Supreme Court of California Justia
Docket No. S046117

People v. Jones (Ernest)

Filed 3/17/03



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S046117

v.

ERNEST DWAYNE JONES,

Los Angeles County

Defendant and Appellant. )

Super.Ct.No.

BA063825



A jury convicted defendant Ernest Dwayne Jones of the first degree murder

(Pen. Code,1 §§ 187, 189) and rape (§ 261) of Julia Miller, and it found true the

special circumstance allegation that the murder was committed in the commission

of the rape. The jury found that defendant was not guilty of burglary (§ 459) or

robbery (§ 211) of Mrs. Miller, and it found not true the special circumstance

allegations that the murder of Mrs. Miller was committed in the commission of

burglary or robbery. Finally, the jury found true the allegations that defendant

personally used a deadly weapon, i.e., a knife, to commit the crimes (§ 12022,

subd. (b)) and that he had served a prior prison term (§ 667.5). The jury set the

penalty at death. The trial court denied defendant’s motion for a new trial (§ 1179


1

All further statutory references are to the Penal Code unless otherwise

designated.


1


et seq.) and his motion for modification of the sentence (§ 190.4, subd. (e)). This

appeal is automatic. (§ 1239.)

We conclude the judgment should be affirmed in its entirety.

I. FACTS

A. Guilt Phase

1. The People’s Case

Shortly after midnight on August 25, 1992, in Los Angeles, Chester Miller

returned home from work and noticed the family station wagon was missing from

the driveway. Mr. Miller went into his house and found his wife, Julia, lying dead

at the foot of their bed. Mrs. Miller’s robe was open, her nightgown was bunched

above her waist, and she was naked from the waist down. A telephone cord and a

purse strap had been used to tie Mrs. Miller’s arms over her head, and a nightgown

had been used to loosely tie her ankles together. Mrs. Miller had been gagged

with two rags, one in her mouth and another around her face. Two kitchen knives

were sticking out of her neck. Pieces of three other knives were found on or

around her body.

Defendant and the Millers’ daughter, Pam, lived together in an apartment

about two and one-half miles from the Millers. Around 6:00 p.m. on the previous

day, August 24, 1992, Pam had been on the phone with her mother. Defendant

had interrupted Pam to ask her whether her parents were at home. Pam told

defendant that her father was at work, but that her mother was home.

Around 7:40 p.m. the same evening, defendant left the apartment. Pam

later noticed defendant had apparently switched off the ringer on their phone,

something he had never done before. At 9:30 p.m., defendant returned to the

apartment, smoked a joint of marijuana and cocaine, and then left again at 10:00

p.m. He had again switched off the phone ringer. Defendant returned in 20

minutes and rolled some more “joints.”

2



Pam always slept with the television on, but this night defendant told her to

turn it off because he had things on his mind. Around midnight she woke up and

saw defendant looking out the window. At some point in the evening he had

changed clothes. At 1:00 a.m., their doorbell rang. Defendant told Pam not to

answer it. Hearing her name called, Pam looked out of the bedroom window and

saw her grandmother, who told her to open the apartment door. When defendant

did so, Pam’s grandfather said her mother had been killed. Pam repeatedly asked

defendant to accompany her to her grandparents’ house, but defendant refused,

saying he would come when he got his sister’s car.

When Pam arrived at her grandparents’ house, she called her friend

Shamaine Love. Pam told Love that Mrs. Miller had been killed. Love, a

childhood friend of Pam’s, as well as a drug dealer who regularly sold cocaine to

her and to defendant, lived near Mr. and Mrs. Miller. Love told Pam that several

times during the day Mrs. Miller had been murdered defendant had been to Love’s

house to buy drugs from her. Two of defendant’s trips to Love’s house were in

the afternoon; on both occasions he paid for the drugs in cash. Shortly after

sunset, which would have been sometime between 7:30 and 7:55 p.m., defendant

had again visited Love, this time paying for cocaine and marijuana with a gold

chain. Later that night defendant again bought cocaine from Love, paying for it

with a pearl necklace, pearl earrings, and a pearl bracelet. Pam identified the pearl

jewelry, and later the gold chain, as Mrs. Miller’s. Pam took the pearl jewelry to

the Miller house and showed it to detectives there. Pam told the officers that she

knew who had killed her mother and that they should go to the apartment.

At 3:00 a.m., police officers staked out the Millers’ station wagon, which

they found parked around the corner from the apartment. Shortly thereafter

defendant got into the station wagon and drove away. The officers followed in

their marked patrol car. Defendant looked back in the officers’ direction, reached

3

into the back seat, and brought a rifle into the front seat. Defendant then sped up,

and the officers gave chase, their lights and sirens on. Defendant ran red lights

and stop signs. Other patrol cars joined in pursuit. Defendant hit a traffic island

and blew out the tires on the driver’s side of the station wagon. He continued

driving on the rims, however, and entered a freeway. First the wheels, and then

the rims on the station wagon disintegrated, forcing defendant to stop. The pursuit

lasted 40 minutes. Defendant was ordered out of the station wagon, but instead he

placed the rifle to his chest and shot himself. A subsequent search of the

apartment revealed that the front and back doors had been barricaded with

furniture.

The deputy medical examiner with the Los Angeles County Coroner’s

Office who performed the autopsy on Mrs. Miller’s body concluded, on the basis

of the following evidence, that she had been stabbed to death: Two knives were

sticking out of Mrs. Miller’s neck. She also had 14 stab wounds in her abdomen

and one in her vagina, but the fatal stab wound, which penetrated to the spine, was

the one in the middle of her chest. Aside from the stab wound, there was no

evidence of trauma to the vaginal region.

At the crime scene, a criminalist with the Los Angeles County Coroner’s

Office took swabs of Mrs. Miller’s vagina. Another criminalist found a great

abundance of intact spermatozoa on the vaginal swab, leading him to conclude

that ejaculation occurred no more than five to 10 hours before Mrs. Miller’s death.

A blood sample was taken from defendant. A molecular biologist for Cellmark

Diagnostics performed deoxyribonucleic acid (DNA) testing on the blood sample

taken from defendant and on the vaginal swabs taken from Mrs. Miller. This

testing yields banding patterns that are, with the exception of identical twins,

unique to every individual. There is only one chance in 78 million that a random

individual would have the same DNA banding pattern as defendant. The tests

4

showed that the banding pattern in the DNA from defendant’s blood sample

matched the banding pattern of the semen on the vaginal swab taken from Mrs.

Miller.



Defendant’s prior conviction for sexually assaulting

Dorothea

H.

Previously, defendant had lived with Glynnis H. and their infant son in a

garage behind the home of Glynnis’s mother, Dorothea H. (Mrs. H.). After

defendant and Glynnis broke up and Glynnis moved away, Mrs. H. told defendant

to move out of the garage. On March 29, 1985, around 6:30 a.m., Mrs. H. heard

the gate to her backyard rattle and then heard a window in the bedroom nearest the

garage, the bedroom Glynnis had used, break. Mrs. H. investigated and found

defendant standing in her hallway. Appearing desperate, defendant asked Mrs. H.

where Glynnis and the infant were. When he learned they were not there,

defendant, telling her not to scream, took Mrs. H. into her bedroom. Defendant

gagged Mrs. H. and bound her arms and legs. The binding permitted Mrs. H.’s

legs to be separated a bit. Defendant then raped and sodomized her.

After the assault, while defendant was resting on the bed, the doorbell rang.

After peeking outside, defendant untied Mrs. H., told her not to say anything, and

stood behind her as she opened the door. It was a delivery from the United Parcel

Service—a package from Glynnis containing a photograph of Glynnis, defendant

and their infant. When he saw the photograph, defendant began crying. He told

Mrs. H. he was not going to kill her because Mrs. H., who was a teacher, could

take care of the baby financially.

Defendant then took a knife from the kitchen drawer, placed it against his

stomach, and asked Mrs. H. to kill him. When Mrs. H. said she couldn’t, that it

would be against her religion, defendant bound her to her bed, took $40 dollars

from her purse, and asked her for her neighbor’s phone number, saying that after

5

he left he would call her neighbor. Defendant did so, and the neighbor released

Mrs. H.

As a result of this incident, defendant was convicted of first degree burglary

(§§ 459, 460, subd. (a)), residential robbery (former § 213.5, repealed by Stats.

1986, ch. 1428, § 5, p. 5124; see now § 213), assault with a deadly weapon (§ 245,

subd. (a)(1)), rape (§ 261, subd. (a)(2)), and sodomy (§ 286, subd. (c)(2)). In April

1986, defendant was sentenced to prison for 12 years, and he was paroled in 1991,

10 months before the murder of Mrs. Miller.

2. The Defense Case

Defendant testified as follows: Around 3:00 p.m. on the day he killed Mrs.

Miller, defendant, feeling depressed, bought rock cocaine and marijuana from

Shamaine Love, paying $20 in cash. He went to the apartment and smoked some

of the drugs, and not having used drugs for seven years, became very high and

paranoid. Pam came home to the apartment around 5:30 p.m. She was also high

on drugs. Giving defendant a gold chain, pearl necklace, pearl earrings, and a

pearl bracelet, Pam told defendant to use the jewelry to buy drugs from Shamaine

Love. Defendant had seen Pam with Mrs. Miller’s jewelry before, but he did not

recognize this jewelry as belonging to Mrs. Miller. After Pam spoke on the phone

with her mother, defendant took the bus to Shamaine Love’s house, arriving

around 7:30 p.m., and bought cocaine from her, paying $125 in cash plus the

jewelry.

After waiting at a bus stop for 30 or 40 minutes, defendant decided to walk

to the Millers’ nearby home and ask Mrs. Miller for a ride back to the apartment.

He did so for two reasons: He was feeling the effects of the drugs and liquor he

had consumed throughout the day, and Love had told him police were patrolling

the neighborhood. Mrs. Miller invited defendant into her house and agreed to give

him a ride to the apartment.

6



A few weeks earlier, defendant had broken his thumb in six places.

Defendant had previously given Mrs. Miller a more innocuous explanation—that

he had broken it in the course of horseplay with Pam—but now Mrs. Miller asked

him how he had really broken it. Defendant admitted that when Pam had come

home late one night, he had confronted her, she had walked away from him, and

he had grabbed at her waist and missed, jamming his thumb into the door frame.

Upon hearing this, Mrs. Miller became very angry. She told defendant she

would kill him if he hurt Pam, and that she would lie to his parole officer to get

him sent back to prison, a threat she had made on a previous occasion. Mrs.

Miller took a knife from the kitchen drawer. Defendant pushed her. “You

bastard,” Mrs. Miller said, “My husband don’t put his hands on me.” As Mrs.

Miller came at defendant with the knife, defendant responded by grabbing a knife

out of the kitchen drawer himself. Defendant told Mrs. Miller he did not want to

hurt her. Mrs. Miller swung at defendant with her knife, missing him. Defendant

swung back at her, cutting her arm. “Just wait until I get my gun,” Mrs. Miller

said, running to her bedroom. Defendant followed Mrs. Miller and as she was

taking a rifle out of the bedroom closet, defendant grabbed her from behind and

spun her around. Mrs. Miller lost her grip on the rifle and fell to the floor. As

defendant stood over her, Mrs. Miller said, “Give it to me.”

Defendant then “kind of slipped back into [his] childhood” and had a vision

of walking into a room where his mother was with a man “who wasn’t [his]

father.” He picked up a knife and began stabbing Mrs. Miller. The next thing

defendant knew he was curled up in a ball, crying, and Mrs. Miller was tied up on

the floor with knives sticking out of her neck. Defendant remembered nothing

after the first few stabs, but he admitted that he must have been the one who tied

Mrs. Miller up, sexually assaulted her, and killed her. He insisted he had not come

to the Miller house with the intention of robbing, raping, or killing Mrs. Miller.

7



After the killing, defendant “started experiencing things that [he] had not

experienced for a while.” He was “hearing . . . things in [his] head telling [him] to

do certain things. [He] guess[ed] you could call it paranoia, thinking someone was

coming to kill [him].” He grabbed a second rifle and bullets from the bedroom

closet with the intention of taking his life. Defendant drove the Millers’ station

wagon to the apartment and parked around the corner, leaving the rifle in the

station wagon. He locked all the windows and doors in the apartment, believing

someone was coming to kill him, yet he went outside later to smoke some of the

drugs he had purchased from Shamaine Love. When Pam’s grandparents

informed her of Mrs. Miller’s death, and she left with them, defendant barricaded

the doors of the apartment.

When defendant left the apartment he intended to drive the station wagon

off a cliff and kill himself. Following the police chase, after the station wagon

was disabled, a voice inside his head said, “They’re going to kill you.” Defendant

then put the rifle to his chest and pulled the trigger. He was hospitalized for three

weeks, recovering from the wound, and for the first week he was unconscious and

on a respirator.

With regard to his prior conviction for sexually assaulting Mrs. H.,

defendant testified he was “not denying any of that.”

B. Penalty Phase

1. The People’s Case

Mr. and Mrs. Miller were married for 30 years, and he died eight months

after Mrs. Miller was murdered. In Pam’s opinion, Mr. Miller “grieved himself to

death.”

Gloria Hanks, defendant’s sister, testified that defendant told her he “didn’t

give a fuck about Pam or her family.”

8



During the entire year they lived together, defendant did not tell Pam he

heard voices; he did not, in Pam’s opinion, act like someone who was hearing

voices; and he did not display such behavior when he returned to the apartment

after killing Mrs. Miller.

The rape of Kim, J.

On May 28, 1984, Kim J. attended a barbecue party given by defendant’s

sister, Gloria Hanks. Kim and defendant smoked marijuana together at the party,

and then they went to Kim’s house and smoked some more. Kim considered

defendant to be like a brother. However, when she suggested it was time for him

to leave, defendant grabbed her by the throat, told her he would kill her if she

screamed, and then raped her at knifepoint. While defendant was attacking Kim

“he seemed to be in a trance. His eyes got big and glassy and his whole demeanor

changed. [¶] It was like he took on a new person, like he was in a trance, and then

afterwards, he seemed to snap back.” Defendant apologized and asked Kim

whether she was going to tell anyone. She said she would not, but later, urged by

her mother to do so, Kim called the police. She testified against defendant at a

preliminary hearing, but then dropped the charges because she had known

defendant “practically all of his life” and she was “best friends with two of his

sisters.” “[F]or whatever reason I was thinking he needs a second chance.”

2. The Defense Case

In the words of an aunt, defendant’s home life was a “living hell.”

Defendant’s father and mother were alcoholics. They also used marijuana in front

of their children. The father and mother had “pretty rough fights” with one

another, and on one occasion the mother stabbed the father in the hand. The

mother had numerous affairs. Once, the father caught the mother in bed with one

of the father’s friends, and defendant and his sister were in the bed at the time.

After that incident, the father began beating the mother and “stomped her in her

9

vagina.” When the father left the family, the mother and her boyfriend drank

heavily and often the family had no money for food. The mother beat the

children. “Whatever she had in her hands, she might hit them with it.” In

defendant’s presence, defendant’s mother told his father that defendant was not in

fact his child.

In the opinion of James Park, a corrections consultant and retired

Department of Corrections employee, defendant was likely to be a good prisoner

and unlikely to become involved in violence. Mr. Park based his opinion on the

following factors: Younger prisoners are more likely to be violent, and at 30,

defendant was older; during his previous eight-year prison term, defendant had

relatively few infractions, and only one for fighting; finally, defendant had

completed the requirements for a high school degree.

In the opinion of Dr. Claudewell S. Thomas, a psychiatrist appointed by the

court at the request of the defense, defendant suffered from schizoaffective

schizophrenia, a major psychiatric disorder. In reaching his diagnosis, Dr.

Caldwell interviewed defendant and reviewed various documents: A 1985 report

by a psychologist concluding that defendant’s mental processes were intact and he

was not psychotic; a 1985 report by a psychiatrist concluding defendant suffered

from a chronic underlying depressive mental illness exacerbated by alcohol and

drug abuse; a report by a psychologist who examined defendant in 1994

concluding that defendant was schizophrenic.

II. DISCUSSION

A. Pretrial Issues

1. Marsden Motion

Pursuant

to

People v. Marsden (1970) 2 Cal.3d 118 (Marsden), defendant

moved to have substitute trial counsel appointed. Defendant contends the trial

court failed to conduct an adequate inquiry into the grounds for the motion before

10

denying it. The court’s inquiry was adequate, and it did not abuse its discretion in

denying the motion.

In

Marsden, we said: “[A] judge who denies a motion for substitution of

attorneys solely on the basis of his courtroom observations, despite a defendant’s

offer to relate specific instances of misconduct, abuses the exercise of his

discretion to determine the competency of the attorney. A judicial decision made

without giving a party an opportunity to present argument or evidence in support

of his contention ‘is lacking in all the attributes of a judicial determination.’

(Spector v. Superior Court (1961) 55 Cal.2d 839, 843.)” (Marsden, supra, 2

Cal.3d at p. 124.)

A defendant is entitled to have appointed counsel discharged upon a

showing that counsel is not providing adequate representation or that counsel and

defendant have become embroiled in such an irreconcilable conflict that

ineffective representation is likely to result. (People v. Earp (1999) 20 Cal.4th

826, 876 (Earp); People v. Memro (1995) 11 Cal.4th 786, 857 (Memro).)

In this case, defendant interrupted pretrial proceedings to declare a conflict

of interest with counsel. The court construed defendant’s remarks as a Marsden

motion, and defendant was given an adequate opportunity, before the court ruled

on his motion, to explain why he was dissatisfied with his attorney.

Defendant stated the following grounds for the motion: (1) Defendant and

counsel were not “getting along”; (2) counsel did not visit defendant prior to an

earlier hearing in municipal court; (3) counsel did not do everything on the “long

list” of tasks defendant had assigned him; and (4) counsel believed defendant

guilty, as was evidenced by his discussion of a possible plea bargain.

Defense counsel addressed each of defendant’s complaints: (1) Although

defendant and counsel had had some disagreements, counsel saw “no reason” why

he could not continue to represent defendant; (2) defendant was in local custody

11

and counsel had visited him on “numerous occasions”; (3) counsel had prepared

“lengthy and detailed investigations requests,” and counsel had informed

defendant that he would visit defendant the following week “to cover any areas

that were not covered in the requests”; and (4) counsel had discussed possible

sentences with defendant at defendant’s request, but no offer of a plea bargain had

been made by the prosecution.

At the conclusion of the hearing, the court denied the Marsden motion.

Defendant continued to express his dissatisfaction with counsel; he would be

“happy,” defendant said, if the court would appoint the lawyer of his choice to

represent him. The court explained to defendant that “[i]t doesn’t work that way.”

We review a trial court’s decision declining to relieve appointed counsel

under the deferential abuse of discretion standard. (People v. Silva (2001) 25

Cal.4th 345, 367; Marsden, supra, 2 Cal.3d at p. 123.) No abuse of discretion has

been shown here, as defendant failed to demonstrate either inadequate

representation or irreconcilable conflict. (Earp, supra, 20 Cal.4th at p. 876.) “To

the extent there was a credibility question between defendant and counsel at the

hearing, the court was ‘entitled to accept counsel’s explanation.’ (People v.

Webster [(1991)] 54 Cal.3d [411,] 436.)” (People v. Smith (1993) 6 Cal.4th 684,

696.) If a defendant’s claimed lack of trust in, or inability to get along with, an

appointed attorney were sufficient to compel appointment of substitute counsel,

defendants effectively would have a veto power over any appointment, and by a

process of elimination could obtain appointment of their preferred attorneys,

which is certainly not the law. (Memro, supra, 11 Cal.4th at p. 857; People v.

Berryman (1993) 6 Cal.4th 1048, 1070 (Berryman), overruled on other grounds in

People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)

12

2. Excusal of Prospective Jurors

Defendant

contends

that

the trial court erred in sustaining the prosecutor’s

challenges for cause to two prospective jurors based on their views with regard to

the death penalty, and that this error violated defendant’s right to an impartial jury

under the Sixth and Fourteenth Amendments to the federal Constitution.

The United States Supreme Court has held that a prospective juror may be

excluded for cause without compromising a defendant’s rights under the Sixth and

Fourteenth Amendments to trial by an impartial jury if the juror’s views on capital

punishment “ ‘would prevent or substantially impair the performance of his duties

as a juror in accordance with his instructions and his oath.’ ” (Wainwright v. Witt

(1985) 469 U.S. 412, 424, fn. omitted; see Darden v. Wainwright (1986) 477 U.S.

168, 175-178.) We apply the same standard to claims under our state Constitution.

(People v. Rodrigues (1994) 8 Cal.4th 1060, 1146 (Rodrigues); People v. Guzman

(1988) 45 Cal.3d 915, 955 (Guzman).) A prospective juror is properly excluded if

he or she is unable to conscientiously consider all of the sentencing alternatives,

including the death penalty where appropriate. (People v. Barnett (1998) 17

Cal.4th 1044, 1114; Rodrigues, at p. 1146.)

Generally, the qualifications of jurors challenged for cause are matters

within the wide discretion of the trial court, seldom disturbed on appeal.

(Rodrigues, supra, 8 Cal.4th at p. 1146; People v. Kaurish (1990) 52 Cal.3d 648,

675.) There is no requirement that a prospective juror’s bias against the death

penalty be proven with unmistakable clarity. (Wainwright v. Witt, supra, 469 U.S.

at p. 424; People v. Carpenter (1999) 21 Cal.4th 1016, 1035; Guzman, supra, 45

Cal.3d at p. 954.) Rather, it is sufficient that the trial judge is left with the definite

impression that a prospective juror would be unable to faithfully and impartially

apply the law in the case before the juror. (Rodrigues, at p. 1147; People v. Hill

(1992) 3 Cal.4th 959, 1003.) “On review, if the juror’s statements are equivocal or

13

conflicting, the trial court’s determination of the juror’s state of mind is binding.

If there is no inconsistency, we will uphold the court’s ruling if it is supported by

substantial evidence. [Citations.]” (People v. Carpenter (1997) 15 Cal.4th 312,

357 (Carpenter).)

Defendant challenges the excusal of Prospective Jurors U. and R. While U.

ultimately stated, in response to a question from defense counsel, that he could

vote to impose the death penalty “in the right case,” U. earlier gave sharply

conflicting statements,2 and so the trial court’s determination of U.’s state of mind,

i.e., that U. would be substantially impaired in the performance of his duties as a

juror in this case, is binding on us. (Carpenter, supra, 15 Cal.4th at p. 357.)

By contrast, almost all of Prospective Juror R.’s answers to the questions

asked in the juror questionnaire and on voir dire with regard to his views on the

death penalty were entirely unexceptionable.3 Only two of his answers were

problematic, and R. claimed that he had been confused when he gave those

answers. Nevertheless, the trial court excused him, finding that he was


2

For example, in his juror questionnaire, U. stated he was “[a]gainst capital

punishment,” and, in response to a follow-up question, U. stated he would “always
vote for life without parole and reject death” if a defendant were “found guilty of
intentional, deliberate first degree Murder and at least one of the ‘special
circumstances’ were found to be true.”
3

R. indicated on the juror questionnaire that he strongly disagreed with the

statement that anyone who intentionally kills another should never get the death
penalty, explaining that the propriety of imposing the death penalty depended on
the events leading up to and surrounding the killing. At the beginning of the voir
dire, R. responded affirmatively when asked by the court whether he felt that “the
death penalty has a place in our society today as a punishment for special
circumstance Murder.” R. again responded affirmatively when asked by the court
whether he could personally impose the death penalty if he felt it was factually
warranted. R. also responded affirmatively when asked by the court whether, in a
case involving murder in the course of forcible rape, burglary and robbery, he
could vote for either the death penalty or life imprisonment without possibility of
parole, depending on the evidence.

14

substantially impaired. The court did so because it did not find R.’s explanations

credible. Based on R.’s “body language,” on “something that doesn’t come out in

the transcript,” the court concluded R. was tailoring his answers to stay on the

jury.

Both of R.’s problematic statements had to do with the standard of proof to

which he would hold the prosecution, i.e., whether he would require defendant’s

guilt to have been proven to an absolute certainty before he would vote to impose

the death penalty. On the juror questionnaire, in response to a question with

regard to his “general feelings” concerning the death penalty, R. stated that it

should be imposed only when there is “no doubt” as to a defendant’s guilt.

However, in response to a follow-up question asked by the prosecutor on voir dire,

R. sought to clarify that statement by saying that he understood that the

prosecutor’s burden in the guilt phase of the trial would be proof beyond a

reasonable doubt, and that he further understood that proof beyond a reasonable

doubt did not mean proof beyond all possible doubt.

The following colloquy then occurred:

“[Prosecutor]: Now, would you require at the penalty phase before you

brought in a verdict of death[,] would you require absolute certainty that the

defendant committed the crime?

“[Prospective Juror R.]: Could you rephrase that again?

“[Prosecutor]: Yes, certainly. I know it’s kind of confusing and I know it’s

the first time you have been confronted with this. [¶] But the guilt phase is the

proof beyond a reasonable doubt stage. . . . In [the] penalty phase, as the judge

indicated to you, we don’t give you a standard of proof. It’s more open-ended

than that. [] And we tell you and the other 11 jurors to go back and discuss the

case and come out and tell us your recommendation of death or life without the

possibility of parole. [¶] My question to you is: Before you return a verdict of

15

death, would you require that I as the prosecutor prove my case beyond all

possible doubt as you’ve indicated—appear to indicate here?

“[R.]:

Yes.

“[Prosecutor]: Would you require that?

“[R.]:

Yes.

“[Prosecutor]: Okay. Thank you very much.”

In response to follow-up questions by defense counsel, R. said that he

understood “that it’s impossible to absolutely prove anything. That’s why the

word reasonable comes in.”

At the conclusion of voir dire, the court observed: “I am a little confused

now because as to the questions of one attorney you’ve given an answer one way

and [to] the questions of the other attorney you have given just the opposite

[answer]. [¶] In answer to the prosecutor’s question, you said you would require

in order to return a death verdict . . . that the person’s guilt be proved to an

absolute certainty.

“[R.]: When he asked me that question, I was thinking he meant . . .

beyond a reasonable doubt. The terminology is a little confusing, to tell you the

truth.

“The court: It certainly is.

“[R.]: I am trying to understand, give you the honest answer that I feel, but

it’s a little confusing to me.

“The court: All right. Keeping in mind that nothing can be proved to an

absolute certainty.

“[R.]:

Right.

“The court: Are you saying that even though you are not convinced to an

absolute certainty of someone’s guilt that you still could[,] if the facts warranted

it[,] you could return the death penalty?

16

“[R.]:

Yes.”

The prosecutor then challenged R. for cause, arguing that R. was

substantially impaired, that he had indicated he would require proof to an absolute

certainty before he would return a death penalty verdict, and that his explanations

to the contrary simply showed that he was “savvy enough” to give answers he

thought would keep him on the jury.

The court accepted the prosecutor’s argument and excused R. “My feeling

is he got dragged back across the line. Quite frankly, I have the feeling from the

body language[,] the way the questions were answered[,] something that doesn’t

come out in the transcript[,] that he was trying to tailor his answers to come out

with the correct answers. I am going to sustain the challenge of substantial

impairment.”

The explanations that Prospective Juror R. offered for his conflicting and

problematic answers may well have been entirely sincere. However, “[o]n review,

if the juror’s statements are equivocal or conflicting, the trial court’s determination

of the juror’s state of mind is binding.” (Carpenter, supra, 15 Cal.4th at p. 357.)

It is sufficient that the trial judge is left with the definite impression that a

prospective juror would be unable to faithfully and impartially apply the law in the

case before the juror. (Rodrigues, supra, 8 Cal.4th at p. 1147; People v. Hill,

supra, 3 Cal.4th at p. 1003.) No error appears in the excusal of R.

B. Guilt Phase Issues

1. Kelly Hearing

Defendant’s next assignment of error is related to a question we decided in

People v. Venegas (1998) 18 Cal.4th 47 (Venegas). In Venegas, “we recognized

the general scientific acceptance of restriction fragment length polymorphism

(RFLP) analysis as a means of comparing the DNA in a known sample (e.g., blood

from a suspect) with the DNA in a questioned sample (e.g., blood or semen taken

17

from a crime scene). Venegas further found general scientific acceptance of the

modified ceiling principle, recommended for use by the National Research

Council (NRC) in 1992,[4] as a forensically reliable method of calculating the

statistical probabilities of a match between the evidentiary samples and the DNA

of an unrelated person chosen at random from the general population. We

determined that calculations made under the modified ceiling approach—which

modifies the product rule[5] in such a way as to select random match probability

figures most favorable to the accused from the scientifically based range of

probabilities—qualify for admission under the Kelly test.[6] (Venegas, supra, 18

Cal.4th at pp. 84-90.)” (People v. Soto (1999) 21 Cal.4th 512, 514-515 (Soto).)

In this case, in ruling on the question whether the prosecution had carried

its burden under Kelly, supra, 17 Cal.3d at page 30, of establishing that RFLP

analysis and the modified ceiling principle were generally accepted in the

scientific community, the trial court, at the request of the prosecution, took judicial

notice of, among other things, the testimony given by an expert witness, Dr.


4

“See National Research Council (1992) DNA Technology in Forensic

Science (hereafter 1992 NRC Report) at pages 91-93.”
5

“The product rule states that the probability of two events occurring

together is equal to the probability that the first event will occur multiplied by the
probability that the second event will occur. (See Kaye, DNA Evidence:
Probability, Population Genetics, and the Courts
(1993) 7 Harv. J.L. & Tech. 101,
127-128 (hereafter Kaye, DNA Evidence); Freund & Wilson, Statistical Methods
(1993) p. 62.) Coin-tossing is illustrative—the probability of two successive coin
tosses resulting in ‘heads’ is equal to the probability of the first toss yielding heads
(50 percent) times the probability of the second toss yielding heads (50 percent),
or 25 percent. (See Johnson, Elementary Statistics (4th ed. 1984) p. 143.)”
6

“See People v. Kelly (1976) 17 Cal.3d 24, 30 (Kelly) and Frye v. United

States (D.C. Cir. 1923) 293 F. 1013 . . . . In Daubert v. Merrell Dow (1993) 509
U.S. 579, the high court held, as a matter of federal jurisprudence, that Frye had
been superseded by the Federal Rules of Evidence. The foundational requirement
for admission of new scientific evidence in California is now referred to as the
Kelly test or rule. (People v. Leahy (1994) 8 Cal.4th 587, 612.)”

18

Patrick Michael Conneally, in an earlier, unrelated trial in the same county (Los

Angeles). This, defendant contends, was error. In making a Kelly ruling,

defendant argues, a trial court may not, consistent with the hearsay rule and the

constitutional right of confrontation, take judicial notice of expert testimony given

in another case.

We need not reach the question whether it is error for a trial court to take

judicial notice, over objection, of an expert’s testimony in another Kelly hearing,

for any error in this regard was clearly harmless here.

First and foremost, the trial court’s conclusion—that RFLP analysis and the

modified ceiling principle were generally accepted in the scientific community by

the time the hearing was held in this case—was correct. In Venegas, we held that

RFLP analysis and the modified ceiling principle were generally accepted in the

scientific community in 1992, when the trial court in that case made its Kelly

ruling (Venegas, supra, 18 Cal.4th at p. 57), and this case was tried two years

later. Second, when the trial court granted the prosecution’s motion that it take

judicial notice of Dr. Conneally’s testimony in the earlier case, the grant was

expressly conditioned on defendant’s having an opportunity to call and cross-

examine Dr. Conneally. Defendant chose not to take advantage of that

opportunity. Therefore, defendant effectively waived the confrontation issue.

Finally, had the trial court declined to take judicial notice of Dr. Conneally’s

testimony in the earlier case, and thus forced the prosecution to call him in this

case, there is no reason to believe his testimony would have differed in any

significant respect from his earlier testimony. Defense counsel apparently came to

that conclusion for he declined the trial court’s invitation to call Dr. Conneally and

cross-examine him.

Defendant

contends

he

received ineffective assistance of counsel because

his counsel did not call live witnesses to refute the expert Kelly testimony that was

19

given in the other case and judicially noticed in this case. Defense counsel gave a

coherent explanation as to why he chose not to call live witnesses—he was

satisfied that the evidence already in the record adequately demonstrated a lack of

consensus in the scientific community. (We reiterate that this case was tried four

years before we held in Venegas, supra, 18 Cal.4th 47, that RFLP analysis and the

modified ceiling prinicple were generally accepted in the scientific community.)

Accordingly, defendant’s ineffective assistance of counsel claim lacks merit. (See

People v. Bolin (1998) 18 Cal.4th 297, 334 [whether to call certain witnesses is a

matter of trial tactics, unless the decision results from unreasonable failure to

investigate].)

The remaining arguments defendant makes with regard to the Kelly

question also lack merit.

Defendant contends the trial court “candidly admitted that it had not even

read” the 1992 NRC Report.7 To the contrary, the record reveals the court had

reviewed the report before making its ruling.

Defendant contends the trial court did not understand that in a Kelly

hearing, the prosecution has the burden of proving that a new scientific technique

has gained general acceptance in a particular field. The source of the confusion

here was the trial court’s statement that it would “bifurcate” the Kelly hearing,

looking first to the evidence offered by the prosecution to see whether, standing on

its own, it demonstrated the requisite general acceptance, and then the burden

would shift to the defense to rebut that evidence. However, as the Attorney

General points out, the court clarified that it did not mean that “in any way I feel

the burden has shifted to the defendant. The burden has always been [on] the

People.” Rather, by bifurcating the process, the court was merely trying to

7

See footnote 5, ante.

20

expedite it, by pointing out if the prosecution had failed to make a prima facie case

as to general acceptance, there would have been “no need for the defense to go any

further.” However, having concluded that the prosecution had carried its burden

of proving general acceptance, the court wished the defense to understand that,

“[f]rom a practical standpoint, you are faced with a situation of going forward or

losing the issue.”

2. Exclusion of Defense Evidence

Defendant contends the trial court erred by precluding him from testifying

that he “had an extensive history of hearing voices, flashbacks, and blackouts.”

The testimony he was precluded from giving would have been critical, defendant

asserts, to the question whether he was capable of forming the specific intent to

rape Mrs. Miller. (See post, at p. 27.) Without the precluded testimony, defendant

contends, the testimony he was permitted to give—that he experienced similar

symptoms when he murdered Mrs. Miller—appeared “both contrived and

fabricated, and as such was likely dismissed by the jury.” Therefore, defendant

argues, preclusion of the testimony violated his Fifth, Sixth, and Fourteenth

Amendment rights by “den[ying] him the opportunity to present a complete

defense to the capital charge.”

Defendant’s proposed testimony with regard to his alleged history of

hearing voices, experiencing flashbacks, and suffering blackouts was jumbled

deep inside an extraordinary grab bag of a proffer that included such disparate

allegations as that defendant “attended many schools” and that “Aunt Jackie shot

herself to death.”8 The prosecution objected that defendant was seeking to


8

Defense counsel: “I would just like to generally outline for the record the

areas that I would like to get into that at this point at least the court has barred me
from getting into.

(footnote continued on next page)

21

introduce, through his own testimony, family and personal history that suggested

he was mentally ill, and so could not have formed the requisite specific intent to

rape Mrs. Miller, without any foundational testimony from a mental health

professional as to the relevance of his testimony. The trial court inquired whether

defense counsel intended to call “a psychiatrist, psychologist, or whatever to

discuss those matters.” Defense counsel stated he did not. Based on defense

counsel’s representation, the trial court excluded defendant’s proffered testimony.

There was no error. Defendant testified he heard voices after he murdered

and raped Mrs. Miller. He did not testify that the voices told him to attack her.

Therefore, any prior history of hearing voices would not have been relevant to the

question whether he specifically intended to rape Mrs. Miller.

Moreover, any error in this regard was harmless. As the Attorney General

points out, Dr. Thomas, the court-appointed psychiatrist, interviewed defendant at




“The problems at school. [Defendant] was in special education. Attended

many schools. . . .


“Drug use; marijuana at 15, alcohol at 15; cocaine about 25 times; some

evidence of LSD; family history of mental illness; Aunt Jackie shot herself to
death; grandfather had delusions, ran down the street with a gun; and a cousin and
a son on ritalin for A.D.D, attention deficit disorder.


“No food; no electricity many times because the family was spending the

money on alcohol; both parents were alcoholics; a series of beatings with
extension cords; brother who was killed, and the defendant saw the brother in the
street; a mother who was promiscuous.


“And I believe the defendant already testified to, when he was about seven

or eight, opening the door and seeing her in bed with another man.


“Other incidents of other men, dizzy spells, blackouts, hearing voices,

screaming at night—this is all the defendant—and also being told by his mother
that . . . his father was not really his father.


“Also the fact that he was afraid to discuss his problems with others

because he felt cut off already, and he felt that would make him more cut off.


“And then the incidents which even the D.A. wants to get into, the incidents

with both Glynnis and Pam, and particularly Pam’s mother; the drug use which all
led to the explosion.”

22

least three times, and he reviewed reports on defendant’s background prepared by

defendant’s relatives, as well as the reports of numerous experts who had

examined defendant. Therefore, if defendant had a history of flashbacks and

blackouts, Dr. Thomas should have been aware of it. Accordingly, the fact that

Dr. Thomas, when called by the defense in the penalty phase, failed to mention

any such history suggests that defendant’s proposed testimony concerning such a

history would have been a recent fabrication.

3. Alleged Ineffective Assistance of Counsel

Defendant

contends

his

trial counsel was ineffective because he failed to

call his court-appointed psychiatrist, Dr. Thomas, in the guilt phase of the trial to

testify as to whether defendant had the capacity to form the specific intent to rape

Mrs. Miller. “Counsel’s failure to put the court-appointed expert on the stand after

[defendant] himself had been prohibited from presenting testimony about his past

mental condition was incomprehensible and indefensible.” The contention lacks

merit.

“ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in

examining a claim of ineffective assistance of counsel (see People v. Wright

(1990) 52 Cal.3d 367, 412), and there is a “strong presumption that counsel’s

conduct falls within the wide range of reasonable professional assistance.” ’

(People v. Lucas (1995) 12 Cal.4th 415, 436-437, quoting Strickland v.

Washington [(1984)] 466 U.S. [668,] 689.) ‘[W]e accord great deference to

counsel’s tactical decisions’ (People v. Frye (1998) 18 Cal.4th 894, 979), and we

have explained that ‘courts should not second-guess reasonable, if difficult,

tactical decisions in the harsh light of hindsight’ (People v. Scott (1997) 15 Cal.4th

1188, 1212). ‘Tactical errors are generally not deemed reversible, and counsel’s

decisionmaking must be evaluated in the context of the available facts.’ (People v.

Bolin (1998) 18 Cal.4th 297, 333.) [¶] In the usual case, where counsel’s trial

23

tactics or strategic reasons for challenged decisions do not appear on the record,

we will not find ineffective assistance of counsel on appeal unless there could be

no conceivable reason for counsel’s acts or omissions. (People v. Earp[, supra,]

20 Cal.4th [at p.] 896; see also People v. Fosselman (1983) 33 Cal.3d 572, 581 [on

appeal, a conviction will be reversed on the ground of ineffective assistance of

counsel ‘only if the record on appeal affirmatively discloses that counsel had no

rational tactical purpose for his act or omission’].)” (People v. Weaver (2001) 26

Cal.4th 876, 925-926 (Weaver).)

As the Attorney General points out, the record suggests defense counsel

may have had several sound tactical grounds, of which we will mention only two,

for not calling Dr. Thomas in the guilt phase of the trial. First, Dr. Thomas’s

diagnosis of defendant was based on, among other things, information in

defendant’s probation report that he had raped and threatened to kill Kim. Had the

defense called Dr. Thomas in the guilt phase, the prosecution would have been

entitled to cross-examine him regarding the foundation for his opinion. (See Evid.

Code, § 721, subd. (a); People v. Coddington (2000) 23 Cal.4th 529, 614-615.)

Defense counsel may well have concluded, reasonably, that the potential benefit of

Dr. Thomas’s testifying in the guilt phase, namely, making defendant’s self-

serving statements regarding his personal and familial history admissible, was

outweighed by the damage that would ensue from the revelation of defendant’s

attack on Kim. Second, defense counsel may have decided against calling Dr.

Thomas in the guilt phase because the revelation of statements defendant made to

Dr. Thomas would have undermined the credibility of defendant’s own guilt phase

testimony. For example, defendant initially told Dr. Thomas that he had

consensual sex with Mrs. Miller, while he testified at trial that he had no memory

of having sex with her.

24

4. Prior Crimes Evidence

Defendant contends the trial court erred by admitting, in the guilt phase of

the trial, evidence relating to defendant’s prior offenses associated with the rape of

Dorothea H. in 1985. Defense counsel twice expressly withdrew his objections to

the introduction of the evidence. Therefore, defendant has waived this issue on

appeal. (See, e.g., People v. Robertson (1989) 48 Cal.3d 18, 44 [“Defendant,

having withdrawn his objection to the evidence, cannot now complain of its

admission”].)

Defendant

contends

that, because of the waiver, he was deprived of the

effective assistance of counsel guaranteed by the Sixth Amendment to the United

States Constitution and by article I, section 15 of the California Constitution. This

contention also lacks merit. Defense counsel stated on the record that he was,

after extensive discussion with defendant, withdrawing his objections for a tactical

reason: The other crimes evidence would be admissible in the penalty phase of the

trial and, if the jury heard it for the first time then, it might have a “devastating

effect on my chances” of convincing the jury to return a verdict of life

imprisonment without the possibility of parole. We will not “ ‘second-guess

reasonable, if difficult, tactical decisions in the harsh light of hindsight.’ (People

v. Scott[, supra,] 15 Cal.4th [at p.] 1212).” (Weaver, supra, 26 Cal.4th at p. 926.)

Citing

People v. Frank (1985) 38 Cal.3d 711, defendant argues that,

because this is a capital case, we should disregard counsel’s waiver of this issue

and, instead, examine the whole record to determine whether there has been a

miscarriage of justice. (See id. at p. 729, fn. 3 [“On an appeal from a judgment

imposing the penalty of death, a technical insufficiency in the form of an objection

will be disregarded and the entire record will be examined to determine if a

miscarriage of justice resulted”].) The argument is meritless. “We previously

have noted that ‘[t]he lead opinion in Frank was not signed by a majority of the

25

court, and although later cases from this court have never disapproved its

language, they have cited it only for the purpose of distinguishing it.’ (People v.

Diaz (1992) 3 Cal.4th 495, 527.)” (People v. Williams (1997) 16 Cal.4th 153,

209.) Moreover, defendant’s reliance on the Frank footnote is misplaced, as his

waiver consisted not merely in raising technically insufficient objections, but in

expressly withdrawing his objections. (See Williams, at p. 209; People v. Poggi

(1988) 45 Cal.3d 306, 331.)

Defendant contends his counsel was “prompted” to withdraw his objection

to the other crimes evidence because the trial court improperly deferred ruling on

the admissibility of the evidence under Evidence Code section 352. The trial court

did not err in deferring its ruling under Evidence Code section 352 until the

prosecution had presented the rest of its evidence. (See People v. Williams (1988)

44 Cal.3d 883, 912-913.) Moreover, the fact that the court deferred its ruling was

really irrelevant to the concern expressed by defense counsel in withdrawing his

objection to the admissibility of the evidence, namely, that it might have more

impact on the jury if it were heard by them for the first time in the penalty phase.


5. Instructions Regarding the Specific Intent for Rape Felony
Murder


Defendant contends the instructions given with regard to rape and rape

felony murder were “conflicting, inaccurate, and confusing,” with the result that

defendant was deprived of his rights under the Fifth, Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution, as well as the corresponding

provisions of the California Constitution.

The jury found defendant guilty of first degree murder and found true the

special circumstance that the murder was committed during the commission of a

rape. The jury’s first degree murder finding could have been based on one or both

of the following theories: (1) that the murder was willful, deliberate and

26

premeditated; or (2) that it was committed during the perpetration of, or attempt to

perpetrate, rape, i.e., that it was rape felony murder. (See § 189.)

Under the felony-murder doctrine, the perpetrator must have the specific

intent to commit the underlying felony. (Berryman, supra, 6 Cal.4th at p. 1085.)

Thus, although rape itself is a general intent crime, the jury here was required to

find that defendant had the specific intent to rape in order to find him guilty of first

degree felony murder. (People v. Osband (1996) 13 Cal.4th 622, 685-686.)

The jury was so instructed. In accordance with CALJIC No. 8.21, the court

instructed the jury: “The unlawful killing of a human being, whether intentional,

unintentional or accidental, which occurs during the commission or attempted

commission of a crime as a direct causal result of Burglary, Rape and/or Robbery

is murder of the first degree when the perpetrator had the specific intent to commit

such crime. [¶] The specific intent to commit Burglary, Rape and/or Robbery and

the commission or attempted commission of such crime must be proved beyond a

reasonable doubt.”

The lesson of the instruction that is pertinent to this discussion—that rape

felony murder requires a specific intent to rape—was reinforced by a modified

version of CALJIC No. 4.21.1 on the significance of voluntary intoxication for

general and specific intent crimes. The instruction given provided in pertinent

part: “In order to find the defendant guilty of First Degree Murder on a Felony-

Murder theory, of which the defendant is accused in Count[] 1, a necessary

element is the existence in the mind of the defendant of the specific intent to

commit the crime of Burglary, Rape and/or Robbery.”

Defendant contends that the jury was likely confused by having been

instructed that while rape is a general intent offense, rape felony murder requires

a specific intent to rape. We rejected much the same contention in People v.

Ramirez (1990) 50 Cal.3d 1158. “In accord with the general CALJIC

27

instructions, the trial court instructed the jury that rape and sodomy are general

intent crimes, but that rape-felony-murder requires a finding that defendant had

the specific intent to commit rape. Although defendant does not contend that

the instructions erroneously stated the applicable legal principles, he maintains

that the combination of general and specific intent elements could only have

been confusing to the jury, requiring ‘proof of contradictory mental states.’ The

Attorney General responds that the instructions were not misleading and did not

require proof of contradictory mental states, but rather accurately set forth the

different elements of the separate crimes with which defendant was charged. [¶]

The Attorney General’s position is well taken. The instructions did not require

proof of contradictory mental states. Under the instructions, if the jury found

that defendant did not act with the specific intent to rape, it could have found

him guilty of rape but not of rape-felony-murder. If the jury found that

defendant did act with the specific intent to rape, it could have found him guilty

of both rape and rape-felony-murder. There was no inconsistency in the

instructions.” (Id. at pp. 1177-1178, fn. omitted.)

Moreover, both the prosecutor and defense counsel in their arguments to

the jury emphasized repeatedly that rape felony murder requires a specific intent

to rape, and a question asked by the jury revealed that the jurors understood this

point perfectly well.

Defendant next contends that the modified version of CALJIC No. 4.21.1

given here told the jury, in effect, that voluntary intoxication or mental disorder

could not be considered in determining whether defendant had the specific intent

to commit rape. However, the language with which defendant specifically finds

fault was not included in the instruction given. Instead, the jury was instructed

that rape felony murder requires the specific intent to rape, and that where

specific intent is an essential element of a crime, the defendant’s voluntary

28

intoxication or mental disorder should be considered in determining whether he

possessed the requisite specific intent.

Again, in his arguments to the jury, the prosecutor emphasized that

voluntary intoxication and mental disease could negate the specific intent

required for rape felony murder. “You got instructions on voluntary intoxication

and the effect that could have on lessening a mental state, on lessening a specific

intent. [¶] If you are so high you don’t know what you’re doing or you couldn’t

form an intent to kill or an intent—specific intent to burglarize or specific intent

to rape for the purposes of felony rape murder, that can make—that can knock

out that specific intent.” “Let’s make it real clear. He raped her and he killed

her. We know he raped her. Did he have the specific intent to rape her. If yes,

it’s felony murder, first degree, just on that basis, and the special circumstance of

rape is true. [¶] The only way to get rid of that specific intent is . . . with the . . .

mental defect or disorder or the voluntary intoxication. Neither flies.”

Moreover,

defendant

waived any objection to the modified version of

CALJIC No. 4.21.1 given here by expressly agreeing to the modifications.9 (See

Rodrigues, supra, 8 Cal.4th at p. 1192 [“[I]f defendant believed the instruction

was unclear, he had the obligation to request clarifying language”].)

Finally, defendant contends the trial court should have instructed the jury

that the specific intent to rape must be formed before or during the act of violence.

The claim lacks merit. “[A]n after-formed intent instruction is a pinpoint


9

As the Attorney General points out, during discussion of the proposed

instructions, defense counsel expressed his concern that the standard version of
CALJIC No 4.21.1 failed to make it clear that voluntary intoxication could negate
the specific intent required for rape felony murder. After considering a
modification suggested by defense counsel, the court suggested the modification
actually given. Defense counsel stated that he “would be happy to use the court’s”
instruction and that the instruction was “agreeable.”

29

instruction that a trial court has no obligation to give when neither party has

requested that it be given. (People v. Webster (1991) 54 Cal.3d 411, 443.)”

(People v. Silva (2001) 25 Cal.4th 345, 371.) Moreover, the trial court here gave

the standard jury instruction on felony murder and burglary, rape, and robbery,

which stated that a killing “which occurs during the commission or attempted

commission of a crime as a direct causal result of Burglary, Rape and/or Robbery

is murder of the first degree when the perpetrator had the specific intent to commit

such crime.” A reasonable juror would necessarily have understood from this

instruction that defendant was guilty of rape felony murder only if the intent to

rape was formed before the murder occurred. (Silva, at p. 372; People v. Hayes

(1990) 52 Cal.3d 577, 629.)

6. Verdict Form for Rape-felony-murder Special Circumstance

The jury found true the allegation that “[t]he crime of murder of the first

degree of which you have found the defendant guilty was a murder committed in the

commission of rape.” Defendant contends the verdict form was fatally ambiguous

because it is unclear whether the jury was finding defendant guilty of first degree

murder on a rape-felony-murder theory (§ 189), or whether it was finding true the

rape-felony-murder special circumstance (§ 190.2, subd. (a)(17)(C)).

As the Attorney General points out, defendant waived this issue by failing

to object to the form of the verdict when the court proposed to submit it or when

the jury returned its finding. (People v. Bolin, supra, 18 Cal.4th at p. 330.)

In any event, “ ‘[t]echnical defects in a verdict may be disregarded if the

jury’s intent to convict of a specified offense within the charges is unmistakably

clear, and the accused’s substantial rights suffered no prejudice. [Citations.]’ ”

(People v. Bolin, supra, 18 Cal.4th at p. 331.) Here, the jury’s intentto find true

the rape-felony-murder special circumstanceis unmistakably clear because the

jury was instructed: “If you find the defendant in this case guilty of murder of the

30

first degree, you must then determine if one or more of the following special

circumstances are true or not true: Murder during the commission of a Burglary,

Rape and/or Robbery. . . . You will state your special finding as to whether this

special circumstance is or is not true on the form that will be supplied.” In his

closing argument the prosecutor reiterated that the jury was to indicate on the

verdict form whether it found the special circumstances allegations true or not

true. Finally, in its verdict in the penalty phase of the trial, the jury stated that it

had “found the special circumstance true.”

Moreover, any error in this regard was harmless beyond a reasonable doubt.

The jury found in its verdict that defendant committed the murder in the

commission of rape. To find the rape-felony-murder special-circumstance

allegation true, they needed to find that defendant had an independent purpose for

the commission of the rape, that is, that the commission of the rape was not merely

incidental to the murder. (People v. Mendoza (2000) 24 Cal.4th 130, 182.) The

evidence is overwhelming that defendant had an independent purpose to rape Mrs.

Miller. He tied her hands and feet, had intercourse with her, and ejaculated inside

her. He had previously done the same thing to Mrs. H., whom he did not kill.

Clearly, defendant obtained perverse sexual gratification from raping the mothers

of his girlfriends, whether or not he killed them. There can be no reasonable doubt

that the rape of Mrs. Miller was not merely incidental to her murder. (See People

v. Williams, supra, 44 Cal.3d at p. 929 [“[T]he omission of an instruction that an

independent felonious purpose is an element of the kidnapping special

circumstance was harmless beyond a reasonable doubt since no rational jury could

have failed to find that a purpose other than and in addition to killing [the victim]

precipitated the kidnapping”].)

31

C. Penalty Phase Issues

1. Future Dangerousness

James Park, a defense expert witness, testified that, based on his review of

defendant’s prison records, defendant was not in his opinion likely to be violent if

again sentenced to prison. On direct examination, defense counsel elicited the fact

that defendant had been involved in one fight while previously imprisoned.

However, defendant contends the trial court prejudicially erred in overruling his

objection to the prosecution’s cross-examination of the expert. The cross-

examination concerned three other disciplinary infractions defendant committed

while in prison, which are characterized by defendant as a “yelling match in a food

line with another inmate that never escalated into a fight” and two attempts by

defendant “to manufacture a crude form of alcohol in his cell.”

“While the prosecution is prohibited from offering expert testimony

predicting future dangerousness in its case-in-chief ([People v.] Adcox [(1988)] 47

Cal.3d [207,] 257), it may explore the issue on cross-examination or in rebuttal if

defendant offers expert testimony predicting good prison behavior in the future.

(People v. Gates [(1987)] 43 Cal.3d [1168,] 1211]; People v. Coleman (1989) 48

Cal.3d 112, 150.) As we said in Gates: ‘If the defense chooses to raise the subject,

it cannot expect immunity from cross-examination on it.’ ([Gates, supra,] 43

Cal.3d at p. 1211.)” (People v. Morris (1991) 53 Cal.3d 152, 219, overruled on

another point by People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1; see People

v. Seaton (2001) 26 Cal.4th 598, 679.)

Defendant is wrong when he says the three incidents were irrelevant to the

question whether he was likely to be violent if he were again sentenced to prison.

At first, the expert minimized the incident in the food line, characterizing it as

“childish.” “[Defendant] wanted another man’s crackers and somehow they

wouldn’t give it to him, and he ended up yelling a lot. [¶] And again, he was kind

32

of young and nothing developed other than there was kind of a shouting match.”

However, he later admitted that when defendant started yelling, other inmates

joined in, and a guard had to intervene because of the danger that the incident

would escalate into violence. Defendant’s attempts to make alcohol in his cell

were also clearly relevant because defendant’s murder of Julia Miller was

preceded by alcohol, as well as drug, abuse, and there was expert testimony that

defendant had a mental illness in which drug and alcohol abuse was a “major

exacerbating factor, meaning those things made the mental illness worse.”

Defendant contends that the court compounded its asserted error in

permitting this line of cross-examination by precluding the defense expert from

testifying that, if defendant were sentenced to imprisonment without possibility of

parole, he would be confined in such a secure setting that he would be unlikely to

engage in violence. The contention lacks merit. “[E]vidence of the conditions of

confinement that a defendant will experience if sentenced to life imprisonment

without parole is irrelevant to the jury’s penalty determination because it does not

relate to the defendant’s character, culpability, or the circumstances of the offense.

(People v. Daniels (1991) 52 Cal.3d 815, 876-878; People v. Thompson (1988) 45

Cal.3d 86, 138-139.) Its admission is not required either by the federal

Constitution or by Penal Code section 190.3. (People v. Daniels, supra, 52 Cal.3d

at pp. 876-878; People v. Thompson, supra, 45 Cal.3d at pp. 138-139.)” (People

v. Quartermain (1997) 16 Cal.4th 600, 632.) “Moreover, ‘[d]escribing future

conditions of confinement for a person serving life without possibility of parole

involves speculation as to what future officials in another branch of government

will or will not do. [Citation.]’ (People v. Thompson, supra, 45 Cal.3d at p. 139.)

Although defendant argues that ‘this logic is incorrect and the matter should be

revisited, at least as to the question of the admissibility of evidence about how a

life without parole prisoner would live,’ he advances no persuasive reason as to

33

why this is so.” (People v. Majors (1998) 18 Cal.4th 385, 416.) We have been

given no reason to reconsider our holdings in this regard. (See People v. Ervin

(2000) 22 Cal.4th 48, 97.)

2. Alleged Prosecutorial Misconduct

Defendant

contends

the

prosecutor committed misconduct insofar as he

implied that defendant was a member of a prison gang.

The alleged misconduct occurred during the prosecutor’s cross-examination

of the defense expert witness, Mr. Park. On direct examination, Mr. Park testified

that defendant’s records indicated that he had been disciplined for a fight while he

was previously imprisoned, and that the person with whom defendant had fought

was a gang member. “[Defendant] got into a fight with a prison gang member

who—somebody who was identified by the staff as a gang member, and

[defendant] was disciplined, not severely, but disciplined for that.” On cross-

examination, the prosecutor, after he had Mr. Park refresh his recollection by

reviewing the disciplinary report on the fight, asked Mr. Park: “Now, actually

what it says here is that Mr. Jones admits the charges and that he stated that he

started the fight over Crip business. [¶] Isn’t that what it says here?” Mr. Park

responded, “That was his statement, yes, sir.” The prosecutor pursued the point.

“Okay. So doesn’t that—I mean you said he got in a fight with another gang

member. [¶] Wouldn’t that indicate that he actually was fighting over gang

business that he was involved in?” Mr. Park demurred. “Not necessarily.

Because Mr. Jones would have to guard his reputation. He could have been

fighting with this alleged Crip for a lot of reasons and he is not going to say.”

Later, the prosecutor asked, “And isn’t it true in your experience that gang

members actually get involved in a greater number of violent altercations than

other inmates in the facility?” Again, Mr. Park demurred. “I couldn’t say that

independently now.”

34



It is, of course, the general rule that a defendant cannot complain on appeal

of misconduct by a prosecutor at trial unless in a timely fashion—and on the same

ground—the defendant made an assignment of misconduct and requested that the

jury be admonished to disregard the impropriety. (People v. Ayala (2000) 23

Cal.4th 225, 284; Berryman, supra, 6 Cal.4th at p. 1072; People v. Ashmus (1991)

54 Cal.3d 932, 976 (Ashmus).) Defendant concedes that defense counsel did not

make a timely objection to the questions of which he now complains. However,

defendant notes that defense counsel later requested that “all the testimony be

stricken from the cross-examination about that,” and defendant argues that that

referred to the prosecutor’s cross-examination of Mr. Park with regard to

defendant’s fight with the prison gang member. To the contrary, viewed in

context, defense counsel’s motion to strike was directed at questions asked by the

prosecutor suggesting that a person imprisoned for crimes of violence is more

likely than a person imprisoned for nonviolent offenses to commit acts of violence

while in prison. It is true that the rule in question does not apply when the harm

could not have been cured. (Ashmus, at p. 976; see Memro, supra, 11 Cal.4th at

pp. 873-874.) Such a situation, however, was not present here; any harm

threatened was certainly curable.

Defendant contends that defense counsel was ineffective in failing to

preserve this issue for appeal. As the record on appeal does not reveal why

defense counsel chose not to object to this line of questioning, this ineffective

assistance of counsel claim would be more appropriately raised in a habeas corpus

petition. (People v. Hart (1999) 20 Cal.4th 546, 619, fn. 21.)

Defendant further contends that, in referring to defendant as having fought

with “another gang member,” the prosecutor falsely implied that the disciplinary

report on this incident indicated that defendant, as well as the prisoner with whom

he fought, was a member of a prison gang. “[T]he inference raised by the line of

35

questioning was unwarranted—there was no evidence of gang membership other

than the insinuations of the prosecutor.” Again, this is a matter better raised on

habeas corpus because the disciplinary report in question was not entered into

evidence in this trial.

3. Privilege Against Self-Incrimination

Defendant

contends

that

the trial court, by ordering the defense to provide

the prosecution with unredacted copies of the reports prepared by the court-

appointed psychiatrist, Dr. Thomas, before the doctor testified for the defense in

the penalty phase of the trial, violated defendant’s privilege against self-

incrimination under the Fifth, Sixth and Fourteenth Amendments to the United

States Constitution, as well as the work-product and attorney-client privileges.

Prior to the penalty phase of the trial, defense counsel gave the prosecutor

copies of reports that had been prepared by Dr. Thomas. The defense had redacted

from Dr. Thomas’s reports statements that defendant had made to the doctor, as

well as conclusions that the doctor had drawn from defendant’s statements to him.

The prosecution moved that the defense be ordered to provide the prosecution with

unredacted copies of Dr. Thomas’s reports so that he might be effectively cross-

examined. The defense opposed the motion on the ground that such an order

would violate defendant’s privilege against self-incrimination, his right to counsel,

and the work-product and attorney-client privileges. Before ruling, the court

inquired whether the defense “definitely” intended to call Dr. Thomas as a witness

in the penalty phase, and the defense responded that it did. The court then ordered

the defense to turn over the unredacted reports, explaining that providing them to

the prosecution prior to Dr. Thomas’s testimony would obviate the necessity of

granting the prosecution a continuance to review the unredacted reports after Dr.

Thomas testified. Dr. Thomas subsequently testified as a defense witness.

36



There was no error. By injecting his mental state as an issue in the case,

and calling Dr. Thomas to testify, defendant waived any challenge to the contents

of the interviews on which Dr. Thomas relied. (See People v. Coleman, supra,

48 Cal.3d at pp. 151-152.) Moreover, any error in this regard was clearly harmless

under either the reasonable possibility standard or the beyond a reasonable doubt

standard.10 Challenged by the Attorney General to identify any harm resulting

from the prosecution’s having received Dr. Thomas’s unredacted reports,

defendant asserts that he was prejudiced by the revelation in Dr. Thomas’s reports

that defendant initially told Dr. Thomas that the victim, Julia Miller, consented to

have sex with him. This revelation, defendant contends, “cut deep into the heart

of his defense, specifically that he blacked out and did not recall the events prior to

and during the murder.” However, the significance of defendant’s claim that he

blacked out prior to killing and raping Mrs. Miller was the implication that he was

therefore incapable of the deliberation required for first degree murder. The jury,

by returning its verdict of first degree murder, had already clearly rejected that

claim before Dr. Thomas testified in the penalty phase. Moreover, Dr. Thomas

testified that he considered defendant’s statement that Mrs. Miller consented to

have sex with him a “delusional belief.”

4. Lack of Remorse

During the penalty phase of the trial, in its case-in-chief, the prosecution

called Gloria Hanks, defendant’s sister, who testified that after the murder


10

State law error occurring during the penalty phase will be considered

prejudicial when there is a reasonable possibility such an error affected a verdict.
(People v. Jackson (1996) 13 Cal.4th 1164, 1232; People v. Brown (1988) 46
Cal.3d 432, 447.) Our state reasonable possibility standard is the same, in
substance and effect, as the harmless beyond a reasonable doubt standard of
Chapman v. California (1967) 386 U.S. 18, 24. (People v. Ochoa (1998) 19
Cal.4th 353, 479; Ashmus, supra, 54 Cal.3d at p. 965.)

37

defendant told her he “didn’t give a fuck about [the victim’s daughter] Pam or her

family.” Defendant contends this evidence of his lack of remorse was improperly

used by the prosecution as an aggravating factor.

A prosecutor may not present evidence in aggravation that is not relevant to

the statutory factors enumerated in section 190.3. (People v. Crittenden (1994) 9

Cal.4th 83, 148; People v. Boyd (1985) 38 Cal.3d 762, 772-776.) “A murderer’s

attitude toward his actions and the victims at the time of the offense is a

‘circumstance[] of the crime’ (§ 190.3, factor (a)) that may be either aggravating

or mitigating. [Citations.]” (People v. Cain (1995) 10 Cal.4th 1, 77, fn. omitted.)

However, a lack of remorse expressed afterwards, as is the case here, is not an

aggravating factor under the statute. (Crittenden, at p. 150, fn. 17.) On the other

hand, “the absence of remorse is relevant to the determination whether the

mitigating factor of remorse is present; thus, the prosecutor properly may suggest

that an absence of evidence of remorse weighs against a finding of remorse as a

mitigating factor. [Citations.]” (Id. at p. 148, italics omitted.)

As defendant points out, when counsel were arguing to the court the

admissibility of Ms. Hanks’s testimony, one of the remarks made by the

prosecutor suggests that he considered defendant’s lack of remorse an aggravating

factor. “Clearly it increases the heinousness of the crime and it refutes what he

does at the guilt phase which is to mitigate it, and I think it’s clearly relevant for

that.” However, the second half of the prosecutor’s statement reveals that he was

really offering Ms. Hanks’s testimony to rebut evidence of remorse that defendant

had introduced in the guilt phase. Indeed, the prosecutor informed the court that

he had originally intended to reserve Ms. Hanks as a rebuttal witness in the

penalty phase in the event that defendant put on evidence of remorse in that phase,

but then decided it would be more appropriate to call her in his case-in-chief in the

38

penalty phase because defendant had already presented evidence of remorse in the

guilt phase.11

The defense evidence in the guilt phase of the trial as to defendant’s

conduct following the murder may, as defendant now argues, have been “offered

as evidence of defendant’s mental state at the time of [the] killings,” i.e., that he

“lacked the specific intent to rape,” and not as evidence of remorse. However,

defendant’s testimony that he shot himself in an attempt to commit suicide was

also susceptible of interpretation by the jury as an expression of remorse when, as

defense counsel put it in his argument to the jury at the conclusion of the guilt

phase of the trial, defendant “realized the terrible thing that he had done.”

Therefore, Ms. Hanks’s testimony was properly admitted to assist the jury in

determining whether defendant truly felt remorseful for his crimes. In argument to

the jury at the conclusion of the penalty phase of the trial, the prosecutor cast Ms.

Hanks’s testimony in this light, and not as evidence in aggravation.

Defendant

contends

the prosecution failed to give him notice of Ms.

Hanks’s testimony required by section 190.3. Section 190.3 provides in pertinent

part: “Except for evidence in proof of the offense or special circumstances which

subject a defendant to the death penalty, no evidence may be presented by the

prosecution in aggravation unless notice of the evidence to be introduced has been

11

“As I thought about that [—reserving Ms. Hanks as rebuttal witness in the

penalty phase—] over the weekend, I thought . . . actually I don’t know if Mr.
Jones is going to get on the stand and express remorse. I don’t know if [Ms.
Hanks’s testimony] would be relevant as a rebuttal witness [to testimony given in
the penalty phase], and clearly in the guilt phase, I think there is a sense of
remorse that the defendant put on.


“He woke up next to the victim. He testified he was crying. All he wanted

to do was kill himself, and I think he has wanted to have all his actions after this
incident taken as remorse for the victim.


“I think that what [Ms. Hanks’s testimony] does is show clearly that the

defendant doesn’t feel remorse towards the victim or the family.”

39

given to the defendant within a reasonable period of time as determined by the

court, prior to trial. Evidence may be introduced without such notice in rebuttal to

evidence introduced by the defendant in mitigation.” Here, defendant did not

make his statement to Ms. Hanks until the trial started, and, as defense counsel

acknowledged and the trial court found, the prosecution disclosed the statement to

the defense as soon as the prosecution learned of it. Therefore, defendant received

timely notice. Moreover, Ms. Hanks’s testimony was introduced in rebuttal to

mitigation evidence introduced by the defendant in the guilt phase. Therefore,

notice was not required by section 190.3 in any event.

Finally, defendant contends Ms. Hanks’s testimony should have been

excluded on the ground that it was “confusing, misleading, and highly prejudicial

while bereft of probative value.” Defendant claims Ms. Hank’s testimony was

unreliable because she “was ‘a bottle and a half ’ into her New Year’s celebration”

when she had the telephone conversation with defendant. Ms. Hanks admitted she

could not remember the entirety of the conversation, “just bits and pieces of it,”

because she had been drinking. However, the fact that Ms. Hanks had been

drinking when the conversation occurred goes to the weight of the evidence, not

its admissibility. Pursuant to Evidence Code section 352, the trial court ruled the

probative value of Ms. Hanks’s testimony was not outweighed by its prejudicial

effect. We find no error.

5. Constitutionality of the Death Penalty

Defendant contends the statutory scheme governing the death penalty in

California is unconstitutional on several grounds. We have repeatedly rejected

similar contentions and do so again here. Specifically, the death penalty law is

constitutional though it (1) does not require the jury to make specific written

findings as to aggravating factors (see, e.g., People v. Lewis (2001) 25 Cal.4th

610, 677 [“Written findings by the penalty phase trier of fact are not

40

constitutionally required”]); (2) does not require that the jury return unanimous

written findings as to the aggravating factors (see, e.g., People v. Seaton, supra,

26 Cal.4th at p. 688; People v. Taylor (1990) 52 Cal.3d 719, 749 [“We have

consistently held that unanimity with respect to aggravating factors is not required

by statute or as a constitutional procedural safeguard”]); (3) does not require that

the jury be instructed on the presumption of life (see, e.g., People v. Arias (1996)

13 Cal.4th 92, 190 [rejecting the contention that the death penalty statute is

“constitutionally deficient because it ‘fails to require a presumption that life

without parole is the appropriate sentence’ ”]); (4) does not provide for intercase

proportionality review (see, e.g., People v. Anderson (2001) 25 Cal.4th 543, 602

[rejecting the contention that intercase proportionality review is required “as a

matter of due process, equal protection, fair trial, or cruel and/or unusual

punishment concerns”]).

Defendant’s argument that “one under judgment of death suffers cruel and

unusual punishment by the inherent delays in resolving his appeal is untenable. If

the appeal results in reversal of the death judgment, he has suffered no conceivable

prejudice, while if the judgment is affirmed, the delay has prolonged his life.

[Citation.]” (People v. Anderson, supra, 25 Cal.4th at p. 606.) Finally, death by

lethal injection does not constitute cruel or unusual punishment. (See, e.g., People

v. Samayoa (1997) 15 Cal.4th 795, 864.)

8. International Law

Defendant

contends

“[t]he due process violations and racial discrimination

that [he] suffered throughout his trial and sentencing phase are prohibited by

customary international law.” Because defendant has entirely failed to establish

the predicates of his argument—that he suffered prejudicial violations of due

process or racial discrimination during his trialwe have no occasion to consider

41

whether such violations would also violate international law. (People v. Bolden

(2002) 29 Cal.4th 515, 567.)

6. Cumulative Prejudice in Guilt and Penalty Phases

Defendant contends the cumulative effect of asserted errors denied him his

federal constitutional rights to a fair trial and a reliable penalty determination, thus

requiring reversal of both the guilt and penalty judgments. Our careful review of

the record convinces us the trial was fundamentally fair and the penalty

determination reliable. No basis for reversal appears.

III. DISPOSITION

The judgment is affirmed in its entirety.

BROWN, J.

WE CONCUR:

GEORGE,

C.J.

BAXTER,

J.

WERDEGAR,

J.

CHIN,

J.

MORENO,

J.






42









CONCURRING OPINION BY KENNARD, J.




I concur generally with the majority opinion. I disagree, however, with its

analysis of one issue, which I discuss below.

Defendant was charged with the first degree murder and rape of Julia

Miller, and there was a special circumstance allegation that the murder occurred

during a rape. In defendant’s testimony at the guilt phase of his capital trial, he

did not deny killing Miller and having sexual intercourse with her before she died.

He testified, however, while struggling with Miller, he “kind of slipped back into

[his] childhood.” He had no recollection of having intercourse with Miller, but he

remembered picking up a knife and stabbing her, and then “being curled up in a

ball crying.” When he looked at Miller, he realized she was dead. While driving

away from Miller’s house, he began “hearing certain little things in my head”

which he described as “paranoia, thinking someone was coming to kill me.”

Based on this testimony, the defense argued that defendant lacked the specific

intent to rape, a necessary element when, as here, the prosecution alleges under the

felony-murder rule that an unlawful killing is first degree murder because it took

place during a rape.

To support his claim that he lacked this intent, defendant sought to testify

that he had a long history of untreated psychiatric problems. At a hearing to

consider the admissibility of this testimony, defense counsel stressed that

defendant had heard voices, that as a child he was placed in special education

1

classes, that other members of his family were mentally ill, that he had abused

drugs, and that he was an abused child who grew up in poverty. Counsel also

mentioned defendant’s “dizzy spells, blackouts, [and] screaming at night . . . .”

The trial court excluded the testimony on the ground that it was not supported by

expert psychiatric testimony.

Defendant now claims the trial court prevented him from testifying that “he

had an extensive history of hearing voices, flashbacks, and blackouts.” The

majority holds that the trial court properly excluded defendant’s testimony, but it

relies on a different ground than the trial court. The majority points out that

defendant testified he heard voices only after he had intercourse with and killed

Miller, so his previous history of hearing voices was irrelevant to his intent to rape

her. (Maj. opn., ante, at p. 22.) True. But defendant testified that he blacked out

and had a flashback to his childhood before he had sex with Miller, so the

majority’s reasoning does not address his claim that the court erroneously

excluded testimony about his alleged history of blackouts and flashbacks. I would

reject this claim because defense counsel’s passing reference to blackouts, without

any information as to when and how often they had occurred, was insufficient to

show that the blackouts were probative on the question of whether defendant

intended to rape Miller. Also, the trial court did not prevent defendant from

testifying about flashbacks because defense counsel did not mention flashbacks in

his offer of proof.

The majority also finds any error harmless. It reasons that at the penalty

phase, a defense psychiatrist who had interviewed defendant did not mention

defendant’s history of blackouts or flashbacks. This, according to the majority,

implies that defendant’s proposed testimony was a recent fabrication. In my view,

the expert’s testimony has no bearing on whether the trial court’s exclusion of

defendant’s testimony was harmless, because the expert testified at the penalty

2

phase, whereas defendant’s testimony was offered at the guilt phase.

Nevertheless, I agree with the majority that any error was harmless: defendant’s

offer of proof included nothing that could have altered the jury’s determination

that he intended to rape Miller when he had sexual intercourse with her before

killing her.

KENNARD,

J.

3

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Jones
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S046117
Date Filed: March 17, 2003
__________________________________________________________________________________

Court:
Superior
County: Los Angeles
Judge: Edward A. Ferns

__________________________________________________________________________________

Attorneys for Appellant:

H. Mitchell Caldwell and Jan J. Nolan, under appointments by the Supreme Court, for Defendant and
Appellant.





__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C.
Hamanaka, Assistant Attorney General, John R Gorey and Herbert S. Tetef, Deputy Attorneys General, for
Plaintiff and Respondent.






4





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

H. Mitchell Caldwell
24737 Laurel Ridge Drive
Malibu, CA 90265
(310) 456-4669

Jan J. Nolan
23522 Longmeadow
Mission Viejo, CA 92692
(949) 830-9879

Herbert S. Tetef
Deputy Attorney General
300 South Spring Street
Los Angeles, CA 90013
(213) 897-2712




5

Opinion Information
Date:Docket Number:
Mon, 03/17/2003S046117

Parties
1The People (Respondent)
Represented by Attorney General - Los Angeles Office
Herbert S. Tetef, Deputy Attorney General
300 South Spring Street, 5th Floor
Los Angeles, CA

2Jones, Ernest Dwayne (Appellant)
San Quentin State Prison
Represented by Harry Mitchell Caldwell
Attorney at Law
24737 West Laurel Ridge Drive
Malibu, CA

3Jones, Ernest Dwayne (Appellant)
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Michael Laurence, Executive Director
50 Fremont St., Suite 1800
San Francisco, CA


Disposition
Mar 17 2003Opinion: Affirmed

Dockets
Apr 7 1995Judgment of death
 
Apr 21 1995Filed certified copy of Judgment of Death Rendered
  4-7-95.
Apr 12 1999Filed:
  Applt's Applic. for appointment of Counsel.
Apr 13 1999Counsel appointment order filed
  Harry M. Caldwell Is appointed as Lead Counsel, & Jan J. Nolan Is appointed as Associate Counsel, to represent Applt for the direct Appeal.
Jun 16 1999Compensation awarded counsel
 
Jun 16 1999Compensation awarded counsel
 
Jul 8 1999Note:
  Superior Court mailed Record to Applt's Counsel on 4-20-99. (Superior Court to Send Written Confirmation of this Date.)
Jul 8 1999Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 12 1999Filed:
  Suppl Proof of Service of request for Eot.
Jul 12 1999Received letter from:
  L.A. County Clerk, dated 7-6-99, Advising that Record Was mailed to Appellant's Counsel on 4-20-99.
Jul 12 1999Extension of Time application Granted
  To Applt To 9-22-99 To request Corr. of Record.
Aug 11 1999Compensation awarded counsel
 
Sep 20 1999Received:
  Copy of Applt's request to correct, Augment Record, Examine Sealed Transcripts & Settle the Record. (7 Pp.)
Sep 21 1999Compensation awarded counsel
  Atty Caldwell
Nov 15 1999Compensation awarded counsel
 
Jan 13 2000Compensation awarded counsel
  Atty Caldwell
Feb 16 2000Compensation awarded counsel
  Atty Caldwell
Apr 28 2000Record on appeal filed
  C-27 (6,924 Pp.) and R-33 (4,803 Pp.) Including Material Under Seal; Clerk's Transcript includes 4,806 pages of Juror Questionnaires.
Apr 28 2000Appellant's opening brief letter sent, due:
  6/7/2000
May 1 2000Compensation awarded counsel
  Atty Caldwell
Jun 5 2000Application for Extension of Time filed
  To file Aob.
Jun 8 2000Extension of Time application Granted
  To 8/7/2000 To file Aob.
Aug 4 2000Counsel's status report received (confidential)
 
Aug 4 2000Application for Extension of Time filed
  to file AOB. (second request)
Aug 7 2000Extension of Time application Granted
  to 10-6-2000 to file AOB.
Oct 2 2000Counsel's status report received (confidential)
 
Oct 6 2000Application for Extension of Time filed
  To file AOB. (3rd request)
Oct 6 2000Counsel's status report received (confidential)
  from atty Caldwell.
Oct 17 2000Extension of Time application Granted
  To 12/5/2000 to file AOB.
Oct 20 2000Order filed appointing H.C. Resource Center
  Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant Ernest Dwaye Jones for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court.
Dec 12 2000Counsel's status report received (confidential)
  from atty Caldwell.
Dec 12 2000Application for Extension of Time filed
  To file AOB. (4th request)
Dec 13 2000Extension of Time application Granted
  To 2/5/2001 to file AOB.
Jan 5 2001Counsel's status report received (confidential)
  from HCRC.
Feb 6 2001Application for Extension of Time filed
  To file AOB. (5th request)
Feb 6 2001Counsel's status report received (confidential)
  from atty Caldwell.
Feb 13 2001Extension of Time application Granted
  To 4/6/2001 to file AOB.
Feb 15 2001Counsel's status report received (confidential)
  from HCRC.
Apr 6 2001Counsel's status report received (confidential)
  from atty Caldwell.
Apr 6 2001Application for Extension of Time filed
  To file AOB. (6th request)
Apr 12 2001Extension of Time application Granted
  To 6/5/2001 to file AOB. No further extensions of time are contemplated.
Apr 19 2001Counsel's status report received (confidential)
  from HCRC.
May 29 2001Counsel's status report received (confidential)
  from atty Nolan.
May 29 2001Application for Extension of Time filed
  To file AOB. (7th request)
Jun 4 2001Extension of Time application Granted
  To 8/6/2001 to file AOB. No further extensions of time will be granted.
Jun 19 2001Counsel's status report received (confidential)
  from HCRC.
Jun 19 2001Appellant's opening brief filed
  (255 pp.)
Jun 27 2001Compensation awarded counsel
  Atty Caldwell
Jul 13 2001Filed:
  letter from resp requesting copy of sealed transcript (of proceedings held on 4-14-93), and missing pages of unsealed R.T.
Jul 16 2001Application for Extension of Time filed
  To file resp.'s brief. (1st request)
Jul 17 2001Extension of Time application Granted
  To 9/17/2001 to file resp.'s brief.
Aug 1 2001Filed:
  Resp.'s request for a copy of the reporter's transcript of an in camera hearing held on April 14, 1993, is granted. The clerk is directed to transmit a copy of pages 21 through 24 of the reporter's transcript of April 14, 1993 to resp.
Aug 17 2001Counsel's status report received (confidential)
  from HCRC.
Sep 12 2001Application for Extension of Time filed
  to file resp's brief faxing to SF. (2nd request)
Sep 18 2001Extension of Time application Granted
  To 11/16/2001 to file resp.'s brief.
Oct 17 2001Counsel's status report received (confidential)
  from HCRC.
Nov 6 2001Respondent's Brief filed. (146 pp.)
 
Dec 4 2001Request for extension of time filed
  To file reply brief. (1st request)
Dec 12 2001Extension of time granted
  To 1/25/2002 to file reply brief.
Dec 12 2001Filed:
  Declaration of service of respondent's brief on HCRC.
Dec 27 2001Counsel's status report received (confidential)
  from HCRC.
Jan 18 2002Request for extension of time filed
  to file repy brief. (2nd request)
Jan 28 2002Extension of time granted
  To 3/25/2002 to file reply brief. Counsel anticiates filing the brief by 3/25/2002. No further extension is contemplated.
Feb 19 2002Counsel's status report received (confidential)
  from HCRC.
Feb 26 2002Appellant's reply brief filed
  (102 pp.)
Mar 6 2002Compensation awarded counsel
  Atty Caldwell
Jun 17 2002Counsel's status report received (confidential)
  from HCRC.
Aug 19 2002Counsel's status report received (confidential)
  from HCRC.
Oct 21 2002Related habeas corpus petition filed (concurrent)
  (Filed by HCRC - no. S110791)
Nov 4 2002Counsel's status report received (confidential)
  from HCRC.
Nov 7 2002Oral argument letter sent
  advising counsel that case could be scheduled for oral argument as early as the January calendar, to be held in S.F. the week of 1-6-2003. Any request for additional time to argue, notification of requirement for two counsel, or advisement of "focus issues" is due no later than 10 days after the case has been set for oral argument.
Nov 27 2002Case ordered on calendar
  1-7-03, 1:30pm, S.F.
Dec 5 2002Filed letter from:
  Respondent, dated 12/4/2002, re focus issues for oral argument and requesting 45 minutes for argument.
Dec 9 2002Filed:
  Notice from appellant re focus issues for oral argument and request for 45 minutes for argument and to be represented by two counsel.
Dec 10 2002Order filed
  The request of appellant for 45 minutes for argument and to be represented by two counsel are granted.
Dec 10 2002Order filed
  The request of respondent for 45 minutes for oral argument is granted.
Dec 12 2002Received letter from:
  Respondent, dated 12/12/2002 re additional authorities for oral argument.
Dec 17 2002Received letter from:
  Appellant's counsel, dated 12/17/2002, re substitution of focus issue for oral argument.
Dec 18 2002Counsel's status report received (confidential)
  from HCRC.
Dec 20 2002Received letter from:
  Appellant's counsel, dated 12/20/2002, re additional authorities for oral argument.
Jan 7 2003Cause argued and submitted
 
Jan 24 2003Compensation awarded counsel
  Atty Caldwell
Feb 24 2003Counsel's status report received (confidential)
  from HCRC.
Mar 17 2003Opinion filed: Judgment affirmed in full
  Majority Opinion by Brown, J. -- joined by George C.J., Baxter, Werdegar, Chin & Moreno JJ. Concurring Opinion by Kennard, J.
Apr 1 2003Request for modification of opinion filed
  Office of Public Defender of Los Angeles [non-party]
Apr 7 2003Order filed
  The finality of the opinion in the above-eititled matter is hereby extended to and including 5/16/2003.
Apr 30 2003Opinion modified - no change in judgment
 
Apr 30 2003Remittitur issued (AA)
 
May 2 2003Order filed (150 day statement)
 
May 12 2003Received:
  Acknowledgment of receipt of remittitur.
Aug 12 2003Received letter from:
  U.S.S.C., dated 8-7-03, advising that cert petn was filed on 5-23-03 and placed on the docket on 8-7-03 as No. 03-5701.
Oct 14 2003Certiorari denied by U.S. Supreme Court
 
Oct 16 2007Related habeas corpus petition filed (post-judgment)
  no. S159235

Briefs
Jun 19 2001Appellant's opening brief filed
 
Nov 6 2001Respondent's Brief filed. (146 pp.)
 
Feb 26 2002Appellant's reply brief filed
 
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