. He found Powell a “little bit of blood.” He tried to lift lying Powell her laid shoulders but her back down when he she realized was too severely injured. Defendant to the returned site but did not remodeling call the police did because he how to know dial The level of detail 911. in defendant’s rendition of the facts on of Powell’s day murder belies claim that addition, alcohol rendered him unconscious. In although defendant’s nephew and sister-in-law testified they had observed drink beer previously, there was no evidence that defendant had ever suffered psychotic allergic reaction to alcohol. Accordingly, defendant has failed to *18 he establish was aof fair trial or deprived otherwise suffered from the denial of his prejudice 130, for funds. request 159 [99 Mendoza Motion 2. Suppression
Defendant claims the trial court in erred his motion to denying suppress statements he made two interviews and all evidence during police obtained as a result of those interviews. He that his argues statements were involuntary. Background
a. Factual and Procedural (1) The Interviews October 1990 Interview
(i) Kurt On Los Police Detectives Wachter Angeles October his Charlie Brown defendant office approached employer, Directions, Powell the house next door to remodeling that was company not but English, at the time of her murder. Defendant Spanish spoke would for asked defendant if he They another translated them. employee that was them to the station for about crime accompany police questioning not arrest and would committed the said he was under day. They previous him, unhandcuffed, to be handcuffed. Defendant The detectives drove agreed. station an unmarked detective car and Angeles West Los placed police him, There, unhandcuffed, in an room. with Detective still interrogation was Guzman Wachter interviewed defendant. Defendant Sergio translating, interview, concerned but calm. all maintained Throughout participants conversational tone. relatively thanked to the station and him
Wachter defendant advised coming there and not or under arrest. He advised custody voluntarily (Miranda defendant of his Miranda Arizona 384 U.S. rights. (Miranda).) asked L.Ed.2d 86 S.Ct. When translator 1602] with defendant if he wanted to to remain silent and give up right his speak detective, answered, him defendant “Yes. Yes.” The translator then asked if he to with and have one give right attorney wanted his to an up speak an attorney Defendant said he did not need present during questioning. did not an money have to attorney. pay
At Detective Wachter’s the translator to again explained request, Miranda The interview continued follows: rights. wish to remain Okay, do silent? you give up right “[Translator]: Yes. “[Defendant]: an, Do with wish you give up right speak
“[Translator]: . . . and have him during your ha attorney present questioning? Okay. “[Defendant]: *19 the, the, the, what? That don’t want Okay. okay, you What
“[Translator]: the attorney? Uh, I, no, because I have money, don’t attorney, right?
“[Defendant]: I, know, also, I but one can be for without appointed you “[Translator]: cost are before you questioned. And I don’t have for him? pay
“[Defendant]: Yes. “[Translator]: since, don’t, have, uh, And I But I don’t since I don’t pay?
“[Defendant]: to, am, have I don’t problem any attorney, that is I I am . . . [UI][5] Yeah, I don’t money attorney, have for an but “[Translator]: [ENG] I, however I have no I have no . . . there is no problem. going problem because, with me ‘cause I did nothing or so there’s no need wrong something for me an having attorney. understand, uh, Okay, just make him that he understand please
“[Wachter]: has to answer no. question yes Oh, then, the is we know okay, thing need to
“[Translator]: [SPAN] neither whether or want you say you you here before attorney [ric] are And as I one can questioned. be without cost say, you appointed before . . . That, fine, then, that is well one for me.
“[Defendant]: appoint Huh? “[Translator]: fine, Well that is for him to be for me have appointed
“[Defendant]: [UI] an attorney, right? Then, do want an you attorney?
“[Translator]: Yes, I want an attorney.
“[Defendant]: ‘Yes, said, He I want attorney.’ “[Translator]: [ENG] “unintelligible” from transcript taped this interview indicates that “UI” denotes an addition, response. dialogue tape following In “ENG” that the on the indicates recorded this English appears, dialogue Spanish notation is in until the notation “SPAN” after which the inis until the next “ENG” notation All of statements from appears. defendant’s are translations Spanish. *20 this, and doesn’t attorney if he wants understand Okay,
“[Wachter]: have, to be we he’s us, going information that to then from the wish to speak him now. right book into jail arrested for murder and we’ll I that the detective says want to ... Okay, you I “[Translator]: [SPAN] want, is, this. Then if want (should) you know about it that that you about yesterday’s to the detectives here and don’t want to you speak attorney . what in . . information about case to . . . have you they enough then I want . . . . . . yesterday oc occurred Uh-huh.
“[Defendant]: are arrest you. They . now are right they going . . “[Translator]: the, for for the death of lady going put you jail [UI]. is, is, I understand you, right? That is that I didn’t thing
“[Defendant]: That, well, but if I ask for you, attorney myself, understand right? what, know, nor what nor do I do I know since I’m guilty anything, what, then, me, is, tell me they I them. That tell they need speak what. . . whom, The detectives? What? with then? Speak
“[Translator]: them, them. With with “[Defendant]: I, That, . . that’s I’m here. I am . why
“[Translator]: [UI] “[Defendant]: [UI]
“[Translator]: [UI] them and Then rather with speak [UI].
“[Defendant]: [UI] I’m, you. that’s I’m here why helping Spanish, “[Translator]: [UI] don’t, know, am, is, don’t I I as I I don’t say, thing “[Defendant]: [UI] know about that. Uh-huh. anything it, Don’t, don’t know about what happened, you anything
“[Translator]: what happened? work, uh, know, I, in to I don’t because I go don’t I know
“[Defendant]: to the to work. eight. I office go *21 but, sir, are Okay, telling me about what you
“[Translator]: happened until, that, I that, that, don’t want to me yesterday. you tell until anything you, here, you that want say you didn’t but attorney you right, also have your so, to have the But attorney. as I say, have information about they enough . you . . Uh-huh.
“[Defendant]: . . . about what . . . happened yesterday “[Translator]: Uh-huh. “[Defendant]: here, . . . and if you attorney want then are present they
“[Translator]: to in going go, put you jail. know, me, But, I I know what are I they telling know. as I
“[Defendant]: them, I say, would rather right? to and I don’t want an I speak don’t attorney. want an attorney.”
The detectives then proceeded to question defendant. After defendant was Powell, shown a he he photograph admitted that had her seen “go jobsite.” But defendant said he was “not on familiar terms with her” denied that he had been ever in Powell’s house on her He further property. denied that he ever her car or to approached her. spoke
The detectives asked defendant about the clothes he wore at the jobsite the previous day. Defendant offered to take the detectives his apartment retrieve clothes he wore work that He then day. asked for to the directions station and informed he police the detectives would to his go clothes, apartment, get his and come back. The translator told defendant detectives would him his accompany signed Defendant later apartment. form stating he consented detectives his voluntarily searching residence.
(ii) October 1990 Interview Defendant was arrested and initially after retrieved his placed custody his clothes from apartment following first interview on October 1990. later, 30, 1990, Four on October Wachter days Detective interviewed defend- ant his Miranda He advised again. again defendant and defendant rights, “No, waived them. if When asked he wanted an attorney, defendant replied, (of because it’s waste the Government and money) everything, you well, [szc], me? understand And I by himself prefer, right?” with his and forceful defendant as self-assured Detective Wachter described but with he ever Powell denied that spoke Defendant again responses. at the direction have into her yard, possibly admitted he gone left that his were fingerprints The translator informed supervisor. “My responded, and at in her house the jobsite. Powell’s blood there.” He maintained think are my prints are there?” and “I don’t prints that he had not entered Powell’s house. into drunk that he have been and gone
Defendant later stated might *22 of He he was not capable after someone else killed her. stated Powell’s house in I went maybe then “killing suggested, maybe, that He person.” “perhaps I, I too drunk her “And and was maybe but I found dead.” perhaps, perhaps and, her dead and I saw I in and I she wasn’t when went perhaps thought tried he have might said he not remember but I don’t know.” He did perhaps, the running if no one in house or her to see she was alive. He saw pick up some, more on the drank some five” beers or from house. Defendant “maybe murdered, drunk. he he did not recall getting the Powell was but also said day later that day. arraigned
(2) Suppression The Hearing the that was no At defense counsel conceded there hearing, suppression their Miranda and the with Miranda during issue that detectives complied he of Miranda interrogation of defendant. But defendant’s waiver his argued and because the detectives involuntary was coerced his statements were rights threatened failed him once he requested to arrest him and to stop questioning Also, invol- waiver and were counsel. counsel defendant’s statements argued had but to the detectives’ untary because he believed he no choice to submit the in his native Guatemala based his with questioning experience police who on” those who would “beat kill” or a cattle did “put prod countered that defendant’s during The cooperate interrogation. prosecutor in that waiver and statements were not coerced and defendant’s experiences waiver. validity Guatemala were irrelevant to a determination of the his had its The court first determined the sustained trial that prosecution had waived his burden defendant had been advised of and showing the Dr. Jose permit Miranda nonetheless moved court rights. Counsel [defendant], view the Calle the such as testify way La “about that people, that understanding the context and about defendant’s of Guatemala” police he had no choice but to talk to officers. and to the arguments, audiotape,
After counsel’s considering listening interview, that ruled the trial court first reviewing transcript waived Miranda defendant had been advised of had It rights. properly (1) found that conduct their specifically officers’ during interrogation Miranda; Miranda defendant with defendant’s waiver of complied rights and his statements were detec- voluntary; and with the spoke stated, tives effort in an himself. The court absolutely exculpate “[T]here no in this mind court’s that this defendant knew what was question exactly was “not an taking place,” unintelligent person,” very some “appreciated subtle in the were nuances asked of him.” It questions found Dr. La Calle proffered testimony of irrelevant.
Defense counsel also moved to defendant’s statements from the suppress October 30 interview on the were grounds they because involuntary they interview, derived from first because was not within arraigned 825.)6 (§ deadline. The trial court state- statutory excluded October 30 ments from case-in-chief because of prosecution’s four-day delay but their arraignment, use for permitted impeachment.
b. Standards Applicable Legal
(1) Miranda Miranda, supra, 436, In 384 U.S. United States Court Supreme that statement “recogniz[ed] obtained an officer from a any by during suspect custodial be interrogation may because such potentially involuntary question be coercive” and “held that a in ing may such statement be admitted may if only evidence the officer advises the of his or to right both her suspect and remain silent to have right counsel at and present questioning, v. Neal (People waives those suspect rights agrees speak to to the officer.” 63, 650, The Miranda (2003) 280].) 31 67 72 P.3d Cal.Rptr.3d [1 safeguards confessions and “statements which amount ‘admis apply sions’ of or all of an offense” of whether are part regardless they exculpatory (Miranda, 444, in 476-477.) nature. 384 U.S. A at inculpatory pp. statement obtained in violation of Miranda be in the may not admitted but, voluntary, case-in-chief if be admitted to prosecution’s impeach (Harris v. York New 222, 1, (1971) defendant. 401 U.S. 223-224 L.Ed.2d [28 Neal, v. People supra, 31 643]; 67.) 91 S.Ct. Cal.4th at p. On we review a trial ruling court’s on a motion appeal, independently under Miranda. v. Waidla (People 690, (2000) a 22 Cal.4th suppress statement however, 396, so, 730 P.2d 46].) 996 In “we Cal.Rptr.2d doing accept [94 inferences, trial resolution of court’s facts and its evaluations disputed 6 requires arraigned magistrate Section 825 that a defendant be before a “without unneces and, arrest, event, sary Sundays delay, excluding within 48 after his or her hours holidays.”
1093 v. Cunningham evidence.” if substantial by credibility, supported 291, 519].) 926, 25 P.3d 992 (2001) 25 Cal.4th [108 (2) Voluntariness are inadmissible involuntary challenged statements
A defendant’s that the evidence a by preponderance at trial unless the prosecution proves 477, 487-489 (1972) 404 U.S. Twomey v. they voluntary. (Lego were 368, 618, 619]; (1964) 378 U.S. v. Denno S.Ct. Jackson L.Ed.2d 92 [30 (1989) 49 908, 1774]; v. Markham S.Ct. People L.Ed.2d 84 385-386 [12 63, 273, 1042].) due “The process Cal.3d 69-71 Cal.Rptr. [260 surrounding ‘the of all the totality test takes into consideration [voluntariness] of the and the details accused circumstances—both characteristics ” 428, 434 U.S. (2000) 530 (Dickerson v. United States interrogation.’ 405, (1973) 2326], Schneckloth v. Bustamonte L.Ed.2d 120 S.Ct. quoting [147 854, 2041].) test “examines This 412 226 L.Ed.2d S.Ct. U.S. surrounding the circumstances a will was overborne’ ‘whether defendant’s the same (Dickerson, a We make inquiry of confession.” giving (Colorado Connelly of a Miranda waiver. to determine the voluntariness is L.Ed.2d S.Ct. [“There U.S. 515] 169-170 [93 ‘voluntariness’ way inquiry no more in the of a obviously reason require Amendment confession context than in the Fourteenth Miranda waiver to the finding context”].) necessary predicate is police activity “[C]oercive the Due Process meaning is not within ‘voluntary’ a confession 167; also (Id. see Amendment.” at p. Clause Fourteenth Williams “ however, a finding ‘does itself activity, compel Coercive police and the induce The statement involuntary.’ confession resulting [Citation.] *24 (2003) Cal.4th v. 30 Maury ment must be linked. causally (People [Citation.]” 561, 342, 1].) P.3d 404-405 68 Cal.Rptr.2d to whether determinations as We review trial court’s independently voluntary. was and whether the statement activity coercive police present P.2d v. 949 Jones (People as the circumstances surround 890].) We the trial court’s to findings review confession, and the details the accused the characteristics of ing including facts (Ibid.) the extent the for evidence. interrogation, substantial “[T]o conflict, to if People supported the version favorable we accept v. 921 [111 evidence.” Weaver substantial c. Issue Preservation obtained trial, his were statements argue defendant did
At to decision made a tactical counsel apparently of Miranda. Defense violation issue, waive any Miranda a decision that reasonable the facts of appears this case. Because defendant left his in Powell’s palm prints fingerprints remodeled, blood at both the crime scene the house counsel being may have reasonably believed that had to at testify defendant trial to those explain would his at If fingerprints. Testifying place issue. counsel suc- credibility Miranda, ceeded in having defendant’s statements excluded solely under they York, him. (Harris v. supra, New still would be admissible to impeach Neal, supra, 223-224; People at U.S. v. pp. 67.) 31 Cal.4th at if Only counsel could convince the court that the statements were involuntary would Denno, (Jackson they be excluded for all purposes, including impeachment. Neal, supra, 385-386; People 378 U.S. at pp. pp. Therefore, if defendant testify intended try explain fingerprints and palm prints, counsel’s motion to gain would defendant suppress nothing unless he established the statements were than involuntary, solely rather product of Miranda violation.
Accordingly, on defendant appeal, contends his statements should have been for all because were suppressed they under purposes involuntary the totality of the circumstances. Defendant asserts these circumstances include Detective Wachter’s after he questioning invoked his right counsel, arrest, Wachter’s threat of and defendant’s in his native experiences Guatemala. People argue defendant has forfeited the any issue regarding correct, questioning by Detective Wachter. The improper are but only in part. any Miranda issue counsel waived
Although from arising police conduct during he asserted interrogation, Detective Wachter’s specifically conduct was a factor that rendered his involuntary statements under the totality Therefore, not, not, circumstances. although and does rely on Miranda for relief, circumstances, solely on all of may rely including continued questioning, they relate to voluntariness issue.
d. Analysis
(1) October 26 Statements stated, Miranda issues as As defendant has waived grounds suppressing statements from the October 26 interview. The issue only *25 is whether presented defendant’s statements were con- Defendant voluntary. tends his from statements the October interview were 26 because involuntary (1) Detective Wachter to failed him after he invoked his stop questioning counsel; (2) to Wachter threatened right to arrest defendant and him in put jail detectives; if he did not with the and speak defendant’s in his experiences native Guatemala affected understanding his After re- interrogation. the entire record we viewing disagree. independently, when to interview detective’s failure stop Defendant first contends the involuntary his and rendered statement was coercive he counsel requested that had he meaningless that his were rights it led him to believe because was obtained “While the fact that statement to the detectives. with speak one of the to counsel right invocation of the defendant’s despite was volun- a statement determining we whether circumstances consider [in (1977) 14 Cal.4th v. (People it ... is not tary], dispositive.” Bradford Neal, supra, People 544]; also v. see after of defendant interrogation at continued 81-85 pp. [officer’s of three circumstances to counsel was one right defendant invoked his confessions].) of subsequent considered in voluntariness determining to the station had the detectives voluntarily accompanied police counsel, his to defend- his Before invoking right from place employment. with the detectives had his willingness cooperate ant repeatedly expressed “a because he did not have and claimed to have no need an attorney threatened invoked his to counsel was right Once defendant problem.” arrest, with the detectives remained unchanged. with his desire cooperate he did not know He stated he did not need an because again attorney such, does not establish that about the murder. As record anything free will overborne by defendant was affected in manner or that his was any There is no causal connec- the continued Detective Wachter. interrogation by and his belief interrogation tion between the continued defendant purported Maury, he the interview. during that was required cooperate 404—405.) 30 Cal.4th at supra, pp. him his
Defendant next contends Detective Wachter coerced into making statements to arrest him. Wachter testified by falsely threatening he not had cause to arrest probable that did believe he suppression hearing his defendant until after he interviewed defendant searched initially threat was coercive Defendant contends Wachter’s apartment. particularly our system. because he was and lacked about knowledge legal confused record, however, He defendant was coerced. did Nothing in suggests he would become confused or otherwise lose his after Wachter said composure Jones, (See, 17 Cal.4th at e.g., arrest him. [“no both into statement was frightened making indication that defendant was to the dire the detective’s references and unreliable” involuntary by “persistent he To defendant remained eager facing”].) contrary, consequences conclude the As the detectives were about to talk the interview. throughout interview, his and return offered to retrieve his clothes from home defendant if he arrest. When station. he did not feel as was under to the police Clearly, defendant to his the translator clarified the detectives would accompany home, said, hesitation, he could let fine.” He then asked if “Okay, without wife “what’s on.” Such conduct belies claim know going mistreat or him. We that he felt coerced or feared the detectives would torture *26 with the court’s agree trial assessment that “defendant knew what exactly was taking during the interview. He in place” appreciated subtle nuances and answered some questions intelligently poorly phrased compound questions.
The cause in sole the record for dur- appearing defendant’s cooperation the interview was his desire ing to himself. exculpate People Hayes 595], 169 Cal.App.3d 905-908 similar. In factually Cal.Rptr. “ ‘ “ case, stated, that after the 16-year-old 1 want to talk to suspect ” ’ ” the detective lawyer,’ (the informed him he immediately that suspect) murder, hall, was to be going booked for first detained degree juvenile at (Id. certified as an adult in the case. at 4.) & fn. As the detective pp. 906-907 room, leave to began “ interrogation told the detective that he suspect ” “ ‘couldn’t do that him’ he to and that ‘hadn’t killed he and ... anybody ” (Id. would show 4.) where was.’ at fn. gun p. [the detective] Court of found the Appeal detective’s statements what informing suspect to to him after he invoked his not going right to counsel were happen (Id. made in to elicit statements from at 907.) After attempt suspect. p. counsel, his to invoking right was motivated to with suspect speak detective, coercion, not by but rather to by his desire clear himself of any 907-908; (Id. at see also suspicion. and Marlow pp. People Coffman resistance, far from 30] [“His coercion, a will overborne official reflecting instead a still suggests to calculate his in operative ability self-interest whether to disclose choosing Therefore, information”].) withhold the court held the of suspect’s change heart in with desiring speak the detective and his subsequent statements (Id. were voluntarily made. case,
In this Wachter same defendant much the manner as responded the detective to the responded juvenile Hayes—he essentially suspect (defendant) informed defendant that if he did not with him that speak would be arrested charged with Powell’s murder. Defendant then decided detectives, indicates, effort, with the himself in an the record to clear speak He denied he knew Powell until he was shown a suspicion. photo- her and stated he graph know about that.” He anything further “[didn’t] denied that the had ever been in Powell’s house or Defendant’s yard. behavior is not the behavior one whose free will has been overborne. Therefore, we no discern causal link between the detective’s threat of arrest and defendant’s subsequent right statements and waiver of his to counsel. v. Maury, 404-405.) 30 Cal.4th at pp.
Further, that Detective Wachter have informed defendant falsely he had sufficient arrest murder cause to him Powell’s did probable render defendant’s waiver counsel statements subsequent right
1097 the during questioning made by police false statements involuntary. Although “ confession, are not ‘they a defendant’s voluntariness of affect the ” Farnam (2002) 28 Cal.4th v. (People involuntary.’ it sufficient to make se per Musselwhite 106, 988], People v. 107, 47 P.3d quoting 182 [121 475].) A finding 954 1240 17 Cal.4th reasonably if is not of deception type unwarranted the of involuntariness is Farnam, at (People v. supra, p. statement. to a false likely produce to cause Here, sufficient probable statement there was the detective’s (See, e.g., to a false statement. likely defendant was produce arrest Jones, statements at deceptive 17 Cal.4th supra, v. People p. [detective’s did could more than he prove that he knew more to defendant implying A statement].) to a false reasonably likely he were not procure than could therefore, basis, is unwarranted. on this involuntariness finding waiver contends his statements and to the extent that defendant Finally, Guatemala, “The we disagree. on his involuntary experiences were based actions of and coercive wrongful focuses on alleged due process inquiry Weaver, v. supra, defendant.” (People . the state . . and not the mental state of 165; Connelly, supra, Colorado v. U.S. at p. citing 26 Cal.4th at p. Fifth Bradford, supra, v. People see also [“The is not ‘concerned with moral and psychological pressures Amendment ”].) coercion.’ sources other than official emanating confess from evidence that defend- counsel sought present At hearing, suppression understanding interroga- affected his ant’s in Guatemala experiences had submit have testified he believed he tion. Defendant would Guatemala, this because in his native detectives in case questioning by during interroga- kill him if he did not cooperate would torture or police Also, understanding legal had tion. he would have testified he no Calle, testified on in this Dr. La would have country. system psychologist, manner in which conditions of Guatemala and the general cultural defendant, Dr. La Calle also Based on his interview of mistreat police people. the Guate- because of defendant’s with experience have testified that would answer believed he could not refuse to (defendant) malan police, in this case. detectives’ questions however, only would have established testimony, Defendant’s proffered “ Mickey v.
that his from within ‘pressure’ sprang [himself].” law, this .) a matter of As 54 Cal.3d Cal.Rptr. 84] {Ibid.) link existed between coercion. No causal involved no state with the Guatemalan from his experiences defendant’s internal pressure in this case. activity police any police circumstances, examination of the totality based on our
Accordingly,
October 26 interview were
statements from the
we conclude defendant’s
Denno,
and therefore
voluntary
(Jackson
admissible for impeachment.
385-386;
Markham,
378 U.S. at
supra,
pp.
(2) October 30 Statements *28 30, 1990, On October four after days defendant was initially interviewed arrested, Detective Wachter conducted a second interview. Defendant was given waived his Miranda before rights answering any questions. Counsel moved to defendant’s statements from that suppress interview on the ground were they as a of involuntary result the coercive nature of his interview on October 26 and the in his The delay arraignment. trial court motion, in granted excluding this statement from part, the prosecution’s case-in-chief of because defendant’s but delayed arraignment, its permitting use for impeachment. now claims his statement should have been excluded all for We purposes, including impeachment. disagree.
We have found that the statements on were already October 26 voluntary. Nothing about the surrounding circumstances the October 30 statements suggests what was four earlier voluntary days had become involuntary. was delay arraignment not itself coercive. Defendant was as coopera- tive in talking to the police second time as he was the first time. It remains clear that defendant still give wanted to an police exculpatory confession, statement. This not a was case of the effectively a police coercing Neal, as in supra, but defendant giving voluntarily statements his involvement in the denying crime. Consent to Apartment Search His Defendant’s interview, the October 26 a
During defendant consented to search his He apartment detectives. the detectives the clothes he wore gave work on Powell’s day murder. Defendant moved to this suppress evidence on the ground his consent and obtained involuntary during coercive first interview. The trial court denied his motion.
Defendant renews his claim on Because we have concluded appeal. interview, defendant’s statements from the October 26 including his consent ante, (see to search his 1094-1098), were made at apartment, voluntarily pp. or coerced source. involuntary derive consent did not from defendant’s on this the search was not excludable seized during evidence Accordingly, basis.7 Cause Challenges for
3. challenges eight overruling the court erred in Defendant contends claim “To preserve for in favor of the death penalty. bias prospective jurors death for in favor of the trial bias court error remove failing juror all challenges a defendant must either exhaust peremptory penalty, the failure justify with the selected jury ultimately dissatisfaction express Williams, Here, to do so.” he did not for the sitting jury, although did exhaust his challenges peremptory to the object so for the alternate defendant did jurors. Additionally, Therefore, *29 it was has these claims constituted. he forfeited finally review. appellate event, without the examining
In we defendant’s claims any may reject merits of for cause he cannot show “To prejudice. his because challenges claim, a the rulings on such defendant must demonstrate that court’s prevail Yeoman, v. 31 supra, affected to and impartial jury.” (People right his a fair case, Cal.4th at In this defendant jurors none p. prospective on the six of the challenged eight sat Defendant challenged jury. peremptorily he cause. two were remaining had for The prospective jurors challenged Therefore, challenge never called into the box. because did not cause, the his for he cannot show court’s affected sitting juror rulings (Ibid, on from erroneous right to an obtain relief the impartial jury. appeal [to cause, denial of a must the defendant chal challenge the record show 81, also Ross v. Oklahoma lenged (1988) 487 U.S. 85-91 sitting juror]; see 80, L.Ed.2d 108 S.Ct. [101
4. Batson/Wheeler
dire,
Kentucky
under Batson v.
counsel
objected
voir
defense
During
timely
69,
(Batson),
and (1986)
Ultimately, jurors identified Hispanic jurors African-Americans were among sitting Defendant contends the jurors. erred in court overruling objections.
Both the state and federal Constitutions use of prohibit peremp tory challenges remove jurors solely based bias. prospective group 89; Wheeler, (Batson, 276-277.) 476 U.S. at supra, 22 Cal.3d at pp. Recently, “the United States Court reaffirmed that Batson Supreme states and standard to be trial courts when procedure employed by challenges such ‘First, as defendant’s are made. make defendant must out a facie prima by case “showing totality the relevant facts rise gives Second, inference of once the defendant discriminatory purpose.” [Citations.] case, has made out a facie the “burden to the State prima shifts to explain the racial exclusion” adequately race-neutral offering permissible justifica Third, tions for strikes. a race-neutral explanation [Citations.] “[i]f tendered, the trial court then decide . must . . whether the opponent ” strike has racial proved discrimination.” purposeful [Citation.]’ 622], Cornwell 66-67 Johnson v. 545 U.S. quoting L.Ed.2d California *30 2410, 2416], (Johnson).) 125 S.Ct. fn. omitted court “a high clarified that defendant satisfies the first Batson’s requirements step by producing evidence sufficient to the trial draw an to inference that permit judge (Johnson, discrimination at has occurred.” at 170 supra, p. S.Ct. [125 2417], (2003) in v. 30 Cal.4th p. reversing People Johnson part [1 1, 71 P.3d the defendant to “show that it [requiring is more 270] than not the other if were likely peremptory challenges, party’s unexplained, bias”].) based on impermissible group
In the determining ultimately whether defendant has carried his burden discrimination, “a racial “the trial court ‘must make proving purposeful and reasoned sincere evaluate the in light attempt prosecutor’s explanation known, case the circumstances of the as then his knowledge of trial his observations of manner which the has techniques, in prosecutor examined members of the venire has exercised for cause challenges ” . ...” v. (People Reynoso peremptorily [Citation.]’ 74 P.3d trial is not court to make required “[T]he or detailed for the record to instance every comments in which specific justify a is race-neutral reason for a prosecutor’s exercising peremptory challenge {Ibid.) is genuine.” by court as trial court being accepted Inquiry (Id. 920.) matters that prosecutor’s at “All that even required. p. not and legitimate, is sincere challenge reason for exercising peremptory 924.) (Id. A reason at nondiscriminatory.” p. in the of being sense legitimate as it does long and legitimate” makes no sense is nonetheless “sincere (Ibid.) deny equal protection. a in Prima a. Trial Court Error Find Failing Asserted Facie Case Discrimination facie case of finding that the court erred in no argues prima first to excuse challenges when the used peremptory discrimination prosecutor L.B., R.M., We Jurors a African-American. Hispanic, Prospective disagree. a without a facie finding prima
“When a trial denies Wheeler motion court bias, voir dire for court reviews record of case of group appellate affirm the trial We will ruling. evidence court’s support [Citations.] grounds might where the which the ruling suggests prosecutor record upon Farnam, v. have reasonably challenged jurors question.” matter, asserts briefing As preliminary supplemental it used determine whether because the trial did not state the standard court discrimination, we the trial he established facie case of must prima presume under v. People court used the standard improper more-likely-than-not (See Johnson. 19 Cal.3d Superior Ross Court established court is to follow Cal.Rptr. presumed [trial 727] Therefore, he that we law absent evidence to the asks contrary].) indepen- facie determine he established a case of discrimination dently whether prima Cornwell, the reasonable inference test under Batson. As in using court, the trial and even assuming standard “[r]egardless employed by deference, trial is not entitled to we deciding without that the court’s decision and, reviewed like the United Court in have the record States Supreme . . . standard and resolve the Johnson are able to court’s apply high [we] *31 record an inference that prosecutor whether the legal question supports Cornwell, race.” 37 Cal.4th at excused a on the basis of v. juror (People supra, that the 73.) We the record to “an inference conclude fails support p. (Ibid.) on the of race.” excused basis [any] juror prosecutor R.M., a to establish sought prima As to Juror defense counsel Prospective discrimination that R.M. was case of based on circumstance solely facie box, other on leaving only Hispanics in the two sitting the only Hispanic circumstance, alone, on the is not dispositive the entire This panel. standing a facie case. v. of whether defendant established prima issue 1102
Crittenden 887]; but [36 Johnson, see supra, 545 U.S. at S.Ct. at p. 173 removal of p. 2419] [the all three African-American case].) established a facie prospective jurors prima Moreover, the record discloses reasons other than racial for bias any prosecu- to tor challenge Juror R.M. He indicated on Prospective his that questionnaire a intoxication should person’s voluntary be considered a de- automatically fense, or reduce or her if his that commits a culpability, crime person “because not your mind is it where to be.” The suppose[d] prosecutor [is] volunteered that this was he considered in response something R.M. excusing may He have believed reasonably that R.M. would have difficulty setting belief aside evaluating the evidence in this case because defendant claimed was at intoxicated the time Powell’s murder. Defendant contends the trial rejected court this it stated because that the possibility attitude towards “not juror’s intoxication was at all.” But it disqualifying merely cause, have meant the attitude would not a for support challenge not a that prosecutor ignore had it. “The circumstance that was juror not to exclusion for cause did subject not inference certainly that the support exercise a was peremptory challenge against motivated juror] [the Cornwell, (People bias.” supra, group Cal.4th at 70p. addition, P.3d 622].) In court trial also said that it would have
excused the It juror itself. said that had R.M. “an attitude projects itself as a bell” clearly and “some kind of shoulder ringing on his or some chip here very attitude that’s disturbing.” L.B.,
With respect Prospective Juror defense sought counsel establish a facie case of prima discrimination because the a challenged prosecutor stated, second African-American As this prospective juror.8 is not showing of whether defendant a (People dispositive established facie case. prima Crittenden, R.M., As with Juror Prospective record reveals other than reasons racial discrimination for any prosecutor challenge this juror. L.B. had indicated that a cousin was treated prospective unfairly by when the cousin arrested police was in a carrying gun Mercedes he driving. was officer had asked L.B.’s if he had cousin stolen L.B., Mercedes, the vehicle. who was a believed her passenger cousin treated was based this unfairly by She also believed her police question. cousin treated this unfairly by judicial incident. In system regarding addition, L.B. on her she did let tell responded questionnaire people her what to do and that she had strong also “very opinions.” questioned She whether she could remain Even objective judging credibility. person’s L.B. that she could evaluate though gave assurances the evidence objectively, based on these have been con responses, prosecutor reasonably might cerned with L.B.’s negative judicial views of and the police system *32 prosecutor’s challenge Defense pro counsel conceded to the first African-American juror spective proper object. did not was and strong personal- her self-described cousin and with her on the incident
based bases. her on these challenged and ity, 352, L.Ed.2d U.S. (1991) [114 v. New York on
Relying Hernandez found court impliedly the trial 1859], further argues defendant 111 S.Ct. it considered when case of discrimination a facie that he established prima excused that he explanation prosecutor’s rejected purportedly should intoxication voluntary he believed because Juror R.M. Prospective Hernandez, the United a In plurality to a crime. be a defense automatically a that, finding prima no express held although Court States Supreme case of facie made, a prima the issue of whether had been facie case volunteered moot once prosecutor made became discrimination had been (Ibid.) Defendant’s his challenges. his for exercising peremptory reasons unlike of the hearing, the conclusion At is misplaced. reliance Hernandez facie case that a Hernandez, found prima trial court expressly that the prosecutor’s found established impliedly discrimination was not remark the trial court’s As we explained, reason was genuine. proffered have meant “necessarily disqualifying” belief not that R.M.’s event, the remark did In any for cause. challenge did attitude not support challeng- biased in inference was racially that the prosecutor support explanation the trial court rejected prosecutor’s R.M. or that ing implausible. facie case of discrimination trial court did find a
Even assuming prima court made a sincere relief. The trial is not entitled to at this point, race-neutral reason and reasoned effort to evaluate the prosecutor’s R.M., the trial court’s implied evidence and substantial challenging supports nondiscriminatory. was genuine that the reason finding prosecutor’s v. McDermott [123 51 P.3d is compared explanation next that when argues prosecutor’s discriminatory of certain other jurors, prosecutor’s
with the responses
U.S. 231
Dretke
Miller-El v.
He relies on
intent is apparent.
(Miller-El)
(discussed post,
L.Ed.2d
Defendant asserts was shared less make an offender culpable to a crime or be a defense could *33 K.D., A.B., K.Z., by Jurors and whom the did not non-Hispanic prosecutor His assertion R.M. indicated peremptorily challenge. misleading is because “yes” voluntary his intoxication “should questionnaire automatically” be a defense to a crime or reduce “because an offender’s culpability your mind is not where to be.” None of the with whom suppose[d] jurors it[’s] defendant R.M. marked to this otherwise shared compares “yes” question his view. a of the to the Accordingly, comparison responses voluntary intoxication these does our jurors not alter conclusion question prospective that the record the trial that the substantiates court’s implied finding prosecu- tor’s reason R.M. and excusing for was genuine nondiscriminatory. L.B., also
Finally, defendant Juror who compared Prospective regarded leader, herself as a with also considered non-African-American who jurors however, not, themselves He does we leaders. ask that expressly perform as he did with Juror R.M. comparative analysis, Prospective Performing when, here, as comparative problematic did not analysis prosecutor reasons for the the trial no provide challenge because court found facie prima Indeed, Miller-El, case had been used established. court high compara- tive to review the trial as to the analysis findings court’s plausibility (See Miller-El, reasons. at prosecutor’s U.S. 241-253 pp. event, 2325-2332].) S.Ct. at not In record does convince us pp. that the court should have found a facie case at stage. this prima sum,
In these two in the did challenging jurors early prospective process not, itself, inference that discrimination had occurred. support Accordingly, we conclude defendant failed to make a facie case of discrimination at prima this stage.
b. Asserted Trial Court Error in Prosecutor’s Accepting Reasons Challenging Prospective Hispanic for Jurors African-American as to
Although court found no facie either the initially prima showing found, first or African-American it later at least im- challenged, Hispanic had made as to both and asked pliedly, showing such a groups to two of each jurors prosecutor justify challenges prospective erred Defendant contends the trial court group. by accepting prosecutor’s reasons jurors ultimately these did challenging finding prospective We establish discrimination. disagree. purposeful
A trial court’s on this issue is reviewed for substantial evidence. ruling McDermott, “We that a supra, 28 Cal.4th presume in a uses constitutional manner prosecutor challenges give peremptory trial fide reasons from great distinguish deference to the court’s bona ability sincere and makes a sham the trial court long So excuses. [Citation.] offered, its justifications nondiscriminatory evaluate the effort to reasoned *34 (People deference on appeal. [Citation.]” conclusions are entitled Burgener record, substantial we conclude case, review of the on our
In this based that the trial court prosecu findings the following evidence supports rea nondiscriminatory based on genuine were challenges tor’s peremptory McDermott, Cal.4th at p. and not bias. sons group for challenging Prospective numerous grounds The stated prosecutor was in E.A., prison had a sister who who was This juror Juror Hispanic. armed The robbery. prosecutor and three counts of second murder degree a that defendant is his argument be offended likely believed E.A. would death, a her sister because and should be put “monstrous person” that this worked juror also was concerned murderer. The convicted prosecutor to the Santa a but had ranger applied of Santa Monica as City park for the E.A. was a written test. Because Police and failed Monica Department officer, that he would had the same concern a the hired as police prosecutor He believed a former officer. a who was juror police regarding prospective that conducted in the was investigation she would be critical of overly police Also, this evidence objectively. and have difficulty evaluating this case The trial court resulted in a hung jury. served on a that juror jury previously reasons, him for it not fault could noting accepted prosecutor’s raised.” the matters that he has with to all of respect uncomfortable “being O.B., another Hispanic, he excused Juror The stated Prospective prosecutor believed unemployed, he a actor who was traveling presently because was and had strong system, are in the criminal unfairly justice minorities treated feelings to state his general death When asked against penalty. opinions “Don’t like the O.B. responded, about the death penalty questionnaire, criminals of convicted though death.” He also stated that even thought he believed “death should be harshly,” crimes” should “gruesome “punished that the it was satisfied nature or fate.” The trial court stated be an act of of his race. O.B. was not because excusing reason for prosecutor’s B.B., an African- Juror stated he believed Prospective prosecutor American, although B.B. stated that was biased the death against penalty. cases, “life is a gift” in some she felt precious death was penalty appropriate addition, this juror In carefully.” be used “very and the death should penalty life is learned that “everyone’s a murder at the age witnessed the jury further composition The prosecutor explained important.” chal- his last two peremptory defense counsel exercised had after changed who in the audience jurors there were more potential He believed lenges. would be favorable to the than there prosecution were in the box at that time. The trial court acknowledged twice prosecutor accepted constituted when it included Juror B.B. and stated it Prospective convinced the prosecutor’s reasons for were excusing B.B. not based on race. H.W.,
While selecting alternate jurors, prosecutor challenged African-American. He said did so based on his belief that she was biased the death against In her penalty. H.W. stated she was questionnaire, against death but that her penalty could if the feelings change victim were “someone close” or a child. She believed sentence of life without possibility parole Also, was “worse” than death sentence. denomination to religious which H.W. did not belonged the death The trial court support penalty. *35 these race-neutral accepted for explanations H.W. and further challenging observed the was reduce prosecutor legitimately the number of attempting alternate who had jurors the death strong opinions against penalty.
For the first time on
defendant
that we
a
appeal,
requests
perform compara-
tive
juror analysis
evaluate the
genuineness of
prosecutor’s reasons for
peremptorily challenging
in
prospective jurors
Our
question.
long-standing
has been that a
practice
court must
reviewing
consider evidence of compara-
tive
when a
juror analysis
defendant has
such evidence at the
presented
trial
court but need not conduct such an
for the first time on
analysis
appeal.
Johnson,
(People v.
supra,
at
1324-1325
of trial
pp.
[review
court’s
whether
finding regarding
defendant established a
facie show-
prima
v. Johnson
People
bias];9
ing
group
Cal.3d
1220-1222 [255
569, 767 P.2d
Cal.Rptr.
trial court’s
finding regarding
1047] [review
of a
genuineness
prosecutor’s
race-neutral
reasons for
a
exercising
peremp-
The
tory challenge].)
court
high
recently conducted such a comparative juror
Miller-El,
supra,
in
analysis
reversed our
prima
the standard for a
facie case
at
(Johnson,
1100),
it
part
opinion
left
this
of the
intact.
pp.
As to defendant argues prosecutor’s other was convicted of second murder and armed degree robbery applied had had been with various charged White who close relatives who jurors crimes, however, The than murder. crimes. other were much less serious he referred to defendant as a worried that if Additionally, prosecutor victim, he E.A. monster who deserved to die for offend killing might because of her sister’s murder conviction. The other prospective jurors Moreover, would not take offense at such an un probably argument. sister, like E.A.’s none of the relatives had the belief that he or she expressed was treated nor did As to unfairly by justice system, jurors. concern that E.A. had failed to the test for prosecutor’s pass employment with the Santa Monica Police as a ranger, now works Department park out that Juror M.L. and fire investigated points occupational safety accidents, courses, had taken administrative law and worked for the Veterans M.L., however, Affairs Police not a former officer and Department. police claim, did not criminal investigations. to defendant’s perform Contrary with, for, worked the Veterans Police Affairs in his Department capacity and health The occupational safety would not specialist. prosecutor be as concerned with M.L.’s critical likely second-guessing being overly E.A., investigation this case as he would with she given actually officer, denied as a employment to which she police position aspired. other whom jurors defendant identifies are not situated in this similarly *36 defendant respect. Finally, that E.A. showed more for the emphasizes support death than While it be true that E.A. had penalty jurors. non-Hispanic certain views that strong showed more for the death than support penalty certain the had jurors, stated he “too reasons non-Hispanic prosecutor many” to be concerned about this He was not to juror. prospective required E.A. as a “if reasons his accept juror from bias apart group supported Cornwell, Defendant, challenge.” 37 Cal.4th at (People further, does not other who had similar point non-Hispanic juror in each area with the experiences which was concerned. In view of prosecutor evidence, we conclude substantial evidence totality supports trial court’s that the reasons were finding prosecutor’s genuine. O.B.,
With claims regard Juror Hispanic Prospective that O.B.’s about racial did not him from other perception distinguish groups or warrant a jurors challenge by O.B. stated “most prosecutor. minorities] are viewed as different mainstream American” and “therefore not by [are] usually given merit in the None of the equal justice system. jurors [szc]” minorities defendant identifies share O.B.’s view that “most” are not treated L.S., in our African-American Alternate Juror equally system justice. however, did share O.B.’s officers “often make mistakes” opinion police when others cited defendant did not. asser- testifying; by Contrary tion, O.B.’s views on what should be done about the crime in Los problem different with were somewhat when compared Angeles County remark- As the prosecutor who were more jurors “pro-police.” non-Hispanic ed, O.B. his view on the death penalty, O.B. was “not Regarding pro-police.” kills who anyone intentionally did with the statement “strongly disagree” other did receive the death whereas jurors another should never penalty, Nonetheless, concerned not hold such a view. strong prosecutor as shown to the death penalty, with O.B.’s strong opposition apparent -of convicted grújeseme] his statement that “even though criminal[s] act of nature or death should be an harshly, crimes should be punished between O.B. defendant has shown some similarities fate.” Although none these individuals were and alternate jurors, non-Hispanic jurors In concern. to O.B. in all the areas in which prosecutor expressed similar sum, stated trial court’s that the findings prosecutor’s the record supports neutral. O.B. were and race genuine reasons for challenging woman, B.B., an African-American Juror With respect Prospective as much as the death juror penalty defendant does establish this supported Still, had twice accepted some jurors. prosecutor—who concern that B.B. had witnessed before excusing B.B.—expressed constituted He believed she child and learned that life is “precious.” a murder as young in with views stronger life and felt that jurors leaned toward prospective also stated remained the venire. The prosecutor favor of the death penalty circumstances, he would under the same exact if this were a juror White Defendant fails to establish for the same tactical reason. challenge juror “ the fact situated. similarly Finally, the existence of a who was juror ‘[w]hile against of a discriminated allegedly that the included members group conclusive, indication of faith in good exercising peremptories, it is an on a Wheeler ruling factor for the trial to consider judge and an appropriate ” (2005) 36 Cal.4th v. Ward objection.’ 717], Turner quoting women remained Two African-American *37 circumstances, the record supports on the final Under jury. totality as to Prospective that the challenge the trial court’s findings prosecutor’s race-based or otherwise implausible. Juror B.B. was not woman, H.W., argues comparative defendant As for an African-American her because her that he excused reveals the statement analysis prosecutor’s in the death penalty pretextual. denomination did not believe religious ante, H.W. because he stated he excused discussed the prosecutor Not so. As but the death H.W. stated she was against penalty believed she was “pro-life.” As the if victim was “someone close.” prosecutor could her mind change Also, noted, in her Powell. H.W. indicated question- H.W. was not “close” to in the death did not believe penalty. that her denomination religious naire dire, out that in question the trial court response voir During pointed whether she felt of her denomina- obligated accept position religious tion, H.W. and “no” and then marked out and wrote “yes” “yes” responded “no, I make own choices.” H.W. stated she could make her my Ultimately, own decision about the death based on the circumstances. imposing penalty Defendant claims that the an African- assumed that prosecutor “improperly American would be more led their than White who juror by religion jurors were members of churches to the death The did opposed penalty.” prosecutor such a view. mentioned H.W.’s express prosecutor merely religious denomination did not the death he did not find her support penalty, suggesting Also, credible. Such a was reasonable under the circumstances. finding neither of the identified jurors on the issue of the by equivocated Further, death as did on H.W. her voir dire. penalty questionnaire during even she indicated though fife without was the worst parole punishment, defendant argues that H.W.’s views on the death “did not penalty go beyond” other jurors who sat on the jury. Not true. some also Although jurors have believed that the of life without punishment was worse than the parole death, stated, penalty none reservations about the death expressed sum, as did H.W. In defendant’s fail to penalty establish that the comparisons race-neutral reasons were prosecutor’s Substantial evidence pretextual. sup- the trial court’s ports that the reasons were findings prosecutor’s genuine not based on race. Issues Guilt and Affecting Penalty
B.
1. Judicial Bias Defendant contends the court superior over judge assigned his preside case for all purposes failed to recuse himself as improperly suggested by defendant and under circumstances in which a reasonable would have person entertained doubts in violation of concerning Code of Civil impartiality, 170.1, Procedure (a)(6). section subdivision He adds that rulings subsequent made judge revealed his bias trial. throughout
2. Trial Proceedings During pretrial defendant filed a for writ of mandate proceedings, petition in the Court of after the trial “refused to reconsider Appeal judge allegedly the denial of section 995 motion dismiss the He also [his] [to information].” of the trial The Court of requested temporary stay proceedings. Appeal issued the Three hundred had stay Friday, July 1993. prospective jurors 12, 1993, been summoned to in the trial court on Monday, for the appear July *38 Instead, commencement of selection. the trial conducted a judge hearing defendant’s writ regarding and the that petition stay proceedings temporary had issued. he was about “very the trial said that judge upset”
At hearing, a because to his knowledge, copy in defendant’s case recent developments court, and defense had not been served on the trial defendant’s writ petition a indication of the that stay proceedings counsel him no gave possibility the costs of that he tried to keep The further judge explained issue. might he had time to tell to not jurors report to a minimum and that no trials county as scheduled. jury duty leading and counsel then discussed procedural posture The trial judge that a Counsel reminded the trial judge to the of the writ filing petition. The trial remarked judge had been filed in this case. writ previous petition counsel full of statements.” When that the specious prior petition “[a]lso characterization, “[Counsel], the judge with the disagreed judge’s responded, fast, screw that if turned around you’d are so dishonest intellectually you you into the ground.” yourself of the writ and then debated the merits petition
The trial counsel judge trial circumstances Counsel claimed that the that resulted in its filing. denial of his section motion to reconsider the failed to rule on his judge to reconsider the and stated that he declined motion. The trial judge disagreed 21st,” “Oh, mean The word ‘refused’ doesn’t on “June and that I see. motion counsel, “How times do many you then asked you.” judge refused a denial reconsider?” want me to reconsider recess, counsel that he had considered whether
After a the trial told judge ultimately defendant and against incident would cause him to be biased this the trial judge trial. Counsel asked decided he could defendant fair give trial against not hold the stay proceedings whether he would temporary “Without question.” defendant. The trial court responded, had not served that counsel’s office The trial continued judge complain were either untrue or and that certain allegations him with the writ petition he could give the trial reiterated Ultimately, judge misleading. he found himself himself
fair trial and assured counsel would if disqualify Trial counsel did not to a fair trial. defendant’s right “compromising” defend- the trial judge’s representation apparently accepted respond ant would receive a fair trial. the issuance of hearing regarding note initially during pretrial
We merely did not but request that defendant the temporary stay proceedings When the trial judge recuse the trial “should suggested judge [himself].” would receive a fair trial counsel that defendant by assuring responded with the counsel made no effort comply with the continuing proceedings, 170.3, (c)(1), subdivision Code of Civil Procedure section under procedures
1111 v. (People Bryant and seek (1987) disqualification judge. 190 1569, 1572-1573 Cal.App.3d Cal.Rptr. [discussing procedures [236 96] 170.3, under Code of Civil Procedure section (c)(1), subdivision that counsel is to follow to a challenge judge’s over further qualification preside once the refuses to proceedings judge herself].) himself or As the disqualify assert, counsel People apparently accepted judge’s representation defendant would receive a fair trial. herself,
“If a judge refuses or fails to seek the disqualify party may so, however, judge’s must do disqualification. party ‘at the earliest after practicable of the facts opportunity discovery constituting ground Proc., (People (Code 170.3, Scott Civ. disqualification.’ (c)(1).)” subd. v. § (1997) 1188, 240, 15 Cal.4th 1207 354].) 939 As was Cal.Rptr.2d [65 Scott, the case in defense counsel was aware before and fully trial of during all the facts defendant now cites in of his claim of support bias. But judicial he never claimed trial that during should judge recuse himself or that his constitutional were rights violated because of bias. “It judicial is too late to (Ibid..; see also raise the issue for the first time on People Brown v. appeal.” (1993) 322, 710, 6 Cal.4th 862 P.2d Cal.Rptr.2d of Civil [24 710] [“[Code sjection 170.3[, Procedure (d) forecloses of a claim that a appeal subdivision] motion for statutory disqualification authorized section 170.1 was errone denied”].) reason, ously For the same defendant has forfeited his additional claims that the trial judge’s bias affected alleged trial subsequent rulings. (Scott, supra, 15 Cal.4th at p. event,
In any defendant’s claim lacks merit. Defendant has a due to an trial process right under the state impartial judge (Arizona v. Fulminante federal 279, Constitutions. (1991) 499 U.S. Brown, 302, v. 6 Cal.4th L.Ed.2d People 1246]; 111 S.Ct. [113 332.) The due clause of the Fourteenth process Amendment a fair requires trial in a fair tribunal before a with no actual judge bias the defendant against (Bracy Gramley or interest in the 899, outcome of the (1997) case. 520 U.S. 904-905 1793].) L.Ed.2d 117 S.Ct.
Section 1044 that a trial court provides has the duty control the trial also Carpenter (See proceedings. 397 [63 708].) 935 P.2d When an attorney engages improper behavior, such as the court’s ignoring instructions or asking inappropriate it is questions, within a trial court’s discretion to even reprimand attorney, v. Snow require. harshly, as the circumstances Mere expressions opinion by trial judge based on actual observation of the witnesses and evidence in the (Moulton Niguel WaterDist. v. Colombo courtroom do not demonstrate a bias. *40 519]; see also 1210, 1219-1220 [4 111 Cal.App.4th Moreover, a trial Farnam, 193-195.) at 28 Cal.4th supra, pp. People v. not when erroneous—do rulings against party—even court’s numerous to review. bias, are subject when they of especially establish a charge judicial Relations Bd. (1981) 28 Cal.3d 795-796 (Andrews Labor Agricultural v. Ins. Co. McEwen v. Occidental 151]; Cal.Rptr. [171 Life P. 172 Cal. or bias was so misconduct any judicial we assess whether On appeal, “ fair, to a perfect, of ‘a as opposed defendant that it deprived
prejudicial ” Snow, United States v. supra, quoting (People trial.’ v. 397, 402.) Pisani (2d 1985) 773 F.2d Cir. record, fails
Here, we conclude our review of based on to a fair and right impartial of his constitutional establish he was deprived him failed to give because trial counsel was outraged tribunal. The trial judge (counsel) had him that he call and inform clerk a courtesy or the courtroom obviate that would potentially of stay a temporary proceedings requested who had been summoned jurors need for the 300 prospective in this were regard But of his comments selection. all commencement of jury moreover, clear, made any jurors. judge made outside presence He defendant. unequivocally with counsel and not his irritation was that trial, that repre fair and counsel accepted would receive a stated defendant Further, against overt bias did not judge display the trial sentation. Snow, supra, trial. v. defendant of a fair defense as to deprive so Cal.4th at p. the trial judge rulings by additional claim subsequent
Defendant’s on the merits. also fails anger” more than a bias that “was passing revealed that are stated, subject those erroneous rulings, especially adverse or As (Andrews Agricultural review, bias. judicial a charge do not establish Bd., 795-796.) never Cal.3d at pp. Labor Relations trial him during against that the judge prejudiced concern expressed in the record see nothing himself. We to recuse judge nor did he request willing- defendant’s argue, defendant. As People bias establishing against of bias against another charge trial without to let the entire pass ness suggests they but also strongly claims on appeal forfeits his only judge (1968) 266 Cal.App.2d Tappan e.g., (See, are without merit. the trial allegedly prejudicial [following judge’s 816-817 Cal.Rptr. 585] trial during bias comment, judge’s defendant’s failure complain pretrial in judge’s impartiality].) defendant’s confidence showed the merits. bias fails on claim of judicial defendant’s Accordingly, C. Guilt Phase Issues
1. Evidentiary Issues
a. Admissibility Powell’s Statements Her Regarding
Fear of Defendant Braziel, direct During examination of prosecutor’s defense counsel objected Braziel’s said testimony ‘Francisco was in my “[Powell] ” *41 house when I was door was asleep my Outside the of open.’ presence irrelevant, counsel jury, argued Powell’s state of mind was the statements Powell, course, were inadmissible hearsay, of was unavailable cross-examination.
The trial court denied defendant’s objections, ruling the statements were relevant and admissible under the state-of-mind to the rule exception hearsay to explain Powell’s conduct of from subsequent jerking away defendant when Code, (Evid. her in her car. approached 1250.) The trial court admon- § ished the Powell’s statements could not be considered to prove defendant was in fact in Powell’s house as she but were slept, admitted only for the actions, of purpose her explaining if relevant. subsequent
On appeal, contends trial court erred in admitting Powell’s statements that she was afraid of him and believed he was in her house while she on the napped day irrelevant, murder. He claims such evidence was inadmissible and more hearsay, than prejudicial under Evidence probative Code section 352. We find no error.
The abuse of discretion standard of review a trial applies any ruling by court on the of v. Rowland admissibility evidence. (People (1992) 4 Cal.4th 238, 377, 264 841 P.2d Cal.Rptr.2d 897].) [14 This standard is particularly when, here, as appropriate the trial court’s determination of admissibility relevance, involved questions of the state-of-mind to the exception hearsay rule, and (Ibid.) standard, undue Under prejudice. this a trial court’s ruling disturbed, will not be and reversal of the is not judgment unless the required, trial court exercised its discretion in an arbitrary, or capricious, patently absurd manner that resulted a manifest of (People miscarriage justice. v. Rodriguez (1999) 1, 413, 20 Cal.4th 618].) 9-10 Cal.Rptr.2d [82 (8) Evidence is relevant if it has any tendency reason to a ” prove “ Code, (Evid. evidence,’ material fact. disputed 210.) ‘Hearsay § defined as “evidence of a statement that was made other than a witness while at testifying and that hearing is offered to the truth of prove stated,” Code, matter (Evid. is generally 1200.) inadmissible. § mind, when Evidence of a declarant’s state of offered of statement conduct, admissible, as is long declarant’s prove explain (Evid. under its trustworthiness. statement was made circumstances indicating Code, (a)(2), that the subd. A to this is prerequisite exception §§ Noguera or conduct in issue. v. victim’s mental state be placed 1160].) 4 Cal.4th 842 P.2d Evidence of of murder fear of the defendant is admissible when victim’s state victim’s Waidla, (See, is to an element an offense. e.g., mind relevant of statements fear defendants indicating [victim’s in the robbery were relevant to lack consent related burglary prove murder].) her
Here, “In a the trial court admitted Braziel’s testimony. properly if it establishes any for forcible evidence relevant rape, prosecution circumstance (Pe the victim’s consent sexual intercourse less making plausible.” 1123-1124 ople Kipp Powell’s that she believed defendant came statements him clearly into her house as she and that she was afraid of were napped in the her lack consent to sexual intercourse attempted rape. probative Therefore, *42 relevant the Powell’s state mind was to prove attempted-rape the allega murder felony special-circumstance attempted-rape tion, Code, (Evid. the and thus fell within state-of-mind exception. § (a)(2).) subd. issue, at
Defendant that even if state of mind was the Powell’s argues were unreliable. To the extent the incident Powell described was statements hallucination, for it not be trustworthy dream or would argues example, her But the the jury state of mind. the court admonished statements explain house actually were not to be considered defendant was Powell’s proof her as circumstantial evidence of her belief when she awakened from but nap, addition, the might that he was there. In court Powell although recognized have dreamed defendant was in her house or she have spoken falsely more, incident, the without is insufficient to render about such possibility, Rowland, 264.) (See v. 4 Cal.4th at her statements unreliable. supra, p. trial court its discretion in ruling Defendant also contends the abused not more that Powell’s statements were substantially prejudicial extrajudicial more than We conclude claim fails. Evidence is substantially probative. 352 if it than under Evidence Code section poses prejudicial probative “ of the or the reliability intolerable ‘risk to fairness of proceedings ” Waidla, 22 Cal.4th at quoting People outcome.’ (People p. Alvarez, stated, fn. Powell’s statements supra, As relevant to the lack consent in her fear of defendant were indicating prove murder and circumstance. felony attempted-rape special attempted-rape entered her house as she napped That Powell believed defendant contends, defendant inflammatory, as other witnesses had testified given defendant had been in Powell’s house throughout day.
Further, the court admonished not to consider specifically jurors Powell’s statements as defendant her entered house. We proof jurors presume v. Anderson follow limiting instructions 43 Cal.3d 1306]), and defendant has not rebutted that Cal.Rptr. contends, however, presumption. these statements would have prejudicially in the because the court impacted penalty phase so, instructed it to consider the evidence admitted at the In guilt phase. doing it would argues, have assumed the truth of the statements. But with to evidence that was admitted for a limited respect purpose guilt phase, the court reminded the in the it could consider penalty phase evidence for that only limited purpose.
b. Admissibility Powell’s Statements Regarding Other Workers murder, Canale, On the of the day Braziel twice informed A1 the electrical contractor, workers,” defendant, that “Hispanic were including bothering Semere, coworkers, Powell in her house. one of Powell’s talked to Powell on on the telephone murder and testified he day heard in the background the voices of two men as entered Powell’s house they apparently her through door. sliding glass counsel,
On cross-examination defense Braziel recalled the first only names of Antonio, Roberto, five members of the construction crew: Francisco (defendant), Roberto, Ruijilio, Omar. He testified he had observed Antonio, and defendant *43 in Powell’s When backyard. counsel to ask attempted Braziel house, whether Powell had about complained Roberto in her being the trial Thereafter, court sustained the prosecutor’s hearsay Braziel objection. testified that he had observed Roberto to Powell’s back door go and that Powell Roberto and complained other construction workers were bothering her, knocking her door two or three times a day.
Defendant contends the trial court abused its discretion when it sustained and prosecutor’s hearsay objection trial counsel asking from prevented Braziel whether Powell about Roberto in her house. We complained being conclude the trial court limited properly counsel’s cross-examination Braziel.
Defendant argues evidence of Powell’s state of mind with to respect Roberto was relevant and admissible under Evidence Code to section 1250 her frustration with the workers and establish explain defendant was not stated, But, mental state or the declarant’s of her frustration. sole source under the state-of-mind for admission must be at issue to qualify conduct 621.) 4 Cal.4th at v. Noguera, supra, rule. hearsay exception that Powell Here, or evidence no evidence of third party culpability there was was not relevant of mind as to Roberto thus feared Roberto. Powell’s state with conformity acted in of an offense or to show Powell an element prove Therefore, Code, that Powell mind. evidence (Evid. state § and was irrelevant Roberto or the other workers have been frustrated with in did not abuse its discretion conclude the trial court inadmissible. We on this point. counsel’s limiting inquiry counsel’s discretion by limiting the trial court abused its assuming
Even Braziel, it is not harmless because error was any cross-examination v. affected the outcome. (People the evidence would have reasonably probable 36]; 1102-1103 Fudge [31 P.2d (1993) 6 Cal.4th 611-612 Cudjo People third exclusion of evidence of party culpability]; 635] [erroneous testimony heard 46 Cal.2d Watson defendant, in Powell’s house. other workers had been that in addition to man to out get for “Jose” and another he heard Powell holler Semere testified in afternoon on with her on the telephone of her house as he spoke Further, that Roberto Braziel testified Powell complained of the murder. day Indeed, for three times a day. knocked on her door two or and other workers doubt. reasons, a reasonable we would find error harmless beyond these TestimonyRegarding c. Hector Tobar’s Admissibility of and the Spanish Guatemalan People Powell’s Love of Language admitting court abused its discretion contends the trial in Guatemala its Powell’s interest
Hector Tobar’s testimony regarding culture, 10-day he and Powell took Tobar testified language. people, Guatemala fond” of “very Powell became to Guatemala 1988. trip began so much.” She she loved people wanted to there “because stay find she could and would whenever language practice learn Spanish occasion, in the Tobar visited Powell her. On one with someone speak in the her talk “to Spanish she worked and saw people where hospital aAt able to talk to people.” She—she loved to be cafeteria and other places. *44 Tobar’s conference, motion to strike the trial court denied counsel’s bench it was irrelevant. on testimony ground stated, As irrelevant. We disagree. the evidence was
Defendant contends or reason to any tendency prove evidence “having relevant evidence is of the the determination to fact that is consequence any disputed disprove
1117 Code, (Evid. action.” “The test of relevance whether the evidence is § ‘ material tends reasonable inference” to establish “logically, naturally, by ” intent, v. Scheid (1997) facts such or 16 Cal.4th (People motive.’ identity, 1, 348, 748].) 13 P.2d 939 Cal.Rptr.2d [65
Defendant and several of the construction whom Powell fed on workers occasion and who knocked on several times a were day Powell’s door Braziel heard Powell Spanish speaking. speak Spanish day murder. Evidence that Powell her skills enjoyed practicing language Spanish with by talking had a she Spanish-speaking tendency why people explain door, defendant, took an interest in the construction workers next including Thus, and shared her food and drink with them. the evidence was relevant establish the nature of the and the between Powell workers—that relationship is, a nonsexual consistent with the relationship prosecution’s theory workers, defendant, Powell’s interest in the was other than sexual including and that she feared defendant’s unwanted attention. In of its relevance light under this the trial court did not theory, abuse its discretion in admitting 1155, evidence. Taylor (2001) 26 1173 [113 827, 34 937].)
On defendant also that evidence of appeal, argues Powell’s love for Guatemala and its and her with others people enjoyment speaking Spanish was inadmissible under Evidence Code section 110110 to show Powell was with friendly because he simply was Guatemalan and spoke He Spanish. further this admitted argues evidence was not under properly Evidence Code section 1103 because had not introduced evidence Guatemala, showing Powell’s dislike of its or its Counsel’s people, language. objection relevance, however, to this on the sole testimony ground did not his preserve appeal contention that the present testimony was improper Code, 353; (Evid. character evidence. People v. Clark § 127-128 561].) His claim is thus forfeited on event, this In ground. this claim is without merit.
Evidence be relevant and admissible for one even it though purpose Code, 355; (See inadmissible for another Eagles Evid. purpose. § Tobar’s Cal.App.3d testimony Cal.Rptr. Guatemala, Powell’s love for relating its and its language people, (a) Evidence Code provides person’s section subdivision that “evidence of a (whether character or a trait of his or her opinion, character in the form of an evidence of reputation, conduct) specific evidence of instances of or her when is inadmissible offered prove his or her a specified conduct on occasion.” prosecution may introduce only character evidence of the victim to rebut evidence offered the defendant prove conformity particular the victim acted in with a character Code, (Evid. (a)(2).) trait. subd. § *45 1118 with the construction interacting motive in
admissible to Powell’s explain Further, workers, defendant, we disagree of the murder. day including a sympa- created testimony uniquely that Tobar’s with defendant’s assertion (See CALJIC No. 1.00 former guilt thetic view of the victim in phase. v. Fields 35 People not be influenced by sympathy]; must [the 803, 329, to the P.2d [“appeals sympathy 673 Cal.3d 362 Cal.Rptr. 680] [197 A court need at the guilt are phase”].) of the inappropriate passions it might generate evidence because merely exclude otherwise admissible a victim. for crime sympathy That Testimony La Calle’s Admissibility
d. Dr. Jose Was Passive Defendant testimony excluded erroneously contends the trial court Calle, defendant’s regarding passive La who would have testified Dr. Jose trial hearing, Code section 402 at an Evidence Specifically, personality. was that defendant testimony La Calle’s to Dr. sought expert counsel present Counsel under normal circumstances. a violent act committing incapable that on an interview would based testify that Dr. La Calle offered prove him, he formed the given from a series of tests defendant and results nonviolent, and is is defendant has a passive personality, that opinion act resulting a violent committing circumstances” of “under normal incapable Dr. La Calle’s testimony further argued in a homicide. Counsel he intended to introduce regarding character evidence relevant to bolster The trial court and nonviolence. for honesty, veracity, defendant’s reputation be the evidence would and stated testimony to hear Dr. La Calle’s refused defendant would not certain” that if he was “100 only percent admissible under circumstances. commit a violent act his or her character evidence of introduce opinion
A 1102, Code, (Evid. commit an offense. § a to show nondisposition 1136, 1153 Cal.Rptr. Cal.3d (a); v. Stoll People [265 subd. offense may expert with sex present P.2d charged 698] [defendant testimony, deviance”].) All expert opinion evidence of “lack of opinion however, to a subject that it be is subject requirement “[r]elated would that the of an expert opinion common sufficiently beyond experience Code, 801, decision (a).) A trial court’s (Evid. subd. the trier of fact.” assist § is a one expert opinion subject proper as to whether particular (1997) v. Mayfield abuse of discretion. is reviewed for (1956) 47 Cal.2d 485]; v. Cole People P.2d (1999) 72 854]; Cal.App.4th Manriquez 103-105 [301 standard by an incorrect requiring the trial court applied We conclude that would not commit certain” that defendant be “100 Dr. La Calle to percent *46 testimony violent act under circumstances before the could proffered (or be admitted. have counsel Given an the testified opportunity, expert might state) have the offer that the facts of this case might of proof expanded fell within his definition of normal circumstances. error in Any excluding however, Dr. La Calle’s was The evi- testimony, proposed nonprejudicial. dence of was and the have the guilt strong, testimony would proposed opened door for rebuttal with the of defendant’s assault in Guatemala evidence prior Maderos, on the Guerra de which the introduced at Angela prosecution penalty phase. defendant the court’s erroneous also violated his
Finally, ruling claims trial defense, (U.S. to due a and to a reliable verdict. right process, present Const., 5th, 6th, 8th, Amends.; Const., I, 7, 15.) & 14th Cal. art. These §§ because, stated, constitutional claims lack merit for the reasons the exclusion of this evidence was harmless a (Chapman reasonable doubt. beyond 386 U.S. L.Ed.2d 87 S.Ct. California e. Admissibility Rebuttal Evidence Used in Re-creation Crime Scene contends trial court admitted in rebuttal a improperly that was
hamper re-creation of the crime scene prosecution’s used without that it met foundational establishing He testified in his requirements. floor, own defense that after he found Powell on her room he utility wedged himself between the water cooler and the and tried to lift her her hamper shoulders. Defendant Powell back on the floor when he realized she was put so, too to move. In injured himself doing something, propped up wall, can, he could not remember if it was the trash although hamper. rebuttal, exhibits, a During including introduced a series of prosecution (the evidence), substitute had not as original been collected hamper reconstructed the crime scene in a The courtroom courtroom mockup. was also to the crime scene for a view. Detective mockup transported crime Wachter testified that scene had a collected from wastebasket sticker from store. was also Armstrong Assuming price hamper store, at an purchased Armstrong hamper Wachter substitute purchased was “identical to the to the victim’s body next appearance” hamper lying at the time of the murder. counsel to admission of objected Defense was on the that there was no the substitute hamper grounds showing hamper made as the of the same material and had the same strength flexibility therefore, and its admission was original hamper, improper.
The trial court overruled counsel’s and admitted the substitute objection in the was of a similar to the one finding size hamper, hamper depicted the original understood crime scene It also noted photographs. renews his challenge not available. On hamper appeal, admissibility, hamper’s
When, here, on the existence the relevance of evidence depends fact, unless the trial evidence is inadmissible of a preliminary proffered *47 a of the existence of finding evidence to sustain court finds there is sufficient is, Code, 403, (a)(1).) That the trial court (Evid. subd. the fact. preliminary § fact to determine is for a trier of whether the evidence sufficient must fact by the of the preponderance find existence reasonably preliminary (1996) 13 Cal.4th 832 Cal.Rptr.2d the v. Marshall (People evidence. [55 evidence only exclude the 1280].) proffered P.2d “The court should 919 a favorable too weak to support if the facts is ‘showing preliminary ” (1995) 12 Cal.4th the v. Lucas (People determination by jury.’ the decision as to whether A trial court’s (Ibid.) discretion. sufficient is reviewed for abuse of foundational evidence Defendant the argues did not abuse its discretion. prosecu- The trial court was fact that the substitute hamper tion failed to establish preliminary next to the victim’s body and constructed as the one designed similarly the original time is that because argument of the murder. But the flaw in this scene, and construction the crime its design was not recovered from hamper assertions, defendant’s at trial. to Contrary could not be established on the conduct a experiment did not invite the to jury physical prosecutor or construction. The strength prosecutor in order to test its substitute hamper using defendant’s testimony by to test encouraged jury properly determine whether of the to mockup substitute and other hamper objects to adjacent have between the water cooler hamper, defendant could stood knee, lifted her her shoulders. Powell’s when he up purportedly [jurors Baldine 94 Cal.App.4th 570] evidence, nature to aid them in weighing use an exhibit to its according evidence].) but not to new generate determine the which the could
There evidence from was ample under conditions substan- the original hamper substitute resembled hamper Detective Powell’s murder. at the time of similar to those tially prevailing “identical in was appearance” Wachter testified that the substitute hamper used the the courtroom mockup The forensic artist who created the original. and the wall as grid plot room floor utility tiles of hexagonal cooler, He and other items. body, Powell’s water coordinates hamper, The jury accurate to one inch. of these items were estimated the placement locations of the relative size and and could compare viewed the crime scene the dimensions the substitute including hamper, in the objects mockup, addition, the substitute could In the compare of the actual room. utility to Powell’s body, depicted with the next hamper resting hamper of the crime scene. photographs Explaining Why
f. Exclusion Surrebuttal Evidence Did Tell About Powell’s Finding Not His Defendant Body Wife section Defendant contends that the trial court erred under Evidence Code he surrebuttal evidence that would have by excluding why explained afraid to tell his wife he discovered Powell’s body. testified in his defense that after home on the returning day murder, he did tell his wife had discovered Powell’s because body
he believed she would “bawl out or also something.” prosecutor [him] elicited on cross-examination that defendant believed his wife would mad get at him and “bawl out” for did not tell trying Powell. Defendant help [him] *48 his wife about Powell’s until months after he was arrested. finding body
Outside the defense counsel presence jury, sought present surrebuttal evidence defendant was afraid to tell his wife explaining why about Powell’s made an offer finding Counsel that defendant’s body. proof wife, Antonia would and defendant when he Salguero, testify she argued in the and that he helped injured she felt should not people past help people. Salguero would a incident in which defendant was testify regarding specific falsely accused of an individual whom he had tried to The trial shooting help. court ruled that evidence defendant and his wife when generally argued admissible, defendant others was but evidence helped regarding specific incident in Guatemala was inadmissible. testified in the defense’s case-in-chief had
Salguero she scolded times” for other In the “many helping people. prosecution’s rebuttal, testified, she “I never liked for him to be other or defending people And it was his habit all the time.” anything. On cross-examination defense by counsel, further testified she with defendant Salguero “got very angry” because he had into Powell’s house and tried to her. gone help act,
Evidence Code section 356 “Where of an declara provides; part tion, conversation, or is in evidence one the whole on writing given by party, the same be into an adverse when a letter is subject may inquired party; read, act, declaration, the answer be a detached may given; when conversation, evidence, act, declaration, or other writing given conversation, or which is to make it understood also writing necessary be in evidence.” The section is to from given of this purpose prevent party conversation, act, declaration, select of a to create a using writing aspects v. Arias (People on the to the misleading subject jury. impression presented 980].) (1996) 13 Cal.4th 913 P.2d case, wife In this defendant was the would proponent evidence Therefore, not an adverse scold him for tried to Powell. was having help into the whole under Evidence Code section subject entitled party inquire 356. Lawley we no occurred. conclude error Accordingly, Admission Statements to the
g. of Defendant’s Bailiff At the the trial court conducted an Evidence Code prosecutor’s request, end of the case-in-chief to section 402 near the hearing prosecution’s determine the of a statement defendant had made to admissibility Deputy Breton, bailiff, Sheriff Richard a courtroom At during hearing. pretrial 14, 1993, Breton testified that on June he had a conversation hearing, Breton with defendant as he escorted him from courtroom to lockup. told defendant he had cities in Guatemala and enjoyed visited several said, the cities were nice and then “In country. acknowledged very later, this, I do no I home A few seconds my country, go tonight.” problem, he said that Breton did not understand. something Spanish
Trial counsel to admission of Breton’s objected testimony ground that defendant’s statement to Breton was The ambiguous.12 prosecution as an admission of guilt. statement admissible argued implied ruled the trial court defendant’s statement was but acknowledged ambiguous *49 was admissible because what defendant was testimony referring nonetheless trial, to determine. At to when he said “I do this” is for the trier of fact with at the testimony hearing. Breton’s was consistent testimony On defendant maintains the statement should have been appeal, fails, because the of “I do this” was His claim meaning ambiguous. excluded however, evidence, because it “concerns the of this not its only weight which v. unambiguity.” (People does admissibility, require complete 398, 324, 78].) (2001) Ochoa 438 28 P.3d Cal.Rptr.2d [110 the and not admis hearsay statement was additionally argues Because an admission under Evidence Code section 1220. sible as implied trial, on at not raise this issue ground defendant did not on this object (1999) 21 Cal.4th Cal.Rptr.2d v. 1049 (People Carpenter appeal. [90 12 objected discovery violated the rules because this prosecution Counsel also the Defendant, however, testimony day rested its case. prosecution was not disclosed until event, suggestion the on In the trial court found no appeal. does not raise this contention the defense. testimony consciously aware of but withheld it from prosecutor was this Moreover, merit. Evidence Code P.2d is without argument of a is not made inadmissible
section 1220
that “Evidence
statement
provides
in an action to which
rule when offered
the declarant
hearsay
against
by
case,
of a
made
he is a
. ...” In this
the evidence was
statement
party
defendant,
the declarant as well as a
to this prosecution.
offered against
party
admission,
of whether the statement can be described as
Regardless
it is offered
against
rule does not
its exclusion when
hearsay
party
require
v.
(People Carpenter, supra,
1049.)
21 Cal.4th at
declarant.
p.
v. Hill
People
Finally, relying Cummings People 673], Cal.4th 1233 1], the trial court had a sua duty argues sponte instruct that the bailiff’s was not entitled to any testimony special Hill, because it came from a bailiff. In the courtroom bailiff weight simply trial, overheard the defendant make statements and at testified incriminating (Hill, 842.) for the those statements. at The bailiff prosecution regarding (Ibid.) thereafter resumed his courtroom On the defendant duties. appeal, that, court, motion, argued other the trial on its own should among things, have instructed the not give the bailiff’s additional testimony any (Id. 842-843.) because he was a bailiff. at weight merely We such pp. agreed an instruction should have been and further concluded the bailiff given, should have been to another courtroom after he testified because reassigned would have accorded additional jurors likely the bailiff’s testimony because he was a uniformed officer of their weight simply charge (Id. 842-843, at protection. pp. Cummings,
In Cal.4th at the courtroom page bailiff overheard the defendant make similarly statements and incriminating testified at trial for the those statements. subsequently prosecution regarding The defendant objected to admission of the bailiff’s on the testimony grounds its admission would him due and a fair and trial deny process impartial officer, because the bailiff was a trusted court had been in seating involved (Ibid.) and had to the court. escorting jurors, relayed juror messages On we agreed with trial court’s that the value appeal, findings probative to the defendant from his status as testimony outweighed any prejudice (Id. trusted officer and concluded the admitted. testimony properly *50 1290.) The bailiff had little direct contact with had not been jurors, witness, witness, identified as a was not a and was potential key prosecution (Ibid.) addition, relieved of courtroom In the trial duties upon testifying. court not to accord the testimony greater weight admonished bailiff’s jury (Id. 1291.) because he had been a bailiff in the courtroom. at p. Breton served as bailiff in pretrial proceedings case,
In this but was prior from the courtroom in which defendant’s case was tried reassigned 1124 Hence, commencement selection. no official interaction jury there was Unlike Hill Breton, bailiff, and the jury.
between courtroom acting that the accord Breton’s addi- Cummings, testimony would danger interaction them was therefore tional because of his direct with weight witness, Breton, moreover, and his was not the key prosecution nonexistent. than that of other any as a uniformed officer was no different presence facts, in court. on these we conclude Accordingly, uniformed officer testifying that no greater weight the trial court was not to admonish the jury required a courtroom bailiff. should be accorded Breton’s because testimony Prosecutorial Misconduct Alleged 2. miscon engaged
Defendant contends prosecutor prejudicial during duct sarcastic asking argumentative questions repeatedly reversible under cross-examination of defendant. Prosecutorial misconduct is unfairness as to the federal Constitution when it “infects trial with such v. Morales (2001) 25 make the conviction a denial of due process.” (People 582, accord, Darden v. 34, 11]; 44 18 P.3d Cal.4th [104 144, 2464]; 477 U.S. L.Ed.2d 106 S.Ct. Wainwright [91 L.Ed.2d S.Ct. Donnelly v. 416 U.S. DeChristoforo that does not render a criminal trial “Conduct by prosecutor unfair under law only misconduct fundamentally prosecutorial [California] if it use of methods to attempt involves the deceptive reprehensible Morales, jury.” (People supra, persuade either the trial court or the Cal.4th at p. “ 1 “a defendant
Generally, appeal prosecutorial complain defend in a fashion—and on the same ground—the misconduct unless timely that the ant misconduct [requested] assignment requested [also] ’ ” Ayala (2000) 23 be admonished to disregard impropriety.” trial, 3].) At defendant objected of defendant on several occasions. We to the cross-examination prosecutor’s harmless. either no occurred or misconduct was conclude misconduct Questions About a. Defendant’s Truthfulness defendant denied that he had his first interview with the During police, interview, defendant house. the second During initially ever been Powell’s been in Powell’s house but admitted eventually maintained that he had never she and had entered Powell’s house after he had lied to police previously cross-examination, asked defendant several On was killed. prosecutor “blushed,” “twitched,” “blinked,” or otherwise indicated times whether he him that he was lying. generally the officer who interviewed court overruled know or remember. The trial that he did not responded argumentative. that the were counsel’s objections prosecutor’s questions
1125 constituted claims the questions On defendant prosecutor’s appeal, to inflame the and served only misconduct because were they argumentative a witness designed engage We An disagree. argumentative question jury. the witness’s knowledge. (People in rather than elicit facts within argument 1, 485].) P.2d (1997) 928 Mayfield [60 interview. As the Defendant admitted he had lied to the first during police out, because related to they were appropriate People point questions he lied. defendant have when may distinct mannerisms or gestures displayed were, essence, defendant’s knowledge to elicit facts within They designed (1993) 6 v. Ochoa credibility. (People that related to the assessment P.2d is the exclusive 103] [it “ of a and the of the trier of fact ‘to determine the witness credibility province ”].) No truth or of the facts on which that determination falsity depends’ misconduct occurred. addition,
In court acted defendant claims that the trial improperly this examination. Defendant had indicated he did clarifying question during not understand The court what described asking. prosecutor if you cross-examination as “stalled” and clarified the “is prosecutor asking lie, are aware of do as blush or blink you you when such anything you hard or be in the your eyes eye.” swallow unable to look other person “I don’t know.” responded, Absent an defendant has forfeited this claim on objection, appeal. Nonetheless, it is without merit. While it is the better ordinarily practice case, the trial court let counsel a trial court develop properly “undertake the examination of witnesses . . . when it that relevant and appears material will not be elicited counsel.” testimony (People Rigney 55 Cal.2d Cal.Rptr. Questions
b. Other Improper Defendant claims the asked defendant two prosecutor why improperly witnesses would lie. We prosecution disagree. murder,
Eric Sloane testified for the that on the of Powell’s prosecution day when he looked for defendant on the heard close jobsite, gate saw defendant from a the house remodel- emerge hedge being separated and Powell’s house. Sloane asked defendant he was on Powell’s ing why Sloane, him it told would property. According apologized on the not Defendant testified he was from happen again. coming garage On construction site and had not been on Powell’s property. cross-examination, if he over asked defendant knew objection, prosecutor that Sloane was reason Sloane would have lied. Defendant testified why because didn’t find me on the side inside the house.” lying other “[h]e *52 Prosecution Susan Michel testified that after 4:00 shortly p.m. witness murder, house and observed three of Powell’s she walked Powell’s day Michel, from the site. defendant remodeling According workers drive away house. Michel remained and asked her whether she had come from Powell’s no, told him and that she lived down the street on the comer. On cross- examination, defendant denied that he had such a conversation with Michel. to lie about The then asked defendant if Michel had reason prosecutor him. Defendant no. responded to Michel because
The defendant has forfeited this claim as argue he of her. We disagree. Any failed to to the object prosecutor’s question would have been futile because the trial court had objection previously overruled his on the same with to witness Sloane. objection ground respect Hill, Therefore, defendant has not 17 Cal.4th at (Ibid.) forfeited claim for appeal. defendant for as to Sloane’s and did not ask his prosecutor opinion Rather,
Michel’s assumed these witnesses have veracity. might questions from been for their false lying sought testimony possible explanations defendant. This is not misconduct. It is apparent prosecutor’s questions defendant’s were between designed merely highlight discrepancies and that of the witnesses. The did call on testimony questions moreover, and Michel liars. The was instmcted to characterize Sloane jury, believability under CALJIC No. 2.20 that were the sole they judges a witness. Testimony
c. Challenge Regarding Defendant’s Defendant contends the to tell regarding inability prosecutor’s questions at the crime scene were body argumenta- his wife about Powell’s discovering cross-examination, that he did not inform his wife tive. On defendant testified he was “scared” and “didn’t have about Powell’s because finding body whether he to tell her. In asked defendant courage” response, prosecutor head and tortured him13 if his wife would have over his thought put bag police that he officer in Guatemala and had observed testified earlier Marcos, “Well, at, at the border in San torturing suspects: when I was—where I was I was blow, there, enough they blows. That’s all. But it was just use the hood and some some small choking they put the hood on and he would start person for a to be careful because as soon as very give something plastic—and person in ... . The hood is like a if the is so he would they something, they powder some kind of a suspicious they really put to them like think did insecticide, ....[f| they g-a-m-s-e-n, that is ... don’t powder gamsen, like It’s a named much, bit, head, got like a—like a covering up, his face and it’s put very place a little it on his tie, [j[] a little can’t breathe. And then after up people it’s closed ... so it remains closed. So it, nothing’s they person to the remove they happened person, while then when know though.” kind of half dead Defendant claims the prosecutor’s question
told her what he had observed. and constituted misconduct. was argumentative stated, is designed As an argumentative question No misconduct occurred. *53 v. Mayfield, supra, and is improper. (People witness in engage argument Here, challenged 14 Cal.4th at the prosecutor properly and “didn’t have the courage” that he was “scared” regarding explanation Powell’s discovering body. prosecutor’s questions to tell his wife about of defendant’s explanation. served to for the highlight improbability (2000) 22 Cal.4th (See, v. Bemore e.g., People device calcu- a rhetorical prosecutor simply employed 1152] [“the evidence of guilt lated to focus the attention on circumstantial jury’s strong case”].) in the defense and on weaknesses any corresponding d. Inconsistencies in Questioning Regarding Defendant’s Testimony examination, inconsistently regarding On direct defendant testified him events that over to Powell’s house after all of the go prompted had He first described “two hearing construction workers left for the day. voices like but said he “heard a woman’s voice.” something happening” were they Defendant testified he was unable to understand the voices because and “then He then said he heard a woman’s voice” English. “just speaking two voices.” He described the voices as “not normal voices.” Defendant clarified he heard two voices that made loud sounds associated subsequently with He did not hear words. pain. cross-examination,
On followed on this issue: up prosecutor Sir, were these two women words in saying English “[The Prosecutor]: language? The two ladies?
“[Defendant]: Yes.
“[The Prosecutor]: What two ladies?
“[Defendant]: go along? You—are this as you just making up you “[The Prosecutor]: that; Your that’s argumentative, I am going object [to] “[Counsel]: Honor. It’s not a question.
“THE COURT: Overruled. making you go along? this you up “[The Prosecutor]: [A]re are me about the two ladies? asking You “[Defendant]: No, this making I am whether are asking you you just Prosecutor]: “[The as you go along. up I’m not making anything up.”
“[Defendant]: and was con- On defendant contends that he did not understand appeal, reason, this he claims the fused For by many questions. prosecutor’s sarcastic and abusive were questions preceding exchange prosecutor’s out, find no As the and constituted misconduct. We misconduct. People point the voices he heard from testimony coming because defendant’s regarding *54 inconsistencies, riddled with could prop- Powell’s house was prosecutor inconsistencies. test defendant’s in this area and veracity highlight any erly Moreover, heard defendant’s and could evaluate whether testimony of difficulties or lack of his inconsistencies were the result his language candor. Actions
e. Questioning Regarding After Defendant’s Discovering Body Powell’s off of that he did not remember blood washing any testified but he admitted that he must have done himself after Powell’s finding body, under so in the at the house construction. prosecutor repeatedly pool asked him if he was finally defendant’s in this area memory questioned of himself. The trial afraid to admit to the that he washed the blood off court overruled counsel’s that the was objection argumentative. question contends misconduct engaged
On prosecutor appeal, he was to hide trying because the was argumentative suggested question blood off. We he admitted he must have washed though even something of defendant’s conduct conclude no misconduct occurred. Evidence specific Harris v. credibility. (People the issue of his was relevant and admissible on Thus, 352, 767 P.2d Cal.3d 1080-1082 Cal.Rptr. [255 his on defendant’s testimony regarding could focus properly prosecutor defendant’s he house to determine whether actions after left Powell’s specific covering with Powell with up conduct was consistent attempting help evidence of her murder. Prosecutorial Misconduct
f. Cumulative Impact Alleged misconduct ren- alleged the numerous instances of Defendant contends unfair, constitutional in violation of his federal dered his trial fundamentally concluded no Because we have and a reliable verdict. to due right process occurred, fails. his claim misconduct Rape Evidence Sufficiency Attempted
3. on a to instruct the jury the evidence was insufficient The trial court found Accordingly, and deliberate murder. prosecution’s theory premeditated and the murder conviction degree defendant’s first sole theory supporting murder during finding felony related rape-murder special-circumstance to establish the evidence is insufficient an Defendant contends attempted rape. reverse and this court must Powell was murdered during rape, attempted the related conviction strike degree felony-murder rape-murder his first alternative, reduce we should argues In the finding. special-circumstance conviction to second murder. degree evidence, we do In to the reviewing challenge sufficiency Rather, record in the we “examine the whole determine facts ourselves. whether it discloses most favorable to the to determine light judgment reasonable, credible and of solid substantial evidence—evidence the defendant guilty value—such that a reasonable trier of fact could find (2000) 23 Cal.4th a reasonable doubt.” beyond Kraft 68]; (1979) 443 U.S. see also Jackson v. Virginia 2781]; Johnson 26 Cal.3d L.Ed.2d S.Ct. 319-320 *55 557, 431, in of the 738].) 578 606 P.2d We support Cal.Rptr. presume [162 deduce from the of fact the trier could every reasonably existence judgment 1053.) 23 Cal.4th at Kraft, the evidence. v. (People supra, p. in which the
The same standard of review to cases applies prosecution and to circumstance relies on circumstantial evidence special primarily 396.) circum 30 Cal.4th at the allegations. Maury, supra, v. (People p. “[I]f the not be may stances the reasonably justify jury’s findings, judgment the also be recon reasonably reversed because circumstances might simply Farnam, at a 28 Cal.4th supra, ciled with v. contrary finding.” (People 143.) evidence or reevaluate a witness’s credibility. We do not reweigh p. Ochoa, 1206.) Cal.4th at v. 6 (People supra, p. of,
A killing attempt perpetrate” “committed in perpetration felonies, is first murder.14 degree one of several enumerated including rape, to a murder (§ 189.) circumstance applies The rape-murder special equally of, . . . the commission “committed while the defendant was engaged [or] 190.2, Kelly v. (§ (a)(17)(C)); People subd. see commission of’ rape. attempted 14 during attempted killing “which occurs The trial court instructed the that a degree perpetrator when the had rape is murder of the first commission of the crime of (CALJIC 8.21.) intent to commit such crime.” No. specific 1130 495, 677,
(1992) 524-525 822 P.2d Forcible Cal.Rptr.2d [3 is an act of sexual intercourse rape with accomplished person will spouse perpetrator against means of force or person’s by 261, (§ violence. Maury, v. (a)(2); subd. People supra, 427.) 30 Cal.4th at p. An to commit has two elements: intent to commit attempt rape specific and a direct but ineffectual act done rape (See toward its commission. v. People Carpenter, 15 Cal.4th at The act must be a direct movement crime beyond that would have preparation accomplished (Ibid.) if not frustrated extraneous circumstances. An actual element rape by offense, however, v. Dillon of the need (People (1983) not be 34 proven. 441, 454, 390, Cal.3d 456 P.2d 668 Cal.Rptr. [attempted robbery].) [194 697]
Intent to commit is the intent to commit the act rape against will 342, (See, e.g., People Maury, supra, 30 Cal.4th complainant. 400 commit v. Ghent with intent to rape]; People (1987) 43 Cal.3d [assault 757 assault with intent Cal.Rptr. to commit [239 rape 1250] [an and an intent].) the same A attempted rape require defendant’s specific intent to commit a crime specific be inferred from all of the facts and circumstances disclosed the evidence. Craig by v. Cain 96]; see also Cal.App.4th [burglary].) 1224] shows, most, first contends the evidence at a sexual interest Second, Powell that cannot be with an intent he contends equated rape. attack, because there was no evidence of a sexual there was no physical evidence of We and conclude the could attempted rape. disagree infer intent reasonably defendant’s to have nonconsensual intercourse with Powell force and further find his actions least went mere beyond and constituted direct but ineffectual toward the preparation acts attempted of a commission rape. assault,
In older cases of sexual in the absence involving charge that a evidence sexual assault had occurred physical (e.g., presence *56 trauma), semen or the court declined vaginal to infer intent to commit a victim, (See, sexual assault on the even if the victim unclothed. e.g., 490, People Granados (1957) 346]; v. People Craig 49 Cal.2d P.2d 497 [319 v. Anderson 947]; (1968) Cal.2d P.2d 318-319 [316 942].) Cal.2d we Cal.Rptr. Recently, distinguished these decisions the lack of semen or absence of sexual trauma on by noting inference, the victim did not rebut an on the based other evidence physical attack, the that the defendant entered the victim’s house with an surrounding Holloway intent to 138-139 rape. We concluded there was sufficient evidence from which the could infer the defendant’s intent jury reasonably rape, a sexual victim suffered of evidence the the absence
notwithstanding physical (Ibid.) from intent to infer defendant’s rape assault. The could reasonably defendant’s attempted the and evidence the body the condition of victim’s (Ibid.) Holloway, despite Here, the lack as in the victim’s sister. rape assault, we conclude sufficient had suffered a sexual evidence Powell physical evidence defendant intended to her. rape established A in Powell. sexual interest escalating establishes defendant’s record murder, site with around the remodeling few the as defendant sat days before coworkers, term for female slang he the word a other used “panocha,” a sexual manner. On as he his in reference to Powell genitalia, gyrated hips murder, and defendant entered Powell’s day property the repeatedly room door utility house. defendant walked Powell’s morning, through In to the her kitchen. Powell asked Braziel to take defendant back into lunch, alone on site. After Braziel found defendant remodeling standing contractor, Sloane, 2:30 remodeling Powell’s back Around patio. p.m., heard and saw defendant from backyard emerge Powell’s close gate defendant he was hedge why When Sloane asked separating properties. next assured him it would door and not defendant working, apologized Later, after defendant had Powell’s again. stepped through patio happen den, back to door and into her Powell asked Braziel to take defendant again me, for me for site. Defendant chanted remodeling repeatedly “Kathy manner. in a tried to Kathy” and his sexual Braziel gyrated hips persuade him, Francisco, “[N]o, a nice defendant to leave and told Powell’s like being a friend.” Defendant She don’t like She likes like person. you way. you me, me for chant his responded by continuing repeat “Kathy Kathy” later, Canale, contractor, Still the electrical observed gyrating hips. room, defendant alone a brown drinking beverage. inside Powell’s utility addition, In a reason for remain- evidence shows defendant fabricated at all workers had left for site after of the construction ing remodeling Flores, coworker, trial, he a At defendant claimed that he told Antonio day. Cozen, However, boss, until his Kevin returned. intended to the site stay Cozen no to meet defendant at the site testified had made arrangement the afternoon. Michel, also who was neighbor walking by had asked house, site after whether she had come from Powell’s
remodeling 4:00 p.m., such and she “No.” A could infer from evidence reasonably replied, Powell after the construction workers defendant catch alone other planned had left. conclusion that injuries
Evidence Powell’s also supports *57 death resisted sex having to her and stabbed her to when she attempted rape him. with The most are the telling injuries Powell’s wounds and the poke slash wound on each of were Powell’s breasts. wounds essentially and indicate defendant in one deliberately Powell breast with parallel poked then his knife and her in other the same tip poked breast in manner. Then, breasts, after her defendant slit one of breasts poking Powell’s open slashed the other. Such accidental. A wounds were not obviously jury wounds, could infer that these reasonably by defendant intended to inflicting Powell force to do her will. The something against nature location of injuries—considered Powell’s in with the circumstantial conjunction above Powell, evidence of defendant’s escalating sexual interest demonstrated house, in entering Powell’s and efforts to that he would persistence ensure be alone with the end Powell at that day—supports jury’s finding intended force to Powell to submit to his sexual intent.
Defendant that argues circumstances were myriad evi- presented dence and that an was not attempted only accounted rape explanation for Powell’s murder. For he assuming Powell’s breasts with a example, poked knife, he maintains evidence that those suggests equally wounds were inflicted as a result of his taunting her for his sexual advances having rejected rather than to force her to have sexual with him. But attempting intercourse the defense offered no evidence at to trial contest the evidence that People’s defendant acted intent with Defendant Powell. testified was not rape screams, interested in Powell and found her her romantically hearing upon that some unidentified third must have attacked her in her implying party room and her to did utility stabbed death. The not believe his jury obviously version of events. His defense at trial thus no for his provides support that the evidence argument was insufficient to establish appeal People’s intent Powell. The could reasonably have inferred that rape defendant assaulted Powell with the intent to rape.
Further, the reasonably could have found defendant’s conduct consti tuted direct but act in ineffectual furtherance of his intent rape, thereby v. (People Carpenter, supra, establishing his of Powell. attempted rape 387.) Cal.4th at Proof even acts done in p. slight beyond preparation v. Memro furtherance of the intent will constitute rape attempt. Dillon, People supra, 832]; (1985) 38 Cal.3d Cal.Rptr. Cal.3d at Under defendant’s infliction of prosecution’s theory, breasts, alive, wounds on Powell’s while she was an act poke constituted furtherance of an wounds attempted rape. poke complains inflicted were in a sexual manner and that some sort of necessarily sexual assault to establish Not so. In physical required rape. attempted Carpenter, 15 Cal.4th at we declined to hold that an page “ ‘some attempted conduct distinctly of a unam rape requires physical ” (See Kipp sexual nature.’ also biguously
1133 716, oral demand for 349, 956 P.2d 376-377 1169] [a [75 more use of force constitutes the actual or followed copulation attempted than mere preparation].)
Here, reasonably could theory, consistent with prosecution’s Powell, was intercourse with consensual sexual attempted find that defendant her, her her to by poking then to force comply rejected by attempted so, use force In defendant’s of of his knife.15 doing breasts with tip an into attempted to than mere and progressed amounted more preparation rape. (People Carpenter, supra, 387.) v. 15 Cal.4th at p. reasons, to evidence sufficient support
For we conclude the these and, during defendant killed Powell an attempted rape that jury’s finding and the related first conviction accordingly, degree felony-murder defendant’s finding. rape-murder special-circumstance Rape Circumstance Attempted Special
4. that, law, Here, as a of the attempted-rape defendant contends matter case cannot circumstance this sustain allegation rape-murder special because murder not committed to advance the attempted rape. Powell’s We disagree. Kelly, supra, Cal.4th at we affirmed that a murder
In v. 1 p. felony-murder committed an can both a during rape support attempted killing A that a finding. finding conviction a rape special-circumstance ‘are of occurred in the commission that “the two felony requires parts ” (People Berryman one Cal.4th continuous transaction.’ 6 1085 “The circum- rape-murder special the murder but does merely stance that the not be incidental to requires rape not that the intent kill arise rape attempt rape.” require after (People Carpenter, supra, at find 388.) Cal.4th must that 15 p. defendant committed murder “in order advance felonious independent v. Green (1980) 27 Cal.3d Cal.Rptr. purpose.” case, 468].) In this evidence that defendant desired to have sexual intercourse Powell, her, permission and entered her house without with kiss attempted allowed a suggests physical The dissent in the that evidence reasonable alternative “[t]he anger refused or out tortured killed Powell because she him inference out 1167.) post, coworker, (Dis. opn., p. at friendship over her with his Braziel.” jealousy stated, however, does render the evidence As the existence of alternative theories Farnam, supra, (People v. felony-murder defendant’s conviction insufficient. findings, we not reverse reasonably justify jury’s “Because the circumstances reasonably be reconciled with judgment simply might because the circumstances also (Ibid.) defendant’s alternative theories.” strongly motivation was “or at suggests least primary rape ” *59 was an v. [attempted] rape ‘independent purpose.’ (People Carpenter, supra, 15 387.) Cal.4th at p. defendant’s claim of error Accordingly, fails.
5. Instructional Issues
a. 2.51) Instruction Regarding (CALJIC Motive No. The trial court instructed the with standard jury instruction regarding motive.16 Defendant contends the motive instruction was erroneous on three grounds. The these not People argue issues are because defendant cognizable failed to on these at For object grounds trial. reasons we explained post, agree with the People part. initially motive instruction shifted complains the prosecu
tion’s of burden to to proof had his innocence. imply prove his Despite basis, failure to to this on object instruction this the claim is on cognizable because it appeal substantial v. implicates rights. (2004) Cleveland (People Nonetheless, 32 Cal.4th 302]; 750 Cal.Rptr.3d 1259.) [11 § Cleveland, we have this claim previously rejected v. Cal.4th (People supra, 32 at 750), and p. defendant offers no reason to revisit persuasive our decision. (See also v. Prieto 30 Cal.4th People 254 66 juror reasonable would consider CALJIC 2.51 an instruc [no 1123] tion or standard of instruction distinct from the doubt proof reasonable 2.90].) standard set forth in CALJIC
Defendant next the motive argues erroneously instruction informed jury because, of evidence motive alone was to guilt sufficient establish unlike the court’s instruction on guilt, consciousness motive instruction did not state that evidence of explicitly motive alone is not to sufficient prove Cleveland, v. 750.) 32 at guilt. (People supra, This claim is not p. however, cognizable, because defendant was obligated clarification request and failed to do so. v. Hillhouse 27 Cal.4th 45, 40 P.3d must instruction in party request clarifying 754] [a on order that an correct argue appeal instruction in law was too or general event, In we find no error in incomplete].) the instruction no The jury was instructed on the prejudice. reasonable doubt standard. properly We find no reasonable likelihood the would interpret instruction as stating motive alone was sufficient to defendant’s prove guilt. (People However, charged you “Motive is not an element the crime and need be not shown. may consider motive or lack as a may of motive circumstance this case. Presence of motive guilt. may tend to establish Absence motive tend establish innocence. You will therefore absence, be, give the presence weight you as the case it to which find to be (CALJIC 2.51.) entitled.” No.
Cleveland, in this verdict jury’s Certainly, supra, p. based on motive. solely case instruction relieved prosecution the motive argues
Defendant further a reasonable doubt beyond possessed its burden of proving He asserts that motive when he killed Powell. intent to rape requisite have would not in this case and that intent were indistinguishable and intent. This issue involving been able instructions motive distinguish 1259; (§ at trial. even defendant’s objection absent cognizable appeal Hillhouse, objection Cal.4th at required [no affect element of the crime because instructions involving review appellate *60 defendant].) claim lacks merit. of the But defendant’s the substantial rights 335], v. Maurer 1121 In Cal.App.4th cites, child the was of misdemeanor which defendant convicted state under section 647.6. To the mental element annoyance prove offense, was the had to show the defendant’s conduct prosecution Maurer, unnatural (People motivated an or abnormal sexual interest. by 1126-1127.) were one supra, by The told jurors Cal.App.4th pp. unnatural instruction that the defendant’s conduct must be “motivated” an by be that “motive” need not or abnormal sexual interest and another (Ibid.) established. The Court of held the instructions conflicting Appeal (Ibid.) the from deliberations. removed issue of intent the jury’s erroneously This We have describes distinguishable. explained case is “[m]otive however, reason, The is the reason a chooses to commit crime. person intent or malice.” (People different state such from mental as required Hillhouse, Here, intent to commit although 27 Cal.4th at Moreover, offense, trial court was an element of motive was not. rape circumstance, it must instructed the that to find the jury rape-murder special find the out or advance “murder was committed in order to to carry circumstance “is crime of commission of the attempted rape” special if the was incidental to the murder.” established rape merely attempted and intent the instructions as a whole did not refer motive Consequently, find that the understood We no reasonable likelihood interchangeably. jury v. Cash those terms to be synonymous.
b. The Circumstance Instruction Special in the commission of With to the circumstance of murder respect special follows: the trial court instructed as jury attempted rape, circumstance, “To referred to in these instructions find that the special true, must be it rape proved: murder the commission of attempted “1. The murder was committed while the defendant was in the engaged commission of a attempted rape;
“2. The murder was committed in order to out or carry advance the or to avoid detection. In other commission of the crime of attempted rape words, circumstance special referred to in these instructions is not established if the incidental attempted rape merely the commission of 8.81.17, (CALJIC the murder.” No. added.) italics Defendant contends first that the trial court erred by refusing request delete the “or to avoid detection” phrase from the instruction on the ground that there was no evidence the killer murdered Powell to avoid detection. We disagree. could jury infer that reasonably defendant murdered Powell either to out carry detection, or advance the or to attempted avoid rape Indeed, both. no other reason for his Powell killing readily appears. Any these would suffice purposes circumstance. support special Nothing the trial required court to limit the to one choice or the other.
Defendant also maintains that the instruction to make permitted special-circumstance the absence of finding evidence of an attempted *61 because the rape could find the jury circumstance true special by simply he finding tried to avoid detection “of whatever he had done to that up point.” Defendant’s argument is on an unreasonable premised of the interpretation instruction. To find murder, of guilty first degree felony the jury was instructed it had to find defendant had the intent specific to commit and that the rape attempted a rape proven beyond reasonable doubt. 3.31, (CALJIC 8.21.) Nos. The challenged instruction further required had to find the jury murder was committed while the defendant was and in the engaged commission of a attempted rape was not rape merely incidental to the murder. The jury was also instructed to consider instructions “as a whole” and to not out single or particular point Therefore, instruction and ignore (CALJIC 1.01.) others. No. as applied case, this the special-circumstance instruction that Powell’s murder required was committed to avoid the detection of an attempted rape. conclude,
We based on the totality instructions there given, is no reasonable likelihood the misconstrued the instructions. misapplied v. (People Maury, supra, 30 Cal.4th at p.
c. Consciousness Guilt Instructions of established, conceded, Evidence and defendant he made false and mislead- result, ing statements to the and his wife. As a the trial court police instructed jury, follows: “If find that before you this trial the defendant made a
1137 crime for statement deliberately misleading concerning false or willfully tried, as a circum- he is consider such statement being you may which now However, such conduct is consciousness guilt. stance tending prove if and and weight significance, any, not sufficient itself to its prove guilt, by (CALJIC 2.03.) are matters determination.” No. your for he wore claimed clothing Defendant also officers with provided police had not washed on the of Powell’s murder. He told Detective Wachter he day evidence, gave this court the following the clothes. Based on trial to or did fabricate find that a defendant attempted instruction: “If you trial, by you at be considered evidence to be such conduct produced However, such guilt. as a circumstance to show consciousness tending signifi- and its weight conduct not sufficient itself prove guilt cance, 2.04.) (CALJIC if determination.” No. any, are matters for your were guilt
On defendant contends the consciousness instructions appeal, to make unrea allowed impermissibly argumentative improperly sonable his mental state the commission regarding during inferences We offenses. have considered and cases. rejected arguments prior similar 705, 223, 68 v. Nakahara (2003) 30 Cal.4th 713 P.3d Cal.Rptr.2d [134 People People 375, cited; v. v. Kipp, 1190]; 18 Cal.4th cases Holt People 619, 782, 213]; (1997) P.2d v. 15 Cal.4th Cal.Rptr.2d [63 49, Jackson 1223-1224 Cal.Rptr.2d [56 People Rodrigues 1254]; (1994) 8 Cal.4th 1140-1141 Bacigalupo 1]; 885 P.2d no reason us offers persuasive to revisit decisions. these Rape
d. Definition of *62 murder, trial The court instructed the on first as follows: degree felony intentional, unintentional “The of a or killing being, unlawful human whether accidental, crime occurs the commission of the of during attempted which had is murder of the first when intent rape degree specific perpetrator to commit such crime.
“The and the commission of such attempted intent commit specific rape must beyond crime be a reasonable doubt. proved instruction, an act “As used the word means in of engaging in this ‘rape’ a not sexual intercourse with female who is person, spouse force, of such will means by accomplished against person’s perpetrator, violence, or of and unlawful to such bodily injury person.” fear immediate (CALJIC 8.21.) No.
1138
Defendant contends the definition of included in this was instruction rape deficient it because failed to define “sexual intercourse.” We disagree. matter,
As a
defendant
has forfeited this
preliminary
People argue
claim because
failed to
at trial.
a
clarifying
Generally,
instruction
request
claim of instructional error is not
on
if the
cognizable
appeal
instruction
correct
in
and the
law
fails to
clarification instruction.
request
v. Catlin
e.g., People
(See,
[109
Here, however,
Defendant asserts there no similar but was clarification in this we attempted It disagree. was that offense was undisputed rape, rape, Ray (1961) 187 no required penetration. Cal.App.2d however Defense coun- Cal.Rptr. [“Rape requires slight.”].) penetration, 678] sel lack argued the of evidence of “There follows: attempted rape, . . . Powell’s clothes. No penetration no . . . or removal tearing attempted or attempted vaginal area. No evidence of penetration words or acts that would indicate an intent to take a force her against woman will.”
We with the there is no agree possibility the term misunderstood “sexual intercourse” in the context of the definition of rape. Instructions the Reasonable Doubt Regarding Standard
e. (CALJIC Defendant contends a given number instructions the jury 1.00, 2.01, 2.02, 2.21.2, 2.22, 2.51, 8.83.1) Nos. were unconstitutional *63 because misled doubt and they jurors regarding reasonable standard of lightened burden Each his impermissibly proof. prosecution’s without merit. contentions is three initially interrelated instructions on circumstan- challenges
tial CALJIC No. circumstantial evidence— evidence: 2.01 (sufficiency
1139 evidence to prove of circumstantial (sufficiency No. 2.02 CALJIC generally); circum- state); No. 8.83.1 (special and CALJIC intent or mental specific mental evidence to prove required of circumstantial stances—sufficiency it believing misled the into jury instructions state). Defendant these argues of any guilty” regardless if he “reasonably appeared could find him guilty (2) effectively guilt, entertain as to may reasonable doubt they unless to find him guilty the jury reversed the burden of required proof We have rejected of his innocence. repeatedly he came forward with evidence our to reconsider no reason and defendant offers persuasive these arguments, Nakahara, v. 714; People Cal.4th at supra, v. 30 decisions. (People p. prior 401, 432]; 287, P.3d 346-347 39 Hughes Cal.Rptr.2d 27 Cal.4th [116 1, 969]; P.2d v. Riel (2000) 22 998 People Cal.Rptr.2d Cal.4th [96 P.2d v. Millwee (1998) 18 Cal.4th People Crittenden, 144.) v. 9 990]; at supra, People p. (defendant’s arrest that CALJIC No. 1.00
Defendant next argues innocent”) to be than guilty to infer he is “more likely not used prosecution misled the establish guilt) and CALJIC No. 2.51 of motive (presence failing burden of proof by because undercut they prosecution’s innocence a trial is not guilt the central issue in criminal simply emphasize But we a reasonable doubt. but whether had been established guilt beyond Nakahara, at supra, v. 30 Cal.4th (People have this as well. argument rejected 714; Frye v. (1998) 18 Cal.4th 957-958 People p. (witness false) willfully that CALJIC No. 2.21.2
Defendant’s contention because it allowed burden lightened proof, impermissibly prosecution’s of truth seeking only to assess witnesses probability prosecution Nakahara, supra, (See People been v. recently rejected. in their has testimony, Hillhouse, 714; at supra, 27 Cal.4th p. Cal.4th at No. 2.22 claim that CALJIC defendant’s recently rejected We also have the evidence to evaluate directed testimony) jurors (weighing conflicting number” of than the “relative at force” rather “convincing its by looking so, the beyond and in doing improperly “replaced” witnesses testifying with a akin to preponderance doubt standard standard reasonable Nakahara, 714-715.) pp. evidence standard. *64 D. Penalty Phase Issues Evidentiary Issues
1.
a. Admissibility Hearsay Statement That Had Killed Other in Guatemala Prosecution witness Guerra de testified Angela Maderos on direct examina- tion that an on she was home evening walking through in Guatemala countryside and attacked her and threatened to rape and kill her. He kicked her to the and her throat with a ground poked machete. Defendant left de Maderos when her husband and son approached cross-examination, and fired a shot. On de Maderos that after the explained attack she went to the and made a but on the advice of her police report, that, sons she did not defendant as her assailant. After identify she made no rebuttal, further of the incident. In over report counsel’s de hearsay objection, attack, Maderos testified that she did not because she feared report part, defendant would kill her as she had heard he was a violent who had person killed other The court instructed the people. of the limited for jury purpose which it could consider this testimony.17
Defendant contends the trial court erred in de Maderos’s testi- admitting that she had heard defendant mony was violent and had killed because people her testimony On improper hearsay inherently untrustworthy. appeal, we an abuse of discretion standard of review to a trial apply any ruling by Alvarez, (People v. court of evidence. admissibility review, 201.) Based on our we conclude the trial court did not its abuse discretion in de Maderos’s admitting testimony.
To be a statement must be “offered to the truth the matter hearsay, prove Code, Here, offer, (Evid. stated.” (a).) subd. did not prosecution § consider, and the was not de Maderos’s about jury permitted testimony nonhearsay defendant for the truth of the matter asserted but for the fearing The trial court instructed the “The that follows: is admonished this question—this given yes, answer that the has that question witness where she said is not proof person anybody. dealing that the defendant is—was a violent or that he had killed We’re is, solely giving explanation here with the state of mind of this witness. That she’s for her upon things conduct based what she had in her mind. Whether those are true or not is not the offering issue. The issue is whether this witness believed them and she’s that as a reason [][] why report purpose she did not further the matter. And that’s the for which the answer is sole witness, [j[| credibility you’re received. the ones to the ones to assess You’re assess this reasons, any, gives things you her if did But are not she she or didn’t do. [f] person anybody. take from her answer that the defendant was a violent or that he had killed H] you things All that’s here whether relevant or not believe that this witness heard such if did, she that it report affected her caused her not to this matter.” *65 was attack. Her did not explanation she why report of explaining
purpose cross-examination during suggested because defense counsel probative an attack. The victim of such with being conduct was inconsistent her that she testimony that de Maderos’s admonished the trial court carefully was admitted killed being was and had people had heard defendant violent its truth. The attack and not for to to her failure solely report explain and had was violent not whether defendant of her was testimony import attack Guatemala, de failed to report whether Maderos killed in but Thus, the was testimony properly he was violent. because she believed (1984) 37 Cal.3d admitted v. nonhearsay (People for a purpose. Armendariz 243].) Cal.Rptr. de was inadmissible testimony Defendant’s that Maderos’s argument “Conflicts and even is untrustworthy misplaced. because her testimony do not the reversal to justifiable justify which is testimony subject suspicion the trial judge for it the exclusive of of a judgment, province of the facts falsity upon a witness and the truth or credibility determine the of at Maury, v. (People supra, which a determination depends.” 403.) p. Feared That Witnesses Admissibility Testimony
b. Because They Against Retribution Testified testified, that she was over defense counsel’s objections, De Maderos when she returned worried that “something might happen [her]” family “might she believed defendant’s Guatemala after because testifying it she had “heard well.” De Maderos further testified testimony] not take [her have we would said that if we came here to being testify, only pleasure come, we returned.” to us when might would be to but that something happen concerned that he was objections Ramirez also testified over counsel’s Edgar that someone to Guatemala and worried returning about his family upon no in case. He had received hurt him because he was this testifying might that he would in hometown in Guatemala direct threat nor heard talk after testifying. be in when he returned home danger their admitting the trial court erred in On defendant contends appeal, testifying against were afraid of they consequences testimony of discretion We find no abuse when returned to Guatemala. they defendant testify their fear of testify regarding de Maderos and Ramirez to permitting or fears testify that a is afraid defendant. “Evidence witness ing against that witness and is credibility is relevant to retaliation testifying 869; at see supra, p. (People Burgener, therefore admissible.” Code, or nonexistence consider the existence (f) subd. [jury Evid. § An bias, interest, credibility].) witness’s determining or other motive explanation basis for the fear witness’s is likewise relevant to the jury’s assessment of his or her and is well within the credibility discretion of the trial court. (Burgener, For such evidence to be admissible, there is no to show threats requirement against the witness were made or the personally witness’s fear of retaliation is linked” “directly to the defendant. 23 Cal.App.4th Gutierrez *66 Here, evidence that de Maderos feared retaliation for testifying against was offered for the of nonhearsay inconsisten- purpose explaining cies in of her portions her testimony, including when equivocal responses asked whether she feared retaliation. Ramirez’s that he feared testimony was testifying also relevant to his even credibility though he had testified received personally (See, or heard of any threat. e.g., v. Avalos 37 Cal.3d Cal.Rptr. fear 121] [witness’s Moreover, was caused only by the nature and gravity of her testimony].) as out, the the record People point suggests witnesses exhibited in hesitancy responding questions. jury was entitled to consider their explanations in their and the evaluating credibility, trial court instructed the accord- ingly. the trial Importantly, court further admonished the that if jurors they made, believed the statements were must not attribute them they to defendant. Accordingly, trial court exercised its properly discretion in their admitting testimony.
c. Admissibility TestimonyThat Ramirez’s of Defendant’s Had Family Him to Not Money Testify Offered testified, In addition to about his fear of testifying Ramirez also testifying, sister, over counsel’s objections, defendant’s identified as only “Mary,” offered to him give to not in money testify this case.18 He declined the offer and stated he would not accept money. now the trial argues court erred in this admitting evidence on the it grounds was hearsay irrelevant We “Just prejudicial. disagree. fact a witness to receive expects in something exchange be considered testimony may in his or evaluating her credibility” (1994) 31 (People Olguin Cal.App.4th 1368-1369 [37 596]), the fact that a witness declined an offer for gain financial for his silence exchange is likewise relevant in his or her evaluating case, In credibility. this evidence that Ramirez was offered to not money admitted for testify properly nonhearsay purpose assessing effect, Therefore, state of mind at trial and the if on his any, credibility. trial court did not err the evidence. admitting Maty Ramirez testified that told him if de gave any money testify Maderos him in this case, give she money would him as well in presence order not to come to trial. Outside the jury, Ramirez gave money testify regarding denied that de Maderos him her attack
defendant. limited to that the evidence was instructed the jury
The trial court properly Moreover, the court admonished credibility. of Ramirez’s their consideration because there attributed to defendant the evidence must not be causing the offer or making involvement in either was no evidence of his offer to be made. Maderos Roberto Testimony Rego
d. Exclusion from His Mother’s Attacker Identity Regarding son, interviews, her Rego denied that she told de Maderos During pretrial her attacker. Roberto), recognize that she did not Roberto de Maderos (Rego inter- Rego defendant’s voice. Roberto’s During She stated she recognized attack, stated, view, “I didn’t his mother he stated that at the time of to introduce this statement to rebut him.” Defense counsel recognize sought sought evidence that defendant attacked de Maderos the prosecution’s under Evidence Code section 402. evidentiary hearing *67 at the time de Maderos was Roberto would have testified that Rego attacked, he heard scream and ran he was in a field when her working nearby Maderos, to mother?” She you, to her. He asked de “What happened “face was covered.” answered that a man wanted to kill her and that his be?,” her, she “I didn’t When Roberto asked “Who could it Rego replied him.” would have testified further that the attacker recognize Rego Roberto attacker, behind, not the and that did not leave a machete that defendant was be a nice The trial court denied defend- considered defendant to person. about testify ant’s motion on the Roberto was not grounds Rego competent the attack he did witness it and his belief that someone else because not de attacked Maderos was irrelevant. defendant renewed his motion for the admission
During penalty phase, he told his his statement that Roberto’s Rego testimony, specifically motion, mother else attacked her. The court denied his explaining someone did witness inadmissible because he not that Roberto’s was Rego testimony attack, issue, a collateral and his testimony was offered on testimony addition, ruled the was testimony was based on rumors. In the court Code section 352 on the it would grounds inadmissible under Evidence time. mislead the and necessitate undue consumption that the trial court erred in excluding On defendant contends appeal, that she did that de Maderos’s statement on the testimony ground proffered was as a inconsistent statement. not her attacker admissible recognize prior Code, (Evid. 1235).19 The defendant forfeited this issue argue People § because he failed to on this at trial. We To object ground disagree. preserve evidence, error in must make an offer alleged excluding appeal party the trial court of the and relevance of proof informing “purpose, Code, 354, (Evid. (a); excluded evidence.” subd. see Valdez § case, 296].) 32 Cal.4th In this defense counsel’s written motion made clear he admission of Roberto’s sought Rego to rebut de defend- Maderos’s she was assaulted testimony testimony by ant in We find this offer the issue. Guatemala. of proof adequate preserve her
Evidence that de Maderos told her son that she did not recognize attacker would have been admissible as a inconsistent statement. prior states, Evidence Code section 1235 “Evidence of a state pertinent part: ment not made rule if the by by made witness is inadmissible hearsay statement is inconsistent with his at the . . . .” Prior testimony hearing [or her] inconsistent statements are admissible under this their provision prove v. Hawthorne substance as well as to the declarant. impeach case, fn. 4 In this de Maderos’s at trial her attacker was testimony identifying with the after the attack she said shortly inconsistent proffered testimony she did not her attacker. recognize
Nonetheless, evidence De Maderos error this was harmless. excluding counsel when she revealed on cross-examination that by prior impeached examination, her direct had mentioned that she giving she testimony interviews, saw defendant’s face the attack. she stated during During previous that defendant’s face was covered a bandana and that she him recognized *68 addition, de or ambiguous his voice. In Maderos only by gave equivocal answers when asked failed to the attack and whether she why she report circumstances, feared retaliation for defendant. Under these testifying against there no reasonable that further of de Maderos is possibility impeachment her identification of defendant as her attacker would have affected regarding 1229, 1265, v. Jones (People (2003) the verdict. fn. 11 29 [131 468, v. Ochoa 762]; People 64 P.3d see also 19 Cal.4th phase respect penalty 442] [with testimony Rego anticipated contends Roberto’s that there was no Defendant also testimony that impeach machete left at the scene of the attack was admissible to de Maderos’s another Francisco defendant left a machete sheath at the scene or to establish the existence of family. disagree fact that enemy who was an of the de We on both counts. The Guerra Maderos testimony impeach de Maderos’s Rego Roberto did not see a machete at the scene does not Further, with at the defendant’s that defendant left his machete sheath the initials F.G. scene. Rego testimony person have that there was another assertion that Roberto’s “could established ” Finally, Rego speculative evidentiary support. and lacks named ‘Francisco Guerra’ enemy” irrelevant and opinion person” that defendant was a “nice and not “our Roberto’s regarding report de Maderos her failure to the attack. impeach inadmissible to the
error, is equivalent standard our state law reasonable possibility v. California, of Chapman a doubt standard harmless reasonable beyond error].)20 federal constitutional at which governs 386 U.S. supra, p. in Mitigation Photograph e. Exclusion of Offered as mitigat- defendant offered three photographs the During phase, penalty and his three in Guatemala a of defendant’s home evidence: ing photograph trial; children; time of his three children of photograph with at the time lived they of his horse and three children photograph horse and in Guatemala. Counsel argued photograph and his family they was relevant to show defendant defendant’s children relevant to show the He added the also was lived in Guatemala. photograph in the village. medical attention to gave people horse defendant rode when their home of defendant’s children at The trial court admitted photograph defendant’s and the of the children at the time of in Guatemala photograph horse and children as trial but excluded the of defendant’s photograph cumulative. erred in excluding
Defendant contends court photograph his horse. The trial court determines evidence relevancy mitigating value is substantially retains discretion to exclude evidence whose probative will create substantial outweighed danger its admission probability Cain, jury. confusing misleading issues or v. Fauber 64; Cal.4th at 856 Cal.Rptr.2d Here, defend the trial court admitted a depicting photograph heard testimony ant’s home in Guatemala and his three children. The jury children together from defendant’s wife that he and she raised all three the local village that defendant would ride to deliver medications to his horse did not err in finding we conclude trial court people. Accordingly, it under excluding of defendant with his horse irrelevant or photograph Evidence Code 352. section Error Evidence Regarding Asserted Instructional
2. Criminal Activity Unadjudicated in instruct- the trial court committed numerous errors contends *69 introduced the evidence of criminal ing jury unadjudicated activity regarding 190.3, (b). under section factor 20 excluding by any error in prejudiced Because we have concluded that defendant was not testimony was
Rego testimony, we need not address his second contention that the Roberto’s Code, (Evid. hearsay spontaneous exception the declaration to the rule. admissible under addition, ground by failing to assert this at trial. In defendant forfeited this issue §
a. on Unadjudicated Activity Instructions Criminal The notice of evidence the filed trial before aggravating prosecution included the of de in Guatemala. a Maderos In outside attempted rape hearing the trial court indicated to counsel that it did not presence jury, intend to on instruct elements of this offense because the issue jury for the to decide was “whether a jury they’re convinced reasonable beyond doubt that the defendant either did or use force or in violence an attempted counsel, however, manner another that illegal Defense asked upon person.” receive the instruction on The trial informed jury court attempted rape. that if it gave counsel instruction on it also would instruct attempted rape, a jury on assault with and murder. It reasoned deadly weapon attempted that if the did not find a reasonable doubt the conduct jury beyond alleged anwas it could nonetheless consider the conduct under section attempted rape, 190.3, (b), factor as either an assault with a or an deadly weapon attempted murder. Over counsel’s only instruction objection attempted rape should be the trial court instructed the on assault given, jury attempted rape, with a murder. The court then denied counsel’s deadly weapon, attempted for instructions a defining battery request brandishing weapon.
On defendant contends the trial court erred in instructing appeal, with a assault murder. He that he deadly weapon attempted argues was entitled to on the offense rely alleged by his particular prosecutor notice evidence in aggravation (e.g., presenting attempted rape) defense without to defend additional related offenses having against during trial. Not so. 190.3, Evidence of violent conduct is admitted under section prior “ (b), ‘to
factor enable to make an individualized assessment of the character and of the defendant to determine the nature of the history ” to be v. Davis punishment imposed.’ (People 119].) P.2d The value of this evidence lies in probative {Ibid.) defendant’s conduct rise to the offense. gave prosecution’s
notice that evidence will be violent crime or presented regarding specific crimes alert that evidence should counsel of all crimes committed during offered, and, therefore, same course conduct bemay substantially complies (1992) 2 with the notice of section v. Visciotti requirement 190.3. Here, defendant does that he was unaware of the complain multiple Maderos, offenses out of the attack on de nor could he. arising potentially Defendant’s interviewed de Maderos more than before investigator year at her trial. She related that defendant his machete throat and pointed Therefore, threatened to and kill her. because the crimes of assault with a rape *70 of the committed as part murder were also and deadly weapon attempted substantially the prosecution course of as the rape, same conduct attempted Visciotti, v. (People 190.3. with the under section notice complied requirement 70.) 2 Cal.4th at supra, p.
Defendant, moreover, Generally, has not shown prejudice. trial a notice affected counsel’s that in the any showing delay absence for a violation notice strategy, remedy requirement appropriate to defendant grant prepare would be a continuance needed permit 865, Pinholster v. (1992) a 1 Cal.4th 956-958 response. (People [4 did he a continuance nor 824 P.2d Defendant did not request (Id. 958.) a at he was unable to defense. p. otherwise indicate prepare claim fails. defendant’s Accordingly, Instructions on Lesser Included
b. Refusal of
Offenses
the trial court
refused his
contends
improperly
request
242)
417).
on
(§
(§
instructions
and
a
battery
brandishing weapon
190.3,
Instructions on the elements
the offenses
under section
presented
(People
(b)
factor
are
in the
a
by
absence of
counsel.
required
request
347]; see
Anderson
25 Cal.4th
also id. at
that
on
violent
fn. 14
instruction
elements of
p.
prior
[rule
Apprendi
Jersey
v. New
is not
is
crime
sua
unaffected
sponte
by
required
court,
L.Ed.2d
trial
2348]].)
Once defense that instructed rape, counsel asked be on jury attempted court on a deadly the trial counsel it would also instruct assault with informed and defend- murder. Based on de Maderos’s testimony weapon attempted her, ant her threatened to there was throat with machete and kill poked a deadly substantial evidence to assault with instructing jury support addition, if and In the court concern that murder. weapon expressed attempted become only given, might instruction were attempted rape be under section confused whether evidence could considered question 190.3, factor de Maderos as (b) if it believed defendant attacked physically testified doubt as to she but still retained reasonable whether that “if believes that intended to her. The court further reasoned rape doubt the activities were a reasonable committed alleged beyond her, defendant, kill he threatened kill her attempted violence, matter evidence of and it doesn’t involving force prior act[s] whether it’s for the of rape.” purpose
1148 hand,
On the other the trial court found instructions on specifically simple assault or a were brandishing not warranted based on the weapon evidence: Maderos], “if believe you it was either an with a [de deadly weapon], [assault assault, it wasn’t a certainly or a simple of a That brandishing would weapon. did, involve If it didn’t conjecture. she said it happen way which amounts to at the very least an with a then it deadly was weapon], nothing.” [assault
We with the trial agree court’s assessment of the facts and its conclusion that the instructions were not warranted under those facts. we Accordingly, need not decide whether a trial court is ever to instruct on obligated lesser offenses trial requested by counsel at a penalty phase.
Moreover, error in any failing to give instructions was requested out, harmless. As the People correctly the issue before the point was jury whether defendant used force or violence or the or threat to express implied 190.3, use force or (§ (b).) violence. factor Even if the lesser requested included offense instructions were and found true given a jury beyond doubt, reasonable the result would be the necessarily same: defendant used or threatened to use force or violence. As the trial court “If expressed, jury] [the doubt, believe a reasonable beyond did somebody [s] [de Maderos] these I don’t things, think there’s any but what it question involves the threat [szc] of or to use force or attempt violence on another Under these person.” circumstances, there is no reasonable error possibility failing instruct the assault or simple affected brandishing weapon verdict. v. Avena 13 Cal.4th P.2d 1000].)
c. Assertedly Improper Attack on de Characterization
Maderos contends, essence, that when the trial court instructed the jury regarding evidence that defendant had attacked de Maderos 10 to 12 years earlier, it directed a repeatedly improperly verdict that defendant’s conduct constituted “an assault attempted rape, with and/or deadly weapon, murder.” He attempted asserts erroneous instructions increased the aggra- effect vating of this evidence.
We conclude the trial court instructed the that it properly jurors for them to determine whether the evidence of the attack on de Maderos amounted to an assault with a attempted rape, deadly weapon, attempted erroneous, murder. In assessing whether given instructions were “ ‘ court reviewing “must consider the instructions aas whole . . . [and] assume that the are jurors intelligent persons capable understanding ” all correlating jury instructions which are given.” (People [Citation.]’ 433]; see Cal.
Martin 78 Cal.App.4th Williams, 13; Const., VI, art. see also § “ ‘ of the overall error evaluated “in context of instructional are [claims ’ ” to the jury].) charge” *72 instructions, Here, the court instructed the in to the challenged addition whether determining under Nos. and 8.87 that when CALJIC 2.90 jurors an attempted an on de Maderos that constituted defendant committed attack murder, were to or deadly they assault with a weapon, attempted rape, beyond until the otherwise defendant was innocent evidence proved presume must be they The were instructed that jurors a reasonable doubt. specifically that committed such criminal a reasonable doubt defendant beyond convinced factor. the evidence as an In aggravating before could consider activity they addition, doubt that any the told the that if there was reasonable jurors court criminal then the activity, the defendant committed the prosecution proved must consider the evidence for jurors any purpose. to
Various instructions informed the that defendant was receive jurors other the benefit of CALJIC No. 2.01 of circumstan- (sufficiency reasonable doubt: evidence) delicti) tial CALJIC No. 2.72 and CALJIC (proof corpus Therefore, (burden the No. 2.91 overall identity). considering proving the that to we conclude there was reasonable likelihood charge no jury, or under the belief jurors misconstrued instructions misapplied trial court constituted an directing alleged was them to find conduct v. (People with murder. rape, assault attempted deadly weapon, attempted 629, 564, Clair (1992) 705].) 2 Cal.4th 828 P.2d 663 Cal.Rptr.2d [7 d. Failure to Give Instructions on Intoxication Defense court on counsel trial instruct intoxication requested jury of its instructions other crimes The trial court stated it evidence. part 4.21.1 would instruct on intoxication to CALJIC Nos. voluntary pursuant 4.22, as it had it do so. contends guilt but failed to Defendant phase, the court erred. court’s
Although give defendant failed to the trial failure object instructions, intoxication we find this issue because it involves a cognizable Hill, v. rights. (People error claim instructional his substantial affecting Prieto, 8; People supra, 17 at 30 Cal.4th at supra, Cal.4th fn. v. p. 268; merits, 1259.) there was insufficient evidence that As § p. As the People defendant to warrant the instructions. requested was intoxicated out, did not of alcohol. de Maderos testified that defendant smell point thought breath but only testified he did not smell defendant’s Ramirez over. drunk because he was bent walking to Jury Miscellaneous Instructions Challenges 3. various challenges asserts other to the instructions that we jury
have
no
rejected. Defendant
raises
basis for reconsideration of
previously
those
The trial court
rulings.
argumentative
refuse as
may properly
instruction that one
factor
be sufficient
to return
mitigating
jury
for the
Prieto,
v.
(People
verdict of life
without
imprisonment
possibility
parole.
supra, 30 Cal.4th
Hines
263-264;
at
v.
15 Cal.4th
pp.
require
1068-1069
is no
“[T]here
ment,
law,
under
state
either
or federal
that the court
instruct the
specifically
v.
guilt.” (People Sanchez
to consider
residual
doubt of defendant’s
People accord,
1129];
Lawley, supra,
Cal.4th at
166.)
The trial court is not
p.
required
instruct
Clark,
it could consider
and mercy.
sympathy
trial court
has no
factors
duty
identify
might
which
*73
v. Jones
be
might mitigating. (People
and which
be
aggravating
(2003)
factors
1084,
370,
30
359].)
1123
70
The
P.3d
trial court
[135
can
as argumentative
refuse
an instruction that identifies
properly
particular
Musselwhite,
(People v.
supra,
evidence
mitigating.
Cal.4th at
v. Benson
1269-1270;
pp.
(1990)
52 Cal.3d
804-806 [276
330].)
Cal.Rptr.
Defendant claims that we should reconsider
Ring
some of
in
rulings
Arizona
these
536 U.S.
light
Apprendi
Jersey,
New
2428],
L.Ed.2d
122 S.Ct.
and
cases, however,
4. to Not in Matters Evidence a. References During argument in the asserted closing phase, that penalty prosecutor when defendant asked Susan Michel whether she had come from Powell’s murder, house before defendant have “become somewhat shortly excited at the he later terror that was to inflict on.” He prospect going visualize, then invited the to in and themselves defendant’s shoes jurors put evidence, based on the what he killed saw as he Powell: “Now first thing attack, that he did when he commenced the after he that knife out grabbed block, the butcher he was took the knife and he these little caused poke wounds that in the— you saw to going I am to that. That’s not Dr. Golden’s object testimony.
“[Counsel]: I think that’s a misstatement.
“The Court: Overruled. her wounds in He these and caused these poke took prosecutor]:
“[The about, evidence, breasts, he think what based you upon and I want did her. We face when he this to would have seen reflected in [Powell’s] real circumstantial good have of that but we have don’t direct evidence how and how much you pain Because I want to recall squeamish evidence. and office take little needle they we feel when we doctor’s and go blood, then the horror our order draw some and imagine prick fingers took a as he and the that he saw reflected in face terror [Powell] her in breasts with her and butcher knife and her and poked poked poked that butcher knife. Powell, .
“But in this was on . . instead the effects that seeing having It to further excite doing, what he was he continued. served only stopping ahead in her which entice him. And he decided to breasts go slitting open, breast, left essentially also saw in the you autopsy right photographs, be, know term would taking right that knife kind—I don’t what incise fondling or the contours of the breast while these outlining making wounds.” had consider argued then that time to prosecutor although actions, he “And doing: he did because what was enjoyed stop . . . no way going
then there was she undoubtedly realizing [Powell] door, the face right turned to face him and he looked into get through who, [counsel], but nothing of this woman words of had shown him *74 kindness. had the and woman gentle He to consider how kind this opportunity was, God, and instead of he was instead of ‘my what stopping doing, saying, can’t I—I do this to another human I he with being, must continued stop,’ fusillade as she her arms tried hide behind feebly of blows lifted and to up them because she wasn’t even of back. Blows hitting apparently capable ferocious, which cut to of her were so that he almost down the bones right arms.
“And and must have then he saw on the floor what finally, lying [Powell] who, according been most but nevertheless someone unimaginable pain, coroner, to the could survived to that testimony, point, doctor’s have up have have been but she could maybe disfigured she would permanently medic, And he survived. And as a the defendant would have known that. done, himself, have I I must I must stop could have to ‘what thought stop, instead, woman, only this But bleeding, I must save I must call for help.’ in that he was of was where to himself thing thinking position of capable to take knife room in order to best to be able this get angle very certain, it he was absolutely in her throat over and over until again plunge that the face of again convinced . . . Powell would never walk percent earth. this
“Now, ... kind who can do what the defendant did to her person that with knife is a kind very of individual. special “And even if we don’t have the exact correct that sequence everything that I you know said And that the happened, everything just happened. had time each one of those between during events in each one them to have seen in the most ways that we could ever graphic imagine he another what was human and to have doing being stopped.
“Now, what do call that when someone does to another what he you person and, essence, did to Powell he Kathy when takes that knife fondles her and words, coaxes her and her with it. of those taunts None are accurate to really describe what it is because I don’t know if we in the have words English language were calculated to describe what is But of. capable [defendant] closest, course, the word that comes is torture. That’s what he was doing woman this when he with her with that playing knife.
“Torture. did he did
“Why do it? He it it. He did it enjoyed because because when terror, he saw the and the torment and the it served as a pain only catalyst him level of did it increase his violence. He . . . because this is a person fulfillment, gains who emotional satisfaction from Didn’t psychological pain. motive, have financial didn’t other any have motive.
“And has to be this most circumstance in certainly probably powerful what because kind of a murder is the kind aggravation worse than of an reason, individual who kills not because need or for other they money some but because like to. This who had absolutely no motive to do they person what he did own belief that the of human life except ideology sanctity is somehow subservient his own twisted desire for pleasure.” further should not prosecutor suggested jurors consider defense evidence that defendant was a medic Guatemala it mitigating because *75 that showed defendant took in a skin with pleasure a penetrating person’s “And needle: is it that we are a maybe just all little bit uncomfortable or or was it the idea that . this is a for . . man who some bizarre squeamish reason gets sexual satisfaction out of the skin even in little ways. penetrating that felt a And little and uncomfortable when maybe you just you squeamish learned he also somehow that out of his to run the forests goes way through of Guatemala to don’t were give injections. I know what people you thinking. itBut be for in the room.” might something you explore jury the counsel that there
Outside trial was no presence jury, objected event, in arguments evidence the and that the prosecutor’s support from satisfaction fulfillment and psychological defendant’s asserted emotional The trial under section 190.3. not circumstances aggravating were pain proper arguments the finding properly objection, prosecutor’s court denied counsel’s crime, (a) of section 190.3. Without the factor related to the circumstances of that it some thought the court then added argument, any particular identifying of a foundation and “built on were “fallacious” arguments of the prosecutor’s sand.” in facts not argued the improperly
Defendant now contends prosecutor for defendant killed when he asserted that during pleasure, evidence argument terror, and emotional fulfill- “gain[ed] excited the of became about prospects ment, He adds the commit- satisfaction from pain.” prosecutor psychological to be affinity killing for “has ted misconduct defendant’s by arguing further in aggravation.” the most circumstance probably powerful a of we the same standard to evaluate claim prosecutorial On appeal, apply v. the (People at that we at guilt misconduct the phase phase. penalty apply Valdez, 32 Cal.4th 132.) at But misconduct has been estab- supra, when p. “ lished, a decide ‘whether there is we must determining prejudice, the reasonable that construed possibility jury applied prosecutor’s ” (Id. 132-133.) conducting in an “In comments manner.’ objectionable pp. that most damaging this we ‘do not infer’ drew the lightly inquiry, rather than the statements.” meaning prosecutor’s least from damaging Frye, 970.) 18 Cal.4th at (People supra, p. on and the
Each is entitled to comment the evidence party fairly Hill, (People reasonable inferences that can be drawn from the evidence. Here, we comments prosecutor’s 17 Cal.4th at conclude or were Contrary either were based on evidence properly nonprejudicial. assertions, actually to defendant’s did not refer to defendant prosecutor v. Edelbacher 47 Cal.3d (But “sexual sadist.” see is when epithets proper Cal.Rptr. opprobrious 1] [use evidence].) commented prosecutor warranted reasonably and did assert defendant conduct at the time of the murder defendant’s addition, have In trial court may suffered from mental disorder. on a foundation of found were “fallacious” “built arguments some were relevant finding they sand” of no its light is consequence 190.3, It crime. (a) factor the circumstances under of section draws in closing the inferences the prosecutor to determine whether v. Dennis are argument reasonable. argued that the disagree prosecutor essentially
We further *76 the and urged from a disorder of sexual sadism improperly suffered mental under consider defendant’s disorder as an factor section jury aggravating (a) 190.3. Factor of section allows 190.3 the and defense counsel prosecutor to the evidence all relevant present penalty jury aggravating and phase to, the and nature circum- matters but not mitigating “including, limited character, stances the . . . and the present offense, background, defendant’s mental condition history, (Italics added.) condition.” Evidence physical that reflects on the directly defendant’s state of mind with contemporaneous 190.3, (a), murder relevant under section factor as capital on bearing 1133, (People v. Ramos the circumstances the crime. Cal.4th 950]; v. Smith 1163-1164 see People also [64 (2005) 35 Cal.4th 354-355 107 P.3d 229] [the can evidence defendant’s mental illness or bad prosecution present (a) factor]; character under factor if it even also bears upon mitigating Avena, fact that evidence of p. 439 [“The defendant’s was also indicative his character or mental [capital crime] inadmissible”].) condition does not render the evidence case, In this argument related conduct at the prosecutor’s defendant’s time murdered Powell and could not have reasonably been construed by jury as medical that defendant diagnosis suffered from “sexual sadism.” Further, because trial court found that defend- prosecutor’s arguments fulfillment, ant “emotional satisfaction from experienced psychological pain” causing Powell to suffer to be to the enjoyed relevant circumstances of murder, Powell’s such matters could be considered properly jury 190.3, (a). evidence in under or not aggravation section factor Whether these circumstances were the most circumstances was a powerful aggravating determine. matter for the
Defendant next claims the turned prosecutor improperly mitigating evidence about work injections medical in Guatemala into giving people something “sinister” “sexual satisfac- by arguing experienced tion . . . the skin even in little But even if the penetrating ways.” prosecutor’s misconduct, constituted argument any misconduct was harmless under the standard because the it as an applicable penalty phase likely recognized it accordingly. Poggi advocate’s discounted hyperbole 45 Cal.3d Cal.Rptr. Evidence
b. Mischaracterization of Defendant contends the characterized prosecutor improperly sequence of Powell’s murder and without argued evidence Powell was psychologi- vulnerable, trust, cally defendant breached her and that defendant lurked in the for her. He first waiting darkness challenges prosecutor’s presenta- tion of his of events to Powell’s murder. leading theory sequence up *77 ante, overruled defendant’s 1150-1151.) objection The trial court (See at pp. On defendant’s appeal, the misstated the coroner’s testimony. that prosecutor this was no to theory. contends there evidence support crime discuss circumstances of defendant’s A the may prosecutor properly v. Navarette (2003) 30 death (People when in favor of the arguing penalty. A also Cal.4th prosecutor theory the on of the evidence and relate People’s the state opinion express Frye, supra, manner. story-like the case in a comprehensible, 975-976.) pp. wounds, Here, stabbing the coroner testified that Powell suffered poke neck, and on her arms and hands. Several the back and defensive wounds fatal. these wounds could have been informed the that the inferences
During his the argument, prosecutor drew reflected his and not what theory necessarily he from evidence He was direct evidence of what actually that there no happened. explained Powell, thus, time and would at the defendant murdered transpired determine what Powell have on the circumstantial evidence to rely Further, events, after experienced. sequence prosecutor presenting we correct of told if don’t have exact jury, sequence “[E]ven that I said everything everything just hap- that know that happened, you the evidence admitted at theory The based his pened.” prosecutor properly Therefore, trial or it. we conclude the reasonable inferences drawn from argument was prosecutor’s improper.
Defendant further contends evidence does not support prosecutor’s Powell and argument that was vulnerable that psychologically dark, breached her trust and lurked in to kill her. waiting During vulnerable and argument, psychologically Powell prosecutor portrayed that all are at heart.” clung good someone who “a childlike belief people He stated met her have been aware of her vulnerabil- anyone that who would The whether defendant Powell either ity. prosecutor gave then questioned harmless, and indication that he seemed although outwardly some quiet me, as, trust I “a inside” such can’t warning “Kathy, you monster harmless, out there’s a know I seem but watch because might quiet as someone monster described Powell Continuing, prosecutor inside.” “cold, eyes” have able to into cold who would never been look defendant’s was “too He that Powell suggested and see the behind them.” “emptiness her saw this weakness in decent .. . herself’ that defendant protect further accused her as a “convenient target.” prosecutor perceived in him” and “abus[ing] Kathy defendant of the trust Powell placed home, Powell’s for her.” “lurking waiting in the darkness of The trial court overruled was no objections defendant’s there evidence *78 of argument this line and that Powell’s and defend- support vulnerability ant’s breach of trust were not section her factors under It aggravating 190.3. ruled the was argument based evidence of the circumstances of properly Powell’s murder.
We the agree that was based on the prosecutor’s argument properly evidence or inferences from it. reasonable drawn A prosecutor may identify those traits of the that victim victim made the vulnerable to crime when such “ crimes, characteristics to the are relevant and has ‘to shield charged duty no the jury from all favorable about the or to inferences victim’s life describe ” relevant artificially events in drab or clinical terms.’ v. Frye, (People supra, 975.) 18 Cal.4th at p.
Further, the trial court instructed that it the was to “determine what the jury facts are from the evidence the trial.” during (CALJIC received entire 8.84.1.) No. Whether to draw the same inferences as the urged by those was, thus, the of prosecutor regarding circumstances Powell’s murder for the to decide. no question There was misconduct. jury
c. Argument Factors Regarding Aggravating trust, The argued Powell’s breach of prosecutor vulnerability, defendant’s and defendant’s were from factors pleasure stabbing separate aggravating 190.3, under (a). section factor used He also the same circum- aggravating stances language when discussed other crimes evidence admissible under 190.3, (b). result, section As a factor defendant contends the use prosecutor’s of the term confused the “aggravating circumstance” about jurors weighing (a), them factor process encouraged “to the circumstances of the apply crime, three in different times three different the ways.” Ultimately, prosecu- tor’s the had effect of the this argument “skewing accorded factor and weight created the risk of an or unreliable death verdict.” arbitrary
The assert that failed to to the People initially object prosecu- tor’s on this basis at trial. argument Defendant counters that such basis was inherent in the above circumstances of crime described objection the the by were not section circumstances under 190.3. prosecutor aggravating We think But the this was sufficient to the issue. claim objection preserve fails on the merits. Defendant fails to cite in the anything suggests record the jury was confused or the it was prosecutor’s argument instructions given. how could consider prosecutor merely suggested jurors they each of under the evidence factors. piece specified statutory addition,
In instructed under 8.88 that the court CALJIC No. “[t]he mean a circumstances does not mere weighing aggravating mitigating scale, or imaginary on each side of an of factors counting mechanical them”; determining and that in of weights arbitrary assignment totality aggravating it should “consider justified, which penalty of the circumstances.” mitigating the totality circumstances with sum, double-count urge because the did prosecutor In aggravating of the weighing crime the circumstances triple-count circumstance, is “remote.” of prejudice mitigating possibility Ochoa, remarks and In light 26 Cal.4th at prosecutor’s and mitigating weighing aggravating the standard instructions about case, we no likelihood jurors find reasonable *79 circumstances this given or otherwise suggests in the were misled or confused manner v. Ayala manner. the an illegally improper instructions in applied 289-290 [99 5. Retention Juror R. retained Juror during trial court improperly
Defendant contends the a on to reach time conflicts that the pressure jury deliberations despite placed verdict.
a. Factual Background 1, 1993, after jury minutes On Wednesday, September approximately commenced, Juror R. deliberations the returned to the courtroom. jury the court that to start a two-week vacation on informed trial he intended a The the that travel commitments were not trial court informed Friday. juror R. cause from The trial court then told Juror jury to excuse him legal duty. that he could be excused if he were to financial experience hardship. R. to his delibera- Juror stated he would not his vacation affect permit plans The to resume its deliberations. The tions. trial court admonished the jury until declined to remove Juror R. The deliberated jury court counsel’s request 4:00 p.m. the testimony jury’s
On to the readback certain Thursday, prior Juror travel court further into R.’s inquiry plans. trial made request, If his on begin Saturday. R. stated he made to vacation arrangements Juror he intended to claim did not reach a verdict before Saturday, the jury R. vacation. Juror assured based costs his prepaid financial on hardship deliberations. No juror court that vacation would not affect his his plans R.’s be affected Juror by that his or deliberations would indicated her 4:15 vacation The deliberated until plans. jury p.m. conferred discuss at 3:00 the court counsel Friday,
On p.m., R., Juror the court excuse R.’s status. Defense counsel asked Juror substitute alternate juror commence deliberations anew place, rather on than The immediately, noted the time and Tuesday. prosecutor argued that would be nothing gained by commence jury permitting deliberations anew for one hour than rather Juror R. continue allowing with the until the deliberating jury end of and substitute an alternate day time, juror at that if needed. Trial counsel that there was “a complained subconscious coercion” R. to by permitting Juror remain the jury.
The trial court stated it that saw no and that risk coercion it preferred original render the verdict. It “reluctant jurors penalty to disturb the those composition original jury instances where I find a risk except to a fair and outcome or a on a impartial court hardship juror.” brought jurors into courtroom and that informed them Juror R.’s status remained the same. The court stated if the could not reach a verdict jury end of the it R. day, would excuse Juror and an alternate would juror be substituted in his The court admonished the place. Juror R.’s situation should not affect their it deliberations. No indicated that would. juror later, one hour Approximately returned its death verdict.
b. Analysis *80 time, Section 1089 relevant that at provides part any “If whether before the or after final submission of the case to the ... a jury, juror requests therefor, a discharge good cause appears court order the juror be alternate, and draw the name of discharged who shall then a take place . in the box ...” A jury trial court’s ruling juror whether to a for discharge cause good under section 1089 is for reviewed abuse of discretion. v. (People Hart 20 683]; Cal.4th v. Beeler inability to of a
juror’s perform juror functions must in the record appear Lucas, as a “demonstrable and will not reality” be v. presumed. (People supra, 489.) 12 Cal.4th at The trial p. finding “good court’s whether cause” exists will be on (Beeler, if substantial it. upheld appeal evidence supports supra, 975.) Cal.4th at p.
Here, record, based our review of the we conclude the trial court retained Juror during R. Juror R. properly phase deliberations. penalty stated he would vote for the unequivocally he was penalty thought appropri ate without regard to his vacation Our review of the record finds plans. court, unable nothing suggest juror. was to function as a The trial moreover, was in the best to observe Juror R.’s demeanor. position (People Beeler, 9 Cal.4th at that supra, The record also does not indicate p. other was affected Juror vacation or juror R.’s that the was plans jury coerced trial into its verdict. The court asked the twice rendering jurors both and on would affect their deliberations R.’s plans
whether Juror vacation also clear It made any juror. from received no affirmative response occasions verdict, would R., a it if it did not reach Juror to the jury, including Thus, knew jury on his vacation. R. to him to go remove Juror permit reached a verdict. or it his vacation whether Juror R. would have to accom- would its deliberations that the hasten Defendant’s assertion no the record. R.’s finds support modate Juror vacation plans insufficiently court contention that trial we defendant’s reject Finally, any, R.’s if plans, the effect of Juror vacation to ascertain questioned about what trial court retains discretion procedures on its deliberations. The determin detailed when hearing a conducting inquiry, to employ, including Beeler, 9 juror. whether ing discharge court in the trial 989.) We no abuse of discretion manner discern conducted its inquiry jury. New Trial
6. Denial Motion filed sentencing, the close but before After penalty phase, trial, the evidence for a other arguing among things, motion new The trial court circumstance of attempted rape. insufficient support special denied motion. trial motion for new the trial court erred in argues denying evidence, as review of the it failed to conduct an independent
because instead, substantial evidence the deferential erroneously applied required, to the in the most favorable light standard and reviewed evidence We judgment. disagree. *81 the has rendered or a made finding against
When a verdict been defendant, new statutory grounds he move for a trial various (§ 1181.) A trial the is to the law or evidence. contrary verdict including trial if the defendant demonstrates court a motion for new may grant only Clair, 667.) at With to supra, v. regard (People reversible error. Cal.4th p. evidence, a motion reviewing the we have stated: “In claims of of sufficiency trial, the a trial court must evidence weigh independently. for new the is, however, in of the a favor correctness It guided by presumption [Citation.] The court it. trial the verdict and supporting of proceedings [Citation.] the . . . should consider the verdict ... but instead ‘should disregard [not] not, whether or the and then decide be accorded to evidence weight proper the verdict.’ its is sufficient credible evidence support in there opinion, Davis, a 523-524.) at On appeal, supra, pp. v. [Citation.]” of is abuse a for new trial reviewed for trial on motion court’s ruling Marlow, 128.) Its and (People Coffman p. discretion. “ will not be disturbed on ruling ‘unless a manifest and unmistakable appeal Davis, abuse of discretion (People clearly appears.’ supra, [Citation.]” Cal.4th at
We conclude the court trial did not abuse discretion its in denying defendant’s motion. The record establishes in the motion for considering trial, a new trial the court the and independently weighed evidence deter- mined but witness did not that of credibility, substitute its for the judgment court discussed of the jury. sufficiency evidence that defendant “If one Powell: there is I can with attempted rape thing that dead say it is that certainty, the evidence in this case clearly beyond shows crime”; reasonable doubt that the defendant of the “I perpetrator stand that I made at time by my analysis of the 1118.1 As I look motion. evidence, at all of this I do not see how can I come to conclusion that the trier of fact to come to the proceeded conclusion that defendant commit- ted this act while the victim as attempting rape being flight of fancy, kind”; of “But of product prejudice any of in view the statement about view in of ‘panocha,’ very illustration sexual intercourse graphic while gyrations ‘Kathy-me, I state repeating me-Kathy’], again [defendant’s that the reasonable conclusion that the only defendant wanted to have victim”; sexual intercourse with the “I’ve of turned all these circumstances and in over over mind and about of my lots far out and I speculated things cannot see reasonable just all of evidence here and interpretation be reasonable inferences to drawn but that the defendant desired sexual intercourse with this as he woman could it but if easily get he couldn’t get force”; it it easily get would “A found Braziel Odell to be credible. I find Odell Braziel to be credible. But Certainly every as to detail. as I say, the broad brush as to the strokes defendant’s sexual interest in this victim and the defendant’s indications of his prior attraction to her what strong Yes, he was I find Odell to be seeking. eminently Braziel credible.” Denial 7. Automatic Application for Modification of Judgment
a. Preservation Issue Review Standard Defendant contends the trial court erred automatic denying applica tion modification of the because it he had judgment speculated crime, refused to consider planned mitiga factors sympathetic *82 tion. He has forfeited the first issue because he failed to make a contempora on at neous this trial. The objection ground rule contemporaneous objection 22, at defendant’s modification held November hearing, on 1993. applied Riel, v. 22 at (People supra, objection Cal.4th 1220 rule p. requiring [the to cases in which the held modification was after this court’s applies hearing
1161 475, 3 Cal.4th 1013 (1992) Hill [13 decision in v. would that an 984], final].) objection Defendant contends became P.2d 839 motion, heard new trial had in his argued he have been futile because evidence he there was no that hearing, the modification before immediately not clearly because defendant did We disagree Powell’s murder. had planned Moreover, aof denial in the new trial motion. even planning absence argue hearing at the this modification objection trial motion does mean new however, do, argument that defendant’s We believe been futile. would have sufficient factors was use of hearing sympathetic the modification regarding that to claim. preserve In on an automatic ruling applica entire contention lacks merit.
The 190.4, (e), the the under section subdivision for modification of verdict tion consider, account, evidence, and be take into trial “shall review the judge . a circumstances . . and shall make the guided by aggravating mitigating that the aggravat and verdicts jury’s findings determination as whether the are to law contrary the circumstances outweigh circumstances ing mitigating trial be based ruling only court’s must or the evidence presented.” 22 648 v. (People evidence at trial. Sakarias presented is not to make an 152].) trial function judge’s “[T]he determination, but rather independently and de novo penalty independent and then to circumstances aggravating the evidence of reweigh mitigating whether, weight judgment, determine judge’s independent v. (People Lang evidence verdict. supports [Citations.]” must The trial judge Cal.3d Cal.Rptr. appellate “a “to assure effective ruling thoughtful provide adequate ’ ” Arias, 191.) 13 Cal.4th at (People supra, p. review.” v. we ruling “On on a verdict-modification subject application appeal, course, Clair, 689.) “Of review.” independent supra, p. we we the trial court’s determina- scrutiny, when conduct such review simply record; a de novo after we do not make considering tion independently Mickey, determination of Cal.3d at penalty.” (People b. Planning Evidence of court speculated
Defendant first contends trial improperly The trial contention is without merit. court’s Powell’s murder. His planned convicted, it is clear from (“As which defendant was remark crime for offense, reflects not spur-of-the-moment”) the evidence it was planned though to the Even jury. of the evidence interpretation presented a reasonable was showed the murder court whether evidence uncertainty expressed his attack on Powell that defendant planned evidence premeditated, *83 Defendant remained the at until after of the compelling. jobsite all other construction workers had left for the When one of Powell’s day. neighbors afternoon, walked the by in he asked her if she had come from Powell’s house, himself that Powell would alone assuring be in house.
c. Factors Sympathetic theAt modification counsel hearing, summarized testimony witnesses who testified to penalty phase defendant’s in good deeds Guatemala and urged trial court strike the death based on this penalty evidence alone. He also argued that defendant was a member of his good community when he was not intoxicated. The trial court found the aggravating substantially circumstances outweighed the mitigating circumstances and the automatic rejected for reduction in application sentence from death life without the possibility parole.
Defendant contends that in deciding verdict-modification application the trial court erred because it refused to consider factors in sympathetic He mitigation. the court specifically complains ignored value sympathetic of the evidence of his deeds and good involvement described community ante. Defendant cites as error the following by statements trial court: “So the logic of the scheme file setup statutory decisions of the plus Court lead me to Supreme inescapable conclusion that a trial court does not assess whether death penalty] considerations of appropriate, [the in mercy come into two when sympathy play only areas a death penalty consider, is involved. They are factors . . . and appropriate [][] two, course, number historically they continued to employ factors consid- ered it when to his governor comes commutation But powers. are they not within the trial purview judge.”
As defendant we have correctly argues, recognized that factors sympathetic are integral to both the jury’s determination the trial court’s penalty on a (See (1988) motion for modification of the ruling Dyer verdict. People 45 Cal.3d 753 P.2d court’s comments Cal.Rptr. [246 1] [the reflected its that it could consider in understanding properly making sympathy decision]; its v. Williams 44 Cal.3d 971-972 Cal.Rptr. 336, 751 P.2d and the in whether to jury, judge deciding modify 395] [“the death, verdict of must be to consider is permitted evidence that relevant remorse, including evidence that reflect potentially mitigating,” “may or otherwise arouse in either But is not sympathy judge”].) “[s]ympathy ‘circumstance,’ itself a ‘factor’ or but mitigating an emotion.” (People v. 36 Cal.3d Lanphear Cal.Rptr. court trial to find that evidence offered does required mitigation Scott, fact mitigate. (People *84 all the
Here, considered of the trial court painstakingly the record indicates identified the evidence in and It aggravation mitigation. offered evidence Guatemala, the of the day his intoxication on deeds in good defendant’s it murder, mitigation as circumstances his lack of convictions felony and value of the commented on the sympathetic The court specifically considered. defendant, deeds were it found of these many offered by although deeds good weighed court then it called in nature.” The independently not what “altruistic found, as and stated mitigating evidence of and circumstances the aggravating ante, outweighed the substantially the evidence of circumstances aggravating court the of the findings circumstances. The concluded mitigating that of the more is required the evidence No presented. were based on appropriate 1045.) (People Lang, Cal.3d at supra, the trial court. p. the made about and course mercy The trial court the remarks sympathy that, whether the of the assessing aggravating after evidence commenting circumstances, a trial outweighs mitigating circumstances that of the court novo, itself, determine death not and de that the is penalty does independently Alvarez, 190.4, (See (e); in a case. subd. particular appropriate § stated, Instead, 245.) 14 Cal.4th at as the trial court its function in p. the reweigh on the verdict-modification ruling independently application and the evidence and evidence determine whether aggravating mitigating the the evidence mitigating verdict. Its remarks jury’s concerning supports reveal all although finding defendant offered that it considered such evidence it of little The court’s reference to and worthy weight. mercy sympathy trial most reasonably “within of the are being judge purview” role of understood as its outside trial declining judge’s proper step view of the evidence to substitute its own reweighing appropri- independently ate It factors be considered correctly by stated penalty. sympathetic 190.3) (§ in determining whether the death is warranted and penalty Const., (Cal. the Governor in whether to a sentence deciding commute V, 8). art. § Review Proportionality
8. We Defendant contends his death sentence is dis disproportionate. “To determine whether a sentence is cruel or unusual as to a agree. applied defendant, a must the circumstances of court examine reviewing particular offense, motive, defendant’s extent of the defendant’s including committed, crime, involvement in the the manner in which the crime was must also consider defendant’s acts. court consequences v. Cox defendant’s mental age, prior criminality capabilities.” “If the (2003) 30 Cal.4th 969-970 [135 to the concludes that the is ‘grossly disproportionate court penalty imposed or, that the stated another way, punishment defendant’s culpability’ [citation] shocks the conscience and offends fundamental notions of human dignity (Id. [citation], the court must invalidate the sentence as unconstitutional.” Here, murder, on the day his desire to have expressed sexual intercourse with Powell entered Powell’s home throughout day without He permission. planned attack Powell after all of the construction *85 workers house, her, had left. Defendant entered Powell’s to attempted rape and inflicted numerous on injuries her with a large butcher knife before fatally her. Defendant had started stabbing to attack another woman similarly attack, with a machete in his native Guatemala. After each defendant made remarks that indicated he was of his proud actions. he had Finally, although murder, been on the drinking there day was no evidence he was emotionally mentally at the time of impaired Powell’s murder. we
Accordingly,
find the
in this case not so
penalty
to
disproportionate
defendant’s personal
as to warrant
culpability
reversal of his sentence.
Cox,
(People
v.
supra,
9.
International Law
contends
constitutional violations he suffered in this case
and California’s death
in
penalty system,
general, violate international
law
and the federal constitutional ban on cruel and unusual
under the
punishment
and
Eighth
Fourteenth
We
Amendments.
“Because
disagree.
defendant has
failed to establish
law,
violations
prejudicial
of state or federal constitutional
we need not consider whether such violations would also violate international
515,
802,
(2002)
v. Bolden
(People
29 Cal.4th
567
law.”
Cal.Rptr.2d
[127
].)
10. Miscellaneous Constitutional Challenges Defendant contends California’s death statute is unconstitutional penalty Fifth, Sixth, under the and Eighth, Fourteenth Amendments to the United States Constitution. We have considered and each of these previously rejected and challenges, defendant offers no reason to reconsider our persuasive prior Arizona, 584, v. 536 decisions. His reliance on Ring supra, U.S. Apprendi Jersey, New 530 U.S. v. supra, as we support unavailing have held Ring “do not Apprendi death law.” penalty affect California’s Smith, v. 642.) 30 Cal.4th at (People supra, we continue hold p. Therefore, the following:
1165 overbroad, 190.3, and does not (a), vague factor is neither nor Section the death penalty. permit arbitrary capricious imposition impermissibly v. Jenkins 439; Maury, supra, v. (.People Cal.4th at p. 1044].) 1050-1053 Cal.4th 190.3, (b) failing “require factor is not unconstitutional Section doubt, require factors be reasonable proven beyond aggravating a reasonable must factors outweigh mitigating beyond factors aggravating doubt, beyond to be the that death must be found penalty require appropriate [citation], that there be burden proof.” doubt or require reasonable Box (People circumstances, which is not are unanimity aggravating
“Jury required Maury, elements of offense.” death is not unconstitutional failing California’s statute penalty *86 (People written and reasons for the death verdict findings require jury’s Maury, supra, 440) 30 Cal.4th at and intercase failing propor p. require v. Combs (People 821, (2004) review tionality [22 1007]). 101 P.3d as aggravating consideration of criminal conduct jury’s unadjudicated v. Brown (People factors is not unconstitutional. 244].) 93 P.3d death defendants of
California’s statute does penalty capital deprive because it fails to for sentence review. equal protection provide disparate Brown, (People 33 Cal.4th at
11. Cumulative Error contends and guilt penalty cumulative effect of errors of his conviction and death sentence even if reversal phase require no none of the errors is We have found prejudicial individually. prejudicial thus, contention is without error and no cumulative defendant’s prejudice; merit. Disposition
III. affirm the judgment.
We Baxter, J., J., Kennard, J., C. concurred. George, Dissenting. The evidenceat defendant’s trial amply J., WERDEGAR, victim, Powell, he killed the proved Kathleen in a brutal and unprovoked attack. His offense was at least second degree murder have been a greater crime. What the evidence failed to sufficiently demonstrate is defendant killed Powell while in the engaged commission of attempted rape. reason, For this I dissent from affirmance of defendant’s conviction for first Code, murder with an degree (Pen. attempted rape circumstance. special 189, 190.2, (a)(17)(C).) subd. §§
In a criminal reviewing conviction or circumstance chal- special finding lenged lacking “the court evidentiary must review the whole support, record in the light most favorable to the below to determine judgment is, whether it discloses substantial evidence—that evidence which is reason- able, credible, and of solid value—such that a reasonable trier of fact could find the defendant doubt.” guilty beyond reasonable v. Johnson 26 Cal.3d Cal.Rptr. In the present case, the evidence on defendant’s actual bearing intent when he attacked Powell was too simply ambiguous uninformative—of too little “solid (ibid.)—to value” support attempted rape finding.
I with the agree that sufficient majority evidence showed defendant was me, interested in Powell. sexually But his chant of for me repeated “Kathy deluded, Kathy” suggests however expectation, consensual encounter, at least as much even more as—arguably than—it suggests intent to rape.
Defendant, who the evidence showed was intoxicated on the afternoon of crime, Powell returned apparently thought his sexual interest. Defendant’s coworker, Braziel, belief, tried to talk him out of this mistaken stating Powell friend, liked him as a only but defendant’s continued chanting “Kathy me, me for Kathy” suggests Braziel’s admonition. In this rejected light, that defendant made an excuse to remain at the worksite and aof inquired whether she had neighbor come from Powell’s house does not distinctly point to a forcible attack. I planned with the that a could agree majority jury ante, infer reasonably to catch Powell alone planned at (maj. opn., 1131), this, but I a could p. disagree infer from a reasonably beyond doubt, reasonable that he intended to her. The had no to know rape way whether defendant went to Powell’s home with the intent to her or rape consummation merely of what he was mutual attraction. anticipated thought The seeks to its majority buttress conclusion that defendant’s sexual interest in Powell and to find her alone a he intended to hope supports finding ante, 1131) her at rape (maj. to the nature of Powell’s opn., p. by pointing discovered, wounds. Powell’s clothed when and the body fully physical reasons, trauma. The majority nor genital evidence showed neither semen wounds, however, particular location of Powell’s that the nature and “defendant breasts, inference that rise to an to her gave and slices pokes i.e., will,” to “to submit her something intended to force Powell to do against (Ibid.) with a sadistic wounds are as consistent intent.” But such sexual with an attempt by rejection—as desire to inflict desire prompted pain—a rape. sex,” trial, were “a substitute form
At the wounds argued prosecutor torture; it i.e., an intent to intent be evidence of sexual sadism. A sadistic not, however, evidence allowed an intent to The physical the same as rape. out of anger and killed Powell inference that defendant tortured reasonable with his over her friendship she him or out of jealousy because refused coworker, in an Powell’s breasts That defendant and slashed Braziel. poked but the evidence intercourse is also possible, to coerce her into sexual attempt doubt. To say a reasonable beyond to so find did not allow a reasonable juror that defendant finding marks on Powell’s breasts cutting support at her is best. rape speculative attempted Holloway (2004) 33 Cal.4th People relies majority part 164], we earlier distinguished in which
138-139 Holloway But cases insufficient evidence of finding attempted rape. physical earlier had evidence than this case. The defendant involved much stronger (Debbie) then entered the townhouse tried to one victim and had clearly rape Diane, (Diane). who her mother testified where he killed the other victim bed, nude, her bedroom in disarray, never was found nude on her her slept marks on her wrists tucked under the mattress. She had ligature panties entered the defendant had We held the evidence sufficient to find ankles. case, (Ibid.) In the the intent to Diane. present townhouse with rape disrobement, nor the indications of bondage, evidence shows neither nor did defendant victim. Nor recent or another contemporaneous attempt rape victim, Carpenter declare his intent as in rape 708], cited majority also ante, wounds is 1132). In the nature of Powell’s determining (maj. opn., her in the commission of rape substantial evidence that defendant killed Holloway what the will extends majority beyond opinion attempted rape, *88 support. observes, circumstantial evidence. intent be shown may by
As majority ante, evidence must be 1129.) But the circumstantial (Maj. p. opn., only could find it allows such that a reasonable jury substantial—it must be view, inference, the evidence of intent. In my that of criminal one reasonable jury simply A reasonable Powell’s wounds is not of that type quantity. defendant, when he attacked doubt that a reasonable beyond could know Powell, before her. killing her to have sex with him intended to force Powell, Defendant’s whether or not with the intent to killing performed was murder. It have risen to rape, first murder on the degree capital the wounds to Powell’s breasts theory showed she was tortured before being Code, 189, 190.2, (Pen. (a)(18)), killed subd. this was not though theory §§ to the But even the record “in the presented jury. viewing most light Johnson, favorable to the below” 26 Cal.3d at judgment 578), there was insufficient credible evidence of “solid value” simply (ibid.) from which a reasonable beyond reasonable could conclude doubt defendant, Powell, when he attacked intended to force sexual intercourse on her. The conviction of first murder and the degree special circumstance both on a finding, finding should dependent attempted rape, be reversed.
Moreno, J., Gilbert, J.,* concurred. J., for a was denied
Appellant’s petition rehearing May Werdegar, 2006. Moreno, J., were of should be opinion petition granted. District, Six, *Presiding assigned Justice Appeal, Appellate of the Court of Second Division VI, pursuant the Chief Justice to article section 6 of the California Constitution.