Stanford Law School - Robert Crown Law Library

Filed 5/6/04

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S049389
v.
THOMAS HOWARD LENART,
) Shasta
County
Defendant and Appellant.
Super. Ct. No. 93F4357

A jury convicted Thomas Howard Lenart of the first degree murder of
Oberta Toney (Pen. Code, § 187)1 and found true the special circumstance that the
murder was committed in the course of, or flight after, a robbery (former § 190.2,
subd. (a)(17)(i)). It also convicted him of the robbery of Toney (§ 211) and the
attempted murder of Eleanor Gallardo (§§ 664/187), and it found that the
attempted murder was willful, deliberate and premeditated. As to each of these
crimes, the jury found that defendant had personally used a firearm. (§ 12022.5,
subd. (a).) Lastly, the jury convicted defendant of being a convicted felon in
possession of a firearm (§ 12021). After a court trial, defendant was found to have
three prior convictions for serious felonies (§ 667, subd. (a)). At the penalty
phase, the jury returned a verdict of death. Defendant’s appeal to this court is
automatic. (§ 1239, subd. (b).)

1
All further statutory references are to the Penal Code unless otherwise
indicated.
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We affirm the judgment.
I. FACTS

A. Guilt Phase—Prosecution Case

About noon on July 15, 1993, Eleanor Gallardo stopped at the Anderson
Lounge in Anderson, Shasta County. After parking behind the building, she
entered the bar through the back door. Almost immediately she was confronted by
a man with a bundle under his arm and a gun in his hand who told her to get down
on the floor. Gallardo started to comply, then turned and grabbed the gun with
both hands, trying to point it away from herself. During the struggle, the gun
fired. When the man took one hand off the gun in an effort to apply a choke hold
to Gallardo, she managed to pull free and run out the front door, gun in hand. As
she ran screaming down the street, she turned and saw that her assailant had
followed her onto the sidewalk; she ran into a nearby hair salon from which police
were summoned. At the Anderson Lounge, officers discovered the body of
bartender Oberta Toney in a small closet behind the bar where she was lying face
down, hands crossed under her chest.
Gallardo, who was unable to identify defendant at a lineup on July 22,
testified at trial that the man accosted her shortly after she entered the dimly lit bar
from the sunny parking lot. Once she saw the gun pointed at her, she focused her
attention on it.
At trial, several witnesses who were in the bar on the morning of July 15,
1993, testified that defendant came into the bar between 9:30 and 10:00 a.m.
Floyd White identified defendant and recognized defendant’s yellow pickup
because on an earlier occasion defendant had visited White’s home to look at
some tires White was selling. Denice Foster identified defendant as the man who
sat next to her until she left the bar at noon. Thomas McBroome identified
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defendant as the man in the bar that morning drinking a bottle of Budweiser and
introducing himself as “Tom.” Police found defendant’s fingerprint on a
Budweiser bottle in the bar.
Bar co-owner Sharon Munns testified that on the morning of the crime the
cash register contained about $1,800 including $1 bills in packets of 25 bills
secured with rubber bands and coins rolled in orange paper wrappers bearing the
logo G.A.M.E. The bar’s cashbox, kept behind the bar, had a check for $827.80
payable to a beer supplier, Foothill Distributors, as well as $2,000 in $100 bills
that Toney, the bartender, had requested in order to cash paychecks for employees
of a local business. Munns identified defendant as the man who sat next to her in
the bar on that morning until she left at 11:44 a.m. When police arrived about
12:20 p.m., the cash register was empty and two bloodstained $100 bills were
lying on the floor.
The gun Gallardo had wrested from her assailant was a .22-caliber Colt
single-action revolver belonging to Dale Cutler, who had kept it in a toolbox in his
barn. Sometime between July 5 and July 10, 1993, Cutler discovered the gun was
missing. During June or July 1993, defendant had visited his former wife, who
occupied a rental unit on Cutler’s property, and in early July he had borrowed
tools from Cutler.
Candida Kelly testified that in July 1993 defendant was putting a new roof
on her house. She agreed to pay him for his labor with a used car and $150 in
cash. On July 13 and 14, at his request, she gave him gas money. On July 15, she
was at home, but defendant did not show up to work.
Karen Grabenstatter, with whom defendant was living in July 1993,
testified that on the afternoon of July 15, 1993, defendant picked her up and they
drove to Viacom Cable and to Redding Utility. A receipt from Viacom showed
payment to defendant’s account was made in cash at 1:28 p.m. on the 15th.
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Defendant’s landlord testified that defendant paid some $300 in past due rent that
same afternoon between 4:00 and 4:30.
On July 21, 1993, the police executed a search warrant at defendant’s
apartment. On the kitchen floor they found a paper grocery bag containing coin
wrappers, burnt fragments of the missing Anderson Lounge check, cigarette butts
and ashes. The officers also retrieved a pair of tan cowboy boots from defendant’s
closet. Later testing found, under the metal toe band of one boot, some drops of
human blood that were consistent with the blood of the murdered bartender,
Toney.
On August 17, 1993, Grabenstatter discovered an unfamiliar Sentry
strongbox in her storage shed and called police. The strongbox was identified by
its owner Margaret Alcock, defendant’s previous girlfriend, who had kept over
$1,000 in it. When the box was in Alcock’s possession, she kept some rolled
pennies in it, but none of them were in orange G.A.M.E. wrappers like those on
several of the 14 rolls of coins found in the box in August. At that time, the box
also contained four bundles of twenty-five $1 bills, each bundle secured with a
rubber band. In addition, the box had jewelry that Alcock identified as hers, as
well as jewelry that she recognized as belonging to defendant.
Criminalist Carmel Suther, of the California Department of Justice
laboratory, conducted electrophoretic testing of samples of blood spots found on
the bar’s back door handle. The blood on the door was consistent with
defendant’s blood.
Dr. Joseph Tripoli, formerly Shasta County Medical Examiner, who
performed an autopsy on Toney, testified that horseshoe-shaped lacerations on the
back of her head could have been caused by kicks from the pointed toe of a
cowboy boot. Shasta County forensic pathologist Harold Harrison concluded that
Toney was lying down when she was killed by two bullets fired into her head
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from a distance of two to four feet. While she was still alive, Toney received blunt
force injuries on her head and defensive injuries on her arms.
B. Guilt Phase—Defense Case
Defendant stipulated that he was a convicted felon, and the defense rested
without presenting evidence.
C. Court Trial on Prior Convictions

Before the penalty phase began, there was a court trial on allegations that
defendant had been convicted of three prior serious felonies (§ 667, subd. (a)).
The court found that defendant in July 1970 was convicted in Los Angeles County
of robbery (§ 211), in October 1987 was convicted in San Bernardino County of
grand theft of a firearm (§ 487), and in November 1987 was convicted in Shasta
County of robbery (§ 211).
D. Penalty Phase—Prosecution Case

The prosecution introduced evidence of prior criminal acts by defendant
involving force or violence. (§ 190.3, subd. (b).)

William Davis, who in 1977 was a security guard for a Torrance grocery
store, testified that while he and a partner were questioning defendant in a store
interview room about a suspected shoplifting, defendant suddenly pointed a
handgun at Davis’s stomach. During the ensuing struggle, defendant fired one
shot before Davis and his partner overpowered him. At the police station
defendant threatened Davis, saying, “I’m going to kill you, motherfucker.”
George Watford testified to a January 1987 incident at a bar in
Cottonwood, where he was working as a janitor. Hearing a knock on the locked
door about 4:00 a.m., Watford opened the door to discover defendant pointing a
handgun at him. Defendant ordered Watford and a female employee onto the
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floor, told them to cover their eyes, and kicked Watford in the head and ribs with
his cowboy boots. Threatening to kill Watford, defendant put his .45-caliber
pistol close to Watford’s head, and Watford heard the click of the hammer being
cocked.
Two members of murder victim Oberta Toney’s family, her daughter and
her sister, testified as to the grief Toney’s death caused them and her two young
grandchildren.
A fingerprint expert testified that defendant’s fingerprints matched those on
documents from the Department of Corrections pertaining to two of defendant’s
prior convictions found true by the court.
E. Penalty Phase—Defense Case

Lieutenant Clarence Finmand of the Anderson Police Department testified
that when he had interviewed William Davis in 1994, Davis’s 1994 account of
what happened in the interview room in 1977 was slightly different from his trial
testimony. In the 1994 interview, Davis said the gun went off after he kneed
defendant in the groin as he and his partner attempted to subdue defendant.
The sole evidence in mitigation offered by the defense was the testimony of
Jack Stewart, a former felon currently associated with Eagles Soar, “a men’s
discipleship home.” Called as an expert on prison life, Stewart testified that
inmates learn to take what they need by force, not to reveal emotion lest they
appear weak, and to join racially segregated prison gangs. Stewart mentioned the
difficulty he had in getting a job because of his prison record.
II. DENIAL OF DEFENDANT’S SUPPRESSION MOTION

At trial, the prosecution introduced fragments of a burnt check found in
defendant’s apartment and identified by bar owner Sharon Munns as a check that
she had left in the bar cashbox.
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On July 21, 1993, Sergeant Timothy York and Lieutenant Clarence
Finmand of the Anderson Police Department searched defendant’s apartment
under a search warrant that authorized them to seize .22-caliber ammunition
marked with the letter F, faded blue pants, a red T-shirt, a red baseball cap, a
holster for a .22-caliber revolver with a five-and-a-half-inch barrel, and
bloodstained currency. During that search, the officers seized from the kitchen
floor a brown paper grocery bag containing discarded coin roll wrappers and
charred fragments of paper.
Before trial, defendant moved unsuccessfully under section 1538.5 to
suppress the contents of the paper grocery bag, arguing that the warrant did not
authorize seizure of the bag or its contents and that the bag’s contents did not
come within the exception for items in plain view because their incriminating
character was not immediately apparent. On the same grounds, defendant again
unsuccessfully sought to exclude evidence of the bag’s contents at trial. He now
argues that the trial court erroneously denied these motions.
Our review of issues related to the suppression of evidence seized by the
police is governed by federal constitutional standards. (Cal. Const., art. I, § 28,
subd. (d); People v. Bradford (1997) 15 Cal.4th 1229, 1291.) Although “the
warrant clause of the Fourth Amendment [to the federal Constitution] provides
that no warrant may issue except those ‘particularly describing the place to be
searched, and the persons or things to be seized,’ ” officers who search with a
warrant “may seize items specifically named in a valid warrant, as well as other
items in plain view.” (People v. Kraft (2000) 23 Cal.4th 978, 1041; Horton v.
California (1990) 496 U.S. 128, 136.) Items in plain view, but not described in
the warrant, may be seized when their incriminating character is immediately
apparent. (Horton v. California, supra, at p. 136.) The incriminating character of
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evidence in plain view is not immediately apparent if “some further search of the
object” is required. (See Minnesota v. Dickerson (1993) 508 U.S. 366, 375.)
In reviewing a trial court’s ruling on a motion to suppress evidence, we
defer to that court’s factual findings, express or implied, if they are supported by
substantial evidence. (People v. Weaver (2001) 26 Cal.4th 876, 924.) We
exercise our independent judgment in determining whether, on the facts presented,
the search or seizure was reasonable under the Fourth Amendment. (Ibid.)
At the hearing on the suppression motion, Lieutenant Finmand testified that
while he was in the kitchen he noticed on the floor an open paper grocery bag in
which he could see a “noticeable” quantity of ashes, fragments of unburned
material, and “what appeared to be a crinkled up coin wrapper.” Looking into the
bag he saw paper fragments with “writing in numbers,” “some type of a lined
column” which he suspected might be “a check or some type of accounting
document” of the sort normally kept in a cashbox like the one missing from the
bar. When Finmand asked Sergeant York to look into the bag, York, who had
been one of the first officers at the crime scene, pointed out the coin wrapper.
The defense argued that the officers’ seizure of the paper grocery bag was
impermissible because there was “no nexus” between the items they saw in the
bag and items taken from the bar. The trial court denied the suppression motion,
noting that Lieutenant Finmand (who eventually became the lead investigator on
the case) knew the bar was “missing currency, coin wrappers, accounts” and
“items related to retail business transactions commonly kept in a cash box.” Given
that knowledge, the officers’ observations of a crumpled coin wrapper and burnt
fragments of what appeared to be financial records in the open grocery bag made
it immediately apparent to the officers, without additional examination, that these
items might be discarded evidence of the robbery. (See People v. Bradford¸
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supra, 15 Cal.4th at pp. 1295-1296.) The trial court did not err in denying
defendant’s motion to suppress.
III. DENIAL OF DEFENSE MOTION FOR TWO JURIES

Defendant sought empanelment of two juries—the first, not death qualified,
to sit at the guilt phase of his capital trial, and the second, to be death qualified, in
the event a penalty phase was required. After a hearing, the court denied the
motion without prejudice to its renewal at the conclusion of the guilt phase.
Defendant did not renew the motion.

A. Denial of an Impartial Jury at the Guilt Phase

Defendant contends the trial court violated his right to an impartial jury at
the guilt phase (U.S. Const., 6th Amend.; Cal. Const., art. I, § 16) by excluding for
cause from the venire those jurors who would automatically vote against imposing
death at the penalty phase. He acknowledges that the United States Supreme
Court has rejected his claim under the federal Constitution. (Lockhart v. McCree
(1986) 476 U.S. 162, 182-183.) Nonetheless, he urges us to reach a different
result on independent state grounds under the due process and jury trial
protections offered by article I, sections 7, 15, and 16 of the California
Constitution.
In
People v. Jackson (1996) 13 Cal.4th 1164, we considered the “social
science evidence” the defendant there offered to show “that death-qualified juries
are more prone to convict than those not thus qualified,” and we concluded that
such evidence does not support a constitutional prohibition of death qualification.
(Id. at pp. 1198-1199; see also People v. Catlin (2001) 26 Cal.4th 81, 112 [state
constitutional right to impartial jury not violated by exclusion of persons opposed
to death penalty].) Defendant here concedes that his claim is “essentially the same
claim” that was before us in Jackson. More recently, we rejected such a claim
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after concluding the “defendant presents no good reason to reconsider our ruling
as to the California Constitution.” (People v. Steele (2002) 27 Cal.4th 1230,
1243.) Defendant here has likewise failed to make a compelling case for us to
revisit this issue.

B. Claim Jury Did Not Represent a Fair Cross-section of the
Community

Defendant contends that California’s jury selection process in capital cases,
which requires the exclusion of jurors whose views would prevent or impair the
performance of their duties as jurors, violated his state and federal rights to a jury
drawn from a fair cross-section of the community by excluding from juries in
capital cases a cognizable group of persons, and denied him equal protection under
both the federal and state Constitutions. Even assuming defendant has preserved
the claim, which he did not raise in the trial court, the high court has rejected the
view that individuals who can be characterized as a group “defined solely in terms
of shared attitudes” toward imposing the death penalty are a “distinctive group”
for fair cross-section claims under the federal Constitution. (Lockhart v. McCree,
supra, 476 U.S. at p. 174.) We too have rejected this claim under our state
Constitution (People v. Jackson, supra, 13 Cal.4th at p. 1198; People v. Ashmus
(1991) 54 Cal.3d 932, 956), and defendant offers no persuasive reason for us to
reconsider that holding.
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IV. GUN EVIDENCE

Defendant contends the trial court erred by admitting evidence that he was
familiar with and possessed guns, permitting the jury to infer that he was among
“a very small fraction of the general population” who know and use guns, and
therefore he was very likely to have been the man who robbed and killed bartender
Toney.

A. Challenged Evidence
On appeal, defendant argues the trial court erred by admitting over his
objection four items of gun-related evidence. The three items of physical
evidence—a Ruger pistol, an unloaded rifle, and some .22-caliber cartridges—
were seized by police in searches conducted soon after the Anderson Lounge
crimes. Each of the three items of physical evidence was found in a location
closely associated with defendant. The fourth piece of evidence was defendant’s
statement, made almost two weeks before the crimes to a woman for whom he was
then working, that he kept a “loaded .22” in his pickup.

1. Ruger pistol
On July 21, 1993, in searching Karen Grabenstatter’s trailer home where
defendant was living at the time of the crimes, police found a .22-caliber Ruger
pistol. At trial, defendant’s former girlfriend, Margaret Alcock, with whom he had
lived until May 1993, was asked if she had had any pistols during the time she and
defendant lived together. Defense counsel objected to evidence of the pistol,
arguing that Alcock’s answer was “not relevant” and “highly prejudicial whether
or not the District Attorney is trying to get into the case-in-chief an uncharged
crime.” Relying on defendant’s denial, at the hearing on his motion to suppress
evidence, that he had owned or possessed the strongbox found in Grabenstatter’s
storage shed, the prosecutor argued that the Ruger pistol was admissible because
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it, like the strongbox belonging to Alcock, was found at Grabenstatter’s trailer
home where defendant was staying at the time of the crimes. By connecting
Alcock’s Ruger pistol to defendant, the prosecutor sought to strengthen the link
between defendant and Alcock’s strongbox with its bar robbery proceeds—
rubber-banded bundles of twenty-five $1 bills and coins in G.A.M.E. wrappers.
The trial court limited the prosecutor’s inquiry to whether Alcock could identify as
hers the pistol and the strongbox and jewelry found in it, cautioning the prosecutor
not to ask if these items had been taken without Alcock’s permission. She
testified accordingly.

2. Rifle
On July 22, 1993, Sergeant York seized defendant’s pickup truck, searched
it, and found an unloaded .22-caliber rifle with a missing magazine. When, at
trial, the prosecutor asked Margaret Alcock if she could identify a photograph of
that rifle, the defense objected that even if Alcock did not testify that her rifle had
been stolen, the jury could “infer” that defendant had stolen it from her. The trial
court overruled the objection. Alcock identified the rifle in the photograph as
hers. The defense renewed its objection, which the trial court again overruled.

3. Loaded gun
During the testimony of Candida Kelly, whose roof defendant was
replacing during July when he committed the bar crimes, the prosecution asked
her about an incident on July 2, 1993, when defendant accompanied her to the
bank to cash a $1,900 check to pay for roofing materials. As she left the bank,
Kelly told defendant, “Hey, if you see anybody take my purse, go after them.”
The defense objected unsuccessfully, arguing the questioning would elicit
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evidence of a “different” uncharged crime.2 According to Kelly, defendant
replied, “I don’t have to run after anybody, I carry a loaded .22 in the pickup.”
When Kelly asked why, defendant replied, “What good is it carrying an unloaded
gun?”

4. Cartridges
Defendant notes that Sergeant York testified that, on July 21, 1993, during
a search of defendant’s Redding apartment, he seized eleven .22-caliber long-rifle
cartridges from an ashtray on a coffee table. Defendant contends that this
evidence was admitted over his objection. He is wrong. Before York was asked
about the cartridges, the defense reiterated its suppression claim, which was
directed solely to the seizure of the paper grocery bag and its contents from the
apartment. York then testified, without objection, that he seized the cartridges.
The defense objected only to admitting photographs showing where the cartridges
were found, and that objection was overruled.

B. Discussion
Insofar as defendant objected at trial to evidence of the Ruger pistol and the
rifle, he was objecting that the evidence was improper as evidence of an
uncharged crime, because defendant’s possession of Alcock’s pistol, which she
kept in a strongbox along with her jewelry and about $1,000 in cash, permitted the

2
Presumably, the second uncharged crime to which defense counsel alluded
in objecting to defendant’s statement that he kept “a loaded .22” in his truck was
unlawful possession by a convicted felon of the Ruger pistol or the rifle, rather
than the .22-caliber Colt revolver that was the murder weapon. Count 3 of the
information charged defendant with being a felon in possession (§ 12021, subd.
(a)) based on his possession of the Colt revolver that killed bartender Toney.
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jury to infer that defendant had stolen both the strongbox with its contents and
Alcock’s rifle.
On appeal, defendant argues that evidence that he possessed Alcock’s .22-
caliber Ruger pistol, her .22-caliber rifle, and some .22-caliber cartridges, and that
he kept a loaded .22 gun in his truck was irrelevant because these weapons were
not involved in the bar crimes and highly prejudicial because the evidence “tended
to prove [defendant] was a man who carried guns and ammunition all the time,”
therefore impermissibly permitting the jury to infer that he was the perpetrator.
Evidence of crimes committed by a defendant other than those charged is
inadmissible to prove criminal disposition or a poor character. “[B]ut evidence of
uncharged crimes is admissible to prove, among other things, the identity of the
perpetrator of the charged crimes, the existence of a common design or plan, or the
intent with which the perpetrator acted in the commission of the charged crimes.
(Evid. Code, § 1101.) Evidence of uncharged crimes is admissible to prove
identity, common design or plan, or intent only if the charged and uncharged
crimes are sufficiently similar to support a rational inference of identity, common
design or plan, or intent. [Citation.] On appeal, the trial court’s determination of
this issue, being essentially a determination of relevance, is reviewed for abuse of
discretion.” (People v. Kipp (1998) 18 Cal.4th 349, 369.)
To be relevant to prove identity, the uncharged crime must be highly
similar to the charged offenses, while a lesser degree of similarity is required to
establish relevance to prove common design or plan, and the least similarity is
required to establish relevance to prove intent. (People v. Lewis (2001) 25 Cal.4th
610, 636-637 [intent]; People v. Kipp, supra, 18 Cal.4th at pp. 369-370 [identity].)
Finally, for uncharged crime evidence to be admissible, it must have
substantial probative value that is not greatly outweighed by the potential that
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undue prejudice will result from admitting the evidence. (People v. Kipp, supra,
18 Cal.4th at p. 371; People v. Ewoldt (1994) 7 Cal.4th 380, 404-405.)
Defendant relies on In re Jones (1996) 13 Cal.4th 552, where we concluded
that reasonably competent trial counsel would have objected to evidence the
defendant was involved in a prior, unrelated shooting of a family member when
the defendant was charged with shooting a close acquaintance. Here, defendant
argues, as in Jones, the identity of the shooter was the crucial issue. Thus, he
contends that evidence he possessed guns that were unrelated to the robbery and
murder of bartender Toney was offered to establish his commission of the crimes,
and such evidence was more prejudicial than probative. Although the trial court
noted a parallel between the prosecutor’s theory that defendant had stolen the
murder weapon from Cutler (his former wife’s landlord) and defendant’s apparent
theft of the Ruger pistol and the .22-caliber rifle from his former girlfriend Alcock,
the prosecutor did not argue that the weapon evidence was admissible as evidence
of a common plan or design.
The prosecutor offered Alcock’s testimony identifying her Ruger pistol and
her .22-caliber rifle to show that these weapons, accessible and available to
defendant before the robbery and killing of bartender Toney, were found, after the
robbery and murder of Toney, in defendant’s truck and at his current girlfriend’s
home. Defendant’s possession of Alcock’s pistol and rifle helped to link him to
Alcock’s strongbox, and inferably to the robbery proceeds inside the strongbox,
which Grabbenstatter found in her storage shed on August 17, 1993, over a month
after the bar crimes. Finding that the prosecutor was “definitely not seeking to
establish” that defendant stole Alcock’s possessions, the trial court concluded that
Alcock’s identification of her guns was not prejudicial. In light of the limitations
the trial court placed on Alcock’s testimony (see ante, at p. 12), the court did not
abuse its discretion by admitting this evidence.
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Evidence that defendant told Candida Kelly he carried “a loaded .22” in his
truck also was admitted over an uncharged crime objection. It was admitted,
however, only after the prosecutor made an offer of proof that defendant had not
described the gun more precisely, and therefore inferably defendant was referring
to the Colt revolver used in the robbery and murder. This evidence was therefore
relevant to show defendant’s identity as the perpetrator of the robbery and the
murder committed with the Colt some 13 days later.
Defendant contends that evidence of the eleven long-rifle cartridges found
in his apartment was not relevant to any issue in this case. Even if we assume he
preserved the claim by his objection, he is wrong. Shasta County Sheriff’s Deputy
Ronald Clemens testified that some years earlier he had investigated an accidental
shooting in which the victim had shot himself while attempting a quick draw with
the same Colt revolver used in these crimes. Clemens’s report, which he read
from the stand, identified the murder weapon by its serial number and described it
as a “Colt Single Action Frontier Scout 4-inch revolver, .22 Long Rifle.”
Clemens’s testimony permitted the jury to infer that the .22-caliber long-rifle
cartridges found in defendant’s apartment could have been used in the murder
weapon.
None of the four items of gun-related evidence was unduly prejudicial.
“Prejudice for purposes of Evidence Code section 352 means evidence that tends
to evoke an emotional bias against the defendant.” (People v. Crew (2003) 31
Cal.4th 822, 842.) Whatever the truth of defendant’s assertion that possession of
guns and ammunition is “uncommon behavior,” it was hardly such uncommon
behavior among the witnesses at this trial, three of whom (Cutler, Alcock, and
Grabenstatter) testified they owned guns, as to evoke intense emotional juror bias
against defendant. Therefore, even had defendant objected to admission of this
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evidence as more prejudicial than probative, we cannot conclude the trial court
erred by admitting it.
In light of our conclusion that the gun-related evidence was not unduly
prejudicial, we reject defendant’s contention that his conviction must be reversed
because this evidence was admitted. It is not reasonably probable that had the
gun-related evidence been excluded defendant would have obtained more
favorable verdicts. (People v. Watson (1956) 46 Cal.2d 818, 835-836.) Nor are
we persuaded that admission of this evidence violated defendant’s right to due
process of law under our federal Constitution, requiring us to determine whether
the claimed error was harmless beyond a reasonable doubt (Chapman v.
California (1967) 386 U.S. 18, 24).
V. EVIDENCE OF ATTEMPTED MURDER
Defendant contends there was insufficient evidence to support his
conviction for the attempted murder of Eleanor Gallardo, arguing specifically that
there was insufficient evidence to establish that he intended to kill her; that he
took any act toward doing so; or that he acted willfully, deliberately, and with
premeditation.
In reviewing a conviction challenged on the basis that the evidence was
insufficient, this court “ ‘must review the whole record in the light most favorable
to the judgment below to determine whether it discloses substantial evidence—
that is, evidence which is reasonable, credible, and of solid value—such that a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citations].’ ” (People v. Mayfield (1997) 14 Cal.4th 668, 767.) The same
standard of review is applicable when the prosecution relies primarily on
circumstantial evidence. (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
Here, the prosecution argued that bartender Toney’s killing provided a
model for defendant’s attempt to murder bar patron Eleanor Gallardo. Toney’s
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body was found lying face down on the floor of a closet behind the bar with two
gunshot wounds to her head and defensive injuries on her hands and arms.
Defendant, identified by bar co-owner Munns and a number of bar patrons, arrived
at the bar sometime between 9:30 and 10:00 a.m. and was the sole patron
remaining at 12:15 p.m. when David Athenacio, the only other remaining patron,
left. From this evidence, the prosecutor argued that defendant had waited for the
other patrons to leave before he shot and robbed Toney.
Toney’s defensive injuries and head lacerations indicated a struggle that
ended when she was forced to the floor and shot in the head at close range. The
timing and manner of her death permit the inference defendant intended to leave
no witnesses. His plan was interrupted by Gallardo’s unexpected entrance into the
bar.
When Gallardo first encountered defendant, he had a bundle, presumably of
cash and checks stolen from the bar, under one arm. Defendant pointed a gun at
Gallardo and ordered her onto the floor, but she instead grabbed hold of the gun.
She testified defendant kept trying to point the gun at her and in their struggle it
fired. Defendant withdrew one hand from the gun to put Gallardo in a choke hold.
When Gallardo, still holding the gun, twisted free of the choke hold, defendant
initially pulled away from her, but as Gallardo fled from the bar he followed her
outside.
To prove an attempt, there must be proof of both specific intent to commit
the crime and a direct, but ineffectual, act done toward its commission. (People v.
Swain (1996) 12 Cal.4th 593, 604.) Thus, to prove that defendant attempted to
murder Gallardo, it was necessary to prove that he intended to kill her when he
ordered her at gunpoint onto the floor or, as they struggled for control of the gun,
when he tried to turn the gun on her and it fired. (See People v. Hill (1998) 17
Cal.4th 800, 827.) Gallardo, unlike Toney, refused to lie on the floor and
18

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struggled successfully with defendant when he tried to get a choke hold on her
neck. Had defendant intended merely to incapacitate or delay Gallardo long
enough to make his escape, he could have fled when she gained control of his
revolver, but instead he followed her outside onto the sidewalk. His pursuit of
Gallardo supports the finding that defendant intended to kill her. Moreover, the
jury could reasonably have found that defendant’s earlier acts—either his ordering
Gallardo at gunpoint to the floor or his attempt to turn the revolver’s barrel at her
as they struggled—were consistent with that intent.
Defendant also argues there is insufficient evidence to establish that the
attempted murder of Gallardo was premeditated and deliberated. He relies on
People v. Anderson (1968) 70 Cal.2d 15 (Anderson), in which this court described
three types of evidence that indicate premeditation and deliberation. They are:
“(1) facts about how and what defendant did prior to the actual killing which show
that the defendant was engaged in activity directed toward, and explicable as
intended to result in, the killing—what may be characterized as ‘planning’
activity; (2) facts about the defendant’s prior relationship and/or conduct with the
victim from which the jury could reasonably infer a ‘motive’ to kill the victim,
which inference of motive, together with facts of type (1) or (3), would in turn
support an inference that killing was the result of ‘a pre-existing reflection’ and
‘careful thought and weighing of considerations’ rather than ‘mere unconsidered
or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing
from which the jury could infer that the manner of killing was so particular and
exacting that the defendant must have intentionally killed according to a
‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’
which the jury can reasonably infer from facts of type (1) or (2).” (Id., at pp. 26-
27; see also People v. Mayfield, supra, 14 Cal.4th at p. 768.)
19

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The
Anderson factors are not the exclusive means for establishing
premeditation and deliberation. (People v. Perez (1992) 2 Cal.4th 1117, 1125.)
This court has, for example, concluded that an execution-style killing may be
committed with such calculation that the manner of killing will support a jury
finding of premeditation and deliberation, despite little or no evidence of planning
and motive. (People v. Hawkins (1995) 10 Cal.4th 920, 957.)
We have never required that there be an extensive time to premeditate and
deliberate. (People v. Mayfield, supra, 14 Cal.4th at p. 767; People v. Perez,
supra, 2 Cal.4th at p. 1127.) Having successfully overpowered and murdered
Toney, it would not have taken long for defendant to decide he could similarly
dispatch Gallardo. Defendant already had a successful murder plan; he needed to
decide only whether to implement it again. Premeditation and deliberation do not
require much time (People v. Hughes (2002) 27 Cal.4th 287, 371), for
“ ‘[t]houghts may follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly.’ ” (People v. Mayfield, supra, at p. 767.)
The evidence described at the beginning of this section, although
circumstantial, amply supported the jury’s findings that defendant premeditated
and deliberated a willful murder of bar patron Gallardo patterned on the just
completed murder of bartender Toney, and that he intended to kill Gallardo from
the time he pointed the Colt revolver at her and ordered her to the floor, until she
managed to escape and run out of the bar with the gun, eluding his pursuit.
VI. BIBLICAL REFERENCES
Defendant contends that the prosecutor committed prejudicial misconduct
during his penalty phase cross-examination of defense witness Jack Stewart.
Noting that Stewart had “mentioned the Bible and the Lord a number of times,”
the prosecutor asked, “You are familiar with the incident of the crucifixion of
Jesus, aren’t you?”
20

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Stewart: “Yes, sir.”
Prosecutor: “Couple of thieves that were crucified with Him?”
Stewart: “Right.”
Prosecutor: “God forgave one of those people, didn’t he?”
Stewart: “Yes, . . .”
Prosecutor: “Said, that’s all right, I’ll be there with you, right? . . .”
Stewart: “Yes.”
Prosecutor: “Didn’t stop the punishment, did he? . . . the crucifixion.”
Stewart: “No.”
Defendant did not then object to the prosecutor’s questioning. During re-
direct examination, defense counsel asked Stewart: “I’d like to refer you to one
other spot when the punishment was decreed by God to Cain and Abel, what was
the punishment for the murder. Was it execution, or was it life?”
Stewart: “It was life.”
Before final argument, the prosecutor expressed concern that there might be
“references to [b]iblical passages” by the defense. Defense counsel noted that the
prosecutor had brought up the crucifixion, “But, I felt as long as he was doing it, I
should counteract with [Cain and Abel], so that they balanced out.” After
considerable discussion, the trial court directed both counsel not to discuss the
biblical references. Defense counsel responded by moving for a mistrial based on
the prosecution’s line of questioning, arguing: “I don’t think [the evidence] can be
struck. Nor can a curative instruction work.” In his view, the prosecutor had
appealed to biblical authority by relying on God’s telling the repentant thief, “I’ll
forgive you, and I’ll let you die.” In defense counsel’s view, witness Stewart was
merely testifying about the power of religion to change people’s lives, and not
invoking Christian precepts either in support of or in opposition to the death
penalty. Fearing “a negative impact” on the jury if he objected, counsel had made
21

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“a strategic decision” not to object at that point. The court denied the mistrial
motion, but it expressly left open an opportunity for the defense to move to strike
the testimony in question.
It is misconduct for a prosecutor to invoke religious authority as support for
imposing the death penalty, because by doing so the prosecutor urges the jury, in
making a choice between life and death, to rely on an authority outside the court’s
legal instructions. (People v. Roybal (1998) 19 Cal.4th 481, 520.) We have
consistently held such prosecutorial reliance to be misconduct. (People v. Ervin
(2000) 22 Cal.4th 48, 100; People v. Roybal, supra, at p. 520; People v. Hill,
supra, 17 Cal.4th at pp. 836-837.)
To preserve such a claim, a defendant must object to the comments or seek
a curative admonition. (People v. Ervin, supra, 22 Cal.4th at p. 100; People v.
Wash (1993) 6 Cal.4th 215, 259-260.) Defendant concedes that he neither
objected nor sought a curative admonition, but he urges us to reconsider our rule
that by failing to object he has forfeited the claim on appeal. He offers no
compelling reason for us to do so.
In his reply brief, defendant belatedly argues that his lack of objection
should be excused because a failure to object will not forfeit the issue for appeal
when an objection would have been futile. (People v. Anderson (2001) 25 Cal.4th
543, 587; People v. Hill, supra, 17 Cal.4th at p. 820.) Defendant cannot establish
futility on this record. During the colloquy before final argument over biblical
references, the trial court stated that “had there been an objection to [the
prosecutor’s] question, it would have been sustained.” Defendant does not point
to any earlier ruling by the court that would have caused defense counsel to
believe it was futile to object to the prosecutor’s questioning.
Although the prosecutor did not expressly argue that the Bible approved
capital punishment, defendant maintains that message was conveyed by the
22

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prosecutor’s questions to Stewart about the death of the repentant thief, one of two
thieves crucified with Christ. The prosecutor emphasized that Christ promised the
repentant thief they would be together in Paradise, but he did not prevent the
thief’s crucifixion. (Luke 23:39-23:43.) Instead of objecting to the prosecutor’s
questions, defense counsel once more questioned defense witness Stewart.
Counsel asked about the punishment God meted out to Cain for murdering his
brother Abel, emphasizing that God, instead of sentencing Cain to death,
condemned him to life as wanderer. (Genesis 4:12-4:15.) Here both sides asked
questions of Stewart, a witness who described his job as teaching men about Jesus.
That questioning highlighted biblical passages in which one wrongdoer was
punished for life and one was punished by death.
We emphasize that this is not a case of improper prosecutorial argument.
Even in such a case, we have considered whether the defense itself relied on
biblical text in assessing prejudice. (See People v. Ervin, supra, 22 Cal.4th at
p. 100.) Here, neither the prosecution nor the defense relied in argument on
biblical authority. Accordingly, even if the error were preserved for review, it was
harmless beyond a reasonable doubt, the test we apply when, as here, a defendant
establishes misconduct or error implicating rights under our federal Constitution.
(Chapman v. California, supra, 386 U.S. at p. 24.) Likewise, we find the
prosecutor’s conduct harmless because there is no reasonable possibility that
defendant would have received a more favorable verdict had the prosecutor not
asked these questions, the standard we apply to state law error occurring at the
penalty phase of a capital trial. (People v. Jones (2003) 29 Cal.4th 1229, 1264, fn.
11; People v. Ochoa (1998) 19 Cal.4th 353, 479.)
VII. PROPORTIONALITY REVIEW
Defendant argues that his death sentence is disproportionate to his
culpability under either an intercase or intracase proportionality review. We have
23

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in the past rejected the claim that intercase proportionality review is required by
our federal Constitution. (People v. Sapp (2003) 31 Cal.4th 240, 317; People v.
Anderson, supra, 25 Cal.4th at p. 602.)
Defendant also argues that intracase proportionality review is required here
because “there is nothing in particular to distinguish” his crime from “dozens or
hundreds” of homicides resulting from “barroom holdups.” He urges us to find
his death sentence “grossly disproportionate to the offense” and to reduce it to life
imprisonment without possibility of parole.
A defendant who requests it is entitled under the cruel or unusual
punishment provision (art. I, § 17) in the California Constitution to intracase
proportionality review to determine if the death penalty is grossly disproportionate
to his culpability. (People v. Weaver, supra, 26 Cal.4th at p. 989.)
In this case defendant waited for other patrons to leave a bar in order to rob
at gunpoint its female bartender. Whether he killed her because she resisted or
because he intended to leave no witness, he shot her twice in the head at close
range after beating her on the head and kicking her with the metal-capped toe of
his cowboy boot. When he was interrupted by the entrance of a female patron, he
turned the murder weapon on her, ordering her onto the floor. But for her refusal
to comply and her successful resistance, she too would have been shot. After
killing the bartender, defendant used some of the proceeds of the robbery to pay
his utility and cable television bills and his overdue rent, and then he and his
girlfriend visited a favorite bar. Given the brutality of bartender Toney’s murder
and the seeming callousness with which it was committed during the course of a
robbery, the death penalty is not disproportionate punishment for defendant’s
crimes.
24

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VIII. CRUEL AND UNUSUAL PUNISHMENT
Defendant contends that the death penalty inflicts cruel and unusual
punishment under both the federal and state Constitutions because of the often
lengthy delay between the judgment of death and execution of that sentence. We
have previously rejected this contention, reasoning that such delay is necessary to
permit careful appellate review. (People v. Taylor (2001) 26 Cal.4th 1155, 1176;
People v. Frye (1998) 18 Cal.4th 894, 1031.) Defendant urges us to reconsider
that holding, relying in part on what has been characterized as international
opinion that is “generally against the imposition of capital punishment, but is
willing to tolerate such sentences” provided they are carried out without inordinate
delay. (Aarons, Can Inordinate Delay Between a Death Sentence and Execution
Constitute Cruel and Unusual Punishment? (1998) 29 Seton Hall L.Rev. 147,
211; see People v. Frye, supra, 18 Cal.4th at p. 1030.) As we recently pointed out,
“we are not persuaded that international law prohibits a sentence of death rendered
in accordance with state and federal constitutional and statutory requirements.”
(People v. Bolden (2002) 29 Cal.4th 515, 567.) Here, defendant’s trial met those
requirements.
Defendant also argues that by the time he is executed he will have become
a person very different from the man who committed these crimes. He contends
that not only will he be older, and thus “less likely” to engage in violence, but
confinement will have alleviated the pressures that, at the time of the crimes, he
found “overwhelming.” Claims of personal growth or transformation are
appropriately made to the Governor, who exercises his discretion to grant or deny
clemency. (See People v. Ansell (2001) 25 Cal.4th 868, 891.) The mere
possibility defendant may someday no longer pose a threat to society is an
insufficient reason for this court to revisit its prior holding that delay between
sentencing and execution does not make a death sentence cruel and unusual.
25

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(People v. Ochoa (2001) 26 Cal.4th 398, 463; People v. Frye, supra, 18 Cal.4th at
pp. 1030-1031.)

IX. DENIAL OF DEFENDANT’S SPECIAL INSTRUCTION NOT TO TREAT GUILT
VERDICT AS AGGRAVATING
Defendant proffered a special instruction at the penalty phase. That
proposed instruction told the jury it could “not treat the verdict and finding of first
degree murder committed under [a] special circumstance[s], in and of themselves,
as constituting an aggravating factor.” The instruction then stated: “For under the
law, first degree murder committed with a special circumstance may be punished
by either death or life imprisonment without possibility of parole. Thus, the
verdict and finding which qualifies a particular crime for either of these
punishments may not be taken, in and of themselves, as justifying one penalty
over the other. You may, however, examine the evidence presented in the guilt
and penalty phases of this trial to determine how the underlying facts of the crime
bear on aggravation or mitigation.”
Instead of defendant’s special instruction, the court gave standard
instructions, including CALJIC No. 8.85. The jurors were told that “in
determining which penalty is to be imposed . . . you shall consider all the evidence
which has been received during any part of the trial” and “shall consider, take into
account and b[e] guided by” factors including “[f]actor A, the circumstances of the
crime [of] which the defendant was convicted in the present proceeding and the
existence of any special circumstance found to be true.”
Defendant advances two claims based on the trial court’s rejection of his
proferred instruction. He first argues that circumstances of the crime (§ 190.3,
factor (a)) must include only those circumstances “unique” to this killing, a
distinction he maintains is not clearly explained by the standard instructions. He
is wrong. By giving CALJIC No. 8.85, the court instructed the jury to consider
26

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facts “unique” to this robbery murder as circumstances of the crime. (§ 190.3,
factor (a).) Moreover, another standard instruction given to the jury defined “an
aggravating factor” to be “any fact, condition or event attending the commission
of the crime which increases its severity or enormity, or adds to its injurious
consequences which is above and beyond the elements of the crime itself.”
(CALJIC No. 8.88.) To the extent defendant’s special instruction directed the jury
to assess how “the underlying facts of the crime bear on aggravation or
mitigation,” it was duplicative of CALJIC No. 8.85. A trial court properly refuses
to give an instruction that is duplicative. (People v. Gurule (2002) 28 Cal.4th 557,
659.)
Defendant next argues that CALJIC No. 8.85 allows the jury to infer at the
outset of deliberations that there is already an aggravating factor in place—that is,
the first degree, special circumstance murder. Accordingly, his requested
instruction stated: “[T]he verdict and [the] finding which qualifies a particular
crime for either of these punishments may not be taken, in and of themselves, as
justifying one penalty over the other.” This sentence in the rejected instruction
misstates the law. CALJIC No. 8.85 tracks the statutory language; the statute
directs the penalty phase trier of fact to “take into account any of the following
factors if relevant” and then describes the first factor as “[t]he circumstances of the
crime of which the defendant was convicted” and “the existence of any special
circumstances found to be true.” (§ 190.3, factor (a).) CALJIC No. 8.85
accurately describes the law as set out in section 190.3, factor (a).

In contrast, defendant’s special instruction would have told the jury that the
first degree murder verdict and special circumstance finding “may not be taken, in
and of themselves, as justifying one penalty over the other.” This sentence
seemingly directs the jury determining penalty not to give any weight to the fact of
a defendant’s murder conviction or the existence of a special circumstance finding.
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That proposition is inconsistent with the language of section 190.3, factor (a). A
trial court does not err when it refuses an instruction that incorrectly states the law.
(People v. Gurule, supra, 28 Cal.4th at p. 659.)
Recently, we held that a trial court properly rejected a similar instruction
that was offered by the defendant and stated: “ ‘The circumstances of a crime can
be considered mitigating or aggravating. You are not authorized to consider the
bare fact that [the defendant] has suffered a murder conviction as aggravating, but
instead are required to consider the circumstances surrounding it.’ ” (People v.
Brown (2003) 31 Cal.4th 518, 565.) We held that the second sentence of this
instruction was argumentative and was properly refused. (Id. at pp. 565-566.)
Even if, for the sake of argument, we were to assume the trial court erred
when it refused to give defendant’s special instruction, the error was harmless
beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24.)
As we have explained, “the circumstances of the crime of which the defendant
stands convicted are the single most pertinent sentencing consideration.” (People
v. Bacigalupo (1993) 6 Cal.4th 457, 479.) Defendant maintains that there was
nothing to distinguish his murder of bartender Toney “from any other
premeditated or felony-murder killing.” That contention is insupportable. The
prosecutor specifically argued to the jury that factor (a)’s aggravating
circumstances included the callousness with which Toney was treated, reminding
the jury of the blows and kicks to her head and the two gun shots at close range
into her head while she was lying face down on the floor with her arms crossed.
Here, there was ample evidence from which a jury could infer that defendant
overpowered Toney, forced her onto the floor, and then kicked her in the head
before he summarily shot her. In short, there were circumstances attendant to this
crime that increased its enormity.
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X. REFUSED MITIGATION INSTRUCTIONS
At the penalty phase, defendant offered four special instructions relating to
mitigating circumstances that the trial court refused, concluding that they were less
“even handed” than the standard instructions. He argues that these instructions
would have accurately informed the jury that the determination of penalty was a
qualitative decision and not merely a quantitative balancing of mitigating against
aggravating circumstances.
Defendant’s proposed special instruction number 19 provided: “Since you,
as jurors, decide what weight is to be given the evidence in aggravation and the
evidence in mitigation, you are instructed that any mitigating evidence standing
alone may be the basis for deciding that life without possibility of parole is the
appropriate punishment.” The instruction is argumentative because it states that
any mitigating evidence may support a sentence of life without possibility of
parole, but it does not state that any aggravating evidence may support a death
sentence. (People v. Hines (1997) 15 Cal.4th 997, 1069.)
The jury was given CALJIC No. 8.88 (1989 rev.) (5th ed. 1988), which
defined a mitigating circumstance as “any fact, condition or event which as such,
does not constitute a justification or excuse for the crime . . . , but may be
considered as an extenuating circumstance in determining the appropriateness of
the death penalty,” and which states that “the absence of factors in mitigation does
not require a verdict of death.” This latter clause, implicitly, and other language in
the instruction, explicitly, reject the “counting” method to which defendant
objects. Thus, the jury was told that the weighing process was not “a mere
mechanical counting of factors on each side of an imaginary scale” and told it was
“free to assign whatever moral or sympathetic value” it deemed appropriate to
each and all of the factors it was permitted to consider. (People v. Smith (2003) 30
29

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Cal.4th 581, 638 [counting of factors claim rejected in light of language in
CALJIC No. 8.88].)
The trial court did not err by refusing special instruction number 19
because as written that instruction was argumentative. Moreover, because the jury
was instructed with CALJIC 8.88 that it was not merely to balance the number of
aggravating circumstances against the number of mitigating circumstances, and
advised that it was to choose what weight to assign to any factor, it received an
evenhanded framed instruction that addressed defendant’s concern.
Special instruction number 20 stated: “You may spare the defendant’s life
for any reason you deem appropriate and satisfactory.” The trial court did not err
by rejecting this instruction, with its sweeping language, in favor of the standard
instruction, whose terminology reflects the statutory language.
Defendant’s proposed special instruction number 20A stated: “You need
not find any mitigating circumstances in order to return a sentence of life
imprisonment without possibility of parole. A life sentence may be returned
regardless of the evidence.” The second sentence of the instruction is wrong to the
extent that it invites the jury to act without regard to the evidence, and duplicative
to the extent that the jury was instructed that it was “free to assign whatever moral
and sympathetic value” to the factors it was permitted to consider. Although the
trial court refused to give special instruction number 20A, it did instruct the jury
that “[t]he defendant has no burden to introduce any factors in mitigation and the
absence of factors in mitigation does not require a verdict of death.” The first
sentence of defendant’s requested instruction would have been duplicative of the
instruction given.
Lastly, proposed special instruction number 32 stated: “Let me emphasize
. . . . You may return a verdict of life imprisonment without possibility of parole
even if you find that the factors and circumstances in aggravation outweigh those
30

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in mitigation.” We have previously rejected the contention that such an
instruction must be given. (People v. Mendoza (2000) 24 Cal.4th 130, 191;
People v. Kipp, supra, 18 Cal.4th at p. 381.)
To summarize, the trial court did not err in refusing to give defendant’s
proposed special mitigation instructions.
XI. BURDEN OF PERSUASION
Defendant argues that it is inconsistent not to require the prosecution to
bear the burden of persuasion at the penalty phase in a death penalty case when we
require it to do so in all other criminal trials. In support of this contention, he
relies on the constitutional guarantees of due process and equal protection and on
Evidence Code section 520, which imposes on the prosecution the burden of
proving guilt.
He urges this court to revisit its decision in People v. Hayes (1990) 52
Cal.3d 577. There we explained: “Because the determination of penalty is
essentially moral and normative [citation], and therefore different in kind from the
determination of guilt, there is no burden of proof or burden of persuasion.
[Citation.] The jurors cannot escape the responsibility of making the choice by
finding the circumstances in aggravation and mitigation to be equally balanced
and then relying on a rule of law to decide the penalty issue. The jury itself must,
by determining what weight to give the various relevant factors, decide which
penalty is more appropriate.” (Id. at p. 643.)
As we noted in Hayes, the jury’s sentencing choice at a death penalty trial
is fundamentally different from the trier of fact’s determination of guilt (Evid.
Code, § 520) under the determinate sentencing law. Choosing between the death
penalty and life imprisonment without possibility of parole is not akin to “the
usual fact-finding process,” and therefore “instructions associated with the usual
fact-finding process—such as burden of proof—are not necessary.” (People v.
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Carpenter (1997) 15 Cal.4th 312, 417-418.) We have previously rejected the
claim that the prosecution bears the burden of persuasion at the penalty phase.
(People v. Sapp, supra, 31 Cal.4th at p. 317; People v. Kipp, supra, 18 Cal.4th at
p. 381; People v. Bemore (2000) 22 Cal.4th 809, 859.) Defendant advances no
meritorious reason for us to reconsider the rule that, apart from other-crimes
evidence, the jury need not be instructed on the burden of proof at the penalty
phase. (People v. Hillhouse (2002) 27 Cal.4th 469, 510-511.)
Because there is no merit to defendant’s constitutional or statutory claim,
trial counsel did not perform deficiently in not requesting a jury instruction on the
prosecution’s burden of proof at the penalty phase.
XII. CONSTITUTIONALITY OF DEATH PENALTY STATUTE
Defendant challenges various aspects of California’s capital sentencing
scheme as violative of the United States Constitution, and he contends this court
should reverse or reduce his penalty to life imprisonment. In previous decisions,
we have rejected the same challenges, as noted below.
Death is not an inherently unconstitutional punishment. (People v.
Martinez (2003) 31 Cal.4th 673, 703; People v. Jones, supra, 29 Cal.4th at
p. 1267; People v. Samayoa (1997) 15 Cal.4th 795, 864-865.) Nor does a
prosecutor’s discretion to seek the death penalty in a given case offend
constitutional principles or protections. (People v. Earp (1999) 20 Cal.4th 826,
905; People v. Crittenden (1994) 9 Cal.4th 83, 152.) As we have recently
reaffirmed, neither our federal Constitution nor the societal interests at stake in a
capital trial require the jury to find beyond a reasonable doubt that death is the
appropriate penalty (People v. Jones (2003) 30 Cal.4th 1084, 1126-1127; People
v. Samayoa, supra, 15 Cal.4th at p. 862), nor do they require a presumption of life
(People v. Jones, supra, 29 Cal.4th at p. 1267; People v. Arias (1996) 13 Cal.4th
92, 190). The jury need not make explicit findings as to which aggravating and
32

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mitigating factors support its verdict. (People v. Lawley (2002) 27 Cal.4th 102,
168; People v. Anderson, supra, 25 Cal.4th at p. 601.) The law does not
insufficiently narrow the class of persons who are death eligible (People v.
Bacigalupo, supra, 6 Cal.4th at pp. 465-468), nor does the robbery murder special
circumstance include so many first degree murders it narrows the class of death
eligible persons scarcely at all (People v. Frye, supra, 18 Cal.4th at p. 1029
[rejecting claim that felony-murder special circumstance makes “virtually all first
degree murders” death eligible]).
Finally, defendant urges us to reduce his sentence to life imprisonment
without possibility of parole under sections 1181, subdivision 7, and 1260. This
court has previously held that these sections do not give us the power to substitute
our view of the appropriate penalty to be imposed for that of the jury. (People v.
Steele, supra, 27 Cal.4th at pp. 1268-1269; People v. Hines, supra, 15 Cal.4th at
p. 1080.)
XIII. DISPOSITION

The judgment is affirmed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Lenart
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S049389
Date Filed: May 6, 2004
__________________________________________________________________________________

Court:

Superior
County: Shasta
Judge: William R. Lund, Jr.

__________________________________________________________________________________

Attorneys for Appellant:

Gregory Marshall, under appointment by the Supreme Court, for Defendant and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,
Assistant Attorney General, Stan Cross and Susan Rankin Bunting, Deputy Attorneys General, for Plaintiff
and Respondent.

34

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Gregory Marshall
P. O. Box 996
Palo Cedro, CA 96073
(530) 549-4836

Susan Rankin Bunting
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5253

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Opinion Information

Date:	Docket Number:
Thu, 05/06/2004	S049389

Disposition
May 6 2004	Opinion: Affirmed

Dockets
Oct 6 1995	Judgment of death
Oct 12 1995	Filed certified copy of Judgment of Death Rendered   10/06/95
Jan 6 1999	Counsel appointment order filed   Gregory Marshall Is appointed to represent Applt for the direct Appeal.
Jan 14 1999	Received:   Notice from Superior Court, dated 1-11-99, that Record Was sent to Applt's Counsel that Date.
Apr 12 1999	Application for Extension of Time filed   By Applt to request correction of the Record.
Apr 14 1999	Extension of Time application Granted   To 6-15-99 To request Record correction
Jun 11 1999	Application for Extension of Time filed   By Applt to request correction of the Record.
Jun 17 1999	Extension of Time application Granted   To 8-16-99 To request Record correction
Aug 16 1999	Application for Extension of Time filed   By Applt to request correction of the Record.
Aug 18 1999	Extension of Time application Granted   To Applt. To 10/15/99 To request Corr. of Record.
Oct 6 1999	Compensation awarded counsel
Oct 14 1999	Application for Extension of Time filed   By Applt to request Corr. of the Record.
Oct 18 1999	Extension of Time application Granted   To 12/14/99 To Applt To request Corr. of the Record.
Dec 13 1999	Application for Extension of Time filed   By Applt to request Corr. of the Record.
Dec 16 1999	Extension of Time application Granted   To 2/14/2000 To Applt To request Corr. of the Record. no further Eot will be Contemplated.
Feb 14 2000	Application for Extension of Time filed   By Applt to request Corr. of the Record.
Feb 18 2000	Extension of Time application Granted   To 4/14/2000 To Applt To request Corr. of the Record. no further Extensions of time will be Granted.
Apr 18 2000	Received:   Copy of Applt's request for Corr./Augmentation of the Record (9 Pp.)
May 4 2000	Compensation awarded counsel   Atty Marshall
Jun 26 2000	Counsel appointment order filed   Phyllis M. Quatman for Habeas Corpus/Executive Clemency Proceedings
Aug 4 2000	Counsel's status report received (confidential)   from atty Marshall.
Aug 14 2000	Record on appeal filed   C-25 (4,319 pp.) and R-25 (4,003 pp.) including material under seal; Clerk's Transcript includes 2,520 pages of Juror Questionnaires.
Aug 14 2000	Appellant's opening brief letter sent, due:   9/25/2000
Sep 21 2000	Application for Extension of Time filed   to file AOB.
Sep 22 2000	Extension of Time application Granted   to 11-27-2000 to file AOB.
Oct 4 2000	Counsel's status report received (confidential)   from atty Marshall.
Nov 22 2000	Application for Extension of Time filed   To file AOB. (2nd request)
Nov 29 2000	Extension of Time application Granted   To 1/26/2001 to file AOB.
Dec 4 2000	Counsel's status report received (confidential)   from atty Marshall.
Jan 5 2001	Compensation awarded counsel   Atty Marshall
Jan 22 2001	Application for Extension of Time filed   To file AOB. (3rd request)
Jan 29 2001	Extension of Time application Granted   To 3/27/2001 to file AOB.
Jan 30 2001	Compensation awarded counsel   Atty Quatman
Feb 5 2001	Counsel's status report received (confidential)   from atty Marshall.
Feb 8 2001	Counsel's status report received (confidential)   from atty Quatman.
Mar 26 2001	Application for Extension of Time filed   to file AOB. (4th request)
Mar 27 2001	Extension of Time application Granted   To 5/29/2001 to file AOB.
Apr 3 2001	Counsel's status report received (confidential)
May 29 2001	Application for Extension of Time filed   To file AOB. (5th request)
May 31 2001	Extension of Time application Granted   To 7/30/2001 to file AOB.
Jun 5 2001	Counsel's status report received (confidential)   from atty Marshall.
Jun 20 2001	Compensation awarded counsel   Atty Quatman
Jul 25 2001	Application for Extension of Time filed   To file AOB. (6th request)
Aug 1 2001	Extension of Time application Granted   To 9/28/2001 to file AOB. No further extensions of time are contemplated.
Aug 2 2001	Counsel's status report received (confidential)   from atty Marshall.
Sep 27 2001	Application for Extension of Time filed   To file AOB. (7th request)
Oct 2 2001	Counsel's status report received (confidential)
Oct 4 2001	Extension of Time application Granted   To 11/27/2001 to file AOB. No further extensions of will be granted.
Nov 27 2001	Request for extension of time filed   To file AOB. (8th request)
Nov 28 2001	Extension of time denied   To file AOB.
Dec 3 2001	Counsel's status report received (confidential)   from atty Marshall.
Dec 24 2001	Application for relief from default filed   to file AOB. (141 pp. AOB submitted under separate cover on 12/19/2001)
Dec 27 2001	Order filed   Applt.'s application for relief from default to file AOB is granted.
Dec 27 2001	Appellant's opening brief filed   (141 pp.)
Jan 14 2002	Counsel's status report received (confidential)   from atty Quatman.
Jan 14 2002	Compensation awarded counsel   Atty Marshall
Jan 18 2002	Request for extension of time filed   To file resp.'s brief. (1st request)
Jan 23 2002	Filed:   R-1 (ASCII Disc of confidential proceedings)
Jan 24 2002	Extension of time granted   To 2/27/2002 to file resp.'s brief.
Feb 19 2002	Request for extension of time filed   To file resp.'s brief. (2nd request)
Feb 21 2002	Extension of time granted   To 3/27/2002 to file resp.'s brief. Dep. AG Bunting anticipates filing the brief by 4/26/2002. Only one further extension totaling 30 additional days is contemplated.
Feb 22 2002	Compensation awarded counsel   Atty Quatman
Mar 22 2002	Request for extension of time filed   To file resp.'s brief. (3rd request)
Mar 26 2002	Extension of time granted   To 4/26/2002 to file resp.'s brief. Dep. Atty. General Bunting anticipates filing the brief by 4/26/2002. After that date, no further extension is contemplated.
Apr 4 2002	Respondent's brief filed   (87 pp.)
Apr 24 2002	Request for extension of time filed   To file reply brief. (1st request)
Apr 30 2002	Extension of time granted   To 5/24/2002 to file reply brief.
May 22 2002	Request for extension of time filed   To file reply brief. (2nd request)
May 23 2002	Extension of time granted   To 6/24/2002 to file applt.'s reply brief. Counsel anticipates filing that brief by 6/24/2002. No further extension is contemplated.
Jun 25 2002	Request for extension of time filed   To file applt.'s reply brief. (3rd request)
Jun 27 2002	Extension of time granted   To 7/24/2002 to file applt.'s reply brief. Counsel anticipates filing that brief by 7/24/2002. No further extension will be granted.
Jul 22 2002	Counsel's status report received (confidential)   from atty Quatman.
Aug 1 2002	Application for relief from default filed   To file applt.'s reply brief. (16 pp. brief submitted under separate cover on 7/29/2002)
Aug 5 2002	Order filed   Appellant's application for relief from default to file appellant's reply brief is granted.
Aug 5 2002	Appellant's reply brief filed   (16 pp.)
Aug 14 2002	Compensation awarded counsel   Atty Quatman
Sep 19 2002	Compensation awarded counsel   Atty Marshall
Nov 5 2002	Counsel's status report received (confidential)   from atty Quatman.
Dec 9 2002	Compensation awarded counsel   Atty Quatman
May 6 2003	Compensation awarded counsel   Atty Quatman
Jun 13 2003	Compensation awarded counsel   Atty Quatman
Aug 5 2003	Compensation awarded counsel   Atty Quatman
Aug 22 2003	Change of Address filed for:   Phyllis M. Quatman: 600 Eighth Street East, Whitefish, Montana 59937
Sep 9 2003	Note:   requested exhibits from superior court.
Sep 19 2003	Exhibit(s) lodged   People's: 11A, 12 (A-E), 101, 107, 115, 129A, 130A, 131A, 132A, 133A and 135A.
Oct 15 2003	Compensation awarded counsel   Atty Quatman
Oct 20 2003	Compensation awarded counsel   Atty Quatman
Dec 4 2003	Oral argument letter sent   advising counsel that case could be scheduled for oral argument as early as the February calendar, to be held in Sacramento the week of Feb. 9, 2004. Any request for additional time, notification of requirement for two counsel, or advisement of "focus issues" due no later than 10 days after the case has been set for oral argument.
Jan 14 2004	Case ordered on calendar   Wednesday, February 11, 2004 @ 9am (Sacramento)
Jan 22 2004	Filed letter from:   counsel for respondent dated, 1/21/2004, re focus issues for oral argument.
Jan 27 2004	Filed:   oral argument focus issue letter from appellant, dated 1-23-2004.
Feb 11 2004	Cause argued and submitted
Apr 16 2004	Counsel's status report received (confidential)   from atty Quatman.
Apr 21 2004	Compensation awarded counsel   Atty Quatman
May 6 2004	Opinion filed: Judgment affirmed in full   Majority opinion by Kennard, J. ----------------joined by George, CJ, Baxter, Werdegar, Chin, Brown, Moreno, JJ.
May 19 2004	Rehearing petition filed   by appellant. (1046 words - 4 pp.)
May 25 2004	Time extended to consider modification or rehearing   to 8-4-2004, or the date upon which rehearing is either granted or denied, whichever occurs first.
Jun 23 2004	Rehearing denied   Petition for rehearing DENIED.
Jun 23 2004	Remittitur issued (AA)
Jun 28 2004	Received:   Acknowledgment of receipt of remittitur.
Jun 29 2004	Exhibit(s) returned   to Shasta County Superior Court: People's 11A, 12 (A-E), 101, 107, 115, 129A, 130A and 135A.
Jun 30 2004	Order filed (150 day statement)
Jul 6 2004	Received:   acknowledgment of receipt of exhibits.
Aug 4 2004	Related habeas corpus petition filed (post-judgment)   No. S126851
Aug 11 2004	Compensation awarded counsel   Atty Quatman
Sep 15 2004	Compensation awarded counsel   Atty Marshall
Oct 27 2004	Compensation awarded counsel   Atty Quatman
Nov 10 2004	Compensation awarded counsel   Atty Quatman
Mar 16 2005	Compensation awarded counsel   Atty Quatman
Jul 20 2005	Compensation awarded counsel   Atty Quatman
Jun 1 2006	Compensation awarded counsel   Atty Quatman
Dec 20 2006	Compensation awarded counsel   Atty Quatman
Jun 20 2007	Compensation awarded counsel   Atty Quatman
Nov 30 2007	Motion to withdraw as counsel filed   by Atty Quatman.
Dec 19 2007	Motion denied   The "Motion to Withdraw as Counsel of Record and Notice of Conflict of Interest," filed on November 30, 2007, is denied.
Dec 19 2007	Compensation awarded counsel   Atty Quatman
Sep 17 2008	Motion for access to sealed record filed   Lenart's "application for leave to review and copy confidential files under seal ." (filed by federal counsel, Wesley Van Winkle and Lissa Gardner, Asst. Federal Defender)
Sep 24 2008	Filed:   by petitioner "Addendum to Motion for Leave to Review and Copy Confidential Files Under Seal"
Oct 10 2008	Related habeas corpus petition filed (post-judgment)   No. S167453
Oct 16 2008	Motion for access to sealed record granted   Good cause appearing, petitioner's "Application for Leave to Review and Copy Confidential Files under Seal," filed on September 17, 2008, seeking an order from this court granting him the opportunity to have access to, inspect, and copy confidential records and files, is granted. Counsel is granted access to the confidential status reports, requests for payment, and funding requests of prior postconviction counsel in the record of People v. Thomas Howard Lenart, S049389, and In re Thomas Howard Lenart, S126851. Counsel must supply the personnel and equipment necessary to undertake this review and copying of the records, which must occur on the premises of the court.

Briefs
Dec 27 2001	Appellant's opening brief filed
Apr 4 2002	Respondent's brief filed
Aug 5 2002	Appellant's reply brief filed

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