IN THE SUPREME COURT OF CALIFORNIA
Plaintiff and Respondent,
MICHAEL LAMONT JONES,
Super. Ct. No. CR40124
Defendant and Appellant.
A jury convicted defendant Michael Jones of the January 21, 1989, murder
of Herman Weeks and other crimes. The jury found special circumstances of
felony murder, based on burglary and robbery, and returned a verdict of death.
This appeal is automatic. (Pen. Code, § 1239.)1 We affirm the judgment.
I. PROCEEDINGS BELOW
Defendant was charged with the following counts:
Count I: Participation in a criminal street gang. (§ 186.22.)
Count II: Murder of Herman Weeks (§ 187), with personal use of a handgun
(§§ 1192.7, subd. (c)(8), 12022.5). The murder occurred during the commission
of a robbery (§ 190.2, subd. (a)(17)(A)), and the commission of a burglary
(§ 190.2, subd. (a)(17)(G)).
Unless otherwise noted, statutory citations are to the Penal Code.
Count III: Robbery of Weeks (§ 211), with personal use of a handgun (§ 1192.7,
subd. (c)(8), 12202.5).
Count IV: Burglary of Domino’s Pizza (§ 459), with personal use of a handgun
(§§ 1192.7, subd. (c)(8), 12022.5).
Count V: Robbery of Maria Zuniga and Javier Sierra (§ 211), with personal use of
a handgun (§§ 1192.7, subd. (c)(8), 12022.5).
Count VI: Attempted murder of Thomas Chegwidden (§§ 187, 664), with
personal use of a handgun (§§ 1192.7, subd. (c)(8), 12022.5), and infliction of
great bodily injury (§ 12022.7).
Count VII: Attempted robbery of Lola Hall (§§ 211, 664), with personal use of a
handgun (§§ 1192.7, subd. (c)(8), 12022.5).
Count VIII: Attempted murder of Lola Hall (§§ 187, 664), with personal use of a
handgun (§§ 1192.7, subd. (c)(8), 12022.5).
Count IX: Attempted murder of Maria Zuniga (§§ 187, 664), with personal use of
a handgun (§§ 1192.7, subd. (c)(8), 12022.5).
Count X: Attempted robbery of Larry Nave, Brian Wagner, and Christopher Swan
(§§ 211, 664) while armed with a handgun (§ 12022, subd. (c)), and with personal
use of a shotgun (§§ 1192.7, subd. (c)(8), 12022.5).
Count XI: Attempted murder of Brian Wagner (§§ 187, 664), with personal use of
a shotgun (§§ 1192.7, subd. (c)(8), 12022.5) and infliction of great bodily injury
Count XII: Attempted murder of Christopher Swan (§§ 187, 664), with personal
use of a shotgun (§§ 1192.7, subd. (c)(8), 12022.5) and infliction of great bodily
injury (§ 12022.7).
Count XIII: Attempted murder of Larry Nave (§§ 187, 664), with personal use of
a handgun (§§ 1192.7, subd. (c)(8), 12022.5) and infliction of great bodily injury
Counts II through IV relate to a robbery and murder at Domino’s Pizza in
Riverside on January 21, 1989. Counts V through IX relate to a robbery at the
Mad Greek Restaurant in Riverside on December 19, 1988. Finally, counts X
through XIII involve an incident in Moreno Valley in Riverside County on
October 31, 1989.
Defendant pled guilty to count I (participation in a criminal street gang) and
counts X through XII (attempted murders in Moreno Valley). The remaining
counts went to trial. On those counts, the jury found defendant guilty as charged,
and found that defendant personally used a firearm. It further found as a special
circumstance that defendant killed Herman Weeks during the commission of
burglary and robbery.
The jury returned a death verdict. The trial judge denied defendant’s
motions for a new trial and for modification of the verdict, and imposed a sentence
II. EVIDENCE AT THE GUILT PHASE
A. THE ROBBERY AT THE MAD GREEK RESTAURANT
On December 19, 1988, a young Black man dressed in blue came into the
Mad Greek Restaurant in Riverside and ordered a soft drink. When he paid at the
cash register, the money in the register was visible.
About five minutes later the man returned, accompanied by three other
Black men wearing similar blue clothing. Defendant was the only person with a
gun. Defendant pointed a revolver at Maria Zuniga, the cashier, and ordered her
to open the cash drawer. Zuniga was unable to open the drawer, but Javier Sierra,
the cook, opened it. The four men took the cash from the register.
One of the men confronted customers Lola Hall and Thomas Chegwidden.
When Hall denied having a purse – she had hidden it under the booth – one of
defendant’s companions struck Chegwidden. Defendant came over and shot
Chegwidden in the chest. The bullet narrowly missed Chegwidden’s heart and
lodged under his sternum. Defendant then pointed the gun at Hall’s head and shot,
but missed. As the four men left, defendant fired at Sierra, the cook. Then, saying
“this one’s for you,” he shot at Zuniga. Both of these shots missed. Zuniga later
identified defendant in a lineup.
The defense presented no evidence relating to the crimes at the Mad Greek
Restaurant and conceded at closing argument that the prosecutor had a “strong
case” and “good witnesses” to support the charges against defendant arising from
B. THE ROBBERY AND MURDER AT DOMINO’S PIZZA
On January 21, 1989, defendant was at his home with friends Najee
Muslim, Frankie Cruz, Eric Bailey, and Gilbert (last name unknown). Defendant
and Bailey were members of the 211 187 Hard Way Gangster Crips, a gang that
defendant, Bailey, and another man founded in 1988. The numbers 211 and 187
referred to the Penal Code sections for robbery and murder.
The men decided to go to a party but discovered they did not have the
money needed for admission. They then drove around looking for a purse-
snatching opportunity. Defendant told Cruz, who was driving, to stop around the
block from a Domino’s Pizza restaurant in Riverside. Defendant and another man
left the car.2
Christina Kane, the assistant manager at Domino’s Pizza, saw two men
enter the restaurant. The first man, whom she later identified as defendant, was
The prosecution, relying on the testimony of Najee Muslim, claimed the
man who went into Domino’s Pizza with defendant was Eric Bailey. The defense
claimed the second robber was Andre Davis, but offered no evidence to support
carrying a revolver. The other was not armed. Defendant walked around the
counter and pointed the gun at Herman Weeks, the manager, and told him to “open
it up.” Defendant took the money from the cash drawer. As defendant was
walking out, he shot twice at Weeks, hitting him once. Defendant aimed at Kane,
who ducked and ran behind the oven. Weeks died from the gunshot wound.
On cross-examination, Kane admitted that in a lineup she identified a
person not connected to the case as the shooter, and that she told the police she
was 99 percent certain of that identification. At defendant’s preliminary hearing,
Kane identified defendant as the shooter, but she tentatively identified Alan
Murfitt, a gang member not present at the Domino’s Pizza robbery, as the second
Victor Moreno, a customer at Domino’s Pizza, also testified that he saw
two men enter, and that he saw the man with the gun order the manager to open
the register. He confirmed that only one of the robbers had a gun. He was not
asked to identify defendant.
Najee Muslim said he waited in the car while defendant and Eric Bailey
went into Domino’s Pizza. When they returned, Muslim saw that defendant was
carrying a revolver. Cruz opened the door and vomited because he “knew what
had happened.” As they drove to the party, defendant said he had “robbed the
place” and “had to let him have it.” He asked if Bailey had heard “the guy at the
register” “make that noise” and said that he had to shoot the man a second time to
“shut him up.” On cross-examination, Muslim acknowledged that in return for his
testimony the prosecution had agreed to allow him to plead guilty to a
misdemeanor of accessory after the fact to an unrelated robbery. The prosecution
then called Detective Guy Portillo, who said that Muslim had given him a similar
account of the Domino’s Pizza incident before charges were filed against Muslim.
Enrique Luna, a gang member who was not involved in the Domino’s Pizza
robbery, testified that he heard about the murder at Domino’s Pizza and asked
defendant about it. Luna said that defendant said he had killed a person at
Domino’s Pizza and that defendant “had no problem” admitting the murder.
Later, defendant told Luna that he had sold the gun because “it had a murder on
it.” When the defense presented evidence that Luna had been allowed to plead
guilty to an unrelated robbery and had received five years’ probation, the
prosecution called Detective Mark Boyer to testify that Luna had told him of
defendant’s involvement in the murder before Luna had been charged with a
Erin Burton and Tara Taylor gave photographs of defendant and Bailey to a
Domino’s Pizza private investigator. Defendant threatened to kill Taylor if he
learned that she had given the photographs to the investigator.
Burton testified that in May 1989 she encountered defendant and asked,
“Mike, about the Domino’s thing, did you do it?” He replied, “Yeah.” She asked,
“How could you do it? How could you kill someone? Don’t you feel any
remorse?” He responded, “Nah. It was a good party.”
The parties stipulated that when Burton was shown photographs of
defendant and Michael Eugene Jones, and was asked to select the Michael Jones
she knew, she selected the photograph of Michael Eugene Jones, not defendant.
Frankie Cruz testified at the preliminary hearing that he drove the car the
night of the Domino’s Pizza robbery. He heard shots and vomited “because I
knew what happened.” Cruz also said that sometime after the robbery defendant
told him, “I killed that guy [and] got about $15, $20.” Cruz committed suicide
before defendant’s trial; his preliminary hearing testimony was read to the jury.
The jury was not informed of the suicide, but only that Cruz was unavailable.
Carlos Hunt testified that in November 1989 he was in a jail cell with
defendant and other members of the Crips gang. According to Hunt, Alan Murfitt
brought up the subject of the Domino’s Pizza robbery and said that defendant did
it. Defendant said he only got about $25. When Hunt asked defendant why he
killed the person, defendant replied, “I don’t know. I just did it.” Hunt went to
the police and offered to tell them about the conversation if they would take care
of all six of Hunt’s misdemeanor traffic violations. Later all six cases were
The defense presented two witnesses. Richard Cleary, a deputy public
defender, described how lineups were conducted; in his view, the conditions did
not hamper accurate identifications. Najee Muslim, re-called by the defense after
previously testifying for the prosecution, said that on the night of the Domino’s
Pizza murder defendant had short hair and was wearing a blue jacket with stripes
and squares. In the descriptions given by eyewitnesses Kane and Moreno, neither
mentioned the stripes and squares on the jacket.
III. EVIDENCE AT THE PENALTY PHASE
A. THE MORENO FLATS INCIDENT
Five witnesses described the events at a party in an area called “the flats” in
Moreno Valley in Riverside County on October 31, 1989, Halloween night. While
the witnesses and others were present, five Black men, including defendant,
arrived. After a short while, Mario Villarreal, one of defendant’s companions,
pulled out a gun and demanded money. Defendant took out a shotgun, asked who
had the money, and fired a shot before anyone answered. Defendant pointed the
gun at Brian Wagner and shot him in the stomach. Defendant said, “There’s one.
Who’s got the money?”
Defendant then shot Christopher Swan and said, “There’s two of your
friends. Where’s the money?” As Larry Nave was running away, Villarreal shot
him. Nave, Wagner and Swan were injured, the latter two seriously, but all
Luis Villarreal testified that his brother Mario, defendant, and others
returned to the Villarreal residence that night. Defendant said something like
“Boom, one went down. Then, boom, another went down.”
Defendant pled guilty to all charges arising from the Moreno Flats incident.
B. DEFENSE EVIDENCE AT THE PENALTY PHASE
Cyndy Pitts, defendant’s mother, testified that his father, Willie Jones, often
abused her physically, and once tried to push defendant out of a second-story
Willie Jones admitted abusing his wife and son, and said he had a problem
with drugs and alcohol. He was imprisoned for armed robbery in 1982 or 1983.
When he got out of prison he moved to New York and severed all ties with his
Nathan Jones, defendant’s brother, said defendant took care of him when
his father was absent and his mother was working.
Beatrice Acosta, defendant’s girlfriend, testified that after their baby was
born she lived with defendant and his mother in Moreno Valley for three months.
She said defendant was a helpful father but got drunk every day.
Sheila Barcus, defendant’s aunt, and Minnie Nixon, defendant’s
grandmother, both testified that the person who committed the charged crimes was
completely different from the Michael Jones they knew as a child. Glenn Garbot,
defendant’s uncle, said he could not believe defendant could be involved in the
crimes. Joseph Gueste, defendant’s pastor, also said that the person who
committed the crimes seemed like a different person.
Dr. Steven Buckey, a clinical psychologist, specializes in problems of the
alcoholic family. He testified that children who are raised in an alcoholic family
have difficulty identifying and expressing feelings, and do not think clearly about
the consequences of their behavior. In Dr. Buckey’s opinion, defendant was an
alcoholic by the age of 13. On cross-examination by the prosecution, Dr. Buckey
acknowledged that defendant showed symptoms of antisocial personality disorder.
IV. MOTIONS FOR NEW TRIAL AND TO MODIFY THE VERDICT
When the jury returned its verdict of death, defendant said to the judge:
“Your Honor, I didn’t kill him. I did not kill him. I didn’t kill him. Andre killed
him. I didn’t even kill him.”
In its motion for a new trial, the defense argued that Andre Davis, Najee
Muslim’s cousin, more closely resembled the composite sketch of the second
robber than did Eric Bailey and that consequently the prosecution dismissed the
charges against Bailey. Defendant asserted that Bailey’s counsel had located
Davis, who was confined in the Sierra Conservation Center at Jamestown, and had
arranged for Davis to be present if Bailey went to trial, but that defendant’s own
counsel failed to use the same information and did not know where Davis was.
The court ruled that defendant’s counsel had failed to use due diligence to locate
Davis, but denied the motion for a new trial on the ground that the question
whether Bailey or Davis was the second robber did not affect defendant’s guilt.
The trial court also denied the defense request for modification of the
V. JURY SELECTION
Defendant contends that he was denied his right to a fair and impartial jury
and to a reliable guilt and penalty determination, in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution and
analogous state constitutional provisions, because the prosecutor exercised
peremptory challenges to remove two Black prospective jurors on grounds of
group bias. (See Batson v. Kentucky (1986) 476 U.S. 79, 89; People v. Wheeler
(1978) 22 Cal.3d 258, 276, 277.) “A party who suspects improper use of
peremptory challenges must raise a timely objection and make a prima facie
showing that one or more jurors has been excluded on the basis of group or racial
identity. . . . Once a prima facie showing has been made, the prosecutor then must
carry the burden of showing that he or she had genuine nondiscriminatory reasons
for the challenges at issue.” (People v. Jenkins (2000) 22 Cal.4th 900, 993.)
Defendant timely objected to the prosecution challenges for Prospective
Jurors Robbie T. and Leo W. In both instances the trial court ruled that defendant
had failed to make a prima facie showing that the challenge was based on group
bias. The jury as selected contained no Blacks. Before trial, however, one of the
jurors was discharged, and replaced by a Black woman who had been the first
A. ROBBIE T.
We note the following excerpts from the voir dire of Robbie T.
Juror: “Right now, I could not honestly say yes to the death penalty.”
Peasley (Defense Counsel): “Can you consider cases where you would
give the death penalty?”
Juror: “I’m really not sure.”
Peasley: “Just as long as you could be open to both [death or life without
parole], that’s all it requires. Do you think you could do that?”
Juror: “[If] I had to answer yes or no right now without any certainty, I
couldn’t do that.”
Peasley: “[W]ould you be willing to consider both options?”
Juror: “I could do that.”
Pacheco (Prosecutor): “[Suppose] the judge says, hey, if you vote for the
death penalty . . . he’s going to be executed the very next day. No appeals, no
nothing. . . . Will that prevent you from voting for the death penalty?”
Juror: “It might. . . . To be honest, yes.”
The trial judge gave a detailed explanation of the law, explaining the
weighing process involved in the penalty decision. He then asked Robbie T. if she
would set aside personal feelings, follow the instructions, and make a decision by
weighing the facts; she replied that she would. Later the prosecutor remarked that
he had planned to challenge Robbie T. for cause but the court had rehabilitated
Even though Robbie T. was rehabilitated, her earlier answers could have
given the prosecutor ample reason to believe that she would not be a favorable
penalty phase juror. Defendant, however, argues here that the prosecution’s
“outrageous” question asking Robbie T. how she would respond if she learned a
defendant would be executed the day after the verdict shows that the prosecution
was not acting in good faith, and had a secret purpose to remove all Black jurors.
We can agree with the defense that the refusal of a juror to vote for death if that
sentence would be carried out without appeal – a patently illegal procedure –
would not offer a prosecutor any grounds for concluding that the juror was
inclined against the death penalty. But this interchange between Robbie T. and the
prosecutor does not stand alone, and on the whole record the prosecutor could
reasonably have concluded that she would be an unfavorable penalty phase juror.
The trial court did not err in finding that defendant had failed to make out a prima
facie case that Robbie T. was challenged because of her race.
B. LEO W.
The prosecutor asked a group of jurors that included Leo W.: “Let’s
assume for a moment that it was an accidental killing. He dropped the gun. It
ricocheted, the bullet ricocheted and killed the person. . . . Do you think you’d be
unable to give him the death penalty because he didn’t intend to kill?” Leo W.
responded, “I think I would go with life, especially if it was an accident.”
Later the prosecutor asked Leo W. why he left his job at the California
Rehabilitation Center. Leo W. responded: “I’m not a law enforcement type of
person. I’m not a real authoritative type of person by nature. . . . I’m not a law
enforcement person, so I chose not to do it. It didn’t sit well with me.” He added:
“You just asked earlier if it was difficult for them [the jurors] to come to a
conclusion. If all the evidence – if it was proven that the person is guilty, it would
be difficult for me to make a decision. I have to be honest with you. It would be
difficult.” The prosecutor could reasonably have concluded from these remarks
that Leo W. would not be a favorable penalty phase juror.
Defendant argues that the prosecutor’s question about imposition of the
death penalty in a case of an accidental killing was improper, since the case here
did not involve an accidental killing. The defense implies that the prosecutor
asked the question to develop a ground for challenging Leo W., and to cover up
the real basis for his peremptory challenge, Leo W.’s race. (See Miller-El v.
Cockrell (2003) __U.S. __ [123 S.Ct. 1029] [disparate questioning of Black venire
members to develop grounds for peremptory challenges may show discriminatory
intent].) But the prosecutor did not single out Leo W. or other Black prospective
jurors to question them about the death penalty in a case of accidental killing. He
posed his question to a group of six prospective jurors, including Leo W. and five
White jurors. The prosecutor had earlier put similar questions about the felony-
murder rule and unintentional or accidental killings to other groups of jurors. The
record thus indicates that the prosecutor was trying to explain the felony-murder
rule and ferret out any jurors hostile to that rule, not to develop grounds for
challenging Leo W.
Defendant finally argues that his counsel should have objected when the
prosecutor told the group of jurors including Leo W. that he, the prosecutor, had
asked almost every juror whether that juror could vote for death in the case of an
accidental killing, when in fact he had asked that question on four previous
occasions to 17 jurors, but not to all or most of the jurors.
“We have repeatedly emphasized that a claim of ineffective assistance is
more appropriately decided in a habeas corpus proceeding.” (People v. Mendoza
Tello (1997) 15 Cal.4th 264, 266-267; People v. Wilson (1992) 3 Cal.4th 926, 936;
People v. Pope (1979) 23 Cal.3d 412, 426.) The defendant must show that
counsel’s action or inaction was not a reasonable tactical choice, and in most cases
“ ‘ “ ‘the record on appeal sheds no light on why counsel acted or failed to act in
the manner challenged . . . .’ ” ’ (People v. Mendoza Tello, supra, at p. 266;
People v. Wilson, supra, at p. 936; People v. Pope, supra, at p. 426.)” (People v.
Michaels (2002) 28 Cal.4th 486, 526.) The record does not show whether counsel
had a tactical reason for failing to object to the prosecutor’s comment.
Defendant offered no defense to the charges stemming from the robbery at
the Mad Greek Restaurant, and at the guilt phase closing argument, defense
counsel did not contest those charges. Defendant maintains, however, that a
number of guilt phase errors individually and collectively denied him the right to
present the defense that he was not the actual killer in the Domino’s Pizza robbery
and thus denied him his right to due process of law and a reliable guilt and penalty
determination, in violation of the Fifth, Sixth, Eighth, and Fourteenth
Amendments to the United States Constitution and analogous state constitutional
provisions. He further alleges that the failure of his counsel to protect him from
such errors denied him the right to effective assistance of counsel, in violation of
the Sixth and Fourteenth Amendments and corresponding state provisions. We
address each claim of error individually, then consider the cumulative effect.
A. ADMISSIBILITY OF MUSLIM’S OCTOBER 27, 1989, STATEMENT TO
After the defense presented evidence of Muslim’s favorable plea bargain,
the prosecution sought to rehabilitate him by presenting evidence of a prior
consistent statement that he gave to police officers on October 27, 1989, before he
had been charged with a crime. The defense objected, citing Evidence Code
section 791, subdivision (b), which allows admission of prior consistent statements
only when “the statement was made before the bias, motive for fabrication, or
other improper motive is alleged to have arisen.” Defendant argues that Muslim
feared prosecution for the murder of Shane Weeks at Domino’s Pizza, and thus
had a motive to put the blame on petitioner as soon as the police contacted him
about that murder. The Attorney General replies that Muslim’s statement was
made before the plea bargain and hence before one of the circumstances providing
a motive for him to accuse defendant had arisen.
The issue thus posed is whether a prior consistent statement is admissible if
made before one of the alleged grounds for bias existed, but after another such
ground. We discussed this matter in three previous cases.
People v. Andrews (1989) 49 Cal.3d 200, 210, we upheld the admission
of a prior consistent statement, saying that “defense counsel’s questioning of [the
accomplice] raised an implicit charge that the ‘deal’ provided [him] with an
additional motive to testify untruthfully. This, in turn, entitled the prosecution to
show that [the accomplice’s] testimony was consistent with the recorded statement
he gave shortly after his arrest but before the ‘deal’ was consummated, that is,
before the subsequent, specific motive to fabricate arose.” People v. Hayes (1990)
52 Cal.3d 577, 609, described our holding in Andrews: “We [there] rejected the
defendant’s contention that admission of the statement was error because the
witness had a motive to fabricate when he made the prior statement. We decided,
in effect, that a prior consistent statement is admissible if it was made before the
existence of any one or more of the biases or motives that, according to the
opposing party’s express or implied charge, may have influenced the witness’s
testimony.” (Italics added.) People v. Noguera (1992) 4 Cal.4th 599, reached the
same result. It said: “Although defendant argues that [the accomplice] had a
motive to minimize his potential penal liability as soon as [the police] told him
that he was liable criminally as a coconspirator, as People v. Hayes, supra, 52
Cal.3d 577, makes clear, the focus under Evidence Code section 791 is the specific
agreement or other inducement suggested by cross-examination as supporting the
witness’s improper motive.” (Id. at p. 630.)
On the basis of these three decisions, we conclude that the trial court here
properly admitted the consistent statement of Najee Muslim because it was made
before the plea bargain was struck and thus before the existence of one of the
grounds alleged in defendant’s charge that Muslim’s trial testimony was biased.
Defendant accuses his counsel of incompetence for not requesting a jury
instruction that, before the jury could consider the prior consistent statements of
Muslim and Luna, it had to first find that neither Muslim nor Luna had been
threatened with prosecution for murder before the police interviewed them. As we
have explained, the evidence was admissible because the statements at issue were
made before the plea bargains with Muslim and Luna were agreed upon. In
deciding what weight to give that evidence, the jury could consider the possibility
that even before the plea bargains, Muslim and Luna were under pressure to make
statements exonerating themselves and naming defendant as the killer. But the
jurors were not required to find the total absence of any motive for bias before
they could give any weight to the testimony.
B. ADMISSIBILITY OF THE AUGUST 1989 STATEMENT OF ENRIQUE LUNA
As with Najee Muslim, the defense presented evidence that Enrique Luna
had received a favorable plea bargain. The prosecutor then introduced evidence of
a prior consistent statement Luna made to the police before Luna was arrested and
charged in this case. Defendant now argues that the trial court erred in admitting
the prior statement because Luna had a motive to fabricate in order to minimize
his role in the Domino’s Pizza robbery once the police had contacted him.
This issue is identical to the issue concerning Najee Muslim’s prior
consistent statement described in the previous section. For the reasons there
stated, we uphold the admission of Luna’s prior consistent statement.
C. SUSTAINING AN OBJECTION TO A QUESTION TO NAJEE MUSLIM
Muslim’s October 27, 1989, statement to the police implicated defendant as
the actual killer. Defense counsel sought to prove that Muslim had been
threatened with prosecution before making that statement, and thus had a motive
to exaggerate defendant’s role in the Domino’s Pizza killing, both because that
would implicitly minimize Muslim’s role and because cooperating with the police
might gain Muslim the benefit of a favorable plea agreement.
Muslim acknowledged that before he talked to the police, they told him that
they knew of his involvement with the robbery and said, “either you go down with
them [the other robbers] and get charged with murder or you can come down and
talk with us.” Defense counsel then asked Muslim whether the police had accused
him of being the shooter. The prosecutor objected that the question had been
“asked and answered,” and the trial court sustained the objection.
In view of defendant’s lengthy cross-examination of Muslim, it is
understandable that the prosecutor and judge may have thought Muslim had
already been asked about accusations that he was the shooter. But a review of the
record shows the question had not been asked. The accusation of murder is not the
same as an accusation of being the shooter; the latter is more serious, because in a
felony-murder setting the actual killer is more likely to receive a death sentence.
Thus the trial court erred in sustaining the objection on the ground that the
question had been asked and answered. Defendant does not claim that this error
standing alone is prejudicial; we consider cumulative prejudice in part VI.L., post.
D. ADMISSIBILITY OF TESTIMONY THAT MUSLIM RECEIVED A
FAVORABLE PLEA BARGAIN IN RETURN FOR TESTIFYING AGAINST
Muslim testified that he pled guilty to an unrelated armed robbery and was
to be placed on five years’ probation. The defense proposed to call a public
defender who would testify that probation for armed robbery was rare. The
prosecution objected that admission of the testimony would require undue
consumption of time and divert the jurors from the case before them. (See Evid.
Code, § 352.) The trial judge sustained the objection, saying that in his personal
experience a grant of probation for an armed robbery conviction was not rare or
The trial court acted within its discretion in so ruling. (See People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124.) Whether probation for armed robbery is
unusual is not particularly probative. As the prosecutor pointed out, the probative
issue was whether probation would be unlikely in a case such as Muslim’s, but
proof of that fact would have required evidence of the details of an otherwise
unrelated crime, as well as evidence of Muslim’s criminal record. The trial court
could reasonably have concluded that permitting such evidence would confuse the
issues and result in an undue consumption of time.
Defendant argues that his counsel should have presented evidence that
Muslim’s partner in the robbery was sentenced to three years in prison. We do not
need to reach that question because there is no evidence in the record disclosing
the sentence of Muslim’s crime partner, so the issue cannot be raised on appeal.
E. PROSECUTION MISCONDUCT IN FAILING TO REVEAL A PLEA
AGREEMENT WITH FRANKIE CRUZ
Because Frankie Cruz committed suicide before defendant’s trial, the
prosecution used his preliminary hearing testimony. Defendant claims that the
prosecution improperly failed to reveal before the trial that it had entered into a
plea bargain with Cruz before the preliminary hearing, thereby preventing defense
counsel from cross-examining Cruz concerning that bargain. Defendant claims
that the failure to disclose the plea bargain denied him due process of law under
Brady v. Maryland (1963) 373 U.S. 83, 87, which held that the suppression of
evidence favorable to the accused violates due process when the evidence is
material as to guilt or punishment. He also argues that his counsel was ineffective
because he did not object to the admission of Cruz’s preliminary hearing
testimony on the ground that the prosecution had concealed its plea bargain with
There is, however, no evidence in the appellate record that the prosecution
made a plea bargain with Cruz. Defendant argues that it is reasonable to suppose
such a bargain was made, because (a) Cruz would probably not have testified
favorably to the prosecution without getting some benefit in return, and (b) the
prosecution made a plea bargain with Najee Muslim before the preliminary
hearing, but did not reveal it until after the hearing. But a reasonable surmise does
not substitute for record evidence. The record on appeal is insufficient to support
Defendant argues that the prosecutor committed misconduct when he told
the jury in his closing argument that there was “no evidence” of a plea bargain
with Cruz. In fact, there was no evidence before the jury of any such bargain. We
do not decide defendant’s claim that the prosecutor’s comment should
nevertheless be considered misconduct because the prosecutor knew there had
been such a bargain even though it was not in evidence; that issue depends upon
proof in a habeas corpus proceeding that such a bargain existed.
F. REFUSAL TO REOPEN THE TESTIMONY TO PERMIT THE DEFENSE TO
INTRODUCE PHOTOGRAPHS OF ERIC BAILEY AND ALAN MURFITT
At the preliminary hearing, Christina Kane identified a photograph of Alan
Murfitt as the man who robbed Domino’s Pizza with defendant. At trial, however,
the prosecution claimed Eric Bailey was the second man. The defense offered
photographs of Murfitt and Bailey for identification, and at the close of its case
offered them into evidence. The prosecution objected for lack of foundation
because no witness had examined the photographs and identified the persons
Defense counsel, realizing that he had failed to lay the foundation for the
introduction of the photographs, moved to reopen his case and recall Najee
Muslim, who could identify the photographs.
The prosecution had already placed in evidence other photographs of
Bailey, but there was no photograph of Murfitt in evidence. The trial court,
however, noted that Murfitt had been in the courtroom, so the defense could have
requested the court to take judicial notice of his presence and have the jury
observe him. Defense counsel replied that he thought it was simpler to put the
photographs into evidence. The court said the photographs were of very little
relevance, although they might help defendant in arguing misidentification, and
denied the motion to reopen.
Defense counsel explained his inadvertent failure to lay a foundation, and
then moved for a mistrial based on ineffective assistance of counsel. The court
denied that motion also.
a trial court has abused its discretion in denying a
defense request to reopen, the reviewing court considers the following factors:
“(1) the stage the proceedings had reached when the motion was made; (2) the
defendant’s diligence (or lack thereof) in presenting the new evidence; (3) the
prospect that the jury would accord the new evidence undue emphasis; and (4) the
significance of the evidence.” (People v. Funes (1994) 23 Cal.App.4th 1506,
The Attorney General concedes the first two factors: the motion was made
shortly after the closing of evidence, and the failure to lay a foundation for the
admission of the photographs was inadvertent. Contrary to the Attorney General’s
claim, there is no reason to believe that the jury would have given undue weight to
the photographs because they were introduced after testimony was reopened.
Finally, the evidence was significant because Kane’s misidentification of Murfitt
as the second robber at Domino’s Pizza, coupled with the difference in appearance
between Murfitt and Bailey (who according to the prosecution was the second
robber), would support defendant’s claim that Kane could not differentiate
between persons of another race. Without the photograph, the jury would not
know whether the two men were so similar in appearance that one could easily
mistake Murfitt for Bailey. There would be no undue consumption of time: the
simple introduction of a photograph would take little time, and the defense did not
propose to introduce any further evidence concerning Murfitt’s involvement or
lack of involvement in the robbery and murder.
We conclude that the court abused its discretion in refusing to reopen the
case to permit the defense to lay a foundation for the identification of Alan
Murfitt. We will consider the prejudicial effect, if any, of this conclusion when
we later examine cumulative prejudice.
G. ADMISSIBILITY OF EXPERT EVIDENCE ON EYEWITNESS
Defendant sought to call Dr. Kathy Pezdek to testify as an expert on
scientific research that refuted many commonly held assumptions about
eyewitness testimony. The prosecutor told the trial court that eyewitness
identification was not a key element of his case; instead, he was relying primarily
on defendant’s admissions. Relying on this representation, the court denied
defendant’s request, reasoning that the expert testimony would not assist the jury.
Defendant renewed his request at the close of the prosecution’s case, but the court
again denied the motion.
People v. McDonald (1984) 37 Cal.3d 351 (McDonald), the leading
California case allowing the introduction of expert testimony on eyewitness
identification, this court said: “[T]he decision to admit or exclude expert
testimony on psychological factors affecting eyewitness identification remains
primarily a matter within the trial court’s discretion; . . . ‘we do not intend to
“open the gates” to a flood of expert evidence on the subject.’ [Citation.] We
expect that such evidence will not often be needed, and in the usual case the
appellate court will continue to defer to the trial court’s discretion in this matter.
Yet deference is not abdication. When an eyewitness identification of the
defendant is a key element of the prosecution’s case but is not substantially
corroborated by evidence giving it independent reliability . . . , it will ordinarily be
error to exclude that testimony.” (Id. at p. 377, fn. omitted.)
The Attorney General cites People v. Sanders (1995) 11 Cal.4th 475, which
distinguished McDonald. Sanders said: “Although eyewitness testimony was a
key element of the prosecution’s case, here, unlike McDonald, eyewitness
testimony was not the only evidence linking the defendant to the crime. The
eyewitness identification was corroborated by other independent evidence of the
crime and the conspiracy leading to it.” (People v. Sanders, supra, 11 Cal.4th at
p. 509, italics in original.) But this language from Sanders cannot be viewed as
limiting the holding of McDonald, supra, 37 Cal.3d at page 376 to cases in which,
apart from the eyewitness identification, there is no other evidence whatever
linking defendant to the crime: Exclusion of the expert testimony is justified only
if there is other evidence that substantially corroborates the eyewitness
identification and gives it independent reliability.
The corroborating evidence here meets McDonald’s standard. Kane’s
identification of defendant was corroborated by testimony of Muslim, Cruz, Luna,
Hunt, and Burton. It does not matter, for this purpose, that Muslim, Cruz, and
Luna may have been accomplices whose testimony would require corroboration to
support a conviction. (§ 1111.) Neither does it matter that all five witnesses could
be impeached by proof of bias or prior inconsistent statements. The cumulative
corroborative effect of the testimony of defendant’s admissions is sufficient to
give independent reliability to the eyewitness identification.
H. JURY INSTRUCTIONS ON LATE-JOINING ACCOMPLICES
The trial court submitted to the jury the question whether Najee Muslim
and Frankie Cruz were accomplices. Defendant argues that the court should have
instructed the jury on the possibility that, if Muslim and Cruz were not
accomplices from the beginning, they became accomplices after the robbers
returned from Domino’s Pizza with the proceeds of the robbery.
An “accomplice” is defined as “one who is liable to prosecution for the
identical offense charged against the defendant.” (§ 1111.) The issue whether
Muslim and Cruz could be late-joining accomplices under this definition is more
complex than either defendant or the Attorney General recognizes. Even if not an
accomplice from the beginning of the enterprise, Cruz became an accomplice to
the robbery when the robbers returned with their loot and he drove the getaway
car, because the crime of robbery continues until the perpetrators have reached a
place of safety. (See People v. Cooper (1991) 53 Cal.3d 1158, 1164-1165.)
Muslim, a passenger, was not necessarily an accomplice to the robbery, but might
have become one if, by his conduct, he showed that he was participating in the
asportation of the robbery proceeds. On the other hand, neither Muslim nor Cruz
could be accomplices to the murder if they did not aid and abet the robbery until
after the murder occurred. (See People v. Pulido (1997) 15 Cal.4th 713, 716.)
Although defendant could have submitted an instruction explaining the
circumstances under which Muslim and Cruz might have been accomplices to the
robbery but not to the murder, there is no authority for the defense claim that the
trial court must so instruct on its own motion. There is also no reason to believe
that the jury was misled, or defendant prejudiced, by the absence of such an
instruction. The only purpose of instructions on whether Muslim or Cruz could be
late-joining accomplices would be to assist the jury in deciding whether to view
their testimony with caution. (See People v. Terry (1970) 2 Cal.3d 362, 398-399.)
In view of the entire circumstances of the case – the presence of both Muslim and
Cruz in the car used to transport defendant to Domino’s Pizza, their willing
attendance at a party after the robbery and murder, Muslim’s plea bargain, and
Cruz’s nonappearance at trial – we have no doubt that the jurors viewed their
testimony with extreme caution.
I. JURY INSTRUCTIONS ON FAILURE TO PROSECUTE A COPARTICIPANT
the trial court erred in giving an instruction based
on CALJIC No. 2.11.5: “There has been evidence in this case indicating that a
person other than the defendant was or may have been involved in the crime for
which defendant is on trial. [¶] There may be many reasons why such person
other than the defendant is not here on trial. Therefore, do not discuss or give any
consideration as to why the other person is not being prosecuted in this trial or
whether he has been or will be prosecuted. Your duty is to decide whether the
People have proved the guilt of the defendant on trial.”
As defendant correctly observes, we have often said that trial courts should
not give CALJIC No. 2.11.5 in an unmodified form when, as here, a person who
might have been prosecuted for the crime has testified at trial. (People v. Lawley
(2002) 27 Cal.4th 102, 162; People v. Williams (1997) 16 Cal.4th 153, 226.) The
impact of this mistaken instruction, however, was ameliorated because the court
gave proper instructions that in assessing the credibility of witnesses the jury could
consider “[t]he existence or nonexistence of a bias, interest, or other motive” and
“[t]he witness’ prior conviction of a felony.” (CALJIC No. 220.) The jury was
again instructed: “The fact that a witness has been convicted of a felony . . . may
be considered . . . only for the purpose of determining the credibility of the
witness.” (CALJIC No. 223.) Finally, the jury was told that the testimony of an
accomplice should be viewed with mistrust. (CALJIC No. 3.18.) Relying on
these instructions, defense counsel argued that the jury should not credit the
testimony of Muslim and Luna because it was given to obtain favorable plea
bargains. The prosecutor raised no objection. We have declined to label a mistake
in giving of CALJIC No. 211.15 as error when, as here, “the instruction is given
with the full panoply of witness credibility and accomplice instructions.” (People
v. Lawley, supra, 27 Cal.4th at p. 162.)
J. JURY INSTRUCTIONS ON CONSIDERATION OF PENALTY
Defendant also objects to CALJIC Nos. 8.83.2 and 17.42. The former
instructs the jury: “In your deliberations the subject of penalty or punishment is
not to be discussed or considered by you.” The latter similarly instructs: “In your
deliberations do not discuss or consider the subject of penalty or punishment. That
subject must not in any way affect your verdict.”3 Both of these instructions were
requested by the defense.
This issue is similar to the preceding issue. It is clear that the jury can
consider the difference between the potential penalties faced and the actual
penalties received by accomplices in assessing their credibility. In light of the
instructions given and arguments presented, a reasonable juror would recognize
that instructions barring discussion of punishment – which serve the obvious
purpose of preventing discussion of a defendant’s punishment at the guilt phase of
the trial (see, e.g., People v. Carrera (1989) 49 Cal.3d 291, 319) – do not prohibit
a juror from considering the punishment the accomplices faced and what they
actually received in assessing the credibility of their testimony. (See People v.
Price (1991) 1 Cal.4th 324, 446.)
K. ADMISSIBILITY OF EVIDENCE OF GANG MEMBERSHIP
Defendant moved in limine to exclude all evidence of gang membership.4
After a hearing, the trial court ruled that the prosecution could produce evidence
that defendant “belonged to a gang, that the gang was formed in 1988, that the
gang’s name was 211 187 Hard Way Gangster Crips . . . .” The prosecution did
CALJIC Use Notes indicate that number 8.83.2 should be used instead of
number 17.42 when a special circumstance is charged. (Use Note to CALJIC No.
8.83.2 (5th ed. 1988), p. 406.)
Defendant had pled guilty to the charge of gang participation, thus
removing that issue from the trial.
so. Defendant argues that the admission of this evidence unconstitutionally denied
him due process of law, a fair trial, and a reliable guilt and penalty determination.
The prosecution argued gang membership was essential to show the
relationship between the individuals involved in the Mad Greek Restaurant and
Domino’s Pizza robberies, and in particular the relationship between defendant
and Eric Bailey, who according to the prosecution was the second Domino’s Pizza
robber. The prosecution presented a photograph of defendant and Bailey that the
two had captioned “tag-team robbers.” The trial judge observed that the name of
the gang, with its reference to Penal Code sections 187 (murder) and 211
(robbery), was relevant to show that when committing a robbery, the gang
members planned in advance to kill victims and witnesses.
In support of his argument that gang evidence was relevant, the prosecutor
said he might introduce statements from defendant showing that the robbery at the
Mad Greek Restaurant was a gang action. He also said he would present evidence
from Joe Vargo, a newspaper reporter, who had talked to several gang members
about their activities. (It is disputed whether defendant was one of the members
who talked to Vargo.) At trial, however, the prosecution did not offer any
admissions by defendant that the Mad Greek Restaurant robbery was a gang
action. Vargo invoked the protection of the “Reporter’s Shield Law” (Evid. Code,
§ 1070) and refused to testify.
In his opening statement, the prosecutor described the testimony he
expected from Joe Vargo. Defendant argues that if his counsel had interviewed
Vargo, he would have realized that Vargo would refuse to testify. Counsel then
would have known that he could object to the prosecutor’s description. There is,
however, no evidence in this record that counsel did not interview Vargo before
trial, or that counsel lacked a tactical reason for failing to object. Thus on the
appellate record defendant’s claim of ineffective assistance of counsel must be
People v. Cox (1991) 53 Cal.3d 618, 660, which said:
“When offered by the prosecution, we have condemned the introduction of
evidence of gang membership if only tangentially relevant, given its highly
inflammatory impact.” But here the evidence was more than merely “tangentially
relevant” to premeditation, which was at issue as to both the Domino’s Pizza
murder and the attempted murder charges arising from the Mad Greek Restaurant
robbery, because the gang’s name itself is evidence of premeditation. Under such
circumstances, the trial court acted within its discretion in admitting the evidence.
(See People v. Champion (1995) 9 Cal.4th 879, 922.)
The defense notes that when the prosecutor rested his case, he elected to
proceed solely on a felony-murder theory for the murder of Shane Weeks, the
manager at Domino’s Pizza. Defendant argues that once the prosecutor elected to
prosecute the Domino’s Pizza killing as a felony murder, the trial court should
have reconsidered its ruling sua sponte and excluded the gang membership
Under a felony-murder theory, the prosecution need not prove intent to kill,
so the theory that the name of defendant’s gang, the 211 187 Hard Way Gangster
Crips, implied a premeditated intent to kill during a robbery was no longer
relevant to defendant’s guilt of the Weeks killing. That reasoning, however,
would remain relevant to both the Mad Greek Restaurant attempted murder
charges, and to the felony-murder special circumstance for the Weeks killing.
(See pt. VII, post.)
The defense did not ask the trial court for an instruction limiting the gang
membership evidence to the felony-murder special circumstances and the Mad
Greek Restaurant attempted murders; the court had no duty to give such a limiting
instruction without request. (People v. Clark (1992) 3 Cal.4th 41, 130-131;
People v. Collie (1981) 30 Cal.3d 43, 64.)
In his closing argument at the guilt phase of defendant’s trial, the
prosecutor said that defendant’s gang was formed “immediately” before the
robberies involved in this case and that defendant was the one who named it the
211 187 Hard Way Gangster Crips. Defendant argues that his attorney should
have objected to both statements as unsupported by the evidence.
The prosecutor’s comment was a trivial exaggeration. The evidence shows
that the gang was formed in 1988 and the robberies occurred in January of 1989 –
soon after the gang was formed, if not exactly “immediately” after its formation.
The gang was created by defendant, Bailey, and Montrell. When the gang had
only three members, it was known as Three the Hard Way. Later it was named the
211 187 Hard Way Gangster Crips. The record does not indicate whether
defendant personally proposed that name, or whether he simply agreed to someone
Because the record does not show whether defense counsel had a tactical
purpose in not objecting to the prosecutor’s statements, we cannot find ineffective
assistance of counsel on the record before us. (People v. Mendoza Tello, supra, 15
Cal.4th at pp. 266-267.)
L. CUMULATIVE PREJUDICE
We have identified two trial court errors at the guilt phase of the trial:
(1) sustaining an objection to a question asking whether Najee Muslim had been
accused of being the actual killer, and (2) refusing to reopen testimony to permit
identification of photographs of Alan Murfitt and Eric Bailey. Both of these errors
are relatively insignificant; neither involves a violation of any federal
constitutional right. Even considered cumulatively, there is no reasonable
probability (People v. Brown (1988) 46 Cal.3d 432, 446-447) that absent the errors
the jury would have reached a different result.
VII. SPECIAL CIRCUMSTANCES
The only special circumstance alleged and found was felony murder, with
robbery and burglary as the underlying felonies. That special circumstance applies
when “[t]he murder was committed while the defendant was engaged in, or was an
accomplice in, the commission of, attempted commission of, or the immediate
flight after committing, or attempting to commit” robbery or burglary. (§ 190.2,
Section 190.2, subdivision (c) provides: “Every person, not the actual
killer, who, with the intent to kill, aids, abets . . . any actor in the commission of
murder in the first degree” is subject to the death penalty. Interpreting this
provision, People v. Anderson (1987) 43 Cal.3d 1104, 1147, declared: “[W]hen
the defendant is an aider and abettor rather than the actual killer, intent must be
Defendant proposed an instruction directing the jury that the felony-murder
special circumstances applied to him only if he intended to kill the victim. The
court rejected the instruction. It also refused to give the bracketed portion of
CALJIC No. 8.80, which would have told the jury that if it did not find defendant
to be the actual killer, then it could find the special circumstance to be true only if
On June 5, 1990, section 190.2 was amended to add new subdivision (d),
which provides: “Notwithstanding subdivision (c), every person, not the actual
killer, who, with reckless indifference to human life and as a major participant,
aids, abets . . . the commission of a felony . . . which results in the death of some
person or persons” is subject to the death penalty. This provision does not apply
to defendant’s crime, which was committed in 1989.
it found beyond a reasonable doubt that defendant participated in the robbery with
the “the intent to kill.”
Defendant contends that the court’s refusal of this instruction was error,
citing People v. Garrison (1989) 47 Cal.3d 746, 789. It held: “Where, as here,
there was evidence from which a jury could have based its verdict on an
accomplice theory, the court erred in failing to instruct that the jury must find that
defendant intended to aid another in the killing of a human being.” (Ibid., fn.
omitted; see also People v. Williams (1997) 16 Cal.4th 635, 689 [error in failing to
instruct on intent to kill under the multiple-murder special-circumstance theory
when the defendant was an aider or abettor].) The Attorney General argues that
no instruction on intent to kill is necessary when the defendant does not claim that
more than one person was involved in the crime (see, e.g., People v. Coleman
(1988) 46 Cal.3d 749, 779), or when the evidence shows that defendant was either
the actual killer or not involved in the crime at all (see, e.g., People v. Hardy
(1992) 2 Cal.4th 86, 193; People v. Warren (1988) 45 Cal.3d 471, 487). But such
cases are inapposite here, where two persons were involved in the robbery and the
evidence does not preclude the possibility that defendant was not the one who shot
It is nevertheless doubtful whether there was sufficient evidence to justify
the proposed instructions. Defendant now claims that his principal defense was
that, although he was a participant and guilty of felony murder, he was not the
actual killer. But this is a construct on appeal. Defense counsel at trial simply
tried to discredit each of the prosecution witnesses; the defense made no claim,
and offered no evidence, that defendant was present during the killing but not the
actual killer. It might be possible to support the defense argument here by going
through the testimony of the prosecution witnesses selectively, accepting
testimony showing defendant was present but rejecting other testimony of the
same witnesses showing defendant was the actual killer. On the whole record,
however, it is a very weak basis for claiming error in the trial court’s failure to
Defendant argues that, even though the evidence to support his proposed
instructions was sparse, under Enmund v. Florida (1982) 458 U.S. 782 and
Cabana v. Bullock (1986) 474 U.S. 376, an intent to kill instruction is required
whenever the other instructions permit the jury to impose the death penalty on a
defendant “without ever finding that he had killed, attempted to kill, or intended to
kill.” (Id. at p. 382.) The Attorney General, citing Tison v. Arizona (1987) 481
U.S. 137, 154, responds that intent to kill is not essential to imposing the death
penalty for felony murder when the defendant, although not necessarily the actual
killer, was “a major actor in a felony in which he knew death was highly likely to
occur.” Defendant asserts that Tison does not apply here because the killing of
Weeks at Domino’s Pizza was unexpected and unnecessary to the robbery, but that
proposition is debatable; in light of the earlier incident at the Mad Greek
Restaurant, anyone joining defendant and his friends in an armed robbery might
well expect that a shooting would occur.
We have reviewed the closing arguments of counsel on both sides to see to
what extent they discussed the possibility that defendant was only an accomplice
to the actual killer. Both mentioned it, but only briefly and tangentially. In
reviewing the testimony of Erin Burton, defense counsel pointed out that although
defendant admitted doing the “Domino’s thing,” he did not expressly tell her he
was the actual killer. But because the trial court had already refused defendant’s
proposed instructions on actual intent under the felony-murder special
circumstance, defense counsel may have believed it pointless to pursue the matter
because the instructions the court had decided to give made no distinction between
the actual killer and a coparticipant.
A comment from the prosecutor also touches on the issue. At closing
argument the prosecutor observed correctly that under the felony-murder rule
defendant would be guilty of first degree murder if he intended to rob the victim:
“If he had the intent to commit a robbery or burglary he’s guilty of murder.
Unintentional, intentional, or accidental, it doesn’t matter.” But the prosecutor
then went on, without objection, to tell the jury that the felony-murder special
circumstance was “basically the same thing as the felony-murder rule” – which is
not true when accomplice liability is in issue. Defendant does not claim that this
comment was misconduct, or that defense counsel’s failure to object to it denied
defendant his right to the effective assistance of counsel. He argues, instead, that
it shows that the jurors could have thought the felony-murder special circumstance
flowed automatically from their conclusion that defendant was guilty of felony
murder, without deciding whether defendant was the actual killer or intended to
In any case, even assuming it was error for the trial court here not to
instruct on accomplice liability for the felony-murder special circumstances, the
failure to do so was not prejudicial, as discussed below.
“[W]hen a trial court fails to instruct the jury on an element of a special
circumstance allegation, the prejudicial effect of the error must be measured under
the test set forth in Chapman v. California (1967) 386 U.S. 18, 24. [Citations.]
Under that test, an error is harmless only when, beyond a reasonable doubt, it did
not contribute to the verdict.” (People v. Williams, supra, 16 Cal.4th at p. 689.)
The Attorney General argues that the error is harmless because the jury
necessarily found that defendant was the actual killer when it returned a verdict
finding that he personally used a firearm in the commission of the Domino’s Pizza
robbery and murder. (See People v. Jennings (1991) 53 Cal.3d 334, 387; People
v. Sedeno (1974) 10 Cal.3d 703, 721.) The finding of personal use, however,
would not in itself prove defendant was the actual killer. If two robbers display
guns to intimidate robbery victims and one shoots and kills a victim, both robbers
could be found to have personally used a gun in the robbery and the felony
murder, even though only one is the actual killer. (See People v. Lerma (1996) 42
Cal.App.4th 1221, 1226.)
The Attorney General further argues, however, that the evidence shows
only one robber, the actual killer, displayed and used a gun at Domino’s Pizza.
The record supports this argument. On direct examination, the prosecutor asked
Christina Kane, the assistant manager at Domino’s Pizza: “Why were you looking
at the defendant? In other words, why were you watching him as opposed to the
other guy?” She replied, “Because he’s the one that had the gun.” Later the
prosecutor asked: “Would it be fair to say, Ms. Kane, that your primary attention
that evening during these events was focused on the defendant as opposed to the
other individual?” She answered: “Primary? Probably, yes, because he had a gun
in his hand and I was scared.” On cross-examination, defense counsel asked
Kane: “Now, going back to January 21st, 1989, the two individuals that came in,
the two black men that came into Domino’s Pizza, did you see one before you saw
the other?” Kane replied: “Yes. One walked in front of the other.” Defense
counsel asked: “Okay. Which one walked in first; the one with the gun or the one
without the gun?” Kane answered: “With the gun.” Later, in a series of questions
and answers, Kane was asked to describe the two individuals, who were
distinguished as “the one with the gun” and “the man without the gun.” Victor
Moreno, a customer at Domino’s Pizza, confirmed that only one robber had a gun.
Defendant points to evidence that defendant displayed a gun as he ran from
Domino’s Pizza to Cruz’s getaway car, and argues that possibly the jury could
have based its personal use finding on defendant’s display of a gun while he fled
the scene of the murder. Defendant conjectures that maybe both Domino’s Pizza
robbers had guns, that the second robber displayed his during the robbery and
murdered restaurant manager Shane Weeks, but that defendant drew his gun only
as he fled to Cruz’s car. It is, of course, far more likely that the man who
displayed the gun at Domino’s Pizza and shot Weeks is the same person who
displayed a gun as the robbers fled the scene. All evidence points to defendant,
not the second robber, as the one with the gun. We conclude that the jury found
defendant to be the actual killer, and hence that any instructional error was
harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at
A. THE PROSECUTOR’S REFERENCE TO GANG EVIDENCE
At the penalty phase, defendant presented favorable character evidence
through witnesses Beatrice Acosta (the mother of defendant’s child), Cyndy Pitts
(defendant’s mother), Joseph Gueste (defendant’s pastor), and Glenn Garbot
(defendant’s uncle). On cross-examination, the prosecutor asked those witnesses
if they knew that defendant was a member of a Crips gang. Defendant contends
these questions constituted misconduct and violated a ruling by the trial court that
it would preview any gang evidence introduced at the penalty trial before the jury
heard it. He further contends that the questions denied him his state and federal
constitutional rights to due process of law and a reliable penalty determination,
and that defense counsel’s failure to object to the questions unconstitutionally
deprived him of the effective assistance of counsel.
The jury had already heard gang evidence at the guilt phase of the trial, and
we have previously concluded that the evidence was admissible. The prosecutor’s
questions to defendant’s character witnesses did not elicit any additional evidence
of gang activity. The prosecutor asked defendant’s character witnesses if they
knew of defendant’s gang membership and activities, and how this would affect
their opinion of defendant. The witnesses all answered that they did not know of
any such matters, so no evidence on gang membership was presented through their
The purpose of the prosecutor’s questions was to rebut defendant’s
character evidence by showing that the witnesses were not aware of discreditable
aspects of defendant’s life. Once defendant had placed his character in issue, the
prosecutor was entitled to rebut defendant’s evidence with evidence that would
offer a more balanced picture of his personality. Here, “[m]embership in youth
gangs was relevant to the issue of defendant’s character and activities as a youth
and specifically rebutted the direct testimony of the witness[es].” (People v.
Fierro (1991) 1 Cal.4th 173, 238; see People v. Rodriguez (1986) 42 Cal.3d 730,
Defendant calls our attention to People v. Ramirez (1990) 50 Cal.3d 1158,
where we said: “ ‘Nothing in our discussion is meant to imply that any evidence
introduced by defendant of his “good character” will open the door to any and all
“bad character” evidence the prosecutor can dredge up. As in other cases, the
scope of rebuttal must be specific, and evidence presented or argued as rebuttal
must relate directly to a particular incident or character trait defendant offers in his
own behalf.’ ” (Id. at pp. 1192-1193, quoting People v. Rodriguez, supra, 42
Cal.3d at p. 472, fn. 24, italics in original.) But defendant’s witnesses did not limit
themselves to describing defendant’s childhood; each of them said that the
charged criminal conduct was “out of character” for defendant, or words to that
effect. The prosecution was entitled to inquire if the witnesses were familiar with
defendant’s more recent character and behavior, that of a member and leader of a
Defendant argues that trial counsel should have inquired exactly what
defense character evidence would open the door to prosecution questions about
gang membership so defense counsel could limit his examination of the character
witnesses to avoid such questions. Defendant claims there is no conceivable
tactical purpose for not making that inquiry.
We disagree. Knowing that the jury had already heard the gang evidence,
but had not heard defendant’s character evidence, defense counsel here could
reasonably conclude that he should present character evidence despite any risk of
rebuttal by the prosecution.
That we can hypothesize a reasonable tactical basis for defense counsel’s
conduct does not, of course, prove that counsel did have a reasonable tactical basis
for his action or inaction. But to support a claim of ineffective assistance of
counsel, defendant must prove that counsel had no such tactical purpose. (People
v. Michaels, supra, 28 Cal.4th at p. 526.) The record on appeal does not furnish
B. CALLING DR. BUCKEY AS A DEFENSE WITNESS AT THE PENALTY
The defense called Dr. Steven Buckey, a clinical psychologist, as an expert
witness at the penalty trial. Dr. Buckey described the problems experienced by
children of families with alcoholism and domestic violence. He said that
defendant’s behavior problems were related to having an alcoholic and abusive
parent, as well as to defendant’s own alcoholism. He did not, however, talk to
defendant about the charged crimes or connect defendant’s problems with any
specific mitigating factor.
On cross-examination by the prosecutor, Dr. Buckey acknowledged that
defendant’s behavior also indicated an antisocial personality and that defendant’s
alcoholism itself was symptomatic of an antisocial personality. He agreed with
the prosecutor that defendant is a person “who doesn’t have a conscience” and
said defendant would be “very difficult, if not impossible, to treat in any setting.”
Defendant argues that, on the whole, Dr. Buckey’s testimony was harmful rather
Defendant thus contends that he was denied his state and federal
constitutional rights to the effective assistance of counsel as a result of his
attorney’s decision to call Dr. Buckey as a witness. The record, however, sheds no
light on whether counsel’s action was a reasonable tactical choice. It does not
describe counsel’s interviews with Dr. Buckey, what counsel did to prepare
Dr. Buckey for cross-examination, or what other expert witnesses might have been
available. Thus on appeal we cannot determine whether defense counsel acted
incompetently in calling Dr. Buckey as an expert witness.
C. FAILURE TO INSTRUCT ON NONSTATUTORY AGGRAVATING FACTORS
People v. Boyd (1985) 38 Cal.3d 762, 772, this court held that under the
1978 death penalty law (as amended, still California’s death penalty law), a death
judgment could not be based on aggravating factors not listed in section 190.3.
Defendant complains that the jury was not expressly instructed not to consider
nonstatutory aggravating factors. But he does not point to any nonstatutory
aggravating factors that were presented to or argued to the jury. Thus defendant’s
claim raises no issue for decision here.
D. FAILURE TO INSTRUCT AND ARGUE THAT CERTAIN FACTORS CAN
ONLY BE MITIGATING
Defendant argues the trial court should have instructed the jury that
defendant’s lack of prior felony convictions (§ 190.3, factor (c)) was a mitigating
factor and that extreme mental illness (id., factor (d)) and age (id., factor (i)) can
only be mitigating factors. The trial court’s failure to do so, he maintains, violated
his rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the federal
Constitution and corresponding state provisions.
We have consistently rejected contentions that the trial court has a duty to
instruct on which factors are aggravating and which mitigating. In People v.
Zapien (1993) 4 Cal.4th 929, 990, we said that the factors listed in section 190.3
“ ‘properly require the jury to concentrate upon the circumstances surrounding
both the offense and the offender, rather than upon extraneous factors having no
rational bearing on the appropriateness of the penalty. We believe the aggravating
or mitigating nature of these various factors should be self-evident to any
reasonable person within the contest of each particular case.’ ” Likewise in
People v. Carpenter (1997) 15 Cal.4th 312, 420, we observed: “Although some of
the statutory factors are inherently only aggravating or mitigating [citation],
because this is self-evident, the court need not identify which is which.”
Prior felony convictions (§ 190.3, factor (c)) would ordinarily be an
aggravating consideration. Defendant’s complaint here is that the trial court did
not instruct the jury that the absence of any prior convictions was mitigating.
Defendant, however, did not request such an instruction. In any case, the court’s
instruction on section 190.3, factor (k), permitting the jury to consider any “aspect
of the defendant’s character or record that the defendant offers as a basis for a
sentence less than death” clearly authorizes the jury to consider defendant’s lack
of prior felony convictions.
Section 190.3, factor (d), refers to “extreme mental illness or emotional
disturbance.” This court has rejected the contention that the language of factor (d)
is unconstitutional because it improperly bars the jury from considering less-than-
extreme mental illness or emotional disturbance, holding that the jury can consider
such circumstances under section 190.3, factor (k). (E.g., People v. Roybal (1998)
19 Cal.4th 487, 523.)
Defendant here faults the trial court for not instructing the jury that section
190.3, factor (d) can only be a mitigating factor. He fears that the jury might have
reasoned that extreme mental illness predisposing a person to violence could be an
aggravating consideration. This issue has arisen twice before, in People v.
Carpenter, supra, 15 Cal.4th 312, 420, and in People v. McPeters (1992) 2 Cal.4th
1148, 1191. In both cases we concluded that nothing in the arguments or
instructions suggested that extreme mental illness could be an aggravating factor.
Here, the prosecutor did not argue that defendant’s mental illness was
aggravating; defendant, he declared, “was not suffering from any mental or
extreme emotional distress.” Although the prosecutor went on to argue that
defendant had a “lust for violence” and might be a sociopath, that argument was
proper to rebut defendant’s evidence that his crimes were the result of his chaotic
upbringing and alcoholism, and to anticipate defense counsel’s argument that
defendant had not been violent in prison and could be a positive influence on his
brother and son.
Defendant also contends that the trial court should have told the jury that
youth is a mitigating factor. We cannot agree. Age, section 190.3, factor (i), is
not necessarily a mitigating consideration. It is a neutral factor, and thus either
counsel may make any age-related inference as either aggravating or mitigating.
(See People v. Hawthorne (1992) 4 Cal.4th 43, 77; People v. Lucky (1988) 45
Cal.3d 259, 302.) Although a young age may generally be mitigating, that is not
necessarily true in this case; at the age of 18 defendant had already committed one
murder, two robberies, and several attempted murders. Thus, contrary to
defendant’s contention, trial counsel could have made a reasonable tactical
decision not to argue the issue. The record does not show the actual basis of
E. FAILURE TO PRESENT EVIDENCE OF LINGERING DOUBT AT THE
PENALTY TRIAL, OR TO ARGUE THAT ISSUE
We reject defendant’s contention that the failure of his counsel to argue
lingering doubt as a mitigating consideration denied defendant the effective
assistance of counsel. We have held that a defendant may argue lingering doubt at
the penalty phase of a capital trial as a mitigating consideration. (People v.
Kaurish (1990) 52 Cal.3d 648, 706.) “Judges and juries must time and again reach
decisions that are not free from doubt; only the most fatuous would claim the
adjudication of guilt to be infallible. The lingering doubts of jurors in the guilt
phase may well cast their shadows into the penalty phase and in some measure
affect the nature of the punishment.” (People v. Terry (1964) 61 Cal.2d 137, 146;
People v. Cox, supra, 53 Cal.3d at pp. 677-678.) But a defendant may not
introduce evidence intended to create a reasonable doubt that “is not relevant to
the circumstances of the offense or the defendant’s character and record.” (In re
Gay (1998) 19 Cal.4th 771, 814.)
The lingering doubt evidence defendant refers to related to whether Andre
Davis might have been the actual killer, an issue first raised on defendant’s motion
for new trial, and discussed in part IX, post. Such evidence might have been
admissible in the penalty phase of the trial because it relates to the circumstances
of the offense, a potential mitigating or aggravating factor. (See § 190.3, factor
(a).) As we observe later in our discussion of the new trial motion, the appellate
record is insufficient to determine whether defendant’s counsel was incompetent
in not producing such evidence. Having failed to produce evidence that would
show grounds for a lingering doubt, however, it is not reasonably possible (People
v. Brown, supra, 46 Cal.3d at p. 447; People v. Robertson (1982) 33 Cal.3d 21, 63
(conc. opn. of Broussard, J.)) that counsel could have avoided a death verdict
merely by arguing lingering doubt to the jury.
F. CONSTITUTIONALITY OF THE CALIFORNIA DEATH PENALTY LAW
Defendant contends that numerous features of the California death penalty
law, and the absence of other features that might protect against unfair or
unreliable verdicts, violate the Eighth Amendment to the United States
Constitution and parallel California constitutional provisions. He emphasizes
California’s failure to require that the jury find aggravating circumstances
outweigh mitigating circumstances beyond a reasonable doubt before it can return
a death verdict. He also briefly raises a number of other contentions that this court
has previously rejected.
1. Absence of a requirement that the jury find aggravating
circumstances outweigh mitigating circumstances beyond a
People v. Williams (1988) 44 Cal.3d 883, 960, we said that application
of a reasonable doubt standard at the penalty phase is inappropriate because the
decision “is a normative judgment reflecting the juror’s individual moral
assessment of the defendant’s culpability.” Thereafter, in People v. Sanchez
(1995) 12 Cal.4th 1, 80, we affirmed that the federal Constitution does not require
a jury to find that aggravating circumstances outweighed mitigating circumstances
beyond a reasonable doubt. Noting that the United States Supreme Court has
never directly decided this issue, defendant asks us here to reconsider our past
Defendant points out that several states do require a reasonable doubt
standard for the penalty decision, suggesting that there is nothing inappropriate in
the use of that standard. He then quotes from Eddings v. Oklahoma (1982) 455
U.S. 104, 112: “[C]apital punishment [must] be imposed fairly, and with
reasonable consistency, or not at all.” That language, however, did not impose a
requirement that all states use the same procedures in determining penalty. The
requirement of “reasonable consistency” must be understood to mean consistency
within a state; there is, for example, no requirement that all states use the same
aggravating and mitigating factors.
Defendant further argues that the decision whether to require proof beyond
a reasonable doubt is one made by weighing the social interests at stake. Among
the many examples he cites are In re Winship (1970) 397 U.S. 358 (juvenile court
adjudication) and People v. Feagley (1975) 14 Cal.3d 338 (commitment as
mentally disordered sex offender). All of the cases cited, however, involve an
adjudication of guilt or status. Such adjudications are analogous to the guilt phase
determination in a capital trial, which is governed by the reasonable doubt
The penalty decision, on the other hand, is the counterpart of judicial
sentencing in a noncapital case. A trial judge imposing a sentence has never been
required to believe that the considerations on which it is based have been proved
beyond a reasonable doubt, whether or not the sentencing decision involves issues
of great social interest. To the contrary, in imposing a sentence the judge may
consider actions and offenses that have not been proved beyond a reasonable
doubt. (See People v. Gragg (1979) 216 Cal.App.3d 32, 44-45.) The requirement
that prior criminal conduct asserted as an aggravating consideration under factors
(b) and (c) of section 190.3 be proven beyond a reasonable doubt is imposed by
statute, not by the state or federal Constitutions. (People v. Anderson (2001) 25
Cal.4th 543, 589.)
The Legislature, by vesting the penalty decision in the jury instead of the
judge, recognized the importance of the social interests at stake in a capital trial.
(See People v. Bacigalupo (1993) 6 Cal.4th 456, 470.) But entrusting that
decision to a jury does not automatically carry with it a requirement that the jury’s
decision be made by a reasonable doubt standard. (People v. Bolden (2002) 29
Cal.4th 515, 566; People v. Kipp (2001) 26 Cal.4th 1100, 1137-1138.)
In conclusion, California death penalty statutes do not provide for a burden
of proof in the weighing of aggravating and mitigating circumstances, and no
constitutional authority imposes that requirement. (People v. Michaels, supra, 28
Cal.4th at p. 541, and cases there cited.) We therefore adhere to our decisions
rejecting defendant’s contention.
2. Narrowing the class of death-eligible defendants
Defendant argues that section 190.3 does not sufficiently narrow the class
of murderers eligible for the death penalty. (See Zant v. Stephens (1983) 462 U.S.
862, 877-878; People v. Bacigalupo, supra, 6 Cal.4th at pp. 465-466.) As in
People v. Wader (1993) 5 Cal.4th 610, 669, “defendant has not demonstrated on
this record, or through sources of which we might take judicial notice, that his
claims are empirically accurate, or that, if they were correct, this would require the
invalidation of the death penalty law.”
The statistics defendant cites are drawn solely from published decisions of
this court and the Court of Appeal, reviewing cases in which a defendant was
found guilty. As defendant recognizes, this is obviously a skewed sample. It
omits all unpublished decisions, and all cases in which the defendant did not
appeal, groups likely to include a higher proportion of cases without special
circumstances. Thus defendant’s figures fail to show the extent to which the
California statute narrows the proportion of death-eligible murderers.
3. Jury instruction on weighing aggravating and mitigating factors
CALJIC No. 8.88 instructs the jury that it may impose a death sentence if
the aggravating circumstances are “so substantial in comparison with the
mitigating circumstances that it warrants death instead of life without parole.”
The jury was so instructed in this case.
objections to this instruction. First, he contends it
allows the jury to impose a death penalty even if death is not the appropriate
penalty, an argument we rejected in People v. Arias (1996) 13 Cal.4th 92, 171.
Second, he argues the instruction does not tell the jury that it may not impose the
death penalty unless aggravating circumstance outweigh mitigating circumstances,
an argument we rejected in People v. Wader, supra, 5 Cal.4th at page 662.
Finally, he asserts that the instruction does not inform the jury that it cannot return
a death verdict if mitigation outweighs aggravation, an argument we rejected in
People v. Hughes (2002) 27 Cal.4th 287, 405.
Defendant also contends that CALJIC No. 8.88 creates a presumption of
death. His theory is that a case does not reach the penalty stage unless there is a
special circumstance, and the jury is unlikely to view that special circumstance as
insubstantial. But CALJIC No. 8.88 does not mandate death whenever
aggravating factors are substantial; instead, it requires a weighing of those factors
in relation to the mitigating factors.
4. Other issues
Defendant contends that the aggravating circumstances listed in section
190.3, especially factors (a) (circumstances of the crime) and (b) (criminal
activities involving force or violence), are unconstitutionally vague. The same
argument was rejected by the United States Supreme Court in Tuilaepa v.
California (1994) 512 U.S. 967, 975-976, and by this court in numerous cases.
(See People v. Kipp, supra, 26 Cal.4th 1100 at p. 1137, and cases cited therein.)
The trial court is not required to specify which factors are aggravating or
mitigating nor to delete any inapplicable mitigating factors from the list of factors
presented to the jury. (People v. Davenport (1995) 11 Cal.4th 1171, 1230.) The
trial court is not required to instruct the jury that a sentence of life imprisonment
without possibility of parole means that defendant will never be paroled, and a
sentence of death means that defendant will be executed. (People v. Jones (1997)
15 Cal.4th 119, 189.) Evidence about a “day in the life” of a prisoner on death
row, or the effect of a life without possibility of parole sentence, is not admissible.
(People v. Daniels (1991) 52 Cal.3d 815, 876-877.) This court has repeatedly
rejected arguments that the prosecutor’s discretion in deciding whether to seek the
death penalty is unconstitutional. (See, e.g., People v. Stanley (1995) 10 Cal.4th
Finally, defendant contends that all of the specified aggravating and
mitigating factors are unconstitutionally vague. This catchall argument fails.
Earlier in this opinion we cited authority holding that factors (a), (b), and (d) of
section 190.3 are not unconstitutionally vague. (Ante, pp. 37-39.) In the absence
of a more focused argument we need not examine the remaining factors.
In another catchall contention, defendant asserts that California’s failure to
adopt penalty phase safeguards found in the statutes of other state renders the
California law unconstitutional. Defendant says that in the course of discussing
other issues, he has mentioned various safeguards used by other states, but that
none is in effect in California. He presents no additional argument or authority
here to show that such safeguards are constitutionally required. Citation to
procedures used in other states, unaccompanied by any argument to show that
California is constitutionally compelled to adopt such procedures, does not raise
any issue we must consider.
IX. MOTION FOR NEW TRIAL
In his motion for a new trial, defendant asserted trial counsel’s
incompetence for not using due diligence to locate Andre Davis, the man
defendant claims was the actual shooter. In his motion for new trial, defendant
presented evidence that early in 1991 counsel attempted to locate Davis through
the California Prison Locator Office, but that office could not help him without a
date of birth for Davis. On June 19, 1991, Talea Muslim, Davis’s aunt, told
defense investigator Robin Levinson she thought that Davis was born in August
1973. But counsel heard from another source that Davis was in Oklahoma, so he
did not follow up on what he had learned from Talea. Levinson spoke to the
investigator for Eric Bailey, who according to the police was defendant’s
accomplice in the Domino’s Pizza murder. Bailey’s counsel used the August 1973
birthdate to locate Davis at California’s Sierra Conservation Center at Jamestown.
Bailey’s counsel did not tell defendant’s attorney where Davis could be found, but
did have Davis transported to the Riverside jail to be available for Bailey’s trial.
When the prosecution’s investigator observed Davis at the jail, he told the
prosecutor that Davis closely resembled the composite sketch of the second robber
drawn by a police artist and prepared with the help of Christina Kane, a witness to
the Domino Pizza murder. The prosecutor then dropped charges against Bailey.
After hearing this evidence, the trial court found that defense counsel failed
to use due diligence to locate Davis, a finding that the Attorney General does not
contest. The trial court further found, however, that counsel’s lack of diligence
did not prejudice defendant.
Defendant contends that if Davis had been available, defendant would have
testified and said Davis was the shooter. He would then have called Davis as a
witness, and although Davis might have denied being present at the killing of
Shane Weeks at Domino’s Pizza, or refused to testify, the jury could have
observed Davis and noticed his resemblance to the composite sketch. According
to defendant, before Shane Weeks died of his injuries he said that the killer wore
an earring, and the defense could have presented evidence that Davis, unlike
defendant, wore an earring. Defendant asserts that Christina Kane could have
been confronted with Davis and asked if he was one of the robbers. And evidence
that Davis was one of the robbers, even if not the killer, would have impeached the
testimony of Najee Muslim, who testified that Davis was not present at the
robbery and described Bailey as the second robber.
On the record before us, however, all of this is a speculative venture into an
alternate history. If defendant had testified, he could have said Davis was the
killer, but the details would be important, and the testimony subject to
impeachment. We do not know whether Davis would have testified favorably or
unfavorably for defendant, or would have refused to testify. Neither do we know
how Christina Kane would have reacted to seeing Davis in the court. The
prosecutor might have had rebuttal evidence. Defendant describes a trial that did
not happen, and it is not possible to reconstruct it on the appellate record.
Defendant’s remedy, if he can produce the requisite evidence, is through a petition
for habeas corpus.
The judgment is affirmed.
GEORGE, C. J.
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Jones (Michael Lamont)
Original Appeal XXX
Opinion No. S024599
Date Filed: June 16, 2003
Judge: Ronald R. Heumann
Attorneys for Appellant:
William Flenniken, Jr., and Kent A. Russell, under appointments by the Supreme Court, for Defendant and
Attorneys for Respondent:
Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Gary W. Schons,
Assistant Attorney General, Garrett Beaumont, William M. Wood and Holley A. Hoffman, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
William Flenniken, Jr.
57 Post Street, Suite 609
San Francisco, CA 94104
Holley A. Hoffman
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
|1||The People (Respondent)|
Represented by Attorney General - San Diego Office
Holley A. Hoffman, Deputy Attorney General
P.O. Box 85266
San Diego, CA
|2||Jones, Michael Lamont (Appellant)|
Represented by Federal Public Defender - La
Margo A. Rocconi/Anthony J. Cavalluzzi
321 East Second Street
Los Angeles, CA
|Jun 16 2003||Opinion: Affirmed|
|Dec 13 1991||Judgment of death|
|Jan 7 1992||Filed certified copy of Judgment of Death Rendered|
|Nov 15 1995||Counsel appointment order filed|
Upon request of appellant for appointment of counsel, William Flenniken, Jr., Esq., is hereby appointed to represent appellant on his automatic appeal now pending in this court, including any related habeas proceedings. Kent A. Russell, Esq., is hereby appointed as associate counsel.
|Jan 18 1996||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Jan 22 1996||Extension of Time application Granted|
To Applt To 3-22-96 To request Corr. of Record.
|Mar 22 1996||Application for Extension of Time filed|
By Applt to request correction of the Record.
|Mar 26 1996||Extension of Time application Granted|
To Applt To 5-21-96 To request Corr. of Record.
|Jun 4 1996||Received:|
Copy of Applt's Applic. to Complete, correct, Augment & Settle Record (8 Pp.)
|Nov 26 1996||Compensation awarded counsel|
|Jan 24 1997||Record on appeal filed|
C-18 (3,834 Pp.) and R-23 (4,535 Pp.); Clerk's Transcript includes 2,229 pages of Juror Questionnaires.
|Jan 24 1997||Appellant's opening brief letter sent, due:|
|Mar 6 1997||Application for Extension of Time filed|
To file Aob.
|Mar 13 1997||Extension of Time application Granted|
To 5-5-97 To file Aob.
|May 2 1997||Application for Extension of Time filed|
To file Aob.
|May 7 1997||Filed:|
Suppl Applic. for Eot to file Aob.
|May 7 1997||Filed:|
Suppl Applic. for Eot to file Aob.
|May 9 1997||Extension of Time application Granted|
To 7-7-97 To file Aob.
|Jun 26 1997||Compensation awarded counsel|
|Jul 7 1997||Application for Extension of Time filed|
To file Aob.
|Jul 8 1997||Extension of Time application Granted|
To 8-6-97 To file Aob.
|Jul 23 1997||Compensation awarded counsel|
|Aug 4 1997||Application for Extension of Time filed|
To file Aob.
|Aug 14 1997||Extension of Time application Granted|
To 9-5-97 To file Aob.
|Sep 5 1997||Application for Extension of Time filed|
To file Aob. Suppl Decl in support of request filed 9-8-97.
|Sep 10 1997||Extension of Time application Granted|
To 10-5-97 To file Aob.
|Sep 26 1997||Compensation awarded counsel|
|Oct 6 1997||Application for Extension of Time filed|
To file Aob.
|Oct 9 1997||Extension of Time application Granted|
To 11-4-97 To file Aob.
|Oct 16 1997||Compensation awarded counsel|
|Nov 4 1997||Application for Extension of Time filed|
To file Aob.
|Nov 6 1997||Extension of Time application Granted|
To 12-4-97 To file Aob.
|Dec 5 1997||Application for Extension of Time filed|
To file Aob.
|Dec 8 1997||Extension of Time application Granted|
To 1-5-98 To file Aob.
|Dec 31 1997||Application for Extension of Time filed|
To file Aob.
|Jan 8 1998||Extension of Time application Granted|
To February 4,1998 To file AOB
|Jan 23 1998||Compensation awarded counsel|
|Feb 9 1998||Application for Extension of Time filed|
To file Aob.
|Feb 19 1998||Extension of Time application Granted|
To 3-6-98 To file Aob.
|Feb 25 1998||Compensation awarded counsel|
|Mar 6 1998||Application for Extension of Time filed|
To file Aob.
|Mar 13 1998||Extension of Time application Granted|
To 4-6-98 To file AOB
|Mar 30 1998||Compensation awarded counsel|
|Apr 7 1998||Application for Extension of Time filed|
By Applt to file AOB
|Apr 14 1998||Extension of Time application Granted|
To 5-6-98 To file AOB no further Extensions of time Are Contemplated
|Apr 15 1998||Compensation awarded counsel|
|May 6 1998||Application for Extension of Time filed|
To file Aob.
|May 12 1998||Extension of Time application Granted|
To 6-5-98 To file AOB no further Extensions of time Are Contemplated
|Jun 2 1998||Application for Extension of Time filed|
To file Aob.
|Jun 8 1998||Extension of Time application Granted|
To 7-6-98 To file AOB no further Extensions of time will be granted
|Jul 6 1998||Application for Extension of Time filed|
To file Aob.
|Aug 4 1998||Extension of Time application Denied|
To file AOB
|Aug 6 1998||Received:|
Request for Ext. of time to file Aob.
|Sep 8 1998||Application for Extension of Time filed|
To file AOB
|Sep 11 1998||Extension of Time application Denied|
To file AOB
|Sep 22 1998||Filed:|
Applt's Applic. for Relief from Default & Leave to file Late Oversize Opening brief. (brief submitted Under Separate Cover.)
|Sep 23 1998||Order filed:|
Granting Applt's "Applic. for Relief from Default & for Leave to file Late Oversize Opening brief."
|Sep 23 1998||Appellant's opening brief filed|
(408 Pp. Excluding Appendix).
|Oct 15 1998||Compensation awarded counsel|
|Oct 23 1998||Application for Extension of Time filed|
To file Resp's brief.
|Oct 29 1998||Extension of Time application Granted|
To 12-22-98 To file Resp's brief.
|Nov 6 1998||Compensation awarded counsel|
|Dec 31 1998||Application for Extension of Time filed|
To file Resp's brief.
|Jan 6 1999||Extension of Time application Granted|
To 1-21-99 To file Respondent's brief
|Jan 13 1999||Compensation awarded counsel|
|Jan 21 1999||Application for Extension of Time filed|
To file Resp's brief.
|Jan 28 1999||Filed:|
Resp's Suppl Decl in support of request for Eot.
|Jan 29 1999||Extension of Time application Granted|
To 3-22-99 To file Respondent's brief
|Mar 4 1999||Compensation awarded counsel|
|Mar 16 1999||Application for Extension of Time filed|
To file Resp's brief.
|Mar 23 1999||Extension of Time application Granted|
To 5-21-99 To file Respondent's brief
|Apr 2 1999||Compensation awarded counsel|
|May 21 1999||Respondent's brief filed|
|Jun 9 1999||Application for Extension of Time filed|
To file reply brief.
|Jun 14 1999||Extension of Time application Granted|
To 8-9-99 To file reply brief
|Aug 10 1999||Application for Extension of Time filed|
To file reply brief.
|Aug 16 1999||Extension of Time application Granted|
To 10-8-99 To file reply brief
|Sep 23 1999||Compensation awarded counsel|
|Oct 14 1999||Application for Extension of Time filed|
To file reply brief.
|Oct 18 1999||Extension of Time application Granted|
To 12/13/99 To file Applt's reply brief.
|Dec 16 1999||Application for Extension of Time filed|
To file reply brief.
|Dec 23 1999||Extension of Time application Granted|
To 2/11/2000 To file reply brief.
|Feb 28 2000||Application for Extension of Time filed|
To file reply brief.
|Mar 2 2000||Extension of Time application Granted|
To 4/11/2000 To file reply brief.
|Mar 22 2000||Compensation awarded counsel|
|Apr 17 2000||Application for Extension of Time filed|
To file reply brief.
|Apr 20 2000||Compensation awarded counsel|
|Apr 20 2000||Extension of Time application Granted|
To 6/12/2000 To file reply brief. no further Eot Are Contemplated.
|Jun 13 2000||Application for Extension of Time filed|
To file reply brief.
|Jun 15 2000||Extension of Time application Granted|
To 8/11/2000 To file reply brief. no further Eot Are Contemplated.
|Aug 14 2000||Application for Extension of Time filed|
To file reply brief. (8th request)
|Aug 17 2000||Extension of Time application Granted|
To 10/10/2000 to file reply brief. No further ext. of time will be granted.
|Oct 16 2000||Application for Extension of Time filed|
To file reply brief. (9th request)
|Oct 20 2000||Extension of Time application Denied|
To file applt's reply brief.
|Dec 29 2000||Counsel's status report received (confidential)|
|Jan 17 2001||Order filed:|
Appellant's reply brief shall be filed on or before 2-23-2001. If the brief is not filed by that date, the court will consider the issuance of an order directing counsel to show cause before this court, when the matter is ordered on calendar, why counsel for appellant should not be held in contempt of court for the willful neglect of his duty to file the appellant's reply brief.
|Jan 19 2001||Application to file over-length brief filed|
& relief from default to file reply brief. (147 page reply brief submitted under separate cover)
|Jan 29 2001||Order filed:|
Applt's applic. for relief from default and for leave to file reply brief in excess of 140 pages is granted.
|Jan 29 2001||Appellant's reply brief filed|
|Jan 30 2001||Compensation awarded counsel|
|Feb 28 2001||Compensation awarded counsel|
|Sep 4 2002||Compensation awarded counsel|
|Nov 26 2002||Compensation awarded counsel|
|Jan 16 2003||Oral argument letter sent|
advising counsel that case could be scheduled for oral argument as early as the March 2003 calendar. Any request for additional time, 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.
|Jan 24 2003||Filed letter from:|
Respondent, dated 1/22/2003, re potential date for oral argument.
|Mar 6 2003||Case ordered on calendar|
4-1-03, 2pm, L.A.
|Mar 17 2003||Filed letter from:|
Appellant's counsel, dated 3/17/2003, re focus issues for oral argument.
|Mar 17 2003||Filed:|
Application for two counsel argument and declaration of William Flenniken, Jr.
|Mar 24 2003||Order filed|
The request of appellant for permission to be represented by two counsel at oral argument is granted.
|Mar 25 2003||Filed:|
respondent's focus issue letter, dated 3-21-2003.
|Apr 1 2003||Cause argued and submitted|
|Jun 13 2003||Compensation awarded counsel|
|Jun 16 2003||Opinion filed: Judgment affirmed in full|
Majority opinion by Kennard, J. -------------joined by George, C.J., Baxter, Werdegar, Chin, Brown, Moreno, JJ.
|Jun 30 2003||Rehearing petition filed|
by appellant. (15 pp.)
|Jul 2 2003||Time extended to consider modification or rehearing|
to 9/15/2003, or the date upon wich rehearing is either granted or denied.
|Aug 27 2003||Rehearing denied|
Werdegar, J., was absent and did not participate.
|Aug 27 2003||Remittitur issued (AA)|
|Sep 5 2003||Received:|
Acknowledgment of receipt of remittitur.
|Nov 19 2003||Order filed (150 day statement)|
|Dec 24 2003||Received letter from:|
U.S.S.C., dated 12/19/2003, advising cert petition filed 11/25/2003 as No. 03-7995.
|Mar 5 2004||Received:|
Copy of brief in opposition to cert petition. (24 pp.)
|Apr 1 2004||Received:|
Copy of appellant's cert petition. (23 pp. - excluding appendix)
|Apr 7 2004||Certiorari denied by U.S. Supreme Court|
|Jun 7 2004||Compensation awarded counsel|
|Jun 9 2004||Compensation awarded counsel|
|Mar 30 2005||Related habeas corpus petition filed (post-judgment)|
|Mar 30 2005||Motion to withdraw as counsel filed|
by William M. Flenniken, Jr. to withdraw as lead counsel for the direct appeal and habeas corpus/executive clemency proceedings.
|Mar 30 2005||Motion to withdraw as counsel filed|
by Kent A. Russell to withdraw as associate counsel for the direct appeal and habeas corpus/executive clemency proceedings.
|Mar 30 2005||Motion for appointment of counsel filed|
by the Federal Public Defender to be appointed as postconviction habeas corpus counsel.
|Apr 20 2005||Withdrawal of counsel allowed by order|
Good cause appearing, the separate applications of appointed lead and associate counsel for permission to withdraw as attorneys of record for condemned prisoner Michael Lamont Jones, filed March 30, 2005, are granted. The order appointing William M. Flenniken, Jr., and Kent A. Russell as lead and associate counsel of of record, respectively, for condemned prisoner Michael Lamont Jones, filed November 15, 1995, is hereby vacated. The Federal Public Defender for the Central District of California is hereby appointed attorney of record for condemned prisoner Michael Lamont Jones. Counsel is appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate. George, C.J., was absent and did not participate.
|Sep 23 1998||Appellant's opening brief filed|
|May 21 1999||Respondent's brief filed|
|Jan 29 2001||Appellant's reply brief filed|