Supreme Court of California Justia
Docket No. S037195

People v. Kennedy



Filed 7/25/05







IN THE SUPREME COURT OF CALIFORNIA







THE PEOPLE,

Plaintiff and Respondent,

S037195

v.

JERRY NOBLE KENNEDY,

Colusa

County

Defendant and Appellant. )

Super.

Ct.

No.

19005






A jury convicted defendant Jerry Noble Kennedy of one count of murder

(Pen. Code, § 187, subd. (a))1 and one count of robbery (§ 211). The jury found

true an allegation that defendant used a firearm in committing the crimes

(§ 12022.5, subd. (a)) and a special circumstance allegation that the murder was

committed during a robbery (§ 190.2, subd. (a)(17)). The jury returned a verdict

of death. The trial court denied defendant’s motions for a new trial and for

modification of the death verdict, and it sentenced defendant to death. This appeal

is automatic. (Cal. Const., art. VI, § 11; § 1239.)


1

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

1




I. FACTS AND PROCEEDINGS

A. Guilt Phase

1. Prosecution’s case

Around 4:30 a.m. on March 15, 1993, Janet Madsen and her friend Jay

Blaylock were in a car parked under a light at Maxwell’s Rest Stop off Interstate 5

in Colusa County. Madsen, who was asleep in the passenger seat, was awakened

by the sound of a gunshot coming from the restrooms located 50 to 60 feet from

the car. She saw a man come out from the men’s side of the restroom, walk

briskly down a sidewalk directly towards her, get into a car two parking spaces

away from her on her right, and leave. During this time, Madsen was “locked in

eye-to-eye contact with this man . . . .”

Madsen then saw a man stagger out of the men’s restroom and collapse. As

she ran towards the man to try to help him, Blaylock called the police on his

cellular phone. Sheriff Deputy Randy Morton arrived five minutes later. Morton

ran over to the victim, who was breathing but unable to speak, and radioed for

help. When the emergency rescue team arrived approximately 10 minutes later,

the victim had stopped breathing.

Deputy Morton interviewed Madsen at the scene. She described the person

she saw came out of the restroom as a dark-skinned White male in his early 20’s

with bushy hair “almost like an Afro.” He was wearing Levis and a dark jacket.

He left in a brown compact car, which had dents and also had red and possibly

blue primer paint. Madsen also gave a description to Deputy Sheriff Hameed

Kahn, the second officer to arrive at the scene. Madsen told Kahn that the man

who fled was a curly-haired White adult male about five feet eight or nine inches

in height, weighing approximately 150 pounds, and wearing a dark-colored sweat

shirt with dark-colored pants.

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Madsen and Blaylock then left the scene and continued their trip. Later that

morning, they stopped in Yreka at the Siskiyou County Sheriff’s Department to

see if they could be of further help. There, Madsen explained that she had been an

eyewitness to a murder and she offered her cooperation in preparing a composite

sketch of the man who fled the murder scene. Sergeant Gary Perry worked with

Madsen in preparing the sketch. Her responses to a series of questions regarding

the suspect’s facial features included statements that the suspect’s eyes were

“large and wide-eyed” and that there “was no facial hair at all.” Because Madsen

was not satisfied with the depiction of the hair, eyes, and nose on the composite

drawing produced by the computerized process, she tried to improve the sketch by

drawing on it herself. She remained dissatisfied with the composite drawing,

however.

Colusa County Sheriff’s Detective David Markss, who had also responded

to the scene of the murder, learned that the victim was Glenn Chambers from Linn

County in Oregon. Markss obtained from the victim’s family a list of his credit

cards and their numbers and arranged for them to be “flagged,” a procedure by

which banks and credit companies would notify the police if someone used the

credit cards. On the night of March 16, 1993, the day after the murder, a bank

notified Detective Markss that one of the victim’s credit cards was being used to

hire a limousine in Sacramento. When Markss learned from the limousine service

that it was sending a limousine to an address on Dawn Court in Sacramento, he

contacted the Sacramento Police Department.

The Sacramento Police Department assembled a team of officers at an

intersection near Dawn Court, where Colusa County Sheriff Gerald Shadinger

joined them. When a car matching Madsen’s description went by, they followed it

to a convenience store, where they detained the car’s three occupants, Doreen

Westbrook, Jack Beach, and Melody Jean Phillips. Sheriff Shadinger asked

3



Westbrook, “Who shot the guy in Maxwell?” She responded, “Termite,”

defendant’s nickname. She said that Termite was in an apartment at the Dawn

Street apartments and that he was armed with a handgun and a machine gun.

As the police evacuated the neighboring apartments and surrounded the

apartment building, a .38-caliber handgun wrapped in a white shirt was thrown

from the balcony of the apartment where defendant was. The police announced

their presence and ordered everyone out of the apartment. Ron Woods, also

known as Ron Mead, was the first to emerge from the apartment, followed 11

minutes later by defendant, and then by Kimberly Crawford. Defendant was

arrested. Defendant, then 37 years old, was six feet tall, and had a full mustache

and goatee that covered the lower half of his face. Defendant’s appearance did not

resemble the composite sketch prepared earlier. Both Woods and Crawford

informed the police that defendant told them of shooting someone at a restaurant

and taking the victim’s credit cards. The police later found the murder victim’s

credit cards in the yard of the apartment and on the balcony next door.



Doreen Westbrook, who had been granted immunity at the preliminary

hearing, testified to the events leading up to and immediately after the murder. On

the evening of March 15, 1993, after taking drugs with defendant, she and

defendant left Sacramento in her car to drive to her mother’s house in Rancho

Tehama, near Redding, to sell drugs and take her niece to the hospital. They first

stopped at the Dunnigan Rest Stop on Interstate 5, where they injected themselves

with methamphetamine. As they continued north on Interstate 5, Westbrook and

defendant talked about robbing people in restrooms. They next stopped at the

Maxwell Rest Stop, where Westbrook went into the women’s restroom to change

clothes. When she came out of the restroom and returned to her car, she heard a

gunshot. As Westbrook started the car so they could “get out of there quick,” she

saw defendant come out of the restroom pulling a ski mask off his head and

4



walking fast, followed by the victim pleading for help. Defendant got in the car

and told Westbrook “drive, girl, drive.”

Westbrook drove out of the rest stop. As they continued north, defendant

went through the victim’s wallet. Commenting, “all of this for 11 bucks,”

defendant showed Westbrook a separate card case containing the victim’s credit

cards. When they arrived at her mother’s house in Rancho Tehama, Westbrook

suggested to her brother and his girlfriend that they use the credit cards. The four

of them then drove to Corning and used the credit cards. They left for Chico, used

the credit cards again, and finally headed to the Arden Fair Mall in Sacramento,

where they again used the credit cards. Thereafter, Westbrook used one of the

credit cards to rent a limousine to take herself, defendant, and some of their friends

to breakfast at a restaurant. She paid with the murder victim’s credit card.

That evening, Westbrook again used the victim’s card in renting a

limousine. When the limousine was late in arriving, she drove to a convenience

store to telephone the limousine service; at that point, the police apprehended her.

Later that night, she told Sacramento Police Officer Jim Bell that defendant was

the killer. A couple of days later, Westbrook traveled to Colusa County, where

she spoke to the police. She first told the police in the interview that a Billy Jinks,

“one of the North Sac dope fiends,” did the killing. She then told the police that

defendant “killed the man.” Westbrook initially blamed the killing on Jinks

because defendant had called her the night before from the Colusa County jail and

told her to lie and because her brother-in-law, George Westbrook, had threatened

her by telling her: “If you don’t ride the manslaughter you’re not coming out of

Colusa alive.”

After defendant’s arrest and arraignment, Janet Madsen, the eyewitness

who had given the police a physical description of the killer, saw a newspaper

article about the murder with a photograph of defendant’s face with a beard. She

5



was concerned that, having described the person she had seen at the rest stop to the

police as having no facial hair, the police had arrested the wrong man. On April 7,

1993, Madsen and her friend Jay Blaylock drove to the City of Colusa to discuss

the discrepancy with the police.

Madsen told Colusa County Sheriff’s Detective Troughton that the

newspaper photograph disturbed her because of the eyes and the beard. (Shortly

after the murder, she had described the person at the rest stop as a clean-shaven

man with large eyes.) Detective Troughton then showed Madsen a picture of

defendant without a shirt on that disclosed tattoos on his chest of a swastika, a

gun, and the name of his motorcycle gang. Madsen could not make an

identification from this picture because it did not show defendant’s eyes, which

were downcast in the photograph. Madsen was then shown a videotape of

defendant’s arrest. When Madsen saw defendant’s eyes as he looked up on the

videotape, she said: “Oh, my God, that’s him, and I don’t know how I missed that

beard.” Madsen was next escorted to the police garage, where she identified

Doreen Westbrook’s car as the car in which she saw the killer flee the scene of the

murder. At trial, Madsen positively identified defendant as the man she saw come

out of the restroom at the time of the shooting.

2. Defense case

Manuel Acosta, a truck driver, was at the Maxwell Rest Stop at the time of

the murder. He said he was awake and had a clear view of the restroom area from

the cab of his truck when he heard a gunshot. He then saw a man come out of the

restroom with the victim just behind him. Acosta described the man to the police

as being between five feet eight inches and six feet in height, slender, Hispanic,

and with a clean-shaven face. When shown a photograph of defendant by a

defense investigator before trial and asked if the photograph was of the person he

saw leave the murder scene, Acosta responded: “No way.” On cross-examination

6



by the prosecution, Acosta said he could not be absolutely positive defendant was

not the man he saw come out of the restroom because he did not see the man’s

face, but he then testified on redirect examination that defendant was “not the right

person” and that the right person is “walking the streets right now.”

According to Debra Jewel Matthews, Doreen Westbrook told her she

committed the murder. Janet Chissney testified that Doreen Westbrook came by

her house in a limousine at 7:00 a.m., was very nervous, and said, “I did it this

time, Janet, I did one.”

Dina McKee testified that defendant and a John Hancock, also known as

Hoss, stayed overnight at her house the night of March 14-15, 1993, and that she

had gone to bed with defendant between 10:00 and 11:00 p.m., but that defendant

had left after she had fallen asleep. McKee’s friend, Susan Nuckols, who lived six

houses away from her, testified that between 4:00 and 4:30 a.m. that same night

she went to McKee’s house to return some books she had borrowed, and that

defendant and Hoss answered her knock on the door and took the books.

B. Penalty Phase

1. Prosecution’s case

Larry Chambers, the brother of murder victim Glenn Chambers, testified

that the victim was the father of two daughters, one who was then 24 years old and

one who was then five years old; that he was a real estate agent and a substitute

teacher; that he had been in the military reserves for 20 years; and that their

mother was distraught over the killing. Zoe Chambers, the victim’s 24-year-old

daughter, expressed her love for her father and described her feelings of anger and

sense of loss.

Sharon Galiano testified that in 1985 she and her then four-year-old

daughter were the victims of a residential robbery committed by defendant. She

7



related that defendant and another man came into her house with a gun, held her at

gunpoint, and went through the house stealing items.

Marilyn Ouye, a custodian of records for the Department of Corrections,

testified to defendant’s criminal history as shown by department records.

(§ 969b.) The records showed that defendant had four prior felony convictions:

two involving the possession of illegal firearms, one for residential robbery, and

one for possession of controlled substances. Between 1982 and 1993, defendant

remained out of prison for only 24 months, and out of those 24 months he was in

local custody for a total of 515 days. Defendant was released on parole on March

5, 1993, 10 days before the murder in this case.

2. Defense case

Buford Kennedy, one of defendant’s older brothers, testified that his family

moved around when they were children, and that the children were separated from

each other when they were young. He expressed the hope that defendant would be

sentenced to life without possibility of parole instead of being given the death

penalty. Buford admitted that he had suffered six felony convictions and that he

was in custody for a parole violation at the time he testified.

Hank Kennedy, another one of defendant’s older brothers, testified that he

and his brothers were wild when they were growing up, that they were separated

when defendant was nine or 10 years old, and that he and his brothers are outlaws.

He did not believe defendant committed the murder because defendant would have

told him if he had, and he asked the jury to give defendant life without possibility

of parole, sparing defendant’s life. Hank admitted that he had been convicted of

seven or eight felonies, and that he and defendant while in prison together had

been involved in fights with other inmates.

Defendant testified on his own behalf. He denied committing the murder,

and he denied being at the rest stop the night of the killing. Defendant told the

8



jury that he believes in the death penalty and that because the jury had found him

guilty it should give him the death penalty. He mentioned that while incarcerated

at Folsom Prison he taught his wife’s young son how to read and write. He

admitted his four prior felony convictions. He acknowledged having spent most

of his adult life in prison and sharing membership with his brothers in an outlaw

motorcycle group called the “Sacramaniacs.” Defendant denied that he told others

he had shot a man at a rest stop, but he admitted telling Rochelle Hendricks (the

girlfriend of Doreen Westbrook’s brother) that he hurt a man at a rest stop so

badly that the man had to be taken away in an ambulance.

II. GUILT PHASE

A. Identification of Defendant

Defendant

contends

that his right to due process of law under the

Fourteenth Amendment to the United States Constitution and article I, section 15

of the California Constitution were violated when the trial court admitted evidence

of eyewitness Janet Madsen’s pretrial and in-court identification of him as the

perpetrator.

“In order to determine whether the admission of identification evidence

violates a defendant’s right to due process of law, we consider (1) whether the

identification procedure was unduly suggestive and unnecessary, and, if so,

(2) whether the identification itself was nevertheless reliable under the totality of

the circumstances, taking into account such factors as the opportunity of the

witness to view the suspect at the time of the offense, the witness’s degree of

attention at the time of the offense, the accuracy of his or her prior description of

the suspect, the level of certainty demonstrated at the time of the identification,

and the lapse of time between the offense and the identification.” (People v.

Cunningham (2001) 25 Cal.4th 926, 989.)

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1. Standard of review

This court has not decided the standard of review applicable to a claim that

an identification procedure was unduly suggestive. It remains “unsettled whether

suggestiveness is a question of fact (or a predominantly factual mixed question)

and, as such, subject to deferential review on appeal, or a question of law (or a

predominantly legal mixed question) and, as such, subject to review de novo.”

(People v. Gordon (1990) 50 Cal.3d 1223, 1242; see People v. Ochoa (1998) 19

Cal.4th 353, 413; People v. Carpenter (1997) 15 Cal.4th 312, 367.) Defendant

contends that the independent standard of review de novo applies. We agree.

It is settled that the abuse of discretion standard applies to questions of pure

fact, and that the independent review standard applies to questions of pure law.

(People v. Cromer (2001) 24 Cal.4th 889, 893-894.) The issue of which standard

of review governs arises when, as here, the decision under review involves a

mixed question of law and fact. Mixed questions of law and fact are those where

the facts are established, the law is undisputed, and the issue is whether the law as

applied to the established facts is violated. (Id. at p. 894.) The constitutionality of

an identification procedure presents a mixed question of law and fact. (Sumner v.

Mata (1982) 455 U.S. 591, 597.)

The mixed question presented in reviewing identification procedures is

similar to the mixed questions the United States Supreme Court has determined

are subject to independent review. For instance, in Thompson v. Keohane (1995)
516 U.S. 99, the high court held that the independent review standard applied to a

determination of whether a defendant was in custody for purposes of Miranda v.

Arizona (1966) 384 U.S. 436. The court reasoned that credibility determinations,

although they could contribute to deciding the facts of what had already happened,

were not dispositive of the inquiry because the trial court did not have a “first-

person vantage” as the facts occurred outside of court. (Thompson v. Keohane,

10



supra, 516 U.S. at p. 113.) It also noted that the “in custody” determination by

appellate courts would serve to guide future decisions (id. at p. 114) because the

creation of a body of legal precedent over time would define the legal principles

and their application. In Ornelas v. United States (1996) 517 U.S. 690, the high

court held that the appellate courts should independently determine whether there

was reasonable suspicion and probable cause to make a warrantless search. The

court there identified in support of its holding the risk of inconsistent results

arising not from different facts but from different trial judges drawing varying

general conclusions, the need for appellate courts to control and clarify legal

principles when the legal rules are defined through their application to facts in

different cases, and the ability to come closer to developing a defined set of rules.

(Id. at p. 697.)

Those considerations apply with equal force to the question of whether a

pretrial identification procedure was unduly suggestive. Although the

determination of the historical facts, which are reviewed under a deferential

standard (People v. Cromer, supra, 24 Cal.4th at p. 900), may involve a credibility

determination, the decision whether those facts demonstrate that the identification

procedure was unduly suggestive does not require such a determination. In

determining whether a pretrial identification was unduly suggestive, a trial judge

does not have a “first person vantage.” Pretrial identification procedures, like

determinations of reasonable suspicion and probable cause, occur outside of the

courtroom. Independent appellate court evaluation of whether an identification

procedure was or was not unduly suggestive would also help to develop a defined

set of rules by establishing a body of legal precedent that provides guidance.

Accordingly, and consistent with “this court’s usual practice for review of

mixed question determinations affecting constitutional rights” (People v. Cromer,

supra, 24 Cal.4th at p. 901), we conclude that the standard of independent review

11



applies to a trial court’s ruling that a pretrial identification procedure was not

unduly suggestive.

2. Analysis

Defendant filed a motion before trial to suppress Janet Madsen’s pretrial

identification of him as the perpetrator. The evidence presented at the pretrial

hearing on defendant’s motion was essentially repeated at trial as part of the

normal presentation of evidence to the trier of fact and has been summarized

above. In ruling on the motion, the trial court made these findings: After seeing a

newspaper article containing a picture of defendant, Madsen decided to go to the

Colusa County Sheriff’s Department with the article to express doubt that the

person pictured in the newspaper was the man she saw at the time of the murder;

she was shown the photograph of defendant without his shirt on and she asked to

see a photograph in which defendant’s eyes showed; when she was shown the

videotape of defendant’s arrest and she saw defendant’s eyes, she exclaimed,

“That’s him.”

The trial court denied the motion, ruling that the police did not use an

unduly suggestive identification procedure. In support, the court cited Neil v.

Biggers (1972) 409 U.S. 188, which both parties agreed was the controlling

authority. The United States Supreme Court there held identification evidence

was admissible “even though the confrontation procedure was suggestive” if the

evidence was nevertheless reliable under the totality of circumstances. (Id. at

p. 199.) It identified the factors to be considered in determining the reliability of

the identification as including “the opportunity of the witness to view the criminal

at the time of the crime, the witness’ degree of attention, the accuracy of the

witness’ prior description of the criminal, the level of certainty demonstrated by

the witness at the confrontation, and the length of time between the crime and the

12



confrontation.” (Id. at pp. 199-200; see People v. Cunningham, supra, 25 Cal.4th

at p. 989; People v. Ochoa, supra, 19 Cal.4th at p. 412.)

Defendant contends that the admission of Janet Madsen’s testimony

identifying him as the perpetrator violated his state and federal constitutional due

process rights to a fair trial. Admission of the identification evidence is error only

if the identification procedure was unduly suggestive and unnecessary and it is

unreliable under the totality of circumstances. (People v. Ochoa, supra, 19

Cal.4th at p. 412.)

Defendant claims that the identification was unduly suggestive and

unreliable. We conclude that the identification evidence was admissible as

reliable under the totality of circumstances, taking into account such factors as

those the high court identified in Neil v. Biggers, supra, 409 U.S. at page 199.

Janet Madsen had a good opportunity to view the perpetrator at the time of

the crime. While parked in a car outside the restroom, Madsen heard a gunshot;

she then saw a man come out of the restroom and walk towards her, coming to

within five to 10 feet of her. Madsen was parked under a light, and she was

“locked in eye-to-eye contact” with the man for 30 to 60 seconds.



Madsen’s description to the police made no mention of the man’s

prominent beard, and the composite drawing prepared by the police with her help

depicted no facial hair and bore little resemblance to defendant. When she later

saw defendant’s photograph in the newspaper showing him with a beard, she was

concerned that the wrong man had been arrested, and she drove to the City of

Colusa to discuss the discrepancy in appearance with the police.

When police showed Madsen a photograph of defendant with his shirt off,

she was uncertain he was the man she had seen come out of the restroom after the

shooting. She could not clearly see the man’s eyes in the photo. She explained

that the man she saw come out of the restroom came within a few feet of her, and

13



she focused on his eyes. When the police later showed her the videotape of

defendant’s arrest, however, her identification of defendant was quite positive. On

seeing defendant’s eyes, Madsen exclaimed: “Oh, my God, that’s him, and I don’t

know how I missed that beard.” Her identification of defendant at the pretrial

hearing and at trial was also certain. At trial, Madsen testified, “I just kept saying,

‘I don’t believe I missed the beard, I don’t believe it,’ ” and “Oh, my God, that’s

the man.” Finally, we note that the length of time between the crime and the

identification was only three weeks.

After considering the totality of circumstances discussed above, we

conclude that Madsen’s identification of defendant was reliable and that the trial

court did not err in admitting the identification testimony at trial.

B. Admission of Evidence

1. Claims of coerced testimony

Defendant

contends

that

his due process right to a fundamentally fair trial

was violated by the admission into evidence of coerced testimony. He first

challenges as coerced a statement to the police by Doreen Westbrook that

defendant shot the victim.

At trial, the prosecutor asked Sheriff Shadinger what he said to Westbrook

and her response when she was arrested at the convenience store. When the

defense interposed a hearsay objection, the prosecutor replied that the testimony

was not being offered for the truth of the matter asserted, but to explain the

conduct of the police after Westbrook’s arrest. The trial court admonished the jury

to consider the testimony only for the limited purpose of showing what the officers

did when they learned that Westbrook identified defendant as the person who had

shot the victim. Sheriff Shadinger then testified that when he asked, “[w]ho shot

the guy in Maxwell?” Westbrook replied “Termite,” defendant’s nickname.

14



The Attorney General argues that defendant may not claim on appeal that

the testimony was inadmissible as coerced because he did not object at trial to its

admission on that ground. (See People v. Ervin (2000) 22 Cal.4th 48, 84.) We

agree.

“[A]s a general rule, ‘the failure to object to errors committed at trial

relieves the reviewing court of the obligation to consider those errors on appeal.’

[Citations.] This applies to claims based on statutory violations, as well as claims

based on violations of fundamental constitutional rights. [Citations.]” (In re

Seaton (2004) 34 Cal.4th 193, 198.) This rule applies equally to any claim on

appeal that the evidence was erroneously admitted, other than the stated ground

for the objection at trial. When an objection is made to proposed evidence, the

specific ground of the objection must be stated. The appellate court’s review of

the trial court’s admission of evidence is then limited to the stated ground for the

objection. (Evid. Code, § 353.) Here, defendant objected at trial to the

prosecutor’s questions to Sheriff Shadinger on the ground of hearsay, not on the

ground of coercion, the claim raised on appeal. Thus, the claim that Westbrook’s

statement to the police was coerced is not properly before us. In addition, Sheriff

Shandinger’s testimony was offered to explain the conduct of the police after the

arrest, and the court immediately instructed the jury that the testimony was

admitted not for its truth but only to show what the police did after learning that

Westbrook had identified defendant as the person who shot the victim.

Defendant next challenges as coerced Doreen Westbrook’s trial testimony.

He argues that the grant of immunity to Westbrook was conditioned on her

testimony at trial being in conformity with her earlier statement to the police.

Such a conditional grant of immunity to an accomplice is a denial of a defendant’s

right to a fair trial if the prosecution’s case relies substantially on the accomplice’s

15



testimony. (People v. Riel (2000) 22 Cal.4th 1153, 1179; People v. Allen (1986)

42 Cal.3d 1222, 1251.)

The Attorney General correctly asserts that defendant forfeited this claim

by failing to object to Westbrook’s testimony at trial as coerced. (Evid. Code,

§ 353.) A claim of coercion is not cognizable on appeal in the absence of an

objection to the testimony at trial. (People v. Hillhouse (2002) 27 Cal.4th 469,

489; People v. Riel, supra, 22 Cal.4th at pp. 1178-1179.) In requiring an objection

at trial, the forfeiture rule ensures that the opposing party is given an opportunity

to address the objection, and it prevents a party from engaging in gamesmanship

by choosing not to object, awaiting the outcome, and then claiming error. (In re

Seaton, supra, 34 Cal.4th at pp. 198-199.) Here, defendant forfeited his claim of

coerced testimony because of his failure to object at trial. Moreover, the claim

lacks merit, as discussed below.

Westbrook was granted immunity during her testimony at the preliminary

hearing. When she was about to incriminate herself, the trial court admonished

her of her constitutional rights to remain silent and to be represented by an

attorney. When she asked for an attorney, the court appointed Attorney Lorie

Ruminson, who was in the courtroom at the court’s request. After a recess,

Westbrook invoked her right to remain silent, and the prosecutor petitioned the

court to grant Westbrook immunity. The court granted the petition.

The order said: “Westbrook shall not be prosecuted or subjected to penalty

or forfeiture for or on account of those facts and acts concerning her involvement

with defendant, Jerry Noble Kennedy, as set forth in the accompanying petition

and declaration.” The accompanying declaration included as an attachment

Westbrook’s statement to Colusa County Sheriff’s Detective Markss describing

Westbrook’s involvement with defendant immediately before, during, and

16



immediately after the murder, and her identification of defendant as the killer.

Westbrook’s testimony at trial was consistent with her earlier statement.

The prosecutor at trial described the immunity as transactional immunity.

“Transactional immunity protects the witness against all later prosecutions relating

to matters about which [the witness] testifies.” (People v. Hunter (1989) 49

Cal.3d 957, 973, fn. 4.) Use immunity, on the other hand, “protects a witness only

against the actual use of [the witness’s] compelled testimony, as well as the use of

evidence derived therefrom.” (Ibid.) Here, the immunity granted Westbrook

extended to all matters that were the subject of her testimony and thus was

transactional immunity. It did not require Westbrook’s testimony at trial to

conform to any statement given the police. In addition, the immunity order does

not state that it is conditioned on conforming testimony.

Neither the order granting immunity nor the record shows that the

immunity granted to Westbrook at the preliminary hearing was conditioned upon

Westbrook conforming her testimony to her earlier statement to Detective Markss

of the Colusa County Sheriff’s Department.

2. Claims relating to the admission of evidence

Defendant challenges four evidentiary rulings by the trial court.

a. Hearsay objection to Doreen Westbrook’s testimony

Defendant contends the trial court should not have overruled his hearsay

objection to certain testimony by prosecution witness Doreen Westbrook. On

direct examination, Westbrook testified without objection by the defense that she

had lied to the police when she was first questioned in Colusa County a couple of

days after her apprehension. In that interview, she said that a person named Billy

Jinks had committed the murder. She explained she had lied because defendant

had called her from the Colusa County jail and told her to say that Billy Jinks had

taken her car and to lie to the police. On cross-examination, the defense sought to

17



impeach Westbrook by, among other things, suggesting that her statements

implicating defendant were the result of threats of prosecution, that she could not

remember what she said when she made statements the night she was arrested

because she was intoxicated on drugs at the time, and that her trial testimony was

influenced by the immunity order.

On redirect examination, the prosecution asked Westbrook to tell what she

said to her friend Debbie Matthews and to Matthews’s husband. When Westbrook

started to say that she told them defendant had called her on the telephone, the

defense objected on the ground of hearsay and the prosecution responded that the

testimony was admissible as a prior consistent statement. The trial court overruled

the objection. Westbrook then said she told Matthews and her husband that

defendant had telephoned her and told her that she “was to put it off on Billy

Jinks, it would be better off for [her] health if [she] did.”

A prior consistent statement is admissible as an exception to the hearsay

rule if it is offered after admission into evidence of an inconsistent statement used

to attack the witness’s credibility, and the consistent statement was made before

the inconsistent statement; or when there is an express or implied charge that the

witness’s testimony was recently fabricated or influenced by bias or improper

motive, and the statement was made before the fabrication, bias, or improper

motive. (Evid. Code, §§ 791, 1236.)

Defendant contends the trial court erred in allowing Westbrook’s testimony

on redirect examination because the defense did not imply in cross-examining

Westbrook that her testimony about the telephone call was fabricated. We

disagree. As the Attorney General points out, Evidence Code section 791 permits

the admission of a prior consistent statement when there is a charge that the

testimony given is fabricated or biased, not just when a particular statement at trial

is challenged. (E.g., People v. Andrews (1989) 49 Cal.3d 200, 210-211; People v.

18



Bunyard (1988) 45 Cal.3d 1189, 1208-1209.) On cross-examination, defendant

attacked Westbrook’s credibility by suggesting that her testimony on direct

examination implicating defendant was biased or fabricated because of threats of

prosecution made by the police and the district attorney, because she was

intoxicated, and because she was granted immunity. Accordingly, Westbrook’s

prior consistent statements were admissible to rehabilitate her and to support her

credibility.

b. Relevancy objection to Doreen Westbrook’s testimony

The trial court admitted testimony by Doreen Westbrook of what George

Westbrook, her brother-in-law, told her before she went to the City of Colusa to be

interviewed by the police. Defendant contends the testimony was irrelevant. We

disagree.

Three days after the police apprehended Doreen at a convenience store, the

police in Colusa County interviewed her. At that time she gave the police two

different statements regarding the murder. In the first of these statements, she

identified one Billy Jinks as the killer. In the second statement, made that same

day, she told the police that defendant was the killer.

At trial, after testifying on direct examination by the prosecution about the

telephone call she received from defendant telling her to identify Billy Jinks as the

killer, Doreen was asked what her brother-in-law George Westbrook said to her

before her interview by the police in Colusa County. The defense objected on the

ground of hearsay. The prosecutor replied that the testimony was being offered to

show Doreen’s state of mind when she made the first statement to the police

identifying Billy Jinks and not defendant as the killer. At defendant’s request, the

trial court instructed the jury that it could not consider the testimony for its truth

but only to understand Doreen’s conduct based on what she had been told by her

brother-in-law George Westbrook. She then testified that after George “stripped

19



all of my jewelry off me,” he told her, “ ‘If you don’t ride the manslaughter you’re

not coming out of Colusa alive.’ ” She said this scared her.

Defendant contends this testimony was irrelevant and thus inadmissible.

Because defendant did not object on this ground, he is now precluded from

asserting this claim. (Evid. Code, § 353.) In any event, the evidence was relevant.

Evidence is relevant if it has any tendency in reason to prove or disprove any

disputed fact of consequence, including evidence relevant to the credibility of a

witness. (Evid. Code, §§ 210, 780.) The testimony in question was relevant to

establishing Doreen’s credibility. It tended to show that her statement to the

police identifying Billy Jinks as the killer instead of defendant was false and that

her testimony at trial that defendant was the killer was true. The trial court

therefore did not err in admitting the testimony.

c. Hearsay objection to Detective Troughton’s testimony

Detective Clinton Troughton read from his police report a statement by

Doreen Westbrook’s brother, Robert Duclos (also known as Robert Lenore), as to

defendant’s explanation about his possession of the murder victim’s credit cards.

Defendant argues that the trial court erred in allowing this testimony as a prior

consistent statement, an exception to the hearsay rule. We reject defendant’s

challenge, for the reasons given below.

After the killing, defendant and Doreen Westbrook drove from the Maxwell

Rest Stop to Rancho Tehama, where they visited her brother (Robert Duclos) and

his girlfriend (Rochelle Hendricks). During direct examination by the prosecution,

Robert Duclos said that he saw defendant going through a wallet while they were

in Rancho Tehama. Defendant told Duclos “a guy pinched my sister in the butt

and [defendant] beat him up for it and took his wallet.” On cross-examination,

Duclos testified that although he was not promised immunity, the prosecutor had

20



shown him letters from the surrounding counties stating that the counties were not

interested in prosecuting him.

The defense re-called Detective Troughton as a witness. On cross-

examination, the prosecution asked Troughton to read from his report as to what

Duclos had told him about defendant’s explanation to Duclos as to the source of

the credit cards. When the defense objected, the prosecution pointed out that the

defense had questioned Detective Troughton about the accuracy of the report and

the statement by Duclos to Troughton. Defense counsel responded that Duclos

“had made different statements in his testimony.” After the prosecution explained

that its question to Detective Troughton sought to elicit a prior consistent

statement by Duclos, the court overruled the defense objection. Troughton then

read a statement by Duclos that, in referring to the victim, defendant said: “Don’t

worry about him, he’s not a problem. I hurt him so bad that an ambulance came

and took him away.”

Defendant claims that the trial court’s evidentiary ruling was wrong

because the prosecution failed to show that Duclos made the statement at issue to

Detective Troughton before making any inconsistent statement. As discussed

above, a prior consistent statement is admissible as an exception to the hearsay

rule if offered after an express or implied charge of bias or fabrication, and the

prior consistent statement was made before the bias or motive for fabrication

arose. (Evid. Code, §§ 791, 1236.) Here, the defense in its examination of Duclos

asserted bias and a motive for fabrication by Duclos when it suggested that his

testimony was influenced by promises from the counties surrounding Colusa

County that they would not prosecute Duclos. Duclos’s statement to Detective

Troughton was consistent with his testimony at trial and was made before any

promises not to prosecute him. Thus, the testimony was admissible as a prior

consistent statement.

21



d. Relevancy objection to Ron Woods’s testimony

Ron Woods testified about a March 19, 1993, gunfight at his apartment that

occurred a few days after defendant’s arrest. Defendant claims that the testimony

identifying the participants in the gunfight was irrelevant and prejudicial.

The police arrested defendant and Ron Woods at the latter’s apartment on

Dawn Court in Sacramento. Woods, who was in custody when he testified, stated

on direct examination by the prosecution that defendant and Doreen Westbrook

brought the murder victim’s credit cards and defendant’s gun to Woods’s

apartment. Woods also testified that defendant told him he had shot someone and

had taken the victim’s credit cards. On cross-examination, the defense sought to

impeach Woods by showing that he had received favorable treatment from the

prosecution. The defense also elicited testimony by Woods that he was not

charged with anything relating to the murder or arising out of his detention at his

apartment, and defendant’s arrest there, although drugs were found at his

apartment and he had committed the offense of being a felon in possession of

guns.

On redirect examination by the prosecution, Woods testified that two men,

John Hancock and Richard Kiyoka, were involved in the shoot-out at his

apartment during which time they shot at him and he shot at them; neither

Hancock nor Kiyoka reported the incident to the police.

Defendant did not object to Woods’s testimony identifying Hancock and

Kiyoka as participants in the shoot-out. He thus has not preserved this issue for

appeal. (Evid. Code, § 353.) In any event, admission of this testimony by Woods

did not prejudice defendant. The testimony concerning the shoot-out and the

identity of the participants was not linked to defendant in any way. It arose in the

context of an attempt by the defense to impeach Woods by showing that Woods

22



received favorable treatment from the prosecution in connection with the shooting

incident that was not related to the murder charge against defendant.

C. Alleged Prosecutorial Misconduct

Defendant raises numerous instances of alleged prosecutorial misconduct

and asserts that these instances taken individually or collectively compel reversal

of his murder conviction. We disagree.

The law governing prosecutorial misconduct is well established. “Conduct

by a prosecutor that does not violate a court ruling is misconduct only if it

amounts to ‘the use of deceptive or reprehensible methods to attempt to persuade

either the court or the jury’ [citations] or ‘is so egregious that it infects the trial

with such unfairness as to make the conviction a denial of due process’ [citation].”

(People v. Silva (2001) 25 Cal.4th 345, 373; accord, People v. Coffman and

Marlow (2004) 34 Cal.4th 1, 120.) A finding of misconduct does not require a

determination that the prosecutor acted in bad faith or with wrongful intent.

(People v. Crew (2003) 31 Cal.4th 822, 839.) To preserve a claim of prosecutorial

misconduct for appeal, a defendant must object and seek an admonition if an

objection and admonition would have cured the harm. (Ibid; People v. Hill (1998)

17 Cal.4th 800, 820.) Applying these principles here, we review defendant’s

claims of prosecutorial misconduct in sequence.


1. Claim that prosecution improperly elicited evidence of defendant’s


incarceration

During the prosecution’s direct examination of Doreen Westbrook, the

following colloquy between the prosecutor and the witness occurred:

“[Q]: How long have you known [defendant]?

“[A]: About a year and a half or so.

“[Q]: Remember when you first met him?

“[A]: Yeah, at my house, somebody brought him to my house.

23



“[Q]: And did you use to hang out with [defendant]?

“[A]: Not – not really, cause he went back to prison right after I met him.”

Defendant claims that the prosecutor’s questioning constituted misconduct

because the prosecutor knew that the questions were likely to elicit testimony

about defendant’s criminal history. Defendant, however, did not object at trial to

this questioning. Therefore, the claim has been forfeited.

In any event, the claim lacks merit. As the Attorney General points out, the

questioning occurred at the beginning of Westbrook’s testimony and just before

her testimony about the events leading up to defendant’s killing of Glenn

Chambers at the rest stop. It was simply an attempt by the prosecutor to establish

the nature of the relationship between Westbrook and defendant. The question

whether Westbrook used to “hang out” with defendant fit into that context.

Westbrook’s response that defendant “went back to prison right after” she met him

was not a response that the prosecutor could necessarily have anticipated.

Defendant insists that the prosecutor must have anticipated Westbrook’s answer

because when the police asked her on the night she was apprehended how long she

had known defendant, she replied she “met him a year and a half ago . . . then he

went to the pen.” Because the prosecution’s question to Westbrook at trial that

elicited her reference to defendant’s prior incarceration was unlike the question the

police asked her the night she was apprehended, the prosecutor had no reason to

believe that his question at trial would cause Westbrook to mention defendant’s

imprisonment.


2. Alleged prosecutorial misconduct in introducing into evidence a


photograph of defendant’s tattoos

Defendant faults the prosecutor for introducing into evidence a photograph

of defendant’s torso showing tattoos depicting a swastika, the name of his gang on

his chest, and a gun on his abdomen. The Colusa County Sheriff showed this

24



photograph to Janet Madsen before she identified defendant from the videotape of

his arrest, and it was a subject of her testimony regarding her identification of

defendant. Because defendant did not object at trial, he has not preserved this

issue for review. Also, contrary to defendant’s claim, the photograph, which was

actually introduced into evidence by the defense and not the prosecution, was

relevant to Madsen’s identification as it was the photograph shown to her at the

time of her identification of defendant at the police station.

Equally without merit is defendant’s assertion that the prosecutor

committed misconduct by referring to defendant’s gun tattoo in closing argument.

In its cross-examination of defendant’s friend George Hancock, the defense

elicited a statement that Hancock had never seen defendant with a gun. Hancock’s

testimony gave rise to the inference that defendant did not use and was not around

guns. Because the existence of a gun tattoo on someone’s body gives rise to the

inference that that person may be familiar with and be around guns, the evidence

of the tattoo tended to impeach Hancock’s testimony. It was thus a proper subject

of the prosecutor’s closing argument.


3. Claim that prosecution improperly elicited testimony of defendant’s


prior arrest

Defendant accuses the prosecution of engaging in misconduct by asking

two witnesses, John Hancock and Dina McKee, about a prior arrest involving

defendant and firearms.

The prosecution began the redirect examination of defendant’s friend John

Hancock by referring to Hancock’s testimony on cross-examination by the defense

that he had never seen defendant carry a gun. The prosecution then elicited

testimony from Hancock that he, defendant, and Dina McKee were arrested in

June 1992 and that in a car search incident to that arrest the police seized two

pistols. After asking Hancock if the guns belonged to him and being told they did

25



not, the prosecutor remarked, “Supposedly they were Dina’s?” Hancock

responded that the police report stated that the guns were Dina’s.

We reject defendant’s contention that the prosecutor’s questioning was

designed to elicit inadmissible evidence of a propensity by defendant to have guns.

Defendant failed to preserve this claim for appeal by not objecting to the

questioning at trial. Moreover, the questioning was proper to impeach Hancock

because Hancock’s admission that he and defendant were arrested in a car in

which guns were found raised doubts as to the veracity of Hancock’s previous

statement on cross-examination that he had never seen defendant carry a gun.

Nor, contrary to defendant’s argument, does admission of that testimony

violate the evidentiary limitations on the use of evidence of specific instances of

prior misconduct. Those restrictions do not apply to evidence offered to support

or attack the credibility of a witness. (Evid. Code, § 1101, subd. (c).) In addition,

the record does not support defendant’s assertion that Hancock’s statement that he

never saw defendant carry a gun was not admitted for its truth. The admission of

the evidence was not so limited at trial. Finally, we see no impropriety in the

prosecutor’s apparently sarcastic remark, “Supposedly they were Dina’s?,” which

implied that the prosecutor suspected that the guns found in the car actually

belonged to either defendant or Hancock. Although the police report prepared at

the time of the arrest stated that the persons in the car in which the guns were

found claimed the guns belonged to Dina, the prosecutor was not required to

accept this claim as truthful.

On direct examination by the defense, Dina McKee presented an alibi for

defendant by saying that defendant spent the night with her when the murder

occurred. On cross-examination, the prosecution asked about her June 1992

arrest, which occurred at the same time as the arrests of Hancock and defendant,

and inquired whether the guns found in the car were hers. Defendant asserts that

26



the prosecutor’s questions constituted misconduct. We disagree. Evidence that

defendant and McKee had previously been involved together in a criminal activity

was relevant because it cast doubt on the credibility of McKee’s testimony that

defendant was spending the night with her when the murder occurred. (People v.

Freeman (1994) 8 Cal.4th 450, 494.)


4. Alleged prosecutorial misconduct in eliciting testimony regarding


defendant’s gang affiliation and propensity for violence

The prosecutor asked Doreen Westbrook to describe defendant’s mood

after he had used methamphetamine and they were driving from Sacramento to the

rest stop where the murder occurred. Westbrook answered: “He was in a

maniacin’ mood, he was spun.” She defined “spun” as “like you’re rock and

rollin’ . . . don’t care about nothing.” She defined “maniacin’” as a state of mind

that ends in violence with a person feeling “[t]en feet tall and bulletproof. You do

– you do anything you want and you don’t let nobody tell you no. You’re above

the law, you’re above the rules, you break the rules, you do it just to see if you can

get away with it.” Westbrook also testified that she knew where the sound of the

gunshot came from at the rest stop “[b]ecause [defendant] had a gun when we left

Sacramento. We were joking around about robbing people, he was in a maniacin’

mood, I knew where the shot came from.”

Defendant accuses the prosecutor of misconduct by eliciting testimony

from Westbrook that defendant was in a “maniacin’” mood the night of the

murder. Defendant argues that the testimony was both improper opinion evidence

of his propensity for violence and an irrelevant reference to his gang affiliation

with the Sacramaniacs gang. Because defendant did not object to this testimony at

trial, he is precluded from raising these issues on appeal. In any event, as

explained below, defendant’s arguments lack merit.

27



Contrary to defendant’s argument, Westbrook’s testimony was not

objectionable as improper lay opinion evidence. The testimony defined

Westbrook’s use of the term “maniacin’,” which needed explanation because it

lacked a commonly understood meaning. Westbrook’s opinion about defendant’s

state of mind on the night of the murder was admissible because it was based on

her perceptions and helped to better understand her testimony. (Evid. Code,

§ 800, subd. (a); see also People v. Williams (1988) 44 Cal.3d 883, 914-915.)

Nor was Westbrook’s testimony irrelevant. It was relevant because it

described defendant’s state of mind at the time of the murder. In addition,

contrary to defendant’s assertion, the jury would not have understood Westbrook’s

statement defining the word “maniacin’” as referring to defendant’s affiliation

with the gang called the Sacramaniacs. Her definition pertained to a state of mind,

not a gang.


5. Claims of prosecutorial misconduct relating to testimony


concerning immunity

Defendant accuses the prosecutor of misconduct in questioning Doreen

Westbrook about her having been granted immunity. Defendant claims that the

questions misled the jury, unfairly bolstered Westbrook’s credibility by suggesting

“the trial court had given its imprimatur to the prosecution’s decision to grant

immunity,” unfairly implicated defendant in the immunity process, and unfairly

minimized the prosecution’s role in granting Westbrook immunity. Because

defendant did not object at trial to these questions, he has not preserved these

claims for appeal. Moreover, as we will explain, the record does not support his

allegations.

During

direct

examination, the prosecutor elicited from Westbrook the

statement that the issue of immunity did not come up until she testified at the

preliminary hearing, when, in the words of the prosecutor, defense counsel

28



declared the Fifth Amendment.” (Italics added.) Defendant claims the word

“declared” inaccurately implied that the defense asserted Westbrook’s Fifth

Amendment right. We disagree. As the Attorney General notes, defense counsel

did raise the issue of Westbrook’s privilege against self-incrimination at the

preliminary hearing. Although the prosecutor would have been more precise had

he said that defense counsel “raised the question of” Westbrook’s Fifth

Amendment privilege, instead of saying that counsel “declared” that privilege, the

prosecutor’s description of what transpired at the preliminary hearing was not

inaccurate.

Likewise without merit is defendant’s assertion that the prosecution

unfairly bolstered Westbrook’s credibility by suggesting that the court gave its

imprimatur to the immunity. Westbrook responded “yes” to the prosecutor’s

question that the immunity “was granted by [the prosecutor’s] office with the

approval of the Court, correct?” There was no misconduct. The question merely

informed the jury that Westbrook had received immunity. Here, as in People v.

Freeman, supra, 8 Cal.4th at page 489, “[n]o reasonable juror would interpret the

questions as implying that the judge, or anyone else, had vouched for her

credibility.”


6. Claim that prosecutor improperly bolstered evidence of defendant’s


admissions

Defendant and Doreen Westbrook were at the apartment on Dawn Court in

Sacramento the morning of the murder with, among others, Kimberly Crawford.

During Crawford’s testimony on direct examination, the prosecutor asked her if

defendant had made a statement along the lines of “ ‘I got these [credit] cards from

an old guy who fought back so I shot him.’ ” Crawford responded that she was

not sure defendant said anything about credit cards, but she did recall that

defendant said he shot the man. The prosecutor then asked Crawford whether she

29



remembered telling Detective Markss in a pretrial interview that defendant said he

shot the man because the man put up a struggle. She answered “yes.”

Defendant’s claim of prosecutorial misconduct is based on the assertion

that the prosecutor’s reference to Crawford’s prior out-of-court statement was

improper hearsay because it included an inadmissible prior consistent statement by

her. There was no objection at trial, so the claim is forfeited. Moreover, the

reference was admissible to refresh Crawford’s recollection. (People v. Parks

(1971) 4 Cal.3d 955, 961.)

7. Claim that prosecutor improperly coached Westbrook’s testimony

At an in-chambers conference, defense counsel advised the trial court that

his cross-examination of Doreen Westbrook would concern statements by her

during a polygraph examination. Counsel proposed that Westbrook be given an

opportunity to first review the tape of the polygraph examination outside the jury’s

presence. The prosecution then suggested that court and counsel proceed with the

trial by having other witnesses testify.

Defendant contends that differences between Westbrook’s testimony before

she viewed the videotape of her polygraph examination and after she viewed it

must have been the product of coaching by Detective Markss and thus

prosecutorial misconduct. Nothing in the record supports defendant’s statement

that Detective Markss accompanied Westbrook to the room to view the videotape.

In addition, the differences defendant cites in Westbrook’s testimony before and

after she viewed the videotape of her polygraph examination do not support his

claim of prosecutorial misconduct. Before viewing the videotape, Westbrook

testified it took her an hour and a half to drive from North Sacramento to Rancho

Tehama; after viewing the videotape, she testified the drive took her two hours.

Before viewing the videotape, Westbrook testified that defendant called her from

jail and told her it would be “really wise” if she told the police that Billy Jinks

30



committed the murder; after viewing the videotape, she testified that she was

scared because defendant told her that doing what he asked would be “better for

your health,” a statement Westbrook understood to be a direct threat. The

difference in Westbrook’s testimony on the driving time is relatively minor, and

her testimony about the telephone call from defendant is not in conflict. Finally,

defendant forfeited the claim by failing to object at trial.


8. Claims of prosecutorial misconduct relating to testimony of John


Hancock

Sacramento County Sheriff’s Detective Richard Matranga interviewed John

Hancock twice while Hancock was in custody. At trial, on direct examination by

the prosecution, Hancock denied telling Detective Matranga that defendant had

told him about shooting an old man and taking his wallet, and that defendant had

showed him a gun. On cross-examination by the defense, Hancock testified that

he was defendant’s best friend, that he would never give the police a statement

about defendant’s admitting anything, and that he would “do time” before he

“would snitch somebody off.” On redirect examination by the prosecution,

Hancock denied telling Detective Matranga about his involvement in a shoot-out

with someone named Kiyoka at the apartment of Ron Woods. He also denied

telling Matranga about another shooting involving a man named “Loaf.”

The prosecution next called Detective Matranga as a witness. Matranga

testified that Hancock told him that he ran the Sacramaniac gang; that Hancock

showed him two gang tattoos, one on his back and one on his penis; that Hancock

told him that defendant bragged about the murder and showed Hancock a gun; and

that Hancock provided details of the shoot-out at Woods’s apartment involving

Hancock, Woods, and a man named Kiyoka. Hancock also told Detective

Matranga about a shooting involving a man named “Loaf.”

31



Defendant argues it was misconduct for the prosecutor to elicit the

testimony concerning Hancock’s gang affiliation and gang tattoos. He contends

the testimony was irrelevant. We disagree.

We recognize that evidence of gang affiliation creates a risk that the jury

will infer a defendant’s criminal disposition from the evidence and decide guilt of

the offense charged based on that inference. As we have held previously,

evidence of criminal disposition is inadmissible to prove commission of a specific

act. (People v. Williams (1997) 16 Cal.4th 153, 193.) Gang affiliation evidence

that is otherwise relevant, however, is admissible, although subject to trial court

scrutiny because of its highly inflammatory impact. (Ibid.; People v. Champion

(1995) 9 Cal.4th 879, 921-923.) Here, evidence of Hancock’s gang affiliation was

relevant (Evid. Code, § 210), because the affiliation of Hancock and defendant

with the same gang explained why defendant would have made incriminating

statements about his involvement in the murder to Hancock.



Likewise misplaced is defendant’s claim that the prosecutor on direct

examination of Detective Matranga committed misconduct by eliciting testimony

about Hancock’s involvement in the shoot-out at Ron Woods’s apartment and the

shooting involving an individual nicknamed “Loaf.” This testimony impeached

the inconsistent statements Hancock made earlier while testifying on redirect

examination by the prosecution.


9. Claim of prosecutorial misconduct in eliciting evidence of


incarceration of defense witness’s husband

Defendant accuses the prosecutor of misconduct by eliciting from John

Hancock testimony agreeing with the prosecutor’s comment about defense witness

Dina McKee’s husband being “in the joint now.” In sustaining a defense

objection, the trial court said: “I don’t know any relevance for it.” The court

admonished the prosecution not to “go into it.” The misconduct, if any, was not

32



prejudicial to defendant, because any possible harm was cured by the trial court’s

admonition.

10. Claim of prosecutorial misconduct for asking leading questions

According to defendant, the prosecutor committed misconduct when he

asked leading questions at the guilt phase of the trial. Defendant, however, fails to

identify the questions, instead providing only record citations, a quotation where

the trial court told the prosecutor to “be careful,” and a quotation where the

prosecution asked the court for “a little latitude with this witness” and the court

responded, “I haven’t seen any problem yet.”

The record does not support defendant’s allegation of prosecutorial

misconduct. The parts of the record cited by defendant in support of his claim of

prosecutorial misconduct show nothing more than the normal process of

questioning and objections at trial. For example, defendant cites the following

exchange as indicative of prosecutorial misconduct.

“[Prosecutor] Did you – you knew that what you were doing at that point in

time was against the law, did you not?

“[Defense Counsel] Leading. Form of the question is leading.

“[Court]

Sustained.

“[Prosecutor] Did you know whether or not using stolen credit cards is

against the law?

“[Witness]

Yes.”

We have reviewed defendant’s citations to the record in support of his

allegation and conclude that they do not establish prosecutorial misconduct

because they do not show deceptive or reprehensible methods by the prosecution.

Nor do they show that the trial was infected with unfairness resulting in a

conviction that denied defendant due process. (People v. Coffman and Marlow,

supra, 34 Cal.4th at p. 120.)

33



11. Alleged prosecutorial misconduct at closing argument

Defendant cites as misconduct a number of statements the prosecutor made

during closing argument to the jury. Defendant, however, did not object to any of

the challenged statements and therefore cannot now raise them. (People v. Crew,

supra, 31 Cal.4th at p. 839.)

In any event, we conclude that the statements either were not misconduct or

did not prejudice defendant. During closing argument to the jury, the prosecutor

stated that Manuel Acosta, the truck driver at the rest stop where the murder

occurred, testified that defendant did not look like the man he saw come out of the

restroom and commented, “ ‘Well, I guess I missed the beard.’ ” The statement

about missing the beard, however, was made not by Acosta but by Janet Madsen

who testified that she saw defendant come out of the restroom right after the

shooting. The jurors could not have been misled, because in her testimony

eyewitness Madsen readily acknowledged “miss[ing] the beard.” This, coupled

with defense counsel’s closing argument to the jury that Acosta had testified that

defendant was not the man he saw at the scene of the murder, support our

conclusion that defendant has not shown a reasonable likelihood that the jury was

misled by the prosecutor’s attributing to Acosta the statement about defendant’s

beard. (People v. Brown (2003) 31 Cal.4th 518, 553.)

Defendant

complains

about the prosecutor’s description of defense counsel

Leo Steidlmayer as a “highly paid professional.” In his closing argument to the

jury, defense counsel said that he was in the position of acting as a 13th juror. The

prosecutor responded he had difficulty with that description because defense

counsel, unlike the jurors, is “as much of a – of a highly trained and skilled lawyer

as anybody who is sitting at counsel table here.” A prosecutor’s description of

defense counsel as being a highly trained and skilled lawyer is not misconduct.

Such a statement does not rise to the level of a deceptive or reprehensible attempt

34



to improperly influence a jury. (People v. Coffman and Marlow, supra, 34 Cal.4th

at p. 120; People v. Silva, supra, 25 Cal.4th at p. 373.)

Defendant asserts that the prosecutor improperly “vouched for his case” by

telling the jury that defense counsel’s “idea of blowin’ smoke and roiling up the

waters to try to confuse you is you put everybody else on trial.” It is not

misconduct for a prosecutor to argue that the defense is attempting to confuse the

jury. (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) Here, the record

does not support defendant’s characterization of the prosecution’s statement as

attacking the integrity of defense counsel.

We now turn to defendant’s allegation that the prosecutor committed

misconduct by misstating defense counsel’s argument and the evidence. During

closing argument to the jury, the prosecutor stated that defense counsel attributed

eyewitness Madsen’s statement, “That man is the man I saw,” to the morning after

the murder when Madsen assisted Siskiyou County Sheriff’s Sergeant Gary Perry

with the composite drawing. The prosecutor asserted there was no evidence to

support defense counsel’s argument. Defense counsel’s argument, however,

referred to Madsen’s in-court identification, not to her statement at the time of the

composite drawing. Thus, the prosecutor confused defense counsel’s statement

pertaining to Madsen’s in-court testimony with Madsen’s testimony about the

composite drawing. The misconduct, if any, was not prejudicial to defendant,

however, because it is not reasonably likely that the jury misunderstood or

misapplied the comment. It was clear that Madsen’s in-court identification was

the subject of defense counsel’s argument. Contrary to defendant’s assertion, the

prosecutor’s misstatement would not have led the jury to impute any impropriety

to defense counsel.

Defendant also accuses the prosecutor of misconduct in stating in closing

argument to the jury that Ron Woods was not charged with any crimes arising out

35



of the shoot-out at his apartment because of the lack of cooperation from victims

Hancock and Kiyoka. There was no misconduct, for the prosecutor’s comment

correctly reflected the evidence produced at trial: No charges were filed against

Woods because the victims did not report the shooting to the police.

Nor was there misconduct when the prosecutor pointed out to the jury that

after the defense said in its opening statement that it would call Jay Blaylock as a

witness, it did not do so. Blaylock, who was with Janet Madsen at the public rest

stop at the time of the murder, did not testify at trial. It is not misconduct for a

prosecutor to comment on the failure of the defense to introduce material evidence

or to call witnesses. (People v. Mincey (1992) 2 Cal.4th 408, 446.)

Defendant contends the cumulative effect of the alleged instances of

prosecutorial misconduct, which we discussed above, compels reversal of the

judgment. We disagree. Any impropriety by the prosecutor, whether considered

individually or together, did not rise to the level of misconduct that would require

reversal of the judgment.

D. Cumulative Prejudice of Errors at Guilt Phase of Trial

Defendant argues that the cumulative prejudice of the errors he alleges

occurred at the guilt phase of the trial compel reversal of the judgment. But, as

discussed above, any errors that occurred were of an insubstantial nature. Whether

viewed either alone or in combination, the errors did not prejudice defendant.

III. PENALTY PHASE

A. Limiting Defense Closing Argument

Defendant contends the trial court violated section 1095, to his prejudice,

when it conditioned his right to have second counsel argue at the penalty phase on

the prosecution’s option to present a second closing argument to the jury. The

record does not support defendant’s assertion.

36



Section 1095 provides that in a capital case “two counsel on each side may

argue the cause.” The right of each side to present arguments by two attorneys

exists regardless of whether the opposing side presents arguments by two

attorneys. (People v. Bonin (1988) 46 Cal.3d 659, 694, fn. 3.) Violation of this

rule does “not amount to a denial of [a] constitutional right.” (Id. at p. 694.)

In discussing the matter of closing argument, the trial court stated: “So

then number of argument, just a couple of details. You’re entitled to two. Are we

gonna have two each, are we gonna have one each?” The prosecution responded

that it would do one closing argument, but depending on the closing argument by

the defense it would either “waive” or present a second closing argument.

Defense counsel then said, “if they waive that that would cut off our right to a

second argument.” When defense counsel asked the prosecutor to make the

decision before the conclusion of the first argument by the defense, the prosecutor

said it was impossible to do so. The court then told defense counsel: “He wants to

hear your argument before he decides whether to give up or not.” The court made

no further comments. The prosecution then made its closing argument, followed

by closing argument by the defense. At the conclusion of the defense argument,

the prosecution said it saw no need for further argument. Defense counsel

responded: “Matter submitted, your honor.”

The above recitation of what occurred at trial refutes defendant’s claim that

the court precluded the defense from exercising the statutory right to have “two

counsel . . . argue the case.”

B. Alleged Prosecutorial Misconduct

Defendant accuses the prosecution of various acts of misconduct at the

penalty phase.

Earlier, with respect to the alleged prosecutorial misconduct at the guilt

phase, we set forth the governing law. In brief, prosecutorial misconduct occurs

37



only if the actions by the prosecution involve “ ‘the use of deceptive or

reprehensible methods to attempt to persuade either the court or the jury’

[citations] or ‘is so egregious that it infects the trial with such unfairness as to

make the conviction a denial of due process’ [citation].” (People v. Silva, supra,

25 Cal.4th at p. 373.) To preserve a claim of prosecutorial misconduct for appeal,

a defendant must object and seek an admonition if doing so would have cured the

harm. (Ibid.; People v. Hill, supra, 17 Cal.4th at p. 820.)

Defendant has forfeited each claim of prosecutorial misconduct at the

penalty phase because of his failure to object at trial. (People v. Silva, supra, 25

Cal.4th at p. 373; see People v. Miller (1990) 50 Cal.3d 954, 1000-1001.)

Defendant insists that his failure to preserve his claims for appeal should be

excused on the ground that the misconduct rendered the penalty verdict so unfair

and unreliable as to require reversal of the penalty verdict. The record does not

support defendant’s argument, as discussed below.

1. Alleged interference with witness preparation

Defense counsel obtained court orders directing that defendant’s two

brothers, Hank and Buford Kennedy, be transferred from the facilities in which

they were then incarcerated to the Colusa County jail so they could testify on

November 17, 1993, at 9:00 a.m., as defense witnesses at the penalty phase of

defendant’s trial. At 8:55 a.m. on that date, defense counsel advised the court in

chambers that he was informed the night before that the two brothers were not

available and that the jail staff was unable to tell counsel where the witnesses

were. When defense counsel indicated his desire to speak to the two brothers

before they testified, the court assured counsel, “You’ll have that right, no

question.” The prosecutor then mentioned that the two brothers were not going to

be housed at the Colusa County jail because of security concerns. Defense

counsel responded that he had not expected that he “wouldn’t be able to even see

38



them until after the trial started.” The court assured defense counsel he would

“have the time.”

The parties then addressed the admissibility of a videotape and certain

concerns by defendant that some defense witnesses might assert their

constitutional right to not incriminate themselves. When the discussion returned

to the availability of defendant’s two brothers as witnesses, the prosecutor said

that he would make a telephone call at the next break to find out when defendant’s

two incarcerated brothers would arrive at the Colusa County jail, and make

arrangements for them to meet with defense counsel. The court told defense

counsel to let the court know if there were any problems, adding that the court

would “make sure you see ’em at a reasonable time and place.”

The prosecutor later informed the trial court that defendant’s two

incarcerated brothers would be arriving at the Colusa County jail later that

morning, one at 10:30 and the other at 11:30, and that defense counsel would be

given ample time to interview them. When the court told defense counsel “rest

assured that this Court will see that the proceedings afford you ample opportunity

to interview those two witnesses,” defense counsel said that the “issues raised this

morning then are all resolved as far as we’re concerned.” The parties and the

court then proceeded to deal with the admissibility of a videotape and a matter

concerning a juror.

After the prosecution completed its opening statement to the jury, defense

counsel informed the court, “because of the issues we raised this morning we

prefer to reserve our right to make an opening statement at the opening of our

case.” After the prosecution presented its penalty phase witnesses, the prosecutor

told the court and defense counsel that defendant’s two brothers had arrived at the

jail. At defense counsel’s request, the court extended the noon recess to 1:30 p.m.

39



At 1:25 p.m. the court and counsel met again in chambers. Defense counsel

mentioned he had been unable to interview defendant’s two brothers at the jail

because Department of Corrections staff told him that he could not meet with

defendant and the latter’s two brothers at the same time and that any conversations

would have to be conducted over the jail phones, which were monitored.

Arrangements were then made for the three Kennedy brothers to be in adjoining

cells; defense counsel would be outside the cells in the presence of an officer who

was not to communicate with the prosecution. The court then ordered a recess and

asked the jurors to return at 3:00 p.m.

When the court reconvened at 3:00 p.m., the prosecution rested and a

discussion ensued at a sidebar conference whether Buford Kennedy, defendant’s

incarcerated brother, would testify wearing prison clothes and in shackles. The

prosecutor mentioned the safety concerns expressed by a Department of

Corrections officer, described Buford as “damn near 5150” (a reference to a

person being dangerous or gravely disabled within the meaning of Welfare and

Institutions Code section 5150), and said that “his appearance wouldn’t even look

good in a three-piece suit” because of “ink all over his face, tattoo all over his face

. . . .” Defense counsel suggested that Buford Kennedy testify in prison clothes

with handcuffs, but that Hank Kennedy testify in prison clothes without physical

restraints. The defense then called Buford Kennedy as a witness.

Based on the events described above, defendant contends that “court error

here combined with prosecutorial misconduct” to deprive him of his right to

access to witnesses and to present a defense. Not so.

Contrary to defendant’s assertion, the circumstances surrounding his trial

counsel’s access to defendant’s incarcerated brothers, Buford and Hank Kennedy,

did not compel counsel to waive his opening statement at the beginning of the

proceeding. As mentioned earlier, defense counsel expressed a preference to defer

40



an opening statement to “the opening of our case.” This, counsel said, was

prompted by the “issues we raised this morning,” a reference to issues relating to

the possible exercise of the privilege against self-incrimination by potential

defense witnesses John Hancock and Richard Kiyoka. Although defense counsel

initially expressed concern about the adequacy of access to the two jailed brothers,

that issue was later resolved by the trial court, and defense counsel so stated in

court, as we mentioned earlier.

We also reject defendant’s claim that the prosecutor committed misconduct

by denying defense counsel sufficient time to address concerns relating to defense

witness Buford Kennedy’s mental issues. The record discloses that defense

counsel had an opportunity to meet with Buford and Hank Kennedy during the

court recess from 1:45 p.m. to 3:00 p.m., that defense counsel did not express a

need to postpone Buford’s testimony, and that Buford’s testimony was coherent

and lucid. Nor is there any merit to the claim that defendant’s rights were violated

because he was not allowed to speak to his two brothers either personally or

through his attorney privately. The arrangements made and agreed to by the

parties did not preclude defendant from speaking “privately” to either of

defendant’s brothers.

2. Allegation that prosecution made a defense witness unavailable

In the afternoon of November 16, 1993, the day before the beginning of the

penalty phase of defendant’s capital trial, defense counsel learned that several

individuals had been arrested for the attempted murder of John Tucker, also

known as “Loaf.” The persons arrested included John Hancock, who had testified

during the guilt phase of defendant’s trial. Hancock’s attorney later told defense

counsel that Hancock would not testify at the penalty phase because he would

assert his privilege against self-incrimination. Noting that the “Loaf” shooting had

occurred eight months before the arrests of persons involved in that shooting, and

41



that the arrests were made shortly before defendant’s penalty phase trial was to

begin, defense counsel accused the prosecution of having Hancock arrested to

prevent him from testifying for defendant at the penalty phase of defendant’s

capital trial. Defense counsel also moved to exclude evidence relating to the

shooting of Loaf. The prosecution responded by noting that it had given timely

notice of its intent to use the Loaf shooting as evidence of an aggravating factor at

the penalty phase, that the defense motion was not supported by legal authorities,

and that a witness’s right to invoke the privilege against self-incrimination did not

depend on whether the witness had been arrested.

After further argument to the trial court, the defense moved to exclude

evidence of the “Loaf shooting” or in the alternative for a continuance of the trial

to enable the defense to adequately prepare to address such evidence and the

issues raised by the possible assertion by John Hancock of the privilege against

self-incrimination. When the trial court announced it would grant the defense

motion for a continuance if the prosecution intended to proceed with evidence of

the “Loaf shooting,” the prosecution replied it would not introduce the evidence in

its case-in-chief.

Defendant accuses the prosecutor of misconduct by preventing potential

defense witness John Hancock from testifying by having him arrested for the

shooting of Loaf, which in turn led to Hancock’s expected invocation of the

privilege against self-incrimination. To establish a violation of the constitutional

right to the compulsory process of witnesses, the defendant must show, among

other things, “ ‘activity that was wholly unnecessary to the proper performance of

[the prosecution’s] duties and was of such a character as “to transform [a defense

witness] from a willing witness to one who would refuse to testify,” ’ and . . .

interference with the fact-finding process – that is, ‘a causal link between the

misconduct and [the defendant’s] inability to present witnesses on his own

42



behalf.’ ” (People v. Stewart (2004) 33 Cal.4th 425, 471.) The defendant must

also show that the witness’s testimony would have been both material and

favorable. (Ibid.; In re Martin (1987) 44 Cal.3d 1, 31-32.) There is no need here

to evaluate each of these requirements, as defendant has failed to show that the

testimony of potential witness Hancock would have been both material and

favorable. The required showing is not made by defendant’s unsupported

assertion that Hancock “was slated to present evidence in mitigation of

punishment, testimony obviously material and favorable to the defense.” It was

the prosecution that identified Hancock as a witness it intended to call to present

evidence in aggravation at the penalty phase. And Hancock’s testimony at the

guilt phase, which was impeached, undermines defendant’s assertion that

Hancock’s testimony during the penalty phase would have been material and

favorable to the defense.


3. Alleged prosecutorial misconduct in implicating defendant in a


second murder

Defendant accuses the prosecution of misconduct by asking questions

during cross-examination of defendant’s two brothers, Buford Kennedy and Hank

Kennedy, that taken together suggested defendant’s involvement in a second

murder. We disagree.

On cross-examination, Buford Kennedy told the prosecutor he did not want

defendant executed. The prosecutor then asked, “Whether it was one murder or

even if it was two murders?” Buford responded by saying “if it was two murders

or one murder, if he was guilty I feel that he would have copped to it.” Later,

during the prosecutor’s cross-examination of Hank Kennedy, when Hank said he

did not know what defendant did when he was released from prison on March 5,

1993, the prosecutor asked him if he knew “what [defendant] did on March 9,

1993?” Hank answered “no.” The prosecution then asked to approach the bench

43



and, in defense counsel’s presence, said: “My position is that given on direct

testimony and especially the part about where he thinks his brother can lead a

productive life, that it’s proper to impeach this witness with the evidence of the

Loaf shooting.” The court refused to allow the prosecutor to use evidence of the

Loaf shooting. Because of the trial court’s rulings excluding evidence concerning

what was referred to at trial as the “Loaf shooting,” the record discloses very little

about the matter. Presumably, the references to the “Loaf shooting” are to the

attempted murder of John Tucker, also known as “Loaf,” that we discussed in the

previous part.

Defendant’s allegation that the prosecution committed misconduct because

the jury could infer from the cross-examinations of defendant’s brothers, Buford

and Hank Kennedy, that defendant committed a second murder is too speculative.

The prosecutor’s question to Buford Kennedy about a second murder, quoted in

the immediately preceding paragraph, was not connected to any facts about any

murder. The prosecutor’s question to Hank Kennedy, also quoted above, stated a

date, March 9, 1993, presumably the date of the “Loaf shooting” incident, but the

question asked only about a date; it was not connected to anything about the Loaf

shooting or any other factual assertions. We conclude that the jury would not have

inferred from these questions that defendant had committed a second murder.

4. Claim of improper cross-examination by prosecutor

Defense witness Hank Kennedy testified on direct examination that

defendant should not be sentenced to death because he could lead a productive life

in prison. On cross-examination, the prosecutor asked Hank a number of

questions concerning defendant’s criminal background. Hank was asked if it was

a “pretty accurate guess” to say that defendant had been out of jail or prison for

only six months in 11 years. Hank responded, “Probably.” When he was asked

about defendant’s listing his occupation on California Department of Correction

44



records as being a robber, Hank replied, “I’m not gonna deny he’s ever robbed

anyone.” Hank responded to a prosecution question about defendant’s telling him

of “using a sawed-off shotgun on a lady and a kid to do a robbery” by saying

defendant told him “about that but not on a woman and a child, no.” Later during

the cross-examination, the prosecution asked Hank if defendant’s job in 1976 as

an electrician ended because defendant went to federal prison for stealing cars and

taking them across state lines. Hank answered, “I’m not sure what he was in

federal prison for but I believe so.” When asked by the prosecution if defendant

and Hank had been arrested in a “guns and dope case,” Hank replied that the case

was dismissed.

Defendant argues that the prosecutor engaged in misconduct by asking

questions on cross-examination involving prior bad acts by defendant. We

disagree. Evidence of specific instances of conduct is admissible to attack the

credibility of a witness. (Evid. Code, § 1101, subd. (c).) Thus, the prosecution

may cross-examine a defense character witness about acts inconsistent with the

witness’s testimony as long as the prosecution has a good faith belief that such

acts actually occurred. (People v. Barnett (1998) 17 Cal.4th 1044, 1170.)


5. Allegation that the prosecution improperly implied the existence of


facts that could not be proved

In cross-examining defense witness Hank Kennedy, the prosecutor asked

about his numerous prior felony convictions. Hank explained that he was not

convicted of attempted murder but of shooting at an occupied vehicle and that one

of the convictions was not for grand theft from a person but for stealing a backhoe

trailer. The prosecutor also cross-examined defense witness Buford Kennedy

about his numerous prior felony convictions. He denied having been convicted of

assaulting a police officer, claiming the conviction was for assault with a deadly

weapon and did not involve a police officer. On cross-examination of defendant,

45



the prosecutor, referring to the evidence about a shoot-out at Ron Woods’s

apartment involving John Hancock and someone named Richard Kiyoka, asked

defendant: “Did you tell [John Hancock] and Richard Kiyoka to go shoot up Ron

Woods so he wouldn’t testify against you?” Defendant responded, “No sir, I did

not.”

Defendant contends the prosecutor committed misconduct because these

questions imply the existence of facts the prosecutor could not prove. There were

no defense objections to the prosecution’s questions and thus no further inquiry

into or development of the subject matters of the prosecution’s questions.

Accordingly, there is nothing in the record to support defendant’s assertion that

the prosecution could not prove the facts implied in the questions or that the

prosecutor asked the questions in bad faith. (People v. Barnett, supra, 17 Cal.4th

1044, 1170-1171.)

6. Alleged prosecutorial impropriety in asking objectionable questions

Defendant quotes at length from the prosecution’s cross-examination of

Buford Kennedy inquiring into defendant’s criminal record, in the course of which

the trial court sustained a defense objection to one of the questions as

argumentative. Defendant then quotes the following question by the prosecutor

asking Sharon Galiano about a residential robbery committed by defendant, to

which the trial court sustained a defense objection on the ground the question was

leading and suggestive: “Did the defendant . . . make a statement to you while he

was in the house that he wanted to kill your husband?” Finally, defendant simply

gives two reporter’s transcript citations with the notation that argumentative

objections were there sustained, without further elaboration.

Defendant presents no argument and makes no effort to establish that his

quoted portion of the prosecution’s cross-examination of Buford Kennedy, his

quoted question from the prosecution’s direct examination of Sharon Galiano, or

46



his two citations to the reporter’s transcript, individually or collectively, support

his allegation of prosecutorial misconduct. Having reviewed the challenged

testimony, we conclude that they do not.

7. Alleged prosecutorial misconduct during closing argument

During his closing argument at the penalty phase, the prosecutor told the

jury that it should be insulted by defendant’s attitude and demeanor, and by his

comment to the jury that it was wrong in convicting him of the murder. The

prosecutor told the jury it could consider this conduct by defendant as an

aggravating factor. Thereafter, in his closing argument, defense counsel described

the prosecutor’s argument as a “smoke screen” and pointed out to the jury that an

innocent person must maintain his or her claim of innocence.

Defendant

contends

that the prosecutor committed misconduct by telling

the jury that defendant’s continued claim of innocence during the penalty phase

could be considered as an aggravating factor in determining the penalty.

We agree with defendant that it was improper for the prosecutor to state

that defendant’s testimony at the penalty phase that he was innocent was an

aggravating factor. (People v. Fierro (1991) 1 Cal.4th 173, 244.) Defendant

failed to preserve this issue for appeal, however, because he did not object and

request an admonition at trial. In addition, the comment was not prejudicial,

because it was brief and was directly addressed and countered by defense counsel

in his closing argument.

We reject defendant’s additional claim that the prosecution committed

misconduct during its closing argument in telling the jury that defendant deserved

no less punishment than what he inflicted on the murder victim and that defendant

did not show mercy or sympathy to the victim. The argument is permissible under

California law. (People v. Ochoa, supra, 19 Cal.4th at pp. 464-465.)

47




8. Cumulative prejudice of alleged prosecutorial misconduct at the


penalty phase

Earlier, we identified one error at the penalty phase: the prosecutor’s

statement during his closing argument to the jury that it could consider as an

aggravating factor defendant’s continuing assertion of innocence during the

penalty phase after the jury at the guilt phase had convicted him of the murder.

But, as we explained earlier, this error was not prejudicial to defendant.

C. Failure to Instruct on Criminal Activity Involving Force

Defendant

contends

the trial court committed prejudicial error in not

instructing the jury that it could not consider evidence that defendant had

committed crimes other than those with which he was charged unless the jury

found the other crimes were proved beyond a reasonable doubt. Our law does

require the jury to be so instructed. (People v. Avena (1996) 13 Cal.4th 394, 429;

People v. Robertson (1982) 33 Cal.3d 21, 53-54; see CALJIC No. 8.87.) The

failure to do so is prejudicial if it is reasonably possible the failure to instruct

affected the jury’s verdict. (People v. Avena, supra, at p. 429.) The Attorney

General argues that the failure to so instruct the jury here was not prejudicial. We

agree.

The evidence against defendant at the penalty phase consisted primarily of

victim impact testimony, evidence of his conduct underlying his 1986 conviction

for the residential robbery of Sharon Galiano and her four-year-old daughter, and

evidence of his other convictions before the verdict of guilt of the offenses

charged in this case. Defendant’s assignment of error here concerns the trial

court’s failure to instruct as to the evidence of his conduct during the 1986

robbery.

The prosecutor’s closing argument made two related references to criminal

activity involving the use of force or violence or the implied threat to use force or

48



violence involving the 1986 robbery. (§ 190.3, factor (b).) He first commented

that the jury could consider the residential robbery of Sharon Galiano and her

four-year-old daughter and then commented on a letter defendant wrote while

incarcerated at the Sacramento County jail “asking somebody to take care of

Sharon Galiano,” a letter the prosecutor described as threatening Galiano.

The records of defendant’s convictions for the 1986 robbery of Galiano and

possession of a sawed-off shotgun relating to that robbery were before the jury, the

trial court instructed the jury that it could not consider those prior convictions

unless it found beyond a reasonable doubt that defendant was the person convicted

of those crimes, and defendant admitted committing and being convicted of the

robbery. Although defendant denied pointing the shotgun at Galiano’s four-year-

old daughter, he testified that he may have accidentally pointed the gun at Galiano

and that he pointed the gun “at people when [he] walked through the door” of

Galiano’s house. Defendant also admitted to writing a letter while in the

Sacramento County jail “asking somebody to take care of Sharon Galiano.”

Defendant testified that by “tak[ing] care of Sharon Galiano” he meant to try to

bribe her not to testify against him, not to kill her.

It is not reasonably possible in light of the above described evidence that

the trial court’s failure to instruct the jury that it could not consider evidence of

prior crimes unless the jury found the other crimes proved beyond a reasonable

doubt affected the jury’s verdict. With the exception of disputing that he pointed

the gun at Galiano’s four-year-old daughter during the 1986 residential robbery,

defendant admitted the facts underlying the robbery and the robbery conviction.

Even as to the pointing of the gun during the robbery, defendant admitted that he

pointed it “at people” when he came through the door of Sharon Galiano’s

residence. The only people there were Galiano and her four-year-old daughter.

The only evidence before the jury concerning the letter defendant wrote from jail

49



“asking somebody to take care of Sharon Galiano” was defendant’s own testimony

that he meant to have someone bribe, not kill, Galiano. In view of the substantial

aggravating evidence presented, the evidence of defendant’s letter about Galiano

is not such that it would have played any significant role in the jury’s decision.

Moreover, defendant was not entitled to the reasonable doubt instruction

for other crimes of which he had been convicted. The instruction applies only to

unadjudicated violent criminal activity. (People v. Welch (1999) 20 Cal.4th 701,

766.) Here, the other crimes evidence consisted primarily of defendant’s

adjudicated conduct, that is, the conduct that had resulted in his prior convictions

for robbery and illegal weapon possession. The evidence of defendant’s other

criminal activity not resulting in convictions, such as the letter about Galiano, was

relatively insignificant, so that it is not reasonably possible the trial court’s failure

to instruct on the reasonable doubt standard as to those other crimes affected the

jury’s verdict.

Our conclusion that defendant was not prejudiced by the trial court’s failure

to instruct on crimes other than those charged in this case is not changed by

defendant’s assertion, without supporting record citations or elaboration, that the

prosecutor insinuated throughout the case that defendant committed other

threatening or violent criminal conduct. Specifically, defendant claims the

prosecutor referred to: defendant’s unlawful possession of firearms; threats to

Doreen Westbrook; prison assaults; unspecified criminal activity “perhaps”

involving an attempted murder on March 9, 1993 (presumably the “Loaf

shooting”); and a threat to kill Sharon Galiano’s husband. All of this conduct was

either admitted by defendant, was established by records of defendant’s

convictions, primarily concerned individuals other than defendant, or was at most

a passing reference by the prosecutor.

50



D. Automatic Motion to Modify Penalty Verdict

The trial court denied defendant’s automatic motion to modify the jury’s

verdict of death. (§ 190.4, subd. (e).) In denying the motion, the court stated that

it was guided by the statutory aggravating and mitigating factors, and it made a

number of findings. In the course of discussing its findings of aggravating factors,

the court said: “At this point, [defendant] has shown no remorse for his conduct,

in fact denies perpetrating the crime.”

Defendant contends the trial court erred in using defendant’s lack of

remorse as an aggravating factor. Defendant, who had instructed counsel to

submit the motion at issue without argument, did not object at trial and,

accordingly, failed to preserve the issue for appeal. (People v. Martinez (2003) 31

Cal.4th 673, 701; People v. Riel, supra, 22 Cal.4th at p. 1220.) In any event, the

error did not prejudice defendant.

We agree with defendant that lack of remorse cannot be used as an

aggravating factor unless it is a circumstance of the murder. (People v. Crew,

supra, 31 Cal.4th at p. 857; People v. Mendoza (2000) 24 Cal.4th 130, 187.) But

we conclude that there is no reasonable possibility (People v. Avena, supra, 13

Cal.4th at p. 448) the error affected the trial court’s decision, as discussed below.

In discussing aggravating factors, the trial court found that the killing of

Glen Chambers was during a robbery, was intentional, had been planned, and was

committed 10 days after defendant had been paroled. The court also noted

defendant’s prior convictions for robbery and weapons charges, and it mentioned

that defendant had been in prison for 10 out of the past 11 years. As to mitigating

factors, the court stated after considering every possible mitigating factor,

including any circumstances extenuating the gravity of the crime, it found

“nothing except the possibility that there was testimony that Mr. Kennedy used

some narcotics prior to the commission of this offense, this killing.” With respect

51



to defendant’s use of drugs, the court commented that the “particular evidence [of

defendant’s drug use at the time of the crime] is un – unmoving to this Court and

is unconclusive [sic] as the evidence stands at this time.” In short, the court

identified a number of aggravating factors but found only one possible mitigating

factor, which the court described as “unmoving” and “inconclusive.” Under these

circumstances, the trial court’s error in viewing defendant’s lack of remorse as an

aggravating factor did not prejudice defendant.

E. Alleged Violations of International Law

Defendant contends the violations of state and federal law he has asserted

on this appeal also establish that he was denied the right to a fair and impartial trial

in violation of international law. We reject this contention. (People v. Jenkins

(2000) 22 Cal.4th 900, 1055; see People v. Smith (2005) 35 Cal.4th 334, 374;

People v. Brown (2004) 33 Cal.4th 382, 403-404.)

F. Cumulative Error

Defendant contends the judgment must be reversed because of the

cumulative prejudice of errors at the guilt and penalty phases of his capital trial.

Considered individually or collectively, the very few errors at defendant’s trial

were not prejudicial.

IV. CHALLENGES TO DEATH PENALTY LAW

Defendant challenges the constitutional validity of California’s death

penalty law on a number of different grounds. We reject each challenge.

A. Failure to Sufficiently Narrow Eligibility for Death Penalty

Defendant contends California’s death penalty law violates the Eighth

Amendment to the federal Constitution’s prohibition against cruel and unusual

punishment because it does not meaningfully distinguish the cases in which the

death penalty is imposed from the cases in which it is not. He asserts that the

death penalty law contains so many special circumstances making a defendant

52



eligible for the death penalty that it no longer performs the constitutionally

required narrowing function. We have in the past repeatedly rejected this

challenge. (E.g., People v. Crew, supra, 31 Cal.4th at pp. 859-860; People v.

Bolden (2002) 29 Cal.4th 515, 566.)

We also reject defendant’s assertion that the Eighth Amendment to the

federal Constitution prohibits the death penalty as a form of punishment because

the death penalty is not recognized in European countries and therefore is cruel

and unusual. Whether a form of punishment is cruel and unusual under the Eighth

Amendment is determined based on an evaluation of evolving standards of

decency. (Trop v. Dulles (1958) 356 U.S. 86, 100-101.) Although the practices

and norms of other nations can be relevant in determining whether a punishment is

cruel and unusual under the Eighth Amendment, they are not controlling. (Roper

v. Simmons (2005) ___ U.S. ___, ___ [125 S.Ct. 1183, 1200].) What matters are

the standards of decency of the American people. As our high court has stated,

“the ‘clearest and most reliable objective evidence of contemporary values is the

legislation enacted by’ ” our nation’s legislatures. (Atkins v. Virginia (2002) 536

U.S. 304, 312.)

Defendant further contends that our death penalty law violates the Equal

Protection Clause and the Eighth Amendment to the federal Constitution because

it allows the imposition of the death penalty based on the felony-murder rule,

which does not require intent to kill, while a premeditated and deliberate

intentional murder does not necessarily qualify the murderer for the death penalty.

We have previously rejected this contention. (People v. Taylor (1990) 52 Cal.3d

719, 747-748; People v. Anderson (1987) 43 Cal.3d 1104, 1147.)

B. Triple-counting Same Facts

Defendant contends that the use of the same fact – robbery of the murder

victim – (1) to qualify the murder as first degree murder, (2) to make the murder

53



eligible for the death penalty, and (3) as an aggravating factor in deciding whether

the death penalty should be imposed, was impermissible. He argues that multiple

use of the same facts violates the Eighth Amendment, the Fourteenth Amendment,

and the Fifth Amendment to the United States Constitution. We have in the past

rejected this argument (People v. Webster (1991) 54 Cal.3d 411, 455-456; People

v. Marshall (1990) 50 Cal.3d 907, 945-946) and do so again here.

C. Challenges to the Penalty Phase of Trial

Defendant presents a number of challenges to the penalty phase of the trial.

As he acknowledges, this court has in prior decisions rejected these challenges.

We briefly discuss these holdings below.

A trial court is not required on its own motion to instruct the jury not to

consider the same facts as circumstances of the offense and as special

circumstances. (People v. Cain (1995) 10 Cal.4th 1, 68.)

Allowing the jury to consider the circumstances of the crime (§ 190.3,

factor (a)) does not lead to the imposition of the death penalty in an arbitrary or

capricious manner. (People v. Brown, supra, 33 Cal.4th at p. 401.)

The trial court is not required to delete any inapplicable factors from the list

of statutory factors presented to the jury. (People v. Jones (2003) 30 Cal.4th 1084,

1128-1129.)

Sentencing factors do not have to be characterized by the trial court as

aggravating or mitigating. (People v. Brown, supra, 33 Cal.4th at p. 402.) The

use of adjectives in the sentencing statute and instruction such as “extreme” and

“substantial” do not render either unconstitutional. (Ibid.)

The federal Constitution does not require juries to make written findings or

achieve unanimity as to aggravating circumstances. (People v. Brown, supra, 33

Cal.4th at p. 402.)

54



California’s death penalty law is not unconstitutional for not imposing a

burden of proof on the prosecution to prove that death is the appropriate penalty.

(People v. Brown, supra, 33 Cal.4th at p. 401.)

The federal Constitution does not require intercase proportionality review.

(People v. Brown, supra, 33 Cal.4th at p. 402.)

The federal Constitution does not compel a trial court to instruct the jury

that a sentence of life without possibility of parole actually means life without

possibility of parole (People v. Jones (1997) 15 Cal.4th 119, 189-190), or to tell

the jury there is a presumption that life without possibility of parole is the

appropriate sentence (People v. Arias (1996) 13 Cal.4th 92, 190).

DISPOSITION

The judgment is affirmed.

KENNARD,

J.

WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.


55



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Kennedy
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S037195
Date Filed: July 25, 2005
__________________________________________________________________________________

Court:
Superior
County: Colusa
Judge: S. William Abel

__________________________________________________________________________________

Attorneys for Appellant:

Michael Satris, under appointment by the Supreme Court, for Defendant and Appellant.





__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves,
Assistant Attorney General, Eric L. Christoffersen and Janis Shank McLean, Deputy Attorneys General, for
Plaintiff and Respondent.












Counsel who argued in Supreme Court (not intended for publication with opinion):

Michael Satris
Post Office Box 337
Bolinas, CA 94924
(415) 868-9209

Janis Shank Mclean
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-8610


Opinion Information
Date:Docket Number:
Mon, 07/25/2005S037195

Parties
1The People (Respondent)
Represented by Attorney General - Sacramento Office
Janis McLean, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

2Kennedy, Jerry Noble (Appellant)
San Quentin State Prison
Represented by Michael William Clough
Attorney at Law
6114 LaSalle Ave., #833
Oakland, CA

3Kennedy, Jerry Noble (Appellant)
San Quentin State Prison
Represented by Michael Satris
Attorney at Law
P. O. Box 337
Bolinas, CA


Disposition
Jul 25 2005Opinion: Affirmed

Dockets
Dec 20 1993Judgment of death
 
Jan 6 1994Filed cert. copy of Judgement of Death Rendered
  12-20-93.
Jan 10 1994Application for Extension of Time filed
  By Court Reporter Andrea Freeny to Complete R.T.
Jan 11 1994Extension of Time application Granted
  To Court Reporter To 1-25-94 To Complete R.T.
Jan 18 1994Application for Extension of Time filed
  By County Clerk to Complete C.T.
Jan 21 1994Extension of Time application Granted
  To County Clerk To 2-14-94 To Complete C.T.
Jun 18 1998Counsel appointment order filed
  Michael Satris Is appointed to represent Applt on His Automatic Appeal.
Jun 22 1998Counsel appointment order filed
  Michael C. Ciraolo Is appointed to represent Applt for Habeas Corpus/Executive Clemency Proceedings Related to the Automatic Appeal.
Jul 13 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Jul 14 1998Extension of Time application Granted
  To 9-10-98 To request Record correction
Sep 9 1998Application for Extension of Time filed
  To request Record correction
Sep 10 1998Extension of Time application Granted
  To 10-13-98 To request Record correction
Sep 29 1998Compensation awarded counsel
 
Oct 8 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Oct 13 1998Filed:
  Supplemental Proof of Service of Extension of time request
Oct 13 1998Extension of Time application Granted
  To 11-12-98 To request Record correction
Oct 28 1998Compensation awarded counsel
 
Nov 12 1998Application for Extension of Time filed
  By Applt to request correction of the Record.
Nov 13 1998Extension of Time application Granted
  To Applt To 11-30-98 To request Corr. of Record.
Nov 30 1998Filed:
  Notice of filing of motion to correct, Augment & Settle the Record on Appeal.
Nov 30 1998Received copy of appellant's record correction motion
Appellant: Kennedy, Jerry Noble   motion to correct, augment and settle the record (16 pp.)
Dec 22 1998Compensation awarded counsel
 
Jan 20 1999Compensation awarded counsel
 
Jan 20 1999Compensation awarded counsel
 
Apr 28 1999Compensation awarded counsel
 
Jun 30 1999Compensation awarded counsel
 
Aug 11 1999Compensation awarded counsel
 
Dec 1 1999Compensation awarded counsel
  Atty Ciraolo
Jan 3 2000Compensation awarded counsel
  Atty Ciraolo
Feb 16 2000Compensation awarded counsel
  Atty Ciraolo
Apr 20 2000Compensation awarded counsel
  Atty Ciraolo
Jul 19 2000Compensation awarded counsel
  Atty Ciraolo
Aug 21 2000Counsel's status report received (confidential)
  from atty Ciraolo.
Aug 23 2000Counsel's status report received (confidential)
  from atty Satris.
Nov 6 2000Record on appeal filed
  C-26 (6,499 pps.) and R-9 (2,172 pps.) including material under seal
Nov 6 2000Appellant's opening brief letter sent, due:
  12-18-2000
Nov 6 2000Counsel's status report received (confidential)
  from atty Satris.
Nov 16 2000Compensation awarded counsel
  Atty Ciraolo
Nov 17 2000Compensation awarded counsel
  Atty Satris
Dec 15 2000Application for Extension of Time filed
  To file AOB. (1st request)
Dec 15 2000Counsel's status report received (confidential)
  from atty Ciraolo.
Dec 20 2000Extension of Time application Granted
  To 2/16/2001 to file AOB.
Dec 20 2000Extension of Time application Granted
  To 2/16/2001 to file AOB.
Jan 17 2001Counsel's status report received (confidential)
  from atty Satris.
Feb 16 2001Application for Extension of Time filed
  To file AOB. (2nd request)
Feb 20 2001Counsel's status report received (confidential)
  from atty Ciraolo.
Feb 20 2001Application for Extension of Time filed
  To file AOB. (3rd request)
Feb 21 2001Extension of Time application Granted
  To 4/17/2001 to file AOB.
Mar 21 2001Counsel's status report received (confidential)
 
Apr 16 2001Counsel's status report received (confidential)
  from atty Ciraolo.
Apr 16 2001Application for Extension of Time filed
  To file AOB. (4th request)
Apr 17 2001Extension of Time application Granted
  To 6/18/2001 to file AOB.
Jun 11 2001Counsel's status report received (confidential)
  from atty Satris.
Jun 14 2001Counsel's status report received (confidential)
  from atty Ciraolo.
Jun 28 2001Application for Extension of Time filed
  to file AOB. (5th request)
Jul 5 2001Extension of Time application Granted
  to 8-15-2001 to file AOB.
Aug 7 2001Counsel's status report received (confidential)
  from atty Satris.
Aug 7 2001Application for Extension of Time filed
  To file AOB. (6th request)
Aug 8 2001Compensation awarded counsel
  Atty Ciraolo
Aug 15 2001Counsel's status report received (confidential)
  from atty Ciraolo.
Aug 16 2001Extension of Time application Granted
  To 10/15/2001to file AOB.
Oct 10 2001Counsel's status report received (confidential)
  from atty Satris.
Oct 10 2001Compensation awarded counsel
  Atty Ciraolo
Oct 11 2001Application for Extension of Time filed
  To file AOB. (7th request)
Oct 16 2001Extension of Time application Granted
  To 12/14/2001 to file AOB. No further extensions of time are contemplated.
Dec 12 2001Counsel's status report received (confidential)
  from atty Satris.
Dec 12 2001Request for extension of time filed
  To file AOB. (8th request)
Dec 17 2001Counsel's status report received (confidential)
  from atty Ciraolo.
Dec 19 2001Extension of time granted
  To 2/13/2002 to file AOB. No further extensions will be granted.
Jan 16 2002Compensation awarded counsel
  Atty Ciraolo
Feb 13 2002Counsel's status report received (confidential)
  from atty Ciraolo.
Feb 15 2002Appellant's opening brief filed
  (277 pp. - perm.)
Mar 6 2002Compensation awarded counsel
  Atty Satris
Mar 7 2002Motion to withdraw as counsel filed
  By atty. Michael Ciraolo, to withdraw as habeas corpus counsel.
Mar 11 2002Request for extension of time filed
  To file resp.'s brief. (1st request)
Mar 18 2002Extension of time granted
  To 4/17/2002 to file resp.'s brief.
Apr 12 2002Request for extension of time filed
  To file resp.'s brief. (2nd request)
Apr 18 2002Extension of time granted
  To 5/17/2002 to file resp.'s brief. Supv. Dep. Atty General McLean anticipates filing the brief by 7/15/2002. Only one further extension totaling 61 additional days is contemplated.
May 1 2002Order filed
  Good cause appearing, the application of appointed habeas corpus/executive clemency counsel for permission to withdraw as attorney of record for appellant Jerry Noble Kennedy, filed March 7, 2002, is granted. The order appointing Michael Ciraolo to represent appellant Jerry Noble Kennedy for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court, filed June 22, 1998, is hereby vacated. Michael G. Millman, as Executive Director of the California Appellate Project, is hereby appointed to serve as interim habeas corpus/executive clemency counsel of record for appellant Jerry Noble Kennedy. Michael Ciraolo is directed to deliver to Executive Director Michael G. Millman, within 30 days from the filing of this order, his copy of the record on appeal in People v. Kennedy, all case files, and all habeas corpus investigation work product. Mr. Ciraolo also is directed to deliver to Mr. Millman, within 30 days from the filing of this order, all trial files, reports and related materials that he has obtained from appellant's trial counsel, paralegals, experts and investigators, or from any other source.
May 9 2002Request for extension of time filed
  To file resp.'s brief. (3rd request)
May 16 2002Extension of time granted
  To 7/17/2002 to file resp.'s brief. Supv. Dep. Atty. General McLean anticipates filing the brief by 7/17/2002. No further extension is contemplated.
Jul 8 2002Request for extension of time filed
  To file resp.'s brief. (4th request)
Jul 18 2002Extension of time granted
  To 8/7/2002 to file resp.'s brief. Supv. Dep. AG McLean anticiaptes filing that brief by 8/7/2002. No further extension will be granted.
Aug 6 2002Respondent's brief filed
  (194 pp.)
Aug 19 2002Request for extension of time filed
  to file reply brief. (1st request)
Aug 20 2002Extension of time granted
  to 10-25-2002 to file reply brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 29 2002Request for extension of time filed
  To file appellant's reply brief. (2nd request)
Nov 4 2002Extension of time granted
  To 12/24/2002 to file appellant's reply brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Michael Satris's representation that he anticiaptes filng that brief by 4/1/2003.
Dec 19 2002Request for extension of time filed
  to file reply brief. (3rd request)
Dec 23 2002Extension of time granted
  To 2/24/2003 to file appellant's reply brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is based upon counsel Michael Satris's representation that he anticipates filing that brief by 4/1/2003.
Feb 28 2003Filed:
  Application for relief from default and request for extension of time to file appellant's reply brief. (4th request)
Mar 5 2003Order filed
  Appellant's application for relief from default is granted. Extension of time is granted to 4/25/2003 to file appellant's reply brief. Extension is granted based upon counsel Michael Satris's representation that he anticipates filing that brief by 4/25/2003. After that date, no further extension is contemplated.
Apr 23 2003Request for extension of time filed
  to file appellant's reply brief. (4th request)
Apr 25 2003Extension of time granted
  to 5/27/2003 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Michael Satris's representation that he anticipates filing that brief by 5/25/2003.
May 29 2003Appellant's reply brief filed
  (132 pp. - per rule 40(k))
Jun 24 2003Compensation awarded counsel
  Atty Satris
Feb 25 2005Oral argument letter sent
  advising counsel that court could schedule the case for argument as early as the first May calendar, to be held the week of May 2, 2005, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Mar 8 2005Case ordered on calendar
  was Fri. 4/8/05 @2pm - Los Angeles. **To be called and continued to the early May Calendar.**
Mar 10 2005Motion filed (AA)
  by appellant for continuance of oral argument.
Mar 14 2005Filed:
  appellant's supplement to motion for continuance of oral argument.
Mar 14 2005Order filed
  Appellant's motion for continuance of oral argument is granted. The argument is continued to the early May calendar, to be held the week of May 2, 2005, in San Francisco.
Apr 1 2005Case ordered on calendar
  5/5/05 @1:30pm, S.F.
Apr 7 2005Argument rescheduled
  5/3/05 @ 1:30pm, S.F.
Apr 8 2005Cause called and continued
  to 5-3-05 1:30 in S.F.
Apr 21 2005Filed letter from:
  appellant, dated 4/19/2005, re focus issues for oral argument.
Apr 25 2005Received:
  letter from appellant, dated 4/21/2005, re additional authorities for oral argument.
Apr 25 2005Filed letter from:
  respondent, dated 4/21/2005, re focus issues for oral argument.
May 3 2005Cause argued and submitted
 
Jun 29 2005Counsel appointment order filed
  The order appointing Michael G. Millman, as Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Jerry Noble Kennedy, filed May 1, 2002, is hereby vacated. Judd C. Iversen is hereby appointed to represent appellant Jerry Noble Kennedy for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Brown, J., was absent and did not participate.
Jun 29 2005Compensation awarded counsel
  Atty Iversen
Jul 25 2005Opinion filed: Judgment affirmed in full
  Majority Opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin & Moreno, JJ.
Aug 8 2005Rehearing petition filed
  appellant's petition. (3287 words; 15 pp.)
Aug 8 2005Time extended to consider modification or rehearing
  to 10/21/2005, or the date upon which rehearing is either granted or denied. whichever occurs first.
Aug 30 2005Counsel's status report received (confidential)
  from atty Iversen.
Sep 15 2005Compensation awarded counsel
  Atty Satris
Oct 12 2005Rehearing denied
  Petition for rehearing DENIED.
Oct 12 2005Remittitur issued (AA)
 
Oct 24 2005Received:
  acknowledgment of receipt of remittitur.
Nov 1 2005Counsel's status report received (confidential)
  from atty Iversen.
Nov 4 2005Related habeas corpus petition filed (post-judgment)
  No. S138625
Dec 6 2005Filed:
  Declaration of atty Judd C. Iversen (confidential).
Dec 6 2005Change of contact information filed for:
  attorney Judd C. Iversen.
Dec 14 2005Compensation awarded counsel
  Atty Iversen
Dec 16 2005Order filed
  The order filed in the above case on June 29, 2005, is amended to read as follows: The order appointing Michael G. Millman, as Executive Director of the California Appellate Project, to serve as interim habeas corpus/executive clemency counsel of record for appellant Jerry Noble Kennedy, filed May 1, 2002, is hereby vacated. Judd C. Iversen is hereby appointed to represent appellant Jerry Noble Kennedy for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 24 months [now 36 months]" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of prior habeas corpus/executive clemency counsel Michael Ciraolo's declaration, in support of his motion to withdraw, to the effect that he was unable to discharge his duty to investigate and, if appropriate, present a habeas corpus petition on behalf of appellant Jerry Noble Kennedy. Brown, J., was absent and did not participate.
Jan 4 2006Received:
  letter from U.S.S.C., dated 12/28/2005, advising that time for filing petition for writ of certiorari has been extended to and including 2/9/2006.
Feb 14 2006Received:
  letter from U.S.S.C., dated 2-1-2006, advising cert petition was filed on 2-1-2006 and placed on the docket 2-9-2006 as No. 05-9146.
Apr 24 2006Received:
  letter from U.S.S.C., dated 4-17-2006, advising that the petition for writ of certiorari was denied that date.
Jun 21 2006Compensation awarded counsel
  Atty Iversen
Feb 5 2007Compensation awarded counsel
  Atty Iversen
Feb 14 2007Compensation awarded counsel
  Atty Iversen
May 25 2007Order filed (150 day statement)
 
Nov 15 2007Compensation awarded counsel
  Atty Iversen
Nov 28 2007Compensation awarded counsel
  Atty Iversen
May 14 2008Compensation awarded counsel
  Atty Iversen
Jul 7 2008Compensation awarded counsel
  Atty Iversen
Jul 23 2008Compensation awarded counsel
  Atty Iversen
Dec 24 2008Motion to withdraw as counsel filed
  by Judd C. Iversen, "Motion to Withdraw as Habeas Corpus Counsel" Note: Proof of Service for motion to withdraw as counsel, application to file declaration of Dr. Alan B. Schwartz Under Seal and lodged declaration is attached to motion to withdraw.
Dec 24 2008Filed:
  by Judd C. Iversen, "Application to File Declaration of Dr. Alan B. Schwartz Under Seal Pursuant to California Rule of Court, rule 8.160(e).
Dec 24 2008Lodged:
  by Judd C. Iversen, CONDITIONALLY UNDER SEAL, Declaration of Dr. Alan B. Schwartz. (filed under seal pursuant to court's order of January 21, 2009)
Jan 21 2009Filed:
  by Judd C. Iversen, Attorney at Law, *****UNDER SEAL***** Declaration of Dr. Alan B. Schwartz
Jan 21 2009Withdrawal of counsel allowed by order
  Good cause appearing, the application of appointed habeas corpus/executive clemency counsel for permission to withdraw as attorney of record for condemned prisoner Jerry Noble Kennedy, filed December 24, 2008, is granted. The order appointing Judd C. Iversen as habeas corpus/executive clemency counsel of record for condemned prisoner Jerry Noble Kennedy, filed June 29, 2005 (as amended Dec. 16, 2005), is hereby vacated. On the court's own motion, Michael W. Clough is hereby appointed to represent condemned prisoner Jerry Noble Kennedy for habeas corpus/executive clemency proceedings related to the above automatic appeal now final in this court. Iversen is hereby directed to deliver to Clough, within 60 days from the filing of this order, all case transcripts, case files, habeas corpus investigation work product, trial files, investigation reports, 60-day status reports and all related materials that he has obtained from condemned prisoner Jerry Noble Kennedy or from Kennedy's appellate, trial or prior habeas corpus counsel, paralegals, experts and investigators, or from any other source.
Jan 21 2009Order filed
  Good cause appearing, appointed habeas corpus/executive clemency counsel Judd C. Iversen's "Application to File Declaration of Dr. Alan B. Schwartz Under Seal Pursuant to California Rules of Court, Rule 8.160(e)," filed December 24, 2008, is granted. The court expressly finds that the factors enumerated in California Rules of Court, rule 2.550(d), support granting the application to file under seal.

Briefs
Feb 15 2002Appellant's opening brief filed
 
Aug 6 2002Respondent's brief filed
 
May 29 2003Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website