Filed 11/15/07
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S055130
v.
EDWARD PATRICK MORGAN,
) Orange
County
Defendant and Appellant.
Super. Ct. No. 94ZF0036
Defendant Edward Patrick Morgan appeals from a judgment of the Orange
County Superior Court imposing the death penalty following his convictions for
first degree murder (Pen. Code, § 187),1 kidnapping (§ 207, subd. (a)), and
unlawful penetration with a foreign object (§ 289). The jury also found true
special circumstance allegations that defendant committed the murder while
engaged in the commission or attempted commission of (1) a kidnapping (§ 190.2,
subd. (a)(17)(ii)), and (2) the unlawful penetration with a foreign object (id., subd.
(a)(17) xi)). This appeal is automatic. (§ 1239, subd. (b).)
I. FACTS
In the early morning hours of Friday, May 20, 1994,2 defendant pulled and
then dragged 23-year-old Leanora Wong to the far end of an enclosed area in the
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 All calendar references to dates are to the year 1994 unless otherwise indicated.
1
parking lot of Bergen Brunswig Corporation, a company located behind the
Australian Beach Club (the Club) in the city of Orange. The two had met for the
first time in the Club that night. Once defendant and Wong were inside the
enclosure, defendant twice inserted a sharp serrated object into Wong’s genital
area, choked or strangled her, hit her head against concrete, and beat her
repeatedly. Wong went into traumatic shock and died due to a combination of all
of her injuries and the loss of blood.
Hours earlier, at approximately 10:30 p.m. on May 19, defendant and his
friend Robert Bogard were at the Club when defendant grabbed a waitress by her
upper arm. Defendant pulled her towards him and squeezed her arm “really hard”
as he told his friends she was “the most beautiful girl” and that he was going to
take her “to Vegas tonight and marry her.” She pushed defendant away because
he was hurting her and reported the incident to the Club bouncers.
About the same time, Wong and her friend Rebecca Klein arrived at the
Club in Wong’s car. About 11:45 p.m., Wong and Klein were walking through
the Club when defendant grabbed Wong’s arm and pulled her to him. Klein heard
Wong and defendant talking and exchanging their names and ages. The waitress
who had been grabbed earlier by defendant noticed him showing pictures in a
wallet to a young Asian woman who met Wong’s description. Defendant
repeatedly leaned over to Klein and said, “I really like your friend.”
At approximately 1:15 a.m., Wong called out Klein’s name. Klein looked
up and saw defendant and Wong exiting the Club. Defendant “had a hold of both
of her arms,” but it appeared to Klein that Wong was leaving voluntarily.
Immediately thereafter, Klein said goodbye to other friends and went outside. She
expected to find Wong there because they had agreed neither would leave the Club
without the other. Alarmed that Wong was not standing outside the Club’s door,
Klein searched for her “everywhere,” including in cars parked nearby. She sought
2
the help of her friends and the Club’s security guard. Unable to locate Wong and
concerned for Wong’s safety, Klein left a note on Wong’s car telling her to call
when she got home. Klein then went home and called the police.
At the time, defendant was living at Bogard’s residence, sleeping in the
living room. Bogard had driven defendant to the Club that evening. Sometime
after 1:30 a.m., Bogard left the Club after unsuccessfully searching for defendant
to give him a ride home.
Bergen Brunswig’s security cameras captured images of Wong and
defendant from 1:23 a.m. to 1:41 a.m. on the morning of the murder. When first
seen, the two appear to be walking side by side as they entered the north gate
entrance to the company’s parking lot (the lot). A still frame from the security
camera videotape showed defendant and Wong six seconds later. The two had
moved approximately four or five feet further into the lot. Their relative positions
had changed. Defendant was continuing to walk south, away from the Club, but
Wong now was behind him. Her lower body appeared to be trying to pull away
from defendant. Her right arm was extended forward and appears to be on
defendant’s bent right arm. Defendant’s left arm is not visible, but defendant
concedes the photograph “suggests [he] is holding onto some part of Ms. Wong’s
body.” Ten minutes later, the videotape showed defendant and Wong3
approaching a short flight of stairs that led from the lot up into a concrete
enclosure. One minute later, a camera showed defendant leaning over Wong at
the foot of those stairs. Two minutes later, it showed defendant standing above
Wong, walking backwards, and dragging her with him. The camera caught
3 Although some of the photographs show shadows or unidentifiable individuals
near or inside the enclosure, we refer to the individuals as defendant and Wong
because defendant concedes he killed Wong inside the enclosure.
3
defendant leaning against an air conditioning unit in the enclosure, leaving and
returning to the enclosure three times, and finally walking away from the area near
where Wong’s body was located.
Wong’s body was discovered at approximately 3:30 a.m. on May 20.
Three six-foot high concrete walls surrounded the enclosure in which Wong was
found. The stairs leading to the enclosure were at its northwest corner. Wong’s
body was in the southeast corner, behind the air conditioning unit that filled the
center of the enclosure. The distance between the point inside the north gate
where defendant can be seen on a photograph taken from the security videotape in
front of Wong and possibly pulling her in the direction of the stairs leading to the
enclosure and the foot of the stairs was 208 feet. The distance from the foot of the
stairs to Wong’s body was 37 feet.
Wong had been “beaten very badly” about her face. Her bra was pushed
up, her breasts were exposed, and her jeans and underpants were pulled down to
just above her knees so that “her vaginal area was exposed.” Her underpants were
soaked with blood. Pools of blood underneath her buttocks, as well as blood
smears and streaks on and near her body, revealed that Wong had been turned
from her stomach onto her back at some point and that her bloody hair had
dragged across the south wall. Boot prints on Wong’s body and in the blood on
the concrete floor in the enclosure had a pattern consistent with the boots that
defendant was wearing at the Club. One of the boot print bruises was above
Wong’s right breast.
Scuff marks consistent with the heels of Wong’s shoes were found along
the concrete walkway at the north side of the enclosure, and one of Wong’s shoes
was off when she was discovered. An earring, a pendant, and dark hair were
found between the steps and Wong’s body, and defendant’s bloody palm print was
on a radiator bar coming from the air conditioning unit.
4
Wong’s autopsy revealed severe injuries to the head and neck caused by a
blunt instrument such as a fist or boot. Her nose was pushed to one side, and her
chin had a gaping laceration. Bleeding in her neck muscles and hemorrhages in
her eyes revealed that Wong had been strangled or choked and had experienced
asphyxiation for a period of time. Injuries to a nipple and a wrist were consistent
with bite marks. Wong’s right arm and elbow, as well as her buttocks, had
injuries consistent with her having been dragged across a concrete surface while
alive. Five of Wong’s ribs were fractured, and she had shoulder injuries consistent
with someone stomping on her. Fractures on the front and back of Wong’s skull
could have been caused by a strong person repeatedly shoving her head against a
wall or onto concrete.4 Those two traumas caused bleeding inside the skull and
swelling of the brain. At some point while Wong was alive, her tongue
hemorrhaged when it “got caught, most likely between [her] teeth.”
The autopsy additionally revealed massive bleeding in the area of Wong’s
vagina and anus. The opening of the vagina was cut, and a rigid object that was
sharp and serrated had twice been thrust approximately four inches into the deep
soft tissue of Wong’s perineal area between her vaginal and anal openings.
Foreign material consistent with concrete was found inside the entire tract of this
injury. The pathologist believed a knife or cylindrical steel rebar pipe had cut
Wong’s vaginal opening and been thrust into the perineum. Wong’s anal opening
also was cut, and the anus was dilated. The dilation could have been caused by
4 Klein described defendant as a large man with “shaved arms” and the look of a
“body builder.” She estimated that he was approximately 5 feet nine inches tall,
that he weighed almost 200 pounds, and that he was about 28 years old. Wong
was approximately 5 feet two inches tall and weighed approximately 110 pounds.
Defendant’s friend Bogard estimated that defendant was about 30 years old at the
time of the 1996 trial.
5
the insertion of a penis, but the laceration was caused by a sharp object similar to
the one inserted into the vaginal opening. Wong’s cervix was bruised. The
“degree of trauma and associated bleeding” caused by the genital injuries
established that Wong was alive when they were inflicted.
Bogard awoke between 7:00 and 8:00 a.m. on March 20 to find defendant
asleep on the floor. Defendant told Bogard he had “walked home”; later that day,
defendant told Bogard that he had paid people he met at a gas station to take him
home. When the two met after work that afternoon, Bogard noticed that defendant
had changed his appearance by shaving off his long sideburns.
At 8:30 a.m. on Friday, May 20, defendant called Donna Tatum, a woman
he was dating at the time. He convinced her to pick him up at 9:00 p.m. She
drove him to her home in Ontario. That night, Tatum noticed scratches on
defendant’s hands and arms.
That same evening, Bogard saw a television newscast about the murder of a
woman near the Club. Based upon the description given, he suspected defendant
might have been involved. He met with police and provided information about
defendant and Sonya Marvin, defendant’s girlfriend who lived in Plumas County.
Defendant spent the day and night of May 21 at Tatum’s house, calling
many people, including Bogard and Marvin. Once when he called Bogard, a
police officer answered and asked defendant to turn himself in. Defendant said he
would do so within the hour, but he did not leave Tatum’s house. After watching
a report that described Wong’s murder and displayed the suspect’s picture, Tatum
realized defendant was the killer. She did not turn defendant into the police;
fearing defendant, she instead agreed to lie and provide an alibi by saying she had
6
picked him up at the Club on the evening of May 19. On May 22, Tatum drove
defendant to a rest stop in Avenol. Defendant then got into Marvin’s car and left.5
On May 23, Plumas County deputy sheriffs watched defendant leave
Marvin’s house, lower his cap to his eyes, look around, and begin to walk down
the street. Defendant turned and ran off when he noticed a patrol car. A sergeant
cornered defendant in a United States Forest Service compound, pointed his gun at
him, and ordered him to stop. Instead, defendant dove under a nearby water
tanker. With his gun pointed at defendant, the sergeant ordered him to come out
and stay on the ground. Defendant crawled out, stood, and walked toward the
officer, saying, “I didn’t do it, go ahead and shoot me.” The sergeant discharged
pepper spray into defendant’s face to avoid having to shoot him.
Sergeant Rives interviewed defendant at the jail after defendant was
admonished under Miranda v. Arizona (1966) 384 U.S. 436. Defendant said he
met a girl at a club on May 19, they spoke for about 10 minutes, and they then
went outside because they were concerned their friends would leave without them.
Defendant said he was picked up by his friend Donna and that, when he left, the
girl was okay and was walking to her car to check on it. Near the end of the
interview, defendant asked, “Why didn’t they shoot me?” When the sergeant
asked why, defendant said, “Cause I wouldn’t have to go through all this.”
A detective flew to Plumas County and brought defendant back to Orange
County. Examining defendant for injuries consistent with a struggle, the detective
5 At the time of defendant’s trial, Tatum faced criminal charges based on having
been an accessory. She waived her privilege against self-incrimination and
testified without having been promised any special treatment in return for her
testimony.
7
noted that defendant had quarter-inch healing wounds on his upper left shoulder,
both arms, his right thumb, and the insides of his hands.
Defendant did not testify at the guilt phase of his trial. However, counsel
conceded during closing argument that defendant killed Wong.
At the penalty phase, the prosecution introduced evidence of defendant’s
prior sexual offenses in 1983, 1984, and 1990, as well as evidence of the felony
convictions that were based upon defendant’s prior sexual misconduct.
In the first incident, defendant broke into the home of his former girlfriend.
He kicked in a locked door, grabbed her, carried her outside, and struck her head
on concrete as he threw her to the ground. He then tore off her panties and put his
fingers in her vagina. Based upon this incident, defendant pleaded guilty to
unlawful sexual intercourse with a minor, a felony. (§ 261.5.)
In the second incident, defendant struck up a conversation with a 16-year-
old at a party. After he convinced her to leave with him, he forced her onto the
ground, showed her a knife, and threatened to kill her if she screamed. As he
raped her, he repeatedly hit her and banged her head against the ground. He ran
off when she pretended she was passed out or dead. Based upon this incident,
defendant pleaded guilty to forcible rape, a felony. (§ 261, subd. (a)(2).)
In the third incident, defendant stopped his car to ask a 16-year-old girl for
directions. She accepted his invitation to drive her home. He bought beer, and
she agreed to play a drinking game with him near some vacant buildings. He
lured her to a deserted area where he touched her breasts. She tried to stop him,
but he rolled on top of her and raped her. Based upon this incident, defendant
pleaded guilty to unlawful sexual intercourse with a minor, a felony. (§ 261.5.)
The prosecution also introduced victim impact evidence through Wong’s
parents and younger brother. It was stipulated that defendant was paroled to
Orange County less than two months before Wong’s murder.
8
Defendant called his friends and teachers to testify regarding defendant’s
uncontrollable volatile temper when drinking, his ease in developing casual sexual
relationships, his behavioral and emotional difficulties, and his conflicts with his
mother.
School records introduced into evidence revealed that defendant was
admitted to a psychiatric hospital at the age of 10 because of academic and
behavioral difficulties. He was discharged five months later and placed in a
program for children who were severely emotionally disturbed. Psychological
testing done at that time found defendant to be an “angry, conflicted, and
depressed child in response to the conflict and unmet dependency needs within his
family.” Psychological reports and evaluations noted a history of conflict between
defendant’s parents as well as between defendant and his mother, and they
suggested that defendant acted out at home in an apparent attempt to obtain
nurturance. After more than two years of intensive therapy in the program,
defendant began to accept some responsibility for his behavior. However, he
remained a chronically depressed, emotionally needy child who defended against
his problems with a hostile stance. Once the family moved to California,
defendant attended special education classes at public school. Further testing
suggested he used hostile behavior to avoid interpersonal closeness, which he
found threatening. The records also showed that defendant had a learning
disability that caused him to have difficulty with abstract concepts, reasoning, and
problem solving.
Defendant testified that he felt terrible about Wong’s death and was sorry
he had caused it. He expressed uncertainty regarding the appropriate punishment
for his crimes, noting that it would be hard to live with the guilt his actions caused.
9
II. GUILT PHASE ISSUES
A. Alleged Vagueness of Asportation Element of Simple Kidnapping
Defendant contends the asportation element of simple kidnapping under
section 207, requiring movement of a “substantial distance,” was “impermissibly
vague under the [statutory] construction that existed at the time of his 1994
offense and 1996 trial,” in violation of our state and federal Constitutions. (U.S.
Const., Amends. 8 & 14; Cal. Const., art. I, §§ 7 & 15.)6 We disagree.
“Section 207, originally enacted in 1872, delineated what is today called
‘simple kidnapping’ and merely restated the common law, which required that the
victim be moved across county or state lines. [Citations.]” (People v. Nguyen
(2000) 22 Cal.4th 872, 882.) Section 207, subdivision (a), now provides, and at
the time of defendant’s crimes provided, that “[e]very person who forcibly, or by
any other means of instilling fear, steals or takes, or holds, detains, or arrests any
person in this state, and carries the person into another country, state, or county, or
into another part of the same county, is guilty of kidnapping.” “The language
6 With respect to this and most other claims on appeal, defendant argues that the
asserted error or misconduct infringed constitutional rights. At trial, he failed to
assert some or all of the constitutional arguments he now advances. “In each
instance, unless otherwise indicated, it appears that either (1) the appellate claim is
of a kind (e.g., failure to instruct sua sponte; erroneous instruction affecting
defendant’s substantial rights) that required no trial court action by the defendant
to preserve it, or (2) the new arguments do not invoke facts or legal standards
different from those the trial court itself was asked to apply, but merely assert that
the trial court’s act or omission, insofar as wrong for the reasons actually
presented to that court, had the additional legal consequence of violating the
Constitution. To that extent, defendant’s new constitutional arguments are not
forfeited on appeal. [Citations.] [¶] In the latter instance, of course, rejection, on
the merits, of a claim that the trial court erred on the issue actually before that
court necessarily leads to rejection of the newly applied constitutional ‘gloss’ as
well. No separate constitutional discussion is required in such cases, and we
therefore provide none.” (People v. Boyer (2006) 38 Cal.4th 412, 441, fn. 17.)
10
‘into another part of the same county’ was added in 1905 in response to Ex parte
Keil (1890) 85 Cal. 309, in which this court held that the forcible removal of a
person 20 miles from San Pedro to Santa Catalina Island, both in Los Angeles
County, was not kidnapping within the meaning of the statute as it existed at that
time. [Citations.]” (People v. Rayford (1994) 9 Cal.4th 1, 8, fn. 3 (Rayford).)
The trial court instructed defendant’s jury that “[e]very person who
unlawfully and with physical force or by any other means of instilling fear, steals
or takes or holds . . . another person, and carries such person without her consent,
compels any other person without her consent, and because of a reasonable
apprehension of harm, to move for a substantial distance, that is, a distance more
than slight or trivial, is guilty of the crime of kidnapping in violation of Penal
Code section 207(a).” (CALJIC No. 9.50, italics added.)
“The constitutional interest implicated in questions of statutory vagueness
is that no person be deprived of ‘life, liberty, or property without due process of
law,’ as assured by both the federal Constitution (U.S. Const., Amends. V, XIV)
and the California Constitution (Cal. Const., art. I, § 7). Under both Constitutions,
due process of law in this context requires two elements: a criminal statute must
‘ “be definite enough to provide (1) a standard of conduct for those whose
activities are proscribed and (2) a standard for police enforcement and for
ascertainment of guilt.” ’ [Citations.]” (Williams v. Garcetti (1993) 5 Cal.4th 561,
567.)
This court has recognized “the strong presumption that legislative
enactments ‘must be upheld unless their unconstitutionality clearly, positively, and
unmistakably appears. [Citations.] A statute . . . cannot be held void for
uncertainty if any reasonable and practical construction can be given to its
language.’ ” (Walker v. Superior Court (1988) 47 Cal.3d 112, 143.) Therefore, “a
party must do more than identify some instances in which the application of the
11
statute may be uncertain or ambiguous; he must demonstrate that ‘the law is
impermissibly vague in all of its applications.’ [Citation.]” (Evangelatos v.
Superior Court (1988) 44 Cal.3d 1188, 1201.) Stated differently, “ ‘[a] statute is
not void simply because there may be difficulty in determining whether some
marginal or hypothetical act is covered by its language.’ [Citation.]” (People v.
Ervin (1997) 53 Cal.App.4th 1323, 1329.)
“The law is replete with instances in which a person must, at his peril,
govern his conduct by such nonmathematical standards as ‘reasonable,’ ‘prudent,’
‘necessary and proper,’ ‘substantial,’ and the like. Indeed, a wide spectrum of
human activities is regulated by such terms: thus one man may be given a
speeding ticket if he overestimates the ‘reasonable or prudent’ speed to drive his
car in the circumstances (Veh. Code, § 22350), while another may be incarcerated
in state prison on a conviction of wilful homicide if he misjudges the ‘reasonable’
amount of force he may use in repelling an assault [citation]. As the Supreme
Court stated in Go-Bart Importing Co. v. United States (1931) 282 U.S. 344, 357,
‘There is no formula for the determination of reasonableness.’ Yet standards of
this kind are not impermissively vague, provided their meaning can be objectively
ascertained by reference to common experiences of mankind.” (People v. Daniels
(1969) 71 Cal.2d 1119, 1128-1129.)
A sister state’s opinion found “substantial distance” a constitutionally
sufficient requirement when considering a similar asportation statutory
requirement. In 1977, the Supreme Court of North Dakota considered a
constitutional challenge to the use of the word “substantial” when modifying the
noun “distance” in the context of that state’s kidnapping statute. (State v. Motsko
(N.D. 1977) 261 N.W.2d 860.) In concluding the word “substantial” in that
context did not render the kidnapping statute unconstitutionally vague, the court
concluded that “substantial” “acquires precision according to the term it modifies
12
as an adjective. . . . As used in [the kidnapping statute], it means ‘significant,’ [or]
‘important,’ . . . as distinguished from ‘insignificant,’ ‘trivial,’ [or] ‘nominal’ . . . .’
Thus, if a complainant was moved a ‘significant’ or ‘important’ — as
distinguished from ‘trivial’ — distance and her liberty was interfered with in a
real, important, or significant way, the [North Dakota kidnapping] statute would
be satisfied.” (Id. at p. 865.)
We reach a similar conclusion. We are convinced that, in the context of our
simple kidnapping statute, where the adjective “substantial” modifies the noun
“distance,” the word “substantial” means a “significant amount” as contrasted with
a distance that is “trivial,” and that the phrase “substantial distance” meets the
constitutional requirement of reasonable certainty.
Moreover, case law in effect at the time of defendant’s offense provided
adequate guidance as to what distances would be considered “substantial” under
the simple kidnapping statute. (People v. Caudillo (1978) 21 Cal.3d 562, 573-574
(Caudillo), overruled in People v. Martinez (1999) 20 Cal.4th 225, 235-238 & fn.
6 (Martinez).) In Caudillo, we used an earlier case in which the victim was moved
200 feet as an example of sufficient distance to sustain a conviction for simple
kidnapping. (Caudillo, supra, 21 Cal.3d at pp. 573-574, citing People v. Stender
(1975) 47 Cal.App.3d 413, 423 (Stender).) Our citation to Stender in Caudillo
provided defendant with adequate and fair warning that moving his female victim
against her will for a distance of more than 200 feet was prohibited. On the other
hand, at the time of defendant’s offense, we had stated that forcibly moving
someone 90 feet did not amount to “a taking ‘into another part of the same county’
and hence would be insufficient as a matter of law” to support a conviction of
simple kidnapping. (People v. Green (1980) 27 Cal.3d 1, 67 (Green),.overruled in
Martinez, supra, 20 Cal.4th 225)
13
In light of our statements in Caudillo and Green, defendant had fair notice
of what was and what was not proscribed under our statute for simple kidnapping
at the time of his offense. We therefore reject defendant’s vagueness challenge to
the term “substantial distance” as set forth in the definition of simple kidnapping
at the time of his offenses. In turn, we conclude that the term “substantial” was
not so vague in the context of the kidnapping law at the time of defendant’s trial to
violate due process or constitute cruel or unusual punishment.
B. Submission of Kidnapping Charge on a Legally Inadequate Theory
Defendant contends the kidnapping charge was improperly submitted to the
jury on a legally inadequate theory to support a conviction. He claims the
evidence “established an asportation with three segments,” one from the door of
the Club to the entrance of the company lot, one that began “six seconds later . . . a
few feet inside the entrance to the parking lot, and continued for 245 feet to the
southeast corner of the concrete enclosure where Ms. Wong’s body was found,”
and one, “a subset of the second, began at the foot of the stairs leading to the
concrete enclosure and ended 37 feet away in the southeast corner of the
enclosure.” He argues that “the instructions given to the jury allowed [him] to be
found guilty based on . . . [the 37 foot] segment of the asportation that began . . . at
the foot of the stairs leading to the entrance to the concrete enclosure” and ended
where Wong’s body was found.” Defendant also argues that the prosecutor’s
closing arguments at trial encouraged the jury to return a verdict of guilt on simple
kidnapping based on a legally inadequate theory. For the reasons stated below, we
conclude that, under the law in effect at the time defendant committed his
offenses, the prosecutor did argue two separate theories of kidnapping, one of
which was legally inadequate. In turn, because we cannot determine from the
record on which theory the general verdict of guilt as to simple kidnapping rests,
14
we agree with defendant that his kidnapping conviction must be reversed and that
the kidnapping-murder special-circumstance finding must be set aside.
The prosecutor argued to the jury that what constituted a “substantial
distance” “is a question of fact for you,” and that “[n]o one is going to tell you a
particular number of feet is a kidnapping. We don’t say 20 feet is a kidnapping,
40 feet, three miles. It is a juror’s determination as to whether or not that distance
is slight or trivial, or whether or not it is substantial.”
The prosecutor then suggested to the jurors that they could “look at certain
things as far as this consideration. You can look at the locations and the
boundaries over which this occurred; the fact that he is taking her in a darkened
parking lot; the fact that he is dragging her up some stairs; the fact that he has her
by her hair and dragging her on the ground; that this is a substantial distance, it
is not trivial. Number two, you can look at the distance in view of the context
served. The fact of the matter is he is taking Leonora Wong from a public place, a
place that is open to public view, to a place where she is going to be hidden. A
place which substantially increases her danger. See, the reason he took her there
was so no one would see her. He could do whatever he wanted to her inside that
enclosure without being seen, he thought. So him moving her was more than a
slight or trivial distance. It is not like he is taking her two feet around the back of
a car or moving her just a couple of inches in a parking lot, he is moving her a
substantial distance, which increased the risk of her harm.”
The prosecutor then told the jury that “the difference between the
kidnapping and felony false imprisonment is false imprisonment doesn’t require
somebody to be moved a substantial distance, which is more than trivial . . . . So . .
. if you think he just moved her a trivial distance, you will find it is false
imprisonment. I submit this was a substantial distance that increased her risk of
harm.”
15
In his closing argument, defense counsel focused the jury’s attention on
“whether the circumstantial evidence shows there is a substantial movement.” He
told the jury that the prosecutor would say that “because it is 208 feet from . . . the
entry to the parking lot to the enclosure, that that is a substantial distance.”
Defense counsel then argued there is a reasonable doubt that the second
photograph that captured an image of defendant and Wong at 208 feet from the
foot of the steps depicts defendant forcibly moving Wong towards the enclosure in
which she was sexually attacked and then killed. He argued that the unusual pose
in the photograph in which Wong was “stopped” and “leaning forward” was
ambiguous and could depict a moment when Wong’s “heel slipped” or a “playful
swing or anything else.” Defense counsel then argued, if there was a reasonable
doubt whether the photograph depicted the beginning of a kidnapping, the jury
must conclude the forced movement began “some other place, if at all, on its way
to the enclosure” and that “then and only then do you get to the questions of
whether or not that is a substantial distance.” Counsel next told the jury, “And for
the life of me you can’t get beyond the fact that any movement, any movement at
all, is simply along the side of one building. . . . If you have a reasonable doubt
that there is a substantial movement by force or fear more than simply . . . along
the building into the enclosure, then the benefit of that doubt has to befall [sic] the
accused.” At the end of his argument to the jury, defense counsel reiterated, “The
argument of the prosecution is that that [second] picture shows some unconsensual
movement. My statement to you is that that is susceptible of many different
interpretations.”
On rebuttal, the prosecutor argued that defense counsel “seems to think that
for some reason I have to prove that a kidnapping started . . . 245 feet away.
There is no specific distance for kidnapping. If you think it happened at 45 feet
and at another 37 inside the enclosure, that if you believe it to be a substantial
16
distance, more than slight or trivial, that is significant. It would be ridiculous to
have a law say that to have a kidnapping you have to be more than 125 feet. It is
absurd. Each case should rise and fall on its own facts. He is taking this woman
to a place which substantially increases her risk of harm, and that is what we are
talking about as far as the kidnapping.” He later said, “It is easy for a defense
attorney to stand up here and say that this was a trivial distance, kidnapping, it is
not a substantial distance, [but] it is kidnapping 45 feet.” After the trial court
sustained an objection to the prosecutor’s asking the jury to consider whether “that
distance was trivial to Leonora Wong,” the prosecutor continued, “I submit that
that is not a trivial distance, that is, a substantial distance that increased her risk
of harm and likely [sic] to be killed.” (Italics added.)
At the time of the offenses in this case, what evidence could be included in
a determination of “substantial distance” was governed by our holding in
Caudillo. In 1978, this court held in Caudillo that “ ‘the determining factor in the
crime of [simple] kidnaping is the actual distance of the victim’s movements.’ ”
(Caudillo, supra, 21 Cal.3d at p. 572.) We stated, “Neither the incidental nature
of the movement, the defendant’s motivation to escape detection, nor the possible
enhancement of danger to the victim resulting from the movement is a factor to be
considered in the determination of substantiality of movement for the offense of
[simple] kidnaping.” (Id. at p. 574.) In Caudillo, defendant forcibly moved his
rape victim for an “unspecified distance from the elevator to the storage room, and
from the storage room to her apartment.” (Id. at p. 572.) We concluded this was
“not substantial movement” within the meaning of section 207. (Caudillo, supra,
21 Cal.3d at p. 572.) In 1980, while our holding in Caudillo was in effect, this
court held that the 90 feet the victim was forcibly moved was “insufficient as a
matter of law” to constitute substantial distance within the meaning of section 207,
our simple kidnapping statute. (Green, supra, 27 Cal.3d at p. 67.)
17
In Martinez, we noted that, “[i]n cases involving simple kidnapping, the
instructions currently provide that the victim must have been moved ‘for a
substantial distance, that is, a distance more than slight or trivial.’ (See CALJIC
No. 9.50.)” (Martinez, supra, 20 Cal.4th at p. 237.) We then overruled Caudillo
and held that for simple kidnapping, with regard to future cases, it would “be
proper for the court to instruct that, in determining whether the movement is
‘ “substantial in character” ’ [citation], the jury should consider the totality of the
circumstances. Thus, in a case where the evidence permitted, the jury might
properly consider not only the actual distance the victim is moved, but also such
factors as whether that movement increased the risk of harm above that which
existed prior to the asportation, decreased the likelihood of detection, and
increased both the danger inherent in a victim’s foreseeable attempts to escape and
the attacker’s enhanced opportunity to commit additional crimes.” (Martinez,
supra, 20 Cal.4th at p. 237.) We explicitly held that our decision in Martinez was
not retroactive because it “constitute[d] ‘judicial enlargement of a criminal Act’
(Pierce v. United States (1941) 314 U.S. 306, 311) for which defendant must have
had fair warning to be held accountable.” (Martinez, supra, 20 Cal.4th at p. 239.)
We added that our holding in Martinez could not be applied retroactively to
the defendant in Martinez or to any other defendant whose offense occurred while
Caudillo was the law because, “in overruling Caudillo we have not only expanded
the factual basis for making that determination but in the process effectively
overruled cases holding that specific distances failed to establish asportation.”
(Martinez, supra, 20 Cal.4th at p. 239.) We then explained, “Two of those
decisions are particularly relevant as to these facts. In People v. Brown [(1974)]
11 Cal.3d 784 [Brown], the defendant confronted the victim in her kitchen and
‘forcibly took her through [the] house in search of her husband.’ (Id. at p. 788.)
They returned to the kitchen and then the living room, after which the defendant
18
dragged her outside for an additional 75 feet. (Id. at pp. 788-789.) Without
considering any other factors, the court found the distance involved ‘insufficient to
show that the movements were substantial.’ (Id. at p. 789.) Again, in People v.
Green, supra, 27 Cal.3d at page 67, a 90-foot movement was ‘insufficient as a
matter of law’ ‘[f]or the reasons stated in Brown . . . .’ ” (Martinez, 20 Cal.4th at
p. 239.)
Had defendant’s criminal conduct against Wong occurred in 1999, after
Martinez overruled Caudillo, the prosecutor’s closing and rebuttal arguments in
this case would have been entirely proper. However, the crimes in this case
occurred in May 1994, and, accordingly, Caudillo and Green governed
defendant’s case.
Under those two holdings, the prosecutor’s argument that the forced
movement began when defendant “got hold” of Wong and “managed to
manipulate her out of this bar” and that defense counsel could not be “serious” in
arguing that the photograph taken 245 feet from where Wong was killed showed
“forceful pulling, a playful swing, a stumble” set forth a legally adequate theory
that defendant forcibly moved Wong for a distance of at least 245 feet. On the
other hand, the prosecutor’s argument that 45 feet or the 37 feet from the steps to
the area in the enclosure where Wong was killed could constitute substantial
distance by considering such factors as the boundaries crossed and the increased
risk of harm to the victim presented a legally inadequate theory at the time of
defendant’s offense.
Here, as in Green, in which the prosecutor improperly argued that 90 feet,
as well as five miles or 20 miles met the simple kidnapping “substantial distance”
requirement for asportation, “[n]othing in the instructions . . . disabused the jury of
[the] notion” that a distance less than 90 feet could constitute “substantial
distance” under the law at the time in question. (Green, supra, 27 Cal.3d at p. 68.)
19
The trial court simply instructed the jury that the crime is committed when the
defendant moves a person by force or fear, against his will and without his
consent, and that the asportation element of the both the kidnapping charge and
the kidnapping-murder special-circumstance allegation required movement by
force or fear for a “substantial distance, that is, a distance more than slight or
trivial.” (CALJIC No. 9.50.) As discussed above, the trial court’s jury instruction
was proper, but, as in Green, “[n]o further guidance was provided on the latter
issue, although it [was at the time in question] ‘the determining factor in the crime
of kidnaping’ (People v. Stanworth (1974) . . . 11 Cal.3d [588,] 601). Finally, as
noted above the jury’s verdict was general, merely finding defendant guilty of
the . . . offense of kidnaping in violation in of section 207.” (Green, supra, 27
Cal.3d at pp. 68-69.)
We note that, after defendant’s crimes but before his trial, in Rayford, we
had clarified that there was no minimum number of feet to satisfy the asportation
standard of aggravated kidnapping. Foreshadowing our overruling Caudillo, we
noted in dicta that “[b]ecause we interpret section 208 [, subdivision] (d) to
incorporate the aggravated kidnapping asportation standard, we need not reach the
question of whether Caudillo’s rejection of certain factors other than the actual
distance traveled should be revisited. We recognize that Caudillo’s narrow
approach might be subject to the criticism that it fails to appreciate that a primary
reason forcible asportation is proscribed by the kidnapping statutes is the increase
in the risk of harm to the victim that arises from the asportation.” (Rayford, supra,
9 Cal.4th at p. 22.) This language in Rayford may have encouraged the prosecutor
to argue that “substantial distance” for simple kidnapping could be based on
factors other than actual distance traveled, such as increased risk of harm, and may
have discouraged an objection by defense counsel to that argument. However, in
light of our interrelated holdings in Martinez that (1) Caudillo was the law until
20
we overruled it in Martinez and (2) Martinez was not retroactive, we conclude that
the prosecutor presented defendant’s case to the jury on alternate theories, one of
which was legally correct and the other legally inadequate at the time of
defendant’s offenses.
We explained in Green that the record “contains evidence that could have
led the jury to predicate its kidnaping verdict on the legally sufficient portion of
[the victim’s] asportation. But it also contains evidence that could have led the
jury to rely instead on either of the legally insufficient portions of that movement.
The instructions permitted the jury to take the latter course; and the district
attorney expressly urged such a verdict in his argument, at least with respect to the
final 90 feet that the victim was transported. We simply cannot tell from this
record which theory the jury in fact adopted.” (Green, supra, 27 Cal.3d at p. 71.)
Accordingly, we set aside the kidnapping conviction and the related kidnapping-
murder special circumstance. (Id., at p. 74.) In People v. Guiton (1993) 4 Cal.4th
1116 (Guiton), this court recognized that the “Green rule, as applied to the facts of
that case, is readily construed as coming with the . . . category of a ‘legally
inadequate theory’ generally requiring reversal. At issue was whether 90 feet was
sufficient asportation to satisfy the elements, or the ‘statutory definition,’ of
kidnapping. There was no insufficiency of proof in the sense that there clearly
was evidence from which a jury could find that the victim had been asported the
90 feet. Instead, we held that the distance was ‘legally insufficient.’ [Citation.]”
(Id. at p. 1128.)
Defendant’s case falls within the rule in Green, as construed in Guiton. At
issue here was whether the 37 feet argued by the prosecutor was sufficient to
satisfy the elements or statutory definition of kidnapping at the time of defendant’s
offenses. There was no insufficiency of proof in the sense that there was evidence
from which a jury could find that Wong had been asported 37 feet. However,
21
Caudillo and Green require us to hold that 45 feet or less was legally insufficient
at the time of defendant’s offenses. The prosecutor’s argument that 37 feet was
adequate based upon factors other than distance, such as increased risk of harm,
set forth a legally inadequate theory that requires reversal “absent a basis in the
record to find that the verdict was actually based on a valid ground.” (Guiton,
supra, 4 Cal.4th at p. 1129.)
Because here, as in Green, we are “ ‘unable to determine which of the
prosecution’s theories served as the basis for the jury’s verdict’ ” (Green, supra,
27 Cal.3d at p. 70), we must reverse the conviction for simple kidnapping. For the
same reasons, the kidnapping-murder special circumstance must be set aside.
(People v. Hillhouse (2002) 27 Cal.4th 469, 499 (Hillhouse).) However, we need
not reverse the first degree murder conviction. As we explain below, the evidence
supported the unlawful-penetration special-circumstance finding. That finding
shows the jury necessarily concluded the killing was committed in the course of an
unlawful penetration with a foreign object. “Thus, we know that the first degree
murder verdict rested on at least one correct theory. [Citations.]” (Hillhouse,
supra, 27 Cal.4th at p. 499, and cases cited therein.)
C. Sufficiency of the Evidence of Asportation for Simple Kidnapping
The jury was instructed that the forced movement for simple kidnapping
had to be “for a substantial distance, that is, a distance more than slight or trivial.”
(CALJIC No. 9.50.) Defendant contends there was insufficient evidence to
support the jury’s determination that the forced movement in his case satisfied the
“substantial distance” requirement under section 207, subdivision (a), as that
requirement was defined at the time of his offenses. He directs this same
challenge to the kidnapping conviction, the kidnapping-murder special
circumstance, and the murder conviction insofar as it rests on a kidnapping-
22
murder theory. Although we have concluded that the kidnapping conviction must
be reversed because it was presented to the jury on both a legally adequate and a
legally inadequate theory, we must nonetheless assess the sufficiency of the
evidence to determine whether defendant may again be tried for the kidnapping
offense. (People v. Hayes (1990) 52 Cal.3d 577.)7
“In reviewing the sufficiency of the evidence, we must determine ‘whether,
after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ ” (People v. Davis (1995) 10 Cal.4th 463, 509.) “Substantial
evidence” is evidence which is “ ‘reasonable in nature, credible, and of solid
value.’ ” (People v. Johnson (1980) 26 Cal.3d 557, 576.)
In Caudillo, we held that the determining factor in the crime of simple
kidnaping was the actual distance of the victim’s movements. (Caudillo, supra,
21 Cal.3d at p. 572.) In 1974, we held that forcibly dragging a victim for a
distance of 75 feet outside her home, without considering any other factors was a
distance “insufficient to show that the movements were substantial.” (Brown,
supra, 11 Cal.3d at p. 789.) In 1980, in People v. Green, supra, 27 Cal.3d at page
67, we found a 90-foot movement insufficient as a matter of law for the reasons
stated in Brown.
Defendant committed the offenses in question in 1994. Accordingly, in
determining whether there is sufficient evidence that the forcible movement in this
case was for a substantial distance, we must apply “the holdings in Brown and
7 Because we reverse the kidnapping conviction and set aside the kidnapping-
murder special-circumstance finding, with the exception of his insufficiency of the
evidence claim, we need not consider defendant’s other guilt phase issues that
related to the kidnapping charge.
23
Green in light of Caudillo.” (Martinez, 20 Cal.4th at p. 239.) Here, however,
unlike the situation in Martinez, the record contains facts that satisfy the simple
kidnapping asportation standard under the case law in effect in 1994.
In reaching this determination, we need not resolve whether Wong
voluntarily left the Club with defendant as she called out to her girlfriend. As the
defendant and Wong walked outside, defendant, who was large and muscular, held
both of Wong’s arms, and he had forcibly and painfully grabbed the arm of a
waitress earlier that evening while claiming he would take her to Las Vegas to
marry her. We simply note that, although it appeared to Wong’s friend that Wong
left the Club voluntarily, the jury may have inferred that defendant used force or
fear to propel Wong outside, and that she did not accompany him willingly at any
point thereafter.
The Bergen Brunswig’s videotapes taken from its security cameras and the
still photographs taken from those tapes captured some of defendant and Wong’s
movements after they left the Club. Taken at 1:23 a.m. on the morning of the
murder, the first photograph captured an image of defendant and Wong walking
through the company’s north gate. The two appear to be walking side by side, but
it is unclear whether they were holding hands or whether defendant’s left hand
was gripping Wong’s right arm. On the other hand, a jury could reasonably find
beyond a reasonable doubt that the second photograph, taken at 1:24, only six
seconds later, depicts defendant forcibly pulling Wong away from the Club and
towards her death in the company’s lot. Wong’s body was behind defendant’s and
her legs appear to be pulling backwards while her head was very close to
defendant’s neck and shoulder. Although defendant’s left arm cannot be seen, a
jury could reasonably conclude from the relationship between the two bodies and
24
from the events that occurred thereafter that defendant was controlling Wong’s
movements with that arm and moving her forward against her will.8
The surveillance cameras subsequently captured images of defendant and
Wong in the area of the short flight of steps leading to the enclosure in which
Wong was murdered. Defendant can be seen standing over Wong, walking
backwards, and dragging her into the enclosure.9 The distance between the area
near the north gate depicted in the second photograph where defendant could be
forcibly moving Wong away from the Club and the location of Wong’s body
inside the enclosure was 245 feet.
“Even if the victim’s initial cooperation is obtained without force or the
threat of force, kidnaping occurs if the accused ‘ “subsequently restrains his
victim’s liberty by force and compels the victim to accompany him further.” ’
[Citations.]” (People v. Alcala (1984) 36 Cal.3d 604, 622.) Here, as in Alcala,
defendant was a “virtual stranger” (id. at p. 622), and the jury reasonably could
infer that Wong did not voluntarily accompany defendant farther away from the
Club once he began forcing her to move in that direction. The jury could
reasonably determine that the second photograph depicts defendant forcibly
moving Wong towards the enclosure in which he killed her, Accordingly, a
reasonable jury could find that defendant forcibly moved Wong at least 245 feet.
8 Throughout the remainder of this opinion, we refer to these two photographs as
the “first” or “second” photograph based on the order in which they were taken.
9 Defendant concedes the surveillance videotape and the physical evidence of
scuff marks on the ground establish that he started “dragging” Wong from the foot
of the stairs leading into the enclosure. An earring, a button, a pendant, and hair
were found in four separate places between the steps and Wong’s body, and
injuries to Wong’s right arm, right elbow, and her buttocks are consistent with her
having been dragged across the concrete surface while she was alive.
25
The Caudillo court impliedly held that movement of 200 feet could support
a simple kidnapping conviction when it noted that its “factual situation most
nearly resembles those encountered in Brown (a movement of approximately 75
feet), Thornton (a movement within the confines of a single room), and Cotton (a
movement within various rooms of a [barracks] and an additional 15 feet outside,
than those found in Stanworth (a movement of a quarter of a mile), and Stender (a
movement of 200 feet.)” (Caudillo, supra, 21 Cal.3d at pp. 574.)10 Accordingly,
forcibly moving a victim a distance of 245 feet would support a simple kidnapping
conviction at the time of defendant’s offenses. We therefore conclude that
sufficient evidence supports defendant’s kidnapping conviction, his murder
conviction under the kidnapping felony-murder theory, and the finding of a
kidnapping-murder special circumstance.
D. Murder
Instructions
The indictment charged defendant with murdering Wong willfully and
unlawfully and with malice aforethought in violation of section 187, subdivision
(a). No count specifically alleged first degree murder in violation of section 189.
Defendant contends the trial court erred by instructing the jury “on the
separate uncharged crimes of first degree premeditated murder and first degree
felony murder in violation of Penal Code section 189.” (Italics added.) Defendant
claims this error violated various state and federal constitutional rights.
We previously held that a defendant may be convicted of first degree
murder even though the indictment or information charged only murder with
malice in violation of section 187. (People v. Hughes (2002) 27 Cal.4th 287, 368-
10 The cases referred to are Brown, supra, 11 Cal.3d 784, People v. Thornton
(1974) 11 Cal.3d 738, Stanworth, supra, 11 Cal.3d 588, Cotton v. Superior Court
(1961) 56 Cal.2d 459, and Stender, supra, 47 Cal.App.3d 413, 423.
26
370 (Hughes). Defendant claims our holding in Hughes is incorrect in light of our
prior determination that section 189, rather than section 187, is the “statutory
enactment of the first degree felony-murder rule in California.” (People v. Dillon
(1983) 34 Cal.3d 441, 472, (Dillon).) Hughes rejected defendant’s premise that
under Dillon “felony murder and premeditated murder are separate crimes, and
that Dillon implicitly overruled People v. Witt (1915) 170 Cal. 104, in which we
held that a defendant may be convicted of felony murder even though the
information charged only murder with malice.” (Hughes, supra, 27 Cal.4th at p.
369.) We continue to reject, “as contrary to our case law, the premise underlying
defendant’s assertion that felony murder and malice murder are two separate
offenses.” (Hughes, supra, 27 Cal.4th at p. 370.) We recently cited Hughes with
approval on this very issue. (People v. Greier (2007) 41 Cal.4th 555, 591-592.)
We therefore reject defendant’s interrelated claims that the trial court lacked
jurisdiction to try him for first degree murder and improperly instructed on
theories of first degree murder. To the extent that defendant claims he received
inadequate notice of the prosecution’s theory of the case, we have explained that
“generally the accused will receive adequate notice of the prosecution’s theory of
the case from the testimony presented at the preliminary hearing or at the
indictment proceedings.” (People v. Diaz (1992) 3 Cal.4th 495, 557.) Here, the
indictment alleged that the murder was committed under the special circumstances
of murder in the course of kidnapping and unlawful penetration by a foreign
object. Those allegations provided notice that the prosecutor would proceed under
a felony-murder theory. (People v. Kipp (2001) 26 Cal.4th 1100, 1131-1132.)
As for defendant’s separate claim that a unanimity instruction should have
been given, we find no reason to depart from our cases that have “repeatedly
rejected this contention, holding that the jurors need not unanimously agree on a
theory of first degree murder as either felony murder or murder with premeditation
27
and deliberation. [Citations.]” (People v. Nakahara (2003) 30 Cal.4th 705, 712
(Nakahara).) Here, as in Nakahara, we “are not persuaded otherwise by Apprendi
v. New Jersey (2000) 530 U.S. 466. There, the United States Supreme Court
found a constitutional requirement that any fact that increases the maximum
penalty for a crime, other than a prior conviction, must be formally charged,
submitted to the fact finder, treated as a criminal element, and proved beyond a
reasonable doubt. [Citation.] We see nothing in Apprendi that would require a
unanimous jury verdict as to the particular theory justifying a finding of first
degree murder. [Citation.]” (Nakahara, supra, 30 Cal.4th at pp. 712-713.)
Apart from Apprendi, defendant relies on two recent state cases to assert
that, “because felony-murder and malicious, premeditated murder have different
elements in California, they are different crimes, not merely two theories of the
same crime.” (See People v. Seel (2004) 34 Cal.4th 535; Burris v. Superior Court
(2005) 34 Cal.4th 1012.) However, neither Seel nor Burris implicitly or explicitly
overruled the language in Hughes and Nakahara reaffirming our cases that have
held that felony murder and premeditated murder are not separate crimes.
(Hughes, supra, 27 Cal.4th at p. 370; Nakahara, supra, 30 Cal.4th at p. 712.)
Here, as in Hughes, we “reject defendant’s various claims that because the
information charged him only with murder on a malice theory, and the trial court
instructed the jury pursuant to both malice and a felony-murder theory, the general
verdict convicting him of first degree murder must be reversed.” (Hughes, supra,
27 Cal.4th at p. 370.)
E. Merger of Unlawful Penetration with a Foreign Object with the
Resulting Homicide Within the Meaning of People v. Ireland
The trial court instructed the jury that it could base a first degree felony-
murder conviction and a special circumstance finding on an unintentional or
accidental killing that occurred during the commission or attempted commission
28
of kidnapping (§ 207) or unlawful penetration with a foreign object (§ 289).
(CALJIC No. 8.21.) Defendant contends the instruction was improper because the
commission of section 289 in the present case “merged” with the resulting
homicide within the meaning of People v. Ireland (1969) 70 Cal.2d 522 (Ireland).
On that basis, defendant claims unlawful penetration of Wong with a foreign
object “could not serve as the predicate felony for a felony-murder conviction” or
a special circumstance finding. We conclude the underlying felony proscribed by
section 289 did not merge with the homicide in this case.
In Ireland, we adopted the merger rule that “had been developed in other
jurisdictions as a shorthand explanation for the conclusion that the felony-murder
rule should not be applied in circumstances where the only underlying (or
‘predicate’) felony committed by the defendant was assault.” (People v. Hansen
(1994) 9 Cal.4th 300, 311 (Hansen).)
The defendant in Ireland shot and killed his wife. The jury was instructed
that it could return a second degree felony-murder verdict based on the underlying
felony of assault with a deadly weapon. We reversed the defendant’s conviction
for second degree murder on the basis that an assault with a deadly weapon which
was “an integral part of” and “included in fact” within the homicide could not
support a second degree felony-murder instruction. (Ireland, supra, 70 Cal.2d at
p. 539.) We reasoned that “[t]his kind of bootstrapping” was not permissible
because “[t]o allow such use of the felony-murder rule would effectively preclude
the jury from considering the issue of malice aforethought in all cases wherein
homicide has been committed as a result of a felonious assault — a category
which includes the great majority of all homicides.” (Ibid.)
Two years later, we clarified that an Ireland inquiry “must extend to an
investigation of the purpose of the [underlying] conduct” that resulted in a
homicide and that the felony-murder rule could apply when there is an
29
“independent felonious purpose” apart from the intent to “inflict[] bodily injury.”
(People v. Burton (1971) 6 Cal.3d 375, 387 (Burton); see also People v. Mattison
(1971) 4 Cal.3d 177, 185.)
Hansen, which was decided after the offenses in this case, explained that,
while many cases properly have applied Ireland’s merger rule to other felonies
that involve assault or assault with a deadly weapon, “with respect to certain
inherently dangerous felonies, their use as the predicate felony supporting
application of the felony-murder rule will not elevate all felonious assaults to
murder or otherwise subvert the legislative intent.” (Hansen, supra, 9 Cal.4th at p.
315.) In holding that discharging a firearm at an inhabited dwelling house (§ 246)
did not merge with the resulting homicide, we concluded that application of the
second degree felony-murder rule “would not result in the subversion of
legislative intent. Most homicides do not result from violations of section 246,
and thus, unlike the situation in People v. Ireland, supra, 70 Cal.2d 522,
application of the felony-murder doctrine in the present context will not have the
effect of ‘preclud[ing] the jury from considering the issue of malice aforethought .
. . [in] the great majority of all homicides.’ [Citation.] Similarly, application of the
felony-murder doctrine in the case before us would not frustrate the Legislature’s
deliberate calibration of punishment for assaultive conduct resulting in death,
based upon the presence or absence of malice aforethought. . . . [A]pplication of
the felony-murder rule, when a violation of section 246 results in the death of a
person, clearly is consistent with the traditionally recognized purpose of the
second degree felony-murder doctrine — namely the deterrence of negligent or
accidental killings that occur in the course of the commission of dangerous
felonies.” (Hansen, supra, 9 Cal.4th at p. 315.)
In the present case, we find the reasoning in Hansen equally persuasive
when a violation of section 289 results in the death of a person. Similarly,
30
applying the Burton analysis, we conclude a violation of section 289 does not
“merge” with a resulting homicide within the meaning of the Ireland doctrine
because unlawful penetration with a foreign object has an independent felonious
purpose, namely, to sexually arouse, gratify or abuse.
We reject defendant’s attempt to compare unlawful penetration with a
foreign object (§ 289) to felony abuse involving willful infliction of physical pain
on a child under circumstances likely to produce great bodily harm or death.
(§ 273a.) A violation of section 273a merges with a resulting homicide because
the offense is a close variant of assault by means likely to produce great bodily
injury or death, which is similar to a violation of section 245 (assault by means
likely to produce great bodily injury or death or assault with a deadly weapon), the
traditional Ireland merger situation. (People v. Smith (1984) 35 Cal.3d 798.) In
Smith, we reasoned that “[i]t would be wholly illogical to allow this kind of
assaultive child abuse to be bootstrapped into felony murder merely because the
victim was a child rather than an adult, as in Ireland.” (Id. at p. 806.) Here, by
contrast, a violation of section 289 embodies a separate felonious purpose apart
from the intent to injure or kill, and the evidence that defendant exposed Wong’s
breasts and bit one of her nipples amply supports a finding that defendant
penetrated her genital area with at least one of the three sexual intents set forth in
the statute.
Under either the rationale set forth in Hansen or that set forth in Burton, we
conclude the offense of unlawful penetration of a foreign object does not “merge”
with a resulting homicide within the meaning of the Ireland doctrine, the offense
will support a conviction of first degree felony murder, and the trial court properly
instructed the jury on a first degree felony-murder theory based on the underlying
felony of unlawful penetration with a foreign object. These conclusions
undermine defendant’s remaining claims that his state and federal rights to due
31
process of law and a fair trial were violated because the jury was allowed to
convict him “of a nonexistent crime,” he “was arbitrarily deprived the benefit of
the merger doctrine,” and the jury received an “erroneous instruction” that
permitted it “to convict [him] of first degree murder without finding malice.” (See
U.S. Const., Amends. 6, 14, & 16; Cal. Const., art I, §§ 7, 14, & 15.)
We do not find that Hansen established a more restrictive standard than
existed at the time of defendant’s offenses; in any event, we rely independently on
Burton, a 1971 case, in reaching our conclusion that the Ireland merger doctrine
does not apply. Accordingly, we reject defendant’s claim that application of
Hansen to him may violate the prohibition against ex post fact laws (U.S. Const.,
art. I, § 10; Cal. Const., art. I, § 9), and deny him due process of law (U.S. Const.,
art. I, § 14; Cal. Const., art. I, §§ 7 & 15).
F. Reasonable Doubt and Related Instructions
Defendant contends there were unconstitutional defects in various
instructions that discussed the People’s burden of proof. He claims these
instructions “undermined the reasonable doubt requirement” and thereby violated
his right to due process, trial by jury, a reliable capital trial, and the privilege
against self-incrimination. (U.S. Const., Amends. 5, 6, 8, & 14; Cal. Const., art. I,
§§ 7, 15, 16, & 17.) We reject each of these claims.
Defendant asserts that four related instructions (CALJIC Nos. 2.01, 2.02,
8.83, and 8.83.1), essentially told the jurors they had a duty to accept the
reasonable interpretation of evidence and reject the unreasonable interpretation.
He claims these instructions improperly “compelled” the jury to find him guilty on
all counts and to find the alleged special circumstances to be true “using a standard
lower than proof beyond a reasonable doubt.” He also claims the instructions
created an “impermissible mandatory presumption” in cases in which a reasonable
32
interpretation of evidence points toward guilt and that they therefore “improperly
shifted the burden of proof to [him].” We repeatedly have rejected these
contentions and find no reason to reconsider them. (See Nakahara, supra, 30
Cal.4th at p. 714.)
Defendant claims six other instructions (CALJIC Nos. 1.00, 2.21.2, 2.22,
2.51, 2.52, and 8.20) “collectively diluted the constitutionally-mandated standard
of proof beyond a reasonable doubt.” We rejected this challenge to each of the
listed instructions except for CALJIC No. 2.52 (evidence of flight may establish
consciousness of guilt) in Nakahara. (Nakahara, supra, 30 Cal.4th at pp. 714-
715.) We rejected this claim with regard to CALJIC No. 2.52 in People v. Boyette
(2002) 29 Cal.4th 381, 438-439 (Boyette).) We find no reason to reach a different
conclusion in this case. Each of the six challenged instructions “is
unobjectionable when, as here, it is accompanied by the usual instructions on
reasonable doubt, the presumption of innocence, and the People’s burden of
proof.” (Nakahara, supra, 30 Cal.4th at p. 715.)
G. Consciousness of Guilt Instructions
Defendant contends the three instructions that permitted an inference of his
consciousness of guilt (CALJIC Nos. 2.03, 2.04, and 2.52) “unfairly highlighted
evidence favorable to the prosecution and invited the jury to draw critical but
irrational inferences against [him].” He claims the instructions, singly or in
combination, deprived him of due process, equal protection, a fair jury trial, and a
fair and reliable jury determination of guilt, special circumstances, and penalty.
(U.S. Const., Amends. 6, 8, & 14; Cal. Const., art. I, §§ 7, 15, 16, & 17.)
Defendant acknowledges that we have rejected similar arguments in prior
cases. (See, e.g., Hughes, supra, 27 Cal.4th at p. 348, Boyette, supra, 29 Cal.4th
at pp. 438-439.) We find our reasoning in those cases to be sound.
33
III. PENALTY PHASE ISSUES
A. Validity of Statute That Enacted the Unlawful Penetration Special
Circumstance
Defendant contends the unlawful penetration special circumstance was not
validly enacted by Proposition 115 because the electorate enacted Proposition 114
at the same time with more votes, the two propositions were in conflict, and
Proposition 114, in contrast to Proposition 115, did not add a special circumstance
of murder during the commission of unlawful penetration with a foreign object.
Defendant’s contention fails because the two propositions were not in conflict.
Proposition 114 modified the special circumstance for murdering a peace
officer by expanding the definition of peace officer, while Proposition 115 made
comprehensive reforms to the criminal justice system, including the addition of the
special circumstance of murder during the commission of unlawful penetration
with a foreign object. (See Yoshisato v. Superior Court (1992) 2 Cal.4th 978,
982-987 (Yoshisato).)
In Yoshisato, we examined both propositions and concluded they “were not
expressly or even impliedly presented to the voters as competing or alternative
measures.” (Yoshisato, supra, 2 Cal.4th at p. 989.) Instead, we found the
propositions were “presented to the voters as complementary or supplementary
(i.e., noncompeting) measures.” (Id., at p. 988.) In turn, we concluded the
petitioner in Yoshisato could “properly be charged with the ‘[r]ape by instrument’
special circumstance added to section 190.2, subdivision (a)(17) by Proposition
115.” (Id., at p. 992.)
For the reasons stated in Yoshisato, we similarly conclude that defendant
was properly charged with the “unlawful penetration with a foreign object” special
circumstance added to section 190.2, subdivision (a)(17) by Proposition 115.
34
We are not persuaded by defendant’s concomitant claim that the capital
statutory scheme, as expanded by Proposition 115, violates the Fifth, Eighth and
Fourteenth Amendments because the scheme no longer is constitutionally narrow.
In rejecting this identical claim with respect to the death penalty scheme
applicable to this case, we explained that “[b]ecause the special circumstances
listed in section 190.2 apply only to a subclass of murderers, not to all murderers
[citation], there is no merit to defendant’s contention that our death penalty law is
impermissibly broad.” (People v. Beames (2007) 40 Cal.4th 907, 934, citing
Tuilaepa v. California (1994) 512 U.S. 967, 971-972.) We find no reason to reach
a different conclusion in this case.
We similarly reject defendant’s claim that, because section 190.2 was
“blend[ed] together” from the provisions of Propositions 114 and 115, the
resulting statute lacked the “societal consensus” essential to a valid death penalty
law. As noted above, a majority of the voters intended to amend section 190.2 in
two distinct and complementary ways. Section 190.2 accurately reflects the
societal consensus in that regard.
B. Propriety of Alleging Multiple Felony-murder Special
Circumstances
Defendant contends “the plain language of section 190.2 prohibits the
finding of more than one felony-murder special circumstance per homicide.”
Citing the Eighth and Fourteenth Amendments to the United State Constitution, he
claims this error denied him the right to a fair penalty trial, a fair penalty
determination, and “the benefit of a state-created right and a sentence imposed in
accordance with state law.” Although we reverse one of the two special
circumstances in this case, we assess the merits of the claim to determine whether
defendant may again face a kidnapping-murder special-circumstance allegation
based on his murder of Leanora Wong. (People v. Hayes, supra, 52 Cal.3d 577.)
35
The indictment in this case alleged two distinct special circumstances. It
alleged that defendant murdered Wong (1) during the commission or attempted
commission of a kidnapping (§ 190.2, subd. (a)(17(ii)), and (2) during the
commission or attempted of an unlawful penetration with a foreign object
(§ 190.2, subd. (a)(17(xi)). As we previously have explained, “[o]nly a strained
construction of the language of [section 190.2] would support a conclusion that
section 190.2 [, subdivision] (a)(17) permits only one special circumstance finding
regardless of the number of felonies in which a defendant was engaged at the time
of a murder. Unlike the multiple-murder special circumstances considered in
People v. Allen (1986) 42 Cal.3d 1222, the felony-murder special circumstance
does not rely on the same offense for each special circumstance charged. Separate
special circumstance findings based on separate underlying felonies do not,
therefore, create a risk of arbitrary imposition of the death penalty based on the
number of special circumstances rather than the conduct underlying each.”
(People v. Holt (1997) 15 Cal.4th 619, 682.)
The hypothetical scenarios defendant sets forth are distinguishable from his
own situation because each posits a scenario in which the defendant committed a
single special circumstance on multiple occasions rather than the situation here, in
which the defendant was alleged to have committed two distinct special
circumstances, each of which “ ‘involved violation of [a] distinct interest that
society seeks to protect.’ ” (People v. Sanders (1990) 44 Cal.3d 471, 529.) In the
latter situation, a defendant “ ‘may be deemed more culpable than a defendant who
commits only one [special circumstance].’ ” (Id. at p. 529.) Defendant’s
suggestion that no distinct societal interests were involved because both felonies
were “crimes of violence against the person” ignores the distinction between
crimes that violate an individual’s freedom of movement and those which violate
an individual’s freedom from unsolicited and violent sexual invasions. We
36
conclude the indictment properly alleged two felony-murder special
circumstances.
C. Evidence of Unadjudicated Criminal Activity
Defendant contends the trial court erred by introducing evidence at the
penalty phase of unadjudicated criminal activity pursuant to section 190.3, factor
(b) (factor (b)), which permits the jury to consider in aggravation “[t]he presence
or absence of criminal activity by the defendant other than the crime for which the
defendant has been tried in the present proceedings, which involve the use or
attempted use of force or violence or the expressed or implied threat to use force
or violence.” He argues that factor (b) should have required a separate jury from
the jury that determined guilt, juror unanimity on the presence of the
unadjudicated criminal activity beyond a reasonable doubt, instruction on the
elements of the prior crimes, exclusion of all prior criminal activity on the ground
that it introduced “irrelevant and improper considerations factors into the
sentencing calculus,” exclusion of some prior criminal activity based on the statute
of limitations, and exclusion of unadjudicated criminal activity that was dismissed
pursuant to a plea bargain. Defendant claims this evidentiary error deprived him
of “his rights to due process, a fair and speedy trial by an impartial and unanimous
jury, the presumption of innocence, effective confrontation of witnesses, effective
assistance of counsel, equal protection, the guarantee against double jeopardy, and
a reliable and nonarbitrary penalty determination, in violation of the Fifth, Sixth,
Eighth, and Fourteenth Amendments to the United States Constitution and their
California counterparts.” We have rejected these interrelated contentions and
continue to do so in this case. (See Hillhouse, supra, 27 Cal.4th at p. 507 and
cases cited therein.) The penalty phase is “ ‘intended to place before the sentencer
all evidence properly bearing on its decision under the Constitution and statutes.
37
Prior violent criminality is obviously relevant in this regard; the reasonable doubt
instruction ensures reliability; and the evidence is thus not improperly prejudicial
or unfair.’ [Citations.]” (Ibid.)
D. Instruction on Appropriate Use of Victim Impact Evidence
Defendant does not challenge the admission of the victim impact testimony
that included the various ways in which Wong’s mother, father, and brother were
adversely affected by losing her from their family. Defendant contends the trial
court was required to give a sua sponte limiting instruction on how the jury should
approach victim impact evidence presented at the penalty phase in order to ensure
that “emotion would [not] overcome the jurors’ reason, preventing them from
making a rational penalty decision . . . .” We disagree.
The instructions the trial court gave, which included CALJIC No. 8.84.1,
were sufficient to inform the jury of its responsibilities, and the proposed
instruction by the defense “would not have provided the jury with any information
it had not otherwise learned from CALJIC No. 8.84.1.” (People v. Ochoa (2001)
26 Cal.4th 398, 455.)
E. Constitutionality of Instructions Defining Scope of Jury’s
Sentencing Discretion and the Nature of its Deliberative Process
Defendant contends the standard jury instruction (based on CALJIC No.
8.88) defining the scope of the jury’s sentencing discretion and the nature of its
deliberative process is unconstitutional for various reasons. We adhere to the
decisions that have rejected similar claims, and decline to reconsider such
authorities, as follows:
1. Reference to “substantial” aggravating circumstances — Defendant
claims that the instruction (CALJIC No. 8.88) impermissibly asked the jury to
decide whether “the aggravating circumstances are so substantial in comparison
with mitigating circumstance” as to justify the death penalty. Defendant argues
38
the phrase “so substantial” is too vague to give adequate guidance to the jurors,
but our case law disagrees. (E.g., People v. Coffman and Marlow (2004) 34
Cal.4th 1, 124; People v. Breaux (1991) 1 Cal.4th 281, 315-316.)
2. Failure to instruct the jury to return a verdict of life imprisonment if
aggravating factors do not outweigh mitigating ones — Defendant contends the
instruction based on CALJIC No. 8.88 failed to tell the jurors that they were
required to impose a verdict of life imprisonment without parole if aggravating
factors do not outweigh mitigating ones. We have rejected this argument and see
no reasons to reconsider it here. (E.g., People v. Coffman and Marlow, supra, 34
Cal.4th at p. 124; People v. Kipp (1998) 18 Cal.4th 349, 381.)
3. Failure to instruct jury that it could impose life even if factors in
aggravation outweighed those in mitigation — Defendant contends the court’s
sentencing instruction based on CALJIC No. 8.88 failed to tell the jurors that they
could return a life sentence even if they found that the factors in aggravation
outweighed those in mitigation. Defendant’s jury was instructed that “[a]ny of the
mitigating factors, standing alone, may support a decision that death is not the
appropriate punishment in this case, if you find that the weight of such a single
mitigating factor outweigh[s] all aggravating factors.” Defendant was not entitled
to a specific instruction that the jury may choose life without possibility of parole
even if it finds the aggravating circumstances outweigh those in mitigation.
(People v. Kipp, supra, 18 Cal.4th at p. 381; People v. Medina (1995) 11 Cal.4th
694, 781-782.)
4. Failure to inform jury that defendant had no burden to persuade the
jurors that death was not an appropriate penalty — Defendant contends the
instruction based on CALJIC No. 8.88 was constitutionally inadequate because it
failed to instruct the jury that he had no burden to persuade them that the death
penalty was inappropriate in this case. Again, we have rejected the contention and
39
continue to do so here. (E.g., People v. Coffman and Marlow, supra, 34 Cal.4th at
p. 124.) Implicit in the sentencing instructions is that the determination of penalty
is “essentially moral and normative [citation], and therefore . . . there is no burden
of proof or burden of persuasion. [Citation.]” (People v. Hayes, supra, 52 Cal.3d
at p. 643.)
F. Constitutionality of the Death Penalty Statute
Defendant raises additional constitutional challenges to California’s death
penalty statute. He recognizes that this court previously has rejected these
arguments, but he raises them “to allow this Court to reconsider its prior rulings
and to preserve the claims for federal review.” We find no reason to reconsider
our prior holdings, as follows:
1. Section 190.3, factor (a), is not unconstitutionally overbroad, arbitrary,
capricious, or vague, whether on its face (People v. Guerra (2006) 37 Cal.4th
1067, 1165) or as applied to defendant.
2. The use of such adjectives in the sentencing factors as “extreme”
(§ 190.3, factors (d), (g)) and “substantial” (id., factor (g)) is constitutional.
(People v. Avila (2006) 38 Cal.4th 491, 614.)
3. The death penalty law is not unconstitutional for failing to impose a
burden of proof — whether beyond a reasonable doubt or by a preponderance of
the evidence — as to the existence of aggravating circumstances, or the
appropriateness of a death sentence. (People v. Brown (2004) 33 Cal.4th 382,
401.) Except for factor (b), no burden of proof is constitutionally required at the
penalty phase. (People v. Moon (2005) 37 Cal.4th 1, 43.) Apprendi, supra, 530
U.S. 466, has not changed our prior conclusions regarding burden of proof.
(People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1068.)
40
4. The death penalty law is not unconstitutional for failing to require an
instruction on the presumption of life. (People v. Arias (1996) 13 Cal.4th 92,
190.)
5. There is no constitutional requirement that the jury find aggravating
factors unanimously. (People v. Osband (1996) 13 Cal.4th 622, 709-710.)
Neither Apprendi, supra, 530 U.S. 466, nor Ring v. Arizona (2002) 536 U.S. 584,
has changed our prior conclusion regarding jury unanimity. (People v. Lewis and
Oliver, supra, 39 Cal.4th at p. 1068.)
6. There is no constitutional requirement that the jury prepare written
findings identifying the aggravating factors on which it relied. (People v. Cook
(2006) 39 Cal.4th 566, 619.)
7. The statutory scheme is not unconstitutional insofar as it does not
contain disparate sentence review (i.e., comparative or intercase proportionality
review). (People v. Dickey (2005) 35 Cal.4th 884, 931.)
8. The guarantee of equal protection of the laws does not require this court
to give capital defendants the same sentence review afforded other felons under
the determinate sentencing law because the death penalty law “provides a different
method of determining the sentence than is used in noncapital cases.” (People v.
Smith (2005) 35 Cal.4th 334, 374.)
G. Violation of International Law
Defendant contends the death sentence violates international law. He
claims California’s death penalty scheme violates provisions of the International
Covenant on Civil and Political Rights, a treaty which the United States ratified in
1992. He also claims use of the death penalty in this case violates international
norms of humanity and decency reflected in the laws and practices of most
civilized nations. In turn, he claims the death penalty constitutes cruel and
41
unusual punishment under the Eighth and Fourteenth Amendments to our federal
Constitution because “international law is part of our law.”
We have rejected these interrelated claims and continue to do so. We
reiterate that “[i]nternational law does not prohibit a sentence of death rendered in
accordance with state and federal constitutional and statutory requirements.
[Citations.]” (Hillhouse, supra, 27 Cal.4th at p. 511; see also People v. Elliot
(2005) 37 Cal.4th 453, 488.) Nor does California’s asserted status as being in the
minority of jurisdictions worldwide that impose capital punishment, or this
jurisdiction’s asserted contrast with the nations of Western Europe in that we
impose capital punishment and they purportedly either do not or do so only in
exceptional circumstances, result in any violation of the Eighth Amendment to the
federal Constitution. (People v. Moon, supra, 37 Cal.4th 1, 47-48.)
H. Effect of Partial Reversal
We are reversing the simple kidnapping conviction and the kidnapping-
murder special-circumstance finding. The partial reversal does not require setting
aside the death judgment. The jury properly considered all of the evidence. Here,
as in Hillhouse, supra, 27 Cal.4th 469, the jury was “well aware of the
circumstances of [the victim’s] murder. It would not have given significant
independent weight to the kidnapping conviction itself rather than the overall
circumstances of the capital crime and the aggravating and mitigating evidence.
(People v. Kelly[(1992)] 1 Cal.4th [495,] 551.)” (Hillhouse, supra, 27 Cal.4th at
p. 512.) The question whether defendant forcibly moved his victim 37 feet or 245
feet to the location where he unlawfully penetrated her genital and anal areas, hit
her head against the concrete, choked or strangled her, and ultimately murdered
her, although critical to the kidnapping conviction at the time of defendant’s
offenses under Caudillo, was of little or no significance to the penalty
42
determination. The possibility that defendant may have forcibly moved his victim
37 rather than 245 feet is hardly mitigating. We also note that the jury learned
during the penalty phase that defendant had sexually attacked three other women
besides Wong and had suffered three prior felony convictions based on those prior
attacks. We see no reasonable possibility the difference in the number of feet
defendant dragged his victim affected the penalty determination. (People v.
Bonilla (2007) 41 Cal.4th 313, 334 [second special circumstance “was superfluous
for purposes of death eligibility and did not alter the universe of facts and
circumstances to which the jury could accord . . . weight”]; see also Brown v.
Sanders (2006) 546 U.S. 212, 222-223); Hillhouse, supra, 27 Cal.4th at p. 512.)
I.
Cumulative Effect of Errors During Penalty Phase
Defendant contends the cumulative effect of the errors committed during
the penalty phase was prejudicial. However, we have found no arguable error
during the penalty phase. Accordingly, there is no error to cumulate.
IV. DISPOSITION
We reverse the simple kidnapping conviction and the kidnapping-murder
special circumstance and otherwise affirm the judgment.
CHIN, J.
WE CONCUR:
GEORGE, C.J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
MORENO, J.
CORRIGAN, J.
43
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Morgan
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S055130
Date Filed: November 15, 2007
__________________________________________________________________________________
Court: Superior
County: Orange
Judge: Richard L. Weatherspoon
__________________________________________________________________________________
Attorneys for Appellant:
Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, Therene Powell and
C. Delaine Renard, Deputy State Public Defenders, 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, Jeffrey J. Koch and Randall D. Einhorn, Deputy
Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
C. Delaine Renard
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600
Randall D. Einhorn
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2208
Automatic appeal from a judgment of death.
Opinion Information
| Date: | Citation: | Docket Number: | Category: | Status: | Cross Referenced Cases: |
| Thu, 11/15/2007 | 42 Cal.4th 593 original opinion | S055130 | Automatic Appeal | closed; remittitur issued | MORGAN (EDWARD) ON H.C. (S162413) |
Parties
| 1 | The People (Respondent) Represented by Attorney General - San Diego Office Randall D. Einhorn, Deputy 110 W. "A" Street, Suite 1100 San Diego, CA |
| 2 | Morgan, Edward Patrick (Appellant) San Quentin State Prison Represented by Office Of The State Public Defender-Sf C. Delaine Renard, Deputy State Public Defender 221 Main Street, 10th Floor San Francisco, CA |
| Disposition | |
| Nov 15 2007 | Opinion: Conviction aff., special circs reversed |
| Dockets | |
| Jul 19 1996 | Judgment of death |
| Jul 29 1996 | Filed certified copy of Judgment of Death Rendered 7-19-96. |
| Mar 29 2000 | Order appointing State Public Defender filed to represent appellant on the direct appeal. |
| Apr 7 2000 | Note: Record (3 Boxes) returned to Superior Court. |
| Apr 19 2000 | Received letter from: Superior Court; dated 4/7/2000; Re Record mailed to Applt Counsel on 4/7/2000. |
| Jul 7 2000 | Application for Extension of Time filed By applt to request corr. of the record. |
| Jul 13 2000 | Extension of Time application Granted To 9/11/2000 to applt to request corr. of the record. |
| Aug 14 2000 | Counsel's status report received (confidential) from State P.D. |
| Sep 6 2000 | Application for Extension of Time filed By applt to request corr.of the record. (2nd request) |
| Sep 8 2000 | Extension of Time application Granted To 11/13/2000 to applt to request corr. of the record. |
| Oct 19 2000 | Counsel's status report received (confidential) from State P.D. |
| Nov 9 2000 | Application for Extension of Time filed By applt to request corr. of the record. (3rd request) |
| Nov 21 2000 | Extension of Time application Granted To 1/12/2001 to applt to request corr. of the record. No further ext. of time are contemplated. |
| Dec 20 2000 | Counsel's status report received (confidential) from State P.D. |
| Jan 5 2001 | Application for Extension of Time filed By applt to request corr. of the record. (4th request) |
| Jan 10 2001 | Extension of Time application Granted To 3/13/2001 to applt to request corr. of the record. No further ext. of time will be granted. |
| Mar 14 2001 | Received copy of appellant's record correction motion motion to correct augment and settle the record on appeal. (22 pp.) |
| May 17 2001 | Counsel's status report received (confidential) from State P.D. |
| Jul 16 2001 | Counsel's status report received (confidential) from State P.D. |
| Aug 24 2001 | Received: copy of appellant's supplemental motion to correct, augment and settle the record on appeal. (10 pp. excluding attached exhibits) |
| Sep 14 2001 | Counsel's status report received (confidential) from State P.D. |
| Nov 16 2001 | Counsel's status report received (confidential) from State P.D. |
| Jan 14 2002 | Counsel's status report received (confidential) from State P.D. |
| Mar 15 2002 | Counsel's status report received (confidential) from State P.D. |
| May 14 2002 | Counsel's status report received (confidential) from State P.D. |
| Jul 15 2002 | Counsel's status report received (confidential) from State P.D. |
| Sep 13 2002 | Counsel's status report received (confidential) from State P.D. |
| Sep 23 2002 | Record on appeal filed Clerk's transcript-15 volumes (3880 pp.) and reporter's transcript-14 volumes (3062 pp.) ASCII disks and including material under seal. Clerk's transcript includes 1678 pp. of juror questionnaires. |
| Sep 23 2002 | Appellant's opening brief letter sent, due: November 4, 2002. |
| Oct 29 2002 | Request for extension of time filed To file appellant's opening brief. (1st request) |
| Oct 30 2002 | Extension of time granted To 1/3/2003 to file apellant's opening brief. |
| Nov 12 2002 | Counsel's status report received (confidential) from State P.D. |
| Jan 2 2003 | Request for extension of time filed To file appellan't opening brief. (2nd request) |
| Jan 8 2003 | Extension of time granted To 3/4/2003 to file appellant's opening brief. After that date, only five further extensions totaling about 300 additional days will be granted. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 12/31/2003. |
| Jan 13 2003 | Counsel's status report received (confidential) from State P.D. |
| Feb 27 2003 | Request for extension of time filed to file appellant's opening brief. (3rd request) |
| Mar 5 2003 | Extension of time granted to 5/5/2003 to file appellant's opening brief. After that date, only four further extensions totaling about 240 additional days will be granted. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 12/31/2003. |
| Mar 14 2003 | Counsel's status report received (confidential) from State P.D. |
| May 1 2003 | Request for extension of time filed to file appellant's opening brief. (4th request) |
| May 6 2003 | Extension of time granted to 7/7/2003 to file appellant's opening brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 12/31/2003. |
| May 13 2003 | Counsel's status report received (confidential) from State P.D. |
| Jun 24 2003 | Request for extension of time filed to file appellant's opening brief. (5th request) |
| Jun 27 2003 | Extension of time granted to 9/5/2003 to file appellant's opening brief. After that date, only two further extensions totaling 120 additional days will be granted. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 12/31/2003. |
| Jul 14 2003 | Counsel's status report received (confidential) from State P.D. |
| Sep 2 2003 | Request for extension of time filed to file appellant's opening brief. (6th request) |
| Sep 9 2003 | Extension of time granted to 11/4/2003 to file appellant's opening brief. After that date, only one further extension totaling 60 additional days will be granted. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 12/31/2003. |
| Sep 15 2003 | Counsel's status report received (confidential) from State P.D. |
| Oct 30 2003 | Request for extension of time filed to file appellant's opening brief. (7th request) |
| Nov 4 2003 | Extension of time granted to 1/5/2004 to file appellant's opening brief. After that date, only one further extension totaling about 10 additional days will be granted. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 1/14/2004. |
| Nov 14 2003 | Counsel's status report received (confidential) from State P.D. |
| Dec 11 2003 | Request for extension of time filed to file appellant's opening brief. (8th request) |
| Dec 17 2003 | Extension of time granted to 3/9/2004 to file appellant's opening brief. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 3/9/2004. After that date, no further extension will be granted. |
| Jan 13 2004 | Counsel's status report received (confidential) from State P.D. |
| Feb 26 2004 | Request for extension of time filed to file appellant's opening brief. (9th request) |
| Mar 4 2004 | Extension of time granted to 4/19/2004 to file appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon Deputy State Public Defender Therene Powell's representation that she anticipates filing that brief by 4/18/2004. |
| Apr 19 2004 | Appellant's opening brief filed (77,294 words; 264 pp.) |
| May 11 2004 | Request for extension of time filed to file respondent's brief. (1st request) |
| May 14 2004 | Extension of time granted to 7/19/2004 to file respondent's brief. |
| Jul 13 2004 | Request for extension of time filed to file respondent's brief. (2nd request) |
| Jul 15 2004 | Extension of time granted to 9/20/2004 to file respondent's brief. After that date, only two further extensions totaling about 75 additional days are contemplated. Extension is granted based upon Deputy Attorney General Randall D. Einhorn's representation that he anticipates filing that brief by 12/3/2004. |
| Sep 9 2004 | Request for extension of time filed to file respondent's brief. (3rd request) |
| Sep 15 2004 | Extension of time granted to 11-19-2004 to file respondent's brief. After that date, only two further extensions totaling about 100 additional days will be granted. Extension granted based upon Deputy AG Randall D. Einhorn's representation that he anticipates filing the brief by 2-28-2005. |
| Nov 10 2004 | Request for extension of time filed to file respondent's brief. (4th request) |
| Nov 16 2004 | Extension of time granted to 1/18/2005 to file respondent's brief. After that date, only one further extension totaling about 40 additional days will be granted. Extension is granted ased upon Deputy Attorney General Randall D. Einhorn's representation that he anticipates filing that brief by 2/28/2005. |
| Jan 10 2005 | Request for extension of time filed to file respondent's brief. (5th request) |
| Jan 14 2005 | Extension of time granted to 3/21/2005 to file respondent's brief. After that date, only one further extension totaling about 26 additional days will be granted. Extension is granted based upon Deputy Attorney General Randall D. Einhorn's representation that he anticipates filing that brief by 4/15/2005. |
| Mar 10 2005 | Request for extension of time filed to file respondent's brief. (6th request) |
| Mar 17 2005 | Extension of time granted to 5/20/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Randall D. Einhorn's representation that he anticipates filing that brief by 5/20/2005. After that date, no further extension will be granted. |
| May 20 2005 | Respondent's brief filed (25211 words; 77 pp.) |
| Jun 8 2005 | Request for extension of time filed to file reply brief. (1st request) |
| Jun 14 2005 | Extension of time granted to 8/8/2005 to file appellant's reply brief. |
| Aug 1 2005 | Request for extension of time filed to file appellant's reply brief. (2nd request) |
| Aug 4 2005 | Extension of time granted to 10/7/2005 to file appellant's reply brief. After that date, only five further extensions totaling about 295 additional days will be granted. Extension is granted based upon Deputy State Public Defender C. Delaine Renard's representation that she anticipates filing that brief by 8/1/2006. |
| Oct 3 2005 | Request for extension of time filed to file appellant's reply brief. (3rd request) |
| Oct 11 2005 | Extension of time granted to 12/6/2005 to file appellant's reply brief. After that date, only four further extensions totaling about 235 additional days will be granted. Extension is granted based upon Deputy State Public Defender C. Delaine Renard's representation that she anticipates filing that brief by 8/1/2006. |
| Nov 29 2005 | Request for extension of time filed to file appellant's reply brief. (4th request) |
| Dec 2 2005 | Extension of time granted to 2/6/2006 to file the appellant's reply brief. After that date, only three further extensions totaling about 175 additional days will be granted. Extension is granted based upon Deputy State Public Defender C. Delaine Renard's representation that she anticipates filing that brief by 8/1/2006. |
| Jan 31 2006 | Request for extension of time filed to file appellant's reply brief. (5th request) |
| Feb 3 2006 | Extension of time granted to 4/7/2006 to file the appellant's reply brief. After that date, only two further extensions totaling about 115 additional days will be granted. Extension is granted based upon Deputy State Public Defender C. Delaine Renard's representation that she anticipates filing that brief by 8/1/2006. |
| Mar 30 2006 | Request for extension of time filed to file appellant's reply brief. (6th request) |
| Apr 7 2006 | Extension of time granted to June 6, 2006 to file appellant's reply brief. After that date, only one further extension totaling about 55 additional days will be granted. Extension is granted based upon counsel Deputy State Public Defender C. Delaine Renard's representation that she anticipates filing that brief by August 1, 2006. |
| Jun 1 2006 | Request for extension of time filed to file appellant's reply brief. (7th request) |
| Jun 8 2006 | Extension of time granted to August 1, 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 C. Delaine Renard's representation that she anticipates filing that brief by August 1, 2006. |
| Aug 1 2006 | Appellant's reply brief filed (26,959 words; 100 pp.) |
| Feb 23 2007 | Exhibit(s) lodged People's 10-18, 20-38, 43-46, 59, 61-67, 69-72, 72A1, 73-78, 97-99, 101 and Defendant's A. |
| Jun 20 2007 | Oral argument letter sent advising counsel that the court could schedule this case for argument as early as the September calendar, to be held the week of September 3, 2007, 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. |
| Aug 8 2007 | Case ordered on calendar to be argued on Wednesday, September 5, 2007, at 1:30 p.m., in San Francisco |
| Aug 20 2007 | Exhibit(s) lodged defendant's exhibit B from the penalty phase. |
| Aug 21 2007 | Filed: appellant's focus issues letter dated August 21, 2007. |
| Aug 23 2007 | Received: Letter dated August 23, 2007 from respondent citing additional case for oral argument. |
| Sep 5 2007 | Cause argued and submitted |
| Nov 14 2007 | Notice of forthcoming opinion posted |
| Nov 15 2007 | Opinion filed: Conviction affirmed, special circs reversed We reverse the simple kidnapping conviction and the kidnapping-murder special circumstance and otherwise affirm the judgment. opinion by Chin, J. -----joined by George, C.J., Kennard, Baxter, Werdegar, Moreno and Corrigan, JJ. |
| Nov 29 2007 | Rehearing petition filed by appellant. (9,013 words; 34 pp) |
| Dec 6 2007 | Time extended to consider modification or rehearing The time for granting or denying rehearing in the above-entitled case is hereby extended to and including February 13, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first. |
| Jan 23 2008 | Rehearing denied The petition for rehearing is denied. |
| Jan 23 2008 | Remittitur issued (AA) |
| Jan 25 2008 | Received: copy of motion for leave to proceed in forma pauperis for petition for writ of certiorari sent to U.S.S.C. on January 24, 2008. |
| Jan 25 2008 | Received: copy of petition for writ of certiorari sent to U.S.S.C. on January 24, 2008. |
| Jan 25 2008 | Received: copy of certificate of service for petition for writ of certiorari sent to U.S.S.C. on January 24, 2008. |
| Feb 1 2008 | Received: receipt for remittitur acknowledged by superior court. |
| Feb 4 2008 | Received: letter from U.S.S.C. dated Janaury 29, 2008. Petition for writ of certiorari was filed on January 24, 2008. No. 07-9024. |
| Mar 24 2008 | Certiorari denied by U.S. Supreme Court |
| Apr 7 2008 | Related habeas corpus petition filed (post-judgment) no. S162413. |
| May 30 2008 | Exhibit(s) returned to superior court. |
| Jun 6 2008 | Received: acknowledgment of receipt of exhibits. |
| Briefs | |
| Apr 19 2004 | Appellant's opening brief filed |
| May 20 2005 | Respondent's brief filed |
| Aug 1 2006 | Appellant's reply brief filed |
