Filed 3/25/04
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S024416
v.
DELLANO LEROY CLEVELAND
and CHAUNCEY JAMAL VEASLEY,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. KA006977
A jury convicted defendants Dellano Leroy Cleveland and Chauncey Jamal
Veasley, as well as codefendant Rajeesh Prasad Charan, of robbing and murdering
Anthony Nelson and Charles Hunter and of conspiring to commit murder. (Pen.
Code, §§ 182, 187, 211.)1 The jury found the murders to be in the first degree and
under the special circumstances of multiple murder and robbery murder. (§ 190.2,
subd. (a)(3), (17).) As to the murders and robberies, the jury also found that a
principal was armed with a firearm. (§ 12022, subd. (a)(1).) The jury found that
each defendant either was the actual killer, or intended to kill, or “with reckless
indifference to human life and as a major participant,” aided and abetted another in
the commission of the robberies. (§ 190.2, subds. (b), (c), (d).) Both Cleveland
and Veasley admitted a prior conviction allegation. (§ 667, subd. (a).)
1
All further statutory references are to the Penal Code unless otherwise
indicated.
1
The court bifurcated Veasley’s penalty trial from that of Cleveland and
Charan. At the conclusion of the penalty trials, the same jury returned a verdict of
death as to all three defendants. The court denied Cleveland’s and Veasley’s
automatic motions to modify the verdict (§ 190.4) and sentenced them to death.2
This appeal is automatic. (§ 1239, subd. (b).) We affirm the judgments.
I. THE FACTS
A. Guilt Phase
1. Prosecution Evidence
In the evening of October 12, 1990, the bullet-ridden bodies of Anthony
Nelson and Charles Hunter, both drug dealers, were found lying down in room
140 of the All Star Inn in Pomona. They had died of multiple gunshot wounds,
most but not all in the head. Both received four head wounds, each of which alone
might have been fatal. The evidence showed that a single gun, probably a nine-
millimeter semiautomatic pistol, fired all of the bullets. The left pockets of both
victims had been pulled out and were empty. Jewelry that Nelson normally
possessed, including a watch, was missing.
Room 140 was at the back of the motel, not visible from the office. It had
not been rented that day. It appeared the door to the room had been kicked in.
Motel records showed that the nearby room 138 had been rented to “DeChauncey
Veasley” on September 26, 1990. Some blood found at the scene was type A.
That blood could not have come from either victim, but it might have come from
Cleveland, as well as about a third of the general population. There was not
2
The court did, however, grant the modification motion as to Charan, so he
is not a party to this appeal. Accordingly, we do not discuss facts relevant only to
him.
2
enough of the blood for further typing. Veasley’s fingerprints were found on the
inside of the front door of room 140, above the doorknob.
Evidence showed that earlier on the day of the murders, the three
defendants had invaded the Hesperia home of Jesus Valles, sometimes called
“Chuey,” who was also a drug dealer. A gunfight ensued in which Valles and
Cleveland were both shot in the hand. Some of the bullets fired in this fight came
from the same gun later used in the murders.
Dorcey Jackson testified that she introduced Nelson (known as “Rick”) to
Veasley (known as “Ocean”) in July or August 1990. Sometimes she also saw
Veasley with both Nelson and Hunter. In testimony admitted only against
Veasley, Jackson said that Nelson and Veasley talked about engaging in drug
transactions. She sometimes heard Veasley call Nelson on the telephone, and then
Nelson would appear and talk about drug transactions.
At the time of the murders, Nelson lived in San Dimas with his girlfriend,
Nicole Brown (who was Hunter’s cousin), and Nelson’s cousin, Arthur Walker.
On the day of the murders, Hunter came to their house with a beeper. At one
point, the beeper went off. Hunter looked at the beeper and said, “It’s Ocean”
(Veasley). Hunter made a telephone call, then gave the telephone to Nelson, who
spoke for a while. A short time later, the telephone rang again. Nelson answered
it and spoke for about five or 10 minutes. Then Nelson went into another room
where he kept cocaine. He returned with a plastic bag containing what Walker
estimated was about two or three ounces of rock cocaine. Nelson handed the bag
to Hunter. The two then left around 2:00 p.m. Nelson said he was “going to the
All Star” and would “be back in about a half hour.” He indicated to Walker that
he was going to “make a sale.” Nelson and Hunter never returned.
Bobbie Jean Peterson, Veasley’s wife at the time of these events, testified
that in October 1990, she lived in Hesperia. It took about 30 to 45 minutes to
3
drive between Hesperia and Pomona. Veasley did not live with her at the time,
but he sometimes visited. On October 11, 1990, Peterson was at her home with
Veasley and Cleveland. She heard the two defendants talk “about going up the
street later on in the evening when it got dark because they were going to rob” the
house of a drug dealer called Chuey.
The next day, October 12, both defendants were again at her home.
Veasley said that they had to get to Chuey’s before noon. Veasley told Cleveland
that he, Veasley, would have “to sit in the car because Chuey knew him,” and that
the others should “go in, get the money and get the drugs and meet him back
outside.” Later, both Cleveland’s brother and codefendant Charan arrived. There
was talk that “they had been waiting on them, let’s go.” Around 10:00 or 11:00
a.m., the defendants, Cleveland’s brother, and Charan left together. They returned
about an hour later.
Cleveland said he had been shot in the hand and asked Peterson to take out
the bullet. He was bleeding on his hand, his clothes, and onto the floor. Peterson
told him she could not take the bullet out, and he had to go to the hospital.
Veasley was angry with Cleveland “because things hadn’t went as planned.” He
said Cleveland “was getting weak and . . . he should have blasted all those
people.” Cleveland said “that there was another guy there and they had only
expected one guy, they hadn’t expected there to be shooting . . . .” He also said he
“wasn’t getting weak and that if [Veasley] thought of something else he would see
. . . he was not weak.” Veasley responded that it was “okay, that they could do
something else.” Cleveland said “that was okay with him.”
Veasley said that “he was currently buying cocaine from a man named Rick
down the hill. That he could beep this person, put in his code and that this man
would call him right back. When he did that they could have . . . Rick meet them
at a motel room and that they could take the drugs from him instead of paying for
4
it.” Cleveland said that was “fine.” Veasley also said “they could go to Pomona
and bump off his supplier.” Veasley then paged Nelson. After about 10 minutes
the telephone rang. While they were waiting for the call, Veasley told the others
that “they could go to the All Star Inn in Pomona, that the security was lax there
during the day.” Veasley said that “they could go to a back room and kick in the
door. And that he would go use another phone and call Rick and tell Rick where
he was because he had already dealt with Rick at that motel before so it wouldn’t
be anything unusual. He said he would tell Rick what room and that he would go
back over there and that the other men could wait in the bathroom and then when
Rick got there they could come out.” Cleveland said, “Okay.”
When the telephone rang, Veasley answered. Peterson heard him say on
the telephone “that he was on his way down the hill and that he needed to buy
three ounces.” He also said that he had “some people with him, some people that
had invested money, but they would leave the minute Rick got there.” Veasley
told Nelson that “he was going to get a motel and that he will call him.” After the
telephone call, Veasley told the others that “Rick would come with another guy,
that he always brought a smoker,” i.e., a cocaine user, “with him.” Veasley also
said “that they had to be taken care of because Rick knew him, knew the phone
number to [Peterson’s] house and that he [Veasley] had a wife and kids.” Veasley
called Nelson a “hollypopper”—a person who sells drugs but is not “street wise.”
He said that Nelson did not carry a gun. Nelson, he said, “had a lot of money
and . . . wouldn’t know any better. He wouldn’t know not to go make a big deal
like that at a motel room.”
Cleveland asked which gun they should use. At this point, Peterson noticed
that Charan had a handgun. Cleveland asked whether they should take the “nine
millimeter or . . . the rifle.” Charan said he did not want to use the nine-
millimeter, which he referred to as his, “because they had just used it up the
5
street.” Cleveland said that “they should use the nine millimeter because a rifle
was too loud, even if they shot it through a pillow, and that rifle made a lot of
mess.” They decided to use the nine-millimeter. Someone said they did not think
the Hesperia matter would be connected with Nelson in Pomona. Peterson
received a telephone call around this time from Jackson’s son, Bobby. Veasley
told Bobby he was on his way to Pomona to rob “you know who.” Veasley,
Cleveland, and Charan left around noon. By this time Cleveland was no longer
bleeding.
Cleveland and Veasley returned around 8:00 or 9:00 that evening. Veasley
was wearing a watch, something Peterson had never seen him wear before. He
also possessed a baggie filled with rock cocaine. In testimony admitted only
against Veasley, Peterson said that a couple of days later Veasley made statements
to another person indicating Veasley’s involvement in the incident at the All Star
Inn.
Dion Morris testified that she knew Cleveland, Veasley, and Charan. One
time when they were at her apartment, she saw Cleveland possess a .22-caliber
gun, Veasley a sawed-off shotgun, and Charan a nine-millimeter handgun. On
October 12, 1990, in the late afternoon, she received a telephone call from
Veasley. Veasley told her that Cleveland had been shot in the hand and asked her
if she knew someone who could take a bullet out. He also said that Cleveland
“had got shot in his hand and that it was kind of like a shootout and made a joke
about it.” Cleveland then got on the telephone. He also said he had been shot in
the hand and asked for Morris’s help. Morris arranged for someone to look at
Cleveland’s hand. Cleveland came to her apartment around 11:00 that evening.
His hand was swollen and bleeding, and he had blood on his shoes and “khakis.”
In testimony admitted only against Cleveland, Dion said that Cleveland told her
“that if he had went to the hospital that because he had a bullet wound that the
6
doctors would call the police and that he would go to jail.” In testimony admitted
only against Veasley, Morris testified that some time after October 12, Veasley
told her that he had killed somebody in Pomona and had gotten two or three
ounces of cocaine and a watch out of the murder.
Cindy Buttram testified that at the time of the murders, she was Cleveland’s
girlfriend. In testimony admitted only against Cleveland, she said that in October
1990, Cleveland told her he had been shot. She saw him later that day and
observed the wound. The next day, October 13, she took him to the hospital,
where he remained for three days. Hospital records showed that Cleveland was
admitted to the Los Angeles County USC Medical Center on October 13, 1990.
In testimony admitted only against Cleveland, Detective John Holzberger
testified that he interviewed Cleveland in January 1991. Cleveland’s hand was
injured but was healing. Cleveland told him he had been shot in a scuffle with a
man who had been trying to break into Buttram’s car. In testimony admitted only
against Veasley, Detective Harry Moore testified that he interviewed Veasley in
February 1991. Veasley denied knowing that Cleveland had been shot in the
hand. He said he knew what the All Star Inn was and had been there once. He
denied knowing anyone named Rick or Ricky from San Dimas. He also denied
owning a gun and knowing the persons who had been killed at the All Star Inn in
October 1990.
Telephone and pager company records confirmed the existence, although
not the substance, of various telephone calls and pagings about which the
witnesses testified.
2. Defense Evidence
Cleveland presented evidence regarding his being shot in the hand. Alvin
Woods, Cleveland’s uncle, testified that he lived on East Kingsley in Pomona. On
October 12, 1990, he was outside watering some plants when he heard a gunshot.
7
He turned and saw Cleveland and another person “playing” or “kind of tussling”
with the gun. It appeared to Woods “like they was playing at the time and it just
got out of hand.” Woods also saw blood come from Cleveland’s hand. Cleveland
then entered a car and left. Dolores Glynn, Buttram’s sister, testified that a
bleeding Cleveland came to her house on October 12, 1990. He made a telephone
call to Buttram, then left after about 20 minutes. Cleveland told her “he had been
accidentally shot over on Kingsley.” Rose Wentz, Buttram’s employer, testified
that on a Friday in October 1990, Buttram received a telephone call in the
afternoon. Buttram told Wentz that Cleveland had been shot in the hand. Buttram
left work at the normal time, after 5:00 p.m. Buttram did not go to work the
following Monday. She told Wentz that Cleveland was still in the hospital and
wanted Buttram there.
Counsel for Veasley elicited on cross-examination of the fingerprint
examiner that he could not determine when Veasley’s fingerprint had been left on
the door of room 140. Fingerprints can remain for a long time. Veasley also
presented evidence of some of Peterson’s previous statements in an attempt to
challenge her credibility.
B. Penalty Phase
Veasley’s penalty phase was bifurcated from that of the other two
defendants. Veasley’s penalty phase was first, then Cleveland and Charan’s.
1. Veasley
At prosecution request, the court judicially noticed that in 1984, Veasley
was convicted of second degree commercial burglary, and in 1986, a “James
English”—stipulated to be Veasley—was convicted of robbery with personal use
of a gun. The prosecution presented evidence of the circumstances of the
burglary, which involved breaking into a locked car and possessing a sawed-off
shotgun.
8
In mitigation, Veasley presented the testimony of his mother, Tressie
Williams, and other family members. Veasley was raised by his mother and
stepfather. Veasley was very fearful of his stepfather, who abused him physically
and mentally. Eventually, when Veasley was 16 years old, his mother told him
about his natural father and suggested he meet him. Veasley was excited, but then
she learned that the father had died, which saddened Veasley. Veasley then left
home. The witnesses testified that he was kind, protective, and supportive to his
siblings and his own four children. Veasley was an outstanding basketball player
and received numerous basketball scholarship offers. He was good with children
and they loved him.
2. Cleveland
At prosecution request, the court judicially noticed that in 1986, Cleveland
was convicted of possession for sale of cocaine. The prosecution also presented
evidence that he had other convictions for assault with intent to commit murder,
robbery, kidnapping, and assault with a deadly weapon on a peace officer. It
presented evidence of the circumstances of those crimes. In August 1980,
Cleveland, armed with a pistol, and another person accosted a man and woman in
the couple’s car, stole some of their property, and drove away with the man in the
car. Eventually, Cleveland shot the man and fled. In January 1984, Cleveland
drove his car into a police officer who had stopped him for speeding.
In mitigation, Cleveland presented the testimony of his grandmother, of the
minister who had presided over Cleveland’s wedding, and others who testified
about his good qualities. Cleveland often helped his uncle, Alvin Woods, who
was a paraplegic. He was good with children and loved dogs. He attended and
helped out at church. Some of the witnesses testified that he was too good a
person to receive the death penalty.
9
Cleveland also called as a witness Peterson, who had testified at the guilt
phase. Before her testimony, the court informed the jury that what she was about
to say had been legally inadmissible until then. Peterson testified that the night of
the murders, Veasley told her that he had made Nelson and Hunter lie down on the
floor with their hands behind their backs, made them “scoot on their bellies with
their heads up against the door,” and then shot them each twice in the head.
II. DISCUSSION3
A. Pretrial Issues
1. Cleveland’s Complaints About Counsel
Cleveland was arrested in this matter long after the other two defendants.
He first appeared in municipal court on March 13, 1991, and Lee Coleman was
appointed to represent him. After the preliminary hearing, he was arraigned in
superior court on May 13, 1991, and Coleman was appointed to represent him in
that court. On May 16, 1991, Cleveland stated that he was opposed to going
beyond the statutory time period for trial. The court set the matter for hearing on
June 12, 1991. On that date, the district attorney said the prosecution would be
ready for trial on July 1, 1991. Counsel for both Veasley and Charan said they
would not be ready for trial so soon. Coleman said that he, too, would not be
ready for trial by then, explaining, “We have tremendous volume [of discovery],
close to 3,000 pages of documents and approximately an additional hundred that
we received yesterday, the 26 video tapes and 8 audio tapes, quite extensive
preparation required in this case because of the complexity of the case, and I will
3
Both Cleveland and Veasley join arguments of the other to the extent they
may inure to their benefit.
10
not be ready on the 1st of July.” Coleman said he would ask Cleveland to waive
time until September.
The court asked Cleveland if he would waive time. Cleveland asked if he
could “say something besides the question that you asked me.” The court agreed.
Cleveland then said, “I would like to file for a 1387 under section 3, 4 and 5. A
1040 change of venue on the grounds that I feel that he’s had ample amount of
time to get everything. We have been gone a month, and he just got the tapes
yesterday, and just like I feel he’s not—he’s isn’t representing me to his fullest
ability.” The court asked whether it was his desire not to waive time. Cleveland
said it was. Accordingly, because Cleveland did not waive time, the court
maintained the July 1 trial date.
The next hearing was held on June 20, 1991. Charan moved to continue the
trial. Coleman also requested a continuance on behalf of Cleveland. Cleveland,
however, stated he objected to a continuance. When the court asked why, he
responded: “Well, like I stated last week, . . . my attorney—I mean, I don’t know
nothing. He never tells me what’s going on in the case and what he’s doing and
how far he’s gone. So I don’t know where we’re at, anyway. I know the
complexity of the case, but that’s it, because I just know the charges.” The court
asked Coleman to comment. Coleman said, “I discussed with my client facts of
the case. I’ve also indicated to him how far I am in the papers that we have. I
think I’ve indicated to him before that I’ve covered approximately 500 pages of
the additional information that’s come in, and I’ve asked him to cooperate and
give us additional time to work on the case.” Cleveland responded that Coleman
“told me he went 700 pages last week, and that was it. As I’ve stressed last week,
under Penal Code 1387—” The court then ascertained that both Veasley and
Charan had no objection to continuing the case. It then found good cause for a
continuance due to the nature of the charges, the amount of discovery, and the
11
investigation the case warranted. Over Cleveland’s objection, it granted a
continuance until September. The case was assigned for trial on
September 11, 1991.
During Charan and Cleveland’s penalty phase, Cleveland told the court he
wanted to say something in his defense. The court cautioned Cleveland that it
would hear any statement he wanted to make, but he should first discuss it with
Coleman. Cleveland responded, “How can I discuss something with someone that
doesn’t listen to me?” The court reiterated that it would “entertain” a statement,
but it put the matter over so Cleveland could think about it and talk to Coleman.
In Cleveland’s absence, the court told Coleman there may be a potential “Marsden
motion” (People v. Marsden (1970) 2 Cal.3d 118), and that he may wish to discuss
the matter with Cleveland. Coleman responded, “I will. Just the difficulty in
paying attention to what’s happening in the case and trying to have an interview
with Mr. Cleveland here at the counsel table, and it doesn’t work out too well.”
At the next hearing, the court asked Cleveland whether he had had further
discussions with Coleman. Cleveland said, “I talked to my counsel during lunch
break and feel I don’t want to drop the issue completely.” The court asked if
Cleveland wanted to exclude the prosecutor from the hearing and said it would do
so if requested. Cleveland said he “would like to reserve the right until a later
time.” The court explained to Cleveland that if there were any conflict between
him and Coleman, Cleveland had the right to inform the court with the prosecutor
and maybe even the other defendants excluded, and that he could also reserve the
matter until later. Cleveland said he would reserve it.
After the death verdict, when the court was scheduling the hearing on the
automatic motion to modify the verdict, Coleman stated that Cleveland did not
wish to waive time. The court told Cleveland it would give him another
opportunity to discuss the matter with Coleman because these were important
12
issues. Cleveland said, “My life was important too, and I feel I was crossed, so
no, he don’t know how to represent me.” He said, “I don’t even wish to have him
[a] long time ago.” Accordingly, the court set the hearing on the modification
motion within the statutory time period. At the outset of that hearing, the court,
anticipating a possible Marsden motion, explained to Cleveland that he had the
“right to be heard in reference to any issue that you want to bring to my attention
regarding either conflicts that exist between you and Mr. Coleman or your belief
that you have been denied effective representation . . . .” It further explained that
if Cleveland wanted to make a “Marsden motion” it would exclude the prosecutor,
and Cleveland could “tell me your specific reasons as to why you think a conflict
exists or why you’re not receiving effective representation.” It asked if Cleveland
wanted to be heard. Cleveland responded, “I waive.” When the court again asked
if he wanted “to be heard in reference to that,” he said, “No.”
Cleveland now argues the court violated its duty to inquire into the reasons
for his complaints that Coleman’s performance was inadequate. The record does
not support the contention. If a defendant seeks new counsel on the basis that his
appointed counsel is providing inadequate representation, the court must permit
him to explain the basis of his contention and to relate specific instances of
inadequate performance. (People v. Hart (1999) 20 Cal.4th 546, 603.) But
Cleveland never asked for new counsel even though the court invited him to do so.
A defendant need not make a formal motion, but he must provide some clear
indication that he wants a substitute attorney. (People v. Mendoza (2000) 24
Cal.4th 130, 157.) It is true that early in the pretrial proceedings, Cleveland
complained that his attorney had not taken certain steps, and he refused to waive
time. But he did not indicate he wanted a new attorney so soon in the process.
The court listened to and accepted his refusal to waive time, although it ultimately
exercised its discretion to continue the matter at the request of Cleveland’s
13
attorney and both of the codefendants due to the nature of the case. The fact that
Coleman, in common with counsel for the codefendants, believed he needed more
than 60 days to prepare to defend a capital case gives no reason to suspect his
performance was or would be inadequate, and Cleveland’s complaint in this regard
is no substitute for stating in some way that he wanted a new attorney.
2. Denial of Separate Trials
Cleveland and Charan, but not Veasley, moved to sever their trial from that
of the codefendants on the basis that their codefendants had made statements
incriminating them. The court asked counsel to itemize in declaration form what
the statements were so it could make an informed ruling. Counsel for Charan, but
not for Cleveland, filed such a declaration itemizing the alleged statements. The
district attorney then filed a response to the motion, discussing the statements item
by item. Counsel for Charan later filed another declaration additionally
identifying Veasley’s statement to Peterson that he, Veasley, had been the actual
gunman as another basis for severance. He argued that a separate trial was
necessary so that this statement could be admitted at Charan’s penalty trial.
At the hearing, counsel for Cleveland joined Charan’s declarations. The
court expressed doubt that counsel could do so, but it ultimately considered the
declarations as to both Cleveland and Charan. The court denied the severance
motions. While reserving specific evidentiary rulings for trial, the court stated its
belief that some of the statements were either admissible or could be adequately
redacted to protect the nondeclarants. It said it would give limiting instructions as
needed. But it also expressed concern about some of the statements and warned
the district attorney that, because she was resisting severance, she would not be
able to use any statements that were inadmissible against a nondeclarant defendant
and could not be adequately redacted. The court also denied severance to the
extent the motion was based on Veasley’s statement that he had been the actual
14
gunman, although it stated that it would consider an alternative solution such as a
bifurcated penalty phase.
Cleveland argues the court erred in denying severance. The Attorney
General responds, first, that he has waived his current arguments because he did
not present a declaration separate from Charan’s. We disagree. Ultimately, the
trial court considered Charan’s declarations as to both Charan and Cleveland.
Cleveland made his arguments to the court, and the court rejected them. The issue
is properly before us on appeal. We also disagree, however, that the court erred.
Veasley, Charan, and Cleveland were all charged with the same crimes arising out
of the same events. “There is a statutory preference for joint trial of jointly
charged defendants. (§ 1098.) ‘A “classic” case for joint trial is presented when
defendants are charged with common crimes involving common events and
victims.’ ” (People v. Pinholster (1992) 1 Cal.4th 865, 932.) “An appellate court
reviews a trial court’s ruling on a motion for separate trials for abuse of
discretion.” (People v. Alvarez (1996) 14 Cal.4th 155, 189.) “Under Penal Code
section 1098, a trial court must order a joint trial as the ‘rule’ and may order
separate trials only as an ‘exception.’ ” (Id. at p. 190.)
Separate trials may be necessary if a codefendant has made an
incriminating confession, association with codefendants may be prejudicial,
evidence on multiple counts may cause confusion, there may be conflicting
defenses, or a codefendant may give exonerating testimony at a separate trial.
(People v. Pinholster, supra, 1 Cal.4th at p. 932.) The charges against each
defendant were identical, so there was no danger of jury confusion, and we see no
prejudicial association. There was no indication that any of the defendants would
have provided exonerating testimony at a separate trial. It was not clear the
defendants would have conflicting defenses. But even if there were conflicting
defenses, that circumstance alone would not mandate severance. (People v.
15
Alvarez, supra, 14 Cal.4th at p. 190; People v. Cummings (1993) 4 Cal.4th 1233,
1286-1287.) Except for the danger of incriminating statements, this was a classic
case for joint trial.
At trial, Cleveland argued that statements by Veasley would prejudice him,
thus requiring severance. The court was very aware of the need to protect
Veasley’s codefendants. It stated its intent to exclude any statements that were
inadmissible against a codefendant and that could not be adequately redacted.
Judging the circumstances as they appeared at the time of the hearing on the
severance motion (People v. Pinholster, supra, 1 Cal.4th at p. 932), the court
reasonably concluded that redaction or, as necessary, exclusion of the statements
would adequately protect Cleveland. Accordingly, the court acted within its
discretion in denying severance.
“After trial, of course, the reviewing court may nevertheless reverse a
conviction where, because of the consolidation, a gross unfairness has occurred
such as to deprive the defendant of a fair trial or due process of law.” (People v.
Turner (1984) 37 Cal.3d 302, 313.) Because the trial court promised to protect the
nondeclarants’ rights when it denied severance, it is especially necessary to review
the actual trial to see if the court succeeded in doing so. We have reviewed the
record. The statements that were admitted against Cleveland were properly
admitted. The statements that were admitted solely against Veasley were
adequately redacted, and the court gave adequate limiting instructions, so as to
protect Cleveland.
Against this conclusion, Cleveland argues that the “trial court’s failure to
sever [his] trial turned out to be prejudicial in several easily predictable ways.”
Some of his claims are irrelevant to the actual trial. He notes, for example, that at
the preliminary hearing, Peterson testified that when Veasley and Cleveland
returned home the evening of the double murder and she observed Veasley
16
wearing a watch, she told Veasley, “You did it.” Cleveland argues that the
accusation was not admissible against him as an adoptive admission. He may be
correct in the abstract, but it does not matter because the district attorney agreed
not to ask Peterson about the accusation, and she did not mention it at trial.
The court admitted some of Veasley’s statements solely against Veasley.
Cleveland challenges some of these rulings. Cleveland claims the court
improperly permitted Jackson to testify that in the summer of 1990, Nelson and
Veasley talked about engaging in drug transactions. However, the court admitted
the evidence solely against Veasley, it gave the limiting instruction Cleveland
requested, and the evidence did not implicate Cleveland at all. On another point,
Peterson testified at the preliminary hearing that some time after the murders,
Veasley told another person that “it was just a spur of the moment thing and he
already had people with him.” Cleveland argues that a statement like this that
does not use his name but refers to the existence of other participants is
prejudicial. (See People v. Fletcher (1996) 13 Cal.4th 451, 468.) Again, this
argument disregards the actual trial testimony. At trial, Peterson testified only that
Veasley said “it was a spur of the moment decision.” She did not mention
Veasley’s additional statement that other people were with him. “[T]he
Confrontation Clause is not violated by the admission of a nontestifying
codefendant’s confession with a proper limiting instruction when, as here, the
confession is redacted to eliminate not only the defendant’s name, but any
reference to his or her existence.” (Richardson v. Marsh (1987) 481 U.S. 200,
211; see also People v. Fletcher, supra, at p. 464.) Another of Veasley’s
statements that Cleveland discusses similarly contained no reference to
Cleveland’s existence. Morris testified that Veasley told her that “he had killed
somebody” in Pomona and “he” had gotten some cocaine and a watch. Admitting
this statement against Veasley did not violate Cleveland’s rights.
17
Cleveland also argues he was prejudiced by the admission, without limiting
instructions, of Peterson’s testimony about the conversation between Veasley and
himself after the first robbery attempt and before the murders, in which Veasley
said that Cleveland “was getting weak” and that “he should have blasted all those
people.” Cleveland responded that he was not getting weak and that if Veasley
“thought of something else he would see . . . he was not weak.” Cleveland argues
that this testimony supplied a motive for his participation in the later murders. We
agree that the testimony supplied a motive, but properly so. Cleveland
participated in the conversation, and it was admissible against him. To the extent
the conversation implied that Cleveland had participated in the previous robbery
attempt, it was properly admitted as an adoptive admission. (People v. Riel (2000)
22 Cal.4th 1153, 1189.) To the extent it offered a motive for the later killings, it
was not hearsay. It showed that Veasley accused Cleveland of being weak, and
that Cleveland wanted to demonstrate his lack of weakness. This was relevant to
show motive. But it was not offered to prove the truth of the matter stated, i.e., the
prosecution did not offer it to show that Cleveland was, in fact, weak. (Evid.
Code, § 1200.)
Cleveland also complains of Morris’s testimony that after the killings,
Veasley called her on the telephone, told her that Cleveland had been shot in the
hand, and asked if she knew someone who could take a bullet out. The court
admitted the evidence as the statement of a coconspirator. (Evid. Code, § 1223.)
We need not decide whether these statements, made after the killings but in an
effort to obtain medical care for Cleveland, were made during and in furtherance
of the conspiracy (see People v. Sanders (1995) 11 Cal.4th 475, 516), or were
otherwise admissible against Cleveland, for we find no prejudice. Immediately
after Morris spoke with Veasley, Cleveland himself told her he had been shot and
asked for assistance. Moreover, ample other evidence established that Cleveland
18
had been shot. Veasley said there had been a shootout, which Cleveland did not
repeat, but this slight difference could not have been prejudicial.
Cleveland also claims that he and the codefendants had conflicting defenses
that required severance. He focuses on cross-examination of Peterson by Charan
and Veasley that elicited, on redirect examination, testimony that Cleveland later
made threats to Peterson. Some defendants will sometimes cross-examine
witnesses differently from another defendant, and may thus elicit testimony on
redirect examination that another defendant would not elicit, but such differences
in trial tactics do not mandate severance. (People v. Alvarez, supra, 14 Cal.4th at
p. 190; People v. Keenan (1988) 46 Cal.3d 478, 500-501.) “If the likelihood of
antagonistic testimony alone required separate trials, they ‘would appear to be
mandatory in almost every case.’ ” (People v. Keenan, supra, at p. 500, quoting
People v. Turner, supra, 37 Cal.3d at p. 313.)
Cleveland also argues that questions the jury asked during deliberations
regarding one of the verdict forms showed that joinder prejudiced him. The
verdicts as to each defendant included a special finding of either true or not true
that that particular defendant was the actual killer. The jury asked a number of
questions regarding this form, including what to do if it could not agree on who
the actual killer was. Ultimately, the jury found not true that either Veasley or
Charan was the actual killer, and it left the finding blank as to Cleveland.
Cleveland claims that this “confusion resulting from multiple counts further
mandated a separate trial.” We disagree. Any confusion was not due to the joint
trial but to the fact the evidence did not establish who the actual killer was.
Indeed, the prosecutor conceded to the jury that “the evidence is not there who the
actual shooter is.” But, as the prosecutor also argued, for purposes of guilt, it did
not “matter which one of them pulled the trigger.” Each of the defendants could
be guilty of the substantive crimes as an aider and abettor even if he was not the
19
actual killer. (See generally People v. McCoy (2001) 25 Cal.4th 1111, 1116-
1117.) Moreover, any defendant who was either the actual killer, or intended to
kill, or “with reckless indifference to human life and as a major participant,” aided
and abetted another in the commission of the robberies, was death eligible.
(§ 190.2, subds. (b), (c), (d).) The jury made this finding as to each of the
defendants, including Cleveland. The joint trial did not create the uncertainty over
who was the actual killer, and that uncertainty did not require separate trials.
Finally, Cleveland argues that the joint trial prevented him from presenting
Peterson’s testimony that Veasley had admitted to her that Veasley was the actual
gunman. The evidence was inadmissible at a joint trial because Veasley asserted
the confidential marital communication privilege. (Evid. Code, § 980.) Neither
Cleveland nor Charan suggested at trial that they wanted to admit this evidence at
the guilt phase. Indeed, Cleveland objected to all hearsay statements by Veasley
at the guilt phase. Peterson’s testimony could not have aided them at the guilt
phase because, as noted, each defendant could be found guilty and death eligible
without being the actual killer. However, as the trial court recognized, this
evidence could be helpful to Cleveland and Charan at the penalty phase—after the
jury had found them guilty—as arguably reducing their personal culpability for the
crimes. For this reason, the court bifurcated the penalty trials, with Veasley’s
going first, followed by that of Cleveland and Charan, at which the jury heard
Peterson’s testimony. We consider below whether this bifurcation was proper, but
if, as we conclude, it was proper, then severance was not required.
In short, we find no abuse of discretion in the trial court’s following the
norm and permitting a joint trial for the three defendants.
20
B. Jury Selection Issues
1. Prosecutor’s Exercise of Peremptory Challenges
The prosecution exercised four peremptory challenges against African-
Americans. After each of these challenges, the defendants jointly made “Wheeler
motions” (People v. Wheeler (1978) 22 Cal.3d 258), arguing that the prosecutor
improperly excused those prospective jurors because of their race. Defendants
contend the court erred in denying the motions. As we explain, we disagree.
a. Factual Background
The first Wheeler motion came after the challenge of Prospective Juror S.
In the written juror questionnaire, S. had stated, “I feel it would be difficult to
sentence anyone to death. Justice may make it necessary for someone to have to
die. I don’t think I could handle sentencing someone to death or participating in
the decision.” She also answered, “I believe I could,” to the question whether she
could set aside her feelings and follow the law. At voir dire, she stated she felt
“that in certain circumstances in cases, the death penalty is warranted.” The
district attorney challenged S. for cause on the basis of her answers to the
questionnaire. The court asked her follow-up questions. S. stated that “if justice
has to be done, that’s justice, but I still would feel bad having to send someone to
death.” She indicated she could return a death verdict, but also said “if I didn’t
have to participate on the jury, I feel that would be better for me.” After the court
denied the challenge for cause, the prosecutor excused S. peremptorily. The
defendants, noting that they are African-American, made a Wheeler objection.
(Later Charan’s attorney clarified that Charan is “East Indian.”) The court denied
the motion, finding that defendants had not “made a prima facie case of excusing
any group based on any racial considerations.”
21
The second motion came after the challenge of Prospective Juror L. At voir
dire, L. had stated, “I’m not in favor of the death penalty, but I do understand that
by law it is acceptable and at time necessary.” She also stated she would follow
the law. After the prosecutor excused L., the defendants argued that “it appears
that a pattern is being established.” The court again found no prima facie case and
had the record “reflect that there’s three jurors in the jury box who are black.”
The third motion came after the challenge of Prospective Juror J. In her
jury questionnaire, J. had stated that her son had been in juvenile detention in the
county jail “for carrying a gun in his car and for stealing.” She also stated that
after a job-related injury she had seen a psychiatrist for stress. Regarding the
death penalty, she stated, “I am with the law. If the law says death penalty, I am
for it. I believe in upholding the law.” At voir dire, she said she could be fair.
The district attorney requested the court to ask follow-up questions of J.,
expressing concern that J. might not “really understand that it’s always a weighing
and evaluating process, that you’re not going to tell them that under certain
circumstances death is the appropriate answer.” The court denied the request for
follow-up questions, and the prosecutor then challenged J. peremptorily. The
defendants renewed their objection. They noted that at that point, the prosecutor
had used three of her seven peremptory challenges on African-Americans. The
prosecutor noted for the record that the two murder victims were also African-
American. The court again found no prima facie case.
The final motion came after the challenge of Prospective Juror F. F. had
stated on her questionnaire that she was a “seamer,” but that she had licenses for
both “LVN” and “psychiatric technician,” and that her husband was “self
employed starting a group home.” The district attorney asked the court to ask
follow-up questions of F., both about her husband “as to what kind of a group
home” and “what does he actually do for a living,” and regarding F. herself. The
22
district attorney explained that F. said she had licenses as a nurse and as a
psychiatric technician but worked as a “seamer.” She was “wondering whether
she’s ever used her psychiatric technician’s license and what that is or her LVN
degree and what that is and how that jives with her being a seamer.” The court
denied the request for follow-up questions.
After the prosecutor challenged F., defendants noted that the challenge was
the fourth against African-Americans out of 10 prosecution challenges to that
point. One of the defense attorneys noted that the court had been stating the
number of African-Americans remaining on the jury panel and argued that that
was not relevant. The court responded that it was just supplementing the record in
this regard. It again found no prima facie case. It also stated that the first Wheeler
motion had no basis whatever and, in the court’s view, had been merely a “tactical
move to . . . chill the prosecutor from utilizing the peremptories.”
Later the court supplemented the record regarding the Wheeler motions. It
stated that in denying the motions, it had “carefully reviewed each and every one
of the questionnaires supplied by the jurors who were excused by the People,” and
it “also took into consideration their demeanor and manner of responding to the
questions in open court.” Based on all of this, the court reiterated that it “did not
find that the defendants have met the standard enunciated in [People v. Wheeler,
supra, 22 Cal.3d 258] that a reasonable inference arises that the challenges were
used on the ground of group bias alone.” It added that it had “carefully reviewed
all the information I have before me regarding the particular jurors who have been
excused by the People and the last thing I will let happen is any type of systematic
exclusion based on race or any other basis.” One of the attorneys pointed out that
witness Peterson “is a white woman.” The court responded that it had been
unaware of that fact, but it did not change its rulings.
23
Eventually, the jury was selected, with the prosecutor using four of a total
of 14 peremptory challenges against African-Americans. After that, the court
again supplemented the record to add that the final jury included “four Afro
Americans, one in the alternate position. One of the six, the regular jury is
composed of one third black or Afro Americans.”4 It also noted that the jury pool
came from Pomona which, the court estimated, was about “seven percent in terms
of black or Afro American.”
b. Analysis
“Exercising peremptory challenges because of group bias rather than for
reasons specific to the challenged prospective juror violates both the California
Constitution and the United States Constitution.” (People v. Johnson (2003) 30
Cal.4th 1302, 1308, cert. granted sub nom. Johnson v. California (2003) ___ U.S.
___ [124 S.Ct. 817]; see also Batson v. Kentucky (1986) 476 U.S. 79.) “A
presumption exists that a prosecutor has exercised his or her peremptory
challenges in a constitutional manner.” (People v. Crittenden (1994) 9 Cal.4th 83,
114.) To overcome this presumption, the defendant must make a timely objection,
then make a prima facie case that the jurors were excused on an improper basis.
(Id. at p. 115.) In People v. Wheeler, supra, 22 Cal.3d at pages 280-281, we said
that to establish a prima facie case, the challenger must show a “strong likelihood”
or a “reasonable inference” of group bias. We recently explained that this “means
that to state a prima facie case, the objector must show that it is more likely than
4
This statement is somewhat ambiguous as to whether the four African-
Americans the court mentioned included the alternate. The statement that the
regular jury was “one third black,” and the fact that there were six alternate jurors,
implies that the 12 members of the regular jury included four African-Americans
and a fifth African-American was an alternate. Whether the regular jury contained
three or four African-Americans does not affect our decision.
24
not the other party’s peremptory challenges, if unexplained, were based on
impermissible group bias.” (People v. Johnson, supra, at p. 1318.)5 Here, each
time the defendants objected, which was each time the prosecutor challenged an
African-American, the court found no prima facie case. “Because these rulings
call upon trial judges’ personal observations, we review them with considerable
deference.” (People v. Johnson, supra, at p. 1325; see also Tolbert v. Page (9th
Cir. 1999) 182 F.3d 677 (in bank).) “[I]f the record suggests grounds on which the
prosecutor might reasonably have challenged the jurors, we affirm that ruling.”
(People v. Johnson, supra, at p. 1325.)
The record in this case suggests nonracial reasons for each of the four
challenges to African-Americans. Valid reasons for the first excusal, of
Prospective Juror S., are readily apparent. S. expressed doubt that she could
“handle sentencing someone to death or participating in the decision.” Other
statements that she could follow the law and could return a death verdict
warranted the court’s denying the prosecutor’s challenge for cause, but her overall
reservations about the death penalty certainly provide a race-neutral explanation
for her challenge. (People v. Davenport (1995) 11 Cal.4th 1171, 1202.) Indeed,
the trial court found the objection to this first peremptory challenge so meritless
that it believed it to be merely a tactical move to chill the prosecution’s later use of
peremptory challenges. Of course, a prosecutor, like any party, may exercise a
peremptory challenge against anyone, including members of cognizable groups.
All that is prohibited is challenging a person because the person is a member of
5
The United States Supreme Court granted a petition for writ of certiorari in
Johnson to decide whether this test satisfies Batson v. Kentucky, supra, 476 U.S.
79. (Johnson v. California, supra, ___ U.S. ___ [124 S.Ct. 817].) The exact test
is not critical to our resolution of this case. The facts here do not give rise to any
reasonable “inference of discriminatory purpose.” (Batson v. Kentucky, supra, at
p. 93.)
25
that group. The challenge to S. gave no cause for the trial court to suspect group
bias.
The record also suggests reasons for the prosecutor’s later challenges to
African-Americans. L. also expressed reservations about the death penalty. J. had
a son who had been in county jail on criminal charges, and she had seen a
psychiatrist for stress following a job-related injury. “[A] prosecutor may
reasonably surmise that a close relative’s adversary contact with the criminal
justice system might make a prospective juror unsympathetic to the prosecution.”
(People v. Farnam (2002) 28 Cal.4th 107, 138.) F. worked as a “seamer”
although she had licenses as a nurse and psychiatric technician, and a husband
who was starting some kind of a group home. As to both J. and F., the prosecutor
requested the court to ask follow-up questions. The trial was held at a time when
the trial court had primary responsibility to conduct voir dire (see People v.
Johnson, supra, 30 Cal.4th at p. 1328), and the court denied the prosecutor’s
request. But we have stated that one consideration in deciding whether a prima
facie case exists is whether the party engaged the challenged jurors “in more than
desultory voir dire, or indeed [asked] them any questions at all.” (People v.
Wheeler, supra, 22 Cal.3d at p. 281.) Here the prosecutor tried to question them
further, which also suggests a nonracial motivation for their excusal.
We add that although Cleveland and Veasley were themselves African-
Americans, so too were their victims. (Cf. People v. Wheeler, supra, 22 Cal.3d at
p. 281 [it is relevant that the defendant is a member of the excluded group “and
especially if in addition his alleged victim is a member of the group to which the
majority of the remaining jurors belong”].) Apparently Peterson, a key
prosecution witness, was white, but the trial court reasonably concluded that that
circumstance did not compel a finding of a prima facie case. Moreover, although
at first the prosecutor exercised peremptory challenges against African-Americans
26
at a somewhat higher rate than the percentage of their presence on the jury panel
(a circumstance the court recognized), the overall statistics are not particularly
suspicious. The prosecutor used three of her first seven challenges against
African-Americans, but only one of the next seven. After the fourth peremptory
challenge, she had used four of 10 against African-Americans, but ultimately only
four of 14. Depending on whether the actual jury had three or four African-
Americans, the final excusal rate was either slightly higher or slightly lower than
the rate of African-Americans who were not challenged. Although not
dispositive—a single race-based challenge is improper—this circumstance is
probative. (People v. Turner (1994) 8 Cal.4th 137, 168.)
Defendants argue that not only were the four prospective jurors at issue
African-Americans, they were also women. We have held that “Black women are
a cognizable group for Wheeler.” (People v. Clair (1992) 2 Cal.4th 629, 652,
citing People v. Motton (1985) 39 Cal.3d 596, 605-606.) But at trial, defendants
never objected that the prosecutor excused these prospective jurors because of
their gender. Accordingly, any such claim is not cognizable on appeal. (People v.
Bolin (1998) 18 Cal.4th 297, 316.) Moreover, the reasons that refute a race-based
challenge would also have refuted a sex-based challenge had one been made.
Cleveland asserts that the trial court misunderstood its obligations and
“improperly focused exclusively on the presence of African-American jurors
remaining in the box and in the venire when it denied the defense Wheeler
motions.” It did not do so. Although it made sure the record reflected these
matters, it also reviewed the jurors’ questionnaires and their responses and
demeanor in court. We see no basis to overturn its rulings.
2. Excusing a Prospective Juror for Cause
Veasley argues that the trial court erroneously excused one prospective
juror for cause because of his views on the death penalty. The defendants did not
27
object to the court’s excusing the juror, but they also refused to stipulate to it.
Contrary to the Attorney General’s argument, this failure to object does not forfeit
the right to raise the issue on appeal, although it does suggest counsel concurred in
the assessment that the juror was excusable. (People v. Memro (1995) 11 Cal.4th
786, 818.)
On the merits, we find no error. The trial court may excuse for cause a
prospective juror whose views on the death penalty would prevent or substantially
impair the performance of the juror’s duties. On appeal, we uphold the trial
court’s ruling if the record fairly supports it, and we accept as binding the trial
court’s determination of the juror’s true state of mind if the juror has made
conflicting or ambiguous statements. (People v. Mayfield (1997) 14 Cal.4th 668,
727.) Here, the court found that the juror had “views that he simply can’t put
aside,” and that “his views both personal and religious will substantially impair his
performance as a juror.”
The juror expressed concerns on the juror questionnaire about his ability to
return the death penalty. At voir dire, he said that he believed there is “never an
appropriate time to take one’s life.” He also said he would try to follow the
court’s instruction, “yet when it comes right down to it, it would be hard to
disengage what I believe with how I make my decision.” He thought he “would
not want to use the death penalty no matter how aggravating the circumstances,”
and he did not “really know” whether he could ever impose the death penalty.
When the court specifically asked whether his views would substantially affect his
ability to follow the law, he responded, “I think they might. I think there’s an
issue of the law and then there’s the thing against principles that may rise above
that at the time, and that’s where that might come into play.” These statements
support the court’s ruling.
28
3. Other Jury Selection Issues
One of the prospective jurors was a retired law enforcement officer with
substantial experience in homicide cases who had testified in court over a
thousand times. At one point in the voir dire, he expressed the opinion that the
death penalty was “too seldom [used] due to legal obstructions.” Later the defense
challenged the juror for cause. The court initially denied the motion but agreed to
ask follow-up questions regarding the juror’s ability to be fair. The court then
asked the juror if he could be fair to both sides. The juror responded, “To be
perfectly honest, your honor, I think it would be unfair to the defense based on my
knowledge of how these trials are conducted.” After a few more questions, the
court conducted the rest of the questioning of this juror outside the hearing of the
rest of the prospective jurors. Eventually, the court excused the juror for cause
pursuant to stipulation.
Cleveland argues that the prospective juror’s statements that the death
penalty was too seldom used due to legal obstruction, and that he would be unfair
to the defense based on his knowledge of how these trials were conducted, tainted
the entire venire. The issue is not cognizable on appeal because defendants did
not ask the court to dismiss the venire or even admonish the jury. (People v.
Medina (1995) 11 Cal.4th 694, 743-744.) Defendants cannot proceed with the
jury selection before this same panel without objection, gamble on an acquittal,
then, after they are convicted, claim for the first time the panel was tainted. (See
People v. Saunders (1993) 5 Cal.4th 580, 589-590; People v. Rogers (1978) 21
Cal.3d 542, 547-548.)
We also find no error. Many prospective jurors express many different
general opinions regarding the judicial system. These expressions of opinion do
not taint the jury. The comments here did not give the other prospective jurors
information specific to the case, but just exposed them to one person’s opinion
29
about the judicial system. (Cf. Mach v. Stewart (9th Cir. 1997) 137 F.3d 630.)
The circumstance that this particular opinion came from a retired peace officer
with experience in homicide cases and trial proceedings does not change matters.
It would no more prejudice a jury panel to hear that a retired (or active) peace
officer believes the system is tilted in favor of defendants than to hear a criminal
defense attorney express the opposite view. To the extent defendants argue the
court should have held voir dire out of the hearing of the rest of the panel, the
issue is not cognizable because they did not so request at trial. Moreover, the
court had discretion to proceed as it did. (Code Civ. Proc., § 223; People v.
Waidla (2000) 22 Cal.4th 690, 713-714.) The court did conduct the remainder of
the questioning of this prospective juror out of the hearing of the panel. Veasley
also suggests the court should have “reinforced the concept of the presumption of
innocence.” As he recognizes, defendants did not so request. Moreover, earlier in
the voir dire of this same prospective juror, the court did just this. Defendants also
assert that the prospective juror’s statements “implicated” their right of
confrontation. (U.S. Const., 6th Amend.) However, the prospective juror was not
a witness against them. They also assert the prospective juror’s comment about
the death penalty’s being too seldom used improperly reduced the jurors’ sense of
responsibility. (See Caldwell v. Mississippi (1985) 472 U.S. 320.) It did not do
so. Again, the statement was just one person’s opinion, not a judicial
pronouncement or even a comment by the prosecutor. (Cf. People v. Medina,
supra, 11 Cal.4th at pp. 743-744.)
Veasley challenges other aspects of the jury selection. At the time this jury
was selected, the trial court bore primary responsibility to conduct voir dire.
(Code Civ. Proc., former § 223; see People v. Johnson, supra, 30 Cal.4th at p.
1328; People v. Box (2000) 23 Cal.4th 1153, 1178.) Veasley faults the way in
which it carried out this responsibility. He claims the court improperly
30
“examin[ed] the venire members for the purpose of rehabilitation rather than to
disclose bias and prejudice.” At trial, defendants objected on essentially this basis
and asked the court “to confront the [prospective juror] with what he or she has
said [in the jury questionnaire], ask them to explain that.” We find no error. Code
of Civil Procedure former section 223 was adapted from federal practice. (People
v. Taylor (1992) 5 Cal.App.4th 1299, 1309.) Accordingly, decisions of the United
States Supreme Court are especially persuasive in this area. They have made clear
that “the conduct of voir dire is an art, not a science,” so “ ‘[t]here is no single way
to voir dire a juror.’ ” (People v. Taylor, supra, at p. 1313, quoting Mu'Min v.
Virginia (1991) 500 U.S. 415, 451 (dis. opn. of Kennedy, J.).)
“The Constitution . . . does not dictate a catechism for voir dire, but only
that the defendant be afforded an impartial jury.” (Morgan v. Illinois (1992) 504
U.S. 719, 729, quoted in People v. Box, supra, 23 Cal.4th at p. 1179.) The high
court has “stressed the wide discretion granted to the trial court in conducting voir
dire in the area of pretrial publicity and in other areas of inquiry that might tend to
show juror bias.” (Mu’Min v. Virginia, supra, 500 U.S. at p. 427 [trial court is not
required to ask content-based questions regarding pretrial publicity]; see also
People v. Taylor, supra, 5 Cal.App.4th at p. 1313.) Accordingly, “the trial court
retains great latitude in deciding what questions should be asked on voir dire,” and
“ ‘content’ questions,” even ones that might be helpful, are not constitutionally
required. (Mu’Min v. Virginia, supra, at pp. 424, 425.) To be an abuse of
discretion, the trial court’s failure to ask questions “must render the defendant’s
trial fundamentally unfair.” (Id. at pp. 425-426.) “Such discretion is abused ‘if
the questioning is not reasonably sufficient to test the jury for bias or partiality.’ ”
(People v. Box, supra, at p. 1179.)
We have examined the voir dire, including the court’s questioning of five
prospective jurors that Veasley specifically challenges, and find no abuse of
31
discretion. The court did sometimes ask follow-up questions at defense request,
such as the questions that elicited the response from the retired peace officer
discussed above. As to the five specific prospective jurors, either the defendants
requested no follow-up questions or the court did ask such questions. Four of the
five were excused, either peremptorily or for cause. The court asked the
remaining juror to state her “feelings regarding the death penalty in terms of
whether it’s used too often or not often enough.” This question was certainly
designed to disclose bias rather than to rehabilitate. The jury selection of this case
was far from fundamentally unfair.
Some of the jurors expressed the view that the death penalty was not
actually carried out very often. In response to one such comment, the court noted
that some of the jurors had distinguished between the jury finding the death
penalty is appropriate and the death penalty actually being applied. It explained
that the jury must assume that if it comes back with a death verdict, that sentence
would be imposed. “In other words,” the court explained, “a juror can’t simply
say to themselves, well we can come back with the death penalty because it will
never happen. You can’t do that.” Outside the presence of the jury, defendants
expressed concern about the general feeling of some prospective jurors that the
death penalty is rarely carried out. One of the defense attorneys said that just
because the death penalty “has not been imposed in the past,” he did not want the
jurors “going into this proceeding thinking that it isn’t going to be used.” The
court agreed to further admonish the jury. It asked what the defense proposed
“because this is a touchy area and I want to make sure that we have an agreement
as to what should be said to the jury.” Counsel wanted the court to state that it
“strongly believe[s] that the imposition of death sentences will commence.” As a
result of this discussion, the court explained to the jury panel that anything the
court had said “should not in any way be construed that I believe the death penalty
32
will not be imposed. . . . The expectation, the assumption that you need to operate
from, and it’s the only reasonable assumption you can make, is that if the jury at
the penalty phase, if we get to the penalty phase, determines that the appropriate
sentence should be the death penalty, the assumption is that it will be imposed.”
The jurors indicated they understood.
Veasley claims this admonition inadequately advised the jury panel “that
any death judgment returned in the penalty phase would be carried out,” and hence
it improperly led the jury to “believe[] that the ultimate responsibility for
determining the suitability of the defendant for execution rests elsewhere.” (See
Caldwell v. Mississippi, supra, 472 U.S. 320; People v. Fauber (1992) 2 Cal.4th
792, 847.) He distinguishes between the term “imposed” and the term “carried
out” and asserts that when the court told the jury to assume the death penalty
would be “imposed,” the jury would understand the court to refer only to death
being the sentence, not to its being carried out. However, when the court asked
defense counsel exactly what instruction they wanted, even they asked the court to
tell the jury to assume the death penalty would be imposed. Defendants did not
ask for further clarification and hence cannot complain on appeal of the court’s
doing what they requested. (People v. Medina, supra, 11 Cal.4th at pp. 743-744.)
In any event, the instruction was fully adequate. The jury would clearly
understand that the court was telling it to assume the death penalty would be
imposed in the sense of actually being carried out, not just imposed in the sense of
it being the sentence. This was the whole point of the explanation. The jury panel
never expressed concern that if it returned a verdict of death, the court would
impose some other sentence. Its concern was solely directed to whether a death
sentence would actually be carried out. In context, no reasonable juror would
believe the court was just telling it to assume the death sentence would be imposed
but not necessarily carried out.
33
Finally, Veasley claims the court improperly instructed the jury panel
regarding the burden of proof. The court told the jury that the burden of proof in a
criminal case is beyond a reasonable doubt and not the preponderance-of-the-
evidence standard of a civil trial. Later, outside the jury’s presence, defense
counsel expressed concern that the court did not also mention the concept of
lingering doubt. The court invited them to submit an instruction on lingering
doubt but they did not do so. Veasley now claims that the court should also have
told the jury about lingering doubt. We disagree. The prosecution burden of
proving guilt in a death penalty trial is the same as in any criminal trial—beyond a
reasonable doubt. (People v. Cooper (1991) 53 Cal.3d 771, 846.) Although a jury
may consider lingering doubt as to guilt in its penalty decision, the court need not
so instruct. (People v. Earp (1999) 20 Cal.4th 826, 903-904; People v. Sanchez
(1995) 12 Cal.4th 1, 77-78.) Contrary to Veasley’s implication, the court here
never suggested that the jury should disregard lingering doubt in its penalty
determination. It merely made sure the jury understood that the reasonable doubt
standard applied rather than preponderance of the evidence.
C. Guilt Phase Issues
1. Use of Leg Braces
At the outset of trial, the court expressed concern about courtroom security
and said it would bring the matter to the bailiff’s attention. One of the defense
attorneys said “that’s not to suggest shackling.” The court stated that it had used a
leg brace underneath the pants in the past. It explained that the brace was not
visible to the jury, offered security to the bailiff, and did not appear to be
uncomfortable. It said it had “had people sit in here with a leg brace, it’s unlocked
at the knee so that they can bend but they cannot run.” The defense attorney said,
“As long as it’s not a situation where one side would want them to stand or walk
or move around.” The court responded, “If they take the stand,” they could deal
34
with the leg brace then. The defense attorney expressed concern that someone
might ask a defendant to stand up or walk around, but otherwise none of the
defendants objected to use of a leg brace. The court said it would “let the bailiff
use his good judgment on that, they know the information on the people.”
A short time later, the court stated, and defense counsel agreed, that it
would not be “a good idea to bring the defendants out in chains in front of the
jury.” It proposed to “bring this to the attention of the bailiff. There’s leg braces
that can be used if the sheriff believes that this is an issue of security, the leg brace
is under one[’s] pants, it’s not something that the jury can see and the defendants
will be brought in each day before the jury is placed in the jury box so that they
are not going to see the leg brace.”
Later in the trial, the court explained for the record the situation regarding
restraints: “During the course of the trial the leg braces have been used for each of
the defendants and the leg braces are . . . applied under the pants so that they are
not obvious to the jury. During the course of the trial the defendants were brought
out and placed in the counsel table before the jury was brought out and the jury
has exited the courtroom prior to the defendants’ leaving the courtroom.” The
court stated the leg braces were employed because of “the number of the
defendants in the courtroom regarding this type of a case, the nature of the
allegations that have been charged by the [P]eople and also the physical size of the
defendants involved.” The court added that, based on its observations, it believed
the jury had not been able to determine that the defendants wore leg braces. It
invited the parties to be heard on the point, but no one added anything.
Defendants argue the court erred in ordering the leg braces and improperly
abdicated its responsibility to the bailiff. However, they did not object at trial to
what actually occurred. One of the defense attorneys said the security should not
include “shackling,” and the defense attorneys wanted the court to ensure that the
35
jury would not see the brace. But none objected to using leg braces under the
pants. Accordingly, the issue is not cognizable on appeal. (People v. Tuilaepa
(1992) 4 Cal.4th 569, 583.) Moreover, we see no prejudice. The court was
understandably concerned about courtroom security given that three defendants
were charged in a capital trial with a particularly violent crime. But we need not
decide whether the relatively minimal restraints imposed here were justified, for
any error was harmless. “ ‘We have consistently found any unjustified or
unadmonished shackling harmless where there was no evidence it was seen by the
jury. [Citations.]’ [Citation.] Even a jury’s brief observations of physical
restraints generally have been found nonprejudicial. [Citations.]” (People v.
Slaughter (2002) 27 Cal.4th 1187, 1213.) Defendants speculate the jury might
have observed the braces on a few occasions, but the record does not support the
claim. The court specifically found that the jury had not seen the braces, and
defendants did not disagree when given the opportunity to address the point.
Moreover, at most, any jury observation would have been brief. The court also
said it would consider what to do if a defendant chose to testify, but none did.
Under the circumstances, we find no prejudice. (Id. at p. 1214.)
2. Defendants’ Absence From Proceedings
Defendants contend they were improperly excluded from certain court
proceedings. “A criminal defendant’s right to be personally present at trial is
guaranteed by the Sixth and Fourteenth Amendments of the federal Constitution,
as well as by article I, section 15 of the California Constitution and by sections
977 and 1043 of the California Penal Code. [Citations.] A defendant, however,
‘does not have a right to be present at every hearing held in the course of a trial.’
[Citation.] A defendant’s presence is required if it ‘bears a reasonable and
substantial relation to his full opportunity to defend against the charges.’
[Citation.] The defendant must show that any violation of this right resulted in
36
prejudice or violated the defendant’s right to a fair and impartial trial. [Citation.]”
(People v. Hines (1997) 15 Cal.4th 997, 1038-1039; see also People v. Waidla,
supra, 22 Cal.4th at pp. 741-742.) Under this standard, we find no violation of
defendants’ right to be present.
We have reviewed each occasion defendants cite in which they were not
present. Each time, defense counsel were present who were fully able to represent
their clients’ interests. On many of these occasions, defense counsel expressly
waived their clients’ presence. The Attorney General does not argue that this
circumstance makes the issue not cognizable. It may be that if personal presence
truly bears a substantial relation to a defendant’s opportunity to defend against the
charges, counsel’s waiver would not forfeit the claim. However, the fact that
counsel did not think defendants’ presence was necessary strongly indicates that
their presence did not, in fact, bear such a substantial relation. Some of these
times, the defendants had simply not yet been brought into court, and the court and
attorneys considered routine matters while awaiting their arrival. Sometimes there
were discussions among the attorneys and court in chambers. None of the
occasions involved examining witnesses or arguing to the jury.
Veasley stresses in particular two occasions. First, when the question of
shackling the defendants first arose, both defendants were absent, although the
court’s ultimate ruling was made in their presence. Defense counsel were fully
able to represent defendants’ position at the first hearing and defendants were
personally present at the ruling. Moreover, defendants’ absence during the
original discussion did not somehow make the use of leg braces prejudicial.
Second, defendants were absent for certain proceedings during the jury’s guilt
deliberations on November 7, 1991. The events of this date are the subject of a
separate contention by defendants, which we discuss below. It suffices to say at
this point that defendants’ personal presence would not have significantly affected
37
the events and their absence did not prejudice them. Twice on that date, the court
addressed the jury briefly in defendants’ absence. Counsel expressly waived their
clients’ presence both times, bolstering the conclusion that their presence was not
necessary.
Cleveland cites an occasion on which his attorney stipulated that certain
medical records could be admitted into evidence without having to call a custodian
of records. His attorney waived Cleveland’s presence for this stipulation and
stated he had the “express authority” to do so. Again, the fact that Cleveland’s
attorney believed his presence not necessary supports the conclusion that his
presence was, in fact, not necessary. Counsel has authority to stipulate to
evidentiary matters, including the admission of medical records. (See People v.
Carpenter (1997) 15 Cal.4th 312, 376.) Cleveland’s presence was not necessary
for this purpose. Cleveland also cites a brief occasion outside the jury’s presence
when the court expressed concern that the “defendants appear to be rolling
prisoners in custody” and suggested the sheriff “take additional precautions
regarding mixing the defendants with other prisoners.” This colloquy resulted in
no rulings or other actions relevant to the trial. Cleveland suggests the court’s
concern might have affected its denial of the automatic motion to modify the death
judgment. However, at the hearing on that motion, the court understood and
performed its duty to base its decision solely on the evidence presented at trial.
Moreover, the reference to “rolling prisoners” was to the defendants in general,
not Cleveland specifically. The fact the court granted the modification motion as
to Charan demonstrates that this concern did not affect its decisions.
Cleveland also cites events on November 22, 1991, during the jury’s
penalty deliberations as to Cleveland and Charan, in which the court received, and
the attorneys considered, a note from the jury “regarding matters that they believe
should be considered as intimidation or possible intimidation.” After discussing
38
the question with the attorneys, the court told the jury “that the matters addressed
in the notes are simply coincidental.” The jury assured the court that the matter
would not affect its deliberations. The attorneys waived defendants’ presence for
this purpose, and the court told the jury that normally the defendants would be
present, but the “lawyers and I thought that it would probably be best to handle
this in a little bit more informal context.” Again, Cleveland’s presence on this
occasion was not necessary to defend fully against the charges.
In short, defendants were present whenever their presence bore any
substantial relation to their ability to defend fully against the charges.
3. Confidential Marital Communication Privilege
At the time of the crimes, Peterson and Veasley were married.
Accordingly, Veasley asserted the confidential marital communication privilege of
Evidence Code section 980, which provides, subject to exceptions not relevant
here, that one spouse may prevent another spouse from disclosing a
communication that “was made in confidence between him and the other spouse
while they were husband and wife.” At trial, the court and parties were aware of
this privilege, and the district attorney did not offer into evidence certain
communications between Veasley and Peterson that came within it. The most
important such communication, for example, was Veasley’s statement to Peterson
that he personally shot the victims. Because this statement was inadmissible
against Veasley, the court bifurcated the penalty trial to permit Cleveland and
Charan to present it in mitigation after the jury had reached its verdict as to
Veasley. Nevertheless, Veasley contends the privilege was violated in three
respects.
First, Veasley objected to Peterson’s testimony that when he returned to her
home the evening of the murders she observed him wearing a watch and
possessing cocaine. After consulting a prominent treatise, the court admitted the
39
testimony. Veasley contends that Peterson’s observations were, in effect,
confidential communications between him and her. We disagree. As explained in
the book the court consulted, “the privilege applies only to oral or written verbal
expression from one spouse to the other, and acts of the spouses committed in
each other’s presence do not constitute communications between them, within the
meaning of the privilege for confidential marital communications.” (2 Jefferson,
Cal. Evidence Benchbook (Cont.Ed.Bar 2d ed. 1982) Privilege for Confidential
Marital Communications, § 36.2, p. 1348; see also 2 Jefferson, Cal. Evidence
Benchbook (Cont.Ed.Bar 3d ed. Mar. 2002 Supp.) § 36.21, p. 811; People v.
Bradford (1969) 70 Cal.2d 333, 342, fn. 2 [acts of placing cans in garage and
giving wife the victim’s jewelry “are not ‘communications’ within the meaning of
the privilege”]; People v. Dorsey (1975) 46 Cal.App.3d 706, 717 [“[T]he privilege
encompasses only communications between husband and wife during marriage. It
does not extend to physical facts which are observed, which do not constitute
‘communications’ ”].) Veasley claims he showed or displayed the cocaine to
Peterson in confidence, but she merely testified that she observed it in his
possession. Substantial evidence supports the court’s finding that the observations
were not confidential marital communications. (People v. Mickey (1991) 54
Cal.3d 612, 654.)
Second, Peterson testified without objection on direct examination that a
couple of weeks before the murders, Veasley told her that he was at the All Star
Inn to meet Nelson. Later, in redirect examination, Veasley objected to similar
testimony. After the prosecutor noted that it was “already on the record,” the court
overruled the objection. Veasley now claims this testimony violated the
confidential marital communication privilege. The issue is not cognizable on
appeal because he did not object when she first testified about the statement.
(People v. Morris (1991) 53 Cal.3d 152, 187-188.) Veasley claims counsel was
40
ineffective for not objecting. However, the evidence appears to have been
admissible. “To make a communication ‘in confidence,’ one must intend
nondisclosure . . . .” (People v. Mickey, supra, 54 Cal.3d at p. 654.) “While a
communication between a husband and wife is presumed to be confidential, if the
facts show that the communication was not intended to be kept in confidence, the
communication is not privileged.” (People v. Gomez (1982) 134 Cal.App.3d 874,
879; see Evid. Code, § 917, subd. (a).) Here, the communication was innocuous
when made, and no reason appears for Veasley to have wanted it kept in
confidence. Later, he told others in Peterson’s presence that he had previously
dealt with Nelson at that motel, and he told Detective Moore that he had been at
the All Star Inn. The facts show Veasley did not intend to keep this
communication confidential.
Third, during redirect examination, the prosecutor asked Peterson why she
waited until December 1990 before talking with law enforcement officials. She
responded, “I didn’t believe Mr. Veasley that the murder had been committed.”
Veasley objected to the statement. The court sustained the objection and
instructed the jury to disregard the response. Later, Veasley moved for a mistrial
because of the response. The court denied the motion, noting that there was
“ample evidence here for the jury to infer that her belief is not based on any
statement by Mr. Veasley, but her belief . . . came about through certain
observations and through other statements that were received into evidence.”
Veasley contends Peterson’s statement violated the confidential marital
communication privilege. However, the court sustained his objection, so the
statement was never admitted. To the extent Veasley claims the court should have
granted a mistrial, we disagree. The court acted within its discretion in denying a
mistrial. (People v. Delgado (1993) 5 Cal.4th 312, 328.) Peterson did not specify
what she had heard from Veasley. The jury properly heard evidence that before
41
the murders, Veasley and the others talked about the crime in front of Peterson and
implied that they intended to kill the victim. Later Peterson heard Veasley make
comments to another person indicating his involvement in the crime. The court
reasonably concluded it was unlikely the jury would assume Peterson’s statement
related to evidence it had never heard rather than the evidence it did hear.
4. Denial of Mistrial Motion
The defense attorneys cross-examined Peterson about the fact that Veasley
did not live at her home even though they were married, and that she knew
Veasley was involved with other women. Specifically, Veasley’s attorney elicited
that Peterson had earlier stated that “because of his business he had to spend nights
elsewhere.” A short time later, he asked, “And your statement is that he was
residing [somewhere else] because of his business?” She responded, “Yes, that’s
what he told me.” Counsel then asked, “Well isn’t it true that you knew that Mr.
Veasley was . . . having a relationship, a boyfriend/girlfriend relationship with [a
certain person]?” She responded that she did know that. Counsel asked further
questions about her knowledge about Veasley’s “womanizing” and whether it
upset her. He asked whether it presented “a problem that [Veasley] was not
spending nights with you and the family?” She responded that it was not a
problem. Counsel then elicited again that she knew about the other women and
again asked whether this knowledge caused her problems. The obvious purpose of
this cross-examination was to challenge Peterson’s credibility by suggesting that
Veasley lived elsewhere because of his “womanizing” rather than his “business,”
and that she was jealous and hence biased against Veasley.
On redirect examination, the district attorney directed Peterson’s attention
to this line of questioning and elicited that Peterson had several times said Veasley
was living elsewhere “because of his business.” She then asked what that business
was. Peterson responded, “Selling drugs.” The district attorney asked why this
42
business caused Veasley to live elsewhere. Veasley’s attorney objected on
grounds of “speculation” and “lack of foundation.” The court overruled the
objection, and Peterson responded, “In late August, I caught our then six, seven-
month-old baby chewing on a bag of cocaine, so when Mr. Veasley came home,
he was told he had to leave.” Later, Veasley moved for a mistrial due to this
testimony, arguing that it was inflammatory and irrelevant. The district attorney
argued that the questions were in response to the cross-examination about why
Veasley was living elsewhere and whether Peterson was jealous of his girlfriends.
The court denied the mistrial motion.
Veasley argues the court erred in denying a mistrial. The Attorney General
contends the claim is not cognizable because Veasley objected to the redirect
examination solely on grounds of speculation and lack of foundation rather than
relevance or undue prejudice. However, Veasley presents the issue as error in
denying the mistrial motion, a motion he did make. On the merits, the court acted
within its discretion in denying the motion (People v. Delgado, supra, 5 Cal.4th at
p. 328), because the questioning was proper redirect examination. “The extent of
the redirect examination of a witness is largely within the discretion of the trial
court.” (People v. Kynette (1940) 15 Cal.2d 731, 752.) On cross-examination, the
defense created the impression that Veasley was living apart from Peterson
because of his “womanizing” and suggested that this made her a biased witness.
Without context, her protestations that he was living separately only because of
some unspecified “business” might appear disingenuous, which would cast doubt
on her credibility. It was thus appropriate for the district attorney to supply the
context and ask what the business was and why it caused Veasley to live
separately. Redirect examination’s “principal purposes are to explain or rebut
adverse testimony or inferences developed on cross-examination, and to
rehabilitate a witness whose credibility has been impeached.” (3 Witkin, Cal.
43
Evidence (4th ed. 2000) Presentation at Trial, § 256, p. 328.) This redirect
examination properly fulfilled these purposes.
5. Alleged Ineffective Assistance of Counsel
Because Peterson was a very important witness, all three defense attorneys,
including Veasley’s attorney, cross-examined her at length and on many subjects.
Veasley claims his attorney’s cross-examination was “inept” and deprived him of
effective assistance of counsel because it elicited damaging redirect examination.
We disagree.
On cross-examination, Veasley’s attorney elicited that Peterson had called
the police on three occasions to have him arrested, but the calls resulted in only
one actual arrest for abusing her. One of the times, she called the police about
crimes Veasley and other members of a community college basketball team had
allegedly committed. When the coach of the team confronted her about it, she
denied being the one who made the call. On redirect examination, the district
attorney questioned Peterson about these events. Over objection, she testified that
on the one occasion resulting in Veasley’s arrest, he beat her up in the kitchen and
“tried to drown me in the kitchen sink.” She also explained she was not the one
who actually called the police.
To demonstrate ineffective assistance of counsel, defendant must show both
that counsel’s representation fell below an objective standard of reasonableness
under prevailing professional norms, and that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result would have been different.
(People v. Williams (1997) 16 Cal.4th 153, 214-215.) Although in extreme
circumstances cross-examination may be deemed incompetent (In re Jones (1996)
13 Cal.4th 552, 570-571 [eliciting devastating evidence against defendant on
cross-examination without adequate investigation and for no possible tactical
reason]), normally the decision to what extent and how to cross-examine witnesses
44
comes within the wide range of tactical decisions competent counsel must make.
(People v. Williams, supra, at pp. 216-217.) “Even where defense counsel may
have ‘ “elicit[ed] evidence more damaging to [defendant] than the prosecutor was
able to accomplish on direct” ’ [citation], we have been ‘reluctant to second-guess
counsel’ [citation] where a tactical choice of questions led to the damaging
testimony.” (Id. at p. 217.) Here, a tactical choice readily appears. The cross-
examination tended to show that Peterson repeatedly called the police about
Veasley, but the calls resulted in only one arrest. This both suggested that
Peterson was in the habit of falsely accusing him of criminal conduct and cast
doubt on whether he would actually talk in front of her about other crimes he had
committed or would commit.
Rigorous cross-examination risks eliciting damaging redirect examination.
Whether to run that risk is a tactical choice counsel must be permitted to make.
Moreover, here the damaging testimony came only from the same witness the
defense necessarily was attempting to discredit. The defense necessarily tried to
portray Peterson as falsely implicating Veasley, as well as the other defendants, in
these crimes. No reason appears for counsel to fear that her brief testimony
regarding the incident of domestic violence would be more credible than her
testimony regarding the charged crimes; thus, it was highly unlikely the jury
would disbelieve Peterson regarding the charged crimes, but still convict Veasley
of murder because it believed her testimony regarding the domestic violence. (See
People v. Riel, supra, 22 Cal.4th at p. 1186.)6
6
To the extent Veasley claims counsel’s actions prejudiced him at the
penalty phase, we note that evidence of crimes of violence against Peterson would
have been admissible against him at that phase as evidence of criminal activity
involving force or violence. (§ 190.3, factor (b).)
45
6. Alleged Prosecutorial Misconduct
Cleveland claims the prosecutor committed various acts of misconduct.
However, he objected to none at trial. Contrary to Cleveland’s argument, nothing
in the record suggests an objection would have been futile. Because an objection
could easily have cured any harm, the current claims are not cognizable on appeal.
(People v. Riel, supra, 22 Cal.4th at pp. 1196-1197.)
Moreover, the record discloses no misconduct. Cleveland claims the
prosecutor improperly suggested that he was the actual shooter when she knew—
because of Veasley’s admission to Peterson, which was inadmissible at the guilt
phase—that Veasley was the shooter. Veasley’s statement certainly suggested he
was the actual shooter, but it was not conclusive proof. As the prosecutor noted
outside the jury’s presence, although Veasley told Peterson he shot each victim
twice in the head, the evidence showed that each victim was shot more than two
times. But more importantly, the prosecutor never suggested that Cleveland was
the shooter. Rather she argued and presented evidence—including, as Cleveland
notes, evidence of motive and consciousness of guilt—that he was guilty of the
murders, which is quite a different matter. Each of the defendants could be guilty
of these murders whether or not he was the actual shooter. (People v. McCoy,
supra, 25 Cal.4th at pp. 1116-1117.) Indeed, the prosecutor argued to the jury that
“it would be pretty difficult to say who the actual shooter is. The evidence is not
there who the actual shooter is. You can make some conjectures, you have your
own theories based on what the evidence is but there is no actual complete and
uncontroverted evidence as to who the actual shooter is.” The prosecutor also
correctly told the jury that, as to guilt, who the actual shooter was “doesn’t matter.
It doesn’t matter which one of them pulled the trigger.” The prosecutor properly
argued that Cleveland was guilty of the murders.
46
Cleveland also claims the prosecutor improperly “coerced” Valles, the
victim of the robbery earlier on the day of murders, into testifying. The prosecutor
did, in fact, use the subpoena power and court process to coerce Valles into
testifying, but doing so was proper. Parties in judicial proceedings routinely
coerce witnesses into testifying through the subpoena power and court process.
Valles was a reluctant witness. Although he apparently cooperated at the
preliminary hearing, at trial he initially failed to appear despite being under
subpoena. At one point when he was in the courtroom, he attempted to leave and
the bailiff had to stop him. The district attorney stated for the record that Valles
had moved out of the state. He had “indicated his reluctance to be here at all.
He’s been cajoled into coming to court. He has always told me he did not want to
testify.” Accordingly, the court remanded him into custody to ensure he would be
available to testify. Eventually, Valles did testify, as any witness may be required
to do.
Cleveland also claims the prosecutor improperly coerced Valles into
testifying favorably to the prosecution. Valles did not identify his assailants. He
also initially denied having the nickname Chuey, although he eventually admitted
that he was called that at one time, after the prosecutor confronted him with his
previous inconsistent statements. Contrary to Cleveland’s assertions, the record
does not suggest in the slightest that the prosecutor coerced Valles into testifying
in any particular way, or that she somehow implied that Valles’s failure to identify
anyone was in fact an identification. Rather, she forced him to testify, as was her
right through exercise of the subpoena power, and examined him according to the
rules of evidence. Although Valles did not identify anyone in court, his testimony,
including admitting to the nickname Chuey, was highly relevant as it corroborated
Peterson’s testimony.
47
Cleveland also claims the prosecutor misstated Valles’s testimony in her
argument to the jury. She did not do so. She noted, correctly, that “the little bit
that he said” corroborated other evidence about the incident. Later, she argued,
“when he’s shown a photo line up . . . he says tentatively that the one looks like
the guy who grabbed him or the guy that was behind him and the person he
pointed out was defendant Cleveland.” This argument was also reasonably based
on the evidence. Although Valles identified no one at trial, he testified
(reluctantly) that he had selected a photograph, apparently of Cleveland, from a
lineup as looking like one of the assailants, although he could not say for sure.
7. Jury Instructions
Cleveland argues the court committed several errors in instructing the jury.
The court gave certain preinstructions to the jury at the outset of trial,
including one on unjoined perpetrators, as follows: “The next instruction has to do
with unjoined perpetrators of the same crime, and I expect the evidence will
establish there’s a person who may be mentioned here who’s not here in court.
And it reads as follows: ‘There has been evidence in this case indicating that a
person other than the defendant was or may have been involved in the crime for
which the defendant’—in this case, defendants ‘—are on trial. Do not discuss or
give any consideration as to why the other person is not being prosecuted in this
trial or whether he or she has or has been or will be prosecuted.’ ” (See CALJIC
No. 2.11.5.) Later, after the preinstruction had ended and testimony had begun,
defendants objected to the word “establish” and argued the court should instead
have used the word “suggest.” They moved for a mistrial, which the court denied.
Cleveland argues the court improperly expressed an opinion on the
evidence. (See generally People v. Rodriguez (1986) 42 Cal.3d 730, 766-767.)
The Attorney General argues the issue is not cognizable because defendants did
not object in a timely fashion. We disagree. “Even without an objection, a
48
defendant may challenge on appeal an instruction that affects ‘the substantial
rights of the defendant . . . .’ (§ 1259.)” (People v. Hillhouse (2002) 27 Cal.4th
469, 505-506.) Cleveland argues that the instruction was a “judicial endorsement
of the prosecution theory and of the defendant’s guilt.” If he were correct (as we
explain, he is not), the instruction would have affected his substantial rights, thus
not requiring an objection. (Id. at p. 503.)
On the merits, we see no error. The court did not endorse any theory of the
case and did not indicate a belief in defendants’ guilt. It merely told the jury it
expected the evidence to establish that someone else may be mentioned who was
not in court, and that it should not draw meaning from the fact that person was not
in court. In fact, Peterson did mention a brother of Cleveland who might have
been involved in the crimes but was not in court. The court did not comment on
the credibility of any particular witness. Indeed, as part of the same preinstruction,
the court told the jury: “I have not intended by anything I have said or done . . . to
suggest what you should find the facts to be, or that I believe or disbelieve any
witness. If anything I have done or said has seemed to so indicate you will
disregard it and form your own conclusion.” The court gave similar instructions at
the end of the trial. It is not reasonably likely the jury understood the court to be
endorsing any particular theory of the case or the defendants’ guilt. (People v.
Kelly (1992) 1 Cal.4th 495, 525.)
The court gave the standard instruction regarding motive.7 Cleveland
argues the instruction was erroneous in two respects. The Attorney General
7
“Motive is not an element of the crime charged and need not be shown.
However, you may consider motive or lack of motive as a circumstance in this
case. Presence of motive may tend to establish guilt; absence of motive may tend
to establish innocence. You will therefore give its presence or absence, as the case
may be, the weight to which you find it to be entitled.” (See CALJIC No. 2.51.)
49
counters that, because defendants not only failed to object to the instruction but
actually requested it, the issue is not cognizable. As we explain, we agree in part.
Cleveland argues the motive instruction “shifted the burden of proof to
imply that [he] had to prove innocence.” This issue is cognizable despite the
failure to object because if Cleveland were correct, the instruction would have
affected his substantial rights. But the instruction did not shift the burden of proof.
It merely told the jury it may consider the presence or absence of motive. (People
v. Estep (1996) 42 Cal.App.4th 733, 738-739; People v. Wade (1995) 39
Cal.App.4th 1487, 1497; see also People v. Nakahara (2003) 30 Cal.4th 705, 714;
People v. Frye (1998) 18 Cal.4th 894, 958.) The motive instruction did not itself
include instructions on the prosecution’s burden of proof and the reasonable doubt
standard, but it also did not undercut other instructions that correctly informed the
jury that the prosecution had the burden of proving guilt beyond a reasonable
doubt.
Cleveland also argues that because the motive instruction, unlike the
court’s instruction on attempts to suppress evidence, did not specifically say that
evidence of motive alone is insufficient to prove guilt, it implied that such
evidence alone may be sufficient. We find this claim not cognizable. This
argument merely goes to the clarity of the instruction. “A party may not argue on
appeal that an instruction correct in law was too general or incomplete, and thus
needed clarification, without first requesting such clarification at trial.” (People v.
Hillhouse, supra, 27 Cal.4th at p. 503.) If defendants had thought the instruction
should be clarified to avoid any implication that motive alone could establish guilt,
they should have so requested. They did not. (Id. at p. 504.) We also find no
error and no prejudice. The court fully instructed the jury on the reasonable doubt
standard. We find no reasonable likelihood the jury would infer from the motive
instruction that motive alone could establish guilt. Moreover, given the strong
50
evidence of guilt aside from motive, the jury certainly did not base its verdicts
solely on motive.
Cleveland reiterates other arguments we have already rejected. Instructions
on circumstantial evidence and evidence of mental state, including use of the word
“appears,” did not undermine the reasonable doubt standard or create an
impermissible mandatory presumption of guilt. (People v. Hillhouse, supra, 27
Cal.4th at p. 504; People v. Crittenden, supra, 9 Cal.4th at p. 144.) Instructions
that contain the word “innocence” or “innocent” do not suggest that defendant has
the burden of establishing innocence. (People v. Frye, supra, 18 Cal.4th at p.
958.) The instruction on willfully false witnesses (CALJIC No. 2.21.2) does not
reduce the prosecution’s burden of proof. (People v. Riel, supra, 22 Cal.4th at p.
1200.) Cleveland argues that the standard instruction on weighing conflicting
testimony (CALJIC No. 2.22) also undermines the reasonable doubt standard. We
said long ago that this instruction must be given sua sponte in every criminal case
in which conflicting testimony has been presented. (People v. Rincon-Pineda
(1975) 14 Cal.3d 864, 884-885.) We have apparently not yet confronted an
argument that this instruction somehow undermines the reasonable doubt
instruction, but it does not do so any more than the other instructions that have
already been challenged on this basis. “The instructions as a whole correctly
instructed the jury on the prosecution’s burden of proof.” (People v. Riel, supra,
22 Cal.4th at p. 1200.) Finally, contrary to Cleveland’s argument, the court did
not have to tell the jury it must unanimously agree on the theory of guilt of first
degree murder. (People v. Carpenter, supra, 15 Cal.4th at pp. 394-395.)
Moreover, the jury convicted each defendant of robbing both victims and found
true a robbery-murder special circumstance, thus showing at least that the jury
unanimously found the felony-murder rule applied. (Id. at p. 395.)
51
8. Alleged Interference With Jury Deliberations
During its guilt deliberations, the jury asked the court questions regarding
the verdict forms. Defendants contend the court’s responses and other actions
improperly interfered with the jury’s deliberations. We disagree. The court
merely clarified some points of confusion and then permitted the jury to continue
its deliberations.
a. Factual Background
In June 1990, a few months before the crimes in this case, the voters
approved Proposition 115, which made substantive changes in felony-murder
special-circumstances provisions, including amending subdivision (b) and adding
subdivisions (c) and (d) to section 190.2. (Yoshisato v. Superior Court (1992) 2
Cal.4th 978, 981, 986-987.)8 Before these amendments, for a felony-murder
8
Subdivisions (b), (c), and (d) of section 190.2 read substantially the same
today as they did under Proposition 115. Today they provide: “(b) Unless an
intent to kill is specifically required under subdivision (a) for a special
circumstance enumerated therein, an actual killer, as to whom the special
circumstance has been found to be true under Section 190.4, need not have had
any intent to kill at the time of the commission of the offense which is the basis of
the special circumstance in order to suffer death or confinement in the state prison
for life without the possibility of parole.
“(c) Every person, not the actual killer, who, with the intent to kill, aids,
abets, counsels, commands, induces, solicits, requests, or assists any actor in the
commission of murder in the first degree shall be punished by death or
imprisonment in the state prison for life without the possibility of parole if one or
more of the special circumstances enumerated in subdivision (a) has been found to
be true under Section 190.4.
“(d) Notwithstanding subdivision (c), every person, not the actual killer,
who, with reckless indifference to human life and as a major participant, aids,
abets, counsels, commands, induces, solicits, requests, or assists in the commission
of a felony enumerated in paragraph (17) of subdivision (a) which results in the
death of some person or persons, and who is found guilty of murder in the first
degree therefor, shall be punished by death or imprisonment in the state prison for
(fn.
continued
on
next
page)
52
special circumstance to apply, the defendant had to either be the actual killer or
intend to kill. (People v. Anderson (1987) 43 Cal.3d 1104, 1147.) Under
Proposition 115, a person other than the actual killer is subject to the death penalty
or life without parole if that person was a major participant in the underlying
felony (here robbery) and either intended to kill or acted with reckless indifference
to human life. (See People v. Estrada (1995) 11 Cal.4th 568, 572.) At the time of
trial, these provisions—including the reckless indifference to human life
provision—were fairly new, and the court and parties had to devise a verdict form
for this new version of the robbery-murder special circumstance.
The verdict form that the court originally gave the jury included three
questions to which the jury was to answer true or not true. The first question was
whether the murder was committed under the robbery-murder special
circumstance. The second was whether the defendant was the actual killer. The
third was whether the defendant was “either the actual killer or an aider and
abettor who either intended to kill a human being or aid another in the killing of a
human being or with reckless indifference to human life and as a major participant
aided and abetted the commission of the crime of robbery which resulted in the
death of a human being.” The court instructed the jury, “If you find that a
defendant was not the actual killer of a human being or if you are unable to decide
whether the defendant was the actual killer, you cannot find the special
circumstance true as to that defendant” unless it found true the third question on
the verdict form. (Italics added.) But the original verdict form itself did not state
what the jury should do it if could not decide the second question unanimously.
life without the possibility of parole if a special circumstance enumerated in
paragraph (17) of subdivision (a) has been found to be true under Section 190.4.”
As relevant here, section 190.2, subdivision (a)(17), makes murder in the
commission of robbery a special circumstance.
53
During the guilt deliberations, the jury sent the court a note asking, “Is a
unanimous decision required for all parts of special circumstance verdict.” After
discussion with the parties, the court answered the question, “Yes.” The
foreperson of the jury indicated there was some confusion between the instructions
and the verdict form. The court told the jury that if it was still confused, it should
go back into the jury room and submit a new question. The jury resumed its
deliberations. Thereafter, out of the jury’s presence, the court and parties
discussed the jury’s concern further. The district attorney suggested the jury
might have been confused as to what it should do if it could not answer the second
question unanimously. The district attorney suggested, and the court agreed, that
the jury should be told that if it found the defendant was not the actual killer or
was unable to decide the question unanimously, it should proceed to the third
question. The court stated, “It seems clear to me now that I reviewed that verdict
form that that should have been included initially.” But the court took no further
action pending further questions from the jury.
The next day, November 7, 1991, the district attorney expressed concerns
out of the jury’s presence about a then recent Court of Appeal decision that had
held that Proposition 115’s amendments to section 190.2 were ineffective. At that
time, this court had granted review in the case but had not yet decided it. (See
Yoshisato v. Superior Court, supra, 2 Cal.4th 978.) The district attorney was
concerned that if the Court of Appeal’s view prevailed, the verdict might later be
invalidated. She suggested the verdict form be changed to require the jury to find
an intent to kill before it found true the felony-murder special circumstance. The
court told the jury to suspend deliberations while it considered the matter. It
reviewed the Court of Appeal opinion, noted that it was not binding because this
court had granted review, and disagreed with it. It anticipated (correctly, see
Yoshisato v. Superior Court, supra, 2 Cal.4th 978) that we would overturn the
54
Court of Appeal’s judgment and hold that Proposition 115’s amendments to
section 190.2 were effective. Accordingly, it took no action on the district
attorney’s request and permitted the jury to resume deliberating.
The jury then asked the court another question: “When rendering a
decision for ‘verdict special circumstance’ which provides for three findings (true
or not true), and assuming a unanimous decision was rendered for the first finding,
would it be acceptable to leave the second and third finding blank without
negating the first finding and, therefore, the overall verdict?” The court and
parties conferred on how to respond. With the agreement of everyone, including
defendants, the court instructed the jury that if it was unable to agree on the second
question, it should leave it blank and go on to the third question. The foreperson
asked another question. The court did not want to answer a new question at that
point without carefully considering it. It told the jury to resume deliberations and
to ask further questions in writing if it had any. The jury then resumed
deliberations. Later, the court told the parties it intended to call the jury back and
ask if it had further questions. Counsel for Cleveland objected that doing so in the
absence of further questions from the jury “would be invading the province of the
jury.” The other two defense attorneys submitted the matter without comment.
The court called in the jury and asked if it had another question. The foreperson
said the jury might have one. The court then excused the jury for the day, six
minutes earlier than the normal time the jury stopped deliberating. The court
suggested that if the district attorney wished to have a new, clearer verdict form,
she should prepare one for the next day.
The next morning, the jury did not resume deliberations immediately. The
court and parties conferred to discuss possible new verdict forms. At the district
attorney’s request, and over defendants’ objections, the court decided to give the
jury the new forms. The court ascertained from the foreperson that the jury “had a
55
problem with the verdict form as presented in reference to the special
circumstances concerning murder in the commission of robbery.” Because of that
concern, and because it found that the original verdict form “was inartfully
drafted,” it told the jury it would substitute a new verdict form. It instructed the
jury that “the fact that I am giving you a new verdict does not mean on my part
that any of the verdict forms necessarily apply to any of the defendants, that’s for
the jury to determine.” It gave the jury the new forms and told it to resume
deliberating. The new form stated, “If you are unable to unanimously agree that
the defendant was the actual killer, you may leave the answer to the question in
paragraph 2 blank”; and “If you have answered the question in paragraph 2 ‘not
true’ or you left it blank, then proceed to the question in paragraph 3.” The jury
resumed deliberating at 9:48 a.m. that morning.
After the jury resumed deliberations, Cleveland moved for a mistrial based
on these events. The court denied the motion. The jury reached its verdict later
that day. It found not true that Veasley or Charan was the actual killer and left the
question blank as to Cleveland. It found the third question true as to all three
defendants.
b. Analysis
Defendants contend the court improperly and prejudicially interfered with
the jury’s deliberations. As to Veasley, except for the contention that the court
should not have supplied a new verdict form, the issue is not cognizable on appeal.
Veasley did not otherwise object to the court’s actions. (People v. Cash (2002) 28
Cal.4th 703, 730.) Veasley contends his attorney was ineffective for not objecting.
However, competent counsel may reasonably decline to object to the court’s
responding to questions from the jury and suspending deliberations while it
56
considered what to do with an appellate court decision that had invalidated part of
the legal basis on which the prosecution against his client was proceeding.
In any event, we see no error. Section 1138 provides that when, after they
have begun deliberating, the jury “desire to be informed on any point of law
arising in the case, . . . the information required must be given . . . .” (See People
v. Beardslee (1991) 53 Cal.3d 68, 97.) This provision imposes on the court the
“primary duty to help the jury understand the legal principles it is asked to apply.”
(Ibid.) The court fulfilled this duty. The jury sought the court’s advice on a
matter about which it was confused. It was clearly having difficulty deciding
whether any of the defendants was the actual shooter, which was understandable
given the absence of evidence on the point. It was uncertain whether it had to
decide that question unanimously and how it should proceed if it could not do so.
The court clarified the point in a way everyone, including defendants, agreed on.
It instructed that if the jury could not decide whether a defendant was the actual
killer it should leave the second question blank and move on to the third question.
This instruction was correct, as the jury could validly find true the robbery murder
special circumstance without determining whether any particular defendant had
been the actual killer.
Eventually, to make matters as clear for the jury as possible, the court
substituted new verdict forms that explained the correct procedure precisely.
Contrary to defendants’ argument, the court did not coerce the jury in the slightest.
Indeed, when it supplied the new verdict form, it carefully reiterated that whether
any of the forms applied to any defendant was solely for the jury to determine.
Thus, the court did not “interfere” with the jury’s deliberations; it provided
guidance when the jury requested it.
Cleveland argues that the special questions on the verdict form were not
required, and they prejudiced him because the jury eventually found not true that
57
Veasley or Charan was the actual killer but did not decide the question as to him.
But whether the questions were required, merely asking them was not error. (See
People v. Davis (1995) 10 Cal.4th 463, 511-512.) Indeed, all the parties agreed to
them at trial. We also see no prejudice regarding either the guilt or penalty
determination. At most, the verdict showed uncertainty at the guilt phase whether
Cleveland was the actual killer. But the evidence, not the verdict form, created the
uncertainty. Moreover, who the actual killer was was irrelevant to the guilt
verdict. At the penalty phase, Cleveland was permitted to present additional
evidence (not admissible earlier) that suggested he was not the actual killer.
Defendants also argue that the court’s suspending deliberations was itself
coercive and prejudicial. It was neither. The court acted cautiously in deciding
how to respond to the jury’s questions and what to do about the appellate court
decision, and properly so. In a capital trial especially, the court should proceed
cautiously. It properly suspended the deliberations briefly to consider important
legal issues and make sure the jury was correctly instructed, and then permitted the
jury to resume deliberations. Ultimately, a correctly instructed jury rendered an
uncoerced verdict finding true as to each defendant both the robbery-murder
special circumstance and all of its necessary predicate facts. The court did not err
during deliberations.9
D. Penalty Phase Issues
1. Bifurcating Penalty Trials
Peterson said that Veasley told her that he had forced Nelson and Hunter to
lie on the floor with their hand behind their backs and then he shot them each
twice in the head. Because of the confidential marital communication privilege,
9
Veasley argues that the cumulative effect of the alleged errors was
prejudicial as to guilt. However, there was virtually no error to accumulate.
58
this evidence was inadmissible against Veasley (Evid. Code, § 980), but
Cleveland and Charan wanted to introduce it in mitigation at the penalty phase to
try to show that they were not the actual shooters. In order to protect Veasley
from having this evidence admitted against him and to allow Charan and
Cleveland to present the evidence on their behalf, the trial court bifurcated the
penalty trial. The penalty trial against Veasley went first without the jury hearing
this evidence. After the jury reached its verdict as to Veasley, the penalty trial
against Cleveland and Charan was held before the same jury, at which time it
heard Peterson’s testimony.
The court explained the process to the jury at the outset of the first penalty
trial: “If you notice we have Mr. Veasley only today and the other two defendants
not here. We’ve bifurcated the penalty phase. The first part will be as to Mr.
Veasley only and then you will go out and deliberate, reach verdicts if you can
reach a verdict on that and then we will have the penalty phase as to Mr. Charan
and Mr. Cleveland after that. You’re not to speculate as to why we’re following
this procedure, that is—those are legal issues for this court to determine, not to
wonder why at all as to why we’re only proceeding against Mr. Veasley today.”
Veasley and Cleveland argue the bifurcation was prejudicial error,
although, because each was affected differently, for different reasons.
a. Veasley’s Argument
The only effect the trial court’s ruling had on Veasley was to sever his
penalty trial from that of Cleveland and Charan. Because his trial was first, the
second penalty trial could not have affected him. Veasley argues the ruling was
error. The issue is not cognizable as to Veasley because he never objected. It is
settled that a defendant must request severance or object to joinder to complain on
appeal of the failure to sever. (People v. Champion (1995) 9 Cal.4th 879, 906.)
59
The same rationale applies to the reverse situation, i.e., the failure to object to
severance. (See People v. Saunders, supra, 5 Cal.4th at pp. 589-590.) If, for some
reason, Veasley had wanted to be tried with the other two defendants at the
penalty phase, he should have so requested at trial. He did not, so he cannot
complain on appeal of the court’s action. Veasley argues that counsel was
ineffective for not objecting to the severance. However, no reason appears for
counsel to believe severance was against Veasley’s interests. Indeed, criminal
defendants usually complain of the trial court’s denial, not granting, of severance.
(E.g., People v. Champion, supra, 9 Cal.4th at pp. 904-906.)
We also see no error or prejudice from Veasley’s perspective. His
statement to Peterson about shooting the victims was never used against him. He
argues that severance was not required to protect Cleveland’s and Charan’s
legitimate interests. But the question here is not whether the court was required to
order severance, but whether it erred in doing so. We see no abuse of discretion.
(People v. Alvarez, supra, 14 Cal.4th at p. 189.) Ordering severance to permit
Cleveland and Charan to present Peterson’s testimony seems reasonable. Veasley
also claims that the bifurcation “was a surprise to the jury” and caused it to “return
a death verdict against Veasley as a means of ensuring at least one of the
defendants paid the ultimate price for the deaths of Nelson and Hunter.” We
disagree. At the outset of the penalty trials, the court explained to the jury what
was occurring. The explanation was neither difficult to understand nor one that
would particularly trouble the jury. The jury knew that the separate penalty trial
as to Cleveland and Charan would follow. No reason appears to believe that the
severance increased the likelihood the jury would impose the death penalty against
Veasley.
60
b. Cleveland’s Argument
Because Cleveland’s penalty trial followed Veasley’s, Cleveland’s
argument is quite different. As with Veasley, the bifurcation had the effect of
severing the penalty trials. Because Cleveland originally requested severance, he
cannot and does not complain of this circumstance. But the bifurcation had an
additional impact on Cleveland. His penalty trial was held in front of, and the
penalty decision was made by, the jury that had already heard the penalty
proceeding and made the penalty decision as to Veasley. Cleveland argues that
this circumstance denied him a fair trial before an impartial jury. After the guilt
verdict, Cleveland agreed to the bifurcation. Nevertheless, we find the current
contention cognizable. Cleveland had originally moved to sever the trials.
Cleveland agreed to the bifurcation only after the court denied that motion. He
obviously believed bifurcation was preferable to the jury’s never hearing
Peterson’s testimony, but his original severance motion would have given him his
own jury rather than a jury that had already considered the penalty question as to
Veasley. Accordingly, we consider his arguments on the merits.
No statutory provision specifically permits this procedure. However, in the
context of deciding what to do when one defendant has made an out-of-court
statement implicating another defendant, we have held that procedures (in addition
to severing the trials or redacting or excluding the out-of-court statement) may be
used to avoid prejudicing the nondeclarant defendant “if they serve the same
purpose and do not prejudice the defendants.” (People v. Harris (1989) 47 Cal.3d
1047, 1071.) We have upheld the use of two juries in the same trial, one for each
defendant, with one jury excluded when evidence is presented that is inadmissible
as to that jury’s defendant. (Id. at pp. 1070-1076; see also People v. Fletcher,
supra, 13 Cal.4th at p. 468.) Here, the court did not use two juries but a single
jury in consecutive penalty trials. “The sole question here is whether the
61
procedure utilized in this case ensured defendant a fair trial at which his
fundamental constitutional rights were protected.” (People v. Harris, supra, at p.
1071.) As we explain, courts should be very cautious about adopting the
procedure used here, but the bifurcation was fair to Cleveland in the unusual
circumstances of this case.
We have recognized, again in the context of deciding what to do when one
defendant has made an out-of-court statement implicating another defendant, that
one “alternative that has been suggested, but apparently never used in this state, is
a joint but bifurcated trial in which the jury first determines the guilt of the
nondeclarant defendant, then receives evidence of the nontestifying codefendant’s
extrajudicial confession, and finally proceeds to determine the guilt or innocence
of that defendant.” (People v. Fletcher, supra, 13 Cal.4th at p. 468, fn. 5.) We
also cautioned, however, “that federal appellate courts have reversed convictions
of defendants whose guilt has been determined in a bifurcated trial, concluding
that it may be practically impossible for a jury to determine one defendant’s guilt
without impermissibly prejudging the guilt of another defendant jointly tried.
(See, e.g., United States v. McIver (11th Cir. 1982) 688 F.2d 726, 729-730.)”
(Ibid.) Cleveland urges a similar conclusion here, arguing that “the jury could not
reasonably keep from applying the arguments presented during Veasley’s penalty
phase” to him. We disagree. Bifurcating the penalty decision in this case was
different from bifurcating a guilt determination.
In United States v. McIver, supra, 688 F.2d 726, the trial court bifurcated
the guilt trials to permit one defendant to present evidence favorable to that
defendant but not admissible against the other two defendants. The prosecution
presented its evidence against all the defendants, and then two of the defendants
presented their defense. At that point, the jury deliberated and found those two
defendants guilty. After that the third defendant presented his defense and
62
questioned some of the witnesses the prosecution had called in the first phase.
The jury then deliberated again and found the third defendant guilty. (Id. at p.
728.) The appellate court concluded the bifurcated trial “violates the Sixth
Amendment because the jury might consider, even if inadvertently, the guilt of the
defendant before it has heard the defendant’s case. Here the three defendants were
all charged with the same crimes. The government’s evidence presented during
the [first two defendants’] phase of the trial pertained to all three defendants. It is
unlikely in such a situation that the jury could convict two of the three defendants
without forming an opinion regarding the third defendant. Such a jury cannot be
impartial; rather, it is ‘predisposed to find guilt.’ ” (Id. at p. 729, italics added, fn.
omitted.) “The dispositive factor . . . is that the prosecution presented all its
evidence in the first phase of the trial but the defense was postponed until after the
jury deliberated.” (Id. at p. 730.)
The bifurcated trial here was quite different. The penalty decision as to
Veasley was distinct from the penalty decision as to Cleveland. There might have
been a problem if the prosecution had presented evidence at Veasley’s trial that
related to Cleveland—for example, victim impact evidence—or if Veasley had
presented evidence regarding the charged crimes—for example, his own testimony
blaming Cleveland. But none of the evidence presented at Veasley’s penalty trial
pertained to Cleveland. The prosecution presented evidence of other crimes
Veasley committed and Veasley presented mitigating evidence regarding himself.
All evidence relevant to Cleveland was presented at either the nonbifurcated guilt
phase or Cleveland’s own penalty trial.
Cleveland focuses on the arguments of counsel. He claims that some of the
arguments at Veasley’s penalty trial pertained to him as well as Veasley, and that
the jury could not disregard the arguments from the first phase in considering the
second phase. The prosecutor did, naturally, discuss the charged crimes in urging
63
the death penalty for Veasley, but she did the same later in urging the death
penalty for Cleveland. Counsel for Veasley argued that there was no evidence
Veasley was the actual shooter, that the jury’s guilt verdict indicated he was not
the actual shooter, and that the actual shooter was more culpable than the
nonshooters. The “end result,” Cleveland argues, “was a procedure that
‘essentially created two prosecutors’ against [him], forcing [him] to present
mitigating evidence to the same jury that had already heard his codefendant’s
mitigating evidence (aggravating to [Cleveland]) and closing argument, and the
prosecutor’s aggravating evidence and closing argument.” Although the risk was
present, the actuality was not. Veasley’s mitigating evidence was irrelevant, not
aggravating, to Cleveland. The prosecution’s aggravating evidence against
Veasley was also irrelevant to Cleveland. Veasley’s attorney did not argue that
Cleveland was the actual killer, only that there was no evidence that Veasley was
the killer. All relevant argument regarding the crimes and Cleveland’s role was
presented at his separate trial, and he was able to respond fully to the jury at that
time. The evidence and argument at Veasley’s trial did not prejudice Cleveland.
At Cleveland’s separate trial, moreover, the jury heard, for the first time,
Peterson’s testimony that Veasley had admitted shooting the victims. From the
jurors’ perspective, this testimony may have tended to vindicate their death verdict
as to Veasley, but, if anything, it suggested a reason to reach a different verdict as
to Cleveland. The testimony also neutralized any suggestion at Veasley’s penalty
trial that Cleveland was the shooter. We see no reason why Veasley’s penalty trial
and the jury’s verdict at that trial would have biased the jury at Cleveland’s
penalty trial or made it unable to reach a fair and reasoned verdict regarding
Cleveland. We are confident that the actual verdict against Cleveland was based
on the evidence and arguments presented at the guilt phase and Cleveland’s
64
penalty phase and was not influenced to his detriment by Veasley’s intervening
penalty trial.
Cleveland also contends that his right to be present at trial was violated by
his absence at Veasley’s penalty trial. This contention is intertwined with the rest
of his challenge to the bifurcation and fails for the same reasons. If Veasley’s
penalty trial had related to him, his presence would have been required. But it did
not relate to him. Accordingly, his absence did not bear a reasonable and
substantial relation to his opportunity to defend himself. (People v. Hines, supra,
15 Cal.4th at pp. 1038-1039.) Cleveland was present at the entire guilt phase and
his own penalty trial, at which all evidence and argument regarding himself was
presented; he was fully able to represent his interests at those phases.
2. Veasley’s Penalty Phase Claims
a. Excluding Defense Evidence
Veasley’s mother, Tressie Williams, testified on his behalf that Amelia
Gonzalez, the mother of one of his children, lived in northern California. Defense
counsel asked whether Gonzalez had wanted to testify at the trial, and she
answered, “Yes.” The court sustained the prosecutor’s hearsay objection, and
instructed the jury to disregard the response. Williams then testified that Gonzalez
was going to travel with her from northern California, but she was pregnant and
went into labor at the airport. Her water broke and she was taken to a hospital.
She also testified that Gonzalez and Veasley had a “good relationship” and they
were “best friends.” She also testified about Veasley’s relationship with his
children and their other mothers.
Veasley claims the court violated his federal constitutional right to present
mitigating evidence by sustaining the hearsay objection. However, he never
asserted any constitutional right or, indeed, any other basis for admitting the
65
excluded evidence. Instead, he simply elicited other evidence regarding the
relationship between Gonzalez and Veasley. Accordingly, the issue is not
cognizable. (People v. Alcala (1992) 4 Cal.4th 742, 795-796; People v. Rowland
(1992) 4 Cal.4th 238, 265, fn. 4.) We also see no error. The evidence was hearsay
and Veasley does not suggest it comes within an exception to the general rule that
hearsay is inadmissible. (Evid. Code, § 1200.) Veasley argues that his right to
present mitigating evidence mandated its admission. However, the rule permitting
a defendant to admit all relevant mitigating evidence has not “abrogated the
California Evidence Code.” (People v. Edwards (1991) 54 Cal.3d 787, 837.)
“The United States Constitution compels the admission of hearsay evidence only
if the proponent shows the evidence is highly relevant to a critical issue and is
sufficiently reliable.” (People v. Smith (2003) 30 Cal.4th 581, 629.) Veasley
made no attempt to meet these requirements at trial. The hearsay was not highly
relevant to a critical issue. The relationship between Veasley and Gonzalez was
not a critical issue, and Veasley could, and did, present evidence of that
relationship by other means.
b. Alleged Prosecutorial Misconduct
The district attorney argued to the jury that it “may not relish the idea of
having . . . to sit in judgment on somebody else’s life,” but that Veasley was
responsible for bringing the jury “to this courtroom . . . to face this task,” and that
the jury should only “blame . . . [Veasley] for putting you in a position that you’re
now in.” She concluded her argument, “You’ll see that death . . . is the
appropriate vote in this case. It’s a punishment that this defendant has imposed
upon himself . . . as a consequence of his conduct, his behavior.”
Veasley claims “the prosecutor committed misconduct by attempting to
shift responsibility for the requested death verdict from the jury to [himself].”
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(See Caldwell v. Mississippi, supra, 472 U.S. 320.) He did not object to any of
these remarks. Nevertheless, we have stated, without explanation or citation to
authority, that “[w]e have never required an objection to raise claims of error
based upon Caldwell v. Mississippi (1985) 472 U.S. 320 . . . .” (People v. Bittaker
(1989) 48 Cal.3d 1046, 1104; see also People v. Jackson (1996) 13 Cal.4th 1164,
1238 [citing Bittaker without further explanation]; People v. Clark (1993) 5
Cal.4th 950, 1035 [same]; cf. People v. Arias (1996) 13 Cal.4th 92, 180 [claim of
similar error found forfeited but also lacking in merit].) On reflection, we see no
reason to carve out an exception to the general rule that a defendant must object to
misconduct at trial to raise the claim on appeal. (People v. Riel, supra, 22 Cal.4th
at p. 1212.) If the prosecutor improperly suggests the responsibility for a death
verdict rests elsewhere, an admonition could normally cure any harm. (Ibid.) We
believe, therefore, that a defendant should be required to object to this type of
misconduct just as to any other type of misconduct. (See generally People v.
Green (1980) 27 Cal.3d 1, 27-34.) Accordingly, in all trials held after this
decision becomes final, a defendant will be required to object to prosecutorial
misconduct on this basis in order to raise the issue on appeal. However, at this
trial, Veasley was not on notice that he had to object on this basis. So we consider
the issue on the merits as to him. (See People v. Riel, supra, 22 Cal.4th at p. 1220;
People v. Scott (1994) 9 Cal.4th 331, 358.)
The claim lacks merit. “[I]t is constitutionally impermissible to rest a death
sentence on a determination made by a sentencer who has been led to believe that
the responsibility for determining the appropriateness of the defendant’s death
rests elsewhere.” (Caldwell v. Mississippi, supra, 472 U.S. at pp. 328-329
[prosecutor argued the jury would not determine whether the defendant would die
because a higher court would review a death sentence].) The prosecutor did not
violate this mandate. She made clear the jury alone had to make this
67
determination and merely placed the blame for this circumstance on Veasley. She
did not suggest that Veasley would determine whether his own death was
appropriate. Nor did she try to shift the responsibility for the decision to anyone
else, such as a higher court. Indeed, she told the jury, “You decide what penalty to
impose.” “The prosecutor sought only to emphasize ‘that the moral blame for the
crimes and their consequences rests with defendant, not with the jurors,’ and this
is not improper.’ ” (People v. Arias, supra, 13 Cal.4th at p. 180.)
c. Sealing the First Penalty Verdict
At the district attorney’s request, and over Veasley’s objection, the trial
court ordered the jury’s verdict as to Veasley sealed until after the jury had also
rendered its verdict as to Cleveland and Charan. It believed that sealing the first
verdict so that both verdicts could be announced simultaneously at the end of the
trial would best ensure that the jury would hear the evidence and deliberate at the
second penalty trial “as comfortably as possible, as openly as possible.” It was
also concerned to protect defendants’ rights while sealing the verdict.
Accordingly, and following the procedure the court established, when the jury
announced that it had reached a verdict as to Veasley, the court examined the
verdict to make sure it had been properly signed and dated. It then explained to
the jury that the verdict would be sealed and not disclosed to anybody else until
the jury had reached its verdicts as to Cleveland and Charan. The court also had
each juror individually examine the verdict to make sure each agreed with it. It
then polled the jurors “as to whether the verdicts that you’ve examined are your
true and correct verdicts.” Each juror individually affirmed that the verdict was
his or her “true and correct” verdict. The court then sealed the verdict until after
the second penalty trial. After the jury reached its verdict as to Cleveland and
Charan, and in the presence of all defendants and the jury, the court announced
68
each of the verdicts, including the death verdict as to Veasley. The court again
polled the jury, and each juror individually affirmed that the verdicts, including the
death verdict as to Veasley, were his or her own.
Veasley argues this procedure violated his rights to a unanimous verdict,
jury polling, due process, and a reliable penalty determination. Specifically, he
argues this procedure violated the jurors’ rights to reconsider their verdict until the
decision was complete and “resulted in no true polling of the individual jurors.”
(See §§ 1163, 1164.) We disagree. Regarding the verdict as to Veasley, the jury
was polled twice in open court in Veasley’s presence: first when it reached its
verdict, and again when the verdict was unsealed and announced. Both times any
juror could have expressed any disagreement or other dissatisfaction with the
verdict. Both times each juror assented that the verdict was, in fact, that juror’s
true verdict. For this reason, we need not decide whether the jury had the right to
reconsider its verdict at the time it was unsealed. Sealing the first verdict to
announce all verdicts at the same time did not violate any of Veasley’s rights.10
3. Cleveland’s Penalty Phase Claims
a. Alleged Prosecutorial Misconduct
Cleveland adopts Veasley’s argument that the prosecutor committed error
under Caldwell v. Mississippi, supra, 472 U.S. 320. The argument fails for the
same reason the argument fails as to Veasley.
10
Veasley argues that the cumulative effect of the alleged penalty errors was
prejudicial. However, there was no error to cumulate. He also argues the trial
court erred in denying his motion for a new trial that was “based on all legal,
statutory, constitutional issues.” Because this argument in effect merely repeats
Veasley’s other arguments in a different form, we do not discuss it separately.
(People v. Hillhouse, supra, 27 Cal.4th at p. 496, fn. 2.)
69
Cleveland also claims the prosecutor committed two other kinds of
misconduct in her argument to the jury. He objected to none of the alleged
misconduct. Because an admonition could have cured any harm, the contentions
are not cognizable. (People v. Riel, supra, 22 Cal.4th at p. 1212.) In any event, no
misconduct appears.
In discussing section 190.3, factor (h) (whether “the capacity of the
defendant to appreciate the criminality of his conduct or to conform his conduct to
the requirements of law was impaired as a result of mental disease or defect, or the
affects of intoxication”), the prosecutor said: “That has to do with
insanity[]whether a person is insane and can’t understand the nature of his acts
or whether he is so drunk or so intoxicated by drugs or alcohol that he doesn’t
have control over himself or doesn’t realize what he’s doing. There’s absolutely
no evidence of that in this case whatsoever, so (h), doesn’t apply.” Noting that
Peterson testified that he had drunk some tequila, and that she had earlier stated
that he had been “blacking out off and on” at her house the day he was shot in the
hand, Cleveland claims this argument violated his right to have the jury consider
any evidence a defendant offers in mitigation. (Skipper v. South Carolina (1986)
476 U.S. 1, 4-8.) It did not. The prosecutor reasonably argued that there was no
evidence of impairment. She did not argue that the jury was not permitted to
consider section 190.3, factor (h), but only that no evidence supported it.
Although a jury may not be prevented from considering mitigating evidence, the
prosecutor may argue that the evidence does not, in fact, support a particular
mitigating factor. (See People v. Scott (1997) 15 Cal.4th 1188, 1222.)
The prosecutor argued, “I haven’t heard Cleveland make any excuses for
his violent conduct.” Cleveland claims this argument improperly commented on
his failure to testify. (Griffin v. California (1965) 380 U.S. 609.) It did not. The
prohibition does not extend to comment on the state of the evidence or the
70
defendant’s failure to introduce evidence or call logical witnesses other than
himself. (People v. Clair, supra, 2 Cal.4th at p. 662; People v. Hovey (1988) 44
Cal.3d 543, 572.) Contrary to Cleveland’s argument, “excuses for his violent
conduct” could have come in many forms other than his testimony: for example,
expert testimony regarding his mental state, evidence of his past, evidence from
Peterson or someone else that might have provided some kind of an excuse, even
argument by defense counsel. We find no reasonable likelihood the comment
“could have been understood, within its context, to refer to defendant’s failure to
testify.” (People v. Clair, supra, at p. 663.)
b. Jury Instructions
Cleveland argues the court had a sua sponte duty to instruct the jury at his
bifurcated penalty trial not to consider the evidence and argument presented at
Veasley’s penalty trial. He notes that the court gave standard penalty phase
instructions, which said that the jury “must determine what the facts are from the
evidence received during the entire trial . . .,” and referred to the jury’s “having
heard all of the evidence and . . . having heard and considered the arguments of
counsel . . . .” (See CALJIC Nos. 8.84.1, 8.88.) He argues that without further
instruction, the jury would believe it should consider the evidence and arguments
presented at Veasley’s trial as well as at Cleveland’s trial. We disagree. The court
explained to the jury at the outset of the penalty phase that that portion of the trial
would be bifurcated, and the “first part will be as to Mr. Veasley only . . . and then
we will have the penalty phase as to Mr. Charan and Mr. Cleveland after that.”
The evidence presented at Veasley’s penalty trial was relevant only against
Veasley. Although some of the argument at that trial might also have been
relevant to Cleveland, that argument was directed solely against Veasley. All
argument relevant to Cleveland was also made at Cleveland’s own penalty trial. It
71
was clear to the jury that the two penalty trials were separate, a concept that was
not difficult to understand. Under the circumstances, the jury would have
understood the references to the “entire trial” and to the evidence and arguments
of counsel to refer to Cleveland’s trial, not Veasley’s. If Cleveland had believed
further explanation was required, he should have requested it. (People v.
Hillhouse, supra, 27 Cal.4th at p. 504.) He did not.
Cleveland also reiterates a number of instructional arguments we have
already rejected. The jury need not agree unanimously as to aggravating
circumstances or find that death is the appropriate sentence beyond a reasonable
doubt. (People v. Carpenter, supra, 15 Cal.4th at p. 421.) The recent decisions of
Ring v. Arizona (2002) 536 U.S. 584 and Apprendi v. New Jersey (2000) 530 U.S.
466 do not affect California’s death penalty law. (People v. Smith, supra, 30
Cal.4th at p. 642, and cases cited.) The standard jury instructions on the weighing
process the jury must undertake (CALJIC No. 8.88) adequately channel the jury’s
discretion. (People v. Arias, supra, 13 Cal.4th at pp. 170-171.)
c. Denial of Allocution
Cleveland claims the court denied him his right to make a statement in
allocution before it imposed the death sentence. However, he never asserted the
right and, in any case, the right does not exist.
A few days after the jury rendered its verdict, Cleveland sent a handwritten
note to the judge asking him to modify the sentence to life in prison. The note
contained no substantive argument why the court should do so. At the next court
hearing, the court stated it had not opened the letter because it wanted to give
Cleveland’s attorney an opportunity to review it first. Defense counsel asked the
court to consider the letter. The court postponed the matter until it actually heard
the modification motion but told Cleveland, “If you want to make a statement I
72
would certainly entertain the statement that you would want to make.” At the
hearing on the modification motion, defense counsel argued at length that the
court should modify the verdict to a life sentence. Neither counsel nor Cleveland
suggested that Cleveland wanted to address the court personally. After counsel
finished arguing, the court made its oral ruling denying the motion. Cleveland
interrupted the court twice during its ruling, once saying, “I’ll tell you that much,”
and once saying, “Are you done now?” After the court denied the motion, it asked
if there was legal cause why judgment should not be pronounced. Defense
counsel stated there was not and also responded affirmatively when the court
asked whether the defendant waived arraignment for judgment. At this point,
Cleveland stated, “You talk to me about waiving the arraignment and stuff?” The
court did not respond to this statement but instead proceeded to pronounce
judgment. At the end of the hearing, Cleveland said, “Short shit.”
Thus, Cleveland sent the court a short note that simply asked it to modify
the verdict, and he interrupted the court a few times in open session. But he never
sought to exercise any right of allocution despite the court’s statement that it
would permit him to speak. Instead, defense counsel spoke for him and supplied
the arguments that were missing from Cleveland’s handwritten note. Thus, the
court did not prevent Cleveland from speaking. In any event, because a defendant
has the right to testify at the penalty trial, we have repeatedly “held that the
defendant does not have the ‘ “right to address the sentencer without being subject
to cross-examination” in capital cases.’ ” (People v. Hunter (1989) 49 Cal.3d 957,
989; see also People v. Davenport, supra, 11 Cal.4th at p. 1209.) Moreover, at the
hearing on the modification motion, the court is limited to considering the
evidence presented at the penalty trial. (People v. Raley (1992) 2 Cal.4th 870,
921.) The court did not deprive Cleveland of any right of allocution.
73
E. Other Contentions
1. Denial of Modification Motion
“Section 190.4 provides for an automatic motion to modify the death
verdict. In ruling on the motion, the trial court must independently reweigh the
evidence of aggravating and mitigating factors presented at trial and determine
whether, in its independent judgment, the evidence supports the death verdict.
The court must state the reasons for its ruling on the record. On appeal, we
independently review the trial court’s ruling after reviewing the record, but we do
not determine the penalty de novo.” (People v. Steele (2002) 27 Cal.4th 1230,
1267.) The trial court granted the motion to modify the verdict as to Charan, but
denied it as to Veasley and Cleveland. Veasley contends the court erred in
denying the motion as to him.
The court found “that the murders of Anthony Nelson and Charles Hunter
were intentional killings personally committed by Mr. Veasley with co-
defendant[s] Mr. Cleveland and Mr. Charan. And that the murders were
premeditated, deliberated, willful and with malice aforethought.” Veasley argues
the finding that Veasley “personally” murdered the victims is unsupported and
contrary to the jury’s guilt verdict. However, we read the comment as just
meaning that the three defendants personally committed the murders in the sense
that they were at the scene and personally participated in the crimes with
premeditated intent to kill. The court did not suggest that Veasley, and certainly
not all three defendants, personally shot the victims. Indeed, it had previously
expressly stated that it was not considering Peterson’s testimony at the second
penalty trial that Veasley admitted shooting the victims.
The court stated that the “cold blooded plan to rob and murder” the victims
was Veasley’s, and Veasley “outlined to his cohorts the plan to lure the victims to
the All Star Inn in Pomona and after robbing them of their cocaine and other
74
valuables he called for the victims’ execution.” (Italics added.) Veasley argues
the italicized language is factually unsupported because there is no evidence he
“exhorted his colleagues to kill the victims.” However, the evidence supports the
court’s statement. Peterson testified that after the first shooting, Veasley criticized
Cleveland for not “blast[ing] all those people.” He told Cleveland and Charan
“they could go to Pomona and bump off his supplier.” He said the victims “had to
be taken care of because [Nelson] knew him . . . .” Saying that Veasley called for
the victims’ execution is a reasonable summary of this evidence.
In reviewing Veasley’s prior criminal conduct, the court referred to the
1984 commercial burglary in which “he allegedly and according to the proof used
a sawed-off shotgun.” Veasley argues that he merely possessed a sawed-off
shotgun while committing the burglary, but he did not use it. It appears the court
meant the word “used” loosely in the sense of having the gun, not in the strictly
legal sense of gun use. In any event, any misspeaking was minor. The evidence
showed that Veasley was, indeed, the leader in a particularly “cold blooded”
double murder. We see no reasonable possibility any misstatement affected the
court’s sentencing decision. (People v. Benson (1990) 52 Cal.3d 754, 812.)
2. Noncapital Sentencing Issues
In addition to sentencing Cleveland and Veasley to death for the murders,
the court imposed sentence on the robbery and conspiracy counts, and then stayed
the sentences. It also stated, “If for any reason the death penalty is not imposed
the said stays are dissolved and the consecutive sentences to run consecutive to the
murder counts . . . .” Cleveland argues that section 654 requires the robbery and
conspiracy sentences to remain stayed even if the death penalty is not imposed.
(See generally People v. Latimer (1993) 5 Cal.4th 1203.) Thus, he argues that if
we overturn the death judgment, and he is thereafter resentenced for the murders,
the robbery and conspiracy terms must be stayed. It is not entirely clear what the
75
court meant in this statement. However, we are affirming the death judgment, and
the original stays are still in effect. If Cleveland or Veasley is ever resentenced on
the murder counts, the question whether sentencing on the other counts must be
stayed can be considered at that time. The current sentence need not be modified.
According to the reporter’s transcript, the court sentenced Veasley to five
years in prison for the prior conviction and “on the one-year prior under [section
667.5, subd. (b)], to one year,” which the court stayed. As Veasley points out,
however, he was charged with and admitted only a prior serious felony conviction
under section 667, and not a prior prison term under section 667.5. Thus, the
reference in the reporter’s transcript to a one-year term under section 667.5 is
incorrect. However, the minute order and abstract of judgment in the clerk’s
transcript are correct. Neither mentions a prior prison term or section 667.5.
Under the circumstances, we will deem the minute order and abstract of judgment
to prevail over the reporter’s transcript. (People v. Smith (1983) 33 Cal.3d 596,
599; People v. Malabag (1997) 51 Cal.App.4th 1419, 1426-427.) The erroneous
statement in the reporter’s transcript is of no effect.
3. Challenges to Death Penalty Law
Veasley, joined by Cleveland, reiterates various challenges to California’s
death penalty law that we have rejected. The death penalty is not per se
unconstitutional. (People v. Steele, supra, 27 Cal.4th at p. 1269; People v.
Samayoa (1997) 15 Cal.4th 795, 864-865.) The death penalty law adequately
narrows the class of death-eligible defendants. (People v. Burgener (2003) 29
Cal.4th 833, 884 & fn. 7.) Intercase proportionality review is not required.
(People v. Riel, supra, 22 Cal.4th at p. 1223.) We do undertake intracase
proportionality review on request to determine whether the penalty is
76
disproportionate to the defendant’s personal culpability, although the disposition
that accomplices received is not part of that review. (Ibid.)11 The jury need not
unanimously find aggravating circumstances as long as the penalty determination
itself is unanimous. (People v. Anderson (2001) 25 Cal.4th 543, 590.)
Prosecutorial discretion in deciding whether to seek the death penalty does not
render the law unconstitutional. (People v. Steele, supra, at p. 1269.) The method
of execution is not unconstitutional. (People v. Hughes (2002) 27 Cal.4th 287,
406; People v. Samayoa, supra, 15 Cal.4th at p. 864.) “International law does not
prohibit a sentence of death rendered in accordance with state and federal
constitutional and statutory requirements.” (People v. Hillhouse, supra, 27 Cal.4th
at p. 511.) Finally, the delay of execution while defendants pursue this appeal
does not render the death judgment unconstitutional. (People v. Frye, supra, 18
Cal.4th at pp. 1030-1031.)
11
Neither Veasley nor Cleveland specifically request intracase proportionality
review, but the death penalty they face is not disproportionate to their individual
culpability. (People v. Riel, supra, 22 Cal.4th at pp. 1223-1224.) Whether or not
either was the actual shooter—the evidence against Veasley is inconclusive, and
the evidence regarding Cleveland suggests he was not the actual shooter—both
engaged in a carefully premeditated, execution-style double murder. The death
sentences do not shock the conscience. (Id. at p. 1224.)
77
III. CONCLUSION
We affirm the judgments.
CHIN,
J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
BROWN, J.
MORENO, J.
78
CONCURRING OPINION BY CHIN, J.
Obviously, I concur in the majority opinion I have prepared for the court. I
am writing separately to comment on the absurdity of trial and appellate courts—
as well as prosecutors and defense attorneys—expending energy and resources
dealing with lesser sentencing issues when the defendant has also been sentenced
to death or prison for life without the possibility of parole (LWOP), and to suggest
a legislative solution.
In People v. Moore (1984) 162 Cal.App.3d 709, the trial court sentenced
the defendant to LWOP for two murders but also calculated a 60-year sentence for
many other felony convictions. The defendant “complain[ed] of numerous
sentencing errors in this 60-year sentence, and urge[d] remand for resentencing.”
(Id. at p. 718.) The Court of Appeal, however, refused to consider those
contentions. “[A]s we are affirming the judgment in its entirety, including the
special circumstances findings, we need not address the sentencing errors alleged
by appellant.” (Ibid.) Other courts have not followed this approach, possibly
because no statutory provision expressly permits it, and have decided sometimes
complex sentencing issues while affirming a death or LWOP sentence. In People
v. Coleman (1989) 48 Cal.3d 112, for example, we affirmed a judgment of death
but also considered numerous other sentencing issues and remanded for the trial
court to resentence the defendant on noncapital counts. (Id. at pp. 160-166.)
Later, we affirmed the new judgment on appeal from that resentencing. (People v.
Coleman (1991) 53 Cal.3d 949.) Other examples abound. (E.g., People v.
Osband (1996) 13 Cal.4th 622, 728-732 [considering sentencing issues despite
affirming judgment of death]; People v. Davis (1995) 10 Cal.4th 463, 551-552
1
[similar]; People v. Bracamonte (2003) 106 Cal.App.4th 704 [published portion of
opinion considers only sentencing issues despite affirming an LWOP sentence].)
When a person has been sentenced to death or LWOP, no need exists to
impose any other sentence. Especially in these days of increasingly tight judicial
budgets, courts and attorneys can make better use of their resources than litigating
issues that have no practical significance. The Legislature might want to consider
legislation to minimize this waste of resources. Such legislation might take many
forms, but one simple approach comes readily to mind. The Legislature might
provide that if the trial court imposes a sentence of death or LWOP on any count,
it need not impose any other sentence, including enhancements. If the convictions
are ever set aside or modified to reduce the sentence to something less than
LWOP, the court can resentence the defendant on the remaining counts at that
time. The defendant could appeal the resentencing, with the appeal limited to
issues arising out of that resentencing. Even now, when a murder conviction or
special circumstance is reversed, resentencing is often necessary, so little would be
lost by such a procedure. In most cases, the court would never have to sentence on
the remaining counts, and the parties would never have to litigate meaningless
issues.
These are just thoughts. Better approaches might exist. In the meantime, I
concur in the court’s opinion, including rejecting defendants’ claims of noncapital
sentencing error.
CHIN, J.
2
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Cleveland and Veasley
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S024416
Date Filed: March 25, 2004
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: S. James Otero
__________________________________________________________________________________
Attorneys for Appellant:
Lynne S. Coffin, State Public Defender, under appointment by the Supreme Court, Donald J. Ayoob,
Assistant State Public Defender, and Stephanie Clarke, Deputy State Public Defender, for Defendant and
Appellant Dellano LeRoy Cleveland.
David Joseph Macher, under appointment by the Supreme Court; and Jill M. Bojarski for Defendant and
Appellant Chauncey Jamal Veasley.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Joseph P. Lee, Deputy Attorney General, for
Plaintiff and Respondent.
1
Counsel who argued in Supreme Court (not intended for publication with opinion):
Donald J. Ayoob
Assistant State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
Davd Joseph Macher
P.M.B. 298
40485-D Murrieta Hot Springs Road
Murrieta, CA 92563
(909) 677-7431
Joseph P. Lee
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2398
2
Opinion Information
| Date: | Docket Number: |
| Thu, 03/25/2004 | S024416 |
Parties
| 1 | The People (Respondent) Represented by Attorney General - Los Angeles Office Joseph P. Lee, Deputy Attorney General 300 South Spring Street, Suite 500 Los Angeles, CA |
| 2 | Cleveland, Dellano Leroy (Appellant) Represented by Office Of The State Public Defender-Sf Donald J. Ayoob / Douglas Ward, deputies 221 Main Street, 10th Floor San Francisco, CA |
| 3 | Veasley, Chauncey Jamal (Appellant) Represented by David Joseph Macher Attorney at Law 40485 Murrieta Hot Springs Rd., PMB 298 Murrieta, CA |
| Disposition | |
| Mar 25 2004 | Opinion: Affirmed |
| Dockets | |
| Dec 19 1991 | Judgment of death for appellant Dellano Leroy Cleveland. |
| Dec 26 1991 | Filed certified copy of Judgment of Death Rendered 12-19-91 for Dellano Leroy Cleveland. |
| Jan 24 1992 | Judgment of death for appellant Chauncey Jamal Veasley. |
| Jan 30 1992 | Filed certified copy of Judgment of Death Rendered 1-24-92 for appellant Chauncey Jamal Veasley. |
| Jul 31 1995 | Order appointing State Public Defender filed To represent Applt Cleveland on His A.A., Including Any Related Habeas Corpus Proceedings. |
| Jul 31 1995 | CAP CONFLICT EXISTS CAP HAS CONFLICT OF INTEREST AS TO APPELLANT CLEVELAND. |
| Aug 14 1995 | Counsel appointment order filed David J. Macher, Esq. Is appointed to represent Applt Veasley on His A.A., Including Any Related Habeas Proceedings. |
| Sep 11 1995 | Application for Extension of Time filed By Applt Veasley to request correction of Record. |
| Sep 14 1995 | Extension of Time application Granted To Applt Veasley To 11-17-95 To request Corr. of Record. |
| Sep 18 1995 | Application for Extension of Time filed By Applt Cleveland to request Corr. of Record. |
| Sep 21 1995 | Extension of Time application Granted To Applt Cleveland To 11-20-95 To request Corr. of Record. |
| Oct 25 1995 | Change of Address filed for: Atty David J. Macher. |
| Nov 15 1995 | Application for Extension of Time filed By Applt Veasley to request correction of Record. |
| Nov 16 1995 | Extension of Time application Granted To Applt Veasley To 1-16-96 To request Corr. of Record. |
| Nov 17 1995 | Application for Extension of Time filed By Applt Cleveland to request Corr. of Record. |
| Nov 21 1995 | Extension of Time application Granted To Applt Cleveland To 1-19-96 To request Corr. of Record. |
| Jan 10 1996 | Application for Extension of Time filed By Applt Veasley to request correction of Record. |
| Jan 18 1996 | Extension of Time application Granted To Applt Veasley To 3-18-96 To request correction of the Record. |
| Jan 19 1996 | Application for Extension of Time filed By Applt Cleveland to request Corr. of Record. |
| Jan 23 1996 | Extension of Time application Granted To Applt To 3-19-96 To request Corr. of Record. |
| Feb 20 1996 | Motion filed By Applt Veasley for appointment of Atty Neil Pedersen as Assoc. Counsel. |
| Mar 14 1996 | Order filed: Good cause appearing therefor, appellant Chauncey Jamal Veasley's motion for appointment of associate counsel, filed February 20, 1996, is hereby granted. Neil Pedersen is hereby appointed as associate counsel for appellant Chauncey Jamal Veasley. |
| Mar 15 1996 | Application for Extension of Time filed By Applt Veasley to request correction of the Record |
| Mar 19 1996 | Extension of Time application Granted To Applt Veasley To April 17,1996 To request Record correction. no further Extensions of time Are Contemplated. |
| Mar 21 1996 | Application for Extension of Time filed By Applt Cleveland to request Record correction |
| Mar 26 1996 | Extension of Time application Granted To Applt Cleveland To May 21,1996 To request correction of the Record |
| Apr 16 1996 | Received: Copy of Applt Veasley's request to correct, Augment and Settle the Record (70 Pp.) |
| Apr 24 1996 | Compensation awarded counsel Atty Macher for Applt Veasley |
| May 21 1996 | Application for Extension of Time filed By Applt Cleveland to request Corr. of Record. |
| May 24 1996 | Extension of Time application Granted To Applt Cleveland To 7-22-96 To request Corr. of Record. |
| Jul 22 1996 | Application for Extension of Time filed By Applt Cleveland to request Corr. of Record. |
| Jul 26 1996 | Extension of Time application Granted To Applt Cleveland To 9-20-96 To request Corr. of the Record. |
| Aug 28 1996 | Compensation awarded counsel |
| Sep 17 1996 | Application for Extension of Time filed By Applt Cleveland to request Corr. of Record. |
| Sep 19 1996 | Filed: Suppl Proof of Service of Applic. for Eot. |
| Sep 19 1996 | Extension of Time application Granted To Applt Cleveland To 11-19-96 To request Corr. of Record. no further Extensions of time Are Contemplated. |
| Nov 19 1996 | Application for Extension of Time filed By Applt Cleveland to request Corr. of Record. |
| Nov 21 1996 | Extension of Time application Granted To Applt Cleveland To 12-19-96 To request Corr. of Record. no further Extensions of time will be Granted. |
| Dec 20 1996 | Received letter from: State P.D., dated 12-19-96, Advising Cleveland's motion to correct & Complete Record Was filed this Date. |
| Dec 23 1996 | Received: Copy of Applt Cleveland's motion to correct & Complete the Record (31 Pp.) |
| May 7 1997 | Compensation awarded counsel Atty Macher for Applt Veasley |
| Jun 11 1997 | Compensation awarded counsel |
| Apr 15 1999 | Filed: Applic. to Relieve Neil Pedersen as Assoc. Counsel for Applt Veasley and for appointment of Jill Bojarski as Assoc. Counsel. |
| Apr 28 1999 | Order filed: Good cause appearing, the application of appointed associate counsel for permission to withdraw as attorney of record for appellant (Veasley), filed 4-15-99, is granted. The order appointing Neil Pedersen as associate counsel of record for appellant Chauncey Jamal Veasley, filed 3-14-96, is hereby vacated. David Joseph Macher shall remain as appointed lead counsel. Jill M. Bojarski is hereby appointed as associate counsel to represent appellant Chauncey Jamal Veasley for both the direct appeal and related state habeas corpus/executive clemency proceedings in the above automatic appeal now pending in this court. |
| Aug 2 1999 | Compensation awarded counsel Atty Macher |
| Aug 3 1999 | Change of Address filed for: Attorney David Macher |
| Oct 18 1999 | Compensation awarded counsel |
| Dec 1 1999 | Compensation awarded counsel Atty Macher |
| Jul 12 2000 | Counsel's status report received (confidential) from State P.D. |
| Jul 19 2000 | Counsel's status report received (confidential) atty David Macher. |
| Sep 7 2000 | Motion filed Marsden Motion (by applt Veasley) |
| Sep 18 2000 | Counsel's status report received (confidential) from atty Macher. |
| Oct 11 2000 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Oct 18 2000 | Order filed: Applt Chauncey Jamal Veasley's "Motion for Substitution of Counsel," filed 9/7/2000, is denied. |
| Nov 20 2000 | Counsel's status report received (confidential) from atty Macher. |
| Dec 21 2000 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Jan 10 2001 | Compensation awarded counsel Atty Macher |
| Jan 16 2001 | Counsel's status report received (confidential) from atty Macher (for applt Veasley). |
| Jan 19 2001 | Record on appeal filed C-24 (7,922 pages) and R-38 (4,996 pages) including material under seal; Clerk's Transcript includes 5,891 pages of Juror Questionnaires. |
| Jan 19 2001 | Appellant's opening brief letter sent, due: 2/28/2001 |
| Feb 21 2001 | Application for Extension of Time filed By applt CLEVELAND to file AOB. (1st request) |
| Feb 26 2001 | Extension of Time application Granted To 4/30/2001 to applt CLEVELAND to file AOB. |
| Feb 26 2001 | Application for Extension of Time filed By applt VEASLEY to file AOB. (1st request) |
| Feb 28 2001 | Compensation awarded counsel Atty Macher |
| Mar 2 2001 | Extension of Time application Granted To 3/30/2001 to file Applt VEASLEY'S AOB |
| Mar 8 2001 | Counsel's status report received (confidential) from SPD (for applt Cleveland). |
| Mar 14 2001 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Mar 30 2001 | Application for Extension of Time filed By applt. VEASLEY to file AOB. (2nd request) |
| Apr 6 2001 | Extension of Time application Granted To 5/29/2001 as to applt. VEASLEY to file AOB. |
| Apr 25 2001 | Application for Extension of Time filed By applt. CLEVELAND to file AOB. (2nd request) |
| Apr 27 2001 | Extension of Time application Granted To 6/29/2001 as to applt. CLEVELAND to file AOB. |
| May 3 2001 | Compensation awarded counsel Atty Macher |
| May 7 2001 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| May 21 2001 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| May 23 2001 | Application for Extension of Time filed By applt. VEASLEY to file AOB. (3rd request) |
| May 29 2001 | Extension of Time application Granted To 7/30/2001 as to applt. VEASLEY to file AOB. |
| Jun 13 2001 | Compensation awarded counsel Atty Macher |
| Jun 25 2001 | Counsel's status report received (confidential) by State P.D. for applt Cleveland. |
| Jun 25 2001 | Application for Extension of Time filed by applt CLEVELAND to file AOB. (3rd request) |
| Jul 10 2001 | Extension of Time application Granted To 8/28/2001 as to applt. CLEVELAND to file AOB. |
| Jul 18 2001 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Jul 30 2001 | Application for Extension of Time filed To file AOB as to applt. VEASLEY. (4th request) |
| Aug 1 2001 | Extension of Time application Granted To 9/28/2001 to applt. VEASLEY to file AOB. |
| Aug 21 2001 | Application for Extension of Time filed by applt. CLEVELAND to file AOB. (4th request) |
| Aug 22 2001 | Motion filed by applt. CLEVELAND to augment the record on appeal. |
| Aug 23 2001 | Extension of Time application Granted To 10/29/2001 to applt. CLEVELAND to file AOB. |
| Aug 24 2001 | Filed: Supplemental declaration of service of applt. CLEVELAND'S motion to augment the record. |
| Sep 10 2001 | Filed letter from: Resp. dated 9/6/2001 advising this court that the People do not oppose applt. CLEVELAND'S motion to augment the record. |
| Sep 18 2001 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Sep 24 2001 | Application for Extension of Time filed by applt. VEASLEY to file AOB. (5th request) |
| Sep 24 2001 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Sep 26 2001 | Extension of Time application Granted To 11/27/2001 to applt. VEASLEY to file AOB. No further extensions of time are contemplated. |
| Oct 10 2001 | Record augmentation granted Appellant Cleveland's unopposed "motion to augment the record on appeal," filed August 22, 2001, is granted. The clerk of this court is directed to file the letter dated September 24, 2001, from counsel for appellant Cleveland to this court and the accompanying certified copies of the documents to be made part of the record. The record shall then include those documents. |
| Oct 10 2001 | Filed: letter from applt, dated 9-24-2001, with accompanying certified copies of documents from Los Angeles Co. Superior Court. |
| Oct 22 2001 | Application for Extension of Time filed by applt. CLEVELAND to file AOB. (5th request) |
| Oct 26 2001 | Extension of Time application Granted To 12/28/2001 to applt. CLEVELAND to file AOB. |
| Nov 16 2001 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Nov 26 2001 | Extension of time granted To 1/28/2002 to applt. VEASLEY to file AOB. Counsel anticipates filing the brief by 2/28/2002. One further extension totaling 31 additional days will be granted. |
| Nov 29 2001 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Dec 7 2001 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Dec 21 2001 | Request for extension of time filed by applt. CLEVELAND to file AOB. (6th request) |
| Jan 3 2002 | Extension of time granted To 2/26/2002 to applt. CLEVELAND to file AOB. The court anticipates only one further extension totaling 60 addl. days will be granted. Counsel is to take all steps necessary to meet this schedule. |
| Jan 14 2002 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Jan 16 2002 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Jan 16 2002 | Request for extension of time filed By applt. VEASLEY to file A0B. (6th request) |
| Feb 4 2002 | Extension of time granted To 2/28/2002 to file AOB. Counsel anticipates filing applt.'s VEASLEY'S brief by 2/28/2002. No further extension is contemplated. |
| Feb 21 2002 | Request for extension of time filed By applt. CLEVELAND to file AOB. (7th request) |
| Feb 25 2002 | Extension of time granted To 4/29/2002 to applt. CLEVELAND to file AOB. The court anticipates that after that date, no further extensions will be granted. Counsel is to take all steps necessary to meet this schedule. |
| Feb 28 2002 | Request for extension of time filed By applt. VEASLEY to file AOB. (7th request) |
| Mar 4 2002 | Extension of time granted To 4/2/2002 to applt. VEASLEY to file AOB. Counsel anticipates filing the brief by 3/30/2002. No further extension will be granted. |
| Mar 14 2002 | Counsel's status report received (confidential) from State P.D. from applt Cleveland. |
| Mar 27 2002 | Appellant's opening brief filed applt. VEASLEY'S. (226 pp.) |
| Apr 4 2002 | Compensation awarded counsel Atty Macher |
| Apr 23 2002 | Request for extension of time filed By applt. CLEVELAND to file AOB. (8th request) |
| Apr 30 2002 | Extension of time granted To 6/28/2002 to applt. CLEVELAND to file AOB. Asst. State Public Defender Ayoob anticipates filing the brief by 6/28/2002. No further extension will be granted. |
| May 13 2002 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| May 16 2002 | Filed: Supplemental declaration of service of applt. CLEVELAND's application for extension of time to file AOB. |
| Jun 11 2002 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Jun 12 2002 | Compensation awarded counsel Atty Macher |
| Jun 21 2002 | Request for extension of time filed By applt. CLEVELAND to file AOB. (9th request) |
| Jun 26 2002 | Extension of time granted To 8/27/2002 to applt. CLEVELAND to file AOB. Asst. State Public Defender Ayoob anticipates filing the brief by 8/27/2002. No further extension will be granted. |
| Aug 2 2002 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Aug 20 2002 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Aug 27 2002 | Appellant's opening brief filed Appellant Cleveland's. (276 pp.) |
| Sep 20 2002 | Request for extension of time filed To file respondent's brief. [1st request] |
| Sep 25 2002 | Extension of time granted To 11/25/2002 to file respondent's brief. |
| Oct 4 2002 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Nov 7 2002 | Application to file over-length brief filed to file respondent's brief. (319 pp. respondent's brief submitted under separate cover) |
| Nov 13 2002 | Order filed Respondent's applicaton for leave to file respondent's brief in excess of 280 pages is granted. |
| Nov 13 2002 | Respondent's brief filed (319 pp.) |
| Nov 26 2002 | Request for extension of time filed by appellant CLEVELAND to file reply brief. (1st request) |
| Dec 2 2002 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Dec 2 2002 | Request for extension of time filed by appellant VEASLEY to file reply brief. (1st request) |
| Dec 5 2002 | Extension of time granted To 2/3/2003 to appellant VEASLEY to file appellant's reply brief. |
| Dec 6 2002 | Extension of time granted To 2/3/2003 to appellant CLEVELAND to file reply brief. The court anticipates that after that date, only two further extensions totaling about 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. |
| Dec 11 2002 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Jan 27 2003 | Request for extension of time filed by appellant CLEVELAND to file appellant's reply brief. (2nd request) |
| Jan 30 2003 | Extension of time granted to applt Cleveland to 4-4-2003 to file reply 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. |
| Jan 31 2003 | Request for extension of time filed by applt Veasley to file reply brief. (2nd request) |
| Jan 31 2003 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Feb 6 2003 | Extension of time granted to 4/4/2003 to appellant VEASLEY to file appellant's reply brief. After that date, only one further extension totaling about 60 additioal days will be granted. Extension is granted based upon counsel David Joseph Macher's representation that he anticipates filing that brief by 6/3/2003. |
| Feb 13 2003 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Apr 1 2003 | Request for extension of time filed by appellant VEASLEY to file appellant's reply brief. (3rd request) |
| Apr 1 2003 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Apr 1 2003 | Request for extension of time filed by appellant CLEVELAND to file appellant's reply brief. (3rd request) |
| Apr 8 2003 | Extension of time granted to 6/3/2003 to file appellant CLEVELAND'S reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Assistant State Public Defender Donald J. Ayoob's representation that he anticiaptes filing that brief by 9/1/2003. |
| Apr 8 2003 | Extension of time granted to 6/3/2003 to file appellant VEASLEY'S reply brief. Extension is granted based upon counsel David Joseph Macher's representation that he anticipates filing that brief by 6/3/2003. After that date, no further extension will be granted. |
| Apr 23 2003 | Compensation awarded counsel Atty Macher |
| Apr 28 2003 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| May 14 2003 | Compensation awarded counsel Atty Macher |
| May 29 2003 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| May 29 2003 | Request for extension of time filed by appellant VEASLEY to file appellant's reply brief. (4th request) |
| Jun 2 2003 | Request for extension of time filed by appellant CLEVELAND to file appellant's reply brief. (4th request) |
| Jun 2 2003 | Extension of time granted to 7/3/2003 to appellant VEASLEY to file appellant's reply brief. Extension is granted based upon counsel David Joseph Macher's representation that he anticipates filing that brief by 7/3/2003. After that date, no further extension will be granted. |
| Jun 5 2003 | Extension of time granted to 8/4/2003 to appellant CLEVELAND to file appellant's reply brief. After that date, only one further extension totlaing 30 additional days will be granted. Extension is granted based upon Assistant State Public Defender Donald J. Ayoob's represenation that he anticipates filing that brief by 9/3/2003. |
| Jun 24 2003 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Jun 26 2003 | Appellant's reply brief filed appellant VEASLEY'S brief. (117 pp.) |
| Jun 27 2003 | Change of Address filed for: attorney Jill M. Bojarski associate appeal and habeas counsel for appellant VEASLEY. |
| Jul 30 2003 | Compensation awarded counsel Atty Macher |
| Aug 5 2003 | Request for extension of time filed by appellant CLEVELAND to file reply brief. (5th request) |
| Aug 7 2003 | Extension of time granted to 9/10/2003 to file appellant CLEVELAND'S reply brief. Extension is granted based upon Assistant State Public Defender Donald J. Ayoob's representation that he anticipates filing that brief by 9/10/2003. After that date, no further extension will be granted. |
| Aug 25 2003 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Sep 8 2003 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Sep 10 2003 | Application to file over-length brief filed by appellant CLEVELAND to file reply brief. (150 pp. brief submitted under separate cover) |
| Sep 12 2003 | Order filed Appellant CLEVELAND'S "Motion to File Over Length Brief," is granted. |
| Sep 12 2003 | Appellant's reply brief filed by appellant CLEVELAND. (150 pp.) |
| Sep 25 2003 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as the December calendar to be held in Los Angeles the week of Dec. 1, 2003. Any request for additional time (to argue), notification for two counsel, or advisement of "focus issues" shall be made no later than 10 days after the case has been set for oral argument. |
| Oct 6 2003 | Filed letter from: Appellant Cleveland's counsel, dated 10/3/2003, requesting oral argument be scheduled in April, 2004 or in the alternative no earilier than February 2004. |
| Oct 9 2003 | Filed letter from: Appellant Veasley's counsel, dated 10/6/2003, requesting that oral argument be scheduled for the Frebruary, March, or April 2004 calendar. |
| Oct 10 2003 | Filed letter from: Appellant Veasley's counsel, dated 10/8/2003, requesting that oral argument be scheduled no earlier than April 2004. |
| Oct 14 2003 | Application filed to: relieve Jill M. Bojarski as associate counsel for appellant Chauncey Jamal Veasley. |
| Oct 27 2003 | Letter sent to: Counsel advising that oral argument will likely be set for the February 2004 calendar. |
| Oct 29 2003 | Withdrawal of counsel allowed by order Good cause appearing, the application of appointed associate counsel for permission to withdraw as attorney of record for appellant Chauncey Jamal Veasley, filed October 14, 2003, is granted. The order appointing Jill M. Bojarski as associate counsel of record for appellant Chauncey Jamal Veasley, filed April 28, is hereby vacated. David J. Macher shall remain as counsel of record for appellant Chauncey Jamal Veasley on his direct appeal and related state habeas corpus/executive clemency proceedings. |
| Nov 12 2003 | Counsel's status report received (confidential) from State P.D. for applt Cleveland. |
| Nov 17 2003 | Counsel's status report received (confidential) from atty Macher for applt Veasley. |
| Nov 19 2003 | Compensation awarded counsel Atty Macher |
| Dec 10 2003 | Compensation awarded counsel Atty Macher |
| Dec 30 2003 | Related habeas corpus petition filed (concurrent) for VEASLEY, No. S121562. |
| Jan 14 2004 | Case ordered on calendar Tuesday, February 10, 2004 @ 2pm (Sacramento) |
| Jan 21 2004 | Compensation awarded counsel Atty Macher |
| Jan 26 2004 | Filed: oral argument focus issue letter, dated 1-23-2004, from applt Veasley. |
| Jan 26 2004 | Filed letter from: Respondent's counsel dated, 1/22/2004, re focus issues for oral argument. |
| Jan 29 2004 | Filed: oral argument focus issue letter, dated 1-28-2004, from applt Cleveland. |
| Feb 4 2004 | Compensation awarded counsel Atty Macher |
| Feb 10 2004 | Cause argued and submitted |
| Mar 8 2004 | Related habeas corpus petition filed (concurrent) for CLEVELAND, case no. S123149. |
| Mar 25 2004 | Opinion filed: Judgment affirmed in full Judgments affirmed. Majority Opinion by Chin, J. -- joined by George C.J., Kennard, Werdegar, Baxter, Brown & Moreno JJ. Concurring Opinion by Chin, J. |
| Apr 8 2004 | Rehearing petition filed by appellant VEASLEY. (4,328 words; 19 pp.) |
| Apr 9 2004 | Rehearing petition filed and request for modification, by appellant CLEVELAND. (494 words; 2 pp.) |
| Apr 13 2004 | Time extended to consider modification or rehearing to 6/23/2004, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Apr 21 2004 | Compensation awarded counsel Atty Macher |
| Apr 28 2004 | Compensation awarded counsel Atty Macher |
| Jun 9 2004 | Rehearing denied Request for modification DENIED. Petitions for rehearing DENIED. |
| Jun 9 2004 | Remittitur issued (AA) |
| Jun 21 2004 | Received: Acknowledgment of receipt of remittitur. |
| Jun 22 2004 | Order filed (150 day statement) |
| Sep 3 2004 | Received: Copy of appellant's cert petition. (16 pp.) |
| Oct 4 2004 | Received: letter from U.S.S.C., dated 9/30/2004, advising appellant VEASLEY'S cert petition filed on 9/1/2004 as No. 04-6552. |
| Oct 12 2004 | Compensation awarded counsel Atty Macher |
| Oct 20 2004 | Compensation awarded counsel Atty Macher |
| Jan 10 2005 | Certiorari denied by U.S. Supreme Court appellant Veasley's certiorari petition was denied. |
| May 31 2006 | Related habeas corpus petition filed (post-judgment) by appellant Cleveland - no. S143814. |
| Briefs | |
| Mar 27 2002 | Appellant's opening brief filed |
| Aug 27 2002 | Appellant's opening brief filed |
| Nov 13 2002 | Respondent's brief filed |
| Jun 26 2003 | Appellant's reply brief filed |
| Sep 12 2003 | Appellant's reply brief filed |
