Supreme Court of California Justia
Docket No. S035769
People v. Heard

Filed 8/28/03




IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S035769

v.

JAMES MATTHEW HEARD,

Los Angeles County

Defendant and Appellant.

Super. Ct. No. TA010477



A jury found defendant James Matthew Heard guilty of first degree murder

(Pen. Code, §§ 187, subd. (a), 189),1 one count of a forcible lewd act upon a child

under the age of 14 years (§ 288, subd. (b)), two counts of anal or genital

penetration with a foreign object (§ 289, subd. (a)), and two counts of assault with

a deadly weapon causing great bodily injury (§ 245, subd. (a)(1)), all perpetrated

against 11-year-old Katrina Brown. The jury further determined the defendant

had inflicted great bodily injury in the commission of the sex offenses (§ 12022.8)

and had personally inflicted such injury in the commission of the assaults

(§ 12022.7). The jury also found true the three special circumstance allegations:

that the murder occurred while defendant was engaged in the commission of a

lewd and lascivious act upon a child (§ 190.2, subd. (a)(17)), that the murder

occurred while defendant was engaged in the commission of vaginal rape by an

instrument (§ 190.2, subd. (a)(17)), and that the murder was intentional and

1

All statutory references are to the Penal Code unless otherwise indicated.

1


involved the infliction of torture (§ 190.2, subd. (a)(18)). At the conclusion of the

penalty phase, the jury returned a verdict of death. This appeal is automatic. (Cal.

Const., art. VI, § 11; Pen. Code, § 1239, subd. (b).)

As we shall explain, we conclude no reversible error occurred with regard

to the judgment of guilt and the special circumstances findings, and we shall

affirm the judgment as to these determinations. We conclude, however, that the

trial court conducted a seriously deficient examination of a prospective juror

during the jury selection process and, in the absence of adequate justification,

erroneously excused the juror for cause based upon the juror’s ostensible views

regarding the death penalty. The controlling decisions of the United States

Supreme Court establish that, under federal constitutional principles, this type of

error is not subject to harmless-error analysis, but rather must be considered

reversible per se with regard to any ensuing death penalty judgment. (See Gray v.

Mississippi (1987) 481 U.S. 648, 664-666, 668; Davis v. Georgia (1976) 429 U.S.

122, 123.) Accordingly, under compulsion of these applicable federal decisions,

we shall reverse the judgment as to the sentence of death and remand the matter

for a new penalty trial before a properly selected jury.

I. FACTS

A.

GUILT PHASE EVIDENCE



1.

The prosecution’s case

Defendant became romantically involved with Marilyn Brown in 1987,

experienced an on-again off-again relationship with her, and then began residing

with Marilyn and her daughter, the victim Katrina Brown, in May 1990, about

seven months prior to the murder. At that time, defendant also began working as

the manager of the apartment complex in which they resided, performing repairs

in the other units. From all appearances prior to the murder, Katrina and

defendant shared a father-daughter relationship, and there was no evidence he had

2

ever made sexual advances or engaged in any other inappropriate behavior toward

her. It is apparent from the testimony and photographic exhibits that, despite her

youth, Katrina had a very maturely developed body.

On December 18, 1990, defendant worked in one of the apartments during

the morning and afternoon with his friend, Chris Hodges. The two individuals

began drinking gin and 40-ounce bottles of malt liquor, and then commenced

smoking crack cocaine with a number of other persons into the evening. About

8:00 p.m., defendant announced that he “wanted a woman.” He continued

consuming alcohol and smoking cocaine, but at approximately 10:00 p.m. angrily

complained he had purchased some “bunk” drugs and went out to “beat up” the

dealer unless he got his money back.

In the meantime, Katrina prepared for bed and listened to music while

Marilyn slept before preparing to leave for work shortly before 3:00 a.m. Marilyn

saw defendant sometime between 10:30 and 11:00 p.m., at which time she did not

notice anything unusual about his speech or demeanor. When Marilyn went to

work, Katrina was asleep in her bed, the telephone was set by Katrina’s closed

bedroom door, and all the exterior doors were locked.

At approximately 2:00 a.m., defendant left the apartment and encountered

Mattie McAlister, who was on the way to her house nearby, where a birthday

party for her was taking place. McAlister noticed that defendant appeared

“[b]ombed . . . . He was out of it. . . . He was loaded. . . . He was mad, but he

was high. But he was a mad high. . . . He was high, but he wasn’t happy. He was

mad about something.” At the party, McAlister observed defendant drink about

three glasses of whisky, continue to smoke cocaine, and become increasingly

belligerent. Defendant followed McAlister around the house, continuing to

threaten that he was “going to kill a bitch.” McAlister told defendant that he

frightened her, and she insisted that he leave the premises.

3



At one point during the party, defendant pushed Cheryl Bailey up against a

wall and chastised her for being at a party and drinking alcoholic beverages while

pregnant. Bailey’s boyfriend, Johnny Joe Robinson, intervened, and defendant

responded, “Nigger, you don’t know me. I will kill you.” In response, Robinson

and others drew knives and razors and convinced defendant to retreat. According

to Robinson, defendant repeatedly exclaimed, “I ain’t going to be satisfied until I

kill somebody.” Defendant thereafter asked Bailey to leave with him. When she

refused, he shoved her and said, “Bitch, I am going to kill you. I am going to kill

you.”

Defendant departed with Steve Lamar Elkins about 4:00 a.m., stating he

wanted to go someplace to “get high.” On the street, they encountered Marlo

Plump, and defendant demanded money that he said Plump owed him. Elkins

attempted to intercede, but defendant angrily turned on him. Elkins returned to

McAlister’s house and did not see defendant the rest of the night.

Later at the apartment building where defendant resided with Marilyn and

Katrina, beginning about 5:00 a.m., Guillermo Garcia and his sister, Lucy Elena,

who lived in the upstairs unit, heard the sounds of a man and a young woman

fighting; the noise emanated from Marilyn Brown’s apartment. The woman

screamed and moaned, and made sounds “like a cat crying,” and the man told her

to “shut up.” The sound of the voices continued intermittently for approximately

one hour; during the intervals, the Garcias heard the woman crying quietly.

Lacking a telephone, the Garcias were unable to call anyone from their apartment.

After the fighting sounds stopped, the Garcias fell back asleep. Between 5:30 and

6:00 a.m., Marilyn called home but received no response.

About 7:30 a.m., Katrina’s first cousin, Samuel Lee, who lived directly

across from the Browns’ apartment, came by to pick up Katrina for school. When

he received no response at the front door, he went to the bedroom window and

4

knocked, but no one responded. He returned to the front door, which he found

unlatched, and entered. In Katrina’s bedroom, he saw her naked body on the

floor. He returned to his own apartment and told his Uncle Doyle and his

grandfather Charles Lee what he had seen. Charles found Katrina’s body

sprawled on the floor with a bloody cloth wrapped around her head and two

wooden objects between her legs.

Responding to Charles’s 911 call, paramedics determined that Katrina was

dead, and sheriff’s deputies secured the apartment. Katrina’s bedroom showed

evidence of a struggle, and bloodstained clothing and other items lay around the

body. Investigators also found blood, later identified as consistent with both

defendant’s and Katrina’s, on three bedroom walls, the carpeting, and the

bathroom floor and sink. In addition to the blood-soaked garment wrapped around

Katrina’s head, investigators found an empty bottle of rubbing alcohol in her

mouth. There were bite marks on her chest area and, according to one of the

Sheriff’s investigators, a “dusty print on her chest” that appeared to have been

“left by some sort of shoe as if someone stomped her in the chest.” A baseball bat

wrapped with a curtain protruded from her vagina. Another bat, stained with

blood and feces, lay between her legs.

Charles Lee told the deputies that defendant lived with Katrina and her

mother and gave them a description of him.2 About that time, William Ardizzone,

a Long Beach firefighter paramedic, in response to a call made from a liquor store

parking lot, encountered defendant, who had blood dripping from his mouth and

covering his face and bare chest. Ardizzone inquired whether defendant had been

2

Because Charles Lee died during the period between the preliminary

hearing and the trial, the testimony he gave at that hearing was read into the record
at trial.

5

struck, perhaps with a two-by-four, and defendant responded affirmatively.

Examining defendant’s mouth, Ardizzone noticed that part of defendant’s tongue

was missing. The wound did not appear self-inflicted, nor did defendant’s chin

have any injury.

Ardizzone took defendant to the emergency room at Lakewood Doctors

Hospital, where the attending physician, Dr. Max Lebow, determined that

approximately one-third of defendant’s tongue had been amputated. Defendant,

who was spraying blood as he spoke, explained that he had been in a fight and had

been struck with an object on his chin, causing defendant to bite off his tongue

with his own teeth. Lebow, as well as another emergency room physician, Dr.

Robert Flashman, found the injury inconsistent with this description.

An emergency room technician, Michael Murphy, testified that the patient

with the severed tongue whom he encountered on the morning of Katrina’s murder

was “very agitated” and “screaming obscenities.”3 Murphy stated that the patient

subsequently refused treatment and requested a transfer to the Veterans

Administration (VA) Hospital. When the transfer could not be arranged, the

patient “yanked out his [intravenous tube],” “was screaming ‘I am getting the fuck

out of here,’ ” and departed from the emergency room against medical advice.4


3

Murphy initially was unable to identify defendant in court as the patient he

had encountered. On redirect examination, when the prosecutor showed him
photographs taken of defendant shortly after his arrest, Murphy agreed that the
photographs resembled the patient he had treated.
4

Lisa Jones, an emergency room clerk, also was unable to identify defendant

in court but did testify that the patient she encountered that morning resembled the
individual depicted in the photographs taken of defendant. Jones testified that the
patient asked her to contact his “stepdaughter,” named “Katrina, . . . [b]ecause he
wanted to make sure that she would get to school on time.” Clark thereafter
contacted a relative whose name defendant provided, and the relative informed

(Footnote continued on next page.)

6



Defendant proceeded to a nearby parking lot, where he attempted to obtain

a ride to the VA hospital. When approached by a security guard, defendant was

angry and threatening, informing the guard: “Don’t fuck with me. I already hurt

somebody today. Do you want the same thing?” Defendant challenged the guard

to a fight. When confronted by a second guard, defendant warned him to leave

defendant alone, stating that otherwise “I will fuck you up, too.” This guard

recalled that defendant’s eyes were glazed and bloodshot. Defendant angrily

demanded a ride, confronting several individuals in the parking lot, including one

off-duty police officer whom he told, “Motherfucker, I will kill you like.”

Defendant stepped back after observing a firearm resting between the officer’s

legs, and after threatening another security guard who offered assistance,

defendant left the parking lot. The off-duty officer used a cellular phone to

contact the sheriff’s department.

Responding to a disturbance call, sheriff’s deputies found defendant at a

nearby intersection and initially detained him as a possible robbery suspect.

Defendant asserted he had sustained his injury in a fight with street gang members

and had been struck on the chin with a two-by-four. The deputies determined he

had not been involved in the robbery, and were preparing to release him when

they received a radio dispatch regarding a murder suspect named James Heard

who fit defendant’s physical description. When the deputies asked defendant his


(Footnote continued from previous page.)

Clark that Katrina was dead. By the time Clark related this information to another
nurse, defendant had departed from the emergency room.

7

name and he identified himself, they arrested him. As he was being placed in the

patrol car, he stated, “I didn’t mean to do it. I shouldn’t have hit so hard.”5

An autopsy disclosed multiple blunt force injuries, including several severe

lacerations, to Katrina’s head, which had been tightly wrapped in a housecoat.

One laceration was deep enough to expose the bone on her forehead; there were

eight to 12 areas of hemorrhaging under the skull. Beatings on the sides and top

of her head, described by the coroner as “quite forceful,” were sufficient to

dislodge Katrina’s brain and bruise the brain tissue. On Katrina’s breasts, the

coroner found bite marks on both nipples and a suction bruise above the left

nipple, with a large abrasion between her left breast and her armpit. The abrasion,

in conjunction with significant hemorrhaging in the area, was consistent with

“repetitive stomping” on this part of the body.

The autopsy further revealed considerable bruising to Katrina’s abdominal

area, which the coroner opined was caused internally by the repeated thrusting of a

baseball bat handle against her large intestine. The injuries also were consistent

with repeated stomping on her chest and abdomen. Katrina’s entire genital area

was extensively damaged, and the internal injuries were considerable. According

to the coroner, these injuries were consistent with the thrust of a baseball bat into

her vagina with sufficient force to break the wall separating it from the rectum.

The coroner also allowed for the possibility that the force came from the thrust of

a bat into her anus.


5

Blood spatters found on defendant’s socks subsequently were determined to

be consistent with the blood characteristics of the victim. As noted above, blood
spatters found at the crime scene were determined to be consistent with the blood
characteristics of defendant.

8



Katrina’s mouth showed injuries both from the ingestion of a near-toxic

level of rubbing alcohol and from the force of the alcohol bottle being shoved into

it. Her body exhibited substantial evidence of forceful manual strangulation,

which was most likely the actual, that is immediate, cause of death. Several of the

other injuries, however, would have caused death within a matter of hours.

A forensic dentist testified that defendant’s teeth were shaped in a manner

consistent with the bite marks found on Katrina’s breasts.6 He also expressed the

opinion that the injury to defendant’s tongue was inconsistent with a self-inflicted

wound, but was consistent with the shape of Katrina’s teeth.

The coroner opined that defendant may have used the rubbing alcohol, in

conjunction with the abdominal stomping, to induce Katrina to regurgitate the

severed portion of his tongue.7

2.

The defense case

The primary defense theory was that defendant committed the crimes but

did so while impaired due to his alcohol and cocaine consumption. This defense

rested principally on the testimony of Dr. Orm Aniline, a psychiatrist who

specialized in the psychiatric effect of medications and drugs. He explained that

when cocaine and alcohol are consumed together, the liver produces cocaethylene,

which is more potent and remains in the system longer than cocaine alone. Acute

effects of cocaine generally last one-half to one hour depending on tolerance.

Based on the results of a test of defendant’s urine for the presence of cocaine

6

The defense presented some marginal evidence to suggest Chris Hodges

was the assailant, but the forensic dentist testified that the shape of Hodges’ teeth
was inconsistent with these bite marks.
7

Despite an extensive search performed within the victim’s body, the

coroner was unable to locate the missing portion of defendant’s tongue. A search
of the crime scene and surrounding area similarly was unsuccessful.

9

metabolite, Dr. Aniline concluded defendant either ingested a large dose of

cocaine or had accumulated a substantial amount of the drug.

Dr. Aniline explained that the physiological and behavioral effects of large

doses of cocaine include unusual mood swings as well as violent and threatening

behavior, “hypersexual arousal,” and high energy levels. The drug also can impair

problem-solving abilities. He found the description of defendant’s conduct at

Mattie McAlister’s party, at the emergency room, and in the parking lot consistent

with cocaine intoxication. The intoxication also would explain defendant’s

attempt to force Katrina to regurgitate the bitten part of his tongue by stomping on

her abdomen. Dr. Aniline estimated that defendant’s blood-alcohol level was as

high as .20 or .30 percent, which also would affect his problem-solving

capabilities.

Dr. Aniline further concluded that a person under the influence of

cocaethylene might not premeditate or harbor any specific intent to commit a

crime, but might act in a “frenzied state.”

3. Rebuttal

The prosecution countered the defense evidence pertaining to cocaethylene

by presenting the testimony of Dr. Ronald Markman, a psychiatrist and mental

health consultant on drugs and alcohol. Dr. Markman interviewed defendant and

reviewed other material related to the case. On that basis, he opined that

defendant was acting “in a goal-directed intentional manner and was fully aware

of what he was doing” when he committed the murder. Dr. Markman noted in

particular defendant’s attempt to retrieve his severed tongue and otherwise to

conceal his involvement in the crime, even though these attempts were

unsuccessful. Because neighbors heard intermittent fighting for approximately an

hour, Dr. Markman was of the view that defendant also had the opportunity to

reflect on his actions and therefore acted deliberately in continuing the assault.

10

B.

PENALTY PHASE EVIDENCE

1.

The prosecution’s case

The prosecution presented the following evidence in aggravation. In

September 1976, while married to Cynthia Wilson, defendant, apparently drunk,

fired a rifle inside their home and eventually was taken into police custody.

Between 1985 and 1989, defendant lived with Leilani Blake. During that period,

he often lost his temper after drinking hard liquor; on two occasions, he punched a

hole in the wall of their home. Blake left defendant in August 1989, after he had

been drinking and informed her that he wanted “to go out and kick ass” and then

repeatedly hit her in the face. As a result of the beating, Blake lost consciousness

and suffered facial bruising and swelling, as well as retinal damage that caused her

to experience blurred vision for more than one month. The parties also stipulated

defendant had pleaded guilty to unlawfully driving and taking a vehicle. (Veh.

Code, § 10851, subd. (a).)

2.

The defense case

The defense presented extensive evidence of defendant’s background. He

was born of a White mother and a Black father and was adopted by a Black

couple, James and Harriet Heard, at birth. Defendant’s adoptive father was an

alcoholic who lost his temper easily and was verbally and physically abusive

toward defendant. Defendant’s adoptive mother also was physically abusive

toward defendant; she beat him with the cord of an iron and performed unusual

acts on him such as pouring cold water on his penis and subjecting him to

unnecessary enemas. The family lived in Seattle, Washington, until defendant

was in junior high school, and then moved to Compton, California. As a child,

defendant experienced abuse by his parents and harassment from neighborhood

children because of his mixed-race background and relatively large size  he

weighed 290 pounds in junior high school.

11



To counter the prosecution’s evidence in aggravation, the defense presented

testimony that defendant was loving and supportive toward the women he became

involved with and their children. However, he suffered from depression, causing

him sometimes to disappear for several days, and also abused alcohol and a

myriad of other drugs including cocaine.

During the period following defendant’s arrest for the present offenses, he

adjusted well to incarceration and did not present a problem for correctional

personnel. He expressed remorse for his crimes which, the defense argued, were

the result of an uncharacteristic “psychotic-like eruption” while he was out of

control due to intoxication.

3. Rebuttal

On rebuttal, the prosecution presented evidence that defendant never had

complained of any abuse by his adoptive parents.

II. DISCUSSION

A.

JURY SELECTION ISSUES

1.

Excusal of prospective jurors for cause



Defendant contends that the trial court erroneously excused two prospective

jurors, H. and Q., for cause after voir dire concerning their views concerning the

death penalty. (See Wainwright v. Witt (1985) 469 U.S. 412; People v. Rodrigues

(1994) 8 Cal.4th 1060, 1146.)8


8

We agree with respondent that apart from issues relating to the principles

discussed in Wainwright v. Witt, supra, 469 U.S. 412, defendant has waived his
constitutional claims regarding the exclusion of these two prospective jurors by
failing to challenge the trial court’s ruling on those grounds at the time the
prospective jurors were dismissed. (See People v. Hines (1997) 15 Cal.4th 997,
1035.)

12



Past decisions of the United States Supreme Court and this court establish

that “[a] prospective juror may be challenged for cause based upon his or her

views regarding capital punishment only if those views would ‘ “prevent or

substantially impair” ’ the performance of the juror’s duties as defined by the

court’s instructions and the juror’s oath. (Wainwright v. Witt [, supra], 469 U.S.

412, 424; People v. Crittenden (1994) 9 Cal.4th 83, 121; People v. Mincey (1992)

2 Cal.4th 408, 456.) ‘ “ ‘A prospective juror is properly excluded if he or she is

unable to conscientiously consider all of the sentencing alternatives, including the

death penalty where appropriate.’ [Citation.]” [Citation.] In addition, “ ‘[o]n

appeal, we will uphold the trial court’s ruling if it is fairly supported by the record,

accepting as binding the trial court’s determination as to the prospective juror’s

true state of mind when the prospective juror has made statements that are

conflicting or ambiguous.’ [Citations.]” ’ [Citation.]” (People v. Cunningham

(2001) 25 Cal.4th 926, 975.)

“ ‘The real question is “ ‘ “whether the juror’s views about capital

punishment would prevent or impair the juror’s ability to return a verdict of death

in the case before the juror.” ’ ” ’ (People v. Ochoa (2001) 26 Cal.4th 398, 431,

quoting People v. Bradford (1997) 15 Cal.4th 1229, 1318, quoting in turn People

v. Hill (1992) 3 Cal.4th 959, 1003.) Because the qualification standard operates in

the same manner whether a prospective juror’s views are for or against the death

penalty (Morgan v. Illinois (1992) 504 U.S. 719, 726-728), it is equally true that

the ‘real question’ is whether the juror’s views about capital punishment would

prevent or impair the juror’s ability to return a verdict of life without parole in the

case before the juror.” (People v. Cash (2002) 28 Cal.4th 703, 719-720; see also

People v. Kirkpatrick (1994) 7 Cal.4th 988, 1005 [“A prospective juror who

would invariably vote either for or against the death penalty because of one or

more circumstances likely to be present in the case being tried, without regard to

13

the strength of aggravating and mitigating circumstances, is therefore subject to

challenge for cause, whether or not the circumstance that would be determinative

for that juror has been alleged in the charging document” (italics added)].)

Applying the foregoing standards, we conclude the trial court erred in

excusing Prospective Juror H. for cause. As we shall explain, in light of that

determination we need not reach the question of the propriety of the excusal of

Prospective Juror Q.



a.

Prospective Juror H.

Defendant contends the trial court improperly excused Prospective Juror H.

for cause. Defendant maintains that the record shows H. was prepared to follow

the law and the trial court’s instructions, and that the trial court’s findings to the

contrary are not supported by substantial evidence. In assessing defendant’s

claim, we set forth in full the relevant portion of the voir dire examination of this

potential juror:

“The court: ‘Mr. [H.], . . . [a]re you of any position right now where you

would automatically vote life without possibility of parole and no matter what

evidence showed?’

“Prospective

Juror [H.]: ‘No.’

‘The court: ‘Or would you vote death automatically no matter what the

evidence showed?’

“Prospective

Juror [H.]: ‘No.’

“The court: ‘Would you characterize yourself as a person who would listen

to the evidence and make a decision thereafter?’

“Prospective

Juror [H.]: ‘Yes.’

“The court: ‘Would you be reluctant at all to get to the guilt [sic; read

penalty] phase by either finding a defendant not guilty of first degree murder or

14

finding the special circumstances not true so as to avoid having to face the issue of

the death penalty?’

“Prospective

Juror [H.]: ‘No.’

“The court: ‘Would you decide the case based upon the evidence without

fear of having to reach the next stages in deciding this case?’

“Prospective

Juror [H.]: ‘No.’

“The court: ‘[I] think I phrased the question badly. [I refer to juror written

questionnaire] number 46. It says, “If a defendant is convicted of first degree

murder and the special circumstances [are found] to be true, the law provides that

the only possible verdicts are death or life without possibility of parole. Overall,

which do you think [is] worse for a defendant?” [¶] You have indicated life

without possibility of parole. And under explanation of your answer, you said[,]

“Perhaps the special circumstances are due to past psychological experiences and I

would consider prison.” [¶] Assuming there were past psychological

experiences, bad childhood or abuse or something else, I don’t know whether any

of that is going to come out, but assuming that thing occurred, would you be

automatically in favor of life without possibility of parole as opposed to the death

penalty because of those factors?’

“Prospective Juror [H.]: ‘Well, whatever the law states.’

“The court: ‘The law is not going to help you a whole lot in weighing the

evidence and deciding the penalty. That is, the law is going to give you the two

options. And the law is going to tell you that you must consider all the evidence

that’s in. And then you must look at the aggravating and mitigating factors.’

“Prospective

Juror [H.]: ‘Un-huh.’

“The court: ‘And you can only impose death if the aggravating factors are

so substantial in comparison to the mitigating factors that death is warranted. [¶]

Now that’s pretty much it. You are going to have to decide for yourself what

15

those factors are and decide wh[ich] penalty is appropriate. So we are not going to

tell you how to weigh the psychological factors. We are just not going to. You

are going to have to weigh it yourself in your decisions with the other jurors. You

feel comfortable doing that?’

“Prospective

Juror [H.]: ‘Yes.’

“The court: ‘Do you think that if there were past psychological factors that

they would weigh heavily enough that you probably wouldn’t impose the death

penalty? [¶] [Long period of silence.] Is your answer you just don’t know or

what?’

“Prospective Juror [H.]: ‘Yes, I think they might.’

“The court: ‘You think they might auger toward life without possibility of

parole?’

“Prospective

Juror [H.]: ‘Yes.’

“The court: ‘Are you absolutely committed to that position?’

“Prospective

Juror [H.]: ‘Yes.’

“The court: ‘Are you saying that if there were psychological factors,

without naming what they might be, you would automatically vote for life without

possibility of parole?’

“Prospective Juror [H.]: ‘Without naming them, I don’t think so.’

“The court: ‘All right. [¶] I am not trying to force anybody into an

answer, believe me. I just want to know how you think. As I have told you

earlier, if you are irrevocably committed to life without possibility of parole, you

can’t sit [on the jury in this case]. If the opposite is true, you can’t sit. There are a

number of reasons for that. I am just trying to find out whether you are going to

be in a position to be able to choose or that you feel so strongly about something

that you are really not going to consider anything else. That’s the intent of my

question. That’s for all of you, too. [¶] Any questions, [Ms.] Gray?’

16



“[Defense counsel] Ms. Gray: ‘Yes. [¶] Good morning, Mr. [H.]. [¶] On

[juror written questionnaire] number 46, and I know his honor has already asked

you about this, but you had basically said that you felt that life without possibility

of parole is worse than death. [¶] Do you understand now that after hearing his

honor’s question’s that it might not necessarily be so[?] In other words, when you

hear bad things about say, a person accused of a crime, those are aggravating

factors. And when you hear good things, those are the mitigating factors. And it’s

only when the aggravating factors, those are the bad things, so substantially

outweigh those mitigating factors, that you give death. If it doesn’t so

substantially, you give life. [¶] So do you see that death is like the worst of the

worst?’

“Prospective

Juror [H.]: ‘Yeah.’

“Ms. Gray: ‘When you look at it, in terms of whether or not the

aggravating factors or bad things about the person accused of a crime[, that] is

what you look at it to determine life or death?’

“Prospective

Juror [H.]: ‘Yeah.’

“Ms. Gray: All right. And do you also not understand, and I guess all of

you understand that you are going to be given certain things that you can consider

in determining or making that choice as to whether to give life or death?’

“Prospective

Juror [H.]: ‘Yeah.’

“Ms. Gray: ‘And one of those things that you can consider is maybe a

psychological background. Would you consider that?’

“Prospective

Juror [H.]: ‘Yeah.’

“Ms. Gray: ‘What about whether or not a person has or does not have any

prior felony convictions? Would you consider that?’

“The court: ‘The court’s objection is sustained. He doesn’t know what to

consider at this point, counsel. I have told him to consider all the evidence. If you

17

ask him whether he should consider prior felony convictions, how does he know

whether he can or cannot consider that?’

“Ms. Gray: ‘I would preface that question, if the law states that you can.’

“The court: ‘No. Court’s objection is sustained.’

“Ms. Gray: “I have nothing further.’

“The court: ‘[Ms.] Frohreich.’

“[Prosecutor] Ms. Frohreich: No questions. Thank you, Mr. [H.].’

[¶] . . . [¶]

[The following colloquy was conducted outside the presence of the

prospective jurors.]

“The court: ‘First challenge for cause, who wants to go first?’

“Ms. Frohreich: ‘I will go first. [¶] Mr. [H.]. Psychiatric problems that I

feel makes him, subject to a motion for cause. He admitted to the court that he felt

that there were psychological factors in the background that would [lead him to]

feel life without possibility of parole was the appropriate sentence. And he

indicated when you pressed him, your honor, that he still felt that way, even

though you gave him opportunities to back away from that position. [¶] My

impression of the record is that he did not back away from that position, and he

would not want to impose death if there were  ’

“The court: ‘I remember what he said.’

“Ms. Gray: ‘The circumstances in all of his answers, though, he

consistently said that he would consider the factors in all of the evidence as

instructed. And he kept emphasizing “whatever the law says and whatever I am

told. I don’t know the law.” [¶] And I think once he gets the instructions, he

would be able to follow [the law] because he kept emphasizing he would.’

“The court: ‘Okay. . . .’ [¶] . . . [¶] [Discussion involving another

prospective juror.] Mr. [H.][,] I will excuse for cause. I think that his answers

18

were such that I think he would, given background conditions, vote [for life in

prison without possibility of parole]. I think he’s although less articulate [than a

different prospective juror], in the same sort of a ballpark. So Mr. [H.] is out

. . . .”

As noted earlier, the applicable law is clear: a prospective juror properly

may be excluded for cause based upon his or her views concerning the death

penalty only if the juror’s views “would prevent or substantially impair the

performance of his duties as a juror in accordance with his instructions and his

oath.” (Wainwright v. Witt, supra, 469 U.S. at p. 424; Adams v. Texas (1980) 448

U.S. 38, 45; see also People v. Cash, supra, 28 Cal.4th at pp. 719-720; People v.

Ochoa (1998) 19 Cal.4th 353, 443; People v. Mincey, supra, 2 Cal.4th at p. 456,

People v. Ghent (1987) 43 Cal.3d 739, 767.) We conclude that the record in this

case does not support excusal for cause under the governing standard.

The People initially contend that the trial court’s excusal of Prospective

Juror H. is supported by the jury questionnaire completed by H. prior to the oral

voir dire examination and, in particular, by H.’s response to one question set forth

in the questionnaire (question No. 46), in which H. expressed the view that

imprisonment for life without the possibility of parole represents a “worse”

punishment than death.

As defendant notes, the jury questionnaire completed by Prospective Juror H.

was lost after the trial and is not a part of the record on appeal, and thus we cannot

review the particular questionnaire answer to which the trial court referred in the

context of H.’s questionnaire responses as a whole, in order to determine whether

other responses may shed additional light on the meaning or significance of the

particular response to which the trial court referred. In any event, however, it is

evident from the transcript of the voir dire quoted above that after the trial court

explained to H. that California law considers death the more serious punishment and

19

that the death penalty can be imposed under California law only if the aggravating

circumstances outweigh the mitigating circumstances, H. did not provide any

indication that his views regarding the death penalty would prevent or significantly

impair him from following the controlling California law. Instead the prospective

juror stated that he would do “whatever the law states.” The record further indicates

that this answer to the questionnaire  that life imprisonment without the

possibility of parole was considered to be a worse punishment for a defendant than

death  was not an uncommon response from the jury venire as a whole, and,

indeed, from a substantial number of jurors who actually sat on the case.

In view of H.’s clarification of his views during voir dire, we conclude that

his earlier juror questionnaire response, given without the benefit of the trial

court’s explanation of the governing legal principles, does not provide an

adequate basis to support H.’s excusal for cause.

Further, we conclude that H.’s responses to the questions posed by the

court and counsel on voir dire do not support a determination that his views

regarding the death penalty “would prevent or substantially impair the

performance of his duties as a juror” so as to justify his excusal for cause under the

governing precedent of United States Supreme Court decisions. (See Wainwright

v. Witt, supra, 469 U.S. 412, 424.) Despite the trial court’s imprecise questioning,

H. made it quite clear that he would not vote “automatically” — in other words,

“no matter what the evidence showed” — either for life imprisonment without the

possibility of parole or for death, and also that he would not be reluctant to find

the defendant guilty of first degree murder or to find the special circumstances true

“so as to avoid having to face the issue of the death penalty.” When the court

asked whether H. would vote automatically in favor of life imprisonment without

the possibility of parole if there was evidence that the defendant had “past

psychological experiences, bad childhood or abuse,” H. responded, “Well,

20

whatever the law states.” When the court then explained that the law provides

“you can only impose death if the aggravating factors are so substantial in

comparison to the mitigating factors that death is warranted,” but that “[y]ou are

going to have to decide for yourself what those factors are and decide [which]

penalty is appropriate” and asked whether H. felt comfortable doing that, H.

responded that he did. When the court further asked whether “if there were past

psychological factors . . . they would weigh heavily enough that you probably

wouldn’t impose the death penalty,” defendant, after a pause, stated “I think they

might,” but when the court followed up by asking, “Are you saying that if there

were psychological factors, without naming what they might be, you would

automatically vote for life without possibility of parole?” H. responded, “Without

naming them, I don’t think so.”

Nothing in the foregoing responses supported a finding that H.’s views

were such that they would prevent or substantially impair the performance of his

duties as a juror. The circumstance that the existence of “psychological factors”

might influence H.’s determination whether or not the death penalty would be

appropriate in a particular case certainly does not suggest that H. would not

properly be exercising the role that California law assigns to jurors in a death

penalty case. (See People v. Jones (1997) 15 Cal.4th 119, 163, fn. 13, overruled

on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1 [recognizing

that a challenge for cause “will not lie” in such circumstances].)

In granting the prosecution’s motion to excuse Prospective Juror H. for

cause, the trial court stated: “I think [H.’s] answers were such that I think he

would, given background conditions, vote [for life in prison without possibility of

parole]. I think he’s although less articulate [than another prospective juror], in

the same ballpark. So Mr. [H.] is out . . . .” The trial court’s statement does not

reveal what the court meant by “background conditions,” but in any event the

21

court did not explain what there was in H.’s responses that indicated that he would

not be willing or able to follow the law in determining whether life in prison

without the possibility of parole, or death, was the appropriate punishment in light

of all the evidence presented.

If the trial court remained uncertain as to whether H.’s views concerning the

death penalty would impair his ability to follow the law or to otherwise perform his

duties as a juror, the court was free, of course, to follow up with additional

questions. The prosecutor similarly could have pursued the matter with further

questions. Based upon the responses of Prospective Juror H. set forth in the record,

however, we conclude that there is not substantial evidence to support a

determination that H. harbored views that would prevent or substantially impair the

performance of his duties so as to support his excusal for cause. Accordingly, under

the applicable standard established by the controlling decisions of the United States

Supreme Court, the trial court’s excusal of Prospective Juror H. for cause was error.

Furthermore, the governing high court decisions also establish that

although such an error does not require reversal of the judgment of guilt or the

special circumstance findings, the error does compel the automatic reversal of

defendant’s death sentence, and in that respect the error is not subject to a

harmless-error rule, regardless whether the prosecutor may have had remaining

peremptory challenges and could have excused Prospective Juror H. (See Gray v.

Mississippi, supra, 481 U.S. 648, 666-668 (opn. of the court); id. at pp. 669-672

(conc. opn. by Powell, J.); Davis v. Georgia, supra, 429 U.S. 122, 123; People v.

Ashmus (1991) 54 Cal.3d 932, 962.) Accordingly, we are compelled by these

decisions of the high court to reverse the judgment in the case before us insofar as

it relates to the penalty imposed.

Although such precedent clearly requires that we set aside the penalty, we

note our dismay regarding the adequacy of the trial court’s efforts to fulfill its

22

responsibilities in selecting a jury in this case. Unlike other duties imposed by law

upon a trial court that may call for the rendition of quick and difficult decisions

under unexpected circumstances in the midst of trial, the conduct of voir dire in a

death penalty case is an activity that is particularly susceptible to careful planning

and successful completion. In California, numerous resources exist that assist trial

courts in conducting voir dire in death penalty trials, and in preventing the type of

readily avoidable error that was committed in this case.9 In view of the extremely


9

We therefore take this opportunity to remind the state’s trial courts of the

numerous courses and publications that exist to assist them in properly conducting
voir dire in capital cases. These resources include several made available for
many years by the California Center for Judicial Education and Research (CJER),
a division of the California Administrative Office of the Courts. (See, e.g., in their
recent editions, CJER, Death Penalty Trials (2002) pp. 9-18 [case law pertaining
to jury selection issues, 66-121 [sample juror questionnaire]; CJER, Death Penalty
Benchguide: Pretrial and Guilt Phase (2001) §§ 98.24-98.41, pp. 98-27-98-38;
CJER, Bench Handbook and Jury Management (2001) Jury Selection, pp. 26-40;
see also 5 Witkin & Epstein, Cal. Criminal Law, (3d ed. 2000) sections 460-513,
pp. 657-731; Murray, Cal. Criminal Law and Procedure Institute, Selected Jury
Selection & Management Issues in Criminal Cases (CJER 2003) section 10A,
pp. 10-21; Bennett’s Guide to Jury Selection and Trial Dynamics: Cal. Criminal
Litigation (1995) §§ 18.12-18.14, pp. 527-538.)


The plethora of treatises and handbooks underscores the circumstance that

the trial court’s mishandling of the voir dire examination of Prospective Juror H.
was preventable. Indeed, a review of the foregoing resources provides useful
advice which, had it been followed by the trial court in the present case, could
have obviated the need for this court’s reversal of the penalty phase judgment.
(See, e.g. CJER, Bench Handbook and Jury Management, supra, p. 31 [the court’s
voir dire examination should be comprised of questions that “are simply phrased,”
and the court should “[r]efrain from interrupting the [prospective] jurors during
their answers and give them sufficient time to formulate their answers”]; id., at
p. 39 [the court should ensure “that a complete record be made of why or why not
a challenge for cause was granted”]; CJER, Death Penalty Benchguide: Pretrial
and Guilt Phase, supra, § 98.35, p. 98-35 [“the court should follow up on
ambiguous answers”]; § 98.37, p. 98-36 [“[a prospective] juror who regards [life
imprisonment without possibility of parole] as a worse punishment than death” is

(Footnote continued on next page.)

23

serious consequence — an automatic reversal of any ensuing death penalty

judgment — that results from a trial court’s error in improperly excluding a

prospective juror for cause during the death-qualification stage of jury selection,

we expect a trial court to make a special effort to be apprised of and to follow the

well-established principles and protocols pertaining to the death-qualification of a

capital jury. As the present case demonstrates, an inadequate or incomplete

examination of potential jurors can have disastrous consequences as to the validity

of a judgment. The error that occurred in this case — introducing a fatal flaw that

tainted the outcome of the penalty phase even before the jury was sworn —

underscores the need for trial courts to proceed with special care and clarity in

conducting voir dire in death penalty trials. The circumstance that the error in this

case was committed by a trial judge with substantial experience in criminal law

renders the voir dire examination at issue all the more inexplicable and

disappointing.

The colloquy set forth above shows that, in response to a series of awkward

questions posited by the trial court, Prospective Juror H. indicated he was prepared

to follow the law and had no predisposition one way or the other as to imposition

of the death penalty. Prospective Juror H. generally was clear in his declarations

that he would attempt to fulfill his responsibilities as a juror in accordance with the

court’s instructions and his oath. To the extent H.’s responses were less than


(Footnote continued from previous page.)

not automatically disqualified unless the juror’s views “would prevent the juror
from ‘faithfully and impartially applying the law.’ ”].

24

definitive, such vagueness reasonably must be viewed as a product of the trial

court’s own unclear inquiries.10

Nor do we believe that additional follow-up questions or observations by

the court would have been unduly burdensome: in a capital case that required

more than three weeks, the trial court’s expenditure of another minute or two of

thoughtful inquiries, followed by a somewhat more thorough explanation of its

reasons for excusing or not excusing Prospective Juror H., would have made the

difference between rendering a supportable ruling and a reversible one. But given

the absence of substantial support in the record for the trial court’s ruling, it cannot

stand. Although we accord appropriate deference to determinations made by a

trial court in the course of jury selection, the trial court in the present case has


10

We reject the People’s contention that the “[l]ong period of silence” noted

by the court reporter is supportive of the trial court’s excusal of Prospective Juror
H. As the transcript reveals, the lengthy period of silence to which the People
refer followed a question by the court that asked “Do you think that if there were
past psychological factors that they would weigh heavily enough that you
probably wouldn’t impose the death penalty?” (italics added), and to which the
prospective juror ultimately responded, “Yes, I think they might.” (Italics added.)
Reflection at this point was appropriate. The circumstance that unspecified
psychological factors “probably” or “might” lead a prospective juror not to impose
the death penalty certainly does not provide a basis for excusing the prospective
juror for cause. The law permits consideration of such factors. Had he answered
in the negative, defendant could have challenged him. Further, when the court
followed up by asking “Are you saying that if there were psychological factors,
without naming what they might be, you would automatically vote for life without
possibility of parole?” the prospective juror responded, “Without naming them, I
don’t think so.” In our view, the circumstance that Prospective Juror H. took some
time to think about and respond to the court’s imprecise questioning as to whether
he thought that “if there were past psychological factors” he “probably wouldn’t
impose the death penalty,” provides no legitimate basis for concluding that the
prospective juror’s views would prevent or substantially impair him in performing
his duties.

25

provided us with virtually nothing of substance to which we might properly

defer.11

In view of the per se standard of reversal set forth in the United States

Supreme Court decisions cited above, the validity of the penalty judgment

ultimately rendered against defendant was doomed even before the jury was

empaneled. The penalty phase of the trial thus was rendered a complete waste; for

naught went the parties’ preparation and presentation of their respective penalty

phase cases, the court’s use of its own resources, and the jurors’ performance of

their civic duty in deciding the punishment to be imposed.

When a trial court commits such readily avoidable error under the

circumstances before us, the public perception of justice suffers and the public fisc

is squandered. Now, several years after the original trial commenced, the

prosecution and the defense will be asked to prepare and present their respective

cases, not only strictly concerning the appropriate penalty but also largely

concerning the facts underlying the determination as to guilt in order to

sufficiently inform the new jury, thereby consuming scant governmental resources

and causing witnesses to relive the details of this horrible crime. That such

inefficiencies and renewed anguish were so readily avoidable, and yet were set in

motion here by an experienced jurist, thereby compelling this court to reverse a

penalty phase judgment in a case so exceptionally aggravated, underscores the


11

In the wake of the trial court’s inadequate questioning, one might have

expected the prosecutor to more diligently follow up the court’s examination of
Prospective Juror H. with questions that were more precisely directed toward
identifying H.’s qualms, if any, in order to better ensure the validity of the penalty
phase judgment that ultimately was rendered. Instead, the prosecutor failed to
address a single question to Prospective Juror H.

26

need for our trial courts to redouble their efforts to proceed with great care, clarity,

and patience in the examination of potential jurors, especially in capital cases.



b.

Prospective Juror Q.

Prospective Juror Q. initially indicated she would not automatically vote for

one punishment or the other in the event of a penalty phase trial. During

subsequent voir dire, however, she stated she thought life imprisonment without

the possibility of parole was the more serious alternative. Eventually, the court

excused Q. for cause.

We need not reach the question whether the trial court properly excused

Prospective Juror Q., because defendant’s challenge to the excusal of Prospective

Juror Q. is based solely upon Wainwright v. Witt, supra, 469 U.S. 412, and thus

relates only to the penalty phase, and we already have concluded that in view of

the trial court’s error in dismissing Prospective Juror H. for cause, the penalty

phase judgment must be reversed.

2.

Missing juror questionnaires

As already noted, prior to voir dire the prospective jurors completed

questionnaires, which included questions relating to their views concerning the

death penalty. During jury selection, defense counsel objected that the prosecutor

was exercising peremptory challenges in violation of People v. Wheeler (1978) 22

Cal.3d 258, 276-277, and Batson v. Kentucky (1986) 476 U.S. 79, 89. In

responding to the trial court’s finding of a prima facie showing of impermissible

exclusion, the prosecutor referred in part to answers contained in the

questionnaires as the basis for exercising peremptory challenges with respect to

the prospective jurors at issue. During the process of record correction and

certification, however, the trial court determined that all juror questionnaires had

been lost except those of the jurors actually empaneled, and further found that it

27

was not possible to reconstruct this aspect of the record for a settled statement.

Defendant now contends the loss of the juror questionnaires prejudiced his ability

to obtain meaningful appellate review of the trial court’s rulings relating to his

Wheeler-Batson claim.

Unfortunately, this is not the first occasion before us in which juror

questionnaires have not been preserved for inclusion in the record on appeal. (See

People v. Ayala (2000) 24 Cal.4th 243, 269; People v. Alvarez (1996) 14 Cal.4th

155, 196, fn. 8, both capital cases.) We caution that because of the requirement

that all such documents be made part of the record in capital cases (see Cal. Rules

of Court, rule 39.51 [specifying that “juror questionnaires of all potential jurors”

shall be included within the clerk’s transcript in capital cases]; see also id., former

rule 39.5(c) [generally requiring inclusion of “any other paper or record filed or

lodged with the superior court pertaining to the case”]), all juror questionnaires

must be scrupulously maintained in such cases. Nevertheless, we find no basis for

concluding that the loss of the juror questionnaires requires or warrants reversal of

the judgment in this case.

“A criminal defendant is . . . entitled to a record on appeal that is adequate

to permit meaningful review. . . . The record on appeal is inadequate, however,

only if the complained-of deficiency is prejudicial to the defendant’s ability to

prosecute his appeal. [Citation.] It is the defendant’s burden to show prejudice of

this sort. [Citation.]” (People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8.) As in

Alvarez and People v. Ayala, supra, 24 Cal.4th 243, defendant has failed to do so

here. In advancing this issue, defendant does not present any substantive

objection to the trial court’s rejection of his Wheeler-Batson claim as to any

particular prospective juror, but rather contends that it is impossible, without all

the juror questionnaires, to obtain meaningful review of the trial court’s Wheeler-

28

Batson rulings. He proffers three reasons to support this contention, none of

which is meritorious.

First, he asserts that it is impossible to know the race of the excluded

prospective jurors because that information was contained in the missing

questionnaires and was not made part of the record during jury selection.

However, after some discussion of which prospective jurors were Black and

therefore included in the Wheeler-Batson claim, the prosecutor specified those

potential jurors she understood were at issue and provided race-neutral

explanations for her exercise of peremptory challenges to these jurors. Defense

counsel at no time indicated that the excusal of any additional prospective jurors

should be addressed. Under these circumstances, defendant may not properly

maintain on appeal that the record does not adequately disclose the prospective

jurors who were the subject of the Wheeler-Batson claim.

Second, defendant notes the prosecutor referred to the questionnaires in

responding to the trial court’s finding of a prima facie case. Without the actual

documents, he implies, it is not possible to obtain adequate review of the

justifications put forth by the prosecutor. As with the racial identification

information, however, the record contains no contradiction from defense counsel

or the court as to the prosecutor’s representation of the contents of the juror

questionnaires that led her to excuse the prospective jurors in question. Although

defense counsel justifiably could assume that the questionnaires ultimately would

become part of the record on appeal, this circumstance did not relieve counsel of

the obligation to bring to the trial court’s attention any disagreement with the

prosecutor’s representations as to the content of the questionnaires. (Cf. People

v. Vera (1997) 15 Cal.4th 269, 275-276 [as a general rule, the failure to object in

trial court waives claim of error on appeal].)

29



In this regard, “[b]oth Wheeler and Batson profess confidence in the ability

of the trial courts to determine the sufficiency of the prosecutor’s showing. In

Wheeler, we said that we will ‘rely on the good judgment of the trial courts to

distinguish bona fide reasons for such peremptories from sham excuses belatedly

contrived to avoid admitting acts of group discrimination.’ [Citation.] The court

indicated likewise in Batson. [Citation.] The trial court, however, must make ‘a

sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of

the circumstances of the case as then known, his knowledge of trial techniques,

and his observations of the manner in which the prosecutor has examined

members of the venire and has exercised challenges for cause or peremptorily. . . .’

[Citation.]” (People v. Johnson (1989) 47 Cal.3d 1194, 1216.) The record reflects

the trial court made such an attempt in passing on the prosecutor’s justifications.

In the absence of any indication from defense counsel at the time of the trial

court’s ruling that the prosecutor was misrepresenting the contents of the

questionnaires upon which the prosecutor relied, we have no reason to question

the trial court’s acceptance of the prosecutor’s race-neutral explanations as

genuine.

Finally, defendant contends the questionnaires are necessary to enable this

court to compare the voir dire of those prospective jurors who were excused by the

prosecutor in alleged violation of Wheeler-Batson with the prosecutor’s exercise

or nonexercise of peremptory challenges as to other prospective jurors. We

recently addressed the subject of employing comparative juror analysis in the

Wheeler-Batson context. (People v. Johnson (2003) 30 Cal.4th 1302, 1318-1325.)

After thorough consideration of both our own precedents and federal authority,

including Miller-El v. Cockrell (2003) 537 U.S. 322 [123 S.Ct. 1029], we held in

Johnson “that engaging in comparative juror analysis for the first time on appeal is

unreliable and inconsistent with the deference reviewing courts necessarily give to

30

trial courts . . . .” (Johnson, supra, 30 Cal.4th at p. 1318.) Although the trial court

and the objecting party may rely at trial on comparative juror analysis in

evaluating whether a prima facie case has been established and whether the

prosecutor’s proffered reasons are legitimate and genuine (id. at pp. 1324-1325),

in the absence of any reliance upon comparative juror analysis in the trial court it

is inappropriate for a reviewing court to second-guess Wheeler-Batson rulings on

that basis. (Ibid.; see also id. at p. 1331 (dis. opn. of Kennard, J.).) Here, neither

the trial court nor defense counsel engaged in any comparative juror analysis at

trial, and thus defendant may not raise this claim on appeal.

Accordingly, defendant has failed to demonstrate that he suffered prejudice

as the result of the trial court’s preservation of only those questionnaires of the

individuals who actually were selected to serve as jurors.

B.

ADMISSION OF PHOTOGRAPHS

At a pretrial hearing, the prosecution offered into evidence numerous

photographs that depicted the crime scene and the victim’s body. The

photographs were organized as follows: Exhibit 4 contained 14 photographs of

the crime scene, as well as a photograph of Katrina’s body, as initially

encountered by paramedics and sheriff’s deputies; exhibit 5 contained 11

photographs that depicted Katrina’s face and head as discovered wrapped in a

bloody garment and unwrapped to reveal her wounds; exhibit 6 contained 11

photographs depicting Katrina’s head and chest injuries. Defendant objected to

the introduction of the photographs on the grounds that the images were irrelevant

and, even if relevant, their prejudicial impact outweighed their probative value.

(Evid. Code, § 352.) He also contended that certain photographs were cumulative.

The trial court rejected defendant’s objection and admitted the photographs. On

31

appeal, defendant renews his challenge to these photographs on the grounds

asserted below.12

As we shall explain, defendant’s challenge is without merit.

In reviewing the ruling of the trial court, we reiterate the well-established

principle that “the admissibility of this evidence has two components: (1) whether

the challenged evidence satisfied the ‘relevancy’ requirement set forth in Evidence

Code section 210, and (2) if the evidence was relevant, whether the trial court

abused its discretion under Evidence Code section 352 in finding that the

probative value of the [evidence] was not substantially outweighed by the

probability that its admission would create a substantial danger of undue

prejudice.” (People v. Scheid (1997) 16 Cal.4th 1, 13.) We address these issues in

turn.

1.

The Photographs Were Relevant

“The rules pertaining to the admissibility of photographic evidence are

well-settled. Only relevant evidence is admissible (Evid. Code, § 350; People v.

Crittenden[, supra,] 9 Cal.4th 83, 132; People v. Garceau (1993) 6 Cal.4th 140,

176-177; People v. Babbitt (1988) 45 Cal.3d 660, 681), and all relevant evidence


12

At trial, defendant objected to one other item of photographic evidence,

exhibit 12, a videotape made by investigators showing the crime scene as they
encountered it. The trial court overruled the objection and the jury viewed the
tape, which ran approximately five minutes in length. Defendant on appeal does
not renew his objection to the videotape.


For the first time on appeal, defendant contends that the trial court’s ruling

admitting the photographs into evidence violated his state and federal
constitutional rights, including his rights to due process and a reliable penalty
determination under the Eighth and Fourteenth Amendments. Because defendant
failed to interpose an objection on these grounds at trial, this claim was not
preserved and may not be raised on appeal. (See People v. Anderson (2001) 25
Cal.4th 543, 592, fn. 17; People v. Ramos (1997) 15 Cal.4th 1133, 1170.)

32

is admissible unless excluded under the federal or California Constitution or by

statute. (Evid. Code, § 351; see also Cal. Const., art. I, § 28, subd. (d).) Relevant

evidence is defined in Evidence Code section 210 as evidence ‘having any

tendency in reason to prove or disprove any disputed fact that is of consequence to

the determination of the action.’ The test of relevance is whether the evidence

tends ‘ “logically, naturally, and by reasonable inference” to establish material

facts such as identity, intent, or motive. [Citations.]’ (People v. Garceau, supra,

6 Cal.4th at p. 177.) The trial court has broad discretion in determining the

relevance of evidence (ibid.; People v. Crittenden, supra, 9 Cal.4th at p. 132;

People v. Babbitt, supra, 45 Cal.3d at p. 681) but lacks discretion to admit

irrelevant evidence. (People v. Crittenden, supra, 9 Cal.4th at p. 132; People v.

Burgener (1986) 41 Cal.3d 505, 527.)” (People v. Scheid, supra, 16 Cal.4th 1,

13-14.)

Defendant contends that the photographs “had little or no probative value

relating to any issue in this case.” He argues that although the issue of his “intent

(or lack thereof) at the time the sexual assaults and homicide were committed

[was] very much in dispute, none of the photographs had any tendency in reason

to prove that these offenses were in any way preplanned or intentional as opposed

to being impulsive acts committed in the heat of passion and under the influence

of cocaine and alcohol.” Defendant adds that the photographs were inadmissible

to establish the cause of death or the nature of Katrina’s injuries, because he

“never contested these points.”

The People contend in response that the photographs were relevant to show

defendant’s mental state on the night of the murder, and that because the

prosecution was required to prove premeditation and deliberation, the images were

relevant to show the manner in which the crimes were committed. The People

33

maintain that the trial court acted within its discretion in admitting the challenged

photographs, and also that the photographs were not cumulative.

As we shall explain, we conclude that the photographs were clearly relevant

within the meaning of Evidence Code section 210.

First, as the prosecution argued at trial, the photographs were relevant to

establish the injuries suffered by Katrina, the savageness of the attack, and the

ferocious nature of the struggle. These images illustrated the testimony of various

prosecution witnesses who encountered the victim and viewed the crime scene.

(See People v. Scheid, supra, 16 Cal.4th 1, 15 [photograph was corroborative of

witnesses’ testimony regarding the circumstances of the crime, and the shocking

crime scene encountered; thus, photograph bolstered the witnesses’ credibility];

People v. Garceau, supra, 6 Cal.4th 140, 181 [photograph of mummified victims

hidden within a dresser was highly probative, because it corroborated testimony

relating to concealment of the bodies]; People v. Pride (1992) 3 Cal.4th 195, 243

[“the photographs were pertinent because they showed the nature and the

placement of the fatal wounds”]; People v. Allen (1986) 42 Cal.3d 1222, 1256

[nine photographs of victims were “clearly relevant” to corroborate witnesses’

testimony “concerning the location and manner in which the victims were shot”];

accord, People v. Taylor (2201) 26 Cal.4th 1155, 1168; see also People v. Hughes

(2002) 27 Cal.4th 287, 335-337; People v. Sanders (1990) 51 Cal.3d 471, 514-

515.) The circumstance that defendant did not challenge the prosecution’s theory

that the attack upon Katrina was a vicious one “does not render victim

photographs irrelevant.” (People v. Lewis (2001) 25 Cal.4th 610, 641.)

Further, the parties vigorously disputed defendant’s mental state at the time

the crimes were committed. The condition of the victim’s body and evidence of

defendant’s sexual assault therefore were important in establishing the People’s

case. Thus, for example, the photographs contained in exhibit 4 that depicted the

34

footprint marks found on Katrina’s chest and abdomen and the bottle of rubbing

alcohol found protruding from her mouth, were probative of the prosecution’s

theory that defendant’s capacity to premeditate and deliberate was evidenced by

his attempt to force her to regurgitate the amputated portion of his tongue.

Second, the photographs of the crime scene, showing Katrina’s body as it

was found by paramedics and sheriff’s deputies, “was relevant in establishing the

fact that a murder had occurred.” (People v. Scheid, supra, 16 Cal.4th at p. 15;

People v. Taylor, supra, 26 Cal.4th at p. 1168; People v. Seaton (2001) 26 Cal.4th

598, 655.) “The circumstance that other evidence existed to establish the murder

did not render the photograph irrelevant for purposes of Evidence Code sections

210 and 350.” (People v. Scheid, supra, 16 Cal.4th at p. 15.)

Third, the photographs were relevant because they established the means by

which defendant accomplished the fatal assault. (See People v. Farnam (2002) 28

Cal.4th 107, 185 [“ ‘Generally, photographs that show the manner in which a

victim was wounded are relevant to the determination of malice, aggravation and

penalty’ ”]; see also People v. Lucas (1995) 12 Cal.4th 415, 450 [photographs

admissible to illustrate, among other matters, “intent to kill, deliberation and the

torture element of the torture-murder special circumstance”].) Further, the

photographs were probative of the allegations involving the infliction of great

bodily injury and torture. In particular, the images contained within exhibit 5

illustrated Katrina’s injuries, and some of the photographs were referred to by the

coroner during his testimony concerning the fatal blows and strangulation suffered

by Katrina. The photographs contained within exhibit 6 depicted the bite marks

around Katrina’s breasts, which illustrated certain aspects of the forensic dentist’s

testimony intended to identify the perpetrator.

Although it is true that the prosecution could have relied upon other

evidence to establish the matter at issue, “it is immaterial for purposes of

35

determining the relevance of evidence that other evidence may establish the same

point.” (People v. Scheid, supra, 16 Cal.4th 1, 16; see also People v. Anderson,

supra, 25 Cal.4th 543, 592 [“[P]hotos are not cumulative simply because they

illustrate evidence presented by other means.”] In re Romeo C. (1995) 33

Cal.App.4th 1838, 1843 [“Evidence may be relevant even though it is cumulative;

thus, the only ban on cumulative evidence is found in Evidence Code section

352.”] .) Nor were the photographs somehow rendered irrelevant simply because

defendant did not dispute the cause of death or the nature and extent of the

victim’s injuries. (See People v. Box (2000) 23 Cal.4th 1153, 1199; People v.

Smithey (1999) 20 Cal.4th 936, 973-974.) Moreover, “the jury was entitled to see

the physical details of the crime scene and the injuries defendant inflicted on his

victim[].” (People v. Weaver (2001) 26 Cal.4th 876, 933; see also People v.

Crittenden, supra, 9 Cal.4th 83, 133; People v. Pride, supra, 3 Cal.4th 195, 243.)

In sum, the photographs clearly satisfied the relevancy requirement

embodied in Evidence Code section 210. We therefore conclude that the trial

court did not err in finding that the photographs constituted relevant evidence.

2.

The Photographs Were Not Unduly Prejudicial

As noted above, defendant contends that even if the photographs

constituted relevant evidence, the trial court nevertheless erred in denying his

motion to exclude this evidence pursuant to Evidence Code section 352.

Defendant maintains that the photographs were gruesome and likely to inflame the

passions of the jury. The People disagree with defendant’s characterization and

contend the trial court did not abuse its discretion in finding that the probative

value of the photographs outweighed any potential prejudice. As we shall explain,

we find no abuse of discretion.

“The admission of photographs of a victim lies within the broad discretion

of the trial court when a claim is made that they are unduly gruesome or

36

inflammatory. [Citations.] The court’s exercise of that discretion will not be

disturbed on appeal unless the probative value of the photographs clearly is

outweighed by their prejudicial effect. [Citations.]” (People v. Crittenden, supra,

9 Cal.4th at pp. 133-134.)

As noted, the photographs served to illustrate and corroborate the testimony

given by various prosecution witnesses regarding the circumstances of the crime.

In depicting the crime scene and, more specifically, the wounds suffered by the

victim, the photographs illustrated the brutal nature of the attack upon Katrina.

“[I]nsofar as defendant is contending that the trial court was required to exclude

the photograph[s] under Evidence Code section 352 because th[e] physical

evidence was cumulative of the testimonial evidence presented, the trial court

correctly rejected defendant’s argument. (See People v. Wilson (1992) 3 Cal.4th

926, 938 [‘ “[W]e have often rejected the argument that photographs of a murder

victim should be excluded as cumulative if the facts for which the photographs are

offered have been established by testimony.” ’]; accord, People v. Kaurish (1990)

52 Cal.3d 648, 684; People v. Thompson (1988) 45 Cal.3d 86, 115.)” (People v.

Scheid, supra, 16 Cal.4th 1, 19.)

As to whether the photographs had an unduly prejudicial effect, we note

that “[w]e have described the ‘prejudice’ referred to in Evidence Code section 352

as characterizing evidence that uniquely tends to evoke an emotional bias against a

party as an individual, while having only slight probative value with regard to the

issues. (People v. Garceau, supra, 6 Cal.4th 140, 178.) As we previously have

observed, victim photographs and other graphic items of evidence in murder cases

always are disturbing. (People v. Hendricks (1987) 43 Cal.3d 584, 594.)”

(People v. Crittenden, supra, 9 Cal.4th at p. 134; accord, People v. Fierro (1991)

1 Cal.4th 173, 223.) Here, the photographs portray the results of defendant’s

violent conduct; that they are graphic and unpleasant to consider does not render

37

the introduction of those images unduly prejudicial. (See People v. Navarette

(2003) 30 Cal.4th 458, 496 [rejecting the defendant’s contention that the “sexually

suggestive nature” of photographs taken of the victim rendered them unduly

prejudicial, and holding that “[w]hen the victim of a murder has been stabbed

directly between the breasts and left with her pants and underwear around her

ankles, the defendant cannot complain that the jury is exposed to images of her

nudity.”]; see also People v. Riel (2000) 22 Cal.4th 1153, 1194 [“The fact that the

exhibits involved blood was due to the crime, not the court’s rulings.”].)

Our independent review of the photographs and the crime scene videotape

introduced at the trial convinces us that, although not easy to look at, they are not

unduly gory or inflammatory. (See, e.g., People v. McDermott (2002) 28 Cal.4th

946, 998; People v. Michaels (2002) 28 Cal.4th 486, 531-532; People v.

Anderson, supra, 25 Cal.4th 543, 590-592; People v. Pride, supra, 3 Cal.4th 195,

243, People v. Fierro, supra, 1 Cal.4th 173, 223; People v. Kelly (1990) 51 Cal.3d

931, 963; People v. Turner (1990) 50 Cal.3d 668, 707; People v. Coleman (1988)

46 Cal.3d 749, 776.) The photographs, while unquestionably unpleasant, do not

appear to be of the sort that might inflame a jury. (See, e.g., People v. Turner

(1984) 37 Cal.3d 302, 320, 321, and fn. 9, overruled on another ground in People

v. Anderson (1987) 43 Cal.3d 1104, 1149-1150 [upholding trial court’s finding

that four crime scene photographs, which included a photograph of one victim’s

head in a large pool of blood and of another victim lying face up with bleeding

wounds, were “not gruesome”]; see also People v. Allen, supra, 42 Cal.3d 1222,

1258 [victims’ bodies were not depicted “in a badly decomposed condition . . . or

after they had been grossly disfigured during autopsy”].)13

13

The five cases relied upon by defendant are distinguishable and do not

persuade us that the trial court erred in admitting into evidence the photographs in

(Footnote continued on next page.)

38

Moreover, as we observed in People v. Scheid, supra, 16 Cal.4th 1, 20, “the

trial court clearly and properly could find that the photograph[s were] not so

gruesome as to have impermissibly swayed the jury ‘in light of the testimony

detailing each and every fact relating to the crime scene and victims.’” As noted

above, various witnesses for the prosecution testified in detail as to what they

observed when they first encountered Katrina’s body. (See People v. Allen, supra,

42 Cal.3d 1222, 1258 [observing that the inflammatory nature of nine photographs

“was relatively slight in comparison with the heinous nature of the crime presented

to the jury through the testimony of witnesses”].)

Nor, contrary to defendant’s assertion, were the photographs unduly

prejudicial on the ground they were cumulative by reason of their corroboration of

facts independently established by testimony. (See, e.g., People v. Hart (1999) 20

Cal.4th 546, 616 [upholding the trial court’s ruling admitting into evidence 16

photographic slides, three photographs, and one videotape]; People v. Medina

(1995) 11 Cal.4th 694, 754-755; People v. Price (1991) 1 Cal.4th 324, 441, and


(Footnote continued from previous page.)

question. (See People v. Poggi (1988) 45 Cal.3d 306, 322-323 [one photograph of
victim while alive and another showing an autopsy incision were deemed
irrelevant to any disputed material fact]; People v. Gibson (1976) 56 Cal.App.3d
119, 134-135 [photographs were deemed to represent “cumulative evidence of
slight relevancy”]; People v. Smith (1973) 33 Cal.App.3d 51, 68-69 [“the record
does not reveal what evidentiary purpose was expressed by the district attorney in
presenting these pictures to the jury”], disapproved on other grounds in People v.
Wetmore
(1978) 22 Cal.3d 318, 325; People v. Burns (1952) 109 Cal.App.2d 524,
541 [admitting into evidence postautopsy photographs of uncertain probative
value deemed to have been an abuse of discretion].) In a fifth case, also involving
an autopsy photograph, this court concluded that the image lacked probative value
when introduced at the penalty phase. (People v. Love (1960) 53 Cal.2d 843,
856.)

39

cases cited therein; see also People v. Thompson, supra, 45 Cal.3d 86, 115 [“Even

somewhat cumulative photographic evidence may be admitted if relevant”].)

Finally, even if the photographs engendered a disturbing response among

the jurors, we believe the risk defendant would be prejudiced by that response was

minimal, because the jury knew defendant had committed the acts described by

the witnesses who had appeared before them.

In sum, we conclude that the trial court reasonably could determine that the

probative value of the photographic evidence outweighed its potentially

prejudicial effect. We thus determine that the trial court did not abuse its

discretion under Evidence Code section 352 in admitting the photographs into

evidence. (People v. Crittenden, supra, 9 Cal.4th at p. 134; People v. Wilson,

supra, 3 Cal.4th at p. 938; People v. Mickey (1991) 54 Cal.3d 612, 656; People v.

Cox (1991) 53 Cal.3d 618, 666; People v. Benson (1990) 52 Cal.3d 754, 786.).

3.

Even if the Trial Court Erred, No Prejudice Occurred

Even if we were to agree with defendant that the trial court erred in

admitting the photographic evidence in question, we nonetheless would conclude

that any error in admitting such evidence was harmless under the Watson standard.

(See People v. Allen, supra, 42 Cal.3d 1222, 1258, applying the standard of

People v. Watson (1956) 46 Cal.2d 818, 836.)

“Under the Watson standard, the erroneous admission of a photograph

warrants reversal of a conviction only if the appellate court concludes that it is

reasonably probable the jury would have reached a different result had the

photograph been excluded. (People v. Watson, supra, 46 Cal.2d at p. 836.)”

(People v. Scheid, supra, 16 Cal.4th 1, 21.) The photographs at issue did not

disclose to the jury any information that was not presented in detail through the

testimony of witnesses. Although the photographs were unpleasant, they were not

unusually disturbing or unduly gruesome, and were no more inflammatory than

40

the graphic testimony provided by a number of the prosecution’s witnesses.

Under these circumstances, we conclude it is not reasonably probable that the

admission of the photographs affected the jury’s verdict. (People v. Gurule (2002)

28 Cal.4th 557, 625; People v. Allen, supra, 42 Cal.3d at p. 1258.)

C.

INSTRUCTIONAL ISSUES

1.

Reasonable doubt instruction

Defendant contends the standard reasonable doubt instruction used at his

trial — former CALJIC No. 2.90 — unconstitutionally permitted the jurors to take

into account moral considerations in determining his guilt.14 As he acknowledges,

however, the United States Supreme Court has sustained the language of former

CALJIC No. 2.90 against constitutional challenge (Victor v. Nebraska (1994) 511

U.S. 1, 6, affg. People v. Sandoval (1992) 4 Cal.4th 155, 185-186) even though

the high court expressed concerns regarding the wording of the instruction, and

this court consistently has affirmed the validity of the instruction. (People


14

In relevant part, the court instructed defendant’s jury that “A defendant in a

criminal action is presumed to be innocent until the contrary is proved, and in case
of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a
verdict of not guilty. This presumption places upon the People the burden of
proving him guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined
as follows: it is not a mere possible doubt; because everything relating to human
affairs, and depending upon moral evidence is open to some possible or imaginary
doubt. It is that state of the case which, after the entire comparison and
consideration of all of the evidence, leaves the minds of the jurors in that condition
that they cannot say they feel an abiding conviction, to a moral certainty, of the
truth of the charge.”


CALJIC No. 2.90 now provides in part: “Reasonable doubt is defined as

follows: It is not a mere possible doubt; because everything relating to human
affairs is open to some possible or imaginary doubt. It is that state of the case
which, after the entire comparison and consideration of all of the evidence, leaves
the minds of the jurors in that condition that they cannot say they feel an abiding
conviction of the truth of the charge.”

41

v. Lewis (2001) 25 Cal.4th 610, 651-652; People v. Staten (2000) 24 Cal.4th 434,

456.) Defendant has not submitted any argument that would undermine these

decisions.

2.

Circumstantial evidence instruction

Defendant also raises a constitutional objection to the circumstantial

evidence instructions set forth in CALJIC Nos. 2.00 and 2.01,15 which he


15

Those instructions as given provided as follows: “Evidence is either direct

or circumstantial.


“Direct evidence is evidence that directly proves a fact without the

necessity of an inference. It is evidence which by itself, if found to be true,
establishes a fact.


“Circumstantial evidence is evidence that, if found to be true, proves a fact

from which an inference of the existence of another fact may be drawn.


“It is not necessary that facts be proved by direct evidence. They may be

proved also by circumstantial evidence or by a combination of direct evidence and
circumstantial evidence. Both direct evidence and circumstantial evidence are
acceptable means of proof; neither is entitled to any greater weight than the other.


“However, a finding of guilt as to any crime may not be based on

circumstantial evidence unless the proved circumstances are not only consistent
with the theory that the defendant is guilty of a crime, but cannot be reconciled
with any other rational conclusion.


“Further, each fact which is essential to complete a set of circumstances

necessary to establish the defendant’s guilt must be proved beyond a reasonable
doubt. In other words, before an inference essential to establish guilt may be
found to have been proved beyond a reasonable doubt, each fact or circumstance
upon which such inference necessarily rests must be proved beyond a reasonable
doubt.


“Also, if the circumstantial evidence as to any particular count . . . is

susceptible of two reasonable interpretations, one of which points to the
defendant’s guilt, the other to his innocence, you must adopt that interpretation
which points to the defendant’s innocence and reject that interpretation which
points to his guilt.


“If on the other hand, one interpretation of such evidence appears to you to

be reasonable and the other interpretation to be unreasonable, you must accept the
reasonable interpretation and reject the unreasonable.”

42

contends permit the jury to draw factual inferences “without making the

constitutionally required additional judgment that the inferred fact was more likely

than not to follow from the proved fact.” Thus, he argues, these instructions

conflict with the presumption of innocence, the guarantee of due process of law,

and the requirement of proof beyond a reasonable doubt.

In response to similar arguments, we previously have concluded that these

instructions are not constitutionally defective when viewed as a whole and read in

conjunction with the reasonable doubt instruction. (People v. Bradford (1997) 14

Cal.4th 1005, 1054; People v. Wilson, supra, 3 Cal.4th 926, 942-943.) Defendant

urges us to reconsider this determination in light of his argument that the

reasonable doubt instruction is “hopelessly confusing.” Because we disagree with

this assessment of former CALJIC No. 2.90, we decline to do so.

3.

Lesser included offense instructions

The trial court instructed on first degree premeditated and felony murder

and implied-malice second degree murder. Defendant contends it erred in failing

additionally to instruct the jury sua sponte on the lesser included offense of

involuntary manslaughter, as to which defendant contends the jury properly could

have found him guilty, based upon evidence that defendant ingested cocaine and

alcohol prior to the sexual assault and murder of Katrina and as a result “was not

conscious of what he was doing.”

“ ‘[A] defendant has a constitutional right to have the jury determine every

material issue presented by the evidence [, and] . . . an erroneous failure to instruct

on a lesser included offense constitutes a denial of that right . . . .’ [Citations.] To

protect this right and the broader interest of safeguarding the jury’s function of

ascertaining the truth, a trial court must instruct on lesser included offenses, even

in the absence of a request, whenever there is substantial evidence raising a

question as to whether all of the elements of the charged offense are present.

43

[Citations.] ‘Substantial evidence is evidence sufficient to “deserve consideration

by the jury,” that is, evidence that a reasonable jury could find persuasive.’

[Citation.]” (People v. Lewis, supra, 25 Cal.4th at p. 645.) Involuntary

manslaughter ordinarily is considered a lesser included offense of murder. (See

People v. Ochoa, supra, 19 Cal.4th 353, 422.)

Defendant predicates his argument on the testimony of defense witness Dr.

Aniline that he was suffering from cocaethylene syndrome — as a result of the

combined effects of cocaine and alcohol — and that “it was reasonably inferable

that in his intoxicated state he was unaware of, and thus unable to control, his

behavior.” Defendant asserts that in view of his prior relationship with the victim,

during which he never had made any inappropriate sexual advances toward her,

and his protective attitude toward her, “the jury certainly could have found” that

he “ ‘must’ have been literally ‘out of his mind’ and ‘unconscious’ of what he was

doing” when he committed the crimes against her.

Involuntary manslaughter includes criminally negligent homicide. (§ 192,

subd. (b); People v. Ochoa, supra, 19 Cal.4th 353, 423.) “When a person renders

himself or herself unconscious through voluntary intoxication and kills in that

state, the killing is attributed to his or her negligence in self-intoxicating to that

point, and is treated as involuntary manslaughter.” (Ochoa, at p. 423.) Although

unconsciousness in this context “ ‘can exist . . . where the subject physically acts

in fact but is not, at the time, conscious of acting’ ” (People v. Kelly (1973) 10

Cal.3d 565, 572), the record in the present case fails to reflect substantial evidence

that defendant’s ingestion of cocaine and alcohol rendered him unconscious.

Most significantly, Dr. Aniline did not indicate defendant was unconscious

at the time of the attack on Katrina, but rather testified only that defendant’s drug

consumption may have impaired his judgment and precipitated a “frenzied state”

rather than deliberate behavior. Furthermore, other circumstances, including the

44

manner of the killing and defendant’s own statements prior to the crimes, are

inconsistent with any suggestion that defendant was unconscious when he

committed the acts in question. At Mattie McAlister’s party, when Cheryl Bailey

rebuffed his advances, defendant proclaimed that he was “going to kill a bitch.”

He then proceeded to the Browns’ apartment where he engaged in an hour-long

assault, during which time neighbors heard the victim’s intermittent screams and

crying. Particularly revealing of defendant’s state of mind were his efforts to

retrieve the amputated piece of his tongue that he apparently believed Katrina had

swallowed and to remove fingerprints from the baseball bats. In sum, the

evidence failed in all respects to support a finding of unconsciousness, and the

trial court did not err in declining to instruct the jury on involuntary manslaughter.

(See People v. Ochoa, supra, 19 Cal.4th at p. 424.)

Moreover, the jury was instructed that in order to find defendant guilty of

specified sexual offenses, it had to determine that he acted with specific intent, and

that it should consider the effect of his intoxication in deciding whether he acted

with the requisite mental state. In convicting defendant of these sexual offenses,

the jury necessarily determined that defendant formed the requisite specific intent

despite his consumption of drugs and alcohol. In view of this finding, the jury

could not have concluded he was unconscious and therefore guilty only of

involuntary manslaughter. Thus, even if the court had erred in its instructions, we

would find that such error was clearly harmless. (See People v. Earp (1999) 20

Cal.4th 826, 884-886.)

D. CUMULATIVE

ERROR

Defendant contends that the cumulative effect of the guilt phase errors

asserted was sufficient to warrant reversal regardless of the prejudicial impact of

any single error. Having determined that no error occurred at the guilt phase, we

conclude that this contention lacks merit as well.

45



E.

CONSTITUTIONALITY OF CALIFORNIA’S DEATH
PENALTY STATUTES


Defendant’s contentions pertaining to the penalty phase judgment are

limited to a series of challenges to the constitutionality of California’s death

penalty statutes — arguing in various respects that they violate the Fifth, Sixth,

Eighth, and Fourteenth Amendments to the federal Constitution and article I,

section 17, of the California Constitution. Because we have concluded that the

erroneous excusal of Prospective Juror H. for cause compels reversal of

defendant’s death sentence, we need not address these issues.

III. CONCLUSION

The judgment is affirmed as to the guilt verdicts and the special

circumstance findings, but is reversed as to the sentence of death. The case is

remanded to the trial court for a new penalty trial before a properly selected jury.

GEORGE, C.J.

WE CONCUR:

KENNARD, J.
WERDEGAR, J.
MORENO, J.

46











CONCURRING AND DISSENTING OPINION BY BROWN, J.




I concur in the majority’s determination to affirm the jury’s guilty verdict

and special circumstance findings.

I cannot agree, however, that the trial court erred in excusing Prospective

Juror H. for cause. I find the record fairly supports—and thus requires deference

to—the court’s implicit determination that H.’s views on the death penalty would

sufficiently interfere with his duties as a juror to warrant excusal.

In

Wainwright v. Witt (1985) 469 U.S. 412 (Witt), the United States

Supreme Court reconsidered language in Witherspoon v. Illinois (1968) 391 U.S.

510, to the effect that prospective jurors may be excused for cause if they make it

“unmistakably clear (1) that they would automatically vote against the imposition

of capital punishment without regard to any evidence that might be developed at

the trial of the case before them, or (2) that their attitude toward the death penalty

would prevent them from making an impartial decision as to the defendant’s

guilt.” (Id. at p. 522, fn. 21.) This standard had tended to be applied in formulaic

terms, with “lower courts stat[ing] that a veniremember may be excluded only if

he or she would ‘automatically’ vote against the death penalty, and even then this

state of mind must be ‘unambiguous,’ or ‘unmistakably clear.’ [Citation.]” (Witt,

at p. 419.)

1

In

Witt, the high court rejected such a narrow and formalistic approach and

discarded the Witherspoon formulation. It held instead that a trial court may

excuse a prospective juror for cause whenever “the juror’s views would ‘prevent

or substantially impair the performance of his duties as a juror in accordance with

his instructions and his oath.’ ” (Witt, supra, 469 U.S. at p. 424, fn. omitted.) The

court further emphasized that “in addition to dispensing with Witherspoon’s

reference to ‘automatic’ decisionmaking, this standard likewise does not require

that a juror’s bias be proved with ‘unmistakable clarity.’ This is because

determinations of juror bias cannot be reduced to question-and-answer sessions

which obtain results in the manner of a catechism. What common sense should

have realized experience has proved: many veniremen simply cannot be asked

enough questions to reach the point where their bias has been made ‘unmistakably

clear’; these veniremen may not know how they will react when faced with

imposing the death sentence, or may be unable to articulate, or may wish to hide

their true feelings. Despite this lack of clarity in the printed record, however, there

will be situations where the trial judge is left with the definite impression that a

prospective juror would be unable to faithfully and impartially apply the law. . . .

[T]his is why deference must be paid to the trial judge who sees and hears the

juror.” (Id. at pp. 424-425, fn. omitted.)

With respect to deference, the court explained: “[T]he question whether a

venireman is biased has traditionally been determined through voir dire

culminating in a finding by the trial judge concerning the venireman’s state of

mind. . . . [S]uch a finding is based upon determinations of demeanor and

credibility that are peculiarly within a trial judge’s province. Such determinations

were entitled to deference even on direct review [as well as federal habeas corpus

proceedings].” (Witt, supra, 469 U.S. at p. 428, fn. omitted.) While the trial judge

applies a legal standard in resolving challenges for cause, “his predominant

2

function in determining juror bias involves credibility findings whose basis cannot

be easily discerned from an appellate record.” (Id. at p. 429; see also Darden v.

Wainwright (1986) 477 U.S. 168, 175-178; Patton v. Yount (1984) 467 U.S. 1025,

1038.) Indeed, as the court had observed as early as Reynolds v. United States

(1878) 98 U.S. 145, 156-157, “ ‘[T]he manner of the juror while testifying is

oftentimes more indicative of the real character of his opinion than his words.

That is seen below, but cannot always be spread upon the record. Care should,

therefore, be taken in the reviewing court not to reverse the ruling below upon

such a question of fact, except in a clear case.’ ” (Witt, supra, at p. 428, fn. 9,

quoting Reynolds, at pp. 156-157.)

In applying the constitutional standard of Witt, this court has also

consistently accorded the same measure of deference in reviewing excusals for

cause. (See, e.g., People v. Crittenden (1994) 9 Cal.4th 83, 122-123; People

v. Ghent (1987) 43 Cal.3d 739, 768.) “On appeal, we will uphold a trial court’s

ruling on a challenge for cause by either party ‘if it is fairly supported by the

record, accepting as binding the trial court’s determination as to the prospective

juror’s true state of mind when the prospective juror has made statements that are

conflicting or ambiguous.’ [Citations.]” (People v. Bolden (2002) 29 Cal.4th 515,

537.)

Reviewing the record in light of the foregoing principles, I conclude the

trial court did not err in excusing Prospective Juror H. for cause. In making its

ruling, the court focused on H.’s views regarding “background conditions.”

During voir dire, the court noted that H. had referred in his juror questionnaire to

“past psychological experiences” as a basis for imposing life without possibility of

parole—which H. considered the more serious punishment—and sought to clarify

his views. The following colloquy then ensued:

3



“THE COURT: . . . Assuming there were past psychological experiences,

bad childhood or abuse or something else, I don’t know whether any of that is

going to come out, but assuming that thing occurred, would you be automatically

in favor of life without possibility of parole as opposed to the death penalty

because of those factors?

“PROSPECTIVE JUROR [H.]: Well, whatever the law states.

“THE COURT: The law is not going to help you a whole lot in weighing

the evidence and deciding the penalty. That is, the law is going to give you the

two options. And the law is going to tell you that you must consider all the

evidence that’s in. And then you must look at the aggravating and mitigating

factors.

“PROSPECTIVE JUROR [H.]: Uh-huh.

“THE COURT: And you can only impose death if the aggravating factors

are so substantial in comparison to the mitigating factors that death is warranted.

“Now that’s pretty much it. You are going to have to decide for yourself

what those factors are and decide what penalty is appropriate. So we are not going

to tell you how to weigh the psychological factors. We are just not going to. You

are going to have to weigh it yourself in your decisions with the other jurors. You

feel comfortable doing that?

“PROSPECTIVE JUROR [H.]: Yes.

“THE COURT: Do you think that if there were past psychological factors

that they would weigh heavily enough that you probably wouldn’t impose the

death penalty?

“Long period of silence. Is your answer you just don’t know or what?

“PROSPECTIVE JUROR [H.]: Yes, I think they might.

“THE COURT: You think they might auger toward life without possibility

of parole?

4



“PROSPECTIVE JUROR [H.]: Yes.

“THE COURT: Are you absolutely committed to that position?

“PROSPECTIVE JUROR [H.]: Yes.

“THE COURT: You are saying that if there were psychological factors,

without naming what they might be, you would automatically vote for life without

possibility of parole?

“PROSPECTIVE JUROR [H.]: Without naming them, I don’t think so.”

It thus appears that although H. initially indicated he felt “comfortable”

with deliberating the question of penalty, including consideration of psychological

factors, the trial court nevertheless perceived a sufficient degree of ambiguity or

uncertainty to persist in this line of questioning to clarify his true state of mind.

The court also felt constrained to note a “long period of silence”—during which it

plainly would have been focused on H.’s demeanor—before H. responded

regarding imposition of the death penalty “if there were past psychological

factors.” Despite several more questions, however, he never expressed a clear

position. Whether or not his answers were actually inconsistent, they were at least

equivocal.

“[A] primary purpose of [the death-qualifying] phase of voir dire is to

enable the trial court to ‘assess the juror’s state of mind’ and thereby make a

meaningful evaluation of his or her impartiality. [Citation.] [¶] As a concomitant

principle of review, we generally accord considerable deference to these

evaluations, which ‘constitute[] a resolution of what is essentially a question of

fact or, perhaps more accurately, a mixed question that is essentially factual.

[Citation.]’ [Citation.] ‘If there are conflicting answers to the voir dire, the court

may assess the juror’s state of mind and is not bound by statements which, taken

in isolation, are unequivocal. When such a prospective juror has both equivocated

and taken (at some point) a clear stand, the wisdom of entrusting the ruling on the

5

challenge for cause to the trial court becomes clear.’ [Citation.] Thus, ‘where

equivocal or conflicting responses are elicited regarding a prospective juror’s

ability to impose the death penalty, the trial court’s determination as to his true

state of mind is binding on an appellate court.’ [Citations.] ‘In the final analysis,

“the question is not whether a reviewing court might disagree with the trial court’s

findings, but whether those findings are fairly supported by the record,” and

ambiguities are to be resolved in favor of the trial court’s assessment. [Citation.]’

[Citations.]” (People v. Cox (1991) 53 Cal.3d 618, 646-647.) The portion of the

voir dire cited above reflects precisely the circumstance in which we should defer

to the conclusions of the trial court, which saw and heard what we can now only

review in inscrutable print.

The majority describes the voir dire as “a series of awkward questions” and

suggests the court’s perceived deficiencies in H.’s responses “reasonably must be

viewed as a product of the trial court’s own unclear inquiries.” (Maj. opn., ante, at

p. 24, fn. omitted.) With all due respect, these criticisms not only unfairly

disparage a conscientious bench officer1 but highlight the majority’s own failure


1

The majority’s characterization of Prospective Juror H.’s voir dire variously

as inadequate and “inexplicable and disappointing” (maj. opn., ante, at p. 24) is
equally unjustified on this record. A review of H.’s questioning in the context of
the entire voir dire demonstrates that the court considered each prospective juror,
including H., individually to the extent necessary, or possible, to determine his or
her actual views regarding the death penalty. Thus, for example, the court
inquired further of several prospective jurors who had indicated on their
questionnaires they thought life imprisonment without the possibility of parole
was a more severe punishment than death. At some point, the court also explained
to the venire generally the manner in which the jury would make its penalty
determination, emphasizing that death would be warranted only if the aggravating
circumstances substantially outweighed those in mitigation, meaning the law
considered death the more severe punishment. Inferentially, the court concluded

(Footnote continued on next page.)

6

to impose the self-restraint required of a reviewing court in these circumstances.

As the high court in Witt cautioned, this is the very situation in which our

“common sense should have realized [what] experience has proved: many

veniremen simply cannot be asked enough questions to reach the point where their

bias has been made ‘unmistakably clear’; these veniremen may not know how

they will react when faced with imposing the death sentence, or may be unable to

articulate, or may wish to hide their true feelings. Despite this lack of clarity in

the printed record, however, there will be situations where the trial judge is left

with the definite impression that a prospective juror would be unable to faithfully

and impartially apply the law. . . . [T]his is why deference must be paid to the trial

judge who sees and hears the juror.” (Witt, supra, 469 U.S. at pp. 424-426; see id.

at pp. 428, fn. 9, 429.) This court did not see or hear Prospective Juror H; it is

therefore impossible for us to determine the cause of his vagueness and lack of

articulation.

The relevant determination here is not whether a prospective juror would

always or automatically vote for one penalty or the other; nor is the question

strictly whether the individual is unable to follow the law. While either of these

circumstances would be a sufficient basis to excuse for cause, neither is a

necessary one. Rather, the trial court must endeavor to assess whether “the juror’s

views would ‘prevent or substantially impair the performance of his duties as a

juror in accordance with his instructions and his oath.’ ” (Witt, supra, 469 U.S. at

p. 424, fn. omitted & italics added.) In my view, it is entirely reasonable that, in


(Footnote continued from previous page.)

in this context that it was unnecessary to pursue the point with those prospective
jurors it perceived from their demeanor had no confusion on this point.

7

light of the voir dire—including an evaluation of credibility and demeanor—the

court could conclude Prospective Juror H.’s view would substantially impair the

discharge of his duties. On this record, that assessment is entitled to our

deference.

I likewise find no error in the trial court’s excusal of Prospective Juror Q.

Q. initially indicated she would not automatically vote for one punishment or the

other in the event of a penalty phase trial. During subsequent questioning,

however, she stated she thought life without the possibility of parole was the more

serious alternative. The court and both counsel attempted to clarify her state of

mind but without real success. At one point, the prosecution asked, “Well, can

you even conceive of any circumstance under which death would be

appropriate?”—to which Q. responded, “I can’t think of [any].” The prosecutor

made further efforts to understand the logic of her position, which the trial court

finally summarized as follows: “I guess what [the prosecutor] is saying is if Hitler

were on trial here and he were convicted, he would get life. And if somebody else

were tried who just barely made the first degree murder and special circumstances,

he’d get death. [¶] . . . [¶] . . . Is that your position?” In response, Q. affirmed

without equivocation that the court had accurately described her views on the

death penalty.

The trial court properly excused Prospective Juror Q. for cause. As the

court expressed the situation, Q. “has boxed herself into a position that where I

don’t know anymore how she stands. I mean, she is literally impossible at this

point to evaluate, absent some lengthy, lengthy questions.” The record bears out

this determination as well as the reasonable inference Q.’s equivocation and

ambivalence would impair her ability to function according to the instructions and

her oath if the case proceeded to a penalty phase. Since substantial evidence

8

supports the court’s resolution of these uncertainties, we should not second-guess

its evaluation of her state of mind.

Defendant argues that nevertheless the trial court erroneously failed to

continue questioning Q. to resolve her apparent confusion and clarify her actual

views. It is entirely uncertain what, if any, value additional voir dire would have

had; and he cites no constitutional imperative for imposing such an obligation

where the court and counsel have all made reasonable efforts to ascertain a

prospective juror’s attitude. As with the ultimate determination to excuse for

cause, the trial court’s decision whether further questioning would serve any

useful purpose should be deferred to on review. (Cf. Witt, supra, 469 U.S. at

p. 425.)

“The selection of a jury in a capital case includes many judgment calls by

trial judges—calls that involve the judge’s intuition about the demeanor of the

venireman, the appropriateness of his response, his manner, dress, and his

inflection. It is a decision with the usual stuff of trial court decisionmaking, calls

more dependent upon intuition, shrewdness, or courtroom savvy than abstract

analogical processes. Correspondingly, one need not pause for long to summon

up myriad examples of expression whose meaning can only be determined by the

inflection and manner of its expression. For example, the simple expressions ‘I

reckon so’ and ‘I could hardly do so’ may or may not express doubt. In sum,

ruling upon a request to exclude a venireman inevitably involves an interpretation

of what was asked and answered. The dynamic trial scene is not easily conformed

to a mold judicially shaped to facilitate review or to achieve a targeted level of

accuracy, perhaps because few but lawyers and judges talk and think in such a

fashion, peculiarly so with the interrogation of veniremen in death cases.”

(O’Bryan v. Estelle (5th Cir. 1983) 714 F.2d 365, 393 (conc. opn. of

Higginbotham, J.).)

9



Thus, while preparation is incumbent, the trial court must bring more

intuitive skills to the voir dire process as well. Contrary to the majority’s

implication and irrespective of “careful planning” (maj. opn., ante, at p. 23), the

actual determination whether to excuse for cause is an on-the-spot assessment of

the individual’s credibility as a prospective juror not the parsing of a cold

transcription of questions and answers. As the high court reminded in Witt,

“determinations of juror bias cannot be reduced to question-and-answer sessions

which obtain results in the manner of a catechism.” (Witt, supra, 469 U.S. at

p. 424.) Moreover, once error is found, we have no alternative but to reverse the

penalty judgment, with the tremendous toll that implies not only on the victim’s

family but the judicial system at large. Given this consequence, it is all the more

critical that we observe the greatest circumspection and take care not to reverse

“except in a clear case.” (Reynolds v. United States, supra, 98 U.S. at p. 157.)

Accordingly, I would affirm the judgment in its entirety.

BROWN, J.

WE CONCUR:

BAXTER,

J.

CHIN,

J.

10

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Heard
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S035769
Date Filed: August 28, 2003
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: Richard P. Kalustian

__________________________________________________________________________________

Attorneys for Appellant:

Jonathan P. Milberg, under appointment by the Supreme Court, for Defendant and Appellant.





__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R. Gorey and Susan Sullivan Pithey, Deputy Attorneys
General, for Plaintiff and Respondent.






1





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

Jonathan P. Milberg
300 N. Lake Avenue, Suite 320
Pasadena, CA 91101
(626) 685-8910

Susan Sullivan Pithey
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2273


2

Opinion Information
Date:Docket Number:
Thu, 08/28/2003S035769

Parties
1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Susan Sullivan Pithey, Deputy Attorney General
300 South Spring Street, Suite 500
Los Angeles, CA

2Heard, James Matthew (Appellant)
San Quentin State Prison
Represented by Robert E. Boyce
Attorney at Law
924 23rd St.
San Diego, CA

3Heard, James Matthew (Appellant)
San Quentin State Prison
Represented by Jonathan P. Milberg
Attorney at Law
300 N. Lake Ave., Suite 320
Pasadena, CA


Disposition
Aug 28 2003Opinion: Conviction & specials aff., penalty rev.

Dockets
Sep 28 1993Judgment of death
 
Oct 29 1993Filed certified copy of Judgment of Death Rendered
  9-28-93.
Jun 22 1998Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Jonathan P. Milberg is hereby appointed to represent appellant Heard for the direct appeal in the above automatic appeal now pending in this court.
Jun 22 1998Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Robert E. Boyce is hereby appointed to represent appellant Heard for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court.
Jul 22 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 28 1998Extension of Time application Granted
  To Applt To 9-28-98 To request Corr. of Record.
Sep 29 1998Received:
  Copy of Applt's motion for Additional Record, correction of Record & Settled Statement Proceedings (9 Pp. Excluding Exhibits).
Oct 21 1998Compensation awarded counsel
 
Dec 7 1998Compensation awarded counsel
 
Dec 14 1998Change of Address filed for:
  Atty Jonathan Milberg.
Dec 16 1998Compensation awarded counsel
 
Mar 24 1999Compensation awarded counsel
 
Mar 14 2000Record on appeal filed
  C-10 (1,916 Pp.) and R-20 (2,782 Pp.) Including Material Under Seal; Clerk's Transcript includes 147 pages of Juror Questionnaires.
Mar 14 2000Appellant's opening brief letter sent, due:
  4/24/2000
Apr 24 2000Application for Extension of Time filed
  To file Aob.
Apr 28 2000Extension of Time application Granted
  To 6/23/2000 To file Aob.
May 12 2000Compensation awarded counsel
  Atty Milberg
Jun 21 2000Application for Extension of Time filed
  To file Aob.
Jul 3 2000Extension of Time application Granted
  To 8/22/2000 to file AOB.
Aug 21 2000Application for Extension of Time filed
  To file AOB. (3rd request)
Aug 21 2000Counsel's status report received (confidential)
 
Aug 25 2000Extension of Time application Granted
  To 10/23/2000 to file AOB.
Sep 5 2000Counsel's status report received (confidential)
  from atty Boyce.
Oct 23 2000Counsel's status report received (confidential)
  from atty Milberg.
Oct 23 2000Application for Extension of Time filed
  To file AOB. (4th request)
Oct 24 2000Extension of Time application Granted
  To 12/22/2000 to file AOB.
Nov 3 2000Counsel's status report received (confidential)
  from atty Boyce.
Dec 18 2000Application for Extension of Time filed
  To file AOB. (5th request)
Dec 18 2000Counsel's status report received (confidential)
  from atty Milberg.
Dec 20 2000Extension of Time application Granted
  To 2/20/2001 to file AOB.
Feb 13 2001Counsel's status report received (confidential)
  from atty Boyce.
Feb 16 2001Counsel's status report received (confidential)
  from atty Milberg.
Feb 16 2001Application for Extension of Time filed
  To file AOB. (6th request)
Feb 26 2001Extension of Time application Granted
  To 4/23/2001 to file AOB. No further ext. of time are contemplated.
Mar 14 2001Counsel's status report received (confidential)
  from atty Boyce.
Apr 23 2001Application for Extension of Time filed
  to file AOB. (7th request)
Apr 23 2001Counsel's status report received (confidential)
 
Apr 23 2001Counsel's status report received (confidential)
  from atty Milberg.
Apr 30 2001Extension of Time application Granted
  To 6/22/2001 to file AOB. No further extensions of time will be granted.
May 14 2001Counsel's status report received (confidential)
  from atty Boyce.
Jun 22 2001Application for Extension of Time filed
  to file AOB. (8th request)
Jun 22 2001Counsel's status report received (confidential)
  from atty. Milberg
Jun 29 2001Extension of Time application Granted
  On counsel's representation that the AOB will be filed on or before 6-29-2001, permission is granted to and including 6-29-2001, to file AOB. No further extensions of time will be granted.
Jun 29 2001Appellant's opening brief filed
  (116 pp.)
Jul 13 2001Counsel's status report received (confidential)
  from atty Boyce.
Jul 20 2001Application for Extension of Time filed
  To file resp's brief. (1st request)
Jul 20 2001Compensation awarded counsel
  Atty Milberg
Jul 25 2001Extension of Time application Granted
  To 9/28/2001 to file resp.'s brief.
Sep 12 2001Counsel's status report received (confidential)
  from atty Boyce.
Sep 21 2001Application for Extension of Time filed
  to file respondent's brief. (2nd request)
Sep 27 2001Extension of Time application Granted
  To 11/27/2001 to file resp.'s brief.
Nov 16 2001Request for extension of time filed
  to file respondent's brief. (3rd request)
Nov 26 2001Extension of time granted
  To 1/28/2002 to file resp.'s brief. No further extensions of time are contemplated.
Nov 26 2001Counsel's status report received (confidential)
  from atty Boyce.
Nov 28 2001Filed:
  Amended declaration of service re third request for extension of time to file resp.'s brief.
Dec 24 2001Counsel's status report received (confidential)
  from atty Boyce.
Jan 9 2002Filed:
  Counsel's declaration re review of record. (confidential)
Jan 24 2002Compensation awarded counsel
  Atty Boyce
Jan 25 2002Respondent's brief filed
  (110 pp.)
Feb 7 2002Request for extension of time filed
  To file reply brief. (1st request)
Feb 7 2002Received document entitled:
  Automatic Appeal Status Report from attorney for appellant
Feb 13 2002Filed:
  Amended first request for an extension of time to file reply brief.
Feb 13 2002Counsel's status report received (confidential)
  from atty Milberg.
Feb 15 2002Extension of time granted
  To 4/15/2002 to file reply brief.
Feb 25 2002Counsel's status report received (confidential)
  from atty Boyce.
Apr 24 2002Counsel's status report received (confidential)
  from atty Milberg.
Apr 24 2002Request for extension of time filed
  To file reply brief. (2nd request)
Apr 26 2002Counsel's status report received (confidential)
  from atty Boyce.
Apr 30 2002Extension of time granted
  To 6/14/2002 to file reply brief. Counsel anticipates filing the brief by 6/14/2002. No further extensions is contemplated.
Jun 10 2002Request for extension of time filed
  to file reply brief. (3rd request)
Jun 10 2002Counsel's status report received (confidential)
  from atty Milberg.
Jun 13 2002Extension of time granted
  to 8-14-2002 to file reply brief. After that date, no further extension will be granted. Extension granted based upon counsel Milberg's representation that he anticipates filing brief by 8-14-2002.
Jun 24 2002Counsel's status report received (confidential)
  from atty Boyce.
Aug 12 2002Request for extension of time filed
  to file reply brief. (4th request)
Aug 12 2002Counsel's status report received (confidential)
  from atty Milberg.
Aug 19 2002Extension of time granted
  to 9-13-2002 to file reply brief. After that date, no further extension will be granted. Extension granted based upon counsel Milberg's representation that he anticipates filing the reply brief by that date.
Aug 26 2002Counsel's status report received (confidential)
  from atty Boyce.
Sep 11 2002Appellant's reply brief filed
  (29 pp.)
Sep 20 2002Letter sent to:
  counsel: The court requests respondent to file a letter brief responding to appellant's contention that the California death penalty statute is unconstitutional in various respects under Ring v. Arizona (2002) ___U.S.___ [122 S.Ct. 2428]. The letter brief will be due on or before 10-7-2002. Any reply by appellant will be due on or before 10-21-2002.
Sep 20 2002Exhibits lodged
  People's exhibits 4A-4M, 5A-5K, 6A-6K & 7A-7K received from Los Angeles County Superior Court. (4 manilla envelopes containing photographs)
Sep 20 2002Compensation awarded counsel
  Atty Milberg
Sep 27 2002Letter brief filed
  by respondent in response to court's letter of 9-20-2002. (3 pp.)
Oct 21 2002Request for extension of time filed
  To file appellant's reply to respondent's letter brief. (1st request)
Oct 25 2002Counsel's status report received (confidential)
  supplemental from attorney Boyce.
Oct 29 2002Extension of time granted
  To 11/4/2002 to file appellant's supplemental reply brief. No further extension will be granted.
Nov 5 2002Supplemental reply brief filed
  by appellant. (21 pp. - Rule 40(k))
Jan 10 2003Counsel's status report received (confidential)
  from atty Boyce.
Jan 21 2003Filed letter from:
  attorney Jonathan Milberg for appellant HEARD, letter dated Jan 20, 2003, letter brings to the court's attention, a recent U..S. Supreme Court opinion.
Feb 19 2003Exhibits lodged
  People's no. 12 (videotape)
Mar 3 2003Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the May calendars, to be held in S.F. the week of May 5 and also the week of May 27, 2003. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument.
Mar 4 2003Received letter from:
  Attorney Milberg, dated 2/28/2003l, advising reporter's transcript of 2/23/1993 not provided to counsel.
Mar 4 2003Received letter from:
  Attorney Milberg, dated 2/28/2003, advising reporter's transcript of 7/10/1993 not provided to counsel.
Mar 10 2003Received letter from:
  appellant James M. Heard
Mar 18 2003Counsel's status report received (confidential)
  from atty Boyce.
Apr 30 2003Compensation awarded counsel
  Atty Boyce
Apr 30 2003Case ordered on calendar
  6-4-03, 1:30pm, L.A.
May 14 2003Filed letter from:
  Respondent's counsel, dated 5/12/2003, re focus issues for oral argument.
May 19 2003Filed letter from:
  Appellant's counsel, dated 5/14/2003, re focus issues for oral argument.
Jun 4 2003Cause argued and submitted
 
Jun 6 2003Counsel's status report received (confidential)
  from atty Boyce.
Jun 6 2003Filed:
  Declaration of attorney Robert E. Boyce pursuant to Penal Code Section 1241 (confidential).
Jun 11 2003Compensation awarded counsel
  Atty Milberg
Jun 11 2003Change of Address filed for:
  atty Jonathan Milberg.
Jun 18 2003Compensation awarded counsel
  Atty Boyce
Aug 11 2003Related habeas corpus petition filed (concurrent)
  No. S118272
Aug 28 2003Opinion filed: Conviction & specials aff., penalty reversed
  Remanded to the trial court for a new penalty trial before a properly selected jury. Majority Opinion by George, C.J. -- joined by Kennard, Werdegar & Moreno, JJ. Concurring & Dissenting Opinion by Brown, J. -- joined by Baxter & Chin, JJ.
Sep 12 2003Rehearing petition filed
  respondent. (8 pp.)
Sep 18 2003Answer to rehearing petition filed
  by appellant. (8 pp.)
Sep 19 2003Time extended to consider modification or rehearing
  to 11/26/2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
Oct 22 2003Rehearing denied
  Baxter, J., is of the opinion the petition should be granted. Chin, J., is of the opinion the petition should be granted. Brown, J., was absent and did not participate.
Oct 22 2003Remittitur issued (AA)
 
Nov 3 2003Habeas funds request filed (confidential)
 
Nov 10 2003Received:
  Acknowledgment of receipt of exhibits.
Nov 25 2003Order filed re habeas funds request (confidential)
 
Dec 11 2003Order filed (150 day statement)
 
Jan 26 2004Received:
  Copy of appellant's cert petition. (22 pp. - excluding appendices)
Jan 27 2004Received letter from:
  U.S.S.C., dated 1-23-2004, advising that cert petition was filed on 1-20-2004, case No. 03-8533.
Mar 12 2004Certiorari denied by U.S. Supreme Court
 

Briefs
Jun 29 2001Appellant's opening brief filed
 
Jan 25 2002Respondent's brief filed
 
Sep 11 2002Appellant'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