Supreme Court of California Justia
Citation 45 Cal. 4th 836, 200 P.3d 879, 89 Cal. Rptr. 3d 264

People v. Bunyard

Filed 2/23/09

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S023421
v.
JERRY THOMAS BUNYARD,
San Joaquin County
Defendant and Appellant. )
Super.
Ct.
No.
31016

Defendant Jerry Thomas Bunyard was convicted by jury of the first degree
murders (Pen. Code, § 187)1 of his wife Elaine Bunyard and of Elaine’s full-term,
healthy fetus. The jury also found true one special-circumstance allegation: that
defendant had committed multiple murders (§ 190.2, subd. (a)(3)). Defendant was
sentenced to death.
We affirmed defendant’s judgment of guilt for first degree murder and
upheld the special circumstance finding, but we reversed the penalty judgment
because the trial court had improperly given the so-called Briggs Instruction
informing the jury that the Governor is empowered to commute a sentence of life
imprisonment without possibility of parole, an error we first identified in People v.
Ramos (1984) 37 Cal.3d 136, 150-159. (People v. Bunyard (1988) 45 Cal.3d
1200, 1242-1245 (Bunyard).) The prosecution elected to retry the penalty phase,

1
All statutory references are to this code unless otherwise indicated.
1


and the jury again returned a verdict of death. The trial court sentenced defendant
to death. This appeal is automatic (§ 1239, subd. (b).) We affirm the judgment.
I. STATEMENT OF FACTS
The facts of the crime, quoted from our previous opinion (Bunyard, supra,
45 Cal.3d at pp. 1200-1203), are as follows: On November 1, 1979, Elaine, a
pregnant woman ready to give birth any day, was discovered dead in the garage of
her home by her seven-year-old daughter, Tanya. Medical testimony at trial
established that Elaine had died from a massive shotgun wound to the head, and
that her full-term fetus had suffocated moments later from the resulting lack of
oxygen. The evidence was uncontroverted that Elaine was killed by Earlin
Popham, a childhood friend of defendant. Popham testified at trial that he was
hired by defendant to kill Elaine.2 In summary, Popham’s testimony was as
follows:
Earlin Popham, also known as Earlin Laudeman, was a drifter, small-time
criminal, and frequent drug user who had known defendant since grade school.
Around October 1979, two or three weeks before the murders, Popham learned
that defendant wanted to see him, and he met with defendant at the Bunyard home.
Defendant advised Popham that he had a job for Popham: assisting with a
building project in Patterson. Popham accepted the job and began living at the
Bunyard residence intermittently.
During this time, Popham and defendant began to discuss defendant’s
marital situation, and defendant asked Popham if he would kill Elaine for a fee.
Defendant gave numerous reasons for his request: Elaine was pregnant by another

2
Prior to trial, Popham pleaded guilty to the first degree murder of Elaine,
and testified for the People in exchange for a prison sentence of 25 years to life.
2


man; he had offered Elaine $50,000 in settlement for a divorce, but she had
refused; in a contested divorce Elaine would take everything defendant had; and
that he wanted to be with or marry his new girlfriend, Sarah Pender, who was
wealthy or had a wealthy father. Defendant offered to pay Popham $1,000 within
a week after the killing, followed by payment of additional money when defendant
received the proceeds of an insurance policy. Defendant additionally offered to
employ Popham as a caretaker of his ranch after Elaine’s murder, and told Popham
that he would be welcome to move to Arkansas with defendant, defendant’s father,
and defendant’s girlfriend Sarah Pender.
While at first Popham declined defendant’s offer, when defendant persisted
Popham, being sympathetic to defendant’s situation and in need of money,
eventually agreed to kill Elaine, knowing she was pregnant. This agreement was
reached about one week before the murders occurred.
Popham testified that defendant’s plan was to make the murder look like a
suicide. Popham was to knock Elaine out in the kitchen, drag her into the garage
where defendant had hidden his pump shotgun, and then stage a “shooting”
suicide. Defendant believed this plan would be successful due to Elaine’s “mental
problems” during her pregnancy. Additionally, defendant told his father Clarence,
who lived next door, to go fishing and not be at home during the week when
defendant was asking Popham to carry out the murder plan. The date was left up
to Popham, but defendant repeatedly asked Popham if today would be the day,
including October 31, the day before the murders.
Finally, on the morning of November 1, when defendant asked if Popham
would carry out the plan that day, Popham replied “probably.” Waiting until after
defendant and Tanya left the house, Popham walked up behind Elaine while she
was in the kitchen washing dishes and struck her repeatedly on the head with
frying pans to knock her out. He then dragged her while unconscious to the
3
garage, placed her in a chair, propped defendant’s shotgun under Elaine’s chin,
and pulled the trigger, blowing off half her head and face. Realizing that a trail of
blood from the kitchen to the garage, and signs of a struggle in the kitchen —
including two shattered pans — would not look like a suicide, Popham decided to
make it appear to be a robbery by knocking over some furniture, and taking $5
from Elaine’s purse.
Popham then drove to the construction project where defendant was
working, and talked with defendant in hushed tones for a few minutes. He
informed defendant that “it was done,” and that he would meet him in town at the
A & W at noon. That meeting was held at the appointed time and place, with
Popham telling defendant that Elaine had been killed but that “it ain’t going to
look like a suicide.” When Popham said he needed some money, defendant
withdrew $175 from his bank and gave $125 to Popham. Popham told defendant
that he would call defendant within a week regarding further payments. Two days
after the murder, Popham tried to contact defendant by calling the house of
defendant’s father, Clarence Bunyard, who informed Popham that his son was at
his (defendant’s) home. Popham then reached defendant by phone at his own
home. Although defendant asked Popham to call him at his father’s house later
that night, Popham did not call again. Telephone records at trial confirmed that a
short call had been placed from a residence in San Jose, where Popham was
staying, to defendant’s home two days after the murders.
Other witnesses at trial, including defendant, testified that on the afternoon
of November 1 — the date of the murders — defendant went to the Tracton Bar
after work and drank heavily. Thereafter, defendant visited Sarah Pender, arriving
at her home around 6:40 p.m., in an intoxicated condition. There, he was advised
by both his mother and Sarah Pender of the death of his wife.
4
Testimony at trial established that Elaine had been murdered. Suicide was
ruled out because Elaine’s arms were too short to have put the barrel of the
shotgun under her chin and still have pulled the trigger, and Popham’s fingerprints
were found on the shotgun. The physician who examined Elaine two days before
her death stated that the fetus she was carrying had a fetal heartbeat of 140, was
due between November 1 and 7, and was normal. The pathologist testified that the
fetus was a normal, healthy term infant which weighed eight pounds, two ounces,
was in proper position for delivery, and would have been born any day.
On November 2, 1979, one day after the murders, news of Elaine’s
“suicide” became public. Randy Johnson immediately contacted police
authorities. He testified that, although not acquainted with Popham, he (Johnson)
had also been asked repeatedly by defendant to kill Elaine. Johnson testified that
early in his five-year friendship with defendant, defendant had asked him 5 to 10
times to kill Elaine and Tanya, then later Elaine alone; that defendant made 20
such requests during the first year of their friendship and even raised the offer
from $1,000 to $5,000 to $10,000, but Johnson always declined. Later, when
Johnson moved in with the Bunyards in the spring of 1979, receiving room and
board in return for help with the ranch, the offers continued. Even after Johnson
left the Bunyard residence, the offers continued, for a fee as high as $20,000, but
Johnson never acquiesced. Although Johnson never apprised Elaine of her danger,
he did mention it to the police prior to the actual murders, as well as to both his
sister, Deanna Johnson, and his half brother.
Defendant testified on his own behalf at the guilt phase but did not
challenge Popham’s testimony that he (Popham) had murdered Elaine and her full-
term fetus. Defendant presented an alibi defense and denied any involvement in
the murders. Although defendant also denied desiring to divorce his wife, he
admitted to striking her on occasion and to carrying on an affair with Sarah
5
Pender, who he testified was his mistress. The defense at trial consisted primarily
of an attack on the credibility of Johnson and Popham; defense counsel argued that
Popham was lying to save himself from receiving the death penalty. Defendant
denied ever soliciting either Johnson or Popham to kill anyone. Defendant further
testified that he could think of no reason why Popham killed his wife.
At the penalty phase, the prosecution submitted its case on the basis of the
guilt phase evidence. The defense presented one witness, Nathan Eli, who had
been sentenced to death twice, 20 years earlier, but had been released from prison
and was then employed as an office manager in a San Francisco law firm. The
thrust of his testimony was that ‘lifers’ make good prisoners. Defendant was
sentenced to death. [End of quotation from prior opinion.]
As noted, we reversed the penalty phase because of Ramos error.
(Bunyard, supra, 45 Cal.3d at pp. 1242-1245.) The People elected to retry him.
At the penalty phase retrial, Popham testified as to his and defendant’s role in the
murders, as he had during the guilt phase of the first trial. Randy Johnson was
deemed unavailable to testify for reasons explained below, and his testimony from
the first trial about defendant’s attempt to solicit him to murder Elaine was read to
the jury. Other evidence was introduced about the murders. The prosecution also
introduced testimony that defendant had engaged in a number of acts of domestic
violence against Elaine and against his first wife, Glenna Day.
Defendant’s primary defense was to contest his guilt for the murders.
Defendant himself testified to deny any involvement and also to describe his
military service, which included a tour of duty in Vietnam. Two men who were in
San Joaquin County Jail at the time Popham was in jail for the murders testified
that Popham had told them he had stolen drugs from a friend and killed his
pregnant wife, without mentioning defendant’s solicitation of the murders.
6
On cross-examination of defendant and on rebuttal, the prosecution brought
to light that defendant had had a checkered career in the military, including four
AWOL’s and three summary court martials. Also in rebuttal, the prosecution
produced other evidence intended to show defendant had in fact committed the
murders of which he had been convicted. Sergeant Harold Johnsen of the San
Joaquin County Sheriff’s Office testified that defendant had originally denied that
he met Popham at the construction site where defendant was working on the day
of the murders or that he had withdrawn money from his bank account for
Popham. He further testified that defendant admitted to both those things during
an interrogation a week later, although he claimed the money was for construction
work Popham had done the previous weekend.
II. DISCUSSION
A. Excusal for Cause of Prospective Juror C.B.
Defendant contends that Prospective Juror C.B. was improperly excused for
cause during voir dire. We disagree.
During voir dire, C.B. made clear her general support for the death penalty.
However, she stated that she would have difficulty serving on the penalty phase
jury because she had not been part of the jury that had found defendant guilty. In
her colloquy with the judge she stated: “what happens if the other 12 people made
a mistake and he is innocent. See, that’s my problem with this whole situation. If
I had listened to him and found the gentleman guilty, then that’s a whole different
circumstance[].” After explaining her general support for the death penalty, C.B.
reiterated her difficulty with being a juror in this particular case. “I’m going to be
honest with you. I could do it, but I don’t want to be on this jury. I didn’t find this
man guilty, and I don’t want to be sentencing him to life without parole. What
happens if he’s innocent . . . . that’s what bothers me . . . . I can’t sit in judgment
7
of someone that . . . .” At this point, the court interrupted her and solicited from
her the statement that she “could perform” her function as a juror.
The court then allowed the prosecutor and defense counsel to question
C.B.. In response to defense counsel’s inquiry as to whether she could serve on
the jury, C.B. stated: “Of course, I’ll be able — I may be blond[e], but I’m not that
stupid. Yeah, I could be capable of that. But I’m telling you up front it bothers
me that I wasn’t on the first jury, okay.”
The prosecutor moved to challenge for cause, which defense counsel
opposed. The trial court granted the motion. In response to defense counsel’s
argument that C.B. had said “she could function when the Court asked her if she
could function,” the trial court responded: “I have some real doubts about that.
She appears to be very hesitant, very unsure, very positive as a matter of fact that
she could not. And, she’s trying to say, I believe, or give the correct responses so
that she is not looked upon as, like she says, a dumb blond[e].”
Defendant argues the trial court erred in excusing C.B. for cause. The
relevant legal principles are well settled: “In Wainwright v. Witt [(1985)] 469 U.S.
412, the United States Supreme Court set forth the proper procedures for choosing
jurors in capital cases. That case ‘requires a trial court to determine “whether the
juror’s views would prevent or substantially impair the performance of his duties
as a juror in accordance with his instructions and his oath.” [Citation.] “Under
Witt, therefore, our duty is to ‘examine the context surrounding [the juror’s]
exclusion to determine whether the trial court’s decision that [the juror’s] beliefs
would “substantially impair the performance of [the juror’s] duties . . .” was fairly
supported by the record.’ ” [Citations.] [¶] In many cases, a prospective juror’s
responses to questions on voir dire will be halting, equivocal, or even conflicting.
Given the juror’s probable unfamiliarity with the complexity of the law, coupled
with the stress and anxiety of being a prospective juror in a capital case, such
8
equivocation should be expected. Under such circumstances, we defer to the trial
court’s evaluation of a prospective juror’s state of mind, and such evaluation is
binding on appellate courts.’ ” (People v. Roldan (2005) 35 Cal.4th 646, 696
(Roldan).)
Defendant contends that Prospective Juror C.B.’s reservation about serving
on the jury, properly understood, was the reservation that she would have to
sentence someone to death notwithstanding the fact that she had some lingering
doubt about his innocence, and that the court should have made clear that lingering
doubt was properly considered at the penalty phase. But the record reveals that
C.B. had a more fundamental objection to the proceeding: she made clear her
discomfort at not having been on the jury that found defendant guilty and in
expressing that discomfort, she did not focus on the imposition of the death
penalty but stated that “I didn’t find this man guilty, and I don’t want to be
sentencing him to life without parole.” The fact that she expressed a reluctance to
serve on a penalty phase jury even if that jury sentenced the defendant to life
without parole indicates not a concern with whether lingering doubt could justify a
refusal to vote for the death penalty, but rather an objection to participating in any
kind of sentencing decision when she had not served on the jury that determined
defendant’s guilt.
Defendant also argues that C.B. should not have been excused for cause
because she, at several points, affirmed her ability and willingness to serve on the
penalty phase jury. It is true that the mere expression by a prospective juror that
he or she anticipates that a juror’s duties will be difficult is not by itself grounds
for discharging a juror. (People v. Avila (2006) 38 Cal.4th 491, 530.) On the
other hand, C.B. expressed great reluctance in undertaking her duties under the
particular circumstance, and such reluctance, “taken into account with the juror’s
hesitancy, vocal inflection, and demeanor, can justify a trial court’s conclusion
9
regarding the juror's mental state that the juror’s views would ‘ “prevent or
substantially impair the performance of his duties as a juror in accordance with his
instructions and his oath.” ’ ” (Roldan, supra, 35 Cal.4th at p. 697.) The trial
court made a determination, based on his judgment about C.B.’s credibility and
demeanor, that her attitude toward serving on the penalty phase jury without
having determined defendant’s guilt would in fact substantially impair the
performance of her duty as a juror in the present case. Under these circumstances,
we defer to the trial court’s determination. (Roldan, supra, 35 Cal.4th at p. 696.)
Defendant further contends that C.B. should not have been disqualified
because she expressed support for the death penalty. There is no dispute that C.B.
was death qualified in the conventional sense. The reason for her exclusion was
not her lack of support for the death penalty but, as discussed, her resistance
toward serving on a penalty phase jury when she had not determined guilt. As
explained above, the trial court did not abuse its discretion in concluding that her
attitude disabled her from serving on this particular jury.
B. Admission of Randy Johnson’s Prior Testimony Due to
Unavailability
Randy Johnson, who corroborated the testimony of Earlin Popham by
testifying that defendant had solicited him several times to kill Elaine Bunyard,
was determined by the trial court to be unavailable to testify at the second penalty
phase trial, and therefore his testimony from the first trial was read to the jury.
Defendant claims the trial court erred in determining that Johnson was unavailable
and in admitting his earlier testimony, thereby violating state statutory law and his
right to confront witnesses under the Sixth Amendment to the United States
Constitution. This claim has two parts: (1) the trial court with the prosecution’s
support erred in releasing Johnson on his own recognizance and, but for the error,
Johnson would have been available to testify; (2) the prosecution was
10
insufficiently diligent in trying to locate Johnson when he failed to appear. We
disagree there was error or lack of diligence.
The facts are these: As explained, Johnson testified during the first trial
that defendant asked him on several occasions to kill Elaine Bunyard but Johnson
refused. The prosecution intended to call Johnson as a witness at the penalty
phase retrial, ostensibly for two reasons: (1) to corroborate Popham’s testimony
that defendant desired his wife’s murder and would pay others to carry that out,
thereby negating any lingering doubt about defendant’s guilt that the second
penalty phase jury might have; and (2) to establish that defendant committed an
unadjudicated crime involving force or violence pursuant to section 190.3, factor
(b), i.e., the attempted solicitation of Johnson to commit murder.
On October 15, 1990, approximately one month before the retrial was to
commence, a bench warrant issued for Johnson’s arrest after he had failed to
appear in response to the People’s subpoena. On October 22, 1990, the prosecutor
filed a declaration in support of a motion to require Johnson to enter into a written
undertaking to appear in court pursuant to section 1332. He stated in the
declaration that the written undertaking was necessary because of Johnson’s
failure to respond to the subpoena or contact the prosecution. On that same day,
the trial court signed a warrant for Johnson’s arrest, allowing him to be released
only if he posted a $10,000 bond. Jury selection proceedings began on November
15, 1990. On December 13, Johnson was arrested on the October 22 warrant. On
December 17, 1990, Johnson appeared for a hearing. During the hearing, the
prosecutor reminded the court of its October 22 arrest warrant and the setting of
bail at $10,000. Before the hearing, the trial court asked defendant’s counsel to
leave the courtroom, and counsel left after objecting to not being allowed to be
11
present. The trial court also ordered the prosecution to provide counsel with
Johnson’s current rap sheet, which showed an extensive criminal history.3
Johnson told the court that he had not looked at the subpoena and had not
contacted the prosecutor. The prosecutor informed the court that Johnson was in
custody on the bench warrant in defendant’s case but that otherwise there was no
reason to hold him in custody. The court asked a sheriff’s officer, Sergeant
Johnsen, if he was satisfied that he would be able to contact Johnson on a
moment’s notice or as needed and Sergeant Johnsen said that he was. The court
released Johnson on his own recognizance, requiring him to call Sergeant Johnsen
every Wednesday, and making clear that if he failed to do so, Johnson would
violate the conditions of his release and be subject to immediate arrest, whereupon
he would be kept in custody until defendant’s trial was completed. Johnson was
ordered to return to court on January 23, 1991 at 10:00 a.m. Johnson orally agreed
to these conditions and signed a written agreement that he would return on the date
specified.
The next day, defense counsel informed the court that the State of
Washington had issued a warrant for Johnson’s arrest. The prosecutor stated that
he had not been aware of that bench warrant until after the previous day’s hearing.
He explained that he had contacted Washington authorities and discovered that
Johnson had served time in Washington on a misdemeanor offense but had not yet
made restitution, and that the warrant was not for an extraditable offense. The
prosecutor acknowledged that at the time Johnson was served a subpoena to

3
At oral argument, counsel suggested that the prosecution had not been
forthcoming in informing the trial court about Johnson’s prior criminal history
within California. The record indicates the contrary, that both the trial court and
trial counsel were informed of that history.
12


appear as a material witness in the present case, he was in county jail, and that his
rap sheet indicated that he had a number of previous arrests. Notwithstanding this
new information, the trial court reaffirmed its order releasing Johnson on his own
recognizance subject to the conditions described above. Defendant objected to the
order.4
Johnson returned to court on January 23, 1991, and was ordered to return
again on February 6. He returned on February 6 and was ordered to return on
February 19.
Johnson did not return on February 19. The prosecutor stated that Johnson
had shown up late for a February 11 interview and had not shown up for an
interview scheduled for February 18. The prosecutor also stated that Sergeant
Johnsen’s attempts to locate Johnson had been unsuccessful.
On March 1, 1991, the trial court held a hearing on whether Johnson was
unavailable for testimony. Sergeant Johnsen and another sheriff’s officer testified
about various efforts to locate Johnson, which will be described at greater length
below. Defendant asked the court to exclude Johnson’s prior testimony on the
ground that the People had failed to exercise due diligence in locating him. At
defendant’s request, the court allowed Johnson’s FBI and CII rap sheets to become
part of the record. The FBI rap sheet showed that Johnson had substantial contacts
with Oregon and Washington and defendant noted that the police had made no
efforts to look for him there. Notwithstanding that fact, the trial court found

4
Defendant argues without elaboration that the exclusion of trial counsel
from the hearing that resulted in Johnson’s release violated his right to due
process. Assuming without deciding that there was such a violation, it was
rendered harmless beyond a reasonable doubt when trial counsel was able to
address the court the following day and to produce new evidence to support his
position that Johnson should not be released, and when the trial court reaffirmed
its decision after considering such argument and evidence.
13


Johnson unavailable and on March 5, 1991, Johnson’s testimony from the first
trial was read to the jury.
Defendant contends that the trial court erred in admitting Johnson’s
testimony. To evaluate this claim we review basic principles: “The confrontation
clauses of both the federal and state Constitutions guarantee a criminal defendant
the right to confront the prosecution’s witnesses. (U.S. Const., 6th Amend.; Cal.
Const. art. I, § 15.) That right is not absolute, however. An exception exists when
a witness is unavailable and, at a previous court proceeding against the same
defendant, has given testimony that was subject to cross-examination. Under
federal constitutional law, such testimony is admissible if the prosecution shows it
made ‘a good-faith effort’ to obtain the presence of the witness at trial.” (People
v. Cromer (2001) 24 Cal.4th 889, 892 (Cromer); see also Crawford v. Washington
(2004) 541 U.S. 36, 53-54.)
“In California, the exception to the confrontation right for prior recorded
testimony is codified in [Evidence Code] section 1291, subdivision (a), which
provides: ‘Evidence of former testimony is not made inadmissible by the hearsay
rule if the declarant is unavailable as a witness and: [¶] . . . . [¶] (2) The party
against whom the former testimony is offered was a party to the action or
proceeding in which the testimony was given and had the right and opportunity to
cross-examine the declarant with an interest and motive similar to that which he
has at the hearing.’ A witness is unavailable if ‘[a]bsent from the hearing and the
proponent of his or her statement has exercised reasonable diligence but has been
unable to procure his or her attendance by the court’s process.’ ([Evid. Code,]
§ 240, subd. (a)(5).) Although section 240 refers to ‘reasonable diligence,’ this
court has often described the evaluation as one involving ‘due diligence.’ ”
(Cromer, supra, 24 Cal.4th at p. 898.)
14
As noted, defendant contends the trial court erred in releasing Johnson on
his own recognizance, a release that was supported by the People, and
consequently erred in concluding he was unavailable to testify. As we have
recognized, when the trial court errs in releasing a material witness from custody,
which results in the witness becoming unavailable for testimony, and the
prosecution supports that release, the prosecution may be held to have not
exercised reasonable diligence. (People v. Louis (1986) 42 Cal.3d 969, 993
(Louis).)5
The decision to detain in custody a material witness involves weighing
important competing rights. “Article I, section 10 of the California Constitution
guarantees ‘[w]itnesses may not be unreasonably detained.’ This constitutional
protection is balanced against ‘ “[t]he duty [of all citizens] to disclose knowledge
of [a] crime . . . .” ’ [Citation.] This duty is considered to be ‘ “so vital that one
known to be an innocent may be detained, in the absence of bail, as a material
witness. [Citations.]” ’ (Ibid.) [¶] To enforce this duty, section 1332 allows for
the incarceration of a person determined to be a material witness to secure his or
her presence at trial. Section 1332 states, ‘(a) [W]hen the court is satisfied, by
proof on oath, that there is good cause to believe that any material witness for the
prosecution or defense, whether the witness is an adult or a minor, will not appear
and testify unless security is required, at any proceeding in connection with any

5
It could be argued that the erroneous release of a witness on his or her own
recognizance is really not a failure of prosecutorial diligence but more accurately
trial court error. This would be especially true if the trial court granted the release
notwithstanding the prosecutor’s opposition. But even if so characterized, it
would make no difference for confrontation clause purposes whether the error that
led to a material witness being unavailable was attributable to the court or to the
prosecution — in either case such error, if proven to be prejudicial, could result in
a reversal of a judgment against a defendant.
15


criminal prosecution . . . the court may order the witness to enter into a written
undertaking to the effect that he or she will appear and testify at the time and place
ordered by the court or that he or she will forfeit an amount the court deems
proper. [¶] (b) If the witness required to enter into an undertaking to appear and
testify, either with or without sureties, refuses compliance with the order for that
purpose, the court may commit the witness, if an adult, to the custody of the
sheriff . . . until the witness complies or is legally discharged.’ ” (In re D.W.
(2004) 123 Cal.App.4th 491, 497-498.)
“ ‘The unique posture of the material witness’ requires special attention to
ensure that the procedures leading to the incarceration of a witness are fair and
comply with ‘procedural safeguards allowing the interests of the witness to be
heard in conjunction with the interests of the state.’ ” (In re D.W., supra, 123
Cal.App.4th at p. 498.) The unjustified deprivation of a material witness’s liberty
is a violation of the due process clause of the federal and state Constitutions.
(Ibid.; see also In re Francisco M. (2001) 86 Cal.App.4th 1061, 1071-1072
(Francisco M.).)
The threshold question is the standard of review that should be employed to
determine whether there has been reasonable diligence when a material witness
has been released on his or her own recognizance and then becomes unavailable.
We have held that “appellate courts should independently review a trial court’s
determination that the prosecution’s failed efforts to locate an absent witness are
sufficient to justify an exception to the defendant’s constitutionally guaranteed
right of confrontation at trial.” (Cromer, supra, 24 Cal.4th at p. 901.) The
question is whether we should employ the same independent review standard to
determine whether releasing a material witness on his or her own recognizance
constitutes a failure of reasonable diligence.
16
In Cromer, in deciding that independent review rather than abuse of
discretion was the proper standard, we relied on (1) the importance of the right at
stake, i.e., the Sixth Amendment right to confront witnesses (Cromer, supra, 24
Cal.4th at pp. 896-897); (2) the fact that the determination of reasonable diligence
“requires application of an objective, constitutionally based legal test” to certain
facts (id. at p. 900); and (3) the fact that the trial court does not have a first
person vantage point with respect to the prosecutor’s efforts to find the witness,
but is in essentially the same position as an appellate court in applying the
objective test (id. at p. 901). Thus, although the reviewing court will defer to the
trial court’s determination of the historical facts of what the prosecution did to
locate an absent witness, it will independently review whether those efforts
amount to reasonable diligence sufficient to sustain a finding of unavailability.
(Id. at pp. 900-901.)
In the present situation, in which we are reviewing essentially the trial
court’s own decision to release a witness on his own recognizance, albeit with the
prosecution’s consent and even urging, the circumstances are markedly different.
First, whereas in the case of the prosecution’s efforts to obtain the testimony of an
absent witness, the defendant’s constitutional right of confrontation is the sole
constitutional right at stake, the decision to keep a material witness in custody
involves balancing that right against the substantial due process right of the
witness, who has not been charged with a crime, to not be unreasonably
incarcerated. Second, whereas an appellate court is more or less in the same
position as a trial court in judging whether the prosecution’s efforts to obtain an
absent witness are sufficient, the trial court is in a better position than an appellate
court to ascertain whether and to what extent a witness is a flight risk, and the
appropriate measures to reduce that risk. This determination involves in part an
observation of the witness’s credibility and demeanor that the trial court is
17
uniquely in a position to make. Therefore, although we conduct independent
review in the sense that we independently apply an “objective, constitutionally
based legal test” to certain facts (Cromer, supra, 24 Cal.4th at p. 900), we also
give due deference to the trial court’s determination of a witness’s flight risk, and
will second-guess that determination only when it is clear from the record that it
was objectively unreasonable.
In the present case, we conclude the trial court made a reasonable
determination that Randy Johnson would appear to testify, and the prosecution’s
support for the trial court’s decision did not constitute a lack of reasonable
diligence. After he was arrested for ignoring the subpoena, the court had Johnson
agree orally and in writing to return on a specified date, and to keep in weekly
contact with Sergeant Johnsen until that date, with the understanding that he
would be rearrested and placed in custody if he failed to maintain that weekly
contact. The court made a credibility determination that Johnson would return to
testify, and Johnson did in fact comply within the reporting requirements for
almost two months.
In arguing in support of his position, defendant cites Louis, supra, 42
Cal.3d 969. We agree that a comparison of this case to Louis is useful ― although
we draw a different conclusion — and will therefore render a somewhat detailed
account of that case. In Louis, the court considered the validity of a guilty verdict
in a capital trial. The defendant and four codefendants were tried for several
robberies and the murder of a gas station attendant. During the defendant’s
preliminary hearing, Gregory Tolbert, who was living in an apartment with the
sister of one of the codefendants, testified to overhearing a conversation in the
apartment among the defendant and the codefendants that the gas station attendant,
who had witnessed one of their previous crimes, would have to be killed. (Id. at
p. 976.) After the murder, according to Tolbert’s testimony, the defendant told a
18
codefendant that he “took out” the attendant. (Id. at p. 977.) At the preliminary
hearing, some substantial questions about Tolbert’s credibility emerged, including
inconsistent and incriminating statements, as well as an extensive criminal record
and the use of a number of aliases. (Ibid.)
Tolbert also testified in a separate trial of the codefendants, and they were
convicted of the robbery charges, but the jury found one of the codefendants not
guilty of the murder charges and was unable to reach a verdict about the other
codefendants. (Louis, supra, 42 Cal.3d. at pp. 977-978.) Tolbert was in custody
on felony charges, and in order to induce him to testify at the first trial of the
codefendants, the prosecution had arranged for Tolbert to be released on his own
recognizance over the weekend with an unnamed friend at an undisclosed location
before appearing for sentencing. (Ibid.) Tolbert promptly disappeared.
The retrial of the codefendants for noncapital murder and the trial of the
defendant for capital murder were consolidated and conducted before two separate
juries. (Louis, supra, 42 Cal.3d at p. 978.) Tolbert was deemed unavailable and
his preliminary hearing testimony was admitted in the defendant’s trial over his
objection and the prior trial testimony was admitted against the defendant and
codefendants. (Id. at pp. 978, 981.) Tolbert’s testimony at the previous trial did
not include the statement made at the defendant’s preliminary hearing that the
defendant had said he “ ‘took [ ] out’ ” the attendant. (Id. at p. 977.) Other than
Tolbert’s testimony on that point, the case against the defendant and the
codefendants was the same, and was quite weak. (Id. at pp. 981-982.) The
defendant was convicted of first degree murder with special circumstances and
was sentenced to death. Two of the codefendants were acquitted on the murder
charge and the jury was unable to reach a verdict as to the third, whereupon the
trial court declared a mistrial and dismissed the information against that
codefendant with prejudice. (Ibid.)
19
The Louis court held that the People had been insufficiently diligent in
compelling Tolbert to testify at trial. (Louis, supra, 42 Cal.3d at pp. 991-993.)
Characterizing Tolbert’s testimony as the most important testimony in the
defendant’s case, this court concluded that the diligence required of the prosecutor
“was particularly high. Defendant was to go on trial for his life; Tolbert was a
critical prosecution witness, and was known to be both unreliable and of suspect
credibility — the very type of witness that requires, but is likely not to appear to
submit to, cross-examination before a jury.” (Id. at p. 991.) In coming to the
conclusion that the prosecution had failed to exercise reasonable diligence, the
Louis court emphasized that at the time the prosecutor arranged to have Tolbert
released on his own recognizance, he was in custody on felony charges, and was
released as part of a deal in exchange for Tolbert’s testimony in the codefendants’
first trial. (Id. at pp. 991-992.) Indeed, the People conceded that allowing Tolbert
to be released prior to his sentencing was risky, but that the risk was worth taking
in exchange for his testimony at the earlier trial. As we concluded, the argument
that Tolbert’s release was needed to secure this testimony at the first codefendants’
trial “is immaterial. The purpose of the due diligence requirement is to ensure that
the prosecution has made all reasonable efforts to procure the presence of the
witness before the defendant is denied the opportunity to confront him. [Citation.]
Whether reasonable or not in view of some other purpose, the agreement neither
was intended, nor did it operate, to prevent Tolbert’s absence from defendant’s
trial.” (Id. at p. 992, italics omitted.)
The present case is distinguishable from Louis in several respects.
Although Johnson, like Tolbert, had an extensive criminal history, Johnson, unlike
Tolbert, had no current charges pending against him, other than a nonextraditable
failure to pay restitution in Washington, and therefore did not represent an
imminent flight risk. In Louis, the court made clear that by releasing Tolbert for
20
the weekend despite his known flight risk and the upcoming sentencing, the
prosecution had subordinated the goal of producing him at defendant’s trial to the
goal of having him testify at the codefendants’ trial, and that the fulfillment of this
latter goal could not justify the lack of reasonable diligence in meeting the former.
In the present case, Johnson’s release on his own recognizance was not undertaken
in subordination to some other prosecutorial objective, but was an attempt to
balance Johnson’s liberty interests with defendant’s right to confrontation.
Moreover, in Louis, Tolbert was being held on another charge, and because
he was being released for a weekend before being sentenced, his liberty interest in
being released was relatively minor. Johnson’s liberty interest was considerably
greater. He was being held on no other charge, and the trial court was aware that
Johnson’s required testimony was at least five weeks (and what proved to be two
months) in the future. In light of the fact that Johnson did not represent an
imminent flight risk, we cannot say the trial court acted unreasonably under the
circumstances in having Johnson sign a written undertaking to appear, and to take
steps to ensure that Johnson remained in contact with the court and available, nor
that the prosecution’s support for these measures constituted a lack of reasonable
diligence. Those measures worked for at least seven weeks — Johnson twice
reported as he was supposed to and maintained weekly contact with Sergeant
Johnsen.
This case is also in contrast to Francisco M., supra, 86 Cal.App.4th 1061,
cited by defendant, in which two juvenile material witnesses were detained and in
which the Court of Appeal remanded the case to determine whether continuing
detention was proper.6 Even assuming that the detention in that case ultimately

6
In Francisco M., the court offered several factors to be considered in
determining whether or not to detain a material witness. These factors included:

(footnote continued on next page)
21


was deemed lawful, it was based in large part on the witnesses’ avowed
noncooperation — statements that they would not testify and would seek to evade
a subpoena. (Id. at pp. 1067-1069.) In the present case, Johnson promised to
cooperate, credibly in the view of the trial court. Although a trial court’s
credibility determination that a material witness will appear will not be accorded
unlimited deference by an appellate court, and a prosecutor’s support for a
decision to release a witness who poses a substantial flight risk is a significant
factor to be considered in evaluating whether the prosecutor has exercised due
diligence, in this case the trial court’s determination was reasonable.

(footnote continued from previous page)

(1) the seriousness of the criminal charges; (2) the importance of the witness’s
testimony; (3) the length of the proposed detention; (4) evidence relevant to
whether the witness will appear, including employment, residence and other
community ties; (5) the age and maturity of the witness; (6) the harm to the
witness’s family from incarceration; (7) the witness’s financial resources; (8) the
likelihood of continuances that will prolong the prosecution; and (9) whether steps
short of incarceration are feasible. (Francisco M., supra, 86 Cal.App.4th at pp.
1076-1078.)

Defendant argues that most of these factors favored keeping Johnson in
prison, specifically the seriousness of the criminal charges, the importance of
Johnson’s testimony, Johnson’s lack of community ties and history of ignoring
subpoenas, and the lack of harm to Johnson’s family. While the Francisco M.
factors are no doubt useful guidelines for the exercise of the trial court’s discretion
whether or not to detain a material witness, or an appellate court’s decision
whether witnesses should continue to be detained, that case does not suggest that
the counting of these factors is a useful means of determining retrospectively
whether a trial court abused its discretion in failing to detain a material witness.
As discussed, we believe that, in light of the length of the detention and the fact
that the witness had no strong incentive to flee, the trial court’s decision was
reasonable.
22


Defendant also argues that the court was not required to keep Johnson in
custody but could have imposed (and the prosecution should have urged the court
to impose) on Johnson a written undertaking with security, pursuant to section
1332, subdivision (a), in other words to release the witness on bail, in order to
ensure his appearance at trial. Defendant did not raise this argument at trial and it
is therefore forfeited on appeal. (See People v. Halvorsen (2007) 42 Cal.4th 379,
414.) Although defendant’s trial counsel objected to Johnson’s “OR release,” he
never raised the alternative of requiring a written undertaking with security.
Without raising the issue at trial, we have no way of knowing whether imposing
such conditions on Johnson was a feasible alternative to detention on the one hand
and OR release on the other.
Defendant also contends that once Johnson failed to appear, the prosecution
was insufficiently diligent in finding him. As noted, we independently review the
trial court’s determination that the prosecution has been reasonably diligent in
finding an absent witness. (Cromer, supra, 24 Cal.4th at p. 901.)
The record reveals that two sheriff’s officers testified that they made
numerous attempts to locate Johnson, including: repeatedly checking Johnson’s
last known address, and areas he was known to frequent; putting out a BOLO
(“be-on-the-lookout-for”) bulletin for Johnson; attempting to contact Johnson’s
brother and sister, who also lived in the county; checking the jails and hospitals of
San Joaquin County and the jails of six neighboring counties; repeatedly over a
week’s time checking the east end of Stockton and other locations where they had
information he was likely to be, and checking with Johnson’s known associates.
Officers also testified that they learned on the evening of February 19 that several
days earlier Johnson had taken, perhaps stolen, a car and had used it to flee from
the minimart where he had stolen a beer, and was now attempting to avoid the
police.
23
Defendant made at trial and makes again on appeal the argument that the
police did not attempt to look for Johnson out of state, in Oregon or Washington,
where according to his rap sheets he had been convicted of various crimes. But
there was nothing to indicate he had fled to those states; indeed, given that there
was a warrant for his arrest in Washington, his flight to that state was not
particularly likely.
Our review of the case law shows that in those cases in which courts have
not found adequate diligence, the efforts of the prosecutor or defense counsel have
been perfunctory or obviously negligent. (See, e.g., People v. Sanders (1995) 11
Cal.4th 475, 524 [belated effort to find witness consisted of a single phone call to
her former work number and several visits to her former address]; People v. Avila
(2005) 131 Cal.App.4th 163, 169-170 [waiting until the first day of trial to locate a
witness at her last known residence without efforts to keep track of her, despite
knowing she was a flight risk]; People v. Pitts (1990) 223 Cal.App.3d 1547, 1556-
1557 [despite witness’s criminal record and drug use, investigator confined search
for witness in the criminal justice system to a single county and did not search by
witness’s known aliases].) On the other hand, diligence has been found when the
prosecution’s efforts are timely, reasonably extensive and carried out over a
reasonable period. (See, e.g., People v. Cummings (1993) 4 Cal.4th 1233, 1297
[frequent stops at witness’s last known residence over a one-week period,
contacting neighbors, employer, and relatives]; People v. Diaz (2002) 95
Cal.App.4th 695, 706-707 [numerous attempts to find witness defeated by
witness’s determined effort to avoid testifying]; People v. Wise (1994) 25
Cal.App.4th 339, 344 [checking several addresses where witness might be found,
as well as local jail, hospital, and coroner].) The People’s efforts in the present
case decidedly resemble the extensive efforts made in the latter group of cases.
We therefore conclude that the trial court did not err in determining that the
24
prosecution had been reasonably diligent in attempting to locate Johnson, that the
trial court properly deemed him to be unavailable, and that his testimony from the
first trial was properly admitted.
C. Admission of Testimony of Domestic Violence
Defendant contends the trial court erred in admitting evidence of domestic
violence he inflicted on Elaine and on his former wife, Glenna Day. He contends
that the admitting this evidence was both state law error, because the evidence was
outside the scope of section 190.3, factor (b) or any other statutory aggravating
factor, and violated the Eighth Amendment to the United States Constitution
because it permitted the judgment of death to be imposed based on conduct that
does not warrant such a harsh penalty. We conclude these claims are without
merit.
Before trial, the prosecution gave notice of its intent to introduce evidence
that defendant had committed several violent acts against Elaine and Glenna Day.
Defense counsel objected, but the trial court ruled the evidence admissible under
section 190.3, factor (b), “[t]he presence or absence of criminal activity by the
defendant which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.” At trial, Elaine’s daughter,
Tanya, testified that Elaine and defendant fought a great deal, that defendant
would slap Elaine and that he once threw a plate at her during dinner that missed
her. More than once, during Elaine’s pregnancy, defendant put his hands on
Elaine’s throat and pushed her into a wall. Defendant grabbed Elaine’s shoulders
and pushed her into a wall when she came home late and had not fixed defendant’s
dinner. Earlin Popham and Randy Johnson (the latter through the introduction of
his former testimony) testified they saw defendant strike Elaine several times.
25
Defendant, in response to questions by the prosecution, testified that he had
“probably” slapped his first wife, Glenna Day, and that he hit her and that he
might have grabbed her by the neck and shoved her against a wall. He also
admitted hitting Elaine on several occasions. The prosecution highlighted these
incidents in its closing argument.
Section 190.3, factor (b) pertains to violent criminal activity other than the
crimes for which a capital defendant is on trial. (People v. Osband (1996) 13
Cal.4th 622, 716.) Its purpose is to “ ‘show the defendant’s propensity for
violence’ ” (People v. Avena (1996) 13 Cal.4th 394, 426), which is pertinent to
determining a capital defendant’s individual moral culpability. Its language
regarding “express or implied threat[s] to use force or violence” (§ 190.3,
factor (b)) has a “ ‘ “common-sense core of meaning’ ” ” that requires no further
elucidation in the jury instructions. (People v. Dunkle (2005) 36 Cal.4th 861,
922.)
As defendant concedes, section 190.3, factor (b) applies to misdemeanor
violent activity as well as felony activity. (See People v. Phillips (1985) 41 Cal.3d
29, 71 [interpreting identically worded provision in 1977 death penalty statute].)
Nonetheless, defendant argues that incidents such as hitting or throwing plates are
too trivial to be included in a penalty phase determination, and must be out of the
scope of what was intended by factor (b). We disagree. Even assuming that factor
(b) can be interpreted to exclude certain violent activity as too minor to be within
the scope of the evidence to be considered by a jury in arriving at a penalty phase
judgment, the present activity would not qualify as part of that exception. The
testimony demonstrated a course of conduct of domestic violence that defendant
engaged in against both his former wives. The seriousness of each of the acts, i.e.,
their potential injurious effect, varied, but the course of conduct taken as a whole
was relevant to showing “ ‘defendant’s propensity for violence’ ” (People v.
26
Avena, supra, 13 Cal.4th at p. 426), rendering such evidence admissible under
factor (b). The proper weighing of such evidence, of course, was for the jury to
decide. We therefore conclude neither state law nor constitutional error was
committed.7

7
Defendant cites two federal cases tried under the federal death penalty
statute in which evidence of violent activity was excluded at the penalty phase of
the trial for being too minor. (U.S. v. Gilbert (D. Mass. 2000) 120 F.Supp.2d 147;
U.S. v. Friend (E.D.Va. 2000) 92 F.Supp.2d 534.) These cases are
distinguishable. Under the federal death penalty statute, a defendant can only be
sentenced to death for first degree murder if one of the statutorily enumerated
aggravating factors is found by the jury to be present beyond a reasonable doubt,
and the jury concludes, considering both statutory and nonstatutory aggravating
factors, that these outweigh the mitigating factors. (Friend, supra, 92 F.Supp.2d at
p. 537; 18 U.S.C. § 3593(d) & (e).) A nonstatutory aggravating factor is one that
fits within the catchall provision, 18 United States Code section 3593(a)(2),
permitting consideration of “ ‘relevant information’ . . . that may tend to make the
death penalty more appropriate.” (Gilbert, supra, 120 F.Supp.2d at p. 150.) Both
Gilbert and Friend involved in part the question of whether certain pieces of
evidence introduced during the penalty phase under the rubric of nonstatutory
aggravating factors were sufficiently relevant to be considered by a penalty phase
jury. In Gilbert, the prosecution attempted to introduce evidence of an incident
that defendant, a former nurse, had scalded a mentally retarded boy in a hot bath,
and that she had assaulted her husband with a large kitchen knife. The court
excluded the evidence because there were substantial questions as to its reliability
and because the incidents were not of sufficient gravity, and therefore the
heightened Eighth Amendment standard for introducing penalty phase evidence
had not been met. (Gilbert, supra, 120 F.Supp.2d at p. 153.) In Friend, the court
concluded that one of the nonstatutory aggravating factors, that defendant
conspired with his brother to kill a potential witness to a murder, should be
stricken, when the only evidence to support that factor was an overheard
discussion and no evidence the defendant followed through with an overt act.
(Friend, supra, 92 F.Supp.2d at pp. 544-545.)

In the present case, the domestic violence evidence was related to a specific
factor under the California statutory scheme. Furthermore, unlike the federal
cases, the domestic violence that defendant inflicted on multiple occasions on both
his former spouses was material and reliable evidence of a propensity for violence
that was relevant to the jury’s penalty phase determination.
27


D. Jury Instructions Regarding Aggravating and Mitigating
Circumstances
Defendant contends that his Sixth Amendment right to a jury trial and
Fourteenth Amendment right to due process were violated because he was
sentenced to death without the jury being instructed that it had to find beyond a
reasonable doubt the presence of at least one aggravating factor, and beyond a
reasonable doubt that aggravating factors substantially outweighed the mitigating
factors. His argument is based upon the line of United States Supreme Court cases
generally requiring that sentencing findings increasing the maximum level of
punishment be made by a jury. (See Cunningham v. California (2007) 549 U.S.
270; United States v. Booker (2005) 543 U.S. 220; Blakely v. Washington (2004)
542 U.S. 296; Ring v. Arizona (2002) 536 U.S. 584; and Apprendi v. New Jersey
(2000) 530 U.S. 466.) We have repeatedly rejected that contention (see, e.g.,
People v. Romero (2008) 44 Cal.4th 386, 429) and defendant advances no
persuasive argument for reconsidering our conclusion.
Defendant also claims the trial court committed reversible error under the
Fourteenth Amendment and other unspecified constitutional provisions by
refusing a defense instruction that would have instructed the jury there was no
requirement that jurors unanimously agree on mitigating circumstances and that
jurors should individually weigh and consider such circumstances. We have held
that such instruction is unnecessary and that the standard instruction, which was
delivered in the present case, was constitutionally sufficient. (People v. Weaver
(2001) 26 Cal.4th 876, 988.) Plaintiff also contends the trial court erred in
refusing an instruction that the jury was not required to find a mitigating
circumstance true beyond a reasonable doubt or by a preponderance of the
evidence in order to consider it at the penalty phase. This argument too has been
28
rejected. (People v. Bonillas (1989) 48 Cal.3d 757, 789-790.) We decline to
reconsider either issue.
E.
Double Counting of Johnson’s Testimony
Defendant claims that Johnson’s testimony that defendant had solicited him
to murder Elaine was used to support two aggravating factors: both section 190.3,
factor (a), the circumstances of the crime and factor (b), prior violent criminal
activity. He contends that such double counting amounts to reversible error,
violating statutory law, section 190.3, and the Eighth and Fourteenth Amendments
to the United States Constitution. We disagree any such error occurred here.
Factors (a) and (b) of section 190.3 refer to distinct, nonoverlapping
categories, the former to the circumstances of the present crime that has made the
defendant eligible for the death penalty, the latter to other violent criminal activity.
(People v. Visciotti (1992) 2 Cal.4th 1, 76.) We have suggested that improper
prosecutorial argument that invited the jury to consider the same evidence in
support of both factors could lead the jury to overemphasize the importance of that
evidence, resulting in penalty phase error. (Ibid.)
There was no such improper prosecutorial argument in the present case.
The prosecutor only used the Johnson testimony in connection with one
aggravating factor, section 190.3, factor (b), to prove that defendant had engaged
in an unadjudicated violent criminal act in attempting to solicit Johnson to kill
Elaine. The prosecutor did not mention the Johnson testimony in connection with
factor (a).
It is true that the prosecution argued to the second penalty phase jury,
which had not participated in the guilt phase of the trial, that Johnson’s testimony
should negate any lingering doubt that defendant did in fact commit the murders
of which another jury had convicted him. But section 190.3, factor (a) is
concerned with those circumstances that make a murder especially aggravated,
29
and therefore make a defendant more culpable and deserving of the ultimate
penalty. (See People v. Jenkins (2000) 22 Cal.4th 900, 1052-1053.) While the
prosecutor in the present case did use the Johnson testimony to confirm that
defendant has committed the murders, he did not suggest defendant’s unsuccessful
solicitation of Johnson to murder Elaine made her murder more aggravated under
factor (a). Therefore, such dual use of the Johnson testimony did not amount to
double counting of that testimony to support two separate aggravating factors.
F. Various Constitutional Challenges to the Death Penalty Statute.
Defendant contends that the death penalty statute, as construed by this court
and applied at defendant’s trial, is unconstitutional in a number of respects. First,
defendant contends that the special circumstances that render a defendant eligible
for the death penalty are so numerous and so broadly interpreted that they do not
sufficiently narrow the class of defendants eligible for the death penalty in
violation of the Eighth and Fourteenth Amendments to the United States
Constitution. We have rejected that argument on a number of occasions (see, e.g.,
People v. Carter (2005) 36 Cal.4th 1215, 1278) and continue to do so here.
Defendant argues that section 190.3, factor (a), as construed by this court, is
overbroad and vague, in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution. In support of the argument, he
cites instances in which prosecutors in different cases have argued that seemingly
contradictory circumstances of the crime were aggravating, for example that
defendant struck many blows inflicting multiple wounds, and that defendant killed
the victim with a single execution-style wound. As we stated in People v. Jenkins,
supra, 22 Cal.4th at page 1053: “The ability of prosecutors in a broad range of
cases to rely upon apparently contrary circumstances of crimes in various cases
does not establish that a jury in a particular case acted arbitrarily and capriciously.
30
As with the factor of the defendant’s age, the adversary process permits the
defense, as well as the prosecution, to urge the significance of the facts of the
charged crime. Defendant fails to persuade us that these circumstances deprive
him of due process of law.” (Italics omitted.)
Defendant also makes a number of claims similar to those rejected above in
connection with the claims of erroneous jury instructions. We continue to reject
the contention that the Eighth and Fourteenth Amendments to the United States
Constitution require that the jury find unanimously beyond a reasonable doubt the
existence of at least one aggravating factor, or that the aggravating factors
outweigh the mitigating factors, or that death is the appropriate penalty. (People v.
Ward (2005) 36 Cal.4th 186, 221.) Neither proof beyond a reasonable doubt nor
jury unanimity as to the existence of particular sentencing facts are required.
(Ibid.) This conclusion is not altered by the United States Supreme Court’s
decision in Apprendi v. New Jersey, supra, 530 U.S. 466, and its progeny. (Ward,
supra, 36 Cal.4th at p. 221.) Nor, as defendant argues, is a preponderance-of-the-
evidence burden of proof required at the penalty phase in the event we reject a
beyond-a reasonable-doubt burden of proof. “ ‘Unlike the guilt determination,
“the sentencing function is inherently moral and normative, not factual” [citation]
and, hence, not susceptible to a burden-of-proof quantification.’ ” (People v.
Manriquez (2005) 37 Cal.4th 547, 589 (Manriquez).) Nor does the death penalty
statute violate Evidence Code section 520 by failing to place the burden of proof
on the party prosecuting the crime or wrongdoing, nor is any constitutional
provision violated by the lack of an explicit instruction that there is no burden of
proof. (People v. Dunkle, supra, 36 Cal.4th at p. 939.) Nor do the Sixth, Eighth,
or Fourteenth Amendments require written findings or other specific findings by
the jury regarding the aggravating factors. (Manriquez, supra, 37 Cal.4th at
31
p. 590.) Nor does the Eighth Amendment require intercase proportionality review.
(Manriquez, supra, 37 Cal.4th at p. 590.)
Moreover, although the jury in this case was properly instructed that any
unadjudicated criminal activity may not be used as an aggravating factor unless a
juror is convinced beyond a reasonable doubt that a defendant is guilty of such
activity, the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution do not require that jurors agree unanimously on each instance of such
activity. (People v. Ward, supra, 36 Cal.4th at p. 221-222.) Apprendi and its
progeny do not alter that conclusion. (Ward, supra, 36 Cal.4th at pp. 221-222.)
The Fifth, Sixth, Eighth, and Fourteenth Amendments are not violated by
the use of the adjectives “extreme” and “substantial” in connection with section
190.3, factors (d) and (g). (Manriquez, supra, 37 Cal.4th at p. 590.) There is no
constitutional requirement that the court instruct the jury which factors are
aggravating and which mitigating. (People v. Moon (2005) 37 Cal.4th 32, 41.)
The equal protection clause of the Fourteenth Amendment does not require that
capital and noncapital defendants be subject to the same sentencing procedures or
that capital defendants be afforded the same disparate sentencing review as
noncapital defendants under the determinate sentencing law, because the two
categories of defendants are not similarly situated. (Manriquez, supra, 37 Cal.4th
at p. 590.) Nor does international law require the elimination of capital
punishment in California. (Ibid.)
32

III. DISPOSITION
The judgment is affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
KENNARD,
J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
CORRIGAN,
J.
33
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Bunyard
__________________________________________________________________________________

Unpublished Opinion


Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.

S023421
Date Filed: February 23, 2009
__________________________________________________________________________________

Court:

Superior
County: San Joaquin
Judge: William R. Giffen

__________________________________________________________________________________

Attorneys for Appellant:

George L. Schraer, under appointment by the Court of Appeal, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Mary Jo Graves, Assistant Attorney General, Eric L. Christoffersen, Jane N. Kirkland and Robert
Nash, Deputy Attorneys General, for Plaintiff and Respondent.


Counsel who argued in Supreme Court (not intended for publication with opinion):

George L. Schraer
5173 Waring Road, #247
San Diego, CA 92120
(619) 582-6047

Robert Nash
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5244


Document Outline

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Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Mon, 02/23/200945 Cal. 4th 836, 200 P.3d 879, 89 Cal. Rptr. 3d 264S023421Automatic Appealclosed; remittitur issued

PEOPLE v. BUNYARD (JERRY THOMAS) (S004356)
BUNYARD (JERRY THOMAS) ON H.C. (S157098)


Parties
1The People (Respondent)
Represented by Attorney General - Sacramento Office
Robert C. Nash, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

2Bunyard, Jerry Thomas (Appellant)
Represented by Geraldine S. Russell
Attorney at Law
P.O. Box 2160
La Mesa, CA

3Bunyard, Jerry Thomas (Appellant)
Represented by George L. Schraer
Attorney at Law
5173 Waring Road, Suite 247
San Diego, CA


Disposition
Feb 23 2009Opinion: Affirmed

Dockets
Sep 9 1991Judgment of death
 
Oct 21 1991Filed certified copy of Judgment of Death Rendered
  9-9-91.
Sep 13 1995Counsel appointment order filed
  Upon request of appellant for appointment of counsel, George L. Schraer, Esq., is hereby appointed to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings.
Sep 13 1995Compensation awarded counsel
 
Oct 10 1995Application for Extension of Time filed
  By Applt to request Record correction
Oct 13 1995Extension of Time application Granted
  To Applt To 12-18-95 To request Corr. of Record.
Dec 11 1995Application for Extension of Time filed
  By Applt to request correction of Record.
Dec 13 1995Extension of Time application Granted
  To Applt To 2-16-96 To request Corr. of Record.
Feb 13 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Feb 14 1996Extension of Time application Granted
  To Applt To 4-16-96 To request Corr. of Record.
Apr 12 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Apr 19 1996Extension of Time application Granted
  To Applt To 6-17-96 To request Corr. of Record.
Jun 12 1996Application for Extension of Time filed
  By Applt to request correction of the Record.
Jun 13 1996Extension of Time application Granted
  To Applt To 7-17-96 To request Corr. of Record. no further Extensions of time Are Contemplated.
Jul 17 1996Received copy of appellant's record correction motion
  applt's request to correct, augment & settle the record, & for copies of sealed records (37 pp.)
Jul 24 1996Compensation awarded counsel
 
Mar 19 1997Compensation awarded counsel
 
Jun 18 1997Compensation awarded counsel
 
Oct 1 1997Compensation awarded counsel
 
Apr 15 1998Compensation awarded counsel
 
Oct 28 1998Compensation awarded counsel
 
Jul 12 1999Compensation awarded counsel
 
Jan 13 2000Compensation awarded counsel
  Atty Schraer
Jun 15 2000Compensation awarded counsel
  Atty Schraer
Aug 10 2000Counsel's status report received (confidential)
 
Oct 12 2000Counsel's status report received (confidential)
 
Nov 17 2000Compensation awarded counsel
  Atty Schraer
Dec 13 2000Counsel's status report received (confidential)
 
Mar 5 2001Counsel's status report received (confidential)
 
May 8 2001Counsel's status report received (confidential)
 
Jul 11 2001Counsel's status report received (confidential)
 
Sep 12 2001Counsel's status report received (confidential)
 
Oct 16 2001Compensation awarded counsel
  Atty Schraer
Nov 16 2001Counsel's status report received (confidential)
 
Nov 27 2001Counsel's status report received (confidential)
  (supplemental)
Jan 25 2002Counsel's status report received (confidential)
 
Feb 5 2002Counsel's status report received (confidential)
  from atty Schraer.
Mar 27 2002Counsel's status report received (confidential)
 
Jun 3 2002Counsel's status report received (confidential)
 
Jun 26 2002Record on appeal filed
  C-30 (8285) and R-32 (6107) including material under seal. Clerk's transcripts includes 6315 pp. of juror questionnaires. Clerk's transcript does not include a probation officer's report.
Jun 26 2002Appellant's opening brief letter sent, due:
  August 5, 2002.
Jul 30 2002Request for extension of time filed
  To file AOB. (1st request)
Jul 31 2002Counsel's status report received (confidential)
 
Aug 1 2002Extension of time granted
  To 10/4/2002 to file AOB. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to inform his or her assisting entity, if any, and any assisting attorney or entity of any seprate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 7 2002Compensation awarded counsel
  Atty Schraer
Aug 7 2002Compensation awarded counsel
  Atty Schraer
Sep 30 2002Request for extension of time filed
  To file appellant's opening brief. (2nd request)
Oct 2 2002Extension of time granted
  To 12/3/2002 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 3 2002Counsel's status report received (confidential)
 
Nov 26 2002Request for extension of time filed
  To file appellant's opening brief. (3rd request)
Nov 26 2002Counsel's status report received (confidential)
 
Dec 6 2002Extension of time granted
  To 2/3/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling about 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jan 28 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Jan 28 2003Counsel's status report received (confidential)
 
Jan 30 2003Extension of time granted
  to 4-4-2003 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Feb 25 2003Compensation awarded counsel
  Atty Schraer
Mar 28 2003Counsel's status report received (confidential)
 
Mar 28 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Apr 3 2003Extension of time granted
  to 5/5/2003 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Apr 29 2003Order filed
  Due to clerical error, the order filed in the above matter on 4/3/2003, is amended to read as follows: Good cause appearing, counsel's request for an extension of time to file appellant's opening brief is granted to 6/3/2003. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
May 30 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
May 30 2003Counsel's status report received (confidential)
 
Jun 4 2003Extension of time granted
  to 8/4/2003 to file appellant's opening brief. The court anticipates that after that date only, one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jul 30 2003Request for extension of time filed
  to file AOB. (7th request)
Jul 30 2003Counsel's status report received (confidential)
 
Aug 6 2003Extension of time granted
  to 10/3/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 2 2003Counsel's status report received (confidential)
  from atty Schraer.
Oct 2 2003Request for extension of time filed
  to file appellant's opening brief. (8th request)
Oct 8 2003Extension of time granted
  to 12/2/2003 to file appellant's opening brief. After tht date, only two further extensions totaling 120 additional days will be granted. Extension is granted based upon counsel George L. Schraer's representation that he anticipates filing that brief by 3/1/2004.
Dec 1 2003Request for extension of time filed
  to file appellant's opening brief. (9th request)
Dec 1 2003Counsel's status report received (confidential)
 
Dec 4 2003Extension of time granted
  to 2/2/2004 to file appellant's opening brief. After that date, only one further extension totaling 60 additional days will be granted. Extension is granted based upon counsel George L. Schraer's representation that he anticipates filing that brief by 3/1/2004.
Jan 14 2004Compensation awarded counsel
  Atty Schraer
Jan 28 2004Request for extension of time filed
  to file AOB. (10th request)
Jan 28 2004Counsel's status report received (confidential)
 
Jan 30 2004Extension of time granted
  to 4-2-2004 to file AOB. After that date, only one further extension totaling 60 additional days will be granted. Extension granted based upon counsel George L. Schraer's representation that he anticipates filing the brief by June 2004.
Feb 25 2004Compensation awarded counsel
  Atty Schraer
Apr 1 2004Request for extension of time filed
  to file appellant's opening brief. (11th request)
Apr 1 2004Counsel's status report received (confidential)
 
Apr 12 2004Extension of time granted
  to June 1, 2004 to file appellant's opening brief. After that date, no further extensions will be granted. Extension is granted based upon Counsel George L. Schraer's representation that he anticipates filing that brief by June 1, 2004.
Jun 2 2004Request for extension of time filed
  to file appellant's opening brief. (12th request)
Jun 2 2004Counsel's status report received (confidential)
 
Jun 4 2004Extension of time granted
  to 7/30/2004 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon counsel George L. Schraer's representation that he anticipates filing that brief by 7/31/2004.
Jul 26 2004Request for extension of time filed
  to file appellant's opening brief. (13th request)
Jul 26 2004Counsel's status report received (confidential)
 
Jul 30 2004Extension of time granted
  to 9-29-2004 to file AOB. After that date, no further extension will be granted. Extension granted based upon counsel George L. Schraer's representation that he anticipates filing the brief by 9-29-2004.
Sep 29 2004Appellant's opening brief filed
  (60,740 words; 198 pp.)
Oct 4 2004Counsel's status report received (confidential)
 
Oct 5 2004Filed:
  Declaration of attorney George L. Schraer pursuant to Penal Code Section 1241 (confidential).
Oct 12 2004Compensation awarded counsel
  Atty Schraer
Oct 20 2004Compensation awarded counsel
  Atty Schraer
Oct 26 2004Request for extension of time filed
  to file respondent's brief. (1st request)
Oct 28 2004Extension of time granted
  to 12/28/2004 to file respondent's brief.
Dec 1 2004Counsel's status report received (confidential)
 
Dec 22 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Dec 30 2004Extension of time granted
  to 2/28/2005 to file respondent's brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon Deputy Attorney General Jane N. Kirkland's representation that she anticipates filing that brief by 8/2005.
Jan 31 2005Counsel's status report received (confidential)
 
Feb 25 2005Request for extension of time filed
  to file respondent's brief. (3rd request)
Mar 3 2005Extension of time granted
  to 4/29/2005 to file respondent's brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Deputy Attorney General Jane N. Kirkland's representation that she anticipates filing that brief by 8/2005.
Mar 30 2005Counsel's status report received (confidential)
 
Apr 27 2005Request for extension of time filed
  to file respondent's brief. (4th request)
May 3 2005Extension of time granted
  to 6/28/2005 to file respondent's brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Deputy Attorney General Jane N. Kirkland's representation that she anticipates filing that brief by 9/2005.
Jun 6 2005Counsel's status report received (confidential)
 
Jun 22 2005Request for extension of time filed
  to file respondent's brief. (5th request)
Jun 27 2005Filed:
  Supplemental request for extension of time to file respondent's brief.
Jul 5 2005Extension of time granted
  to August 29, 2005 to file the respondent's brief. After that date, only one further extensions totaling about 30 additional days is contemplated. Extension is granted based upon Deputy Attorney General Jane N Kirkland's representation that she anticipates filing that brief by September 2005.
Aug 3 2005Counsel's status report received (confidential)
 
Aug 16 2005Request for extension of time filed
  to file respondent's brief. (6th request)
Aug 22 2005Filed:
  Amended declaration in support of application of extension of time to file respondent's brief.
Aug 25 2005Extension of time granted
  to 10/26/2005 to file respondent's brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy Attorney General Jane Kirkland's representation that she anticipates filing that brief by 12/2005.
Oct 5 2005Counsel's status report received (confidential)
 
Oct 25 2005Request for extension of time filed
  to file respondent's brief. (7th request)
Oct 31 2005Extension of time granted
  to 1/9/2006 to file respondent's brief. Extension is granted based upon Deputy Attorney General Jane Kirkland's representation that she anticipates filing that brief by 1/9/2006. After that date, no further extension will be granted.
Dec 5 2005Counsel's status report received (confidential)
 
Jan 4 2006Request for extension of time filed
  to file respondent's brief. (8th request)
Jan 12 2006Extension of time granted
  to 1/23/2006 to file respondent's brief. Extension is granted based upon Deputy Attorney General Jane N. Kirkland's representation that she anticipates filing that brief by 1/23/2006. After that date, no further extension will be granted.
Jan 23 2006Respondent's brief filed
  (25225 words; 82 pp.)
Jan 27 2006Filed:
  Declaration of attorney George L. Schraer (confidential).
Feb 2 2006Compensation awarded counsel
  Atty Schraer
Feb 6 2006Request for extension of time filed
  to file appellant's reply brief. (1st request)
Feb 6 2006Counsel's status report received (confidential)
 
Feb 7 2006Extension of time granted
  to 4/13/2006 to file appellant's reply brief.
Apr 10 2006Counsel's status report received (confidential)
 
Apr 10 2006Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Apr 13 2006Extension of time granted
  to June 12, 2006 to file appellant's reply brief. After that date, only three further extensions totaling about 180 additional days will ge granted. Extension is granted based upon counsel George L. Schraer's representation that he anticipates filing that brief by December 12, 2006.
Jun 8 2006Counsel's status report received (confidential)
 
Jun 8 2006Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Jun 13 2006Extension of time granted
  to August 10, 2006 to file the appellant's reply brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon counsel George L. Schraer's representation that he anticipates filing that brief by December 12, 2006.
Jun 15 2006Counsel's status report received (confidential)
  (supplemental)
Aug 7 2006Request for extension of time filed
  to file reply brief. (4th request)
Aug 7 2006Counsel's status report received (confidential)
 
Aug 9 2006Extension of time granted
  to October 10, 2006 to file the reply brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon counsel George L. Schraer's representation that he anticipates filing that brief by December 12, 2006.
Sep 7 2006Compensation awarded counsel
  Atty Schraer
Oct 6 2006Request for extension of time filed
  to file appellant's reply brief. (5th request)
Oct 6 2006Counsel's status report received (confidential)
 
Oct 16 2006Extension of time granted
  to December 11, 2006 to file the appellant's reply brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon counsel George L. Schraer's representation that he anticipates filing that brief by February 7, 2007.
Dec 8 2006Request for extension of time filed
  to file appellant's reply brief. (6th request)
Dec 8 2006Counsel's status report received (confidential)
 
Dec 12 2006Extension of time granted
  to February 7, 2007 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel George L. Schraer's representation that he anticipates filing that brief by February 7, 2007.
Feb 2 2007Counsel's status report received (confidential)
  from atty Schraer.
Feb 2 2007Request for extension of time filed
  to file appellant's reply brief. (7th request)
Feb 9 2007Extension of time granted
  to April 9, 2007 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel George L. Schraer's representation that he anticipates filing that brief by April 9, 2007.
Mar 8 2007Compensation awarded counsel
  Atty Schraer
Apr 11 2007Filed:
  Declaration of counsel George Schraer. (Confidential)
Apr 11 2007Appellant's reply brief filed
  (18,980 words; 63 pp.)
Apr 18 2007Compensation awarded counsel
  Atty Schraer
Apr 19 2007Counsel's status report received (confidential)
  from atty Schraer.
Jun 11 2007Counsel's status report received (confidential)
  from atty Schraer.
Jul 18 2007Compensation awarded counsel
  Atty Schraer
Aug 9 2007Counsel's status report received (confidential)
  from atty Schraer.
Aug 13 2007Habeas funds request filed (confidential)
 
Sep 26 2007Compensation awarded counsel
  Atty Schraer
Oct 4 2007Habeas funds request filed (confidential)
 
Oct 9 2007Related habeas corpus petition filed (concurrent)
  case no. S157098.
Oct 11 2007Counsel's status report received (confidential)
  from atty Schraer.
Oct 25 2007Compensation awarded counsel
  Atty Schraer
Nov 1 2007Compensation awarded counsel
  Atty Schraer
Nov 14 2007Order filed re habeas funds request (confidential)
 
Nov 14 2007Order filed re habeas funds request (confidential)
 
Nov 15 2007Compensation awarded counsel
  Atty Schraer
Nov 29 2007Motion for appointment of counsel filed
  by appellant "Motion to Appoint Geraldine S. Russell as Associate Counsel for the Balance of the Appeal and for State Habeas and Clemency Proceedings."
Dec 28 2007Filed:
  request by inmate for appellate and habeas corpus representation.
Dec 28 2007Filed:
  request by counsel Geraldine Russell for appellate and habeas corpus appointment.
Jan 16 2008Counsel appointment order filed
  Good cause appearing, the application of appointed counsel George L. Schraer for the appointment of associate counsel, filed November 29, 2007, is granted. Geraldine S. Russell is hereby appointed as associate counsel of record to represent appellant Jerry Thomas Bunyard for both the direct appeal and related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court.
Sep 3 2008Compensation awarded counsel
  Atty Schraer
Nov 6 2008Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the January 2009 calendar, to be held the week of January 5, 2009, 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.
Dec 10 2008Case ordered on calendar
  to be argued on Tuesday, January 6, 2009, at 9:00 a.m., in San Francisco
Dec 19 2008Filed:
  respondent's focus issues letter, dated December 18, 2008.
Dec 22 2008Received:
  appearance sheet from Deputy Attorney General, Robert Nash, indicating 30 minutes for oral argument for respondent.
Dec 22 2008Received:
  appearance sheet from attorney George L. Schraer, indicating 45 minutes for oral argument for appellant.
Dec 22 2008Filed:
  appellant's focus issues letter, dated December 19, 2008.
Jan 2 2009Received:
  letter from respondent, dated January 2, 2009 regarding case cited in appellant's reply brief.
Jan 6 2009Cause argued and submitted
 
Jan 8 2009Compensation awarded counsel
  Atty Schraer
Jan 12 2009Filed:
  by appellant, letter dated January 8, 2009, in response to Justice Corrigan's question at oral argument.
Feb 20 2009Notice of forthcoming opinion posted
 
Feb 23 2009Opinion filed: Judgment affirmed in full
  opinion by Moreno, J -----joined by George, C.J., Kennard, Baxter, Werdegar, Chin, and Corrigan, JJ.
Mar 10 2009Rehearing petition filed
  by appellant. (5,423 words; 20 pp.)
Mar 13 2009Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including May 22, 2009, or the date upon which rehearing is either granted or denied, whichever occurs first.
Apr 15 2009Rehearing denied
  The petition for rehearing is denied.
Apr 15 2009Remittitur issued
 
Apr 22 2009Received:
  acknowledgment of receipt of remittitur
Jul 17 2009Received:
  letter from USSC dated July 14, 2009, advising that a petition for writ of certiorari was filed on July 10, 2009 and placed on the docket July 14, 2009 as No. 09-5267
Jul 22 2009Compensation awarded counsel
  Atty Schraer

Briefs
Sep 29 2004Appellant's opening brief filed
 
Jan 23 2006Respondent's brief filed
 
Apr 11 2007Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
Mar 13, 2009
Annotated by diana teasland

Writtn by Daniel Gordon

Background:

The defendant Jeremy Thomas Bunyard was convicted by jury of two first degree murders for the deaths of his wife Elaine and Elaine’s full-term healthy fetus. During the penalty phase, Bunyard was sentenced to death. On direct appeal, the California Supreme Court upheld the judgment of guilt but reversed the death penalty because the trial court improperly issued the jury a Briggs instruction informing the jury that the Governor is empowered to commute a sentence of life imprisonment without possibility of parole. The prosecution elected to re-try the penalty phase.

During the second voir dire, a prospective juror was removed for cause after stating that she would have difficulty serving on the penalty phase jury because she had not been part of the jury that had found Bunyard guilty. During the second penalty phase trial, a material witness from the first trial, Randy Johnson, was deemed unavailable to testify, and his testimony from the first trial about Bunyard’s attempts to solicit him to murder Elaine was read to the jury. The prosecution also introduced testimony that Bunyard had engaged in a number of acts of domestic violence against Elaine and against his first wife, Glenna Day. The new jury again returned a verdict of death.

Summary of Decision:

(1) The court first determined that the trial court did not err in its decision to excuse a prospective juror for cause, since her reservation about serving on a penalty phase jury without having determined Bunyard’s guilt would substantially impair performance of her juror duty. The court first set a deferential standard of review, stating that it defers to the trial court's evaluation of a prospective juror's state of mind, and such evaluation is binding on appellate courts. The court then rejected Bunyard’s contention that the juror merely held a “lingering doubt” about her involvement in the penalty phase, but rather that she had a more fundamental objection to the proceeding. The court also rejected Bunyard’s argument that the juror affirmed her ability and willingness to serve on the penalty phase jury, citing the juror’s expressed reluctance to undertake her duties under the particular circumstances of this case.

(2) Second, the court reviewed the trial court's own decision to release a witness on his own recognizance, albeit with the prosecution's consent and even urging. The court held that the trial court’s determination of whether to release a material witness on his own recognizance is a determination involving in part an observation of the witness's credibility and demeanor that the trial court is uniquely in a position to make. Therefore, although the appellate court independently balances the witness’s flight risk against his or her unreasonable detainment, it also give due deference to the trial court's determination of a witness's flight risk, and will second-guess that determination only when it is clear from the record that it was objectively unreasonable. The court then concluded that the trial court made a reasonable determination that Randy Johnson would appear to testify, and the prosecution's support for the trial court's decision did not constitute a lack of reasonable diligence, noting that the trial court had Johnson agree orally and in writing to return on a specified date, and to keep in weekly contact with law enforcement until that date, with the understanding that he would be re-arrested and placed in custody if he failed to maintain that weekly contact. The court also noted that the trial court made a credibility determination that Johnson would return to testify, and Johnson did in fact comply within the reporting requirements for almost two months before ultimately becoming unavailable. Finally, the court concluded that the prosecution did in fact conduct a reasonably diligent search for Johnson before declaring him unavailable for testimony, finding that in cases where courts have not found adequate diligence, prosecutorial efforts have been perfunctory or obviously negligent.

(3) The court next found that the trial court’s properly admitted during the penalty phase testimony that Bunyard was responsible for domestic violence. Section 190.3 of the penal code permits evidence of aggravating circumstances during the penalty phase of a death-penalty murder trial. The court disagreed with Bunyard’s contention that the incidents at issue (hitting and choking his wife and throwing dinner plates) were too trivial to be included in a penalty phase determination. Rather, the court found the course of conduct taken as a whole was relevant to showing Bunyard’s propensity for violence.

(4) The court also determined that the prosecution’s use of Johnson’s prior testimony did not
constitute “double counting.” The prosecutor only used the Johnson testimony to prove that Bunyard had engaged in an un-adjudicated violent criminal act in attempting to solicit Johnson to kill Elaine. The prosecutor did mention that Johnson's testimony should negate any lingering doubt that defendant did in fact commit the murders (of which another jury had convicted him); however, the prosecutor did not mention Johnson’s actual testimony in connection with any other aggravating factors.

(5) Finally, the court refused to entertain Bunyard’s claims that California’s death penalty statutes are unconstitutional under federal or international law.