Supreme Court of California Justia
Citation 49 Cal. 4th 79, 231 P.3d 289, 109 Cal. Rptr. 3d 549

People v. Thompson (James)

Filed 5/24/10




IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S056891

v.

JAMES ALVIN THOMPSON,

Riverside County

Defendant and Appellant.

Super. Ct. No. CR-45819



On April 24, 1996, a Riverside County jury found defendant James Alvin

Thompson guilty of first degree murder and found true the special circumstance

allegation that the murder was committed while defendant was engaged in the

commission or attempted commission of robbery, in violation of Penal Code

section 211. (Pen. Code, §§ 187, 189, 190.2, subd. (a)(17)(A).)1 The jury found

not true the allegation that defendant personally used a firearm. (§ 12022.5.) In a

subsequent proceeding, the jury also found true the special circumstance allegation

that defendant had been convicted of a prior murder in Texas in 1977. (§ 190.2,

subd. (a)(2).) After the penalty phase, the jury returned a verdict of death. The

trial court denied defendant‟s motions for a new trial (§ 1181) and for


1

All further statutory references are to the Penal Code unless otherwise

indicated.


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

appeal is automatic. (Cal. Const., art. VI, § 11; § 1239, subd. (b).)

We affirm the judgment.

INTRODUCTION

On the evening of either August 26 or August 27, 1991, defendant, a 39-

year-old White male, met the victim, Ronald Gitmed, a 25-year-old White male

with mental developmental disabilities. Defendant convinced Gitmed to drive him

to a trailer compound in rural Riverside County to visit Tony Mercurio, whom

defendant had met when they were both serving time in prison. Later that same

night, defendant, Gitmed, and Mercurio left the trailer compound in Mercurio‟s

truck to go four-wheel driving in the hills around Canyon Lake. On the morning

of August 28, Gitmed‟s body was found floating in a remote section of the lake; he

had been killed by three gunshot wounds. The prosecution‟s main witness was

Mercurio, who testified defendant robbed and shot Gitmed at Canyon Lake. Other

individuals living at the trailer compound testified that, after the murder, defendant

took Gitmed‟s car and, together with Mercurio, removed Gitmed‟s property from

Gitmed‟s storage locker in Riverside. The defense challenged Mercurio‟s

credibility and presented an alibi defense that defendant had been with his uncle

the entire evening of August 27.

I. GUILT PHASE

A. Facts

1. The Prosecution’s Case

a. Discovery of the body and autopsy

In the late morning of August 28, 1991, a group of people who had gone to

Canyon Lake in Riverside County to jet ski discovered the body of Ronald Gitmed

floating in the water. The body was clad in a pair of Levis and white socks, but no

2

shirt. An autopsy the next morning found three gunshot wounds to the body, one

on the right upper chest, one on the left side of the lower back, and one on the left

forearm. Two expended .22-caliber bullets were removed from the body, but

whether they had been fired from the same gun could not be determined. The

coroner found the remains of hamburger, potato, and pickle in Gitmed‟s stomach.

A blood analysis detected methamphetamine but no alcohol. In the coroner‟s

opinion, Gitmed had died immediately from the gunshot wounds, and the absence

of water in his airway passages indicated he had not drowned. The coroner could

not pinpoint a time of death beyond saying that Gitmed had not been dead for very

many days.

b. Time frame for the murder

The prosecution presented evidence that Gitmed was alive at least up to the

early evening of Monday, August 26, 1991, but was dead by the morning of

Wednesday, August 28, when his body was discovered floating in Canyon Lake.2

Don Fortney, Gitmed‟s friend, testified that on August 26, Gitmed was vacating

his apartment, and Fortney helped him move his possessions to a storage locker,

finishing about 3:00 p.m.3 Gitmed also stored stacks of his clothing in his car, a

small blue Toyota Tercel hatchback. Gitmed‟s mother, Naomi Dekens, testified

Gitmed visited her at her home that evening about 7:00 p.m. Bank records

indicated Gitmed‟s last automatic teller transaction and last credit card transaction

occurred on August 26.

2

The prosecution‟s theory was that the murder probably occurred on the

night of Tuesday, August 27, but may have occurred the night before. As
recounted below, the defense presented an alibi theory based on evidence that
defendant was in the company of his uncle on the evening of August 27.

3

As recounted below, after Gitmed‟s murder, defendant and Tony Mercurio

removed various items of furniture from this storage locker.

3

c. Defendant’s interactions with the victim’s cousin

Defendant met Gitmed through Gitmed‟s cousin, Michelle Keathley.

Keathley had first met defendant at a pool hall in Riverside in August 1991.

Defendant would occasionally drop by Keathley‟s house over the next few weeks.

During one of these visits, he used methamphetamine with Keathley, Keathley‟s

sister Alicia Levenson, and Alicia‟s boyfriend Eric Arias. During that visit,

defendant offered Arias up to $2,000 to give him a ride to the Lake Elsinore area

in order to collect a $6,000 debt owed him. Defendant mentioned he would be

bringing a gun. Arias initially accepted defendant‟s offer, but later backed out.

At a subsequent visit to Keathley‟s house, sometime after 5:00 p.m. on

either August 26 or 27, defendant met Gitmed.4 Keathley‟s friend Ronada Briggs

was at the house at the time and remembered meeting defendant and seeing him

with Gitmed. For defendant‟s promise of $1,000, Gitmed agreed to drive him to

collect the $6,000 debt. Before they left, defendant said they would first be

stopping at “Tony‟s house.” Gitmed drove off with defendant, and Keathley never

saw Gitmed again.

d. Visit to the Triplett family trailer compound

After leaving Keathley‟s house, defendant and Gitmed drove in Gitmed‟s

car to the Triplett family trailer compound. The compound was located on Santa

Rosa Mine Road in a rural area outside the town of Perris and consisted of

mobilehomes, campers, and storage sheds spread over five acres. There was a

“chop shop” on the property, where stolen vehicles were stripped, repainted, or

otherwise altered for sale. Barbara Triplett lived there with her daughter Charlene


4

In her interview with the police on September 11, 1991, Keathley indicated

either day was possible, but leaned toward Tuesday, August 27. In her trial
testimony, she said she was “pretty sure it was Tuesday.”

4

and her brother Danny Dalton, who ran the “chop shop.” Also living on the

property was Charlene‟s boyfriend, Anthony Thomas Mercurio, a parolee who had

recently been released from prison. Defendant first met Mercurio in July 1991,

when both of them were incarcerated in state prison, and he had visited Mercurio

at the Triplett compound once before.

Mercurio had not been expecting defendant to come that night, and he did

not know Gitmed, whom defendant introduced as his friend “Ron.” After a dinner

of hamburgers and french fries, defendant, Gitmed, and Mercurio used some

methamphetamine that Gitmed brought. While the three of them were walking

around the property, Gitmed noticed a red four-wheel-drive pickup truck, and they

decided to go “four-bying” in the countryside. The truck, which had been on the

property for at least a couple of weeks, was stolen and had to be started with a

screwdriver.

e. The shooting at Canyon Lake

With Mercurio at the wheel, the three drove across the hills to Canyon

Lake. It was after dark when they started. When they arrived at the lake, they

parked on a peninsula about 30 to 40 feet from the water‟s edge. Mercurio stayed

near the truck while defendant and Gitmed walked out onto the peninsula.

Mercurio heard defendant and Gitmed start to argue, but could not make out what

the argument was about. Defendant‟s voice got louder and angrier, and Mercurio

heard defendant tell Gitmed to take off his clothes. Gitmed started to get

undressed, and Mercurio heard two to three shots. Mercurio got back inside the

truck. Defendant returned and threw some things into the back of the truck,

including Gitmed‟s clothing and some small items that might have been Gitmed‟s

wallet or some change. As they drove off, Mercurio saw Gitmed‟s body on the

ground near, but not in, the water. They rode in silence back to the Triplett

5

compound. At the compound, defendant started going through the items in

Gitmed‟s car, which had been left parked there. The car was filled with several

trash bags full of clothing and some stereo equipment.

f. Defendant’s activities in the days following the murder

Defendant left the compound in Gitmed‟s car. Michelle Keathley testified

that around 3:30 on the morning following the night defendant and Gitmed had

left her house, defendant came to her house to retrieve his bicycle, which he had

tied to a tree near the front door. Keathley asked defendant where Gitmed was,

and defendant initially said he was down the street and would arrive in a couple of

minutes. When Gitmed failed to appear, Keathley again asked: “What happened

to Ron?” Defendant then stated there “was a little bit of a scuffle,” and Gitmed

had gotten “a little scared” and might have gone home.

At the compound a day or two after Gitmed‟s murder, Mercurio again saw

defendant going through the items in Gitmed‟s car. He saw a small handgun on

the car‟s hood. Several days later, Mercurio, at defendant‟s request, accompanied

defendant to Gitmed‟s storage locker in Riverside to pick up some furniture

defendant said he owned and wanted to give to Mercurio. Defendant drove

Gitmed‟s car, and Mercurio followed in the red pickup truck. Defendant entered

the correct code in the box at the storage facility‟s security gate, and it opened.

The two went to the storage locker and loaded several small furniture items into

the truck, including a television, a videocassette recorder, and a television stand.

They took the items to Charlene Triplett‟s dwelling at the compound.

After defendant and Mercurio returned with the furniture, Charlene saw

them at the dumpster burning papers. Defendant was cleaning a gun, and

Mercurio asked Charlene for some lighter fluid, which he gave to defendant to

clean the gun. Later, outside defendant‟s presence, Charlene confronted Mercurio

6

about why they were burning papers, and he told her defendant had shot Gitmed at

Canyon Lake. Later, when Charlene was in the bedroom of her mobilehome she

overheard defendant and Mercurio talking outside. Defendant told Mercurio:

“Whatever you do, you‟ve got to get your girlfriend and her family to go along

with our story.”

Defendant asked Charlene whether she wanted to buy the car stereo from

Gitmed‟s car or knew anyone who did. Eventually, Dalton sold the stereo and

split the money with defendant and Mercurio. Charlene deduced that the furniture

was Gitmed‟s and asked Dalton to get rid of it. Dalton did not do so and instead

stored it in his camper. On learning that, Charlene asked for the television back.

A few days after taking the furniture from the storage locker, defendant was

back at the compound trying to figure out how to dispose of Gitmed‟s car.

Defendant tried to give the car to Dalton to strip at his “chop shop,” but Mercurio

advised Dalton not to have anything to do with defendant or the car. Finally,

defendant, along with Mercurio and Dalton driving in a separate vehicle, drove

Gitmed‟s car to some hills near the compound, where defendant set fire to it.

Sometime during this period defendant said something to Barbara Triplett

about a person floating in Canyon Lake who was not able to make decisions for

himself, which made her “feel very uncomfortable and uneasy.” Defendant also

started boasting to Dalton about leaving someone floating in the lake, but Dalton

told him to shut up because he did not want to know anything about it. When

Dalton learned that defendant had told Barbara and Charlene about the floating

man, Dalton became angry and told defendant to leave the compound. Barbara

gave defendant a ride to the Corona Motel in Riverside, which was the last anyone

at the compound saw of him.

7

g. Police investigation following discovery of the body

After Gitmed‟s body was discovered on August 28, 1991, Michelle

Keathley‟s ex-husband told her of newspaper articles about an unidentified body

found in Canyon Lake. Because two weeks had passed since she had last seen

Gitmed, she became concerned and contacted the police on September 11. The

police showed her pictures of the victim, whom she identified as Gitmed. She told

police Gitmed had left her house with defendant. On September 13, two police

officers located defendant at the home of his mother, Jean Thompson Churder, and

conducted a tape-recorded interview of him. Thereafter, defendant was taken into

custody on a parole violation. The recorded interview was played to the jury. In

it, defendant acknowledged he knew Michelle Keathley and had briefly met

Gitmed at her house, but denied ever leaving Michelle‟s house with Gitmed. He

also denied having been at Canyon Lake any time recently.

On September 17, the police searched the Triplett compound pursuant to a

narcotics warrant unrelated to the Gitmed murder. In the course of the search, the

police came across an address book belonging to Barbara Triplett, which had the

name “Tex” (defendant‟s nickname) with a telephone number. The police asked

Mercurio whether he knew anyone named Tex, and Mercurio eventually

acknowledged that he did, stating, “I knew you‟d want to talk about Tex before

you left here today.” Mercurio decided to cooperate with the police and, later that

day, gave a tape-recorded statement that defendant had shot Gitmed at Canyon

Lake. He told them the location of Gitmed‟s burned car and eventually took the

police to the place where Gitmed had been shot. The police asked about the stolen

furniture, and Mercurio directed them to a television, a videocassette recorder,

three end tables, a vacuum cleaner, a lamp, and a fan. Mercurio stated defendant

had given him the furniture, and he thought it belonged to Gitmed.

8

Eva Lynn Thompson, defendant‟s sister, testified that sometime before

defendant‟s arrest he brought to her apartment a suitcase and some boxes of

clothes and asked her to store them because he was not sure he had a place to stay.

After she learned of defendant‟s arrest, she panicked and had her son, Marc

Brendlin, take the items to Churder‟s house. Brendlin testified that the items

included boxes, a bag, some clothing, and a wallet containing business cards, but

no identification.

On September 25, the police returned to Churder‟s home with a search

warrant to look for evidence related to the murder. While they were searching the

residence, Churder arrived home in her car. Police opened the trunk of her car and

recovered a green London Fog jacket and a black, blue, and white nylon duffel

bag, both of which Gitmed‟s mother identified at trial as belonging to her son.

Gitmed had been wearing the jacket on Monday, August 26, when he visited his

mother. The friend who had helped Gitmed move out of his apartment on August

26 also identified the nylon duffel bag as Gitmed‟s. A tattered wallet with

business cards but no identification was found in Churder‟s house in a nightstand

drawer in the bedroom defendant occupied before his arrest.

h. Mercurio’s plea agreement

In January 1992, Mercurio engaged the police in an hour-long high-speed

auto chase after he ran a red right. He was arrested for felony assault on a police

officer and possession of a rifle. Mercurio signed an agreement with the Riverside

County District Attorney providing that in exchange for his cooperation in

defendant‟s case the district attorney would drop some of the charges arising from

the chase. As part of the agreement, Mercurio pleaded guilty to evading arrest and

being a felon in possession of a firearm. He also pleaded guilty to being an

accessory after the fact to Gitmed‟s murder, based on his having helped defendant

9

dispose of Gitmed‟s car. Mercurio spent one year in custody. Under the

agreement, Mercurio was obligated to testify truthfully at defendant‟s trial. At the

time Mercurio testified, he was scheduled to be sentenced in Las Vegas later that

month on a separate charge, unrelated to the California cases, of being a felon in

possession of a firearm.

2. The Defense Case

The defense presented an alibi for the evening of August 27, 1991, through

the testimony of defendant‟s uncle, who stated he had been with defendant that

entire evening. In addition, to dispute Mercurio‟s account of the events at Canyon

Lake the defense put on Marvin Avery, who testified he was at the lake around the

time of the murder and saw someone who looked like Gitmed swimming and

having a good time. The defense also sought to impeach Mercurio through his

grand jury testimony about the murder and his high-speed chase with police

officers.

a. Defendant’s dinner with his uncle

Defendant‟s uncle, Richard Brent Hartenbach, testified he took defendant

out to dinner on the evening of August 27. They went to a restaurant and a bar,

and he brought defendant home about 10:30 or 11:00 p.m. After defendant‟s

arrest, Churder called Hartenbach to tell him defendant had been arrested on

suspicion of a murder she said occurred on Tuesday, August 27. Hartenbach told

her that was impossible because he recalled being with defendant that night, and

he knew it was Tuesday because defendant had a Wednesday morning meeting

scheduled with his parole officer.

b. The swimming man at Canyon Lake

At the time of the murder, Marvin Avery, who did not know anyone

involved in the case, lived in Perris and was a frequent visitor to nearby Canyon

10

Lake. After seeing a newspaper article about the discovery of Gitmed‟s body,

Avery contacted the police. In late August 1991, about four days before he saw

the newspaper article, he had been fishing at Canyon Lake. Around 10:00 p.m., he

saw four men and a woman in the area. They arrived in an early 1990‟s model

three-quarter ton pickup truck with a black tool box and rack utility boxes. One

man from the group, wearing “whitish” jeans and no shirt, was singing and having

fun. He walked through Avery‟s campsite, within five feet of Avery, and then

dived into the water. The man was a good swimmer and swam quite a distance

out into the lake. Avery testified he had identified the swimming man as Gitmed

from photographs shown to him by the police.

Officer Betty Fitzpatrick testified that Avery had contacted the police on

August 30, 1991, after police had released a composite drawing of Gitmed, who at

that point was still unidentified. The police showed Avery two autopsy photos of

Gitmed, and Avery identified them as the person he had seen at Canyon Lake on

August 27. On cross-examination, Fitzpatrick testified that Avery took officers to

the spot where he had seen the man swimming, a location west and slightly south

of the channel across from where Gitmed‟s body was found. Mercurio later

directed police to the exact location where Gitmed‟s body was found.

c. Gitmed’s storage locker

The defense presented testimony of the manager of the ministorage facility

where Gitmed used a locker. Entry to and exit from the facility required punching

in an individual code at the gate, which was recorded on tape. Records from the

facility showed that on August 26, there were three entries/exits at 2:12/2:24 p.m.,

11

3:46/4:01 p.m., and 5:45/6:01 p.m., respectively.5 There were no entries on

August 27. On August 28, there were two entries/exits at 12:45 p.m./1:02 p.m.

and 4:24/4:41 p.m., respectively.6

d. Mercurio’s grand jury testimony

The defense read Mercurio‟s grand jury testimony about the shooting,

which differed in some details from his testimony at trial. Unlike in his testimony

at trial, in his grand jury testimony Mercurio recalled seeing defendant hold a gun

on Gitmed, saw the wallet and personal items being placed on the hood of the

truck, and saw Gitmed fall down at the edge of the water.

e. Mercurio’s high-speed chase

At trial Mercurio testified that in the high-speed chase culminating in his

arrest he had never tried to ram the pursuing officers with his car. To impeach this

testimony, the defense called two of the police officers involved in the chase.

About 3:00 a.m., after running a stop sign, Mercurio led the officers in a vehicle

pursuit that lasted nearly an hour, spanned about 20 miles, and eventually involved

three or four police cars. He drove his car head on at police cars, and the police

had to take evasive action to avoid being hit. Eventually, he fled on foot, and a

scuffle ensued before he was apprehended.


5

These entry/exit records for August 26 are consistent with Don Fortney‟s

testimony that he helped Gitmed move his possessions from his apartment to the
storage locker that afternoon.

6

Gitmed‟s body was discovered on the morning of August 28. These

entry/exit records for the afternoon of August 28 are consistent with Mercurio‟s
testimony that Mercurio helped defendant move items from Gitmed‟s storage
locker after Gitmed was killed.

12

3. Prosecution Rebuttal

Gitmed‟s mother, Naomi Dekens, and his younger brother Bruce testified

that Gitmed was generally anxious and appeared slow and almost mentally

retarded to people who did not know him. He had been under the care of a doctor

from grade school through adulthood. He was very fearful of the water and would

not go into it when they went to the beach. His mother forced him to take

swimming lessons as a child, but he did not continue swimming after the lessons

ended. He was self-conscious about his body and always wore big, bulky

clothing. She had never seen him take off his shirt.

Thomas Crompton, the defense investigator who interviewed defendant‟s

uncle, Richard Hartenbach, testified that Hartenbach told him that August 27,

1991, was the night he was with defendant. However, Crompton did not put that

date in his report, but rather referred to the night as the date of the murder, which

he believed was August 27. Nor did he include in his report that the reason

Hartenbach had to have defendant home by 11:00 p.m. was that defendant had a

meeting with his parole officer the next morning.

The parties stipulated that Mercurio had not received immunity from

prosecution for any events concerning Gitmed‟s death.

B. Pretrial Issues

1. Exclusions of Prospective Jurors for Cause Based on Their

Questionnaires

The trial court had the prospective jurors fill out a 25-page questionnaire,

composed of 71 questions. On the basis of the questionnaire alone and without

any oral voir dire, the trial court excused 18 potential jurors for cause. Defendant

contends the substitution of written questionnaires for oral voir dire was

13

impermissible under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the

United States Constitution.7 Alternatively, defendant contends (1) even if the

exclusion of prospective jurors on the basis of written questionnaires alone was

not per se unconstitutional, the questions used were confusing to the jurors or were

biased, and (2) even assuming the questions were not deficient, the trial court‟s

findings of substantial impairment for each excluded prospective juror were

unreasonable and unsupported by the record. Furthermore, defendant alleges the

exclusion of the identified jurors violated his rights to equal protection because the

trial court‟s reliance on the questionnaires caused it to be more inclined to excuse

life-leaning prospective jurors than those favoring the death penalty.

As discussed below, we reject all of defendant‟s contentions of error.

a. Background

The questionnaire was originally proposed by defense counsel and had

primarily been shaped by the review and revision of the two previous judges

assigned to the case. The judge who eventually tried the case oversaw some


7

Regarding this claim and others raised on appeal, defendant contends the

asserted error or misconduct violated several constitutional rights. In many
instances in which defendant raised issues at trial, he failed explicitly to make
some or all of the constitutional arguments he now asserts on appeal. Unless
otherwise indicated, his appellate claims either required no action by defendant to
preserve them, or involve application of the same facts or legal standards
defendant asked the trial court to apply, accompanied by a new argument that the
trial error or misconduct had the additional legal consequence of violating the
federal Constitution. To that extent, defendant has not forfeited his new
constitutional claims on appeal. (People v. Halvorsen (2007) 42 Cal.4th 379, 408,
fn. 7.) On the merits, no separate constitutional discussion is required, or
provided, where rejection of a claim that the trial court erred on the issue
presented to that court necessarily leads to rejection of any constitutional theory or
“gloss” raised for the first time here. (People v. Boyer (2006) 38 Cal.4th 412, 441,
fn. 17.)

14

additional minor revisions to the questionnaire before using it in jury selection.

Before the prospective jurors filled out the questionnaires, the trial court addressed

the jurors with a lengthy introduction to the case and to the questionnaire,

explaining the function of the guilt and penalty phases, the special circumstances,

and evidence in aggravation and mitigation.

The questionnaire asked detailed questions about the prospective jurors‟

background, prior experiences with law enforcement and the court, and ability to

follow the general presumptions of the law. It also contained specific questions

about “Attitudes Towards Capital Punishment.”

b. Analysis

(1) Asserted Unconstitutionality of Exclusions Based Solely

on the Questionnaires

Under Wainwright v. Witt (1985) 469 U.S. 412, “ „[a] prospective juror who

would invariably vote either for or against the death penalty because of one or

more circumstances likely to be present in the case being tried, without regard to

the strength of aggravating and mitigating circumstances, is . . . subject to

challenge for cause . . . .‟ ” (People v. Ledesma (2006) 39 Cal.4th 641, 671.)

Defendant contends the trial court violated Witt by excusing 18 prospective jurors

for cause based solely on their written questionnaires and without any followup

questioning. He argues the trial court had a constitutional duty to personally

question prospective jurors. As an initial matter, respondent contends defendant

has waived this claim because defendant‟s trial counsel himself urged the trial

court to excuse jurors solely on the basis of their written questionnaires. We

agree. The record indicates that trial counsel explicitly endorsed the procedure

defendant now challenges on appeal. Defendant has therefore waived this claim.

(Cf. People v. Stewart (2004) 33 Cal.4th 425, 452 [claim not waived because the

15

record disclosed no indication defendant conceded the propriety of the

procedure].)

In the alternative, defendant contends that even if his trial counsel urged the

procedure, the issue should be reviewed because counsel‟s performance was

deficient under Strickland v. Washington (1984) 466 U.S 668. Defendant

contends the only reason for excusing prospective jurors solely on the basis of

their questionnaires was to speed up the voir dire process (which he argues is not a

valid tactical reason), and trial counsel had no other valid tactical reason for urging

the procedure. We disagree. On excusing prospective jurors solely on the basis of

questionnaires, we have cautioned that “[t]he legitimate pursuit of laudatory

efficiency should not be transformed into an arbitrary pursuit of speed for its own

sake.” (People v. Avila (2006) 38 Cal.4th 491, 530, fn. 25.) But such was not the

case here. As expressed by trial counsel and the trial court, the reason for using

the questionnaires to exclude obviously Witt-impaired prospective jurors was not

to gain speed for its own sake; rather, it was to spend more time with the

remaining jurors at voir dire. For example, Defense Counsel Jay Grossman

asserted that “I think having 20 jurors on Monday morning is better than having 30

when you know there‟s ten or eight that you‟re not going to have anyway based on

this questionnaire,” and that “my idea in suggesting that we do this, is that it gives

us more time to focus on people that both sides kind of agree are a reasonable part

of the pool.” The record thus indicates trial counsel had a reasonable tactical

strategy in urging the procedure and placing heavy initial reliance on the

questionnaires.8


8

Furthermore, because we conclude below that the trial court did not err in

any of the individual exclusions, even were we to assume counsel‟s performance
was deficient, defendant fails to show prejudice flowing from that performance.

16

Turning to the merits of the claim, we have, as defendant acknowledges,

previously rejected the argument that excusing a prospective juror for cause solely

on the basis of a written questionnaire is per se unconstitutional. (People v.

Wilson (2008) 44 Cal.4th 758, 781-790.) “[R]eliance on written responses alone

to excuse prospective jurors for cause is permissible if, from those responses, it is

clear (and „leave[s] no doubt‟) that a prospective juror‟s views about the death

penalty would satisfy the Witt standard (Wainwright v. Witt, supra, 469 U.S. 412)

and that the juror is not willing or able to set aside his or her personal views and

follow the law.” (Id. at p. 787.) As discussed below, we conclude from our

review of the individual questionnaires that the trial court did not err in

discharging these prospective jurors for cause.

(2) Asserted Deficiencies in the Form of the Questions

As a further general objection to the exclusions based on the questionnaires,

defendant contends that the form of the questions was confusing or biased and

thus answers to those questions could not provide an adequate basis for the trial

court‟s rulings. Because defense counsel initially drafted the questions, agreed to

the various revisions the trial court and prosecutor suggested, and accepted,

without apparent objection, the final form of the questionnaire, defendant waived

these claims. Were we nevertheless to address the merits, we would find the

claims meritless.

Defendant first asserts the questionnaire used specialized legal terms such

as “mitigation and aggravation,” “penalty phase,” and “special circumstances.”

He contends that to conclude the prospective jurors, without any guidance or

explanation, would have grasped the full significance of these concepts when they

wrote their responses is unreasonable. But defendant‟s premise is faulty because

the trial court explained the terms and procedures to the prospective jurors before

17

submitting the questionnaires to them. As noted above, the trial court presented a

lengthy introduction to the case and to the questionnaire in which it explained the

guilt and penalty phases, special circumstances, and evidence in aggravation and

mitigation. The prospective jurors were thus given sufficient explanation of the

legal terms to respond intelligently to the questions.

Defendant also challenges the wording of question No. 60, which stated

that no circumstance exists in which a jury must automatically return a judgment

of death, and that, irrespective of what the evidence might show, the jury always

retains the option in the penalty phase of choosing life imprisonment without the

possibility of parole. Question No. 60 then went on to ask, given that two options

would be available, “can you see yourself”: (A) voting for the death penalty or

(B) voting for life imprisonment. Defendant contends a prospective juror might

answer “no” to (A) simply because he or she could not “imagine” the situation,

rather than because he or she would be unable to consider the option of imposing

the death penalty. Defendant‟s reading of this question is unreasonable and thus

unpersuasive. Within the context of the questionnaire as a whole and the court‟s

explanations to the prospective jurors, the jurors would reasonably have

understood the question as referring to their willingness to consider the option of

imposing the death penalty. (See People v. Rogers (2006) 39 Cal.4th 826, 873

[reviewing court inquires whether the jury was “ „reasonably likely‟ ” to have

construed ambiguous jury instructions in a manner that violates the defendant‟s

rights].)

Finally, defendant contends question No. 58 was used to eliminate death

penalty opponents when they answered they would “never” impose the death

penalty, but not to eliminate death penalty proponents when they answered they

would “always” impose it. This argument merely recasts defendant‟s equal

protection claim, discussed below, that the trial court was more willing to dismiss

18

life-leaning than death-leaning prospective jurors on the basis of their

questionnaires alone. In sum, even assuming defendant had preserved the claim

for appeal, his challenges to the questionnaire‟s adequacy are meritless.

(3) Exclusion of Prospective Jurors for Cause Based on the

Questionnaires

Defendant contends that, even assuming it was constitutional for the trial

court to excuse prospective jurors for cause based on the information in their

written questionnaires alone, and even assuming the questions were not deficient

in form, the trial court erred in dismissing 13 prospective jurors for cause.9 As a

threshold matter, respondent contends that defendant has waived any challenges to

these exclusions because trial counsel stipulated to them. We previously have

precluded challenging on appeal exclusions of prospective jurors for cause when

defense counsel stipulated to the exclusion. (People v. Benavides (2005) 35

Cal.4th 69, 88; People v. Ervin (2000) 22 Cal.4th 48, 73.) As defendant

acknowledges, defense counsel stipulated or otherwise expressly agreed to the

exclusion of five of the excused prospective jurors he now challenges, namely,

R.H., A.A., J.J., L.K., and N.E. Defendant‟s claims are therefore barred as to


9

The trial court excused a total of 18 potential jurors for cause on the basis

of their questionnaires alone. As defendant acknowledges, five of these were
excused for being unable to consider the option of life in prison without the
possibility of parole. Defendant challenges the exclusion of these five “pro-death-
penalty” prospective jurors on the general ground that exclusion on the basis of a
written questionnaire alone is unconstitutional. But he does not argue that their
questionnaires failed to provide a basis for exclusion, as he does for the 13
excused “pro-life” prospective jurors. Such an argument would be unavailing in
any case, because defendant can show no prejudice from the exclusion of “pro-
death” prospective jurors.

19

them.10 For the eight remaining excused prospective jurors, however, trial counsel

merely stated that he “submitted” the exclusion to the discretion of the court, or

that he would not object. Thus, while trial counsel did not stipulate to the

exclusions, neither did counsel object to them. In such a circumstance, “failure to

object does not forfeit the right to raise the issue on appeal, although it does

suggest counsel concurred in the assessment that the juror was excusable.”

(People v. Cleveland (2004) 32 Cal.4th 704, 734-735.)

“ „[A]ssessing the qualifications of jurors challenged for cause is a matter

falling within the broad discretion of the trial court.‟ ” (People v. Ledesma, supra,

39 Cal.4th at p. 668.) Generally, a trial court‟s rulings on motions to exclude for

cause are afforded deference on appeal because, in addition to the answers given,

the trial court considers the tone and demeanor of the prospective jurors. (People

v. Avila, supra, 38 Cal.4th at p. 529.) “But such deference is unwarranted when,

as here, the trial court‟s ruling is based solely on the „cold record‟ of the


10

Were we to reach the merits of the excusals of these five prospective jurors,

we would affirm the trial court‟s decision to excuse them. We have examined the
views expressed by these prospective jurors in their questionnaires and, applying
de novo review of the trial court‟s ruling, conclude each was properly excused.
For example, R.H. had a son being prosecuted for kidnapping and robbery in the
same courthouse in which defendant was being tried. A.A. reported on her
questionnaire that she would be likely to find defendant guilty of murder merely
because he had been charged with that crime, that she could not set aside her bias,
and that she could not follow the instruction that an accused is presumed innocent.
J.J. evinced a strong philosophical opposition to the death penalty and responded
that he would refuse to vote to find defendant guilty despite the evidence in order
to avoid imposing the death penalty. L.K. likewise had a strong opposition to the
death penalty. Her opposition stemmed from her religious convictions. She
responded she could not vote for the death penalty and could not set aside her anti-
death-penalty bias. N.E. similarly had a strong religious opposition to the death
penalty and responded that she would refuse to vote to find defendant guilty in
order to avoid imposing the death penalty.

20

prospective jurors‟ answers on a written questionnaire . . .” (ibid.), which is

available on appeal. Accordingly, we review the record de novo. (Ibid.) As we

conclude below, the trial court did not err in excusing any of the challenged jurors.

(a) Prospective Juror R.R. excused for reasons other than

his attitude toward the death penalty

Under California law, a juror may be challenged for cause for one of the

following reasons: “(A) General disqualification—that the juror is disqualified

from serving in the action on trial. [¶] (B) Implied bias—as, when the existence of

the facts as ascertained, in judgment of law disqualifies the juror. [or]

[¶] (C) Actual bias—the existence of a state of mind on the part of the juror in

reference to the case, or to any of the parties, which will prevent the juror from

acting with entire impartiality, and without prejudice to the substantial rights of

any party.” (Code Civ. Proc., § 225, subd. (b)(1)(A)-(C).) Code of Civil

Procedure section 228 sets forth the grounds for a challenge based on general

disqualifications and includes “(b) [t]he existence of any incapacity which satisfies

the court that the challenged person is incapable of performing the duties of a juror

in the particular action without prejudice to the substantial rights of the

challenging party.” Code of Civil Procedure section 229 sets forth the grounds for

a challenge based on implied bias and includes “(f) [t]he existence of a state of

mind in the juror evincing enmity against, or bias towards, either party.”

Prospective Juror R.R. expressed a marked antipathy toward the legal

system and law enforcement in his questionnaire, which the trial court cited as the

basis for his exclusion. Responding to a question asking whether something might

“distract him during the trial,” R.R. marked “YES” and wrote: “I find judges and

lawyers pompous and boring.” Responding to a question whether the nature of the

charges would “make it difficult or impossible for you to be fair and impartial,” he

answered in the affirmative and wrote: “Obviously (since I haven‟t heard of the

21

man), the defendant is not rich or famous. Consequently his justice will be harsher

than people who are privileged.” R.R.‟s negative feelings about the judicial

system apparently stemmed from his having been charged with assaulting with a

deadly weapon someone he claims was the initial aggressor. R.R. felt that law

enforcement‟s response to that situation was completely inadequate. The trial

court also noted that R.R. had indicated he would change his opinion during

deliberations if it were late in the day and he was tired because “I get

claustrophobic, especially if I feel I couldn‟t get outside if I wanted to (or if I

knew I had to sit still/stay in).” Based on our de novo review, we conclude R.R.‟s

answers expressed bias against the legal system and law enforcement and

indicated his inability to engage in the deliberation process. Accordingly, the trial

court did not err in excluding R.R. for cause. (Code Civ. Proc., § 225.)

Although we conclude the trial court did not err in excusing R.R., we also

note defendant has cited no authority for his assumption that an error in excusing a

juror for reasons unrelated to that juror‟s view on the imposition of the death

penalty requires reversal. “ „[T]he general rule [is] that an erroneous exclusion of

a juror for cause provides no basis for overturning a judgment.‟ ” (People v. Holt

(1997) 15 Cal.4th 619, 656.)

(b) Prospective jurors excused for their attitudes toward

the death penalty

Defendant contends the trial court erred in excusing several prospective

jurors, based solely on their questionnaire answers, as being substantially impaired

to serve as capital case jurors under Wainwright v. Witt, supra, 469 U.S. 412. As

noted above, the questionnaire had a special section on attitudes toward the death

penalty. For assessing impairment under Witt for unwillingness ever to impose the

death penalty, the most significant questions were Nos. 54, 56, 58, and 60.

22

Question No. 54 asked whether the prospective juror‟s opposition to the

death penalty was so strong that, at the guilt phase, no matter what the evidence

showed, the juror would refuse to vote for guilt as to first degree murder or would

refuse to find a special circumstance true, in order to keep the case from going to

the penalty phase. Question No. 56 asked whether the prospective juror‟s

opposition to the death penalty was so strong that, at the penalty phase, the juror

would automatically vote against death, no matter what evidence in aggravation or

mitigation was presented.

Question No. 58 asked whether the prospective juror was always, never, or

sometimes willing to impose the death penalty, depending on the following special

circumstances: (A) murder committed for financial gain; (B) defendant previously

convicted of murder; (C) defendant convicted of multiple murders; (D) murder

committed upon a peace officer; or (E) murder committed during the course of a

robbery.

Question No. 60, the last of the section, asked about the prospective jurors‟

ability to impose the two options available at the penalty stage. This question first

reminded the prospective jurors that under no circumstances were they required to

return a penalty of death, and that they would always have the option of choosing

life without the possibility of parole. Question No. 60 then presented two

subparts, A and B. Part A asked whether, in the appropriate case, the prospective

jurors could see themselves rejecting the death penalty and instead choosing life

imprisonment without the possibility of parole. Part B asked whether, in the

appropriate case, the prospective jurors could see themselves rejecting life

imprisonment without the possibility of parole and instead choosing the death

penalty.

As to question No. 60, each of the excused prospective jurors marked part

A in the affirmative (meaning they were willing to entertain the option of life

23

without the possibility of parole), but marked part B in the negative (meaning they

were not willing to entertain the option of imposing the death penalty).

Additionally, the excused jurors gave answers to the other pertinent questions,

including Nos. 54, 56, or 58, that indicated their unwillingness to apply the death

penalty. Finally, as explained below, the excluded jurors further indicated their

unwillingness to impose the death penalty in their written explanations to various

questions.

Defendant acknowledges that, taken on their own, the answers of the

prospective jurors discussed below to the “Attitudes Towards Capital Punishment”

section of the questionnaire could suggest impairment under Wainwright v. Witt,

supra, 469 U.S. 412. But he contends the heart of the Witt inquiry actually

revolves around question No. 36 in the general section of the questionnaire.

Question No. 36 asked: “If the Judge gives you an instruction on the law that you

feel is different from a belief or opinion you have, will you be able to follow and

apply that instruction?” Defendant contends an affirmative response to question

No. 36 should have taken priority over the answers to all of the specific death-

penalty attitude questions.11 Alternatively, defendant contends an affirmative

response to question No. 36 at least made it unclear that a prospective juror was

categorically unwilling to impose the death penalty, and consequently the trial

court should not have excused such a juror without oral voir dire to establish

whether the juror was willing to set aside his or her personal views and decide the

case according to the law. (See People v. Wilson, supra, 44 Cal.4th at p. 789.)


11

All of the excused prospective jurors made an affirmative response to

question No. 36, except L.S., who stated “It would be difficult,” L.K., who left it
blank, and T.T., who put a question mark by it.

24

We dealt with the same situation in People v. Wilson, supra, 44 Cal.4th

758, where the excused juror marked “yes” to a question asking whether, “ „[i]f

the judge gives you an instruction on the law that differs from your beliefs or

opinions, will you follow the law as the judge instructs you?‟ ” (Id. at p. 788,

fn. 4.) Like the question at issue in Wilson, question No. 36 was a general inquiry

about willingness to follow the law that preceded the section of the questionnaire

specifically devoted to “Attitudes Towards Capital Punishment.” As in Wilson,

question No. 36 was grouped with others in a section testing the prospective

juror‟s ability to follow the law concerning the presumption of innocence, the

privilege against compelled self-incrimination, and other principles of law relating

to the guilt phase of the trial. Therefore, as in Wilson, we conclude the prospective

jurors‟ affirmative responses to question No. 36 were not necessarily inconsistent

with their responses to the questions in the later section of the questionnaire

dealing specifically with attitudes toward the death penalty.

We turn now to the prospective jurors‟ responses to the questions in the

death penalty section of the questionnaire.

Prospective Juror P.C. When answering a question asking her to reveal her

“general feelings” about the death penalty,” P.C. wrote: “I do not feel we have the

right to take a life.” In response to another question, she noted her philosophical

position regarding the death penalty as “strongly against” and wrote, “we don‟t

have to kill in the name of justice.” In response to other questions, she also wrote

that she held the position she did on the death penalty because “[t]o take a life is

murder under any circumstance” (italics added) and that, “I don‟t feel we have the

right to kill.” She marked question No. 56 in the affirmative, agreeing that she

would automatically vote against death no matter what evidence was presented at

the penalty phase. Answering question No. 58, for every listed special

circumstance, she marked she would never impose the death penalty and wrote,

25

“We don‟t not [sic] have that right to kill.” Answering question No. 60, she

marked that she could not see herself choosing the death penalty at the penalty

phase.

Prospective Juror L.S. Regarding his general feelings toward the death

penalty, L.S. wrote: “It is barbaric! A sad reflection on our supposedly modern

„civilized‟ society.” He further noted his philosophical position as “strongly

against” the death penalty. He also wrote: “There‟s always a possibility a person

can make a contribution to society — if he or she is alive — even if it‟s only to

warn the rest of us.” Asked whether anything about the death penalty or life

imprisonment without parole disturbed him, he wrote: “The defendant very likely

needs rehabilitation, not either of the above possibilities.” Answering question

Nos. 54 and 56, he marked that he was so strongly against the death penalty that

he would refuse to vote for guilt as to first degree murder or refuse to find true a

special circumstance, and he would automatically vote against death at the penalty

phase. Answering question No. 58, for every listed special circumstance he

marked that he would never impose the death penalty. Answering question No.

60, he marked that he could not see himself choosing the death penalty at the

penalty phase.

Prospective Juror D.B. D.B. responded that she generally was “an

opponent of the death penalty,” and that, although she sometimes felt emotionally

that certain murderers should die, she was “rationally opposed to the death

penalty.” Her philosophical position was “strongly against” capital punishment,

and she wrote that she did not want “ „the state‟ having the power to take life.”

Asked whether anything about the death penalty or life imprisonment without

parole disturbed her, she wrote: “Both of them are disturbing. It assumes no

possibility for a human to grow, change, amend, or repent. What a hopeless

thought!” Answering question No. 56, she marked that she was so strongly

26

against the death penalty she would automatically vote against death at the penalty

phase. She also wrote: “I would vote against death. I will not vote for the death

penalty.” Answering question No. 58, for every listed special circumstance she

marked that she would never impose them. Then she wrote, “I would never

impose the death penalty,” that she hoped she could be like the relatives of murder

victims who had recently marched on San Quentin to oppose the death penalty,

and concluded, “I will never impose the death penalty.” (Italics added.)

Answering question No. 60, she marked that she could not see herself choosing

the death penalty at the penalty phase.

Prospective Juror T.T. Asked about her general feeling toward the death

penalty, T.T. wrote: “A life for a life is not the answer.” Her philosophical

position was strongly against the death penalty, and she explained that she held

this position because “I don‟t believe people should be killed although they have

killed.” Asked whether anything about the death penalty or life imprisonment

without parole disturbed her, she wrote, “The death penalty should never be a

factor.” (Italics added.) Answering question No. 58, for every listed special

circumstance, she indicated she would never impose the death penalty. Answering

question No. 60, she marked that she could not see herself choosing the death

penalty at the penalty phase.

Prospective Juror C.V. Asked about her general feelings toward the death

penalty, C.V. wrote: “That life and death belong to God only!” She indicated she

was strongly against the death penalty as a philosophical matter and because of her

religious beliefs. Asked whether anything about the death penalty or life

imprisonment without parole disturbed her, she marked “yes” and wrote, “I‟m

against the death penalty.” Answering question Nos. 54 and 56, she marked that

she was so strongly against the death penalty that, regardless of the evidence, she

would refuse to vote for guilt as to first degree murder or refuse to find a special

27

circumstance true, and that she would automatically vote against death at the

penalty phase. Answering question No. 58, for every listed special circumstance,

she marked that she would never impose the death penalty. For question No. 60,

she marked that she could not see herself choosing the death penalty at the penalty

phase.

Prospective Juror T.S. Asked about his general feelings toward the death

penalty, T.S. wrote: “I do not believe in the death penalty. I would find it very

difficult, if I had to make that decision.” He indicated he was strongly against the

death penalty as a philosophical matter and wrote, “I don‟t believe anyone has the

right to take a human life” and “It‟s morally wrong.” Answering question No. 54,

he marked that he was so strongly against the death penalty that, regardless of the

evidence, he would refuse to vote for guilt as to first degree murder or refuse to

find a special circumstance true in order to keep the case from going to the penalty

phase. Answering question No. 58, for the first and last special circumstance of

the five listed he marked that he would never impose the death penalty, but he left

the middle three blank. As an explanation to question No. 58, he wrote: “I do not

believe in the death penalty.” Answering question No. 60, he marked that he

could not see himself choosing the death penalty at the penalty phase.

Prospective Juror R.S. R.S. indicated that his general feeling was he was

“not in favor of the death penalty. Only God has the right to take a life.” In

response to another question, he reiterated the religious basis for his philosophical

position of being “strongly against” the death penalty, further noting that “I

believe in God, not man.” Asked whether anything about the death penalty or life

imprisonment without parole disturbed him, he marked yes and wrote, “I‟m not in

favor of the death penalty.” Answering question Nos. 54 and 56, he marked that

he was so strongly against the death penalty that, regardless of the evidence, he

would refuse to vote for guilt as to first degree murder or refuse to find a special

28

circumstance true, and that he would automatically vote against death at the

penalty phase. Answering question No. 58, for every listed special circumstance,

he marked that he would never impose the death penalty. Answering question No.

60, he marked that he could not see himself choosing the death penalty at the

penalty phase.

Based on our de novo review of the prospective jurors‟ responses to the

death penalty section of the questionnaire, set out above, we conclude the excused

jurors were impaired under Wainwright v. Witt, supra, 469 U.S. 412. Therefore,

even though some of the excused jurors marked “yes” to question No. 36, the trial

court did not err in excusing them without oral voir dire.

(4) Failure to Dismiss Four Death-leaning Prospective Jurors

on Their Questionnaires Alone

Defendant contends the trial court violated the equal protection clause of

the federal Constitution because it applied a different standard for evaluating the

questionnaires of those who strongly favored the death penalty than for those who

strongly opposed it. Defendant contends that, whereas prospective jurors who

expressed strong opposition to the death penalty were excused on the basis of their

questionnaires alone, prospective jurors who expressed equally strong sentiments

in favor of the death penalty were examined in an oral voir dire. Defendant

identifies four “pro-death” prospective jurors, G.G., L.R., E.V., and M.P., who, he

contends, should have been dismissed on the basis of their questionnaires alone

had the trial court been applying the same standard to “pro-death” prospective

jurors that it applied to those who were “pro-life.”

Insofar as defendant‟s equal protection argument implies that the trial

court‟s basic approach to substantial impairment was flawed and that all of the

exclusions based on it are suspect, we reject the claim for the reasons discussed

above. Insofar as defendant argues the trial court was more inclined to excuse

29

“pro-life” prospective jurors on the basis of their questionnaires alone than it was

“pro-death” prospective jurors, defendant fails to show how he was prejudiced.

As defendant acknowledges, none of these four assertedly “pro-death” prospective

jurors sat on the jury in this case: G.G. was excused for cause and defense counsel

exercised peremptory challenges against the other three.

2. Asserted Batson/Wheeler Error

Defendant contends the prosecutor‟s striking of African-American

prospective jurors violated his right to equal protection under the Fourteenth

Amendment to the United States Constitution. Defense counsel brought a motion

under Batson v. Kentucky (1986) 476 U.S. 79, 84-89 (Batson) and People v.

Wheeler (1978) 22 Cal.3d 258, 276-277 (Wheeler) after the prosecutor exercised

peremptory challenges against three African-American prospective jurors, D.J.,

R.M., and J.G. The trial court stated that, based on the number of challenges

against African-American prospective jurors (three out of nine exercised), defense

counsel had stated a prima facie case, and asked the prosecutor to explain his

challenges. After hearing the prosecutor‟s explanations, the trial court denied the

motion. On appeal, defendant asserts Batson/Wheeler error as to D.J. and R.M.

only; he raises no issue on appeal as to the challenge of J.G.

Both the state and federal Constitutions prohibit the use of peremptory

challenges to remove prospective jurors based solely on group bias. (Batson,

supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) The law

applicable to Batson/Wheeler claims is now familiar. “First, the defendant must

make out a prima facie case „by showing that the totality of the relevant facts gives

rise to an inference of discriminatory purpose.‟ [Citation.] Second, once the

defendant has made out a prima facie case, the „burden shifts to the State to

explain adequately the racial exclusion‟ by offering permissible race-neutral

30

justifications for the strikes. [Citations.] Third, „[i]f a race-neutral explanation is

tendered, the trial court must then decide . . . whether the opponent of the strike

has proved purposeful racial discrimination.‟ ” (Johnson v. California (2005) 545

U.S. 162, 168, fn. omitted.)

“Review of a trial court‟s denial of a Wheeler/Batson motion is deferential,

examining only whether substantial evidence supports its conclusions.” (People v.

Lenix (2008) 44 Cal.4th 602, 613.) “We presume that a prosecutor uses

peremptory challenges in a constitutional manner and give great deference to the

trial court‟s ability to distinguish bona fide reasons from sham excuses.” (People

v. Burgener (2003) 29 Cal.4th 833, 864.) As long as the court makes “a sincere

and reasoned effort to evaluate the nondiscriminatory justifications offered, its

conclusions are entitled to deference on appeal.” (Ibid.)

Prospective Juror D.J. The prosecutor gave the following reasons for his

challenge of D.J. D.J. was a correctional officer, but the prosecutor did not think

that being a correctional officer necessarily made someone a good juror. The

prosecutor noted that D.J. had worked with both death-sentenced prisoners and

prisoners sentenced to life without the possibility of parole (LWOP) and that she

indicated in her questionnaire that she considered LWOP to be a more serious

punishment than death. The prosecutor was concerned that this indicated a built-

in “affinity towards prisoners.” He was further concerned that, although she had

originally written in her questionnaire that she would always impose the death

penalty for each of the special circumstances, during her voir dire, “as soon as she

saw that was an issue, she volunteered „Oh no, what I meant was sometimes,‟ and

she changed all the „always‟ to „sometimes‟ in her answers.” Additionally,

although in the questionnaire she said she did not recognize any name on the

witness list, she had worked at several of the state prisons where defendant and

two prospective witnesses had been incarcerated, specifically Chino and

31

Lancaster. The prosecutor was concerned that when those individuals appeared in

court, she might recognize their faces. Finally, in explaining her questionnaire

answer that she did not drink alcohol, she had written that she could not “afford

to” because there were “too many earthquakes,” and she “want[ed] to be in total

awareness when the earth moves.” The prosecutor stated that “before she even

walked into the courtroom,” he had given her a negative rating based on that

answer.

In denying defendant‟s Batson/Wheeler motion concerning the challenge of

D.J., the trial court explained its ruling as follows: First, because D.J. worked as a

correctional officer, it was possible to believe she had “form[ed] a bond” with

prisoners. Second, and “more to the point,” had defendant and several prospective

witnesses been incarcerated at prisons where D.J. had worked, as the prosecutor

feared, this would create a problem if D.J. did end up recognizing one of those

individuals when they came to court. This, the court concluded, was a “sufficient

reason standing alone to excuse somebody from the Department of Corrections.”

Defendant contends the trial court erred in accepting these two nonracially based

reasons as genuine.

Defendant argues first that D.J.‟s answers, both in her questionnaire and in

her voir dire, indicate a bias toward law enforcement, not prisoners, because D.J.

stated she and several of her relatives were longtime employees of the Department

of Corrections (now Department of Corrections and Rehabilitation). But the mere

possibility that one could draw plausible inferences about D.J. other than those the

prosecutor did does not mean the prosecutor‟s stated reason was pretextual. The

trial court made “a sincere and reasoned effort to evaluate the nondiscriminatory

justifications offered” and, for that reason, “its conclusions are entitled to

deference on appeal.” (People v. Burgener, supra, 29 Cal.4th at p. 864.)

32

Second, defendant contends the record contains no evidence that he,

Mercurio, or Dalton was incarcerated in a correctional institution during a time

D.J. had worked there. Although defendant does not dispute that he, Mercurio,

and Dalton had been at Chino and Lancaster, institutions where D.J. had worked,

he asserts the prosecutor did not establish D.J.‟s dates of service at the institutions

precisely enough to support his concern. We disagree. In response to the

prosecutor‟s question during voir dire, D.J. stated she had worked at Chino from

1986 through 1989 and that she was currently working at Lancaster. This

information was sufficient to permit the trial court to credit the prosecutor‟s stated

reason.

Prospective Juror R.M. The prosecutor gave two principal reasons for his

challenge of R.M. First, he stated that, of all the questionnaires he had read so far,

R.M.‟s stood out as indicating an “intentional walking of a fine line not to say

anything that would get [him] excused.” The prosecutor felt R.M. was dancing

around the questions and noted that when asked to describe his philosophical

opinion regarding the death penalty, R.M. had indicated he was neutral and wrote:

“It would depend solely on degree of criminal charges brought against the

defendant according to law.” The prosecutor thought R.M.‟s answers indicated

“he just wanted on this jury,” and he stated he was always suspicious of

prospective jurors like that.

The second reason the prosecutor mentioned involved the one question to

which the prosecutor thought R.M. had given a self-revelatory answer. In

response to a question asking whether he or an acquaintance or relative had ever

been accused, rightly or wrongly, of a crime, R.M. described being accused of

missing a bedcheck in the Army 28 years ago. According to his answer, in July

1968, R.M.‟s first sergeant had accused him of missing a bedcheck, but R.M. was

found not guilty after further investigation. R.M. wrote he felt “well about the

33

outcome” and added, “at that time, I was very thin and it would have been difficult

[to] tell if I were [in] bed or not.” The prosecutor stated he was concerned that

R.M. had brought up such a minor incident that happened long ago.

In denying defendant‟s Batson/Wheeler motion to the challenge of R.M.,

the trial court agreed with the prosecutor that R.M. “did appear to be very neutral,”

but stated also that “[h]e appeared at first blush to be [a] perfectly acceptable juror,

and one would wonder in the face of things why anyone would excuse him other

than the fact that he was Black.” The court observed, however, that the prosecutor

had stated a race-neutral reason based on R.M.‟s answer “that he was wrongfully

accused in the Army.” The court noted that although the incident seemed to be a

“minor thing,” R.M. was “apparently still concerned about it 28 years later.” The

court concluded that, “having been wrongfully accused, even though it was 20

years ago, is a sufficient, legitimate race-neutral . . . reason for a prosecutor to

excuse a potential juror.”

Defendant contends the race-neutral reasons the prosecutor offered were

implausible and unsupported by the record. We disagree. As to R.M.‟s neutrality

and lack of self-revealing answers, defendant correctly notes R.M. wrote answers

and explanations in his own words where that was called for and that his written

comments, although not especially lengthy, covered the subjects the questions

addressed. The prosecutor‟s main point, however, was that he felt R.M. did not

reveal his attitudes in what he wrote, not that he failed to write anything in his

questionnaire. As to the bedcheck incident, defendant notes the questionnaire

asked very specific things about any accusation of a crime (“What crime?” “What

happened?” “Was there a trial?” “If so, how do you feel about what happened?”)

and contends that R.M. was simply answering the questions put to him by the

questionnaire. But as we noted in the prior discussion, the mere possibility one

could interpret R.M.‟s account of the bedcheck incident in a different light does

34

not render the prosecutor‟s reason pretextual. Once again, the trial court made “a

sincere and reasoned effort to evaluate the nondiscriminatory justifications

offered” and, for that reason, “its conclusions are entitled to deference on appeal.”

(People v. Burgener, supra, 29 Cal.4th at p. 864.)

Finally, the trial court noted that at the time of the Batson/Wheeler motion

there were still two African-Americans left in the group of 11 prospective jurors

seated in the jury box.12 “ „While the fact that the jury included members of a

group allegedly discriminated against is not conclusive, it is an indication of good

faith in exercising peremptories and an appropriate factor for the trial judge to

consider in ruling on a Wheeler objection.‟ ” (People v. Stanley (2006) 39 Cal.4th

913, 938, fn. 7.)13


12

Two African-American jurors ultimately served on defendant‟s jury. At the

time the defense and the prosecution accepted the jury panel, the prosecutor had
used 10 of the 20 peremptory challenges he was entitled to exercise under Code of
Civil Procedure section 231, subdivision (a).

13

At oral argument, appellate counsel for the first time referred to the juror

questionnaires of the following 13 seated or alternate jurors: J.G., D.K., C.M.,
L.M., T.M., W.M., S.N., D.P., L.R., M.R., D.N., M.S., and Y.Y. Counsel argued
that for a few questionnaire items the above jurors gave answers that were the
same as or similar to those of Prospective Jurors D.J. and R.M., suggesting this
allegedly disparate treatment revealed the prosecutor‟s stated reasons for excusing
D.J. and R.M. were pretextual. (See People v. Lenix, supra, 44 Cal.4th 602
[comparative juror analysis properly considered when evaluating a third stage
Batson claim].) Because counsel failed to raise this comparative juror argument in
her briefs, to raise it at oral argument was improper. (See People v. Niles (1964)
227 Cal.App.2d 749, 758.) Nevertheless, we have considered the comparative
juror argument on the merits and examined the record, and we are not persuaded
the questionnaire answers from the identified 13 jurors or alternate jurors raise a
reasonable inference that the prosecutor‟s stated reasons for challenging D.J. and
R.M. were pretextual.

35

3. Denial of Motion to Suppress

Defendant contends the trial court erred in denying his motion under

section 1538.5 to exclude from evidence the two duffel bags and the jacket police

found on September 25, 1991, when they searched his mother‟s car. As recounted

above, one of the duffel bags and the jacket found in the other bag were identified

at trial as Gitmed‟s property. Defendant contends the search violated the Fourth

Amendment to the United States Constitution because police lacked both a

warrant and probable cause for the search.

a. Factual and procedural background

At the suppression hearing, two officers involved in the search, Betty

Fitzpatrick and Donna Martinez, testified. Fitzpatrick was assigned to investigate

Gitmed‟s death. The investigation began after the discovery of an unidentified

body at Canyon Lake on August 28, 1991. On September 11, Michelle Keathley

identified the body as Gitmed and indicated he was last seen in defendant‟s

company. This led the police, on September 13, to conduct a parole search of the

house of Jean Thompson Churder (defendant‟s mother), where defendant lived.

They seized no evidence in this search. On September 14, the police received

information from Betty Abney, the roommate of Eva Thompson (defendant‟s

sister). Abney had read or heard about defendant‟s involvement in a crime, and

she told the police that items belonging to defendant had been removed from the

apartment she shared with Thompson and sent to Churder‟s house. After Officer

Fitzpatrick spoke to Abney, she interviewed Mercurio on September 17, and

Mercurio told her he had seen defendant shoot and kill Gitmed and that defendant

had obtained Gitmed‟s personal property.

On September 25, Officer Fitzpatrick and other officers went to Churder‟s

house to serve a search warrant for the items belonging to defendant that Abney

said had been removed from Thompson‟s apartment. Churder was not at home,

36

but her daughter Gina was. When the search of the house proved fruitless, the

officers asked Gina about two bags and a box, which were the items they were

searching for. Gina told Officer Fitzpatrick the items were in the trunk of her

mother‟s car, and she was expecting her mother to return to the house with the car.

Officer Fitzpatrick conveyed this information to Officer Martinez, who

participated in the search of Churder‟s car when Churder returned and parked the

car in the driveway. Officer Martinez opened the trunk and seized two duffel

bags. Michelle Keathley arrived and at the officers‟ request identified one of the

bags, a black, blue, and white nylon duffel bag, as belonging to Gitmed. Officer

Martinez searched the contents of both bags. Martinez did not recall whether she

opened the bags before or after Keathley arrived. Keathley did not recognize the

second bag, but identified a jacket in that second bag as Gitmed‟s.

The prosecutor stipulated that no search warrant existed for the car from

which the items were removed, but argued the suppression motion should be

denied for two reasons: (1) defendant had no standing to contest the search of the

car because it belonged to his mother, not to him; and (2) police had probable

cause to conduct a warrantless search of the car and the containers within it under

California v. Acevedo (1991) 500 U.S. 565. The trial court accepted both

arguments and denied defendant‟s motion to suppress.

b. Analysis

In ruling on a motion to suppress, the trial court must find the historical

facts, select the rule of law, and apply it to the facts in order to determine whether

the law as applied has been violated. (People v. Hoyos (2007) 41 Cal.4th 872,

891.) We review the court‟s resolution of the factual inquiry under the deferential

substantial evidence standard. Whether the relevant law applies to the facts is a

mixed question of law and fact that is subject to independent review. (Ibid.)

37

Applying these standards, we discern no error in the trial court‟s denial of

defendant‟s motion to suppress.

Defendant does not challenge the trial court‟s ruling that he lacked standing

to contest the search of the car, but claims that because police lacked probable

cause to search the duffel bags found in the trunk, the trial court should have

granted his suppression motion to that extent and excluded from evidence

Gitmed‟s jacket found in one of the bags. Defendant acknowledges the

warrantless search and seizure of the bags was controlled by California v.

Acevedo, in which the high court held: “The police may search an automobile and

the containers within it where they have probable cause to believe contraband or

evidence is contained.” (California v. Acevedo, supra, 500 U.S. at p. 580.) He

contends, however, the officers did not have probable cause to search the bags

because the facts presented at the suppression hearing showed only that items

belonging to him had been moved from Thompson‟s apartment to Churder‟s

house. These facts, he contends, failed to show a connection between the bags and

Gitmed‟s murder. Defendant‟s argument, however, ignores Mercurio‟s

information, which provided a critical connection between the items defendant

stored at Thompson‟s apartment and the murder. Before the September 25 search,

Mercurio told the police that defendant had killed Gitmed and obtained Gitmed‟s

personal property, and Officer Fitzpatrick had conveyed this information to

Officer Martinez, thus providing probable cause for Officer Martinez to search the

car‟s containers for the items.

C. Trial Issues

1. Asserted Insufficiency of the Evidence for First Degree Murder

Defendant contends his first degree murder conviction violates his right to

due process under the Fifth and Fourteenth Amendments to the United States

38

Constitution because it is not supported by sufficient evidence. At trial, the

prosecutor advanced two theories of first degree murder: premeditated and

deliberate murder, and felony murder, with the further alternative for each theory

that defendant was either a direct perpetrator or an aider and abettor. Defendant

contends the record contains insufficient evidence to support a conviction of first

degree murder under any theory. As discussed below, we disagree.

a. Sufficiency of the evidence defendant was the direct perpetrator

Defendant argues the record contains insufficient evidence to convict him

of first degree murder as the direct perpetrator. The relevant law is well

established. “ „ “ „[T]he court must review the whole record in the light most

favorable to the judgment below to determine whether it discloses substantial

evidence—that is, evidence which is reasonable, credible, and of solid value—

such that a reasonable trier of fact could find the defendant guilty beyond a

reasonable doubt.‟ ” ‟ ” (People v. Halvorsen, supra, 42 Cal.4th at p. 419.) The

standard is the same under the state and federal due process clauses. (People v.

Berryman (1993) 6 Cal.4th 1048, 1082-1083.) “We presume „ “in support of the

judgment the existence of every fact the trier could reasonably deduce from the

evidence.” [Citation.] This standard applies whether direct or circumstantial

evidence is involved.‟ ” (People v. Prince (2007) 40 Cal.4th 1179, 1251.)

The prosecution‟s main evidence was Mercurio‟s testimony that defendant

robbed and shot Gitmed. Defendant contends Mercurio‟s testimony of itself was

insufficient to support his conviction as the direct perpetrator and that evidence of

his actions after the shooting cannot support the conviction. Considered in

isolation, he argues, his actions after the crime merely support the conclusion he

was an accessory after the fact. We are not, however, limited to considering his

postcrime actions in isolation.

39

In the context of the sufficiency of the evidence to support a finding of

premeditated and deliberate murder, we have noted that evidence of a defendant‟s

attempts to conceal the crime by cleaning up the crime scene or telling false stories

“is highly probative of whether defendant committed the crime, but it does not

bear upon the state of the defendant‟s mind at the time of the commission of the

crime.” (People v. Anderson (1968) 70 Cal.2d 15, 33.) While our comment in

Anderson thus warns against using evidence of a defendant‟s postcrime actions

and statements as the sole support for upholding a finding of premeditated and

deliberate murder, such postcrime actions and statements can support a finding

that defendant committed a murder for which his specific mental state is

established by his actions before and during the crime. In the week following the

shooting, defendant, with Mercurio‟s help, methodically disposed of Gitmed‟s

property. That defendant knew the location of and entry code to Gitmed‟s storage

facility reasonably supports the inference he gained that information from Gitmed

before the murder as part of a plan to obtain Gitmed‟s property after he killed him.

Other postcrime evidence supports defendant‟s guilt as the actual

perpetrator of the murder. Charlene Triplett saw defendant cleaning a gun, which

supports the inference he had brought and used the gun that killed Gitmed. When

after the shooting defendant returned to Michelle Keathley‟s house to retrieve his

bicycle, he gave conflicting stories about Gitmed‟s whereabouts. When

interviewed by the police on September 13, 1991, he acknowledged having met

Gitmed at Michelle Keathley‟s house, but denied leaving the house with him. He

told Barbara Triplett about a man floating in Canyon Lake who was not able to

make decisions for himself, and boasted to Danny Dalton about leaving someone

floating in the lake. Charlene Triplett heard defendant implore Mercurio to get

Charlene and her family to go along with “our story.” Defendant‟s postcrime

40

actions and statements clearly support the conclusion he was the direct perpetrator

of the murder.

(1) Premeditated Murder

Defendant contends the evidence was insufficient that he premeditated

Gitmed‟s murder because nothing in Mercurio‟s testimony established that he

acted other than impulsively in shooting Gitmed. Defendant notes Mercurio

testified he was surprised when he heard shots and, just before the shooting,

defendant raised his voice in an increasing volume. Defendant contends the only

reasonable conclusion this testimony supports is that he shot Gitmed in the anger

of the moment.

We disagree. At best, defendant establishes only that, based on Mercurio‟s

testimony, a reasonable jury could have concluded defendant shot the victim in

anger and without premeditation. But as we have noted, “[i]f the circumstances

reasonably justify the jury‟s findings, the reviewing court may not reverse the

judgment merely because it believes that the circumstances might also support a

contrary finding.” (People v. Ceja (1993) 4 Cal.4th 1134, 1139.) The evidence

here reasonably supports a finding of premeditation. “ „Premeditation and

deliberation can occur in a brief interval. “The test is not time, but reflection.

„Thoughts may follow each other with great rapidity and cold, calculated judgment

may be arrived at quickly.‟ ” ‟ ” (People v. Osband (1996) 13 Cal.4th 622, 697.)

Mercurio testified that as defendant‟s voice grew louder and angrier, defendant

was ordering Gitmed to take off his clothes. The jury reasonably could have

inferred from these facts that, before shooting Gitmed, defendant had decided to

rob him and, further, that he had decided to kill him after robbing him.

Gitmed was killed by three gunshot wounds, one of which was immediately

fatal. Mercurio testified defendant was just a few feet from Gitmed when he shot

41

him. This manner of killing, a close-range shooting without any provocation or

evidence of a struggle, reasonably supports an inference of premeditation and

deliberation. (People v. Marks (2003) 31 Cal.4th 197, 230.)

Other evidence at trial, moreover, reasonably supports the inference that

defendant lured Gitmed to an isolated area to rob and kill him as part of a plan to

obtain all his worldly possessions. Testimony at trial supports the inference that

defendant had planned to kill Gitmed as early as when he convinced Gitmed to

leave Michelle Keathley‟s house with him. Defendant had no car at that time and,

as Eric Arias testified, defendant had previously offered Arias money to give him

a ride to the Lake Elsinore area to collect a debt and mentioned he would be

bringing a gun. After Arias backed out of the agreement, defendant made a

similar offer to Gitmed, who accepted. A reasonable jury could have inferred that

defendant, after persuading Gitmed to accompany him, planned to rob him and kill

him for his car when the opportunity presented itself. A further reasonable

inference is that defendant brought along the gun he had mentioned to Eric Arias.

Testimony established that defendant persuaded Gitmed to drive to the

Triplett compound, where Mercurio was staying. A reasonable jury could have

inferred that defendant brought Gitmed to Mercurio, whom defendant had met in

prison, in order to obtain Mercurio‟s assistance in committing the robbery and

murder. Later that night, Mercurio drove defendant and Gitmed to an isolated area

of Canyon Lake. A reasonable inference is that defendant had planned to get

Gitmed to a remote area where he could carry out the robbery and murder without

hindrance and without detection.

In sum, the record contains ample evidence to support defendant‟s

conviction of first degree premeditated murder.

42

(2) Felony Murder

One who unlawfully kills a human being during the commission of a

robbery or an attempted robbery is guilty of first degree murder under the felony-

murder rule. (People v. Young (2005) 34 Cal.4th 1149, 1175; §§ 187, 189.)

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

from his person or immediate presence, and against his will, accomplished by

means of force or fear.” (§ 211.) Defendant contends there was insufficient

evidence that, at the time of the shooting, Gitmed was in possession of any

property or that defendant took any property from him. Defendant‟s argument

ignores the substantial evidence from which a reasonable jury could find the

killing occurred during the commission of a robbery. Mercurio‟s testimony

provided direct evidence that defendant took personal items from Gitmed before

killing him. Mercurio testified that before the shooting defendant told Gitmed to

take off his clothes, which he did, and that after the shooting defendant returned to

the truck and threw some things into the back of it, including Gitmed‟s clothing

and some small items that might have been Gitmed‟s wallet or some change.

Gitmed‟s body was found with no shirt or jacket, which further supports the

inference that personal items were taken from him.

Defendant contends Mercurio‟s trial testimony establishing the robbery

contradicted his testimony before the grand jury, which defense counsel read into

the record as impeachment. However, Mercurio‟s grand jury testimony

constituted, if anything, even stronger evidence that defendant had taken personal

items from Gitmed. Before the grand jury, Mercurio testified that after defendant

pointed a gun at Gitmed, Gitmed started taking off his clothes and removed items

from his pockets, such as his wallet and change, and handed them to defendant,

who placed them on the hood of the truck. Mercurio‟s grand jury testimony

therefore did not conflict with his trial testimony; rather, it included some details

43

(such as Gitmed‟s removing items from his pockets) that he did not recount at

trial, but that were consistent with his trial testimony. Even if Mercurio‟s grand

jury testimony was inconsistent, it was admitted for its truth. (See Evid. Code,

§ 1235.) Therefore, whether the jury accepted Mercurio‟s trial testimony

exclusively, his grand jury testimony exclusively, or a combination of both, the

testimony provided substantial evidence that a robbery took place.

b. Sufficiency of the evidence for aiding and abetting

Defendant argues the record contains insufficient evidence to convict him

as an aider and abettor to first degree murder on either a felony-murder or a

premeditated-and-deliberate-murder theory. Because the jury found the allegation

of personal gun use to be untrue, he contends, one or more jurors must have relied

on an aider and abettor theory of liability, and the asserted insufficiency of the

aider and abettor evidence therefore compels reversal. In the next part, we address

and reject defendant‟s contentions about the significance of the jury‟s “not true”

finding on the personal gun use allegation. In this part, we conclude the record

discloses substantial evidence to support a conviction based on aider and abettor

liability.

(1) Aider and Abettor to Felony Murder

Principals include those who “aid and abet” in the “commission of a

crime.” (§ 31.) “Aider and abettor liability is premised on the combined acts of

all the principals, but on the aider and abettor‟s own mens rea.” (People v. McCoy

(2001) 25 Cal.4th 1111, 1120.) We have defined the required mental states and

acts for aiding and abetting as: “(a) the direct perpetrator‟s actus reus—a crime

committed by the direct perpetrator, (b) the aider and abettor‟s mens rea—

knowledge of the direct perpetrator‟s unlawful intent and an intent to assist in

achieving those unlawful ends, and (c) the aider and abettor‟s actus reus—conduct

44

by the aider and abettor that in fact assists the achievement of the crime.” (People

v. Perez (2005) 35 Cal.4th 1219, 1225.) Under the felony-murder rule, an

accomplice is liable for killings occurring while the killer was acting in

furtherance of a criminal purpose common to himself and the accomplice, or while

the killer and the accomplice were jointly engaged in the felonious enterprise.

(People v. Pulido (1997) 15 Cal.4th 713, 719.) In order to support defendant‟s

conviction as an aider and abettor, therefore, the record must contain substantial

evidence that (a) Mercurio committed the robbery (the perpetrator‟s actus reus),

(b) defendant knew Mercurio‟s intent to rob and intended to assist in the robbery

(the aider and abettor‟s mens rea), and (c) defendant engaged in acts that assisted

the robbery (the aider and abettor‟s actus reus).

As discussed above, the condition of Gitmed‟s body supports the inference

a robbery took place. Mercurio‟s testimony stands as direct evidence that

defendant committed the robbery, but it also provides circumstantial evidence that

Mercurio could have committed the robbery, because it establishes that Mercurio

was with Gitmed and defendant when Gitmed was robbed and killed. (See 1

Witkin, Cal. Evidence (4th ed. 2000) Circumstantial Evidence, § 2, p. 322

[testimony may be direct evidence of one fact, but also circumstantial evidence of

another fact].) In his testimony, Mercurio cast himself in the best possible light,

stating he was completely ignorant of defendant‟s plan to rob and kill and was

shocked when it happened. But other evidence at trial supports the inference that

Mercurio was an accomplice in the robbery and shooting. In their testimony,

Danny Dalton and Charlene Triplett described Mercurio as an all-too-willing and

apparently equal participant with defendant in obtaining and disposing of

Gitmed‟s property after the shooting. Although their testimony does not speak to

whether Mercurio was the shooter, it is consistent with the conclusion that

45

Mercurio was more involved in the crime than he testified and that he may have

been an accomplice with defendant in the robbery and murder.

Defendant contends “there is no such thing as aiding and abetting each

other” and, therefore, absent direct evidence Mercurio shot Gitmed, the evidence

is insufficient to convict defendant as an aider and abettor. Defendant argues that

even assuming Mercurio was the actual shooter, no evidence supports the

conclusions that defendant knew Mercurio was going to rob Gitmed, that

defendant himself harbored the intent to deprive Gitmed of his property, or that

defendant did anything to aid Mercurio in accomplishing the robbery. We

disagree. As we have stated, a sharp line does not always exist between the direct

perpetrator and the aider and abettor: “It is often an oversimplification to describe

one person as the actual perpetrator and the other as the aider and abettor. When

two or more persons commit a crime together, both may act in part as the actual

perpetrator and in part as the aider and abettor of the other, who also acts in part as

an actual perpetrator. . . . [O]ne person might lure the victim into a trap while

another fires the gun; in a stabbing case, one person might restrain the victim

while the other does the stabbing. In either case, both participants would be direct

perpetrators as well as aiders and abettors of the other. The aider and abettor

doctrine merely makes aiders and abettors liable for their accomplices‟ actions as

well as their own. It obviates the necessity to decide who was the aider and

abettor and who the direct perpetrator or to what extent each played which role.”

(People v. McCoy, supra, 25 Cal.4th at p. 1120.)

The same evidence discussed above as supporting the conclusion that

defendant premeditated the robbery and killing also supports the conclusion that

defendant and Mercurio were coperpetrators in the robbery and killing. The

evidence reasonably supports the inference that, after defendant brought Gitmed to

the compound, Mercurio and defendant jointly maneuvered to bring him to an

46

isolated spot at Canyon Lake where both participated in the robbery and murder.

Regardless of whether one concludes the actual shooter was defendant or

Mercurio, the evidence supports the conclusion the two were coperpetrators in the

crimes. (See People v. McCoy, supra, 25 Cal.4th at p. 1120.) And regardless of

who was the actual shooter, the evidence reasonably supports the inference that

defendant assisted the robbery and murder by providing the gun; as Eric Arias

testified, defendant had said he was going to bring a gun and, as Charlene Triplett

testified, defendant was cleaning a gun the day after the shooting.

(2) Aider and Abettor to Premeditated Murder

Defendant contends insufficient evidence supports his first degree murder

conviction based on the theory he aided and abetted Mercurio in committing

premeditated murder. Defendant contends the evidence shows, at most, that he

willingly went along with Mercurio and Gitmed for a ride in the truck, but had no

idea Mercurio intended to kill Gitmed. We disagree. The substantial evidence

supporting defendant‟s guilt as an aider and abettor to premeditated murder is

essentially the same as that supporting the theory he aided and abetted the felony

murder. As discussed in detail in the previous part, the evidence reasonably

supports the inference that defendant intentionally maneuvered Gitmed into going

to an isolated area where defendant and Mercurio carried out their plan to rob and

kill him. Assuming defendant was not the actual shooter, the evidence reasonably

supports the inferences that he acted as an accomplice to a premeditated murder

and that he supplied the gun used to commit the murder.

c. Significance of the split verdict

As noted, the jury found defendant guilty of first degree murder and found

true the robbery-murder special-circumstance allegation, but found not true the

personal gun use allegation. Defendant contends this “split verdict” shows that

47

one or more jurors must have rejected his guilt as the actual shooter and instead

found him guilty as an aider and abettor. Because there was insufficient evidence

for the aider and abettor theory, he argues, his conviction must be reversed. In the

previous part, we rejected defendant‟s contention that the evidence was

insufficient to convict him as an aider and abettor. But even were we to assume

the evidence was insufficient, the split verdict does not show that the jury relied on

an aider and abettor theory.

“Where the jury considers both a factually sufficient and a factually

insufficient ground for conviction, and it cannot be determined on which ground

the jury relied, we affirm the conviction unless there is an affirmative indication

that the jury relied on the invalid ground.” (People v. Marks, supra, 31 Cal.4th at

p. 233.) We review the entire record in determining whether there is such an

affirmative indication. (People v. Guiton (1993) 4 Cal.4th 1116, 1130.)

In People v. Santamaria (1994) 8 Cal.4th 903, we considered what

implications could be drawn from a split verdict in determining whether an issue

had been “necessarily decided” for the purposes of collateral estoppel. (Id. at

p. 917.) In Santamaria, the defendant was charged with murder, a robbery-murder

special circumstance, and the allegation that he had personally used a knife in the

commission of the crime. The main witness was a companion who had been

charged with and convicted of being an accessory to the murder. (Id. at pp. 908-

909.) The jury convicted the defendant of murder and robbery and found true the

special circumstance, but found not true the personal knife use allegation. (Id. at

p. 909.) The Court of Appeal reversed the judgment, finding prejudicial error in

an 11-day continuance the trial court had granted during deliberations. The issue

on retrial was whether the doctrine of collateral estoppel prevented the prosecutor

from proceeding again on the theory that the defendant was the direct perpetrator,

since the first jury had found the personal knife use allegation to be untrue. (Ibid.)

48

We held collateral estoppel did not preclude retrial on a direct perpetrator

theory because the “not true” verdict on the personal knife use allegation was “of

far less significance” than the defendant had contended. (People v. Santamaria,

supra, 8 Cal.4th at p. 919.) We explained: “It shows only that there was a

reasonable doubt in the minds of the jurors that defendant specifically used a

knife. It does not show the reverse, that the jury specifically found defendant was

an aider and abettor. . . . The jury may merely have believed, and most likely did

believe, that defendant was guilty of murder as either a personal knife user or an

aider and abettor but it may have been uncertain exactly which role defendant

played. That, too, would fully explain, and necessitate, the split verdict.” (Ibid.)

Although defendant‟s claim does not involve collateral estoppel, our

observations in Santamaria apply to his contention that the jury‟s failure to sustain

the personal gun use allegation is an affirmative indication it relied on an aider and

abettor theory to convict him of murder. As in Santamaria, the jury in defendant‟s

case likely believed defendant was guilty of murder either as the actual shooter or

as an aider and abettor, but may have been uncertain as to the exact role he played.

As previously discussed, the evidence reasonably supports the inference that both

Mercurio and defendant planned and carried out the robbery and murder.

Mercurio placed all the blame on defendant, but from the other evidence presented

at trial the jury could reasonably have inferred Mercurio was a coperpetrator in the

crimes. The jury‟s uncertainty as to the exact roles each played could explain its

failure to sustain the gun use allegation. The jury‟s finding on the gun use

allegation does not necessarily demonstrate it based its murder verdict on an aider

and abettor theory. (People v. Marks, supra, 31 Cal.4th at p. 233.)

49

d. Assertedly erroneous instruction on aiding and abetting

In a claim related to his contention that the evidence was insufficient to

convict him on an aider and abettor theory, defendant contends the trial court erred

in instructing the jury on aiding and abetting because the evidence supported a

conviction only on a direct perpetrator theory. Because we reject defendant‟s

contention the evidence was insufficient to convict him on an aider and abettor

theory, we also reject this related argument.

e. Asserted prosecutorial misconduct

Defendant contends the prosecutor engaged in misconduct during closing

argument by misstating the law and the evidence. “A prosecutor who uses

deceptive or reprehensible methods to persuade the jury commits misconduct, and

such actions require reversal under the federal Constitution when they infect the

trial with such „ “unfairness as to make the resulting conviction a denial of due

process.” ‟ (Darden v. Wainwright (1986) 477 U.S. 168, 181 . . . ; see People v.

Cash (2002) 28 Cal.4th 703, 733 . . . .) Under state law, a prosecutor who uses

such methods commits misconduct even when those actions do not result in a

fundamentally unfair trial. [Citation.] In order to preserve a claim of misconduct,

a defendant must make a timely objection and request an admonition; only if an

admonition would not have cured the harm is the claim of misconduct preserved

for review.” (People v. Alfaro (2007) 41 Cal.4th 1277, 1328; People v. Hill

(1998) 17 Cal.4th 800, 820.) When a claim of misconduct is based on the

prosecutor‟s comments before the jury, “ „the question is whether there is a

reasonable likelihood that the jury construed or applied any of the complained-of

remarks in an objectionable fashion.‟ ” (People v. Smithey (1999) 20 Cal.4th 936,

960.)

Defendant acknowledges trial counsel failed to object to any of the asserted

misconduct he now raises, and he fails to indicate why an admonition would not

50

have cured the asserted harm. His claims therefore are forfeited for purposes of

appeal.14 Furthermore, as we conclude below, were we to excuse this forfeiture

and address the substance of his claims, we would find them meritless because no

misconduct occurred.

Defendant complains of the prosecutor‟s statements regarding his

culpability as an aider and abettor to felony murder, such as: “All that needs to be

proven is that the defendant was involved in a robbery and that someone was

killed during the course of the robbery.” Defendant contends the prosecutor‟s use

of the term “involved” set a lower bar for his culpability and lightened the

prosecutor‟s burden of proof. We disagree. The prosecutor did not purport to give

the jury a definition of aiding and abetting that was different from the one the

court had just given. The court had instructed that “[a] person aids and abets the

commission of a crime when he or she, with knowledge of the unlawful purpose of

the perpetrator and with the intent or purpose of committing, encouraging, or

facilitating the commission of the crime, by act or advice, promotes, encourages,

or instigates the commission of the crime.” The court further instructed that

“[m]ere presence at the scene of the crime which does not itself assist the

commission of the crime does not amount to aiding and abetting.” Viewed within

the context of his entire argument, the prosecutor‟s discussion of defendant‟s

liability as an aider and abettor to felony murder was consistent with the


14

Anticipating we would find these claims forfeited, defendant contends they

are still cognizable on appeal under the rubric of ineffective assistance of counsel
based on counsel‟s failure to object. As we discern no misconduct on the merits,
defendant‟s ineffective assistance claim fails. We reiterate, however, that a
defendant cannot automatically transform a forfeited claim into a cognizable one
merely by asserting ineffective assistance of counsel. (See People v. Riel (2000)
22 Cal.4th 1153, 1202-1203.)

51

instructions the trial court gave. There was no reasonable likelihood the jury

construed or applied any of the complained-of remarks in an objectionable

fashion. (People v. Smithey, supra, 20 Cal.4th at p. 960.)

Defendant also contends the prosecutor misrepresented the evidence. In

discussing the apparent senselessness of the murder, the prosecutor distinguished

between understanding a motive for the murder and understanding why anyone

would have committed such a cruel and senseless act. The prosecutor stated that

defendant‟s apparent motive for the robbery was that he wanted Gitmed‟s

possessions, such as the car and the duffel bag, but recognition of that apparent

motive does not make the crime any less senseless. Defendant objects to the

prosecutor‟s reference to the car and the bag, because these items were in

defendant‟s possession after the shooting and no evidence established that he took

either from Gitmed‟s immediate presence during the robbery. The prosecutor,

however, was not arguing that the car and bag were items taken during the robbery

but, rather, that defendant‟s apparent motive was his desire to take Gitmed‟s

possessions, including those, such as the car and the bag, that were not on his

person at the time of the robbery. As discussed above in connection with the

sufficiency of the evidence to support premeditated murder, this was a reasonable

characterization of the evidence.

f. Asserted ineffective assistance of counsel for failure to exclude

evidence of the wallet

In a contention related to his claim of insufficiency of the evidence,

defendant argues defense counsel was ineffective for failing to move to exclude

evidence that police found a wallet in defendant‟s room during the September 25,

1991, search of his mother‟s house. Defendant contends evidence of the wallet

was irrelevant under Evidence Code section 350 or was more prejudicial than

probative under Evidence Code section 352 and, if defense counsel had moved to

52

exclude it under these grounds, the trial court would have been compelled to grant

the motion.

“To establish a violation of the constitutional right to effective assistance of

counsel, a defendant must show both that his counsel‟s performance was deficient

when measured against the standard of a reasonably competent attorney and that

counsel‟s deficient performance resulted in prejudice to defendant in the sense that

it „so undermined the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result.‟ ” (People v. Kipp (1998) 18

Cal.4th 349, 366, quoting Strickland v. Washington, supra, 466 U.S. at p. 686.)

Preliminarily, we note that rarely will an appellate record establish ineffective

assistance of counsel. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267-268.)

On this record we see none. Counsel is not ineffective for failing to make

frivolous or futile motions. (People v. Memro (1995) 11 Cal.4th 786, 843.)

Contrary to defendant‟s contention that the wallet was irrelevant because no

evidence showed it belonged to Gitmed, Marc Brendlin, Thompson‟s son,

provided testimony from which the jury could have inferred the wallet belonged to

Gitmed. Brendlin testified that a wallet containing business cards but no

identification was among the items defendant left at Thompson‟s house. Brendlin

moved the items to Churder‟s house along with Gitmed‟s duffel bag and jacket.

Because the jury could reasonably have inferred the wallet thus belonged to

Gitmed, counsel was not remiss in failing to object to the wallet‟s admission into

evidence.

2. Challenges to the Validity of Mercurio’s Testimony

Defendant contends his convictions violate his right to due process under

the Fifth and Fourteenth Amendments to the United States Constitution because

they are based on insufficient evidence, namely, the uncorroborated testimony of

53

Mercurio, who was an accomplice. Alternatively, defendant contends Mercurio‟s

testimony cannot support a conviction because it was inherently incredible.

Neither contention has merit.

a. Corroboration of accomplice testimony

Section 1111 provides: “A conviction can not be had upon the testimony of

an accomplice unless it be corroborated by such other evidence as shall tend to

connect the defendant with the commission of the offense; and the corroboration is

not sufficient if it merely shows the commission of the offense or the

circumstances thereof. [¶] An accomplice is hereby defined as one who is liable to

prosecution for the identical offense charged against the defendant on trial in the

cause in which the testimony of the accomplice is given.”

The jury was instructed with CALJIC Nos. 3.10, 3.11, 3.12, 3.18, and 3.19,

which defined an accomplice, instructed the jury to determine whether Mercurio

was an accomplice, and set forth the standard for determining whether accomplice

testimony was corroborated. Defendant does not contend the jury was

misinstructed, nor that it should have been instructed under CALJIC No. 3.16 that

Mercurio was an accomplice as a matter of law. Rather, defendant contends the

jury‟s “not true” finding on the personal gun use allegation indicates the jury must

have found Mercurio to be an accomplice, and that his testimony was

uncorroborated. As discussed above, we reject defendant‟s contentions about the

split verdict‟s meaning. Assuming, however, for the sake of argument that the

jury found Mercurio was a mere accomplice, we conclude below that sufficient

evidence corroborated his testimony under the standards of section 1111.

“ „The trier of fact‟s determination on the issue of corroboration is binding

on the reviewing court unless the corroborating evidence should not have been

admitted or does not reasonably tend to connect the defendant with the

54

commission of the crime.‟ ” (People v. Abilez (2007) 41 Cal.4th 472, 505.)

“ „The corroborating evidence may be circumstantial or slight and entitled to little

consideration when standing alone, and it must tend to implicate the defendant by

relating to an act that is an element of the crime. The corroborating evidence need

not by itself establish every element of the crime, but it must, without aid from the

accomplice‟s testimony, tend to connect the defendant with the crime.‟ ” (Ibid.)

As discussed in detail above, ample evidence corroborated Mercurio‟s

testimony and connected defendant with the crime: Michelle Keathley established

the connection between defendant and Gitmed, testifying that they left her house

together and that defendant returned to her house without Gitmed and gave

suspicious and contradictory accounts about Gitmed‟s absence. Charlene

Triplett‟s testimony established that defendant and Gitmed were together at the

compound, that they left that night with Mercurio in the red truck, that defendant

was driving Gitmed‟s car after that night, and that defendant was burning papers

by the trash dumpster and cleaning a gun. Barbara Triplett and Danny Dalton

testified to defendant‟s incriminating statements about a person floating in Canyon

Lake. The physical evidence, to which various witnesses testified, also

corroborated Mercurio‟s testimony. Gitmed‟s body was found without a shirt or

jacket, corroborating Mercurio‟s account that defendant took these items before

shooting him. The contents of Gitmed‟s stomach corroborated Mercurio‟s account

of the hamburger and french fries dinner the group ate at the compound. The

presence of methamphetamine in Gitmed‟s blood confirmed Mercurio‟s account

that he, defendant, and Gitmed had ingested the methamphetamine Gitmed

brought with him that night. In short, ample evidence corroborated Mercurio‟s

testimony.

55

b. Inherently incredible testimony

Alternatively, defendant contends Mercurio‟s testimony was “inherently

incredible” because it described events that were physically impossible. The

standard for rejecting a witness‟s statements on this ground requires “ „ “either a

physical impossibility that they are true, or their falsity must be apparent without

resorting to inferences or deductions.” ‟ ” (People v. Barnes (1986) 42 Cal.3d

284, 306.) Defendant points to (1) the angle of the bullet wounds in Gitmed‟s

body as contradicting Mercurio‟s testimony regarding where defendant stood

when he shot Gitmed, and (2) that Gitmed‟s body was found in the water, although

Mercurio testified at trial he did not see the body fall into the water. But

Mercurio‟s testimony did not recount facts that were physically impossible, nor

did it exhibit falsity on its face. Rather, defendant‟s contention that Mercurio‟s

testimony was inherently incredible depends on the asserted inconsistencies that

defendant argues exist between Mercurio‟s testimony and other evidence

presented at trial. We reject defendant‟s attempt to reargue the evidence on appeal

and reiterate that “it is not a proper appellate function to reassess the credibility of

the witnesses.” (People v. Jones (1990) 51 Cal.3d 294, 314-315.)

3. Challenges to the Finding on the Robbery-murder Special-

circumstance Allegation

a. Sufficiency of the evidence

Defendant contends the jury‟s finding on the robbery-murder special-

circumstance allegation violates his right to due process under the Fifth and

Fourteenth Amendments to the United States Constitution because insufficient

evidence supported it. Specifically, he contends there was no support in the record

for the first two elements of a robbery, namely, that at the time of the shooting

Gitmed was in possession of any personal property and that defendant or Mercurio

took any property from him. Defendant further contends there was no substantial

56

evidence of defendant‟s conduct or mental state as an aider and abettor or of a

relationship between the murder and the robbery. As defendant acknowledges,

these contentions are identical to those discussed above, about the asserted

insufficiency of the evidence to support a theory of felony murder based on

robbery, and we reject them for the same reasons discussed there. In this part, we

discuss and reject defendant‟s contentions based on the statutory language of the

robbery-murder special-circumstance allegation.

Section 190.2, subdivision (d) provides that, for the purposes of those

special circumstances based on the enumerated felonies in paragraph (17) of

subdivision (a), which includes robbery, an aider and abettor must have been a

“major participant” and have acted “with reckless indifference to human life.”15

(§ 190.2, subd. (d); 1 Witkin & Epstein, Cal. Criminal Law, supra, Introduction to

Crimes, § 110, p. 167; 3 Witkin & Epstein, Cal. Criminal Law, supra, Punishment,

§ 460, pp. 613-614.) Repeating his earlier argument, defendant contends the split

verdict means the jury found he was not the actual killer, and it therefore must

have found the robbery-murder special-circumstance allegation true based on his

aider and abettor liability. Defendant contends the record contains insufficient

evidence to support his liability as an aider and abettor under section 190.2,

subdivision (d).


15

Section 190.2, subdivision (d) provides in full: “Notwithstanding

subdivision (c), every person, not the actual killer, who, with reckless indifference
to human life and as a major participant, aids, abets, counsels, commands, induces,
solicits, requests, or assists in the commission of a felony enumerated in paragraph
(17) of subdivision (a) which results in the death of some person or persons, and
who is found guilty of murder in the first degree therefor, shall be punished by
death or imprisonment in the state prison for life without the possibility of parole
if a special circumstance enumerated in paragraph (17) of subdivision (a) has been
found to be true under Section 190.4.”

57

For the reasons previously discussed, we reject defendant‟s contention that

the split verdict means the jury convicted him on an aider and abettor theory. But

even assuming the jury found the special circumstance allegation true on that

theory, we conclude there was substantial evidence to support the conclusion that

defendant was an aider and abettor who, at the least, was a major participant who

acted with reckless indifference to human life. As discussed, the evidence

supports the conclusion that, after defendant brought Gitmed to the compound,

defendant and Mercurio jointly maneuvered to bring Gitmed to an isolated spot at

Canyon Lake where both participated in the robbery and murder. The evidence of

defendant‟s actions both before and after the murder supports the conclusion

defendant intended to obtain Gitmed‟s possessions by killing him or having

Mercurio kill him.

Defendant points to the requirement of section 190.2, subdivision (a)(17)

that the murder must have been committed during the “commission” of the

underlying felony, which we have interpreted to mean that, when the underlying

felony is only “incidental to the murder, the murder cannot be said to have been

committed in the commission of the related offense.” (People v. Williams (1988)

44 Cal.3d 883, 927.) Defendant contends it is at least reasonably probable that

items were taken from Gitmed to prevent identification of his body, and therefore

the robbery was only incidental to the murder. But as discussed above, substantial

evidence supports the conclusion that Gitmed had been robbed and that defendant

had planned to rob him as part of a larger plan to obtain his possessions after

killing him. When the evidence supports the jury‟s findings, a reviewing court

may not reverse the judgment because the evidence might also support a contrary

finding. (People v. Ceja, supra, 4 Cal.4th at p. 1139.) Defendant‟s claim

therefore fails.

58

b. Prosecutorial misconduct

Defendant contends the prosecutor engaged in misconduct in closing

argument by making erroneous or misleading comments about the robbery-murder

special-circumstance allegation. Defense counsel did not object in any of the

instances that defendant challenges, and thus all appellate claims based on them

are forfeited.16 (People v. Alfaro, supra, 41 Cal.4th at p. 1328.) We also reject

defendant‟s contentions on the merits. When a claim of misconduct is based on

the prosecutor‟s comments before the jury, as are all of defendant‟s claims here,

“ „the question is whether there is a reasonable likelihood that the jury construed

or applied any of the complained-of remarks in an objectionable fashion.‟ ”

(People v. Smithey, supra, 20 Cal.4th at p. 960.) As discussed below, we conclude

there is no reasonable likelihood the jury so construed any of the prosecutor‟s

challenged comments.

First, defendant challenges the prosecutor‟s rather oblique statement that

“[t]he only difference between concluding that the defendant premeditated and

there was a deliberate murder of Ron Gitmed by the defendant is by the special

circumstance.” Defendant contends the prosecutor meant there were two kinds of

murder for the jury to consider, premeditated murder and felony murder, and the

difference between them was “the special circumstance.” What the prosecutor

meant is unclear, but we see no prejudice. The trial court properly instructed the


16

Anticipating we would find these claims forfeited, defendant, as before,

contends they are still cognizable on appeal under the rubric of ineffective
assistance of counsel based on counsel‟s failure to object. As we discern no
misconduct, defendant fails to establish his counsel‟s performance in failing to
object fell below that expected of a reasonably diligent advocate. We reiterate,
however, that a defendant cannot automatically transform a forfeited claim into a
cognizable one merely by asserting ineffective assistance of counsel. (See People
v. Riel
, supra, 22 Cal.4th at pp. 1202-1203.)

59

jury on the law of murder and the special circumstance allegation. There was thus

no reasonable likelihood the jury construed or applied the oblique statement in an

objectionable fashion. (People v. Smithey, supra, 20 Cal.4th at p. 960.)

Second, defendant challenges the prosecutor‟s statement that “[i]f you

conclude that what Tony Mercurio said was accurate, that the defendant robbed

Ron Gitmed and shot and killed him, the special circumstance is very

straightforward.” Defendant argues this statement was misleading because the

evidence might have established that the robbery was only incidental to the

murder, in which case the special circumstance would not apply. But the

prosecutor was arguing his interpretation of the evidence, which was that the

evidence showed either that defendant shot Gitmed during the commission of a

robbery or, alternatively, that defendant was a major participant who aided and

abetted the robbery with reckless indifference to human life. (See § 190.2, subds.

(a)(17)(A), (d).) The prosecutor correctly explained that either theory of liability

(direct perpetrator, or aider and abettor) allowed a true finding for the special

circumstance allegation, but he described the former as “straightforward” and the

latter as “trickier,” meaning that aider and abettor liability involved a more

complicated legal concept for the jury to grasp. We see nothing objectionable in

the prosecutor‟s statement.

Third, defendant challenges the prosecutor‟s statement that, if the jury

believed Mercurio was an accomplice, “[t]his is where felony murder comes back

into play. Because if Tony Mercurio‟s an accomplice and he‟s just as involved as

the defendant, under the felony-murder rule the defendant is still guilty of murder,

if you find that the defendant aided and abetted in the commission of the robbery.”

Defendant claims this misstates aider and abettor liability for the robbery-murder

special-circumstance allegation. But defendant‟s claim is inapposite because the

60

prosecutor was explaining aider and abettor liability for felony murder, not for the

special circumstance.

Fourth, defendant challenges the prosecutor‟s statement that “[n]o matter

how you approach Tony Mercurio or how you approach the evidence, the only

way that you can find that the defendant is not guilty of murder is that if you

conclude that he had absolutely nothing to do with it and his name was picked out

of the air by [the prosecution witnesses].” Defendant contends this comment, and

other similar comments the prosecutor made, amounted to the argument that a

robbery-murder special-circumstance allegation is a strict liability offense, that is,

if a defendant is present when a robbery and killing happens, the special

circumstance is true. But the prosecutor never argued that the jury should find the

special circumstance allegation to be true simply because defendant was present at

the scene of the robbery and murder. The prosecutor argued the evidence showed

that defendant was not only present at the robbery and murder, but was, at least, an

aider and abettor and, most likely, the actual shooter.

Finally, defendant repeats his contention regarding the murder conviction,

discussed above, that the prosecutor misleadingly referred to Gitmed‟s car and

duffel bag (both of which defendant apparently took after the robbery) as evidence

establishing the predicate offense of robbery for felony murder. Defendant

contends the prosecutor‟s comments were equally misleading for establishing the

elements of the robbery-murder special-circumstance allegation. We reject his

contention here for the same reason discussed above, namely, the prosecutor never

argued the car and the bag were items taken during the robbery.

4. Assertedly Erroneous Evidentiary Rulings

Defendant contends his right to due process under the Fifth and Fourteenth

Amendments to the United States Constitution was violated because the trial court

61

erred in (1) admitting the testimony of witnesses Danny Dalton and Barbara

Triplett concerning defendant‟s statements about a person floating in the lake, and

(2) denying trial counsel‟s motion to introduce, as impeachment evidence, a

statement Dalton had made to a defense investigator that, if he were forced to

testify at trial, he would pin the murder on Mercurio. We review a trial court‟s

rulings on the admission and exclusion of evidence under the abuse of discretion

standard. (People v. Guerra (2006) 37 Cal.4th 1067, 1113.) As we discuss below,

the trial court did not abuse its discretion.

a. Testimony about defendant’s statements

As recounted, Dalton ran the automobile “chop shop” at the compound. He

testified that sometime during the week following the murder, while defendant

was at the compound, he started to brag to Dalton about “leaving some dude

floating.” Dalton told defendant to shut up because he did not want to know

anything about it. When Dalton learned defendant had told Dalton‟s sister

Barbara Triplett and his niece Charlene about the floating man, Dalton became

angry and wanted defendant to leave the compound. Asked by the prosecutor to

explain what bad thing Dalton thought defendant was referring to, Dalton testified:

“Sounds like he took somebody out and blew them away and left them floating in

a lake, to tell you the truth. But that ain‟t what he told me. That‟s what I put

together on my own. That‟s when I told him I didn‟t want to hear nothing and I

didn‟t want him up at our house.” Defense counsel did not object.

Barbara Triplett testified that around the same time defendant said

something to her about a person floating in Canyon Lake who was not able to

make decisions for himself. Defendant‟s statement made Barbara feel very

uncomfortable and uneasy.

62

The day after Dalton‟s direct examination, and outside the jury‟s presence,

defense counsel moved to strike, as inadmissible and objectionable speculation,

Dalton‟s testimony as to what he had figured out about defendant‟s reference to

the floating man. Counsel made no motion to strike Barbara Triplett‟s testimony.

In the alternative, counsel agreed to the court‟s suggestion that the jury be

admonished about lay opinion testimony. The trial court then instructed the jury:

“I‟m going to give you a cautionary instruction with respect to the opinions

expressed by lay witnesses, and this is particularly, although it goes to all

witnesses, particularly with respect to the direct testimony of Danny Dalton that

you heard yesterday. [¶] You are to give no weight to the opinion of lay witnesses

nor to draw inferences from the expressions of those opinions unless you find that

the opinions are clearly based on facts to which the witness has testified.”

Defendant contends the trial court erred in denying his motion to strike

Dalton‟s testimony and that the court‟s admonition was inadequate and legally

erroneous. Defendant also contends the trial court should have stricken Barbara

Triplett‟s testimony, even though defense counsel did not object to it.

At the outset, defendant‟s claim as to Barbara Triplett‟s testimony is

forfeited for want of a timely objection below. Defendant contends that, under

People v. Hill, supra, 17 Cal.4th 800, he was excused from objecting to Triplett‟s

testimony because by the time she testified the court had denied defendant‟s

motion to strike Dalton‟s similar testimony, thereby signaling it would also deny

an objection to Triplett‟s testimony. Hill is inapplicable to the instant case. In

Hill, we explained that a party may raise a claim on appeal despite the lack of an

objection at trial where the circumstances show an objection would have been

futile. (Id. at pp. 820-822.) No such futility is shown on the facts of this case.

Defendant objected to Dalton‟s testimony and moved to strike it, but ultimately

agreed instead to a cautionary instruction, which the court gave. Given these facts,

63

defendant could not reasonably assume that, had he similarly objected to Triplett‟s

testimony, the trial court would not offer some similar remedy. Accordingly, we

cannot conclude an objection would have been futile, and if defendant had an

objection to Triplett‟s testimony he was required to make it below. Because he

did not, the claim is forfeited.

As to Dalton‟s testimony, we conclude the trial court did not abuse its

discretion in denying the motion to strike. The trial court‟s admonishment to the

jury (to which defense counsel agreed as an alternative) adequately addressed

defendant‟s concerns about Dalton‟s speculative comments. Defendant contends

the instruction was erroneous because it did not use the language of the Law

Revision Commission‟s comment to Evidence Code section 800: “A witness who

is not testifying as an expert may testify in the form of an opinion only if the

opinion is based on his own perception.” (Cal. Law Revision Com. com.,

reprinted at 29B pt. 3A West‟s Ann. Evid. Code (2009 ed.) foll. § 800, p. 3.) But

the trial court‟s reference to “facts to which the witness has testified” expressed

the same legal concept. In the context of Dalton‟s testimony, the “facts” about

defendant‟s statements to which Dalton testified were the words Dalton had

personally heard.

b. Exclusion of Dalton’s statement about pinning the murder on

Mercurio

During Dalton‟s cross-examination by the defense, the prosecutor requested

a recess when defense counsel began asking Dalton about a statement Dalton had

made to defense investigator Thomas Crompton to the effect that Mercurio had

admitted killing Gitmed. The prosecutor requested a foundational hearing outside

the presence of the jury under Evidence Code section 402 to determine whether

Dalton was going to admit or deny making that statement. At the Evidence Code

section 402 hearing, defense counsel asked Dalton whether he had told Crompton

64

that Mercurio committed the murder. Dalton denied saying it and explained,

rather, that he had threatened to “pin it all on Tony [Mercurio] if he were forced to

come testify.” Dalton explained he did not want to come to court, then or now,

and he was present only because he had been subpoenaed. On cross-examination,

Dalton specifically denied Mercurio had ever told him he was the one who

committed the murder.

The prosecutor moved to exclude Dalton‟s statement to Crompton under

Evidence Code section 352. After hearing argument from defense counsel that the

statement should be admitted to show Dalton was willing to lie, the trial court

granted the prosecutor‟s motion, holding the statement was “substantially more

prejudicial than probative,” and that Dalton “appear[ed] to be a reluctant witness

making statements that he was going to pin this offense on somebody else without

any foundation in fact for those assertions because he was angry about possibly

having to come to court.” Later, defense counsel asked the court to include

Crompton‟s report in the record and asked for permission to call Crompton to

testify about what defense counsel argued was Dalton‟s prior inconsistent

statement contained in the report. The court read the report and ruled that

Dalton‟s statement as reported was the same as his testimony about his statement

to Crompton at the Evidence Code section 402 hearing; Dalton simply did not

want to come to court, and he had no factual basis for pinning the crime on

Mercurio. Consequently, the court denied defendant‟s motion to call Crompton or

include his report in the record.

The trial court did not abuse its discretion under Evidence Code section 352

in excluding Dalton‟s remarks to Crompton. As the trial court ruled, Dalton‟s

statements were the angry expressions of a reluctant witness who, to avoid being

called to testify, threatened to falsely blame Mercurio for Gitmed‟s murder. It was

within the trial court‟s discretion to find Dalton‟s statements more prejudicial than

65

probative. Defendant contests the court‟s understanding of Dalton‟s remarks,

arguing it makes no sense that Dalton would threaten to “pin it all” on Mercurio if

Dalton was “mad” at Crompton, because Crompton was a defense investigator.

Defendant argues that if Dalton wanted to be uncooperative with Crompton, he

would have threatened to pin the murder on defendant, not Mercurio. Defendant

therefore contends the trial court erred in denying the defense motion to introduce

Crompton‟s report as a prior inconsistent statement.

We disagree for two reasons. First, the trial court‟s task was to determine

the legal relevance of what Dalton had said; it was not required to find logical

consistency in Dalton‟s angry threats. Second, Crompton‟s report indicates Dalton

was angry at the possibility that the district attorney‟s office would subpoena him.

Given that context, Dalton‟s anger and (false) threat make sense as being directed

toward the district attorney. As respondent points out, whether Dalton understood

that Crompton was a defense investigator is unclear. But even assuming Dalton

understood Crompton worked for defendant, a reasonable reading of the report is

that Dalton was angry at being subpoenaed by the district attorney. Crompton was

simply the bearer of bad news. The trial court therefore did not abuse its

discretion in excluding Dalton‟s remarks as substantially more prejudicial than

probative, and we need not address whether the report should have been admitted

as a prior inconsistent statement.

5. Cumulative Errors in the Guilt Phase

Defendant contends the cumulative effect of the asserted guilt phase errors

requires reversal of his conviction and death sentence even if none of the errors is

prejudicial individually. We conclude that any errors or assumed errors were

nonprejudicial, whether reviewed separately or cumulatively.

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II. BIFURCATED SPECIAL CIRCUMSTANCE TRIAL

A. Discharge of Appointed Counsel and Defendant’s Self-

representation

As recounted, at the guilt phase the jury found defendant guilty of first

degree murder and found true the robbery-murder special-circumstance allegation,

but found untrue the allegation he personally used a firearm in the commission of

the murder. Defendant then orally moved under People v. Marsden (1970) 2

Cal.3d 118 and Faretta v. California (1975) 422 U.S. 806 to dismiss his appointed

attorneys and to represent himself in the trial of the bifurcated prior-murder special

circumstance and the penalty phase of trial. The court held a lengthy

Marsden/Faretta hearing and subsequently stated on the record that defendant had

clearly expressed his wishes to receive the death penalty, to call no witnesses, and

to not confront or cross-examine any witnesses the prosecution called. The court

granted defendant‟s request to represent himself, but placed his appointed

attorneys on standby status. The case proceeded to a trial of the prior-murder

special circumstance and then to the penalty phase. Defendant did not cross-

examine prosecution witnesses or otherwise actively present a defense in the prior-

murder special-circumstance trial or at the penalty phase, nor did he present any

mitigating evidence or argument at the penalty phase.

B. Trial on the Prior-Murder Special Circumstance

The prosecution presented the testimony of a former investigating detective

with the El Paso County, Texas, sheriff‟s department to establish that, on March

11, 1977, defendant had pleaded guilty to, and was convicted of, the murder of

Floyce Fox in El Paso County. A fingerprint expert testified that the fingerprints

from the Texas Department of Criminal Justice matched defendant‟s fingerprints

taken while he was in custody in California. Based on this evidence, the jury

found true the allegation that defendant had previously been convicted of murder.

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III. PENALTY PHASE

A. Facts

The prosecution presented as evidence in aggravation the factual

circumstances of defendant‟s prior murder in Texas in 1976, defendant‟s 1987

conviction for being a felon in possession of a gun, and victim impact evidence.

Defendant, representing himself, presented no evidence or argument in

mitigation.

1. Circumstances of the Texas Murder

In September 1976, while hitchhiking, defendant was picked up by a man

named Floyce Fox. Fox was driving a pickup truck and was in the process of

moving from San Diego to Texas. Defendant and Fox drove through Arizona and

New Mexico to El Paso, Texas. In El Paso, Fox was intoxicated, and defendant

was driving the truck. Fox was arguing with defendant about his wallet being

missing, and he told defendant to pull over on a gravel road. Defendant opened

the passenger side door, and Fox got out, or fell out, on top of defendant. Fox

threatened to kill defendant, and a fight ensued in which defendant fatally stabbed

Fox with a knife defendant was carrying. Defendant went through Fox‟s pockets,

found some money, and headed east in the truck, using Fox‟s credit cards along

the way. Fox‟s body was found on September 22, 1976, lying by the roadside,

with his right rear and left front pants pockets pulled inside out and the front pants

pocket ripped. Defendant visited relatives in Texas, Missouri, and California, and

then returned to Missouri, where he was arrested on October 12, 1976, and

confessed.

2. Character of the Victim

Gitmed‟s mother, Naomi Dekens, testified regarding the impact of her

son‟s death. She described her son as childlike and loving, but also disruptive

68

because of his anxiety disorder. He was diagnosed as emotionally retarded and

was placed in a handicapped education program after repeating kindergarten

twice. At age 12, he spent a year in the mental ward of the University of

California, Irvine, hospital. At age 19, he finally earned his high school diploma,

an achievement celebrated by his whole family. Dekens had always hoped he

could eventually overcome his emotional problems and grow into the man she

knew he could be. He was unusually fearful of inanimate objects, but unusually

trusting of people. He was very naive and gullible and subject to manipulation by

people, such as his first and only girlfriend, who had taken financial advantage of

him. Dekens often thought about the way her son had died and wished she could

have protected him, particularly because during his life she had spent so much

time trying to protect him.

Gitmed‟s younger brother, Bruce, who owned a produce business, testified

that Gitmed sometimes worked at the business. Because of his disabilities, it was

hard for Gitmed to find work, but Bruce testified his business had grown large

enough that there would have been a place for him.

3. Prior Felony Conviction

The court took judicial notice of the court file containing documents that

showed defendant was convicted on March 26, 1987, in Riverside County of being

a felon in possession of a gun. (See § 12021.1.)

B. Issues

1. Miscellaneous Challenges to the Penalty Phase Statute

Defendant raises various challenges to the constitutionality of the death

penalty statute. We reaffirm the decisions that have rejected similar claims, and

we decline to reconsider such authorities, as follows:

69

The penalty phase statute is not unconstitutional because it fails to establish

or allocate the burden of proof for finding the existence of an aggravating factor,

or because it does not require the jury to make additional written findings

regarding the aggravating factors. (People v. Geier (2007) 41 Cal.4th 555, 618;

People v. Stitely (2005) 35 Cal.4th 514, 573.) The United States Supreme Court‟s

recent decisions interpreting the Sixth Amendment‟s jury trial guarantee

(Cunningham v. California (2007) 549 U.S. 270; United States v. Booker (2005)
543 U.S. 220; Blakely v. Washington (2004) 542 U.S. 296; Ring v. Arizona (2002)
536 U.S. 584; Apprendi v. New Jersey (2000) 530 U.S. 466) have not altered our

conclusions in this regard. (People v. Salcido (2008) 44 Cal.4th 93, 167; People v.

Hoyos, supra, 41 Cal.4th at p. 926.)

The penalty phase instructions were not defective in failing to require juror

unanimity on the aggravating factors. (People v. Abilez, supra, 41 Cal.4th at

p. 533.)

The trial court is not constitutionally required to instruct the jury that

certain sentencing factors are relevant only to mitigation. (People v. Panah (2005)

35 Cal.4th 395, 499-500; People v. Kraft (2000) 23 Cal.4th 978, 1078-1079.)

2. Discharge of a Juror at the Penalty Phase

During penalty phase deliberations, Juror L.R. asked to be excused from

further service. The trial court ultimately granted her request on the ground that

she was incapable of continuing to deliberate because of great mental distress.

Defendant asserts the excusal of L.R. violated his right to due process under the

Fifth and Fourteenth Amendments to the United States Constitution because the

trial court discharged her without cause, failed to adequately investigate

misconduct by the other jurors, and failed to give adequate supplemental

70

instructions to the jury before and after the discharge. We discern no error in the

trial court‟s handling of this matter.

a. Investigation and discharge

(1) Background

During penalty phase deliberations, the trial court received a note stating

that Jurors L.R. and D.P. needed to speak with the court. The court permitted each

juror to address the court individually, with only defendant and the attorneys

present.17 L.R. told the court the following: She had felt “pressured” at the end of

the guilt phase and had gone along with a decision she “was not 100 percent sure

of.” The jury had agreed to go along with the “not true” finding on the personal

gun use allegation because she refused to find it true. Now that she was

deliberating the penalty, she was feeling “a lot of pressure.” There was still a lot

of doubt in her mind, which she tried pointing out to the other jurors. After

questions by the trial court, L.R. stated she had a reasonable doubt about her

verdict in the guilt phase and wished to retract it. The court had L.R. leave the

room while it discussed with counsel how to proceed. The court determined that,

under Evidence Code section 1150, the guilt verdict could not now be undone

based on L.R.‟s testimony about the jurors‟ mental processes, but it left open the

possibility the defense could raise the issue in a motion for a new trial. The court

had L.R. return and questioned her to determine whether she could continue as a

juror in the penalty phase. She stated she could not.


17

Having asserted his Faretta rights after the guilt phase verdict, defendant at

this point was representing himself. (Faretta v. California, supra, 422 U.S. 806.)
At his request, the trial court reappointed his trial counsel to assist him from this
point onwards.

71

The court then brought in and questioned Juror D.P. privately. D.P. stated

that she had been “rushed” at the guilt phase. The stress of the current

deliberations in the penalty phase had made her sick the whole weekend, and she

had migraines and was losing her hair. She could not make a decision in the

penalty phase because she did not feel comfortable with what she had done in the

guilt phase.

After Juror D.P. left, the court again asked the parties how to proceed.

Defense counsel argued that L.R. and D.P. were expressing their lingering doubt

about defendant‟s guilt, which, counsel contended, was an appropriate

consideration in the penalty phase and should not be grounds for removal.

Counsel requested that the court ask L.R. and D.P. whether the reason they felt

they could not continue to deliberate was because the other jurors were telling

them they should vote for the death penalty even though they had a lingering

doubt about defendant‟s guilt. The trial court denied counsel‟s request to pursue

this line of questioning, stating: “I‟m treading a very thin line here, because I do

not want to go behind the verdict into the mental processes by which that verdict

was reached, or into the interaction between the different jurors, because that‟s

impeaching the verdict improperly.” The trial court said it would question the two

jurors further solely on the issue of whether they were capable of continuing to

deliberate.

The trial court brought L.R. back into court and asked her whether she felt

“capable at this point in time of continuing to deliberate with [her] fellow jurors.”

She responded in the negative. Upon further questioning, she stated: “If I have to,

I will get a doctor‟s excuse. I have not been able to sleep from the first time we

were in the deliberating room. . . . And frankly, right now I‟m ready to run out

that door. I do not want to be here any longer. I don‟t want to talk to any other

jurors.” The trial court told her it would excuse her. After L.R. left, the trial court

72

announced its factual findings, stating that L.R. “was clearly and obviously in very

great distress. She could hardly maintain her seat. All she wanted to do was get

out of here. . . . It would have been a cruel imposition to leave her in this situation

on the jury. . . . [J]udged on her demeanor and her physical behavior in the

courtroom, she was both physically and mentally incapable of continuing with

deliberations as a trial juror, regardless of the reasons behind that.”

The court then brought D.P. back into court and asked her whether she was

capable of reaching a decision in the penalty phase as to the appropriate penalty.

D.P. indicated she was not incapable of deliberating, but the decision she had

reached was not that of the other jurors. The trial court advised D.P. it was

perfectly acceptable for her to have formed conclusions and opinions, but it was

also her duty to discuss them with the other jurors. After D.P. stated she was

comfortable with that and comfortable with staying on the jury, the trial court

returned her to the jury.

(2) Analysis

“If at any time, whether before or after the final submission of the case to

the jury, a juror dies or becomes ill, or upon other good cause shown to the court is

found to be unable to perform his or her duty, or if a juror requests a discharge and

good cause appears therefor, the court may order the juror to be discharged . . . .”

(§ 1089.) Removal of a juror under section 1089 is committed to the discretion of

the trial court, and we review such decisions by asking whether the grounds for

such removal appear in the record as a demonstrable reality. (People v. Wilson,

supra, 44 Cal.4th at p. 824.)

Defendant first contends the trial court abused its discretion because it did

not adequately investigate misconduct by the other jurors before it discharged L.R.

Defendant contends the trial court should have questioned the other jurors to

73

determine whether they were causing the stress to L.R. and D.P. by impermissibly

pressuring them to give up their lingering doubt about defendant‟s guilt. As we

have cautioned, however, “a trial court‟s inquiry into possible grounds for

discharge of a deliberating juror should be as limited in scope as possible, to avoid

intruding unnecessarily upon the sanctity of the jury‟s deliberations. The inquiry

should focus upon the conduct of the jurors, rather than upon the content of the

deliberations.” (People v. Cleveland (2001) 25 Cal.4th 466, 485.) Here, the

source of the tension reported by L.R. and D.P. was the deliberations themselves,

and the trial court therefore acted within its discretion in not examining the other

jurors, because to do so would have threatened to intrude on the deliberation

process. Defendant contends the other jurors may have been making insulting

remarks in an effort to drive L.R. and D.P. off the jury or “were threatening them

in some credible way.” But that is speculation because the trial court‟s

questioning of L.R. and D.P. revealed no suggestion of such actions by the other

jurors. Because there was no indication of misconduct by the other jurors, the trial

court acted within its discretion in limiting its inquiry to questioning L.R. and

D.P., which, as detailed above, the court performed quite thoroughly.

Second, defendant contends the trial court dismissed L.R. without cause.

He does not dispute the trial court‟s findings as to L.R.‟s extremely agitated

emotional state when she asked to be excused. Defendant‟s contention depends on

his previous claim, rejected above, that the trial court did not adequately

investigate whether the other jurors might have been pressuring L.R. to renounce

her objections to imposing the death penalty. Defendant points to the rule

promulgated in several lower federal cases that precludes the dismissal of a juror

for being unwilling to deliberate whenever there is a reasonable possibility that the

impetus for the dismissal stems from the juror‟s views on the merits of the case.

(People v. Cleveland, supra, 25 Cal.4th at pp. 483-484, citing U.S. v. Symington

74

(9th Cir. 1999) 195 F.3d 1080, U.S. v. Thomas (2d Cir. 1997) 116 F.3d 606, and

U.S. v. Brown (D.C. Cir. 1987) 823 F.2d 591.) As defendant acknowledges,

however, we have expressly rejected this rule. (Cleveland, at pp. 483-484.)

Furthermore, the issue posed in the instant case was not whether L.R. was

unwilling to deliberate, but rather, based on her extremely distressed state, whether

she was unable to deliberate. We have recognized that both trial-related and non-

trial-related stress can provide good cause for discharging a juror. (See People v.

Collins (1976) 17 Cal.3d 687, 690-691, 696 [inability to cope with the experience

of being a juror]; People v. Fudge (1994) 7 Cal.4th 1075, 1099-1100 [anxiety

about new job].) We therefore conclude the trial court had good cause to dismiss

L.R.

b. Supplemental Instructions

After L.R. was excused, the trial court informed the remaining jurors that

one person had been excused and admonished them not to speculate as to the

reasons. The trial court instructed with CALJIC No. 17.51.1, which directs the

jury to begin deliberations anew with regard to penalty with the newly appointed

alternate juror. Defendant contends the trial court also should have given a

lingering doubt instruction because it had learned (from the examination of Jurors

L.R. and D.P.) that the legitimacy of lingering doubt was an issue in the

deliberations. Furthermore, defendant contends a lingering doubt instruction was

necessary because the dismissal of L.R. might have sent the message that a

consideration of lingering doubt was illegitimate.

As defendant acknowledges, the trial court had no sua sponte duty to

instruct on lingering doubt. (People v. Johnson (1992) 3 Cal.4th 1183, 1252.)

Defendant‟s claim is forfeited because neither defendant (when he was

representing himself at the penalty phase) nor his counsel (when they were

75

reappointed) asked the trial court to instruct on lingering doubt. Furthermore,

defendant merely speculates that, because of L.R.‟s dismissal, the jury would have

rejected any consideration of lingering doubt absent specific instruction by the

court. We note the jury was instructed not to speculate about L.R.‟s dismissal, and

we presume a jury follows its instructions. (People v. Yeoman (2003) 31 Cal.4th

93, 138-139; Francis v. Franklin (1985) 471 U.S. 307, 324, fn. 9.) Moreover,

D.P., who had also expressed lingering doubt, was not excused, but was returned

to the jury to deliberate. This circumstance militated against any inference that

L.R. was dismissed for expressing lingering doubt. Finally, although the jury was

not specifically instructed on lingering doubt, the concept of lingering doubt was

sufficiently encompassed in section 190.3, factors (a) and (k), with which the jury

was instructed. (People v. Hines (1997) 15 Cal.4th 997, 1068.)

3. Denial of Motion for a New Trial

Defendant contends the trial court erred in denying his motion for a new

trial based on juror misconduct and insufficient evidence, brought under section

1181 and the due process clauses of the state and federal Constitutions.18 As we

conclude below, the trial court did not abuse its discretion in denying this motion.

a. Background

Defendant moved for a new trial based on juror misconduct in the form of

failure to deliberate, harassment, and undue pressure on Jurors L.R. and D.P., and

certain jurors‟ improper appeals to sympathy. In support, defendant submitted


18

In this part, we discuss only defendant‟s juror misconduct claims. His

sufficiency of the evidence claim was only touched upon at the new trial hearing
and was actually argued and taken up in the hearing on the automatic application
to modify the death verdict (§ 190.4. subd. (e)), which was held later in the same
court session and is discussed in the next part.

76

declarations from Jurors L.R. and D.P. Regarding the allegation of failure to

deliberate, both L.R. and D.P. declared that several jurors, including the foreman,

had determined defendant to be guilty before deliberations began and refused to

deliberate or consider the evidence. Based on L.R.‟s declaration and the trial

record, however, the trial court concluded that L.R. had persuaded the other jurors

to review the evidence and to engage in the deliberative process, which continued

for several days. The court found, furthermore, that the declarations‟ specific

allegations belied the claim of failure to deliberate. L.R., for example, declared

that she was constantly asked to justify her position by other jurors and was asked

to view a photograph of the victim.

Regarding the allegations of harassment and undue pressure, L.R. declared

that in response to her expression of doubt as to defendant‟s guilt, other jurors

continually asked her: “How can you do this?” “How can you vote not guilty and

still face the victim‟s mother in the courtroom?” “Knowing he‟s a killer, how can

you vote not guilty and let him go free?” The foreman also shoved the victim‟s

photograph in her face and asked: “What makes you think [the victim] is not

dead?” L.R. also declared she was subject to personal attacks such as “How can

you not see it?” and “ How can you be so dumb?” D.P. declared the foreman

stated: “His guilt is as plain as day.” “We need to leave.” “We‟re not going to

keep coming back to go over the same things again.”

The trial court found the statements L.R. reported, while possibly made in a

heated or impolite fashion, were legitimate questions asked of a juror in “the

hurly-burly of debate over the facts of the case that often happens in jury rooms,”

and that they were “statements inviting and asking [L.R.] to justify her position

with facts drawn from the evidence.” The court therefore found no misconduct.

For the statements reported by D.P., the trial court similarly found they did not rise

77

to the level of misconduct because they did not reflect what an average, reasonable

juror would experience as undue pressure.

In support of his allegation of unlawful appeal to sympathy, defendant cited

the question, asked of L.R. during guilt phase deliberations, how she could vote

not guilty and still face the victim‟s mother in the courtroom. Although the trial

court expressed some concern this question constituted a possible violation of the

jury instruction not to consider sympathy, the court concluded it was essentially

either an expression of frustration or an invitation to debate the facts of the case

further in an attempt to persuade a dissenting juror. In that light, the trial court

found the question was not misconduct.

Finally, defendant renewed his contention that the trial court had excused

Juror L.R. without good cause. The trial court reiterated it had dismissed L.R.

because she was unable to perform her functions as a juror and deliberate, even

though her stress may have resulted from the comments or conduct of other jurors

toward her during deliberations.

Having rejected defendant‟s juror misconduct claims, the trial court denied

his motion for a new trial.

b. Analysis

“We review a trial court‟s ruling on a motion for a new trial under a

deferential abuse-of-discretion standard.” (People v. Navarette (2003) 30 Cal.4th

458, 526; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 128.) “ „A trial

court‟s ruling on a motion for new trial is so completely within that court‟s

discretion that a reviewing court will not disturb the ruling absent a manifest and

unmistakable abuse of that discretion.‟ ” (People v. Lewis (2001) 26 Cal.4th 334,

364; People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261.)

78

No abuse of discretion occurred in this case. As recounted above, the trial

court found that the declarations of L.R. and D.P. themselves refuted the claim

that the other jurors had failed to deliberate; instead, the alleged harassing

comments of the other jurors constituted evidence they did in fact engage in

deliberation. Defendant contends this finding was an abuse of discretion because

“the only reasonable reading” of the two declarations is that two separate and

nonoverlapping sets of misbehaving jurors existed, those who did not deliberate

and those who harassed, and that the harassing jurors‟ statements cannot be used

to refute the claim that some other jurors did not deliberate. We reject defendant‟s

strained reading of the declarations. Both L.R.‟s and D.P.‟s declarations speak of

the jurors‟ refusal “to engage in any meaningful discussion or deliberation.”

(Italics added.) Both declarations go on to detail the behavior that L.R. and D.P.

believe indicated a lack of meaningful discussion or deliberation, which included

the various comments the trial court found to be, in fact, evidence of deliberation.

The declarations do not present examples of objective failure to deliberate, such as

jurors who turned their backs or otherwise objectively segregated themselves from

the deliberations. We therefore conclude the trial court‟s reading of the

declarations was reasonable and that it did not abuse its discretion in finding no

failure to deliberate.

Nor did the trial court abuse its discretion in finding no harassment or

undue pressure on L.R. and D.P. Although some of the comments reported in the

declarations were heated, nothing in them rises to the level of misconduct. As we

have observed, “jurors can be expected to disagree, even vehemently, and to

attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated

means.” (People v. Johnson, supra, 3 Cal.4th at p. 1255.)

79

4. Denial of Automatic Application to Modify the Sentence

Defendant contends the trial court erred in denying his automatic

application to modify the death verdict under section 190.4 and that the error

violated his right to due process under the Fifth and Fourteenth Amendments to

the United States Constitution. In ruling on the motion, “the judge shall review

the evidence, consider, take into account, and be guided by the aggravating and

mitigating circumstances referred to in Section 190.3, and shall make a

determination as to whether the jury‟s findings and verdicts that the aggravating

circumstances outweigh the mitigating circumstances are contrary to law or the

evidence presented.” (§ 190.4, subd. (e).) The judge must state on the record the

reason for his or her findings. (Ibid.) “On appeal, we independently review the

trial court‟s ruling after reviewing the record, but we do not determine the penalty

de novo.” (People v. Steele (2002) 27 Cal.4th 1230, 1267.)

The trial court satisfied these statutory requirements. It reviewed, on the

record and in detail, the aggravating and mitigating factors listed in section 190.3

and stated its independent judgment that the weight of the evidence supported the

jury‟s verdict of death. Although defendant, acting as his own attorney during the

penalty phase, presented no mitigating evidence, the court considered in mitigation

that he had behaved in an exemplary fashion throughout the trial and that he may

have taken methamphetamine on the night of the crime, although there was no

evidence this impaired his judgment in any way.

In contending the trial court‟s findings were not supported by substantial

evidence, defendant repeats his arguments, discussed and rejected above, that

insufficient evidence in the record supported his guilt either as the shooter or as an

aider and abettor. In addition to reiterating these contentions, defendant contests

the following inferences and findings by the trial court, all of which we uphold as

supported by substantial evidence:

80

The trial court described defendant as a “major beneficiary” of the murder

because he acquired the victim‟s car and some of his property. Defendant disputes

he could be described as a major beneficiary because, he argues, he ended up

burning the car, and Mercurio and his girlfriend ended up with most of the

furniture from Gitmed‟s storage locker. But neither the fact defendant eventually

burned the car in order to conceal the crime nor that he decided to give Mercurio

some of the property he took from the storage locker reduces his status as a major

beneficiary to the crime.

Defendant disputes the trial court‟s finding that the police found many of

Gitmed‟s belongings in the possession of defendant‟s relatives. As discussed

above, however, police found Gitmed‟s jacket and duffel bag in the trunk of

defendant‟s mother‟s car.

Defendant challenges the trial court‟s finding he showed no remorse. The

court based its finding on defendant‟s burning the car to conceal the crime and his

comments about the man floating in Canyon Lake. The trial court‟s comments

about lack of remorse, furthermore, were permissible as indicating the absence of

evidence of the mitigating factor of remorse, which, as defendant acknowledges, is

a proper consideration in reweighing the balance of aggravating and mitigating

factors. (People v. Crittenden (1994) 9 Cal.4th 83, 149-151.) Defendant‟s

boasting to Danny Dalton about leaving someone floating in the lake certainly

supports the trial court‟s finding that defendant lacked remorse.

Finally, defendant challenges the trial court‟s comments about his murder

of Floyce Fox as an aggravating factor of past criminal activity. The trial court

noted similarities between the murders of Fox and Gitmed. The trial court stated

defendant killed Fox, an inebriated man in a remote area, for the purposes of

acquiring his worldly possessions and his vehicle. Defendant contends there was

no evidence for the conclusion that theft was a motive for Fox‟s murder. But, as

81

previously detailed, evidence supports the inference that theft was a motive: Fox‟s

body was found with his pockets turned inside out and, after the murder, defendant

drove off with Fox‟s car and used his credit cards.

5. Death Sentence Grossly Disproportionate to Defendant’s Individual

Culpability

Defendant contends the imposition of the death penalty on him, given the

circumstances of this case, is grossly disproportionate to his individual culpability

and violates the Eighth Amendment to the United States Constitution. In

addressing this contention, which is essentially a request for intracase

proportionality review, we examine the circumstances of the offense and the

personal characteristics of the defendant, including prior criminality. (See People

v. Steele, supra, 27 Cal.4th at pp. 1268-1269.)

As to the circumstances of the offense, we have previously rejected

defendant‟s claims that the split verdict means the jury found he was not the

shooter and that insufficient evidence supports his conviction as an aider and

abettor. As discussed, the evidence supports the conclusion that defendant, even if

not the shooter, was a major participant in the crime. He intentionally maneuvered

Gitmed, a particularly vulnerable individual, to an isolated spot for the purpose of

robbing and killing him, which was effectuated by defendant acting alone or

together with Mercurio. As to defendant‟s personal characteristics, he had

committed a previous murder in Texas. A prior murder is among the most

compelling of aggravating circumstances. (People v. Steele, supra, 27 Cal.4th at

p. 1269.) We therefore conclude defendant‟s death sentence is disproportionate

neither to his offense nor his personal culpability.

82

6. Miscellaneous Challenges to the Death Penalty

Defendant raises various challenges to California‟s death penalty law. We

affirm the decisions that have rejected similar claims and decline to reconsider

such authorities as follows:

The jury need not make written findings disclosing the reasons for its

penalty determination. (People v. Young, supra, 34 Cal.4th at p. 1233; People v.

Prieto (2003) 30 Cal.4th 226, 276.)

The absence of intercase proportionality review does not violate the Eighth

and Fourteenth Amendments to the United States Constitution. (People v. Cook

(2007) 40 Cal.4th 1334, 1368; People v. Moon (2005) 37 Cal.4th 1, 48; see also

Pulley v. Harris (1984) 465 U.S. 37, 50-51 [intercase proportionality review is not

required by the federal Constitution].)

The use of certain adjectives such as “extreme” and “substantial” in the list

of mitigating factors in section 190.3 does not render the statute unconstitutional.

(People v. Prieto, supra, 30 Cal.4th at p. 276.)

Capital punishment per se does not violate the Eighth Amendment‟s

proscription against cruel and unusual punishment. (People v. Hoyos, supra, 41

Cal.4th at p. 927.)

83



IV. DISPOSITION

The guilt and penalty judgments are affirmed.









WERDEGAR, J.

WE CONCUR:

GEORGE, C. J.
KENNARD, J.
BAXTER, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.


84



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

Name of Opinion People v. Thompson
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S056891
Date Filed: May 24, 2010
__________________________________________________________________________________

Court:
Superior
County: Riverside
Judge: Vilia G. Sherman

__________________________________________________________________________________

Attorneys for Appellant:

Irene Kiebert, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, Holly D. Wilkens and Melissa Mandel, Deputy
Attorneys General, for Plaintiff and Respondent.










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

Irene Kiebert
3020 El Cerrito Plaza, #412
El Cerrito, CA 94530
(510) 215-0102

Melissa Mandel
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2211


Automatic appeal from a judgment of death.

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 05/24/201049 Cal. 4th 79, 231 P.3d 289, 109 Cal. Rptr. 3d 549S056891Automatic Appealsubmitted/opinion due

Parties
1The People (Respondent)
Represented by Attorney General - San Diego Office
Melissa A. Mandel, Deputy Attorney General
P.O. Box 85266
San Diego, CA

2Thompson, James Alvin (Appellant)
San Quentin State Prison
Represented by Irene Kiebert
Law Office of Irene Kiebert
3020 El Cerrito Plaza, Suite 412
El Cerrito, CA


Opinion Authors
OpinionJustice Kathryn M. Werdegar
ConcurChief Justice Ronald M. George, Justice Carlos R. Moreno, Justice Carol A. Corrigan, Justice Joyce L. Kennard, Justice Marvin R. Baxter, Justice Ming W. Chin

Dockets
Oct 21 1996Judgment of death
 
Oct 24 1996Filed certified copy of Judgment of Death Rendered
  10/21/96
Oct 28 1996Application for Extension of Time filed
  By County Clerk to Complete C.T.
Oct 30 1996Extension of Time application Granted
  To County Clerk To 1-13-97 To Complete C.T.
Nov 8 1996Application for Extension of Time filed
  By Court Reporters to Complete R.T.
Nov 13 1996Extension of Time application Granted
  To Court Reporters To 1-10-97 To Complete R.T.
Dec 12 2000Order appointing State Public Defender filed
  appointed for direct appeal
Jan 2 2001Received:
  Amended notification of mailing record on appeal (record mailed to applt counsel on 12/18/2000)
Feb 14 2001Counsel's status report received (confidential)
  from State P.D.
Feb 15 2001Counsel's status report received (confidential)
  from HCRC.
Apr 4 2001Application for Extension of Time filed
  By applt to request corr. of the record. (1st request)
Apr 10 2001Extension of Time application Granted
  To 5/22/2001 to applt. to request corr. of the record.
Apr 16 2001Counsel's status report received (confidential)
  from State P.D.
May 18 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (2nd request)
May 21 2001Filed:
  Suppl. declaration of service of application for extension of time to request corr. of the record.
May 23 2001Extension of Time application Granted
  To 7/23/2001 to applt. to request corr. of the record.
Jun 21 2001Counsel's status report received (confidential)
  from State P.D.
Jul 16 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (3rd request)
Jul 17 2001Extension of Time application Granted
  To 9/21/2001 to applt. to request corr. of the record.
Aug 24 2001Counsel's status report received (confidential)
  from State P.D.
Sep 14 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (4th request)
Sep 18 2001Filed:
  Suppl. declaration of service of application for extension of time to request corr. of the record.
Sep 20 2001Extension of Time application Granted
  To 11/20/2001 to applt. to request corr. of the record.
Oct 24 2001Counsel's status report received (confidential)
  from State P.D.
Nov 16 2001Request for extension of time filed
  by applt. to request corr. of the record. (5th request)
Nov 26 2001Extension of time granted
  To 1/22/2002 to applt. to request corr. of the record.
Dec 28 2001Counsel's status report received (confidential)
  from State P.D.
Jan 16 2002Request for extension of time filed
  By applt. to request correction of the record. (6th request)
Jan 24 2002Extension of time granted
  To 3/25/2002 to applt. to request correction of the record. Dep. State PD Keibert anticipates filing the request by 3/25/2002. After that date, no further extension is contemplated.
Jan 25 2002Filed:
  Notification of personal sericve of applt. w/application for extension of time.
Mar 1 2002Counsel's status report received (confidential)
  from State P.D.
Mar 18 2002Request for extension of time filed
  By applt. to request correction of the record. (7th request)
Mar 21 2002Extension of time granted
  To 4/24/2002 to applt. to request correction of the record. Dep. State Public Defender Clark anticipates filing the request in the superior court by 4/24/2002. After that date, no further extension is contemplated.
Apr 25 2002Counsel's status report received (confidential)
  from State P.D.
Apr 25 2002Received:
  copy of applt's motion to correct and complete the record on appeal and application for permission to prepare a settled statement of portions of the record on appeal. (35 pp.)
May 13 2002Filed:
  Notification of personal service of applt. w/motion to correct and complete record on appeal.
Jun 14 2002Counsel's status report received (confidential)
  from State P.D.
Aug 14 2002Counsel's status report received (confidential)
  from State P.D.
Oct 18 2002Counsel's status report received (confidential)
  from State P.D.
Oct 25 2002Motion to withdraw as counsel filed
  by the State Public Defender.
Oct 28 2002Motion for appointment of counsel filed
  by attorney Irene Kiebert.
Nov 13 2002Counsel appointment order filed
  Good cause appearing, the application of appointed counsel for permission to withdraw as attorney of record for appellant James Alvin Thompson, filed October 25, 2002, is granted. The order appointing the State Public Defender as counsel of record for appellant James Alvin Thompson, filed December 12, 2000, is hereby vacated. Irene Kiebert is hereby appointed as attorney of record to represent appellant James Alvin Thompson for the direct appeal in the above automatic appeal now pending in this court. The State Public Defender is directed to deliver to Irene Kiebert, within 30 days from the filing of this order, the entire case file relating to appellant's automatic appeal currently in the State Public Defender's possession, including, but not limited to, the reporter's and clerk's transcripts, all case files and documents obtained from appellant's trial counsel, and all other case-related documents, including copies of all documents filed in this court.
Feb 19 2003Counsel's status report received (confidential)
  from atty Kiebert. (December report)
Feb 19 2003Counsel's status report received (confidential)
  from atty Kiebert.
Apr 8 2003Compensation awarded counsel
  Atty Kiebert
Apr 24 2003Counsel's status report received (confidential)
  from atty Kiebert.
Jun 19 2003Counsel's status report received (confidential)
  from atty Kiebert.
Aug 20 2003Counsel's status report received (confidential)
  from atty Kiebert.
Aug 22 2003Record on appeal filed
  23 vols. clerk's transcript (5,809 pp.) and 38 vols. of reporter's transcript (4,140 pp.), including material under seal and 3,469 pp. of juror questionnaires.
Aug 22 2003Appellant's opening brief letter sent, due:
  10-1-2003.
Sep 17 2003Request for extension of time filed
  to file appellant's opening brief. (1st request)
Sep 18 2003Extension of time granted
  to 12/1/2003 to file appellant's opening brief.
Sep 26 2003Received letter from:
  Appellant's counsel, dated 9/23/2003, advising appellant was personally served with application for extension of time to file opening brief.
Sep 29 2003Motion to augment AA record filed
  (appellant's motion)
Oct 8 2003Opposition filed
  by respondent to "Appellant's Motion to Augment the Record on Appeal."
Nov 4 2003Counsel's status report received (confidential)
  from atty Kiebert.
Nov 20 2003Filed:
  "Reply to Opposition to Appellant's Motion to Augment the Record on Appeal."
Dec 5 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Dec 11 2003Extension of time granted
  appellant's request from relief from default is granted. Extension of time granted to 1/30/2004 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.
Dec 23 2003Record augmentation granted in part/denied in part
  Appellant's "Motion to Augment the Record on Appeal," filed September 29, 2003, is granted in part and denied in part. The motion is granted to the following extent: The Superior Court of Riverside County is directed: (1) to determine (a) whether oral record-correction proceedings were conducted on December 19, 2002, and/or March 13, 2003, and if so (b) whether any such proceedings were reported and transcribed; (2) to receive any transcript of any such proceeding that has been prepared and to cause to be prepared any transcript of any such proceeding that has not been prepared; and (3) to cause any such transcripts to become part of a supplemental reporter's transcript-all with preparation, certification, and transmission as specified in rules 35 and 39.50(a) of the California Rules of Court. The superior court is further directed: (1) to conduct proceedings to determine whether any of the documents identified below was filed or lodged in the municipal or superior court files in this case; and if so (2) to cause such document or documents to be copied, to cause the document or documents so copied to become part of an augmented clerk's transcript, and to cause such transcript to be prepared, certified, and transmitted as specified in rules 33.5(b), 35 and 39.50(a) of the California Rules of Court for documents filed or lodged under seal, and as specified in rules 35 and 39.50(a) for documents not filed or lodged under seal: "1. Dalton documents: Documents regarding Danny Ray Dalton submitted under seal to the Riverside County Superior Court in People v. Thompson, Case No. CR-45819 (Appeal No. S056891) by the Riverside County District Attorney in response to a subpoena duces tecum issued by the defense. "2. Van Pelt documents: Documents regarding James Van Pelt submitted under seal to the Riverside County Superior Court in People v. Thompson, Case No. CR-45819 (Appeal No. S056891) by the Riverside County District Attorney in response to a subpoena duces tecum issued by the defense. "3. Juror response: Confidential document or documents indicated at page 1228 of the Clerk's Transcript in People v. Thompson, Riverside County Case No. CR-45819 (Appeal No. S056891), with the notation, 'Juror response to ntc of hrng CCP Section 237.' "4. 10-21-96 document: Confidential document or documents indicated at page 1229 of the Clerk's Transcript in People v. Thompson, Riverside County Case No. CR-45819 (Appeal No. S056891), with the handwritten date '10-21-96,' signed by 'MRico' and with the notation, 'ordered sealed do not open without Ct Order.' " (Motion, p. 2.) "8. Remaining clerk's transcript: All minute orders, documents, letters, and records of any kind filed or lodged in the Riverside Superior Court pertaining to the instant case and which have not previously been transmitted by the Clerk of the Superior Court for inclusion in the record on appeal, including but not limited to all the documents listed in Appendix A, which comprise Volume IV of the trial court file." (Motion, p. 3.) The superior court is further directed to comply, and to cause the superior court clerk to comply, with the foregoing directions by February 23, 2004. In all other respects, the motion is denied.
Dec 29 2003Counsel's status report received (confidential)
  from atty Kiebert.
Jan 14 2004Compensation awarded counsel
  Atty Kiebert
Jan 15 2004Filed:
  Clerk's 3rd supplemental transciprt (2 volumes, 518 pp.) and reporter's transcript (2 volumes, 51 pp.). (Note: Pursuant to this court's order of 12/23/2003)
Jan 15 2004Letter sent to:
  counsel advising that additional record was filed this date. (note: pursuant to Supreme Court's order of 12-23-2003.)
Jan 27 2004Request for extension of time filed
  to file AOB. (3rd request)
Jan 29 2004Extension of time granted
  to 3-30-2004 to file AOB. After that date, only four further extensions totaling about 200 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. Extension granted based upon counsel Irene Kiebert's representation that she anticipates filing the brief by 10-23-2004.
Feb 25 2004Counsel's status report received (confidential)
  from atty Kiebert.
Mar 16 2004Filed:
  Clerk's 4th supplemental record on appeal ( 1 volume, 131 pp.)
Mar 16 2004Letter sent to:
  counsel advising that the clerk's 4th supplemental transcript was filed this date.
Mar 18 2004Request for extension of time filed
  to file appellant's opening brief. (4th request)
Mar 19 2004Extension of time granted
  to 6/1/2004 to file appellant's opening brief. After that date, only four further extensions totaling about 140 additional days will be granted. Extension is granted based upon counsel Irene Kiebert's representation that she anticipates filing that brief by 10/23/2004.
Apr 14 2004Change of contact information filed for:
  attorney Irene Kiebert.
Apr 28 2004Counsel's status report received (confidential)
  from atty Kiebert.
May 12 2004Counsel's status report received (confidential)
  (supplemental) from atty Kiebert.
May 26 2004Request for extension of time filed
  to file appellant's opening brief. (5th request)
Jun 4 2004Extension of time granted
  to 8/2/2004 to file appellant's opening brief. The court anticipates that after that date, only two further extensions totaling about 120 additional days will be granted. Counsel is ordered to inform his or her 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.
Jul 12 2004Counsel's status report received (confidential)
  from atty Kiebert.
Jul 29 2004Request for extension of time filed
  to file AOB. (6th request)
Aug 3 2004Extension of time granted
  to 10-1-2004 to file AOB. After that date, only three further extensions totaling about 150 additional days will be granted. Extension granted based upon counsel Irene Kiebert's representation that she anticipates filing the brief within seven months.
Aug 17 2004Change of contact information filed for:
  attorney Irene Kiebert.
Aug 19 2004Filed:
  Supplemental declaration of service of atty Kiebert's change of contact information.
Sep 10 2004Counsel's status report received (confidential)
  from atty Kiebert.
Oct 1 2004Request for extension of time filed
  to file AOB. (7th request)
Oct 8 2004Extension of time granted
  to 11/30/2004 to file appellant's opening brief. After that date, only two further extensions totaling about 90 additional days will be granted. Extension is granted based upon counsel Irene Kiebert's based upon counsel Irene Kiebert's representation that she anticipates filing that brief within five months.
Nov 18 2004Counsel's status report received (confidential)
  from atty Kiebert.
Nov 23 2004Request for extension of time filed
  to file appellant's opening brief. (8th request)
Dec 1 2004Extension of time granted
  to January 31, 2005 to file appellant's opening brief. After that date, only one further extensions totaling about 60 additional days will be granted. Extension is granted based upon counsel Irene Kiebert's representation that she anticipates filing that brief within four months.
Jan 28 2005Request for extension of time filed
  to file appellant's opening brief. (9th request)
Jan 31 2005Counsel's status report received (confidential)
  from atty Kiebert.
Feb 1 2005Extension of time granted
  to 4/1/2005 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 counsel Irene Kiebert's representation that she anticipates filing that brief in about three months.
Mar 28 2005Counsel's status report received (confidential)
  from atty Kiebert.
Mar 28 2005Request for extension of time filed
  to file appellant's opening brief. (10th request)
Mar 30 2005Extension of time granted
  to 6/1/2005 to file appellant's opening brief. Extension is granted based upon counsel Irene Kiebert's representation that she anticipates filing that brief by 6/1/2005. After that date, no further extension will be granted.
Apr 18 2005Compensation awarded counsel
  Atty Kiebert
May 5 2005Counsel's status report received (confidential)
  from atty Kiebert.
May 23 2005Request for extension of time filed
  to file appellant's opening brief. (11th request)
May 25 2005Extension of time granted
  to 8/1/2005 to file appellant's opening brief. After that date, no further extension is contemplated.
Jul 11 2005Counsel's status report received (confidential)
  from atty Kiebert.
Jul 13 2005Counsel's status report received (confidential)
  (supplemental) from atty Kiebert.
Jul 27 2005Request for extension of time filed
  to file appellant's opening brief. (12th request)
Jul 29 2005Extension of time granted
  to 9/30/2005 to file appellant's opening. After that date, no further extension is contemplated.
Sep 29 2005Application to file over-length brief filed
  to file appellant's opening brief. (108,842 word brief submitted under separate cover; 386 pp.)
Sep 30 2005Order filed
  appellant's application to file over length opening brief is granted.
Sep 30 2005Appellant's opening brief filed
  (108,842 words; 386 pp.)
Sep 30 2005Filed:
  supplemental declaration of serivce of appellant's opening brief.
Oct 20 2005Extension of time granted
  to 12/30/2005 to file respondent's brief.
Oct 26 2005Compensation awarded counsel
  Atty Kiebert
Nov 16 2005Compensation awarded counsel
  Atty Kiebert
Dec 22 2005Request for extension of time filed
  to file the respondent's brief. (2nd request)
Dec 30 2005Extension of time granted
  to 3/1/2006 to file the respondent's brief. After that date, only three further extensions totaling about 180 additional days are contemplated. Extension is granted based upon Deputy Attorney General Melissa Mandel's representation that she anticipates filing that brief by 8/31/2006.
Feb 21 2006Request for extension of time filed
  to file the respondent's brief. (3rd request)
Mar 3 2006Extension of time granted
  to May 1, 2006 to file the respondent's brief. After that date, only two further extensions totaling about 120 additional days are contemplated. Extension is granted based upon Deputy Attorney General Melissa Mandell's representation that she anticipates filing that brief by August 31, 2006.
Apr 28 2006Request for extension of time filed
  to file respondent's brief. (4th request)
May 5 2006Extension of time granted
  to July 3, 2006 to file the respondent's brief. After that date, one further extension totaling about 60 additional days is contemplated. Extension is granted based upon Deputy Attorney General Melissa Mandel's representation that she anticipates filing that brief by August 31, 2006.
Jun 28 2006Request for extension of time filed
  to file respondent's brief. (5th request)
Jul 7 2006Extension of time granted
  to August 31, 2006 to file the respondent's brief. After that date, only no further extension is contemplated. Extension is granted based upon Deputy Attorney General Melissa Mandel's representation that she anticipates filing that brief by August 31, 2006.
Aug 25 2006Request for extension of time filed
  to file respondent's brief. (6th request)
Sep 1 2006Extension of time granted
  to October 30, 2006 to file the respondent's brief. After that date, no further extension is contemplated. Extension is granted based upon Deputy Attorney General Melissa Mandel's representation that she anticipates filing that brief by October 30, 2006.
Oct 27 2006Respondent's brief filed
  (70,268 words; 221 pp.)
Nov 21 2006Request for extension of time filed
  to file appellant's reply brief. (1st request)
Nov 30 2006Extension of time granted
  Appellant's request for relief from default for failure to file appellant's reply brief or a timely motion for extension of time is granted. Good cause appearing, and based upon counsel Irene Kiebert's representation that she anticipates filing the appellant's reply brief by March 16, 2007, counsel's request for an extension of time in which to file that brief is granted to January 16, 2007. After that date, only one further extension totaling about 60 additional days is contemplated.
Jan 8 2007Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Jan 10 2007Extension of time granted
  to March 16, 2007 to file the appellant's reply brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Irene Kiebert's representation that she anticipates filing that brief by March 16, 2007.
Mar 5 2007Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Mar 8 2007Extension of time granted
  to May 15, 2007 to file appellant's reply brief. Exension is granted based upon counsel Irene Kiebert's representation that she anticipates filing that brief by May 15, 2007. After that date, no further extension will be granted.
May 16 2007Appellant's reply brief filed
  (39,136 words; 144 pp.) filed with permission.
May 16 2007Filed:
  letter from counsel Kieber dated May 11, 2007, advising the court that she will be out of the country from May 19 through June 13, 2007.
Jun 20 2007Compensation awarded counsel
  Atty Kiebert
Dec 5 2007Received:
  Letter from counsel for appellant Irene Keibert informing the court of her unavailabilty from December 5-27, 2007.
Jun 26 2008Received:
  letter from counsel Irene Keibert informing the court of her unavailibilty from June 27, 2008 through July 21, 2008.
Jul 8 2009Received:
  letter from attorney Kiebert advising the court he will be out of town from July 7, 2009 through August 26, 2009, and will be able to check e-mail periodically.
Jul 16 2009Exhibit(s) lodged
  People's exhibits 22, 22A, 22B, 23, Z-3 and Z-4.
Dec 29 2009Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the March calendar, to be held the week of March 1, 2010, 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.
Feb 3 2010Case ordered on calendar
  to be argued Wednesday, March 3, 2010, at 1:30 p.m., in San Francisco
Feb 11 2010Filed:
  respondent's focus issue letter, dated February 10, 2010.
Feb 16 2010Filed:
  appellant's focus issues letter, dated February 12, 2010.
Feb 16 2010Received:
  appearance sheet from Irene Keibert, Attorney at Law, indicating 30 minutes for oral argument for appellant.
Feb 16 2010Received:
  appearance sheet from Deputy Attorney General Melissa Mandel, indicating 30 minutes for oral argument for respondent.
Feb 18 2010Received:
  respondent's additional authorities letter, dated February 17, 2010.
Feb 19 2010Received:
  appellant's additional authorities letter, dated February 18, 2010.
Mar 3 2010Cause argued and submitted
 
Mar 16 2010Exhibit(s) lodged
  People's exhibits, nos. 3, 4, 6, 7, 9, 12 and 17A (photographs)
May 21 2010Notice of forthcoming opinion posted
  To be filed Monday, May 24, 2010 @ 10 a.m.

Briefs
Sep 30 2005Appellant's opening brief filed
 
Oct 27 2006Respondent's brief filed
 
May 16 2007Appellant's reply brief filed
 
Brief Downloads
application/pdf icon
appellants_opening_brief.pdf (17312000 bytes) - Appellant's Opening Brief
application/pdf icon
respondents_brief.pdf (10990127 bytes) - Respondent's Brief
application/pdf icon
appellants_reply_brief.pdf (6376631 bytes) - Appellant's Reply Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 27, 2010
Annotated by Kate Hudson

Tags

death penalty, death penalty appeal, due process, equal protection, juror questionnaires, Batson

Summary

On April 24, 1996, a Riverside county jury found defendant James Alvin Thompson guilty of first degree murder and found true the special circumstance allegation that the murder was committed while defendant was engaged in the commission or attempted commission of robbery. In a subsequent proceeding, the jury also found true the special circumstance allegation that defendant had been convicted of a prior murder in Texas in 1977. After the penalty phase, the jury returned a verdict of death. This appeal is automatic.

Procedural Posture

The trial court denied defendant’s motion for a new trial and for modification of the penalty. The Supreme Court affirms the judgment.

Facts

On August 27 or 28, 1991, defendant met the victim, Ronald Gitmed, and convinced Gitmed to drive him to a trailer compound in Riverside County to visit Tony Mercurio, whom defendant had met when they were both serving time in prison. Gitmed was a 25-year-old white male with mental developmental disabilities. Later that night, defendant, Gitmed, and Mercurio left the compound in Mercurio’s truck to go to Canyon Lake. On the morning of Aug 28, Gitmed’s body was found floating in a remote section of the lake. He had been killed by three gunshot wounds. The prosecution’s main witness was Mercurio, who testified defendant robbed and shot Gitmed at Canyon Lake.

Mercurio testified that while at the lake, Gitmed and defendant started to argue. Mercurio stayed near the truck while the other two went towards the water. Mercurio heard defendant tell Gitmed to take off his clothes. Gitmed started to get undressed, and Mercurio then heard three shots. Defendant returned and threw some things into the back of the truck, including Gitmed’s clothing and some other small items.

Over the course of the next few days, defendant dropped various hints with various people about knowing what happened to Gitmed’s body. For example he made a comment about a person floating in Canyon Lake who was not able to make decisions for himself, according to one witness. A second witness testified that defendant started telling him about a body floating in the lake, but the witness told him to stop talking because he didn’t want to hear about it.

The defense presented an alibi for the evening of August 27, 1991, through the testimony of defendant’s uncle, who stated he had been with defendant that entire evening. Defendant’s uncle, Richard Hartenbach, was contacted about the arrest of his nephew for a murder that occurred on Tuesday August 27. Hartenbach said he had been with defendant that night: they went to dinner, and then a bar, and Hartenbach returned him home by 11 pm. This testimony is in direct conflict with the testimony and accounts of Mercurio.

A second witness for the defense was Marvin Avery, who did not know anyone involved in the case. Avery was a frequent visitor to nearby Canyon Lake. After seeing a newspaper article about the discovery of Gitmed’s body, Avery contacted the police. In late August, Avery had been fishing at the lake. Around 10:00 pm, he saw four men and a woman in the area. One man, in jeans and no shirt, dove into the lake and swam quite a distance. Avery testified he had identified the swimming man as Gitmed from photographs shown to him by the police.

Legal Issues on Appeal and Their Outcomes

PRETRIAL ISSUES
Exclusions of Prospective Jurors for Cause Based on Their Questionnaires
The trial court had the prospective jurors fill out a 25-page questionnaire, composed of 71 questions. One the basis of the questionnaire alone, the trial court excused 18 potential jurors for cause. Defendant contends the substitution of written questionnaires for oral voir dire was impermissible under the Fifth, Sixth, Eight, and Fourteenth Amendments to the United States Constitution.
• The Court held that questionnaires as a means of dismissing for cause are not per se invalid
• Defense argues that the questionnaires were defective and confusing. Because defense counsel initially drafted the questions, the Court held that defendant waives this claim.
• Defendant contends that the trial court erred in dismissing 13 prospective jurors for cause. The Court held that the jurors were impaired for service under Wainwright v. Witt, 469 U.S. 412.

Juror Dismissal: Claims of Equal Protection Violations
• Defendant contends that the trial court violated the equal protection clause because it applied a different standard for evaluating the questionnaires of those who strongly favored the death penalty than for those who strongly apposed it. The Court rejected this claim because the defendant failed to show how he was prejudiced.
• Defendant contends the prosecutor’s striking of African-American prospective jurors violated his right to equal protection under the Fourteenth Amendment. Defense counsel brought three Batson challenges during voir dire. The trial court found that defense had made out a prima facie case, and thus asked the prosecution to explain why these jurors had been struck. The judge found these reasons to be sufficiently race-neutral. The Court gave its conclusions deference on appeal, finding the race-neutral reasons plausible.

Err in Failure to Suppress Evidence
Defendant contends a search of his mother’s car violated the Fourth because police lacked both a warrant and probably cause for the search. The court held that the defendant had no standing to contest the search of the car because it belonged to his mother, and that the police had probable cause to conduct a warrantless search of the car under California v. Acevedo 500 U.S. 565 (1991).

TRIAL ISSUES
Due Process under the Fifth and Fourteenth Amendments Violated
Defendant claims that there is insufficient evidence for a conviction of murder, and thus his due process rights under the Fifth and Fourteenth Amendments were violated. Defendant makes the following claims:
• There was not enough evidence to convict him as the direct perpetrator, for both a premeditated murder or a felony murder. The Court disagreed, and concluded the testimony provided substantial evidence for either theory.
• There was not enough evidence to convict him as an aider and abettor, for either a premeditated murder or felony murder conviction. The Court disagreed, and concluded the testimony provided substantial evidence for either theory.
• The jury was wrongly instructed on the law regarding aiding and abetting. The Court noted a sharp line does not exist between the direct perpetrator and the aider and abettor, and therefore the trial as related to the doctrine of aiding and abetting was not improperly conducted.
• Defendant contends the prosecutor engaged in misconduct during the closing argument by misstating the law and evidence. The Court held that because the defendant failed to bring the objection below, he waived this claim.
• Defendant contends his counsel was ineffective for failing to move to exclude evidence police found during a search of his mother’s house. The Court held that counsel was not remiss, because the jury could reasonably have inferred the wallet belonged to Gitmed.
• Defendant challenges Mercurio’s testimony as uncorroborated from an accomplice, and that such testimony cannot support a conviction. The Court found no merit in this claim.
• Regarding the robbery-murder special-circumstance allegation, defendant claims there is insufficient evidence to support it. He also claims prosecutorial misconduct in closing argument by making misleading comments about this allegation. The Court held that there was sufficient evidence for the allegation, based on the same theories of why there was enough evidence for the murder and felony-murder charges. The Court also did not see any prejudice in the prosecutor’s closing arguments.
• Finally, Defendant contends his due process rights were violated because the trial court erred in admitting certain testimony. Under the abuse of discretion standard of review, the Court did not find reason to overturn the lower court’s decision on the admission of testimony.

BIFURCATED SPECIAL CIRCUMSTANCE TRIAL ISSUES
Various Constitutional Challenges to Death Penalty Statute
• During the penalty phase deliberations, a juror asked to be excused from further service due to great mental distress. Defendant asserts the excusal of this juror violated his right to due process under the Fifth and Fourteenth Amendments. The Court held that the trial court acted within its discretion in not examining the other jurors around the circumstances of the dismissal. Defendant also claims that the trial court should have given a lingering doubt instruction because it had learned (from the examination of the juror being dismissed) that the legitimacy of lingering doubt was an issue in the deliberations. The Court held the defendant’s claim was forfeited because defense did not ask the trial court to instruct on lingering doubt.
• Defendant moved for a new trial based on juror misconduct in the form of failure to deliberate, harassment, and undue pressure on the dismissed juror, and certain jurors’ improper appeals to sympathy. The lower court denied the motion, and this Court held that the trial court did not abuse its discretion in doing so.
• Defendant contends the trial court erred in denying his automatic application to modify the death verdict and that the error violated his Fifth and Fourteenth Amendment due process rights. The Court held that the trial court did not improperly deny the automatic application. Even though the defendant, acting as his own attorney during the penalty phase, presented no mitigating evidence, the court still considered mitigation factors, such as the fact that defendant behaved in an exemplary fashion.
• Defendant contends that the death sentence given to him is grossly disproportionate to his individual culpability. The Court concluded that the death sentence is disproportionate neither to his offense nor his personal culpability.
• Defendant raised various challenges to California’s death penalty law. The Court affirmed the decisions that have rejected similar claims and declined to reconsider various authorities.