Stanford Law School - Robert Crown Law Library

Filed 2/22/11

IN THE SUPREME COURT OF CALIFORNIA

THE PEOPLE,
Plaintiff and Respondent,
S110541
v.
DAVID LESLIE MURTISHAW,
Kern County
Defendant and Appellant.
Super. Ct. No. SCO 19333A

Capital defendant David Leslie Murtishaw comes before this court for the
third time. “[In 1978 a] jury convicted [defendant] of three counts of first degree
murder . . . . (Pen. Code, § 187; former § 217.)[1] The jury also sustained one
firearm-use allegation (§ 12022.5) and one multiple-murder special-circumstance
allegation. (Former § 190.2, subd. (c)(5).) After a penalty trial, the jury set the
penalty at death under the 1977 death penalty law. (See former § 190.1 et seq.;
Stats. 1977, ch. 316, §§ 7-13, pp. 1257-1262.) This court affirmed the guilt and
special circumstance findings but reversed the penalty judgment. (People v.
Murtishaw (1981) 29 Cal.3d 733 [175 Cal.Rptr. 738, 631 P.2d 446] (Murtishaw
I).) After a penalty retrial, a jury once again determined that defendant should
suffer the ultimate punishment.” (People v. Murtishaw (1989) 48 Cal.3d 1001,

1
All further unspecified statutory references are to the Penal Code.
1

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1006-1007, fn. omitted (Murtishaw II).) In Murtishaw II, we “reject[ed]
defendant‟s attempt to reopen the validity of the guilt judgment [and found] no
error at the second penalty trial which warrant[ed] reversal of the verdict. We
therefore affirm[ed] the judgment in full.” (Id. at p. 1007.) In 2001, however, the
Ninth Circuit Court of Appeals, while affirming the federal district court‟s denial
of defendant‟s petition for writ of habeas corpus as to the guilt phase, reversed its
denial of the writ as to the death sentence and remanded the case for a second
penalty retrial. (Murtishaw v. Woodford (9th Cir. 2001) 255 F.3d 926 (Murtishaw
III).) Upon retrial, the jury once again returned a verdict of death. This appeal
followed.
I. STATEMENT OF FACTS AND THE CASE
A. The Circumstances Surrounding the Murders
On the morning of April 9, 1978, Lance Wyatt, a film student, went into the
Mojave Desert to shoot a film for his cinema class with his wife, Marti Soto, and
two friends, Ingrid Etayo and James Henderson.2 They arrived at their location
about noon, unloaded their equipment, and began filming. At some point,
defendant and his brother-in-law, Greg Laufenberger, stumbled onto the movie
set. The two men carried rifles and a six-pack of beer. Defendant told Wyatt that
his car had broken down and asked for a ride into town. Wyatt said he would give
the men a ride after he finished filming. The two men left. Later as Soto and
Etayo drove into the town to get lunch, they saw defendant and Laufenberger. The

2
At the time of the offenses, Lance Wyatt was known as Lance Buflo, and is
referred to as such in our earlier opinions and in the Ninth Circuit opinion.
However, he changed his named to Wyatt in 1984 and was referred to as Wyatt in
the retrial; we use Wyatt here as well.
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two men flagged the women down and asked them for a ride; the women declined
and kept driving.
Defendant and Laufenberger then returned to where Wyatt was filming.
Wyatt found their presence unsettling and went to speak to them. Defendant
smelled strongly of alcohol and was using profanity. At defendant‟s invitation,
Wyatt took a sip of defendant‟s beer and fired his rifle. Wyatt then returned to his
work. He prepared for the next scene, which required the use of a .38-caliber
revolver loaded with blanks. Defendant watched as Henderson fired the revolver
several times during the scene. A short while later, defendant and Laufenberger
again approached Wyatt and asked for a ride into town. He repeated his offer to
drive them after he finished filming. The two men decided to try their luck
hitchhiking and left.
Soto and Etayo returned with food. The four ate and then resumed filming.
When they began to lose the light they stopped for the day. As Wyatt, Henderson
and Soto were walking back to Wyatt‟s car with equipment, shots rang out and
Henderson called, “I‟ve been shot.” Wyatt dropped the equipment he was
carrying and went to Henderson‟s assistance; the two of them and Etayo managed
to make it around to the passenger‟s side of the car before more shots were fired.
A second volley hit Soto in the head as she was scrambling for cover. Wyatt and
Henderson got her around to the side of the car. There was a pause in the
shooting, and Henderson and Wyatt searched unsuccessfully for the car keys.
When the shooting started up again, Henderson sprinted from behind the car in an
effort to find help. A volley of bullets struck and killed him.
As Henderson fell to the ground, Wyatt looked beneath the car and saw
defendant raise his head up from behind a bush and fire at Wyatt. One of the shots
hit Wyatt in the hand. Wyatt and Etayo decided their best chance for survival was
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to run from defendant. Wyatt ran about 150 feet before he tripped and fell. He
looked back and saw defendant approaching Etayo. He ran another 150 feet and
stopped again. He saw defendant standing over Etayo who was kneeling beside
Soto. Wyatt ran. He heard several more shots — these shots killed Etayo.
Wyatt reached the highway and flagged down a ride. On the drive into
town, he saw defendant and Laufenberger hitchhiking.
Wyatt later attempted to lead police back to the scene but was unfamiliar
with the area. Eventually, police came upon defendant‟s car. Wyatt was taken by
paramedics to the hospital, while police continued their search for Wyatt‟s car.
They found the car and the bodies of Henderson and Etayo. Soto was also
discovered, wounded but still alive. She was taken to the hospital, where she died.
An autopsy revealed that she was killed by a single gunshot to the head.
Henderson had sustained six gunshot wounds, three of them fatal. Etayo sustained
10 or 11 gunshot wounds, three of them fatal. The bullets removed from the
victims‟ bodies were consistent with a semiautomatic rifle found near defendant‟s
abandoned car.
B. Defendant’s Statement to Police
After defendant surrendered to the police, he gave a tape-recorded
statement in which he admitted the shootings. Defendant told police that he, his
wife, his sister, Beverly Laufenberger, and his brother-in-law, Greg Laufenberger,
were playing cards and drinking the night before the shooting. His brother-in-law
suggested that they “go out into the desert.” The following morning they left,
taking with them a .22-caliber pump rifle and a case of 500 shells. They started
out with two six-packs of beer, then stopped and bought another six-pack. Their
car had been giving them trouble. After arriving in the desert, defendant drove
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down a dirt road and had to slam on the brakes to avoid going into a ditch. After
that, the car would not start.
Defendant and Laufenberger left the car. They were drinking beers and
“were pretty high” when they came upon the victims making their film. They
asked for a ride into town. They walked back to their car, and unsuccessfully tried
to start it again. They headed back to the filming location. On the way they saw
the two women driving away. Defendant asked them for a ride into town and they
said “no.” Defendant and his brother-in-law went back to where the male victims
were filming and sat and watched them. At one point Wyatt came up and spoke to
defendant. He drank some of defendant‟s beer and fired off defendant‟s rifle
before returning to the set.
Defendant and Laufenberger left again and went out into the desert where
they shot tin cans and drank beer. As it began to get dark, they returned to the film
location. The victims were “lighting this tree on fire and dancing around it or
something and . . . this one person I think a girl . . . had this pistol and she was
shootin[g] off . . . and this guy was taking pictures.” Defendant saw them heading
toward their car and he and Laufenberger approached them. About 30 feet from
the victims‟ car, “something went bang” and it came toward defendant. He started
firing in the direction of the victims. Defendant fired all his bullets and “was
putting some more in” when he heard his brother-in-law shout, “Throw out your
gun.” Then he saw someone running toward him and he started firing again.
After the shooting stopped, Laufenberger told defendant “let‟s get in their car,” but
defendant said no because he saw “gas or something leaking” from it. They
started running. Defendant said he was “scared and just mixed up.” They again
tried to start their car but it would not start. Eventually, they hitchhiked back to a
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gas station where they called their families. Defendant‟s wife came to pick them
up. Later, defendant surrendered to the police.
Throughout the interview, defendant referred to his heavy drinking on the
day of the shootings, saying, for example, “I don‟t think I‟ve ever drank that much
before.” He denied having told his brother-in-law that they should shoot the
victims and take their car. He said, “I remember we were talking about something
like that and he was asking me if . . . I thought I could kill anybody. I told him I
didn‟t know.” He also indicated that his memory was unclear about the events: “I
can remember when I shot or something [but] I don‟t even know how many times
I shot. My brother-in-law said . . . I filled my clip twice or three times but I don‟t
know.” He insisted that he had only started shooting in response to hearing shots
from the victims because he was afraid that “someone was trying to hurt me or
something.”
C. Victim Impact Evidence
Over defendant‟s objection, a number of family members were permitted to
testify about how the loss of the three victims had affected them. Wyatt testified
that his wife, Marti Soto, had been his high school sweetheart, and described her
as “lively” and “full of life.” He told the jury he loved her and had dreamed that
he saw her on the street, but that she ignored him because he had left her in the
desert. He testified that, while he felt he had to escape the shooting, his “heart
says [he] should have stayed.” Wyatt explained to the jury that he had changed his
name from Buflo to Wyatt in 1984 because he “didn‟t want to give that name
[Buflo] to another woman.” However, he never remarried.
Soto‟s mother, Marta Soto, also testified about the impact of her daughter‟s
loss on the Soto family. She told the jury that her son “went almost crazy” after
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her murder because he felt he had failed to protect his sister. She testified that the
family had fallen away from its Catholic faith and had lived “like hermits.” She
told the jury she would never get over her daughter‟s death.
Testifying on behalf of Ingrid Etayo‟s family were Etayo‟s older sister,
Haydee Kassai, and her niece, Sybelle Sprague. Kassai testified that, at the time
of her death, Etayo had recently graduated from college, was engaged to be
married, and was about to embark on a trip to Europe as her college graduation
present. Her mother was “never the same” after Etayo‟s death and her father was
so deeply affected that he continued to write letters to her. The impact of her
sister‟s death on Haydee was that she “lived in fear,” and became anxious about
her own children‟s well-being.
Sprague was 10 years old when her aunt was murdered. She and her aunt
were very close and Sprague described her aunt as being “full of life.” After her
aunt‟s murder, Sprague‟s parents became “very strict, very overprotective,” and
Sprague herself later became “paranoid” about her own children‟s safety. She
concluded by telling the jury, “There is always a loss. You always feel it. It never
really goes away.”
Both of James Henderson‟s parents testified about the impact of his murder
on them. His mother, Patricia, testified that, at the time of his death, Henderson
was six weeks away from graduating from college and was engaged to be married.
He and his fiancée had planned to wed in Paris and then join the Peace Corps
together. Henderson‟s two brothers eventually moved out of California following
his murder because “[t]hey couldn‟t stay here any longer.” As for her, she told the
jury “It‟s been hell,” and “You never get over something like that.” Robert
Henderson testified that his son was “loving and ambitious. He had what I
thought was a great future ahead.” He told the jury that his son was not the only
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person he lost; he also lost “the possibility of grandchildren and probably
great[-]grandchildren.” Furthermore, after his son‟s death, Robert Henderson
testified that he gave up his construction business and became a groundskeeper
and bus driver for a school district because “I just didn‟t have it anymore.”
D. Defendant’s Mitigation Evidence
Defendant called James Esten, a correctional consultant, to testify about
defendant‟s prison record and the type of confinement that would be imposed
upon him were he sentenced to life without the possibility of parole. Defendant
was classified as a “grade A” inmate, which is “the most restrictive custody
available to inmates.” Supervision of inmates so classified is “constant and
direct.” Defendant was housed at San Quentin in a building called “North
Segregation,” which is a desirable housing unit. The commission of any infraction
by an inmate would lead to his removal from that building. Esten testified that
defendant had had no disciplinary actions in his 24 years of imprisonment on
death row in San Quentin, and he had remained housed in the North Segregation
building that entire time. In Esten‟s experience, it was “highly unusual” for an
inmate to have such a clean record. Esten testified further that, if defendant were
sentenced to life without possibility of parole, he would be transferred to a level 4
maximum security prison like Pelican Bay State Prison.
The grade A classification requires a nearly perfect disciplinary record.
Inmates who failed to maintain such records would be downgraded to “grade B,” a
classification that carried far fewer privileges than grade A. Death row inmates
are reviewed for reclassification every 120 days. Defendant had maintained his
grade A classification during the entire 24 years of his imprisonment. Esten
testified it was “very hard” for an inmate to maintain that rating for so long a
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period. The classification committee had described defendant as cooperative, and
noted his involvement in “self-help, improvement academic programs,” and Bible
studies. The committee had commended defendant for his positive attitude.
One of defendant‟s projects was described by James Moyers, a
psychotherapist holding a degree in religious studies with a focus on early
Christianity, who testified as an expert in religious studies, the Bible and
psychotherapy. Moyers talked about defendant‟s 1983 religious conversion after
which he embarked on a project to blend the four Gospels into a single narrative, a
process called “Gospel harmony.” According to Moyers, defendant had, by the
time of trial, produced three versions of the document. In order to perform this
task, defendant immersed himself in dictionaries and Bible commentaries, and had
“to learn[ ] something about phrasing, [and] basic grammar.” In addition,
defendant was working under the adverse conditions of death row. Although the
first version was for his own use, subsequent versions were distributed in the
United States and Europe. Moyer described defendant‟s Gospel harmonies as
“very coherent and very easily understood.” He testified that defendant‟s
dedication to this project was evidence that his religious conversion was authentic.
Evidence was also presented about defendant‟s family history of mental
illness and his use of the drug phencyclidine, known by its street name as PCP.
Defendant‟s sister-in-law, Susan Murtishaw, who was married to defendant‟s
younger brother, Steven, testified about her observations of the family‟s mental
health issues. In addition to Steven, defendant has two older brothers, Gerald and
Ronald, and a younger sister, Beverly. Murtishaw testified that defendant‟s
mother, Carol, and all his siblings had suffered from depression, stress and
anxiety, and defendant‟s mother and his brother Ronald had been hospitalized
because of their psychological issues. Both Carol and Steven also took medication
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for their depression and anxiety. Susan Murtishaw told the jury that defendant had
always been kind to her, and that, at the time of his arrest, he was married to a
woman who had three children, and he had worked to support his family.
Dr. Terence McGee, a physician specializing in addiction medicine — “the
study and treatment of people who use drugs and alcohol to the point of causing
problems for themselves and others” — also testified on defendant‟s behalf.
Based on his interview with defendant and review of relevant documents from the
family and other physicians, Dr. McGee described defendant as someone “who
has been abusing drugs since he was seven or eight years old” and who came from
“a quintessentially dysfunctional family full of drug abuse, alcohol abuse, and
schizophrenia.” He testified that defendant had “an enormous appetite for any sort
of drug which would seem to remove him from his abjectly miserable situation.”
According to McGee, defendant also suffers from obsessive-compulsive disorder.
He described a number of manifestations of the disorder he had observed in
defendant.
McGee testified that “[e]veryone in [defendant‟s] family has got mental
disorders, with the exception of the oldest brother.” He noted that defendant‟s
mother had been hospitalized in a state-run psychiatric hospital a number of times,
and one of his brothers had also been hospitalized for schizophrenia.
Addressing defendant‟s drug and alcohol consumption, McGee testified
that defendant admitted to using alcohol, barbiturates, cocaine, marijuana and
LSD. He told McGee that he had consumed 11 beers on the day of the shooting
and had also taken “[p]ills and he thinks PCP.” McGee opined that, after talking
to defendant about the murders, it was his subjective opinion that defendant did
not remember whether or not he committed the crimes. McGee thought that
defendant‟s use of PCP may have affected his ability to remember the events
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surrounding the shootings because the drug “creates an amnesic effect.” He also
testified that the combination of alcohol and PCP had a “synergistic effect” that
could also explain memory loss and aggressive behavior. Describing defendant as
“one of the strangest people I have ever met,” McGee ultimately opined that, on
the day of the shootings, defendant did not have “any . . . control over what he
was doing, particularly given if PCP and alcohol [are] factored in.”
Also testifying on defendant‟s behalf was Dr. Stephen Pittel, a forensic
psychologist, academician and director of research at a drug and alcohol abuse
treatment facility. Based on his extensive review of declarations from defendant‟s
family members and other experts who had examined defendant, from the
transcripts of defendant‟s earlier trials, and from interviews with defendant and
family members, Pittel provided a social history of defendant as well as expert
testimony about defendant‟s use of PCP.
Pittel confirmed that defendant‟s mother, brothers Ronald and Steven, and
sister Beverly had all been hospitalized for mental illnesses that included bipolar
disorder, schizophrenia and seasonal affective disorder. Defendant‟s mother in
particular had a “significant history of mental illness,” which included bipolar
episodes during which she would “just disappear, sometimes for weeks at a time.”
In addition to mental illness, there was also a history of serious drug abuse in
defendant‟s family. In short, Pittel described defendant‟s family as “the mother of
all dysfunctional families.”
With respect to defendant‟s substance abuse history, Pittel echoed McGee‟s
testimony that defendant was an early abuser of alcohol and drugs; by the time he
was 14 he was “drinking about a 12 pack of beer a day,” and sniffing gasoline.
Ultimately, PCP became “his drug of choice.” According to Pittel, PCP causes a
breakdown in the transmission from “muscle receptors in the skin that are [giving]
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feedback to your brain,” so that “the person loses all sense of their body in
relationship to their mind.” PCP causes users to “often seem impervious to pain”
because “they are not experiencing any sensations.” The drug also causes a
psychosis that can persist for as long as two or three months after the drug is
ingested. This drug-induced psychosis “is characterized by extreme
disorientation, often by visual and auditory hallucinations, and by a total loss of
contact with reality.”
In addition to the family history of mental illness and his own substance
abuse, defendant also had a history of head injuries. These included being hit over
the head by a bottle of wine, falling off the back of a car, swimming into a pane of
glass, and having a two-by-four board broken over his head. At least two of these
incidents had rendered him unconscious, one of them for a day and a half.
According to Pittel, the effects of these head injuries may have enhanced the effect
of any drugs that defendant took.
Citing evidence in the transcripts he had reviewed, Pittel opined that
defendant was under the influence of alcohol and PCP on the day of the murders,
and that he had also suffered some brain damage as a result of his history of head
injuries. Thus, in his opinion, defendant “was mentally impaired” at the time he
committed the murders.
E. Prosecution Rebuttal Evidence
In rebuttal, the prosecution called Bradley Borison, a state prison inmate
who had spoken with defendant about the murders. Borison testified that
defendant admitted he had shot the victims, but said he had been on PCP. He told
Borison he killed the victims to steal their car and drive back to Los Angeles to
buy more drugs.
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F. Sentencing
The jury returned a verdict of death. Defendant filed motions for a new
trial and for modification of the judgment. The motions were denied and he was
sentenced to death for each of the three murders. The sentences for the remainder
of the charges on which he was convicted were stayed. This appeal followed.
II. DISCUSSION
A. Failure to Give Defendant’s Instruction on Scope of Sentencing
Discretion
Defendant contends that the trial court committed reversible error by failing
to instruct the jury, as defendant requested, that it had the discretion to impose life
without the possibility of parole even if the factors in aggravation outweighed the
factors in mitigation.3 He maintains that this requested instruction was required
by “California law and the previous decisions in this case,” because “it is clear that
[his] jury had the discretion to reject the death penalty even if it found that the
aggravating factors outweighed the mitigating factors.” We conclude that the trial
court correctly refused to give the instruction.

3
Here, as elsewhere, defendant advances federal constitutional claims he did
not assert in the trial court. “ [W]e . . . entertain constitutional claims not raised
below only to the extent „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. . . . [¶] In [this] 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 a rejection of the newly applied constitutional “gloss” as well. No
separate constitutional discussion is required in such cases, and we therefore
provide none.‟ [Citation.]” (People v. Richardson (2008) 43 Cal.4th 959, 984, fn.
11.)
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As we noted in Murtishaw II, when defendant committed his crimes “the
death penalty statute passed by the Legislature in 1977 (the 1977 law) was still in
effect. (Stats. 1977, ch. 316, §§ 1-26, pp. 1255-1266.) The Briggs death penalty
initiative (the 1978 law) became effective thereafter, on November 8, 1978.”
(Murtishaw II, supra, 48 Cal.3d at p. 1025.) As relevant here, the 1977 law, after
enumerating 10 sentencing factors, directed that “the trier of fact shall consider,
take into account and be guided by the aggravating and mitigating circumstances
. . .” (former § 190.3, Stats. 1977, ch. 316, § 11), while the 1978 law adds, after
this language, the directive that the finder of fact “shall impose a sentence of death
if the trier of fact concludes that the aggravating circumstances outweigh the
mitigating circumstances.” (§ 190.3.) In Murtishaw II, we held that it was error
for the trial court in the first penalty phase retrial to have given instructions
modeled on the 1978 law rather than the applicable 1977 law, but we found the
error harmless. (Murtishaw II, supra, 48 Cal.3d at p. 1025.)
In Murtishaw III, the Ninth Circuit Court of Appeals reversed the death
judgment and remanded for retrial. The Ninth Circuit concluded that giving the
jury instructions “based on the bare language of the 1978 statute” violated the ex
post facto provisions of the United States Constitution because “[u]nder the 1977
statute the jury would have had discretion to reject the death penalty even if it
found that the aggravating factors outweighed the mitigating factors. However,
under the bare language of the 1978 statute the jury did not have this discretion.
Indeed, under the plain language of the 1978 statute, if aggravating circumstances
even slightly outweighed mitigating circumstances, death was mandatory.”
(Murtishaw III, supra, 255 F.3d at p. 961.)
At the current penalty phase retrial, the parties and the court agreed that the
jury had to be instructed with the language of the 1977 law. The jury was thus
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instructed that: “In determining which penalty is to be imposed on the defendant
you shall consider all of the evidence which has been received during the trial of
this case. You shall consider, take into account and be guided by the following
factors, if applicable . . . .” There followed 10 enumerated factors in aggravation
and mitigation.
Defendant, however, requested that the court give an additional instruction
“pointing out that even if the factors in aggravation outweigh mitigation, the jury
can still vote for life.” The trial court declined to do so. The trial court observed
that it was the use of the 1978 weighing instruction that had led the Ninth Circuit
to reverse the death sentence — specifically the language in the instruction that “if
you conclude that the aggravating circumstances outweigh the mitigating
circumstances, you shall impose the sentence of death.” The court said: “And that
was the problem. And that is not the instruction as it was given under the 1977
statute. . . . [I]t says simply, you shall consider, take into account and be guided
by the following factors . . . . And it doesn‟t give them any direction how they
should use their good judgment.” Defense counsel responded that, under the 1977
law, “even if . . . the factors in aggravation outweighed mitigation, [the jury] still
had the discretion to vote for life or for death.” The trial court agreed but said,
“There‟s nothing that they are going to be told that would guide them in any other
direction.” Therefore, the court declined to give the requested instruction.
The trial court was correct. The concept of weighing factors in aggravation
and mitigation was not part of the 1977 law under which defendant was tried, and
any reference to that process in this case would have been inappropriate. For that
reason, we rejected an argument similar to defendant‟s in People v. Ledesma
(2006) 39 Cal.4th 641 (Ledesma).
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In Ledesma, we found “no merit” in the defendant‟s claim that the trial
court erroneously denied “instructions proposed by the defense that would have
required the jury to „weigh‟ aggravating and mitigating factors. [Citation.] The
1977 death penalty law under which defendant was tried did not require
specifically that the jury weigh aggravating factors, and the jury was instructed, in
accordance with that statute, to „consider, take into account and be guided by‟ the
aggravating and mitigating circumstances. [Citation.] Furthermore, we have
noted that „there may well be no significant difference between‟ the 1977 law‟s
requirement that the jury „consider‟ the aggravating and mitigating factors and the
1978 law‟s requirement that the jury weigh these factors. [Citation.] Because the
jury was not instructed to weigh aggravating and mitigating factors, defendant‟s
further request for an instruction that the jury could return a verdict of life
imprisonment without the possibility of parole even if the aggravating factors
outweighed the mitigating factors was irrelevant and unnecessary.” (Ledesma,
supra, 39 Cal.4th at pp. 738-739.)
As in Ledesma, the jury in this case was correctly instructed under the
1977, which contained no weighing language. Defendant‟s instruction, by
introducing the concept of weighing, would have been, at best, anachronistic,
since that concept was not part of the 1977 law, and, at worst, confusing. It would
also have been unnecessary since the process by which the jury determines the
penalty under either version of the law is the same. That is, the language used in
the 1977 law requiring the jury to “consider” the relevant factors is essentially the
same as the 1978 law‟s directive to “weigh” the relevant factors in determining the
appropriate penalty.
As we explained in Murtishaw II, the 1978 law, “ „should not be
understood to require any juror to vote for the death penalty unless, upon
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completion of the “weighing” process, he decides that death is the appropriate
penalty under all the circumstances. . . . ‟ [Citation.] [¶] A 1978-law jury may
not approach this task arbitrarily or mechanically. Rather, each juror must assign
„whatever moral or sympathetic value he deems appropriate‟ to the relevant
sentencing factors, singly and in combination. He must believe aggravation is so
relatively great, and mitigation so comparatively minor, that the defendant
deserves death rather than society‟s next most serious punishment, life in prison
without parole. [Citation.] [¶] This analysis leaves a 1978-law sentencer with the
same range of potential mitigating evidence and the same broad power of leniency
and mercy afforded a 1977-law jury.” (Murtishaw II, supra, 48 Cal.3d at p. 1027.)
Defendant apparently believes that the language of the 1977-law instruction
given in this case — that the jury “consider, take into account and be guided by”
the enumerated factors — is less concrete than a jury instruction containing
weighing language. Therefore, he asserts, since the process is essentially the same
under either version of the statute, the trial court should have given his requested
instruction with the weighing language.
His argument fails. First, defendant‟s weighing language appears to
describe the kind of mechanical process that we have held is not intended by that
language. “[T]he word „weighing‟ is a metaphor for a process which by nature is
incapable of precise description. The word connotes a mental balancing process,
but certainly not one which calls for a mere mechanical counting of factors on
each side of the imaginary „scale,‟ or the arbitrary assignment of „weights‟ to any
of them.” (People v. Brown (1985) 40 Cal.3d 512, 541.) Indeed, the current
instruction on the weighing process for purposes of the 1978 law elaborately
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explains that process precisely so as to preclude the mechanical counting of factors
as a basis for the jury‟s decision. (CALCRIM No. 766.)4 Second, while we have
construed the process by which the jury exercises its discretion to be essentially
the same under either the 1977 or 1978 statute, the fact remains that each version
describes that process in different language — “consider” (1977) versus “weigh”
(1978). That difference must be respected. Instructions under each statute must
be couched in the language of the statute that applies, lest the jury potentially be
confused or misled. Indeed, it was the potential for confusion that led us to agree
with defendant in Murtishaw II that it was technically error — albeit harmless —
to instruct the jury at his first penalty phase trial in the language of the 1978 law.
(Murtishaw II, supra, 48 Cal.3d at p. 1028-1031.) Had the trial court in the
present proceeding given defendant‟s requested instruction, it would potentially
have committed the same error.
In his reply brief, defendant, for the first time, argues the instruction was
required under law of the case principles based on our decision in Murtishaw II.
“ „The doctrine of the law of the case is this: That where, upon an appeal, the
[reviewing] court, in deciding the appeal, states in its opinion a principle or rule of
law necessary to the decision, that principle or rule becomes the law of the case
and must be adhered to throughout its subsequent progress, both in the lower court
and upon subsequent appeal and . . . in any subsequent suit for the same cause of

4
Defendant asserts that this instruction is evidence that the instruction given
in his case was inadequate because the latter instruction contained no similar
language. Defendant ignores the fact that a definition of the weighing process is
required under current law only because current law in the form of section 190.3
introduced the concept of weighing several factors. Since the 1977 law did not
have such language, no such similar definition was required.
18

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action, and this [is true] although in its subsequent consideration this court may be
clearly of the opinion that the former decision is erroneous in that particular.‟ ”
(People v. Shuey (1975) 13 Cal.3d 835, 841, quoting Tally v. Ganahl (1907) 151
Cal. 418, 421.)
Defendant‟s law of the case argument is predicated upon our discussion in
Murtishaw II in which we concluded that the scope of the jury‟s discretion was
essentially the same under the 1977 and 1978 death penalty statutes. (Murtishaw
II, supra, 48 Cal.3d at p. 1026.) Defendant asserts that this conclusion required
the trial court to give his weighing instruction in this case. The issue before us in
Murtishaw II was the error in giving 1978-law instructions in a case governed by
the 1977 law. Defendant‟s construction of Murtishaw II turns that decision on its
head insofar as he now attempts to read our decision to require the very thing that
we determined was error — importing 1978-law instructions into a case involving
the 1977 statute. The law of the case doctrine has no application here.
B. Trial Court’s Failure to Give a Sua Sponte Instruction Regarding
Defendant’s Prior Penalty Phase Trials
As part of his trial strategy, defendant presented a “Death Row redemption”
defense in which he stressed, for example, his religious conversion and his 24-year
discipline-free record in prison. (See People v. Anderson (1990) 52 Cal.3d 453,
468.) Necessarily, the jury learned about defendant‟s prior death verdicts.
Defense counsel referred to them in closing argument, arguing, for instance, that
the prior death verdicts had brought no emotional relief to the families of the
victims.
Defendant now faults the trial court for its failure to have instructed the jury
sua sponte not to consider the fact of those prior verdicts in determining the
appropriate penalty. According to defendant, as a result of the trial court‟s
19

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instructional error: (1) “one or more jurors may have considered the fact that two
previous juries returned a death verdict in this case as a reason to impose death”;
(2) “an instruction was necessary to prevent the jury from dismissing or devaluing
[defendant‟s] mitigating evidence” because it had been deemed insufficient by two
previous juries, and; (3) “the jury‟s sense of responsibility for its decision was . . .
undermined by the knowledge that the two prior death judgments were both set
aside by a higher court.”
The argument is without merit.
Absent a request, the trial court was not required to give instructions
limiting the purpose for which the jury could consider the evidence. Evidence
Code section 355 states: “When evidence is admissible . . . for one purpose and is
inadmissible . . . for another purpose the court upon request shall restrict the
evidence to its proper scope and instruct the jury accordingly.” (Italics added.)
“Absent a request, a trial court generally has no duty to instruct as to the limited
purpose for which evidence has been admitted.” (People v. Cowan (2010) 50
Cal.4th 401, 479.) There is a “possible” narrow exception in the “ „occasional
extraordinary case‟ ” in which the evidence “ „is a dominant part of the evidence
against the accused, and is both highly prejudicial and minimally relevant to any
legitimate purpose.‟ ” (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052,
quoting People v. Collie (1981) 30 Cal.3d 43, 63-64.) That exception does not
apply here because the evidence in question was admitted not against defendant
but in his behalf. Accordingly, the trial court had no sua sponte duty to give a
limiting instruction regarding evidence of the prior death verdicts.
The argument also fails on its merits. In People v. Ramos (1997) 15
Cal.4th 1133, a similar claim was made and rejected by this court. In Ramos, the
trial court declined to instruct the jury not to consider the prior death verdict. We
20

---

found no error. “In Romano v. Oklahoma (1994) 512 U.S. 1 [114 S.Ct. 2004, 129
L.Ed.2d 1], the jury was not instructed in determining penalty to disregard the fact
a capital defendant had already been sentenced to death in another case. Although
the evidence may have been irrelevant, the Supreme Court found no Eighth
Amendment or due process violation because „the jury was not affirmatively
misled regarding its role in the sentencing process.‟ [Citations.] „[I]f the jurors
followed the trial court‟s instructions, which we presume they did [citation], this
evidence should have little — if any — effect on their deliberations. Those
instructions clearly and properly described the jurors‟ paramount role in
determining petitioner‟s sentence, and they also explicitly limited the jurors‟
consideration of aggravating factors to the four which the State sought to prove.‟
[Citation.] [¶] Similarly here, the trial court repeatedly directed the jury it must
determine the appropriate penalty in light of the statutory factors in aggravation
and mitigation. The court also expressly instructed that the determination
depended upon each juror‟s individual weighing of those circumstances.
Moreover, nothing in the evidence or argument of counsel was „inaccurate [or]
misleading in a manner that diminished the jury‟s sense of responsibility.‟
[Citation.] Accordingly, the omission of a specific instruction to disregard the
prior death sentence was not error. [Citation.]” (People v. Ramos, supra, 15
Cal.4th at p. 1181.)
The reasoning in Ramos is applicable here. The jury was repeatedly
instructed to base its determination on the evidence presented in this case, and, as
in Ramos, we presume the jury followed those instructions. Moreover, as was also
true in Ramos, there was nothing in the argument of either counsel that suggested
21

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responsibility for the determination of the penalty rested anywhere other than with
this jury.5 Finally, defendant‟s claim of prejudice is entirely speculative, for he
points to nothing in the record that supports his claim that any juror either voted to
impose the death penalty because the previous juries had done so or devalued
defendant‟s evidence because it had failed to persuade the previous juries.
Defendant‟s reliance on Caldwell v. Mississippi (1985) 472 U.S. 320 is also
unavailing. In Caldwell, a capital case, the prosecutor responded to a defense
argument emphasizing the gravity of the jury‟s role in deciding the penalty by
telling the jurors “ „your decision is not the final decision,‟ ” and “ „the decision
you render is automatically reviewable by the Supreme Court.‟ ” (Id. at pp. 325-
326.) In reversing, a plurality of the Supreme Court held “it is constitutionally
impermissible to rest a death sentence on a determination made by a sentencer
who has been led to believe that the responsibility for determining the
appropriateness of the defendant‟s death rests elsewhere.” (Id. at pp. 328-329.)
Subsequently, however, the Supreme Court has recognized that Caldwell‟s
holding may be narrower: “As Justice O‟Connor supplied the fifth vote in

5
Defendant attempts to distinguish Ramos because there the jury was
informed during the jury selection process of its duty to disregard the prior verdict.
The trial court mentioned this when it denied defendant‟s new trial motion, but
that admonition was not part of our analysis and rejection of defendant‟s claim on
appeal. (People v. Ramos, supra, 15 Cal.4th at pp. 1180-1181.) Defendant also
suggests that Ramos is distinguishable because it was tried under the 1978 law in
which the jury was limited to specific factors in aggravation and mitigation,
whereas here the jury‟s “consideration of aggravation and its determination of
penalty was not limited to the factors specified in the instruction.” This is a
misreading of the instructions. The jury was specifically told to consider the
evidence in light of the enumerated factors. There is nothing in the instructions
that encouraged, much less permitted, the jury to take into account the prior death
verdicts in determining the appropriate sentence.
22

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Caldwell, and concurred on grounds narrower than those put forth by the plurality,
her position is controlling. [Citations.] Accordingly, we have since read Caldwell
as „relevant only to certain types of comment — those that mislead the jury as to
its role in the sentencing process in a way that allows the jury to feel less
responsible than it should for the sentencing decision.‟ [Citation.] Thus, „[t]o
establish a Caldwell violation, a defendant necessarily must show that the remarks
to the jury improperly described the role assigned to the jury by local law.‟ ”
(Romano v. Oklahoma, supra, 512 U.S. at p. 9; see id. at p. 14 (conc. opn. of
O‟Connor, J.) [“The inaccuracy of the prosecutor‟s argument in Caldwell was
essential to my conclusion that the argument was unconstitutional. [Citation.] An
accurate description of the jury‟s role — even one that lessened the jury‟s sense of
responsibility—would have been constitutional”]; People v. Osband (1996) 13
Cal.4th 622, 694 [“Caldwell error occurs when the jury has been „affirmatively
misled . . . regarding its role in the sentencing process so as to diminish its sense of
responsibility‟ ”].)
In this case, the prosecutor did not affirmatively mislead the jury regarding
its role in the sentencing process so as to diminish its sense of responsibility for its
decision. Therefore, there was no Caldwell error in this case; nor, under Ramos,
did the trial court err by not giving a sua sponte instruction limiting consideration
of evidence of defendant‟s prior death verdicts.6

6
Defendant also suggests that People v. Duran (1976) 16 Cal.3d 282, bears
some relevance to this case. The point of that decision was to provide guidelines
to govern the imposition of physical restraints on a defendant in the courtroom.
As part of our discussion, we required the trial court to instruct the jury that such
restraints — if visible to the jury — should have no bearing on its decision. (Id. at
pp. 291-292.) That decision is inapplicable, directly or by analogy, to this case.
23

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C. Trial Court’s Refusal to Give Flannel Instruction
Defendant contends that the trial court erred when it rejected his proffered
instruction on “unreasonable self-defense” or imperfect self-defense pursuant to
People v. Flannel (1979) 25 Cal.3d 668. He asserts that the instruction was
justified because of statements he made to the police that he fired at the victims in
response to gunfire he believed was directed at him. Defendant acknowledges that
this doctrine applies to the issue of guilt. (Id. at p. 672 [a defense of imperfect
self-defense “negates malice so that the offense is reduced from murder to
manslaughter”].) Nonetheless, he maintains that, had the instruction been given at
the penalty phase, “defense counsel would have been able to remind [the jury] of
this legal principle . . . and argue that lingering doubt [remained] concerning
[defendant‟s] mistake of fact in determining whether [defendant‟s] should be
sentenced to death.”
In Murtishaw II, defendant contended that the trial court had erred by
failing to give an unreasonable self-defense instruction sua sponte. We expressed
doubt that the court had a sua sponte duty to so instruct but went on to reject the
claim on its merits. That decision controls here.
“[Defendant] further claims that the failure to so instruct precluded the jury
from considering the evidence adduced at the penalty retrial which was suggestive
of an unreasonable belief in the need for self-defense. [¶] We may quickly reject
this latter contention. The jury was instructed that a defendant‟s reasonable belief
in moral justification was a mitigating circumstance [citation], thus possibly
raising the negative inference that an unreasonable belief was not a proper
consideration. However, the jury was also instructed to consider in mitigation
„[a]ny other circumstance which extenuates the gravity of the crime even though it
is not a legal excuse for the crime.‟ [Citation.] Had the jury believed defendant‟s
24

---

evidence that he harbored an honest but unreasonable belief in the need for self-
defensive action, the instructions permitted consideration of that information as a
mitigating factor under [§ 190.3,] factor (j)-(k). [Citation.]” (Murtishaw II, supra,
48 Cal.3d at p. 1017.) For the same reason, we further rejected defendant‟s claim
that the trial court‟s failure to instruct on imperfect self-defense violated the Fifth
and Eighth Amendments to the United States Constitution because it prevented
him from arguing lingering doubt as a factor in mitigation. “The factor (j)-(k)
instruction given at the second penalty trial allowed the sentencer to consider any
„lingering doubts‟ about the culpability of defendant‟s conduct. No error
appears.” (Murtishaw II, at p. 1018, italics added.)
In this case, as in Murtishaw II, the trial court instructed the jury with
CALJIC No. 8.88.1, which included section 190.3, factor (k) allowing the jury, in
determining the appropriate sentence, to consider “[a]ny other circumstance which
extenuates the gravity of the crime even though it is not a legal excuse for the
crime, and any other aspect of the defendant‟s character or record that the
defendant offers as a basis for a sentence less than death, whether or not related to
the offense for which he is on trial.” Just as in Murtishaw II, instructing the jury
with this factor permitted the jury to consider defendant‟s imperfect self-defense
claim in determining the appropriate sentence. Accordingly, under the law of the
case doctrine, defendant‟s argument is foreclosed.7
We are not persuaded by defendant‟s further argument that changes in the
law since Murtishaw II have eroded our reasoning so as to preclude application of

7
Contrary to defendant‟s claim, Murtishaw II holding was not based on the
distinction between a sua sponte instruction and a requested instruction. Had we
intended to base our holding on that distinction, we would have said so.
25

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the law of the case doctrine. Defendant notes that in rejecting his claim that the
trial court had a sua sponte obligation to instruct on unreasonable self-defense, we
included a citation to People v. Wickersham (1982) 32 Cal.3d 307. In
Wickersham, we characterized unreasonable self-defense as a “defense” such that
an instruction on voluntary manslaughter based on this theory was required only if
requested or, sua sponte only, “ „if it appears that the defendant is relying on such
a defense, or if there is substantial evidence supportive of such of a defense and
the defense is not inconsistent with the defendant‟s theory of the case.‟ ” (Id. at
pp. 328-329.)
In People v. Barton (1995) 12 Cal.4th 186, we revisited our
characterization of unreasonable self-defense as a defense. We concluded that it
was not a true defense but “a shorthand description of one form of voluntary
manslaughter,” obligating the trial court to instruct on it, sua sponte, as a lesser
offense of murder “whenever the evidence is such that a jury could reasonably
conclude that the defendant killed the victim in the unreasonable but good faith
belief in having to act in self-defense.” (Id. at pp. 200-201.) This discussion in
Barton does not, however, undermine our conclusion in Murtishaw II that the
failure to give an unreasonable self-defense instruction in a penalty phase trial was
not error because other instructions permitted jury consideration of that claim as a
factor in mitigation.
D. Victim Impact Evidence
Defendant contends that the trial court erred in permitting relatives of the
victims to testify to the impact on their lives of the loss of their loved ones and by
failing to give a limiting instruction on the victim impact evidence. He also argues
that the trial court failed to exercise its discretion before denying his motion to
26

---

exclude the evidence pursuant to Evidence Code section 352. Finally, he contends
that the admission of such evidence violates the ex post facto and due process
clauses of the Fourteenth Amendment. We disagree.
“ As we have repeatedly held, victim impact evidence is relevant and
admissible pursuant to section 190.3, factor (a) as a circumstance of the crime so
long as it is not „so unduly prejudicial‟ that it renders the trial „fundamentally
unfair.‟ [Citations.] Admission of testimony presented by a few close friends or
relatives of each victim, as well as images of the victim while he or she was alive,
has repeatedly been held constitutionally permissible.” (People v. Russell (2010)
50 Cal.4th 1228, 1264-1265; see Payne v. Tennessee (1991) 501 U.S. 808.)
Although defendant contends that the victim impact evidence in this case
was “detailed, excessive, and emotionally-charged,” our review of the testimony
— summarized at the outset of this opinion — does not support that
characterization. To the contrary, the testimony of the victims‟ family members
— while undoubtedly emotionally charged — was relevant, restrained and
relatively brief. There was no error in the admission of this evidence.
Defendant asserts further that the trial court was required to have provided
sua sponte a limiting instruction on the jury‟s consideration of this evidence. Not
so. “Absent a request, a trial court generally has no duty to instruct as to the
limited purpose for which evidence has been admitted.” (People v. Cowan, supra,
50 Cal.4th 401, 479.) Defendant points to no authority that makes an exception to
this rule in the case of victim impact evidence.
We also reject defendant‟s claim that the trial court failed to exercise its
discretion when it denied his motion to exclude the evidence as more prejudicial
than probative under Evidence Code section 352. With respect to victim impact
evidence, we have said that “ „the trial court must strike a careful balance between
27

---

the probative and the prejudicial. [Citations.] On the one hand, it should allow
evidence and argument on emotional though relevant subjects that could provide
legitimate reasons to sway the jury to show mercy or to impose the ultimate
sanction. On the other hand, irrelevant information or inflammatory rhetoric that
diverts the jury‟s attention from its proper role or invites an irrational, purely
subjective response should be curtailed.‟ ” (People v. Edwards (1991) 54 Cal.3d
787, 836, quoting People v. Haskett (1982) 30 Cal.3d 841, 864.) We apply this
standard to defendant‟s contention.
Prior to trial, the trial court conducted a hearing regarding the victim impact
evidence, during which it became informed of the nature of the testimony the
prosecution intended to present and defendant‟s objections to it. At the conclusion
of the hearing the trial court limited the testimony of all witnesses to preclude
them from expressing their feelings about the defendant or the appropriate penalty.
Thus, the court was aware of the nature of the evidence, defendant‟s objections to
it, and did, in fact, impose some limitations on it. Under these circumstances, we
conclude that the trial court properly exercised its discretion under the standard set
forth above.
Finally, regarding defendant‟s ex post facto claim, as he concedes, we have
previously considered and rejected the same claim. (See, e.g., People v. Roldan
(2005) 35 Cal.4th 646, 732.) He provides no persuasive reason for us to
reconsider our ruling.
28

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E. Cumulative Error
Defendant contends that the cumulative effect of errors during the penalty
phase trial requires reversal. Not so. (People v. Panah (2005) 35 Cal.4th 395,
501.)
F. Challenges to the Death Penalty Statute
Defendant advances 10 challenges to the death penalty statute, all of which
we have repeatedly considered and rejected. His claims are as follows:
(A) Section 190.3, factor (a) is unconstitutionally broad. We have rejected
this argument. (People v. Kennedy (2005) 36 Cal.4th 595, 641.)
(B) The death penalty statute and accompanying instructions are
unconstitutional because they fail to designate a burden of proof. All such
challenges have been considered and rejected by this court. (People v. Panah,
supra, 35 Cal.4th at p. 499.)
(C) The absence of a requirement of a finding of unanimity as to factors in
aggravation renders the death sentence unconstitutional. “[U]nanimity with
respect to aggravating factors is not required by statute or as a constitutional
procedural safeguard.” (People v. Taylor (1990) 52 Cal.3d 719, 749; accord
People v. Prieto (2003) 30 Cal.4th 226, 275.)
(D) Failure of the instructions to inform the jury that death must be the
appropriate penalty and not merely the warranted penalty violated his
constitutional rights. We disagree. (People v. Wilson (2008) 43 Cal.4th 1, 32.)
(E) The trial court violated his due process rights by failing to provide the
jury with a presumption of life instruction. Not so. (People v. Rundle (2008) 43
Cal.4th 76, 199.)
29

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(F) The failure to require written findings by the jury deprived defendant of
various constitutional rights as well as the right to meaningful appellate review.
We have held otherwise. (People v. Cook (2006) 39 Cal.4th 566, 619.)
(G) The instructions regarding factors in mitigation and aggravation
violated defendant‟s constitutional rights because (1) the use of restrictive
adjectives — “extreme,” “reasonable,” and “substantial” — acted as barriers to the
consideration of mitigation; (2) the instructions failed to delete inapplicable
sentencing factors, and; (3) the court failed to instruct the jury that the factors in
mitigation were relevant solely as possible mitigators. We have rejected each of
these arguments. (People v. Panah, supra, 35 Cal.4th at pp. 499-500.)
(H) The failure of the trial court or this court to undertake intercase
proportionality review violated defendant‟s constitutional rights. Not so. (People
v. Rundel, supra, 43 Cal.4th at p. 199 [neither “the trial court [nor] this court [is]
required to engage in intercase proportionality review when examining a death
verdict”]);
(I) The death penalty scheme violates the federal equal protection clause
because it provides fewer procedural protections for defendants charged with
noncapital offenses. We have concluded otherwise. (People v. Manriquez (2005)
37 Cal.4th 547, 590.)
(J) The use of the death penalty violates international norms. As defendant
concedes we have repeatedly rejected this argument. (People v. Brasure (2008) 42
Cal.4th 1037, 1071-1072.) We see no reason to reconsider any of these rulings.
30

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III. CONCLUSION
The judgment is affirmed.
MORENO, J.
WE CONCUR: CANTIL-SAKAUYE, C. J.

KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
31

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

Name of Opinion People v. Murtishaw
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S110541
Date Filed: February 22, 2011
__________________________________________________________________________________

Court:

Superior
County: Kern
Judge: Roger D. Randall

__________________________________________________________________________________

Counsel:

Michael J. Hersek, State Public Defender, under appointment by the Supreme Court, and Gail R.
Weinheimer, Deputy State Public Defender, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Harry Joseph Colombo, Jamie
Scheidegger and Catherine Chatman, Deputy Attorneys General, for Plaintiff and Respondent.

---

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

Gail R. Weinheimer
Deputy State Public Defender
221 Main Street, 10th Floor
San Francisco, CA 94105
(415) 904-5600

Catherine Chatman
Deputy Attorney General
1300 I Street, Suite 125
Sacramento, CA 94244-2550
(916) 324-5364

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Automatic appeal from a judgment of death.

Opinion Information

Date:	Docket Number:	Category:	Status:	Cross Referenced Cases:
Tue, 02/22/2011	S110541	Automatic Appeal	submitted/opinion due	PEOPLE v. MURTISHAW (DAVID LESLIE) (S004286) PEOPLE v. MURTISHAW (DAVID LESLIE) (S004521)

Dockets
Oct 4 2002	Judgment of death
Oct 9 2002	Filed certified copy of Judgment of Death Rendered   October 4, 2002.
Oct 9 2002	Penal Code sections 190.6 et seq. apply to this case
Oct 18 2002	Filed:   Application for appointment of counsel (IFP form).
Dec 20 2002	Record certified for completeness
Dec 22 2003	Order appointing State Public Defender filed   to represent appellant for the direct appeal.
Feb 18 2004	Counsel's status report received (confidential)   from State P.D.
Feb 20 2004	Received:   notice from superior court that record was mailed to appellant's counsel on 2-17-2004.
Feb 23 2004	Date trial court delivered record to appellant's counsel   (6,495-pp. record) (see Calif. Rules of Court, rule 34(e)(1); the date of delivery is the date of mailing plus five days.)
Mar 1 2004	Appellant's opening brief letter sent, due:   Sept. 20, 2004.
Apr 20 2004	Counsel's status report received (confidential)   from State P.D.
May 14 2004	Received copy of appellant's record correction motion   Motion to correct, augment and settle the record on appeal. (18 pp.)
Jun 15 2004	Counsel's status report received (confidential)   from State P.D.
Aug 16 2004	Counsel's status report received (confidential)   from State P.D.
Sep 10 2004	Request for extension of time filed   to file appellant's opening brief. (1st request)
Sep 13 2004	Extension of time granted   to 11/19/2004 to file appellant's opening brief.
Oct 12 2004	Counsel's status report received (confidential)   from State P.D.
Nov 12 2004	Request for extension of time filed   to file AOB. (2nd request)
Nov 16 2004	Extension of time granted   to 1/18/2005 to file appellant's opening brief.
Dec 6 2004	Counsel's status report received (confidential)   from State P.D.
Jan 13 2005	Request for extension of time filed   to file appellant's opening brief. (3rd request)
Jan 14 2005	Extension of time granted   to 3/21/2005 to file appellant's opening brief.
Jan 31 2005	Counsel's status report received (confidential)   from State P.D.
Feb 5 2005	Record certified for accuracy
Mar 21 2005	Request for extension of time filed   to file appellant's opening brief. (4th request)
Mar 22 2005	Extension of time granted   to 5/20/2005 to file appellant's opening brief.
Mar 29 2005	Counsel's status report received (confidential)   from State P.D.
Apr 5 2005	Received:   letter from respondent, dated 4-5-2005, with copy of trial court's certification for accuracy attached.
May 23 2005	Request for extension of time filed   to file appellant's opening brief. (5th request)
May 25 2005	Extension of time granted   to 7/19/2005 to file appellant's opening brief.
May 31 2005	Counsel's status report received (confidential)   from State P.D.
Jun 30 2005	Request for extension of time filed   to file AOB. (6th request)
Jun 30 2005	Counsel's status report received (confidential)   from State P.D.
Jul 7 2005	Extension of time granted   to September 19, 2005 to file appellant's opening brief.
Aug 25 2005	Counsel's status report received (confidential)   from State P.D.
Sep 15 2005	Request for extension of time filed   to file AOB. (7th request)
Sep 19 2005	Extension of time granted   to 11-18-2005 to file AOB.
Oct 24 2005	Counsel's status report received (confidential)   from State P.D.
Nov 17 2005	Request for extension of time filed   to file appellant's opening brief. (8th request)
Nov 28 2005	Extension of time granted   to 01/17/2006 to file appellant's opening brief.
Jan 12 2006	Request for extension of time filed   to file appellant's opening brief. (9th request)
Jan 12 2006	Counsel's status report received (confidential)   from State P.D.
Jan 19 2006	Extension of time granted   to 3/20/2006 to file the appellant's opening brief. After that date, only five further extensions totaling about 300 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing that brief by 1/2007.
Mar 16 2006	Request for extension of time filed   to file appellant's opening brief. (10th request)
Mar 16 2006	Counsel's status report received (confidential)   from State P.D.
Mar 20 2006	Extension of time granted   to May 18, 2006 to file the appellant's opening brief. After that date, only four further extensions totaling about 240 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing that brief by January 2007.
May 12 2006	Counsel's status report received (confidential)   from State P.D.
May 12 2006	Request for extension of time filed   to file appellant's opening brief. (11th request)
May 17 2006	Extension of time granted   to July 17, 2006 to file the appellant's opening brief. After that date, only three further extensions totaling about 180 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing that brief by January 2007.
Jun 14 2006	Record on appeal filed   Clerk's transcript 16 volumes (3,961 pages) and Report's transcript 21 volumes (3,021 pages), including material under seal; ASCII disks. Clerk's transcript includes 3,005 pp of juror questionnaires.
Jun 14 2006	Letter sent to:   counsel advising that record on appeal, certified for accuracy was filed this date.
Jul 11 2006	Request for extension of time filed   to file appellant's opening brief. (12th request)
Jul 11 2006	Counsel's status report received (confidential)   from State P.D.
Jul 18 2006	Extension of time granted   to September 15, 2006 to file the appellant's opening brief. After that date, only two further extensions totaling about 120 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing that brief by January 2007.
Sep 13 2006	Request for extension of time filed   to file appellant's opening brief. (13th request)
Sep 13 2006	Counsel's status report received (confidential)   from State P.D.
Sep 18 2006	Extension of time granted   to November 14, 2006 to file appellant's opening brief. After that date, only three further extensions totaling about 165 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing that brief by April 30, 2007.
Sep 22 2006	Filed:   Respondent's opposition to appellant's request to extend the target date for filing of the opening brief.
Nov 13 2006	Counsel's status report received (confidential)   from State P.D.
Nov 13 2006	Request for extension of time filed   to file appellant's opening brief. (14th request)
Nov 21 2006	Extension of time granted   to January 16, 2007 to file the appellant's opening brief. After that date, only two further extensions totaling about 105 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing that brief by April 30, 2007.
Jan 11 2007	Request for extension of time filed   to file appellant's opening brief. (15th request)
Jan 11 2007	Counsel's status report received (confidential)   from State P.D.
Jan 16 2007	Extension of time granted   to March 19, 2007 to file the appellant's opening brief. After that date, only one further extension totaling about 45 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing that brief by April 30, 2007.
Mar 12 2007	Counsel's status report received (confidential)   from State P.D.
Mar 20 2007	Request for extension of time filed   to file appellant's opening brief. (16th request)
Mar 21 2007	Extension of time granted   to May 18, 2007 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing that brief by August 15, 2007.
Apr 9 2007	Opposition filed   by respondent to further extension of time requests.
May 15 2007	Request for extension of time filed   to file appellant's opening brief. (17th request)
May 15 2007	Counsel's status report received (confidential)   from State P.D.
May 22 2007	Extension of time granted   to July 17, 2007 to file the appellant's opening brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing that brief by August 15, 2007.
Jul 10 2007	Counsel's status report received (confidential)   from State P.D.
Jul 10 2007	Request for extension of time filed   to file appellant's opening brief. (18th request)
Jul 13 2007	Extension of time granted   to September 17, 2007 to file the appellant's opening brief. After that date, no further extension will be granted. Extension is granted based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing that brief by September 17, 2007.
Sep 17 2007	Appellant's opening brief filed   (29,686 words; 105 pp.)
Sep 18 2007	Respondent's brief letter sent; due:   January 15, 2008.
Jan 7 2008	Request for extension of time filed   to file respondent's brief. (1st request)
Jan 11 2008	Extension of time granted   Good cause appearing, and based upon Deputy Attorney General Catherine Chatman's representation that she anticipates filing the respondent's brief by April 18, 2008, counsel's request for an extension of time in which to file that brief is granted to March 17, 2008. After that date, only one further extension totaling about 30 additional days is contemplated.
Mar 12 2008	Request for extension of time filed   to file respondent's brief (2nd request)
Mar 18 2008	Extension of time granted   Good cause appearing, and based upon Deputy Attorney General Catherine Chatman's representation that she anticipates filing the respondent's brief by April 18, 2008, counsel's request for an extension of time in which to file that brief is granted to April 18, 2008. After that date, no further extension is contemplated.
Apr 17 2008	Respondent's brief filed   (19,379 words; 64 pp.)
Apr 17 2008	Note:   Appellant's reply brief due June 16, 2008, pursuant to California Rule of Court, rule 8.630(c)(1)(D).
Jun 10 2008	Request for extension of time filed (AA)   to file appellant's reply brief. (1st request)
Jun 17 2008	Extension of time granted   Good cause appearing, and based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing the appellant's reply brief by February 2009, counsel's request for an extension of time in which to file that brief is granted to August 15, 2008. After that date, only three further extensions totaling about 180 additional days are contemplated.
Aug 7 2008	Request for extension of time filed (AA)   to file appellant's reply brief. (2nd request)
Aug 12 2008	Extension of time granted   Good cause appearing, and based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing the appellant's reply brief by February 2009, counsel's request for an extension of time in which to file that brief is granted to October 14, 2008. After that date, only two further extensions totaling about 120 additional days are contemplated.
Oct 7 2008	Request for extension of time filed (AA)   to file appellant's reply brief. (3rd request)
Oct 10 2008	Extension of time granted   Good cause appearing, and based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing the appellant's reply brief by February 2009, counsel's request for an extension of time in which to file that brief is granted to December 15, 2008. After that date, only one further extension totaling about 60 additional days is contemplated.
Dec 8 2008	Request for extension of time filed (AA)   to file appellant's reply brief. (4th request)
Dec 12 2008	Extension of time granted   Good cause appearing, Senior Deputy State Public Defender Gail R. Weinheimer's request for an extension of time in which to file appellant's reply brief is granted to February 13, 2009.
Dec 29 2008	Filed:   respondent's "Opposition to further requests for extension of time to file the reply brief."
Feb 5 2009	Request for extension of time filed (AA)   to file appellant's reply brief. (5th request)
Feb 10 2009	Extension of time granted   On application of appellant and good cause appearing, it is ordered that the time to serve and file appellant's reply brief is extended to and including April 14, 2009.
Apr 7 2009	Request for extension of time filed   to file appellant's reply brief. (6th request)
Apr 14 2009	Filed:   Supplemental Declaration in Support of Appellant's Sixth Request for Extension of Time to File Appellant's Reply Brief.
Apr 16 2009	Extension of time granted   Good cause appearing, and based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing the appellant's reply brief by June 13, 2009, counsel's request for an extension of time in which to file that brief is granted to June 15, 2009. After that date, no further extension is contemplated.
Jun 9 2009	Request for extension of time filed   to file appellant's reply brief. (7th request)
Jun 12 2009	Extension of time granted   Good cause appearing, and based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing the appellant's reply brief by August 13, 2009, counsel's request for an extension of time in which to file that brief is granted to August 13, 2009. After that date, no further extension is contemplated.
Aug 6 2009	Request for extension of time filed   to file appellant's reply brief. (8th request)
Aug 10 2009	Extension of time granted   Good cause appearing, and based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing the appellant's reply brief by October 12, 2009, counsel's request for an extension of time in which to file that brief is granted to October 13, 2009. After that date, no further extension is contemplated.
Aug 19 2009	Received:   letter from Deputy Attorney General Jamie A. Scheidegger, dated August 18, 2009 in response to Appellant's Request for Extension of Time filed on August 6, 2009.
Oct 9 2009	Request for extension of time filed   to file appellant's reply brief. (9th request)
Oct 14 2009	Extension of time granted   Good cause appearing, and based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing the appellant's reply brief by December 12, 2009, counsel's request for an extension of time in which to file that brief is granted to December 14, 2009. After that date, no further extension is contemplated.
Dec 8 2009	Request for extension of time filed   to file appellant's reply brief. (10th request)
Dec 14 2009	Extension of time granted   Good cause appearing, and based upon Senior Deputy State Public Defender Gail R. Weinheimer's representation that she anticipates filing the appellant's reply brief by December 29, 2009, counsel's request for an extension of time in which to file that brief is granted to December 29, 2009. After that date, no further extension is contemplated.
Dec 29 2009	Appellant's reply brief filed Appellant: Murtishaw, David LeslieAttorney: Office of the State Public Defender-Sf   (6,149 words; 24 pp.)
Sep 30 2010	Exhibit(s) lodged   People's exhibit 9d from superior court.
Dec 6 2010	Oral argument letter sent   advising counsel that the court could schedule this case for argument as early as the February calendar, to be held the week of February 7, 2011, 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.
Jan 6 2011	Case ordered on calendar   to be argued Tuesday, February 8, 2011, at 1:30 p.m., in San Francisco
Jan 12 2011	Received:   appearance sheet from Deputy Attorney General Catherine Chatman, indicating 30 minutes for oral argument for respondent.
Jan 14 2011	Filed:   respondent's focus issue letter, dated January 13, 2011.
Jan 18 2011	Filed:   appellant's focus issues letter, dated January 18, 2011.
Jan 18 2011	Received:   appearance sheet from Sr. State Public Defender, Gail R. Weinheimer indicating 30 minutes for oral argument for appellant.
Feb 8 2011	Cause argued and submitted
Feb 18 2011	Notice of forthcoming opinion posted   To be filed on Tuesday, February 22, 2011 at 10 a.m.

Briefs
Sep 17 2007	Appellant's opening brief filed
Apr 17 2008	Respondent's brief filed
Dec 29 2009	Appellant's reply brief filed Appellant: Murtishaw, David LeslieAttorney: Office of the State Public Defender-Sf

Brief Downloads
1-appellants-opening-brief.pdf (988557 bytes) - Appellants Opening Brief
2-respondents-brief.pdf (2531213 bytes) - Respondents Brief
3-appellants-reply-brief.pdf (884521 bytes) - Appellants Reply Brief

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