Supreme Court of California Justia
Citation 45 Cal. 4th 1, 190 P.3d 664, 82 Cal. Rptr. 3d 323

People v. Lindberg

Filed 8/28/08



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S066527

v.

GUNNER JAY LINDBERG,

) Orange

County

Defendant and Appellant.

Super. Ct. No. 96CF0685



A jury found defendant Gunner Jay Lindberg guilty of the first degree

murder (Pen. Code, § 187)1 of Thien Minh Ly and found he personally used a

knife (§ 12022, subd. (b)). The jury further found true special circumstance

allegations that defendant committed murder in the attempted commission of

robbery (§ 190.2, former subd. (a)(17)(i), now subd. (a)(17)(A)) and because of

the victim’s race, color, religion, nationality, or country of origin (§ 190.2, subd.

(a)(16) (“hate-murder” special circumstance)).

At defendant’s penalty trial, the jury returned a death verdict. The trial

court denied defendant’s motion for new trial (§ 1181) and automatic application

to modify the penalty verdict (§ 190.4, subd. (e)) and sentenced him to death. This

appeal is automatic. (§ 1239, subd. (b).)


1

All further statutory references are to the Penal Code unless otherwise

indicated.

1


We affirm the judgment.

I. FACTS AND PROCEEDINGS

A. Prosecution Guilt Phase Case

1. The Murder of Thien Minh Ly

Defendant concedes that the prosecution proved he murdered Ly on the

Tustin High School tennis courts on January 28, 1996.

The evidence showed that on January 28, 1996, between 8:30 and 9:00

p.m., Thien Minh Ly left his family’s home in Tustin wearing his rollerblades and

leaving behind his wallet and car keys. When Ly did not return home, his family

telephoned the police the next day.

On the same morning, around 7:45 a.m., Frank Armenta, a groundskeeper

at Tustin High School, noticed someone wearing rollerblades lying on one of the

tennis courts. As he approached, Armenta noticed the person was not breathing

and saw blood on his shirt and a cut on his neck. He asked two nearby school

employees to call the police.

When the police responded, they found Ly dead. Next to Ly’s body, they

recovered a cap and a single key on a key ring. The key fit the locks at Ly’s

residence.

Ly had suffered multiple injuries. A pattern contusion (i.e., having “some

pattern like linear marking”) and abrasion comprising an area about five inches by

four inches appeared on the right side of Ly’s face, extending from his forehead to

his right cheek and ear. A contusion and an abrasion appeared on the left side of

Ly’s forehead, and a contusion appeared on his mid-nose area and below his left

eye. Redness was visible on his left cheek. Ly had suffered five and a half-inch

and three and a half-inch slash wounds on the right and left sides of his neck,

respectively. Each of these wounds had irregular edges, suggesting the perpetrator

did not inflict a single wound, but probably cut and then extended the cut. The

2

slash wounds to Ly’s neck had been inflicted close in time to his death but not

post mortem. Ly had suffered multiple deep stab wounds on the right and left

sides of his chest that penetrated his internal organs, linear abraded areas that were

consistent with being caused by the pulling of a knife from a deep penetrating

wound, stab wounds on his right upper arm, a stab wound in his abdominal area,

and an abrasion on his right hand. Some of the chest wounds penetrated through

the body. Ly had suffered about 22 wounds to his chest and abdominal areas,

some inflicted from the front and some from the back. Each wound had been

inflicted by a single-bladed knife or sharp object with a blade about an inch to an

inch and a quarter in width. The maximum depth of penetration was about four

and one-half inches. Ly had been stabbed about 14 times in the heart. The

multiple stab wounds that perforated Ly’s heart, both lungs, diaphragm, liver,

duodenum, and kidney had caused Ly to bleed to death.

2. Defendant’s Confession to Ly’s Murder

Walter Ray Dulaney IV, also known as Robert Dulaney, testified he was

defendant’s cousin and friend and had known defendant all his life. Dulaney

previously had been convicted of first degree assault and burglary and, at the time

he testified, was in custody in Missouri for shooting at someone. Sometime

during the five years before trial, Dulaney, defendant, and defendant’s brother

Jerry2 formed a gang called the Insane Criminal Posse (ICP). In 1995, primarily at

defendant’s urging, the gang became involved in the white power movement. By

“white power,” Dulaney meant that Whites were superior to all other races. He

said defendant shared this view. Dulaney, who was part Japanese, did not

consider himself to be any race other than “American.”

2

Dulaney testified that defendant at various times used the name of his

brother, Jerry Lindberg, as well as the name “Gunner Dulaney,” and the nickname,
“Swiss G.”

3

On February 29, 1996, Dulaney, who was living in Alamogordo, New

Mexico, received a handwritten letter from defendant dated February 23, 1996 (the

February 23d letter). Defendant had addressed the letter to “Dear Bro, ex-con

2/11 Rob” and stated in relevant part: “Oh, I killed a jap a while ago. I stabbed

him to death at tustin High school I walked up to him Dominic was with me and I

seen this guy Roller blading and I had a knife. We walked in the tennis court

where he was I walked up to him, Dominic was right there. I walked right up to

[unintelligible] him and he was scared I looked at him and said, ‘oh, I thought I

knew you’ and he got happy that he wasn’t gona get jumped. then I hit him with

one of my mother fuckers and he feel on the ground and he said in a very low

voice ‘what the fuck’ and ‘you can have whatever I got.’ I have nothing only a

key. You can have it’ then I said ‘you got a car,’ oh I pulled the knife out a

butcher knife! and he said ‘no’ then I put the knife to his throught and asked him

‘Do you have a car.’ And he grabed my hand that I had the knife in and looked at

me, trying to get a discription of me so I stomped on his head 3 times and each

time said ‘stop looking at me’ then he was kinda knocked out Dazzed then I

stabbed him in the side about 7 or 8 times he rolled over a little so I stabbed his

back about 18 or 19 times then he layed flat and I slit one side of his throught on

his jugular vain. Oh, the sounds the guy was making were like uhhh then Dominic

said, ‘do it again’ and I said ‘I already did, Dude’ ‘ya, do it again’ so I cut his

other juggular vain, and Dominic said ‘kill him do it again.’ I said, ‘he’s already

dead’ Dominic said, ‘stab him in the heart.’ So I stabbed him about 20 to 21 times

in the heart and we took off. . . . [T]hen I wanted to go back and look, so we did

and he was dieing just then taking in some bloody gasps of [illegible] air so I

nudged his face with my shoe a few times then I told Dominic to kick him, so he

kicked the fuck out of his face and he still has blood on his shoes all over [smiley

face] then I ditched the knife, after whiping it clean onto the side of the I5 freeway

4

[smiley face] here’s the clippings from the news paper and we were on all the

news channels 2/11 Insane Loc in having a ball in tustin wish you were here. . . .”

(Errors in original.)

After Dulaney read the letter, his wife gave it to his mother and stepfather,

who then gave the letter to Alamogordo police, all of which occurred on the same

day. Alamogordo police brought the letter to the attention of the Orange County

District Attorney’s Office and Tustin police.

The next day, March 1, 1996, Dulaney spoke by telephone to defendant

who told him the murder “gave [him] a rush,” “like a high. Better than a drug.”

Defendant told Dulaney that he “killed the Jap,” that he “slit his throat and stabbed

him a whole bunch of times,” and that he “couldn’t stop.” Defendant told

Dulaney he killed Ly “for racial movement [sic].”

On March 5, 1996, Tustin Police Detectives Todd Bullock and Bruce

Williams interviewed Dulaney about the letter he had received from defendant.

Dulaney denied he had spoken with defendant since he had received the letter

because he did not want defendant to be in more trouble than he already was.

When Detective Bullock asked Dulaney how defendant felt about Asians, Dulaney

said he did not know, as they never talked about it.

Dulaney later moved to Missouri with his wife. Sometime in the early part

of 1997, while living in Missouri, Dulaney was shot in the stomach by somebody

who yelled, “You want to put your cousin on death row, here is death row.”

Dulaney did not seek medical help, but pulled the bullet from his stomach himself

using tweezers and a lug wrench as he had been trained to do in the “Young

Marines.”3 Dulaney did not report the gunshot wound to police because, at that

time, he did not want to violate the conditions of his parole and return to prison.

3

At defendant’s request, during defendant’s trial, Dr. Richard Fukumoto, a

pathologist with the Orange County Coroner’s Office, examined Dulaney’s

(Footnote continued on next page.)

5

On April 11, 1997, Dulaney telephoned Carl Waddell, an investigator with

the Orange County District Attorney’s Office, and informed the investigator that

defendant had told him the murder was racially motivated. On April 24, 1997,

Investigator Waddell and Tustin Police Detective Thomas Tarpley interviewed

Dulaney in Missouri.4 Dulaney repeated that defendant said the murder had been

committed for “the racial movement.” Dulaney said he had not previously told the

police about his telephone conversation with defendant because he was afraid and

did not want to snitch on defendant any more than he had. Dulaney told

Investigator Waddell that “when he [Dulaney] testified that he was a dead man.”

Sometime before he telephoned Waddell on April 11, 1997, Dulaney

received a letter from defendant while defendant was in custody awaiting trial in

this case. In the letter, defendant wrote that Dulaney’s parents were “2/11,”

meaning they were dead because they had turned defendant in. Dulaney and

defendant also used the term “2/11” to mean “armed robbery” to show that their

gang was “for real” and not “some punk gang or nothing.” After giving

defendant’s February 23d letter to police, Dulaney was afraid defendant would kill

him. Dulaney became depressed and admitted himself to a “mental rehab” facility

because he felt responsible that defendant could receive the death penalty.

(Footnote continued from previous page.)

stomach wound. Dr. Fukumoto observed an almost circular scar between the size
of a dime and that of a nickel just above the beltline on the left side. Dr.
Fukumoto testified the size of the scar was consistent with a .38-caliber bullet. Dr.
Fukumoto could not rule out the possibility that Dulaney had been shot with a
bullet and had cauterized the wound.

4

During this interview, Investigator Tarpley observed Dulaney’s stomach

wound and believed it was a “more recent wound” that had not yet completely
healed.

6

Dulaney received no promises from either the prosecution or the authorities in

Missouri in exchange for his testimony at defendant’s trial.

3. Defendant’s Arrest and the Search of His Apartment

In the early morning hours of March 2, 1996, police officers executed a

search warrant at defendant’s apartment in Tustin with the assistance of the

Orange County Sheriffs Department SWAT team. They arrested defendant, who

was in the living room, and Domenic Christopher,5 who had fled through a

window but was quickly apprehended nearby. Bob Mix, who was present in the

apartment with defendant, was detained and taken to the police station.

On a wall in the bedroom shared by defendant and Christopher, police

officers observed a poster that read across the top, “Celebrate Martin Luther King

Day” (“Martin Luther King” poster). The bottom of the poster read, “If they

would have shot four more, we could have had the rest of the week off from

work.” The word “death” was written below “Luther” in “Martin Luther King.”

The police seized the followings items from defendant’s bedroom. (1) A

notebook containing writing on numerous pages. One writing was entitled

Blessed Be Ye Ears that discussed “killing the meek,” talked extensively about

“devastation and death,” called Robert Dulaney “Ex-Con,” stated that “Dominic”

was a “2/11” member but had not reached any “levels,” and declared that “Death

is apperant in all my members eyes, kill spill the blood of the meek. The meek

shall inharent shit. The stronge shall survive my tounament of death” (errors in

original);

5

Before the parties made their closing argument, the trial court granted

defendant’s request to take judicial notice of copies of court records in Orange
County Superior Court No. 96CF1165, showing Christopher had been charged by
information with murder of Thien Minh Ly and found guilty of the first degree
murder of Ly. The trial court informed the jury of the judicially noticed court
records.

7

(2) a box bearing the words “Mixed Fruit” and “Gunner’s Box,” and two

pairs of gloves on top of the box;

(3) a Bible with “Presented [¶] to Bambi [illegible] [¶] by Gunner

Lindberg” inscribed on the inside front cover and listing the names of White

supremacist organizations, a White supremacist leader, and a White supremacist

newsletter on the last several pages. Inserted among the pages of the Bible were

various papers and printed material, including:

(a) an application for the N.A.A.W.P. (National Association for the

Advancement of White People);

(b) a newsletter dated August 1994 and entitled “The Talon Euro-

American alliance” that described the Aryan Movement, noting it “courageously

offer[s] the white race its only hope for survival”;

(c) a piece of paper that read “Failure to speak up, a silent and deadly

killer” written by Jack Mohr, a “Brigadier General” who heads a White

supremacist organization known as “The Crusade for Christ and Country,” an

envelope showing Mohr’s return address that was addressed to defendant, an

envelope and a letter dated October 31, 1994, addressed to Mohr and showing

defendant’s name and return address, and two handwritten letters from Mohr

addressed to defendant;

(d) a printed form entitled “The Nationalist Party of Canada

Membership Oath” that read, “I declare that I am a racist who respects other races

with common sense and good will and fair play towards the maintenance of my

racial integrity and identity. [¶] I pledge to establish and maintain the

constitutional racist state homeland. . . .”; and

(e) a piece of paper bearing the title “Pro White Organizations,” listing

the name and addresses of 12 organizations, including the Aryan Research

Fellowship, the Ku Klux Klan, and the White Aryan Resistance;

8

(4) a cardboard box bearing the words “2/11 Insane LOC,” “Insane Loc,”

“I.C.P.,” and “O.G.,” with lightning bolts and two swastikas;

(5) a plastic skull with a motorcycle helmet bearing a swastika across the

top; and

(6) a T-shirt belonging to defendant with a small bloodstain about the size

of a nickel.

4. Defendant’s Statements to Police

After his arrest, defendant was transported to the Tustin police station.

Police Investigator Todd Bullock advised defendant of his rights under Miranda v.

Arizona (1966) 384 U.S. 436, which defendant waived. Bullock conducted two

audiotaped interviews of defendant. During the first interview, defendant

admitted he had heard about the murder of Thien Minh Ly but denied any

involvement.

During the second interview, conducted by Investigators Bullock and Mike

Clesceri, defendant admitted that “2/11” meant “armed robbery” and that he

“wrote the whole [February 23d] letter” to Dulaney to boast and impress his

cousin. Defendant maintained the statements in the letter meant nothing to him.

Defendant said he had heard about the crime from newspapers and television. He

admitted he sent one of the newspaper articles to Dulaney along with the February

23d letter as proof he had written the letter.

Defendant said he was interested in the murder “[c]ause it was an ethnic,”

and “[i]t wasn’t a white person.” Defendant acknowledged his letter to Dulaney

was “nice and detailed.” He said he made up the details, including the seven or

eight stab wounds he inflicted to Ly’s side and the 18 or 19 stab wounds he

inflicted to his back, and acknowledged the newspaper articles specified only that

Ly suffered “multiple” stab wounds. When asked where he had heard about Ly

having a key, defendant said he “[j]ust thought of it” and acknowledged he did not

9

learn about this detail from the newspaper or television news. Defendant admitted

that it was “[k]ind of odd” that Ly had only a key found next to his body and that

defendant had written in the February 23d letter that Ly said he had nothing but a

key.

5. Forensic Evidence

DNA samples were obtained from dried bloodstains on three areas of the

right-hand black glove found on the box in defendant’s bedroom. One of these

DNA samples was mixed, containing DNA from two sources. Ly’s DNA was

consistent with the sample DNA from all three areas of the glove. Defendant’s

DNA was consistent with being one of the sources of the mixed sample.

Christopher was excluded as being a contributor of the blood tested on the glove.

The percentage of the population that could be excluded as having been the

source of the bloodstains on the gloves was 99.999 percent. Based on FBI

national population databases, estimates of the frequency with which the DNA

pattern found on the right-hand black glove (excluding the mixed DNA sample)

occurred was one in two million in the Asian population, one in 30 million in the

Caucasian population, one in 10 million in the African-American population, and

one in three million in the Hispanic population.

The bloodstain found on defendant’s T-shirt that was seized from his

bedroom was consistent with the genetic markings of Christopher, but not Ly.

6. Prior Acts Evidence

a. Attempted Robbery of Emelio Reyes-Martinez

In October 1990, defendant, who was 15 years old, and Kenny Harp went

to a field near San Diego to rob Hispanic people. Defendant and Harp knew that

Hispanics who worked in the field were paid in cash. Emelio Reyes-Martinez, a

Hispanic landscaper, was walking through the field to obtain water and saw

10

Kenny, defendant, and three other boys approach.6 Defendant held a stick about

two feet long and two and a half inches in diameter in his right hand behind his

back. Defendant gestured with his left hand towards Reyes-Martinez, moving his

fingers, and demanding, “Money, money, money.” When Reyes-Martinez told

defendant he did not have any money, defendant hit him on the head with the

stick. Reyes-Martinez again told defendant he did not have any money, and

defendant again hit him with the stick. Defendant struck Reyes-Martinez’s right

arm, causing the bone to protrude.

Believing the beating was not going to stop, Reyes-Martinez began to run

and yell for help. Defendant and Harp followed, pulled at Reyes-Martinez’s arms,

and kicked him until he stumbled and fell. Reyes-Martinez managed to get back

up and started running again, bleeding from his face. Reyes-Martinez thought that

if he fell again, defendant and Harp would “hit [him] to a pulp.” Defendant and

Harp continued to beat Reyes-Martinez, hitting him from behind. Reyes-Martinez

lost $200 or $210 in the attack. Reyes-Martinez’s friends chased defendant and

Harp away. Reyes-Martinez was taken to the hospital, where he received 14 to 19

stitches.

b. Attempted Robbery of Helen Tillman

On October 31, 1990, defendant and Zachery Ellis, each 15 years old and

armed with knives, entered the home of Helen Tillman, an elderly woman who

lived alone, and demanded her money. At trial, Tillman testified a man held a

knife to her neck while restraining her. Defendant or Ellis took $90 that Tillman

had in her purse in her bedroom. Before leaving, defendant struck Tillman on the


6

Although Reyes-Martinez saw about five boys approaching him in the

field, he testified that only defendant and Harp hit him during the attack.

11

right side of her face with his hand, knocking her onto the counter and causing her

face to swell and bruise.

On November 1, 1990, defendant admitted to Oceanside Police Officer

James Sandifer that he and Ellis had entered Tillman’s residence through a sliding

door. Defendant claimed Ellis went into a back room while he remained in the

kitchen with Tillman. Defendant held Tillman by the back collar of her shirt and

admitted he punched her on the right side of her face because he feared she might

escape. Defendant denied having a knife, but admitted he and Ellis took money

from the back bedroom.

Ellis admitted to Officer Sandifer that he was defendant’s friend and that

both he and defendant had been armed with knives when they robbed Tillman.

Ellis had difficulty remembering details of the incident, but testified it was

defendant’s idea to enter Tillman’s residence. Ellis confirmed that on June 11,

1997, he told Investigator Waddell that defendant came out of the back room and

hit Tillman.

7. Evidence Offered to Support the Hate-murder Special-circumstance

Allegation

a. Defendant’s Assault on Tung Le and His Statements While in

Jail

In July 1997, Alejandro Villa, who previously had been convicted of and

imprisoned for numerous crimes, including commercial burglary, grand theft from

a person, grand theft auto, and petty theft, was incarcerated in the same area of the

Orange County Jail where defendant was in custody awaiting trial in this case. At

the time of defendant’s trial, Villa was facing charges for armed robbery, assault

on a peace officer and emergency personnel, battery on a peace officer and

emergency personnel, escape from jail with felony force, and possession of

hypodermic needles and syringes.

12

Tung Le, an Asian inmate, was placed in the same jail modular group as

Villa and defendant. Before Le arrived, defendant told Villa he wanted Le to be

put in their group. When Le arrived, defendant appeared to be excited, rubbing

his hands together and smiling at Le. Defendant told Villa he did not like Le and

thought Le was “a punk, fucking nip,” and that he was “going to get [Le].” At

times, when defendant watched Asians on television, he would mumble or say

something.

While playing cards in the day room, defendant threw Le against a wall and

choked him because Le accused defendant of not following the rules of the game.

On another occasion, during shower call, defendant choked Le in the shower to

the point that Le’s face was purple and blue and his veins and his eyeballs were

bulging. When Villa warned defendant that he was going to kill Le, defendant

told Villa, “[Le] is going to tell, he is going to rat. I got to kill him. I got to kill

him.” Villa then pulled defendant off Le.

While in jail, Villa came to believe that defendant hated Asian people based

on comments he had heard defendant make. Defendant said that Asian speech

sounded like “mice talking, like a fast-forward cassette. . . .” Defendant told

Villa he was in jail “for stabbing a Nip to death.” Defendant explained that as the

knife was going in, “it was a — fleshy kind of sound and feeling.” Defendant

stated that he told a friend, “Let me show you how easy it is to kill a Vietnamese

and get away with it.” Defendant also made “wise cracks” about being the “best

tennis player” because of what had happened on the tennis courts.

Villa denied that he expected to receive anything from the Orange County

District Attorney’s Office in exchange for his testimony in this case.

b. Defendant’s Statements to Ellis and Coworker Rochelle Lopez

Sometime before defendant and Ellis robbed Tillman on October 31, 1990,

defendant told Ellis that he disliked Asians because he “got kicked off Okinawa.”

13

Defendant referred to Asians as “gooks” and Hispanics as “spick[s]” and

“wetback[s].”

Between November 3, 1995 and January 28, 1996, Rochelle Lopez worked

with defendant, whom she knew as Jerry Lindberg, at a K-Mart store in Tustin.

On one occasion in the employee lunchroom, an African-American employee

came in, said hello, and then left the area. Defendant told a supervisor, “I hate that

nigger bitch. She got on my nerves,” or something to that effect. On another

occasion, some Asians walked into the store and defendant said, “There goes

gooks,” or words to that effect. On January 10, 1996, about two and a half weeks

before the murder of Thien Minh Ly, Lopez left K-Mart with Christopher and saw

defendant, who was part of a crowd, pushing and screaming at an Asian man. The

man asked defendant, “Why are you doing this to me?”

c. Defendant’s Written Statements to Dulaney While Incarcerated

on Another Matter Before Ly’s Murder

In a letter to Dulaney postmarked November 3, 1993, defendant wrote, in

part, “Dog, its time to look in to the future this nation is comming to a hult with

the niggers and us. We must choose sides now! for time is comming fast here is an

address for Aryan Racial Unity: Nationalist Party of Canada . . . . [¶] Write them

and get some info and littiture ok and copy it and we’ll bring the 2/11 war party

into effect. . . . [¶] Well, cuz I wan’t to get this address to you so you can get some

info. . . . Tell them you want to get your own party going and would like littiture

to start a part of your own or would like to become apart of your party OK!”

(Errors in original.)

In a letter to Dulaney dated March 10, 1993, defendant stated, in part,

“Well, its different on the streets. I run the W.A.R. group in here. White Arian

resistanse is a action group — were a branch of NVAP National Vastal Arian

Party they dictate we react. in other words they talk — we back them with

violence. Oh, yes, were still runnin ours! Its up to you if you can handel it - I know

14

you can, but without bustin probation is the question. Ask them what there about,

and if they say violence or anything of that nature you know there solid Dogs. If

not don 't fuck with them.” (Errors in original.)

In a letter to Dulaney dated February 13, 1994, defendant stated, in part, “I

hate hole time! I’ve wrote many people no one writes the Gun back, I feel lonely

dog! All I keep lookin forward to is Aug 3rd then I’ll be free, Hey bro I’ll be the

first to say doing time is fuckin hard. After a while you change, your mind just

relates to this kind of life. And that’s not cool because I’m pure fucking evil dog

and thats no shit. All I want to do is hurt and kill, I think of many ways to hurt the

Mt. Vernon people. And I have one!” Defendant ended the letter with “KILL”

(with the “K” written in a style resembling a Nazi swastika), and “kill-kill-kill-

kill-kill-kill-kill” followed by “Them all! with love, insane Loc OG for life.”

(Errors in original.)

d. Defendant’s Written Statements to Others While in Custody in

the Orange County Jail Awaiting Trial in This Case

In an undated letter to Kelly Dresen, defendant wrote, “I’m white to the

bone. 1/2 german 1/2 Indian and I’m 100% against black. [¶] My trial date is now

July 21st, my crime partner got convicted of lst degree murd[er] goes back May

25th for sentencing. I feel sorry for him all he did was stand there well I’m shure

you don’t want to hear all that.” (Errors in original.)

In a letter to Jeremie Overstreet, defendant drew two lightning bolts and

wrote the phrase, “stay white,” followed by, “No better not them hong kong fuee’s

might not like you!” (Errors in original.)

In a letter to Tammy Shoopman, defendant said, “You herd of Tustin High

School? Well a Chino got stabbed to Death on the tennis courts at Tustin High

School while roller Blading. I have a 187 — 211 — and Hate crime.” (Errors in

original.)

15

In an undated letter to Samantha Roby, defendant wrote, “Not much has

changed with me always in trouble — But this time I really did it. I have a lst

degree murder robbery and hate crime and the state of California wants to give me

the death penalty.” (Misspellings and grammatical errors in original.) Defendant

then detailed the murder of Ly, explaining, “Well Super Bowl Sunday ‘96’ Dallas

over Pittsburg, A friend and I were walking home from work — K-mart — I was a

stocker. And we were walking through a high school and my friend saw this dud

and asked if I could kick his ass, I was stoned, and said of course, walked in and

blam I knocked him out with one punch — you know me — And we waited for

him to get up. [¶] When he did he layed there, and was looking at me. I was

already on the run from Mt. Vernon shooting some people with a shot gun. So I

thought he was trying to get a discription of me, so I stomped on his head, then

stabbed him over 51 times, and slashing his neck. Then we left the guy was Asian

so now I’m charged with a 1st degree murder robbery, and a hate crime — so the

want the Death Penalty. Yah I fucked up big this time.” (Errors in original.)

In an undated letter to Vanessa Smrekar, defendant admitted, “I’m in on a

1st degree murder, hate crime and robbery. But, I’m no thief and I’m only ALiL

racist.” (Original formatting.)

e. Expert Testimony on White Supremacists and White Supremacy

Beliefs

Huntington Beach Police Department Sergeant Ronald Miller testified for

the prosecution as an expert on the subject of White supremacy. Miller testified

that a “White supremacist” is “a racist who is oriented toward the superiority of

the White race, believing that it is above all others. They tend to view minorities

as . . . sub-humans. [¶] They are also quite often Antisemitic [sic], even to the

point that they label the Holocaust as a Jewish trick to garner support and

sympathy for the Jews throughout the world. [¶] Those are the two major tenets of

the White supremacist.” Based on his extensive experience with White

16

supremacists and White supremacy groups, defendant’s own words in his letters,

the groups with whom defendant associated, and defendant’s use of the Nazi “SS”

lightning bolts and the swastika symbols, Miller opined that defendant was a

White supremacist.

B. Defendant’s Guilt Phase Case

Walter Ray Dulaney III, Robert Dulaney’s father, testified that, in his

opinion, Robert was a compulsive liar most of the time who liked to brag and tell

“big stories.” For example, Robert told his father that he had an IQ of 550 and had

once run a marathon between Missouri and Hawaii. Walter Dulaney testified that

Robert was not, and could not be, a member of any White supremacy groups

because Robert was Japanese and Apache Indian. Walter Dulaney stated that on

one occasion when Robert was in jail, he was put “in the nut ward.”

Walter Dulaney had known defendant all of defendant’s life. He had never

heard defendant utter any racial slurs and had no information suggesting that

defendant was involved in white supremacy organizations.

On cross-examination, Walter Dulaney admitted that Robert had a swastika

tattoo and an “S.W.P.” tattoo on his hand and that “S.W.P.” could stand for

“Supreme White Power.” Walter became angry at Robert and his mother and

stepfather because they gave defendant’s February 23d letter to the police. Walter

believed a person should not “rat on family.” Walter had suffered two prior felony

convictions, one for stabbing someone who molested his granddaughter and

another for transporting drugs.

Christina Colby worked with defendant7 at K-Mart in January 1996. She

dated defendant and never heard him use any racial slurs or call Asians by any


7

Colby knew defendant as “Jerry Lindberg,” one of several names he used,

as discussed above.

17

derogatory names. Colby knew defendant for only three months. On cross-

examination, Colby testified that she had seen the “Martin Luther King” poster in

defendant’s bedroom and that defendant told her it had belonged to his dead

brother.

Roger Scharf, a private investigator retained by the defense, testified that

the inline skates worn by Thien Minh Ly on the night of his death were Roller-

Blades, model LS Lightning. At the time of Ly’s murder, the skates sold for $139.

On the night before he testified, Scharf and another investigator went to the

Tustin High School tennis courts to determine whether someone standing inside

the courts could be seen by a person walking along the sidewalk directly outside

the courts and around the perimeter. Scharf attempted to simulate the lighting and

weather conditions on the night of the murder. The other investigator stood inside

the courts about eight feet away from the outside fence. Scharf testified that the

screen around the courts “almost totally blocks your vision under good

conditions.” Scharf could not see the investigator standing on the court. When

Scharf shined his flashlight through the screen, he could make out the

investigator’s image but not his facial features. When Scharf had the investigator

move toward him, to within five feet, he could see that the investigator’s skin was

light but could not tell his hairstyle or distinguish racial features.

C. Prosecution Penalty Phase Case

1. Randy Bowers Assault

Around 1992, defendant and Randy Bowers got into an argument, during

the course of which Bowers cursed at defendant’s mother. The police were called

and warned Bowers to stay away from defendant. In July 1995, defendant told

Bowers he wanted Bowers dead. Defendant and Bowers agreed to fight one

evening on Hell’s Road. Bowers and a couple of his friends brought bats to

defend themselves. As Bowers drove onto a driveway, he saw defendant on the

18

tailgate of a truck, holding a shotgun. The truck was parked on the side of the

road. Defendant shot through the windshield of Bowers’s car, striking Neal

Eubank in the arm and near his right eye. When Bowers put his car in reverse, he

noticed six of defendant’s friends armed with bats and “lots of guns, 22’s.”

Bowers and Eubank sought help from a nearby resident and entered the

resident’s house. The occupants wrapped Eubank’s arm and called the police.

Meanwhile, defendant, armed with a .410 shotgun, entered the house and asked

Eubank, “Hey pussy, how do you feel now?” Bowers ran away carrying a

baseball bat, but got caught in a nearby barbed wire fence. Defendant pointed his

shotgun at the back of Bowers’s head. Eventually, Bowers untangled himself,

jumped over the fence, and ran away from defendant. During the chase, Bowers

heard gunshots that sounded like they were fired from a .410 shotgun and a “.22

shotgun.”

2. Timothy Branham Assault

On December 26, 1991, in Mount Vernon, Missouri, 17-year-old Timothy

Branham and his brother had skateboarded to a local store and were waiting for a

nearby business to close so they could skate on its property. Defendant, standing

nearby, asked Branham if he had a problem. Branham said no. Defendant walked

up and hit Branham in the face, causing him to fall to the ground. Defendant

kicked him three or four times in the ribs. Defendant took Branham’s skateboard

but later gave it to someone, who returned it to Branham.

3. Nicholas Gari Shooting

On January 19, 1992, in Mount Vernon, Missouri, Nicholas Gari and two

friends were riding their bikes in a local park. Defendant and other boys were also

in the park, armed with BB guns. At some point, the cap Gari was wearing was

hit by a BB and he fell off his bike; Gari saw defendant standing in the woods

nearby and told defendant that he was a “cop’s son.” Defendant chased him about

19

30 feet and shot him in the neck. As defendant and his two friends ran away,

defendant proclaimed, “I blew a hole in his neck.” Gari did not know defendant.

Gari was taken to a hospital and underwent two surgeries on his throat.

The surgeon was unable to remove the BB, which had traveled to Gari’s heart.

4. Jeffrey Prewitt Assault

On January 25, 1992, Jeffrey Prewitt, a detention supervisor at the Jasper

County Juvenile Detention Center in Joplin, Missouri, was supervising three or

four juveniles, including defendant, in the day room. After defendant finished a

telephone call, he started hitting Prewitt on the top of his head and on his forehead.

Prewitt pushed defendant away. Another employee called police. Defendant

stopped fighting. Prewitt suffered knots on his head and a black eye.

5. Victim Impact Testimony of Thien Minh Ly’s Brother, Thai Ly

Thai Ly testified he had always looked up to his 24-year-old brother, Ly,

who was the oldest of three children. Ly had attended Georgetown University and

had returned to California to work with a charity organization that helped

minorities, mostly Vietnamese. When Thai heard that Ly had been murdered, he

felt dead and numb, as if he had no life going through him. Since the murder,

Thai’s life has lacked direction and inspiration.

Every day since the murder, Thai’s mother and father go to Ly’s room,

which has remained essentially untouched, and cry. Ly’s death also has been

“incredibly hard” on his sister. His death has deeply affected the lives of his

family and friends.

D. Defendant’s Penalty Phase Case

1. Sergeant Russell Hayes

In 1995, defendant and Gary Wolfgram lived with Marine Corps Sergeant

Russell Hayes and his family for one or two months. Hayes did not know

20

defendant before he moved into the house and later learned that he and Wolfgram

were not cousins, as defendant had initially represented to Hayes.

During the time defendant lived with Sergeant Hayes, he took Hayes’s

three young children to a nearby park where children of other races played.

Occasionally, a friend of Hayes’s would drop off his Japanese daughter at the

Hayes’s house. Hayes’s best friend was an African-American man who often

visited the house. Hayes was not aware of any problems between defendant and

his African-American friend. Hayes never heard defendant utter any racial slurs.

2. Drugs Found During Search of Defendant’s Apartment

During the search of a box found in defendant’s bedroom by police on the

day of defendant’s arrest, police discovered baggies of marijuana and a baggie of

methamphetamine.

3. Clinical Psychologist Roberto Flores De Apodaca

Roberto Flores De Apodaca, Ph.D., a clinical psychologist, examined

defendant four days before he testified.8 He took a history from defendant and

reviewed other documents regarding defendant. Dr. De Apodaca did not believe

all of the responses defendant provided during the interview.

When Dr. De Apodaca asked defendant about his “211” tattoo, defendant

responded that he always said it meant “armed robbery” but that it actually meant

“those that lock you up shall pay.” Dr. De Apodaca understood this to mean

defendant could “harbor animosity and vengefulness toward those who incarcerate

him.”

Based on defendant’s history, Dr. De Apodaca testified defendant had a

“disorganized, tumultuous, dysfunctional” family background, with a number of

8

Defendant agreed to talk with Dr. De Apodaca only after he had been

convicted of first degree murder and the special circumstances had been found
true.

21

“losses” and “breaks in his family relationships, notably with his biological father”

when defendant was about two years old.

Defendant told Dr. De Apodaca that he had smoked marijuana, drank

alcohol, smoked cigarettes, and used methamphetamine during his adolescence.

Dr. De Apodaca testified he had reviewed reports in which defendant was referred

for treatment for substance abuse and on that basis, made a similar diagnosis.

Dr. De Apodaca diagnosed defendant with personality disorder not

otherwise specified, with components of dependency, narcissism, and antisocial

behavior, and secondarily with being polysubstance dependent. The antisocial

features included victimizing and violating the rights of others.

Dr. De Apodaca testified that he was not opining that Ly’s murder was

drug induced. Dr. De Apodaca could not “rule [] out” or “rule [] in” that

defendant suffered from brain damage. He agreed that such a determination

would require a neurological and psychological assessment.

II. GUILT PHASE ISSUES

A. Asserted Trial Court Error in Admitting Evidence of Defendant’s

Two Prior Uncharged Robberies

Before trial, the prosecution moved to admit evidence that defendant

committed the uncharged Reyes-Martinez and Tillman robberies in order to prove

that defendant intended to rob Ly during the course of murdering him. The

prosecution argued the evidence was admissible under Evidence Code section

1101, subdivision (b), because the crimes shared numerous similarities: in each of

the prior robberies, defendant had a companion to assist him in the robbery; he

robbed and assaulted the victims; he was the aggressor of the two assailants; he

attacked a vulnerable victim who was a stranger to him; the victim did not fight

back; he assaulted his victim whether or not the victim cooperated; and he had a

dual purpose to steal from and assault each victim.

22

Defense counsel argued the evidence was irrelevant, more prejudicial than

probative under Evidence Code section 352, and impermissible propensity

evidence under Evidence Code section 1101. Counsel maintained there was no

evidence Ly had been robbed, in that a key was found near his head and no other

property had been taken. The trial court overruled each of defendant’s objections

and ruled the evidence of defendant’s prior robberies and assaults admissible on

the issue of intent. The trial court also overruled counsel’s additional objections

under Evidence Code section 352 that the prior robberies were remote in time and

that defendant committed these offenses when he was a juvenile.

On appeal, defendant renews his argument that the evidence of the

uncharged robberies should have been excluded under Evidence Code section

1101, subdivision (b), because the prosecution presented no evidence that he

attempted to rob Ly during the course of murdering him, and in any event the

evidence should have been excluded as more prejudicial than probative under

Evidence Code section 352. He asserts the admission of the evidence violated his

state and federal constitutional rights to due process, a fair trial, and a reliable

penalty determination.

Evidence Code section 1101, subdivision (a) generally prohibits the

admission of evidence of a prior criminal act against a criminal defendant “when

offered to prove his or her conduct on a specified occasion.” Subdivision (b) of

that section, however, provides that such evidence is admissible when relevant to

prove some fact in issue, such as motive, intent, knowledge, identity, or the

existence of a common design or plan.

“The admissibility of other crimes evidence depends on (1) the materiality

of the facts sought to be proved, (2) the tendency of the uncharged crimes to prove

those facts, and (3) the existence of any rule or policy requiring exclusion of the

evidence.” (People v. Carpenter (1997) 15 Cal.4th 312, 378-379.) Evidence may

23

be excluded under Evidence Code section 352 if its probative value is

“substantially outweighed by the probability that its admission would create

substantial danger of undue prejudice, of confusing the issues, or of misleading the

jury.” (People v. Harrison (2005) 35 Cal.4th 208, 229.) “Because substantial

prejudice is inherent in the case of uncharged offenses, such evidence is

admissible only if it has substantial probative value.” (People v. Kelly (2007) 42

Cal.4th 763, 783.)

We have considered specific circumstances under which evidence of

uncharged crimes may be admitted under subdivision (b) of Evidence Code

section 1101. When the prosecution seeks to prove the defendant’s identity as the

perpetrator of the charged offense with evidence he had committed uncharged

offenses, the admissibility of evidence of the uncharged offenses turns on proof

that the charged and uncharged offenses share sufficient distinctive common

features to raise an inference of identity. A lesser degree of similarity is required

to establish the existence of a common plan or scheme and still less similarity is

required to establish intent. (People v. Roldan (2005) 35 Cal.4th 646, 705; People

v. Ewoldt (1994) 7 Cal.4th 380, 402-403.) In order to be admissible to prove

intent, the uncharged misconduct must be sufficiently similar to the charged

offense to support the inference that the defendant probably acted with the same

intent in each instance. (People v. Kelly, supra, 42 Cal.4th at p. 783; People v.

Ewoldt, supra, 7 Cal.4th at p. 402.) The decision whether to admit other crimes

evidence rests within the discretion of the trial court. (People v. Kelly, supra, 42

Cal.4th at p. 783.)

By pleading not guilty, defendant placed all the elements of the murder as

well as the attempted robbery and hate-murder special-circumstances allegations

in dispute at trial. (People v. Roldan, supra, 35 Cal.4th at pp. 705-706.) On the

issue of intent, defendant declined to stipulate that he intended to permanently

24

deprive Ly of his property. Accordingly, defendant’s intent when he murdered Ly

was a material fact.

Citing People v. Ewoldt, supra, 7 Cal.4th 380, and People v. Guerrero

(1976) 16 Cal.3d 719, defendant first contends that because there was no

independent evidence that he attempted to rob Ly, the evidence of the uncharged

robberies was erroneously admitted on the issue of intent. In Guerrero, this court

relied on the absence of any independent evidence of actual or attempted sexual

activity between the defendant and the victim to hold that evidence of a prior rape

was inadmissible to establish that the charged murder was committed during the

course of an attempted rape, i.e., to show the defendant’s intent to engage in

sexual activity with the victim. (People v. Guerrero, supra, 16 Cal.3d at pp. 727-

728.) “In short, the People may not conjure up an attempted rape in this instance

in order to introduce evidence of another rape.” (Id. at p. 728.) In Ewoldt, we

stated that when proving a defendant’s intent with evidence of uncharged crimes,

the act alleged is “ ‘conceded or assumed,’ ” leaving only the question of “ ‘the

state of mind that accompanied it.’ ” (People v. Ewoldt, supra, 7 Cal.4th at p. 394,

fn. 2.) Here, defendant concedes the prosecution proved he murdered Ly but

insists there was no evidence he attempted to rob him. Not so.

“Robbery is the felonious taking of personal property in the possession of

another, from his person or immediate presence, and against his will,

accomplished by means of force or fear.” (§ 211.) “An attempted robbery

requires a specific intent to commit robbery and a direct, ineffectual act (beyond

mere preparation) toward its commission.” (People v. Medina (2007) 41 Cal.4th

685, 694.)

Defendant’s admissions in the February 23d letter to Dulaney establish he

committed acts that tended to show he attempted to rob Ly: defendant admitted he

walked up to Ly at the tennis courts and Ly “was scared”; defendant hit Ly,

25

causing him to fall to the ground; Ly told defendant that he could have whatever

he wanted but that he had only a key; defendant asked Ly if he had a car; and

when Ly said he had none, defendant put his knife to his throat and asked him

again whether he had a car. Thus, evidence of the prior robberies was logically

probative of whether, in hitting and knocking Ly to the ground and demanding to

know if Ly had a car, defendant intended to rob him.

The evidence of defendant’s involvement in the Reyes-Martinez and

Tillman robberies tends to prove this material fact. Defendant’s attack on Ly in

this case shares numerous distinctive common features with those robberies.

Defendant brought a companion to assist him in each crime: Christopher assisted

defendant in the attack on Ly, and Harp and Ellis aided defendant in the prior

robberies of Reyes-Martinez and Tillman, respectively. In each crime, defendant

assaulted his victims and was the aggressor of the two assailants: Defendant

knocked Ly to the ground before demanding to know if Ly had a car and put a

knife to Ly’s throat when he said he had none; defendant hit, chased, and kicked

Reyes-Martinez before he and Harp stole the victim’s money; and defendant

punched the elderly Tillman in the face as he and Ellis left her home after stealing

her money. Defendant did not know any of the victims. Each victim was

vulnerable (alone, elderly, or outnumbered), did not fight back, and was assaulted

whether or not he or she cooperated.

Defendant argues for the first time on appeal that the trial court should have

excluded any reference that defendant assaulted Reyes-Martinez and Tillman

during the commission of the uncharged robberies because evidence of the

assaults had “virtually no probative value” on the issue of whether he killed Ly

during an attempted robbery. Because he failed to request that the trial court

sanitize the evidence of the prior uncharged robberies by excluding references to

the assaults, however, he cannot raise this issue for the first time on appeal.

26

(People v. Elliot (2005) 37 Cal.4th 453, 472; Evid. Code, § 353, subd. (a) [a

judgment shall not be reversed because of the erroneous admission of evidence

unless there was a timely objection “so stated as to make clear the specific ground

of the objection”].)

Even were we to assume that defendant properly preserved this issue, we

would reject his contention. Defendant’s brutal acts of violence towards the

victims in the Reyes-Martinez and Tillman robberies were part and parcel of those

robberies and, as stated above, shared substantial similarities with his conduct

towards Ly in this case. Further, contrary to defendant’s protests that his act of

punching the elderly victim’s face in the Tillman robbery was gratuitous and

“unconnected” to the robbery, defendant’s admission that he punched Tillman

because he was fearful she might escape was evidence of the “force or fear”

element of the robbery. (See People v. Hill (1998) 17 Cal.4th 800, 850 [the force

or fear element of robbery is satisfied if the perpetrator uses force to retain or

escape with the property].) Under the totality of the circumstances, evidence of

defendant’s uncharged robberies of Reyes-Martinez and Tillman, including

evidence he assaulted each victim during the commission of those crimes,

reasonably could assist the jurors in determining whether defendant assaulted Ly

in an attempt to rob him. Thus, the evidence was probative of defendant’s intent

to rob. The trial court did not abuse its discretion in admitting evidence of these

uncharged crimes.

We also conclude the trial court acted within its discretion under Evidence

Code section 352 in finding the probative value of the evidence of the uncharged

robberies was not substantially outweighed by the potential for undue prejudice.

As explained, the evidence had substantial probative value with respect to whether

defendant intended to rob Ly at the time of the murder. The trial court instructed

the prosecutor to keep this evidence brief so that it would be neither cumulative

27

nor excessive. Based on our review of the record, we are satisfied the

prosecution’s presentation of this evidence complied with the court’s directive.

Moreover, none of the uncharged conduct was particularly inflammatory

compared to the manner in which defendant brutally murdered Ly by stomping on

his head, repeatedly stabbing him, and slicing the veins in his neck. (People v.

Ewoldt, supra, 7 Cal.4th at p. 405.) Further, the trial court’s instructions to the

jury under CALJIC No. 2.09, regarding evidence admitted for a limited purpose,

and CALJIC No. 2.50, advising it to consider such evidence not to prove

defendant’s predisposition to commit crimes but rather to determine whether the

necessary element of intent to rob was proven, eliminated any danger “of

confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We

presume the jury followed these instructions. (People v. Coffman and Marlow

(2004) 34 Cal.4th 1, 107.)

We reject defendant’s contention that the admission of the uncharged

robberies violated his constitutional rights to due process, a fair trial, and a reliable

adjudication at all stages of a capital trial. We have long observed that

“[a]pplication of the ordinary rules of evidence generally does not impermissibly

infringe on a capital defendant’s constitutional rights.” (People v. Kraft (2000) 23

Cal.4th 978, 1035.) Defendant fails to persuade us his case presents an exception

to this general rule.

Finally, assuming for the sake of argument that the trial court abused its

discretion in admitting evidence of defendant’s prior crimes, reversal is not

required. Even if the other crimes evidence had been excluded, defendant’s

admissions in his February 23d letter to Dulaney, including his numerous

references to “2/11,” which defendant admitted referred to armed robbery,

provided compelling evidence defendant intended to rob Ly. (See pt. II.B, post.)

Accordingly, a result more favorable to defendant was not reasonably probable

28

absent admission of the prior crimes evidence. (People v. Welch (1999) 20

Cal.4th 701, 750; People v. Watson (1956) 46 Cal.2d 818, 836.) For the same

reasons, any error was harmless beyond a reasonable doubt. (See Chapman v.

California (1967) 386 U.S. 18, 24; People v. Cole (2004) 33 Cal.4th 1158, 1195.)

B. Sufficiency of Evidence of First Degree Felony Murder and the

Robbery Special Circumstance

Defendant concedes sufficient evidence establishes he murdered Ly and

intended to kill Ly from the moment “he hit him and knocked him to the ground.”

He contends, however, the evidence was insufficient to prove first degree murder

on an attempted robbery-felony-murder theory because the prosecution failed to

prove that he attempted to rob Ly. Even assuming there was sufficient evidence

he attempted to rob Ly, defendant contends the evidence was nonetheless

insufficient to support the special circumstance finding that he murdered Ly

during the attempted commission of a robbery because any intent to steal was

incidental to the murder. The insufficiency of the evidence, he claims, violated his

rights to due process, a fair trial, and a reliable penalty determination under the

Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution

and sections 1, 7, 12, 15, 16 and 17 of article I of the California Constitution.

When considering a challenge to the sufficiency of the evidence to support

a conviction, we review the entire record in the light most favorable to the

judgment to determine whether it contains substantial evidence — that is, evidence

that is reasonable, credible, and of solid value — from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt. (People v. Valdez

(2004) 32 Cal.4th 73, 104.) When reviewing the sufficiency of evidence to

support a special circumstance, the relevant inquiry is “ ‘whether, after viewing

the evidence in the light most favorable to the People, any rational trier of fact

could have found the essential elements of the allegation beyond a reasonable

doubt.’ ” (People v. Alvarez (1996) 14 Cal.4th 155, 225, quoting People v. Mickey

29

(1991) 54 Cal.3d 612, 678, fn. omitted.) We presume in support of the judgment

the existence of every fact the trier of fact reasonably could infer from the

evidence. (People v. Ramirez (2006) 39 Cal.4th 398, 463.) If the circumstances

reasonably justify the trier of fact’s findings, reversal of the judgment is not

warranted simply because the circumstances might also reasonably be reconciled

with a contrary finding. (People v. Valdez, supra, 32 Cal.4th at p. 104.) A

reviewing court neither reweighs evidence nor reevaluates a witness’s credibility.

(People v. Guerra (2006) 37 Cal.4th 1067, 1129.)

As discussed above, to be convicted of attempted robbery, the perpetrator

must harbor a specific intent to commit robbery and commit a direct but

ineffectual act toward the commission of the crime. (People v. Medina, supra, 41

Cal.4th at p. 694.) The jury may infer a defendant’s specific intent to commit a

crime from all of the facts and circumstances shown by the evidence. (See People

v. Bloom (1989) 48 Cal.3d 1194, 1208 [“Evidence of a defendant’s state of mind

is almost inevitably circumstantial, but circumstantial evidence is as sufficient as

direct evidence to support a conviction”].)

Under the felony-murder rule, a murder “committed in the perpetration of,

or attempt to perpetrate” one of several enumerated felonies, including robbery, is

first degree murder. (§ 189.) The robbery-murder special circumstance applies to

a murder “committed while the defendant was engaged in . . . the commission of,

[or] attempted commission of” robbery. (§ 190.2, subd. (a)(17)(A).) “[T]o prove

a felony-murder special-circumstance allegation, the prosecution must show that

the defendant had an independent purpose for the commission of the felony, that

is, the commission of the felony was not merely incidental to an intended murder.”

(People v. Mendoza (2000) 24 Cal.4th 130, 182; see also People v. Green (1980)

27 Cal.3d 1, 61-62, overruled on other grounds in People v. Hall (1986) 41 Cal.3d

826, 834, fn. 3.) To prove a robbery-murder special circumstance, the prosecution

30

must prove the defendant formed the intent to steal before or while killing the

victim. (People v. Valdez (2004) 32 Cal.4th 73, 105.)

The prosecution theorized that defendant approached Ly and attempted to

rob him before savagely stabbing him to death because he was Vietnamese.

Relying on People v. Morris (1988) 46 Cal.3d 1,19, overruled on other grounds in

In re Sassounian (1995) 9 Cal.4th 535, 543-544, footnote 5, and People v. Green,

supra, 27 Cal.3d at pages 52-44, defendant initially argues that, at most, a theft or

attempted theft occurred because he asked Ly, “Do you have a car?” only after he

had already knocked Ly to the ground. To be clear, “a conviction of robbery

cannot be sustained in the absence of evidence that the defendant conceived his

intent to steal either before committing the act of force against the victim, or

during the commission of that act; if the intent arose only after the use of force

against the victim, the taking will at most constitute a theft.” (People v. Morris,

supra, 46 Cal.3d at p. 19, italics added, citing People v. Green, supra, 27 Cal.3d at

pp. 52-44.) Defendant’s argument fails, however, because it erroneously

presumes proof of defendant’s use of force against Ly is required to sustain the

attempted robbery-felony-murder conviction. The crime of attempted robbery

requires neither the commission of an element of robbery nor the completion of a

theft or assault. (People v. Medina, supra, 41 Cal.4th at p. 694; see also People v.

Dillon (1983) 34 Cal.3d 441, 454-455.) In any event, as discussed below,

defendant pressed his knife against Ly’s throat before he asked a second time

whether Ly had a car.

We conclude the record contains substantial evidence supporting the

finding that defendant attempted to rob Ly, the attempted robbery-felony-murder

conviction and the special circumstance finding that the murder occurred during

the commission of an attempted robbery. Defendant’s admissions in his February

23d letter to Dulaney established, in horrific detail, the circumstances of the

31

attempted robbery and murder. The letter was handwritten and addressed to

Dulaney (“Dear Bro, Ex-con 2/11, Rob”) with a large drawing of the characters

2/11, prominently appearing in the top margin. Defendant described to Dulaney

how he and Christopher approached Ly as he rollerbladed alone on the Tustin

High School tennis courts. Defendant saw that Ly “was scared” and used a ruse

whereby defendant indicated to Ly that he thought he knew Ly in order to have Ly

think “he wasn’t gona get jumped.” Defendant then hit Ly, knocking him to the

ground. Ly responded, “ ‘what the fuck’ and ‘you can have what ever I got.’ I

have nothing only a key — you can have it.’ ” (Errors in original.) Defendant

then asked Ly if he had a car and pulled out his knife. After Ly said, “No,”

defendant pressed his knife against Ly’s throat, and again asked Ly if he had a car.

Ly grabbed defendant’s hand that held the knife and looked at him. Because

defendant thought Ly was trying to get his description, defendant stomped on his

head three times and each time told Ly to stop looking at him. Defendant then

repeatedly and fatally stabbed Ly with his knife.

Ly’s body was discovered on the tennis courts the next morning. Near the

body, the police found a hat and a single key that fit the locks at Ly’s residence.

The prosecution also introduced evidence of the Reyes-Martinez and Tillman

robberies on the issue of defendant’s intent during his assault of Ly.

Based upon this evidence, the jury reasonably could have found that

defendant harbored an intent to steal Ly’s property when he knocked Ly to the

ground, demanded to know whether he had a car, and put his knife to his throat

before asking him again whether he had a car. (See People v. Rodrigues (1994) 8

Cal.4th 1060, 1129 [rejecting the defendant’s contention that the accomplice’s

“unadorned question ― ‘where do you have it?,’ ” did not reflect an intent to steal

the victims’ property].) Defendant’s own observation that Ly “was scared” before

he knocked him to the ground, and Ly’s statement to defendant that he could take

32

Ly’s (house) key before defendant first asked him whether he had a car, strongly

suggest that defendant, accompanied by Christopher, initially approached Ly in a

manner that communicated nonverbally this intent to steal. Further, defendant’s

reference to “2/11” at the top of his confessional letter to Dulaney, a term that

defendant admitted meant armed robbery, and evidence he previously assaulted

and robbed Reyes-Martinez and Tillman of their money justified the jury’s

implied finding that defendant intended to permanently deprive Ly of his property.

Defendant argues the evidence was insufficient to support a finding that he

intended to permanently deprive Ly of his property, citing People v. Thompson

(1980) 27 Cal.3d 303, 321. In Thompson, this court held evidence that the

defendant demanded and took the car belonging to the victim of the uncharged

robbery was inadmissible to prove his specific intent to steal a car from the victim

of the charged robbery. (People v. Thompson, supra, 27 Cal.3d at pp. 320-321.)

Because the evidence of the uncharged robbery established that the defendant

intended only to temporarily use the car, which was recovered by police shortly

after it was taken, we reasoned this evidence did not tend to prove the defendant’s

intent to permanently deprive the victim of her car in the charged robbery. (Ibid.)

Here, unlike Thompson, the evidence of the Reyes-Martinez and Tillman robberies

established that defendant intended to permanently deprive his victims of their

money. This evidence, in turn, reasonably supports an inference that defendant

intended to permanently rob Ly of his property.

Defendant further contends the evidence is insufficient to prove he

attempted to rob Ly because he did not take any property from Ly, such as his

rollerblades. To find an attempted robbery, however, the jury was not required to

find that Ly possessed or defendant took anything of value. (People v. Lee (1932)

125 Cal.App. 709, 712.) Under general attempt principles, a completed theft is

not required for attempted robbery. (People v. Medina, supra, 41 Cal.4th at p.

33

694; see also People v. Dillon, supra, 34 Cal.3d at pp. 454-455 [proof of an

attempted crime does not require proof of an actual element of the offense

attempted].) We conclude sufficient evidence supports the jury’s implicit finding

that defendant attempted to rob Ly. (See People v. Rodrigues, supra, 8 Cal.4th at

p. 1129 [the totality of the circumstances justified the jury’s finding that an

attempted robbery and burglary occurred and that the defendant and his

accomplices acted jointly to rob the victims].)

Defendant additionally argues that, even if the record contains sufficient

evidence to support an implied finding that he attempted to rob Ly, the evidence

nonetheless was insufficient to establish that the murder was committed during the

commission of an attempted robbery. Defendant argues any attempted robbery

was incidental to the murder, that is, any intent to rob Ly was incidental to his

primary intent to kill Ly.

Defendant cites People v. Morris, supra, 46 Cal.3d 1, overruled on another

ground in In re Sassounian, supra, 9 Cal.4th at pp. 543-544, footnote 5, and

People v. Thompson, supra, 27 Cal.3d 303, in support. In People v. Morris, the

victim was fatally shot at close range in a public bathhouse while wearing only

socks and shoes. The only witness to the shooting observed defendant standing in

the doorway of the restroom, facing and firing inside, and then fleeing the scene.

After the murder, the defendant attempted to use a credit card belonging to the

victim. The defendant had admitted to an acquaintance that he had “been making

money off ‘dates’ with homosexuals” and had killed one. The only reason

defendant provided for the killing was “he had to kill one.” (People v. Morris,

supra, 46 Cal.3d at pp. 10-11.)

We held this evidence was insufficient to sustain the robbery conviction or

the robbery-murder special-circumstance finding because the evidence was

insufficient to prove the victim had been robbed — “the record contain[ed] no

34

evidence that any personal property was in the victim’s possession at the time of

the murder.” (People v. Morris, supra, 46 Cal.3d at p. 20.) The defendant’s

admission to his acquaintance suggested he may have gone to the bathhouse to

engage in prostitution and committed murder, but it did not support a reasonable

inference that defendant committed a robbery. (Id., at pp. 21-22.) The

prosecution, therefore, failed to prove beyond a reasonable doubt that the victim

was murdered during the commission of a robbery. (Id., at pp. at p. 22.)

In People v. Thompson, supra, 27 Cal.3d 303, the defendant entered the

residence of a man and a woman and demanded money at gunpoint. The victims

produced money and jewelry, but the defendant said that he did not want them.

The defendant motioned to the victims to go downstairs, ordered them to sit, and

demanded and obtained the man’s car keys. (Id. at pp. 310-311.) The defendant

then said to the woman, “ ‘You know why I’m here and you know who sent me,’ ”

and shot the victims, killing the man. (Id. at p. 311.) The victims’ car “was never

moved and the car keys were dropped in a park” near the victims’ residence.

(Ibid.)

We held the evidence was insufficient to establish the defendant had an

intent to steal independent of his intent to kill and set aside the special

circumstance findings that the murder occurred during the commission of a

robbery and burglary. The defendant’s refusal to accept the victims’ valuables and

his statement to the victims just before shooting them showed his primary intent

was to kill them, with property gain a secondary goal. (People v. Thompson,

supra, 27 Cal.3d at p. 323.) Moreover, the defendant’s demand for the victims’

car keys immediately before the shootings, viewed in context, evinced his desire

to use the car to effectuate his getaway from the shootings he intended. (Id., at

p. 324.) Because the prosecution’s evidence established “at most a suspicion” that

the defendant harbored an intent to steal independent of his intent to kill, it

35

precluded a determination of guilt beyond a reasonable doubt that defendant

committed the murder to advance an independent felonious purpose of stealing the

car keys. (Ibid.)

The present case is distinguishable from both Morris and Thompson. As

discussed above, defendant’s detailed admissions in his February 23d letter to

Dulaney established his intent to rob and kill Ly. Hence, there is no ambiguity in

the record, as in Morris, about whether an attempted robbery occurred, and ample

evidence supports the jury’s implied findings that defendant attempted to rob Ly

and killed him during the commission of that attempted robbery.

Unlike in Thompson, moreover, no evidence compelled a finding that

defendant attempted to rob Ly in order to facilitate or conceal the murder.

Defendant’s February 23d letter to Dulaney, in which he admitted he twice

demanded to know if Ly had a car and threatened Ly with a knife before he

stomped on his head and stabbed him to death, shows he intended to rob Ly but

then abandoned his plan when Ly said he had no car to steal. In addition, a

rational jury could infer that defendant harbored an intent to rob Ly independent

of his intent to kill Ly based on his multiple references to “2/11” in the February

23d letter, his admission during his police interview that “2/11” meant “armed

robbery,” Dulaney’s testimony that he and defendant used that term to mean

armed robbery, and the evidence that defendant previously had robbed Reyes-

Martinez and Tillman. The evidence therefore fully supports the conclusion that

defendant’s attempted robbery of Ly served an independent purpose and was not

merely incidental to Ly’s murder. (See People v. Carter (2005) 36 Cal.4th 1215,

1261 [evidence that the defendant obtained the murder victim’s bank account

password before fatally strangling her supported the inference that the defendant

harbored an intent to rob the victim independent of his intent to kill her].)

36

Although not argued during closing argument by the prosecutor, an

additional basis for concluding the murder was committed during the commission

of an attempted robbery appears on the record. Defendant admitted in the

February 23d letter that while he held a knife to Ly’s throat and demanded to

know if he had a car, he became worried that Ly was trying to get a description of

him. Defendant stomped on his head, told him to stop looking at him, and then

brutally stabbed him to death. While in custody awaiting trial in this case,

defendant wrote a letter to Samantha Roby, in which he recounted that after

knocking Ly to the ground, “we waited for him to get up. When he did he layed

[sic] there, and was looking at me. I was already on the run from Mt. Vernon

shooting some people with a shot gun. So I thought he was trying to get a

discription [sic] of me, so I stomped on his head, then stabbed him over 51 times,

and slashing [sic] his neck.” Defendant did not otherwise explain his statements

about being “on the run” for shooting people, and no evidence that defendant

assaulted individuals by shooting at them was presented during the guilt phase.9

In any event, based on defendant’s concession that he killed Ly to eliminate him

as a witness and the trial court’s instruction to the jury under CALJIC No.

8.81.1710, the jury reasonably could conclude the murder was committed during


9

During the penalty phase, the prosecution presented evidence that

defendant had previously assaulted several individuals by shooting at them with
either a shotgun or BB gun. (See pt. I.C.3, ante.)

10

The trial court instructed the jury under modified CALJIC No. 8.81.17, as

follows: “To find that a special circumstance referred to in these instructions as
murder in the commission of a robbery or attempted robbery is true, it must be
proved that the murder was committed while the defendant was engaged in the
commission of a robbery or attempted robbery. [¶] However, the special
circumstance referred to in these instructions is not established if the robbery or
attempted robbery was merely incidental to the commission of the murder. A
robbery or attempted robbery is merely incidental to a murder where there is no
purpose for the commission of the robbery or attempted robbery that is

(Footnote continued on next page.)

37

the commission of a robbery and the robbery was not merely incidental to the

murder. (See People v. DePriest (2007) 42 Cal.4th 1, 46-48; People v. Gurule

(2002) 28 Cal.4th 557, 628-629.)

Finally, that defendant intended both to forcibly steal from Ly and to kill

him because of his race does not alter our conclusion. “ ‘Concurrent intent to kill

and to commit an independent felony will support a felony-murder special

circumstance.’ ” (People v. Bolden (2002) 29 Cal.4th 515, 554, quoting People v.

Raley (1992) 2 Cal.4th 870, 903.) We therefore conclude substantial evidence

supports the jury’s special circumstance finding that the murder was committed

during the commission of an attempted robbery.

C. Assertedly Misleading Instruction on Evidence of Other Crimes

(CALJIC Nos. 2.50, 2.50.1, and 2.50.2)

At the conclusion of the guilt phase, the trial court instructed the jury

regarding other crimes evidence as follows: “Evidence has been introduced for

the purpose of showing that the defendant committed crimes other than that for

which he is on trial. The evidence, if believed, may not be considered by you to

prove that the defendant is a person of bad character, or that he has a disposition to

commit crimes. It may be considered by you only for the limited purpose of

determining if it tends to show: [¶] The existence of the intent which is a necessary

(Footnote continued from previous page.)

independent of the murder. [¶] For example, if the sole objective of the robbery or
attempted robbery was to facilitate an escape or avoid detection after the murder,
the robbery or attempted robbery would be merely incidental to the murder. [¶] On
the other hand, if there was an intent at the time of the murder to commit a robbery
that was not merely incidental to the murder, and the murder was committed while
the defendant was engaged in the commission of a robbery or attempted robbery,
the special circumstance is established regardless of whether the defendant also
intended to kill the victim for some reason unrelated to the commission of the
robbery or attempted robbery.”

38

element of the crime charged, or a motive for the commission of the crime

charged. For the limited purpose for which you may consider this evidence, you

must weigh it in the same manner as you do all other evidence in the case. You are

not permitted to consider this evidence for any other purpose.

Within the meaning of the preceding instructions, the prosecution has the

burden of proof by a preponderance of the evidence that a defendant committed

crimes other than that for which he is on trial. You must not consider this

evidence for any purpose unless you find by a preponderance of the evidence that

a defendant committed the other crime. [¶] ‘Preponderance of the evidence’ means

evidence that has more convincing force than that opposed to it. If the evidence is

so evenly balanced that you are unable to find that the evidence on either side of

an issue preponderates, your finding on that issue must be against the party who

had the burden of proving it. You should consider all of the evidence bearing upon

every issue regardless of who produced it.” (CALJIC Nos. 2.50, 2.50.1, and

2.50.2 (6th ed. 1996), italics added.)

Defendant contends that the italicized portions of the above instructions

rendered the instruction constitutionally infirm because it permitted the jury to

infer the existence of his intent to rob the victim based on proof by a

preponderance of the evidence that he committed two uncharged robberies as a

juvenile. As a result, he argues, the instructions as a whole reduced the

prosecution’s burden of proof in violation of his right to due process by allowing

the jury to convict him of first degree robbery murder and find true the attempted

robbery special circumstance allegation based in part on facts proven by a mere

preponderance of the evidence.11


11

The People contend defendant forfeited these claims because he failed to

challenge the instructions on these grounds at trial. Although defendant failed to
object to the instructions at trial, we nonetheless address the merits of his

(Footnote continued on next page.)

39

Defendant relies primarily on the decision of the Ninth Circuit Court of

Appeals in Gibson v. Ortiz (9th Cir. 2004) 387 F.3d 812. There, jurors were

instructed regarding propensity evidence under CALJIC No. 2.50.01 (6th ed.

1996) (Evidence of Other Sexual Offenses) in relevant part, as follows: “Evidence

has been introduced for the purpose of showing that the defendant engaged in a

sexual offense on one or more occasions other than that charged in the case. . . .

[¶] If you find that the defendant committed a prior sexual offense, you may, but

are not required to, infer that the defendant had a disposition to commit the same

or similar type sexual offenses. If you find that the defendant had this disposition,

you may, but are not required to, infer that he was likely to commit and did

commit the crime or crimes of which he is accused. [¶] Unless you are otherwise

instructed, you must not consider this evidence for any other purpose.” (Gibson v.

Ortiz, supra, 387 F.3d at p. 817, italics added.) This instruction was followed by a

modified version of CALJIC No. 2.50.1: “Within the meaning of the preceding

instructions, the prosecution has the burden of proving by a preponderance of the

evidence that a defendant committed sexual offenses and/or domestic violence

other than those for which he is on trial. [¶] You must not consider this evidence

for any purpose unless you find by a preponderance of the evidence that a

defendant committed the other sexual offenses and/or domestic violence.”

(Gibson v. Ortiz, supra, 387 F.3d at pp. 817-818.) The reasonable doubt standard

was incorporated in other instructions given to the jury, including CALJIC

No. 2.01 (Sufficiency of Circumstantial Evidence—Generally) and CALJIC

(Footnote continued from previous page.)

contentions because the asserted instructional errors are reviewable on appeal to
the extent they affect his substantial rights. (People v. Prieto (2003) 30 Cal.4th
226, 247; § 1259.)

40

No. 2.90 (Presumption of Innocence—Reasonable Doubt—Burden of Proof).

(Gibson v. Ortiz, supra, 387 F.3d at pp. 821-823.)

Viewing the instructions as a whole, the court in Gibson held that the

interplay of the above italicized portion of CALJIC No. 2.50.01 and CALJIC

No. 2.50.1 unconstitutionally “allowed the jury to find that [the petitioner]

committed the uncharged sexual offenses by a preponderance of the evidence and

thus to infer that he had committed the charged acts based upon facts found not

beyond a reasonable doubt, but by a preponderance of the evidence.” (Gibson v.

Ortiz, supra, 387 F.3d at p. 822.) The court specifically faulted the trial court for

failing to offer an “explanation harmonizing the two burdens of proof discussed in

the jury instructions.” (Id. at p. 823.) The instructional error was deemed

“structural error” requiring reversal under Sullivan v. Louisiana (1993) 508 U.S.

275 because the jury was permitted to convict the petitioner based on a standard of

proof below beyond a reasonable doubt. (Gibson v. Ortiz, supra, 387 F.3d at

p. 825.)

Gibson is inapposite. Unlike CALJIC No. 2.50.01, given in Gibson,

CALJIC No. 2.50, as given below, expressly prohibited jurors from considering

other crimes evidence as “pro[of] that defendant is a person of bad character or

that he has a disposition to commit crimes.” Under this instruction, the jury could

consider this evidence solely to determine whether defendant had “the intent

which is a necessary element of the crime charged, or a motive for the commission

of the crime charged.” CALJIC No. 2.50 further explained that jurors had to

weigh the other crimes evidence “in the same manner as you do all other evidence

in the case” and were “not permitted to consider this evidence for any other

purpose.” That is, jurors were instructed that, regarding first degree robbery

murder, “the specific intent to commit robbery and the commission or attempted

commission of such crime must be proved beyond a reasonable doubt.” (CALJIC

41

No. 8.21.) The jurors were similarly instructed that the prosecution bore the

burden of proving the robbery special circumstance allegation beyond a

reasonable doubt. (CALJIC No. 8.80.1.) The trial court also gave the standard

instructions on reasonable doubt and on the sufficiency of circumstantial evidence

to prove guilt. (See People v. Carpenter, supra, 15 Cal.4th at p. 383 [rejecting a

nearly identical claim, reasoning the trial court’s standard instructions on

reasonable doubt and on the sufficiency of circumstantial evidence to prove the

necessary specific intent made clear the reasonable doubt standard applied to the

intent element].) We find no reasonable likelihood that the instructions as a whole

led the jury to believe that the prosecution was not required to prove all elements

of first degree robbery murder and the attempted robbery special circumstance

beyond a reasonable doubt. (Estelle v. McGuire (1991) 502 U.S. 62, 72; People v.

Avena (1996) 13 Cal.4th 394, 417; People v. Clair (1992) 2 Cal.4th 629, 663.)

This result is unaffected by the 1999 revision to CALJIC No. 2.50.1, which

added the following cautionary language: “If you find other crime[s] were

committed by a preponderance of the evidence, you are nevertheless cautioned

and reminded that before a defendant can be found guilty of any crime charged [or

any included crime] in this trial, the evidence as a whole must persuade you

beyond a reasonable doubt that the defendant is guilty of that crime.” Nothing in

the 1999 revision to CALJIC 2.50.1 implied or suggested the omission of such

language rendered the prior version of the instruction infirm.

D. Sufficiency of Evidence of the Hate-murder Special Circumstance

Defendant contends the evidence is insufficient to sustain the hate-murder

special-circumstance finding that he murdered Ly because of Ly’s race, color,

religion, nationality, or country of origin (§ 190.2, subd., (a)(16)). He asserts this

alleged insufficiency violates his constitutional rights under the Fifth, Sixth,

42

Eighth and Fourteenth Amendments to the United States Constitution and sections

1, 7, 12, 15, 16, and 17 of article I of the California Constitution.

1. Applicability of the Independent Standard of Review

Preliminarily, defendant contends this Court should employ the

independent standard of review to assess whether sufficient evidence supports the

hate-murder special-circumstance finding because, assertedly, First Amendment

rights are implicated in this case.12 Defendant claims the evidence of his writings,

artwork, literature, and personal correspondence introduced by the prosecution to

prove the hate-murder special-circumstance allegation constitutes free expression

protected under the First Amendment.

In Bose Corp. v. Consumers Union of U.S., Inc. (1984) 466 U.S. 485, 499,

the United States Supreme Court explained that “in cases raising First Amendment

issues . . . an appellate court has an obligation to ‘make an independent

examination of the whole record’ in order to make sure that ‘the judgment does

not constitute a forbidden intrusion on the field of free expression.’ ” (Quoting

New York Times Co. v. Sullivan (1964) 376 U.S. 254, 284-286.) “Independent

review is not the equivalent of de novo review ‘in which a reviewing court makes

an original appraisal of all the evidence to decide whether or not it believes’ the

outcome should have been different. (Bose, supra, 466 U.S. at p. 514, fn. 31.)

Because the trier of fact is in a superior position to observe the demeanor of

witnesses, credibility determinations are not subject to independent review, nor are

findings of fact that are not relevant to the First Amendment issue. (Id. at pp. 499-

500; Harte-Hanks [Communications, Inc. v. Connaughton (1989)] 491 U.S. [657,]


12

Respondent errs in asserting defendant forfeited this argument by failing to

raise it at trial. “In every appeal, the threshold matter to be determined is the
proper standard of review — the prism through which we view the issues
presented to us.” (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1500.)

43

688.) As noted above, under the substantial evidence standard, the question is

whether any rational trier of fact could find the legal elements satisfied beyond a

reasonable doubt, whereas under independent review, an appellate court exercises

its independent judgment to determine whether the facts satisfy the rule of law.”

(In re George T. (2004) 33 Cal.4th 620, 634.)

Relying on Bose, we held in In re George T., that when a plausible First

Amendment defense is raised, a reviewing court should independently review the

entire record in determining the sufficiency of evidence supporting a juvenile

court’s finding that the minor made a criminal threat within the meaning of section

422. (In re George T., supra, 33 Cal.4th at pp. 631-634.) We explained that

independent review of the constitutionally relevant facts is necessary in cases

involving First Amendment issues “to ensure that a speaker’s free speech rights

have not been infringed by a trier of fact’s determination that the communication

at issue constitutes a criminal threat.” (Id. at p. 632.) Independent review is

employed “precisely to make certain that what the government characterizes as

speech falling within an unprotected class actually does so.” (Id. at p. 633.)

Here, there is no such line to be drawn. California’s hate-murder special

circumstance, section 190.2, subdivision (a)(16), provides that the punishment for

first degree murder is death or imprisonment for life without the possibility of

parole when “[t]he victim was intentionally killed because of his or her race, color,

religion, nationality, or country of origin.” By its terms, this provision provides an

enhanced penalty for first degree murder committed because of prohibited bias

motivation and is not directed at free expression protected by the First

Amendment. (See, e.g., Wisconsin v. Mitchell (1993) 508 U.S. 476, 485-490

[enhancement statute is properly directed at conduct committed because of

prohibited bias motivation and does not punish free speech in violation of the First

Amendment]; In re M.S. (1995) 10 Cal.4th 698, 725 [section 422.7, one of

44

California’s hate crime statutes, properly sanctions bias-motivated conduct and

does not implicate a defendant’s First Amendment rights].) Accordingly, because

we conclude no First Amendment issues are implicated in this case, independent

review of the evidence supporting the hate-murder special circumstance finding is

not warranted.

2. Substantial Evidence Supports the Hate-murder Special-

circumstance Finding

Applying the deferential substantial evidence test, we review the entire

record in the light most favorable to the judgment to determine whether it contains

substantial evidence from which a rational trier of fact could find the essential

elements of the hate-murder special-circumstance allegation beyond a reasonable

doubt. (People v. Alvarez, supra, 14 Cal.4th at p. 225.) We do not reweigh

evidence or reassess a witness’s credibility. (People v. Guerra, supra, 37 Cal.4th

at p. 1129.) Initially, we note that, contrary to these settled principles, defendant

views the evidence in a light unfavorable to the judgment and, in effect, urges this

court to reevaluate the credibility of certain witnesses.

Section 190.2, subdivision (a), provides that the penalty for a defendant

found guilty of first degree murder is death or imprisonment for life without

possibility of parole if the trier of fact finds one of the special circumstances

enumerated under that provision. The hate-murder special circumstance applies if

the trier of fact finds “[t]he victim was intentionally killed because of his or her

race, color, religion, nationality, or country of origin.” (§ 190.2, subd. (a)(16).)

The “because of” language in this statute is similar to the language of

sections 422.6 and 422.7, the statutes at issue in In re M.S., supra, 10 Cal.4th 698,

discussed above. We held that the phrase “ ‘because of’ means the conduct must

have been caused by the prohibited bias.” (Id. at p. 719.) “A cause is a condition

that logically must exist for a given result or consequence to occur.” (Ibid., citing

American Heritage Dict. (2d ed. 1982) p. 249.) “[T]he bias motivation must be a

45

cause in fact of the offense, whether or not other causes also exist. [Citation.]

When multiple concurrent motives exist, the prohibited bias must be a substantial

factor in bringing about the crime.” (In re M.S., supra, 10 Cal.4th at p. 719; see

also People v. Superior Court (Aishman) (1995) 10 Cal.4th 735, 741 [applying the

reasoning on this point from In re M.S., in interpreting similar language in section

422.75].)

In People v. Sassounian (1986) 182 Cal.App.3d 361, the defendant was

convicted of the first degree murder-assassination of the Consul General of the

Republic of Turkey, and the jury found true the special circumstance allegation

that he killed the victim because of his nationality or country of origin, in violation

of section 190.2, subdivision (a)(16). (Sassounian, at p. 373.) The prosecution

primarily relied on the testimony of a jail inmate who claimed the defendant

confessed to him that he and others carried out the murder as “an act of revenge

against the Turkish people for what they had done years before to the Armenians.”

(Id. at p. 385.) On appeal, noting it could not reweigh the evidence as the

defendant urged, the Court of Appeal rejected the defendant’s contention that the

evidence was insufficient to sustain the jury’s special circumstance finding on the

ground the fellow inmate’s testimony was inherently incredible. (Id. at p. 408.)

The defendant later sought habeas corpus relief on the ground the

prosecution presented false evidence substantially material or probative on the

issue of penalty, namely, the inmate’s testimony that the defendant had confessed

to him. (In re Sassounian, supra, 9 Cal.4th at p. 547.) In rejecting this claim, this

court held that, even without the inmate’s testimony, overwhelming evidence —

including the defendant’s brother’s statement to police regarding the defendant’s

anti-Turkish feelings and views — supported the reasonable inference that the

defendant intentionally killed the victim because he “was Turkish and represented

Turkey.” (Id. at pp. 539, 548-549 & fn. 11.) That the defendant was motivated

46

also by the latter circumstance would not affect the special circumstance finding

because “[t]here is no requirement of an intentional killing ‘solely because of’ the

victim’s ‘nationality or country of origin’ ” (Id. at p. 549, fn. 11.)

Defendant suggests that, in order to protect free speech, we should apply

“with rigor” the substantial factor causation test set out in In re M.S. and

require that the evidence establishing that a prohibited bias was a “substantial

factor” in bringing about the murder also establish that the prohibited bias was

“unequivocal, unconditional, immediate, and specific.” Specifically, defendant

argues that, in the context of the substantial factor analysis, the prosecution’s

evidence should establish: (1) defendant “possessed” racial bias; (2) defendant

“specifically possessed a racial bias against members of the race to which the

victim belonged”; (3) “this bias was significant in determining how [defendant]

viewed the world and led his life”; and (4) “this bias explains why [defendant]

murdered [the victim].”

Defendant’s reliance on In re M.S. for such a proposition is misplaced. In

In re M.S., we rejected a contention that section 422.6, prohibiting certain conduct,

including a threat of violence because of prohibited bias motive, was

unconstitutionally overbroad under the First Amendment because it purportedly

failed to require that the threat be unconditional, unequivocal, and imminent. (In

re M.S., supra, 10 Cal.4th at pp. 711-712.) We construed section 422.6 to require

proof of a present or apparent ability to carry out the threat and a specific intent to

interfere with a person’s right protected under state or federal law. (In re M.S.,

supra, 10 Cal.4th at pp. 712-713.) These requirements, we reasoned, help to

safeguard against unconstitutional application to protected speech. (Ibid.)

Here, there is no similar risk of unconstitutional application of the statute

defining the hate-murder special circumstance to protected speech, as it applies

only to conduct unprotected by the First Amendment: first degree murder

47

committed because of prohibited bias motivation. (See Wisconsin v. Mitchell,

supra, 508 U.S. at pp. 484, 487.) Further, we reiterate that the First Amendment

does not prohibit evidentiary use of a defendant’s protected expression to prove

the elements of a crime. (Wisconsin v. Mitchell, supra, 508 U.S. at p. 489.) For

these reasons, we decline to infer any requirement that proof a prohibited bias

motivation was a “substantial factor” in causing the hate-murder special-

circumstance murder must also establish that the bias was unequivocal,

unconditional, immediate, and specific.

Here, the jury reasonably could infer from the evidence that defendant, who

is White, was a follower of the White supremacy movement and advocated racial

hatred. Sergeant Miller’s expert testimony on White supremacy beliefs and

culture and the materials police seized from defendant’s bedroom — defendant’s

Bible with references to a White supremacist leader and organization on the last

several pages, written and published White supremacy materials, the derogatory

“Martin Luther King” poster, a helmet adorned with a swastika, and a cardboard

box adorned with the Nazi “SS” lightning bolts and swastikas — reasonably

suggest defendant identified with White supremacists and was motivated to use

violence to advance their belief that the White race is superior to all other races.

He actively participated in the White supremacy movement. While in custody in

Missouri in 1993, he bragged that he was running the White Aryan Resistance

(W.A.R.) group in the prison and was using violence to support the national party.

He encouraged Dulaney to start his own group but not to associate with any

organization that did not “say violence or anything of that nature.” Defendant also

encouraged Dulaney to write to the Nationalist Party of Canada and request

literature so that he and Dulaney could start their own party when he was released

from custody. In 1995, defendant, Dulaney, and defendant’s brother formed their

own gang, the ICP, which became involved in the “White Power” movement.

48

Additional evidence showed defendant’s particular racial animus against

Asians. He admitted to Ellis that he disliked Asians, purportedly because he was

forced to leave Okinawa, and referred to Asians as “gooks.” Also, Lopez, who

worked with defendant at K-Mart, testified that within a couple months of Ly’s

murder, defendant referred to Asian customers as “gooks.”

In his February 23d letter to Dulaney, which Dulaney received

approximately one month after Ly’s murder, defendant boasted he “killed a jap

[sic].” He provided Dulaney with the details of how he brutally stabbed Ly to

death and then added that he was “having a ball in tustin wish you were here.”

During a telephone conversation with Dulaney on the day after Dulaney received

defendant’s confessional letter, defendant admitted he killed Ly “for racial

movement.” Defendant repeated that he “killed the Jap [sic],” and could not stop

stabbing him. He described Ly’s murder as giving him “ ‘a rush’ ” “ ‘like a

high.’ ”

After defendant was arrested and jailed, he bragged to Villa, a fellow

inmate, that he was in custody “for stabbing a Nip [sic] to death.” Defendant also

admitted to Villa that he told a friend “how easy it is to kill a Vietnamese and get

away with it.” In his letter to Tammy Shoopman, defendant referred to Ly as a

“Chino [who] got stabbed to Death” and bragged this earned him “a 187 . . . and

Hate crime.”

From these facts, a jury reasonably could infer that Ly was murdered

because of his race or country of origin and that Ly’s race or country of origin was

a substantial factor motivating the killing, within the meaning of section 190.2,

subdivision (a)(16). (See In re M.S., supra, 10 Cal.4th at p. 719; see also People

v. Sassounian, supra, 182 Cal.App.3d at p. 408.) That the evidence also supports

the jury’s additional finding that defendant murdered Ly because he wanted to

eliminate him as a witness to the attempted robbery (see pt. II.B, ante) does not

49

invalidate the hate-murder special circumstance. (See In re Sassounian, supra, 9

Cal.4th at p. 549 & fn. 11.)

Accordingly, we conclude substantial evidence supports the jury’s hate-

murder special-circumstance finding.

E. Expert Testimony on the Subject of White Supremacy

Defendant contends the trial court abused its discretion and denied him a

fair trial by permitting Huntington Beach Police Department Sergeant Ronald

Miller to testify as an expert on the subject of White supremacy and to opine that

defendant was a White supremacist. Defendant asserts violations of his Fifth and

Fourteenth Amendment rights to due process and the presumption of innocence

absent proof of guilt beyond a reasonable doubt (In re Winship (1970) 397 U.S.

358) as well as the Eighth Amendment right to a reliable adjudication in a capital

case (Caldwell v. Mississippi (1985) 472 U.S. 320).

1. Procedural and Factual Background

Outside the presence of the jury, the trial court conducted an Evidence

Code section 402 hearing to determine the admissibility of Sergeant Miller’s

testimony as expert testimony on the subject of White supremacy. The prosecutor

intended to call the expert to (1) identify letters written by defendant and other

material found in his possession as containing references to white supremacist

groups and espousing White supremacist beliefs, (2) identify white supremacist

groups and describe their beliefs, and (3) identify defendant as a White

supremacist. Counsel for defendant objected to the proposed testimony on the

grounds that the subject of White supremacy was within the jurors’ common

knowledge, the writings and symbols depicted in defendant’s letters and other

materials in his possession required no interpretation, and the testimony’s

prejudicial impact outweighed its probative value (Evid. Code, § 352).

50

Sergeant Miller testified at the section 402 hearing that, for over 10 years,

he had been involved with White supremacists and one of their subgroups,

“skinheads,” as a police officer assigned to the Huntington Beach Police

Department Beach Detail and Gang Unit. He had developed expertise on the

subject of White supremacy through his contacts and interviews with self-

proclaimed White supremacists and “skinheads” and his review of numerous

publications on the White supremacist movement. During the course of this work,

he became acquainted with numerous White supremacist groups that believed “the

white race is supreme over others.” Sergeant Miller had testified in court five

times on the subject of White supremacy.

The trial court overruled defendant’s objections and found Miller qualified

as an expert on the subject of “white supremacist groups and their teachings and

thinking.”

Sergeant Miller then testified before the jury that a “white supremacist” is

“a racist who is oriented toward the superiority of the white race, believing that it

is above all others. They tend to view minorities as . . . sub-humans. [¶] They are

also quite often Antisemitic, even to the point that they label the Holocaust as a

Jewish trick to garner support and sympathy for the Jews throughout the world. [¶]

Those are the two major tenets of the white supremacist.”

Miller testified that he had reviewed the handwritten notations on the last

several pages of the Bible recovered from defendant’s apartment. He recognized

the name of a White supremacy group, Church of Jesus Christ Christian, also

known as the Aryan Nations. This group is based in Hayden Lake, Idaho, and is

led by Richard Butler, who “appeals to a broad spectrum within the white

supremacist movement, including skinheads, Ku Klux Klan members.” Members

of the Aryan Nations subscribe to the “Identity Christian” belief, described by

Miller as a “pseudo religion” that uses biblical passages “to prove that white

51

people are God’s chosen, [and that] all others are what they would call mud people

or sub human.” This group believes all Jews are descendants of Satan.

Miller recognized a reference to “Brig. Gen. Jack Mohr,” whom he

identified as Brigadier General Jack Mohr, who had served as a colonel in the

United States Army during World War II and had been a prisoner of war. Miller

knew Mohr had been involved with preaching “Christian Identity” beliefs about

White supremacy to prisoners. Miller believed Mohr “would probably have no

problem with violence against minorities under the right circumstances.”

Miller recognized a notation for The Talon, a newsletter of the White

supremacist organization Euro-American Alliance, which is based in Milwaukee,

Wisconsin. This group advocated that the White race should be “kept pure from

any inbreeding, inter-mixing between, for example, Asians and white American[s]

or black[s] and white Americans.”

Sergeant Miller examined the inside of the box seized from defendant’s

apartment and observed it was covered with multicolored “personal graffiti,”

including the Nazi swastika (two) and the Nazi “SS” lightning bolts. He explained

the “SS” lightning bolts symbol identified members of the “Stamp Shuffel [sic:

Schutzstaffel].” The “SS” referred to “the elite Nazi organization assigned by

Hitler with such missions as the extermination of the Jews, minorities, gypsies,

homosexuals, communists and others during the holocaust of World War II.”

Miller examined a letter defendant had written to Jeremie Overstreet while he was

in custody in this case and identified among its contents the Nazi “SS” lightning

bolts symbol and the phrase, “Stay White,” a reference to the belief that the White

race should be kept “pure.”

Miller next identified a piece of paper found in defendant’s Bible with the

heading “Pro White Organizations” as comprising a list of White supremacist

organizations, including (1) the Aryan Research Fellowship, based in Conquville,

52

Oregon, and identified by the United States Department of Justice as a white

supremacist organization; (2) the N.A.A.W.P., or National Association for the

Advancement of White People, based in New Orleans, Louisiana, and formed by

former Ku Klux Klan (KKK) imperial wizard David Duke “to protect white

people’s rights”; (3) the New Order, based in Milwaukee, Wisconsin, and

successor to the American Nazi Party; this group views Adolf Hitler as “the

Messiah for the Aryan or White race” and formerly was known as the National

Socialist White People’s Party; (4) The Klansman, a group associated with the

KKK; (5) the White Aryan Resistance, based in Fallbrook, California, and led by

White supremacist Tom Metzger, whom Miller described as “oriented toward

violence”; (6) the White Knights, a “KKK-oriented” organization, based in

Birmingham, Alabama; and (7) the Knights of the Ku Klux Klan, a larger faction

of the KKK, led by Thom Robb, whom Miller described as a White supremacist

and Christian Identity preacher.

Miller elaborated that, with the exception of skinheads, he had the most

contact with Metzger and the White Aryan Resistance, an organization “very

violent in [its] orientation.” The White Aryan Resistance published a newsletter

that “regularly feature[d] both articles [and] illustrations backing up [Metzger’s]

white supremacist views.” One such featured illustration depicted “a white man

with a double-barrel shotgun blasting a minority with a couple of rounds” with a

caption stating, “If it isn’t white, waste it.” As for this organization’s leader,

Metzger advocated “white supremacy” over Blacks, Asians, Hispanics, and all

minorities. He maintained a Web site, and previously a computer bulletin board,

that promoted his and the organization’s “hate views.” Earlier, Metzger had

produced a cable access television program called Race and Reason that provided

a forum for white supremacists to appear as guests and discuss their common

53

beliefs about white supremacy. After Metzger began recruiting skinheads, the

latter produced their own cable access program called Skinhead Race and Reason.

Sergeant Miller then examined portions of three letters defendant had

written to Robert Dulaney over a year before the murder in this case. In a letter

dated March 10, 1993, when defendant was incarcerated in Missouri, he wrote, “I

run the W.A.R. group in here. White Arian resistance is a action group – were a

branch of NVAP – National Vastal Arian Party they dictate we react in other

words they talk – we back them with violence.” (Errors in original.) Miller

explained that the phrase “W.A.R. group” referred to the “White Aryan

Resistance” and interpreted defendant’s written statement as meaning that when

the N.V.A.P. “talks,” defendant’s White Aryan Resistance group backs them up

with violence.

In a letter postmarked October 12, 1993, defendant wrote, “Don’t worry

dog, I love to play in the WaR zone . . . .” Miller understood “WaR” as referring

to the White Aryan Resistance supremacist organization. In another letter

postmarked February 14, 1994, defendant wrote the word “Kill” in large block

letters near the closing. The letter “K” resembled a Nazi swastika. Below this,

defendant repeated the word “kill” seven times in lower case letters.

Sergeant Miller examined a photograph of the helmet and plastic skull

found in defendant’s bedroom and identified the helmet as a World War II Nazi

military helmet or a replica. A Nazi swastika symbol appeared on the front of the

helmet.

Based on defendant’s own words in his letters, the groups with whom

defendant associated, and his use of the symbols associated with the “Nazi white

supremacist types of beliefs,” including the Nazi swastika and “SS” lightning bolts

symbols, Miller believed defendant was a White supremacist. Among the letters

Miller considered were two letters written by defendant while in custody awaiting

54

trial in this case. One was addressed to Kelly Dresen, in which defendant stated,

“I am 100 percent against black.” In another letter addressed to Jeremie

Overstreet, defendant drew two lightning bolts next to the phrase, “stay white,”

and wrote on a separate page, “No better not them hong kong fuee’s might not like

you!” (Errors in originals.)

2. Discussion

On appeal, defendant first claims the trial court erred by allowing Sergeant

Miller to testify that written and printed material found in defendant’s bedroom,

including letters written by defendant before and after Ly’s murder, referred to

White supremacist organizations and espoused White supremacist beliefs.

Defendant asserts that Miller’s testimony should have been restricted to

identifying the organizations listed in defendant’s Bible or on the “Pro White

Organizations” list, and that jurors were capable of recognizing and understanding

any White supremacist references or overtones in the writings and printed

material.

A trial court’s decision to admit expert testimony is reviewed for abuse of

discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1222.) We conclude for the

reasons discussed below that the trial court did not abuse its discretion by

admitting this testimony.

First, although expert testimony is generally inadmissible on topics “so

common” that jurors of ordinary knowledge and education could reach a

conclusion as intelligently as the expert, an expert may testify on a subject about

which jurors are not completely ignorant. (People v. Prince, supra, 40 Cal.4th at

p. 1222, citing People v. McDonald (1984) 37 Cal.3d 351, 367 (overruled on

another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914).) In

determining the admissibility of expert testimony, “the pertinent question is

whether, even if jurors have some knowledge of the subject matter, expert opinion

55

testimony would assist the jury.” (People v. Prince, supra, 40 Cal.4th at p. 1222;

Evid. Code, § 801, subd. (a).)

Here, the challenged evidence was relevant to establish defendant’s state of

mind at the time he killed Ly and whether defendant killed Ly because of his

“race, color, religion, nationality, or country of origin.” (§ 190.2, subd. (a)(16).)

Although some jurors may have possessed general knowledge of the subject of

White supremacy, Miller’s testimony nonetheless explained in some detail that a

White supremacist is a racist who believes the White race is superior to all other

races and is anti-Semitic, “label[ing] the Holocaust as a Jewish trick to garner

support and sympathy for the Jews throughout the world.” Without the benefit of

the expert’s testimony, the jurors might not have understood that symbols often

associated with Nazis that adorned some of the items found in defendant’s

bedroom (e.g., the Nazi swastikas and the “SS” lightning bolts on defendant’s

box) and phrases that were contained in defendant’s letters and other written

material (e.g., “Pure White Organizations,” “Stay White,” “I run the W.A.R.”)

were used by white supremacists to advocate their beliefs. Nor would the jurors

likely have recognized the names of the white supremacist leaders (e.g., Brigadier

General Jack Mohr) and organizations (Church of Jesus Christ Christian, also

known as the Aryan Nations) noted in the materials seized. Sergeant Miller’s

testimony could assist jurors by providing them with a basis of information about

white supremacist beliefs and tenets from which they could determine, based on

the material seized from defendant’s bedroom, that defendant subscribed to white

supremacist beliefs and tenets.

Ultimately, this evidence could assist the jury in determining defendant’s

motive for killing Ly. Thus, the expert’s testimony demonstrated more than

defendant’s abstract beliefs about White supremacy and was relevant to the jury’s

determination of whether the prosecution proved the hate-murder special

56

circumstance. (Cf. Dawson v. Delaware (1992) 503 U.S. 159, 164-165 [evidence

of defendant’s membership in Aryan Brotherhood that was not linked to the crime

committed and revealed only the defendant’s abstract beliefs was irrelevant to his

capital sentencing hearing].) Under these circumstances, we cannot conclude

Sergeant Miller’s testimony was of no assistance to the jurors (Evid. Code, § 801,

subd. (a)), or would contribute nothing to the jury’s common fund of information.

(People v. Farnam (2002) 28 Cal.4th 107, 163.)

A second basis for upholding the trial court’s decision admitting Miller’s

testimony on white supremacy culture and beliefs is that we have admitted expert

testimony in analogous circumstances. (See, e.g., People v. Gonzalez (2006) 38

Cal.4th 932, 944-949 [approving the admission of expert testimony regarding

gang culture and witness intimidation by gang members]; People v. Ochoa (2001)

26 Cal.4th 398, 438 [approving the admission of expert testimony to explain the

significance of the defendant’s gang-related tattoos]; People v. Gardeley (1996) 14

Cal.4th 605, 617 [recognizing that “[t]he subject matter of the culture and habits of

criminal street gangs” satisfies the criterion of admissible expert testimony under

Evidence Code section 801]; People v. Champion (1995) 9 Cal.4th 879, 922

[approving admission of juvenile gangs expert’s testimony on defendants’ gang

membership as relevant to establish their identities as perpetrators of the charged

offenses]; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 [“The use

of expert testimony in the area of gang sociology and psychology is well

established”].)

Numerous decisions in federal and other state cases also have upheld the

admission of expert testimony to explain the culture and beliefs of White

supremacy groups and gangs and to interpret tattoos, symbols, and graffiti

associated with these groups when such evidence was relevant to the issues at trial.

(See U.S. v. Sparks (8th Cir. 1991) 949 F.2d 1023, 1025-1026 [expert testimony

57

explaining the meaning of gang graffiti and hand signs depicted in the

photographs seized from house in which the defendant was arrested was properly

admitted and relevant to establish the defendant’s gang affiliation and for

impeachment]; U.S. v. Skillman (9th Cir. 1990) 922 F.2d 1370, 1374 & fn. 4

[expert testimony describing “skinheads” as “ ‘a neo-Nazi type of group . . . [that]

espouse racial purity and white power, and . . . tend to be violent’ ” was properly

admitted because it tended to establish the defendant’s “racial animus,” an element

of the charged offense, intimidating or interfering with a person’s housing rights

because of race or color]; U.S. v. Mills (11th Cir. 1983) 704 F.2d 1553, 1559-1560

[the trial court properly admitted the testimony of a “quasi expert” on the

organization, history, and activities of the Aryan Brotherhood, a White

supremacist prison gang, as relevant to the defendant’s motive and the

circumstances of the alleged AB contract killing]; People v. Skinner (Colo. App.

2002) 53 P.3d 720, 722, 724 [the trial court did not abuse its discretion by

admitting expert testimony to explain that the defendant’s tattoo could be viewed

as a symbol of white supremacy beliefs]; People v. Wagner (N.Y.App.Div. 2006)

27 A.D.3d 671, 672, 811 N.Y.S.2d 125,126-127 [the trial court properly permitted

an expert on hate crimes and the meaning of tattoos to testify with respect to the

defendant’s white supremacist tattoos; the tattoos were relevant to the defendant’s

motive and intent to commit second degree aggravated harassment]; Mason v.

State (Tex. Crim. App. 1995) 905 S.W.2d 570, 577 [a prison gang expert’s

testimony that the Aryan Brotherhood is a White supremacist organization that,

among other things, recruits White inmates and engages in contract killings and

assaultive behavior was properly admitted as relevant to the issue of the

defendant’s future dangerousness]; State v. Campbell (Wn.Ct.App. 1995) 78

Wn.App. 813, 823 [901 P.2d 1050, 1055-1056] [the trial court properly admitted

the expert gang testimony to explain gang terminology, gang symbols, and the

58

organizational structure and history of gangs as relevant to show the defendant’s

premeditation, intent, and motive to commit the murders].)

In addition, the United States Supreme Court has held that evidence of

racial intolerance and subversive advocacy may properly be considered in a capital

sentencing proceeding when such evidence is relevant to the issues involved.

(Dawson v. Delaware, supra, 503 U.S. at p. 164.) The high court suggested that

such evidence properly could be adduced by expert testimony. (Id. at pp. 165,

168.)

Defendant claims that Sergeant Miller’s testimony that White supremacists

“are also quite often Anti-semitic, even to the point that they label the Holocaust

as a Jewish trick to garner support and sympathy for the Jews throughout the

world” was irrelevant and inadmissible because, he asserts, Ly was not Jewish. As

a preliminary matter, we agree with respondent that defendant forfeited this claim

because, although defendant objected to the admission of the expert’s testimony as

a whole, he failed to object specifically on the ground he now advances and

thereby deprived the trial court an opportunity to make a fully informed ruling on

the issue. (Evid. Code, § 353; see, e.g., People v. Geier (2007) 41 Cal.4th 555,

609-611 [the defendant’s broad pretrial objection to the admissibility of DNA

evidence did not preserve for appeal his specific claim that the trial court

erroneously permitted the DNA expert to testify to the frequency of the genetic

profile among only a single racial group rather than for two additional major racial

and ethic groups for which DNA databases existed].) In any event, defendant’s

contention is without merit.

Sergeant Miller described the White supremacists’ two tenets as their belief

in the superiority of the White race above all other races and their particular hatred

of Jews, who they believe fabricated the Holocaust to garner worldwide sympathy

and support. The expert’s comments regarding the White supremacists’ hatred

59

towards Jews were relevant to explain these tenets and their origins and to provide

the jurors with a basis of information for understanding certain symbols found in

defendant’s bedroom (e.g., the “SS” lightning bolts) and determining whether

defendant’s murder of Ly was motivated by racial hatred. Whether or not Ly was

Jewish, these comments were relevant on the general subject of White supremacy.

Defendant’s complaint concerns the weight of this portion of Miller’s testimony,

not its admissibility.

Defendant also claims that Sergeant Miller’s testimony regarding Tom

Metzger, whom Miller identified as the leader of the White Aryan Resistance, was

irrelevant because Metzger was not on trial. According to Miller, however, the

“Pro White Organizations” list found in defendant’s Bible contained the name

“White Aryan Resistance,” the “very violent” organization led by Metzger.

Defendant also referred to the White Aryan Resistance in letters he had written to

Delaney over one year before he killed Ly. In any event, the expert’s remarks

concerning Metzger gave the jurors an overview of White supremacy culture and

beliefs in order to place in context the White supremacist references found in the

seized material. This concern, too, affects the weight of this evidence, not its

admissibility.

Next, defendant claims the trial court erred in permitting Sergeant Miller to

give his opinion that defendant was a White supremacist, an issue properly

reserved to the trier of fact. He asserts the expert was less informed than the jurors

on this point because they could also consider additional relevant evidence on this

point, including the testimony of other witnesses.

Evidence Code section 805 provides that “[t]estimony in the form of an

opinion that is otherwise admissible is not objectionable because it embraces the

ultimate issue to be decided by the trier of fact.” (See People v. Prince, supra, 40

Cal.4th at pp. 1226-1227 [an expert on crime scene analysis and “signature

60

crimes” testified that all six murders were committed by the same person].) We

cannot say that the trial court abused its discretion in finding Sergeant Miller’s

opinion that defendant was a White supremacist would be of assistance to the jury

in evaluating the evidence and determining whether the prosecution had proved

the charged offenses and the truth of special circumstance allegations. The expert

stated no opinion as to defendant’s guilt or the truth of the special circumstances.

His opinion that defendant was a White supremacist did not bind the jurors on this

point or preclude them from considering other relevant evidence. The trial court

instructed the jurors that they were the “sole judges” of the credibility of a witness

(CALJIC No. 2.20), that they should consider all the evidence on which the proof

of any fact depends (CALJIC No. 2.27), and that they were free to determine the

weight, if any, to accord an expert’s opinion upon considering the basis for the

opinion (CALJIC No. 2.80).

Defendant additionally contends that the probative value of Sergeant

Miller’s testimony was outweighed by its prejudicial effect (Evid. Code., § 352)

and that its admission rendered his trial unfair in violation of his right to due

process. He asserts the expert’s opinion that he was a White supremacist unfairly

poisoned the jury against him because it depicted him as an anti-Semite who

wanted to exterminate Jews, minorities, homosexuals, and gypsies. This opinion,

he claims, also equated him with Adolph Hitler and “the worst excesses of the

Nazi regime.” Defendant further complains that the expert’s description of a

photograph of “a white man with a double-barrel shotgun blasting a minority with

a couple of rounds” in a White Aryan Resistance publication was prejudicial.

Evidence Code section 352 permits a trial court in its discretion to exclude

evidence if its probative value is substantially outweighed by the probability that

its admission would create a substantial danger of undue prejudice. We review a

trial court’s decision whether to exclude evidence pursuant to Evidence Code

61

section 352 for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 959.)

For this purpose, “ ‘prejudicial’ means uniquely inflammatory without regard to

relevance.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1138.) “Evidence is

substantially more prejudicial than probative [citation] if . . . it poses an intolerable

‘risk to the fairness of the proceedings or the reliability of the outcome’ [citation].”

(People v. Waidla (2000) 22 Cal.4th 690, 724.)

Here, the admission of Sergeant Miller’s testimony was probative of

defendant’s motive and intent in committing the murder and, thus, was directly

relevant to the jury’s determination of the murder charge and hate-murder special-

circumstance allegation. We do not view as prejudicial either the expert’s general

overview of the subject of White supremacy or his specific testimony that White

supremacists harbor a particular hatred of Jews, associate with Nazis and use

Nazi-related symbols (e.g., “SS” lightning bolts and swastika) to promote their

racist beliefs, and regularly feature racist illustrations in their publications (e.g.,

the depiction of a White man “blasting a minority” with a double-barrel shotgun).

As defendant has argued, many of the items found in defendant’s bedroom and the

letters confiscated while he was in jail awaiting trial themselves clearly conveyed

messages of racial hatred and anti-Semitism. For example, jurors reasonably

could find defendant harbored a hatred of Blacks and Jews based on evidence he

displayed in his bedroom the racist “Martin Luther King” poster, possessed an

actual or replica of a Nazi helmet with a swastika symbol across the front, and

penned a letter to Dulaney before Ly’s death that contained a swastika above the

words “kill-kill-kill-kill-kill-kill-kill” followed by “Them all!” Evidence is not

unduly prejudicial “merely because it strongly implicates a defendant and casts

him or her in a bad light.” (People v. Robinson (2005) 37 Cal.4th 592, 632.) The

trial court properly instructed the jury not to be influenced by passion, sympathy,

or prejudice and to conscientiously consider and weigh the evidence in applying

62

the law. Under these circumstances, where other, properly admitted evidence

plainly communicated to the jury defendant’s odious attitudes, the trial court

properly found the probative value of the expert’s testimony was not substantially

outweighed by its prejudicial effect.

Finally, assuming without deciding that defendant’s additional

constitutional claims were preserved (see People v. Partida (2005) 37 Cal.4th 428,

433-434), they are without merit for the same reasons we have rejected

defendant’s state-law claims. (See People v. Prince, supra, 40 Cal.4th at p. 1229;

People v. Kraft, supra, 23 Cal.4th at p. 1035.)

III. PENALTY PHASE

A. CALJIC No. 8.85

Defendant contends that CALJIC No. 8.85,13 which describes the


13

The trial court instructed the jury in the language of CALJIC No. 8.85, in

relevant part, as follows: “In determining which penalty is to be imposed on
defendant Gunner Jay Lindberg, you shall consider all of the evidence which has
been received during any part of the trial in this case, except as you may [be]
hereafter instructed. You shall consider, take into account the following factors, if
applicable: [¶] . . . [¶] D, Whether or not the offense was committed while the
defendant Gunner Jay Lindberg was under the influence of extreme mental or
emotional disturbance. [¶] E, Whether or not the victim was a participant in
defendant Gunner Jay Lindberg’s homicidal conduct or consented to the homicidal
act. [¶] F, Whether or not the offense was committed under circumstances which
defendant Gunner Jay Lindberg reasonably believed to be a moral justification or
extenuation for his conduct. [¶] G, Whether or not defendant Gunner Jay Lindberg
acted under extreme duress or under the substantial domination of another person.
[¶] H, Whether or not at the time of the offense the capacity of defendant Gunner
Jay Lindberg to appreciate the criminality of his conduct or to conform his
conduct to the requirements of law was impaired as a result of mental disease or
defense or the effects of intoxication. [¶] . . . [¶] J, Whether or not defendant
Gunner Jay Lindberg was a [sic] an accomplice to the offense and his participation
in the commission of the offense was relatively minor. [¶] K, Any other
circumstance which extenuates the gravity of the crime, even though it is not a
legal excuse for the crime and any sympathetic or other aspect of defendant
Gunner Jay Lindberg’s character or record that the defendant offers as a basis for a

(Footnote continued on next page.)

63

aggravating and mitigating factors the jury may consider in determining penalty, is

constitutionally flawed because (1) the instruction fails to inform the jury which

factors are mitigating and which factors are aggravating, and (2) the use of the

modifiers “extreme” and “substantial” in the instruction acts as a barrier to the

jury’s consideration of mitigation.14 We previously have rejected these

challenges. (People v. Ramirez, supra, 39 Cal.4th at p. 469 [“instructions in the

language of CALJIC No. 8.85 do not violate the Eighth and Fourteenth

Amendments by failing to delete inapplicable sentencing factors or delineate

between aggravating and mitigating circumstances”]; People v. Perry (2006) 38

Cal.4th 302, 319 [the terms “extreme” and “substantial” do not unconstitutionally

limit the mitigating factors the jury may consider]; see also People v. San Nicolas

(2004) 34 Cal.4th 614, 675-676 [CALJIC No. 8.85 does not preclude jurors from

considering lesser mental or emotional disturbance as a mitigating factor in

violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments].) Defendant

offers no persuasive reason to reconsider our prior decisions.

B. CALJIC No. 8.88

Defendant contends various aspects of CALJIC No. 8.8815 violated his

(Footnote continued from previous page.)

sentence less than death, whether or not related to the offense for which he is on
trial. You must disregard any jury instruction given to you in the guilt or
innocence phase of this trial which conflicts with this principle.”

14

Defendant asserts the trial court’s instruction under CALJIC No. 8.85

“infringed [defendant’s] rights under the Eighth Amendment, as well as state law
but fails to identify the state law this instruction violates and provides no argument
or authority in support. A matter asserted in a such a perfunctory manner is not
properly raised. (People v. Gionis (1995) 9 Cal.4th 1196, 1214, fn. 11.)

15

The trial court instructed the jury in the language of CALJIC No. 8.88, in

relevant part, as follows: “It is now your duty to determine which of the two
penalties, death or confinement in the state prison for life without possibility of
parole shall be imposed upon the defendant Gunner Jay Lindberg. [¶] After having

(Footnote continued on next page.)

64

rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal

Constitution and corresponding provisions of the California Constitution. As

defendant concedes, we previously have considered and rejected each of these

arguments, and do so again now as defendant offers no persuasive reason to

reconsider our prior decisions. We thus hold that CALJIC No. 8.88: (1) is not

unconstitutional for failing to advise the jury that if the mitigating circumstances

outweigh those in aggravation, it is required to return a sentence of life without the

possibility of parole (People v. Geier, supra, 41 Cal.4th at p. 619); (2) is not

unconstitutional for failing to inform the jury that it may return a sentence of life

without the possibility of parole even in the absence of mitigating evidence

(People v. Moon (2005) 37 Cal.4th 1, 43); (3) is not unconstitutionally vague in

using the “so substantial” standard for comparing mitigating and aggravating

(Footnote continued from previous page.)

heard all of the evidence, and after having heard and considered the arguments of
counsel, you shall consider, take into account, and be guided by the applicable
factors of aggravating and mitigating circumstances upon which you have been
instructed. [¶] An aggravating factor is any fact, condition or event attending the
commission of a crime which increases its guilt or enormity or adds to its injurious
consequences which is above and beyond the elements of the crime itself. A
mitigating circumstance is any fact, condition, or event which does not constitute a
justification or excuse for the crime in question, but may be considered as an
extenuating circumstance in determining the appropriateness of the death penalty.
[¶] The weighing of aggravating and mitigating circumstances does not mean a
mere mechanical counting of factors on each side of an imaginary scale, or the
arbitrary assignment of weights to any of them. You are free to assign whatever
moral or sympathetic value you deem appropriate to each and all of the various
factors you are permitted to consider. In weighing the various circumstances you
determine under the relevant evidence which penalty is justified and appropriate
by considering the totality of the aggravating circumstances, with the totality of
the mitigating circumstances. [¶] To return a judgment of death, each of you must
be persuaded that the aggravating circumstances are so substantial in comparison
with the mitigating circumstances that it warrants death instead of life without
parole.”

65

circumstances (People v. Geier, supra, 41 Cal.4th at p. 619); and (4) is not

unconstitutional because it requires the jury to decide whether the death penalty is

“warranted” rather than “appropriate” (People v. Carey (2007) 41 Cal.4th 109,

137).

Defendant further contends that, as applied in this case, CALJIC No. 8.88

misled the jury about its discretion to impose a sentence of life without possibility

of parole, even if it determined the circumstances in aggravation outweighed those

in mitigation or found no mitigation whatsoever. In support, he relies on a letter

purportedly written by two jurors that was filed on October 16, 1997, after the jury

returned its death verdict and before defendant was sentenced. This letter was not

admitted into evidence at any proceeding. The circumstances under which it was

filed, and by which party, if any, do not appear on the record. There is also

nothing in the record to indicate the letter had been authenticated. (See

Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525 [generally, a document

must be authenticated in some manner before it is admissible in evidence]; Evid.

Code, §§ 1400, 1401.) In any event, the portions of the letter on which defendant

relies describe the mental processes by which these jurors, and purportedly other

jurors, reached the penalty verdict. Thus, even if the letter had been properly

authenticated and admitted into evidence (e.g., at a hearing on defendant’s motion

for a new trial) we are precluded from considering such evidence on appeal.

“ ‘[A] verdict may not be impeached by inquiry into the juror’s mental or

subjective reasoning processes, and evidence of what the juror ‘felt’ or how he

understood the trial court’s instructions is not competent.’ ” (People v. Morris

(1991) 53 Cal.3d 152, 231, quoting People v. Sutter (1982) 134 Cal.App.3d 806,

819; accord, People v. Steele (2002) 27 Cal.4th 1230, 1261; Evid. Code, § 1150,

subd. (a).)

66

C. Instruction on the Meaning of a Sentence of Life Without

Possibility of Parole

Defendant contends the trial court was required to instruct the jury that a

sentence of life without the possibility of parole meant that defendant would never

be considered for parole. He acknowledges this court previously has rejected this

argument (see People v. Cox, supra, 30 Cal.4th at p. 967), but asks that we

reconsider these decisions in light of Simmons v. South Carolina (1994) 512 U.S.

154, Shafer v. South Carolina (2001) 532 U.S. 36, and Kelly v. South Carolina

(2002) 534 U.S. 246. We have considered the impact of these decisions by the

high court in rejecting this argument. (People v. Wilson (2005) 36 Cal.4th 309,

352-355; People v. Smith (2003) 30 Cal.4th 581, 635-636; People v. Prieto, supra,

30 Cal.4th at pp. 269-271.) Defendant offers no persuasive reason to revisit our

prior decisions.

D. Miscellaneous Constitutional Challenges to California’s Death

Penalty Statute

Defendant contends California’s death penalty law is unconstitutional on

several grounds. We have previously rejected these arguments, and defendant

fails to persuade us to reconsider our prior decisions.

California’s death penalty scheme adequately narrows the class of death-

eligible offenders. (People v. San Nicolas, supra, 34 Cal.4th at p. 676.)

California’s use of capital punishment as an assertedly “regular form of

punishment” for substantial numbers of crimes, rather than as an extraordinary

punishment for extraordinary crimes, does not offend the Eighth and Fourteenth

Amendments by violating international norms of human decency. (People v.

Leonard (2007) 40 Cal.4th 1370, 1430.)

Neither the federal nor state Constitution requires intercase proportionality

review for death penalty cases. (People v. Williams (2006) 40 Cal.4th 287, 338;

see Pulley v. Harris (1984) 465 U.S. 37, 50-51.)

67

E. International Law

Defendant contends that California’s death penalty scheme and his

individual death sentence violate article VII of the International Covenant of Civil

and Political Rights and the Eighth Amendment of the United States Constitution

by violating “international human rights norms” and “evolving standards of

decency.”

We have consistently rejected this claim. (People v. Geier, supra, 41

Cal.4th at p. 620; People v. Leonard, supra, 40 Cal.4th at p. 1430; People v.

Ramirez, supra, 39 Cal.4th at p. 479; People v. Panah (2005) 35 Cal.4th 395, 500-

501; People v. Hillhouse (2002) 27 Cal.4th 469, 511; People v. Ghent (1987) 43

Cal.3d 739, 778-779.) Defendant fails to persuade us to reconsider these

decisions.

F. Cumulative Error

Defendant contends that the cumulative effect of the guilt and penalty

phase errors requires reversal of his conviction and death sentence even if no

single error compels reversal. Because we have either rejected on the merits

defendant’s claims of error or have found any assumed errors to be nonprejudicial,

we reject his contention. We likewise reject defendant’s contention with respect

to the cumulative effect of any assumed errors.

68

IV. CONCLUSION

The judgment is affirmed.

MORENO, J.

WE CONCUR: GEORGE, C. J.
BAXTER,

J.

WERDEGAR,

J.

CHIN,

J.

CORRIGAN,

J.

69







CONCURRING AND DISSENTING OPINION BY KENNARD, J.

On the morning of January 29, 1996, the body of Thien Minh Ly was found

on a high school tennis court. Ly, who was Vietnamese, had been stabbed

repeatedly, 14 of the wounds entering his heart. About a month later, defendant

confessed to stabbing “a jap” to death, saying the killing was “for racial movement

[sic].” After his arrest, two lists of names and addresses of White supremacist

groups, together with printed materials issued by or describing these groups, were

found in defendant’s bedroom. Defendant was charged with Ly’s murder, and

with two special circumstance allegations: (1) the crime was committed in the

course of an attempted robbery (Pen. Code, § 190.2, subd. (a)(17)(A)),1 and (2)

the victim was “intentionally killed because of” his “race, color, religion,

nationality, or country of origin” (id., subd. (a)(16)).

Police Sergeant Ronald Miller, the prosecution’s expert witness on White

supremacy groups, testified at the guilt phase of defendant’s trial that some of the

groups in which defendant had expressed interest were anti-Semitic. He described

defendant as “definitely” being a White supremacist. On cross-examination,

Miller acknowledged that he had never talked to defendant and did not know


1

All further statutory references are to the Penal Code.

1

whether defendant belonged to any of the White supremacist organizations about

which Miller had testified.

The jury found defendant guilty of the first degree murder of Ly; and it

found true both special circumstance allegations. The jury returned a verdict of

death. The majority affirms the judgment. I concur in the affirmance.

Unlike the majority, however, I am of the view that Sergeant Miller’s

testimony about the anti-Semitic beliefs of some White supremacist groups was

irrelevant in this case and therefore should not have been admitted. Nonetheless,

defendant was not prejudiced, as I explain below.

I

Over defense objection, Sergeant Miller testified at trial to two of the major

tenets of White supremacy groups: first, a belief in the “superiority of the White

race” and a corresponding bias against all others; second, anti-Semitism so

extreme that White supremacists “label the Holocaust as a Jewish trick to garner

support and sympathy for the Jews throughout the world.” Responding to the

prosecutor’s question about an organization called Church of Jesus Christ

Christian, which appeared in a handwritten list of groups that was entered in

defendant’s Bible, Miller described that church’s beliefs as “pseudo religion,”

mentioning its belief that “all Jews are the descendants of Satan.” In Miller’s

opinion, the church’s beliefs “fold[] right into the anti[-S]emitic” views common

among White supremacists.

Examining a hand-decorated box found in defendant’s bedroom, Sergeant

Miller identified Nazi swastikas and the paired-lightning-bolt insignia of the

World War II German army’s elite SS corps, which Miller explained had been

ordered by Adolf Hitler to exterminate “Jews, minorities, gypsies, homosexuals,

and communists.”

2



The police found in defendant’s bedroom a letter to defendant from

Brigadier General Jack Mohr. In his testimony, Sergeant Miller identified Mohr

as a White supremacist leader. Also found in defendant’s bedroom, and

introduced into evidence by the prosecution, was a copy of a letter from Mohr to

the Reverend Jerry Falwell. The prosecutor in his closing argument to the jury,

explained that in this letter Mohr castigated Falwell for being “too nice to the

Jews.”

At the conclusion of the guilt phase, the trial court instructed the jury that in

order to find the hate-murder special circumstance allegation true it must find that

“[t]he victim was intentionally killed and . . . the murder was committed because

of race, religion, nationality or country of origin of the victim.” To prove that a

crime was committed “because of” a victim’s protected characteristic, there must

be evidence of a causal connection between a defendant’s perception of the

protected group to which the victim belongs and the defendant’s infliction of

injury on that victim. (See In re M.S. (1995) 10 Cal.4th 698, 717 [construing

analogous language in section 422.6 and former section 422.7].)

Although Sergeant Miller here testified regarding the anti-Semitic views

held by the Nazis and by various White supremacy groups in which defendant had

shown considerable interest, there was no evidence, as the Attorney General

acknowledged at oral argument, that defendant had ever expressed anti-Semitic

views, and there was no evidence that defendant killed Ly, a Vietnamese man,

because defendant perceived him to be of the Jewish faith. Thus, Sergeant

Miller’s testimony on the anti-Semitic views of some White supremacists lacked

any relevance to the hate-murder special circumstance allegation pertaining to

Ly’s murder and should not have been admitted into evidence.

According to the majority, Miller’s testimony about anti-Semitism was

relevant to “the general subject of White supremacy.” (Maj. opn. at p. 60.) If

3

Miller’s testimony about White supremacist groups had been solely focused on

their belief in the superiority of Whites over all other racial and ethnic groups, I

would agree that the testimony was relevant. But I am not persuaded that Miller’s

testimony regarding White supremacist groups’ hatred of Jews establishes hatred

of other nonwhite groups, and therefore Miller’s specific testimony about anti-

Semitism was irrelevant in this case, where the evidence shows that defendant

killed Ly because of his race or country of origin. (See In re M.S., supra, 10

Cal.4th at pp. 730-731 (conc. opn. of Kennard, J.).)

II

Although the trial court erred by admitting Sergeant Miller’s testimony

about the anti-Semitism of some White supremacist groups, the error was

harmless, as discussed below.

Because the evidence showed that defendant was an admirer of White

supremacist groups, Sergeant Miller’s testimony that many such groups are anti-

Semitic may have caused the jury to infer that defendant had similar views.

Although evidence tending to show that a defendant was anti-Semitic could be

highly prejudicial in another case, here the evidence overwhelmingly showed that

defendant was a racist who regarded non-Whites as subhuman and who, by his

own admission, callously murdered victim Ly “for racial movement” because

defendant thought Ly was a “jap” or a “Chino.” Given the compelling evidence

that Ly’s murder was a racially motivated hate crime, the trial court’s erroneous

admission of Miller’s testimony that some White supremacist groups were anti-

Semitic was harmless under any standard of prejudice and could not have affected

the outcome of either the guilt or the penalty phase of defendant’s trial.

KENNARD,

J.

4



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

Name of Opinion People v. Lindberg
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S066527
Date Filed:
August 28, 2008
__________________________________________________________________________________

Court:
Superior
County: Orange
Judge: Robert R. Fitzgerald

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Ronald F. Turner,
Deputy State Public Defender, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Rhonda L. Cartwirght-Ladendorf and Adrianne S.
Denault, Deputy Attorneys General, for Plaintiff and Respondent.







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

Ronald F. Turner
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814
(916) 322-2676

Adrianne S. Denault
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2106

Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 08/28/200845 Cal. 4th 1, 190 P.3d 664, 82 Cal. Rptr. 3d 323S066527Automatic Appealclosed; remittitur issued

LINDBERG (GUNNER JAY) ON H.C. (S173896)


Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Rhonda L. Cartwright-Ladendorf, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2The People (Respondent)
Represented by Adrianne Simone Denault
Office of the Attorney General
P.O. Box 85266
San Diego, CA

3Lindberg, Gunner Jay (Appellant)
San Quentin State Prison
Represented by Ronald F. Turner
Attorney at Law
5050 Laguna Blvd., Suite 112, PMB 322
Elk Grove, CA


Disposition
Aug 28 2008Opinion: Affirmed

Dockets
Dec 12 1997Judgment of death
 
Dec 15 1997Filed certified copy of Judgment of Death Rendered
  12-12-97.
Dec 15 1997Penal Code sections 190.6 et seq. apply to this case
 
Jun 30 1998Record certified for completeness
 
May 28 2002Filed:
  applt's application for appointment of counsel.. (IFP form)
May 29 2002Order appointing State Public Defender filed
  to represent appellant for the direct appeal.
Jul 1 2002Date trial court delivered record to appellant's counsel
  (3,098 pp. record) (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.) (Note: record was transmitted on 6-25-2002.)
Jul 1 2002Received:
  notice from superior court of transmittal of 3,098 pp. record to appellant's counsel on 6-25-2002.
Jul 2 2002Appellant's opening brief letter sent, due:
  January 27, 2003.
Jul 30 2002Counsel's status report received (confidential)
  from State P.D.
Oct 1 2002Counsel's status report received (confidential)
  from State P.D.
Dec 4 2002Counsel's status report received (confidential)
  from State P.D.
Jan 23 2003Request for extension of time filed
  to file appellant's opening brief. (1st request)
Jan 24 2003Extension of time granted
  to 3/28/2003 to file appellant's opening brief. The court anticiaptes that after that date, only five further extensions totaling 300 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 this schedule.
Feb 3 2003Received copy of appellant's record correction motion
  Appellant's Request for Correction and Completion of Record. (18 pp.)
Feb 4 2003Counsel's status report received (confidential)
  from State P.D.
Mar 19 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Mar 25 2003Extension of time granted
  to 5/27/2003 to file appellant's opening brief. After that date, only four further extensions totaling about 240 additional days are contemplated. Extension is granted based upon Deputy State Public Defender Ronald Turner's representation that he anticiaptes filing that brief by 1/31/2004.
Apr 4 2003Counsel's status report received (confidential)
  from State P.D.
May 22 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
May 28 2003Extension of time granted
  to 7/28/2003 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling 180 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.
Jun 4 2003Counsel's status report received (confidential)
  from State P.D.
Jul 23 2003Request for extension of time filed
  to file AOB. (4th request)
Jul 28 2003Extension of time granted
  to 9-26-2003 to file AOB. The court anticipates that after that date, only two further extensions totaling 120 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.
Aug 5 2003Counsel's status report received (confidential)
  from State P.D.
Sep 22 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Sep 25 2003Extension of time granted
  to 11/25/2003 to file appellant's opening 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 1 2003Counsel's status report received (confidential)
  from State P.D.
Nov 20 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
Nov 25 2003Extension of time granted
  to 1/26/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform the Orange County Superior Court and 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 take all steps necessary to meet it.
Dec 2 2003Counsel's status report received (confidential)
  from State P.D.
Jan 21 2004Request for extension of time filed
  to file appellant's opening brief. (7th request)
Jan 23 2004Extension of time granted
  to 3/26/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 60 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.
Feb 2 2004Counsel's status report received (confidential)
  from State P.D.
Mar 22 2004Request for extension of time filed
  to file appellant's opening brief. (8th request)
Mar 26 2004Filed:
  Supplemental declaration in support of application for extension of time to file opening brief.
Apr 1 2004Extension of time granted
  to 5/25/2004 to file appellant's opening brief. The court anticipates that after that date, only three further extensions totaling about 180 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
Apr 6 2004Counsel's status report received (confidential)
  from State P.D.
May 20 2004Request for extension of time filed
  to file appellant's opening brief. (9th request)
May 25 2004Extension of time granted
  to 7-26-2004 to file AOB. The court anticipates that after that date, only two further extensions totaling about 120 additional days will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
Jun 2 2004Counsel's status report received (confidential)
  from State P.D.
Jun 2 2004Record certified for accuracy
 
Jun 22 2004Record on appeal filed
  Clerk's Transcript 14 volumes (3,272 pp) and Reporter's Transcript 17 volumes (1,713 pp), including material under seal. Clerk's transcript includes 1,711 pp. of juror questionnaires.
Jun 22 2004Letter sent to:
  counsel advising that record on appeal, certified for accuracy, was filed this date.
Jul 20 2004Request for extension of time filed
  to file appellant's opening brief. (10th request)
Jul 22 2004Extension of time granted
  to 9/24/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Deputy State Public Public Defender Ronald Turner's representation that he anticipates filing that brief by 12/22/2004.
Aug 5 2004Counsel's status report received (confidential)
  from State P.D.
Sep 17 2004Request for extension of time filed
  to file appellant's opening brief. (11th request)
Sep 20 2004Extension of time granted
  to 11/23/2004 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy State Public Defender Ronald Turner's representation that he anticipates filing that brief by 12/22/2004.
Oct 4 2004Counsel's status report received (confidential)
  from State P.D.
Nov 17 2004Request for extension of time filed
  to file appellant's opening brief. (12th request)
Nov 18 2004Extension of time granted
  to 1/24/2005 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Ronald Turner's representation that he anticipates filing that brief by 1/24/2005. After that date, no further extension will be granted.
Dec 1 2004Counsel's status report received (confidential)
  from State P.D.
Jan 24 2005Appellant's opening brief filed
  (91,870 words; 302 pp.)
Jan 26 2005Respondent's brief letter sent; due:
  May 24, 2005
Jan 27 2005Filed:
  Supplemental declaration of service by mail of appellant's opening brief.
May 20 2005Request for extension of time filed
  to file respondent's brief. (1st request)
May 23 2005Extension of time granted
  to 7/25/2005 to file respondent's brief.
Jul 21 2005Request for extension of time filed
  to file respondent's brief. (2nd request)
Jul 26 2005Extension of time granted
  to 9/23/2005 to file respondent's brief. After that date, only one further extension totaling about 30 additional days is contemplated. Extension is granted ased upon Supervising Deputy Attorney General Rhonda L. Cartwright-Ladendorf's representation that she anticipates filing that brief by 10/21/2005.
Sep 16 2005Request for extension of time filed
  to file respondent's brief. (3rd request)
Sep 23 2005Extension of time granted
  to 10/21/2005 to file respondent's brief. Extension is granted based upon Supervising Deputy Attorney General Rhonda L. Cartwright-Ladendorf's representation that she anticipates filing that brief by 10/21/2005. After that date, no further extension will be granted.
Oct 20 2005Respondent's brief filed
  (40366 words; 126 pp. - excluding attached exhibit)
Dec 15 2005Request for extension of time filed
  to file appellant's reply brief. (1st request)
Dec 16 2005Extension of time granted
  to 2/17/2006 to file appellant's reply brief.
Feb 17 2006Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Feb 23 2006Extension of time granted
  to April 18, 2006 to file the appellant's reply brief. After that date, only one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy State Public Defender Ronald Turner's representation that he anticipates filing that brief by June 19, 2006.
Apr 17 2006Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Apr 19 2006Extension of time granted
  to June 19, 2006 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy State Public Defender Ronald Turner's representation that he anticipates filing that brief by June 19, 2006.
Jun 12 2006Request for extension of time filed
  to file appellant's reply brief. (4th request)
Jun 13 2006Extension of time granted
  to July 19, 2006 to file the appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender Ronald Turner's representation that he anticipates filing that document by July 19, 2006.
Jul 19 2006Appellant's reply brief filed
  (33,967 words; 115 pp. - excluding attached exhibit)
Jul 13 2007Motion to withdraw as counsel filed
  by the State Public Defender.
Aug 15 2007Motion for appointment of counsel filed
  Motion of attorney Ronald F. Turner for appointment as counsel for appellant.
Aug 24 2007Filed:
  supplemental declaration of service.
Aug 27 2007Filed:
  supplemental declaration of service in support of declaration and motion to withdraw as counsel of record for appellant Gunner Jay Lindberg.
Sep 12 2007Counsel appointment order filed
  appointing Ronald F. Turner as counsel for appellant for the direct appeal. (NOTE: no separate order; docket event for tracking purposes only.)
Sep 12 2007Withdrawal of counsel allowed by order
  Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant Gunner Jay Lindberg, filed July 13, 2007, is granted. The order appointing the State Public Defender as appellate counsel of record for appellant Gunner Jay Lindberg, filed May 29, 2002, is hereby vacated. Ronald F. Turner is hereby appointed as counsel of record to represent appellant Gunner Jay Lindberg for the direct appeal in the above automatic appeal now pending in this court.
Oct 3 2007Received:
  letter from atty Ronald Turner dated October 1, 2007, requesting that oral argument not be scheduled during December 2007 due to atty will be out of the country.
Oct 10 2007Lodged:
  Exhibits: Municipal Court-Peoples 1-5, Court's 2-6, 8, 9 & 11a, People's 1, 2a & 2b, 3=10, 4=14, 5-9, 11-13, 15, 19, 21, 23-29, 34-54, 56-58, 62-73, 75-86. Defense A-C, D1 & D2, E-K, Court's 11.
Mar 10 2008Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, 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.
Apr 30 2008Case ordered on calendar
  to be argued on Tuesday, June 3, 2008, at 2:00 p.m., in Los Angeles
May 6 2008Received:
  letter from respondent, dated May 5, 2008, advising that Deputy Attorney General Adrianne S. Denault will argue the case for respondent.
May 12 2008Received:
  appearance sheet from attorney Ronald Turner, indicating 45 minutes for oral argument for appellant.
May 12 2008Received:
  appearance sheet from Deputy Attorney General Adrianne S. Denault, indicating 30 minutes for oral argument for respondent.
May 14 2008Filed:
  appellant's focus issue letter, dated May 13, 2008.
May 28 2008Filed:
  respondent's focus issue letter, dated May 27, 2008.
Jun 3 2008Cause argued and submitted
 
Jun 18 2008Compensation awarded counsel
  Atty Turner
Jul 10 2008Compensation awarded counsel
  Atty Turner
Aug 27 2008Notice of forthcoming opinion posted
 
Aug 28 2008Opinion filed: Judgment affirmed in full
  Opinion by Moreno, J. -----joined by George, C.J., Baxter, Werdegar, Chin, and Corrigan, JJ. Concurring and Dissenting Opinion by Kennard, J
Sep 11 2008Rehearing petition filed
  by appellant. (2,450 words; 9 pp.)
Sep 22 2008Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 26, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
Oct 16 2008Compensation awarded counsel
  Atty Turner
Nov 12 2008Rehearing denied
  The petition for rehearing is denied.
Nov 12 2008Remittitur issued (AA)
 
Nov 25 2008Exhibit(s) returned
  to superior court.
Dec 1 2008Received:
  acknowledge of receipt for remittitur.
Dec 5 2008Received:
  acknowledgment of receipt for exhibits.
Feb 11 2009Received:
  from appellant, copy of motion for leave to proceed in forma pauperis on petition for writ of certiorari (23 pp. excluding appendices)
Mar 11 2009Compensation awarded counsel
  Atty Turner
Apr 20 2009Received:
  letter from USSC, dated April 16, 2009, advising that a petition for writ of certiorari was filed on February 9, 2009 and place on the docket April 16, 2009 as No. 08-9800.
May 18 2009Received:
  copy of brief in opposition to petition for writ of certiorari (10 pp.)
Jun 15 2009Certiorari denied by U.S. Supreme Court
 
Jun 17 2009Related habeas corpus petition filed (post-judgment)
Appellant: Lindberg, Gunner Jay   by Michael Millman, Executive Director of the California Appellate Project, San Francisco
Jul 29 2009Compensation awarded counsel
  Atty Turner

Briefs
Jan 24 2005Appellant's opening brief filed
 
Oct 20 2005Respondent's brief filed
 
Jul 19 2006Appellant'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
Jan 4, 2009
Annotated by diana teasland

Background:

Thien Minh Ly

On January 28, 1996, victim Thien Minh Ly, a 24-year old Vietnamese man, left his parent’s home in Tustin to rollerblade on the tennis courts at nearby Tustin High School. Ly did not return home. His body was discovered the next day. Ly suffered multiple stab wounds to his neck, chest, and arm. In addition, he had been stabbed 14 times in the heart.

Gunner Jay Lindberg

Defendant is a member of the white power movement, having numerous links to White supremacist organizations and the Aryan Movement. He is also a proud member of a gang known as the Insane Criminal Posse (ICP).

Defendant’s Confession - The February 23rd Letter

On February 29, 1996, Walter Ray Dulaney IV, defendant’s cousin and fellow member of the white power movement, received the following handwritten letter from the defendant in which defendant admitted to committing the murder of Thien Minh Ly:

“Oh, I killed a jap a while ago. I stabbed him to death at tustin High school I walked up to him Dominic was with me and I seen this guy Roller blading and I had a knife. We walked in the tennis court where he was I walked up to him, Dominic was right there. I walked right up to [unintelligible] him and he was scared I looked at him and said, ‘oh, I thought I knew you’ and he got happy that he wasn’t gona get jumped. then I hit him with one of my mother fuckers and he feel on the ground and he said in a very low voice ‘what the fuck’ and ‘you can have whatever I got.’ I have nothing only a key. You can have it’ then I said ‘you got a car,’ oh I pulled the knife out a butcher knife! and he said ‘no’ then I put the knife to his throught and asked him ‘Do you have a car.’ And he grabed my hand that I had the knife in and looked at me, trying to get a discription of me so I stomped on his head 3 times and each time said ‘stop looking at me’ then he was kinda knocked out Dazzed then I stabbed him in the side about 7 or 8 times he rolled over a little so I stabbed his back about 18 or 19 times then he layed flat and I slit one side of his throught on his jugular vain. Oh, the sounds the guy was making were like uhhh then Dominic said, ‘do it again’ and I said ‘I already did, Dude’ ‘ya, do it again’ so I cut his other juggular vain, and Dominic said ‘kill him do it again.’ I said, ‘he’s already dead’ Dominic said, ‘stab him in the heart.’ So I stabbed him about 20 to 21 times in the heart and we took off. . . . [T]hen I wanted to go back and look, so we did and he was dieing just then taking in some bloody gasps of [illegible] air so I nudged his face with my shoe a few times then I told Dominic to kick him, so he kicked the fuck out of his face and he still has blood on his shoes all over [smiley face] then I ditched the knife, after whiping it clean onto the side of the I5 freeway [smiley face] here’s the clippings from the news paper and we were on all the news channels 2/11 Insane Loc in having a ball in tustin wish you were here. . . .”
(Errors in original.)

Defendant subsequently phoned Delaney and told him that he killed Ly “for the racial movement.”

Arrest and Trial:

I. Prosecution’s Guilt Phase Case

Defendant was arrested on March 2, 1996. He admitted having written the February 23rd letter, but denied having committed the crime. He claimed that he wrote the letter to impress his cousin, and had made up the details. He claimed that he had heard about the crime from news reports.

A. Forensic Evidence

Prosecution introduced a bloody glove and t-shirt found in defendant’s home. DNA samples matched the blood of both the defendant and the victim.

B. Prior Acts Evidence

Prosecution introduced evidence of uncharged robberies and attempted robberies defendant had committed
in 1990.

C. Evidence Offered to Support the Hate-murder Special-circumstance Allegation

Prosecution offered evidence of anti-Asian statements defendant made to co-workers prior to his arrest as well as oral and written statements made to other inmates while in the Orange County Jail awaiting trial in this case. In these statements defendant referred to Asians using various epithets and derogatory terms and repeatedly affirmed his belief in white supremacy.

D. Expert Testimony

Huntington Beach Police Department Sergeant Ronald Miller testified for the prosecution as an expert on
White supremacy. He defined the term ‘white supremacist’ and identified the basic tenets of the movement.

II. Defendant’s Guilt Phase Case

Walter Ray Dulaney III, Robert Dulaney’s father, testified that he had known defendant all of defendant’s life and have never heard him utter any racial slurs or engage in any behavior that suggested defendant was involved in any white supremacist organizations. Defendant’s girlfriend and co-worker testified that she never heard defendant use any racial slurs or call Asians by any derogatory names.
A private investigator retained by the defense testified that in his estimation, someone standing outside the tennis courts at Tustin High School in similar conditions as existed at the time of the murder would not be able to not distinguish racial features of the victim.

III. Prosecution Penalty Phase Case

Prosecution offered evidence of prior assaults committed by a defendant, including an assault with a
shotgun as well as one carried out while defendant was held in Juvenile Detention Center.
Prosecution also offered victim impact testimony from Thien Minh Ly’s Brother, Thai Ly.

IV. Defendant’s Penalty Phase Case

Defense offered testimony from a Marine Corps Sergeant Russell Hayes, with whom defendant briefly lived.
Hayes was not aware of any racist behavior by defendant.
Defense also introduced testimony of a clinical psychologist, who testified that defendant suffered from personality disorder that caused defendant to engage in antisocial behavior, victimize and violate the rights of others. Without opining that the murder was drug induced, the psychologist diagnosed defendant as being dependant on drugs.

Issues on Appeal:

(1) Guilt Phase Issues
a. Trial Court Error in Admitting Evidence of Defendant’s Two Prior Uncharged Robberies
b. Sufficiency of Evidence of First Degree Felony Murder and the Robbery Special Circumstances
c. Misleading Instruction on Evidence of Other Crimes
d. Sufficiency of Evidence of the Hate-murder Special Circumstance
e. Expert Testimony on the Subject of White Supremacy
(2) Penalty Phase Issues
a. Instructions to the Jury
b. Constitutional Challenges to California’s Death Penalty
c. International Law

Analysis:

(1) Guilt Phase Issues

a. Trial Court Error in Admitting Evidence of Defendant’s Two Prior Uncharged Robberies

Admission of evidence of uncharged robberies committed by defendant was properly admitted for the purpose of proving defendant’s intent to the rob the victim.
Defendant contested the special circumstance of murder committed during the commission of a robbery. This presented an issue of material fact as to the defendant’s intent when he murdered Ly.
Although Evidence Code §1101 generally prohibits the admission of a prior criminal act against a defendant “when offered to prove his or her conduct on a specified occasion,” such evidence is admissible when relevant to prove a fact in issue, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or the existence of a common design or plan.
The evidence of prior robberies was logically probative of whether defendant intended to rob the victim. The murder shares numerous distinctive common features with the prior uncharged robberies – vulnerable victim who did not fight back who is assaulted regardless of whether he cooperates, use of a companion to assist in commission of the crime, and defendant as the aggressor. These similarities could therefore reasonably assist the jurors in determining whether defendant assaulted the victim in an attempt to rob him.
Further, the probative value was not substantially outweighed by the potential for undue prejudice – Evidence Code §352. The uncharged assaults were not inflammatory relative to the brutal manner in which defendant murdered the victim.

Written by Matthew Levy

Jan 10, 2009
Annotated by diana teasland

Written by Patricia Pei

A. Prosecution Guilt Phase Case

1. The Murder of Thien Minh Ly

Defendant concedes that the prosecution proved he murdered Ly on the Tustin High School tennis courts on January 28, 1996.
The evidence showed that on January 28, 1996, between 8:30 and 9:00 p.m., Thien Minh Ly left his family’s home in Tustin wearing his rollerblades and leaving behind his wallet and car keys. When Ly did not return home, his family telephoned the police the next day.
On the same morning, around 7:45 a.m., Frank Armenta, a groundskeeper at Tustin High School, noticed someone wearing rollerblades lying on one of the tennis courts. As he approached, Armenta noticed the person was not breathing and saw blood on his shirt and a cut on his neck. He asked two nearby school employees to call the police.
When the police responded, they found Ly dead. Next to Ly’s body, they recovered a cap and a single key on a key ring. The key fit the locks at Ly’s residence.
Ly had suffered multiple injuries. A pattern contusion (i.e., having “some pattern like linear marking”) and abrasion comprising an area about five inches by four inches appeared on the right side of Ly’s face, extending from his forehead to his right cheek and ear. A contusion and an abrasion appeared on the left side of Ly’s forehead, and a contusion appeared on his mid-nose area and below his left eye. Redness was visible on his left cheek. Ly had suffered five and a half-inch and three and a half-inch slash wounds on the right and left sides of his neck, respectively. Each of these wounds had irregular edges, suggesting the perpetrator did not inflict a single wound, but probably cut and then extended the cut. The [3]slash wounds to Ly’s neck had been inflicted close in time to his death but not post mortem. Ly had suffered multiple deep stab wounds on the right and left sides of his chest that penetrated his internal organs, linear abraded areas that were consistent with being caused by the pulling of a knife from a deep penetrating wound, stab wounds on his right upper arm, a stab wound in his abdominal area, and an abrasion on his right hand. Some of the chest wounds penetrated through the body. Ly had suffered about 22 wounds to his chest and abdominal areas, some inflicted from the front and some from the back. Each wound had been inflicted by a single-bladed knife or sharp object with a blade about an inch to an inch and a quarter in width. The maximum depth of penetration was about four and one-half inches. Ly had been stabbed about 14 times in the heart. The multiple stab wounds that perforated Ly’s heart, both lungs, diaphragm, liver, duodenum, and kidney had caused Ly to bleed to death.

2. Discussion

On appeal, defendant first claims the trial court erred by allowing Sergeant Miller to testify that written and printed material found in defendant’s bedroom, including letters written by defendant before and after Ly’s murder, referred to White supremacist organizations and espoused White supremacist beliefs. Defendant asserts that Miller’s testimony should have been restricted to identifying the organizations listed in defendant’s Bible or on the “Pro White Organizations” list, and that jurors were capable of recognizing and understanding any White supremacist references or overtones in the writings and printed material.
A trial court’s decision to admit expert testimony is reviewed for abuse of discretion. (People v. Prince (2007) 40 Cal.4th 1179, 1222.) We conclude for the reasons discussed below that the trial court did not abuse its discretion by admitting this testimony.
First, although expert testimony is generally inadmissible on topics “so common” that jurors of ordinary knowledge and education could reach a conclusion as intelligently as the expert, an expert may testify on a subject about which jurors are not completely ignorant. (People v. Prince, supra, 40 Cal.4th at p. 1222, citing People v. McDonald (1984) 37 Cal.3d 351, 367 (overruled on another ground in People v. Mendoza (2000) 23 Cal.4th 896, 914).) In determining the admissibility of expert testimony, “the pertinent question is whether, even if jurors have some knowledge of the subject matter, expert opinion [56]testimony would assist the jury.” (People v. Prince, supra, 40 Cal.4th at p. 1222; Evid. Code, § 801, subd. (a).)
Here, the challenged evidence was relevant to establish defendant’s state of mind at the time he killed Ly and whether defendant killed Ly because of his “race, color, religion, nationality, or country of origin.” (§ 190.2, subd. (a)(16).) Although some jurors may have possessed general knowledge of the subject of White supremacy, Miller’s testimony nonetheless explained in some detail that a White supremacist is a racist who believes the White race is superior to all other races and is anti-Semitic, “label[ing] the Holocaust as a Jewish trick to garner support and sympathy for the Jews throughout the world.” Without the benefit of the expert’s testimony, the jurors might not have understood that symbols often associated with Nazis that adorned some of the items found in defendant’s bedroom (e.g., the Nazi swastikas and the “SS” lightning bolts on defendant’s box) and phrases that were contained in defendant’s letters and other written material (e.g., “Pure White Organizations,” “Stay White,” “I run the W.A.R.”) were used by white supremacists to advocate their beliefs. Nor would the jurors likely have recognized the names of the white supremacist leaders (e.g., Brigadier General Jack Mohr) and organizations (Church of Jesus Christ Christian, also known as the Aryan Nations) noted in the materials seized. Sergeant Miller’s testimony could assist jurors by providing them with a basis of information about white supremacist beliefs and tenets from which they could determine, based on the material seized from defendant’s bedroom, that defendant subscribed to white supremacist beliefs and tenets.
Ultimately, this evidence could assist the jury in determining defendant’s motive for killing Ly. Thus, the expert’s testimony demonstrated more than defendant’s abstract beliefs about White supremacy and was relevant to the jury’s determination of whether the prosecution proved the hate-murder special [57]circumstance. (Cf. Dawson v. Delaware (1992) 503 U.S. 159, 164–165 [evidence of defendant’s membership in Aryan Brotherhood that was not linked to the crime committed and revealed only the defendant’s abstract beliefs was irrelevant to his capital sentencing hearing].) Under these circumstances, we cannot conclude Sergeant Miller’s testimony was of no assistance to the jurors (Evid. Code, § 801, subd. (a)), or would contribute nothing to the jury’s common fund of information. (People v. Farnam (2002) 28 Cal.4th 107, 163.)
A second basis for upholding the trial court’s decision admitting Miller’s testimony on white supremacy culture and beliefs is that we have admitted expert testimony in analogous circumstances. (See, e.g., People v. Gonzalez (2006) 38 Cal.4th 932, 944–949 [approving the admission of expert testimony regarding gang culture and witness intimidation by gang members]; People v. Ochoa (2001) 26 Cal.4th 398, 438 [approving the admission of expert testimony to explain the significance of the defendant’s gang-related tattoos]; People v. Gardeley (1996) 14 Cal.4th 605, 617 [recognizing that “[t]he subject matter of the culture and habits of criminal street gangs” satisfies the criterion of admissible expert testimony under Evidence Code section 801]; People v. Champion (1995) 9 Cal.4th 879, 922 [approving admission of juvenile gangs expert’s testimony on defendants’ gang membership as relevant to establish their identities as perpetrators of the charged offenses]; see also People v. Olguin (1994) 31 Cal.App.4th 1355, 1370 [“The use of expert testimony in the area of gang sociology and psychology is well established”].)
Numerous decisions in federal and other state cases also have upheld the admission of expert testimony to explain the culture and beliefs of White supremacy groups and gangs and to interpret tattoos, symbols, and graffiti associated with these groups when such evidence was relevant to the issues at trial. (See U.S. v. Sparks (8th Cir. 1991) 949 F.2d 1023, 1025–1026 [expert testimony [58]explaining the meaning of gang graffiti and hand signs depicted in the photographs seized from house in which the defendant was arrested was properly admitted and relevant to establish the defendant’s gang affiliation and for impeachment]; U.S. v. Skillman (9th Cir. 1990) 922 F.2d 1370, 1374 & fn. 4 [expert testimony describing “skinheads” as “ ‘a neo-Nazi type of group… [that] espouse racial purity and white power, and… tend to be violent’ ” was properly admitted because it tended to establish the defendant’s “racial animus,” an element of the charged offense, intimidating or interfering with a person’s housing rights because of race or color]; U.S. v. Mills (11th Cir. 1983) 704 F.2d 1553, 1559–1560 [the trial court properly admitted the testimony of a “quasi expert” on the organization, history, and activities of the Aryan Brotherhood, a White supremacist prison gang, as relevant to the defendant’s motive and the circumstances of the alleged AB contract killing]; People v. Skinner (Colo. App. 2002) 53 P.3d 720, 722, 724 [the trial court did not abuse its discretion by admitting expert testimony to explain that the defendant’s tattoo could be viewed as a symbol of white supremacy beliefs]; People v. Wagner (N.Y.App.Div. 2006) 27 A.D.3d 671, 672, 811 N.Y.S.2d 125,126–127 [the trial court properly permitted an expert on hate crimes and the meaning of tattoos to testify with respect to the defendant’s white supremacist tattoos; the tattoos were relevant to the defendant’s motive and intent to commit second degree aggravated harassment]; Mason v. State (Tex. Crim. App. 1995) 905 S.W.2d 570, 577 [a prison gang expert’s testimony that the Aryan Brotherhood is a White supremacist organization that, among other things, recruits White inmates and engages in contract killings and assaultive behavior was properly admitted as relevant to the issue of the defendant’s future dangerousness]; State v. Campbell (Wn.Ct.App. 1995) 78 Wn.App. 813, 823 [901 P.2d 1050, 1055–1056] [the trial court properly admitted the expert gang testimony to explain gang terminology, gang symbols, and the organizational structure and [59]history of gangs as relevant to show the defendant’s premeditation, intent, and motive to commit the murders].)
In addition, the United States Supreme Court has held that evidence of racial intolerance and subversive advocacy may properly be considered in a capital sentencing proceeding when such evidence is relevant to the issues involved. (Dawson v. Delaware, supra, 503 U.S. at p. 164.) The high court suggested that such evidence properly could be adduced by expert testimony. (Id. at pp. 165, 168.)
Defendant claims that Sergeant Miller’s testimony that White supremacists “are also quite often Anti-semitic, even to the point that they label the Holocaust as a Jewish trick to garner support and sympathy for the Jews throughout the world” was irrelevant and inadmissible because, he asserts, Ly was not Jewish. As a preliminary matter, we agree with respondent that defendant forfeited this claim because, although defendant objected to the admission of the expert’s testimony as a whole, he failed to object specifically on the ground he now advances and thereby deprived the trial court an opportunity to make a fully informed ruling on the issue. (Evid. Code, § 353; see, e.g., People v. Geier (2007) 41 Cal.4th 555, 609–611 [the defendant’s broad pretrial objection to the admissibility of DNA evidence did not preserve for appeal his specific claim that the trial court erroneously permitted the DNA expert to testify to the frequency of the genetic profile among only a single racial group rather than for two additional major racial and ethic groups for which DNA databases existed].) In any event, defendant’s contention is without merit.
Sergeant Miller described the White supremacists’ two tenets as their belief in the superiority of the White race above all other races and their particular hatred of Jews, who they believe fabricated the Holocaust to garner worldwide sympathy and support. The expert’s comments regarding the White supremacists’ hatred [60]towards Jews were relevant to explain these tenets and their origins and to provide the jurors with a basis of information for understanding certain symbols found in defendant’s bedroom (e.g., the “SS” lightning bolts) and determining whether defendant’s murder of Ly was motivated by racial hatred. Whether or not Ly was Jewish, these comments were relevant on the general subject of White supremacy. Defendant’s complaint concerns the weight of this portion of Miller’s testimony, not its admissibility.
Defendant also claims that Sergeant Miller’s testimony regarding Tom Metzger, whom Miller identified as the leader of the White Aryan Resistance, was irrelevant because Metzger was not on trial. According to Miller, however, the “Pro White Organizations” list found in defendant’s Bible contained the name “White Aryan Resistance,” the “very violent” organization led by Metzger. Defendant also referred to the White Aryan Resistance in letters he had written to Delaney over one year before he killed Ly. In any event, the expert’s remarks concerning Metzger gave the jurors an overview of White supremacy culture and beliefs in order to place in context the White supremacist references found in the seized material. This concern, too, affects the weight of this evidence, not its admissibility.
Next, defendant claims the trial court erred in permitting Sergeant Miller to give his opinion that defendant was a White supremacist, an issue properly reserved to the trier of fact. He asserts the expert was less informed than the jurors on this point because they could also consider additional relevant evidence on this point, including the testimony of other witnesses.
Evidence Code section 805 provides that “[t]estimony in the form of an opinion that is otherwise admissible is not objectionable because it embraces the ultimate issue to be decided by the trier of fact.” (See People v. Prince, supra, 40 Cal.4th at pp. 1226–1227 [an expert on crime scene analysis and “signature [61]crimes” testified that all six murders were committed by the same person].) We cannot say that the trial court abused its discretion in finding Sergeant Miller’s opinion that defendant was a White supremacist would be of assistance to the jury in evaluating the evidence and determining whether the prosecution had proved the charged offenses and the truth of special circumstance allegations. The expert stated no opinion as to defendant’s guilt or the truth of the special circumstances. His opinion that defendant was a White supremacist did not bind the jurors on this point or preclude them from considering other relevant evidence. The trial court instructed the jurors that they were the “sole judges” of the credibility of a witness (CALJIC No. 2.20), that they should consider all the evidence on which the proof of any fact depends (CALJIC No. 2.27), and that they were free to determine the weight, if any, to accord an expert’s opinion upon considering the basis for the opinion (CALJIC No. 2.80).
Defendant additionally contends that the probative value of Sergeant Miller’s testimony was outweighed by its prejudicial effect (Evid. Code § 352) and that its admission rendered his trial unfair in violation of his right to due process. He asserts the expert’s opinion that he was a White supremacist unfairly poisoned the jury against him because it depicted him as an anti-Semite who wanted to exterminate Jews, minorities, homosexuals, and gypsies. This opinion, he claims, also equated him with Adolph Hitler and “the worst excesses of the Nazi regime.” Defendant further complains that the expert’s description of a photograph of “a white man with a double-barrel shotgun blasting a minority with a couple of rounds” in a White Aryan Resistance publication was prejudicial.
Evidence Code section 352 permits a trial court in its discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission would create a substantial danger of undue prejudice. We review a trial court’s decision whether to exclude evidence pursuant to Evidence Code [62]section 352 for abuse of discretion. (People v. Cox (2003) 30 Cal.4th 916, 959.) For this purpose, “ ‘prejudicial’ means uniquely inflammatory without regard to relevance.” (People v. Zambrano (2007) 41 Cal.4th 1082, 1138.) “Evidence is substantially more prejudicial than probative [citation] if… it poses an intolerable ‘risk to the fairness of the proceedings or the reliability of the outcome’ [citation].” (People v. Waidla (2000) 22 Cal.4th 690, 724.)
Here, the admission of Sergeant Miller’s testimony was probative of defendant’s motive and intent in committing the murder and, thus, was directly relevant to the jury’s determination of the murder charge and hate-murder special-circumstance allegation. We do not view as prejudicial either the expert’s general overview of the subject of White supremacy or his specific testimony that White supremacists harbor a particular hatred of Jews, associate with Nazis and use Nazi-related symbols (e.g., “SS” lightning bolts and swastika) to promote their racist beliefs, and regularly feature racist illustrations in their publications (e.g., the depiction of a White man “blasting a minority” with a double-barrel shotgun). As defendant has argued, many of the items found in defendant’s bedroom and the letters confiscated while he was in jail awaiting trial themselves clearly conveyed messages of racial hatred and anti-Semitism. For example, jurors reasonably could find defendant harbored a hatred of Blacks and Jews based on evidence he displayed in his bedroom the racist “Martin Luther King” poster, possessed an actual or replica of a Nazi helmet with a swastika symbol across the front, and penned a letter to Dulaney before Ly’s death that contained a swastika above the words “kill-kill-kill-kill-kill-kill-kill” followed by “Them all!” Evidence is not unduly prejudicial “merely because it strongly implicates a defendant and casts him or her in a bad light.” (People v. Robinson (2005) 37 Cal.4th 592, 632.) The trial court properly instructed the jury not to be influenced by passion, sympathy, or prejudice and to conscientiously consider and weigh the evidence in applying [63]the law. Under these circumstances, where other, properly admitted evidence plainly communicated to the jury defendant’s odious attitudes, the trial court properly found the probative value of the expert’s testimony was not substantially outweighed by its prejudicial effect.
Finally, assuming without deciding that defendant’s additional constitutional claims were preserved (see People v. Partida (2005) 37 Cal.4th 428, 433–434), they are without merit for the same reasons we have rejected defendant’s state-law claims. (See People v. Prince, supra, 40 Cal.4th at p. 1229; People v. Kraft, supra, 23 Cal.4th at p. 1035.)

III. Penalty Phase

A. CALJIC No. 8.85

Defendant contends that CALJIC No. 8.85, which describes the [64]aggravating and mitigating factors the jury may consider in determining penalty, is constitutionally flawed because (1) the instruction fails to inform the jury which factors are mitigating and which factors are aggravating, and (2) the use of the modifiers “extreme” and “substantial” in the instruction acts as a barrier to the jury’s consideration of mitigation. We previously have rejected these challenges. (People v. Ramirez, supra, 39 Cal.4th at p. 469 [“instructions in the language of CALJIC No. 8.85 do not violate the Eighth and Fourteenth Amendments by failing to delete inapplicable sentencing factors or delineate between aggravating and mitigating circumstances”]; People v. Perry (2006) 38 Cal.4th 302, 319 [the terms “extreme” and “substantial” do not unconstitutionally limit the mitigating factors the jury may consider]; see also People v. San Nicolas (2004) 34 Cal.4th 614, 675–676 [CALJIC No. 8.85 does not preclude jurors from considering lesser mental or emotional disturbance as a mitigating factor in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments].) Defendant offers no persuasive reason to reconsider our prior decisions.

B. CALJIC No. 8.88

Defendant contends various aspects of CALJIC No. 8.88 violated his [65]rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the federal Constitution and corresponding provisions of the California Constitution. As defendant concedes, we previously have considered and rejected each of these arguments, and do so again now as defendant offers no persuasive reason to reconsider our prior decisions. We thus hold that CALJIC No. 8.88: (1) is not unconstitutional for failing to advise the jury that if the mitigating circumstances outweigh those in aggravation, it is required to return a sentence of life without the possibility of parole (People v. Geier, supra, 41 Cal.4th at p. 619); (2) is not unconstitutional for failing to inform the jury that it may return a sentence of life without the possibility of parole even in the absence of mitigating evidence (People v. Moon (2005) 37 Cal.4th 1, 43); (3) is not unconstitutionally vague in using the “so substantial” standard for comparing mitigating and aggravating [66]circumstances (People v. Geier, supra, 41 Cal.4th at p. 619); and (4) is not unconstitutional because it requires the jury to decide whether the death penalty is “warranted” rather than “appropriate” (People v. Carey (2007) 41 Cal.4th 109, 137).
Defendant further contends that, as applied in this case, CALJIC No. 8.88 misled the jury about its discretion to impose a sentence of life without possibility of parole, even if it determined the circumstances in aggravation outweighed those in mitigation or found no mitigation whatsoever. In support, he relies on a letter purportedly written by two jurors that was filed on October 16, 1997, after the jury returned its death verdict and before defendant was sentenced. This letter was not admitted into evidence at any proceeding. The circumstances under which it was filed, and by which party, if any, do not appear on the record. There is also nothing in the record to indicate the letter had been authenticated. (See Continental Baking Co. v. Katz (1968) 68 Cal.2d 512, 525 [generally, a document must be authenticated in some manner before it is admissible in evidence]; Evid. Code, §§ 1400, 1401.) In any event, the portions of the letter on which defendant relies describe the mental processes by which these jurors, and purportedly other jurors, reached the penalty verdict. Thus, even if the letter had been properly authenticated and admitted into evidence (e.g., at a hearing on defendant’s motion for a new trial) we are precluded from considering such evidence on appeal. “ ‘[A] verdict may not be impeached by inquiry into the juror’s mental or subjective reasoning processes, and evidence of what the juror ‘felt’ or how he understood the trial court’s instructions is not competent.’ ” (People v. Morris (1991) 53 Cal.3d 152, 231, quoting People v. Sutter (1982) 134 Cal.App.3d 806, 819; accord, People v. Steele (2002) 27 Cal.4th 1230, 1261; Evid. Code, § 1150, subd. (a).)
[67]
C. Instruction on the Meaning of a Sentence of Life Without Possibility of Parole

Defendant contends the trial court was required to instruct the jury that a sentence of life without the possibility of parole meant that defendant would never be considered for parole. He acknowledges this court previously has rejected this argument (see People v. Cox, supra, 30 Cal.4th at p. 967), but asks that we reconsider these decisions in light of Simmons v. South Carolina (1994) 512 U.S. 154, Shafer v. South Carolina (2001) 532 U.S. 36, and Kelly v. South Carolina (2002) 534 U.S. 246. We have considered the impact of these decisions by the high court in rejecting this argument. (People v. Wilson (2005) 36 Cal.4th 309, 352–355; People v. Smith (2003) 30 Cal.4th 581, 635–636; People v. Prieto, supra, 30 Cal.4th at pp. 269–271.) Defendant offers no persuasive reason to revisit our prior decisions.

D. Miscellaneous Constitutional Challenges to California’s Death Penalty Statute

Defendant contends California’s death penalty law is unconstitutional on several grounds. We have previously rejected these arguments, and defendant fails to persuade us to reconsider our prior decisions.
California’s death penalty scheme adequately narrows the class of death-eligible offenders. (People v. San Nicolas, supra, 34 Cal.4th at p. 676.)
California’s use of capital punishment as an assertedly “regular form of punishment” for substantial numbers of crimes, rather than as an extraordinary punishment for extraordinary crimes, does not offend the Eighth and Fourteenth Amendments by violating international norms of human decency. (People v. Leonard (2007) 40 Cal.4th 1370, 1430.)
Neither the federal nor state Constitution requires intercase proportionality review for death penalty cases. (People v. Williams (2006) 40 Cal.4th 287, 338; see Pulley v. Harris (1984) 465 U.S. 37, 50–51.)
[68]
E. International Law

Defendant contends that California’s death penalty scheme and his individual death sentence violate article VII of the International Covenant of Civil and Political Rights and the Eighth Amendment of the United States Constitution by violating “international human rights norms” and “evolving standards of decency.”
We have consistently rejected this claim. (People v. Geier, supra, 41 Cal.4th at p. 620; People v. Leonard, supra, 40 Cal.4th at p. 1430; People v. Ramirez, supra, 39 Cal.4th at p. 479; People v. Panah (2005) 35 Cal.4th 395, 500–501; People v. Hillhouse (2002) 27 Cal.4th 469, 511; People v. Ghent (1987) 43 Cal.3d 739, 778–779.) Defendant fails to persuade us to reconsider these decisions.

F. Cumulative Error

Defendant contends that the cumulative effect of the guilt and penalty phase errors requires reversal of his conviction and death sentence even if no single error compels reversal. Because we have either rejected on the merits defendant’s claims of error or have found any assumed errors to be nonprejudicial, we reject his contention. We likewise reject defendant’s contention with respect to the cumulative effect of any assumed errors.