Supreme Court of California Justia
Citation 44 Cal. 4th 1101, 189 P.3d 880, 81 Cal. Rptr. 3d 614

People v. Mungia

Filed 8/14/08



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S060803

v.

JOHN MUNGIA,

) Riverside

County

Defendant and Appellant.

Super. Ct. No. CR-59671



A jury convicted defendant John Mungia of the first degree murder of Alma

Franklin. (Pen. Code, §§ 187, 189; all further statutory references are to the Penal

Code unless otherwise indicated.) It found true special circumstance allegations

that the murder was committed while defendant was engaged in the commission of

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

(§ 190.2, former subd. (a)(17)(vii), now subd. (a)(17)(G)), and that the murder was

intentional and involved the infliction of torture (§ 190.2, subd. (a)(18)). At the

penalty phase, the jury returned a verdict of death.

After defendant waived a jury trial on the issue, the trial court found true the

allegations that defendant had previously been convicted, within the meaning of

section 667, subdivisions (c) and (e), of attempted murder (§§ 187, 664), mayhem

(§ 203), and three counts of robbery (§ 211). The trial court denied the automatic

application to modify the verdict (§ 190.4, subd. (e)) and sentenced defendant to

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death; in light of the death sentence, no sentence enhancements were imposed for

the prior convictions.

This appeal is automatic. (§ 1239, subd. (b).) We vacate the torture-murder

special-circumstance finding, but otherwise affirm the judgment.

I. FACTS

A. Guilt Phase

1. Prosecution evidence

In October 1993, defendant moved into a trailer beside the house of his sister,

Cynthia Mungia, in Riverside. Cynthia lived across the street from 73-year-old

murder victim Alma Franklin. After moving in, defendant told Cynthia that if he

ever committed another robbery, he would have to kill the victim to avoid being

identified.

On April 11, 1994, Franklin placed a television set on the street to be picked

up as trash. Defendant asked her if the television worked; when she replied it did

not, defendant said he wanted a part from it.

On April 12, 1994, between 4:00 and 4:30 p.m., defendant asked Cynthia for

money. Cynthia refused to give him any and left to go to the store. As she was

leaving, she saw Franklin in front of her house. Cynthia returned, but she departed

again around 5:15 p.m. for her weekly bingo game. Although defendant

occasionally accompanied Cynthia to the bingo game, he did not do so on this

occasion. William Mills (Cynthia’s next-door neighbor), Kenneth Wilde

(Franklin’s next-door neighbor), and Melissa DeAnda (a friend of defendant’s

nephew, Alex Mungia) each also saw Franklin in front of her house from around

5:00 p.m. to 7:00 p.m. Around 7:00 p.m., Wilde heard defendant ask Franklin if

she needed help putting empty tar buckets on the curb for trash collection, and

Franklin said she did not.

2

Around 7:15 p.m., Manuel Lopez III (hereafter Lopez), who lived on the

same street as murder victim Franklin and defendant, heard a car coming quickly

down the street. Lopez and his father went to the street to yell at the driver to slow

down; they were surprised when they saw the car was Franklin’s. Lopez

considered Franklin a cautious driver, and he had never seen her allow anyone else

to drive her car. Lopez’s father thought the driver was Paul McAllister, Franklin’s

boyfriend.

Around 9:15 p.m., Wilde heard a loud noise outside and called Franklin to

ask if she had heard the noise. No one answered the telephone.

On the morning of April 13, 1994, Mills saw Alex Mungia feeding the

chickens in Cynthia’s backyard, a job ordinarily performed by defendant. Later

that day, around 4:00 or 5:00 p.m., Melissa DeAnda, who was selling candy to

raise money for a school trip, went to Franklin’s house. Franklin’s front door was

open. Through the closed screen door, DeAnda could see Franklin lying on the

living room floor. DeAnda ran across the street to Cynthia’s house and told

Cynthia what she had seen. Cynthia ran to Franklin’s house and saw Franklin’s

garage door was open and her car was gone. Cynthia entered Franklin’s home and

saw that Franklin’s face was “gashed” in.

Cynthia ran to Mills’s house and told him that Franklin was “down in the

front room.” Mills went over to Franklin’s house, determined that she was dead,

and told Cynthia to tell his wife to call 911. After doing so, Cynthia went back to

her house, checked defendant’s trailer, and found no one there.

Riverside Police Officer Heath Baker and his partner responded to the 911

call. Baker saw Franklin lying on the living room floor with her feet bound

together by a white sock and her wrists bound in the same manner. Because of the

manner in which the blood had soaked the sock around Franklin’s wrists,

Riverside Police Detective George Callow, the lead crime scene investigator,

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concluded the sock had been tied around Franklin’s wrists before she started to

bleed. Callow also observed damage to Franklin’s fingernails, which had blood

around them.

Callow noted bloodstains on the bookshelf, on the wall between the

bookshelf and coffee table, and on the chair near Franklin. The water in one of

Franklin’s toilets was red. In the master bedroom several dresser drawers were

partially open, and clothing was scattered about the floor. A sheath knife was in

the bedroom. The lower doors of a hallway linen closet were open and the closet

appeared to have been searched. Franklin’s wallet, her watch, and several pieces

of her jewelry were missing. There were no signs of forced entry.

Lopez told Riverside Police Detective Gary DeVinna that he had seen

someone driving Franklin’s car the night before. He described the driver having

very short, white hair. Defendant’s hair was normally longer and darker than that

of Paul McAllister (Franklin’s boyfriend, who Lopez’s father thought was the

driver of her car), but defendant had his hair cut during the first week of April

1994.

When Riverside Police Sergeant Daniel Horton noticed the open garage door

and the absence of a car, he reported to the National Crime Information Center

that Franklin’s car was stolen and wanted in connection with a homicide. About

9:30 p.m., Santa Ana Police Officer Jim Berwanger discovered Franklin’s car on

the 1300 block of South King Street in Santa Ana. Because the car was wanted in

connection with a homicide investigation, Berwanger had it impounded. Around

11:00 p.m., Detective DeVinna spoke with Cynthia and her mother; defendant was

not in his trailer next to Cynthia’s house.

On April 14, 1994, Lopez told Detective DeVinna that he believed Paul

McAllister, Franklin’s boyfriend, was the man he had seen driving Franklin’s car

on the night of the murder. But when shown a photographic lineup that included a

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picture of McAllister, Lopez was not able to identify him. DeVinna also showed

him a photographic lineup that included a picture of defendant with long hair;

Lopez identified defendant but said he was not the driver of Franklin’s car because

the driver had short hair. At the time, he did not know that defendant had had his

hair cut a week before Franklin’s murder.

Detective DeVinna and his partner then talked to defendant. After defendant

was told of, and waived, his constitutional rights to remain silent and to have a

lawyer present, defendant said he was in his trailer the night of April 12. DeVinna

and his partner asked defendant remove his shirt. Defendant had superficial

scratches on his chest, which he said were itch scratches. Defendant told DeVinna

that on April 13 he looked for employment, rode around on a bus, went to a park

and a mall, and finally went to the house of his cousin, Peggy Chairez, where he

spent the night. Chairez’s daughter confirmed that defendant had spent the

evening of April 13 at Chairez’s house.

On April 20, 1994, California Department of Justice Senior Criminalist Ricci

Cooksey processed Franklin’s car for evidence. Cooksey recovered a gray hair

similar to Franklin’s from the front passenger carpet mat; the hair was covered

with a red substance that tested presumptively positive for blood. Two

fingerprints lifted by Cooksey from the passenger side of the front bumper were

later matched as defendant’s prints by California Department of Justice Latent

Print Analyst Donna Mambretti. Riverside Police Service Representative Richard

Greenwood also collected a pair of unmatched cufflinks, a silver-colored pillbox,

and a pearl tie pin from the floorboard area of the passenger compartment.

Cooksey also recovered from the car’s interior a Marlboro cigarette butt that had

lipstick on it. Franklin did not smoke; defendant smoked Camel brand cigarettes.

On April 26, 1994, DeVinna and his partner again talked to defendant.

Defendant told DeVinna he used to live in Santa Ana but no longer knew anyone

5

who lived there. Defendant denied ever having been in Franklin’s house, garage,

or car, and claimed he had never worked on or touched her car. Defendant told

DeVinna the only time he had ever spoken to Franklin was about the television

set.

On May 4, 1994, Lopez spoke with his landlord, John Smothers. Smothers

showed him defendant’s photograph, which had appeared in that day’s newspaper;

defendant had short hair in the picture. After looking at the photograph, Lopez

concluded that defendant, not Paul McAllister, was the man he had seen driving

Franklin’s car on the day of the murder. Over a year later, on July 20, 1995,

Lopez was shown a photographic lineup and identified defendant as the driver of

Franklin’s car.

On August 18, 1995, while defendant was serving a prison term on an

unrelated matter, Riverside County District Attorney Investigator Terry Fischer

executed a search warrant for defendant’s personal property. On the property

receipt issued by the prison to defendant, Fischer noted that “Betty” and

“0 (714) 547-2303” had been handwritten in the top right corner, and that “Betty,”

“Carlos Angulo, Jr.,” and an address on South Fairview in Santa Ana had been

handwritten in the bottom left corner. Riverside County Sheriff’s Detective J.D.

Purkiss, a documents and handwriting expert, identified the handwriting on the

paper as defendant’s.

Fischer determined Elizabeth Arreguin was defendant’s aunt, “Betty” was

her nickname, and Angulo was her son (and defendant’s cousin). According to

the telephone company’s records, “(714) 547-2303” was the unlisted number for

Arreguin’s telephone at the South Fairview address handwritten on defendant’s

property receipt.

Franklin’s last phone bill showed that on April 12, 1994, at 6:34 p.m., a call

was placed from her house to Arreguin’s apartment. Franklin’s personal phone

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book contained no listings for a telephone number with a 714 area code, or the

names Elizabeth Arreguin or Betty Arreguin.

From April to July 1994, Arreguin and Angulo lived in an apartment on

South Fairview, about four-fifths of a mile from where Officer Jim Berwanger

recovered Franklin’s car. While Arreguin and Angulo were living on South

Fairview, defendant unexpectedly showed up one night and spent the night on the

sofa. At trial, Arreguin could not recall the exact date that defendant stayed at her

apartment, but she remembered that shortly after that visit, defendant had called

her once and said he was in custody. Collect calls were made from the men’s

prison in Chino, where defendant was incarcerated, to Arreguin’s number on April

30, 1994, and May 2, 1994.

Dr. Darryl Garber, a pathologist, performed an autopsy on Franklin’s body.

Franklin had been struck 23 times in the head and face, and there were four

significant injuries to her face. Dr. Garber was unable to estimate the time of

death, but he determined the cause to be craniocerebral injuries due to blunt force

trauma. Franklin’s body had defensive wounds on the back of her left hand, faint

ligature furrows on both wrists, an abrasion on her right shoulder, and bruises on

her left arm and shoulder. Dr. Garber could not determine whether the ligatures

were applied before or after Franklin’s death. Although the first blow may have

knocked Franklin unconscious, her defensive wounds suggested she had remained

conscious for a period of time. Dr. Garber noted Franklin had thick lacerations on

the left side of her head in different directions, which indicated they were

“inflicted in a frenzy almost” (that is, she received “a lot of blows in a short period

of time”), and characterized her injuries as extremely painful and some of the most

brutal that he had ever seen.

San Bernardino County Sheriff’s Department Criminalist Donald Jones

examined Franklin’s fingernails for DNA evidence. A polymerase chain reaction

7

test of genetic material recovered from fingernail fragments from Franklin’s right

hand eliminated Paul McAllister, but not defendant, as a suspect. All genetic

material analyzed by Jones that was foreign to Franklin was consistent with

defendant’s. One in 320 Caucasians, one in 940 Hispanics, and one in 1,300

African Americans have a DNA profile similar to defendant’s.

Over defendant’s objection, the prosecutor presented evidence of a prior

robbery to show a common plan or scheme and to prove defendant’s intent. Santa

Ana Police Officer William Hill investigated the May 4, 1983 robbery of a Tastee

Doughnut Shop employee, Micaela Partida, and the attempted murder of the

shop’s owner, Carl Shepard. After waiving his constitutional rights to remain

silent and to have a lawyer present, defendant denied being at the doughnut shop,

instead telling Hill he was at a park during the day and spent that night with a

woman whom he had met in a bar. Hill later learned defendant actually had spent

that night in his usual residence, the home of his grandmother and uncle.

Detective J.D. Purkiss identified defendant’s signature on a redacted guilty

plea form on which was written, “On 5-4-83 in Orange County I assaulted Micaela

Partida and Carl Shepard with a knife. I took money from the immediate presence

of Micaela Partida by force and fear and attempted to murder Carl Shepard by

stabbing him in the left eye and right arm with a knife. Dated 9-12-83, Johnny

Mungia.”

2. Defense evidence

Defendant presented no evidence during the guilt phase.

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B. Penalty Phase

1. Prosecution evidence

a) The Tastee Doughnut Shop robbery (§ 190.3, factors (b), (c))

While Micaela Partida was working as a cashier at the Tastee Doughnut

Shop, defendant entered the shop through the back door. Partida told defendant to

leave, so he did. A minute or two later, defendant entered the shop through the

front door, talked to another customer, left and returned again, and played a video

game. Defendant then went to the counter near the cash register and asked for a

cup of coffee. When Partida told him that a cup of coffee was 35 cents, defendant

said he lost his only quarter in the video game machine. Defendant later returned

to the counter area and said, “I’m going to do a robbery.” He drew a knife,

jumped over the counter, opened the cash register, and started taking money out of

it. Partida fled across the street.

Carl Shepard was in the kitchen area when defendant entered from the front

of the doughnut shop. Defendant charged Shepard, who threw a baking sheet at

him. Defendant then stabbed Shepard: The blade entered Shepard’s left eye and

exited through the roof of his mouth. Defendant withdrew the knife, stabbed

Shepard in the bicep of his right arm, and ran out the back door of the shop.

On October 13, 1984, defendant pleaded guilty to mayhem, robbery,

attempted murder, and two counts of assault with a deadly weapon.

After the robbery, Partida stopped trusting people, could not get defendant

out of her mind, and sought therapy. She could no longer work because she could

not trust people, and she believed the trauma from the robbery prevented her from

being a good mother.

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b) Other prior criminal activity resulting in felony
convictions (§ 190.3, factors (b), (c))


On June 27, 1976, defendant burglarized a Santa Ana home by entering

through a window. On November 21, 1976, defendant pleaded guilty to burglary.

On July 9, 1977, defendant robbed an employee and a customer of a

Winchell’s Doughnut House in Santa Ana, taking money, doughnuts, and the

customer’s purse. Defendant told the employee not to call the police or he would

“kill” or “get” her, and told the customer he would shoot her if she did not give

him the purse. On August 23, 1977, defendant pleaded guilty to robbery.

On July 10, 1977, defendant drew a butcher knife on an employee of the

Greenville Market in Santa Ana, twice hit him with the butt of the knife, and said,

“Give me the money or I’ll stab you.” The employee gave defendant the money

out of the cash register and two packages of cigarettes. On August 23, 1977,

defendant pleaded guilty to robbery.

On October 27, 1979, defendant and a confederate robbed the U’Totem

Market in Santa Ana. Defendant approached the manager with a knife and took

the manager’s wallet and money from the cash register. On January 21, 1980,

defendant pleaded guilty to robbery with the use of a knife.

c) Other prior criminal activity (§ 190.3, factor (b))

On March 11, 1975, defendant knocked on the front door of an elderly

woman’s house and asked if he could use the telephone. The woman refused,

quarreled with defendant, and shut the door. Defendant pulled out a pellet gun,

placed it against the glass window in the door, and fired into the house.

d) Victim impact testimony (§ 190.3, factor (a))

Lois Hamilton, a friend of murder victim Franklin, described Franklin as an

active church member who took great pride in her home and yard and was “a very

loving, caring person” who never got upset with anyone. Jeanne Bell, one of

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Franklin’s nieces, described Franklin as “close” to her nieces and nephews. Bell

spoke with Franklin at least weekly. Franklin helped Bell after Bell’s mother died

in 1989 and her father died the following year, and they grew even closer.

Franklin was in good health and walked daily before her murder.

2. Defense evidence

Dr. James Bartley, a clinical geneticist, examined defendant and determined

he had Klinefelter’s syndrome, a chromosomal abnormality in which a male has

two X and one Y chromosomes. A male with Klinefelter’s syndrome often has

some developmental delays, but usually catches up with his peers as an adult. The

physical characteristics of Klinefelter’s syndrome include increased breast tissue

during puberty, lower testosterone levels, and smaller testes. Dr. Bartley found

defendant had normal language skills and smaller than normal sized testes, but did

not have enlarged breasts.

Dr. Arnold Lee Medearis, an obstetrician, gynecologist, and geneticist,

testified that a male with Klinefelter’s syndrome typically has problems with

language skills, is infertile, and has an intelligence quotient below the average for

others in his family. A male with Klinefelter’s syndrome is typically less

aggressive than the average person, but may have poor impulse control.

II. DISCUSSION

A.

Pretrial Issues

Defendant contends the trial court erred by denying his pretrial continuance

requests, removing the public defender as his counsel of record, and denying his

motion made under People v. Marsden (1970) 2 Cal.3d 118 (Marsden) to replace

the attorney the trial court appointed after it removed the public defender. These

are the pertinent facts:

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The felony complaint was filed on November 2, 1994. On November 21,

1994, the trial court appointed as defendant’s counsel the Riverside County Public

Defender, who assigned Deputy Public Defender John Isaacs to handle the case.

The information was filed on February 23, 1995. On March 3, 1995, the court set

November 20, 1995, as defendant’s trial date.

On July 21, 1995, Isaacs advised the trial court that Deputy Public Defender

Mara Feiger was also assigned to defendant’s case; Feiger was to work exclusively

on penalty phase preparation.

On October 13, 1995, on defendant’s motion, the trial was continued to

January 8, 1996, because defense counsel had not received any DNA evidence

from the prosecution and needed more time to complete the penalty phase

investigation. On December 15, 1995, the defense still had not received all of the

DNA evidence. Because Isaacs was on a leave of absence to care for his ill wife,

the trial court set a trial readiness conference for January 26, 1996, and anticipated

the trial would start within 30 days from that conference.

On January 26, 1996, the prosecution produced its DNA discovery, and

defendant moved to continue the trial to April 15, 1996, to allow him to review the

discovery. Stating that the public defender’s office had been on the case “well

beyond a year,”1 the trial court instead scheduled a trial readiness conference for

February 26, 1996, and anticipated the trial would start within 30 days from that

conference. The court also warned Isaacs not to “be surprised the next time you

come here and you find me reticent to grant another continuance.”

On February 26, 1996, Isaacs informed the trial court that he was not ready

for trial because the prosecution had disclosed only its DNA expert’s report, but


1

The public defender had been appointed 14 months before this hearing.

12

none of the information that would be required to evaluate the report. On March

1, 1996, after the prosecution disclosed the requested information, the court stated,

“we are coming up on two years,”2 scheduled a trial readiness conference for

March 22, 1996, and set April 15, 1996, as the trial date.

On March 6, 1996, Isaacs suffered a heart attack and later was hospitalized.

On March 19, 1996, Isaacs’s doctor signed a note indicating Isaacs would be

totally disabled until at least April 19, 1996. On March 22, 1996, defendant orally

moved to vacate the trial date because of Isaacs’s condition. The trial court denied

the motion and continued the trial readiness conference to March 26, 1996.

On March 26, 1996, defendant filed a written motion to continue his trial to

an undetermined date. At the hearing on the motion held that day, Supervising

Deputy Public Defender Toni Healy informed the trial court, “It is unlikely at this

point that [Isaacs] will return to trial work.” Nonetheless, because there still was

“a possibility” that Isaacs could try the case, defendant orally requested a

monthlong continuance to assess Isaacs’s condition. The court noted the age of

the case,3 vacated the trial date, and “put this matter over” to April 2, 1996.

At the April 2 conference, the trial court stated it would relieve the public

defender unless that office assigned defendant’s case to another attorney.

Defendant stated his desire to be represented by the public defender. The court

continued the case to April 5, 1996.

On April 5, 1996, Deputy Public Defender Feiger informed the trial court

that she was “unprepared” to become lead counsel because she had been working


2

At this point, Franklin had been killed nearly two years previously, but the

public defender had been appointed only 16 months earlier.
3

The trial court said the case was “old, April of ’94,” but Healy pointed out

the complaint had not been filed until November 1994.

13

exclusively on the penalty phase, and it would take her “many months” to

familiarize herself with the guilt phase issues. In a written declaration,

Supervising Deputy Public Defender Healy explained Isaacs might need bypass

surgery. Healy said that if all went well, Isaacs might be able to resume doing jury

trials in three months, but it was also possible that he would never be able to return

to work again. So that the public defender’s office could obtain more information

about the state of Isaacs’s health, the court scheduled a trial readiness conference

on April 12, 1996.

At the April 12, 1996, conference, Acting Riverside County Public Defender

Margaret Spencer, Supervising Deputy Public Defender Healy, and Deputy Public

Defender Feiger all appeared on defendant’s behalf. Spencer told the trial court

that defendant’s case had been reassigned to Deputy Public Defender Stu Sachs,

but he would not be prepared to try the case until January 1997, if he were

assigned no other cases by the public defender’s office, or April 1997, if he were

assigned other cases. The prosecution expressed doubt that Sachs would be able

to try the case that soon because of his heavy workload, and moved to have the

public defender relieved as defendant’s counsel. The court suggested appointing a

private attorney as cocounsel to determine whether the requested preparation time

was reasonable, and if this private attorney could prepare the case more quickly,

the public defender would be relieved. The public defender refused to accept the

appointment of cocounsel, so the court found her to be unavailable and relieved

her as defendant’s counsel.

The trial court appointed private attorneys Randolph Driggs and Paul Grech

to represent defendant, and it ordered them to review the case and advise the court

on how long it would take to prepare for trial. The court said it was “not looking

for the lowest bidder, . . . not looking for the person who says they can do it in the

shortest amount of time”; it said it would reappoint the public defender if Driggs

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and Grech could not prepare for trial in an amount of time significantly shorter

than the estimate given by Sachs. Defendant personally objected to the court’s

removal of the public defender. The court continued the trial readiness conference

to May 3, 1996, with the trial scheduled to start 60 days from that conference.

On April 25, 1996, defendant filed in the Fourth District Court of Appeal a

petition for writ of mandate seeking reinstatement of the public defender as his

counsel. The petition was summarily denied on April 30, 1996. We denied

defendant’s petition for review.

On May 3, 1996, Attorneys Driggs and Grech sought to clarify the scope of

their representation; the trial court told them they had been counsel of record since

April 12. Defendant again objected to the court’s April 12 removal of the public

defender. The court repeated that it would reappoint the public defender if Driggs

and Grech could not prepare for trial in a substantially shorter time than the public

defender. The court continued the trial readiness conference to May 13, 1996.

On May 13, 1996, defendant moved to disqualify the trial court under Code

of Civil Procedure section 170.6; the trial court summarily denied the motion as

untimely. The court said it would let the public defender’s office “just step back

in the case if they want it,” provided that office would be able to try the case in a

reasonable amount of time. The court continued the trial readiness conference to

May 24, 1996, with the trial scheduled to start by July 2, 1996.

On May 24, 1996, Attorney Grech told the trial court that he and Attorney

Driggs would need 10 months to prepare for trial. The court asked if defendant

would prefer to be represented by the public defender; defendant responded

inaudibly (but presumably in the affirmative). Deputy Public Defender Feiger

explained that Deputy Public Defender Sachs had returned from vacation, but the

court said it wanted Sachs to appear in court before it would consider reappointing

15

the public defender. The trial readiness conference was continued to May 28,

1996.

On May 28, 1996, Attorney Driggs told the trial court he could be prepared

for trial by January or February 1997. The court terminated Grech’s appointment

to allow Driggs to find his own Keenan counsel.4 (See Keenan v. Superior Court

(1982) 31 Cal.3d 424 (Keenan).) Deputy Public Defender Sachs informed the

court that Isaacs was no longer trying cases, and that Sachs had inherited from

Isaacs a four-defendant homicide case. The court continued the trial readiness

conference to June 3, 1996, to permit the public defender’s office to present its

estimate as to when it could be ready for trial.

On June 3, 1996, Deputy Public Defender Sachs informed the trial court that,

in light of his new case assignments, he could not be prepared to go to trial until

June 1997. Defendant moved for substitution of counsel under Marsden, supra, 2

Cal.3d 118, citing Attorney Driggs’s failure to contact him since his appointment.

Defendant also complained of a conflict of interest because the trial judge had

been Driggs’s “boss” when both were in the Riverside County District Attorney’s

Office. The court denied the Marsden motion and set a status conference for July

12, 1996, with the trial scheduled to start 60 days from that conference.

From July 1996 to January 1997, the trial court held periodic status

conferences and extended the trial date at each conference. With Driggs

representing defendant, the trial began on January 13, 1997.


4

Driggs ultimately indicated he did not think defendant’s case warranted the

appointment of Keenan counsel and represented defendant by himself.

16

1. Denial of continuance requests and removal of the public
defender as counsel


Defendant contends the trial court’s denial of his requests for continuances

and removal of the public defender as counsel of record violated his rights to due

process, to equal protection, to the effective assistance of counsel, to

representation by counsel of his choice, to present a defense, and to a fair trial

under the Sixth, Eighth, and Fourteenth Amendments to the United States

Constitution, as well as sections 7 and 15 through 17 of article I of the California

Constitution.5

a) Denial of continuance request

At the outset, we note the trial court did not err in denying defendant’s

section 1050 motion to continue his trial because it in fact granted that motion.

On March 26, 1996, defendant moved to continue the trial date to “None set,” and

the court vacated the trial date. Even after the court relieved the public defender

as defense counsel on April 12, it made it clear that defendant’s new counsel


5

Our recent observation in People v. Boyer (2006) 38 Cal.4th 412, 441,

footnote 17, applies here: “In most instances, insofar as defendant raised the issue
at all in the trial court, he failed explicitly to make 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 . . . 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.”

17

would be given time to prepare the case. Defendant did not go to trial until

January 13, 1997.

Defendant contends, however, that the trial court abused its discretion in

denying his March 26, 1996, oral request for a one-month continuance to permit

Deputy Public Defender Isaacs’s doctor to determine whether Isaacs would be

capable of representing defendant. Defendant notes that after the court vacated

defendant’s trial date on March 26, it continued the case in a piecemeal fashion

until April 12, when it relieved the public defender as counsel of record. On

April 5, the court knew that if Isaacs required surgery, and if it was successful,

Isaacs could resume trying cases by July 1996. On the same date, the court also

knew that the public defender’s office was still working on the case, despite the

court’s indication that it was contemplating relieving the public defender as

counsel. Defendant thus argues that the court’s decision on April 12, 1996, to

relieve the public defender rather than ordering another short continuance to learn

more about Deputy Public Defender Isaacs’s status was, in effect, a denial of

defendant’s March 26 oral request for a one-month continuance.

Defendant argues that an additional short continuance would not have caused

a noticeable delay, as a continuance would have been necessary in any event to

analyze the DNA evidence that the prosecution had disclosed only on March 1,

1996. This is especially true, defendant asserts, because on April 12 the trial court

gave Attorneys Driggs and Grech three weeks to prepare their estimate on how

long it would take them to prepare for trial. Defendant also asserts the trial court’s

repeated miscalculation of the age of his case caused the court to think the case

was older than it actually was (see fns. 1-3, ante), and that the court unfairly

blamed defendant for the prosecution’s tardiness in providing the DNA discovery.

A continuance in a criminal trial may only be granted for good cause.

(§ 1050, subd. (e).) “The trial court’s denial of a motion for continuance is

18

reviewed for abuse of discretion.” (People v. Jenkins (2000) 22 Cal.4th 900,

1037.) “There are no mechanical tests for deciding when a denial of a continuance

is so arbitrary as to violate due process. The answer must be found in the

circumstances present in every case, particularly in the reasons presented to the

trial judge at the time the request is denied.” (Ungar v. Sarafite (1964) 376 U.S.

575, 589; see also Jenkins, supra, 22 Cal.4th at p. 1039.)

In reviewing the decision to deny a continuance, “[o]ne factor to consider is

whether a continuance would be useful. [Citation.]” (People v. Frye (1998)

18 Cal.4th 894, 1013.) In Frye, we upheld the trial court’s denial of a midtrial

open-ended continuance sought so the defendant could seek medical treatment for

his mental health issues, reasoning that the trial court could have reasonably

inferred that a continuance “was not likely to result in any positive change in [the]

defendant’s mental state.” (Ibid.) In this case, the trial court knew Deputy Public

Defender Isaacs had suffered a heart attack that required hospitalization.

Supervising Deputy Public Defender Healy told the court it was unlikely Isaacs

would return to trial work, although she said he might be able to return to trying

cases by July 1996. Although defendant argues that Frye is distinguishable

because the request there was open-ended, here there was no guarantee that on

April 19, 1996, Deputy Public Defender Isaacs’s physician would have been able

to offer a more accurate prognosis. From the trial court’s perspective, there was

little to indicate that the issue of Isaacs’s fitness to try the case would be resolved

in the near future. Therefore, the court did not abuse its discretion by declining to

wait for more information.

Even if the trial court did abuse its discretion in denying the defendant’s

request for a continuance to April 19, 1996, he suffered no prejudice. On May 28,

Deputy Public Defender Sachs told the court that Deputy Public Defender Isaacs

was “no longer trying cases” and that he (Sachs) had taken over another of

19

Isaacs’s cases. Defendant argues that this comment meant merely that Isaacs was

not trying cases at that moment, but there remained the possibility that he could

resume doing so in the near future. But if Isaacs could have resumed work on

defendant’s case (and thus could have been ready for trial before Attorney Driggs)

due to improvements in his health, Sachs surely would have mentioned this at

either the May 28 or the June 3 hearing, because at each of these hearings Sachs

gave the court a status report about when the public defender’s office could be

available to try the case. Sachs, however, gave no indication that Isaacs would

ever be able to try defendant’s case. Thus, on April 19 Isaacs was not ready to

work on defendant’s case, and there was no reason to believe that he could do so

in the foreseeable future. Consequently, defendant suffered no prejudice from the

court’s not waiting until April 19 to learn more about Isaacs’s recovery from the

heart attack.

Defendant’s contention that the trial court should have granted a longer

continuance that would have allowed the public defender to remain on the case is

related to his claim regarding the trial court’s removal of the public defender and

is discussed below.

b) Removal of appointed defense counsel

“A court may remove appointed counsel both to ‘prevent substantial

impairment of court proceedings’ [citation] and when counsel, without good

cause, does not become ready for trial (§ 987.05).” (People v. Cole (2004)

33 Cal.4th 1158, 1188 (Cole).) A trial court’s removal of appointed counsel for an

indigent defendant is reviewed for abuse of discretion. (People v. Panah (2005)

35 Cal.4th 395, 426.)

Defendant contends his continued representation by the public defender did

not threaten to substantially impair judicial proceedings. Defendant argues the

20

trial court removed the public defender for an improper reason: Because the

public defender refused to accept the appointment of cocounsel. The trial court,

defendant reasons, lacked the authority to force a court-appointed attorney to

accept cocounsel. (See People v. Padilla (1995) 11 Cal.4th 891, 928; see also

§ 987, subd. (d) [“In a capital case, the court may appoint an additional attorney as

a cocounsel upon a written request of the first attorney appointed” (italics

added)].)

Defendant’s contention lacks merit. Although the trial court did state, “[i]f

you are telling me you won’t cooperate with whoever I appoint, you are going to

force me to relieve you,” it did so only after it had found the public defender’s

office’s time estimate to be “excessive.” The court made clear it would relieve the

public defender unless outside counsel agreed that the public defender’s time

estimate was “reasonable.” Thus, the court relieved the public defender because

she was delaying the case without good cause, not as punishment for refusing

cocounsel. Indeed, the court repeatedly stated it would reappoint the public

defender if private counsel could not be prepared in a significantly shorter amount

of time. Although Deputy Public Defender Isaacs’s medical condition certainly

necessitated some delay, the court did not abuse its discretion in concluding that

the amount of time the public defender requested was unreasonable. Defendant

therefore has not shown that the trial court removed the public defender for an

improper purpose.

Citing Williams v. Superior Court (1996) 46 Cal.App.4th 320, defendant

argues the trial court lacked the authority to remove the public defender without

further inquiry to determine whether Deputy Public Defender Sachs’s estimate of

the time he would need to prepare for trial was reasonable. In Williams, the trial

court appointed private counsel instead of the public defender to represent the

defendant because it was concerned that the deputy, Peter Swarth, assigned to

21

represent the defendant was carrying too large a caseload. (Id. at pp. 324-325.)

Although in Williams the defendant’s petition for a writ of mandate was rendered

moot by the commencement of his trial, the Court of Appeal held that the trial

court erred because its decision not to appoint the public defender was based

solely on the number and ages of the cases assigned to Swarth without inquiring

whether any of those cases might be continued or otherwise expeditiously

resolved. (Id. at p. 332.) In contrast, here the trial court specifically inquired how

long it would take Deputy Public Defender Sachs to prepare defendant’s case for

trial. The prosecutor expressed concern over Sachs’s caseload, and the court also

sought outside estimates.6

To bolster his claim that the trial court did not adequately inquire as to

whether Deputy Public Defender Sachs’s estimate was reasonable, defendant

notes that on January 26, 1996, Deputy Public Defender Isaacs told the court that

three more months were needed to analyze the DNA evidence (which was not

fully disclosed until March 1), and on April 12 Deputy Public Defender Feiger

explicitly said the case was not ready for trial. At the April 12 conference,

however, the court asked how long it would take Sachs to prepare, and defendant

does not explain why the court could not rely on Sachs’s estimate (provided by

Deputy Public Defender Feiger) of nine to 12 months. At that conference, the

court knew the trial could not start imminently; the issue the court was concerned


6

Deputy Public Defender Feiger reminded the trial court that the court had

“spoke[n] to Mr. Finn like a week or so ago . . . asking Mr. Finn about his
attorneys and their, how long it would take them, the consensus is nine months to
a year.” The court responded, “I also spoke to Mr. Harmon, and I also spoke to
Mr. Phillips, and neither of them gave me that kind of estimate.” The record does
not state who Finn, Harmon, and Phillips were, but apparently they were
experienced criminal law practitioners.

22

about was whether the public defender’s delay in becoming ready for trial was

reasonable. Defendant argues the speed with which other counsel could prepare

the case was irrelevant in deciding how long a continuance to grant him. We

disagree; the trial court here reasonably concluded that estimates by criminal

defense attorneys about the length of time they would need to prepare defendant’s

case for trial would assist it in evaluating the reasonableness of the public

defender’s request for a continuance.

Defendant contends the trial court improperly delegated to Attorneys Driggs

and Grech its duty to determine the reasonableness of defendant’s request for a

continuance. The court, however, did not delegate any decisionmaking authority;

rather, it appointed Driggs and Grech as defendant’s counsel of record, while

leaving open the possibility that it would reappoint the public defender if Driggs

and Grech could not be ready for trial much sooner than the public defender’s

estimate.

Defendant, relying on Smith v. Superior Court (1968) 68 Cal.2d 547 (Smith),

contends that a trial court must exhaust all reasonable alternatives before removing

counsel, even (as in this case) incapacitated counsel, and that the trial court here

failed to do so before relieving the public defender as defendant’s counsel. In

Smith, after a series of acrimonious exchanges between the trial court and defense

counsel, the court, over the defendant’s strong objection, vacated counsel’s

appointment on the ground that he was not competent to represent defendant. We

granted the defendant’s petition for writ of mandate and ordered counsel’s

reinstatement. We noted that trial courts should relieve a defendant’s appointed

counsel for physical incapacity “with great circumspection and only after all

reasonable alternatives, such as the granting of a continuance, have been

exhausted” (id. at p. 559), before going on to explain that the question whether a

trial court could remove an attorney for incompetence — at issue in Smith — was

23

a “far more difficult question” (ibid.). We held that the court’s removal of the

defense attorney in Smith based on his arguments to the court was a “threat to the

independence of the bar” (id. at p. 560) that constituted “a serious and

unwarranted impairment” of the defendant’s right to counsel (id. at p. 561).

Contrary to defendant’s arguments, our decision in Smith, supra, 68 Cal.2d

547, did not compel the trial court here to grant a continuance, or to continue the

public defender’s appointment as counsel of record. At the time the court relieved

the public defender as counsel, the public defender had represented defendant for

17 months, the deputy initially assigned to represent defendant (Deputy Public

Defender Isaacs) was physically incapacitated and the court had no reason to

believe he would ever be able to try the case, the newly assigned deputy (Deputy

Public Defender Sachs) said he would need at least nine more months before he

could try the case, and the trial court had reason to believe (based on the

prosecutor’s concerns about Sachs’s heavy caseload) that even this estimate was

unrealistically optimistic. Under these circumstances, the trial court did not abuse

its discretion in concluding that all reasonable alternatives to relieving the public

defender had been exhausted. (See Cole, supra, 33 Cal.4th at p. 1188.)

Defendant also relies on three other decisions by this court: People v.

Crovedi (1966) 65 Cal.2d 199 (Crovedi), People v. Ortiz (1990) 51 Cal.3d 975

(Ortiz), and People v. Courts (1985) 37 Cal.3d 784 (Courts). Each of these cases

involved a trial court’s decision to remove the defendant’s retained counsel of

choice, not (as in this case) appointed counsel. To the extent defendant claims a

violation of the right to counsel of choice, that right is not applicable here because

it applies only to retained counsel. (See generally People v. Easley (1988)

46 Cal.3d 712, 732 [“Failure to appoint the attorney desired by a defendant is not

interference with the right to counsel of choice. Conversely, the fact that a

defendant is pleased with counsel appointed for him by a court does not transform

24

his attorney into retained counsel . . . . [and] the special considerations that must

be taken into account when a court contemplates the removal (over objection) of a

retained attorney because of a conflict do not come into play . . . .”].) And even if

we assume for the sake of argument that the trial court’s power to remove

appointed counsel is no greater than its power to remove retained counsel (see

generally Smith, supra, 68 Cal.2d at pp. 561-562), the facts of Crovedi, Ortiz, and

Courts are distinguishable from this case, as we explain below.

In Crovedi, supra, 65 Cal.2d at pages 206-209, we held that the trial court

erred when it discharged the defendant’s attorney, who had suffered a heart attack

in the middle of the trial, even though a doctor said the attorney could resume the

trial in two months, the same amount of time it would take successor counsel to

prepare for trial. Here, by contrast, Deputy Public Defender Isaacs’s heart attack

occurred before the trial had started, the projected length of his absence was

unknown, and it was unclear that he would ever return.

In Ortiz, supra, 51 Cal.3d at page 987, we held that the trial court erred in

requiring the defendant to demonstrate his retained counsel’s incompetence as a

condition of discharging counsel. Thus, in Ortiz the issue was whether the trial

court erred in refusing to allow the defendant to discharge his attorney; by

contrast, here the issue is whether the trial court erred in insisting that defendant’s

attorney be discharged. And in Ortiz, there was no evidence that allowing the

defendant to discharge his attorney would disrupt the judicial process, whereas

here there was evidence that the public defender was disrupting the judicial

process by unreasonably delaying the proceedings: Attorney Drigg’s estimate of

the time he needed to prepare for trial was less than the public defender’s most

optimistic estimate, even though the public defender had already represented

defendant for almost a year and a half.

25

In Courts, supra, 37 Cal.3d at page 796, we held that the trial court erred in

denying the defendant’s request for a continuance so retained counsel could be

brought into the case. In Courts, however, the defendant had been reasonably

diligent in trying to replace the attorney appointed by the trial court with privately

retained counsel; no privately retained counsel ever sought to represent defendant

here.

Defendant also cites a trio of civil cases, each holding that a trial court abused

its discretion in denying a litigant’s motion for a continuance. (Oliveros v. County

of Los Angeles (2004) 120 Cal.App.4th 1389 [reversing directed verdict where

litigant was unrepresented because trial counsel unexpectedly had to go to trial in

another case]; Lerma v. County of Orange (2004) 120 Cal.App.4th 709 [reversing

summary judgment where trial counsel could not file an opposition due to his

hospitalization]; Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242

[granting writ of mandate where, after trial counsel’s death, the trial court denied

successor counsel’s requests to reopen discovery and for a continuance].) Even if

we assume that these cases, which involve continuance requests by retained

counsel in civil cases, are pertinent here, where a continuance request was made

by appointed counsel in a criminal case (but see, e.g., Roswall v. Municipal Court

(1979) 89 Cal.App.3d 467, 472-473; compare §§ 987.05, 1050, subd. (e), with

Code Civ. Proc., §§ 128, 284), all three are distinguishable: In those cases, the

trial court’s denial of a continuance meant either that the litigant was

unrepresented by counsel, or that the litigant was represented by an attorney who

had an inadequate opportunity to prepare. Here, by contrast, the trial court gave

the defense an adequate opportunity to prepare for trial.

More pertinent is Cole, supra, 33 Cal.4th 1158. In Cole, the trial court

appointed as defense counsel the Alternate Defense Counsel (hereafter ADC),

which assigned the case to Attorney Wayne Brandow. (Id. at p. 1179.) After

26

Brandow left the ADC, the trial court granted several continuances because the

ADC’s replacement for Brandow was not ready for trial, and ultimately the court

relieved the ADC as counsel and appointed Attorney Marvin Part, who told the

court he could be prepared for trial faster than the ADC. (Id. at pp. 1182-1183.)

We held the court did not abuse its discretion in relieving the ADC because its

skepticism of the ADC’s ability to be ready for trial was reasonable in light of that

office’s requests for a number of continuances. (Id. at p. 1188; see also People

v. Panah, supra, 35 Cal.4th at p. 426 [upholding trial court’s replacement of

appointed second counsel due to counsel’s “indeterminate unavailability”].) As in

Cole, the trial court here, given the procedural history of defendant’s case as

discussed above, reasonably was skeptical of the public defender’s ability to

become ready for trial in a timely manner.

Defendant argues that Cole is distinguishable because here Deputy Public

Defender Isaacs’s heart attack was an unforeseen event and not part of a pattern of

delay and unpreparedness for trial, as in Cole. Yet Deputy Public Defender Feiger

admitted to the trial court that she and Isaacs had been working on a continuance

motion before Isaacs’s March 6, 1996, heart attack, as they anticipated that they

would not be prepared to go to trial on April 15, 1996, the date set by the trial

court just before Isaacs’s heart attack. Defendant notes that the trial court in Cole

attempted to accommodate the defendant’s preference to be represented by the

ADC by granting several continuances, and he faults the trial court here for not

doing likewise. But the trial court need not always accommodate the defendant’s

preference. “The essential aim ‘is to guarantee “an effective advocate for each

criminal defendant rather than to ensure that a defendant will inexorably be

represented by the lawyer whom he prefers.” ’ ” (People v. Sapp (2003) 31

Cal.4th 240, 256; see also Cole, supra, 35 Cal.4th at p. 1184.) The trial court need

not grant further continuances if it reasonably concludes that it must remove

27

appointed counsel “to ‘prevent substantial impairment of court proceedings’

[citation] and when counsel, without good cause, does not become ready for trial

[citation].” (Cole, supra, at p. 1188.) That, in essence, is what the trial court did

here.

Defendant further attempts to distinguish Cole by noting that there the

defendant’s appointed counsel Part “was ‘firm’ in [the] defendant’s defense”

(Cole, supra, 33 Cal.4th at p. 1189), whereas here Attorney Driggs did not review

defendant’s file until after being appointed. But Part’s “firmness” in Cole was

only in comparison to that of former ADC Attorney Brandow (whose availability

and readiness were uncertain) and that of the ADC (which the trial court no longer

believed could be ready to go to trial in a timely manner). (Ibid.) Here, Driggs

reviewed the case file, offered his estimate of the time he needed to prepare for

trial, and never wavered from his commitment to the case nor indicated any

inability to proceed within his time estimate.

Defendant also contends that the trial court in Cole, supra, 33 Cal.4th 1158,

removed the ADC with the expectation of expediting those proceedings, but it was

unrealistic for the trial court here to think removing the public defender would

expedite this case. We disagree. The court considered the public defender’s

request (after Deputy Public Defender Isaacs’s heart attack) for an additional nine

to 12 months to prepare for trial (in addition to the 17 months it already had spent

on the case). When the court reasonably inquired who the public defender would

assign to represent defendant, the public defender (through her deputies) asked the

court to adopt a wait-and-see approach as to when Isaacs would be able to return

to work. Under these circumstances, the court did not abuse its discretion in

rejecting the public defender’s request for the continuance.

Finally, defendant argues that the trial court abused its discretion in denying

his April 1996 request for a nine-to-12-month continuance (which would have

28

allowed the public defender to remain on the case) because his trial began in

January 1997 — that is, within Deputy Public Defender Sachs’s original time

estimate. But as the prosecutor noted, Sachs already had been assigned another

death penalty case, making it unlikely that he would be able to prepare for

defendant’s trial within a year. And Sachs ultimately revised his time estimate,

saying he would not be able to take defendant’s case to trial until June 1997.

Although defendant’s trial began within Deputy Public Defender Sachs’s original

time estimate, under the circumstances just discussed, the trial court reasonably

could have found Sachs’s original time estimate to be overly optimistic.

For the reasons given above, the trial court did not abuse its discretion when

it removed the public defender as defendant’s counsel of record, based on its

conclusion that the public defender would not bring defendant’s case to trial

within a reasonable time.

c) Attorney Driggs’s appointment

A trial court is required to appoint counsel for indigent capital defendants.

(§ 987, subd. (b); see People v. Jones (2004) 33 Cal.4th 234, 244 [an indigent

defendant does not have the right to select a court-appointed attorney].) “On

appeal, a trial court’s orders concerning the appointment of counsel for an indigent

defendant are reviewed for abuse of discretion. [Citations.] A court abuses its

discretion when it acts unreasonably under the circumstances of the particular

case. [Citation.]” (Cole, supra, 33 Cal.4th at pp. 1184-1185.)

Defendant first contends the trial court erred in appointing Attorney Driggs

because section 987.2, subdivision (d) requires a trial court to appoint the public

defender, unless the public defender is unavailable. Defendant argues the court

abused its discretion because the public defender was available. But, as in Cole,

supra, 33 Cal.4th 1158, the court here reasonably found that the public defender

29

was unavailable because she was unable to be ready for trial in a timely manner.

We have never held that section 987.2 trumps either a trial court’s discretion to

remove appointed counsel when necessary to prevent substantial impairment of

the trial proceedings or a trial court’s authority under section 987.05 to relieve

counsel who, without good cause, does not become ready for trial. We see no

reason to do so now.

Defendant contends the trial court’s appointment of Attorney Driggs created

a conflict of interest because Driggs (along with Attorney Grech) initially was

appointed only to give an opinion to the trial court regarding whether the public

defender’s office’s request for the continuance at issue here was reasonable. The

limited nature of the appointment, defendant argues, divided Driggs’s loyalty

between the court and defendant. Without citation of authority, defendant asserts

that Driggs was actually working for the court (in a limited capacity) when he was

first appointed to defendant’s case because the court ordered him to prepare a time

estimate within which to bring the case to trial. We disagree. In no way was

Driggs and Grech’s appointment “limited,” the court did not delegate its authority

to Driggs and Grech, and by giving a time estimate Driggs did not violate his duty

to defendant. The court specifically said, “When I appoint counsel for a

defendant, they aren’t working for me, they are working for the defendant.” The

court did not prevent Driggs from zealously advocating for defendant, nor did it

create a situation in which Driggs was simultaneously representing the interests of

the trial court and defendant.

Defendant further contends the process by which Attorney Driggs was

appointed created a conflict of interest. He cites People v. Barboza (1981)

29 Cal.3d 375, 379-381, in which we held that the terms of Madera County’s

contract with its public defender impermissibly created a financial incentive for

the public defender to ignore the existence of an actual or potential conflict of

30

interest in representing its clients. Defendant here asserts that Driggs was placed

in a similar situation because Driggs knew he would not be appointed unless he

provided a time estimate that was substantially less than that of the public

defender’s office. Therefore, defendant claims, Driggs had a financial incentive to

present a “low bid” to “win” appointment.

But unlike the public defender in Barboza, Driggs’s attempt here to secure

appointment as defendant’s counsel did not give Driggs a financial incentive to

ignore an existing conflict of interest, nor did it create a conflict of interest. (See

People v. Barboza, supra, 29 Cal.3d at p. 380 [noting public defender was

personally liable for any deficiencies in fund reserved for conflict counsel].) True,

Driggs had a financial incentive in securing and maintaining the appointment as a

means to create income for himself. But Driggs was not obligated to fulfill his

initial time estimate. If, after further research and investigation, Driggs had felt a

continuance was necessary to protect defendant’s interests, he could have moved

for one with no financial consequences, so long as the request was reasonable.

Driggs told the court that he would not take the case to trial if he was not fully

prepared, and that he would seek a continuance if needed. Notably, after Driggs’s

appointment, the defense did not request any more continuances, and defendant’s

case was tried during the time frame Driggs originally had estimated.

Defendant therefore has not shown that the trial court’s appointment of

Driggs created a conflict of interest.

2. Denial of Marsden motion

Defendant contends the trial court failed to conduct an adequate inquiry into

his complaints regarding Attorney Driggs’s representation of him after he moved

for substitute counsel under Marsden, supra, 2 Cal.3d 118. The court’s denial of

his motion, defendant argues, also violated his federal due process rights and his

31

expectation that the state would follow its own rules. (See Powell v. Alabama

(1932) 287 U.S. 45, 71; Hicks v. Oklahoma (1980) 447 U.S. 343, 346.)

Defendant voiced two complaints about Attorney Driggs to the trial court:

(1) that neither Driggs nor an investigator had come to discuss the case with him

in the seven weeks since the trial court’s appointment of Driggs; and (2) that

Driggs was working for the trial court, not him. At the June 3, 1996, hearing on

the Marsden motion, Driggs admitted the lack of communication with defendant,

other than when they were in court, since his appointment as counsel (52 days

prior to the Marsden hearing), and that he and the trial judge previously had been

employed in the district attorney’s office at the same time.

“In [Marsden], we held that a defendant is deprived of his constitutional right

to the effective assistance of counsel when a trial court denies his motion to

substitute one appointed counsel for another without giving him an opportunity to

state the reasons for his request. A defendant must make a sufficient showing that

denial of substitution would substantially impair his constitutional right to the

assistance of counsel [citation], whether because of his attorney’s incompetence or

lack of diligence [citations], or because of an irreconcilable conflict [citations]. We

require such proof because a defendant’s right to appointed counsel does not

include the right to demand appointment of more than one counsel, and because

the matter is generally within the discretion of the trial court. [Citation.]” (Ortiz,

supra, 51 Cal.3d at p. 980, fn. 1.) When reviewing whether the trial court abused

its discretion in denying a Marsden motion, we consider whether it made an

adequate inquiry into the defendant’s complaints. (People v. Smith (2003)

30 Cal.4th 581, 606.)

On appeal, defendant complains that the trial court never inquired how

Attorney Driggs had arrived at his trial preparation time estimate without ever

discussing the case with him. Defendant, however, never voiced that complaint,

32

instead faulting Driggs for not communicating with him. The trial court explained

to defendant that Driggs had been “devoting his time” to “coming up to speed” on

the case materials. Driggs acknowledged at the Marsden hearing that he had

conferred with defendant only during court appearances up until that point, but he

assured the court that once his representation of defendant was “set in earnest,”

there would “not be a great deal of conflict” about future communication. Driggs

explained he had not sent an investigator to meet with defendant because he had

not yet hired one due to “an economic factor,” but said that he would soon file a

motion under section 987.9 for funding for an investigator. At no point after this

Marsden motion did defendant again complain about a lack of communication by

Driggs, even after the trial court told defendant he could file another Marsden

motion if he still considered Driggs’s representation to be inadequate.

Defendant argues that had the trial court made an adequate inquiry, it would

have discovered an insurmountable conflict between defendant and Driggs, which

was so great that it resulted in a total lack of communication. (See People v.

Smith, supra, 30 Cal.4th at p. 606.) As evidence, he cites his complaints that “this

case [was] about money” and that Driggs was “working for the court,” not for

him. But defendant said nothing suggesting a total lack of communication caused

by a conflict; rather, he expressed concern that Driggs’s prior relationship with the

court and his preparation of a time estimate at the court’s request were indications

that Driggs was working for the court, not for him. The court responded

appropriately, acknowledging that he had previously worked in a supervisory

capacity in the district attorney’s office at the same time as Driggs’s employment

there, and he told defendant he perceived no conflict when Driggs or any other

former prosecutorial colleague appeared before him. No further inquiry by the

court was necessary.

33

Thus, “we find no basis for concluding that the trial court either failed to

conduct a proper Marsden inquiry or abused its discretion in declining to

substitute counsel.” (People v. Valdez (2004) 32 Cal.4th 73, 96.) Consequently,

defendant’s related constitutional claims also must fail.

B.

Guilt Phase Issues

1. Admission of evidence of uncharged conduct during the guilt
phase


At a pretrial conference, the prosecution asked the trial court to admit at trial

evidence of defendant’s May 1983 robbery of the Tastee Doughnut Shop.

According to the prosecutor’s offer of proof, the evidence would show that

defendant entered through the shop’s back door, saying he was looking for a

certain “girl.” After he was told she was not there, defendant went to the front of

the shop, ordered coffee and a doughnut, and played video games. Then, armed

with a knife, he jumped over the counter and robbed the cashier, Micaela Partida.

When the 67-year-old owner, Carl Shepard, emerged from the back, defendant

stabbed him, the blade penetrating Shepard’s left eye and emerging from the roof

of his mouth. Defendant then stabbed Shepard in the right arm. When police

questioned defendant about the robbery, he claimed he had spent the day of the

crime in a park and had spent the night with a woman. Defendant later pleaded

guilty to attempted murder, mayhem, robbery, and two counts of assault with a

deadly weapon, and was sentenced to 18 years in prison.

The evidence of the robbery, the prosecutor argued, was admissible because

it tended to show defendant’s attempt to commit a burglary in this case. The

prosecutor explained that in the Tastee Doughnut Shop robbery, defendant

distracted Partida by saying he was looking for a girl and by playing video games,

and that there was evidence here that defendant had employed a ruse to get into

Franklin’s house because there was no sign of forced entry and there was evidence

34

that defendant used the telephone while in her house. The prosecutor also asserted

that the stabbing of Shepard was probative of defendant’s intent to kill and torture

Franklin. Finally, the prosecutor contended that the robbery was admissible to

show a common plan or scheme, because in each offense defendant used a ruse to

commit the crime, spent a night at a relative’s house soon after committing the

crime, and denied culpability when questioned by the police.

The trial court ruled the prosecution could introduce evidence of the prior

Tastee Doughnut Shop robbery, but it excluded evidence of defendant’s prison

sentence, and it excluded photographs of Shepard’s injuries. The court allowed

defendant’s sister Cynthia Mungia to testify, over defendant’s objection, that he

said he would have to kill the victim if he ever committed “another” robbery.

Defendant renewed his objection to all of this evidence at trial.

The evidence introduced during the guilt phase of defendant’s trial was

somewhat different from the prosecutor’s pretrial offer of proof. No witnesses

testified during the guilt phase about the facts of the prior robbery. Instead,

Officer William Hill testified that he questioned defendant about the robbery and

that defendant denied committing the offense, claiming he had spent the day in a

park and then had met a woman and had spent the night with her. Hill also spoke

with defendant’s uncle, who said that defendant actually had spent the night at his

home. The prosecution also introduced defendant’s redacted guilty plea, in which

he admitted that he assaulted Partida and tried to murder Shepard by stabbing him

in the arm and ear with a knife.

Defendant contends the trial court erroneously denied his pretrial and

midtrial motions to exclude evidence of prior conduct under Evidence Code

sections 352 and 1101’s subdivision (a). The admission of this evidence,

defendant argues, violated his right to due process.

35

With certain exceptions not relevant here, “evidence of a person’s character

or a trait of his or her character (whether in the form of an opinion, evidence of

reputation, or evidence of specific instances of his or her conduct) is inadmissible

when offered to prove his or her conduct on a specified occasion.” (Evid. Code,

§ 1101, subd. (a).) Evidence Code section 1101’s subdivision (b) clarifies this

general rule: “Nothing in this section prohibits the admission of evidence that a

person committed a crime, civil wrong, or other act when relevant to prove some

fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity,

absence of mistake or accident, or whether a defendant in a prosecution for an

unlawful sexual act or attempted unlawful sexual act did not reasonably and in

good faith believe that the victim consented) other than his or her disposition to

commit such an act.”

In addition to the trial court’s power to exclude evidence under section 1101

of the Evidence Code, section 352 of that code allows the trial court to “exclude

evidence if its probative value is substantially outweighed by the probability that

its admission will (a) necessitate undue consumption of time or (b) create

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

jury.” Rulings made under these sections are reviewed for an abuse of discretion.

(People v. Harrison (2005) 35 Cal.4th 208, 230.)

Defendant argues that the trial court abused its discretion in admitting

evidence of the prior robbery of the Tastee Doughnut Shop as evidence of his

intent to kill and rob Franklin and to burglarize her house because these intents

were not disputed issues at trial (but see People v. Carpenter (1997) 15 Cal.4th

312, 379 [not guilty plea places all elements of the offense at issue]), and that the

prior robbery was not sufficiently similar to the burglary, robbery, and murder of

Franklin to be probative. He further contends that his use of a false alibi in both

the prior Tastee Doughnut Shop robbery and in Franklin’s murder did not make

36

the two cases sufficiently similar to allow admission of the prior robbery on the

theory that he used a common course or scheme in giving the two alibis. Finally,

defendant asserts that the prejudicial effect of the prior robbery, which included

evidence that he stabbed Shepard in the eye, was so great that it substantially

outweighed any probative value that the prior robbery might have had at the trial

for Franklin’s murder.

The Attorney General argues that the trial court properly admitted evidence

of the prior Tastee Doughnut Shop robbery because even if the crime itself was

not similar to Franklin’s murder, there were significant similarities in defendant’s

behavior before and after both of these crimes. Before both the prior Tastee

Doughnut Shop robbery and Franklin’s murder, the Attorney General asserts,

defendant used a diversion: At the doughnut store he played video games before

the robbery, and Franklin’s telephone records at the time of murder suggest he

gained entry to her house by asking to use her telephone.7 The Attorney General

also points out that in both cases defendant stayed with a relative after the crime,

and that he used somewhat similar alibis for both crimes: He claimed to have

been in a park on the day of the prior Tastee Doughnut Shop robbery, and he

claimed to have been at home during Franklin’s murder and then in a park the next

day.

We need not decide whether the trial court erred in admitting evidence of the

prior Tastee Doughnut Shop robbery because any error was harmless. In this case,

defendant was seen speaking to Franklin shortly before the murder, and he was

seen driving Franklin’s car away from the scene of the crime. After Franklin’s


7

Although the prosecution mentioned in its offer of proof that defendant

played video games in the Tastee Doughnut Shop as a diversion, it did not present
evidence of that diversion at the guilt phase of trial.

37

murder, defendant’s fingerprints were found on her car, which was abandoned

near the home of his relatives in Santa Ana. Around the time of her murder, a

telephone call was made from Franklin’s telephone to these same relatives in

Santa Ana. Shortly after Franklin’s murder, the police observed scratches on

defendant’s body, and genetic tissue under Franklin’s fingernails that was

recovered after her murder was consistent with defendant’s DNA. When the

police questioned defendant about Franklin’s murder, he falsely told them he was

in his trailer that night, that he had never been in Franklin’s house and never

touched her car, and that he did not know anyone in Santa Ana.

In short, the evidence of defendant’s guilt was overwhelming. As a result,

any error in admitting evidence of the prior Tastee Doughnut Shop robbery during

the guilt phase did not prejudice defendant.

2. Instruction on uncharged conduct (CALJIC No. 2.50)

When orally instructing the jury with the 1994 revision of CALJIC No. 2.50,

the trial court omitted a portion of the standard instruction, italicized below:

“Evidence has been introduced for the purpose of showing that the defendant

committed crimes other than that for which he is on trial. [¶] Such evidence, if

believed, was not received and may not be considered by you to prove that

defendant is a person of bad character or that he has a disposition to commit

crimes. [¶] Such evidence was received and may be considered by you only for

the limited purpose of determining if it tends to show: [¶] A characteristic

method, plan or scheme in the commission of criminal acts similar to the method,

plan or scheme used in the commission of the offense in this case which would

further tend to show the existence of the intent which is a necessary element of the

crime charged. [¶] The existence of the intent which is a necessary element of the

crime charged. [¶] For the limited purpose for which you may consider such

38

evidence you must weigh it in the same manner as you do all other evidence in the

case. [¶] You are not permitted to consider such evidence for any other purpose.”

The written instructions did contain a complete version of CALJIC No. 2.50.

Defendant contends the incomplete instruction allowed the jury to consider

the uncharged conduct (the prior Tastee Doughnut Shop robbery) as evidence of

his intent during the charged conduct in this case (Franklin’s robbery, burglary,

and murder) without first determining whether the charged and uncharged conduct

were similar, and thus to infer improperly from the prior robbery that he was

predisposed to criminally violent behavior. Defendant claims the instruction

violated his rights under state law and the Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution, as well as sections 7 and 15

through 17 of article I of the California Constitution.

Defendant does not argue that the written instructions were incorrect, and he

acknowledges we often have held that when erroneous oral instructions are

supplemented by correct written ones, we assume the jury followed the written

instructions, particularly when, as here, the jury is instructed that the written

version is controlling. (See, e.g., People v. Osband (1996) 13 Cal.4th 622, 687-

688.) Defendant insists that these cases were wrongly decided. He does not

persuade us that we should reconsider the matter.

Defendant asserts there was no evidence that the jury actually received the

written instructions. We disagree. Although the record does not explicitly state

that the jury received the written instructions, it does show that the trial court

twice orally instructed the jury it would receive written instructions. (See CALJIC

No. 17.45.) If the jury had not received the written instructions, we presume it

would have told the court so. We therefore conclude that the jury was given the

written instructions.

39

Even if the jury never received a written version of CALJIC No. 2.50, the

trial court’s omission of the phrase “in the commission of criminal acts similar to

the method, plan or scheme” during the oral instructions was harmless under any

standard. Just before Officer William Hill testified about the prior robbery at the

Tastee Doughnut Shop, the trial court gave a limiting instruction to the jury about

uncharged acts. The instruction mirrored the language of CALJIC No. 2.50 and

included the phase “in the commission of criminal acts similar to the method, plan

or scheme,” which the court omitted from the oral closing instructions. Moreover,

Attorney Driggs specifically argued there was no plan or scheme common to both

the charged and uncharged conduct, while the prosecutor highlighted the

similarities of both. In addition, the court repeatedly told the jury not to use the

uncharged conduct as propensity evidence, giving this instruction during voir dire,

just before Officer Hill’s testimony, and as part of the oral closing instructions.

Both the prosecutor and defense counsel during closing arguments stressed that

the prior robbery could only be used as evidence of defendant’s intent during the

burglary, robbery, and murder of Franklin, or as evidence of a common plan or

scheme. In light of the totality of the court’s instructions and counsel’s explicit

arguments regarding the similarity, or lack thereof, of the charged and uncharged

conduct, it may reasonably be inferred that the jury understood it was first

required to find that the charged and uncharged offenses were similar before it

could consider the relevance, if any, of the uncharged conduct.

Finally, the court’s omission of a portion of CALJIC No. 2.50 did not

prejudice defendant because the instruction applied only to evidence of the prior

robbery at the Tastee Doughnut Shop, and we have held already there was no

prejudice in admitting evidence of the prior robbery. For the same reasons,

defendant suffered no prejudice from the trial court’s omission of a portion of

CALJIC No. 2.50 during the oral closing instructions.

40

3. Instruction on admissions (CALJIC No. 2.71)

Both parties initially asked the trial court to instruct the jury with CALJIC

No. 2.71, which warns the jury to view a defendant’s admissions with caution.

But after some discussion, both parties withdrew their requests for the instruction.

Nonetheless, defendant argues that, by not instructing the jury with CALJIC

No. 2.71, the trial court violated his rights under the Sixth, Eighth, and Fourteenth

Amendments to the United States Constitution, as well as sections 7 and 15

through 17 of article I of the California Constitution.

CALJIC No. 2.71 reads: “An admission is a statement made by [a] [the]

defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for

which the defendant is on trial, but which statement tends to prove [his] [her] guilt

when considered with the rest of the evidence. [¶] You are the exclusive judges

as to whether the defendant made an admission, and if so, whether that statement

is true in whole or in part. [¶] [Evidence of an oral admission of [a] [the]

defendant not made in court should be viewed with caution.]” “When evidence is

admitted establishing that the defendant made oral admissions, the trial court

ordinarily has a sua sponte duty to instruct the jury that such evidence must be

viewed with caution. [Citation.]” (People v. Slaughter (2002) 27 Cal.4th 1187,

1200.)

Defendant asserts that his statements to Detective Gary DeVinna that the

scratches on his chest were itch scratches, that he was in his trailer the night

Franklin was killed and spent the next day performing various tasks, that he did

not know anyone in Santa Ana and had not been there in the months before

Franklin’s death, that on previous visits to Santa Ana he normally caught a bus

near where Franklin’s car was found, and that he never entered Franklin’s house

or touched her car were admissions that warranted a jury instruction. The

41

Attorney General concedes the trial court erred in failing to instruct the jury with

CALJIC No. 2.71. We agree.

Defendant contends that the trial court’s instructional error violated his

federal constitutional rights, and that reversal is required unless the error was

harmless beyond a reasonable doubt. (See Chapman v. California (1967)
386 U.S. 18, 24.) The Attorney General argues, however, that the error requires

reversal only if it is reasonably probable that the error had an effect on the verdict.

(See People v. Watson (1956) 46 Cal.2d 818, 836.) We need not decide which

standard to apply because the error was not prejudicial under either standard. The

purpose of CALJIC No. 2.71 is to help the jury determine whether the statements

(in this case, defendant’s statements to Detective DeVinna) were ever made.

(People v. Livaditis (1992) 2 Cal.4th 759, 784.) Defendant did not cross-examine

DeVinna about his statements, nor is there any evidence that would cast doubt on

the detective’s testimony about the statements. There is simply no dispute as to

whether defendant made these statements, or whether DeVinna accurately recalled

them.

Defendant also argues that his signed statement on the redacted guilty plea

form admitting that he committed the prior Tastee Doughnut Shop robbery was an

admission, which permitted the jury to infer that because his alibi in that case was

false, his alibi in this case also must be false. Defendant does not cite any

authority for the proposition that juries must be instructed to view with caution

admissions made as part of a plea bargain stemming from uncharged conduct.

Even if we assume such an instruction is necessary, there was, for the reasons

stated above, no prejudice because defendant never disputed that he signed the

statement.

42

4. Instruction on willfully false statements (CALJIC No. 2.03)

Defendant contends the trial court erred in instructing the jury that it could

consider, as evidence of his guilt, any willfully false statements that he had made.

CALJIC No. 2.03, as read by the trial court, states: “If you find that before this

trial the defendant made a willfully false or deliberately misleading statement

concerning the crime for which he is now being tried, you may consider such

statement as a circumstance tending to prove a consciousness of guilt. However,

such conduct is not sufficient by itself to prove guilt, and its weight and

significance, if any, are matters for your determination.”

Here, the prosecution introduced evidence that defendant made willfully false

statements to Detective Gary DeVinna that he spent the night of April 12, 1994, in

his trailer and that he spent the following day looking for a job and at the park.

Defendant argues that when the trial court gave CALJIC No. 2.03, it inaccurately

instructed on the inferences the jury could properly draw from these statements,

thereby violating his rights under the Sixth, Eighth, and Fourteenth Amendments

to the United States Constitution, as well as sections 7 and 15 through 17 of article

I of the California Constitution.

According to defendant, CALJIC No. 2.03 creates a permissive presumption,

and instructions creating such presumptions are constitutional only if there is a

rational connection between the facts found by the jury and those implied by the

instruction. (See Ulster County Court v. Allen (1979) 442 U.S. 140, 156-157.)

Here, defendant claims, the instruction allowed the jury to infer from his false

statements that he killed Franklin with premeditation, or that he killed her in the

course of a burglary or robbery. These inferences, he asserts, are irrational. We

consistently have rejected similar claims. (See, e.g., People v. Geier (2007)

41 Cal.4th 555, 589; People v. Griffin (1988) 46 Cal.3d 1011, 1027; People v.

Crandell (1988) 46 Cal.3d 833, 871.)

43

5. Sufficiency of the evidence for the torture-murder special-
circumstance finding


Defendant contends the evidence presented at trial was insufficient to support

the jury’s torture-murder special-circumstance finding. We agree.

First degree murder is punishable by death if the murder “was intentional and

involved the infliction of torture.” (§ 190.2, subd. (a)(18).) The torture-murder

special circumstance requires proof that a defendant intentionally performed acts

that were calculated to cause extreme physical pain to the victim. (Cole, supra, 33

Cal.4th at p. 1228.) Required is “an intent to cause cruel or extreme pain and

suffering for the purpose of revenge, extortion, persuasion, or for any other

sadistic purpose.” (People v. Elliot (2005) 37 Cal.4th 453, 479, fn. omitted

(Elliot).) We review the entire record, in the light most favorable to the

prosecution, to determine whether a rational trier of fact could have found the

essential elements of the torture-murder special-circumstance allegation beyond a

reasonable doubt. (See Jackson v. Virginia (1979) 443 U.S. 307, 319; People

v. Osband, supra, 13 Cal.4th at p. 690 [test for sufficiency of a special

circumstance finding is the same as that for a criminal conviction].)

Here, there is ample evidence that when defendant battered Franklin to death

with a blunt object, he caused her to experience great pain and suffering: The

pathologist, Dr. Garber, testified that Franklin’s injuries were “extremely painful.”

Defendant argues, however, that there is no evidence that he acted with an intent

to torture; that is, “for the purpose of revenge, extortion, persuasion, or for any

other sadistic purpose.” (Elliot, supra, 37 Cal.4th at p. 479.) The Attorney

General does not contend that defendant was motivated by revenge, extortion, or

persuasion, but he asserts that the jury reasonably could have found that defendant

committed the murder “with a ‘sadistic intent to cause the victim to suffer pain in

44

addition to the pain of death.’ [Citation.]” (People v. Bemore (2000) 22 Cal.4th

809, 841 (Bemore).) We are not persuaded.

The intent to torture “is a state of mind which, unless established by the

defendant’s own statements (or by another witness’s description of a defendant’s

behavior in committing the offenses), must be proved by the circumstances

surrounding the commission of the offense [citations], which include the nature

and severity of the victim’s wounds.” (People v. Crittenden (1994) 9 Cal.4th 83,

141, italics added (Crittenden).) “We have, however, cautioned against giving

undue weight to the severity of the wounds” (People v. Chatman (2006)

38 Cal.4th 344, 390 (Chatman)); severe injuries may also be consistent with the

desire to kill, the heat of passion, or an explosion of violence.

Here, the prosecution introduced statements by defendant that were probative

of his intent when he murdered Franklin: Defendant’s sister, Cynthia, testified

that before the murder, defendant had told her “on a constant basis” that if he ever

committed another robbery, he would have to kill the victim to avoid being

identified. This is strong evidence that defendant entered Franklin’s house

intending to kill her, but it is not evidence from which a rational trier of fact could

infer that he beat Franklin to death for a sadistic purpose. Rather, defendant’s

statements to his sister suggest that he killed Franklin to ensure that she would not

survive to identify him as the person who had robbed her.

Nor do the circumstances of the offense or the nature of the wounds provide

evidence from which a rational trier of fact could infer an intent to torture.

Defendant killed Franklin by hitting her repeatedly in the head with a blunt object.

Franklin also sustained defensive wounds to her hands, as well as minor wounds

to her arms and shoulders. The killing was brutal and savage, but there is nothing

in the nature of the injuries to suggest that defendant inflicted any of them in an

attempt to torture Franklin rather than to kill her.

45

The Attorney General is unable to point to any other case in which we

have upheld a jury’s torture-murder special-circumstance finding based on facts

comparable to the evidence presented here. When we have upheld such

findings, the evidence has shown that the defendant deliberately inflicted

nonfatal wounds or deliberately exposed the victim to prolonged suffering.

(See People v. Whisenhunt (2008) 44 Cal.4th 174, 201 [defendant

“methodically poured” hot oil on multiple portions of the victim’s body];

Chatman, supra, 38 Cal.4th at p. 390 [the defendant inflicted over 50 stab

wounds all over the victim’s body, and later told a friend he persisted in

stabbing the victim because it “felt good”]; Elliot, supra, 37 Cal.4th at p. 467

[the defendant inflicted 81 stab wounds, only three of which were potentially

fatal, and meticulously split the victim’s eyelids with a knife]; Cole, supra, 33

Cal.4th at pp. 1212-1214, 1229-1230 [defendant made statements indicating he

was angry at the victim, poured gasoline over her body, and set it alight];

Bemore, supra, 22 Cal.4th at p. 842 [defendant inflicted eight unusual nonfatal

wounds in the victim’s flank before stabbing him to death and made statements

implying that he inflicted those wounds in an effort to persuade the victim to

open a safe]; Crittenden, supra, 9 Cal.4th at p. 141 [the defendant broke one

victim’s jaw before killing him and inflicted “fairly superficial cuts that clearly

were not intended to be lethal” in an attempt to persuade another victim to write

a check payable to the defendant]; People v. Proctor (1992) 4 Cal.4th 499, 531

[the defendant severely beat the victim and inflicted a series of nonfatal

“incision-type stab wounds to her neck, chest, and breast area” before strangling

her]; People v. Pensinger (1991) 52 Cal.3d 1210, 1240 [the defendant made

incisions with “a nearly scientific air” that demonstrated a calculated intent to

inflict pain]; see also People v. Cook (2006) 39 Cal.4th 566, 602-603 [evidence

sufficient to show first degree torture-murder where the defendant kicked and

46

beat the victim with a stick for a long period while he lay unresisting in the

street]; People v. Raley (1992) 2 Cal.4th 870, 889 [evidence sufficient to show

first degree torture-murder where the defendant inflicted 41 knife wounds on

the victim while she screamed, wrapped her in rugs and left her (still conscious)

in the trunk of his car for hours before throwing her down a ravine; he inflicted

similar injuries on the victim’s friend, who miraculously survived].)

Here, unlike the cases described above, there is no evidence that defendant

deliberately inflicted nonfatal wounds to the victim in an attempt to increase her

suffering. Nor is there evidence that defendant was angry at the victim or that he

had any motive to inflict “ ‘pain in addition to the pain of death.’ ” (Bemore,

supra, 22 Cal.4th at p. 841.)

As evidence of defendant’s sadistic intent, the Attorney General points out

that defendant tightly bound Franklin’s hands and feet. We agree with the

Attorney General that “[b]inding may take place in some instances of torture”

(Chatman, supra, 38 Cal.4th at p. 391), and in several cases we have noted that the

defendant bound the victim when summarizing the evidence supporting a jury’s

torture-murder special-circumstance finding (Bemore, supra, 22 Cal.4th at p. 842;

Crittenden, supra, 9 Cal.4th at p. 141; People v. Proctor, supra, 4 Cal.4th at p.

530), but in each of those cases the evidence of binding was accompanied by other

strong evidence of the defendant’s sadistic intent. We have never found that

evidence that the defendant bound the victim is, by itself, substantial evidence of

an intent to inflict sadistic pain. Here, defendant bound the victim in the course of

robbing her; it is not uncommon for robbers to bind their victims to prevent them

from resisting or escaping.

In short, the record does not contain “substantial evidence — that is,

evidence that is reasonable, credible, and of solid value” (Cole, supra, 33 Cal.4th

47

at p. 1212) from which the jury could find that defendant intended to torture

Franklin. We therefore vacate the torture-murder special-circumstance finding.

Defendant claims that our reversal of the torture-murder special circumstance

requires reversal of the judgment of death. We find the error harmless under any

standard. The jury properly considered two other valid special circumstance

findings (murder in the commission of a burglary and robbery), all of the facts and

circumstances underlying Franklin’s murder, and defendant’s lengthy criminal

record. There is no likelihood that the jury’s consideration of the mere existence

of the torture-murder special circumstance tipped the balance toward death. We

have frequently rejected similar contentions. (See, e.g., People v. Lewis (2008) 43

Cal.4th 415, 520-523; People v. Morgan (2007) 42 Cal.4th 593, 628; People

v. Halvorson (2007) 42 Cal.4th 379, 422; see also Brown v. Sanders (2006) 546

U.S. 212, 221-225.)

C. Penalty and Posttrial Issues

1. Automatic application to modify the verdict

Defendant contends the trial court erred under state law when, in denying his

automatic application for modification of the death verdict, it failed to state any

reasons for denying the application. He contends the error also violated the due

process guarantees of the Eighth and Fourteenth Amendments to the United States

Constitution.

Under section 190.4, subdivision (e), in every case in which there is a death

verdict, the defendant is deemed to have made an application for modification of

the verdict. In ruling on the application, the trial court reweighs the evidence,

considers the aggravating and mitigating circumstances, and determines whether,

in its independent judgment, the weight of the evidence supports the jury’s verdict.

(See People v. Burgener (2003) 29 Cal.4th 833, 891; People v. Rodriguez (1986)

48

42 Cal.3d 730, 793.) The court must state on the record the reasons for its

findings. (§ 190.4, subd. (e).) The ruling on an automatic application to modify

the death verdict must be “sufficiently articulated to assure meaningful appellate

review.” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1064 (Lewis and

Oliver).)

The entirety of defendant’s application and the trial court’s denial was as

follows:

“THE COURT: Is there going to be a formal motion to modify the judgment

or make it orally?

“MR. DRIGGS: Yes — well, orally.

“THE COURT: Okay. You want to do so, go right ahead.

“MR. DRIGGS: Yes, Your Honor. [¶] On behalf of [defendant], we make

an oral motion to the Court to modify the sentence that the jury returned of death

to the sentence of life without parole. [¶] The argument of that is merely that the

evidence as to, shall we say, lingering doubt and Klinefelter’s is such that the

appropriate punishment should be life without parole. Submit.

“THE COURT: People.

“[PROSECUTOR]: I submit on my Points and Authorities, unless the Court

wishes to heard further.

“THE COURT: I don’t. And I am denying the motion to modify the

judgment.”

By not stating its reasons for denying the modification motion, the trial court

did not comply with section 190.4’s subdivision (e), and the Attorney General

does not dispute the error. He contends, however, that defendant has forfeited this

issue because of his failure to object in the trial court. We agree. If a defendant

fails to make a specific objection to the court’s ruling at the modification hearing,

the claim is forfeited. (See People v. Riel (2000) 22 Cal.4th 1153, 1220.) This

49

rule applies only to cases in which the modification hearing was conducted after

the finality of this court’s decision in People v. Hill (1992) 3 Cal.4th 959, 1013.

(Riel, supra, 22 Cal.4th at p. 1220.) As defendant’s modification hearing was held

post-Hill, the forfeiture rule applies here.

Defendant insists that the forfeiture rule is inapplicable here because it has

only been applied when the trial court stated reasons for denying the modification

motion, thereby creating a record adequate to review its ruling, but the defendant

failed to object to the trial court’s consideration of inadmissible or irrelevant

evidence. (See, e.g., People v. Tafoya (2007) 42 Cal.4th 147, 196; People v.

Zambrano (2007) 41 Cal.4th 1082, 1183; Lewis and Oliver, supra, 39 Cal.4th at

p. 1064; People v. Martinez (2003) 31 Cal.4th 673, 701.) Those cases, defendant

argues, are distinguishable because “this Court had before it a record that made

clear the trial judge’s understanding of his duties . . . .” Here, he contends, “the

record does not show the judge’s understanding of his duty and authority . . . .”

For forfeiture purposes, we see no significant difference between a court that

states reasons for denying the modification motion and one that does not (as in this

case): In either event, the defendant must bring any deficiency in the ruling to the

trial court’s attention by a contemporaneous objection, to give the court an

opportunity to correct the error.

Pertinent here is People v. Horning (2004) 34 Cal.4th 871 (Horning). There,

after a penalty phase bench trial, the trial court rendered a death verdict and gave

its reasons for doing so. The court also explained its reasoning when it denied the

defendant’s motion for a new trial. (Id. at p. 911.) The question then arose

whether the defendant was entitled to a modification hearing. The defendant

agreed it was not necessary for the court to repeat its prior reasons, so the court

imposed a death sentence. (Id. at p. 912.) On appeal, the defendant claimed the

court erred by never ruling on his automatic application to modify his sentence.

50

We held that “[b]ecause defendant did not object [in the trial court], and the

hearing occurred after our decision in People v. Hill [, supra,] 3 Cal.4th 959, the

issue is not cognizable on appeal. [Citation.]” (Ibid.)

Defendant argues Horning, supra, 34 Cal.4th 871, is distinguishable because,

unlike this case, the trial court there understood its obligation to state reasons for

denying the defendant’s application for modification of the death verdict. But a

court’s understanding of its obligation to comply with section 190.4, subdivision

(e) is not relevant to whether the defendant has forfeited the issue by failing to

object. Thus, just as the defendant in Horning forfeited his claim that the trial

court failed to rule upon the automatic application, defendant here forfeited his

claim that the trial court failed to state its reasons for denying the application.

2. Constitutionality of the death penalty

Defendant contends his death sentence violated various guarantees under the

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

well as sections 7 and 15 through 17 of article I of the California Constitution. As

we have in other cases, we reject defendant’s contentions. Specifically:

Section 190.3, factor (a) does not violate the Eighth Amendment. (Tuilaepa

v. California (1994) 512 U.S. 967, 975-976.) Factor (a) is not overbroad, nor does

it allow for arbitrary and capricious imposition of the death penalty. (See, e.g.,

People v. Williams (2008) 43 Cal.4th 584, 648.)

The prosecution is not constitutionally required to prove (either beyond a

reasonable doubt or by a preponderance of the evidence) either the existence or

greater weight of aggravating circumstances. (See, e.g., People v. Thornton

(2007) 41 Cal.4th 391, 468.) Contrary to defendant’s contention, neither Apprendi

v. New Jersey (2000) 530 U.S. 466 (Apprendi) nor Blakely v. Washington (2004)

51

542 U.S. 296 (Blakely) affected these conclusions. (See, e.g., People v. Barnwell

(2007) 41 Cal.4th 1038, 1059; Lewis and Oliver, supra, 39 Cal.4th at p. 1068.)

The trial court need not instruct on a presumption of life during the penalty

phase. (See, e.g., People v. Zamudio (2008) 43 Cal.4th 327, 373.)

The federal Constitution does not require the jury to agree unanimously on

which aggravating circumstances exist. (See, e.g., People v. Valencia (2008)

43 Cal.4th 268, 311.) Contrary to defendant’s contention, neither Apprendi,

supra, 530 U.S. 466, Blakely, supra, 542 U.S. 296, nor Ring v. Arizona (2002) 536

U.S. 584, has affected this conclusion. (See, e.g., People v. Hoyos (2007)

41 Cal.4th 872, 926; Lewis and Oliver, supra, 39 Cal.4th at p. 1068.)

The federal Constitution does not require written jury findings during the

penalty phase, and the lack of such findings does not deprive a capital defendant

of meaningful appellate review. (See, e.g., People v. Tafoya, supra, 42 Cal.4th at

p. 197.)

Intercase proportionality review is not constitutionally required. (See, e.g.,

People v. Richardson (2008) 43 Cal.4th 959, 1034.)

Equal protection does not require that capital defendants be afforded the

same sentence review afforded other felons sentenced under the determinate

sentencing law. (See, e.g., People v. Watson (2008) 43 Cal.4th 652, 703-704.)

3. Application of international law to the death penalty

Defendant contends California’s death penalty scheme violates the Eighth

and Fourteenth Amendments to the United States Constitution by violating

international law and norms of humanity and decency.

Article VI, section 1, of the International Covenant on Civil and Political

Rights (hereafter ICCPR) prohibits the arbitrary deprivation of life, while Article

52

VII prohibits “cruel, inhuman or degrading treatment or punishment.” The United

States is a signatory to the ICCPR. (People v. Brown (2004) 33 Cal.4th 382, 403.)

The parties disagree on whether defendant has standing to challenge the

death penalty under the ICCPR. (Compare United States v. Duarte-Acero (11th

Cir. 2000) 208 F.3d 1282, 1286 [individuals have standing], with Beazley v.

Johnson (5th Cir. 2001) 242 F.3d 248, 267-268 [individuals lack standing].) As

we have done in the past, we assume without deciding that defendant has standing

(see, e.g., People v. Prince (2007) 40 Cal.4th 1179, 1299; People v. Ramirez

(2006) 39 Cal.4th 398, 479; People v. Cornwell (2005) 37 Cal.4th 50, 106), but

we deny his claim on the merits. “The [ICCPR] . . . specifically permits the use of

the death penalty if ‘imposed only for the most serious crimes in accordance with

the law in force at the time of the commission of the crime.’ [Citations.]) And

when the United States ratified the treaty, it specially reserved the right to impose

the death penalty on any person, except a pregnant woman, duly convicted under

laws permitting the imposition of capital punishment. [Citations.]” (People v.

Perry (2006) 38 Cal.4th 302, 322.) Because the trial court here imposed

defendant’s sentence in accordance with the applicable law, his capital sentence

does not violate the ICCPR.

California’s status as being in the minority of jurisdictions worldwide that

impose capital punishment, especially in contrast with the nations of Western

Europe, does not violate the Eighth Amendment. (See, e.g., People v. Moon

(2005) 37 Cal.4th 1, 47-48.)

We therefore conclude California’s death penalty scheme does not violate

international law or norms of humanity and decency.

53

4. Cumulative error

Defendant contends that the cumulative effect of the guilt and penalty phase

errors requires reversal of his conviction and death verdict even if no single error

compels reversal. Whether considered separately or together, any errors or

assumed errors had no effect on the judgment.

III.

CONCLUSION

The torture-murder special-circumstance finding is vacated. The remainder

of the judgment, including the sentence of death, is affirmed.

KENNARD,

J.

WE CONCUR:

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




54



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

Name of Opinion People v. Mungia
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S060803
Date Filed: August 14, 2008
__________________________________________________________________________________

Court:
Superior
County: Riverside
Judge: J. Thompson Hanks

__________________________________________________________________________________

Attorneys for Appellant:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Jeffrey Gale,
Deputy State Public Defender, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Robert R. Anderson, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, William M. Wood and Lise Jacobson, Deputy
Attorneys General, for Plaintiff and Respondent.










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

Jeffrey Gale
Deputy State Public Defender
801 K Street, Suite 1100
Sacramento, CA 95814
(916) 322-2676

Lise Jacobson
Deputy Attorney General
110 West “A” Street, Suite 1100
San Diego, CA 92101
(619) 645-2293


Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:Cross Referenced Cases:
Thu, 08/14/200844 Cal. 4th 1101, 189 P.3d 880, 81 Cal. Rptr. 3d 614S060803Automatic Appealclosed; remittitur issued

MUNGIA (JOHN) ON H.C. (S166477)


Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Lise Jacobson, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2Mungia, John (Appellant)
San Quentin State Prison
Represented by Jeffrey J. Gale
Attorney at Law
5714 Folsom Blvd., No. 212
Sacramento, CA

3Mungia, John (Appellant)
San Quentin State Prison
Represented by Habeas Corpus Resource Center
Shelley Sandusky
303 Second Street, Suite 400 South
San Francisco, CA


Disposition
Aug 14 2008Opinion: Affirmed as modified

Dockets
Apr 7 1997Judgment of death
 
Apr 24 1997Filed certified copy of Judgment of Death Rendered
  4-7-97.
Apr 24 1997Penal Code sections 190.6 et seq. apply to this case
 
Jul 30 1997Record certified for completeness
 
Jul 30 2001Order appointing State Public Defender filed
  to represent applt for the direct appeal.
Aug 15 2001Date trial court delivered record to appellant's counsel
  3,410 pp. record (see Calif. Rules of Court, rule 39.50(c); the date of delivery is the date of mailing plus five days.
Aug 15 2001Received:
  notice from superior court of transmittal of 3,410-page record to appellant's counsel on 8-10-2001.
Aug 16 2001Appellant's opening brief letter sent, due:
  3-13-2002. (see rule 39.57(b))
Aug 28 2001Received:
  Suppl. notice from superior court, dated 8/16/2001, advising that 5 ascii disks were transmitted to applt.'s counsel on that date.
Sep 28 2001Counsel's status report received (confidential)
  from State P.D.
Nov 27 2001Counsel's status report received (confidential)
  from State P.D.
Dec 21 2001Received copy of appellant's record correction motion
  appellant's "request for correction of record, application for settled statements, application for additional records, and request for documentary exhibits." (52 pp.)
Jan 28 2002Counsel's status report received (confidential)
  from State P.D.
Feb 28 2002Request for extension of time filed
  To file AOB. (1st request)
Mar 1 2002Extension of time granted
  To 5/13/2002 to file AOB.
Mar 29 2002Counsel's status report received (confidential)
  from State P.D.
May 9 2002Request for extension of time filed
  To file AOB. (2nd request)
May 16 2002Filed:
  Suppl. declaration in support of application for extension of time to file AOB.
May 20 2002Extension of time granted
  To 7/12/2002 to file AOB. The court anticipates that after that date, only four further extensions totailng 240 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
May 28 2002Counsel's status report received (confidential)
  from State P.D.
Jul 8 2002Request for extension of time filed
  To file AOB. (3rd request)
Jul 12 2002Extension of time granted
  To 9/10/2002 to file AOB. The court anticipates that after that date, only three further extensions totaling 180 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Jul 25 2002Counsel's status report received (confidential)
  from State P.D.
Sep 10 2002Request for extension of time filed
  To file appellant's opening brief. (4th request)
Sep 12 2002Extension of time granted
  To 11/12/2002 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Sep 23 2002Counsel's status report received (confidential)
  from State P.D.
Nov 12 2002Request for extension of time filed
  To file appellant's opening brief. (5th request)
Nov 13 2002Extension of time granted
  To 1/13/2003 to file appellant's opening brief. The court anticiaptes that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to take all steps necessary to meet this schedule.
Nov 26 2002Counsel's status report received (confidential)
  from State P.D.
Jan 3 2003Request for extension of time filed
  to file appellant's opening brief. (6th request)
Jan 3 2003Counsel's status report received (confidential)
  from State P.D.
Jan 8 2003Extension of time granted
  To 3/14/2003 to file appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Supervising Deputy State Public Defender Jeffrey S. Gale's representation that he anticiaptes filing that brief by 7/15/2003.
Mar 5 2003Counsel's status report received (confidential)
  from State P.D.
Mar 6 2003Request for extension of time filed
  to file appellant's opening brief. (7th request)
Mar 10 2003Extension of time granted
  to 5/13/2003 to file appellant's opening brief. After that date, only one further extension totaling 60 additional days will be granted. Extensionis granted based upon Deputy State Public Defender Jeffrey J. Gale's representation that he anticipates filing that breif by 7/12/2003.
May 12 2003Counsel's status report received (confidential)
  from State P.D.
May 12 2003Request for extension of time filed
  to file appellant's opening brief. (8th request)
May 14 2003Extension of time granted
  to 7/14/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 120 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Jun 30 2003Counsel's status report received (confidential)
  from State P.D.
Jul 10 2003Request for extension of time filed
  to file AOB. (9th request)
Jul 16 2003Extension of time granted
  to 9-12-2003 to file AOB. The court anticipates that after that date, only one further extension totaling about 60 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Aug 28 2003Counsel's status report received (confidential)
  from State P.D.
Sep 10 2003Request for extension of time filed
  to file appellant's opening brief. (10th request)
Sep 12 2003Extension of time granted
  to 11/12/2003 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Nov 5 2003Counsel's status report received (confidential)
  from State P.D.
Nov 6 2003Request for extension of time filed
  to file appellant's opening brief. (11th request)
Nov 12 2003Extension of time granted
  to 1/12/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling 90 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all stpes necessary to meet it.
Jan 9 2004Counsel's status report received (confidential)
  from State P.D.
Jan 9 2004Extension of time granted
  to file appellant's opening brief. (12th request)
Jan 13 2004Extension of time granted
  to 3/12/2004 to file appellant's opening brief. The court anticipates that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Mar 9 2004Request for extension of time filed
  to file appellant's opening brief. (13th request)
Mar 9 2004Counsel's status report received (confidential)
  from State P.D.
Mar 12 2004Extension of time granted
  to 5/11/2004 to file appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Supervising Deputy State Public Defender Jeffrey J. Gales's representation that he anticipates filing that brief by 6/10/2004.
Apr 15 2004Record certified for accuracy
 
May 10 2004Counsel's status report received (confidential)
  from State P.D.
May 10 2004Request for extension of time filed
  to file appellant's opening brief. (14th request)
May 13 2004Extension of time granted
  to 6/11/2004 to file appellant's opening brief. After that date, no further extension will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
May 19 2004Request for extension of time filed
  to file AOB. (15th request)
May 21 2004Extension of time granted
  to 6-30-2004 to file AOB. After that date, no further extension will be granted. Counsel is ordered to inform his or her supervising attorney, if any, of this schedule, and to take all steps necessary to meet it.
May 21 2004Record on appeal filed
  Clerk's Transcript 18 volumes (2,382 pages) and Reporter's Transcript 28 volumes (2,343 pages) including material under seal. ASCII disks.
May 21 2004Letter sent to:
  counsel advising that record on appeal was filed this date.
Jun 25 2004Request for extension of time filed
  to file appellant's opening brief. (16th request)
Jul 2 2004Extension of time granted
  to 7/14/2004 to file appellant's opening brief. Extension is granted based upon Assistant State Public Defender Jay Colangelo's representation that he anticipates filing that brief by 7/14/2004. After that date, no further extension will be granted.
Jul 7 2004Counsel's status report received (confidential)
  from State P.D.
Jul 14 2004Appellant's opening brief filed
  (64,930 words - 236 pp.)
Jul 14 2004Motion for access to sealed record filed
  appellant's motion to unseal trial transcript.
Jul 15 2004Respondent's brief letter sent; due:
  November 12, 2004
Aug 10 2004Letter sent to:
  counsel advising that the court is considering whether to unseal, on its own motion, the transcript that is the subject of appellant's "Motion to Unseal Trial Transcript," filed on 7-14-2004. (See Cal. Rules of Court, rule 12.5(f)(2).) The court invites counsel to serve and file a response, on or before 8-17-2004, addressing whether the transcript in question is "required to be kept confidential by law" (Cal. Rules of Court, rule 12.5(a)), and if not, whether "(1) [t]here exists an overriding interest that overcomes the right of public access"; (2) [t]he overriding interest supports [continued] sealing"; "(3) [a] substantial probability exists that the overriding interest will be prejudiced" in the absence of continued sealing; "(4) [t]he proposed [continued] sealing is narrowly tailored"; and "(5) [n]o less restrictive means exist to achieve the overriding interest" (id., rule 243.1(d).
Aug 13 2004Filed:
  respondent's response to motion to unseal.
Aug 17 2004Filed:
  letter from appellant, dated 8-16-2004, in response to court's letter of 8-10-2004.
Sep 1 2004Motion for access to sealed record granted
  Appellant's "Motion to Unseal Trial Transcript," filed on July 14, 2004, is granted. The clerk is directed to unseal the following document and make it available for public access: "Sealed In Camera (Pages 60 to 62) Reporter's Transcript on Appeal, Proceedings had before the Honorable J. Thompson Hanks, Judge of Riverside County, Department 51, on January 13, 1997." The clerk is further directed to provide a copy of the unsealed document to Respondent.
Nov 3 2004Request for extension of time filed
  to file respondent's brief. (1st request)
Nov 8 2004Extension of time granted
  to 1/11/2005 to file respondent's brief.
Dec 29 2004Motion for access to sealed record filed
  respondent's application to unseal trial transcript.
Dec 29 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Jan 5 2005Filed:
  Appellant's response to respondent's motion to unseal trial transcript.
Jan 5 2005Extension of time granted
  to 2/10/2005 to file respondent's brief. Extension is granted based upon Deputy Attorney General Lise Jacobson's representation that she anticipates filing that brief by 2/10/2005. After that date, no further extension is contemplated.
Jan 19 2005Motion for access to sealed record granted
  Respondent's "Application to Unseal Trial Transcript," filed December 29, 2004, which is in substance an application for a copy of a sealed transcript pursuant to California Rules of Court, rule 31.2(a)(4), is granted. The clerk is directed to provide respondent with a copy of the 'Sealed Pretrial Proceedings Before the Honorable J. Thompson Hanks, Judge Presiding, Department 51, June 3, 1996, case number CR-59671 of the Consolidated Superior/Municipal Courts of Riverside County - Western Branch, volume 1PT-A, pages 131 -133.' (CT 242; RT 131-133) The transcript is to remain sealed.
Feb 1 2005Respondent's brief filed
  (36,931 words; 123 pp.)
Apr 1 2005Request for extension of time filed
  to file appellant's reply brief. (1st request)
Apr 6 2005Extension of time granted
  to 6/1/2005 to file appellant's reply brief.
May 26 2005Request for extension of time filed
  to file appellant's reply brief. (2nd request)
May 31 2005Extension of time granted
  to 8/1/2005 to file appellant's reply brief. Extension is granted based upon Supervising Deputy State Public Defender Jeffrey J. Gale's representation that he anticipates filing that brief by 8/1/2005. After that date, no further extension is contemplated.
Jul 28 2005Appellant's reply brief filed
  (17,551 words; 66 pp.)
May 29 2007Order appointing Habeas Corpus Resource Center filed
  Upon request of appellant for appointment of counsel, the Habeas Corpus Resource Center is hereby appointed to represent appellant John Mungia for habeas corpus/executive clemency proceedings related to the above automatic appeal now pending in this court. Any "petition for writ of habeas corpus will be presumed to be filed without substantial delay if it is filed . . . within 36 months" of this date (Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1.1), and it will be presumed that any successive petition filed within that period is justified or excused (see In re Clark (1993) 5 Cal.4th 750, 774-782), in light of this court's delay in appointing habeas corpus/executive clemency counsel on behalf of appellant John Mungia.
Jul 26 2007Counsel's status report received (confidential)
  from HCRC.
Aug 23 2007Change of contact information filed for:
  HCRC.
Sep 26 2007Counsel's status report received (confidential)
  from HCRC.
Nov 28 2007Counsel's status report received (confidential)
  from HCRC.
Jan 9 2008Counsel's status report received (confidential)
  from HCRC.
Mar 14 2008Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the May 2008 calendars, to be held the weeks of May 5 and May 26, 2008, in San Francisco. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Mar 25 2008Counsel's status report received (confidential)
  from H.C.R.C.
Apr 30 2008Case ordered on calendar
  to be argued on Wednesday, May 28, 2008, at 1:30 p.m., in San Francisco
May 8 2008Received:
  appearance sheet from Deputy State Public Defender Jeffrey Gale, indicating 30 minutes for oral argument for appellant.
May 9 2008Received:
  appearance sheet from Deputy Attorney General Lise Jacobson, indicating 30 minutes for oral argument for respondent.
May 9 2008Filed:
  respondent's focus issue letter, dated May 8, 2008.
May 14 2008Filed:
  appellant's focus issue letter, dated May 13, 2008.
May 15 2008Received:
  respondent's additional authorities letter, dated May 14, 2008.
May 19 2008Received:
  appellant's additional authorities letter, dated May 16, 2008.
May 27 2008Counsel's status report received (confidential)
  from HCRC.
May 28 2008Cause argued and submitted
 
Jul 11 2008Motion to withdraw as counsel filed
  by the State Public Defender.
Jul 24 2008Motion for appointment of counsel filed
  by Jeffrey J. Gale, Attorney at Law.
Jul 29 2008Counsel's status report received (confidential)
  from HCRC.
Aug 12 2008Filed:
  by Donald Ayoob, Chief Asst. State Public Defender, "Supplemental Declaration in Support of Motion to Withdraw as Counsel of Record for Appellant Mungia."
Aug 13 2008Notice of forthcoming opinion posted
 
Aug 14 2008Opinion filed: Judgment affirmed as modified
  The torture-murder special-circumstance finding is vacated. The remainder of the judgment, including the sentence of death, is affirmed. Opinion by Kennard, J. -----joined by George, C.J., Baxter, Werdegar, Chin, Moreno, and Corrigan, JJ.
Aug 20 2008Filed:
  by the Office of the State Public Defender, "Amended Certificate of Service" for the supplemental declaration filed on August 12, 2008.
Aug 29 2008Rehearing petition filed
  by State Public Defender (837 words; 5 pp.)
Sep 2 2008Time extended to consider modification or rehearing
  The time for granting or denying rehearing in the above-entitled case is hereby extended to and including November 12, 2008, or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 4 2008Related habeas corpus petition filed (post-judgment)
  No. S166477.
Sep 17 2008Withdrawal of counsel allowed by order
  Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant John Mungia, filed July 11, 2008 (supplemental supporting declaration filed Aug. 12, 2008), is granted. The order appointing the State Public Defender as appellate counsel of record for appellant John Mungia, filed July 30, 2001, is hereby vacated. Jeffrey J. Gale is hereby appointed as counsel of record to represent appellant John Mungia for the direct appeal in the above automatic appeal now pending in this court.
Sep 24 2008Rehearing denied
  The petition for rehearing is denied. Corrigan, J., was absent and did not participate.
Sep 24 2008Remittitur issued (AA)
 
Oct 2 2008Received:
  acknowledgement of receipt of remittitur.
Dec 1 2008Counsel's status report received (confidential)
  from HCRC.
Dec 23 2008Received:
  copy of appellant's petition for writ of certiorari. (12 pp. excluding appendices.)
Jan 9 2009Received:
  letter from USSC, dated January 5, 2009, advising that petition for writ of certiorari was filed on December 22, 2008 and placed on the docket January 5, 2009 as No. 08-8010.
Mar 2 2009Certiorari denied by U.S. Supreme Court
 
Jul 15 2009Compensation awarded counsel
  Atty Gale
Aug 13 2009Compensation awarded counsel
  Atty Gale

Briefs
Jul 14 2004Appellant's opening brief filed
 
Feb 1 2005Respondent's brief filed
 
Jul 28 2005Appellant'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
Dec 15, 2008
Annotated by admin.ah

Written by: Benjamin T. Alden
PROCEDURAL HISTORY: Defendant was convicted following jury trial in the
Superior Court, Riverside County, No. CR-59671, J. Thompson Hanks, J., of first degree
murder with special circumstance allegations and was sentenced to death. The case
reached the California Supreme Court on automatic appeal. California Penal Code §
1239, subd. (b).

PROCEDURAL HISTORY: Defendant was convicted following jury trial in the
Superior Court, Riverside County, No. CR-59671, J. Thompson Hanks, J., of first degree
murder with special circumstance allegations and was sentenced to death. The case
reached the California Supreme Court on automatic appeal. California Penal Code §
1239, subd. (b).

TRIAL COURT PROCEEDINGS: John Mungia was convicted by jury of first degree
murder of Alma Franklin in the guilt phase of his criminal trial. The case reached the
California Supreme Court on automatic appeal. California Penal Code § 1239, subd. (b).
During the trial, the prosecution presented evidence that Mungia murdered Franklin by
witness testimony that defendant was seen driving Franklin’s car shortly after the murder,
a telephone call made from the victim’s phone shortly after the estimated time of murder
to defendant’s aunt, and DNA evidence found under the victim’s fingernails that pointed
to the defendant. Additionally, the prosecution admitted evidence of a prior robbery to
show a common plan or scheme and to prove defendant’s intent. The defense presented
no evidence during the guilt phase. The prosecution then presented aggravating
circumstances pursuant to California Penal Code § 190.3 requirements for imposing the
death penalty. The prosecution presented evidence of a prior robbery where defendant
pled guilty to mayhem, robbery, attempted murder, and two counts of assault with a
deadly weapon (§ 190.3, factors (b) and (c)), other prior criminal activity resulting in
felony convictions (§ 190.3, factors (b) and (c)), other prior criminal activity ((§ 190.3,
factor (b)), and victim impact testimony (§ 190.3, factor (a)). The defense presented
testimony from geneticists that defendant has Klinefelter’s syndrome, which could present
problems with language skills, fertility, and intelligence. A male with Klinefelter’s is
usually less aggressive, but may have poor impulse control.

ISSUES: Should the trial court’s death penalty verdict be affirmed on automatic appeal?
California Penal Code § 1239, subd. (b) (When upon any plea a judgment of death is
rendered, an appeal is automatically taken by the defendant without any action by him or
her or his or her counsel).
Pretrial issues:
Did the trial court err by:
- Denying defendant’s pretrial continuance requests? [CrimLaw > CrimProc >
Continuance]
- Removing the public defender as defendant’s counsel of record? [CrimLaw >
CrimProc > Counsel > Removal of Public Counsel]
- Denying defendant’s motion made under People v. Marsden to replace the attorney the
trial court appointed after it removed the public defender? [CrimLaw > CrimProc >
Counsel > Court Removal of Public Counsel > Court Appointment of New Counsel
> Marsden Motion]
Guilt phase issues:
Did the trial court:
- Improperly admit uncharged conduct? [CrimLaw > Trial > Evidence > Admission of
Evidence > Uncharged Conduct]
- Improperly instruct the jury on uncharged conduct without first determining whether the
charged and uncharged conduct were similar? [CrimLaw > Trial > Jury Instructions >
Uncharged Conduct]
- Err in not instructing the jury to view a defendant’s admissions with caution [CrimLaw
> Trial > Jury Instructions > Defendant Admissions]
- Improperly instruct the jury that it could consider, as evidence of his guilt, any willfully
false statement that he had made? [CrimLaw > Trial > Jury Instructions > Willfully
False Statements]
Was the evidence presented at trial insufficient to support the jury’s torture-murder
special-circumstance finding? [CrimLaw > Trial > Death Penalty > Penalty Phase >
Torture-Murder Special-Circumstance]
Penalty phase and post-trial issues:
Did the trial court:
- Err under state law when it failed to state any reasons for denying his automatic
application for modification of the death verdict [CrimLaw > Post-Trial > Death
Penalty > Automatic Application to Modify the Verdict > Procedure]
- Violate the Sixth, Eight, and fourteenth Amendments to the United States Constitution
by imposing the death penalty? [CrimLaw > Death Penalty > Constitutionality >
United States Constitution]
-Violate international law and norms of humanity and decency? [CrimLaw > Death
Penalty > Constitutionality > International Law]
Did the cumulative effect of the guilt and penalty phase errors require reversal of his
conviction and death verdict even if no single error compels reversal?

CASE SUMMARY: The California Supreme Court affirmed the judgment of the jury in
part, but vacated the torture-murder special-circumstance finding.
Pretrial issues:
[CrimLaw > CrimProc > Continuance]. The California Supreme Court held that the
trial court could deny defendant’s request for a continuance and that, even if the court did
abuse its discretion, the defendant suffered no prejudice.
[CrimLaw > CrimProc > Counsel > Removal of Public Counsel]. The public defender
was properly removed from representing the client because the public defender’s office’s
estimated of nine to twelve months required to prepare for the case was determined
excessive, and constituted a delay without good cause.

[CrimLaw > CrimProc > Counsel > Court Removal of Public Counsel > Court
Appointment of New Counsel > Marsden Motion]. The trial court made an adequate
inquiry into the defendant’s Marsden motion to substitute counsel.The trial court did not
act unreasonably in appointing private counsel because there was not a conflict of interest
where the appointed counsel had originally worked for the court in preparing an estimate
of time required to take the instant case to trial.
Guilt phase issues:
[CrimLaw > Trial > Evidence > Admission of Evidence > Uncharged Conduct]. The
California Supreme Court held that the trial court did not improperly err in denying
defendant’s pretrial and midtrial motions to exclude evidence of prior conduct under
California Evidence Code §§ 352 and 1101(a) because any error was harmless.
[CrimLaw > Trial > Jury Instructions > Uncharged Conduct]. The trial court’s oral
omission of a portion of the standard uncharged conduct instruction (CALJIC No. 2.50)
was not an error because the California Supreme Court found that the jury was given the
written instructions.
[CrimLaw > Trial > Jury Instructions > Defendant Admissions]. The Supreme Court
also held that not issuing an instruction on admissions (CALJIC No. 2.71) after police
detective testimony was not prejudicial to defendant, without reaching the required
standard of review.
[CrimLaw > Trial > Jury Instructions > Willfully False Statements]. The trial court
properly issued an instruction on willfully false statements (CALJIC No. 2.03).
[CrimLaw > Trial > Death Penalty > Penalty Phase > Torture-Murder Special-
Circumstance]. The California Supreme Court overturned the jury finding of torturemurder
special-circumstance due to insufficient proof that the defendant intentionally
performed acts that were calculated to cause extreme physical pain to the victim.
Evidence of the severity of the wounds did not support the presumption of intent to
torture absent evidence of the circumstances and/or the defendant’s own statements. The
circumstances did not present evidence from which a rational trier of fact could infer intent
to torture.
Penalty phase and post-trial issues:
[CrimLaw > Post-Trial > Death Penalty > Automatic Application to Modify the
Verdict > Procedure]. The California Supreme Court held that the trial court did err by
not stating its reasons for denying the automatic post-trial modification motion, but that
the defendant forfeited the claim because of his failure to object in trial court.

[CrimLaw > Death Penalty > Constitutionality > United States Constitution]. The
court rejected defendant’s contention that the death penalty violates the United States
Constitution.
[CrimLaw > Death Penalty > Constitutionality > International Law]. The court
rejected defendant’s contention that the death penalty violates international law and norms
of humanity and decency.
The court held that the any errors or assumed errors had no effect on the judgment.

SUBSEQUENT HISTORY: Rehearing denied, Sept. 24, 2008. PEOPLE OF THE
STATE OF CALIFORNIA, Plaintiff and Respondent, v. John MUNGIA, defendant and
Appellant., 2008 WL 4566411 (Appellate Petition, Motion and Filing) (Cal. Aug. 29,
2008) Petition for Rehearing (NO. S060803).

STUDENT ANALYSIS: This case is interesting because it results from an automatic
appeal resulting from the imposition of the death penalty. As such, this case presents the
sole realistic opportunity for a defendant to overturn his death sentence. Defense counsel
will use this as an opportunity to appeal everything under the sun, with or without a
colorable claim. This is evident in the instant case during the post-trial issues where
defendant challenges the constitutionality of the death penalty under both United States’
and California’s constitution, as well as international law. As the court clearly points out,
the same contentions have previously been rejected before in similar applications. The
court even went so far as to assume that the defendant had standing to challenge the death
penalty under the International Covenant on Civil and Political rights so as to strike it
down on the merits and hold that California’s death penalty scheme does not violate
international law or norms of humanity and decency.
Additionally, as noted in the California Appellate Report blog (sourced below under News
Sources), the facts of this case appeared to matter greatly to Justice Kennard. The
opinions for both Mungia and the case of People v. Wallace
(http://www.courtinfo.ca.gov/opinions/documents/S033360.PDF), were issued on the
same day presented similar facts: a first degree murder involving the brutal murder of an
elderly woman. Justice Kennard did not mince words in Wallace when rebutting a
proportionality argument. (“In the course of a residential burglary, defendant beat to
death a frail, elderly woman who was particularly vulnerable because of her age and her
poor physical condition. He also attempted to rob and sexually assault her. On these facts,
the death sentence is not grossly disproportionate to defendant’s culpability.") As the
California Appellate Report blog noted: “Facts matter.” The brutal murders in both cases
made the defendant much less sympathetic to the court and manifested itself in terser
dismissal of defendant’s claims.