Supreme Court of California Justia
Docket No. S052808
People v. Gamache

Filed 3/18/10






IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S052808

v.

RICHARD CAMERON GAMACHE,

San Bernardino County

Super. Ct. No. FBA 4939

Defendant and Appellant.



A jury convicted defendant Richard Cameron Gamache of first degree

murder with robbery, burglary, and kidnapping special circumstances, as well as

various lesser crimes, for the 1992 abduction and killing of Lee Williams. (Pen.

Code, §§ 187, 189, 190.2, former subd. (a)(i), (ii) & (vii), now subd. (a)(17)(A),

(B) & (G).)1 It thereafter returned a death verdict. On automatic appeal, we

affirm the judgment as to Gamache‟s death sentence, but reverse in part to allow

the trial court to correct error in Gamache‟s determinate sentences for his

noncapital crimes.

FACTUAL AND PROCEDURAL BACKGROUND

In November 1992, Richard Gamache, then 18 years old, was discharged

from the Army. He returned to San Bernardino County, where his estranged wife,


1

All further unlabeled statutory references are to the Penal Code.


Tammy, lived. After he reconciled with his wife, they moved in with a minor

friend, Thomas P., in Yermo while planning what to do next. Tammy Gamache

had studied animal husbandry and loved horses, so the Gamaches decided to

acquire horses and go to Washington to camp in the wilderness. Tammy Gamache

had once lived next door to a Yermo couple, Lee and Peggy Williams, who owned

horses; she told Richard Gamache about them.

GUILT PHASE TRIAL

Prosecution Evidence

Around December 1, 1992, Tammy Gamache talked with a friend, Melanie

Foote, and Foote‟s grandparents about the Gamaches‟ plans to move to

Washington with some horses. She indicated they were planning to buy horses

soon and asked whether they could keep them temporarily at Foote‟s

grandparents‟ ranch. Foote‟s grandmother agreed.

On the afternoon of December 3, Richard Gamache, Andre Ramnanan, and

an acquaintance, Donald Gray, went target shooting in the desert outside Yermo.

Gray testified he overheard Gamache and Ramnanan discussing plans to steal

horses, a horse trailer, and a mobilehome and take them to Washington or Oregon

to live off the land. Gamache and Ramnanan would tie the victims up and shoot

them if they gave them any trouble.

Around 7:30 p.m. on December 3, the Gamaches borrowed the car of

Randy Vojkufka, who was also staying at Thomas P.‟s residence. They drove to

the Foote ranch and confirmed arrangements to drop off horses and a horse trailer

there later that evening, and to pick them up again in two days. They left the

Foote ranch around 10:30 p.m.

After 11:00 p.m., Peggy Williams testified, she was awoken by a knock at

the door of her home. She woke her husband, Lee Williams, and he answered the

2

door. She got up a few minutes later and went to the kitchen. Tammy Gamache

was using the phone; Thomas P. and Andre Ramnanan were standing with Lee.

Richard Gamache came up behind Peggy, put his arm around her neck, and held a

gun to her head. Ramnanan held a gun to Lee‟s head. Lee and Peggy Williams

were made to lie facedown; Richard Gamache ordered Lee to cooperate or he

would kill Peggy. Someone tied Peggy‟s hands behind her back with a shoelace.

Tammy Gamache asked where the horse halters and truck keys were and

left. She later returned, reported she had hooked up the horse trailer, and asked

Lee Williams about the horses‟ care and the location of their blankets and saddles.

Meanwhile, Richard Gamache and Ramnanan plundered the house, taking a

television, videocassette recorder, camcorder, food dehydrator and vacuum sealer,

jewelry, approximately $4,500 in cash, numerous guns, Lee‟s wallet, Peggy‟s

watch, and the couple‟s wedding rings.2 Throughout this process, they were

laughing and having a good time. Richard Gamache asked for the pink slips

(titles) to the Williamses‟ vehicles; Peggy Williams replied they did not yet have

them because they were still making payments.

Richard Gamache and Ramnanan announced it was time to go. Gamache

asked Lee Williams if anyone would miss them and how often people came to the

house. Lee and Peggy Williams were taken barefoot, in their bathrobes, out to

their motor home. Peggy asked if she could get shoes; Richard Gamache told her

she would not need them. Gamache and the others turned out the lights and

locked the doors.

In the motor home, Richard Gamache and Ramnanan bound and gagged the

Williamses. Gamache drove; Ramnanan guarded them with a gun. Tammy

2

Richard Gamache removed Peggy‟s wedding ring and told Tammy

Gamache it was a late wedding present; Tammy laughed.

3

Gamache drove the Williamses‟ truck and horse trailer. When they arrived at

Thomas P.‟s house, where Thomas P. was dropped off, they ungagged and untied

Peggy Williams. The Gamaches dictated bills of sale for the Williamses‟ motor

home, truck, trailer, and car; Peggy wrote them out and signed them. Lee

Williams was also forced to sign them.

Richard Gamache resumed driving the motor home. After some time he

stopped, and he and Ramnanan walked the Williamses from the roadside a short

distance into the desert. Gamache made them lie facedown on the ground. He

said, “Thank you and have a nice day” and shot Lee Williams in the head. He

then shot Peggy Williams in the head. Gamache and Ramnanan questioned

whether she was dead, shined a light in her eyes, and checked her pulse; Gamache

then shot her again. Gamache and Ramnanan walked off and drove away. Peggy

waited to confirm they were gone, unsuccessfully tried to get a response from Lee,

and then walked toward the lights of a truck stop in the distance and called 911

when she got there.

When the police arrived, Peggy Williams described her attackers and

provided license plate numbers for the stolen vehicles. Within an hour, the police

located the motor home in a café parking lot nearby. They broke in and found it

filled with stolen property from the Williamses‟ home. They then waited to see if

anyone would return.

Shortly after 5:00 a.m., now on the morning of December 4, Richard and

Tammy Gamache returned to the motor home in the Williamses‟ truck, having

dropped off the horses and horse gear at the Foote ranch. They were arrested. In

the truck, police found the murder weapon (a .32-caliber handgun), other weapons,

a bag of cash, and the dictated bills of sale for the Williamses‟ vehicles. A search

of Thomas P.‟s residence the same morning turned up more weapons and jewelry,

as well as bloody clothing. Tammy Gamache agreed to help the police find Lee

4

Williams and took them to his body. She then took the police to the Foote ranch

where they recovered the horses, horse trailer, horse equipment, and more guns.

Ramnanan was arrested late on the evening of December 4. Peggy

Williams‟s car was found nearby.

Defense Evidence

Richard Gamache presented no witnesses, relying instead on cross-

examination. In closing argument, he conceded he was guilty of murder,

attempted murder, robbery, and burglary. He argued, however, that the jury

should not convict him of kidnapping for robbery, as the robberies were already

completed before the kidnappings, and that the jury should not find any special

circumstances true, because the kidnappings, robberies, and burglary were all

completed before he decided to shoot the Williamses.

PENALTY PHASE TRIAL

Prosecution Evidence

The prosecution elaborated on the circumstances of the crime with further

testimony from Peggy Williams, a 40-minute tape of Richard and Tammy

Gamache and Andre Ramnanan jointly confessing on December 7 to the details of

the crimes, and two police officers testifying to statements Richard Gamache had

made about the crimes while in police custody.

The prosecution presented victim impact evidence from Peggy Williams.

She described Lee Williams and their happy marriage, and how when he was shot

and died in her arms she lost her “world.” She described the flashbacks, anxiety,

panic, and depression she had experienced since the shootings, and how she

eventually left her job and her home. Peggy Williams‟s psychotherapist, Dr.

Jennifer Reese, testified Williams had made little improvement in the years since

the shootings and likely would never recover completely.

5

The prosecution introduced evidence of two other uncharged crimes by

Richard Gamache in the month before the murder: an incident in which he had

tied up a roommate, accused him of saying Gamache had not paid his rent, and

then waterboarded him; and an incident in which he and Ramnanan had taken over

a pizzeria at closing, robbed the employees, and emptied the cash register. During

the robbery, Gamache held a knife to the throat of one employee and, after taking

the wallet of another employee and noting his name and address, threatened to

hunt him down and kill him if he went to the police.

The prosecution also presented evidence that Gamache had plotted an

escape from prison while awaiting trial.

Defense Evidence

Richard Gamache called his mother, a psychiatrist who had examined his

mother, and several psychiatrists who had examined him. Testimony about his

childhood showed his mother had left his father when Gamache was in utero

because the father‟s beatings had threatened a miscarriage. His mother had had

Gamache when she was 17 years old. She had been abused by a series of other

boyfriends and husbands in addition to Gamache‟s father, had been raped, had

used drugs and become a prostitute, and had repeatedly tried to kill herself.

Gamache and his mother moved frequently. He missed a year of school (fourth

grade) to stay home and take care of his mother, who had had ovarian cancer and a

hysterectomy. By age 10 or 11, Gamache was left alone at home to fend for

himself several days a week. He eventually dropped out of high school, got his

GED, and joined the Army, but was discharged in November 1992 for

psychological reasons. He experienced feelings of anger and hopelessness as a

result.

6

Gamache had a long history of dreams, fantasies, and delusions about

engaging in violent behavior. Dr. Michael Kania testified Gamache had a

borderline personality disorder, also known as a cycloid personality disorder or

unstable personality disorder. He was highly impulsive and subject to rapid mood

swings, with a great deal of underlying anger. Dr. Kania likened Gamache to a

stick of dynamite and concluded he had a very serious mental disorder.

Dr. Lorna Forbes testified Gamache was legally insane at the time he shot

the Williamses. She also concluded he was schizophrenic. Though he admitted

planning to kill the Williamses from the beginning, this was the product of a

delusional mind. Gamache was probably untreatable.

PROCEDURAL HISTORY

Richard Gamache, Tammy Gamache, and Andre Ramnanan were each

charged with first degree murder with three special circumstances, murder during

the commission of a robbery, murder during the commission of a burglary, and

murder during the commission of a kidnapping. (§§ 187, 189, 190.2, former subd.

(a)(i), (ii) & (vii), now subd. (a)(17)(A), (B) & (G).) They were also charged with

attempted murder (§§ 187, 664), two counts of residential robbery (§ 211),

residential burglary (§ 459), two counts of kidnapping for robbery (§ 209, subd.

(b)), and firearm use enhancements (§ 12022.5, subd. (a)). They were tried

jointly. A jury convicted each defendant of first degree murder and found all the

special circumstances true. It also convicted each defendant of all the lesser

offenses, found the firearm use enhancements true for Richard Gamache and

Andre Ramnanan, and found them not true for Tammy Gamache.

At the penalty phase, the jury returned a verdict of death for Richard

Gamache, a verdict of life for Andre Ramnanan, and could not reach a verdict for

Tammy Gamache. The prosecution abandoned further attempts to seek the death

7

penalty against Tammy Gamache, who was sentenced to life in prison without the

possibility of parole.

DISCUSSION

I. GUILT PHASE CLAIMS

A. Denial of Prosecutorial Recusal Motion (§ 1424)

Before trial, Richard Gamache moved to recuse the entire San Bernardino

County District Attorney‟s Office. (§ 1424.) He argued the district attorney‟s

office had a conflict because the surviving victim of the crimes, Peggy Williams,

had been employed in the district attorney‟s office as a typist for 10 years. The

trial court held a series of evidentiary hearings and concluded Gamache had failed

to establish a conflict warranting recusal. We conclude the trial court did not

abuse its discretion.

We recently reiterated the principles governing this claim. “Section 1424

sets out the standard governing motions to recuse a prosecutor: such a motion

„may not be granted unless the evidence shows that a conflict of interest exists that

would render it unlikely that the defendant would receive a fair trial.‟ (Id., subd.

(a)(1).) The statute „articulates a two-part test: “(i) is there a conflict of interest?;

and (ii) is the conflict so severe as to disqualify the district attorney from

acting?” ‟ ” (Haraguchi v. Superior Court (2008) 43 Cal.4th 706, 711.) Where, as

here, a defendant seeks to recuse not just an individual prosecutor but also an

entire prosecuting office, he must make an “especially persuasive” showing.

(People v. Hamilton (1988) 46 Cal.3d 123, 139.) We review the trial court‟s

decision to deny a recusal motion, even in a capital case such as this one, only for

an abuse of discretion. (Hollywood v. Superior Court (2008) 43 Cal.4th 721, 728-

729.) Accordingly, we must determine whether the trial court‟s findings were

supported by substantial evidence and whether, in turn, those findings support the

decision to deny recusal. (People v. Vasquez (2006) 39 Cal.4th 47, 56.)

8

As to the first prong of section 1424, we agree with Gamache that the

prosecution had a conflict; that is, there was “a reasonable possibility that [the

prosecution‟s] impartial exercise of discretion might be affected . . . .”

(Haraguchi v. Superior Court, supra, 43 Cal.4th at pp. 717-718, fn. 13; see also

People v. Conner (1983) 34 Cal.3d 141, 148 [A conflict exists “whenever the

circumstances of a case evidence a reasonable possibility that the [district

attorney‟s] office may not exercise its discretionary function in an evenhanded

manner.”].) Peggy Williams was employed by the San Bernardino County District

Attorney‟s Office as a transcriber/typist. She had worked for the district

attorney‟s office for 10 years at the time of the crimes. She was a victim in the

case and its most important witness, and remained deeply emotionally affected by

these crimes. Moreover, the murder victim, Lee Williams, was her husband and

thus related to a district attorney‟s office employee.

We have recognized this situation as a paradigmatic conflict. In People v.

Superior Court (Greer) (1977) 19 Cal.3d 255, we considered a special

circumstance murder case in which the victim‟s mother was a discovery clerk for

the district attorney‟s office charged with prosecuting the case. The victim‟s

mother‟s grief was evident to her coworkers; as well, she stood to be a material

witness for the prosecution. (Id. at p. 259.) We concluded that where “[t]he

victim of the homicide was the son of a member of the district attorney‟s staff who

worked in the very office in which the prosecution was being prepared” (id. at

p. 270), it was not an abuse of discretion to find a conflict (id. at p. 269).

Similarly, in People v. Conner, supra, 34 Cal.3d at page 148, we recognized that

where a deputy district attorney was a material witness to a shooting and himself

potentially a victim, having possibly been shot at, these circumstances could pose

a conflict for the district attorney‟s office. As well, in People v. Vasquez, supra,

39 Cal.4th at pages 57-58, we recognized that the fact a district attorney‟s office

9

employed both the defendant‟s mother and his stepfather could give rise to a

conflict. (See also Lewis v. Superior Court (1997) 53 Cal.App.4th 1277, 1283-

1284 [conflict arising from the fact that every district attorney‟s office employee

was necessarily a victim of the charged crimes].) Peggy Williams‟s roles as

employee, victim, relative of a second victim, and witness created at least the

possibility the San Bernardino County District Attorney‟s Office might be

influenced in its discretionary decisionmaking.

However, the possibility that a prosecutor might be influenced does not

alone establish the requisite likelihood or probability that a defendant will be

treated unfairly. The trial court here conducted a two-day hearing. Based on all

the evidence adduced, it concluded Gamache and his codefendants had not shown

a conflict rising to a level that would require recusal. Having reviewed that

evidence, we conclude the trial court did not abuse its discretion because

substantial evidence fully supports that conclusion.

The San Bernardino County District Attorney‟s Office is large, with 500

employees and 122 deputy district attorneys. Because of San Bernardino County‟s

huge geographic spread,3 the district attorney‟s office is divided into three

administratively and operationally separate divisions. The murder occurred in the

area covered by the Desert Division, where Peggy Williams worked, and was

initially handled by prosecutors from that office. On December 7, 1992, Gamache

was charged with first degree murder. On December 8, an amended complaint

was filed adding special circumstance allegations. After the holidays, by

January 7, 1993, the case was reassigned from Barstow in the Desert Division to


3

We may judicially notice, as did the trial court, that San Bernardino County

is the largest county in the continental United States. (Evid. Code, §§ 452, subd.
(h), 459, subd. (a).)

10

San Bernardino in the Central Division, 70 miles away, and all further proceedings

were handled by the Central Division.

We consider first whether the decision to charge Gamache with special

circumstances and to seek the death penalty was likely to have been infected by

the conflict. The record supports the trial court‟s conclusion that it was not, as the

decision maker had no personal relationship with Peggy Williams and based his

decision on input from others with no connection to Peggy Williams.

According to witnesses, District Attorney Dennis Kottmeier made the

decision to retain the case as a special circumstances case and to seek the death

penalty following a February 23, 1993, meeting with his chief deputies and the

assigned prosecutor. Every witness testified that the decision to file special

circumstances and seek death was Kottmeier‟s, and Kottmeier‟s alone. Kottmeier

barely knew Peggy Williams. He had not hired her, had never had social contact

with her, did not know her by name, and would have recognized her face only in

context if he had seen her while visiting the Barstow office where she worked; he

would not have recognized her if he had run into her on the street. He did not

know Lee Williams at all. Kottmeier testified repeatedly that Peggy Williams‟s

status as an employee of the district attorney‟s office played no role in his decision

to seek death for Gamache.

The assigned prosecutor, Raymond Haight, prepared the initial

recommendation to Kottmeier that the prosecution should seek the death penalty.

He did not know Peggy Williams, and her employment status played no role in his

recommendation.

The other attorneys who played advisory roles and consulted with

Kottmeier on the decision to seek the death penalty testified similarly. Chief

Deputies Richard Maxwell, James Hackleman, and Michael Kewin did not know

Peggy or Lee Williams at all. Peggy Williams‟s status as an employee played no

11

role in their discussions with Kottmeier about the case and in the decision to seek

death. Notably, the one chief deputy who did know Peggy Williams, Dennis

Christy,4 immediately recognized his participation in the case could create a

recusal problem, concluded he should have no role in any discretionary decisions,

and took no part in the discussion during the February 1993 staff meeting at which

Kottmeier decided to seek death. The record here thus stands in sharp contrast to

People v. Vasquez, supra, 39 Cal.4th at pages 56-58, where uncontradicted

evidence established that the defendant‟s relationship to employees of the district

attorney‟s office played a role in the handling of the case and where, accordingly,

we found recusal mandated.

Gamache argues it was error not to disregard this testimony because

Kottmeier visited Peggy Williams in the hospital once, on the day she was shot,

and later attended Lee Williams‟s funeral and offered Peggy Williams a word or

two of condolence. Gamache also points out that Kewin, the chief deputy in

charge of administrative services, spoke to the office‟s victim witness personnel

about providing services to Peggy Williams. These actions demonstrate Kottmeier

and Kewin were human and humane; they are not of the sort that would

demonstrate Kottmeier inevitably must have been subconsciously influenced by

Peggy Williams‟s employment status in deciding whether to seek the death

penalty for Gamache. The trial court heard Kottmeier‟s testimony, and that of

each of his deputies, and found the disavowals of any influence credible. It was

entitled to do so.

Further, Gamache argues that Christy, the chief deputy who knew Peggy

Williams well, critically affected the decision to seek the death penalty. The

4

Christy was the chief deputy supervising the Desert Division, where Peggy

Williams worked.

12

record does not support his argument. Gamache and his codefendants were

arrested on Friday, December 4, 1992, and Eric Nakata, the deputy district

attorney initially responsible for the case, filed a felony complaint on Monday,

December 7. Sometime in these first few days, Christy mentioned to Kottmeier a

previous possible death case in which S. Donald Ames, Gamache‟s counsel, had

created procedural difficulties by having his client plead guilty at arraignment,

before any special circumstances had been added. Kottmeier directed Christy to

avoid this possibility by having special circumstances filed immediately, and an

amended complaint charging special circumstances was filed on December 8.

Notably, however, Kottmeier and Christy both testified that this early

addition of special circumstances was purely procedural, to preserve the status quo

and the option of seeking death. Kottmeier reserved judgment until more facts

were known and did not decide to pursue the case as a special circumstance

murder and to seek the death penalty until February 1993, after the preliminary

hearing. Christy and Kottmeier testified, without contradiction, that Christy had

played no role in any of the subsequent substantive discussions that led to

Kottmeier‟s ultimate decision.

There is likewise evidence to support the trial court‟s conclusion that Peggy

Williams‟s employment by the district attorney‟s office would not affect the

subsequent conduct of trial. As noted, the San Bernardino County District

Attorney‟s Office is unusually large and consequently is divided into

administratively and operationally separate divisions. There is little to no

employee mixing between these divisions. Within approximately one month, the

case had been reassigned from the Desert Division in Barstow, where Peggy

Williams worked, to the Central Division in San Bernardino, an office 75 miles

away. Prosecutor Raymond Haight had never worked in Barstow and had never

met Peggy Williams. Indeed, he was part of a career criminal prosecution group

13

that was segregated on its own floor and had its own staff, even apart from the rest

of the San Bernardino office. District Attorney Kottmeier established an ethical

screen so no Desert Division employees would have any role in the case, and no

evidence was advanced that would suggest such screens had not been or could not

be effective. The record thus supports the trial court‟s conclusion that, because of

the prompt steps taken to screen off prosecution of this case from those employees

who might have any connection to Peggy Williams, there was no likelihood the

conflict would lead to unfair treatment of Gamache at trial.

The size of the office and the ability of the San Bernardino County District

Attorney‟s Office to set up effective ethical screens distinguish this case from

those on which Gamache relies. (See People v. Vasquez, supra, 39 Cal.4th at

p. 57 [emphasizing the significance of the size of a prosecutor‟s office in deciding

whether recusal of the entire office is necessary]; In re Charlisse C. (2008) 45

Cal.4th 145, 163 [noting ethical screens may obviate the need to recuse an entire

government law office]; City and County of San Francisco v. Cobra Solutions,

Inc. (2006) 38 Cal.4th 839, 853 [same].) In People v. Superior Court (Greer),

supra, 19 Cal.3d at page 270, we emphasized that the victim‟s mother “worked in

the very office in which the prosecution was being prepared.” In People v.

Conner, supra, 34 Cal.3d at pages 148-149, we found it critical that the felony

division of the district attorney‟s office consisted of only 25 attorneys; one of the

25 was a victim and a witness, and his experiences had been discussed pervasively

throughout the office. And in People v. Choi (2000) 80 Cal.App.4th 476, 483,

recusal was appropriate because no effective ethical wall was in place; though the

district attorney‟s office had in theory set up such a wall, in practice the conflicted

district attorney continued to communicate with others in the office about the

14

case.5 In light of the contrasting facts here, the trial court did not abuse its

discretion when it declined to order recusal.

Gamache also argues that the trial court deprived him of his federal due

process rights by denying recusal. (U.S. Const., 14th Amend.)6 However, we

have explained that section 1424‟s recusal standards are prophylactic in nature and

“serve[] to prevent potential constitutional [due process] violations from

occurring.” (People v. Vasquez, supra, 39 Cal.4th at p. 59.) If recusal was

properly denied under section 1424, ipso facto no due process violation occurred.

B. Imposition of Security Belt and Shackles

Gamache contends the trial court erred by requiring him to wear leg

shackles and an electronic security belt during trial, in violation of his rights to a

fair and reliable capital trial. (U.S. Const., 5th, 6th, 8th & 14th Amends.) We find

no abuse of discretion.


5

Significantly as well, in each of these cases the trial court ordered recusal,

while here it did not. (See People v. Conner, supra, 34 Cal.3d at p. 149; People v.
Superior Court
(Greer), supra, 19 Cal.3d at p. 269; People v. Choi, supra, 80
Cal.App.4th at p. 483.) Given the deferential standard of review applicable to
rulings on recusal motions, in many cases the record may contain sufficient
evidence to support either a grant or a denial, and an appellate court may be
precluded from disturbing either ruling.

6

With this and virtually every one of his appellate claims, Gamache has

added a constitutional gloss, asserting that state law error also amounted to a
violation of federal, or state and federal, constitutional rights. In many instances
these constitutional grounds were not identified in the trial court. Except as noted,
however, we will address them on the merits because these claims involved legal
standards no different from the ones the trial court was already called upon to
apply. (People v. Wallace (2008) 44 Cal.4th 1032, 1050, fn. 4; People v. Partida
(2005) 37 Cal.4th 428, 435-437.) To the extent the constitutional gloss involves
no different standards, no separate discussion is required, and we will provide
none. (Wallace, at p. 1050, fn. 4; People v. Boyer (2006) 38 Cal.4th 412, 441,
fn. 17.)

15

“ „[A] defendant cannot be subjected to physical restraints of any kind in

the courtroom while in the jury‟s presence, unless there is a showing of a manifest

need for such restraints.‟ ” (People v. Wallace, supra, 44 Cal.4th at p. 1050.) The

Fifth and Fourteenth Amendments to the federal Constitution bar the use of visible

restraints “unless the trial court has found that the restraints are justified by a state

interest specific to the particular trial.” (People v. Stevens (2009) 47 Cal.4th 625,

633; see also Deck v. Missouri (2005) 544 U.S. 622, 629.)

In deciding whether restraints are justified, the trial court may “take into

account the factors that courts have traditionally relied on in gauging potential

security problems and the risk of escape at trial.” (Deck v. Missouri, supra, 544

U.S. at p. 629.) These factors include evidence establishing that a defendant poses

a safety risk, a flight risk, or is likely to disrupt the proceedings or otherwise

engage in nonconforming behavior. (Id. at pp. 628-629, 633; People v. Stevens,

supra, 47 Cal.4th at p. 633; People v. Seaton (2001) 26 Cal.4th 598, 651; People v.

Duran (1976) 16 Cal.3d 282, 291.) If the record establishes restraints are

necessary, a trial court should select the least obtrusive method that will be

effective under the circumstances. (Duran, at p. 291.) These principles apply

fully to the decision whether to require a defendant to wear an electronic security

belt, also known as a stun belt, notwithstanding that such a belt may not be visible

to the jury. (People v. Mar (2002) 28 Cal.4th 1201, 1219.)7


7

The security belt at issue here is the same one we described in People v.

Mar, supra, 28 Cal.4th at pages 1214-1215, a remote electronically activated
control technology (REACT) belt. The belt is controlled remotely; a security
deputy assigned to monitor a defendant can send an audible warning beep to alert
the defendant to stop any offending conduct. If the defendant fails to do so, the
assigned deputy can deliver a 50,000-volt shock. During ordinary use, the belts
should not be visible to the jury once covered with loose clothing.


(footnote continued on next page)

16

Because a “trial court has broad power to maintain courtroom security and

orderly proceedings” (People v. Hayes (1999) 21 Cal.4th 1211, 1269), we review

decisions regarding the physical restraint of a defendant for abuse of discretion.

(Ibid.; People v. Wallace, supra, 44 Cal.4th at p. 1050; People v. Ayala (2000) 23

Cal.4th 225, 253; People v. Duran, supra, 16 Cal.3d at p. 293, fn. 12.) “No formal

hearing is necessary to fulfill the mandate of Duran; however, the record must

show the court based its determination on facts, not rumor and innuendo.”

(People v. Stevens, supra, 47 Cal.4th at p. 633.) The imposition of restraints

without evidence in the record establishing a threat of violence, escape, or

nonconforming conduct is an abuse of discretion. (Duran, at p. 291.) Thus, we

consider whether the trial court made the findings necessary to impose a particular

security measure — that there was a manifest need, and that the measure chosen

was the least obtrusive that would still be effective — and further whether those

findings were supported by substantial evidence.

On June 22, 1995, the trial court held a pretrial hearing to address security

measures. The People introduced evidence that in July 1994 Gamache‟s cell had

been searched and he had been found with a hacksaw, 42 ounces of toothpaste,8

plans for a homemade silencer, and a written escape plan. The five-step escape

plan, which Gamache admitted writing, involved his (1) getting a saw blade, a


(footnote continued from previous page)

In People v. Mar, supra, 28 Cal.4th at pages 1225-1230, we also laid out a

series of additional considerations for trial courts to take into account in deciding
whether to order use of a stun belt. We expressly counseled that those
considerations were being offered only for guidance in future trials. (Id. at
pp. 1225, 1230.) As the trial here occurred before Mar was decided, we need not
address those additional considerations further.

8

A detective for the sheriff‟s office testified that toothpaste could be used to

saw through bars, presumably after drying and hardening it.

17

lighter, and street clothes; (2) cutting his cell bars and making “didimow”;9

(3) committing a carjacking to get money and a car, and then either (a) going to

“Spink‟s house,” then Ord Mountain (the area where he and Ramnanan had taken

target practice on December 3, 1992) to get a gun, or (b) if there happened to be a

gun in the car already, going directly to Laughlin or Las Vegas, Nevada;

(4) robbing a casino and changing his identity; and (5) buying equipment to “big

hit” Bullhead (an airport outside Laughlin) or “St. Mary‟s” (unknown).

On May 13, 1995, just a month before the hearing, deputies at the jail

where Gamache was being held searched an inmate who was about to be released

and found a sealed letter he was attempting to smuggle out and mail on Gamache‟s

behalf. The letter, to Gamache‟s mother, asked her to get a device to trigger the

stun belt Gamache expected to wear at trial. Gamache believed this would result

in a mistrial. Then Gamache could either escape from the hospital, with the help

of outsiders “eddy and gene,” or escape from court using equipment he would buy

with money he would receive after successfully suing over being inadvertently

shocked.

On May 17, just days later, deputies intercepted a second letter from

Gamache to his mother, again asking her to get a device to trigger his stun belt,

whereby he could obtain a mistrial and sue for “150 thou or so.” Deputies

interpreted both letters as asking Gamache‟s mother to get a device that might

override the stun belt and allow Gamache to escape directly from the courtroom.

The People also presented testimony from the marshal in charge of security

for the courthouse. He testified that security was hampered by the fact the

courthouse had numerous public entrances, but no metal detecting equipment. He


9

When questioned, Gamache explained “didimow” meant “escape.”

18

further testified that Gamache, alone among the three defendants, had been

designated a high-security escape risk.

The trial court made an express finding that the evidence established a

“manifest need to restrain [Gamache] in some fashion during trial in the presence

of the jury.” (See People v. Duran, supra, 16 Cal.3d at pp. 290-291.) It cited the

escape plan and hacksaw found in Gamache‟s cell the previous year, as well as the

two letters sent a month before the hearing, again plotting an escape. In part

because of concerns that Gamache might use the stun belt itself as part of an

escape plan, the court concluded ankle shackles, arranged so the jury would not

see them, were the preferred means of restraint.

On August 7, 1995, at the People‟s request, the trial court held a second

pretrial hearing to address Gamache‟s restraints. The People provided a marshal‟s

report indicating that Gamache had been found with a homemade handcuff key a

few days earlier. The People further indicated Gamache had been found with an

elastic file fastener that he allegedly was seeking to shape into a weapon.

Gamache admitted possession of the fastener, but argued the handcuff key had

been planted in his shoe and, in any event, might not have worked to open his

shackles. As a final point, the People represented that Gamache‟s mother, to

whom his earlier escape letters had been directed, had gone to the Barstow

marshal‟s office and said that if the trial had been in Barstow, she “ „would have

blown up the courthouse and everybody else.‟ ”10 Gamache conceded his mother

had threatened to blow up a courthouse. Based on this, the People feared

Gamache might still have outside help to assist in a potential escape.


10

Pretrial proceedings had been conducted in Barstow, a few miles west of

Yermo, but the trial was held in San Bernardino, 75 miles to the southwest.

19

In light of this additional record, the trial court made an express finding that

use of a stun belt in addition to shackles was now appropriate, provided the stun

belt was “properly concealed from the jury‟s view as much as possible.” Defense

counsel assured the court that they would make arrangements to ensure Gamache

would be dressed in such a fashion as to conceal the belt.

The trial court did not abuse its discretion. It made express findings at both

the June 22 and August 7 hearings that restraints were called for. Those findings

were fully supported by evidence in the record establishing that Gamache was a

genuine escape risk. The court considered in each instance the least obtrusive

means that would suffice to address the perceived security problem Gamache

posed, initially ordering just shackles that could be concealed from the jury. Only

after Gamache and his mother had provided additional evidence that he remained

an escape risk and that restraints impervious to picking with a homemade key

were necessary, did the trial court order the stun belt. Even then, the court

remained cognizant of the possibility for prejudice and took steps to ensure that

the stun belt, like the shackles, would not be visible to the jury.

Before us, Gamache argues that the trial court should have discounted any

possibility of escape as the product of a delusional mind. He further argues that he

was never disruptive or violent in court. As to the first point, the record

establishes his escape plans were not only in his head. The homemade handcuff

key was real, and the trial court was permitted to disbelieve his protestations that

the key was not his. So were the letters he wrote to his mother, asking for help in

escaping. The trial court could credit testimony that indicated the threat of an

escape attempt was genuine and could take into account that Gamache was

devising ever-changing methods: a hacksaw, an electronic device to control his

stun belt, a homemade handcuff key. His letters suggested he had become

20

desperate in the face of the potential punishment he faced. Given time, Gamache

might attempt anything. The trial court was entitled to prepare for that risk.

As to the second point, that he was never disruptive or violent in the

courtroom, the People v. Duran, supra, 16 Cal.3d 282, requirement that the record

establish a threat of violence, escape, or disruption is framed in the disjunctive.

Where the record establishes a threat of escape, a defendant cannot plead no threat

of violence or disruption, and vice versa; the banks he has not robbed do not

excuse the banks he has. If any threat in one of these categories is established, a

trial court is entitled to take appropriate measures, consistent with the requirement

that it choose the least obtrusive restraints necessary. It did so here.

C. Prosecutorial Misconduct: Guilt Phase Closing Argument

Gamache contends various prosecutorial remarks during the guilt phase

closing argument constituted misconduct, thereby violating his rights to due

process and a fair trial. (U.S. Const., 6th, 8th & 14th Amends.; Cal. Const., art. I,

§§ 7, 15, 17.) We disagree.

Under the federal Constitution, a prosecutor‟s behavior deprives a

defendant of his rights “when it comprises a pattern of conduct „so egregious that

it infects the trial with such unfairness as to make the conviction a denial of due

process.‟ ” (People v. Espinoza (1992) 3 Cal.4th 806, 820; accord, Darden v.

Wainwright (1986) 477 U.S. 168, 181; People v. Wallace, supra, 44 Cal.4th at

p. 1070.) Conduct that falls short of that standard “may still constitute misconduct

under state law if it involves the use of deceptive or reprehensible methods to

persuade the trial court or the jury.” (People v. Panah (2005) 35 Cal.4th 395, 462;

accord, Wallace, at p. 1070.)

“ „ “ „[A] prosecutor is given wide latitude during argument. The argument

may be vigorous as long as it amounts to fair comment on the evidence, which can

21

include reasonable inferences, or deductions to be drawn therefrom. . . .‟

[Citation.] „A prosecutor may “vigorously argue his case and is not limited to

„Chesterfieldian politeness‟ ” [citation], and he may “use appropriate epithets

. . . .” ‟ ” [Citation.]‟ ” (People v. Stanley (2006) 39 Cal.4th 913, 951-952; see

also People v. Jablonski (2006) 37 Cal.4th 774, 835.) “To prevail on a claim of

prosecutorial misconduct based on remarks to the jury, the defendant must show a

reasonable likelihood the jury understood or applied the complained-of comments

in an improper or erroneous manner.” (People v. Frye (1998) 18 Cal.4th 894,

970.)

To preserve a claim for appeal under either state or federal law, a defendant

must raise a contemporaneous objection at trial and seek a jury admonition.

(People v. Bonilla (2007) 41 Cal.4th 313, 336.) In the absence of an objection,

any claim is forfeited unless an exception applies. (People v. Avila (2009) 46

Cal.4th 680, 710-711.) In those instances where Gamache concedes he failed to

object, he argues his failure is excused because an objection would have been

futile and an admonition would have failed to cure any harm. However, “[a]

defendant claiming that one of these exceptions applies must find support for his

or her claim in the record. [Citation.] The ritual incantation that an exception

applies is not enough.” (People v. Panah, supra, 35 Cal.4th at p. 462.)

Considering each instance of alleged prosecutorial misconduct, we find several of

the claims forfeited and all of the claims unfounded.

(1) At the beginning of his closing argument, the prosecutor explained he

would be spending most of his time on the case against Tammy Gamache and

Andre Ramnanan because the evidence against Richard Gamache was largely

uncontested, and the jury should not read into this any concession that Richard

Gamache was not central to the crimes. He explained: “As you heard from the

law, he‟s, as the actual shooter — and I think everybody agrees he‟s the actual

22

shooter — he‟s in a slightly different legal position than Andre and Tammy . . . .

So, as I look at it, looking at the facts, he doesn‟t have anywhere to go. So I‟m not

going to talk too much about him, [be]cause I think everybody here expects you to

find him guilty and find the charges true.” (Italics added.)

Gamache argues this last remark would have caused the jury to abdicate its

responsibilities and substitute the expectations of others for its own judgments. As

no objection was made, this argument is forfeited. It is also meritless. The

prosecutor‟s remark was a fair comment on the state of the evidence, which

showed without dispute that Gamache had intentionally robbed, kidnapped, and

then shot the Williamses. There is no reasonable likelihood a jury would have

understood these remarks as expressing anything other than the prosecutor‟s

expectation that the jury would find Richard Gamache an easier case than his

codefendants.

(2) As promised, the prosecutor spent the bulk of his argument

highlighting evidence that showed Andre Ramnanan and Tammy Gamache shared

Richard Gamache‟s intent to shoot and kill the Williamses. He argued they knew

Richard would carry out the shootings and they wanted him to: “And I think

really what happened was — Richard was the shooter, because I think Andre and

Tammy knew he had some propensities along those lines, and they let him do the

dirty work. He didn‟t mind doing the dirty work. But I submit to you if he hadn‟t,

they would have done it, but that was his job in this conspiracy, and they expected

him to do it.”

Gamache argues there was no evidence in the record to show he had

“propensities along those lines.” The argument is preserved, as Gamache objected

in the trial court. However, the prosecutor‟s argument was not misconduct, nor

did it prejudice Gamache in any way. It went to whether Gamache‟s codefendants

had reason to know Gamache would intentionally shoot the Williamses — an issue

23

contested by his codefendants — but it had no bearing on any contested guilt

phase issue, as Gamache conceded he intentionally shot the Williamses.

(3) At the start of his rebuttal closing argument, the prosecutor expressed

his disbelief at the arguments of Gamache‟s counsel: “As to Richard Gamache,

the argument made by [defense counsel]. I was flabbergasted that he argued you

shouldn‟t find the special circumstance[s] true, because, after all, the killing had

nothing to do with the robbery, and the burglary and the kidnapping.” He went on

to explain in detail why, in his view, the evidence supported the conclusion that

Gamache had committed an intentional murder in the course of robbery, burglary,

and kidnapping, and why the jury therefore should find the corresponding special

circumstances true.

Gamache takes umbrage at the use of the word “flabbergasted,” but has

forfeited any claim by failing to object at trial. Nor does the prosecutor‟s word

choice carry him outside the wide latitude afforded counsel at argument; the

prosecutor did not ask the jury to decide the case based on his own personal

opinions of the merits of Gamache‟s arguments, but rather on the evidence in the

record that might refute them.

(4) Later in his rebuttal, when discussing evidence that for Gamache the

murder had been intertwined with — not independent of — the other crimes, the

prosecutor read from a transcript of Peggy Williams‟s earlier trial testimony about

the burglary: “ „Q. Tell us what Richard said. [¶] A. They asked [Lee] his name

— Richard asked him his name. [¶] Q. And what did Lee say? [¶] A. He said,

“Lee Williams.” Asked him where Lee worked, and Lee said, “Southern

California Edison.” And the response to that, I don‟t know if it was the same

person that asked Lee where he worked that came back with the response, but the

response was “I should [blow] your fucking head off right now because I had a

friend that just broke into Edison and was caught.” ‟ [¶] Of course the interesting

24

part of that sentence is the words „right now‟ as opposed to, what, maybe an hour

later or so. That takes care of Richard.”

Gamache objects that the prosecutor insinuated it was Gamache who said,

“I should [blow] your fucking head off right now because I had a friend that just

broke into Edison and was caught,” when no evidence in the record supported that

conclusion. This claim is preserved, as Gamache‟s codefendant objected and the

trial court overruled the objection before Gamache had a chance to join;

accordingly, it would have been futile to make the same objection that had just

been rejected. However, the claim is without merit: the prosecutor read aloud the

portion of the transcript where Peggy Williams indicated she did not know who

the speaker was, counsel for Gamache‟s codefendant pointed out there was no

evidence who the speaker was, and the trial court denied the objection with the

understanding the jury was necessarily aware Peggy Williams had been uncertain

who the speaker was. Nothing in the prosecutor‟s remarks was likely to prevent

the jury from deciding for itself to whom, if anyone, these remarks should be

attributed.

(5) Turning to the evidence supporting Tammy Gamache‟s intent, the

prosecutor conceded: “Tammy did, in fact, lead them to the body. I don‟t quite

view the interpretation that way — same way [defense counsel] does [that Tammy

Gamache did not want Lee Williams to die]. [I] [f]ind it curious that she knew

exactly where to take the police, and — well, there are all sorts of other things I

could go into, but that, that shows her knowledge of the shooting to be a far

greater level than he would have you believe, I think.” (Italics added.)

Gamache argues the prosecutor was implying he was privy to evidence

outside the record that would further support defendants‟ guilt. No objection was

made; the argument is forfeited. Moreover, in context, it is clear the prosecutor

was alluding to other evidence in the record that would also establish Tammy

25

Gamache was a full participant in the charged crimes; the remark had nothing to

do with Richard Gamache. There is no reasonable likelihood the jury would have

understood the comment in any other way.11

Whether considered individually or collectively, we conclude Gamache has

not shown the prosecutor‟s remarks in his guilt phase closing argument constituted

misconduct.

D. Inference of Guilt from Possession of Stolen Property

(CALJIC No. 2.15)

The trial court instructed the jury with a version of CALJIC No. 2.15,

covering the inferences to be drawn from possession of recently stolen property,

which had been modified to include the various crimes with which the three

codefendants were charged.12 Gamache contends this instruction was flawed in


11

Gamache also mixes in with his guilt-phase closing argument claims an

objection to one remark the prosecutor made to a panel of prospective jurors
during voir dire. Underlining the jury‟s responsibility to follow the court‟s
instruction not to consult outside sources, the prosecutor had noted: “You can tell
a lot of money has been spent on this case just to get it this far. And to have to do
it all over again is a catastrophe.” Gamache forfeited the claim by not objecting in
the trial court. In any event, the claim is meritless; Gamache has not shown any
reasonable likelihood the jurors would have remembered this remark and used it as
a basis to disregard the countless subsequent instructions they received governing
the manner in which they were to decide the case.

12

The instruction provided: “If you find that a defendant was in conscious

possession of recently stolen property, the fact of such possession is not by itself
sufficient to permit an inference that the defendants are guilty of the crime of
murder, robbery, burglary, and kidnapping for robbery. Before guilt may be
inferred, there must be corroborating evidence tending to prove defendant‟s guilt.
However, this corroborating evidence need only be slight, and need not by itself
be sufficient to warrant an inference of guilt. [¶] As corroboration, you may
consider the attributes of possession — time, place, and manner, that the defendant
had an opportunity to commit the crime charged; the defendant‟s conduct; his false
or contradictory statements, if any; and/or other statements that he or she may
have made with reference to [the] property; or a false account of how he or she


(footnote continued on next page)

26

two ways: (1) It allowed inferences to be drawn (that Gamache had committed

special circumstance murder, kidnapping, robbery, and burglary) that were in no

way rationally connected to the provable facts (that Gamache possessed stolen

property); and (2) it lessened the prosecution‟s burden of proof, incorrectly

permitting the jury to find him guilty of murder, robbery, burglary, and kidnapping

for robbery based on only slight corroborating evidence above and beyond his

possession of stolen property.13 Accordingly, he contends his federal due process

rights were violated. (U.S. Const., 14th Amend.) While we agree the trial court

partially erred in how it worded its instruction, that error was manifestly harmless.

CALJIC No. 2.15 is an instruction generally favorable to defendants; its

purpose is to emphasize that possession of stolen property, alone, is insufficient to

sustain a conviction for a theft-related crime. (People v. Yeoman (2003) 31

Cal.4th 93, 131; People v. Mendoza (2000) 24 Cal.4th 130, 176-177; People v.

Johnson (1993) 6 Cal.4th 1, 37; cf. People v. Najera (2008) 43 Cal.4th 1132,

1135-1136 [defendant argued he was prejudiced because the trial court had a duty

to give CALJIC No. 2.15 sua sponte in all theft-related cases and failed to do so].)

In the presence of at least some corroborating evidence, it permits — but does not

require — jurors to infer from possession of stolen property guilt of a related

offense such as robbery or burglary. We have held the instruction satisfies the due


(footnote continued from previous page)

acquired possession of the stolen property; or any other evidence which tends to
connect the defendant with the crime charged.”

13

The People contend Gamache forfeited this argument by failing to object at

trial. Section 1259 permits appellate review of claimed errors to the extent they
“affected the substantial rights of the defendant.” Accordingly, to the extent this
claim of instructional error is meritorious and contributed to Gamache‟s
conviction and death sentence, we will review it. (See People v. Bonilla, supra,
41 Cal.4th at p. 329, fn. 4; People v. Prieto (2003) 30 Cal.4th 226, 247.)

27

process requirement for permissive inferences, at least for theft-related offenses:

the conclusion it suggests is “ „one that reason and common sense justify in light

of the proven facts before the jury.‟ ” (Yeoman, at p. 131; see also People v.

Parson (2008) 44 Cal.4th 332, 356.) Accordingly, we have repeatedly upheld the

giving of the instruction in such cases (Parson, at pp. 355-357 [instruction is

appropriate for robbery, burglary, and other theft charges]; People v. Prieto, supra,

30 Cal.4th at pp. 248-249 [instruction is appropriate for use in theft cases];

Yeoman, at pp. 131-132 [instruction is appropriate in robbery case]), and Gamache

offers us no reason to reconsider that conclusion.

On the other hand, we have also cautioned that the instruction is

inappropriate for non-theft-related crimes, and instructing that possession of stolen

property may create an inference that a defendant is guilty of murder, as was done

here, is error. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 101; People v.

Prieto, supra, 30 Cal.4th at pp. 248-249.) The People concede as much.14

As for Gamache‟s second argument, that CALJIC No. 2.15 impermissibly

alters the burden of proof, we have previously rejected it. The instruction does not

establish an unconstitutional mandatory presumption in favor of guilt (People v.

Yeoman, supra, 31 Cal.4th at p. 131) or otherwise shift or lower the prosecution‟s

burden of establishing guilt beyond a reasonable doubt (People v. Parson, supra,

44 Cal.4th at pp. 355-356; People v. Prieto, supra, 30 Cal.4th at p. 248).

Gamache offers no persuasive reason to reconsider these conclusions.


14

Gamache also argues it was error to allow the jury to infer that any of the

special circumstances were true based on his possession of stolen property. The
instruction did not do so; the inference it permitted extended only to the
conclusions that defendants were “guilty of the crime of murder, robbery,
burglary, and kidnapping for robbery.” Accordingly, there was no error in
connection with the jury‟s special circumstance findings.

28

Though Gamache argues that error in giving CALJIC No. 2.15 is either

structural or subject to harmless error analysis under Chapman v. California

(1967) 386 U.S. 18, it is well established the People v. Watson (1956) 46 Cal.2d

818, 836, test applies. (People v. Parson, supra, 44 Cal.4th at pp. 357-358; People

v. Coffman and Marlow, supra, 34 Cal.4th at p. 101; People v. Prieto, supra, 30

Cal.4th at p. 249.) Under that test — whether it is reasonably probable Gamache

would have obtained a more favorable result had the instruction not been given —

the error here in extending CALJIC No. 2.15 to the murder charge was clearly

harmless. Copious evidence, aside from Gamache‟s being caught with the

Williamses‟ property hours after Lee Williams‟s death, established he had

intentionally shot and killed Lee Williams. Most prominently, Peggy Williams

testified Gamache had done so, and codefendant Andre Ramnanan introduced

Gamache‟s admission that he had shot Lee Williams. Indeed, counsel during

closing argument conceded that Gamache was guilty of murder.

II. SANITY PHASE CLAIM: WITHDRAWAL OF NOT GUILTY BY

REASON OF INSANITY PLEA

On July 25, 1995, Gamache entered a plea of not guilty by reason of

insanity. On September 25, he withdrew that plea. He now argues (1) the plea

withdrawal was not knowing and intelligent, and (2) the trial court breached a sua

sponte duty to conduct further inquiry before accepting the withdrawal, thereby

violating his due process rights (U.S. Const., 14th Amend.). Accordingly, he

argues, the plea should be reinstated and he should receive a new sanity phase

trial.

The standards for accepting withdrawal of a not guilty by reason of insanity

plea are settled. If the trial court has no doubt about a defendant‟s present

competence, and if the experts who have examined the defendant are unanimous

in finding him or her sane at the time of the crime, a trial court may freely accept a

29

defendant‟s withdrawal of an insanity plea. (People v. Bloom (1989) 48 Cal.3d

1194, 1213-1214; People v. Guerra (1985) 40 Cal.3d 377, 384; People v.

Redmond (1971) 16 Cal.App.3d 931, 939; cf. People v. Merkouris (1956) 46

Cal.2d 540, 553-555 [abuse of discretion to accept withdrawal of an insanity plea

where experts are split on sanity].) No Boykin-Tahl advisements15 concerning the

rights being relinquished are required. (Bloom, at p. 1214; Guerra, at p. 384.) In

the absence of doubt about a defendant‟s competence, a trial court has no sua

sponte duty to inquire further into the reasoning behind the defendant‟s decision.

Here, the trial court had received the written reports of three different

experts, Drs. James Hawkins, Michael Kania, and Harvey Oshrin. All three

examined Gamache and concluded he was sane. The trial court expressed no

doubts about Gamache‟s competence on the record. Gamache‟s lead counsel

offered that both he and cocounsel had consulted with Gamache concerning the

contents of the psychological and psychiatric evaluations in the case, and in light

of the fact all examining experts had concluded he was sane, Gamache intended to

withdraw his not guilty by reason of insanity plea. A colloquy followed in which

Gamache confirmed on the record that he had consulted with counsel, personally

joined with both his counsel in asking the court to withdraw his plea, and

understood he was surrendering the possibility of avoiding a penalty phase trial

were he to be found insane by a jury. In the absence of any ground for doubt

about Gamache‟s sanity, the trial court was required to do no more before

accepting Gamache‟s withdrawal of his plea.

Gamache argues there was error in the acceptance of his plea withdrawal

because one month later, a fourth expert, Dr. Lorna Forbes, issued an opinion


15

Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

30

concluding Gamache was in fact legally insane. From this, Gamache reasons his

trial counsel must have lied to him about every examining expert finding him sane,

and rendered incompetent representation in counseling him about withdrawal of

his plea.

To the extent Gamache frames acceptance of his plea withdrawal as trial

court error, nothing in the record up to and including the September 25, 1995,

hearing at which Gamache withdrew his plea put Gamache‟s sanity in doubt.

Presented with expert unanimity, the trial court was under no obligation to inquire

whether there were still other defense experts who might at some point in the

future reach a different conclusion.16 To the extent he frames the plea withdrawal

as a consequence of defense counsel error — and, notwithstanding accusations of

incompetent representation, Gamache apparently disavows a formal ineffective

assistance of counsel claim — the record is inadequate for us to resolve such a

claim in Gamache‟s favor on direct appeal. We do not know what defense counsel

did or did not know about Dr. Forbes‟s views as of the September 25 hearing, nor

what Dr. Forbes‟s initial views, if any, may have been, nor what tactical

considerations may have played into the decision to advise Gamache to forgo a

sanity phase trial. As the burden is on Gamache to affirmatively demonstrate

error, in the absence of evidence his claim must fail. (People v. Ledesma (2006)

39 Cal.4th 641, 746; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)


16

Gamache highlights that later in the September 25 hearing, after he had

withdrawn his plea, defense counsel mentioned, in the course of discovery
discussions, another expert who might eventually testify but whose report likely
would not be completed for several weeks. The trial court was under no
obligation to inquire whether the expert might eventually opine about Gamache‟s
sanity and whether, in light of that, and notwithstanding the immediately
preceding colloquy, Gamache wished to proceed with the sanity phase trial
scheduled to commence the very next day.

31

III. PENALTY PHASE AND SENTENCING CLAIMS

A. Impact of Cumulative Guilt Phase Error on the Penalty Phase

Gamache contends that if we do not conclude any individual guilt phase

error mandates guilt phase reversal, the cumulative effect of the guilt phase errors

nevertheless rendered the penalty phase trial unreliable. We disagree. We have

identified only a single guilt phase error, in the wording of CALJIC No. 2.15 as

given. As we have explained, that error had no impact on the guilt verdict. Nor

has Gamache shown how it possibly could have affected the penalty phase verdict.

(See, e.g., People v. Martinez (2010) 47 Cal.4th 911, 959-960.)

B. Denial of Severance Motion/Redaction of Gamache’s Statements

During the penalty phase, Gamache‟s codefendants, Andre Ramnanan and

Tammy Gamache, objected to the introduction of unredacted out-of-court

statements Richard Gamache had made to mental health experts on the ground

those statements tended to incriminate them. In the alternative, they sought

severance.17 (See Bruton v. United States (1968) 391 U.S. 123 (Bruton); People v.

Aranda (1965) 63 Cal.2d 518 (Aranda).) “Bruton and its progeny provide that if

the prosecutor in a joint trial seeks to admit a nontestifying codefendant‟s

extrajudicial statement, either the statement must be redacted to avoid implicating

the defendant or the court must sever the trials.” (People v. Hoyos (2007) 41

Cal.4th 872, 895.) The trial court granted redaction and denied severance.

Gamache raises an Aranda-Bruton issue, but with a twist: he argues that by

redacting his out-of-court statements to protect his codefendants‟ Aranda-Bruton

rights, the trial court denied him his right to have his unredacted statements

admitted, and the redactions painted Gamache in a much more unfavorable light


17

Gamache eventually joined the severance motions.

32

by creating the impression that he was the ringleader and more culpable than his

codefendants. The trial court, Gamache argues, should have granted severance or,

at a minimum, refused redaction. We review the trial court‟s denial of severance

for an abuse of discretion based on the record available to the trial court at the

time. (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 998.)

We recently addressed a claim identical to the one Gamache raises here: an

assertion that redaction under Bruton and Aranda violated the rights of the

speaking defendant by exaggerating his own culpability. (See People v. Lewis

(2008) 43 Cal.4th 415, 456-460.) Describing the trial court‟s duty to ensure the

rights of the speaking defendant, we explained: “Severance may be necessary

when a defendant‟s confession cannot be redacted to protect a codefendant‟s rights

without prejudicing the defendant. (Aranda, supra, 63 Cal.2d at p. 530.) A

defendant is prejudiced in this context when the editing of his statement distorts

his role or makes an exculpatory statement inculpatory. (People v. Douglas

(1991) 234 Cal.App.3d 273, 285-287 . . . .) [¶] Ordinarily, in ruling on a

severance motion, a trial court should review both the unredacted and the redacted

statements to determine whether the redactions so distort the original statement as

to result in prejudice to the defendant.” (Id. at p. 457.)

Tammy Gamache and Andre Ramnanan objected to statements by Richard

Gamache reflected in the psychiatric reports of defense experts Drs. Michael

Kania and Lorna Forbes. The trial court reviewed these reports and evaluated

whether any inculpatory statements (1) reflected matters already known to the jury

through other evidence, (2) were prejudicial, and (3) could be redacted without

distorting the bases for the experts‟ opinions. Gamache now takes issue with five

redactions to Dr. Forbes‟s report, arguing that they effectively minimized his

codefendants‟ culpability and exaggerated his own. We conclude the trial court

did not abuse its discretion in making the redactions and instructing Dr. Forbes to

33

limit her testimony accordingly, nor in concluding that a joint penalty trial could

still proceed.

(1) The trial court redacted “and Andre” from the sentence: “Richard went

on to discuss how he and Andre planned to kill his wife.” Richard Gamache‟s

implication of Andre Ramnanan in any plot to kill Tammy Gamache was plainly

inadmissible under Aranda-Bruton. Gamache was not prejudiced by the deletion;

Dr. Forbes testified about his statements to her solely as the basis for her opinions,

not for the truth of the matters asserted therein, so Gamache would not have been

able to argue that his out-of-court statement showed Ramnanan shared culpability

for an inchoate crime unrelated to the Williams murder. Nor was Gamache

prejudiced by the trial court‟s refusal to simply delete the entire sentence; as

counsel and the trial court noted, Forbes‟s report contained numerous other

references to Gamache‟s stated intent to kill Tammy, as well as to an incident

where Gamache had rolled his truck at high speed while Tammy was a passenger,

breaking her back and causing her to accuse him of trying to kill her.

(2) The trial court redacted “and Andre” from a second statement about

another unrelated inchoate crime: “He went on to tell me how he and Andre had

planned to kill two days prior „a whole family, the Lowes, some people in the

occult (?cult?).‟ ” Again, the reference to Andre Ramnanan was inadmissible

under Aranda-Bruton; again, Gamache was not prejudiced because he was not

entitled to rely on the statement for the truth of the matter asserted.

(3) The trial court deleted the statements: “The horses were her (Tammy)

idea. (Later he denies this.)” Gamache‟s out-of-court inculpation of Tammy

Gamache was inadmissible under Aranda-Bruton; Gamache was not prejudiced by

its omission because, inter alia, the trial court also omitted his renouncing of the

statement and because the jury had already heard copious evidence that Tammy

was the one of the three who was interested in riding horses.

34

(4) The trial court deleted the statement: “[H]e acknowledged that she

[Tammy Gamache] very much participated in the theft, homicide, kidnapping,

etc.” Again, the statement was plainly inadmissible under Aranda-Bruton.

Gamache was not prejudiced by its omission because he could not have used it for

the truth of the matter asserted to argue Tammy Gamache‟s culpability; moreover,

the jury had already heard (and believed, given that it returned a first degree

murder conviction with special circumstances against her) copious evidence that

Tammy Gamache had fully participated in the Williams murder and related

crimes.

(5) The trial court advised Dr. Forbes that she should not refer to her

statement in her report that “It was planned to shoot them (victims of the incident

now under litigation) from the beginning,” but could say that “Richard said he

planned to shoot them” from the beginning, if that was in fact what Richard had

said. As with the other statements, Gamache‟s implication of his codefendants in

the Williams shootings was inadmissible under Aranda-Bruton, and the trial court

was obligated to redact or revise it if it chose to proceed with a joint trial. Both

the original and modified statements acknowledged Gamache‟s understanding that

the plan was always to shoot the Williamses. Moreover, as with the other redacted

statements, the statement here was inadmissible for the truth of the matter asserted.

Given that the jury was instructed to, and obligated to, give individualized

sentencing determinations to each defendant, any prejudice from the jury‟s being

prevented from hearing statements that might raise Gamache‟s codefendants‟

culpability without significantly changing his own was minimal at most.18


18

Gamache also objects to the failure to redact from one of Ramnanan‟s

expert‟s reports the statement “Richard came out [of the Williams residence] with
her [Tammy].” The statement could not possibly have prejudiced Gamache in any


(footnote continued on next page)

35

Considering any cumulative prejudice from these redactions, we conclude

the trial court did not abuse its discretion by refusing severance. Section 1098

establishes a clear legislative preference for joint trials where, as here, multiple

defendants are charged with the same crimes against the same victims. (People v.

Tafoya (2007) 42 Cal.4th 147, 162; People v. Box (2000) 23 Cal.4th 1153, 1195.)

A trial court retains discretion to order severance “ „ “in the face of an

incriminating confession, prejudicial association with codefendants, likely

confusion resulting from evidence on multiple counts, conflicting defenses, or the

possibility that at a separate trial a codefendant would give exonerating

testimony.” ‟ ” (Box, at p. 1195.) Gamache‟s objection is none of these; rather, it

is that the redactions required under Aranda-Bruton prevented him from getting in,

by way of his experts, his out-of-court statements incriminating his codefendants

and thereby prevented him from (impermissibly, we note) using these statements

for the truth of the matter asserted to argue his codefendants‟ greater culpability.

Indeed, in response to the redactions, Gamache‟s counsel threatened to have

Gamache take the stand himself to incriminate his codefendants. Gamache was

not entitled to use his experts‟ reports in this fashion, and the trial court was not

required to accommodate this strategy by declining redaction or ordering

severance.

Finally, Gamache argues that even if the denial of severance was not error

at the time, reversal is still required because proceeding with a joint trial “caused

such „ “gross unfairness” ‟ as to violate [his] due process rights.” (People v. Lewis


(footnote continued from previous page)

way; as the trial court pointed out at the time, the jury was fully aware that the
various codefendants left and reentered the Williams residence on several
occasions, and no material issue hinged on this accepted fact.

36

and Oliver, supra, 39 Cal.4th at p. 998; see U.S. Const., 14th Amend.) Aside from

the redactions already discussed, the only gross unfairness he identifies is the

opportunity the joint trial afforded his codefendants to blame him. This is a

common concomitant of a joint trial; it is the reverse of the opportunity severed

trials afford former codefendants to put forward an “empty chair” defense, in

which all blame is heaped on the absent accomplice. What Gamache posits, in

essence, is a constitutional right to separate penalty phase trials in all cases. We

have never recognized such a right, and we decline to do so here. (Cf. People v.

Carasi (2008) 44 Cal.4th 1263, 1311 [no per se right to have penalty phase trials

severed where defendants are of the opposite sex].)

C. Introduction of Gamache’s Statements

Gamache moved pretrial to suppress all statements he made to the police

while in custody December 4-7, 1992, based on alleged violations of Miranda v.

Arizona (1966) 384 U.S. 436 and Edwards v. Arizona (1981) 451 U.S. 477

(hereafter sometimes Miranda and Edwards). The trial court held a seven-day

evidentiary hearing and denied the motion in part, concluding that a December 7

videotaped police interview of Richard Gamache, Tammy Gamache, and Andre

Ramnanan — the only statements by defendants the prosecution sought to use in

its case-in-chief — was admissible. The court expressly reserved judgment on all

other statements by Richard Gamache.

After the case was transferred from Barstow to San Bernardino for trial, the

new trial judge reconsidered the suppression motion based on the record

previously made. The trial court concluded Gamache had invoked his right to

counsel on the morning of December 4, and on that basis many of Gamache‟s

subsequent statements on December 4 were inadmissible. However, the court also

found that Gamache, in the late afternoon of December 4, had voluntarily

37

reinitiated contact with the police, demonstrated a willingness to talk about the

case, and expressly waived his right to counsel; on that basis, the court ruled

Gamache‟s statements from that point forward were admissible. Subsequently,

after an Evidence Code section 402 hearing, the trial court also ruled admissible

statements Gamache had made on December 5 to Deputy Sheriff Richard Ells

while being booked.

The prosecution did not rely on any of Gamache‟s admissions during the

guilt phase, but during the penalty phase introduced one statement by Gamache to

the police from a December 4 joint interview, Gamache‟s December 5 statements

to Deputy Ells, and a videotape of the December 7 joint interview of Richard

Gamache, Tammy Gamache, and Andre Ramnanan. Gamache argues reliance on

this evidence violated his privilege against self-incrimination. (U.S. Const., 5th &

14th Amends.; Cal. Const., art. I, §§ 7, 15.) We conclude the trial court did not err

in admitting any of the statements.

1. Factual Background

Gamache was arrested on the morning of December 4, 1992. Detective

Tom Bradford began questioning him shortly after 9:00 a.m. He read Gamache

his Miranda rights; Gamache waived them. Gamache denied any wrongdoing,

saying the motor vehicles had been sold to him and his wife by a couple desperate

for money. Twenty minutes into the interview, Bradford asked if Gamache would

take a polygraph test; after some discussion, Gamache said: “OK, I do think

before I take the polygraph I would like to talk to an attorney and just make

sure. . . . I‟d like to know what is going on before I answer any more questions.”

Detective Bradford ended questioning, and he and Sergeant Brian English

walked Gamache back to his jail cell. On the way, Gamache asked after his wife.

Sergeant English replied that she was okay and sleeping; Detective Bradford told

38

Gamache his wife was going to jail for murder, and she and Andre had given him

up. Detective Bradford testified this statement was untrue but was not intended to

elicit a response. When they arrived at the jail booking area several minutes later,

Detective Bradford provided Gamache with his business card, telling Gamache it

was in case he changed his mind and wanted to talk to him. Gamache replied:

“Fuck Andre and them. I was trying to protect them, but fuck them. Let‟s go back

and talk. Sir, can we go back and talk?” Detective Bradford said, “You already

told me you wanted an attorney present” or words to that effect. Gamache replied,

“I changed my mind, let‟s go” or “No. I want to talk to you right now.”

Detective Bradford returned Gamache to the interview room and continued

the interview until approximately 10:10 a.m. Gamache confessed to robbing the

Williamses and taking them out into the desert, but insisted Ramnanan was the

shooter. Shortly before noon, Detective Kathy Caldwell, a polygraph examiner,

interviewed Gamache; during the interview, he confessed to being the shooter. He

was subsequently interviewed further by Sergeant English.

Gamache was then returned to his jail cell. Around 4:00 p.m., he

summoned Detective Bradford and asked after his wife. He insisted she did not

know anyone would be killed. He agreed to a joint interview with her. At 4:30

p.m., Richard Gamache, Tammy Gamache, and Thomas P. were jointly

interviewed on camera; Detective Bradford advised them of their Miranda rights,

which each waived. Richard Gamache confessed to shooting the Williamses and

described the crimes in detail. That evening, Gamache was again advised of his

Miranda rights, again waived them, and performed a reenactment of the crimes.

The next day, Gamache was booked by Deputy Ells. While fingerprinting

Gamache, Ells asked whether he had been in the military and, finding he had,

whether he had liked it. Gamache replied that he had enjoyed it and then said,

“The only thing I love is guns and pussy and I have the best of both.” He added:

39

“I fucked up. I knew better. I should have used a .45.” Ells asked what had

happened; Gamache continued: “I shot her once. I saw her eyes flutter. I shot her

again in the back of the head. I know the skull is thicker back there.” Asked how

he felt, Gamache said, “I almost got an erection.” Ells asked about Lee Williams;

Gamache replied: “I knew he was dead. I shot him and the blood came out of his

head like you turned on a faucet.”

On the morning of December 7, Richard Gamache, Tammy Gamache, and

Andre Ramnanan appeared together for a joint interview on camera. At both the

beginning and the end of the interview, Detective Bradford reminded them that

they had previously been advised of their rights; they confirmed they understood

those rights and still wanted to talk. The Gamaches and Ramnanan again

confessed and described the crimes in detail.

2. Miranda and Its Progeny

Miranda v. Arizona, supra, 384 U.S. 436, and its progeny protect the

privilege against self-incrimination by precluding suspects from being subjected to

custodial interrogation unless and until they have knowingly and voluntarily

waived their rights to remain silent, to have an attorney present, and, if indigent, to

have counsel appointed. (People v. Davis (2009) 46 Cal.4th 539, 585; see

Dickerson v. United States (2000) 530 U.S. 428, 435.) “If a suspect indicates „in

any manner and at any stage of the process,‟ prior to or during questioning, that he

or she wishes to consult with an attorney, the defendant may not be interrogated.”

(People v. Crittenden (1994) 9 Cal.4th 83, 128, italics omitted, quoting Miranda v.

Arizona, at pp. 444-445.) Once the right to counsel has been invoked, further

questioning is forbidden until counsel has been provided, “unless the suspect

personally „initiates further communication, exchanges, or conversations‟ with the

authorities.” (People v. Cunningham (2001) 25 Cal.4th 926, 992, quoting

40

Edwards v. Arizona, supra, 451 U.S. at pp. 484-485; see also McNeil v. Wisconsin

(1991) 501 U.S. 171, 176-177; People v. Storm (2002) 28 Cal.4th 1007, 1021-

1022; cf. Maryland v. Shatzer (Feb. 24, 2010, No. 08-680) ___ U.S. ___

<http://www.supremecourtus.gov/opinions/09pdf/08-680.pdf> [as of Mar. 18,

2010].)

“ „An accused “initiates” ‟ further communication, exchanges, or

conversations of the requisite nature „when he speaks words or engages in conduct

that can be “fairly said to represent a desire” on his part “to open up a more

generalized discussion relating directly or indirectly to the investigation.” ‟ ”

(People v. San Nicolas (2004) 34 Cal.4th 614, 642; accord, People v. Waidla

(2000) 22 Cal.4th 690, 727.) “ „[W]here reinterrogation follows, the burden

remains upon the prosecution to show that subsequent events indicated a waiver of

the Fifth Amendment right to have counsel present during the interrogation.‟ ”

(People v. Sims (1993) 5 Cal.4th 405, 440; accord, People v. Bradford (1997) 15

Cal.4th 1229, 1311.) Thus, the People must show both that the defendant

reinitiated discussions and that he knowingly and intelligently waived the right he

had invoked. (People v. Davis, supra, 46 Cal.4th at p. 596.) If instead the police

reinitiate discussion without a break in custody, any further statements by the

defendant are presumed involuntary and rendered inadmissible. (McNeil v.

Wisconsin, supra, 501 U.S. at p. 177; People v. Storm, supra, 28 Cal.4th at

pp. 1021-1022.)

In reviewing the trial court‟s denial of a suppression motion on Miranda-

Edwards grounds, “it is well established that we accept the trial court‟s resolution

of disputed facts and inferences, and its evaluations of credibility, if supported by

substantial evidence. We independently determine from the undisputed facts and

the facts properly found by the trial court whether the challenged statement was

illegally obtained.” (People v. Cunningham, supra, 25 Cal.4th at p. 992.) To the

41

extent mixed questions of fact and law are present, they are reviewed de novo if

predominantly legal and for substantial evidence if predominantly factual.

(People v. San Nicolas, supra, 34 Cal.4th at p. 642; People v. Waidla, supra, 22

Cal.4th at p. 730.) The question whether it was the defendant or the police who

reinitiated communications of the requisite nature, after the defendant‟s invocation

of the right to counsel, is predominantly factual. (People v. Mickey (1991) 54

Cal.3d 612, 649.) Accordingly, we review it for substantial evidence. (Waidla, at

p. 731.)

3. Admissibility of the December 4 Statement and

the December 7 Videotape

Twenty minutes into his first interview with Detective Bradford on the

morning of December 4, 1992, Gamache unequivocally asked to speak to an

attorney before answering further questions. (“I do think before I take the

polygraph I would like to talk to an attorney and just make sure. . . . I‟d like to

know what is going on before I answer any more questions.”) Under Edwards v.

Arizona, supra, 451 U.S. 477, therefore, the police were barred from asking

Gamache further questions until counsel was present or until Gamache reinitiated

discussions. As Gamache never received counsel during this initial questioning

period, the critical question is whether, and if so when, he reinitiated discussions

with the police. The trial court found (1) Gamache‟s summoning of Detective

Bradford around 4:00 p.m. on December 4 and (2) his unprompted discussion of

his wife‟s involvement or lack thereof in the shooting showed a clear willingness

and intention to talk about this case sufficient to satisfy the dictates of Edwards. It

further found that shortly thereafter, at the beginning of his videotaped interview

with his wife and Thomas P., Gamache knowingly and voluntarily waived his

right to counsel.

42

These findings are supported by substantial evidence. The record is

undisputed that Gamache asked to see Detective Bradford on the afternoon of

December 4 — that he, and not the police, initiated contact. Gamache had been

repeatedly advised of his right to counsel over the course of the day; nothing about

his decision to contact Bradford suggested it was the product of state pressure.

Accordingly, “[t]he totality of circumstances show his decision to summon the

investigators was not the result of coercion.” (People v. Sapp (2003) 31 Cal.4th

240, 268 [finding no Edwards violation where, after initially invoking the right to

counsel, defendant thereafter unilaterally summoned investigators from his cell to

talk about the case]; see also People v. Mattson (1990) 50 Cal.3d 826, 859-862 [no

Edwards violation where undisputed evidence shows it was defendant who asked

to speak to the police].)

The record is also undisputed that Gamache, without prompting, raised the

subject of his wife‟s involvement in the case, assuring Detective Bradford that she

did not know anyone was going to be killed. This statement “can be „fairly said to

represent a desire‟ on his part „to open up a more generalized discussion relating

directly or indirectly to the investigation.‟ ” (People v. Mickey, supra, 54 Cal.3d

at p. 648.) In People v. Thompson (1990) 50 Cal.3d 134, 163-164, we concluded a

defendant who raised the subject of his girlfriend (who was then incarcerated as a

suspected accessory after the fact) in the hopes of having her released could be

readvised of his rights and asked about his crimes; so too here. Indeed, even a

comment by a defendant that is as general as “What can I do to help you?” may, in

context, be read as evincing a desire to discuss the case. (People v. Waidla, supra,

22 Cal.4th at p. 731; see also People v. Mattson, supra, 50 Cal.3d at pp. 861-862

[defendant‟s question about his car, which was connected with his offenses, was

enough to establish a desire for conversation directly or indirectly related to the

case].)

43

Gamache argues this case is akin to People v. Boyer (1989) 48 Cal.3d 247,

but Boyer is plainly distinguishable. There, after the defendant had clearly

invoked his right to counsel, the police investigator called the defendant back into

the interrogation room and “launched into a monologue on the status of the

investigation,” including an assertion that a new witness had directly contradicted

some of the defendant‟s previous statements. (Id. at p. 274.) These remarks were

clearly a renewed interrogation (see Rhode Island v. Innis (1980) 446 U.S. 291,

301 [interrogation includes remarks police should know are reasonably likely to

elicit an incriminating response]) initiated by the police, not the defendant; in the

face of them, the defendant crumbled and confessed. This case, where Gamache

contacted Detective Bradford, and where Gamache, unsolicited, raised the subject

of his wife‟s involvement, and where only then did the investigator inquire further

about the case, bears no resemblance.

Finally, the record is undisputed that Gamache thereafter expressly waived

his right to counsel at approximately 4:30 p.m., at the beginning of the

December 4 interview with his wife and Thomas P. While Gamache argues this

and subsequent waivers were not knowing, voluntary, and intelligent, the record

supports the opposite conclusion. Gamache had his rights explained to him on

numerous occasions; he recognized their value, invoking his right to counsel on at

least one occasion. He demonstrated some sophistication about the legal process,

immediately pointing out when Detective Bradford suggested a polygraph that any

results would be inadmissible. His articulateness and demeanor during his

videotaped interrogations suggest someone who had his wits about him. Contrary

to Gamache‟s contention, neither Gamache‟s age nor the length of his

incarceration (a matter of hours on December 4; a few days by December 7)

renders any of his waivers involuntary. The record establishes a knowing,

voluntary, and intelligent waiver of his rights. Accordingly, Gamache‟s

44

statements after this point — including his statements to police in the December 4

joint interview and those on the December 7 interview tape — were admissible.19

4. Admissibility of the Statements to Deputy Ells

That Gamache was in custody while being booked and fingerprinted by

Deputy Ells is undisputed. However, his statements to Ells were not the product

of an interrogation. Accordingly, they were admissible.

“ „Interrogation‟ consists of express questioning, or words or actions on the

part of the police that „are reasonably likely to elicit an incriminating response

from the suspect.‟ ” (People v. Cunningham, supra, 25 Cal.4th at p. 993, quoting

Rhode Island v. Innis, supra, 446 U.S. at p. 301.) “Interrogation thus refers to

questioning initiated by the police or its functional equivalent, not voluntary

conversation. [Citation.] „ “Volunteered statements of any kind are not barred by

the Fifth Amendment . . . .” ‟ ” (People v. Thornton (2007) 41 Cal.4th 391, 432,

quoting Miranda v. Arizona, supra, 384 U.S. at p. 478.) Consequently, the police

“may speak to a suspect in custody as long as the speech would not reasonably be

construed as calling for an incriminating response.” (People v. Clark (1993)

5 Cal.4th 950, 985.)

Under these rules, small talk is permitted. Thus, we have concluded that a

detective who told a defendant during booking that he “looked „like a traffic

ticket‟ ” and asked “ „Is it just a warrant?‟ ” was not engaged in an impermissible

custodial interrogation. (People v. Bradford (1997) 14 Cal.4th 1005, 1034.)

Deputy Ells‟s remarks were even more innocuous; objectively, there was no

reason to suspect that inquiring about Gamache‟s military service would lead


19

Gamache again acknowledged waiving his rights at the beginning of the

December 7 joint interview.

45

Gamache to volunteer his regret about failing to kill Peggy Williams or the other

inflammatory remarks that followed. Deputy Ells‟s subsequent “ „neutral

inquir[ies]‟ ” did not convert Gamache‟s volunteered admissions into the product

of interrogation. (People v. Ray (1996) 13 Cal.4th 313, 338.) The trial court did

not err in admitting them.

D. Prosecutorial Misconduct: Penalty Phase Closing Argument

Gamache argues the prosecutor committed numerous instances of

misconduct in his penalty phase closing argument, depriving him of his rights to

due process and a fair trial, inter alia. (U.S. Const., 5th, 6th, 8th & 14th Amends.;

Cal. Const., art. I, §§ 7, 15, 16.) We apply the same substantive standards as for

Gamache‟s guilt-phase prosecutorial misconduct claim. (People v. Guerra (2006)

37 Cal.4th 1067, 1153; People v. Valdez (2004) 32 Cal.4th 73, 132; see ante,

pt. I.C.)

Preliminarily, Gamache never objected to any of the prosecutor‟s closing

argument. Notwithstanding his “ritual incantation” (People v. Panah, supra, 35

Cal.4th at p. 462) that a jury admonition would have made no difference, Gamache

identifies nothing in the record to suggest this would have been so. Accordingly,

these claims are forfeited.

Each also fails on its merits:

(1) The prosecutor told the jury: “Well, and [defense counsel] kind of took

issue when I used the expression[,] you‟re the conscience of the community in

your decision. [¶] Well, in a way the people who urge the comparative filth

argument on you are acknowledging that because they‟re saying, there is a

standard in our community about how serious a murder should be before it

deserves the death penalty. [¶] And you are the people that are going to set that

standard, and you are the conscience of the community in setting that standard.”

46

Gamache objects to characterizing the jury as the “conscience of the

community” on the ground it would likely cause the jury to substitute what they

perceived to be the community‟s views for their own. We have on numerous

occasions considered this turn of phrase and rejected the contention that it invites

jurors to abrogate their personal responsibility to render an appropriate verdict in

light of the facts and the law. Jurors are the conscience of the community: “[A]

jury that must choose between life imprisonment and capital punishment can do

little more—and must do nothing less—than express the conscience of the

community on the ultimate question of life or death.” (Witherspoon v. Illinois

(1968) 391 U.S. 510, 519, fn. omitted.) It is not error to tell them so in closing

argument. (People v. Zambrano (2007) 41 Cal.4th 1082, 1178; People v.

Ledesma, supra, 39 Cal.4th at p. 741; People v. Lucero (2000) 23 Cal.4th 692,

733-734; People v. Jones (1997) 15 Cal.4th 119, 185-186.)

(2) The prosecutor asked the jury, in considering whether to exercise

mercy toward Gamache and his codefendants, to consider whether they afforded

the Williamses any mercy: “And sympathy and mercy, they can, we all know it,

I think everybody knows it, they can be some of the most wonderful and beautiful

things in the universe. It‟s what makes us human. It‟s [what] make[s] us less than

animals [sic]. [¶] But mercy is also, it‟s not garbage to be thrown around the road

rampant. It has to be used appropriately in situations that are appropriate for

people that are appropriate. You just use it randomly [and] it‟s meaningless.

[¶] So when you‟re considering whether to give sympathy or mercy to Richard, to

Tammy, to Andre, I want you to think about how they in the same situation pretty

much acted towards their victims. [¶] . . . [¶] Look at these people and decide

whether they‟re worthy of your mercy, considering how they‟ve acted towards

other people.”

47

Gamache argues this was misconduct because it appealed to the jurors to

act out their passions and prejudices, rather than exercising guided discretion. Not

so. The prosecutor‟s argument called for the jury to keep firmly in mind the

circumstances of the crimes (§ 190.3, factor (a)) when deciding whether to grant

Gamache and the other defendants mercy. We have repeatedly approved

prosecutors arguing that a defendant is not entitled to mercy, and in particular

arguing that whether the defendant was merciful during the crimes should affect

the jury‟s decision. (People v. Rogers (2009) 46 Cal.4th 1136, 1181; People v.

Kennedy (2005) 36 Cal.4th 595, 636; People v. Vieira (2005) 35 Cal.4th 264, 296;

People v. Benavides (2005) 35 Cal.4th 69, 107-109; People v. Hughes (2002) 27

Cal.4th 287, 395; People v. Ochoa (1998) 19 Cal.4th 353, 464-465.) We do so

again today.

(3) The prosecutor addressed Gamache‟s mental health defense thusly: “In

a nutshell[,] you heard enough cross-examination and examination, psychiatrists

just have a different perspective than people in your position, I think. [¶] To

psychiatrists[,] the subtle motivations that go on in people‟s minds are really

critical and that‟s what dictates whether they‟re mentally ill and whether that

should be considered legally. [¶] Under the law the important concept is

impairment, and we talk[ed] about that with a number of the mental health experts.

[¶] It really doesn‟t matter what‟s wrong with you if it wasn‟t impairing your

thinking at a given point in time. [¶] And I think everybody in this room realizes

there is a lot wrong with Richard Gamache, but in terms of, for instance, during

the crimes in this case he knew perfectly well what he was doing, intended to kill

him and did it for perfectly logical reasons. [¶] If his subtle motivations were

problems he had with his mother or somebody else, or the Army, that‟s fine for

psychiatrists; but whether that should weigh very heavily in your decision,

whether that‟s a serious factor in mitigation, that‟s something for you to decide.

48

[¶] By the way, now that you‟ve been through this trial the expression „psycho

babble‟ will never mean the same thing to any of you, I‟m sure.”

Gamache takes issue with this argument, contending it unfairly injected the

prosecutor‟s personal opinions into the case, was not based on any evidence,

implied that the prosecutor‟s skepticism of the defense experts‟ testimony was

based on a secret source of knowledge, and was unduly disrespectful. Considering

this argument as a whole, we find nothing in it exceeding counsel‟s wide latitude

in closing argument. The prosecution is permitted to question whether a

defendant‟s mitigating evidence should carry much weight. (People v. Salcido

(2008) 44 Cal.4th 93, 159.) This principle extends to mental health evidence; a

prosecutor is entitled to argue, as the prosecutor did here, that notwithstanding any

expert testimony about mental illness, the defendant was not in fact significantly

impaired during the crimes he committed. (People v. Jones, supra, 15 Cal.4th at

pp. 186-187.) The jury had considerable lay testimony it could consider on this

question, including Peggy Williams‟s description of Gamache‟s actions and

Gamache‟s own confession just days later; thus, the prosecutor‟s closing argument

neither rested on matters outside the record, nor implied secret evidence to which

only he was privy, nor injected personal opinion.20


20

Additionally, Gamache takes issue with the prosecutor‟s cross-examination

of Gamache‟s defense experts, describing his treatment of Dr. Forbes as
“argumentative and obnoxious” and criticizing the examination of Dr. Kania for
focusing on Gamache‟s answers to the Minnesota Multiphasic Personality
Inventory (MMPI) in an effort to portray Gamache as a liar. The prosecution was
entitled to explore the basis for any expert‟s opinion (Evid. Code, § 721, subd.
(a)(3)); in Dr. Kania‟s case, this included Gamache‟s answers to the MMPI.
People v. Visciotti (1992) 2 Cal.4th 1, 80-81, relied on by Gamache, is inapposite;
there, we held it was misconduct to cross-examine a defense expert about, and
thereby introduce the contents of, a study that had not been a basis for the expert‟s
opinion. Nothing in this prosecutor‟s examination of these experts involved


(footnote continued on next page)

49

Considering the various claims of misconduct individually and

cumulatively, we find that nothing in the prosecutor‟s penalty phase closing

argument deprived Gamache of any of his state or federal constitutional rights.

E. Ineffective Assistance of Counsel During the Penalty Phase

Closing Argument

Gamache contends his defense counsel rendered ineffective assistance of

counsel during the penalty phase closing argument. (U.S. Const., 6th & 14th

Amends.; Cal. Const., art. I, § 15.) We apply settled standards: “In assessing

claims of ineffective assistance of trial counsel, we consider whether counsel‟s

representation fell below an objective standard of reasonableness under prevailing

professional norms and whether the defendant suffered prejudice to a reasonable

probability, that is, a probability sufficient to undermine confidence in the

outcome. (Strickland v. Washington (1984) 466 U.S. 668, 694 . . . ; People v.

Ledesma (1987) 43 Cal.3d 171, 217 . . . .) A reviewing court will indulge in a

presumption that counsel‟s performance fell within the wide range of professional

competence and that counsel‟s actions and inactions can be explained as a matter

of sound trial strategy. Defendant thus bears the burden of establishing

constitutionally inadequate assistance of counsel. (Strickland v. Washington,

supra, at p. 687 . . . ; In re Andrews (2002) 28 Cal.4th 1234, 1253 . . . .) If the

record on appeal sheds no light on why counsel acted or failed to act in the manner

challenged, an appellate claim of ineffective assistance of counsel must be rejected

unless counsel was asked for an explanation and failed to provide one, or there

simply could be no satisfactory explanation. (People v. Mendoza Tello[, supra,]


(footnote continued from previous page)

reprehensible tactics or rendered Gamache‟s penalty phase trial fundamentally
unfair.

50

15 Cal.4th [at p.] 266 . . . .)” (People v. Carter (2003) 30 Cal.4th 1166, 1211.)

These standards apply with particular force at closing argument because, as we

have recognized, “[t]he decision of how to argue to the jury after the presentation

of evidence is inherently tactical . . . .” (People v. Freeman (1994) 8 Cal.4th 450,

498.)

Defense counsel‟s closing argument reveals a two-part strategy: to convey

to the jury that this case was not the worst of the worst, based both on the more

extreme facts of other well-known cases and on the mitigating evidence

(principally the uncontradicted mental health expert testimony) here; and to

underline that life without the possibility of parole, especially for someone as

young as Gamache, was itself a harsh punishment fully commensurate with the

gravity of the crimes. Throughout his argument, counsel took steps to encourage

juror acceptance of his arguments by candidly admitting the severity of

Gamache‟s actions, thereby presenting himself as someone who was not blind to

what Gamache had done, and portraying himself as someone who did not

reflexively oppose death in all cases or view every excuse as sufficient to

minimize one‟s culpability. This was a reasonable tactical approach; it was

important that counsel present himself not as a lawyer who would say anything for

his client, but rather as a credible source who, like the jury, was principally

concerned with a just result — and who could credibly explain how choosing a life

verdict would in fact be just.

Gamache contends defense counsel argued as if he were the prosecutor. In

support of this claim, Gamache highlights, inter alia, that counsel expressed his

unusual nervousness at the start of his argument; that, after describing in detail the

crimes of various notorious serial killers, defense counsel conceded anyone, even

he, would have voted for death in those cases; that he did not condone Gamache‟s

actions, actions that had “effectively killed Peggy” Williams; that he would not

51

argue Gamache lacked the intent to kill; that evidence of other crimes was just

“frosting on the cake,” and Gamache‟s conduct in December 1992 was enough to

“bury him”; and, Gamache contends, he failed to argue that the evidence in

aggravation was not so substantial in comparison to the mitigating evidence as to

warrant death.

Neither the record nor the law supports Gamache‟s characterization of this

argument as ineffective. Defense counsel emphasized his own nervousness,

notwithstanding his long history of representing capital defendants, as a way of

underlining for the jury the seriousness of his task and theirs: “So, if there‟s a

tremor in my voice[,] I‟m not afraid of you; I am concerned about my

responsibilities, and I hope that you-all will be just as concerned with your

responsibilities in this case.” Defense counsel‟s description of the actions of serial

killers like Ted Bundy and Richard Ramirez, the “Night Stalker,” and his assertion

that anyone, even he, would have found death appropriate in such cases, could be

viewed as a way of establishing credibility with a jury composed of jurors willing

to impose the death penalty in at least some cases, and fit within the larger

apparent strategy of portraying Gamache‟s actions as not among the worst of the

worst. Defense counsel‟s frank acknowledgement of the seriousness of

Gamache‟s actions was likewise tactically justifiable; it might well have harmed

counsel‟s credibility to argue to a jury that had already convicted Gamache of

special-circumstance first degree murder that Gamache lacked the intent to kill or

that the impact of his conduct was not substantial. We have repeatedly recognized

that sensible concessions are an acceptable and often necessary tactic. (E.g.,

People v. Hart (1999) 20 Cal.4th 546, 631 [Concessions are appropriate where the

“surviving victim had testified in graphic detail regarding defendant‟s involvement

in the charged offenses.”]; People v. Bolin (1998) 18 Cal.4th 297, 334

[overwhelming evidence of defendant‟s guilt, including eyewitness testimony,

52

rendered concessions a “reasonable trial tactic”]; People v. Lucas (1995) 12

Cal.4th 415, 446-447 [admission defendant was at the scene was a competent

tactical choice given the state of the evidence]; People v. McPeters (1992) 2

Cal.4th 1148, 1186-1187 [same]; People v. Jackson (1980) 28 Cal.3d 264, 293

[“ „[G]ood trial tactics demanded complete candor‟ with the jury.”].)

Having made tactically justifiable concessions, defense counsel did in fact

argue that the prosecution‟s aggravating evidence, aside from the circumstances of

the Williams shootings, was trivial and the mitigating evidence, especially the

uncontradicted mental health testimony about Gamache‟s schizophrenia and

severe mental disorder, was more than sufficient to warrant a life verdict. He

stressed both the credibility of the experts and the prosecution‟s failure to present

anyone to rebut them. He further emphasized to the jury that the weighing process

was not a simple mathematical exercise in which 10 aggravating factors would

inevitably outweigh one mitigating factor: “If you consider that factor in

mitigation important enough to outweigh the factors in aggravation, no matter how

aggravated they may be, that one factor in mitigation is enough to support your

particular verdict of life without the possibility of parole. You don‟t need any

more than that.”

Gamache takes issue as well with defense counsel‟s treatment of two areas

of mitigating evidence: his age and his difficult childhood. Counsel raised

Gamache‟s age as a mitigating factor: “Another [mitigating factor], the age of the

defendant at the time of the crime, that would be [section 190.3, factor] (i). And

he was 18 years old. I‟ve always wondered about that as a defense attorney

because, you know, I guess if you‟re [18] years old you intend to kill somebody,

what the hell difference does it make how young you are? [¶] But it‟s an area in

mitigation and Richard Gamache was 18 years old at the time that this all went

down.” He then touched on Gamache‟s childhood: “Well, Richard Gamache, and

53

even [the prosecutor] admitted that in his opening remarks to you, of all the three

defendants he suffered a horrible, horrible childhood. [¶] His mother was a

prostitute, narcotics addict. He was not raised, he was dragged up. I submit if

[child protective services] had made the kind of inspection in that house that they

should have made years ago Richard Gamache, a nice looking young man, would

not have developed a mental defect or mental disorder that drove him to what he

did in December of ‟92. [¶] His mother shares some of that blame, and I‟m not the

kind of an attorney who says, hey, if your parents are bad that should inure to the

benefit of the defendant. But by all, all standards and criteria his mother was not a

mother.”

Not every attorney would have chosen to address these mitigating

circumstances in this fashion. But the decision to soft-pedal some aspects of the

mitigating evidence, such as Gamache‟s age, and strongly emphasize others, such

as the uncontradicted expert testimony about Gamache‟s mental illness, could

reasonably have been the product of a tactical decision to bolster credibility with

the jury by not appearing to argue that every permissible mitigating factor would

suffice of itself to excuse Gamache‟s conduct. Counsel could decide to try to

convey that if he argued Gamache‟s mental illness warranted sparing Gamache‟s

life, it was because he really believed Gamache‟s mental illness warranted sparing

his life, and not because he was the sort to argue that anything, such as age alone,

was enough to excuse extreme conduct.

Finally, Gamache contends defense counsel‟s treatment of the mental

health and catchall mitigating factors (§ 190.3, factors (d), (h), (k)) was too brief

and superficial, and his discussion of the absence of prior felony convictions as a

mitigating factor (id., factor (c)) was wholly absent. As to the former, we have

reviewed the transcript and conclude counsel‟s discussion was not so lacking as to

fall below the constitutional minimum. (See People v. Cudjo (1993) 6 Cal.4th

54

585, 634-635 [“The effectiveness of an advocate‟s oral presentation is difficult to

judge accurately from a written transcript, and the length of an argument is not a

sound measure of its quality.”]; People v. Lewis (2001) 25 Cal.4th 610, 675;

People v. Padilla (1995) 11 Cal.4th 891, 949; People v. Mayfield (1993) 5 Cal.4th

142, 186-187.) As to the latter, there are sound tactical reasons why counsel might

choose not to dwell on the absence of prior felony convictions; given the

prosecution‟s evidence that Gamache had participated in a violent takeover

robbery of a pizzeria just weeks before the Williams shootings, the absence of any

convictions could be seen as a simple artifact of Gamache‟s having turned 18

years old less than one year earlier, and touting those months without a conviction

might come at the price of credibility with the jury.

In sum, while defense counsel‟s closing argument is not immune from

criticism, it falls within the “wide range of reasonable professional assistance”

(Strickland v. Washington, supra, 466 U.S. at p. 689) that is constitutionally

tolerable.

F. Introduction of an Extrinsic Videotape into the Jury Room

During Penalty Deliberations

1. Erroneous Introduction of the December 4 Videotape

In the weeks following the jury‟s return of its verdicts, it came to the

attention of counsel and the trial court that, during the penalty phase deliberations,

the jury had viewed a videotape never admitted into evidence. The tape showed a

police interview of Richard Gamache, Tammy Gamache, and their juvenile

coparticipant, Thomas P., on the afternoon of December 4, the day of the murders

and arrests. Based on the jury‟s viewing of this extrinsic evidence, Gamache

moved for a new trial. (§ 1181, subds. 2, 3 [new trial may be based on receipt of

extrinsic evidence or juror misconduct].) The trial court denied the motion,

concluding there had been no misconduct and the viewing of the videotape was

55

not prejudicial. Gamache renews his claim of error before us, arguing he was

deprived of his rights to confrontation, counsel, an impartial jury, and due process.

(U.S. Const., 5th, 6th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 16.)

The trial court‟s evidentiary hearing revealed the following. During the

penalty phase, three videotapes were admitted into evidence: a tape of a

December 7 police interview of Richard Gamache, Tammy Gamache, and Andre

Ramnanan; a tape made by Tammy Gamache‟s mother; and a tape showing

alleged misconduct by Andre Ramnanan in prison. Counsel had consented to have

these tapes made available to the jury during deliberations. Court staff supplied

the jury with a television and a videotape player, as well as three videotapes.

Unfortunately, the third tape provided was not the Ramnanan tape, but the

December 4 tape of Richard and Tammy Gamache and Thomas P. Like the

admitted exhibits, the December 4 tape had been marked with a court exhibit tag

during pretrial motions; unlike them, it had not been admitted during trial.21

The jury watched the December 4 tape in its entirety twice on the first or

second day of its five days of deliberations, before any verdicts had been reached.

Sometime later, it reached a verdict for Richard Gamache. After reaching a

verdict for Richard Gamache, but before deciding on either codefendant, the jury

fast-forwarded through the tape to replay two short segments to confirm a juror‟s


21

The only reason the tape was not admitted is that codefendant Andre

Ramnanan had been absent when the tape was made, having not yet been arrested.
Accordingly, while everything on the tape could be used as an admission or
adoptive admission against Richard and Tammy Gamache, Aranda-Bruton
considerations would have required the prosecution to sever Ramnanan‟s trial at
the penalty phase if it wanted to use the tape. (Bruton, supra, 391 U.S. 123;
Aranda, supra, 63 Cal.2d 518; see also ante, pt. III.B.)

56

recollection as to what was on the tape. Thereafter, the jury reached a verdict for

Andre Ramnanan and deadlocked with respect to Tammy Gamache.

At one point in its deliberations, the jury asked to see the Ramnanan

misconduct tape, the one omitted by court personnel. A bailiff assured them the

Ramnanan misconduct was on one of the three tapes in the jury room. The trial

court instructed them to fast-forward through the tapes they had received because

the Ramnanan misconduct was on one of them.

2. Standard for Evaluating Prejudice

We review independently the trial court‟s denial of a new trial motion

based on alleged juror misconduct. (People v. Ault (2004) 33 Cal.4th 1250, 1261-

1262.) However, we will “ „accept the trial court‟s credibility determinations and

findings on questions of historical fact if supported by substantial evidence.‟ ” (Id.

at p. 1263.)

Introduction of the December 4 videotape into the jury room was

undisputably error; the jury should not have been allowed to consider extrinsic

evidence in reaching its verdict. (See Turner v. Louisiana (1965) 379 U.S. 466,

472 [“The requirement that a jury‟s verdict „must be based upon the evidence

developed at the trial‟ goes to the fundamental integrity of all that is embraced in

the constitutional concept of trial by jury.”]; People v. Nesler (1997) 16 Cal.4th

561, 578 (lead opn. of George, C. J.).) The only issue, then, is whether the error

was sufficiently prejudicial to warrant a new trial.

Preliminarily, we consider Gamache‟s argument that the error was

structural and therefore reversible per se. Error that occurs during the presentation

of the case to the jury is generally trial error; an error that erroneously adds to or

subtracts from the record before the jury can “be quantitatively assessed in the

context of the other evidence presented in order to determine whether its

57

admission was harmless beyond a reasonable doubt.” (Arizona v. Fulminante

(1991) 499 U.S. 279, 308; see also People v. Allen (2008) 44 Cal.4th 843, 870-

871.) A court in such circumstances can meaningfully ask “whether the guilty

verdict actually rendered in this trial was surely unattributable to the error.”

(Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) In contrast, structural errors not

susceptible to harmless error analysis are those that go to the very construction of

the trial mechanism — a biased judge, total absence of counsel, the failure of a

jury to reach any verdict on an essential element. (See Arizona v. Fulminante, at

pp. 309-310; Sullivan v. Louisiana, at pp. 280-281.)

Manifestly, the error here was trial error. The jury inadvertently had access

to never admitted evidence. This situation is no different than if the same

evidence had been proffered at trial and a valid objection to its admittance was

erroneously overruled. (People v. Cooper (1991) 53 Cal.3d 771, 836 [“The

situation [where a jury innocently considers evidence it was inadvertently given] is

the same as any in which the court erroneously admits evidence.”].) We

meaningfully may ask whether, in light of all the other evidence properly

admitted, the verdict this jury reached would have been the same absent exposure

to the December 4 videotape.

U.S. v. Noushfar (9th Cir. 1996) 78 F.3d 1442, amended (9th Cir. 1998)
140 F.3d 1244, on which Gamache places principal reliance, does not persuade us

otherwise. In Noushfar, as here, the jury was allowed during deliberations to play

14 tapes never played in open court, in violation of federal rules guaranteeing the

defendant a right to be present during the playing of any such tapes. (78 F.3d at

p. 1444; Fed. Rules Crim.Proc., rule 43(a), 18 U.S.C.) The Ninth Circuit

concluded the trial court‟s approval of this procedure over objection amounted to

“a „complete abdication of judicial control over the process‟ ” (78 F.3d at p. 1445)

and constituted structural error. However, the same court has subsequently limited

58

Noushfar to its facts — specifically, that 14 tapes were involved, and the trial

judge acquiesced in the error. (Eslaminia v. White (9th Cir. 1998) 136 F.3d 1234,

1237, fn. 1.) In Eslaminia, the Ninth Circuit considered a single tape in the jury

room that contained admitted evidence on one side and, unbeknownst to all,

unadmitted evidence on the other side — a situation far more analogous to the one

here — and concluded the jury‟s consideration of the unadmitted portion of the

tape was trial error subject to harmless error analysis: “[J]ury consideration of

taped comments by a non-testifying party raises discrete evidentiary issues that the

court may clearly identify and analyze, and is similar to other commonly-

recognized trial errors.” (Ibid.) With that analysis we agree.

We consider next whether the jury‟s consideration of the December 4

videotape resulted from any misconduct. Juror misconduct gives rise to a

presumption of prejudice (People v. Leonard (2007) 40 Cal.4th 1370, 1425); the

prosecution must rebut the presumption by demonstrating “there is no substantial

likelihood that any juror was improperly influenced to the defendant‟s detriment”

(People v. Clair (1992) 2 Cal.4th 629, 668; see People v. Marshall (1990) 50

Cal.3d 907, 949). In contrast, in the absence of misconduct, the burden remains

with the defendant to demonstrate prejudice under the usual standard for ordinary

trial error. (Clair, at p. 668; People v. Cooper, supra, 53 Cal.3d at p. 836.)

We have consistently pardoned jurors for considering extrinsic evidence

that finds its way into the jury room through party or court error. In People v.

Cooper, supra, 53 Cal.3d 771, a transcript never intended for the jury‟s eyes was

inadvertently marked as an exhibit, admitted, and sent to the jury room. The

jury‟s consideration of the exhibit was only ordinary error: “When, as in this case,

a jury innocently considers evidence it was inadvertently given, there is no

misconduct.” (Id. at p. 836.) In People v. Clair, supra, 2 Cal.4th 629, a court

clerk inadvertently supplied jurors with an unredacted audiotape and transcript of

59

statements by the defendant to the police; portions of the conversation had been

excluded by the court as irrelevant and unduly prejudicial. (Id. at p. 665.) Relying

on Cooper, we again characterized consideration of this material as ordinary error,

not misconduct. (Clair, at pp. 667-668.) And in People v. Jackson (1996) 13

Cal.4th 1164, 1213, a clerical error may again have resulted in the jury‟s receiving

an unredacted transcript of the defendant‟s statements; even if so, the court‟s error

did not equate to juror misconduct. (See also People v. Jordan (2003) 108

Cal.App.4th 349, 364 [court‟s inadvertent submission of parole information to the

jury was ordinary error]; People v. Rose (1996) 46 Cal.App.4th 257, 264

[inadvertent receipt of a police report during deliberations was ordinary error].)

In contrast, we have found juror misconduct where a juror actively or

passively obtains information about a case from outside sources. (E.g., People v.

Ramos (2004) 34 Cal.4th 494, 518-520 [consideration of outside newspaper

articles during trial]; People v. Danks (2004) 32 Cal.4th 269, 306-307

[conversation with pastor about the case]; People v. Nesler, supra, 16 Cal.4th at

pp. 579-580 [overhearing information about the case in a bar and revealing it to

fellow jurors].) As we have explained, even though “inadvertent exposure to out-

of-court information is not blameworthy conduct, as might be suggested by the

term „misconduct,‟ it nevertheless gives rise to a presumption of prejudice,

because it poses the risk that one or more jurors may be influenced by material

that the defendant has had no opportunity to confront, cross-examine, or rebut.”

(Nesler, at p. 579.) As Nesler itself stressed, however, that presumption extends

only to cases that involve the inadvertent receipt of outside information, and not to

those where the court itself inadvertently furnished extrinsic information.

Here, the trial court found the jury‟s exposure to the December 4 videotape

was accidental and solely the result of court staff error: “The jury got [the tape]

through no fault of their own.” (The court speculated the December 4 tape might

60

have been mistakenly slipped into the wrong videotape sleeve.) Accordingly, the

court concluded there had been no juror misconduct: instead, “[i]t was

inadvertence, mistake, and it was innocent . . . the jury was given this information,

was told this was the evidence, the three tapes that they had were the evidence in

the case, and therefore viewed it.”

Gamache argues there was in fact misconduct. The jury had been

instructed not to consider outside evidence (CALJIC No. 1.03) and should have

recognized the December 4 tape was something they had not seen in the course of

trial. Indeed, the jury foreperson testified he could not recall having seen the tape

during trial. In these circumstances, Gamache argues, failing to stop the tape and

advise the court and instead proceeding to view it multiple times was misconduct.

We disagree. The placement of the December 4 tape in the jury room

suggested to the jurors it was something they were supposed to have; subsequent

statements by the bailiff that they were supposed to have three videotapes and by

the trial court that they were supposed to have videotapes would likely have

cemented that belief. The jurors were not lawyers, nor were they privy to any

stipulations the parties might have made about what could or could not be taken

into the jury room. They thus had little reason to think the December 4 videotape

was “outside” evidence they should not consider. Under People v. Cooper, supra,

53 Cal.3d 771, and its progeny, this was ordinary error. Accordingly, no

presumption of prejudice applies. As the error occurred at the penalty phase of a

capital trial, we ask “whether there is a reasonable possibility the error affected the

verdict.” (People v. Gonzalez (2006) 38 Cal.4th 932, 960-961.)22


22

As we reiterated in People v. Gonzalez, supra, 38 Cal.4th at page 961, this

standard is effectively identical to the Chapman standard for federal constitutional


(footnote continued on next page)

61

3. Harmless Error Analysis

We have reviewed in detail the December 4 videotape, comparing it with

both the December 7 videotape — which was properly admitted and also provided

to the jury in the jury room — and the entirety of the other evidence in the record.

Preliminarily, we agree with the trial court that both the general subject matter and

Gamache‟s demeanor were essentially the same on both the December 4 and the

December 7 tapes. Each revealed Gamache as largely without emotion,

indifferent to his actions, and frustrated or regretful only at failing to kill Peggy

Williams and thereafter being caught. The ground covered by police questioning

during the two interviews largely overlapped, though inevitably certain material

was unique to each. Comparing those statements that appeared only on the

December 4 tape with the rest of the admitted evidence, we find little that was new

and nothing that would have changed the outcome of the trial. Accordingly, we

conclude the error in making the December 4 videotape available to the jury did

not prejudice Gamache; there is no reasonable possibility the outcome would have

been different absent the error. (People v. Gonzalez, supra, 38 Cal.4th at pp. 960-

961.)

Gamache identifies seven portions of the December 4 tape he argues were

new and prejudicial:

(1) Thomas P. was asked about a conversation he overheard between

Ramnanan and Gamache before they left to go to the Williamses‟, a conversation

about killing their victims. Thomas P. said he thought they were joking — a

remark that benefited Gamache. Before he could further describe the


(footnote continued from previous page)

error (Chapman v. California, supra, 386 U.S. 18). Thus, our harmless error
discussion covers both state and federal claims of error.

62

conversation, however, Gamache interrupted and described it for him. Ramnanan

and Gamache had been discussing their hopes that nothing would go wrong and

there would be no accidents; Gamache had said it would “really break my heart” if

there was an accident, and explained that he had been making a joke, as he often

did, even about things that might seem “psychotic . . . sadistic, masochistic,

whatever.”

The trial court found no prejudice because the jury had already heard from

two different sources evidence of Gamache‟s statements that indicated the

shootings had always been planned. First, Donald Gray, an acquaintance of

Ramnanan‟s, testified to overhearing a conversation between Gamache and

Ramnanan while the three of them were taking target practice in the desert outside

Yermo on the afternoon of December 3. According to Gray, Gamache and

Ramnanan discussed stealing a trailer and said, “if the guy gave them any

problems they were going to shoot them.” Second, on the December 7 videotape,

Gamache made statements that similarly confirmed planning, explaining his

choice of gun: “The .38 was empty. There were no bullets in it. I was going to

shoot them with the .38. I looked in it and there were no bullets in it. I stuck it in

my coat pocket. I got the .32. I wanted to shoot the .38 cause I have hollow

points for it.”

We agree with the trial court. Moreover, the evidence that Gamache had

always planned to kill the Williamses, whether they resisted or not, was

overwhelming. Gamache and the others never consistently tried to hide their

identities from the Williamses, as they would have had they ever intended to let

them live. They turned off the lights and locked the house upon leaving the

Williams residence (a pointless gesture that would not have delayed discovery of

the crimes if they expected anyone to show up alive hours later), brought the

Williamses only 1.4 miles out a desert road, and walked them less than 200 feet

63

off the road with guns in their pockets and nothing with which to tie the

Williamses up. These were not the actions of someone who shot the Williamses

impulsively.

(2) Gamache described his actions between shooting Peggy Williams for

the first and second times; while Peggy Williams lay on the ground, he shot her

from behind, took her pulse, felt nothing, moved to the front of her to avoid hitting

Ramnanan with a ricochet, and shot her again. As the trial court recognized,

Gamache had described these actions in similar terms during the December 7

interview: after he shot her once, he “[l]ooked at her eyes. Her eyes were still

fluttering which showed me she still had brain activity and I shot her again and

there was no REM. I went to take her pulse and I couldn‟t get a pulse on her. . . .

If she wasn‟t dead, [with] two bullets in her head, I didn‟t think she would get up

and walk away and talk to anybody. That‟s for goddamn sure. So we got up and

left.” Gamache told Deputy Ells during booking: “I shot her once. I saw her eyes

flutter. I shot her again in the back of the head. I know the skull is thicker back

there.” Peggy Williams herself described Gamache and Ramnanan discussing

whether she was dead or alive after she had been shot once, then checking her

pulse, shining a light in her eyes, shooting her again, and walking away. The new

fact that Gamache had changed angles before shooting Peggy Williams a second

time would not have made any difference. Gamache does not persuasively argue

otherwise.

(3) Asked if anyone had put a gun in Peggy Williams‟s mouth, Gamache

said, “No, I don‟t think so.” When asked whether that meant it could have

happened, Gamache replied: “It could have. I don‟t know.” We agree with the

trial court‟s estimation that this equivocal denial concerning what might have

happened during the crimes would have been accorded little, if any, aggravating

weight by the jury and would not have affected the outcome.

64

(4) Gamache was asked if he, Tammy Gamache, and Ramnanan had

worked out a story to tell in the event of their arrest. He replied: “Nope. Because

it was clean. After they were shot we figured, well, oops!” He foresaw no

problems because if she “had two bullets to her head that would make sure she

was dead.” Asked if he thought Peggy Williams was dead when they left, he said:

“I should have used [the] .45. . . . I thought she was dead before I left. [If I had

used it,] chances are [I] wouldn‟t be here right now.”

Again, as the trial court recognized, these remarks were cumulative of other

penalty phase evidence that showed Gamache regretted only his choice of weapon

and not his decision to shoot the Williamses. Deputy Ells testified that when he

was booking Gamache on December 5, Gamache told him: “I fucked up. I knew

better. I should have used a .45.” On the December 7 videotape, Gamache

explained: “I know .32‟s will bounce off window shields of cars. But I was so

tired I just didn‟t feel like going back for that .45. I know that .45 would of

fucking made a major hole and only taken one shot. But I was so tired I wasn‟t

registering [in] my mind what I was doing. It wasn‟t a perceived thought. It

wasn‟t planned ahead to do it. But after I had done it I knew I should have used

the .45. Just for good measure.”

(5) At the close of the interview, the investigating officer sought to confirm

for the record that Gamache had not been coerced to talk through threats or

intimidation. Gamache said he had not and then explained his decision to confess:

“I . . . started to do a little thinking and I realized, fuck it, I‟m going to fry

anyway.” This statement was not cumulative, but neither was it prejudicial.

Given all the evidence, there was no reasonable possibility any juror who felt

Gamache deserved a life sentence would have changed his or her mind simply

65

because Gamache, in an offhand remark, indicated he thought he might well get a

death sentence.23

(6) After the interview had concluded, Gamache offered an unsolicited

remark to no one in particular: “If I figured, if I had any idea I was about to be

arrested, I‟d have started shooting.” He elaborated: “See, I figure if I‟m going to

die, fuck, I‟m going to take one or two with me.” Evidence in the record showed

Gamache wanted to be shot by the police. Dr. Kania testified that Gamache

fantasized about dying on the field of honor, with one last rush of excitement,

rather than continuing to live, feeling hopeless and empty. That he would have

initiated a police shootout given the opportunity, then, would have come as no

surprise to the jury. To the extent these statements presented new information,

however, they were not prejudicial. Overwhelming evidence of Gamache‟s

callousness toward human life was introduced during the penalty phase.

Gamache‟s statements that he would have treated police officers seeking to arrest

him the same way he treated the Williamses did not materially alter the profile the

penalty phase evidence painted for the jury. Accordingly, there is no reasonable

possibility exclusion of these statements would have made a difference in the

outcome.

(7) Asked why he shot the Williamses, Gamache explained: “I don‟t think

there was a reason. I think it was just lack of control. I didn‟t think about control.

That split second. Either that or I got an adrenaline rush and my dick got hard.

I can‟t tell.” While Gamache argues that he was prejudiced by the introduction of

his statement about his arousal, the statement was cumulative: The jury had


23

Contrary to Gamache‟s current characterization of this remark, a reasonable

juror would not have interpreted it as indicating Gamache thought he deserved
death, only that that might be a likely outcome.

66

already heard similar evidence establishing that Gamache was, or repeatedly joked

about being, aroused by guns and by the Williams shootings. Detective Bradford

testified to this exact statement by Gamache during the December 4 interview,

telling the jury Gamache had said, matter of factly, “I don‟t know if I got an

adrenaline rush or my dick got hard.” Deputy Ells testified that when he booked

Gamache on December 5, Gamache told him, “I almost got an erection” during the

shootings. Dr. Forbes testified about Gamache having an erection in connection

with the shootings. Dr. Forbes also testified Gamache believed he had been

discharged from the military for writing that he got an erection when he got his M-

16 rifle.

Considering the impact of these various remarks individually and

collectively, in light of the other evidence already in the record, we conclude there

is no reasonable possibility Gamache would have received a more favorable

outcome had the December 4 videotape not been erroneously placed in the jury

room.

G. Denial of Automatic Application for Modification of the

Death Sentence

Gamache challenges the trial court‟s denial of his automatic application for

modification of the jury‟s verdict. He contends the court deprived him of his due

process and Eighth Amendment rights by (1) failing to independently review the

evidence and penalty factors supporting the jury‟s findings, (2) overvaluing

aggravating factors and undervaluing mitigating factors, (3) preparing a written

tentative ruling in advance of the hearing on the application, and (4) soliciting no

defense briefing. (U.S. Const., 8th & 14th Amends.; Cal. Const., art. 1, §§ 7, 15,

16, 17.) Gamache has forfeited these claims by failing to object

contemporaneously. (People v. Mungia (2008) 44 Cal.4th 1101, 1141; People v.

Wallace, supra, 44 Cal.4th at p. 1096.) In any event, we find no error.

67

Every death verdict triggers an automatic application for modification of

the sentence. (§ 190.4, subd. (e).) The trial court is obligated to review the

evidence, independently reweigh any aggravating and mitigating circumstances,

and determine whether the weight of the evidence supports the verdict. (Ibid.;

People v. Wallace, supra, 44 Cal.4th at p. 1096; People v. Alfaro (2007) 41

Cal.4th 1277, 1334.) In ruling on the application, the trial court must set forth

reasons on the record and direct that they be entered in the clerk‟s minutes.

(§ 190.4, subd. (e).) On appeal, we review the trial court‟s ruling independently,

but it is not our role to redetermine the penalty in the first instance. (Wallace, at

p. 1096; People v. Geier (2007) 41 Cal.4th 555, 616.)

Here, the trial court‟s four-page, single-spaced statement of reasons belies

Gamache‟s assertion that the court failed to independently review the evidence

and consider fully any relevant aggravating and mitigating factors. The trial court

expressly acknowledged its awareness of its obligations to “reweigh the evidence

of aggravating and mitigating factors, and to determine whether, in the court‟s

independent judgment, the weight of the evidence supports the verdict” and

“assess the credibility of witnesses, determine the probative force of the testimony

and weigh the evidence, including reviewing all the designated factors under Penal

Code section 190.3.” The trial court then did just that; it reviewed at length the

circumstances of the crime, as supported by the weight of the evidence, and

Gamache‟s prior unlawful conduct. It considered against those aggravating

factors Gamache‟s age, his difficult family history, his absence of prior felony

convictions, and the expert defense testimony calling into doubt Gamache‟s sanity

and ability to form the intent to kill. Weighing these factors, the court concluded

the aggravating evidence substantially outweighed the mitigating evidence and the

jury‟s verdict was warranted. The record leaves no doubt that the trial court here

conscientiously carried out its obligations under section 190.4, subdivision (e).

68

Contrary to Gamache‟s contentions, the trial court did not “ignore” the relevant

mitigating factors; it simply did not find them dispositive. While section 190.4

and the state and federal Constitutions guarantee a defendant the right to have

mitigating evidence considered, trial courts can and must sustain a jury‟s death

verdict where, in their estimation, the evidence in aggravation so warrants.

(People v. Wallace, supra, 44 Cal.4th at p. 1097 [trial court is not required to find

the mitigating evidence does in fact mitigate]; People v. Alfaro, supra, 41 Cal.4th

at p. 1334 [same]; People v. Steele (2002) 27 Cal.4th 1230, 1267-1268 [same].)

As for Gamache‟s further procedural complaints about the denial of the

motion, we have rejected each in the past, and Gamache presents no compelling

reason for us to reconsider those conclusions. The trial court‟s preparation of a

written tentative ruling in advance of the modification hearing was not error; as we

have explained, a trial court may “study[] the merits of a motion in advance of the

hearing and reach[] a tentative conclusion as to how the motion should be

resolved.” (People v. Hayes (1990) 52 Cal.3d 577, 645.) Reducing that

conclusion to writing is entirely acceptable: “To do so does not mean that the

court is unalterably bound by the writing or that it will not amend or even discard

the writing if counsel‟s arguments persuade the court that its tentative views were

incorrect.” (Ibid.; accord, People v. Medina (1995) 11 Cal.4th 694, 783.) Nor was

the trial court required to demand argument or briefing in support of a

modification motion. (People v. Diaz (1992) 3 Cal.4th 495, 575-576.)

H. Constitutionality of the Death Penalty for 18 Year Olds

Gamache contends imposition of the death penalty for crimes committed as

an 18 year old violates “Fundamental Notions of Justice.” We disagree. Neither

the Eighth Amendment and equal protection clause of the federal Constitution nor

the corresponding provisions of the California Constitution prohibit per se death as

69

punishment for crimes committed when 18 years of age. (See U.S. Const., 8th &

14th Amends.; Cal. Const., art. I, §§ 7, 17.)

We previously have rejected the argument that a death penalty scheme that

treats differently those who are 18 years of age and older, and those younger than

18, violates equal protection. (People v. Williams (1988) 45 Cal.3d 1268, 1331;

People v. Turville (1959) 51 Cal.2d 620, 638.) Indeed, the United States Supreme

Court has concluded the federal Constitution draws precisely this line, prohibiting

the death penalty for those younger than 18 years of age, but not for those 18 years

of age and older. (Roper v. Simmons (2005) 543 U.S. 551, 574 [“The age of 18 is

the point where society draws the line for many purposes between childhood and

adulthood. It is, we conclude, the age at which the line for death eligibility ought

to rest.”].)

Nor does consideration of “evolving standards of decency” (Trop v. Dulles

(1958) 356 U.S. 86, 101 (plur. opn. of Warren, C. J.)) under the Eighth

Amendment to the federal Constitution lead us to a different conclusion. When

the United States Supreme Court recently considered this issue, it identified an

emergent national consensus that execution of individuals for crimes committed

when younger than 18 years of age was cruel and unusual. (Roper v. Simmons,

supra, 543 U.S. at pp. 564-567.) It identified no comparable consensus for crimes

committed by those age 18 or older. (See id. at pp. 579-581 [documenting that no

state with a death penalty had a minimum age higher than 18].) Accordingly, we

cannot say evolving standards of decency require abolition of the death penalty for

crimes committed by 18 year olds.24


24

Gamache also argues the death penalty is morally wrong and, thus, under

evolving standards of decency is unconstitutional as to all defendants. However,
the United States Supreme Court has established that “capital punishment is


(footnote continued on next page)

70

This is not to say that age is not a relevant factor; under our death penalty

scheme, a jury may consider a defendant‟s age as part of the matrix of factors that

may lead it to choose life without the possibility of parole instead of death.

(§ 190.3, factor (i).) The jury here was afforded that opportunity, but nevertheless

chose death. Neither the federal nor the state Constitution prohibits that verdict.

I. Constitutionality of California’s Death Penalty

Finally, Gamache raises a series of challenges to the constitutionality of

California‟s death penalty. We have rejected each challenge before. As Gamache

offers no compelling arguments in favor of reconsidering any of these rulings, we

do so again.

“California homicide law and the special circumstances listed in section

190.2 adequately narrow the class of murderers eligible for the death penalty . . . .”

(People v. Demetrulias (2006) 39 Cal.4th 1, 43; see People v. Stevens (2007) 41

Cal.4th 182, 211; People v. Chatman (2006) 38 Cal.4th 344, 410.) Specifically,

the felony-murder special circumstance (§ 190.2, subd. (a)(17)) is not overbroad

and adequately narrows the pool of those eligible for death. (People v. Kraft

(2000) 23 Cal.4th 978, 1078.)

Section 190.3, factor (a), which permits the jury to consider the

circumstances of the crime in deciding whether to impose the death penalty, does

not license the arbitrary and capricious imposition of the death penalty. (Tuilaepa

v. California (1994) 512 U.S. 967, 975-976; People v. Cruz (2008) 44 Cal.4th 636,


(footnote continued from previous page)

constitutional” even under contemporary standards. (Baze v. Rees (2008) 553 U.S.
35, ___ [128 S.Ct. 1520, 1529] (plur. opn. of Roberts, C. J.); id. at p. ___ [128
S.Ct. at p. 1552] (conc. opn. of Scalia, J.) [“[T]he death penalty is a permissible
legislative choice.”]; id. at p. ___ [128 S.Ct. at p. 1556] (conc. opn. of Thomas, J.)
[“[T]he Constitution permits capital punishment in principle . . . .”].)

71

680; People v. Watson (2008) 43 Cal.4th 652, 703; People v. Guerra, supra, 37

Cal.4th at p. 1165; People v. Smith (2005) 35 Cal.4th 334, 373.)

California‟s grant of discretion to prosecutors to decide in which cases to

seek the death penalty is constitutional. (People v. Rundle (2008) 43 Cal.4th 76,

199; People v. Tafoya, supra, 42 Cal.4th at p. 198; People v. Crittenden, supra,

9 Cal.4th at p. 152.)

The trial court did not err when it gave CALJIC No. 8.85, an instruction we

have repeatedly upheld, instead of Gamache‟s proposed alternative. Contrary to

Gamache‟s argument, the trial court was not constitutionally required to instruct

the jury that section 190.3‟s mitigating factors could be considered only as

mitigating factors and that the absence of evidence supporting any one of them

should not be viewed as an aggravating factor. (E.g., People v. Cruz, supra, 44

Cal.4th at p. 681; People v. Gray (2005) 37 Cal.4th 168, 236; People v. Panah,

supra, 35 Cal.4th at pp. 499-500.) Nor did the use of the word “extreme” in

section 190.3, factor (d) prevent the jury from considering relevant mitigating

evidence. (Cruz, at p. 681; People v. Bonilla, supra, 41 Cal.4th at p. 360; People

v. Smith (2003) 30 Cal.4th 581, 642.)

Nothing in the state or federal Constitution requires that the penalty jury

(1) issue written findings, (2) unanimously agree on any particular aggravating

circumstances, or (3) find true any particular aggravating circumstances beyond a

reasonable doubt. (E.g., People v. Cruz, supra, 44 Cal.4th at p. 681; People v.

Watson, supra, 43 Cal.4th at p. 703; People v. Demetrulias, supra, 39 Cal.4th at

pp. 40, 43.) The trial court is not required to instruct the penalty jury on a

“ „presumption of life.‟ ” (People v. Kipp (2001) 26 Cal.4th 1100, 1137; see also

People v. Arias (1996) 13 Cal.4th 92, 190.) Nor is the trial court required to

instruct the penalty jury on any burden of proof; in California, at the penalty

phase, there is no burden of proof, only a normative judgment for the jury. (E.g.,

72

Demetrulias, at p. 40; People v. Moon (2005) 37 Cal.4th 1, 43-44; People v. Stitely

(2005) 35 Cal.4th 514, 573.) Nor was any burden of proof instruction needed to

establish a tie-breaking mechanism here; the jury was instructed to return a

sentence of death only if it concluded “that the aggravating circumstances are so

substantial in comparison with the mitigating circumstances that it warrants death

instead of life without parole.”

Neither the state nor the federal Constitution requires comparison of

Gamache‟s sentence with the sentences of others. First, intercase proportionality

review, also known as comparative proportionality review, is not required to

render California‟s sentencing scheme constitutional. (E.g., People v. Cruz, supra,

44 Cal.4th at p. 681; People v. Watson, supra, 43 Cal.4th at p. 704; People v.

Demetrulias, supra, 39 Cal.4th at p. 44.) Second, the equal protection clause does

not require California to include in its capital sentencing scheme the same

disparate sentence review previously provided noncapital convicts under the

Determinate Sentencing Act. (People v. Bonilla, supra, 41 Cal.4th at p. 360;

People v. Boyette (2002) 29 Cal.4th 381, 466, fn. 22.) Third, intracase

proportionality review is not constitutionally compelled; the sentence an

accomplice receives has little bearing on the individualized consideration of a

capital defendant‟s penalty. (People v. McDermott (2002) 28 Cal.4th 946, 1005;

People v. Bemore (2000) 22 Cal.4th 809, 857.)

Gamache contends that violations of his state and federal constitutional

rights are violations of international law. His premise fails; his sentence was

arrived at in compliance with the state and federal Constitutions and relevant

statutory requirements, and thus also complies with international law. (People v.

Tafoya, supra, 42 Cal.4th at p. 199; People v. Carey (2007) 41 Cal.4th 109, 135.)

Finally, lengthy confinement under a sentence of death does not constitute

cruel and unusual punishment and violates neither the state and federal

73

Constitutions nor international law. (People v. Bennett (2009) 45 Cal.4th 577,

630; People v. Dunkle (2005) 36 Cal.4th 861, 942; People v. Panah, supra, 35

Cal.4th at p. 500; People v. Jones (2003) 29 Cal.4th 1229, 1267; People v.

Anderson (2001) 25 Cal.4th 543, 606; People v. Massie (1998) 19 Cal.4th 550,

574; People v. Frye, supra, 18 Cal.4th at pp. 1030-1031.)

J. Cumulative Prejudice from Errors

Gamache contends that even if we do not conclude any individual error

mandates reversal, the cumulative effect of the guilt and penalty phase errors

requires reversal of the penalty verdict. We disagree. We have identified only one

error during the guilt phase, the erroneous phrasing of CALJIC No. 2.15, and one

error during the penalty phase, the inadvertent introduction of the December 4

videotape into the jury room. Each error was harmless. Considered together, their

cumulative effect was likewise harmless, and Gamache was not denied a fair

penalty phase trial.

K. Non-death-penalty Sentencing Errors

1. Calculation of determinate sentence

In addition to the death sentence and three life sentences for murder,

attempted murder, and kidnapping for purposes of robbery, Gamache received

consecutive determinate sentences for two counts of robbery, one count of

burglary, and gun use enhancements on each count. Both sides agree the trial

court erred in calculating the determinate portion of Gamache‟s sentence.

First, the trial court sentenced Gamache to the upper term of six years, with

an additional five-year gun use enhancement, on both count three (§§ 211 [first

degree residential robbery], 12022.5, subd. (a) [gun use]) and count five (§§ 459

[first degree residential burglary], 12022.5, subd. (a) [gun use]). Under the

Determinate Sentencing Act, however, the trial court should have imposed the full

74

term for only one of these violent felonies, and instead imposed one-third the

middle term (one year four months) and one-third the enhancement (one year eight

months) on the second felony. (See § 1170.1.) Thus, both sides agree, the trial

court should have sentenced Gamache to a total of three years, not 11 years, on the

subordinate of these two felonies.

Second, when sentencing Gamache for gun use enhancements in

connection with the three life sentence counts (counts two, six, and seven), the

trial court imposed only one-third the middle term, or one year four months. But

as the People point out, and Gamache concedes, the statutory limits that require

additional enhancements be limited to one-third the designated term apply only to

crimes for which a determinate sentence is imposed; they do not apply to

enhancements attached to indeterminate terms. (People v. Felix (2000) 22 Cal.4th

651, 656.) Thus, on counts two, six, and seven, the trial court should have

selected from the full lower, middle, or upper term, rather than one-third the

middle term. As we cannot determine how the trial court would have exercised its

sentencing discretion on these enhancements had it properly understood that it had

discretion, we will remand to allow the trial court to exercise its discretion in the

first instance. (See, e.g., People v. Oates (2004) 32 Cal.4th 1048, 1068-1069.)

2. Restitution

Gamache contends the trial court erred by imposing a $10,000 victim

restitution fine without taking adequate consideration of his ability to pay. (See

§ 1202.4.) We find no error.

First, Gamache forfeited this claim by failing to object at his sentencing

hearing. We reject Gamache‟s contention that any forfeiture should be excused so

that he may benefit from the ameliorative statutory amendments that occurred

while his case was on appeal. (See People v. Vieira, supra, 35 Cal.4th at pp. 305-

75

306.) Unlike in Vieira, Gamache‟s claim does not depend on any subsequent

amendments; the law at the time of both his 1992 crime and 1996 sentencing

called for the trial court to consider his ability to pay in setting a restitution fine,

and Gamache could have objected at the time if he believed inadequate

consideration was being given to this factor. (See Gov. Code, former § 13967,

subd. (a), as amended by Stats. 1992, ch. 682, § 4, p. 2922 [restitution fine

“subject to the defendant‟s ability to pay”]; Pen. Code, § 1202.4, subd. (d) [trial

court shall consider “defendant‟s inability to pay”].)

Second, Gamache‟s claim fails on the merits. He points to no evidence in

the record supporting his inability to pay, beyond the bare fact of his impending

incarceration. Nor does he identify anything in the record indicating the trial court

breached its duty to consider his ability to pay; as the trial court was not obligated

to make express findings concerning his ability to pay, the absence of any findings

does not demonstrate it failed to consider this factor. Thus, we cannot say on this

record that the trial court abused its discretion.

76

DISPOSITION

We conclude the trial court‟s judgment should be affirmed as to Richard

Gamache‟s conviction for special circumstance murder (count one) and

corresponding sentence of death, as well as his convictions for attempted murder

(count two), robbery (counts three and four), burglary (count five), and kidnapping

for robbery (counts six and seven). It should be reversed as to the determinate

portions of Gamache‟s sentence on counts two, three, five, six, and seven and this

case remanded to permit the trial court to exercise its discretion and correct the

judgment in accordance with the views expressed in this opinion.













WERDEGAR, J.

WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.



77

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gamache
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S052808
Date Filed: March 18, 2010
__________________________________________________________________________________

Court:
Superior
County: San Bernardino
Judge: James A. Edwards

__________________________________________________________________________________

Attorneys for Appellant:

Richard Jay Moller, under appointment by the Supreme Court, for Defendant and Appellant.





__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, William M. Wood, Holly D. Wilkens and Kristine
A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.








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

Richard Jay Moller
So‟Hum Law Center of Richard Jay Moller
P.O. Box 1669
Redway, CA 95560-1669
(707) 923-9199

Kristine A. Gutierrez
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2028


Automatic appeal from a judgment of death.

Opinion Information
Date:Docket Number:Category:Status:
Thu, 03/18/2010S052808Automatic Appealopinion issued

Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Kristine Gutierrez, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2Gamache, Richard Cameron (Appellant)
San Quentin State Prison
Represented by Richard Jay Moller
Attorney at Law
P.O. Box 1669
Redway, CA


Disposition
Mar 18 2010Opinion: Affirmed in part/reversed in part

Dockets
Apr 2 1996Judgment of death
 
Apr 8 1996Filed certified copy of Judgment of Death Rendered
  4-2-96.
Aug 21 2000Counsel appointment order filed
  Atty Richard Jay Moller appointed for direct appeal
Sep 1 2000Received letter from:
  San Bernardino Superiour Court; dated 8/28/2000; re advising record was mailed to applt counsel same date.
Oct 20 2000Counsel's status report received (confidential)
  from atty Moller.
Oct 20 2000Application for Extension of Time filed
  By applt to request corr. of the record. (1st request)
Oct 31 2000Extension of Time application Granted
  To 1/30/2001 to applt to request corr. of the record.
Nov 1 2000Compensation awarded counsel
  Atty Moller
Dec 15 2000Counsel's status report received (confidential)
  from atty Moller.
Jan 30 2001Application for Extension of Time filed
  By applt to request corr. of the record. (2nd request)
Feb 5 2001Extension of Time application Granted
  To 4/2/2001 to applt to request corr. of the record.
Feb 20 2001Counsel's status report received (confidential)
  from atty Moller.
Feb 28 2001Compensation awarded counsel
  Atty Moller
Mar 23 2001Application for Extension of Time filed
  by applt. to request corr. of the record. (3rd request)
Mar 27 2001Extension of Time application Granted
  To 6/1/2001 by applt. to request corr. of the record. (No further extentions of time contemplated)
Apr 5 2001Counsel's status report received (confidential)
  from atty Moller.
Apr 19 2001Compensation awarded counsel
  Atty Moller
Jun 11 2001Received copy of appellant's record correction motion
  applt's motion to correct and augment the record. (23 pp.)
Jun 14 2001Compensation awarded counsel
  Atty Moller
Jun 15 2001Filed:
  Amended proof of service of copy of applt.'s motion to correct and augment the record.
Aug 15 2001Compensation awarded counsel
  Atty Moller
Aug 16 2001Counsel's status report received (confidential)
  from atty Moller.
Oct 19 2001Counsel's status report received (confidential)
  from atty Moller.
Nov 19 2001Counsel's status report received (confidential)
  (supplemental) from atty Moller.
Dec 13 2001Counsel's status report received (confidential)
  from atty Moller.
Mar 22 2002Counsel's status report received (confidential)
  from atty Moller.
Apr 4 2002Compensation awarded counsel
  Atty Moller
Apr 29 2002Counsel's status report received (confidential)
  from atty Moller.
Jun 12 2002Compensation awarded counsel
  Atty Moller
Jul 9 2002Counsel's status report received (confidential)
  from atty Moller.
Sep 9 2002Counsel's status report received (confidential)
  from atty Moller.
Nov 12 2002Counsel's status report received (confidential)
  from atty Moller.
Nov 21 2002Record on appeal filed
  Clerk's transcript-45 volumes (13064 pp.) and reporter's transcript-39 volumes (7297 pp.) including material under seal. Clerk's transcript includes 9308 pp. of juror questionnaires.
Nov 21 2002Appellant's opening brief letter sent, due:
  December 31, 2002.
Dec 26 2002Counsel's status report received (confidential)
  from atty Moller.
Dec 26 2002Request for extension of time filed
  To file appellant's opening brief. (1st request)
Jan 6 2003Extension of time granted
  To 3/3/2003 to file appellant's opening brief. The court anticipates that after that date, only five further extensions totaling 300 additional days will be granted. Counsel is ordered to inform his or her assisting 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 15 2003Request Denied
  Appellant Richard Cameron Gamache's application requesting the immediate appointment of habeas corpus/executive clemency counsel, filed by the court on December 26, 2002, is denied. Habeas corpus/executive clemency counsel will be appointed in due course. (People v. Holt (1997) 15 Cal.4th 619, 708-709, and People v. Horton (1995) 11 Cal.4th 1068, 1141.)
Feb 13 2003Compensation awarded counsel
  Atty Moller
Feb 21 2003Counsel's status report received (confidential)
  from atty Moller.
Feb 21 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Feb 27 2003Extension of time granted
  to 5/2/2003 to file appellant's opening brief. The court anticipates that after that date, only four further extensions totaling 240 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate cousnel of record, of this schedule, and to take all steps necessary to meet it.
Apr 25 2003Counsel's status report received (confidential)
  from atty Moller.
Apr 25 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Apr 30 2003Extension of time granted
  to 7/1/1002 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any asisting attorney or entity of any separate counsel of record, of this scheulde, and to take all steps necessary to meet it.
May 6 2003Compensation awarded counsel
  Atty Moller
Jun 25 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Jun 25 2003Counsel's status report received (confidential)
  from atty Moller.
Jun 27 2003Extension of time granted
  to 9/2/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any sepearate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 1 2003Compensation awarded counsel
  Atty Moller
Aug 26 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Aug 26 2003Counsel's status report received (confidential)
  from atty Moller.
Aug 29 2003Extension of time granted
  to 11-3-2003 to file AOB. 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.
Oct 24 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
Oct 24 2003Counsel's status report received (confidential)
  from atty Moller.
Oct 30 2003Extension of time granted
  to 1/2/2004 to file appellant's opening brief. After that date, only three further extensions totaling 150 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he antiticipates filing that brief by 6/2/2004.
Dec 26 2003Request for extension of time filed
  to file appellant's opening brief. (7th request)
Dec 26 2003Counsel's status report received (confidential)
  from atty Moller.
Dec 31 2003Extension of time granted
  to 3/2/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by June 2, 2004.
Feb 25 2004Request for extension of time filed
  to file appellant's opening brief. (8th request)
Feb 25 2004Counsel's status report received (confidential)
  from atty Moller.
Mar 1 2004Extension of time granted
  to 5/3/2004 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 6/2/2004.
Apr 26 2004Counsel's status report received (confidential)
  from atty Moller.
Apr 26 2004Request for extension of time filed
  to file appellant's opening brief. (9th request)
Apr 28 2004Extension of time granted
  to 6/2/2004 to file appellant's opening brief. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 6/2/2004. After that date, no further extension will be granted.
May 25 2004Application to file over-length brief filed
  by appellant to file opening brief. (122,687 word brief submitted under separate cover)
May 26 2004Order filed
  Appellant's application for leave to file opening brief in excess of word count limit is granted.
May 26 2004Appellant's opening brief filed
  (122,687 words - 431 pp.)
Jun 9 2004Compensation awarded counsel
  Atty Moller
Jun 18 2004Request for extension of time filed
  to file respondent's brief. (1st request)
Jun 21 2004Extension of time granted
  to 8/24/2004 to file respondent's brief.
Aug 19 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Aug 26 2004Extension of time granted
  to 10/25/2004 to file respondent's brief. After that date, only two further extensions totaling about 70 additional days will be granted. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by 1/5/2005.
Oct 20 2004Request for extension of time filed
  to file respondent's brief. (3rd request)
Oct 25 2004Extension of time granted
  to 12/23/2004 to file respondent's brief. After that date, only one further extension totaling about 15 additional days will be granted. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by 1/5/2005.
Dec 21 2004Request for extension of time filed
  to file respondent's brief. (4th request)
Dec 29 2004Extension of time granted
  to 2/22/2005 to file respondent's brief. After that date, no further extension will be granted. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by 2/21/2005.
Feb 17 2005Request for extension of time filed
  to file respondent's brief. (5th request)
Feb 24 2005Extension of time granted
  to 3/8/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by 3/8/2005. After that date, no further extension will be granted.
Mar 3 2005Respondent's brief filed
  (64,988 words; 198 pp.)
Mar 23 2005Counsel's status report received (confidential)
  from atty Moller.
Mar 23 2005Request for extension of time filed
  to file appellant's reply brief. (1st request)
Mar 24 2005Extension of time granted
  to 5/23/2005 to file appellant's reply brief.
May 24 2005Counsel's status report received (confidential)
 
May 24 2005Request for extension of time filed
  to file appellant's reply brief. (2nd request)
May 26 2005Extension of time granted
  to 7/22/2005 to file appellant's reply brief. After that date, only three further extensions totaling about 160 additional days are contemplated. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 1/2/2006.
Jul 25 2005Counsel's status report received (confidential)
  from atty Moller.
Jul 25 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Jul 26 2005Extension of time granted
  to 9/23/2005 to file appellant's reply brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 1/2/2006
Sep 23 2005Request for extension of time filed
  to file appellant's reply brief. (4th request)
Sep 23 2005Counsel's status report received (confidential)
  from atty Moller.
Sep 29 2005Extension of time granted
  to 11/23/2005 to file appellant's reply brief. After that date, only one further extension totaling about 50 additional days will be granted. Extension is granted based upon counsel Richard Jay Moller's representation that he anticipates filing that brief by 1/2/2006.
Nov 28 2005Request for extension of time filed
  to file reply brief. (5th request)
Dec 1 2005Extension of time granted
  to 1/3/2006 to file the reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Richard Moller's representation that he anticipates filing that brief by January 2, 2006.
Dec 22 2005Filed:
  application for permission to file appellant's supplemental brief. (Brief received under seperate cover)
Dec 22 2005Appellant's reply brief filed
  (38,247 words; 135 pp.)
Dec 30 2005Compensation awarded counsel
  atty Moller
Jan 3 2006Order filed
  Appellant's "Application for Permission to File Supplemental Brief" is granted. Any response must be filed on or before February 2, 2006.
Jan 3 2006Supplemental brief filed
  appellant's supplemental brief. (1,168 words; 5 pp.)
Feb 2 2006Request for extension of time filed
  to file supplemental respondent's brief. (1st request)
Feb 3 2006Extension of time granted
  to March 6, 2006 to file the supplemental respondent's brief. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by March 6, 2006. After that date, no further extension will be granted.
Mar 3 2006Request for extension of time filed
  to file supplemental respondent's brief. (2nd request)
Mar 8 2006Extension of time granted
  to March 20, 2006 to file the supplemental respondent's brief. Extension is granted based upon Deputy Attorney General Kristine A. Gutierrez's representation that she anticipates filing that brief by March 20, 2006. After that date, no further extension will be granted.
Mar 14 2006Supplemental brief filed
  respondent's supplemental brief. (1871 words; 8 pp.)
Aug 27 2009Exhibit(s) lodged
  people's pretrial exhibit 8 and trial exhibit 253-(previously marked as pretrial exhibit 9)
Nov 6 2009Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the January calendar, to be held the week of January 4, 2010, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Nov 19 2009Received:
  letter from attorney Richard Moller, dated November 16, 2009 regarding the scheduling of oral argument.
Dec 2 2009Case ordered on calendar
  to be argued on January 6, 2010, at 1:30 p.m., in San Francisco.
Dec 10 2009Filed:
  appellant's focus issues letter, dated December 3, 2009, and requesting 45 minutes for oral argument.
Dec 10 2009Received:
  appellant's additional authorities letter, dated December 3, 2009
Dec 11 2009Filed:
  respondent's focus issues letter, dated December 10, 2009.
Dec 14 2009Received:
  appearance sheet from Richard Jay Moller, indicating 45 minutes for oral argument for appellant.
Dec 14 2009Received:
  appearance sheet from Deputy Attorney General Kristine Gutierrez, indicating 30 minutes for oral argument for respondent.
Dec 23 2009Argument rescheduled
  to be argued on Thursday, January 7, 2010, at 1:30 p.m., in San Francisco
Dec 29 2009Received:
  respondent's additional authorities letter, dated December 28, 2009.
Jan 7 2010Cause argued and submitted
 
Jan 22 2010Compensation awarded counsel
  Atty Moller
Mar 16 2010Notice of forthcoming opinion posted
  To be filed on Thursday, March 18, 2010 @ 10 a.m.
Mar 18 2010Opinion filed: Affirmed in part, reversed in part
  We conclude the trial court's judgment should be affirmed as to Richard Gamache's conviction for special circumstance murder (count one) and corresponding sentence of death, as well as his convictions for attempted murder (count two), robbery (counts three and four), burglary (count five), and kidnapping for robbery (counts six and seven). It should be reversed as to the determinate portions of Gamache's sentence on counts two, three, five, six, and seven and this case remanded to permit the trial court to exercise its discretion and correct the judgment in accordance with the views expressed in this opinion. Opinion by Werdegar, J. -----joined by George, C.J., Kennard, Baxter, Chin, Moreno and Corrigan, JJ.

Briefs
May 26 2004Appellant's opening brief filed
 
Mar 3 2005Respondent's brief filed
 
Dec 22 2005Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website