Supreme Court of California Justia
Citation 42 Cal.4th 593 original opinion
People v. Morgan

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, 11/15/200742 Cal.4th 593 original opinionS055130Automatic Appealclosed; remittitur issued

MORGAN (EDWARD) ON H.C. (S162413)


Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Randall D. Einhorn, Deputy
110 W. "A" Street, Suite 1100
San Diego, CA

2Morgan, 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 2007Opinion: Conviction aff., special circs reversed

Dockets
Jul 19 1996Judgment of death
 
Jul 29 1996Filed certified copy of Judgment of Death Rendered
  7-19-96.
Mar 29 2000Order appointing State Public Defender filed
  to represent appellant on the direct appeal.
Apr 7 2000Note:
  Record (3 Boxes) returned to Superior Court.
Apr 19 2000Received letter from:
  Superior Court; dated 4/7/2000; Re Record mailed to Applt Counsel on 4/7/2000.
Jul 7 2000Application for Extension of Time filed
  By applt to request corr. of the record.
Jul 13 2000Extension of Time application Granted
  To 9/11/2000 to applt to request corr. of the record.
Aug 14 2000Counsel's status report received (confidential)
  from State P.D.
Sep 6 2000Application for Extension of Time filed
  By applt to request corr.of the record. (2nd request)
Sep 8 2000Extension of Time application Granted
  To 11/13/2000 to applt to request corr. of the record.
Oct 19 2000Counsel's status report received (confidential)
  from State P.D.
Nov 9 2000Application for Extension of Time filed
  By applt to request corr. of the record. (3rd request)
Nov 21 2000Extension 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 2000Counsel's status report received (confidential)
  from State P.D.
Jan 5 2001Application for Extension of Time filed
  By applt to request corr. of the record. (4th request)
Jan 10 2001Extension 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 2001Received copy of appellant's record correction motion
  motion to correct augment and settle the record on appeal. (22 pp.)
May 17 2001Counsel's status report received (confidential)
  from State P.D.
Jul 16 2001Counsel's status report received (confidential)
  from State P.D.
Aug 24 2001Received:
  copy of appellant's supplemental motion to correct, augment and settle the record on appeal. (10 pp. excluding attached exhibits)
Sep 14 2001Counsel's status report received (confidential)
  from State P.D.
Nov 16 2001Counsel's status report received (confidential)
  from State P.D.
Jan 14 2002Counsel's status report received (confidential)
  from State P.D.
Mar 15 2002Counsel's status report received (confidential)
  from State P.D.
May 14 2002Counsel's status report received (confidential)
  from State P.D.
Jul 15 2002Counsel's status report received (confidential)
  from State P.D.
Sep 13 2002Counsel's status report received (confidential)
  from State P.D.
Sep 23 2002Record 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 2002Appellant's opening brief letter sent, due:
  November 4, 2002.
Oct 29 2002Request for extension of time filed
  To file appellant's opening brief. (1st request)
Oct 30 2002Extension of time granted
  To 1/3/2003 to file apellant's opening brief.
Nov 12 2002Counsel's status report received (confidential)
  from State P.D.
Jan 2 2003Request for extension of time filed
  To file appellan't opening brief. (2nd request)
Jan 8 2003Extension 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 2003Counsel's status report received (confidential)
  from State P.D.
Feb 27 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
Mar 5 2003Extension 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 2003Counsel's status report received (confidential)
  from State P.D.
May 1 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
May 6 2003Extension 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 2003Counsel's status report received (confidential)
  from State P.D.
Jun 24 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Jun 27 2003Extension 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 2003Counsel's status report received (confidential)
  from State P.D.
Sep 2 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
Sep 9 2003Extension 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 2003Counsel's status report received (confidential)
  from State P.D.
Oct 30 2003Request for extension of time filed
  to file appellant's opening brief. (7th request)
Nov 4 2003Extension 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 2003Counsel's status report received (confidential)
  from State P.D.
Dec 11 2003Request for extension of time filed
  to file appellant's opening brief. (8th request)
Dec 17 2003Extension 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 2004Counsel's status report received (confidential)
  from State P.D.
Feb 26 2004Request for extension of time filed
  to file appellant's opening brief. (9th request)
Mar 4 2004Extension 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 2004Appellant's opening brief filed
  (77,294 words; 264 pp.)
May 11 2004Request for extension of time filed
  to file respondent's brief. (1st request)
May 14 2004Extension of time granted
  to 7/19/2004 to file respondent's brief.
Jul 13 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Jul 15 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (3rd request)
Sep 15 2004Extension 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 2004Request for extension of time filed
  to file respondent's brief. (4th request)
Nov 16 2004Extension 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 2005Request for extension of time filed
  to file respondent's brief. (5th request)
Jan 14 2005Extension 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 2005Request for extension of time filed
  to file respondent's brief. (6th request)
Mar 17 2005Extension 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 2005Respondent's brief filed
  (25211 words; 77 pp.)
Jun 8 2005Request for extension of time filed
  to file reply brief. (1st request)
Jun 14 2005Extension of time granted
  to 8/8/2005 to file appellant's reply brief.
Aug 1 2005Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Aug 4 2005Extension 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 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Oct 11 2005Extension 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 2005Request for extension of time filed
  to file appellant's reply brief. (4th request)
Dec 2 2005Extension 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 2006Request for extension of time filed
  to file appellant's reply brief. (5th request)
Feb 3 2006Extension 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 2006Request for extension of time filed
  to file appellant's reply brief. (6th request)
Apr 7 2006Extension 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 2006Request for extension of time filed
  to file appellant's reply brief. (7th request)
Jun 8 2006Extension 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 2006Appellant's reply brief filed
  (26,959 words; 100 pp.)
Feb 23 2007Exhibit(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 2007Oral 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 2007Case ordered on calendar
  to be argued on Wednesday, September 5, 2007, at 1:30 p.m., in San Francisco
Aug 20 2007Exhibit(s) lodged
  defendant's exhibit B from the penalty phase.
Aug 21 2007Filed:
  appellant's focus issues letter dated August 21, 2007.
Aug 23 2007Received:
  Letter dated August 23, 2007 from respondent citing additional case for oral argument.
Sep 5 2007Cause argued and submitted
 
Nov 14 2007Notice of forthcoming opinion posted
 
Nov 15 2007Opinion 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 2007Rehearing petition filed
  by appellant. (9,013 words; 34 pp)
Dec 6 2007Time 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 2008Rehearing denied
  The petition for rehearing is denied.
Jan 23 2008Remittitur issued (AA)
 
Jan 25 2008Received:
  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 2008Received:
  copy of petition for writ of certiorari sent to U.S.S.C. on January 24, 2008.
Jan 25 2008Received:
  copy of certificate of service for petition for writ of certiorari sent to U.S.S.C. on January 24, 2008.
Feb 1 2008Received:
  receipt for remittitur acknowledged by superior court.
Feb 4 2008Received:
  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 2008Certiorari denied by U.S. Supreme Court
 
Apr 7 2008Related habeas corpus petition filed (post-judgment)
  no. S162413.
May 30 2008Exhibit(s) returned
  to superior court.
Jun 6 2008Received:
  acknowledgment of receipt of exhibits.

Briefs
Apr 19 2004Appellant's opening brief filed
 
May 20 2005Respondent's brief filed
 
Aug 1 2006Appellant's reply brief filed
 
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website