Citation 50 Cal. 4th 547, 236 P.3d 312, 113 Cal. Rptr. 3d 458
People v. Brady
Filed 8/9/10
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S078404
v.
ROGER HOAN BRADY,
Los Angeles County
Defendant and Appellant.
Super. Ct. No. YA020910
____________________________________)
A jury convicted defendant Roger Hoan Brady of the first degree murder of
Officer Martin Ganz of the Manhattan Beach Police Department. (Pen. Code,
§§ 187, subd. (a), 189.)1 It found true special circumstance allegations that the
murder was committed against a peace officer engaged in the performance of his
duties (§ 190.2, subd. (a)(7)) and for the purpose of avoiding or preventing a
lawful arrest (id., subd. (a)(5)); it also found true a special circumstance allegation
that defendant had previously been convicted of murder (id., subd. (a)(2)). The
jury further found that defendant had personally used a firearm in the commission
of the offense. (§ 12022.5, subd. (a).) The jury returned a verdict of death. The
trial court denied the automatic application to modify the verdict (§ 190.4, subd.
(e)) and sentenced defendant to death.
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgment.
DISCUSSION
I. GUILT PHASE
A. Facts
1. Prosecution Evidence
On the evening of December 27, 1993, Officer Martin Ganz of the
Manhattan Beach Police Department was on patrol duty in a marked police
vehicle. He was wearing his patrol uniform, which was dark blue or black, and a
badge. Ganz‟s 12-year-old nephew, Don Ganz (Don),2 accompanied him on a
department sanctioned “ride along.” During the shift, Officer Ganz stopped
numerous motorists for routine traffic violations; he also showed Don how to use
the police radio.
About 11:00 p.m., while stopped at a traffic signal, Officer Ganz noticed on
the opposite side of the street a small grey or silver car being driven by defendant,
who was on supervised release following a federal prison term and was subject to
the condition that he not possess a firearm or other dangerous weapon. The car
was stopped past the limit line of the crosswalk, partially blocking the intersection.
Officer Ganz activated the patrol vehicle‟s spotlight and shined it on defendant,
and over the vehicle‟s public address system Officer Ganz instructed defendant to
back his car up. Defendant backed up a short distance, but his car was still over
the limit line, so Officer Ganz repeated his instruction to move back. Defendant
again did so, but he still was not behind the limit line.
2
We occasionally refer to various related persons by their first names, not
from disrespect, but to avoid confusion.
2
When the traffic light changed, defendant turned into a shopping mall
parking lot. Officer Ganz drove behind defendant‟s car and activated his patrol
vehicle‟s overhead flashing red and blue lights. Defendant stopped his car in front
of a bank, and Officer Ganz stopped his patrol vehicle about three to four feet
behind defendant. He got out of the patrol vehicle, approached the driver‟s side
window of defendant‟s car, and spoke with defendant for a few minutes. Jennifer
La Fond, who worked at one of the stores in the mall, was driving by as Officer
Ganz walked toward defendant‟s car.
Defendant leaned toward the passenger seat of his car, as if reaching for
something in the glove compartment or on the passenger seat. Don, La Fond, and
several other people at the mall then heard a loud “pop.” Officer Ganz leaned
back, as if something had struck his upper body. He quickly moved backward
toward the patrol vehicle in a crouched position. Defendant, armed with a firearm,
got out of his car and followed approximately six to 12 feet behind Officer Ganz.
When Officer Ganz was near the rear of his patrol vehicle, defendant shot him in
the back. Officer Ganz either fell or dived behind the patrol vehicle. Defendant
walked toward the back of the driver‟s side of the vehicle and, using both hands,
fired again at a downward angle. He then moved back along the driver‟s side of
the patrol vehicle, lowered his body for a few moments, stood up, returned to his
car, and drove away. After Don heard defendant‟s car drive away, he used the
police radio to call for help.
Several bystanders, including Robert Doyle and Jamie Timmons, came to
Officer Ganz‟s aid. Timmons and another mall patron, David Thomas, also used
the police radio to call for help.
Officer Ganz was lying facedown behind the patrol vehicle, with his right
arm pinned beneath his body. He was making gurgling noises and was struggling
3
to breathe and move. Timmons placed Officer Ganz‟s head in her lap to get him
out of the puddle of blood that was choking him.
Officer Timothy Zins of the Manhattan Beach Police Department, who was
on patrol two blocks away, responded to broadcasts requesting help. Within
minutes, other officers arrived and secured the crime scene. Paramedics arrived,
placed Officer Ganz in an ambulance, and transported him to a hospital, where he
later died from his wounds.
About 1:00 a.m. on December 28, 1993, Detective Joseph Raffa of the Los
Angeles County Sheriff‟s Department arrived at the crime scene. He recovered
three spent shell casings; two were near the front of the patrol vehicle, and the
other was near the driver‟s side. Detective Raffa contacted the bank located next
to where Officer Ganz had stopped defendant and obtained a videotape from its
security camera system. He likewise obtained the videotape from another nearby
bank‟s security camera system.
After the shooting, numerous witnesses from the crime scene were
transported to the police station and gave statements. Detective Delores Perales of
the Los Angeles County Sheriff‟s Department and two other officers conducted
the interviews. Don, La Fond, Doyle, Timmons, Thomas, David Brumley (a
passerby), David Sattler (who was in a nearby parking lot), and other witnesses
described defendant, his car, and the events of that night.
Later that day, Solomon Riley, M.D., a deputy medical examiner for the
Los Angeles County Department of Coroner, performed the autopsy. Officer
Ganz had suffered two gunshot entry wounds. One bullet entered the right front
side of Officer Ganz‟s upper chest, passed through the chest wall without entering
the chest cavity, broke the bone in his right upper arm, and exited through the back
of his right arm. The other bullet entered the left side of Officer Ganz‟s face
slightly below his eye, fractured his orbital bone, grazed the front of the left half of
4
his brain, crossed to the right side of his brain, grazed the middle portion of it, and
lodged itself beneath his right ear. In Dr. Riley‟s opinion, such a wound would
have rendered Officer Ganz unconscious in a matter of seconds; he would not
have been able to run a distance of even 20 feet. In addition, Officer Ganz had a
contusion on his back that was consistent with being shot in the back while
wearing a bulletproof vest. Officer Ganz also had numerous abrasions on his skin
that were consistent with his having fallen down, including a cluster of them on
the right side of his forehead and another cluster on the back of his left hand. In
Dr. Riley‟s opinion, Officer Ganz died from the gunshot wound to his head, but he
could not determine which wound had been inflicted first.
The videotapes from the banks‟ security cameras were delivered to an
institute affiliated with the National Institute of Justice. After analyzing the
videotapes, the institute advised police investigators that defendant was driving a
Daihatsu Charade. It also noted that defendant‟s car had sustained damage to its
front right side.
The Los Angeles County Sheriff‟s Department established a “hotline” to
receive information from the public. A tip received on January 20, 1994,
implicated defendant and led to a police search, to which defendant consented, of
defendant‟s bedroom, the common areas of his parents‟ condominium, and his car.
This search did not disclose anything of evidentiary value.
In May of 1994, the investigating detectives showed Don and La Fond
photographic lineups that included defendant‟s picture, but neither identified
defendant as the shooter.
By April 1994, defendant and his parents had moved to Vancouver,
Washington, just over the Oregon state line.
On August 4, 1994, Deputy John Landon of the Washington County,
Oregon, Sheriff‟s Office executed a search warrant on defendant‟s new residence
5
in connection with crimes committed in Oregon. Outside the residence was
defendant‟s Daihatsu Charade, which had damage consistent with that on the car
depicted in the banks‟ videotapes. Inside the residence, Deputy Landon
discovered a locked fireproof box. Defendant‟s parents had never seen this box
before and did not know how to open it.
On August 9, Deputy Larry McKinney of the Washington County, Oregon,
Sheriff‟s Office obtained a warrant to open the box, which contained a
semiautomatic .380-caliber handgun, two ammunition magazines, a box of .380-
caliber ammunition, an envelope, two pairs of gloves, and a knit ski mask. Deputy
Dwight Van Horn of the Los Angeles County Sheriff‟s Department then
performed ballistics tests on defendant‟s and Officer Ganz‟s firearms and
recovered a bullet from the back of Officer Ganz‟s bulletproof vest. Officer Van
Horn determined the bullets recovered from Officer Ganz‟s body and bulletproof
vest had been fired from defendant‟s firearm.
On August 13, La Fond identified defendant in a lineup as the shooter. Don
had initially identified another person from the lineup, but identified defendant
after speaking with one of the investigating detectives. In November 1995, Don
went to Oregon to testify in related proceedings there, saw defendant (who was in
custody), and identified him as the person who had shot Officer Ganz.
2. Defense Evidence
John Gruen, M.D., the director of neurotrauma at the Los Angeles County
and University of Southern California LAC+USC Medical Center, has treated
more than 100 patients with gunshot wounds to the head. Dr. Gruen reviewed
Officer Ganz‟s medical records and Dr. Riley‟s report. In Dr. Gruen‟s opinion,
Officer Ganz could have been shot in the face while standing next to defendant‟s
6
car and then moved to the rear of his patrol vehicle before losing consciousness
without leaving a trail of blood.
Detective Perales testified as to inconsistencies between the percipient
witnesses‟ statements given immediately after the crime and their trial testimony.
For example, contrary to his trial testimony, David Brumley originally told
Detective Perales that he had heard four shots and did not mention seeing
defendant get out of his car. And contrary to his trial testimony, David Sattler
originally told Detective Perales that he was not facing defendant when he heard
two shots and that, when he turned around, the patrol vehicle‟s driver‟s side door
was closed; Sattler also failed to tell Detective Perales that he saw defendant
standing in a “military style position” over Officer Ganz and heard two more
shots, and then saw defendant reach into the patrol vehicle, as if to use the radio.3
3. Multiple-murder Special-circumstance Allegation
At the trial on the multiple-murder special-circumstance allegation, the
prosecution presented evidence that defendant had been convicted of aggravated
murder in Oregon on November 2, 1995. (See p. 24, post.) The trial court took
judicial notice of the fact that aggravated murder in Oregon was equivalent to first
degree murder in California.
Defendant presented no evidence during this phase of the trial.
3
In rebuttal, the prosecution presented testimony from other proceedings
wherein Brumley and Sattler had testified consistently with their testimony in
defendant‟s trial.
7
B. Discussion
1. Exclusion of Evidence of Third Party Culpability
As noted, the Los Angeles County Sheriff‟s Department established a
hotline to receive tips from the public concerning Officer Ganz‟s murder. Of the
more than 2,000 clues that law enforcement received from the public and other
sources (which were then numbered and catalogued), defendant sought to
introduce five at trial: the one that implicated him (clue No. 1270); a confession
(and subsequent recantation) made to a 911 operator on December 28, 1993 (clue
No. 1796); the death of an Asian male who was killed shortly after Officer Ganz‟s
murder when two Palos Verdes Estates police officers tried to apprehend him and
were themselves killed in the attempt (clue No. 1506); reports that an associate of
Jennifer La Fond “resembled” the person depicted in a composite drawing
prepared by witnesses to the shooting (including La Fond) (clue No. 192); and an
unsigned letter claiming responsibility for Officer Ganz‟s murder (no clue
number). Prior to the start of defendant‟s trial, the trial court admitted the clue
implicating defendant and excluded the remaining four clues on relevance
grounds. During her guilt phase closing argument, the prosecutor noted there was
no evidence suggesting that anyone other than defendant had committed Officer
Ganz‟s murder. Defendant now contends the trial court erred by excluding
evidence possibly implicating other suspects.4
4
Defendant here and in a number of other claims urges that the error or
misconduct he is asserting infringed various rights guaranteed by the federal and
state Constitutions. What we stated in People v. Boyer (2006) 38 Cal.4th 412,
441, footnote 17, applies here: “In most instances, insofar as defendant raised the
issue at all in the trial court, he failed explicitly to make some or all of the
constitutional arguments he now advances. In each instance, unless otherwise
indicated, it appears that either (1) the appellate claim is of a kind . . . that required
no trial court action by the defendant to preserve it, or (2) the new arguments do
not invoke facts or legal standards different from those the trial court itself was
(footnote continued on next page)
8
Only relevant evidence is admissible. (Evid. Code, § 350.) Evidence that
raises a reasonable doubt as to a defendant‟s guilt, including evidence tending to
show that another person committed the crime, is relevant. But evidence that
another person had a motive or opportunity to commit the crime, without more, is
irrelevant because it does not raise a reasonable doubt about a defendant‟s guilt; to
be relevant, the evidence must link this third person to the actual commission of
the crime. (See People v. Avila (2006) 38 Cal.4th 491, 577-578.) Evidence that is
relevant still may be excluded if it creates a substantial danger of prejudicing,
confusing, or misleading the jury, or would consume an undue amount of time.
(See Evid. Code, § 352.)
We review for an abuse of discretion a trial court‟s exclusion of evidence.
(People v. Avila, supra, 38 Cal.4th at pp. 577-578.) Applying this standard, we
conclude the trial court did not abuse its discretion in excluding the four clues, as
the proffered evidence suggested no link between the third parties and the actual
perpetration of Officer Ganz‟s murder.
As to clue No. 1796, the caller who confessed to a 911 operator later
recanted, and defendant made no showing that this third party had any connection
to the commission of the crime other than this unsubstantiated and later withdrawn
confession.
(footnote continued from previous page)
asked to apply, but merely assert that the trial court‟s act or omission, insofar as
wrong for the reasons actually presented to that court, had the additional legal
consequence of violating the Constitution. To that extent, defendant‟s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter
instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional „gloss‟ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.”
9
As to clue No. 1506, although several eyewitnesses to Officer Ganz‟s
murder described the assailant as an Asian male and the clue referred to an Asian
male who had killed two members of a nearby police department and was
suspected of committing an armed robbery, no evidence implicated this person in
Officer Ganz‟s murder. Although the man‟s ethnicity and his possible
involvement in an unrelated robbery and killing of other police officers initially
might have suggested some involvement in Officer Ganz‟s murder, defendant
presented no evidence actually linking this person to Officer Ganz‟s murder. (See
People v. Page (2008) 44 Cal.4th 1, 37 [rejecting the defendant‟s claim of third
party culpability, stating, “The flaw in defendant‟s theory is that the proffered
evidence has no tendency to establish any relevant fact.”].)
As to clue No. 192, various individuals did tell the police that an associate
of La Fond “resembled” the composite drawing, but none of the eyewitnesses
(including, notably, La Fond) identified this third party as Officer Ganz‟s
assailant, and La Fond stated that this third person was not involved with Officer
Ganz‟s murder. Moreover, the trial court said it would revisit this matter if, for
example, La Fond testified about this third person, but she did not, and defendant
presented no evidence at trial about her associate.
Finally, the author of the unsigned letter that claimed responsibility for
Officer Ganz‟s murder was never identified. Third party culpability evidence that
does not identify a possible suspect is properly excluded. (See People v. Sandoval
(1992) 4 Cal.4th 155, 176-177.)
Even were we to assume the trial court erred by excluding the proffered
evidence, prejudice is lacking under either the state or federal standard of review.
(See Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46
Cal.2d 818, 836.) The evidence of defendant‟s culpability was overwhelming:
multiple eyewitnesses identified him as the shooter, ballistics tests indicated his
10
handgun was used to shoot Officer Ganz, and videotapes from the scene of the
crime showed a car of the same make and model as defendant‟s. In sum,
defendant fails to establish entitlement to relief based on the trial court‟s exclusion
of the evidence of the clues.5
2. Exclusion of Evidence of Possible Bias in Key Witness’s
Testimony
Defendant contends the trial court erred by excluding evidence indicating a
possible bias on the part of Robert Doyle, a key prosecution witness. On the night
of the murder, Doyle was in a nearby parking lot at the shopping mall. He
observed what looked to be a “routine traffic stop.” While talking to some other
people, Doyle observed Officer Ganz get out of his patrol vehicle and walk toward
defendant‟s car. Doyle heard a gunshot and looked at the source of the noise,
defendant‟s car. He saw Officer Ganz running away and “being chased” by
defendant. Doyle then saw defendant twice shoot Officer Ganz; for the second
shot, defendant pointed his firearm down as if Officer Ganz was on the ground or
crouching down. Doyle then observed defendant run back to his car. He tried to
catch defendant‟s car, but then ran over to Officer Ganz to help him. Doyle saw
Officer Ganz lying facedown with his arms trapped beneath his body. He raised
Officer Ganz off the ground to prevent him from choking.
5
To the extent defendant contends the proffered clues indicated a possible
bias by the investigators (for failing to investigate possible other suspects), the
clues were not relevant to proving a material fact regarding defendant’s
culpability. (See People v. Hamilton (2009) 45 Cal.4th 863, 913-914 [witness‟s
belief that the police should have investigated another suspect does not establish
that that suspect was a viable one].) To the extent defendant contends the
exclusion of this evidence violated his right to present a defense during the penalty
phase, for the reasons stated, none of the proffered evidence created a lingering
doubt by suggesting someone other than defendant was responsible for the murder.
(See id. at pp. 911-916.)
11
In the year preceding defendant‟s trial, Doyle pleaded no contest to
committing a battery (§ 243, subd. (e)(1) [battery against a current or former
spouse, fiancé or fiancée, coparent, cohabitant, or partner]) and was placed on
misdemeanor summary probation. The trial court ruled Doyle‟s conviction did not
reflect moral turpitude (and thus could not be a basis for impeachment) and
precluded defendant from impeaching Doyle as to any possible bias he might have
harbored due to his probationary status. Defendant contends Doyle‟s trial
testimony differed significantly from his original statements to the police and that
the trial court should have allowed him to argue to the jury that Doyle sought to
curry favor with the district attorney‟s office by shaping his testimony to match its
theory of the case.
Defendant‟s contention lacks merit. Cross-examination may expose facts
from which jurors can appropriately draw inferences about the reliability of a
witness, including the possibility of bias. The trial court, however, has wide
latitude to restrict such cross-examination, and such testimony is properly barred
unless the defendant can show the prohibited cross-examination would have
produced a significantly different impression of the witness‟s credibility. (People
v. Smith (2007) 40 Cal.4th 483, 513.) Defendant made no showing that Doyle
actually had been offered leniency or threatened with retaliation by the
prosecution. In fact, the trial prosecutor was not even aware Doyle was on
probation until his criminal record was checked during the course of defendant‟s
trial.6 As such, defendant has failed to demonstrate that the prohibited cross-
examination would have left the jury with a significantly different impression of
6
The record also indicated Doyle pleaded no contest the day after he was
arrested, which suggests his potential testimony in defendant‟s case was not a
factor in the disposition of his own case.
12
Doyle‟s credibility. (People v. Chatman (2006) 38 Cal.4th 344, 374.)
Defendant‟s contention that the trial court violated his federal constitutional rights
to present a defense and to confront witnesses similarly fails. (People v. Hamilton,
supra, 45 Cal.4th at p. 943.)
Even were we to assume the trial court erred in limiting defendant‟s ability
to cross-examine Doyle, defendant fails to demonstrate prejudice under either the
Chapman or Watson standard. (See Chapman v. California, supra, 386 U.S. at
p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.) The jury was made aware of
Doyle‟s purportedly inconsistent statements through defense counsel‟s extensive
cross-examination of Doyle and through the testimony of Detective Perales.
Moreover, the evidence of defendant‟s culpability was overwhelming, as Doyle
was but one of many eyewitnesses to the shooting.7
3. Sufficiency of the Evidence to Support First Degree Murder
Verdict
Defendant contends there was insufficient evidence to support his
conviction for first degree murder. At his trial, defendant argued to the jury that
he “randomly fired” at Officer Ganz, which conduct would be insufficient to
support the finding of premeditation and deliberation that is required for first
degree murder.
The law is settled. In reviewing a criminal conviction challenged as
lacking evidentiary support, the court must review the whole record in the light
7
To the extent defendant contends the exclusion of this evidence violated his
right to present mitigating evidence during the penalty phase, for the reasons
stated, Doyle‟s probationary status was not mitigating evidence and did not create
a lingering doubt, and the jury was aware of the inconsistencies in Doyle‟s various
accounts of the murder. (See People v. Hamilton, supra, 45 Cal.4th at pp. 911-
916.)
13
most favorable to the judgment below to determine whether it discloses substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty beyond a reasonable
doubt. An appellate court must accept logical inferences the jury might have
drawn from the evidence, even if the court would have concluded otherwise.
(People v. Hovarter (2008) 44 Cal.4th 983, 1014-1015.) “ „The standard of
review is the same when the prosecution relies mainly on circumstantial
evidence.‟ ” (People v. Burney (2009) 47 Cal.4th 203, 253.)
A murder that is willful, deliberate, and premeditated is murder in the first
degree. (§ 189.) “ „ “Deliberation” refers to careful weighing of considerations in
forming a course of action; “premeditation” means thought over in advance.
[Citations.] “The process of premeditation . . . does not require any extended
period of time. „The true test is not the duration of time as much as it is the extent
of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly. . . .‟ [Citations.]” ‟ ” (People v.
Halvorsen (2007) 42 Cal.4th 379, 419.)
“ „ “An intentional killing is premeditated and deliberate if it occurred as
the result of preexisting thought and reflection rather than unconsidered or rash
impulse.” [Citation.] A reviewing court normally considers three kinds of
evidence to determine whether a finding of premeditation and deliberation is
adequately supported—preexisting motive, planning activity, and manner of
killing—but “[t]hese factors need not be present in any particular combination to
find substantial evidence of premeditation and deliberation.” ‟ ” (People v.
Burney, supra, 47 Cal.4th at p. 235.) These three factors, however, are merely a
framework for appellate review; they need not be present in some special
combination or afforded special weight, nor are they exhaustive. (See, e.g.,
14
People v. Prince (2007) 40 Cal.4th 1179, 1253; People v. Bolin (1998) 18 Cal.4th
297, 331-332.)
As we will explain, the totality of the evidence is sufficient to support the
jury‟s verdict.
a. Preexisting motive
When Officer Ganz detained him, defendant had a firearm in his car, which
was not only a violation of the terms of his federal supervised release, but also a
crime. (See, e.g., § 12021, subd. (a)(1).) Discovery of defendant‟s firearm,
therefore, could have led to defendant‟s arrest and incarceration.
Citing People v. Cummings (1993) 4 Cal.4th 1233, 1299-1300, defendant
contends there was no evidence to lead either him or an objective observer to
believe his arrest for illegally possessing the firearm was highly likely or
imminent, as this otherwise routine traffic stop was not the type of police contact
likely to result in an arrest. Cummings is distinguishable, however, as it concerned
the sufficiency of the evidence to support a special circumstance finding of murder
committed for the purpose of preventing a lawful arrest. (See § 190.2, subd.
(a)(5).) The issue in Cummings—the imminence of the arrest—simply is not
relevant to whether the possibility of arrest supported an inference that defendant
had premeditated and deliberated the killing of Officer Ganz. The evidence at trial
demonstrated that, at the time of his detention, defendant was committing an act
that could have resulted in his returning to prison. A rational trier of fact could
have found defendant shot Officer Ganz to prevent him from discovering the
firearm that would have led to defendant‟s incarceration. (See, e.g., People v.
Durham (1969) 70 Cal.2d 171, 189 [“ „ “[K]nowing that they were all guilty . . . ,
it is easy to understand why they might take life before they would suffer
15
themselves to be arrested, their crime found out, and the severe punishment meted
out to them . . . .” ‟ ”].)
Defendant contends he could not have harbored a preexisting motive to kill
Officer Ganz because it would have been impossible for the officer to discover his
firearm, as the circumstances of the traffic stop did not justify a search of his car.
Drivers, however, often keep the documentation necessary to operate a motor
vehicle in the vehicle‟s glove compartment; it is not unheard of for a police officer
to spot contraband when a driver opens the glove compartment to retrieve those
documents. (E.g., Maryland v. Pringle (2003) 540 U.S. 366, 368; see also In re
Arturo D. (2002) 27 Cal.4th 60, 89 (conc. & dis. opn. of Werdegar, J.).) Vehicles
are also sometimes searched pursuant to a condition of supervised release,
probation or parole, in an inventory search following an arrest, or for the safety of
the police officer. (See, e.g., People v. Walker (1969) 273 Cal.App.2d 720, 724
[“For his own protection the officer was justified in opening the glove
compartment himself, rather than to risk the possibility that defendant would pull a
weapon out of it.”].) Regardless of whether any of those circumstances actually
existed with respect to defendant‟s stop, a rational trier of fact could have found
that defendant feared his firearm would be discovered and decided to use it before
Officer Ganz became aware of its existence.8
8
Although defendant previously had made a statement reflecting his animus
toward law enforcement, and such evidence would be further evidence of a
motive, it was not introduced until the penalty phase.
To the extent defendant challenges the sufficiency of the evidence
supporting the special circumstance of committing murder to avoid a lawful arrest
(§ 190.2, subd. (a)(5)), such a claim fails. (See People v. Osband (1996)
13 Cal.4th 622, 690-693 [test for the sufficiency of a special circumstance finding
is the same as that for a criminal conviction].) Defendant does not dispute that he
was legally detained for committing a traffic infraction, and we conclude a rational
trier of fact could have found that defendant was afraid the discovery of his
(footnote continued on next page)
16
b. Planning activity
Defendant correctly notes there was no evidence of extensive planning or
preparation, as only a few minutes passed between the time Officer Ganz first
shined his patrol vehicle‟s spotlight on defendant‟s car and the shooting. But as
defendant concedes, under California law premeditation and deliberation can
occur in a brief period of time. (See, e.g., People v. Halvorsen, supra, 42 Cal.4th
at p. 419.) The lack of evidence of extensive planning does not negate a finding of
premeditation. (See People v. Millwee (1998) 18 Cal.4th 96, 134.)
Although defendant‟s interaction with Officer Ganz was brief, it was more
than momentary. Officer Ganz twice instructed defendant to move his car out of
the intersection, followed defendant into the mall parking lot, initiated a traffic
stop, got out of his patrol vehicle, and then talked with defendant, all within the
space of a few minutes. A rational trier of fact could have concluded defendant,
knowing he illegally possessed a firearm, rapidly and coldly formed the idea to kill
Officer Ganz during the course of these events, and therefore acted after a period
of reflection rather than on an unconsidered or rash impulse. (See People v. Steele
(2002) 27 Cal.4th 1230, 1249; see also People v. Millwee, supra, 18 Cal.4th at pp.
134-135 [the defendant arrived at the victim‟s house unarmed but could have
thought about the use of lethal force while traveling there and then retrieving a
stored rifle, deactivating the safety and chambering a live round].)
c. Manner of killing
At trial, defendant argued that he lacked the requisite mental state when he
attacked Officer Ganz, asserting that Officer Ganz had been fatally wounded by
(footnote continued from previous page)
firearm (and hence his arrest) was imminent. (See People v. Cummings, supra,
4 Cal.4th at pp. 1299-1301.)
17
the first shot. The totality of the evidence presented, however, indicates defendant
wanted to make certain Officer Ganz died. (See People v. Bolin, supra, 18 Cal.4th
at pp. 332-333 [the killings took place within a few minutes of the victims‟ arrival
and the evidence suggested rapid and purposeful planning in response to the
potential consequences of his partner‟s carelessness].) Here, defendant did not
merely fire one shot from his car and then flee; rather, he got out of his car, shot
Officer Ganz again in the back as the officer was retreating, and then stood over
the officer‟s prone body and fired a third shot while holding his firearm with two
hands. (See People v. Koontz (2002) 27 Cal.4th 1041, 1080-1082 [intent to kill
was shown by the defendant‟s shooting the victim in a vital area from only a few
feet away and then preventing a witness from calling an ambulance]; People v.
Mayfield (1997) 14 Cal.4th 668, 767-768 [gunshot fired at a victim‟s face was
consistent with a preexisting intent to kill]; see also People v. Hawkins (1995) 10
Cal.4th 920, 956-957 [shooting the victim in the back of the head in an
“execution-style murder” was sufficient evidence of premeditation and
deliberation despite minimal evidence of planning and motive].)
Defense counsel at trial did highlight the weaknesses of the prosecution‟s
theory of the case: the witnesses not only contradicted each other on various
points, but the testimony of several witnesses also contradicted statements they
had originally given to the police; no shell casings were found near the rear of the
police vehicle; defendant‟s medical expert testified it was possible for the fatal
shot to the head to have been fired first; and Don and La Fond initially were
unable to identify defendant as the shooter. On review, however, we do not
reevaluate the credibility of witnesses or resolve factual conflicts; rather, we
presume the existence of every fact in support of the verdict that reasonably could
be inferred from the evidence. (See People v. Burney, supra, 47 Cal.4th at p. 253;
18
People v. Lindberg (2008) 45 Cal.4th 1, 27.) Under that standard, the
prosecution‟s evidence did support the verdict.
Citing People v. Anderson (1968) 70 Cal.2d 15, defendant contends the fact
he twice shot Officer Ganz in a nonfatal manner negates the possibility of
premeditation and deliberation because the multiple shots and immediate pursuit
of Officer Ganz demonstrate an “explosion” of violence or an eruption of “animal
fury.” (See, e.g., People v. Alcala (1984) 36 Cal.3d 604, 625-627.) Not so. The
manner of the shooting—approaching a prone victim, stopping over him, and then
aiming—“shows a calculated design to ensure death rather than an unconsidered
explosion of violence.” (People v. Horning (2004) 34 Cal.4th 871, 902-903.) The
mere possibility of a contrary finding as to defendant‟s mental state does not
warrant a reversal of the guilt judgment. (See People v. Burney, supra, 47 Cal.4th
at p. 253.)
Defendant claims the evidence of intent to kill in this case is no stronger
than in People v. Ratliff (1986) 41 Cal.3d 675, 695-696, in which we reversed an
attempted murder conviction. “However, as we explained in People v. Arias
(1996) 13 Cal.4th 92, in Ratliff, we simply held that the „evidence of intent to kill
was not so conclusive as to render harmless an erroneous failure to instruct on that
issue.‟ ” (People v. Avila (2009) 46 Cal.4th 680, 702, fn. 7.) Unlike Ratliff, the
trial court here properly instructed the jury on the mental state required for first
degree murder, and defendant does not contend otherwise.
4. Asserted Griffin Error
Defendant contends the prosecutor improperly commented on his silence
during her closing argument, when she said: “Now, the next issue . . . is the issue
of identity. As you realize, the defense did not appear to refute the issue of
identity.” At a sidebar conference, defendant moved for a mistrial, which the trial
19
court denied. The prosecutor continued: “As I indicated, you heard all the
evidence that‟s been presented in this case. And other than the questioning of
witnesses that were presented, there was not any evidence presented to suggest
that anyone other than the defendant committed this crime.”
“[T]he Fifth Amendment . . . forbids either comment by the prosecution on
the accused‟s silence or instructions by the court that such silence is evidence of
guilt.” (Griffin v. California (1965) 380 U.S. 609, 615.) The prosecutor‟s
argument cannot refer to the absence of evidence that only the defendant‟s
testimony could provide. (See People v. Carter (2005) 36 Cal.4th 1215, 1266.)
The rule, however, does not extend to comments on the state of the evidence or on
the failure of the defense to introduce material evidence or to call logical
witnesses. (See People v. Lewis (2009) 46 Cal.4th 1255, 1304.)
Defendant relies on People v. Northern (1967) 256 Cal.App.2d 28, in
which the Court of Appeal ruled the prosecutor violated Griffin by arguing the
evidence presented therein “ „has not been refuted by the Defendant.‟ ” (Id. at
p. 30, italics omitted.) The Northern court noted it was difficult to interpret the
prosecutor‟s argument “as anything except a direct reference to defendant‟s failure
to take the witness stand” (id. at pp. 30-31), as the defendant had committed two
hand-to-hand narcotics transactions with an undercover police officer. Although
defendant here contends his counsel “did everything possible to refute the
identification short of calling [defendant] to the stand,” this simply is not true.
Defense counsel did extensively cross-examine the prosecution‟s witnesses, but
defendant presented no alibi witnesses, no witnesses identifying someone else as
the shooter (or the owner of the murder weapon at the time of the shooting), and
no expert witnesses refuting either the identification of his car on the banks‟
security videotapes or the ballistics match between his firearm and the recovered
bullets. If defendant had evidence relevant to the identity of Officer Ganz‟s
20
murderer, he could have presented it in numerous ways without testifying. The
prosecutor‟s comments, rather than being a direct (or even indirect) reference to
defendant‟s silence, constituted reasonable comment on defendant‟s failure to
introduce material evidence or logical witnesses. (Cf. People v. Vargas (1973) 9
Cal.3d 470, 475-477.)
Even were we to assume the prosecutor improperly commented on
defendant‟s silence, defendant suffered no prejudice. The evidence of defendant‟s
identity was overwhelming: in addition to eyewitnesses identifying him as the
shooter, his firearm was linked to the crime. Any assumed error was harmless
beyond a reasonable doubt.9 (See People v. Turner (2004) 34 Cal.4th 406, 420-
421 [prosecutor‟s closing argument about his inability to have a psychiatrist
examine the defendant was not Griffin error; any assumed Griffin error was
harmless beyond a reasonable doubt].)
5. Jury Instruction on Consciousness of Guilt
Defendant contends the trial court erred in instructing the jury, at the
request of the prosecution and over his objection, that it could consider his flight
after Officer Ganz‟s shooting as evidence of his guilt.10
Here, defendant claims, the instruction unfairly highlighted facts favorable
to the prosecution and invited the jury to draw a favorable inference from this
9
In addition, the trial court instructed the jury not to draw an inference from
defendant‟s decision not to testify, and we presume the jurors understood and
applied the instruction. (See, e.g., People v. Butler (2009) 46 Cal.4th 847, 873.)
10
The court instructed the jury in accordance with CALJIC No. 2.52, stating:
“[T]he flight of a person immediately after the commission of a crime, or after he
is accused of a crime, is not sufficient in itself to establish his guilt, but is a fact
which, if proved, may be considered by you in light of all the other proved facts in
deciding whether a defendant is guilty or not guilty. The weight to which this
circumstance is entitled is a matter for you to decide.”
21
evidence, which allowed the jury to infer from his departure from the crime scene
that he harbored the requisite mental state at the time of the shooting. As
defendant concedes, we previously have rejected similar claims, and we do so
again here. (People v. Morgan (2007) 42 Cal.4th 593, 620-621; People v. Boyette
(2002) 29 Cal.4th 381, 438-439; see People v. Nakahara (2003) 30 Cal.4th 705,
713 [rejecting a similar challenge to a jury instruction regarding consideration of
false statements as evidence of consciousness of guilt].)
II. PENALTY PHASE AND POSTTRIAL ISSUES
A. Facts
1. Prosecution Evidence
Over the course of 12 days, more than 60 witnesses testified during the
prosecutor‟s case in aggravation. Many testified about the impact Officer Ganz‟s
murder had on them; others were the victims of defendant‟s other offenses. The
prosecution also introduced a videotape of Officer Ganz celebrating Christmas
with family members and a videotape depicting portions of his memorial and
funeral services.
a. Prior criminal activity (§ 190.3, factors (b), (c))
On October 14, 1986, defendant took some juice from a market in Santa
Monica without paying for it. When confronted by Khosrow Hakimian, one of the
owners, defendant pushed his arm aside to get away.
From August to October of 1989, defendant robbed six banks in the Los
Angeles area and attempted to commit two additional bank robberies. With each
robbery, defendant demanded money from a teller; he usually would then display,
and sometimes brandish, a firearm that he carried tucked into his waistband.
Defendant finally was apprehended on October 12, 1989, when Deputy
Christopher Germann of the Los Angeles County Sheriff‟s Department heard a
22
police radio broadcast regarding one of the bank robberies that had occurred that
day. Deputy Germann spotted defendant‟s car, followed him, and then attempted
to pull him over, but defendant sped away. Defendant eventually drove up the
long, dead-end driveway of his own residence (his parents‟ home) and fled on foot
into the undeveloped hillside. Deputies apprehended and subdued defendant, who
had in his possession numerous bills with serial numbers that matched those on the
bait money from the bank that had been robbed earlier that day. A search of
defendant‟s car revealed a BB gun on the floorboard of the driver‟s seat. While
receiving medical attention, defendant said something along the lines of “I should
have shot it out with you guys. I should have gone for it.” When Deputy
Germann pointed out that he had only a BB gun, defendant replied that next time it
would not be just a BB gun.
Defendant was charged in federal court with six counts of bank robbery and
ultimately pleaded guilty to two counts of bank robbery. Defendant told his
probation officer that he committed the robberies because he was addicted to crack
cocaine and also needed to pay his living expenses.
On October 15, 1993, Phillip Brown, the security guard at defendant‟s
parents‟ residence, issued him a parking ticket. Defendant told Brown that if he
had had his knife with him, he would have “juked” him. Brown understood this to
mean defendant would have stabbed him, but he did not take defendant seriously.
From October to December of 1993, defendant robbed five supermarkets in
a chain of grocery stores in the Los Angeles area. Each robbery occurred in the
early morning hours when employees were transferring cash from the registers to
the manager‟s office. While wearing an obviously fake wig, defendant
approached the employees, brandished a firearm, and demanded money.
From April to July of 1994, defendant robbed five supermarkets in a chain
of grocery stores near the Washington-Oregon border. Defendant usually wore a
23
long coat and a dark ski mask that covered all but his eyes and the center portion
of his face. Defendant demanded money from a checker and then would usually
display, and sometimes brandish, a firearm that he carried tucked into his
waistband.
During this period, defendant also robbed a pharmacy. Brandishing a
firearm, defendant said, “This is a robbery,” and then demanded a number of
specific drugs, and money. During this robbery, defendant inadvertently dropped
some ammunition, which was analyzed and determined to match the ammunition
recovered from his parents‟ residence.
The prosecution introduced evidence of a homicide in Oregon defendant
committed after having robbed another grocery store. On August 3, 1994,
defendant robbed a supermarket wearing a long coat, gloves, and a black ski mask
that covered most of his face. Defendant demanded money from a checker, pulled
a .380-caliber pistol from his pocket, and took money from the register while
pointing the pistol at the checker. Defendant then left the market and headed
toward a side parking lot. As defendant rounded the corner, Catalina Correa (who
had been in the market just prior to the robbery) turned and faced him. Defendant
shot Correa three times, killing her. Defendant then got into his car and drove off.
Andrew Dickson, who was in his van, followed defendant‟s car; defendant
stopped, got out of his car, and shot at Dickson but hit only the van. Defendant
was apprehended the next day. The police then searched defendant‟s parents‟
residence and found, in addition to the previously mentioned locked box and its
contents, two wigs, an assault rifle, and ammunition for that rifle. Thomas
Jenkins, a criminalist with the Oregon State Police, examined the bullets and
casings from this shooting and determined Correa had been shot with defendant‟s
.380-caliber pistol and Dickson had been shot at by defendant‟s assault rifle.
24
b. Victim impact testimony
i. Officer Ganz (§ 190.3, factor (a))
Officer Ganz, who came from a large, impoverished family, had wanted to
be a police officer since he was 12 years old. After graduating from high school,
he joined the Marines so he could become a military police officer. While a
Marine, he rescued a man from a burning truck and was honored for saving the
man‟s life.
In 1988, Officer Ganz was hired by the Manhattan Beach Police
Department in a civilian position to promote seat belt awareness. He became a
sworn police officer in 1989 and was assigned to motorcycle duty. He was a well-
respected, well-liked officer who regularly volunteered for assignments and had
received numerous letters of commendation from members of the community.
Officer Ganz was very close to his seven sisters (one of whom died at a
very young age), and he often provided them with emotional and financial support.
He played a significant role in helping raise the two children (including Don, his
godson) of his sister Rachael Ganz-Williams, a single mother. He worked on
Christmas Eve (just a few days before he was shot) so other officers could be with
their families, but once his shift was over, he went to a sister‟s house to celebrate
Christmas morning with her and her children. The jury viewed a portion of a
videotape depicting that celebration.
Officer Ganz was engaged to marry Pamela Magdaleno. He had purchased
a home and was in the process of remodeling it in anticipation of his married life.
Magdaleno had asked Officer Ganz not to work the night he was murdered, but he
refused her request, as it was the last opportunity he had to take Don on a ride
along. During his shift, Officer Ganz telephoned Magdaleno to tell her he loved
her. After learning about Officer Ganz‟s death, Magdaleno said it “felt like
someone had stuck their hand into my chest and ripped my heart out.”
25
Officers Karl Nilsson and Neal O‟Gilvy of the Manhattan Beach Police
Department, both close friends of Officer Ganz, were on duty that night and
responded immediately to radio broadcasts of the shooting. Officer O‟Gilvy
attempted to contact Officer Ganz by radio to determine whether he was the
officer who had been shot. Both officers described, in detail, the injuries Officer
Ganz had sustained and the efforts of the paramedics to save his life. Officer
Nilsson held Officer Ganz while waiting for the paramedics to arrive. Officer
Nilsson allowed Officer O‟Gilvy to ride in the ambulance with Officer Ganz, and
O‟Gilvy stayed by his side while at the hospital. Other officers arrived at the
hospital and urged the staff to continue to work on Officer Ganz even after he had
been declared dead. Officer O‟Gilvy broke down emotionally. He then made
telephone calls letting people know Officer Ganz had fought to the very end.
Officer O‟Gilvy stayed with Officer Ganz after he died, insisted his body not be
transported to the coroner‟s office by itself, and arranged for another officer to
accompany the body. Dozens, if not hundreds, of officers from other law
enforcement jurisdictions helped secure the crime scene and otherwise assisted
and supported the Manhattan Beach Police Department.
Several witnesses described Officer Ganz‟s funeral, and the jury viewed a
videotape of portions of the church services and graveside ceremonies. Officer
Ganz‟s funeral was attended by over 4,000 people, many of whom were police
officers in full dress uniform; the procession stretched for several miles. Officer
Ganz‟s mother was too distraught to attend either the memorial service or the
funeral, and she died six months after he did.
After Officer Ganz‟s death, the Manhattan Beach Police Department
contacted a psychologist who specialized in trauma intervention. Officer Nilsson
lost sleep, drank too much, had a romantic relationship fail, and was demoted due
to mood changes resulting from Officer Ganz‟s death. Officer O‟Gilvy became
26
unproductive and often cried in his patrol vehicle. Police Chief Ted Mertens
believed that several officers still relived the events of Officer Ganz‟s shooting on
an almost daily basis; it had made them more cautious.
ii. Other victims (§ 190.3, factor (b))
Approximately three dozen people who witnessed defendant‟s robberies
testified about their experiences, and many of them described the impact his
actions had on their lives. For example, Ricardo Gutierrez feared retaliation when
he identified defendant as the robber of his supermarket, and feared he could be
robbed again. Cindy Ettestad did not return for a long time to the supermarket that
was robbed while she was there; she had nightmares and was unable to watch
movies depicting people wearing ski masks. Arden Schoenborn, the supermarket
checker whom defendant robbed on the day he murdered Catalina Correa, quit his
job after the robbery due to the stress of wondering whether someone else might
point a loaded gun at him. Kay Heinzman, a technician at the Oregon pharmacy,
stated she had “lost a year” of her life, was unable to work following the robbery,
and was so traumatized by testifying she nearly was unable to identify defendant
as the robber.
2. Defense Evidence
Defendant was born in Vietnam in 1965 to a Vietnamese mother and an
American father. Defendant‟s mother, Diep Brady (Diep), worked on a vegetable
farm and later as a clerk to support her siblings, as her father had died when she
was 12 years old. Both of Diep‟s brothers joined the South Vietnamese Army, and
they introduced Diep to Phillip Brady (Phillip), defendant‟s father, who was a
Marine advising the South Vietnamese military.
27
Phillip and one of Diep‟s brothers fought together in a battle in which the
brother was killed. Phillip contacted Diep so she could retrieve her brother‟s
belongings, and soon thereafter they started to date.
Due to an illness, Phillip was sent to Japan and eventually to the United
States. During this time, defendant was born. Phillip, now working for the CIA
through an aid agency, returned to Vietnam when defendant was eight months old.
Phillip, Diep, and defendant lived in a security compound in the countryside while
the war was waged all around them; the compound was attacked several times.
Defendant was the only child there. By the time defendant was two and a half
years old, he could point to and identify North Vietnamese soldiers.
Defendant‟s family moved to another security compound near the
Cambodian border, which was close to the worst part of the fighting. Defendant
was again the only child there; he frequently saw soldiers being killed. When
defendant was three and a half years old, he was evacuated in a helicopter. While
men operated machine guns on either side, defendant pointed out enemy soldiers
to them.
Around 1969, Phillip was offered a job with a news organization, so
defendant and his parents moved to New York. Diep was unhappy in New York,
so they moved back to Vietnam. While in Vietnam, Phillip suffered from
flashbacks and extensively used drugs and alcohol. Phillip filed a news report that
the Vietnamese government did not like, so he was forced to leave the country and
the family relocated to Hong Kong. Phillip often was away on assignment in
Cambodia or Afghanistan.
After a few years, defendant‟s family moved to New Jersey, and later to
Venice, California. Phillip was not working and continued to use drugs and
alcohol. Diep, defendant, and his sister moved in with Diep‟s mother, who had
relocated to the area from Vietnam. Defendant‟s parents initiated divorce
28
proceedings but ultimately reconciled. During this period, defendant stopped
going to school and ran away, and Phillip showed little interest in him.
Around 1977, defendant‟s family bought a home in a remote area of
Topanga, California. Phillip began to cultivate marijuana and instructed defendant
to water the plants. Phillip was arrested for growing marijuana.
Due to the isolation of their house, defendant had no friends in the area and
was shy and withdrawn. He lived in a dark room underneath the house while the
rest of family lived upstairs. Defendant often was home alone and had to get to
school by himself. Phillip had very high expectations for defendant and favored
his sister over him.
During this time, Phillip‟s drug and alcohol use continued. At the age of 12
or 13, defendant began to use marijuana.
Phillip was physically abusive with Diep and defendant. On one occasion,
Diep called out for defendant to help her, but defendant did not respond, knowing
there was nothing he could do to stop Phillip.
After graduating from high school, defendant wanted to join the military.
Phillip opposed the idea and told defendant he was too weak to be in the military.
Defendant instead attended a local community college.
After defendant was convicted of the bank robberies, Phillip visited him in
prison twice a month. When he was released, defendant entered a drug
rehabilitation program. Defendant lived alone for a while after his release, but
Phillip feigned illness to convince him that he was needed at home. Phillip then
made defendant drive to drug dealers for him. Defendant‟s parents fought
constantly, and he told Diep and his probation officer that he would rather be back
in prison. During this time, defendant once failed to appear for mandatory drug
testing, blaming his absence on an argument he had had with Phillip. While on
supervised release, defendant never tested positive for drugs.
29
Diep, defendant‟s sister, and his cousin each testified about how much they
cared for him.
Neuropsychologist Lorie Humphrey, Ph.D., examined defendant and
determined he had possible right-side brain damage. Defendant had good
language skills, but was poor at naming objects and at visually perceiving and
processing information. Defendant‟s neurocognitive problems may have affected
his perception of society, his socialization, his ability to form relationships or
show emotion, and his ability to hold a job. In Dr. Humphrey‟s opinion, such
individuals function optimally in highly structured environments.
Dr. Humphrey administered the Minnesota Multiphasic Personality
Inventory (MMPI) test to defendant, and on cross-examination she conceded the
results indicated he had a high degree of anger and potential for explosive
behavior and often blamed others for his problems. Defendant‟s MMPI results
matched those of the most difficult criminal offenders, who often have problems
adjusting to prison life.
B. Discussion
1. Victim Impact Evidence
a. Evidence relating to Officer Ganz
Over objection, four of Officer Ganz‟s sisters, his fiancée, the treating
physician at the hospital, two fellow officers, and his police chief testified during
the penalty phase; their testimony spanned several hours over two days. They
described Officer Ganz‟s childhood hardships, his lifelong desire to be a police
officer, his achievements, his engagement and future plans, his death, his funeral
service, and the aftereffects of his death. The jury also viewed two videotapes and
numerous photographs, and received other evidence memorializing Officer Ganz‟s
achievements.
30
Prior to the start of the penalty phase, defendant filed a motion to limit the
scope and amount of victim impact evidence; he also made several evidentiary
objections during the penalty phase. At various points, the trial court excluded
from evidence photographs of Officer Ganz as a child, photographs of Don, an
animated reenactment of the crime, and a poster captioned “In Memory” that
displayed the funeral program and photographs of the crime scene, Officer Ganz‟s
motorcycle helmet and gloves, the funeral, his gravestone, the Manhattan Beach
police station, and the national police officers‟ memorial in Washington, D.C.
Defendant contends the trial court erred by admitting the victim impact
evidence, asserting much of the evidence regarding Officer Ganz was excessive,
inflammatory, irrelevant, and unduly prejudicial. He complains the proceedings
effectively acted as an “extended memorial service” and “more closely resembled
a wake” for the officer than a criminal trial.11
Unless it invites a purely irrational response, evidence of the effect of a
capital murder on the loved ones of the victim and the community is relevant and
admissible under section 190.3, factor (a) as a circumstance of the crime. (E.g.,
People v. Burney, supra, 47 Cal.4th at p. 258.) The federal Constitution bars
11
Defendant‟s contentions notwithstanding, we continue to reject the
previously rejected claims that (1) victim impact evidence deprives defendants of
a state created liberty interest (e.g., People v. Boyette, supra, 29 Cal.4th at p. 445,
fn. 12); (2) “circumstances of the crime,” as used in section 190.3, factor (a) is
unconstitutionally vague, overbroad, subject to arbitrary decisionmaking, or fails
to provide adequate notice (e.g., People v. Carrington (2009) 47 Cal.4th 145,
197); and (3) victim impact evidence must be limited to the circumstances known
to the defendant at the time of the commission of the crime (e.g., id. at pp. 196-
197). Rather, “circumstances” in this context extends to that which “materially,
morally, or logically” surrounds the crime. (People v. Hamilton, supra, 45 Cal.4th
at p. 926.)
31
victim impact evidence only if it is so unduly prejudicial as to render the trial
fundamentally unfair. (Ibid., citing Payne v. Tennessee (1991) 501 U.S. 808, 825.)
i. Courtroom testimony
As noted, during the penalty phase Officers Karl Nilsson and Neal O‟Gilvy
testified extensively about how they learned of the shooting, their initial reactions
to learning that the downed officer was their friend Officer Ganz, the efforts to
save his life both at the scene and at the hospital, their immediate reaction to his
death, and the effect his death had on their lives. Defendant characterizes their
testimony as “emotional,” “not objective,” and of doubtful accuracy,12 and
observes Officer O‟Gilvy, who was the prosecution‟s final witness, broke down on
the stand, which meant the jury was left to contemplate this “dramatic” testimony
until the trial resumed the next day.
Defendant contends the testimony of these officers should have been
excluded as inflammatory and cumulative to the guilt phase testimony. In support,
he cites People v. Love (1960) 53 Cal.2d 843, in which we reversed a death
judgment. In Love, the jury saw a photograph of the murder victim lying dead on
a hospital table; the photograph showed the expression of her face in death. The
jury also heard a tape recording taken in the emergency room shortly before the
victim‟s death in which she recounted the facts of how she was shot. The victim‟s
doctor testified that she was in extreme pain before she died. As the jury already
was aware of the facts of the shooting and the painfulness of her death, we
12
The trial court properly instructed the jury that the jury was the sole judge
as to the believability of the witnesses and that discrepancies may occur in
witnesses‟ testimony. We presume the jury followed these instructions (see, e.g.,
People v. Butler, supra, 46 Cal.4th at p. 873), and it is not the role of an appellate
court to assess a witness‟s credibility.
32
reasoned the sole purpose of the tape recording and photograph was for the jury to
hear the victim‟s groans and failing voice and to see her expression as she died.
(Id. at pp. 854-855.) We held this evidence was unduly inflammatory, as it tended
only to prove facts already known to the jury and was of limited probative value in
determining the defendant‟s sentence. (Id. at pp. 856-857.)
Love predates the high court‟s ruling in Payne v. Tennessee, supra, 501
U.S. 808, and the enactment of section 190.3, both of which expressly allow the
jury to consider the circumstances of the crime—including its immediate injurious
impact—as an aggravating factor.13 (E.g., People v. Harris (2005) 37 Cal.4th
310, 351-352.) Nonetheless, defendant contends Officer O‟Gilvy‟s “dramatic
death bed story told by a distraught friend and fellow police officer” was more
inflammatory than the photograph and tape recording in Love and therefore
prejudicial. We disagree. Emotional testimony is not necessarily inflammatory.
(See People v. Verdugo (Aug. 2, 2010, S083904) __ Cal.4th ___, ___ [pp. 43-44]
[finding no error when the victim‟s mother cried while testifying]; People v.
Jurado (2006) 38 Cal.4th 72, 132-134 [finding no error when testimony from
multiple family members caused some jurors to cry].) When exercising discretion
in admitting emotionally laden evidence, however, courts must monitor the effect
13
In the intervening years, we have upheld the admission of photographs
similar to those at issue in People v. Love, supra, 53 Cal.2d 843. (E.g., People v.
Salcido (2008) 44 Cal.4th 93, 146-148 [photographic evidence was admitted
during the penalty phase to support the prosecutor‟s theory suggesting sexual
misconduct with the victims, despite the jury‟s already having heard testimony on
the subject].) We also have upheld the admission of a 911 tape wherein a 16-year-
old girl reported that two men had just entered her house and shot both her and her
mother in the back of the head. The girl survived the attack but could be heard
screaming hysterically when she discovered her mother‟s body. (People v.
Hawthorne (2009) 46 Cal.4th 67, 101-103.)
33
of the evidence on the jury and audience members and make a careful record of
their observations. (See People v. Prince, supra, 40 Cal.4th at pp. 1289-1290.)
The trial court here did so; it noted, for example, that audience members had
reacted emotionally to some of the victim impact evidence.
As the officers‟ testimony did not invite a purely irrational response or
otherwise render defendant‟s trial fundamentally unfair (see People v. Burney,
supra, 47 Cal.4th at p. 258), the trial court did not abuse its discretion in
permitting the officers to testify. To the extent defendant further contends that
particular portions of the officers‟ courtroom testimony were overly emotional and
thus prejudicially inflammatory, defendant did not object nor did he request the
trial court to give the witnesses some time to compose themselves, consequently
forfeiting the issue on appeal. (See Evid. Code, § 353, subd. (a); see, e.g., People
v. Robinson (2005) 37 Cal.4th 592, 652.)
Defendant also relies on People v. Edwards (1991) 54 Cal.3d 787.
Although in Edwards we cautioned against prosecutors employing inflammatory
evidence and arguments, we ultimately ruled the evidence presented and the
prosecutor‟s argument in that case were not unduly inflammatory. (Id. at pp. 832-
836, 839-840.) We reached a similar conclusion in People v. Haskett (1982) 30
Cal.3d 841, 859, 863-864, another case upon which defendant relies.
Defendant contends the officers‟ testimony was cumulative. Their
testimony in some respects did repeat information already known to the jury, such
as the discovery of Officer Ganz at the crime scene, his condition, Jamie
Timmons‟s holding his head in her lap to prevent him from choking on his own
blood, and the medical response. This repetition, however, comprised a
comparatively small amount of the officers‟ total testimony and is not unusual
when multiple witnesses testify about the same event. Moreover, during the
officers‟ testimony, trial counsel did not object to any specific portion as being
34
cumulative, and thus the issue is forfeited on appeal. (E.g., People v. Robinson,
supra, 37 Cal.4th at p. 652.)
Defendant next contends the evidence about Officer Ganz‟s character
provided by his family was excessive and inflammatory. In support, he cites
People v. Roldan (2005) 35 Cal.4th 646, 731-733, in which we upheld the
admission of the victim impact evidence, but noted such evidence was limited to a
single photograph of the victim with his children and one witness whose testimony
was “relatively short and subdued” (id. at p. 732); the trial court in Roldan (unlike
the trial court in this case) had excluded a videotape prepared by the victim‟s
widow and evidence of awards the victim received for his community service and
heroism. Although the victim impact evidence presented in this case was more
extensive than that presented in Roldan, the evidence here cannot be fairly
characterized as inflammatory, as it did not divert the jury from the task at hand.
(See Roldan, at p. 732.) For example, although the jury heard some testimony
about Officer Ganz‟s childhood, it was brief and provided context for the
testimony regarding his lifelong desire to become a police officer.
Defendant relies upon cases from other jurisdictions that have limited the
scope and quantity of victim impact evidence. (Conover v. State (Okla.Crim.App.
1997) 933 P.2d 904, 918-923; Salazar v. State (Tex.Crim.App. 2002) 90 S.W.3d
330, 335-339; see State v. Dennis (Ohio 1997) 683 N.E.2d 1096, 1107 [admission
of a mother‟s statements eulogizing the accomplishments and character of the
victim was harmless error]; Cargle v. State (Okla.Crim.App. 1995) 909 P.2d 806,
824-830 [admission of the amount and type of victim impact evidence was
harmless error].) These cases are not binding on this court. The jury here heard
traditional victim impact evidence: family members and friends extolled Officer
Ganz‟s virtues and demonstrated they missed him. Neither the type nor the
amount of evidence warrants reversal. (See People v. Huggins (2006) 38 Cal.4th
35
175, 236-238 [finding no error when multiple witnesses testified about the
victim‟s character and the loss felt by family members and the community,
including testimony about the erection of a statue of the victim]; People v. Jurado,
supra, 38 Cal.4th at pp. 132-134 [finding no error when testimony from multiple
family members caused some jurors to cry].)
Defendant also contends two family members improperly testified about
the effect of Officer Ganz‟s murder. Don‟s mother, Rachael Ganz-Williams,
testified Don opted not to testify during the penalty phase because he “just
couldn‟t do it.” The testimony about Don was appropriate to dispel any potential
negative implication that might be drawn from the prosecutor‟s failure to call him
as a witness. (People v. Carrington, supra, 47 Cal.4th at p. 197.) Defendant‟s
inability to cross-examine Don about the impact of the murder did not render the
testimony inadmissible. (See, e.g., People v. Jurado, supra, 38 Cal.4th at pp. 132-
134 [family members testified about the effect of the crime on other family
members who did not testify].) Accordingly, the trial court properly instructed the
jury that it could consider the impact of the murder on the victim‟s family as a
circumstance of the offense. (See id. at pp. 130-131; cf. People v. Panah (2005)
35 Cal.4th 395, 495 [finding no error in the admission of victim impact evidence
given that the trial court instructed the jury it could “ „consider only such harm as
was directly caused by defendant‟s act‟ ” (italics added)].)
In addition, over objection, another of Officer Ganz‟s sisters testified that
their mother “gave up on life” and died six months after his murder. Although this
testimony explained their mother‟s absence, it also constituted improper
speculation as to the possible effect of Officer Ganz‟s death on their mother‟s
health. (See People v. Carrington, supra, 47 Cal.4th at p. 197.) Defendant,
however, fails to demonstrate prejudice because there is no reasonable likelihood
36
this error affected the penalty phase verdict. (See, e.g., People v. Lewis (2008) 43
Cal.4th 415, 500.)
Defendant further contends the trial court improperly admitted evidence
regarding the effect of Officer Ganz‟s murder on his professional community, that
is, the Manhattan Beach Police Department. Victim impact evidence, however, is
not limited to family members, but may include the effects on the victim‟s friends,
coworkers, and the community—including when the victim‟s coworkers are law
enforcement personnel. (People v. Ervine (2009) 47 Cal.4th 745, 792-794; see
also id. at pp. 793-794, fn. 17 [noting the defendant‟s reliance on Lambert v. State
(Ind. 1996) 675 N.E.2d 1060 was “misplaced” because, unlike California law,
Indiana law at the time of the trial in that case did not include the circumstances of
the crime as an aggravating factor]; e.g., People v. Taylor (2010) 48 Cal.4th 574,
644-647 [allowing evidence of the loss felt by the staff and children at an
afterschool program at which the victim volunteered].)
Defendant finally contends victim impact evidence must be limited to
understandable human reactions (see People v. Brown (2004) 33 Cal.4th 382,
398), whereas the reactions of Officer Nilsson, Officer O‟Gilvy, and Pamela
Magdaleno to Officer Ganz‟s death reflected “severe maladjustment and
psychopathological states” “demonstrating varying degrees of mental illness.”
Officer Ganz was Magdaleno‟s fiancé and Officers Nilsson‟s and O‟Gilvy‟s friend
and fellow officer who was murdered while on duty; the severity of their grief—
and how that grief manifested itself—was well within the spectrum of human
responses. (See People v. Ervine, supra, 47 Cal.4th at pp. 792-793.)
ii. Video evidence
Trial courts must be cautious about admitting victim impact evidence by
way of videotape or other visual or auditory aids. (E.g., People v. Bramit (2009)
37
46 Cal.4th 1221, 1240.) In particular, trial courts must be cautious about
admitting “ „lengthy‟ videotapes.” (Ibid.) Here, the trial court admitted two
videotapes that, together, were approximately 10 minutes long. Although length
alone is not dispositive, we have upheld the admission of longer videotapes. (Ibid.
[citing cases].) The trial court properly informed its exercise of discretion by
viewing the videotapes before allowing the jury to view them, and we have done
likewise. We discuss each videotape.
(a) Christmas
The jury viewed a four-minute, edited videotape depicting Officer Ganz
celebrating Christmas, two days before his murder, with his family. It consisted
primarily of Officer Ganz handing out presents to one of his sisters and some of
his young nieces and nephews, who excitedly opened the gifts. At one point,
Officer Ganz and his sister hug.
This videotape depicted a rather ordinary event—a family holiday
celebration. It is a brief “home movie” that depicted real events; it was not
enhanced by narration, background music, or visual techniques designed to
generate emotion; and it did not convey outrage or call for vengeance or
sympathy. Like the videotape of the family trip to an amusement park we ruled
admissible in People v. Dykes (2009) 46 Cal.4th 731, 783-785, it humanized
Officer Ganz and provided some sense of the loss suffered by his family, and it
supplemented but did not duplicate their testimony. (Accord, State v. Gray (Mo.
1994) 887 S.W.2d 369, 389.) As such, the trial court did not abuse its discretion
in admitting it.
38
(b) Memorial and funeral services
The jury also viewed a six-minute, edited videotape highlighting Officer
Ganz‟s memorial and funeral services.14 The videotape began with Officer
Ganz‟s casket draped in an American flag and with his officer‟s peaked cap on top
of it; the casket was near a church chancel and numerous uniformed officers filed
in and sat down. The officers then were seen leaving the church, and the casket
was escorted out of the church and into a hearse. Next was an overhead shot of
the funeral procession, which included numerous police motorcycles. The
procession arrived at the gravesite, and Officer Ganz‟s mother refused to get out of
her vehicle. Officer Ganz‟s police motorcycle, towed in a trailer, then arrived.
There were several shots of various people crying, including a Marine in full dress
uniform, who was Officer Ganz‟s best friend. A bagpiper led the procession to the
gravesite, and numerous officers saluted the casket as it passed. An honor guard
folded the American flag and presented it to one of Officer Ganz‟s sisters, who in
turn gave it to their mother. Three members of an honor guard then were seen
performing a three-volley rifle salute. Don was crying as he was presented with
Officer Ganz‟s cap, and he was seen being comforted by his family. The
videotape concluded with several officers passing by the casket; one left flowers
14
Defendant also contends the witnesses‟ testimony about Officer Ganz‟s
funeral was prejudicial and irrelevant. For example, one of Officer Ganz‟s sisters
and his fiancée briefly discussed their role in arranging his funeral. Evidence of
the emotional and financial cost involved in planning and attending a funeral is
relevant and admissible as circumstances of the crime. (People v. Harris, supra,
37 Cal.4th at pp. 328, 351-352; see People v. Dykes, supra, 46 Cal.4th at p. 780
[“moving” description of ordering the victim‟s casket].) Moreover, defendant
never objected to witnesses testifying about Officer Ganz‟s funeral and thus has
forfeited this claim on appeal. (E.g., People v. Robinson, supra, 37 Cal.4th at
p. 652.) In addition, videotape and photographic evidence may assist the jury in
understanding and evaluating witnesses‟ testimony and thus is not necessarily
cumulative. (People v. Pollock (2004) 32 Cal.4th 1153, 1171.)
39
on top of it. Other than the rifle salute and two clips of the bagpipes playing, the
only audio on the videotape consisted of brief periods of church bells tolling and a
woman singing. The prosecutor indicated a television station had shot the footage,
but it was not professionally edited.
Defendant cites other jurisdictions‟ prohibition of gravesite evidence.
(State v. Storey (Mo. 2001) 40 S.W.3d 898, 909 [admission of a photograph of the
victim‟s tombstone was harmless error]; Welch v. State (Okla.Crim.App. 2000)
2 P.3d 356, 373 [admission of testimony about placing flowers on the victim‟s
grave was harmless error].) In contrast, we have not prohibited such evidence.
(People v. Harris, supra, 37 Cal.4th at pp. 351-352 [photographs of the victim‟s
gravesite were relevant to the effect the murder had on her family; testimony about
the effect of the accidental opening of the victim‟s closed casket during the funeral
service was harmless error]; see People v. Zamudio (2008) 43 Cal.4th 327, 367-
368 [rejecting a challenge to the grave marker photographs included in a
videotaped montage]; People v. Kelly (2007) 42 Cal.4th 763, 797 [videotape ended
with a brief view of the victim‟s grave marker]; People v. Jurado, supra, 38
Cal.4th at pp. 133-134 [finding no error in the admission of testimony concerning
relatives‟ visits to the victim‟s gravesite].)
Defendant also cites Salazar v. State, supra, 90 S.W.3d 330, and U.S. v.
Sampson (D.Mass. 2004) 335 F.Supp.2d 166 in challenging the use of videotape
evidence. We have acknowledged the constitutional issues implicated by these
cases. (People v. Kelly, supra, 42 Cal.4th at pp. 796-799; People v. Prince, supra,
40 Cal.4th at pp. 1286-1291; People v. Robinson, supra, 37 Cal.4th at p. 652.) But
in contrast to the videotapes in Salazar and Sampson, the videotape here was
shorter in length, did not include images of Officer Ganz as a child, was not a
eulogy (as all actual eulogies from the ceremony were edited out), was not
enhanced by narration or visual imagery, and was not accompanied by an
40
extensive audio track playing sentimental music. Although the videotape was
prepared for the penalty phase, it depicted actual events and was not of
professional quality.
To be sure, the videotape did emphasize Officer Ganz‟s death (cf. People v.
Kelly, supra, 42 Cal.4th at pp. 796-797), and some of the images on the videotape
were evocative: The flag ceremony, the rifle salute, and the bagpipes were not
particularly relevant to the effect of Officer Ganz‟s murder on his family and
friends, and tended to produce an emotional response from the viewer. Emotional
evidence of how a community mourns the loss of a beloved citizen, however, does
not necessarily violate the federal or the state Constitutions. (See People v. Dykes,
supra, 46 Cal.4th at p. 780 [victim‟s school conducted a memorial service];
People v. Huggins, supra, 38 Cal.4th at pp. 237-239 [statue of the victim erected
by the community].) Moreover, victim impact evidence need not be limited to
testimony that merely implies loss, grief, and anguish; it may also demonstrate it.
(People v. Mills (2010) 48 Cal.4th 158, 211-212 [upholding the admission of a
videotape capturing the victim‟s boyfriend‟s reaction to news of her death]; see
People v. Davis (2009) 46 Cal.4th 539, 618-619 [upholding the admission of a
photograph of the victim‟s “visibly upset” mother taken on the night of the
crime].) In sum, the trial court did not abuse its discretion in admitting this
videotape.
b. Evidence unrelated to the capital offense
As noted, during the penalty phase, the prosecutor presented dozens of
witnesses, many of whom were victims of defendant‟s prior criminal activity.
During the course of their testimony, many of them described the lasting effect of
their experiences. Defendant contends the trial court erred by failing to exclude
this evidence as irrelevant and unduly prejudicial.
41
Prior to defendant‟s trial, the trial court granted defendant‟s motion in
limine to exclude victim impact evidence concerning Catalina Correa‟s murder.
After the prosecutor‟s penalty phase opening statement, defendant raised a number
of concerns regarding the evidence the prosecutor intended to introduce.
The parties disagree as to whether defendant adequately objected to the
introduction of evidence concerning the impact on victims other than Correa and
Officer Ganz;15 if defendant failed to object, this claim is forfeited on appeal.
(Evid. Code, § 353, subd. (a); see, e.g., People v. Kelly, supra, 42 Cal.4th at
p. 793.) Regardless of whether defendant‟s motion in limine or post-opening-
statement objections encompassed the introduction of victim impact evidence
related to his other crimes, and thus preserved the issue for appeal, such evidence
was properly admitted.16 The circumstances of uncharged violent criminal
conduct, including its impact on the victims of that conduct, are admissible under
section 190.3, factor (b). (People v. Bramit, supra, 46 Cal.4th at p. 1241.)
Citing Payne v. Tennessee, supra, 501 U.S. at page 830, footnote 2,
defendant contends these victims did not simply testify about the impact of his
crimes but improperly gave characterizations and opinions about him and his
crimes. Not so. For example, although various victims described defendant as
having “cold dead eyes, almost like a shark‟s,” or as being “cold, empty” (that
witness also testified, “when I looked into his eyes I saw death”), or as having an
15
For example, defendant did object on relevance grounds to one of the bank
tellers testifying about the effect his robbing her bank had had on her, but he did
not object to similar testimony from other witnesses.
16
The parties similarly disagree as to whether the prosecutor violated the trial
court‟s order not to introduce this victim impact evidence, but defendant never
raised an objection at trial on this basis. Regardless, such evidence was
admissible.
42
“evil look,” these are not after-the-fact opinions about defendant or his crimes, but
rather percipient witnesses‟ descriptions (albeit colorful) of his demeanor during
the commission of the crimes. As fear may be an element of the crime of robbery
(§ 211), testimony about how defendant caused the victims to fear him was
relevant and not improper victim impact evidence.
Defendant contends this victim impact evidence should have been excluded
under Evidence Code section 352 as misleading, cumulative, or unduly
inflammatory. Defendant has not demonstrated how any of the victim impact
evidence was misleading. Moreover, the testimony regarding the residual fear or
anxiety suffered by the robbery victims was brief and not unduly inflammatory or
prejudicial.17 To the extent defendant contends the prosecution‟s witnesses were
cumulative to each other, he generally has forfeited this claim by failing to raise it
in the trial court.18 Moreover, although numerous witnesses testified, defendant
committed numerous robberies, and the jury was entitled to hear about his
extensive criminal history and the impact it had on his victims.
Citing People v. Box (2000) 23 Cal.4th 1153, 1201, defendant contends the
victim impact evidence unfairly persuaded the jurors to find that he had committed
these crimes. The trial court properly instructed the jury with CALJIC No. 8.87,
which provided, “Before a juror may consider any criminal activity as an
17
Similarly, the trial court did not abuse its discretion in overruling
defendant‟s objections to the prosecutor‟s use of two large-scale maps (of the Los
Angeles area and the Washington-Oregon border) that were annotated with the
locations, dates, and victims of defendant‟s crimes.
18
With respect to one of the grocery store robberies, defendant did object to
one witness‟s testimony as cumulative, as this witness was the third person to
testify about that particular robbery. The trial court overruled the objection,
finding this witness had observed acts that the other witnesses had not, thus
making the testimony not cumulative. We see no abuse of discretion in the ruling.
43
aggravating circumstance in this case, a juror must first be satisfied beyond a
reasonable doubt that the defendant did in fact commit the activity.” We presume
the jury understood and followed this instruction. (See, e.g., People v. Butler,
supra, 46 Cal.4th at p. 873.) In any event, the uncontested evidence at trial
demonstrated defendant committed these prior crimes. For example, defendant
contends the evidence implicating him in the pharmacy robbery was particularly
weak, yet he was identified as the assailant and law enforcement personnel found,
at his parents‟ residence, a ski mask and ammunition that matched those used in
the pharmacy robbery.
c. Cumulative effect
We have found no prejudicial error in the victim impact evidence the trial
court admitted in this case. Nonetheless, defendant contends the sheer quantity
and variety of victim impact evidence admitted had a cumulative effect on the
verdict. Trial courts, of course, must exercise their discretion to exclude under
Evidence Code section 352 evidence that is unduly cumulative. The record shows
the trial court did exercise its discretion in determining what victim impact
evidence was to be admitted with respect both to its emotional impact and its
repetitiveness. Moreover, this is not a case where the victim impact evidence was
significantly disproportionate to the mitigating evidence. The defense presented
extensive mitigating evidence of defendant‟s family background; his harsh
childhood, including his father‟s physical abuse of his mother and of defendant;
and his possible mental impairments. There was no cumulative error with respect
to the evidence that was admitted.
2. Prosecutor’s Closing Argument
Defendant contends the prosecutor committed misconduct during her
closing argument by appealing to passion and prejudice, commenting on his
44
silence, arguing facts not in evidence, arguing based on speculation, appealing to
vengeance, and appealing to religious beliefs.
Defendant failed to object at trial to many of the claimed instances of
misconduct that he raises here, and accordingly he has forfeited any appellate
contentions regarding those claims. (See, e.g., People v. Friend (2009) 47 Cal.4th
1, 29; People v. Hill (1998) 17 Cal.4th 800, 820.) In any event, defendant‟s
contentions lack merit.
A prosecutor‟s conduct violates the federal Constitution when it infects the
trial with unfairness, and violates state law if it involves the use of deceptive or
reprehensible methods of persuasion. (See, e.g., People v. Friend, supra, 47
Cal.4th at p. 29, citing Darden v. Wainwright (1986) 477 U.S. 168, 181.) When
the claim focuses on the prosecutor‟s comments to the jury, we determine whether
there was a reasonable likelihood the jury construed or applied the remarks in an
objectionable fashion. (See, e.g., Friend, at p. 29.) Under that standard, we reject
each of defendant‟s claims.
a. Appealing to passion and prejudice
Defendant contends the prosecutor sought to arouse the jurors‟ fear of
crime by comparing crime to a deadly virus, and also sought to appeal to their
gratitude to law enforcement for being the “protectors” of society. The prosecutor,
while gesturing toward police officers in the courtroom, quoted at some length
from a speech given at the dedication of a monument honoring officers killed in
the line of duty that praised the “valiant” men and women who protect the
citizenry from the “marauders and the enemies.” A prosecutor‟s argument,
however, may draw upon common experience and knowledge, and reminding the
jurors that society depends on law enforcement to ensure security and peace in the
community is proper commentary about the role of law enforcement. (See, e.g.,
45
People v. Ervine, supra, 47 Cal.4th at p. 808; People v. Brown, supra, 33 Cal.4th
at pp. 399-400; People v. Mayfield, supra, 14 Cal.4th at pp. 803-804.) Moreover,
contrary to defendant‟s assertion, the prosecutor did not attempt to appeal to the
jurors‟ sense of loyalty or patriotism, but rather rightly noted that the murder of a
peace officer engaged in performing official duties is a particularly aggravated
form of murder.
Defendant also contends the prosecutor conflated the victim impact
evidence with an appeal to jurors‟ solidarity with law enforcement, by discussing
Officer Ganz‟s service as a police officer. Evidence of Officer‟s Ganz‟s service
was properly before the jury, and the prosecutor‟s remarks were reasonable
comment on that evidence.
Defendant further contends the prosecutor‟s argument left jurors with the
impression they were “duty bound” by their oaths to vote for a death sentence.19
The prosecutor argued to the jury: “This is a case where society cries out for the
death penalty. As jurors, you are . . . the conscience of society.” But the
prosecutor‟s argument was nothing more than reasonable commentary on the
evidence presented and a call to vote for death based on that evidence; she did not
mislead the jury about its role. (See, e.g., People v. Young (2005) 34 Cal.4th
1149, 1222 [rejecting a challenge where the prosecutor “urged the jury to impose
the death penalty because it would be „good for society‟ and „teach‟ society a
moral lesson”]; People v. Marlow (2004) 34 Cal.4th 131, 152 [prosecutor‟s
argument that the defendant‟s conduct had “ „crossed the line‟ „where we as a
19
To underscore this theme, throughout the prosecutor‟s argument she
displayed a sign with a quotation attributed to Edmund Burke: “ABOUT THE
ONLY THING NECESSARY FOR EVIL TO TRIUMPH IS FOR GOOD MEN
TO DO NOTHING.” (Bartlett, Familiar Quotations (15th ed. 1980) p. 374.)
46
society say enough‟ ” was proper argument based on reasonable inferences from
the method of killing]; People v. Hardy (1992) 2 Cal.4th 86, 211 [prosecutor‟s
argument that the jury “was „obligated as members of this society . . .‟ to return a
death verdict if it found the aggravating evidence outweighed the mitigating
evidence,” in conjunction with the jury instructions, did not mislead the jury about
the scope of its sentencing discretion].) Moreover, to refer to the jury as the
conscience of society is not improper. (See People v. Ledesma (2006) 39 Cal.4th
641, 741.)
Finally, defendant contends the prosecutor‟s use of the “Bengal tiger”
metaphor (see People v. Duncan (1991) 53 Cal.3d 955, 976) was a thinly veiled
racist allusion to his Vietnamese heritage. As we noted in Duncan, likening a
murderer to a wild animal does not necessarily invoke racial overtones. (Id. at
p. 977; cf. Howarth, Representing Black Male Innocence (1997) 1 J. Gender Race
& Just. 97, 136-138.) On the record before us, it appears the prosecutor‟s
argument was intended merely to note that defendant‟s docile behavior in the
courtroom was not irreconcilable with his violent conduct in less controlled
circumstances. (See, e.g., People v. Valencia (2008) 43 Cal.4th 268, 307.)
b. Commenting on his silence
Defendant contends the prosecutor commented on his silence, in violation
of Griffin v. California, supra, 380 U.S. 609, when she argued, “[W]e have heard
no evidence at all of any remorse from [defendant] . . . .” The prosecutor,
however, noted the lack of evidence and did not refer to defendant‟s silence; a
prosecutor is entitled during closing argument to highlight a defendant‟s lack of
remorse, and doing so does not necessarily violate Griffin. (See, e.g., People v.
Hughes (2002) 27 Cal.4th 287, 393-394.) If defendant had appeared sorry in front
of another person, performed an act of contrition, apologized to any of his victims,
47
or otherwise demonstrated any remorse, a witness other than he could have
testified about such acts or statements, but none did.
c. Arguing facts not in evidence
In an attempt to undermine defendant‟s claim that his father Phillip was an
uncaring parent, the prosecutor noted Phillip took out a second mortgage on the
family home in order to travel to see defendant while he was in federal custody.
Defendant‟s contrary contention notwithstanding, his mother Diep testified Phillip
did just that. As such, the prosecutor‟s argument was an accurate comment on the
evidence presented.
d. Arguing based on speculation
Defendant contends the prosecutor improperly speculated that defendant
would pose an ongoing threat to prison personnel if he were not sentenced to
death. As defendant concedes, a prosecutor properly may argue the potential risk
of a capital defendant‟s future violence when the argument is based on evidence of
past crimes. (See, e.g., People v. Zambrano (2007) 41 Cal.4th 1082, 1179.) The
prosecutor‟s argument concerning defendant‟s dangerousness in prison was proper
rebuttal of an expert witness‟s testimony about defendant‟s ability to function in a
highly structured environment. (See People v. Davis (1995) 10 Cal.4th 463, 540.)
Given defendant‟s murder of Catalina Correa, the numerous armed robberies, and
his expert‟s concession that his MMPI results were similar to those of persons who
have problems adjusting to prison life, the prosecutor‟s argument was a reasonable
commentary on the evidence.
e. Appealing to vengeance
Defendant contends the prosecutor argued to the jury that it ought to avenge
the murders of Officer Ganz and Catalina Correa by returning a death verdict. The
prosecutor argued, “I suggest that you show [defendant] the same sympathy that
48
he showed to Martin Ganz and the same sympathy that he showed to Catalina
Correa” and “there is no sympathy for any human so great to outweigh the
aggravating factors in this case.” As defendant concedes, we repeatedly have
ruled it is not misconduct for a prosecutor to ask the jury to show a defendant the
same lack of sympathy the defendant showed the victims (see, e.g., People v.
Kennedy (2005) 36 Cal.4th 595, 636), and we do so again here.
Even if the prosecutor‟s arguments were not a proper rebuttal to
defendant‟s plea for sympathy, but rather a call for vengeance, isolated references
to retribution or community vengeance do not constitute misconduct. (See People
v. Davenport (1995) 11 Cal.4th 1171, 1222.)
f. Appealing to religious beliefs
Defendant contends the prosecutor directly invoked religion during her
closing argument. While discussing Catalina Correa‟s murder, the prosecutor
said: “And what I thought was particularly telling, she died wearing her cross.
And there was not one thing she did to deserve her life ending in that manner.”
The prosecutor concluded her argument by saying, “I ask you to let this Christmas
and two days after on the 27th, which will be the fifth year anniversary of the
murder of Martin Ganz, let this be the Christmas and this be the anniversary of his
death, that those who knew him and loved him can finally have a sense that some
justice has occurred.”20
Arguments that refer to religion in an effort to convince the jury to impose
the death penalty are improper. (E.g., People v. Zambrano, supra, 41 Cal.4th at
pp. 1169-1170.) The prosecutor‟s arguments, however, did not appeal to a
20
The prosecutor gave her closing argument approximately 10 days before
Christmas in 1998.
49
religious authority in urging the jury to return a death verdict. Even were we to
assume the prosecutor‟s remarks constituted improper references to religion, they
did not diminish the jury‟s sense of responsibility to follow the trial court‟s
instructions, and there is no reasonable likelihood the jury applied the remarks in
an objectionable fashion. (See People v. Friend, supra, 47 Cal.4th at p. 29; see,
e.g., People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1059-1061.)
3. Jury Instruction on a Juror’s Refusal to Deliberate
Defendant contends the trial court erred in instructing the jury, over his
objection, with CALJIC No. 17.41.1 concerning the obligation of the other jurors
if a juror refuses to deliberate.21
Since defendant‟s trial, we have disapproved this instruction but, as
defendant concedes, we previously have rejected similar claims that the instruction
violates a defendant‟s federal constitutional rights, and we do so again here. (See,
e.g., People v. Wilson (2008) 44 Cal.4th 758, 805-806.)
4. Denial of Defendant’s Automatic Application for Modification of
the Death Verdict
Defendant contends the trial court erred under state law when, in denying
his automatic application for modification of the death verdict, it failed to
determine independently whether the death penalty was appropriate in light of the
relevant evidence and applicable law.
21
CALJIC No. 17.41.1, as modified and read by the trial court, provided:
“The integrity of a trial requires that jurors, at all times during their deliberations,
conduct themselves as required by these instructions. Accordingly, should it occur
that any juror is refusing to deliberate or expresses an intention to disregard the
law or to decide the case based on any improper basis, it is the obligation of the
other jurors to immediately advise the Court of the situation.”
50
In ruling on defendant‟s application for modification of the verdict, the trial
court must reweigh the evidence; consider the aggravating and mitigating
circumstances; and determine whether, in its independent judgment, the weight of
the evidence supports the jury‟s verdict. (See, e.g., People v. Carrington, supra,
47 Cal.4th at p. 201.) On appeal, although the trial court‟s ruling is subject to
independent review, we do not make a de novo determination of penalty. (See,
e.g., People v. Wallace (2008) 44 Cal.4th 1032, 1096.)
Defendant failed to assert most of the claims he raises here when the trial
court ruled on the automatic application, and accordingly he has forfeited any
appellate contentions regarding those claims. (See People v. Riel (2000) 22
Cal.4th 1153, 1220 [contemporaneous objection rule applies to cases in which the
modification hearing was conducted after this court‟s decision in People v. Hill
(1992) 3 Cal.4th 959 became final].) In any event, defendant‟s claims lack merit
as the weight of the evidence supported the jury‟s verdict.
Defendant contends the trial court failed to meaningfully evaluate the
evidence of his mental disorder under section 190.3, factor (k) or to give it the
proper weight under other sentencing factors. In denying defendant‟s automatic
application, the trial court explicitly rejected his argument based on his mental
condition, finding his expert‟s opinion that he suffered from a brain disorder was
“feeble.” The trial court also rejected defendant‟s claim that he suffered from any
extreme mental or emotional disturbance during the commission of the crimes.
The trial court acknowledged the evidence of defendant‟s traumatic childhood and
cited factor (k), but found that evidence was outweighed greatly by the evidence in
aggravation.
Defendant also contends there was insufficient evidence to support his first
degree murder conviction and the special circumstance of commission of a murder
to avoid lawful arrest, and the trial court failed to consider this when ruling upon
51
his automatic application. This claim fails, as the trial court explicitly found
defendant was guilty beyond a reasonable doubt and that he killed Officer Ganz
with the requisite premeditation and for the purpose of avoiding a lawful arrest.
Defendant contends the trial court erred by relying on the testimony of the
victims of his prior crimes regarding how his crimes had affected their lives. Such
evidence is relevant and admissible. (See, e.g., People v. Davis, supra, 46 Cal.4th
at pp. 617-619.)
Defendant also contends the trial court erred by conducting a “piecemeal”
evaluation of the mitigating evidence, which had the effect of reducing the weight
of the entirety of the mitigating evidence. The trial court, however, explicitly
stated it had reviewed “all of the evidence available,” and had “carefully and
separately” weighed the aggravating and mitigating factors. There is no evidence
the trial court considered the mitigating factors in piecemeal fashion. (See People
v. Lucero (2000) 23 Cal.4th 692, 738.)
Finally, as the trial court did not commit any errors when denying
defendant‟s automatic motion, there are no errors to cumulate on review.
5. Arbitrary Imposition of the Death Penalty
Defendant contends the death penalty in California is imposed arbitrarily
and capriciously depending on the county in which the case is prosecuted.
Prosecutorial discretion to select in which eligible cases the death penalty
will actually be sought is not evidence of an arbitrary and capricious death penalty
system. (See, e.g., People v. Bennett (2009) 45 Cal.4th 577, 629.) Contrary to
defendant‟s contention, the voting rights case Bush v. Gore (2000) 531 U.S. 98
does not compel a different result. (See, e.g., Bennett, at p. 629, fn. 19.)
52
6. Delay in the Appointment of Appellate Counsel
Defendant contends the nearly 33-month delay between the entry of
judgment and the appointment of appellate counsel violated his federal
constitutional rights to equal protection and due process.
As defendant concedes, we previously have ruled the delay in appointing
counsel and processing the appeal is necessary to protect condemned prisoners‟
rights, and we do so again here. (See, e.g., People v. Lewis and Oliver, supra, 39
Cal.4th at p. 1068.)
7. Execution Following Lengthy Confinement
Defendant contends the delay in executing him has resulted in an extended,
degrading, and solitary incarceration on death row that has caused extraordinary
psychological distress and thus constitutes cruel and unusual punishment. (U.S.
Const., 5th, 6th, 8th & 14th Amends.; Cal. Const., art. I, §§ 7, 15-17.)
We previously have rejected similar claims, and we do so again here. (See,
e.g., People v. Davis, supra, 46 Cal.4th at p. 628.)
8. Constitutional Challenges to California’s Death Penalty Statute
Defendant contends his death sentence violated various guarantees under
the federal Constitution. (U.S. Const., 5th, 6th, 8th & 14th Amends.) As we have
in other cases, we reject defendant‟s contentions. Specifically:
California‟s death penalty statute is not impermissibly broad and
adequately narrows the class of death-eligible defendants. (See, e.g., People v.
Davis, supra, 46 Cal.4th at p. 627.)
Section 190.3, factor (a), whether considered on its face or as applied, does
not allow for arbitrary and capricious imposition of the death penalty. (Tuilaepa v.
California (1994) 512 U.S. 967, 975-976; see, e.g., People v. Martinez (2009) 47
Cal.4th 399, 454.)
53
A death sentence need not be premised on findings (either beyond a
reasonable doubt or by a preponderance of the evidence) by a unanimous jury that
one or more aggravating factors exist, that these factors outweigh the mitigating
factors, and that death is the appropriate penalty. (See, e.g., People v. Burney,
supra, 47 Cal.4th at pp. 267-268.) No “tie-breaking rule” is necessary, and the
jury need not be instructed that there is no burden of proof. (See, e.g., People v.
Bennett, supra, 45 Cal.4th at p. 632.) Contrary to defendant‟s contention, neither
Apprendi v. New Jersey (2000) 530 U.S. 466 nor Ring v. Arizona (2002) 536 U.S.
584 compels a different result. (See, e.g., People v. Martinez, supra, 47 Cal.4th at
p. 455.)
The federal Constitution does not require written jury findings during the
penalty phase. (See, e.g., People v. Burney, supra, 47 Cal.4th at pp. 267-268.)
Intercase proportionality review is not constitutionally required. (See, e.g.,
People v. Martinez, supra, 47 Cal.4th at p. 455.)
The jury need not be instructed as to which sentencing factors are
aggravating and which are mitigating. (See, e.g., People v. Samayoa (1997) 15
Cal.4th 795, 862.)
Equal protection does not require that capital defendants be afforded the
same sentence review afforded other felons sentenced under the determinate
sentencing law. (See, e.g., People v. Martinez, supra, 47 Cal.4th at p. 456.)
Despite the abolition of the death penalty in the majority of nations
(including all of Western Europe), California‟s assertedly regular imposition of the
death penalty as punishment for a substantial number of homicides does not
violate international law or norms. (See, e.g., People v. Carrington, supra, 47
Cal.4th at pp. 198-199.)
54
CONCLUSION
The judgment is affirmed.
WERDEGAR, J.
WE CONCUR:
GEORGE, C. J.
KENNARD, J,
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
55
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Brady
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S078404
Date Filed: August 9, 2010
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Stephen E. O‟Neil
__________________________________________________________________________________
Attorneys for Appellant:
Susan K. Marr, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R Gorey and Noah P. Hill, Deputy Attorneys General, for
Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Susan K. Marr
9462 Winston Drive
Brentwood, TN 37027
(615) 661-8760
Noah P. Hill
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 897-8884
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: |
| Mon, 08/09/2010 | 50 Cal. 4th 547, 236 P.3d 312, 113 Cal. Rptr. 3d 458 | S078404 | Automatic Appeal | submitted/opinion due |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Noah Hill, Deputy Attorney General 300 S. Spring Street, 5th Floor Los Angeles, CA |
| 2 | Brady, Roger Hoan (Appellant) San Quentin State Prison Represented by Susan Kerans Massey Attorney at Law 9462 Winston Drive Brentwood, TN |
| Opinion Authors | |
| Opinion | Justice Kathryn M. Werdegar |
| Dockets | |
| Mar 16 1999 | Judgment of death |
| Apr 27 1999 | Filed certified copy of Judgment of Death Rendered 3-16-99. |
| Apr 27 1999 | Penal Code sections 190.6 et seq. apply to this case |
| Oct 6 1999 | Record certified for completeness |
| Jan 5 2001 | Filed: Application for appointment of counsel (IFP form) |
| Dec 5 2002 | Counsel appointment order filed appointing Susan K. Marr to represent appellant for the direct appeal. |
| Dec 23 2002 | Date trial court delivered record to appellant's counsel (14,966 pp. record) (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.) (Note: record was mailed on 12-18-2002.) |
| Dec 23 2002 | Received: notice from superior court that 14,966 page record was transmitted to counsel on 12-18-2002. |
| Dec 24 2002 | Appellant's opening brief letter sent, due: Sept. 19, 2003. (pursuant to Calif. Rules of Court, rule 39.57(b)) |
| Feb 24 2003 | Counsel's status report received (confidential) from atty Marr. |
| Mar 5 2003 | Compensation awarded counsel Atty Marr |
| Apr 8 2003 | Counsel's status report received (confidential) from atty Marr. |
| Jun 10 2003 | Counsel's status report received (confidential) from atty Marr. |
| Oct 3 2003 | Counsel's status report received (confidential) from attorney Marr. |
| Oct 3 2003 | Application for relief from default filed to file appellant's opening brief. |
| Oct 3 2003 | Request for extension of time filed to file appellant's opening brief. (1st request) |
| Oct 21 2003 | Extension of time granted Appellant's request for relief from default is granted. Extension of time to 11/18/2003 to file appellant's opening brief. After that date, only four further extensions totaling 220 additional days will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 6/30/2004. |
| Nov 3 2003 | Received copy of appellant's record correction motion Application to correct and complete the record on appeal. (29 pp. excluding attachments) |
| Nov 18 2003 | Request for extension of time filed to file appellant's opening brief. (2nd request) |
| Nov 21 2003 | Extension of time granted to 1/20/2004 to file appellant's opening brief. After that date, only three further extensions totaling about 160 additional days will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 6/30/2004. |
| Jan 9 2004 | Counsel's status report received (confidential) from atty Marr. |
| Jan 12 2004 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Jan 14 2004 | Extension of time granted to 3/22/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 6/30/2004. |
| Jan 26 2004 | Compensation awarded counsel Atty Marr |
| Mar 3 2004 | Compensation awarded counsel Atty Marr |
| Mar 12 2004 | Counsel's status report received (confidential) from atty Marr. |
| Apr 7 2004 | Filed: Request for relief from default for failing to file AOB or motion for extension of time. |
| Apr 12 2004 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| Apr 12 2004 | Extension of time granted Appellant's request for relief from default to file a request for extension of time to file the appellant's opening brief is granted. Extension of time is granted to 5/21/2004 to file appellant's opening brief. After that date, only one further extension totaling about 50 additional days will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 6/30/2004. |
| Apr 15 2004 | Record certified for accuracy |
| May 17 2004 | Counsel's status report received (confidential) from atty Marr. |
| May 18 2004 | Compensation awarded counsel Atty Marr |
| Jun 7 2004 | Record on appeal filed clerk's transcript 40 volumes (10251 pp.) and reporter's transcript 26 volumes (4792 pp.), including material under seal; ASCII disks. Clerk's transcript includes 5972 pp. of juror questionnaires. |
| Jun 7 2004 | Letter sent to: counsel advising that the record on appeal, certified for accuracy, was filed this date. |
| Jun 10 2004 | Application for relief from default filed by appellant for failing to file opening brief or request for extension of time. |
| Jun 15 2004 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Jun 15 2004 | Extension of time granted Appellant's application for relief from default for failure to file appellant's opening brief or a timely motion for extension of time is granted. Extension of time is granted to 7/20/2004 to file appellant's opening brief. No further extension of time is contemplated. |
| Jun 16 2004 | Compensation awarded counsel Atty Marr |
| Jun 23 2004 | Compensation awarded counsel Atty Marr |
| Jul 20 2004 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Jul 23 2004 | Extension of time granted to 9-17-2004 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel Susan K. Marr's representation that she anticipates filing the brief by 9-17-2004. |
| Sep 16 2004 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Sep 17 2004 | Extension of time granted to 11/16/2004 to file appellant's opening brief. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 11/16/2004. After that date, no further extension will be granted. |
| Nov 16 2004 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Nov 17 2004 | Extension of time granted to 1/3/2005 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing tha brief by 12/31/2004. |
| Jan 3 2005 | Request for extension of time filed to file appellant's opening brief. (9th request) |
| Jan 5 2005 | Extension of time granted to 3/4/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 6/1/2005. |
| Feb 14 2005 | Counsel's status report received (confidential) from atty Marr. |
| Feb 23 2005 | Compensation awarded counsel Atty Marr |
| Mar 7 2005 | Request for extension of time filed to file appellant's opening brief. (10th request) |
| Mar 14 2005 | Extension of time granted to 5/4/2005 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 6/1/2005. |
| May 3 2005 | Request for extension of time filed to file appellant's opening brief. (11th request) |
| May 3 2005 | Counsel's status report received (confidential) from atty Marr. |
| May 10 2005 | Extension of time granted to 6/17/2005 to file appellant's opening brief. Extension is granted based upon counsel Susan Marr's representation that she anticipates filing that brief by 6/17/2005. After that date, no further extension will be granted. |
| Jun 17 2005 | Request for extension of time filed to file appellant's opening brief. (12th request) |
| Jun 21 2005 | Extension of time granted to 8/16/2005 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 11/2005. |
| Jul 1 2005 | Counsel's status report received (confidential) from atty Marr. |
| Jul 20 2005 | Compensation awarded counsel Atty Marr |
| Jul 26 2005 | Counsel's status report received (confidential) from atty Marr. |
| Aug 16 2005 | Request for extension of time filed to file appellant's opening brief. (13th request) |
| Sep 7 2005 | Extension of time granted to 10/14/2005 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 11/2005. |
| Sep 14 2005 | Counsel's status report received (confidential) from atty Marr. |
| Oct 14 2005 | Request for extension of time filed to file appellant's opening brief. (14th request) |
| Oct 20 2005 | Extension of time granted to 11/15/2005 to file appellant's opening brief. Extension is based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 11/15/2005. After that date, no further extension is contemplated. |
| Nov 15 2005 | Request for extension of time filed to file appellant's opening brief. (15th request) |
| Nov 15 2005 | Counsel's status report received (confidential) from atty Marr. |
| Nov 28 2005 | Extension of time granted to 1/16/2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by January 17, 2006. |
| Jan 17 2006 | Request for extension of time filed to file appellant's opening brief. (16th request) |
| Jan 20 2006 | Extension of time granted to 2/14/2006 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by 2/13/2006. |
| Feb 14 2006 | Request for extension of time filed to file appellant's opening brief. (17th request) |
| Feb 17 2006 | Extension of time granted to February 28, 2006 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel Susan K. Marr's representation that she anticipates filing that brief by February 28, 2006. |
| Mar 9 2006 | Application to file over-length brief filed to file appellant's opening brief. (104,280 word brief submitted under separate) (Counsel advised to submit application for relief from default - AOB due February 28, 2006) |
| Mar 10 2006 | Application for relief from default filed to file appellant's opening brief. |
| Mar 13 2006 | Order filed Appellant's "Request for Relief From Default" and "Motion to File Overlength Brief" is granted. |
| Mar 13 2006 | Appellant's opening brief filed (104,280 words; 363 pp.) |
| Mar 13 2006 | Respondent's brief letter sent; due: September 25, 2006 |
| Mar 15 2006 | Compensation awarded counsel Atty Marr |
| Sep 18 2006 | Request for extension of time filed to file respondent's brief. (1st request) |
| Sep 21 2006 | Extension of time granted to November 27, 2006 to file respondent's brief. |
| Nov 21 2006 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Nov 30 2006 | Extension of time granted to January 26, 2007 to file the respondent's brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted based upon Deputy Attorney General Noah P. Hill's representation that he anticipates filing that brief by February 26, 2007. |
| Jan 23 2007 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Jan 29 2007 | Extension of time granted to March 28, 2007 to file respondent's brief. Extension is granted based upon Deputy Attorney General Noah P. Hill's representation that he anticipates filing that brief by March 28, 2007. After that date, no further extension is contemplated. |
| Mar 26 2007 | Request for extension of time filed to file respondent's brief. (4th request) |
| Apr 6 2007 | Extension of time granted to April 9, 2007 to file respondent's brief. Extension is granted based upon Deputy Attorney General Noah P. Hill's representation that he anticipates filing that brief by April 9, 2007. After that date, no further extension will be granted. |
| Apr 6 2007 | Respondent's brief filed (64624 words; 205 pp.) |
| Apr 10 2007 | Note: appellant's reply brief due: June 5, 2007 (see Calif. Rules of Court, Rule 8.630(c)(D)) |
| Jun 4 2007 | Request for extension of time filed to file appellant's reply brief. (1st request) |
| Jun 6 2007 | Extension of time granted to July 5, 2007 to file appellant's reply brief. |
| Jul 9 2007 | Request for extension of time filed to file reply brief. (2nd request) |
| Jul 12 2007 | Extension of time granted to September 4, 2007 to file the appellant's reply brief. After that date, only three further extensions totaling about 180 additional days are contemplated. Extension is granted based upon counsel Susan K. Marr's representation that he anticipates filing that brief by March 2008. |
| Sep 6 2007 | Note: |
| Sep 7 2007 | Note: |
| Sep 17 2007 | Application for relief from default filed (appellant's) |
| Sep 19 2007 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Sep 19 2007 | Extension of time granted Appellant's request for relief from default is granted. Good cause appearing, and based upon counsel Susan K. Marr's representation that she anticipates filing the appellant's reply brief by March 2008, counsel's request for an extension of time in which to file that brief is granted to November 5, 2007. After that date, only two further extensions totaling about 120 additional days are contemplated. |
| Nov 5 2007 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Nov 27 2007 | Extension of time granted Good cause appearing, and based upon counsel Susan K. Marr's representation that she anticipates filing the appellant's reply brief by March 2008, counsel's request for an extension of time in which to file that brief is granted to January 4, 2008. After that date, only one further extension totaling about 60 additional days is contemplated. |
| Nov 30 2007 | Counsel's status report received (confidential) from atty Marr. |
| Dec 28 2007 | Compensation awarded counsel Atty Marr |
| Jan 14 2008 | Application for relief from default filed to file appellant's reply brief. |
| Jan 17 2008 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Jan 17 2008 | Extension of time granted Appellant's request for relief from default is granted. Good cause appearing, and based upon counsel Susan K. Marr's representation that she anticipates filing the appellant's reply brief by March 4, 2008, counsel's request for an extension of time in which to file that brief is granted to March 4, 2008. After that date, no further extension is contemplated. |
| Mar 5 2008 | Request for extension of time filed to file appellant's reply brief (6th request) |
| Mar 6 2008 | Extension of time granted Good cause appearing, and based upon counsel Susan K. Marr's representation that she anticipates filing the appellant's reply brief by May 2, 2008, counsel's request for anextension of time in which to file that brief is granted to May 2, 2008. After that date, no further extension is contemplated. |
| Apr 28 2008 | Appellant's reply brief filed (30,505 words; 87 pp.) |
| May 14 2008 | Compensation awarded counsel Atty Marr |
| Sep 30 2009 | Exhibit(s) lodged from superior court - people's exhibits 165 and 167. |
| Mar 10 2010 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the first May calendar, to be held the week of May 3, 2010, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument. |
| May 5 2010 | Case ordered on calendar to be argued Wednesday, June 2, 2010, at 9:00 a.m., in Los Angeles |
| May 6 2010 | Argument rescheduled to be argued Thursday, May 27, 2010, at 9:00 a.m. in San Francisco |
| May 17 2010 | Filed: respondent's focus issues letter, dated May 13, 2010. |
| May 17 2010 | Stipulation filed Stipulation by counsel Noah P. Hill, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 17 2010 | Filed: respondent's additional authorities letter, dated May 14, 2010. |
| May 17 2010 | Received: appearance sheet from Deputy Attorney General Noah P. Hill, indicating 45 minutes for oral argument for respondent. |
| May 18 2010 | Filed: appellant's oral argument letter, dated May 18, 2010. |
| May 27 2010 | Stipulation filed Stipulation by counsel Susan K. (Marr) Massey, that respondent has no objection to Justice Kennard's participation in the deliberations and decision in this matter notwithstanding her absence from oral argument. |
| May 27 2010 | Cause argued and submitted |
| Jun 9 2010 | Compensation awarded counsel Atty Marr |
| Aug 6 2010 | Notice of forthcoming opinion posted To be filed on Monday, August 9, 2010 @ 10 a.m. |
| Briefs | |
| Mar 13 2006 | Appellant's opening brief filed |
| Apr 6 2007 | Respondent's brief filed |
| Apr 28 2008 | Appellant's reply brief filed |
| Brief Downloads | |
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| |
| Dec 1, 2010 Annotated by lcarrillo | FACTS On December 27, 1993, Officer Martin Ganz of the Manhattan Beach Police Department stopped the defendant Roger Hoan Brady for a routine traffic infraction. Officer Ganz approached the defendant in his vehicle and spoke with him through the driver’s side window. Defendant then leaned towards the passenger seat and several witnesses reported hearing a loud popping noise. Officer Ganz crouched over and backed towards his patrol car while defendant followed him armed with a firearm. Defendant then proceeded to shoot Officer Ganz two more times, returned to his vehicle, and left the scene. Officer Ganz later died from his wounds. In the days following the incident a number of witnesses came forward and gave statements to the police. Defendant became a person of interest because of a tip received through a hotline. Defendant and his family eventually moved to Oregon and police executed a search warrant in that state. At the trial, the trial court excluded four pieces of evidence, obtained through the hotline that tended to indicate third-party liability. During the penalty phase the prosecution presented witnesses who testified about the impact Officer Ganz’s murder had on them, and the prior criminal history of the defendant. PROCEDURAL HISTORY A jury convicted the defendant of first-degree murder and returned a verdict of death. The trial court denied the automatic application to modify the verdict and this appeal was automatic. ISSUES Issues at guilt stage: 1. Did the trial court err by excluding evidence that possibly implicated other suspects? Issues at penalty phase and post-trial 1. Did the trial court err in admitting victim impact evidence? HOLDING The trial court’s verdict of death is affirmed. ANALYSIS Issues at guilt stage: 1. No. Only evidence that is relevant is admissible and the trial court did not abuse its discretion in excluding four clues from the hotline. Evidence that tends to implicate a third-party is relevant, but it is not admissible if it fails to establish a link between the third person and the actual commission of the crime. The four clues received through the hotline failed to sufficiently suggest a link between a third-person and the actual commission of the crime. 2. No, the trial court did not err in limiting the defendant’s ability to cross-examine Robert Doyle, a key prosecution witness, about potential bias. The defendant made no showing that the prosecution had offered Doyle leniency and failed to demonstrate that the cross-examination would have left the jury with a different impression of Doyle’s credibility. 3. Yes. The reviewing court must “review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence…such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” The totality of evidence presented to the trial court is sufficient to support the jury’s verdict. A rational trier of fact could have found that defendant had a preexisting motive (fear of the discovery of his firearm), that the defendant quickly formed the idea to kill Officer Ganz, and that the defendant the manner of death was calculated and cold. 4. No. Griffin v. California established that the 5th Amendment forbids comment by the prosecutor on the accused’s silence but the rule does not extend to the prosecutor’s ability to comment on the state of evidence presented by the defense. The defense failed to present any alibi witnesses or evidence refuting the ballistics evidence. As a result, the prosecutor’s comments during her closing argument constituted reasonable comment on the defendant’s failure to present evidence. Issues at penalty phase and post-trial 1. No. Evidence of the effect of a murder on loved ones and the community is relevant and admissible unless it invites a purely irrational response or is unduly prejudicial. Fellow officer’s testimony about the effects of Officer Ganz’s death, while emotionally laden, did not elicit a purely irrational response from the jury. Furthermore, there was no cumulative effect error with respect to the amount of evidence presented. 2. No. In reviewing a defendant’s application for modification of the verdict, the trial court must reweigh the evidence and determine, in its independent judgment, if the evidence supports the jury’s verdict. The trial court did not err in finding that the weight of the evidence supported the jury’s verdict. 3. No. California’s death penalty sentence is not impermissibly broad and it sufficiently narrows the class of death-eligible defendants. TAGS Third-party culpability evidence, victim impact testimony, Griffin, death penalty, first degree murder, video evidence KEY RELATED CASES Griffin v. California, 380 U.S. 609 (1965): People v. Burney (2009) 47 Cal.4th 203: People v. Carrington (2009) 47 Cal.4th 145: People v. Friend (2009) 47 Cal.4th 1: People v. Davis (2009) 46 Cal.4th 539: People v. Robinson (2005) 124 P.3d 363: Annotation by: Lisa Carrillo |
