Filed 10/30/14
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S118045
v.
MARCUS DORWIN ADAMS,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. BA181702
____________________________________)
A jury convicted defendant Marcus Dorwin Adams of the 1994 first degree
murders of Dayland Hicks, Lamar Armstrong, and Trevon Boyd (Pen. Code,
§ 187),1 the attempted murder of Luis Hernandez (§§ 187, subd. (a), 664), and
carjacking. (§ 215, subd. (a).) The jury found true the allegation that defendant
discharged a firearm at an occupied motor vehicle causing great bodily injury and
death within the meaning of section 12022, subdivision (b)(1), with respect to the
three murder counts. The jury also found true the alleged multiple-murder special
circumstance. (§ 190.2, subd. (a)(3).) With respect to the attempted murder, the
jury found true the allegation that defendant personally inflicted great bodily
injury upon the victim within the meaning of section 12022.7, subdivision (a).
The jury returned a verdict of death for the three first degree murders.
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
The trial court denied defendant‟s motion to reduce the penalty and his
motion for a new penalty phase trial and sentenced defendant to death. The court
also imposed, but stayed, a determinate sentence of nine years in prison for
defendant‟s attempted murder conviction and an indeterminate term of life with
the possibility of parole for his conviction of carjacking. This appeal is automatic.
(§ 1239, subd. (b).) We affirm the judgment.
I. FACTS
A. Guilt phase evidence
In early September 1994, defendant, a member of the Six Deuce Brim
Bloods gang, walked up to the car in which three members of the Rollin‟ 60s Crips
gang were sitting. He shot and killed all three men at close range. Not quite a
month later, defendant shot a security guard patrolling the parking lot of a credit
union. He fled the scene with his two companions. In a nearby neighborhood,
they carjacked a woman‟s car.
At trial, regarding the first three shootings, defendant challenged the
credibility of the witnesses who identified him as the shooter. Regarding the later
incidents, defendant claimed one of his companions was the shooter and had
pulled the woman out of her car.
1. The September 7, 1994 homicides
On the afternoon of September 7, 1994, Lewis Dyer was standing with
Zenia Meeks, a drug addict, on Western Avenue at 47th Street in Los Angeles,
across the street from Ford‟s Liquor store. The area was known as a Crips gang
neighborhood and Dyer was a member of the 46th Street Neighborhood Crips
gang. Dyer and Meeks saw Dayland Hicks, Lamar Armstrong, and Trevon Boyd,
members of the Rollin‟ 60s Crips gang, drive up in a Cadillac and park in front of
the liquor store. The two Crips gangs were friendly. Dyer and Meeks walked
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over to the Cadillac, and Dyer began to speak with Hicks. Dyer and Hicks went
into the liquor store. After Hicks bought a beer, they returned to the Cadillac.
Hicks got into the driver‟s seat. Boyd was sitting in the front passenger seat, and
Armstrong was sitting in the backseat. Dyer leaned on the passenger side of the
car and continued to speak with the three men. According to Meeks, she stood
near the hood of the car, waiting for the men to finish their conversation.
Dyer and Meeks both noticed a young man walking toward them. Dyer
recognized the man as defendant, whom he knew to be a Bloods gang member
with the gang moniker of “Little Sonny.” Dyer and defendant knew each other
when they were both held in the same California Youth Authority (CYA) juvenile
facility. Although defendant belonged to a Bloods gang, he was not wearing
colors associated with the Bloods gangs, but colors that blended into the Crips
neighborhood. During this time in 1994 a gang war was underway between the
Bloods and the Crips. The 46th Street Neighborhood Crips gang, along with the
Rollin‟ 60s Crips gang, were enemies of the Six Deuce Brim Bloods gang —
defendant‟s gang. Defendant pulled out a gun and shot at Dyer. Dyer ducked,
crawled to the front of the car, then stood up and ran down the street while
defendant fired a number of shots into the Cadillac at close range. Meeks stood
still.
Hicks suffered a fatal gunshot wound to his head at the right temple area
and a nonfatal gunshot wound to his upper right arm. The wounds were consistent
with Hicks having raised his arm up in a defensive position at the side of his head.
Boyd suffered gunshot wounds to his chest, the ring finger of his left hand, and his
right forearm. One of the bullets that entered his chest fatally damaged his liver
and heart. Armstrong was also shot in the arm and chest. The bullet that entered
his chest fatally damaged his liver, heart, and left lung. When defendant finished
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shooting, he walked back toward an alley, got into a red four-door car, and drove
down 47th Street.
Hicks died in the Cadillac. Boyd exited the Cadillac and ran into Ford‟s
Liquor store. Meeks followed Boyd into the store and saw that he had been shot.
She ran back across the street to a pay phone, dialed 911, and reported the
shootings. Lisa Mallard, who was in the liquor store with the owner, an employee,
and another individual, tried to calm Boyd. Mallard told him that the paramedics
were coming, but Boyd passed out and died. Armstrong exited the Cadillac, but
collapsed near the corner of 47th and Western. Armstrong and Boyd were
transported to area hospitals. Armstrong died at the hospital.
When Dyer returned to the scene, he saw Hicks‟s body still in the driver‟s
seat, with blood everywhere. He saw the police and paramedics arrive, but he did
not talk to them. Dyer felt that he should not say anything because a gang member
would be labeled a “snitch” if he spoke to the police about a gang-related crime,
even if the crime was committed by a rival gang against the member‟s own gang.
Dyer feared that if he told the police what he knew about the shooting, others
would try to harm him. He did not want to get involved. Instead, Dyer went to a
nearby pay phone and called Hicks‟s uncle, Gregory Shoaf. He told Shoaf that
Hicks had been shot and that defendant was the shooter.
On the day of the homicides, police officers took Meeks to the police
station for an interview. Meeks did not give Dyer‟s name to the police because
she wanted to protect him. And although Meeks had recognized defendant as the
shooter, she did not identify him to the police because she was frightened and did
not want to get involved. Instead, she told the police that she was unable to
identify the shooter, claiming she was high and on psychiatric medication. Police
spoke with Meeks several times and showed her a set of photographs of possible
suspects. Meeks did not identify anyone because of concerns about her own and
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her family‟s safety. At trial, she explained that a member of her family had
received a telephone call that Meeks understood as a warning to keep quiet.
A week after the shootings, the police contacted Dyer, but he gave them no
information. He claimed that he was inside the liquor store when the shots were
fired. The next day, after receiving information from Shoaf that Dyer was a
witness to the shooting, the police asked Dyer to come into the police station.
When Dyer arrived, Shoaf, Shoaf‟s sister, and Boyd‟s mother were there. Dyer
was initially reluctant to talk to the police, but changed his mind after the family
members convinced him he should tell the police what he knew about the killing
of his friends. Dyer told the police what happened and gave a written statement.
He identified defendant as the shooter in a photographic lineup.
Defendant was taken into custody early in October 1994 and interviewed as
a suspect regarding various gang murders. Defendant told the interviewing
detectives that he knew about the killings on Western Avenue. He said the shooter
put on a blue shirt to make the victims think he was a Crips gang member. He
walked up to their car and “dumped on them,” using a .9-millimeter handgun and
fled in a red car. Defendant, however, denied being present, denied committing
the shootings, and refused to disclose the name of the perpetrator. He stated that
the shooter knew the Crips gang member who witnessed the shooting because they
had been in jail together, but defendant denied knowing the witness himself.
Defendant told the detectives that his family fell apart after Rollin‟ 60s gang
members killed his brother. He blamed the 60s for what happened to his family.
Defendant told the detectives that he was not admitting the murders, but if he had
done them, the reason would be the killing of his brother.
Dyer was subsequently arrested on a parole violation and taken to county
jail. Defendant was in the same jail at that time. When Dyer was asked to view a
live lineup that included defendant, Dyer did not identify defendant as the shooter
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because he was afraid of what could happen to him in jail if he was labeled a
snitch. Sometime later, Dyer was brought to an office where defendant was
waiting. Defendant told Dyer not to say anything and showed him a copy of the
statement Dyer had made to police identifying defendant as the shooter.
Defendant told Dyer that the sheriff‟s deputy who escorted him to the office was
defendant‟s cousin and that defendant could have Dyer moved to a safe facility as
long as Dyer did not identify him. Defendant told Dyer that he had given him “a
pass,” meaning he could have killed him when he shot the others but chose not to.
Dyer assured defendant that he had not picked him out of the lineup and that he
did not intend to “tell on [him].” At trial, Dyer testified that he had decided not to
testify or cooperate with the police even before this conversation. Dyer testified
that he was concerned that if his statement to police “[got] around the jail” he
could be hurt or killed. He said that he received threats before and after the lineup.
When a defense investigator subsequently came to interview him at the
CYA facility where Dyer was transferred, Dyer lied and said that he had been in
the liquor store at the time of the shootings. He told the investigator that he did
not see anything and claimed the victims‟ families pressured him into making his
statement to the police. Meeks continued to be uncooperative with the police. In
1995, the case against defendant was dismissed and he was released.
In 1998, investigators from the Santa Barbara County District Attorney‟s
Office contacted Dyer, who had been released from custody a couple of years
earlier. The investigators asked about the 1994 murders. Because Dyer was
trying to reform his life, he decided to cooperate with them and to testify against
defendant. He told the investigators about being threatened and about his
jailhouse conversation with defendant. When Dyer was contacted by Los Angeles
police detectives and asked to attend a live lineup in 1999, Dyer identified
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defendant as the shooter of his three friends. Dyer also identified defendant as the
shooter at defendant‟s preliminary hearing and again at trial.
Kipchoge Johnson testified at defendant‟s trial that until 2000 he belonged
to the Van Ness Gangsters, a Brim Bloods gang that was “best friends” with
defendant‟s gang, the Six Deuce Brim gang. Johnson testified that he decided to
tell the police what he knew about this shooting because he had become
“disgusted” with the gang lifestyle and had become friends with the brother of one
of the three victims.
Johnson recalled being with defendant in 1994 when defendant received an
upsetting phone call. Defendant told Johnson that one of defendant‟s “homies”
had just been killed by a Crips gang member. A few days later defendant came in
with a newspaper article. He said, “This is what I did for the homies” and threw
the newspaper on the floor. Everybody ran to look at it. Johnson saw that it was
an article about the killings of the three Rollin‟ 60s gang members. Some of the
older gang members who were present asked defendant what had happened.
Defendant replied that he “ran up on them” and with five shots “domed,” meaning
shot in the head, all three of the men who were inside a parked Cadillac. He had
made sure they were Crips gang members by “throwing” their neighborhood sign
at them and having them throw the sign back to him. Johnson testified that using
only five shots and shooting a person in the head would garner more status for a
gang member. He also testified that a gang member would not take credit for a
killing that he did not commit because if he did, he would be disciplined and
kicked out of the neighborhood. According to Johnson, if defendant bragged
about killing someone, he must have done it. Johnson believed it fair to say that
defendant hated the Rollin‟ 60s gang.
A few months after the killings, Johnson met defendant on the county jail
bus while going to court. Johnson asked defendant who had identified him as the
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shooter and defendant replied it was the person to whom he had given a “pass”
and allowed to run away based on their prior custody together in CYA. Defendant
said that he should have killed him too. Johnson subsequently heard defendant tell
some Crips gang members that he was going to “beat this,” get out of jail, and kill
some more of their members.
Christopher Fennelle was a member of the Six Deuce Brim Bloods gang
until 1995. He knew defendant for a number of years as a member of the same
gang. Fennelle testified that sometime in 1995 defendant came to Fennelle‟s
home because he wanted to buy a gun. As they were talking, defendant brought
up the subject of the three Rollin‟ 60s Crips who were killed the previous year.
Defendant told Fennelle that he had seen the Cadillac parked with three Crips
inside and one standing outside. As defendant walked up to the car, the man by
the passenger door saw him and took off running. Defendant said he fired shots at
the fleeing man and then shot everyone in the car.
Special precautions were taken to protect both Johnson and Fennelle while
they were testifying during the trial. And they were both promised that whenever
they were released from prison they would be provided with witness relocation
services.
In 2001, Meeks was in a drug rehabilitation program and had become a
Christian. She decided to cooperate with authorities regarding the 1994 shooting.
She subsequently identified defendant in a photo lineup as the shooter.
2. The October 3, 1994 attempted murder and carjacking
On October 3, 1994, Luis Hernandez was working as a security guard
patrolling a parking lot for several Santa Monica businesses, including the
Telephone Employees Credit Union. About 10:30 a.m., a car approached
Hernandez. There were three African-American men in the car. The front
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passenger asked Hernandez if he knew the location of Santa Monica College. As
Hernandez pointed to the left, the man said, “Don‟t move,” reached into the glove
compartment of the car, and pulled out a handgun. Hernandez turned and ran
toward the entrance to the credit union. He heard several shots behind him. He
was hit and fell down, but got up again and continued running. He was shot again
as he reached the credit union door and collapsed after he entered the building. He
was taken to the hospital where he had surgery and remained for a week. He was
out of work for two months.
Jasmine Green was inside the credit union that morning, and looked up
when she heard gunshots. She observed a yellow Cadillac parked outside and as
she watched, a man stepped from the passenger side of the car and shot at
Hernandez, the security guard. Hernandez ran past the window and into the credit
union, collapsing in front of her. Green then saw the shooter get back in the car
and the car drive away. She got a good look at the shooter. She believed he used
a .9-millimeter gun, and described all three men in the car as African-American.
About 11:15 a.m. on the same day, Socorro Navarro drove to the Santa
Monica home of her friend, Linda Nicastro, to give her a ride to work. Navarro
stopped in front of her friend‟s home on Oak Street, which is about six blocks
away from the Telephone Employees Credit Union. Navarro honked her horn and
Nicastro came out of the house. Before Nicastro could get to Navarro‟s car, a
yellow car with two African-American men in the front seat suddenly came from
the opposite direction and stopped next to Navarro. The driver got out and
approached Navarro. He produced a gun and said, “Bitch, get out of the car.”
Frightened, Navarro complied. She walked over to Nicastro. They grabbed hands
and walked toward the apartment building without looking back toward the car.
Navarro heard the sound of cars speeding away. She turned and saw her car and
the yellow car drive away in the same direction.
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Jerry Flannery lived across the street from Nicastro. Around 11:15 a.m.
that morning, he had just parked his car and was walking across the street when he
heard another car approaching at a high rate of speed. He heard it slam on its
brakes and saw it pull up next to Navarro‟s car. He saw three people inside the
car. Flannery testified that the driver, an African-American male in his late 20s,
got out and walked up to Navarro, yelling at her to get out of her car. Flannery
started toward Navarro to help her, but the man raised a gun, which Flannery
recognized as a .9-millimeter semiautomatic. When the man pointed it at
Flannery, Flannery dove behind the parked cars, then crawled to the front of one
of the cars and peeked around the corner. Flannery saw the man yank Navarro‟s
car door open, grab Navarro by the hair, and drag her out of the car. Flannery
turned and went to nearby apartment buildings, knocking on three or four doors in
an attempt to get someone to call the police. Flannery returned to the street in
time to see the two cars drive away. Flannery got back into his car and tried to
follow them in order to obtain a license plate number, but was unable to find the
cars.
In 1999, Santa Monica Police Sergeant Gary Steiner was assigned to
reinvestigate the 1994 credit union shooting and subsequent carjacking. He
interviewed defendant after he heard that defendant had information regarding the
case. Defendant told Steiner that he wanted to get his former friend Chauncey
Bowen, who was the brother of Fennelle, in trouble because Bowen had tried to
kill defendant and defendant‟s girlfriend. Defendant described the shooting of
Hernandez at the credit union and the subsequent carjacking of Navarro, but
claimed that he had acted only as a lookout and that Bowen was both the shooter
at the credit union and the man who dragged Navarro out of her car. Defendant
told Steiner that he later bought the gun that Bowen had used and it was that gun
he had with him when he was arrested back in October 1994.
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Forensic examination in 1995 of the shell casings and bullet fragments
recovered in connection with the shooting of Hernandez determined that the shell
casings were fired from one gun and that the bullets were also fired from one gun.
But without the benefit of analyzing the gun itself, it could not be determined that
the casings and bullets were fired from the same gun. After defendant‟s interview
statements in 1999, the shell casings and bullet fragments were reanalyzed, along
with the gun seized when defendant was arrested in 1994. It was then determined
that the shell casings and bullet fragments had been fired from that gun. That gun
was not the weapon used in the 1994 killings of Hicks, Boyd, and Armstrong.
In 1999, credit union customer Green was shown a photographic lineup of
possible suspects in the credit union shooting. She identified defendant‟s picture
as being that of the shooter. She also identified defendant as the shooter in a
subsequent live lineup and later at trial.
B. Penalty phase evidence
1. Evidence submitted in aggravation under factor (b) of section 190.3
In the penalty phase, the prosecution presented evidence of defendant‟s
history of numerous criminal activities involving the use or attempted use of force,
violence or threat. (§ 190.3, factor (b).)
a. Carjackings committed as a juvenile
The prosecution presented evidence of two carjackings committed by
defendant when he was 17 years old.
According to Alice Rox, on January 21, 1988, she parked her car on her
way to a swap meet in Los Angeles. When she got out of her car, a male, whom
she later identified as defendant, pointed a gun at her and demanded the keys to
her car. She tossed the keys to him, and defendant took her car. The car was
recovered a few days later.
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Dwain Edwards testified that on February 4, 1988, he drove his car to a gas
station. Edwards was about to fill his car when a male, whom Edwards later
identified as defendant, pointed a machine gun at him and demanded his keys.
Edwards complied and ran approximately 50 feet away. When he turned around,
he saw defendant leaving in his car. Defendant was taken into custody later that
day on the campus of a local high school, and police seized a machine gun that a
witness claimed to have seen defendant hide. The weapon held a 50-round clip,
which contained 40 rounds when it was examined. Defendant admitted
committing both the January 21 and February 4 carjackings. Edwards‟s car was
recovered several days later.
b. September 1994 robbery of Pacific Marine Credit Union
On the morning of September 27, 1994 — three weeks after the triple
homicide of Hicks, Boyd, and Armstrong and six days before the attempted
murder of Hernandez and the carjacking of Navarro — Melissa Lopez was
working as the head teller and assistant manager at the Pacific Marine Credit
Union in Oceanside. Lopez testified that at approximately 11:30 a.m., the glass
double doors of the credit union flew open and three or four African-American
men ran inside. They were carrying semiautomatic weapons, which they pointed
at the tellers. Two of the men hurdled the first two teller counters and ordered
everyone to the ground. Lopez was ordered to get up when she identified herself
as the person who was in charge of the credit union that morning. One man, later
determined to be defendant, led her to the vault at gunpoint and demanded she
open it. Lopez fumbled with the keys. Defendant put his gun next to her temple
and said he would shoot her if she did not hurry. After she opened the vault,
defendant took the currency and placed it in a bag. Lopez could hear another man
on the other side of the credit union ordering tellers to open their drawers. The
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men left the credit union, and someone called 911. After the robbery, the credit
union manager performed an audit and determined that $161,589.23 had been
taken. Lopez identified defendant at trial as the man who had forced her back to
the vault, held a gun at her head, and took the currency.
Michael Loughran worked for a company whose office was inside the
credit union. He testified that he heard the commotion in the credit union that
morning. He looked around his door and saw an African-American man, whom
Loughran identified in court as defendant, pointing a gun at him. Defendant told
Loughran to come into the bank and lie down by the tellers. Loughran complied,
and heard sounds from the vault area. Then defendant, holding a big bag, jumped
over the counter and landed next to Loughran. Defendant put his knee on
Loughran‟s chest and asked if he had any money. Loughran reached into his top
pocket, where he usually kept his cash, but pulled out his business cards by
mistake. Defendant hit Loughran in the head with his gun and said, “Give me all
your money, white boy.” He pointed the gun at Loughran‟s face. Loughran
remembered his money was in a different pocket. He handed defendant two $100
bills. Defendant took Loughran‟s pager, stood up, and walked out of the credit
union. Loughran identified defendant at trial as the man who pointed the gun at
him and took his money and pager.
According to Bloods gang member Kipchoge Johnson, defendant bragged
about the robbery of the credit union. Johnson explained that defendant did not
have a job; defendant‟s job was being a gangster. Johnson said that defendant
would rob banks and kill people, go to prison, get out and do the same thing over
again.
Santa Monica Detective Steiner interviewed defendant in 1999. According
to Steiner, defendant said that he and Chauncey Bowen had robbed the credit
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union in Oceanside in September 1994. According to defendant, they stole almost
$200,000. Defendant described his role in the robbery to Steiner.
Melissa Lopez testified regarding the impact the robbery had on her life.
According to Lopez, she had worked at the Pacific Marine Credit Union for three
and a half years at the time of the robbery. She loved working there and felt she
had a strong future. After the robbery, she immediately started looking for a
different job. She completely changed her field of work. She required six months
of posttraumatic stress syndrome therapy, seeing a therapist twice a week. She
suffered nightmares for a long time after the robbery. At the time of trial in 2003,
she was still frightened of doors opening quickly and of people who looked
“suspicious.” She did not trust people and avoided public areas after dark.
Defendant‟s face was forever ingrained in her head and she “freaked out”
whenever she saw someone who resembled defendant.
c. October 1995 shooting of George Minor
One night in October 1995 — two weeks after defendant had been released
from custody — George Minor, a drug dealer and gang member, was standing in
the front yard of his home speaking with some neighbors. According to Minor,
defendant and two other African-American men approached him. One of the men
asked for an individual named “Ray Ray.” Minor said Ray Ray was not there.
Defendant, who was holding a gun, then moved the two other men aside and
stepped up to Minor, saying, “You Ray Ray.” Defendant announced he was “East
Coast,” a rival gang, and he and one of the other men began shooting at Minor.
Minor was hit in the arm and the leg before he ran behind a car parked in the
driveway. Both shooters fired multiple additional shots at the car and the house.
When the gunfire ceased, the men scattered.
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Minor testified that he ran into his house, and someone called 911.
Although a number of bullets went through the walls of the house, Minor‟s sisters
and nieces who were inside were not injured. Minor was taken to the hospital,
where he stayed for several weeks. At the hospital, Minor selected defendant‟s
picture from a photographic lineup as one of the shooters. He also identified
defendant at trial as the man who called him Ray Ray and shot him. He had no
doubt about his identification.
Minor‟s wife, Saudia, testified that she was coming home from the store
when she saw the men shooting at her husband. Defendant was one of the
shooters. When she saw everyone scatter, she got out of the car and went into the
house, where she was told Minor had been shot. Paramedics arrived and Minor
was taken to the hospital.
Los Angeles County Deputy Sheriff Angel Jaimes was patrolling with his
partner on the night of the shooting. Upon hearing approximately 10 gunshots,
Jaimes testified that he drove toward the sound of the gunfire and was flagged
down by a man who was standing in the middle of the street. The man said he had
seen the shooters and that they were headed west. Jaimes allowed him to get into
the rear seat of the patrol car and they drove west. When they spotted a white
Cadillac with two African-American males inside, the man got excited and
pointed, saying, “That‟s him, that‟s him.” Jaimes and his partner requested
assistance and conducted a traffic stop of the Cadillac. Defendant and another
man exited the Cadillac. Jaimes searched the car and found two hidden handguns,
a .9-millimeter automatic and a .380-caliber automatic. Both men were taken into
custody. During booking, Jaimes tested defendant‟s hands for gunshot residue.
Subsequent analysis determined that gunshot residue was present on both of his
hands. A criminalist testified that analysis of the bullet casings and an expended
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bullet recovered from the scene of the shooting determined that they were fired
from the two guns recovered from the Cadillac.
Minor testified that after he was subpoenaed as a witness regarding the
shooting, he received a phone call telling him not to come to court. Saudia
testified that she received multiple strange phone calls after she was subpoenaed as
a witness. According to Saudia, the calls to her were from a woman and a man.
On one occasion, she was asked by the caller to attend a court hearing and lie
about what she saw. On another occasion, a man said he knew where Saudia‟s
daughter went to school and that Saudia worked at International House of
Pancakes. Saudia testified that she was frightened. Both Minor and his wife
testified that they believed the calls were “three-way” calls from the county jail.
According to Saudia, she responded to the subpoena and went to court, but when
she saw defendant behind a window, she left because she was worried about her
family‟s safety. At defendant‟s capital trial, however, Saudia identified defendant
as one of the shooters.
d. August 1997 robbery of Vandenberg Federal Credit Union and
killing of Christine Orciuch
Defendant was released on parole on July 15, 1997.
On the morning of August 8, 1997, Jasper Altheide was working as a teller
at the Vandenberg Federal Credit Union in Lompoc. He testified that four men,
including Chauncey Bowen and defendant, entered the credit union. Bowen
walked over to the counter and pretended to fill out a deposit slip or envelope.
Defendant then ran up to the counter with a shotgun. Defendant began screaming,
“Get the fuck down or I‟ll shoot you.” He jumped over the counter and asked for
the manager. When no one responded, defendant said he would shoot someone.
Another credit union employee, Moira Philley, testified that she told defendant
that the manager was in the back. Defendant told Philley to get up and kicked her
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hard in the foot. When she rose, defendant put the shotgun against her back and
shoved her. Philley led defendant toward the back where the manager was.
According to Philley, as she and defendant were walking through a doorway, two
gunshots were fired. The gunshots came from the other side of the counter near
the front door and were not fired by defendant. Defendant screamed, “What the
fuck?” Someone said, “let‟s get out of here,” and defendant and the other robbers
left the credit union. Philley raced to call 911 and report the robbery. An audit
later determined that the robbers had taken a little over $11,000 from the teller
drawers.
Octavio Gallardo was approaching the front door of the credit union while
the robbery was in progress. He had a broken left leg and was walking on
crutches. Gallardo testified that a woman, later determined to be Christine
Orciuch, asked if he needed help and opened the door for him. After he entered, a
man wearing a mask pointed a handgun at him and told him to get down.
According to Gallardo, the man shot him in the right thigh before he could
comply. Gallardo fell to the ground. The woman, who was behind Gallardo,
turned and ran out. The man with the gun yelled at her to stop and come back.
Gallardo then heard another gunshot. Orciuch was fatally shot and immediately
fell to the sidewalk. Someone said, “Let‟s go,” and Gallardo heard the sound of
running toward the parking lot. One of the robbers stopped to take a backpack
from Orciuch before running away.
Orciuch‟s 11-year-old son, Quentin, was waiting for his mom in their car
when he heard the gunshots and heard his mother scream his name. According to
Quentin, he jumped out of the car and saw his mother lying facedown on the
ground. Three men were running from the credit union. Quentin ran to the side
door of the credit union, where he banged on the door and yelled that his mother
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had been shot. He was allowed inside, but was prevented from going to his
mother‟s body.
Defendant‟s former fellow gang member Fennelle testified that a few
weeks before this robbery and murder, Fennelle spoke with defendant and Bowen
at the house of Sabrina Johnson. The two men told Fennelle that they were
planning an armed bank robbery. They said they needed cars, and that they would
collect a lot of money. They asked Fennelle if he wanted to participate. Fennelle
refused and tried to convince Bowen and defendant not to do it. He warned them
that if someone was killed in the robbery, they would be equally responsible for
the murder. Defendant told him that he did not care and was determined to go
ahead as planned. According to investigating officers, defendant admitted, in
interviews after his arrest, that he was present during the robbery.2
Several witnesses testified concerning the impact of the robbery and
shooting on them and their family as follows.
Jasper Altheide testified that she had difficulties after the robbery because
during the robbery she had lain under the counter, and although she had the keys
to the vault and could have given the robbers the money, she did not do so because
she was so frightened. According to Altheide, she felt very guilty about not
allowing Orciuch‟s son to see Orciuch after Orciuch was shot and felt directly
responsible for her death. Every time she saw Orciuch‟s family, her heart hurt.
Altheide had nightmares, was fearful, and no longer wanted to be around people.
2
In his application for a new penalty phase trial, defendant acknowledged
that he was subsequently convicted of the Vandenberg Federal Credit Union
robbery and murder and had received a sentence of life without the possibility of
parole.
18
She constantly worried and had difficulty working at the credit union. She had
counseling, and testified that “the innocence of living is gone.”
Moira Philley testified that the robbery and shootings at the Vandenberg
Federal Credit Union had a tremendous effect on her life. Her marriage almost
“fell apart from it.” She and her children were “freaked out” by it. She would not
open the front door and installed an alarm system. She testified that she was
constantly watchful, had anxiety attacks when at work, and eventually had to
receive trauma counseling. She had nightmares of Quentin screaming, and felt
guilty because she survived, but Orciuch did not. She knew the Orciuch family
and felt for them. For years, the credit union maintained a memorial near the
flower beds where Orciuch died and Philley found it terrible to watch Orciuch‟s
husband light the candles every night and then blow them out every morning.
Octavio Gallardo testified that the shooting at the credit union caused him
to be very fearful. For a time he was afraid to leave his apartment. He required
medical attention for his gunshot wound and his leg still hurt when the weather
was very cold.
Orciuch‟s husband, Chester Orciuch, testified that at the time of his wife‟s
death, they had three children; a daughter age 17, a daughter age 14, and a son,
Quentin, age 11. When he arrived at the hospital, he was taken to a room and told
that his wife had been fatally shot. He screamed “Oh, no” and asked for his
family. He was taken to another room where his eldest daughter was trying to
comfort Quentin, who was asking if his mommy was okay. Chester told his
children that their mother had gone to heaven. They went to the emergency room
and said a prayer at her body. Chester was overwhelmed by her death. Christine
had been the caretaker of the family and home-schooled all three children.
Chester testified that he had difficulty as a single father and sometimes woke up in
19
the morning with dry heaves. There were also times that he woke up in the night
screaming. According to Chester, he lacked focus at home and at work.
Quentin Orciuch testified that after his mother was shot and he was allowed
into the credit union, he tried to page his father, but he was crying too hard. He
tried to run outside to see his mother, but was stopped. Eventually, a fireman
drove him to the hospital where he waited for his father and sisters to arrive. After
they arrived, his father told him his mother had died. He was devastated.
According to Quentin, everything was difficult after his mother‟s death. He thinks
about her every day and spent approximately one and one-half years in counseling
after her death.
e. March 1998 attempted escape and carjacking
Defendant and Bowen were held in custody in the Santa Barbara County
jail after their arrest for the Vandenberg Federal Credit Union robbery. On a
morning in mid-March 1998, they escaped with another inmate from the jail
exercise yard. According to witnesses, the three African-American male inmates
were seen walking down the hill from the jail to a parking lot, where they
surrounded Matilde Ulrich‟s car. One of the inmates pulled Ulrich from her car,
while defendant got in on the passenger side and pushed Ulrich out. The inmates
drove off in Ulrich‟s car, which was spotted by a sheriff‟s deputy a short time later
and was chased by the California Highway Patrol. A spike strip was used to stop
the car. Defendant, Bowen, and the third inmate were captured without further
incident.
f. Acts of force or violence or threats of force or violence while in
custody
Witnesses testified concerning 12 different incidents involving defendant‟s
use of force or violence, or threats of force or violence during the periods of time
that he was held in custody as follows.
20
Defendant and Antoine Phillips were both in custody at Avenal State Prison
in March 1994. The men were members of different Bloods gangs. Defendant
started an argument with Phillips regarding the murder of one of defendant‟s
“homegirls” by a member of Phillips‟s gang and they agreed to fight. A few
weeks later, Phillips was lying on the grass of the prison yard when defendant
walked up and kicked him in the mouth. Later that evening the two men fought
and defendant broke Phillips‟s jaw.
In November 1997, Sheriff‟s Deputy Brian Parker was conducting a
security check at the Santa Barbara County jail. Parker told defendant to remove
several items that defendant had secured into his cell wall in violation of jail rules.
Defendant became verbally abusive and challenged him to enter the cell and fight.
In November 1998, while he was in a holding cell at the Santa Maria
courthouse, defendant broke a plastic coat hanger that had been used for his
civilian clothes, took a large piece and began sharpening it to a point on the
concrete floor. Defendant hid the other pieces of the coat hanger in clothing in the
corner of the cell. Deputies entered the cell and took from defendant the
sharpened piece of plastic, as well as the hidden pieces.
In September 2000, while he was being held in the Los Angeles County
jail, defendant became upset when he was told that the nurse did not have his
medication. Sheriff‟s Deputy Phillips directed defendant to calm down.
Defendant challenged Phillips and two other deputies to enter his cell and fight
him, threatening to harm them.
In February 2001, defendant was housed on the disciplinary row in the Los
Angeles County jail. Defendant handed Sheriff‟s Deputy John Hermann a note
and told him to post it in the guard booth so that everyone could see it. Defendant
specifically said that he wanted Deputy Lindenmayer to see it. The note consisted
of a cartoon drawing of stick figures, which depicted defendant announcing his
21
gang membership, beating up Lindenmayer, and Lindenmayer lying on the ground
dead. Both Lindenmayer and Hermann took the note as a threat to Lindenmayer.
In July 2001, Sheriff‟s Deputy Charles Nowotny searched defendant‟s cell
in the Los Angeles County jail and found a handmade “club” in a manila envelope
in defendant‟s personal property. The club consisted of a tightly rolled-up
newspaper with a torn white sheet wrapped around it to form a handle. This was a
contraband item that could be used as a weapon.
In September 2001, sheriff‟s deputies were escorting defendant from the
medical clinic to his single cell in a lockdown module of the Los Angeles County
jail. When they arrived at defendant‟s cell, defendant saw a third deputy removing
several gang photographs from his cell. Defendant began cursing and refused to
enter his cell until his photographs were returned. Eventually defendant was
convinced to go back inside his cell. However, while the deputies were removing
defendant‟s handcuffs and waist chain, defendant pulled the chain into the cell and
began swinging it, hitting the door and walls. Defendant yelled that he was “going
to tear this place apart,” and, “If I get out of here, I am going to tear you apart,
too.” The deputies were able to close the gate and secure the latch so that
defendant could not hit them with the chain. It took approximately one hour to
talk defendant into handing over the chain. During this time, defendant was
cursing and threatening people.
Not quite three weeks later, sheriff‟s deputies approached defendant‟s cell
in the Los Angeles County jail to provide defendant with his dinner. When
defendant‟s food was passed through the food tray slot, defendant refused the food
and threw a white watery liquid at Sheriff‟s Deputy Alejandro Martinez, saying,
“Take that, fuckin‟ deputy.” The liquid landed on Martinez‟s face and upper
body. Sheriff‟s Deputy James Brown sprayed pepper spray into the cell so that the
food slot could be closed. As the slot was being closed, defendant threw more of
22
the liquid at Brown, which landed on Brown‟s face and upper body. When
Martinez sprayed additional pepper spray into the cell, defendant loudly said,
“You fucking bitches,” and attempted to throw more liquid at the deputies.
Martinez testified that he did not know what the liquid was, but it might have
come from a milk container. Martinez explained that when an inmate throws
something at an officer, it is commonly called “gassing.”
In February 2002, defendant complained to Sheriff‟s Deputy Martinez at
the Los Angeles County jail that Deputy Valente kept “fucking with [him] and
said that [he was] going to get him.” Defendant gave Martinez a note that he
wanted given to the floor supervisor. The note said, “I give you my word as a man
that I will slice or stab this guy the first chance I get.” Martinez understood the
note to refer to Valente. After giving Martinez the note, defendant said he would
“gas” a deputy if he were given the chance.
In June 2002, when defendant was housed in the Los Angeles County jail‟s
“high power” module, a jail inmate trustee, Douglas Lance, was picking up trash
and food trays along the walkway in the cell block. As Lance picked up a trash
bag attached to defendant‟s cell, defendant reached through the bars with his left
hand and swiped across the right side of Lance‟s neck. Lance cried out in pain
and called for help. As Sheriff‟s Deputy Damien Ortega responded, Ortega heard
the toilet flush in defendant‟s cell. Lance told Ortega that defendant had cut him.
Lance had a two-and-one-half inch laceration from under his ear to the front part
of his neck. The laceration was about one-quarter inch deep and was bleeding
profusely. Lance was taken to the medical clinic, and subsequently transferred to
an emergency room for treatment. When Ortega saw Lance two weeks later, he
noticed a sizeable scar on Lance‟s neck.
In January 2003, Sheriff‟s Deputy Mat Taylor was sitting in the control
booth at the Los Angeles County jail when he heard a loud thud against the
23
concrete wall of one of the rows of cells. Taylor looked down the row and
initially saw nothing. But when he heard noises sounding like an assault, Taylor
stood up and saw defendant on top of another inmate, Richard Aguirre. Only
Aguirre was supposed to be out of his cell; defendant had escaped from his cell.
Defendant was savagely striking Aguirre, who was curled up in a ball, and blood
was “flying everywhere.” When Taylor saw that each of defendant‟s blows was
creating an injury that produced blood, he knew that a jail-made shank was
involved. Taylor and his partner went down the row to break up the fight. Taylor
pepper-sprayed defendant and Aguirre, but defendant continued to hit Aguirre. As
additional deputies arrived, defendant ran back to his cell.
Taylor did not find any weapons on Aguirre, who was covered in blood.
His clothing had multiple slash marks. Aguirre was taken to the medical clinic
and then transferred to a hospital trauma center. Sometime after the incident,
defendant told Taylor that he wished he had “finished the job” on Aguirre and that
he should have done the job right the first time. Aguirre was a “validated”
associate of the Mexican Mafia, which is a large Hispanic prison gang.
In March 2003, Sheriff‟s Deputy Thomas Davis searched defendant at the
Los Angeles County jail before he was brought to court. Inmates in defendant‟s
module were segregated so that they did not come into contact with other inmates
and Davis was looking for, among other things, any notes that could be passed to
other inmates during their transportation to court. During his search, Davis found
a handwritten note at the bottom of a page of transcript. The note read, “Breezo is
a rat . . . . Breezo and Marlo need to die.” It was signed with defendant‟s gang
moniker and other gang terms. According to Lompoc Police Officer Harry Heidt,
who had been assigned to investigate the 1997 robbery and murder at the
Vandenberg Federal Credit Union, the transcript on which the note was written
was of a telephone conversation Heidt had in December 1997 with Sabrina
24
Johnson, known as “Breezo,” regarding the conversation that had taken place at
her apartment between defendant, Bowen, and Fennelle. (Fennelle had testified
that the conversation concerned defendant and Bowen‟s plan to commit an armed
bank robbery.) Heidt understood the term “rat” to refer to an informant or
“snitch” and believed that the writer of the note wanted to have Johnson killed.
Defendant‟s mail was monitored while he was in the Los Angeles County
jail. Several letters were confiscated. In those letters, defendant referenced his
robbery of a credit union, his cutting of a “white boy with a razor blade in the
face” while in custody, and his serious cutting and beating of “a Mexican” in
January 2003 while in lockup.
2. Evidence submitted in aggravation under factor (c) of section 190.3
In September 1993, defendant was convicted of discharging a firearm with
gross negligence. (§ 246.3.) He received a sentence of 16 months in prison.
Defendant was paroled one year later, on September 3, 1994 — four days before
the murders of Hicks, Boyd, and Armstrong.
3. Aggravating evidence of victim impact
a. Dayland Hicks
Dayland Hicks was 22 years old when he was killed. His uncle, Gregory
Shoaf, testified that Hicks was respectful, quiet, good-natured, and “very lovable.”
He liked to play basketball, football, and video games. He enjoyed dancing,
rapping, singing, and going to church. He was learning the Bible and taking “his
life in that direction.” Shoaf believed Hicks was on the right path, but never had
the chance to straighten his life out. Shoaf loved Hicks like his own son. Shoaf
was in shock when he received the news that Hicks had been killed. The hardest
thing Shoaf had to do was tell Hicks‟s sister Jamise that her brother was dead.
Hicks and Jamise were very close and Jamise had no family left after Hicks‟s
25
death, other than Shoaf and his family, because her mother and father had both
died earlier. Shoaf testified that he thought about Hicks every day and missed his
smile and the things they did together. Shoaf tried to look out for Hicks‟s son,
who was four or five months old when Hicks was shot, but he knew he would
never replace Hicks. Hicks‟s death also “took a toll” on his grandmother.
Jamise Shoaf testified that she was nine years old when her brother was
killed. She cried when she was told of his death and it left her with an empty
feeling. He was her only sibling, and it was hard to go on without him. She
testified that she thought about his death every day. She missed his laugh, his
silliness, and watching television with him.
b. Lamar Armstrong
Lamar Armstrong was 19 years old when he was killed. His mother, Doris
Hayes, testified that Armstrong had enjoyed playing football and baseball, running
track, and cooking. He was a good son, worked part time at Home Base, a
building supply store, and was in the process of getting his GED when he was
killed. Doris had difficulty believing Armstrong was actually dead. She could not
plan the funeral, and she suffered from nightmares. She testified that she missed
everything about him. Holidays were particularly difficult. Part of her died when
her son did and she struggled every day.
Dan Hayes, Armstrong‟s stepfather, testified that he raised Armstrong from
the time he was an infant. He described his stepson as a “good kid,” who enjoyed
athletics and things that challenged his mind. Dan had “an empty feeling” when
told at the hospital that Armstrong had died. He testified that it was very difficult
to hold his family together after Armstrong‟s death. According to Dan, his wife
had “problems” on the anniversary of Armstrong‟s death, on his birthday, and on
every holiday. He characterized it as “a nightmare.” He testified that Armstrong‟s
26
two daughters cried on Father‟s Day because they did not understand why they
could not see their father. Dan told the jury that he thought about Armstrong
every day. His death affected not just the immediate family, but the extended
family.
Milika McCoy testified that she was Armstrong‟s girlfriend and was eight
months pregnant when he died. The night before, they had attended a Lamaze
class together. Armstrong had just been promoted in his job, was a very nice
person, and was excited about McCoy‟s pregnancy. McCoy collapsed when she
was told that Armstrong had died after being shot. After his death, she did not
want to wake up in the morning. Her daughter, Cherish, was born a little over a
month later. At the time of trial, Cherish was eight years old. She asked about her
father “all the time” and had difficulty with not having a “daddy.” McCoy,
similarly, had difficulty raising Cherish by herself. McCoy testified that she
thought about Armstrong, her best friend, every time she looks at her daughter.
c. Trevon Boyd
Carolyn Boyd, Trevon Boyd‟s mother, testified that Trevon was 20 years
old when he died. She described him as a beautiful and intelligent person who
enjoyed writing music, sports, fishing, and dancing. When Carolyn learned of her
son‟s death, she felt like a part of her was gone. She could not eat or sleep, and it
was difficult to make the funeral arrangements. Carolyn missed everything about
her son. She testified that her family “will never be whole, . . . again.” Holidays
were difficult, and she thought about her son every day.
Olive Burgess testified that Trevon Boyd was her cousin. According to
Burgess, Boyd was a “sweet kid” growing up in a rough neighborhood. He meant
everything to her. His death made her feel numb and the family still cried at night.
The hardest thing for Burgess to do after Boyd‟s death was to explain it to her
27
children, who were all close to him. They found it difficult to cope with his death,
and she missed his smile and thought of him every day.
4. Mitigating evidence offered by defendant
The defense case in mitigation included evidence of defendant‟s family
history and upbringing, as well as opinion testimony by three expert witnesses
who described for the jury defendant‟s learning disabilities and his psychological,
neurological, and intellectual dysfunction. The defense also presented evidence
that defendant possessed a genetic condition that, when combined with childhood
maltreatment, has been identified as a risk factor for antisocial behavior.
a. Defendant’s upbringing and background
Defendant‟s mother, Pearl Thomas, testified that she had a poor
relationship with her own mother and ran away from home when she was 12 years
old. She got into trouble and was sent to CYA when she was 15. She became a
single mother at the age of 17 when she gave birth to defendant‟s older brother,
who became known as “Big Sonny.” Thomas denied drinking alcohol, but
admitted being a drug user, and taking barbiturates when defendant was
conceived. Defendant‟s father was a professional boxer with whom Thomas had a
short relationship. Defendant‟s father was a heroin addict and was not
significantly involved in defendant‟s life.
When defendant was a toddler, Thomas married Ronald Biggles. He was
abusive to Thomas and often came home drunk. Biggles favored his own daughter
over defendant and Big Sonny. He hit defendant. After Thomas left Biggles, she
lived with James Wright, who disliked and hit defendant. Thomas testified she
also hit and whipped defendant because that was the way she was raised. She did
not know how to be a good mother.
28
Thomas supported her family with public welfare assistance and by
stealing. She estimated that she had been arrested almost 50 times in her life and
she was in and out of custody during defendant‟s childhood. When Thomas was
in prison, defendant sometimes stayed with his grandmother, Amy Parks.
According to Beverly Parks, who was Parks‟s daughter-in-law and defendant‟s
aunt, Parks seemed to hate defendant and his sister Larhonda. She often drank and
became “wild and . . . brutally violent.” Defendant suffered excessive beatings,
almost every day, when he was staying in his grandmother‟s house. Parks also
abused the children by calling them names. One time she scared defendant and
Larhonda by turning off the lights and following them around with a long knife.
She believed in voodoo and performed “curses” on people. She was described as
being “evil” by both Beverly Parks and defendant‟s godmother, Linda Gavin.
Gavin testified that Parks showed her evilness to “anyone she didn‟t like” and she
particularly disliked defendant and his sister Larhonda. According to Gavin, Parks
would sometimes call on the telephone and tell her to come get “these
motherfuckers,” referring to defendant and his sister.
Defendant was an energetic and very hyperactive child. He had learning
disabilities and was sent to special-needs schools. Defendant was prescribed
Ritalin, but his mother took him off the medication. He was bullied and picked
on, particularly by one member of a local Crips gang. Defendant started getting
into trouble at an early age. But one childhood friend of defendant‟s, Reginald
Campbell, recalled an incident in which defendant jumped into the swimming pool
and saved him from drowning.
Several witnesses (Reginald Campbell, Linda Woods, a neighbor who
watched defendant grow up, defendant‟s half sister Ralene, and his aunt Beverly
Parks) testified about the rough neighborhood in which defendant grew up. It was
filled with drugs and numerous gangs, which actively recruited members through
29
violence, including stabbings, carjackings, and shootings. The witnesses
explained that to acquire protection in the neighborhood, a person had to join a
gang. Defendant found protection by joining the Bloods gang to which his
brother, Big Sonny, belonged. Big Sonny was a violent person and well known in
the neighborhood. Defendant, however, idolized him and saw him as a father
figure. Defendant was devastated when Big Sonny was killed in a gang shooting,
which increased his hatred for Crips gang members.
b. Expert witness testimony in mitigation
Dr. Nancy Cowardin, who had a doctorate in educational psychology and
special education, testified as an expert witness regarding learning disabilities.
She assessed defendant by reviewing documents regarding his personal
background, meeting with him and giving him current tests of his skills. She
noted that defendant started needing remedial help in the first grade or shortly
thereafter. He attended special-needs schools in grades eight and nine. In eighth
grade, his individualized education program (IEP) included a dual diagnosis of
being seriously emotionally disturbed and having learning disabilities with
attention deficits. Defendant‟s IEP in ninth grade similarly assessed him as being
seriously emotionally disturbed. According to Cowardin, defendant had a clear
history of attention deficit disorder (ADD). His records from CYA indicated he
was very impulsive and lacked sound decisionmaking skills. Cowardin performed
a complete psychoeducational assessment of defendant and concluded his ADD
was still present in adulthood, but was more subdued. She found that he had an
auditory processing problem that could account for his learning disabilities in
reading and writing at school. As an adult, defendant had improved his reading
and written language scores, but not his math scores. Defendant‟s IQ was exactly
average when verbal and nonverbal scores were combined, but he had large
30
deviations in some of the scores. Cowardin found that defendant had lapses in
mature executive functions that control problem solving, decisionmaking, and
adaptability under stress in typical adults. She concluded that defendant‟s
disability profile may have led to some of his self-control problems.
Dr. Arthur Kowell, a specialist in neurology, evaluated defendant‟s brain
function. He interpreted a brain electrical activity mapping study or “BEAM” test
conducted on defendant in August 2000. Three of the four parts of the test — the
standard electroencephalogram, the electroencephalogram spectral analysis, and
an auditory “evoked potential” test — had normal results. But the visual evoked
potential test showed some abnormal functioning of defendant‟s brain in the
vertex, the right parietal region, and the right frontal region. The vertex deals with
motor behavior and initiation of activity. The right parietal region deals with
sensory functions and the right frontal lobe deals with impulse control and
executive functions. An abnormality in this last area might indicate the individual
has a short temper or possibly a form of ADD. Kowell testified that the test was
nonspecific as to the time of onset and the causation for any abnormality shown
and that the test was not predictive of behavior. But Kowell concluded the test
showed evidence of brain dysfunction.
Dr. Kowell reviewed defendant‟s medical records, which included two
positron emission tomography (PET) scans and a magnetic resonance imaging
(MRI) scan of defendant‟s brain. The results of a 1998 PET scan showed
abnormalities, while the results of a followup MRI and a second PET scan in 2000
were normal. Kowell did not consider the latter tests to be inconsistent with his
results. He testified that a neuropsychological workup done by Dr. Kyle Boone in
2002, which he reviewed, showed abnormalities consistent with Kowell‟s testing.
Kowell noted Boone‟s opinion that defendant‟s decisionmaking skills were
comparable to those of someone with mental retardation or borderline intelligence,
31
despite defendant‟s otherwise normal intelligence. Kowell stated that, according
to Boone, defendant may lack the essential brain equipment to exert reasoned
control over his behavior. Kowell also reviewed defendant‟s academic records,
mental health records, and court records. He considered the historical evidence
from defendant‟s records to be consistent with his finding of abnormal brain
function in defendant.
Dr. Carl Osborn, a forensic psychologist, testified that scientific studies had
shown that childhood abuse and neglect, i.e., maltreatment, alters the brain
chemistry and functioning in ways that can produce aggressive behavior and that
these changes will persist into adulthood. According to Osborn, it had recently
been shown that there is a powerful association with severe antisocial behavior
later in life when childhood maltreatment combines with the presence of an
inherited type of gene, the 3-repeat allele MAOA gene. Genetic testing of
defendant showed that he had inherited the 3-repeat allele MAOA gene and, in
Osborn‟s opinion, defendant had been severely maltreated as a child. Osborne
testified that the 3 repeat allele MAOA gene is not a genetic defect, but is a risk
factor.
II. DISCUSSION
A. Guilt Phase Issues
1. Background regarding “witness intimidation” comments by the
prosecutor, evidence, and related jury instruction
Dyer and Meeks were eyewitnesses to defendant‟s shooting of Hicks,
Armstrong, and Boyd. But neither Dyer nor Meeks immediately identified
defendant to the police as the shooter. Both refused to cooperate with law
enforcement at various points in time and told investigators that they could not
identify the shooter. In his guilt phase opening statement, the prosecutor
acknowledged that the case had taken a long time to come to trial, but told the jury
32
that the explanation would lie in the evidence of “threats,” “fear,” and
“intimidation” of the witnesses, which would explain their reluctance to come
forward and speak with police. The prosecutor referred to there being in the case a
“theme” of such threats, intimidation, and fear.
The prosecutor elaborated that Dyer was himself a gang member, that he
initially did not want to get involved, and that he came forward and identified
defendant as the shooter only at the urging of the victims‟ family members. The
prosecutor explained that when Dyer was subsequently asked to identify defendant
at a lineup, Dyer was being held in custody with defendant and knew that it was
very dangerous to testify against another inmate. The prosecutor said that Dyer
was frightened and then intimidated when he encountered defendant and was told
by him that defendant had a relative who was a deputy sheriff. According to the
prosecutor, Dyer did not identify defendant in the 1995 lineup and later told lies to
the defense investigator because of his fear. The prosecutor told the jury that
years later, when the investigation was reopened, Dyer “felt bad‟ about not
identifying defendant in 1995 because “the victims were friends of his.” Dyer
revealed to prosecution investigators that he had been threatened and that the
threats and intimidation he felt were the reasons for his earlier refusal to identify
defendant.
Continuing his opening statement, the prosecutor told the jury that Meeks
was very afraid back in 1994 and 1995, consuming a lot of drugs, and hence
reluctant to talk to the police. She did not want to get involved, and did not want
to get Dyer involved. But, the prosecutor explained, Meeks also had a change of
heart. She had been sent to prison on a drug charge and while she was in prison,
she turned her life “completely around.” According to the prosecutor, Meeks
explained to investigating detectives that she felt she had “to do the right thing”
and that she knew who the shooter was because he had been just a few feet away
33
from her. She told investigators that in the past she had been afraid to identify
defendant for several reasons. The prosecutor explained those reasons as follows:
“[Meeks‟s] family had been threatened back in 1994 and 1995. They had found
out — someone had found out her address of her cousin and where her cousin
lived and they received phone calls, and it was made quite clear to her that she
[should] not say anything when she went to court. And she kept that promise until
she went to prison, got off drugs and got back straightening her life up, and now
she has indicated the identification of the defendant.”
The prosecutor further told the jury that “this concept of fear and
retaliation” would also come up with respect to other witnesses. He proceeded to
very briefly describe the anticipated testimony of Johnson and Fennelle. The
prosecutor then warned the jurors that they might see witnesses who might not
want to testify and who were very afraid to testify, but suggested it was “in the
nature of these types of cases.”
2. Defendant’s claims
Defendant complains on appeal that the prosecutor, by these comments,
“poisoned” the jury against a fair assessment of his defense that these witnesses
were not credible. He contends that the prosecutor impermissibly vouched for
Dyer and Meeks when he described their change of heart. And, he argues, the
prosecutor‟s accusations, express and implied, that defendant was involved in this
campaign of intimidation were prejudicial because they were never substantiated.
Embedded in his claims regarding the prosecutor‟s opening statement are
contentions regarding the admissibility of the witness intimidation evidence, the
trial court‟s related consciousness of guilt instruction, and the prosecution‟s
closing argument. By his failure to object and raise the claims he now asserts,
34
defendant forfeited his contentions on appeal. As we explain, they are meritless in
any event.
Most of defendant‟s claims assert prosecutorial misconduct. The principles
of law applicable to a defendant‟s claims of prosecutorial misconduct are well
settled. “ „ “A prosecutor‟s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make the
conviction a denial of due process. Conduct by a prosecutor that does not render a
criminal trial fundamentally unfair is prosecutorial misconduct under state law
only if it involves the use of deceptive or reprehensible methods to attempt to
persuade either the trial court or the jury.” [Citation.] When a claim of
misconduct is based on the prosecutor‟s comments before the jury, as all of
defendant‟s claims are, “ „the question is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an
objectionable fashion.‟ ” [Citation.] To preserve a claim of prosecutorial
misconduct for appeal, a defendant must make a timely and specific objection and
ask the trial court to admonish the jury to disregard the improper argument.
[Citation.]‟ [Citation.] A failure to timely object and request an admonition will
be excused if doing either would have been futile, or if an admonition would not
have cured the harm.” (People v. Linton (2013) 56 Cal.4th 1146, 1205.)
As the Attorney General notes, defendant never objected at trial to any of
the prosecutor‟s comments that he now asserts are prejudicial. Nothing suggests
an objection would have been futile or an admonition inadequate to cure any harm.
Thus, his claim of misconduct during the opening statement is forfeited. (People
v. Tully (2012) 54 Cal.4th 952, 1011.)
Moreover, the comments were not improper. “The function of an opening
statement is not only to inform the jury of the expected evidence, but also to
prepare the jurors to follow the evidence and more readily discern its materiality,
35
force, and meaning.” (People v. Dennis (1998) 17 Cal.4th 468, 518.) Here, the
prosecutor‟s statements sought to prepare the jurors for the anticipated testimony
of Dyer, Meeks, Johnson, and Fennelle and to offer in advance a possible
explanation for their long delay in cooperating with law enforcement, their
inconsistent statements to investigators, and any current reluctance to testify.
We do not agree with defendant‟s claim that the prosecutor failed to state
the facts correctly or that his comments were unsubstantiated by the evidence
admitted at trial. Dyer testified that he failed to immediately identify defendant as
the shooter because Dyer was himself a gang member and a gang member would
be labeled a “snitch” if he spoke to the police about a gang-related crime, even if
the crime was committed by a rival gang against the member‟s own gang. Dyer
testified that he was afraid to talk to the police about the shooting, and did not
want to get involved, because people — inferentially other gang members —
would try to hurt him. Defendant concedes that this testimony was admissible.
Dyer testified that he changed his mind about keeping silent after several
family members of Hicks and Boyd convinced him to tell the police what he knew
about the killing of his friends. He identified defendant as the shooter in a
photographic lineup at that time. But he was subsequently taken into custody and
held in the same facility as defendant. Dyer testified that because he was afraid of
what could happen to him in jail if he was labeled a snitch, he did not identify
defendant when he was asked to view a live lineup. He testified that he was later
taken by a sheriff‟s deputy, whom defendant identified as his cousin, to an office
where defendant was waiting. Defendant had a copy of Dyer‟s earlier interview
statement to police identifying defendant as the shooter, which defendant showed
to Dyer. According to Dyer, defendant told him not to say anything and offered to
arrange for Dyer to be transferred to a safe facility as long as Dyer did not identify
defendant as the shooter. Dyer told defendant he had not identified him in the live
36
lineup and assured defendant he did not intend to “tell on [him].” Dyer testified
that he was concerned that if his interview statement “[got] around the jail” he
could be hurt or killed and he knew he could not cooperate with the prosecution
once he was incarcerated. According to Dyer, he received threats both before and
after the lineup. During the time he remained in custody, including the time he
spent at a CYA facility, Dyer continued to deny knowledge of the shooting.
Defendant did not object to the admission of Dyer‟s testimony, which in
any event was properly admitted at trial. “As we have recognized, „[e]vidence that
a witness is afraid to testify or fears retaliation for testifying is relevant to the
credibility of that witness and is therefore admissible. [Citations.] An explanation
of the basis for the witness‟s fear is likewise relevant to [his] credibility and is
well within the discretion of the trial court. [Citations.]‟ ” (People v. Mendoza
(2011) 52 Cal.4th 1056, 1084.) Dyer‟s testimony substantiated the prosecutor‟s
opening comments.
Defendant claims, however, that the prosecutor‟s comments were
inaccurate and prejudicial because Dyer never testified that he was intimidated by
defendant before he failed to identify defendant in the live lineup, and in
defendant‟s view, any fear Dyer felt was not due to defendant‟s action or any
action authorized by him. It was unnecessary, however, for Dyer‟s fear to be
directly linked to defendant in order for it to be admitted for purposes of assisting
the jury in determining his credibility. (People v. Williams (2013) 58 Cal.4th 197,
270; People v. Mendoza, supra, 52 Cal.4th at p. 1087.) We find People v. Hannon
(1977) 19 Cal.3d 588 and People v. Weiss (1958) 50 Cal.2d 535, on which
defendant relies, to be distinguishable on this ground. (People v. Abel (2012) 53
Cal.4th 891, 924-925.)
Furthermore, although it appears that Dyer‟s fear was partially due to the
general risk of gang retaliation and retribution from other inmates if he cooperated
37
with law enforcement and identified defendant as the shooter, Dyer also testified
that he was intimidated and frightened by defendant directly. Specifically, Dyer
testified that he was brought by a sheriff‟s deputy, whom defendant identified as
his cousin, to an office in the jail to meet with defendant. Dyer testified that
defendant had in his possession and showed Dyer a copy of Dyer‟s previous
interview statement to police. Defendant then offered to arrange a transfer for
Dyer to a safe facility if Dyer continued to keep silent about what he witnessed.
Implied in this encounter was a threat by defendant to publicize Dyer‟s police
interview statement to the inmate population, thereby labeling him as a snitch, if
Dyer did not maintain his silence. Defendant‟s actions and comments also
emphasized to Dyer the risk of any return to cooperation with law enforcement
and intimated that he (defendant) had power over Dyer‟s movements, housing and
safety while Dyer was in custody. Contrary to defendant‟s claim, the jury could
determine from Dyer‟s testimony that defendant successfully intimidated and
frightened Dyer. Defendant‟s direct involvement in persuading Dyer of the risk of
being a witness distinguishes the circumstances of this case from Dudley v.
Duckworth (7th Cir. 1988) 854 F.2d 967, on which defendant relies because
Dudley involved third party threats unconnected to the defendant. (See People v.
Williams (1997) 16 Cal.4th 153, 212.) In anticipation of Dyer‟s admissible
testimony, the prosecutor‟s opening statement did not improperly connect
defendant to Dyer‟s fear.
In a related claim, defendant complains of the prosecutor‟s closing
argument referencing defendant‟s threats and intimidation of Dyer in jail and
Dyer‟s fear of retaliation while he was being held in custody. His failure to object
forfeited his claim, which is also meritless. Because the evidence was properly
admitted, the prosecutor‟s closing argument constituted fair comment on the
38
evidence and fell within the permissible bounds of argument. (People v. Williams
(2013) 56 Cal.4th 630, 674.)
We likewise reject defendant‟s further related contention that his right to
due process was violated when the trial court instructed the jury with the
consciousness of guilt instruction, CALJIC No. 2.06. The testimony of Dyer
regarding his meeting with defendant in jail supported the use of CALJIC
No. 2.06, which informed the jury that if it found defendant attempted to suppress
evidence against himself, “such as by the intimidation of a witness,” it could
consider that as a circumstance tending to show consciousness of guilt.
We also find no impropriety in the prosecutor‟s opening comments
regarding Meeks. Defendant did not object to the evidence that Meeks was afraid
to cooperate with police because of her concern for her own and her family‟s
safety. Like the testimony of Dyer, her testimony was admissible in any event
because it was relevant to her credibility. Again, contrary to defendant‟s
argument, it was unnecessary for the prosecution to establish that defendant was
connected to the phone call to Meeks‟s family warning Meeks to keep silent in
order for Meeks‟s testimony concerning the phone call to be admissible. (People
v. Williams, supra, 58 Cal.4th at p. 270; People v. Mendoza, supra, 52 Cal.4th at
p. 1087.) Because the prosecutor could in good faith anticipate the admission of
supporting testimony, the prosecutor was entitled to comment in his opening
statement on Meeks‟s fear of retaliation.
We reject defendant‟s additional claim that the prosecutor impermissibly
vouched for the credibility of Dyer and Meeks in his opening statement by
asserting that they “had” changed their lives, instead of stating that they “claimed”
to have changed their lives. The prosecutor‟s comments appropriately anticipated
the testimony of Dyer and Meeks and there is no reasonable likelihood that the
jury would have understood the comments as vouching for these witnesses‟
39
credibility based on the prosecutor‟s personal belief. (People v. Martinez (2010)
47 Cal.4th 911, 958 [a prosecutor “may not vouch for the credibility of a witness
based on personal belief or by referring to evidence outside the record”].)
In another challenge to the prosecution‟s use of evidence of witness
intimidation and fear of retaliation, defendant contends that the trial court erred in
admitting evidence that special precautions had been taken to protect witnesses
Johnson and Fennell during and after defendant‟s trial because there was no
evidence defendant was threatening or intimidating them. Defendant failed,
however, to object on this ground, which would properly have been overruled in
any case. Johnson and Fennelle, both former gang members who were
incarcerated at the time of trial, agreed to testify against defendant, their former
friend and fellow gang member. Their willingness to do so despite a legitimate
basis for concern about their safety enhanced their credibility. (People v. Green
(1980) 27 Cal.3d 1, 20; see People v. Verdugo (2010) 50 Cal.4th 263, 285.)
Again, there was no need for evidence directly linking defendant to the
prosecution‟s concern for their safety in order to establish admissibility. (People
v. Williams, supra, 58 Cal.4th at p. 270; People v. Mendoza, supra, 52 Cal.4th at
p. 1087.)
Defendant has failed to show any error in the prosecution‟s introduction of
and comment on evidence of witness intimidation and fear of retaliation. Nor was
there any instructional error related to such evidence.
B. Penalty Phase Issues
1. Admission of victim impact testimony relating to aggravating
evidence of uncharged crimes
Over defense objection, a number of the victims of the uncharged robberies
committed by defendant and his companions were allowed to testify regarding the
impact of those crimes on their lives. Melissa Lopez testified to the traumatic
40
effect on her of the robbery of the Pacific Marine Credit Union. Jasper Altheide
and Moira Philley, two of the tellers at the Vandenberg Federal Credit Union,
testified to the continuing negative impacts on their lives, not only from the
robbery but also from witnessing the killing of Christine Orciuch. In addition to
the robbery victims, Orciuch‟s son Quentin testified to the painful effects on him
caused by his mother‟s sudden death at the credit union. Orciuch‟s husband
Chester likewise testified about the suffering he and his family experienced as a
result of his wife‟s death. He described the difficulties he faced as a single parent
and the residual emotional effect on him of her death.
Defendant recognizes that we have held that victim impact evidence related
to a defendant‟s uncharged crimes is admissible under section 190.3, factor (b).
(People v. Brady (2010) 50 Cal.4th 547, 581-582; People v. Bramit (2009) 46
Cal.4th 1221, 1241; People v. Demetrulias (2006) 39 Cal.4th 1, 39.) He asks us,
however, to revisit the issue in light of Payne v. Tennessee (1991) 501 U.S. 808.
Defendant fails to persuade us that there is reason to do so. “Under Payne, victim
impact testimony is unconstitutional when it is „so unduly prejudicial that it
renders the trial fundamentally unfair . . . .‟ ” (People v. Montes (2014) 58 Cal.4th
809, 884.) The circumstances of defendant‟s uncharged violent criminal conduct,
including its direct impact on the victims of that conduct, was relevant to the
jury‟s penalty determination and its admission did not render defendant‟s trial
constitutionally unfair.
2. Alleged prosecutorial misconduct in penalty phase closing
arguments
Defendant contends the prosecutor committed prejudicial misconduct
during his closing argument in the penalty phase by (1) suggesting that the
testimony of Beverly Parks regarding the childhood abuse of defendant by his
grandmother was unreliable because defendant‟s sisters did not testify and confirm
41
such abuse, and (2) arguing that a verdict of life without the possibility of parole
would reward defendant with a “freebie” for Orciuch‟s death and the other
aggravating crimes. We reject defendant‟s claims.
We earlier set forth the applicable standard of review for claims of
prosecutorial misconduct at the guilt phase. (See ante, pt. II.A.2.) The same
standard applies to asserted misconduct at the penalty phase. (People v. Lopez
(2013) 56 Cal.4th 1028, 1075.)
a. Prosecutor’s argument regarding defendant’s mitigating
evidence of childhood abuse by his grandmother
Defendant presented evidence in mitigation that when he stayed as a child
with his maternal grandmother, Amy Parks, he was verbally and physically abused
by her. During closing argument, the prosecutor told the jury that he found it
interesting that defendant‟s aunt, Beverly Parks, was the only person in the
household who came into court to testify that the grandmother beat defendant.
The prosecutor argued that Beverly Parks was a woman “who [did not] like the
grandmother to begin with” and that she was, therefore, “somewhat of a suspect
witness.” The prosecutor asked the jury to consider her demeanor during her
testimony and asserted that “[s]he testified to a few things that she didn‟t even
observe, that she had heard, but you saw her answers, so you have to weigh how
much that evidence really means and you also have to consider the fact that no one
else from that household — her daughters, Mrs. Parks‟s daughters didn‟t testify
and they were there. Jimmy Parks, her husband, didn‟t testify, and he could have
testified that the grandmother beat on defendant, nor did any of the defendant‟s
sisters testify that the grandmother mistreated the defendant.” Acknowledging
that it was up to the jury to evaluate the testimony, the prosecutor explained he
was pointing this out “because I think there is a certain suspicion you should have
42
regarding that testimony, especially in light of all the other witnesses that could
have testified.” Defendant did not object to any of these comments.
After the jury reached a verdict of death, defendant filed a motion for a new
penalty phase trial. He contended, in part, that he was entitled to a new trial
because the prosecutor argued that defendant‟s sisters failed to corroborate the
testimony of Beverly Parks when in fact the prosecutor was in possession of
reports of interviews that defendant‟s sisters gave to defense investigators, which
verified the abuse of defendant by their grandmother. Copies of the reports were
attached to the motion and at the hearing on the motion, the prosecutor stipulated
that the reports were received by his office as part of discovery. The trial court
denied the new trial motion, concluding that any error that may have occurred in
the prosecutor‟s argument would not have affected the outcome of the case in light
of the circumstances of the crimes and the additional evidence in aggravation.
Defendant now reasserts his contention that the prosecutor committed
prejudicial misconduct by knowingly arguing a false inference that defendant‟s
sisters would not have confirmed their grandmother‟s abuse of defendant had they
testified. He relies on, among other cases, Berger v. United States (1935) 295 U.S.
78, 88, People v. Hill (1998) 17 Cal.4th 800, 829, and United States v. Blueford
(9th Cir. 2002) 312 F.3d 962. Defendant claims that the prosecutor‟s comments
purported to tell the jury why these sisters were not called as witnesses by the
defense and what their testimony would have been, thereby depriving defendant of
his Sixth Amendment right to confront and cross-examine witnesses. (People v.
Gaines (1997) 54 Cal.App.4th 821, 825.)
Defendant failed to object and request an admonition regarding these
comments at trial. Nothing in the record suggests that an objection would have
been futile or that an admonition would have failed to cure any harm. We
conclude, therefore, that defendant forfeited his challenges to these comments.
43
(People v. Linton, supra, 56 Cal.4th at p. 1205; People v. D’Arcy (2010) 48
Cal.4th 257, 289-290 [the failure to object on the basis of the 6th Amend. forfeits
the constitutional objection].)
Moreover, we agree with the trial court that it is not necessary to determine
whether the prosecutor‟s comments were improper because even assuming, solely
for purposes of argument, that they were, defendant was not prejudiced thereby.
First, there was other evidence that tended to bolster Beverly Parks‟s credibility,
diminishing the likelihood that the jury would discount her testimony on the
grounds suggested by the prosecutor. Specifically, defendant‟s godmother
testified about the grandmother‟s “evilness” and corroborated Beverly Parks‟s
description of the grandmother‟s verbal abuse of defendant and his sister
Larhonda. Second, defendant submitted evidence of other serious physical
mistreatment that he received during childhood at the hands of his mother, his
mother‟s husband and his mother‟s boyfriend. And finally, the circumstances of
the triple murder were egregious and the additional evidence in aggravation was
extensive. In light of the totality of the evidence before the jury, we agree with the
trial court that there was no reasonable possibility the jury would have reached a
more favorable verdict in the absence of this argument. (People v. Gonzales
(2011) 51 Cal.4th 894, 953 [the reasonable possibility standard of prejudice
applies to the evaluation of the effect of improper argument at the penalty phase].)
b. Prosecutor’s argument that murder of Orciuch would be a
“freebie” if the jury did not return a verdict of death
Defendant contends that the prosecutor committed prejudicial misconduct
in the penalty phase by arguing that a death verdict was required in order to punish
defendant for the murder of Christine Orciuch during the Vandenberg Federal
Credit Union robbery, and that a verdict of life without the possibility of parole
would reward defendant with a “freebie” for Orciuch‟s death and the other
44
aggravating crimes. Defendant asserts that aggravating evidence of a defendant‟s
other violent conduct is admitted under section 190.3, factor (b), not to punish the
defendant for the factor (b) conduct, but to help the jury determine the appropriate
penalty for the special circumstance murder. Moreover, he alleges, the prosecutor
knew it was false to imply defendant would escape punishment for the murder of
Orciuch because the prosecutor was aware that defendant had been convicted of
that crime and received a sentence of life without the possibility of parole. Some
additional background is necessary to properly consider defendant‟s contentions.
The prosecutor started his closing remarks with an overview of the penalty
issue before the jury. The prosecutor then discussed his view of the statutory
mitigating factors, which he contended were either inapplicable or lacked
persuasive support. Moving on to the aggravating factors, the prosecutor started
with section 190.3, factor (a), emphasizing how horrible were the execution-style
murders committed by defendant. He noted that once defendant murdered Hicks
and Boyd, the penalty that defendant faced was either life in prison without the
possibility of parole or the death penalty. The prosecutor characterized a sentence
of life without the possibility of parole as the minimum sentence and urged the
jury to reach a death verdict, contending that the circumstances of the killing of
Hicks and Boyd were in themselves “substantial enough to outweigh the
mitigating factors.” The prosecutor argued that if, however, the jury determined
that the circumstances of the two murders were not enough to warrant a death
sentence, there was the third murder to consider. The prosecutor contended that
defendant deserved additional punishment for Armstrong‟s murder and asked the
jury not to treat Armstrong‟s murder as “a freebie.”
The prosecutor then turned to discuss defendant‟s attempted murder of
Hernandez and carjacking of Gonzalez, arguing that if the jury was not convinced
45
defendant deserved the death penalty for the three earlier murders, these additional
crimes justified a death verdict.
The prosecutor next reviewed the evidence of defendant‟s felony conviction
and his other violent crimes, including the two credit union robberies, emphasizing
that defendant repeatedly engaged in criminal conduct when he was incarcerated
and soon after each time he was released. In the course of summarizing the
evidence of the Vandenberg Federal Credit Union robbery and discussing
defendant‟s responsibility for the crimes directly committed by his companions,
the prosecutor stated the following: “I will stop at this point again and say the
same thing I said earlier. If all the previous aggravating evidence doesn‟t
outweigh the mitigating evidence, another robbery and another murder certainly
do. And if you choose the other direction, then you are basically saying this is a
freebie, we are not going to impose any additional punishment on this defendant
for the murder of Christine Orciuch. We are still going to give him life in prison
without the possibility of parole. This is a freebie.” The prosecutor then resumed
review of defendant‟s other violent criminal conduct, focusing on his conduct
while he was held in custody. Going back to “the same theme” he mentioned
before, the prosecutor argued in summary that “all these other additional crimes,
the additional crimes that — of the robberies, the carjackings, the other bank
robberies, all of these are just additional, . . . additional, additional and additional
crimes. And if you are to decide that life without the possibility of parole is the
correct verdict, you are basically going to say, as I mentioned before, this is a
freebie, the defendant gets this free. The murder of Christine Orciuch, we are just
going to ignore that.” The prosecutor emphasized that the aggravating evidence
reflected “a collage of an extremely violent history, violence and greed” and
argued that defendant did not deserve the jury‟s sympathy or mercy. Throughout
46
his argument, the prosecutor continued to use the language of comparison and
weight of the circumstances in urging that a death verdict was justified. (§ 190.3.)
In his final argument, the prosecutor again addressed the mitigating
evidence presented by defendant and urged the jury to conclude that it did not
establish that defendant deserved sympathy. He repeated that defendant was
eligible for the death penalty because he had committed two murders and claimed
that the defense wanted the jury to ignore all the other aggravating evidence. The
prosecutor asserted that the defense “wants to say, no, just give him the minimum,
just give him a freebie, give him a freebie on the third murder, on the attempted
murders, on the robberies, on all of the other crimes of violence, we are not going
to punish you anymore. We will just stop at the two murders.” The prosecutor
concluded by urging the jury to impose the death penalty as the “fair” and “just”
penalty that defendant deserved.
Defendant did not object to the prosecutor‟s arguments, including any of
the “freebie” comments. Defendant raised this claim of prosecutorial misconduct
only in his postverdict application for a new trial, which, as mentioned earlier, the
trial court denied. Once again, defendant has forfeited the claim on appeal by
failing to timely object and request an admonition from the trial court. (People v.
Linton, supra, 56 Cal.4th at p. 1205.) Moreover, we are not persuaded that the
prosecutor committed misconduct in his argument, or that, if any misconduct
occurred, it was prejudicial.
“ „To prevail on a claim of prosecutorial misconduct based on remarks to
the jury, the defendant must show a reasonable likelihood the jury understood or
applied the complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer” that the jury drew
the most damaging rather than the least damaging meaning from the prosecutor‟s
statements.‟ ” (People v. Dykes (2009) 46 Cal.4th 731, 771-772.) Here, the
47
prosecutor‟s lengthy argument, viewed as a whole, built on defendant‟s eligibility
for a death sentence after his commission of the murders of Hicks and Boyd. It
essentially contended that defendant deserved the death penalty for the charged
triple murders because of the totality of the circumstances of the killing of Hicks,
Boyd, and Armstrong when considered in light of all the aggravating evidence of
defendant‟s violent conduct before and after those three murders. (People v.
Stanley (1995) 10 Cal.4th 764, 822.)
We have recognized as appropriate a similar prosecutorial argument urging
that three murders warranted a death verdict to avoid a “freebie” for the third
murder. (People v. Rogers (2009) 46 Cal.4th 1136, 1174 & fn. 23.) Defendant
contends, however, that “[w]hile it may be appropriate to make such a freebie
argument with regard to a third murder directly committed by a defendant . . . , it
is improper to make this „freebie‟ argument with regard to factor (b) crimes, as the
prosecutor did here.” Although it is possible a prosecutor‟s use of the term
“freebie” in connection with section 190.3, factor (b), evidence might in a
particular case mislead a jury regarding its proper focus under section 190.3 in
reaching a penalty verdict, and a prosecutor should be particularly careful in this
regard, we are not convinced the prosecutor‟s argument in this case crossed the
line into misconduct. In the context of the entirety of the prosecutor‟s argument,
the jury would likely have understood him to be contending that when defendant‟s
involvement in the Vandenberg Federal Credit Union robbery and murder of
Orciuch and the other factor (b) evidence was added to the jury‟s consideration of
the appropriate penalty for the three murder convictions, a death verdict was all
the more warranted — not that it was the jury‟s responsibility to impose separate
punishment on defendant for Orciuch‟s murder.
Furthermore, here the jury was instructed about how to properly evaluate
the evidence submitted in aggravation and mitigation. (CALJIC Nos. 8.85, 8.87,
48
8.88.) The jury also was instructed that in the penalty phase of trial it could be
influenced by pity or sympathy for defendant, allowing the jury to view
defendant‟s mitigating evidence as compassionately as it wished. The jury was
specifically told that statements made by the attorneys during the trial do not
constitute evidence, and that it must accept and follow the law as stated by the trial
court. (CALJIC Nos. 1.02, 8.84.1.) We presume the jury followed the trial
court‟s instructions. (People v. Harris (2013) 57 Cal.4th 804, 852.) And we
conclude that in light of the totality of the evidence presented at the penalty phase,
there is no reasonable possibility that the jury would have returned a different
penalty verdict absent the prosecutor‟s “freebie” argument concerning Orciuch‟s
murder. (People v. Gonzales, supra, 51 Cal.4th at p. 953.)
3. Alleged penalty phase instructional errors
a. Instructing the jury with CALJIC No. 8.85
CALJIC No. 8.85 instructs the jury regarding the aggravating and
mitigating factors listed in section 190.3, factors (a) through (k), which, if
relevant, the jury must consider in deciding the penalty to be imposed on a capital
defendant. Defendant asserts the instruction is constitutionally flawed because (1)
it fails to instruct the jury as to which of the listed sentencing factors may be
considered aggravating and which may be considered mitigating and (2) it uses the
restrictive modifiers “extreme” and “substantial” in describing the sentencing
factor of defendant‟s mental or emotional disturbance. As defendant recognizes,
we have repeatedly rejected these contentions. (See e.g., People v. Lindberg
(2008) 45 Cal.4th 1, 50-51; People v. Farnam (2002) 28 Cal.4th 107, 191-192.)
Defendant fails to persuade that reconsideration is necessary on the ground that
our previous cases have failed to adequately address his arguments. (See, e.g.,
People v. Rodriguez (2014) 58 Cal.4th 587, 649 [“[T]he catchall instruction
49
permits the jury to consider any evidence the defendant offers in mitigation,
including any lesser mental or emotional disturbance”]; People v. Dickey (2005)
35 Cal.4th 884, 928 [“[T]he aggravating or mitigating nature of the factors is self-
evident within the context of each case”].)
b. Instructing the jury with CALJIC No. 8.88
The jury was given CALJIC No. 8.88 concerning how to consider and
weigh the mitigating and aggravating evidence. Defendant claims the instruction
violated his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to
the federal Constitution. As defendant concedes, we have previously considered
and rejected these arguments. We do so again because defendant fails to persuade
us that our prior decisions were erroneous.
Thus, we repeat that CALJIC No. 8.88 is not “ „unconstitutional for failing
to require the jury to return a verdict of life should it determine the mitigating
circumstances outweigh the aggravating ones.‟ ” (People v. Suff (2014) 58 Cal.4th
1013, 1078; accord, People v. Hovarter (2008) 44 Cal.4th 983, 1028.) The
instruction “is not constitutionally defective for failing to inform the jury that it
has the discretion to impose a sentence of life without the possibility of parole
even in the absence of mitigating circumstances.” (People v. Linton, supra, 56
Cal.4th at p. 1211.) CALJIC No. 8.88 “is not overly vague for using the words „so
substantial‟ as a modifying phrase.” (People v. Hovarter, supra, at p. 1028.) The
instruction “is not flawed for providing that the jury should choose the penalty that
is „warranted‟ rather than „appropriate.‟ ” (Ibid.)
CALJIC No. 8.88 is not flawed for failing to assign to the People the
burden of proving beyond a reasonable doubt the existence of an aggravating
factor or that the aggravating factors outweigh the mitigating factors. (People v.
Manibusan (2013) 58 Cal.4th 40, 100.) The high court‟s decisions in Jones v.
50
United States (1999) 526 U.S. 227, Apprendi v. New Jersey (2000) 530 U.S. 466,
and Ring v. Arizona (2002) 536 U.S. 584, do not change this conclusion. (People
v. DeHoyos (2013) 57 Cal.4th 79, 149-150; People v. Salcido (2008) 44 Cal.4th
93, 167.) The instruction is not unconstitutional for failing to require juror
unanimity on aggravating factors. (People v. Moon (2005) 37 Cal.4th 1, 43.) The
United States Supreme Court‟s Apprendi line of decisions does not compel a
different result. (People v. Blair (2005) 36 Cal.4th 686, 753.) The instruction is
not unconstitutional for failing to inform the jury that the prosecution bears some
burden of persuasion at the penalty phase. (People v. Manibusan, supra, at
p. 100.) “[I]t is settled that „the trial court need not and should not instruct the jury
as to any burden of proof or persuasion at the penalty phase.‟ ” (People v. Butler
(2009) 46 Cal.4th 847, 874.) The trial court was not required to instruct the jury
that the defendant bears no burden to prove mitigating factors or that it need not be
unanimous in finding the existence of any mitigating factor. (People v. Riggs
(2008) 44 Cal.4th 248, 328.) “[T]he jury need not be told that there is no burden
of proof at the penalty phase” (People v. Contreras (2013) 58 Cal.4th 123, 172)
and the lack of such an instruction is not structural error. (People v. Moon, supra,
at p. 44.)
Defendant‟s assertion that CALJIC No. 8.88 improperly reduced the
prosecution‟s burden of proof below that required by section 190.3 does not raise a
claim distinct from those we reject above. (People v. Suff, supra, 58 Cal.4th at
p. 1078; People v. Moon, supra, 37 Cal.4th at p. 43.)
“The absence of written or other specific findings by the jury regarding
aggravating factors did not deprive defendant of his federal due process and
Eighth Amendment rights to meaningful appellate review, violate equal protection
of the laws or violate defendant‟s Sixth Amendment right to trial by jury.”
(People v. DeHoyos, supra, 57 Cal.4th at p. 150.)
51
“The trial court‟s failure to inform the jury that there is a presumption of
life does not violate a defendant‟s constitutional rights to due process, to be free
from cruel and unusual punishment, to a reliable determination of his sentence,
and to equal protection of the law under the Fifth, Eighth and Fourteenth
Amendments to the federal Constitution.” (People v. McKinnon (2011) 52 Cal.4th
610, 698.)
c. Failing to instruct the jury about the meaning of life without the
possibility of parole
Defendant argues that neither CALJIC No. 8.88 nor any other instruction
informed the jury that a sentence of life without the possibility of parole meant
defendant would never be considered for parole. He maintains that the trial court
had a duty to instruct on its own motion concerning “the true meaning of this
sentence.” “We repeatedly have held, however, that trial courts are not required
— either upon request, or on the court‟s own motion — to instruct that a sentence
of life without possibility of parole will inexorably be carried out, because such an
instruction would be an incorrect statement of the law. [Citations.] We likewise
have rejected the suggestion that Simmons v. South Carolina (1994) 512 U.S. 154,
and its progeny mandate such an instruction. [Citations.]” (People v. Whalen
(2013) 56 Cal.4th 1, 88.) We have held that CALJIC No. 8.84, which was given
in this case, adequately informs the jury that a defendant sentenced to life without
the possibility of parole is ineligible for parole. (People v. Duenas (2012) 55
Cal.4th 1, 28.) We are not persuaded to revisit these prior holdings.
4. Cumulative effect of guilt and penalty phase errors
Defendant contends that the cumulative effect of the guilt and penalty phase
errors requires reversal of the judgment. We have concluded that defendant
forfeited many of his claims of error. In any event, we have either rejected the
merits of defendant‟s claims or found that any error, assumed solely for purposes
52
of argument, was harmless. We now conclude there is no cumulative effect of
error requiring reversal of the judgment. (People v. Panah (2005) 35 Cal.4th 395,
479-480.)
5. Constitutionality of California’s capital sentencing statutes
Contrary to the claim of defendant, “ „California does not employ the death
penalty as a “ „regular punishment for substantial numbers of crimes‟ ” [citation],
and its imposition does not violate international norms of decency or the Eighth
Amendment‟s prohibition against cruel and unusual punishment.‟ ” (People v.
DeHoyos, supra, 57 Cal.4th at p. 151.) And “ „[r]eview for intercase
proportionality‟ is not required by the federal Constitution.” (Ibid.)
6. International Law
Defendant contends imposition of the death penalty violates international
law and asks us to reconsider our previous rejection of this claim. We decline to
do so and repeat that “California‟s death penalty law does not violate international
law. We reach this conclusion taking into consideration defendant‟s assertions
that the International Covenant on Civil and Political Rights binds state courts and
that international legal norms are among the evolving standards of decency used to
define the scope of the Eighth Amendment to the federal Constitution. [Citation.]”
(People v. Duenas, supra, 55 Cal.4th at p. 28.)
53
III. DISPOSITION
The judgment is affirmed in its entirety.
CANTIL-SAKAUYE, C. J.
WE CONCUR:
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
LIU, J.
YEGAN, J.*
*
Associate Justice of the Court of Appeal, Second Appellate District,
Division Six, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
54
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Adams
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S118045
Date Filed: October 30, 2014
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Lance A. Ito
__________________________________________________________________________________
Counsel:
Ronald F. Turner, under appointment by the Supreme Court, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters,
Assistant Attorney General, Jaime L. Fuster and Colleen M. Tiedemann, Deputy Attorneys General, for
Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Ronald F. Turner
321 High School Rd. NE, Suite D3, PMB 124
Bainbridge Island, WA 98110
(916) 396-6412
Colleen M. Tiedemann
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 576-1334
2
Opinion Information
| Date: | Docket Number: |
| Thu, 10/30/2014 | S118045 |
