Filed 3/7/05
IN THE SUPREME COURT OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
S026040
v.
RICHARD JOHN VIEIRA,
Stanislaus County
Super. Ct. No. 261617
Defendant and Appellant.
A jury convicted defendant Richard John Vieira of four counts of murder
(Pen. Code, § 187).1 An enhancement for personal use of a deadly weapon was
found true for each count. (§ 12022, subd. (b).) Defendant was also convicted of
one count of conspiracy to commit murder. (§ 182.) The special circumstance of
multiple murder was found true as to each count. (§ 190.2, subd. (a)(3).) At the
penalty phase, the jury fixed the penalty for count one, the murder of Richard
Ritchey, at life imprisonment without parole. For the three other murders and the
conspiracy to commit murder, the jury returned a verdict of death. The trial court
denied defendant’s motion to modify the death verdict (§ 190.4, subd. (e)) and
sentenced defendant to life imprisonment without parole on the first count and to
1
All statutory references are to the Penal Code unless otherwise indicated.
1
death on the other four counts, with a one-year enhancement for each count, with
the terms all to run consecutively.
Defendant’s appeal is automatic. (§ 1239, subd. (b).) We reverse the death
sentence as to the conspiracy to commit murder count and remand so that
defendant may be resentenced to a term of 25 years to life imprisonment. We
uphold defendant’s death sentence as to the other three counts and in all other
respects affirm the judgment.
I. FACTUAL BACKGROUND
A. Guilt Phase
At the time the murders took place in 1990, defendant lived at a location
known as “the Camp” at 4150 Finney Road in Salida in Stanislaus County. The
Camp consisted of a number of houses and trailers. Defendant lived in a trailer
with codefendant David Beck, near a house occupied by codefendant Gerald Cruz
and his wife. Codefendant Jason LaMarsh lived in another nearby trailer. Cruz
was the acknowledged leader of this informal group. Beck was generally in
charge of discipline. Everyone in the group pooled their money. Ron Willey was
also associated with the group, but did not live at the Camp during the relevant
time period. Defendant held a low status within the group. Michelle Evans,2 who
was also involved in the group and was for a time LaMarsh’s girlfriend, testified
that defendant was a “slave” to the other members of the group, and was given
such tasks as cooking, bathing Cruz’s children, and undertaking various repairs.
2
Evans, who was charged with the same first degree murder and conspiracy
to commit murder charges as defendant, entered into a plea bargain in which she
received a one-year sentence in exchange for her trial testimony.
2
According to her testimony, defendant was beaten by Beck, at Cruz’s order, for
various deficiencies in his work. He was also given the task of guarding the camp
late into the night, as well as often spending days doing construction work.
Cruz and Beck bought assault weapons and several camouflage masks and
knives. Two weeks before the murders, they purchased a police-style baton.
One of the Camp residents, Franklin Raper, a man in his 50’s, was known
to be selling drugs from his trailer. The noise and other activities attendant upon
drug sale and use, as well as hypodermic needles and other drug paraphernalia left
by Mr. Raper’s customers, became a concern to Cruz and other Camp residents.
Also of concern was Raper’s treatment of an elderly man named Jiggs. Raper
used Jiggs’s electricity to power his trailer, refused to compensate him for it, and
threatened to kill Jiggs when the latter threatened to disconnect the former’s
power. Cruz, according to Evans’s testimony, looked out for people in the Camp,
and became upset by this behavior. He and others asked Raper to leave the Camp,
but Raper initially refused.
Then began a series of confrontations between Raper and Cruz’s group.
Cruz and others pushed Raper’s car across the street and set it on fire. Raper
agreed to leave the Camp and had his trailer towed to 5223 Elm Street. But Raper
returned soon after and destroyed a newly repaired fence near Cruz’s house. Cruz
had Raper arrested and taken to jail. Two weeks before the murders, Jason
LaMarsh and others in the group got into a physical altercation with Raper at the
latter’s Elm Street residence, accusing him of stealing one of their guns, until
others broke up the fight. Later the same evening, Dennis Colwell, one of the
people present at the Elm Street residence during the fight, drove slowly by the
Camp and was pursued by Cruz and other Camp residents. They dragged Colwell
3
from the car and beat him, seeking to have him tell them what was going on at the
Elm Street residence. Defendant watched as the beating took place.
Michelle Evans’s sister, Tanya, had lived at the Elm Street residence, but
was evicted around the same time as Raper moved his trailer there. Raper lived in
the residence and allowed others to stay there as a kind of “crash pad.” The
afternoon of the murders, Cruz asked Evans to prepare a diagram of the residence.
Later that day, Cruz met with Beck, LaMarsh, Evans, Willey and defendant in
LaMarsh’s trailer. Cruz announced that the plan was to go over to the Elm Street
residence “to do ‘em and leave no witnesses.” Cruz gave each person a plan of
entry and an assignment. Evans’s task was to enter the residence as a visitor, to
account for all the people at the residence and attempt to move them into the living
room, to open up the back window and then leave and wait in the car. LaMarsh
was to enter with her. Beck was to come in through the back window. Cruz,
Willey and defendant were supposed to come through the front door after Evans
had completed her assignment. Cruz told the group that whoever “messed up” in
carrying out their assignments would “join” the victims, and he looked directly at
defendant when he made the statement.
Cruz then handed out weapons to be used. There were two baseball bats, a
Ka-bar knife and an M-9 knife. Cruz took one of the knives, along with a police
baton. Defendant was given a baseball bat and also had his own .22-caliber
handgun. Before going to the Elm Street residence, defendant and Willey were
seen swinging their bats and “dancing around” to hard rock music. Defendant and
others put on camouflage masks.
The group then proceeded to the Elm Street residence just after midnight on
May 21, 1990, driving over together in a Mercury Zephyr. Raper, Colwell, and
two others present at the house at the time, Richard Ritchey and Darlene
4
(“Emmie”) Paris, were murdered. Donna Alvarez, who had been sleeping in one
of the bedrooms when the attack began, managed to escape to a neighbor’s house.
Ritchey ran through the front door and into the street. A neighbor (Earl
Creekmore) and Evans testified that Willey and Cruz caught up to Ritchey and
beat him. Cruz then slit his throat with his knife. Raper’s and Colwell’s throats
were also slit and they had multiple wounds, including severe skull fractures
inflicted by a baseball bat or police baton. In Raper’s case, the top of the head was
caved in and there were severe lacerations to the brain.
Defendant killed Emmie Paris. The day after the murder he told Evans that
Paris began screaming and Cruz ordered him to shut her up. Defendant hit her
with a baseball bat several times but did not succeed in silencing her. Cruz then
handed him his knife and he stabbed her. When this also failed, defendant
grabbed Paris’s hair and sawed at her throat till “it felt like her head was going to
come off.” Evans testified that he laughed when he told her this. According to
Dr. Ernoehazy, who performed the autopsy for the coroner, Paris died from a
slicing wound to the throat.
Two days later, in a conversation with his girlfriend, Mary Gardner,
defendant admitted having been at the murder scene but denied killing anyone. He
blamed LaMarsh for allowing Alvarez to escape, telling her that the plan had been
to leave no witnesses. Gardner became upset because she knew three of the
people who were killed and defendant said that they deserved to die, they had been
“warned” and should not have been there.
Police investigating the crime scene found a baseball bat and Ka-bar knife
with bloodstains matching those of the victims, as well as several masks that had
been worn by the killers. Sheriff’s detective Deckard, the principal investigator,
questioned Donna Alvarez and from her description of one of the men she had
5
seen, and with a help of passersby acquainted with LaMarsh, he was able to
assemble a photographic lineup that included LaMarsh. Alvarez identified him as
having been one of the assailants. Suspicion soon focused on the Camp residents.
Evans was arrested, and in subsequent statements, implicated her codefendants.
Defendant was initially interrogated and released the day after the murders,
acknowledging that he knew the codefendants but denying he had any role in the
murders and claiming he had been at the Oakdale Motel the night the homicides
occurred. Two days later, defendant was arrested and further interrogated. He
admitted he participated in planning the murders and that he was present at the
murder scene. Initially during the interview, he stated that it had been his function
to stand guard in the hall, but later in the interview he admitted that he had struck
one of the victims in the legs several times with a baseball bat. Defendant stated
that he “completely condoned” the murders.
The defense put on no witnesses disputing the role in the murders that
Evans and others attributed to him. As will be explained below, the core of the
defense was apparently testimony regarding defendant’s cult membership and his
incapacity to form the requisite criminal intent. For reasons discussed below, the
principal defense witness, Randy Cerny, was not permitted to testify at the guilt
phase.
B. Penalty Phase
At the penalty phase, the prosecution argued solely the circumstances of the
crime and did not allege past violent criminal activity or prior felony convictions
on defendant’s part.
The defense called several childhood friends, neighbors and family
members, who portrayed defendant as a fairly quiet and nonviolent youth. His
father introduced him to smoking marijuana when defendant was eight years old.
6
Since that time, defendant became a habitual marijuana user, smoking it at least
once a week. He also had trouble in school, having a condition his mother,
Barbara Vieira, identified as “lazy eye,” which caused him to have difficulty with
reading and to be held back a year in the sixth grade. Defendant did not complete
high school. He left his regular high school after failing to make the football team,
enrolling in a continuation high school which he left after being suspended for
possessing marijuana. Soon after, he found work hanging sheetrock with his
father and later his uncle. He never learned how to drive. His mother testified that
he was a good boy and eager to do chores around the house.
Defendant’s sister, Angela Young, testified that it was she who introduced
defendant to Cruz and his circle when defendant was 15. (He was 21 at the time
of the murders.) Defendant’s sister lived for a few months in 1987 and 1988 with
Cruz and others in a house in Modesto. Cruz led others in the study of the occult
and the performance of supposedly occult rituals that included candles, robes, and
chanting. Cruz told Young that “to sacrifice your first newborn was . . . the
greatest thing you can ever do” and that it was “for the satisfaction of Satan . . . ,”
although there was no evidence any such sacrifices had occurred. Young soon
moved out of the house, but arranged for her brother, who was seeking
independence from the family, to move in.
Defendant’s sister and mother testified to changes they noticed in defendant
after he went to live with Cruz. He required permission from Cruz to visit his
family, and when he did visit, he would telephone Cruz to ask permission to stay
for dinner or to have a beer. He always looked tired, with dark circles under his
eyes, and was thin, nervous and withdrawn. He often appeared to have been
beaten up, with black eyes, fat lips, and slashes on his arms.
7
A deputy sheriff assigned to the county jail testified that defendant had no
incidents of misconduct in his approximately one year and four months of
incarceration.
Randy Cerny, a retired deputy sheriff who had become an expert on cults,
and lectured on cults for law enforcement agencies, also testified for the defense.
Based on his general study of cults, his review of a diary defendant had written in
the 18 months before the murder while living with Cruz, and his interviews with
defendant, Cerny formed the opinion that defendant was involved in a “cult style
group” with Cruz as the leader. Defendant was subject to “a process of mind
control” that included sleep deprivation, regular physical punishment, and
minimization of contact with family and others outside the group. According to
the diary, the punishment included shock treatments with an exposed electric wire,
beatings from other members of the group, and various forms of sexual
humiliation. Cerny testified that it was apparent from the diary that defendant had
internalized many of Cruz’s values: in it he expressed the desire to sacrifice
himself so that Cruz’s health would improve and expressed gratitude for Cruz
being “merciful” in not having him beaten when he made a certain mistake. Cerny
also described the cult as having occult and satanic underpinnings, with Cruz
directing the members of the group to read and study the books of the English
occultist Alistair Crowley, of whom Cruz believed himself to be the reincarnation,
and to engage in various rituals.
On cross-examination, Cerny admitted he had no way of verifying that the
events described in the diary actually occurred. He also related, at the
prosecution’s behest, portions of the diary in which defendant wrote about
administering punishment to another member of the group, entertaining obsessive
8
and sometimes violent fantasies about a woman who had rejected him, and
participating in the group’s heavy use of drugs.
II. PRETRIAL ISSUES
A. Denial of Motion to Change Venue
Defendant contends his motion to change venue, made several times during
the proceedings, was wrongly denied, which he claims was error under state law
and a violation of his right to be tried by an unbiased jury under the Sixth, Eighth
and Fourteenth Amendments to the United States Constitution. We conclude the
trial court committed no error.
1. The
Law
“ ‘A change of venue must be granted when the defendant shows a
reasonable likelihood that in the absence of such relief, a fair trial cannot be had.
[Citations.] Whether raised on petition for writ of mandate or on appeal from
judgment of conviction, the reviewing court must independently examine the
record and determine de novo whether a fair trial is or was obtainable. [Citations.]
The factors to be considered are the nature and gravity of the offense, the nature
and extent of the news coverage, the size of the community, the status of the
defendant in the community, and the popularity and prominence of the victim.’ ”
(People v. Williams (1989) 48 Cal.3d 1112, 1125 (Williams).)
As we further stated in Williams: “Of course, the question presented on
appeal from a judgment of conviction is necessarily different from that on a
petition for writ of mandate. . . . [¶] . . . [B]ecause the prejudicial effect of
publicity before jury selection is necessarily speculative, it is settled that ‘ “any
doubt as to the necessity of removal . . . should be resolved in favor of a venue
change.” ’ [Citation.] After trial, any presumption in favor of a venue change is
unnecessary, for the matter may then be analyzed in light of the voir dire of the
9
actual, available jury pool and the actual jury panel selected. The question then is
whether, in light of the failure to change venue, it is reasonably likely that the
defendant in fact received a fair trial. [Citation.] [¶] Whether raised on petition
for writ of mandate or on appeal from a judgment of conviction, however, the
standard of review is the same. A showing of actual prejudice ‘shall not be
required.’ [Citations.] In a pretrial motion for change of venue, defendant need
only demonstrate a ‘reasonable likelihood’ that absent such relief a fair trial cannot
be had. [Citation.] On appeal after judgment, the defendant must show a
reasonable likelihood that a fair trial was not had. [Citations.] In either case,
‘[t]he phrase “reasonable likelihood” denotes a lesser standard of proof than “more
probable than not. [Citations.]” ’ ” (Williams, supra, 48 Cal.3d at pp. 1125-1126.)
2. The Trial Court’s Rulings
In ruling on the defense motion for change of venue, the trial court
reviewed the pertinent factors, comparing the case to the then-recent capital case
in which this court denied a change of venue, People v. Coleman (1988) 48 Cal.3d
112, 133-136 (Coleman). As to the gravity and nature of the offense, the court
admitted this factor weighed in favor of the change of venue, given the multiple
murders and the “sensational aspects” of the case.
The trial court concluded that the second factor, the nature and extent of the
news coverage, did not weigh in favor of a change of venue. There had been a
number of “large and sometimes pictorial and descriptive articles about the
murders” between May 22 and June 1, 1990, in the Modesto Bee, the newspaper
with the largest circulation in Stanislaus County. There was intensive coverage on
local television stations during the same period of time. But that coverage was
comparable to that in Coleman, i.e., it “quickly subsided” and was not “ ‘persistent
and pervasive’ ” as in other cases in which a change of venue was warranted.
10
(Coleman, supra, 48 Cal.3d at pp. 133, 134.) The trial court found that articles
that initially reported neo-Nazi activity and drug use in connection with the case
were tempered by later comments by law enforcement officials that the killings
were not drug or race related. Moreover, media coverage mentioned defendant by
name only once or twice during the news coverage.
The trial court also examined survey data regarding how well acquainted
the people of Stanislaus County were with the crime and the defendant. Defendant
had submitted a recent telephone poll conducted by private investigator Alan
Peacock. According to that survey, 263 out of 400 respondents, approximately
two-thirds, had recalled hearing about the killings and 117, or approximately 29
percent, had formed an opinion that the persons arrested for the crimes were
guilty. The prosecution, in arguing against the change in venue motion, disputed
Peacock’s expertise in conducting the survey. The prosecution submitted its own
telephone survey, showing that 72 out of 100 respondents could recall hearing
something about the case and 21 of those had opinions as to defendant’s guilt.
The trial court observed that in Coleman, only 46 percent had heard of the case,
but 31 percent thought the defendant to be guilty, and that this substantial
percentage was not by itself grounds for changing venue.
The third factor, the size of the community also did not weigh in favor of a
change in venue. “The size of the community is important because in a small rural
community, a major crime is likely to be embedded in the public consciousness
more deeply and for a longer time than in a populous urban area.” (Coleman,
supra, 48 Cal.3d at p. 134.) In Coleman, we concluded that Sonoma County, with
a population of approximately 300,000 in 1980, “[t]hough not one of the state’s
major population centers, . . . is substantially larger than most of the counties from
which this court has ordered venue changes.” (Ibid.) The trial court in the present
11
case concluded that the size of Stanislaus County, with a population of
approximately 370,000 according to the 1990 census, also did not compel a venue
change.
The trial court also found the fourth and fifth factors the status of the
defendant and the popularity and prominence of the victim also did not weigh
in favor of the change of venue, as both the defendant and the victims were
unknown. Based on its assessment of all the above factors, the court concluded
that “there’s a reasonable likelihood that [defendant] will receive a fair trial in this
County” but that the court reserved final judgment until voir dire revealed the
actual state of knowledge of the prospective jury pool.
Defendant renewed the motion for a change of venue on August 22, 1991,
after a review of questionnaires completed by the prospective jurors disclosed that
approximately two-thirds of the prospective jurors had heard of the case and about
13 percent said they had formed an opinion based on what they had read. The
court denied the motion, observing that there was a sufficient number of jurors
who had not yet formed opinions.
Defendant again renewed the motion for change of venue on August 26.
The defense pointed out that Prospective Juror H., before she was dismissed, had
indicated she overheard three persons, perhaps prospective jurors, in the
courthouse discussing their belief that appellant should receive the death penalty.
Defense counsel argued that this incident underscored the “ominous atmosphere”
in which the trial would be taking place. The court affirmed its earlier holding.
Finally, defendant raised the venue issue in his motion for a new trial. Kirk
McCallister, especially appointed to represent defendant in the new trial motion,
claimed that the pretrial survey of community prejudice conducted by Alan
Peacock for previous defense counsel was flawed and that Mr. Peacock lacked
12
professional qualifications. Dr. Stephen Schoenthaler, who had prepared a
community prejudice survey for the trial of defendant’s codefendants, Cruz, Beck,
LaMarsh, and Willey (hereafter the Cruz trial), was called on to testify. The same
trial judge who presided over defendant’s trial had granted the change of venue in
the Cruz trial, which commenced after defendant’s trial. Dr. Schoenthaler’s
survey showed among other things that the percentage of people who had heard of
the case and who had formed an opinion of the defendants’ guilt 60 percent
hearing of the case and 30 percent forming an opinion was significantly higher
in the community prejudice survey than in the pool of prospective jurors and
among the actual jurors. Defense counsel argued that it was unrealistic to
suppose that of the nine jurors in the case who had prior knowledge of the case,
none had formed an opinion.3
The trial court denied the motion. It found the greater pretrial publicity in
the Cruz trial as a result of publicity about defendant’s trial justified the change in
venue in the former trial. The court also denied the motion “based on actual juror
answers to the voir dire [and] the failure to challenge any of them for cause . . . .”
3. Contentions on Appeal
Defendant claims on appeal that the trial court erred in not initially granting
the change of venue motion and not granting a new trial based on the failure to
change venue. In making these arguments, he compares this case to Williams,
3
This argument, as formulated in the new trial motion, was flawed for a
simple reason. The people polled in the community prejudice survey were
randomly chosen whereas the seated jurors were not, and prospective jurors who
admitted forming an opinion would not likely have been seated on the jury. The
argument has some force, however, when it comes to the entire panel of
prospective jurors, in which approximately 13 percent (23 of 173) admitted to
forming an opinion, significantly less than the community at large.
13
supra, 48 Cal.3d 1112, a capital case in which we reversed the judgment due to the
court’s failure to grant the change of venue motion. Defendant makes several
arguments based on the notoriety of the case. First, that approximately 66 percent
of prospective jurors had heard of the case, as opposed to 52 percent in the
Williams case. Second, 9 of 12 seated jurors had heard of the case, as compared to
8 of 12 in Williams. (Williams, supra, 48 Cal.3d at p. 1128.) The newspaper
reports in Williams were “frequently sensational,” describing the victim’s
“ ‘bullet-riddled body’ ” several times. Coverage of the quadruple murder,
defendant argues, was also frequently sensational, or at least likely to leave an
impression on the reader, with a number of front page and lead articles. The
articles referred to the defendants as part of a Nazi or White supremacist
organization. One article in the Modesto Bee, on the front page of the “B” Metro
section, reported on the preliminary hearing six months before trial, recounting
defendant’s description to Detective Deckard of how he had “nearly cut off the
head of Emmie Paris.” The confession was later suppressed as the product of an
illegal interrogation. Press coverage of incriminating evidence later deemed
inadmissible was also found significant in Williams. (48 Cal.3d at p. 1127.)
Defendant also claims that the extent of community prejudice may be
gauged by the comments and behavior of some of the excused jurors who had
overheard or had discussed the case and been exposed to the view that defendant
was guilty. Defendant further points to the fact that he exhausted all 20 of his
peremptory challenges, whereas the failure to do so would lead to the inference
that the defense is satisfied with the jury. (See People v. Dennis (1998) 17 Cal.4th
468, 524; People v. Daniels (1991) 52 Cal.3d 815, 853-854.)
There are nonetheless significant differences between Williams and the
present case that undermine defendant’s position. Of great significance in
14
Williams was the size of Placer County, which at the time of trial had a population
of 117,000. (Williams, supra, 48 Cal.3d at p. 1126.) As noted, Stanislaus County
had at the time of trial a population over three times greater, including the city of
Modesto with 80,000. The small size of the community in Williams was reflected
in the fact that over one-third of the number of potential jurors knew people
connected to the case, including the victim, members of her family, and the district
attorney or investigators, which was not the case here. (Ibid., at p. 1130.)
Moreover, although there was a flurry of publicity around the time of the
murders, and some prejudicial articles around the time of the preliminary hearing
in defendant’s case, six months prior to trial, in Williams “the publicity did not
cease but continued at a fairly steady pace until the start of trial.” (Williams,
supra, 48 Cal.3d at pp. 1127-1128.) We also found important in Williams the
status of defendant and the victim: the victim was a White woman whose family
had “ ‘prominence in the community,’ ” whereas defendant was from Sacramento,
an outsider, and a Black man in a county with less than 1 percent Blacks, resulting
in “social, racial and sexual overtones.” (Williams, supra, 48 Cal.3d at p. 1129.)
In such circumstances, “the risk is enormously high that the verdict may be based
on a desire for revenge, or the fear of social ostracism as the cost of a mitigated
verdict.” (Id. at p. 1131.) There were no such overtones in the present case, and
although defendant characterizes the victims, especially Emmie Paris, as a
“posthumous celebrity” (Odle v. Superior Court (1982) 32 Cal.3d 932, 940), this
case does not present the situation of an outsider defendant against a victim with
15
“long and extensive ties to the community.”4 (People v. Coffman and Marlow
(2004) 34 Cal.4th 1, 46 [distinguishing Williams on similar grounds].)
In sum, our independent review of the record in light of the relevant factors
discussed above does not support defendant’s contention that the trial court abused
its discretion in denying the change of venue motion.5
4
Defendant also argues that the Schoenthaler survey placed the percentage
of the community that had prejudged the case at 46 percent, more than the 29
percent in the earlier Peacock survey that had been found to have judged the
defendants guilty, on which the trial court’s decision was partly based. The 46
percent figure, however, is misleading. That figure comprises a percentage of
eligible jurors surveyed who prejudged the case because they either (1) were
categorically against the death penalty; or (2) had formed an opinion that if
defendants were guilty, they should get the death penalty; or (3) had formed the
opinion that defendants were guilty. But the first two categories are not pertinent
to a change in venue motion. As noted, the Schoenthaler survey reported 30
percent of eligible juror respondents had prejudged defendants’ guilt, a figure
virtually equal to the finding of the Peacock survey.
5
One shortcoming in the voir dire proceeding, which was conducted
exclusively by the trial judge, appears in the record. As noted above, nine of 12
jurors indicated some familiarity with the case in their questionnaires. The
questionnaires asked what details of the case the jurors remembered but a number
of jurors did not indicate the extent to which they were familiar with the case,
stating only that they “read about it” in the newspaper. The trial court did not voir
dire the jurors on the subject of their knowledge and whether they had formed an
opinion. Although the jurors professed in their questionnaires not to have formed
an opinion, “[a] juror’s declaration of impartiality . . . is not conclusive.”
(Williams, supra, 48 Cal.3d at p. 1129.)
As we stated in People v. Jennings (1991) 53 Cal.3d 334, 360: “[W]e
examine ‘the voir dire of prospective and actual jurors to determine whether
pretrial publicity did in fact have a prejudicial effect.’ ” The lack of such voir dire
in this case is therefore troubling, particularly in light of the fact that prospective
jurors indicated in preliminary questionnaires that they had heard of the case.
Given the totality of the circumstances, however, the sporadic nature of the
pretrial publicity, the fact that the jurors professed to form no opinion, and the
(footnote continued on next page)
16
B. Voir Dire on Multiple Murder
Prior to the commencement of voir dire, defense counsel submitted a
proposed jury questionnaire that contained the following question: “Do you feel
you would automatically vote for death instead of life imprisonment with no
parole if you found the defendant guilty of two or more murders?” The
prosecution objected that the subject areas “should be covered by the Court” in its
death qualification voir dire. Defense counsel stated that he appreciated that “the
Court would be doing the questioning in all aspects on [death qualification voir
dire], but I think the Court will need something to get started on to get an idea of
. . . what questions to ask that would intelligently bring out” prospective jurors
views on the death penalty. The question was not included in the jury
questionnaire. Moreover, the judge’s questions to prospective jurors did not ask
this or a similar question.6 Defendant claims error for refusing his request to
(footnote continued from previous page)
other factors discussed above it does not appear the trial court’s failure to
engage in this kind of voir dire led to an erroneous denial of the voir dire request.
6
A typical death qualification voir dire asked the following five questions:
“BY THE COURT: Q. Mrs. B., do you have any feelings about the death
penalty which are so strong that you would never find a person guilty of first
degree murder?
“Q. Do you have any feelings about the death penalty which are so strong
that you would never find a special circumstance to be true?
“Q. Do you have any feelings about the death penalty which are so strong
that you would never vote to impose the death penalty where it was a possible
sentence?
“Q. Do you have any feelings about the death penalty which are so strong
that you would always impose the death penalty in any case you had the
opportunity?
(footnote continued on next page)
17
inquire into the ability of prospective jurors to vote for life imprisonment without
parole in the case of multiple murder convictions. More specifically, he contends
reversal of the penalty phase judgment is compelled by our holding in People v.
Cash (2002) 28 Cal.4th 703, 718-723 (Cash). He further claims that these errors
violated his rights to equal protection, due process, a fair jury trial and protection
against cruel and unusual punishment found in the United States and California
constitutions. (U.S. Const., 5th, 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7,
15, 17.) We conclude there was no error.
In
Cash the defense, anticipating that the prosecution would introduce into
aggravation the defendant’s murder of his elderly grandparents at age 17,
attempted to ask a prospective juror during voir dire whether there were “ ‘any
particular crimes’ ” which would have caused the juror “ ‘automatically to vote for
the death penalty.’ ” (Cash, supra, 28 Cal.4th at p. 719.) The trial court ruled the
question improper, and also denied a subsequent motion to ask prospective jurors
whether there were any aggravating circumstances that would cause them to
automatically vote for the death penalty. (Ibid.)
We held the trial court erred. We began our analysis with an articulation of
the basic principles of voir dire in capital cases: “Prospective jurors may be
excused for cause when their views on capital punishment would prevent or
substantially impair the performance of their duties as jurors. (Wainwright v. Witt
(1985) 469 U.S. 412, 424.) ‘The real question is “ ‘ “whether the juror’s views
(footnote continued from previous page)
“Q. Do you have any feelings about the death penalty which in your mind
would substantially interfere with your ability to act as a juror?”
18
about capital punishment would prevent or impair the juror’s ability to return a
verdict of death in the case before the juror.” ’ ” ’ [Citations.] Because the
qualification standard operates in the same manner whether a prospective juror’s
views are for or against the death penalty (Morgan v. Illinois (1992) 504 U.S. 719,
726-728), it is equally true that the ‘real question’ is whether the juror’s views
about capital punishment would prevent or impair the juror’s ability to return a
verdict of life without parole in the case before the juror.” (Cash, supra, 28
Cal.4th at pp. 719-720.)
We therefore found error in the trial court’s refusal of the defense’s
proposed voir dire: “[T]he trial court’s ruling prohibited defendant’s trial attorney
from inquiring during voir dire whether prospective jurors would automatically
vote for the death penalty if the defendant had previously committed another
murder. Because in this case defendant’s guilt of a prior murder (specifically, the
prior murders of his grandparents) was a general fact or circumstance that was
present in the case and that could cause some jurors invariably to vote for the
death penalty, regardless of the strength of the mitigating circumstances, the
defense should have been permitted to probe the prospective jurors’ attitudes as to
that fact or circumstance. In prohibiting voir dire on prior murder, a fact likely to
be of great significance to prospective jurors, the trial court erred.” (Cash, supra,
28 Cal.4th at p. 721.)
Of particular importance for the present case was Cash’s discussion of
People v. Medina (1995) 11 Cal.4th 694, 745-746. “In Medina, on which the
Attorney General particularly relies, the trial court initially declined to permit voir
dire on whether prospective jurors could vote for life imprisonment if the
defendant had committed multiple murders, but later the trial court changed its
ruling and allowed such questioning. Despite dictum expressing doubt that the
19
court’s initial ruling was incorrect, we held that the initial ruling did not prejudice
the defendant because ‘after the trial court clarified its position with respect to the
multiple murder question, defendant failed to ask to reexamine any juror on this
topic.’ (People v. Medina, supra, 11 Cal.4th at p. 746.) Here, by contrast, the trial
court never altered its erroneous ruling, and defendant had no opportunity to
reexamine any juror with respect to the prior murder question.” (Cash, supra, 28
Cal.4th at p. 722.)
As our discussion of Medina in Cash suggests, a trial court’s categorical
prohibition of an inquiry into whether a prospective juror could vote for life
without parole for a defendant convicted of multiple murder would be error.
Multiple murder falls into the category of aggravating or mitigating circumstances
“likely to be of great significance to prospective jurors.” (Cash, supra, 28 Cal.4th
at p. 721.) The Attorney General does not dispute this point.7 Rather, the
Attorney General argues that defendant was not denied the opportunity to conduct
voir dire on the subject of multiple murder. We agree.
Although the trial court did not include the sought-after question on
multiple murder in the jury questionnaire, it never suggested that defense counsel
could not raise the issue in voir dire. The trial court never ruled that the question
was inappropriate, and the prosecutor did not object to the question itself, but only
opined that the question was “probably better asked by the court.” To be sure, as
7
The Attorney General argued in the respondent’s brief, filed before we
issued our opinion in Cash, that Medina made clear the trial court is not required
to permit defense counsel inquiry into prospective jurors’ views on the death
penalty for multiple murderers. In supplemental briefing filed at our request, the
Attorney General does not dispute defendant’s contention that denying the
opportunity to voir dire the jury on this subject is contrary to our holding in Cash
and would violate a defendant’s Fourteenth Amendment right to an impartial jury.
20
discussed more fully in the next part of this opinion, the trial court conducted voir
dire by itself and for the most part did not allow counsel to directly question
prospective jurors. But the trial court made clear that it would permit on voir dire
“supplemental questions that I would ask if you ask me to ask.” Defense counsel
never suggested to the court that it voir dire on the subject of multiple murder.
The court presented the questions he planned to ask prospective jurors regarding
the death penalty and defense counsel stated that he had “no legal objections.”
Defendant contends on appeal that the trial court’s invitation to ask
supplemental questions “was clearly for the limited purpose of allowing the
attorneys to suggest clarifying questions with respect to certain individual jurors,
not an invitation for counsel to suggest additional general questions to be directed
to the full jury panel.” But the record belies that contention. The trial court
incorporated into its general voir dire, for example, a question suggested by the
prosecution informing prospective jurors that the prosecution would be calling a
witness who had entered into a plea bargain and inquiring whether they believed
plea bargaining to be improper. Whether or not the trial court would have
approved an additional general question on voir dire asking about juror’s attitudes
toward multiple murderers is unclear. What is clear is that defendant did not
request such a question. Nor does he contend the trial court had a sua sponte duty
to ask the question on voir dire merely because it was informed that defense
counsel desired such a question be included in the questionnaire.
Thus, the question is not, as defendant contends, whether his claim of Cash
error was properly preserved, but rather whether any error was committed.
Although asking the multiple-murder question in the jury questionnaire would not
have been improper, refusal to include the question was not error so long as there
was an opportunity to ask the question during voir dire. Because defendant did
21
not attempt to have the trial court conduct a multiple murder inquiry during voir
dire, and the trial court was given no opportunity to rule on the propriety of that
inquiry, we conclude defendant cannot claim error. (See Cash, supra, 28 Cal.4th
at p. 722; People v. Medina, supra, 11 Cal.4th at p. 746.)
C. Failure to Conduct Individual Death Qualification Voir Dire
Defendant claims the trial court erred in conducting group voir dire,
particularly death-qualification voir dire, thereby violating his constitutional rights
to due process, an impartial jury and to be free of cruel and unusual punishment.
(U.S. Const., 5th, 6th, 8th, & 14th Amends.; Cal. Const., art. I, §§ 7, 15, 17.). We
conclude no error was committed.
In
Hovey v. Superior Court (1980) 28 Cal.3d 1, 80, we held that “[i]n order
to minimize the potentially prejudicial effects [of open-court voir dire], this court
declares, pursuant to its supervisory authority over California criminal procedure,
that in future capital cases that portion of the voir dire of each prospective juror
which deals with issues which involve death-qualifying the jury should be done
individually and in sequestration.” (Fns. omitted.) In People v. Waidla (2000) 22
Cal.4th 690, 713-714, we recognized that our holding in Hovey had been
abrogated by Code of Civil Procedure section 223, part of Proposition 115 enacted
by the voters in 1990. That section provides in pertinent part that in criminal cases
“including death penalty cases,” “[v]oir dire of any prospective jurors shall, where
practicable, occur in the presence of the other jurors.” (Code Civ. Proc., § 223.)
Defendant argues that Code of Civil Procedure section 223 is
unconstitutional because Hovey’s requirement of individual death qualification,
which this court has not overruled, is constitutionally based. He is incorrect. “In
Hovey . . . we clearly indicated that we adopted the rule pursuant to our
supervisory authority over California criminal procedure and not under
22
constitutional compulsion, and that we did so because the prejudicial effects
associated with death-qualifying voir dire in open court had not been shown to be
actual but only potential.” (People v. Anderson (1987) 43 Cal.3d 1104, 1135.)
Further, defendant contends that Code of Civil Procedure section 223 did
not overrule Hovey because it did not refer to that case, and because its caveat that
group voir dire take place “where practicable” can be taken as a codification of
Hovey. This was essentially the argument made by the defendant in Covarrubias
v. Superior Court (1998) 60 Cal.App.4th 1168. The court in Covarrubias
examined at length the language, purpose and ballot arguments behind Proposition
115 and concluded that “section 223 was intended to overrule Hovey’s holding
that individual sequestered voir dire is required during death qualification.”
(Covarrubias, supra, 60 Cal.App.4th at p. 1178.) We endorsed Covarrubias’s
holding in People v. Waidla, supra, 22 Cal.4th at pages 713-714, and do so again
here.
Finally, defendant claims that voir dire in his case was not “practicable”
within the meaning of Code of Civil Procedure section 223. “[S]ection 223 vests
the trial court with discretion to determine the advisability or practicability of
conducting voir dire in the presence of the other jurors.” (Covarrubias v. Superior
Court, supra, 60 Cal.App.4th at p. 1184.) A trial court that altogether fails to
exercise its discretion to determine the practicability of group voir dire has not
complied with its statutory obligation. (Ibid.) Our cases have suggested that
group voir dire may be determined to be impracticable when, in a given case, it is
shown to result in actual, rather than merely potential, bias. (See People v.
Anderson, supra, 43 Cal.3d at p. 1135.)
Defendant contends there was such indication of actual bias in the group
voir dire process in the present case. In defendant’s new trial motion, and again
23
here on appeal, defendant points to the voir dire of two prospective jurors, Robert
C. and Henry E., who answered affirmatively when asked “[a]re your feelings
about the death penalty such that in every case in which you have the opportunity
to impose the death penalty you would impose it?” In both cases, the trial court
responded in ways that indicated the answers were inappropriate and not in
conformity with the law. Defendant notes prospective jurors on the same panel
whose voir dire followed Robert C. and Henry E. did not give the same
unqualified affirmative response to that question. He surmises that these
prospective jurors, including several persons who were seated as jurors on the
case, were influenced by the trial court’s responses to Robert C. and Henry E. and
gave answers that conformed to law but may have been untruthful, i.e., they
understated their pro-death-penalty bias. Defendant in the new trial motion sought
to bolster this argument with testimony from Dr. Schoenthaler concerning the
Hawthorne effect, a phenomenon observed in social science research whereby the
act of observation changes the behavior of the subjects observed, as when research
subjects change their behavior to conform to what they perceive as the
expectations of the researchers. (See Risinger et al., The Daubert/Kumho
Implications of Observer Effects in Forensic Science: Hidden Problems of
Expectation and Suggestion (2002) 90 Cal. L.Rev. 1, 20, fn. 90.)
At the threshold, the Attorney General claims that defendant did not object
below to group voir dire and the issue is waived. It appears that defense counsel
objected to the repetitive questioning of the death-qualification voir dire, because
“I think . . . it’s creating . . . an atmosphere of guilt and death.” Defense counsel
did not, however, propose individual, sequestered voir dire as a solution to this
perceived problem, but rather sought to have the trial court conduct
death-qualification voir dire only when prospective jurors’ attitudes toward the
24
death penalty, as expressed in the questionnaire, were unclear. Defendant did not
raise the issue of individual voir dire until his motion for a new trial. Defendant’s
claim is therefore not preserved on appeal.
Even if it were, it is without merit. The possibility that prospective jurors
may have been answering questions in a manner they believed the trial court
wanted to hear identifies at most potential, rather than actual, bias and is not a
basis for reversing a judgment. The trial court did not abuse its discretion in
proceeding with group voir dire.
III. GUILT PHASE ISSUES
A. Refusal of Duress Instruction
Defense counsel requested the following instruction, which the trial court
refused to give: “If the defendant agreed and participated in the plan [to commit
murder] in the honest belief that his life or physical safety was in danger if he did
not agree and participate, he would not act with malice and could not be guilty of
conspiracy to commit murder.” Defendant contended, and contends now, that the
evidence supported such an instruction and that the trial court therefore erred in
refusing to give it. We consider in turn each of the two parts of the instruction, i.e,
whether in the present case the defense of duress can negate malice and whether it
can be a defense to conspiracy to commit murder.
1. Duress and Malice
Penal Code section 26 declares duress to be a perfect defense against
criminal charges when the person charged “committed the act or made the
omission charged under threats or menaces sufficient to show that they had
reasonable cause to and did believe their lives would be endangered if they
refused.” That section also provides that this defense does not apply to crimes
“punishable with death.” We recently rejected the argument that duress could
25
negate the elements of malice or premeditation, thereby reducing a first degree
murder to manslaughter or second degree murder. (People v. Anderson (2002) 28
Cal.4th 767, 781-784.) We decline defendant’s invitation to reconsider the
holding in Anderson. Moreover, because duress cannot, as a matter of law, negate
the intent, malice or premeditation elements of a first degree murder, we further
reject defendant’s argument that duress could negate the requisite intent for one
charged with aiding and abetting a first degree murder. (See Anderson, supra, 28
Cal.4th at p. 784.)
2. Conspiracy to Commit Murder
Defendant
contends
that although duress may not be a defense to murder, it
is a defense to a conspiracy to commit murder. Even assuming he is correct, the
trial court committed no error, because the facts did not support a duress
instruction. (People v. Flannel (1979) 25 Cal.3d 668, 684-685 [trial court obliged
to instruct on a defense theory only when there is substantial evidence to support].)
“The common characteristic of all the decisions upholding [a duress
defense] lies in the immediacy and imminency of the threatened action: each
represents the situation of a present and active aggressor threatening immediate
danger; none depict a phantasmagoria of future harm.” (People v. Otis (1959) 174
Cal.App.2d 119, 125; see also People v. Bacigalupo (1991) 1 Cal.4th 103, 125.)
In arguing that the evidence supports a duress instruction, defendant points to
testimony of Michelle Evans that Cruz had told defendant and the others in the
group, in their meeting just before they went off to commit the murders, that if any
one of them “messed up” during the attack on Raper, that person would “join” the
intended murder victims. Evans testified that Cruz looked directly at defendant
when he made that threat. Evans also testified, as recounted above, that Cruz had
ordered defendant beaten and tortured on several occasions.
26
We disagree that substantial evidence supports a duress instruction in the
present case. Rather, the evidence points strongly to the fact that defendant’s
participation in the murders was not principally motivated by a fear for his life, but
rather stemmed from his belief in Cruz as a figure of authority. Defendant’s
behavior immediately after the murder plan had been formulated (swinging a bat
and dancing around to rock music), his energetic participation in carrying out the
murder plan, and his subsequent statements to Detective Deckard and Mary
Gardner that he condoned the murders and that the victims deserved to die, are not
consistent with a defense that he was compelled to commit the murders by an
immediate and imminent threat to his life. Nor did defendant hint in his
conversations with Deckard, Gardner or Evans in the immediate aftermath of the
murders that fear for his life was a primary motive. While the fact that defendant
was dominated by Cruz is, as discussed below, a factor the jury could consider at
the penalty phase of the trial, it did not constitute duress within the meaning of
section 26. The defense of duress was therefore not available to defendant as to
any crime.8
Defendant also claims that a sentence of death for someone who committed
a murder under duress would constitute cruel and unusual punishment in violation
of the United States and California Constitutions (U.S. Const., 8th Amend. 8; Cal.
Const., art. I, § 17) because such an outcome would impose a “penalty ‘. . . so
disproportionate to the crime for which it is inflicted that it shocks the conscience
8
Trial counsel himself came to recognize the inappropriateness of a duress
defense at the guilt phase. When discussing the modification of the duress
instruction, he stated: “I tend to agree that the state of the evidence that [the
prosecutor] alluded to earlier would not permit a logical argument to the jury that
[defendant] was in imminent fear of his life in the first place.”
27
and offends fundamental notions of human dignity.’ ” (People v. Frierson (1979)
25 Cal.3d 142, 183.) We need not decide whether an individual who kills because
he faces the imminent choice between taking a life or likely forfeiting his own can
be constitutionally sentenced to death. As explained immediately above, that is
not this case.
B. Exclusion of Cult Expert Testimony
Defendant contends the trial court erred in refusing to admit at the guilt
phase the testimony of Randy Cerny. Cerny was a former Stanislaus County
Sheriff’s detective who specialized in the study of cults. Defense counsel offered
Cerny’s testimony to establish that defendant, under the mind control techniques
of Cruz, was unable to form the mental state required for first degree murder. The
trial court excluded Cerny’s testimony because he was not a qualified expert on
whether defendant had a “mental defect, mental disorder, or mental disease” at the
time he committed the murders. Defendant claims the trial court erred, and that
the error deprived them of his rights to due process and compulsory process under
the Fifth, Sixth, and Fourteenth amendments to the United States Constitution.
We conclude there was no error.
A trial court’s decision to admit or exclude evidence is reviewable for
abuse of discretion. (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) No such
abuse occurred here. “Expert opinion on whether a defendant had the capacity to
form a mental state that is an element of a charged offense or actually did form
such intent is not admissible at the guilt phase of a trial. [Citation.] Sections 28[9]
9
Section 28 states: “(a) Evidence of mental disease, mental defect, or mental
disorder shall not be admitted to show or negate the capacity to form any mental
state, including, but not limited to, purpose, intent, knowledge, premeditation,
deliberation, or malice aforethought, with which the accused committed the act.
(footnote continued on next page)
28
and 29[10] permit introduction of evidence of mental illness when relevant to
whether a defendant actually formed a mental state that is an element of a charged
offense, but do not permit an expert to offer an opinion on whether a defendant
had the mental capacity to form a specific mental state or whether the defendant
actually harbored such a mental state.” (People v. Coddington (2000) 23 Cal.4th
529, 582, overruled on another point by Price v. Superior Court (2001) 25 Cal.4th
1046, 1069, fn. 13.) Here, the trial court concluded that Cerny, who was not a
psychologist or a psychiatrist, was not qualified to render an opinion as to whether
defendant suffered from a mental illness at the time he committed the murders that
would raise a doubt about whether defendant had the mental state requisite for
first-degree murder; nor was Cerny qualified to testify generally about the
(footnote continued from previous page)
Evidence of mental disease, mental defect, or mental disorder is admissible solely
on the issue of whether or not the accused actually formed a required specific
intent, premeditated, deliberated, or harbored malice aforethought, when a specific
intent crime is charged. [¶] (b) As a matter of public policy there shall be no
defense of diminished capacity, diminished responsibility, or irresistible impulse
in a criminal action or juvenile adjudication hearing. [¶] (c) This section shall not
be applicable to an insanity hearing pursuant to Section 1026. [¶] (d) Nothing in
this section shall limit a court’s discretion, pursuant to the Evidence Code, to
exclude psychiatric or psychological evidence on whether the accused had a
mental disease, mental defect, or mental disorder at the time of the alleged
offense.”
10
Section 29 states: “In the guilt phase of a criminal action, any expert
testifying about a defendant’s mental illness, mental disorder, or mental defect
shall not testify as to whether the defendant had or did not have the required
mental states, which include, but are not limited to, purpose, intent, knowledge, or
malice aforethought, for the crimes charged. The question as to whether the
defendant had or did not have the required mental states shall be decided by the
trier of fact.”
29
relationship between mental illness and certain types of behavior. (See id. at pp.
582-583.) We conclude the trial court did not abuse its discretion in determining
that Cerny’s testimony was not relevant to any guilt phase issue and should be
excluded.
C. Admission of Photographs
Before trial, defense counsel moved in limine to exclude “the gruesome
photographs of the injuries to Darlene Paris.” Counsel argued the photographs
should be excluded under Evidence Code section 352, because their prejudicial
effect was considerable and their probative value slight, and because there was “no
issue of the cause of the death of any of the victims or the location or extent of
their wounds.” The trial court did exclude some of the challenged photographs,
but allowed the admission of two that defendant now claims were admitted in
error. The first, People’s exhibit No. 46 showed a picture of Raper’s skull, which,
as the prosecutor described it, looked “much like . . . a hard-boiled egg shown
after it cracked.” The second, People’s exhibit No. 57, showed a view of Paris’s
slashed throat. Defendant now contends this was error, under Evidence Code
section 352 and the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution.
The Attorney General argues that exhibit No. 57, by showing the extent of
the wounds inflicted on Paris, and her near decapitation, graphically undermined
defendant’s defense that he did not intend any killing and did not act with malice
or premeditation. We agree the trial court did not abuse its discretion in admitting
that photograph and committed neither statutory nor constitutional error.
As for exhibit No. 46, defendant did not object to admission of the
photograph, and his claim of error is therefore forfeited. Even if an objection had
been made, no reversal is warranted. The rules governing the admissibility of
30
photographic evidence are settled: all relevant evidence is admissible, unless
excluded under the federal or state Constitution or by statute, and trial courts have
broad discretion in determining the relevance of evidence but lack discretion to
admit irrelevant evidence. (People v. Scheid (1997) 16 Cal.4th 1, 13-14, and cases
cited therein.) Photographs of a murder victim “are always relevant to prove how
the charged crime occurred, and the prosecution is ‘not obliged to prove these
details solely from the testimony of live witnesses,’ ” even in the absence of a
defense challenge to particular aspects of the prosecution’s case. (People v.
Pollock (2004) 32 Cal.4th 1153, 1170; see People v. Scheid, supra, 16 Cal.4th at
p. 15.) We are not prepared to say, after examining the subject photograph of
Raper’s skull, that the trial court abused its broad discretion in implicitly
concluding its probative value outweighed its prejudicial effect. Even were we to
assume the contrary, we would find admission of the photograph harmless given
the strength of the evidence of defendant’s participation in the four murders. (See
People v. Weaver (2001) 26 Cal.4th 876, 933-934.)
D. Cumulative Error
Because we find no valid claim of error on appeal, we reject defendant’s
contention that his guilt phase judgment must be reversed for cumulative error.
IV. SPECIAL CIRCUMSTANCES/DEATH ELIGIBILITY ISSUES
A. Multiple-murder Special Circumstance
Defendant
claims
that
the multiple-murder special circumstance violates his
Eighth Amendment rights because it fails to adequately narrow the class of
murderers who are eligible for the death penalty. We have rejected this argument.
(People v. Coddington, supra, 23 Cal.4th at p. 656; see also Lowenfield v. Phelps
(1988) 484 U.S. 231, 246.) Defendant advances no persuasive reason to
reconsider our position.
31
B. Conspiracy to Commit Murder Alone Cannot Make Defendant
Death Eligible
Defendant contends the trial court erred in imposing a separate death
sentence upon him for conspiracy to commit murder. As the Attorney General
concedes, defendant is correct, and we have held that conspiracy to commit
murder is not a death-eligible crime. (People v. Lawley (2002) 27 Cal.4th 102,
171-172.) As in Lawley, “[u]nder our statutory power to modify an unauthorized
sentence (see § 1260), we shall direct the trial court to issue an amended abstract
of judgment reflecting the appropriate sentence for conspiracy to commit murder,
which the Attorney General in this case agrees is imprisonment for 25 years to life
. . . .” (Id. at pp. 171-172, fn. omitted.)
V. THE PENALTY PHASE
A. Sustaining Objection to Defendant’s Mother’s Remark
At the penalty phase, the defense called defendant’s mother, Barbara
Vieira, to testify on his behalf. Toward the end of defense counsel’s direct
examination, he asked her: “What would [your son’s] death do to you?” She
replied: “His death would destroy me.” The prosecution moved to strike her
remark and the trial court sustained the motion. Defendant now claims the trial
court in so doing committed prejudicial error and violated defendant’s Eighth
Amendment right to present mitigating evidence.
A statement about how a defendant’s death would make the family member
suffer is not relevant to an individualized determination of defendant’s culpability
and may be properly excluded. (People v. Sanders (1995) 11 Cal.4th 475, 546.)
As we stated in Sanders: “The specific questions whether family members would
prefer that defendant not be executed or believe that a death sentence will
stigmatize them are not, however, strictly relevant to the defendant’s character,
record or individual personality.” (Ibid.) As we further clarified in People v.
32
Ochoa (1998) 19 Cal.4th 353, 456: “A defendant may offer evidence that he or
she is loved by family members or others, and that these individuals want him or
her to live. But this evidence is relevant because it constitutes indirect evidence of
the defendant’s character. The jury must decide whether the defendant deserves to
die, not whether the defendant’s family deserves to suffer the pain of having a
family member executed.”
In the present case, Barbara Vieira’s statement went beyond the expression
of her desire that defendant be spared the death penalty, which would have been
permissible character evidence, and spoke directly of the impact the execution
would have on her. Although the question is close, we conclude the trial court did
not abuse its discretion in striking her testimony. Moreover, even if it was error,
the error was harmless. It is evident that Barbara Vieira communicated to the jury,
by the whole of her testimony, that she loved and valued her son and that his
crimes were the result of his association with Cruz and his followers. Her
statement that his death would destroy her would not have significantly added to
the jury’s picture of defendant’s character. (See People v. Heishman (1988) 45
Cal.3d 147, 194.)
B. Prosecutorial Misconduct During Penalty Phase Closing Argument
Defendant claims three instances of prosecutorial misconduct during the
penalty phase, each of which he claims violated his Eighth Amendment right to a
fair determination at the penalty phase. These instances will be considered in turn.
1. Commenting on Defendant’s Lack of Remorse
During closing argument, the prosecutor commented briefly on defendant’s
lack of remorse. Defendant contends that such comment allowed the prosecutor to
argue a nonstatutory aggravating factor, lack of remorse, in contravention of the
death penalty statute. (See People v. Boyd (1985) 38 Cal.3d 762, 772-776.) We
33
have held that such comment is not misconduct when the prosecution calls
attention to the jury that the mitigating factor of remorse is not present, so long as
the prosecution does not comment on defendant’s failure to testify at the penalty
phase. (People v. Crittenden (1994) 9 Cal.4th 83, 147-148.) In the present case,
the prosecutor did not suggest lack of remorse could be used as an aggravating
factor and did not comment on defendant’s silence at the penalty phase. Nor could
the prosecutor’s argument be properly characterized as committing Davenport
error, i.e., arguing lack of mitigation as an aggravating factor (People v.
Davenport (1985) 41 Cal.3d 247, 288-290); see Crittenden, supra, 9 Cal.4th at pp.
148-149.) We therefore conclude the prosecutor did not commit misconduct in
this instance.
2. Statement Regarding Mercy for Defendant
The prosecutor told the jury that under section 190.3, factor (k), the jury
could consider sympathy and mercy for defendant in determining the appropriate
penalty. The prosecutor then added: “I’d be happy if you show [defendant] that
exact same mercy and sympathy that he showed those people on Elm Street that
night. It’s absolutely none.” Defendant contends this was misconduct. But as we
have held, it is proper for the prosecutor to argue, based on the evidence, that a
capital defendant did not deserve sympathy. (People v. Ochoa, supra, 19 Cal.4th
at pp. 464-465.) The prosecutor did no more than this.
3. Prosecutor’s Statements Regarding the Bible and Philosophical
Writings
Defendant contends that the prosecutor committed misconduct by referring
to the Bible and religion in order to persuade the jury to sentence defendant to
death. In particular, defendant points to the following, delivered somewhere in the
middle of the prosecutor’s argument:
34
“Something I want to touch on. And I want to tell you this is not an
aggravating factor. I only bring up the subject in the event any of you have any
reservations about it, then hopefully I can . . . help with that.
“That’s the subject of religion. This is not aggravating at all. People from
time to time have a problem because they say, ‘Gee, in the Bible it says “Thou
shall not kill,” and “Vengeance is mine sayeth the Lord. I will repay.” ’ That’s
found in Romans. But in the very next passage . . . , it goes on and calls for capital
punishment and says, ‘[t]he ruler bears not the sword in vain for he is the minister
of God, a revenger to execute wrath upon him that doeth evil.’ He’s talking about
the ruler, the government, whatever.
“Now, the Judeo-Christian ethic comes from the Old Testament I believe
the first five books called the Torah in the Jewish religion. And there are two
very important concepts that are found there. And that’s, one, capital punishment
for murder is necessary in order to preserve the sanctity of human life, and, two,
only the severest penalty of death can underscore the severity of taking life.
“The really interesting passage is in Exodus, chapter 21, verses 12 to 14:
‘Whoever strikes another man and kills him shall be put to death. But if he did not
act with intent but they met by act of God, the slayer may flee to a place which I
will appoint for you.’ Kind of like life without possibility of parole, haven,
sanctuary. ‘But if a man has the presumption to kill another by treachery, you
shall take him even from my altar to be put to death’ There is no sanctuary for the
intentional killer, according to the Bible.
“Now, I’ll leave it at that. That was just in the event any of you have any
reservations about religion in this case.”
We recently considered a very similar prosecutorial argument in People v.
Slaughter (2002) 27 Cal.4th 1187, 1208-1209. We held this line of argument to be
35
improper (id. at p. 1209), but nonetheless upheld the defendant’s death sentence
for several reasons. First, we noted that the defendant had forfeited the issue by
failing to object at trial. (Ibid.) Second, we held that such forfeiture did not
necessarily constitute ineffective assistance of counsel, reaffirming that “ ‘ “the
choice of when to object is inherently a matter of trial tactics not ordinarily
reviewable on appeal.” ’ ” (Id. at p. 1210.)
Third, we held the prosecutor’s misconduct to be nonprejudicial. After
reviewing our case law on this issue, we stated: “Biblical references that rival in
length those in the present case were found harmless in People v. Wash [(1993)] 6
Cal.4th 215, 261, because after making the biblical references, ‘the prosecutor
embarked upon a lengthy and detailed argument devoted exclusively to the
evidence in aggravation . . . . He did not return to the subject of God or religion,
but instead urged a sentence of death based upon defendant’s moral culpability for
the crimes in light of the statutory factors. Thus, we do not believe the
objectionable remarks could reasonably have diminished the jury’s sense of
responsibility, or displaced the court’s instructions. [Citation.] There is no
possibility that the jury would have reached a more favorable verdict had the
misconduct not occurred. [Citation.]’ [¶] The same is true in the present case.
The prosecutor’s biblical references during his penalty phase argument were
improper but harmless.” (People v. Slaughter, supra, 27 Cal.4th at p. 1211.)
The same can be said in the present case. Defense counsel did not object to
the prosecution’s biblical argument, and we cannot say from an examination of the
appellate record that the lack of objection constitutes ineffective assistance of
counsel. Moreover, the biblical argument quoted above was only a small part of a
prosecutorial argument that primarily focused on explaining to the jury why it
36
should conclude that the statutory aggravating factors outweighed the mitigating
factors. We therefore conclude that the misconduct was not prejudicial.11
Defendant
also
claims
prosecutorial misconduct in the prosecutor’s
quotation of Lord Denning,12 which he identified to the jury as a judge “in the old
Court of Appeal in England.” That quotation, as stated by the prosecutor, was as
follows: “Punishment is the way in which society expresses its denunciation of
wrongdoing. In order to maintain respect for the law, it is essential that the
punishment inflicted for grave crimes should adequately reflect the revulsion felt
by the great majority of citizens for them. It is a mistake to consider the objects of
punishment as being deterrent or reformative or preventive and nothing else . . . .
The truth is that some crimes are so outrageous that society insists on adequate
punishment because the wrongdoer deserves it, irrespective of whether it is a
deterrent or not.”
There was no misconduct. The prosecutor in this case merely asked the
jury to make the individualized determination that this defendant deserved death
for these crimes because they were particularly outrageous, regardless of whether
11
We note that our statements clearly condemning prosecutorial reliance on
biblical authority in penalty phase closing argument were made in a series of cases
filed in late 1992 and 1993. (See People v. Wash, supra, 6 Cal.4th at pp. 260-
261; People v. Sandoval (1992) 4 Cal.4th 155, 193-194; People v. Wrest (1992) 3
Cal.4th 1088, 1107.) The prosecutor’s 1991 closing argument predated these
decisions. We do not decide whether prosecutorial biblical argument that
postdates and deliberately contravenes the holdings in those decisions constitutes a
more serious form of prosecutorial misconduct warranting reversal of the penalty
phase judgment.
12
In the transcript and in the briefs, the name is spelled Lord “Dinning,” but
apparently refers to Lord Alfred Thompson Denning, who served on the English
Court of Appeal, between 1944 and 1982, 20 years as Master of the Rolls. (Lord
Denning, The Times of London (March 6, 1999) p. A-21.)
37
or not his execution would deter other crimes. There was no likelihood the
argument would have obscured the jury’s proper understanding of its role at the
penalty phase.
C. Alleged Instructional Error
Defendant alleges various types of instructional error which he claims
violates his right to a fair penalty determination under the Eighth and Fourteenth
Amendments to the United States Constitution. We find no merit in these claims.
Defendant claims various defects in CALJIC No. 8.85, which explains the
various aggravating and mitigating factors the jury must weigh, as set forth in
section 190.3. First, defendant contends that the trial court should have omitted
those mitigating factors for which there was no evidence, because including those
factors gave the prosecutor the opportunity to point to the lack of mitigating
evidence. At the very least, defendant contends, the trial court should have
instructed the jury, according to requested instruction No. 1, that absence of a
mitigating factor could not be considered an aggravating factor. But as we have
held, “a reasonable juror could not have believed . . . that the absence of mitigation
amounted to the presence of aggravation.” (People v. Benson (1990) 52 Cal.3d
754, 802.) And, contrary to defendant’s contention, nothing in the prosecution’s
argument noting the absence of various mitigating factors would have misled the
jury to consider them as aggravating factors. Nor need the instruction have
labeled which factors were mitigating and aggravating. (Id. at p. 801.) Nor was
the failure to delete inapplicable mitigating factors from the instruction
constitutional error. (People v. Osband (1996) 13 Cal.4th 622, 704.) Nor is
section 190.3, factor (a), asking the jury to consider “the circumstances of the
crime of which the defendant was convicted in the present proceeding,”
unconstitutionally vague. (People v. Sanders, supra, 11 Cal.4th at pp. 563-564.)
38
Defendant
contends
the
jury should have been instructed according to
requested instruction No. 2, which would have specified 16 types of penalty phase
evidence that could be considered in mitigation under section 190.3, factor (k),
permitting the jury to consider “any other circumstance which extenuates the
gravity of the crime.” For example, the requested instruction would have made
clear that the jury could consider “whether the defendant was solicited by others to
participate in the crimes” and “whether the defendant occupied a position of
leadership or dominance of the other participants in the crimes.” As we have
made clear, factor (k) is adequate for informing the jury that it may take account of
any extenuating circumstance, and there is no need to further instruct the jury on
specific mitigating circumstances. (See People v. Hines (1997) 15 Cal.4th 997,
1068 [rejecting the need for a “lingering doubt” instruction in addition to factor
(k)].) It is generally the task of defense counsel in its closing argument, rather
than the trial court in its instructions, to make clear to the jury which penalty phase
evidence or circumstances should be considered extenuating under factor (k).
Defendant claims error in the trial court’s failure to instruct according to
requested instruction No. 3, that the jury may consider that accomplice Michelle
Evans was permitted to plead guilty to a lesser offense although equally culpable.
The trial court refused to deliver the instruction and directed defense counsel not
to argue that point to the jury. The trial court did not err. “The sentence received
by an accomplice is not constitutionally or statutorily relevant as a factor in
mitigation. Such information does not bear on the circumstances of the capital
crime or on the defendant’s own character and record.” (People v. Bemore (2000)
22 Cal.4th 809, 857.)
Defendant also claims a defect in CALJIC No. 8.88. The jury was
instructed per that instruction that “[i]n weighing the various circumstances you
39
simply determine under the relevant evidence which penalty is justified and
appropriate by considering the totality of the aggravating circumstances with the
totality of the mitigating circumstances. To return a judgment of death, each of
you must be persuaded that the aggravating evidence is so substantial in
comparison with the mitigating circumstances that it warrants death instead of life
without parole.” (Italics added.)
Defendant argues that the instruction’s language referring to the “totality”
of the aggravating and mitigating circumstances erroneously implied that a single
mitigating circumstance could not outweigh all aggravating circumstances and
hence could not serve as a basis for the more lenient sentence. We have rejected
that argument: “Certainly, [a reasonable] juror would not have interpreted . . .
language referring to the ‘totality’ of the aggravating and mitigating circumstances
in a ‘death oriented’ fashion to ‘relate[]’ solely to the ‘quantity . . . of the factors’
and not to their ‘quality,’ or to entail ‘ “a mere mechanical counting of factors on
each side of the imaginary scale . . . .” ’ . . . There is no reasonable likelihood that
the jury misconstrued or misapplied the challenged instruction in violation of the
Eighth or Fourteenth Amendment to the United States Constitution or any other
legal provision or principle.” (People v. Berryman (1993) 6 Cal.4th 1048, 1099-
1100, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn.
1.)
Defendant argues that the trial court’s failure to instruct the jury at the
penalty phase on a reasonable doubt standard, or indeed any standard of proof, for
finding that the aggravating evidence is true, or outweighs the mitigating evidence,
violated defendant’s Fifth, Eighth and Fourteenth Amendment rights. Not so.
“The federal Constitution does not require the jury to find beyond a reasonable
doubt that the prosecution proved each aggravating factor, that the circumstances
40
in aggravation outweigh those in mitigation, or that death is the appropriate
penalty.” (People v. Hawthorne (1992) 4 Cal.4th 43, 79.) “ ‘Unlike the guilt
determination, “the sentencing function is inherently moral and normative, not
factual” [citation] and, hence, not susceptible to a burden-of-proof
quantification.’ ” (People v. Box (2000) 23 Cal.4th 1153, 1216.)
Defendant contends that the jury should have been instructed that the
prosecution has the burden of persuasion to convince the jury that death was the
appropriate penalty. We have routinely rejected this argument. “[T]he
prosecution has no burden of proof that death is the appropriate penalty, or that
one or more aggravating factors or crimes exist, in order to obtain a judgment of
death.” (People v. Anderson (2001) 25 Cal.4th 543, 589.) Nor, contrary to
defendant’s argument, should the jury have been instructed on a presumption of a
life without parole sentence. “[N]either death nor life is presumptively appropriate
or inappropriate under any set of circumstances, but in all cases the determination
of the appropriate penalty remains a question for each individual juror.” (People
v. Samayoa (1997) 15 Cal.4th 795, 853.)
D. Trial Court’s Refusal to Modify Death Sentence
The trial court refused defendant’s motion to modify the jury verdict of
death pursuant to section 190.4, subdivision (e). Defendant contends the trial
court erred. We disagree.
Defendant focuses on a statement made by the trial court in the course of
explaining its refusal to modify the motion. The court stated: “The function of the
court in this motion is to review the evidence, consider and to take into account
and be guided by the aggravating and mitigating circumstances, and then make a
determination as to whether the jury’s finding and verdicts were or were not
contrary to law.” Defendant contends that the italicized portion of this statement
41
represents a misunderstanding on the trial court’s part of its proper function, and
that this misunderstanding undermines the validity of its ruling on the motion to
modify the verdict.
As we have stated: “ ‘In ruling on a verdict-modification application, the
trial judge is required by section 190.4 [subdivision] (e) to “make an independent
determination whether imposition of the death penalty upon the defendant is
proper in light of the relevant evidence and the applicable law.” [Citations.] That
is to say, he must determine whether the jury’s decision that death is appropriate
under all the circumstances is adequately supported. [Citation.] And he must
make that determination independently, i.e., in accordance with the weight he
himself believes the evidence deserves. [Citation.]’ ” (People v. Marshall (1990)
50 Cal.3d 907, 942.)
Although the italicized portion of the trial court’s statement quoted above
may leave some doubt about whether the trial court understood that it was to
independently review the jury verdict under section 190.4, subdivision (e), its very
next statement removes that doubt. The court stated: “Naturally, the court did
reweigh the evidence in making those determinations.” A review of the remainder
of the court’s statement of reasons for denying defendant’s motion, in which it
explained its independent assessment of each aggravating and mitigating factor
and the relative weight given to each, makes clear the trial court understood its
proper role and acted accordingly.
Defendant also contends trial court error can be found in the court’s
statement that a “strong argument could be made” that the death sentence would
not have been justified if Raper had been the sole victim, in light of defendant’s
lack of a criminal record and violent past, as well as his subservient status in
Cruz’s cult. Defendant argues that the murder of Raper alone would not have
42
made defendant death eligible, and that the trial court’s statement that it might
modify the death sentence only under a circumstance that would have made
defendant ineligible for the death penalty shows that the court “effectively
abrogated” its function under section 190.4, subdivision (e).
Defendant distorts the meaning of the trial court’s statements. The trial
court used the example of the sole murder of Raper as a means of explaining the
weight it gave the mitigating evidence. While the court concluded the mitigating
evidence was not inconsiderable, and could have led to a reversal of the death
sentence had a less aggravated crime been committed, the mitigating evidence did
not in the trial court’s judgment outweigh the four planned, gruesome murders in
which defendant participated as perpetrator and accomplice. The trial court did
not suggest, as defendant implies, that it would automatically affirm the verdict
because defendant was guilty of multiple murder. Taken in its proper context, we
find no error in the trial court’s statements.
E. Constitutional Challenges to the Death Penalty Law
Defendant
makes
various constitutional challenges to the state’s death
penalty law, contending that the law prevented him from obtaining a fair penalty
determination required by the Eighth and Fourteenth Amendments to the United
States Constitution. We conclude these challenges have no validity.
Defendant contends that the jury should have been required to make
explicit findings regarding the factors that it found in aggravation and mitigation.
We have rejected that claim. (People v. Kipp (1998) 18 Cal.4th 349, 381.)
Defendant contends that his death sentence is unconstitutionally arbitrary,
discriminatory and disproportionate. Specifically, defendant requests that his
sentence be reversed pursuant to intercase proportionality review, due to his lack
of prior convictions, his youth, and his contention that he acted out of fear for his
43
own life. Additionally, defendant requests an intracase proportionality review,
claiming that some of his codefendants who received less severe sentences were
more culpable than he was. It is well settled that neither are required. (People v.
Anderson, supra, 25 Cal.4th at p. 602.) For that reason, we reject also defendant’s
related claim that comparative appellate review is constitutionally compelled.
Defendant
contends
that the California death penalty statute violates due
process of law for failing to sufficiently channel or limit the sentencer’s discretion
to prevent wholly arbitrary and capricious death sentences because the jury is
neither told which factors are aggravating and mitigating, nor is given any
direction as to how to assign weight to those factors. Defendant is incorrect. “We
have rejected the contention that the sentencing factors [in section 190.3] are
unconstitutional because they do not specify which factors are aggravating and
which are mitigating. [Citations].” (People v. Cunningham (2001) 25 Cal.4th
926, 1041.) In addition, as the United States Supreme Court has held, a capital
sentencer need not be instructed how to weigh the sentencing factors and may be
given “unbridled discretion in determining whether the death penalty should be
imposed after it has found that the defendant is a member of the class made
eligible for that penalty.” (Tuilaepa v. California (1994) 512 U.S. 967, 979-
980.)13
Defendant
contends
that
the California death penalty statute fails to narrow
the class of offenders eligible for the death penalty and thus violates the Eighth
Amendment, and article I, section 17 of the California Constitution. In support of
13
We have also rejected the argument found in defendant’s reply brief that
Ring v. Arizona (2002) 536 U.S. 584, requires us to reassess the constitutionality
of the death penalty statute. (People v. Valdez (2004) 32 Cal.4th 73, 139.)
44
this contention, defendant offers a statistical analysis based on an examination of
published appeals of murder convictions for the years 1988 to 1992, claiming the
statistics show that the California statute fails to narrow the class of death-eligible
defendants, particularly because of the broad sweep of the lying-in-wait special
circumstance and the various felony murder special circumstances. We come to
the same conclusion as we did in People v. Frye (1998) 18 Cal.4th 894, 1029, that
California’s “special circumstances ‘are not overinclusive by their number or
terms.’. . . Defendant’s statistics do not persuade us to reconsider the validity of
these decisions.”
Defendant contends that the California death penalty scheme is
unconstitutional because it allows individual district attorneys unbridled discretion
as to which cases will be prosecuted as death penalty cases. This argument is
without merit. As we stated in People v. Lucas (1995) 12 Cal. 4th 415, 477:
“Prosecutors have broad discretion to decide whom to charge, and for what
crime. . . . Absent proof of invidious or vindictive prosecution, as a general matter
a defendant who has been duly convicted of a capital crime under a constitutional
death penalty statute may not be heard to complain on appeal of the prosecutor’s
exercise of discretion in charging him with special circumstances and seeking the
death penalty.” Because defendant has not raised a claim of invidious
discrimination or vindictive prosecution, his argument fails.
Defendant
contends
that section 190.3, factor (d), is constitutionally
defective because it directs the jury to consider only “extreme mental or emotional
disturbance” (italics added) and therefore, contrary to the Eighth Amendment,
does not permit the jury to consider all available mitigating evidence. Defendant
finds the same defect in factor (g), which directs the jury to consider “whether or
not defendant acted under extreme duress or under the substantial domination of
45
another person.” (Italics added.) But as we have held, these qualifying adjectives
in factors (d) and (g) do not, when read in conjunction with the catchall provisions
of factor (k), preclude the jury from considering less extreme forms of duress,
emotional disturbance, or domination. (See People v. Turner (1994) 8 Cal.4th
137, 208-209.)
Defendant
contends
that the methods of execution employed in California
violate the Eighth and Fourteenth Amendment and requests that his death sentence
be vacated. But the constitutionality of those methods bear “ ‘ “solely on the
legality of the execution of the sentence and not on the validity of the sentence
itself.” ’ ” (People v. Samayoa, supra, 15 Cal.4th at p. 864.)
F. Violations of International Law
Defendant
contends
that
various errors made at trial and various aspects of
the trial violate international law. As we have explained, the international treaties
and resolutions to which he points have not “been held effective as domestic law”
(People v. Ghent (1987) 43 Cal.3d 739, 779); see also People v. Hillhouse (2002)
27 Cal.4th 469, 511), and are therefore not a basis for reversing the judgment.
G. Cumulative Error
Defendant
contends
the
various penalty phase errors are, taken together,
prejudicial and require reversal of the death sentence. Because we identified only
one harmless error at the penalty phase — the prosecution’s biblical references —
the claim of cumulative error is without merit.
VI. RESTITUTION FINE
Defendant contends that the trial court erred in imposing a $5,000
restitution fine at the time of sentence pursuant to former section 1202.4 and
former Government Code section 13967, subdivision (a). Defendant points to an
amendment to the latter statute, effective September 14, 1992 (see People v.
46
Saelee (1995) 35 Cal.App.4th 27, 30), which added language that the imposition
of the restitution fine is “subject to the defendant’s ability to pay.”14 He contends
that he has no ability to pay the $5,000 fine and the fine should be reduced to the
statutory minimum.
Defendant’s sentence was pronounced on March 30, 1992, several months
before the amendment discussed above was enacted. Although statutes decreasing
punishment for criminal offenses may be applied retroactively, they generally
apply only to cases in which the law has changed between the time the crime has
been committed and the time the judgment becomes final. (See, e.g., In re
Estrada (1965) 63 Cal.2d 740,742; People v. Saelee, supra, 35 Cal.App.4th at p.
30.) When the Legislature intends a change in the sentencing law to apply to
sentences that have already become final, it generally states that intention
explicitly. (See, e.g., Holder v. Superior Court (1969) 269 Cal.App.2d 314, 318.)
Defendant does not contend any such intention can be discerned in the 1992
amendment to Government Code section 13967, subdivision (a). We conclude
defendant cannot benefit from that amendment and there is therefore no basis for
overturning or modifying the restitution fine.
14
Former Government Code section 13967, subdivision (a) provided in
pertinent part at the time defendant was sentenced that “[I]f the person is
convicted of one or more felony offenses, the court shall impose a separate and
additional restitution fine of not less than one hundred dollars ($100) and not more
than ten thousand dollars ($10,000).” (Stats. 1991, ch. 657, § 1, p. 3020.) The
1992 amendment stated in pertinent part: “[I]f the person is convicted of one or
more felony offenses, the court shall impose a separate and additional restitution
fine of not less than two hundred dollars ($200), subject to the defendant’s ability
to pay, and not more than ten thousand dollars ($10,000).” (Italics added.) (Stats.
1992, ch. 682, § 4, p. 2922.)
47
VII. DISPOSITION
We reverse the death sentence as to the conspiracy to commit murder count
and remand to the trial court to issue an amended abstract of judgment reflecting a
sentence of imprisonment for 25 years to life for that count. The judgment of
death as to the three other counts, and the judgment in all other respects, is
affirmed.
MORENO, J.
WE CONCUR: GEORGE, C. J.
BAXTER,
J.
WERDEGAR,
J.
CHIN,
J.
BROWN,
J.
48
CONCURRING AND DISSENTING OPINION BY KENNARD, J.
I join the majority in upholding defendant’s conviction for murder (Pen.
Code, § 187) with the special circumstance of multiple murder (Pen. Code,
§ 190.2, subd. (a)(3)). I write separately, however, to point out a problem with the
analysis of one guilt phase issue: the trial court’s exclusion of the testimony of
cult expert Randy Cerny.
Because I disagree with the majority’s conclusion that the prosecutor’s
biblical argument calling for death did not prejudice defendant, I would reverse
the judgment of death.
I
At the time of the murder, defendant was 21 years old and a submissive
member of an occult, satanic cult headed by codefendant Gerald Cruz. Defendant
was subjected to a process of mind control that included regular sleep deprivation,
severe physical punishment, sexual humiliation, and minimization of contact with
his family. Defendant acted as the cult’s “slave,” doing household chores,
cooking, bathing Cruz’s children, acting as a handyman, and staying up at night to
guard the cultists’ camp. He sought Cruz’s permission for even the most trivial of
matters. Defendant’s diary showed that he had internalized many of Cruz’s
values: Defendant wrote of the desire to sacrifice himself so that Cruz’s health
would improve and he expressed gratitude for Cruz being “merciful” when Cruz
refrained from having him beaten.
Cruz was angry at Franklin Raper, whom Cruz accused of bringing in
illegal drugs and attracting drug users to the vicinity of the cultists’ camp. One
1
day, Cruz decided to kill everyone at Raper’s residence. Cruz gave the cultists,
including defendant, exact orders on what to do and threatened to kill anyone who
“messed up.” When victim Emmie Paris encountered defendant in Raper’s
kitchen, she began to scream. Cruz ordered defendant to shut her up, and he
handed defendant a knife. Defendant killed Paris with the knife. Defendant was
convicted of the murder of Paris. Other cult members killed three other people at
the house; defendant was convicted as an accomplice to those killings.
II
At the guilt phase of defendant’s capital trial, the trial court refused to let
retired deputy sheriff Randy Cerny testify “as an expert in the study of cults, in the
mind control of members of cults, how cults operate and what effect it has on the
members.” (Cerny later testified at the penalty phase.)
After a hearing to determine Cerny’s qualifications as an expert, the trial
court acknowledged that Cerny was a qualified expert on cults, and that the subject
of cult behavior was one beyond common knowledge and could suitably be
addressed by an expert opinion. The court, however, barred Cerny from testifying
before the jury at the guilt phase, explaining: “Penal Code Section 28 requires that
such evidence regard a . . . mental disease, mental defect or mental disorder of the
defendant. The Court is not satisfied that Mr. Cerny has the expertise to testify
that mind control, if any, brought about by being a member of a cult is a mental
disease, mental defect, or mental disorder as to Mr. Vieira or as to any other
person.” Defense counsel then said, “I never intended to ask him if anyone had a
mental disease, disorder, or defect.” The trial court replied: “I understand. But to
get to [CALJIC No.] 3.32 [the jury instruction incorporating Penal Code section
28], the testimony has to relate to a mental defect, mental disorder, or mental
disease or it’s irrelevant.”
The trial court could well have concluded that defendant, notwithstanding
his disclaimer, was offering Cerny’s testimony as evidence of mental disease,
2
defect, or disorder, and that such testimony was inadmissible, either because
Cerny was not qualified to render an opinion on these mental states or because it
was testimony of diminished capacity barred by Penal Code section 28. The
problem is that the trial court did not decide whether defendant was offering
evidence of mental disease, defect, or disorder. Instead the court assumed that, to
be admissible, evidence relating to the mental elements of a crime must be
evidence of mental disease, defect, or disorder.
That assumption was incorrect. Penal Code section 28 limits only the use
of evidence offered to show mental disease, mental defect, or mental disorder;
such evidence may not be introduced to show that a defendant lacked the capacity
to form any mental state essential to a charged crime, but it is admissible on the
issue of whether or not the accused actually formed the required mental state.1
There is no rule that evidence offered to show the absence of a mental state
essential to first degree murder must be evidence of a mental disease, a mental
defect, or a mental disorder. To the contrary, a defendant who does not have a
mental disease, mental defect, or mental disorder may still lack the mental state
required to commit a specific intent crime, and is entitled to present evidence from
which the jury could infer the absence of the requisite mental state. Even if cult
expert Cerny was not qualified to testify as to mental disease, defect, or disorder,
he might still be qualified to testify about cult behavior, testimony from which the
1
Section 28, subdivision (a), reads: “Evidence of mental disease, mental
defect, or mental disorder shall not be admitted to show or negate the capacity to
form any mental state, including, but not limited to, purpose, intent, knowledge,
premeditation, deliberation, or malice aforethought, with which the accused
committed the act. Evidence of mental disease, mental defect, or mental disorder
is admissible solely on the issue of whether or not the accused actually formed a
required specific intent, premeditated, deliberated, or harbored malice
aforethought, when a specific intent crime is charged.”
3
jury could draw inferences about defendant’s mental state at the time of the
murders.
But even if the trial court erred in barring cult expert Cerny from testifying
for the defense at the guilt phase, that error was harmless. Although the jury could
have relied on Cerny’s testimony to infer absence of premeditation, in light of the
evidence that defendant was a willing participant in the killings – he agreed to the
plan to kill anyone found at the Raper residence, he laughed when he described the
murder of Emmie Paris, and he told his girlfriend that the victims deserved to die –
it is not reasonably probable that the jury would have done so. (See People v.
Watson (1956) 46 Cal.2d 818, 836.)
Moreover, the jury eventually heard defendant’s expert evidence when
Cerny testified at the penalty phase of the trial and explained how cults use
isolation, sleep deprivation, punishment, and occult ritual to dominate and control
the minds of their members. The jury nevertheless returned a death verdict.
III
At the penalty phase of defendant’s capital trial, the prosecutor argued to
the jury that certain biblical passages justified imposition of the death penalty:
“People from time to time have a problem because they say, ‘Gee, in the Bible it
says, “Thou shall not kill,” and “Vengeance is mine sayeth the Lord. I will
repay.” ’ That’s found in Romans. But in the very next passage . . . , it goes on
and calls for capital punishment and says, ‘[t]he ruler bears not the sword in vain
for he is the minister of God, a revenger or to execute wrath upon him that doeth
evil.’ He’s talking about the ruler, the government, whatever.
“Now, the Judeo-Christian ethic comes from the Old Testament I believe
the first five books called the Torah in the Jewish religion. And there are two
very important concepts that are found there. And that’s, one, capital punishment
4
for murder is necessary in order to preserve the sanctity of human life, and, two,
only the severest penalty of death can underscore the severity of taking life.
“The really interesting passage is in Exodus, chapter 21, verses 12 to 14:
‘Whoever strikes another man and kills him shall be put to death. But if he did not
act with intent but they met by act of God, the slayer may flee to a place which I
will appoint for you.’ Kind of like life without possibility of parole, haven,
sanctuary. ‘But if a man has the presumption to kill another by treachery, you
shall take him even from my altar to be put to death.’ There is no sanctuary for
the intentional killer, according to the Bible.
“Now, I’ll leave it at that. That was just in the event any of you have any
reservations about religion in this case.”
In
People v. Slaughter (2002) 27 Cal.4th 1187, 1208-1209 (Slaughter), the
same prosecutor as involved here presented the same biblical argument for the
death penalty. This court unanimously held that in making this argument, the
prosecutor committed misconduct. But, according to the majority in Slaughter,
there was no prejudice to the defendant. It reasoned: “Biblical references that
rival in length those in the present case were found harmless in People v. Wash
[1993] 6 Cal.4th 215, 261, because after making the biblical references, ‘the
prosecutor embarked upon a lengthy and detailed argument devoted exclusively to
the evidence in aggravation . . . . He did not return to the subject of God or
religion, but instead urged a sentence of death based upon defendant’s moral
culpability for the crimes in light of the statutory factors.’ ” (People v. Slaughter,
supra, 27 Cal.4th at p. 1211.)
I dissented in Slaughter, joined by Justice Moreno. The dissent stated:
“The majority’s assertion that the prosecutor’s improper argument must be
considered harmless because it was ‘part of a longer argument that properly
focused upon the factors in aggravation and mitigation’ [citation] makes little
5
sense. Under that logic, prosecutors may freely refer to biblical authority when
making their penalty arguments to juries in capital cases, secure in the knowledge
that this court will never reverse a resulting death judgment for this misconduct,
provided only that the prosecutors also present an argument focusing on the
statutory aggravating and mitigating factors. Appeals to divine authority in jury
arguments in capital cases are prejudicial when jurors for whom the aggravating
and mitigating factors appear closely balanced use religious considerations to
resolve their doubts, as the prosecutor's improper argument invites them to do.”
(Slaughter, supra, 27 Cal.4th 1187, 1228 (conc. & dis. opn. of Kennard, J.).)
Like the majority in Slaughter, supra, 27 Cal.4th 1187, the majority here
considers the prosecutor’s improper biblical argument harmless because it was
only a part of the prosecutor’s total peroration, which focused primarily on the
aggravating and mitigating factors. (Maj. opn., ante, at pp. 36-37.) Even if I were
to agree that the improper argument in Slaughter, supra, 27 Cal.4th 1887, was
harmless – which I do not –the harmless nature of the Slaughter argument would
not demonstrate that the improper biblical argument here was harmless.
This is not as aggravated a murder as those in Slaughter, supra, 27 Cal.4th
1887. In Slaughter, the defendant, acting on his own initiative and for the purpose
of robbery, personally shot three people, killing two of them. Defendant here
personally killed one person. In doing so, he did not act on his own initiative or
for his own personal benefit, but as an obedient slave to cult leader Gerald Cruz.
Moreover, here there is a statutory factor mitigating the crime that was not
present in Slaughter, supra, 27 Cal.4th 1187. Acting “under extreme duress or
under the substantial domination of another person” is a mitigating factor which
the jury must take into account if relevant. (Pen. Code, § 190.3, factor (g).) In
this case, the evidence shows that defendant acted under the substantial
domination of cult leader Gerald Cruz, who controlled every aspect of defendant’s
6
life and threatened to kill anyone who did not follow his orders. Absent the
pernicious influence of a satanic cult leader, it is doubtful that defendant would
have committed murder.
The test of prejudice is whether it is reasonably possible (see People v.
Michaels (2003) 28 Cal. 4th 486, 538; People v. Jackson (1996) 13 Cal.4th 1164,
1232) that, without the prosecutor’s improper biblical argument, the jury would
not have returned a verdict of death. The circumstances here meet that test. Thus,
I would reverse the penalty of death.
KENNARD,
J.
7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion People v. Vieira
__________________________________________________________________________________
Unpublished Opinion
Original Appeal XXX
Original Proceeding
Review Granted
Rehearing Granted
__________________________________________________________________________________
Opinion No. S026040
Date Filed: March 7, 2005
__________________________________________________________________________________
Court: Superior
County: Stanislaus
Judge: Edward M. Lacy, Jr.
__________________________________________________________________________________
Attorneys for Appellant:
Richard L. Rubin, under appointment by the Supreme Court, for Defendant and Appellant.
__________________________________________________________________________________
Attorneys for Respondent:
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves,
Assistant Attorney General, J. Robert Jibson, John A. O’Sullivan, Julie A. Hokans and Catherine Chatman,
Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Richard L. Rubin
Law Office of Richard L. Rubin
4200 Park Boulevard, Suite 249
Oakland, CA 94602
(510) 339-9552
Catherine Chatman
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5364
Date: | Docket Number: |
Mon, 03/07/2005 | S026040 |
1 | The People (Respondent) Represented by Attorney General - Sacramento Office Catherine Chapman, Deputy Attorney General P.O. Box 944255 Sacramento, CA |
2 | Vieira, Richard John (Appellant) San Quentin State Prison Represented by Richard L. Rubin Attorney at Law 4200 Park Blvd., Suite 249 Oakland, CA |
3 | Vieira, Richard John (Appellant) San Quentin State Prison Represented by Wesley Andrew Van Winkle Attorney at Law P.O. Box 5216 Berkeley, CA |
Disposition | |
Mar 7 2005 | Opinion filed |
Dockets | |
Mar 30 1992 | Judgment of death |
Apr 9 1992 | Filed certified copy of Judgment of Death Rendered 3-30-92. |
Nov 29 1995 | Counsel appointment order filed appointing Richard L. Rubin, Esq. to represent appellant on his automatic appeal, including any related habeas proceedings. |
Nov 30 1995 | Compensation awarded counsel |
Jan 19 1996 | Change of Address filed for: Atty Richard L. Rubin. |
Feb 20 1996 | Application for Extension of Time filed To request correction of the Record |
Feb 22 1996 | Extension of Time application Granted To May 3,1996 To request correction of the Record |
Apr 25 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
Apr 30 1996 | Extension of Time application Granted To Applt To 7-2-96 To request Corr. of Record. |
Jun 26 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
Jun 27 1996 | Extension of Time application Granted To Applt To 9-3-96 To request Corr. of Record. |
Aug 28 1996 | Application for Extension of Time filed By Applt to request correction of the Record. |
Aug 29 1996 | Extension of Time application Granted To Applt To 11-4-96 To request Corr. of Record. |
Sep 3 1996 | Filed: Suppl Proof of Service of Request. for Eot. |
Nov 4 1996 | Received copy of appellant's record correction motion Request for correction of transcripts, for additional record on appeal, to examine sealed transcripts, and to settle the record (53 pp.) |
Nov 7 1996 | Compensation awarded counsel |
Apr 10 1997 | Compensation awarded counsel |
Jun 5 1998 | Compensation awarded counsel |
Oct 15 1998 | Compensation awarded counsel |
Oct 15 1998 | Compensation awarded counsel |
Jan 20 1999 | Compensation awarded counsel |
May 25 1999 | Compensation awarded counsel |
Aug 6 1999 | Record on appeal filed C-10 (2,226 Pp.) and R-17 (2,243 Pp.) (Includes Material Under Seal). Clerk's Transcript includes 232 pages of Juror Questionnaires. |
Aug 6 1999 | Appellant's opening brief letter sent, due: 9-15-99. |
Aug 16 1999 | Compensation awarded counsel |
Sep 3 1999 | Application for Extension of Time filed To file Aob. |
Sep 8 1999 | Extension of Time application Granted To 11/15/99 To file Aob. |
Nov 10 1999 | Application for Extension of Time filed To file Aob. |
Nov 12 1999 | Extension of Time application Granted To 1/14/2000 To file Aob. |
Nov 17 1999 | Compensation awarded counsel |
Jan 10 2000 | Application for Extension of Time filed To file Aob. |
Jan 12 2000 | Extension of Time application Granted To 3/14/2000 To file Aob. |
Mar 3 2000 | Application for Extension of Time filed To file Aob. |
Mar 6 2000 | Extension of Time application Granted To 5/15/2000 To file Aob. |
Mar 15 2000 | Compensation awarded counsel Atty Rubin |
May 5 2000 | Application for Extension of Time filed To file Aob. |
May 8 2000 | Extension of Time application Granted To 7/14/2000 To file Aob. |
Jul 3 2000 | Application for Extension of Time filed to file AOB. |
Jul 11 2000 | Extension of Time application Granted To 9/12/2000 to file AOB. No further ext. of time are contemplated. |
Aug 17 2000 | Counsel's status report received (confidential) |
Sep 8 2000 | Application for Extension of Time filed To file the AOB. (7th request) |
Sep 12 2000 | Extension of Time application Granted To 11/13/2000 to file AOB. No further ext. of time will be granted. |
Oct 20 2000 | Counsel's status report received (confidential) |
Nov 3 2000 | Application for Extension of Time filed To file AOB. (8th request) |
Nov 8 2000 | Extension of Time application Denied To file AOB. |
Dec 18 2000 | Counsel's status report received (confidential) |
Feb 9 2001 | Counsel's status report received (confidential) |
Apr 9 2001 | Counsel's status report received (confidential) |
Apr 11 2001 | Application for Relief from Default filed to file AOB. |
Apr 11 2001 | Application to file over-length brief filed (3 vol. - 514 Pp. AOB submitted under separate cover) |
Apr 11 2001 | Request for judicial notice filed (AA) by appellant |
Apr 11 2001 | Filed: Confidential document by attorney Richard Rubin. |
Apr 12 2001 | Filed letter from: AG dated: 4/11/2001 re: opposition to applt.'s request for judicial notice. |
Apr 16 2001 | Order filed: Applt.'s request for relief from defalut and application to file over length brief is granted. |
Apr 16 2001 | Appellant's opening brief filed (3 vol. - 514 Pp.) |
Apr 23 2001 | Compensation awarded counsel Atty Rubin |
May 2 2001 | Application for Extension of Time filed To file respondent's brief. (1st request) |
May 4 2001 | Extension of Time application Granted To 7/16/2001 to file respondent's brief. |
May 22 2001 | Counsel's status report received (confidential) |
Jul 9 2001 | Application for Extension of Time filed To file resp.'s brief. (2nd request) |
Jul 13 2001 | Extension of Time application Granted To 9/14/2001 to file resp.'s brief. |
Jul 16 2001 | Counsel's status report received (confidential) |
Sep 4 2001 | Counsel's status report received (confidential) |
Sep 5 2001 | Application for Extension of Time filed To file respondent's brief. (3rd request) |
Sep 13 2001 | Extension of Time application Granted to 11/14/2001 to file resp.'s brief. |
Nov 5 2001 | Request for extension of time filed To file resp.'s brief. (4th request) |
Nov 9 2001 | Extension of Time application Granted To 1/14/2002 to file resp.'s brief. |
Nov 9 2001 | Counsel's status report received (confidential) |
Dec 19 2001 | Request for extension of time filed To file resp.'s brief. (5th request) |
Dec 27 2001 | Extension of time granted To 3/15/2002 to file resp.'s brief. Dep. AG O'Sullivan anticipates filing the brief by 3/15/2002. No further extension is contemplated |
Dec 31 2001 | Counsel's status report received (confidential) |
Mar 6 2002 | Counsel's status report received (confidential) |
Mar 7 2002 | Respondent's brief filed (112 pp.) |
Mar 21 2002 | Request for extension of time filed To file reply brief. (1st request) |
Mar 26 2002 | Extension of time granted To 5/28/2002 to file reply brief. The court anticipates that after that date only two further extensions totaling 120 additional days will be granted. |
May 1 2002 | Counsel's status report received (confidential) |
May 14 2002 | Request for extension of time filed To file reply brief. (2nd request) |
May 16 2002 | Extension of time granted To 7/29/2002 to file reply 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 seprate counsel of record of this schedule, and take all steps necessary to meet this schedule. |
Jun 24 2002 | Counsel's status report received (confidential) from atty Rubin. |
Jul 11 2002 | Request for extension of time filed To file applt.'s reply brief. (3rd request) |
Jul 16 2002 | Extension of time granted To 9/27/2002 to file applt.'s reply brief. The court anticipates that after that date, only one further extension totaling 60 additional days will be granted. Counsel is ordered to inform his 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. |
Sep 3 2002 | Counsel's status report received (confidential) |
Sep 17 2002 | Request for extension of time filed To file appellant's reply brief. (4th request) |
Sep 19 2002 | Extension of time granted To 11/26/2002 to file appellant's reply brief. The court anticipates that after that date, no further extension 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. |
Oct 30 2002 | Counsel's status report received (confidential) |
Nov 21 2002 | Request for extension of time filed To file appellant's reply brief. (5th request) |
Nov 26 2002 | Extension of time granted To 1/27/2003 to file appellan'ts reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Richard L. Rubin's representation that he anticiapates filing that brief by 1/25/2003. |
Dec 17 2002 | Counsel's status report received (confidential) |
Dec 19 2002 | Compensation awarded counsel Atty Rubin |
Jan 24 2003 | Request for extension of time filed to file appellant's reply brief. (6th request) |
Jan 24 2003 | Compensation awarded counsel Atty Rubin |
Jan 27 2003 | Filed: Declaration of attorney Richard L. Rubin re habas corpus investigation (confidential). |
Jan 29 2003 | Extension of time granted to 3/26/2003 to file appellant's reply brief. Extension is granted based upon counsel Richard L. Rubin's representation that he anticipates filing that brief by 3/26/2003. After that date, no further extension will be granted. |
Feb 13 2003 | Counsel's status report received (confidential) |
Mar 17 2003 | Request for extension of time filed to file appellant's reply brief. (7th request) |
Mar 19 2003 | Extension of time granted to 5/27/2003 to file appellant's reply brief. After that date, no further extension will be granted. Exension is granted based upon counsel Richard L. Rubin's representation that he anticipates filing that brief by 5/25/2003. |
Apr 18 2003 | Counsel's status report received (confidential) |
May 21 2003 | Request for extension of time filed to file appellant's reply brief. (8th request) |
May 27 2003 | Extension of time granted to 7/28/2003 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Richard L. Rubin's representation that he anticipates filing that brief by 7/26/2003. |
Jul 15 2003 | Counsel's status report received (confidential) |
Jul 18 2003 | Request for extension of time filed to file reply brief. (9th request) |
Jul 23 2003 | Extension of time granted to 9-26-2003 to file reply brief. After that date, no further extension will be granted. Extension granted based upon counsel Richard Rubin's representation that he anticipates filing the brief by 9-26-2003. |
Sep 10 2003 | Counsel's status report received (confidential) |
Sep 11 2003 | Appellant's reply brief filed (81 pp.) |
Oct 27 2003 | Counsel's status report received (confidential) |
Feb 3 2004 | Motion filed (in AA proceeding) "Appellant's (pro se) Challenge to Appointed Counsel's Judgment and Diligence Amounting to Procedural Error." FILING STRICKEN PER LETTER FROM THE CLERK ON 2/23/2004 |
Feb 3 2004 | Compensation awarded counsel Atty Rubin |
Feb 23 2004 | Counsel's status report received (confidential) |
Feb 23 2004 | Letter sent to: appellant returning pro se document submitted and filed on 2/3/2004. |
Apr 20 2004 | Counsel's status report received (confidential) |
Jun 28 2004 | Counsel's status report received (confidential) |
Jun 29 2004 | Compensation awarded counsel Atty Rubin |
Aug 13 2004 | Counsel's status report received (confidential) from atty Rubin. |
Aug 18 2004 | Supplemental briefing ordered The court requests the parties to file supplemental letter briefs addressing People v. Cash (2002) 28 Cal.4th 703, 718-723 with reference to Claim II in Appellant's Opening Brief. (AOB 121-130.) The Attorney General is directed to file a brief by September 1, 2004. Appellant is to respond by September 15, 2004. Chin, J., was absent and did not participate. |
Aug 20 2004 | Request for extension of time filed by respondent to file supplemental letter brief. (1st request) |
Aug 25 2004 | Extension of time denied to file respondent's supplemental letter brief. |
Sep 2 2004 | Letter brief filed supplemental letter brief filed by respondent, pursuant to court's order of 8/18/2004. (9 pp.) |
Sep 3 2004 | Received: letter from respondent, dated 9/1/2004, requesting that oral argument not be calendared on the dates of 10/20-10/26/2004, due to pre-exisiting vacation plans. |
Sep 10 2004 | Letter brief filed supplemental letter brief filed by appellant, pursuant to the court's order of 8/18/2004. (14 pp.) |
Sep 10 2004 | Received: Letter from appellant's counsel, dated 9/8/2004, requesting that oral argument not be scheduled for the following dates due to calendar conflicts: Oct. 5-8, Oct. 19-21, Nov. 5-8 and Dec. 13-16. |
Sep 22 2004 | Exhibit(s) lodged People's: 31, 44, 45; People's 4 and 86 (from trial of People v. LaMarsh & Willey, Alameda Co. Superior Court no. 110467C&D). |
Oct 13 2004 | Oral argument letter sent advising counsel that case could be scheduled for oral argument as early as December calendar, to be helad at special session at University of San Diego Law School week of Dec. 6, 2004. Any request for additional time (to argue), notification of requirement for two counsel, or advisement of "focus issues" must be made no later than 10 days after the case has been set for oral argument. |
Nov 3 2004 | Case ordered on calendar 12/8/04 @ 1:30pm, San Diego |
Nov 15 2004 | Filed letter from: Appellant's counsel, dated 11/12/2004, re focus issues for oral argument. |
Nov 17 2004 | Filed: respondent's focus issue letter, dated 11-15-2004. |
Nov 22 2004 | Received: Letter from apellant's counsel, dated 11/19/2004, re additional authority for oral argument. |
Nov 23 2004 | Received: letter from respondent, dated 11-22-2004, with additional authority. |
Dec 1 2004 | Request for judicial notice denied Request for judicial notice, filed April 11, 2001, is denied. |
Dec 3 2004 | Counsel's status report received (confidential) |
Dec 8 2004 | Cause argued and submitted |
Jan 4 2005 | Counsel's status report received (confidential) |
Feb 24 2005 | Counsel's status report received (confidential) |
Mar 7 2005 | Opinion filed: Affirmed in part, reversed in part Death sentence reversed as to the conspiracy to commit murder count and remanded to the trial court to issue an amended abstract of judgment reflecting a sentence of imprisonment for 25 years to life for that count. The judgment of death as to the three other counts, and the judgment in all other respects, is affirmed. Opinion by Moreno, J. ----- joined by George, C.J., Baxter, Werdegar, Chin and Brown, JJ. Concurring and Dissenting Opinion by Kennard, J. |
Mar 18 2005 | Rehearing petition filed by appellant. (2492 words; 15 pp.) |
Mar 21 2005 | Time extended to consider modification or rehearing to 6/3/2005, or the date upon which rehearing is either granted or denied, whichever occurs first. |
May 24 2005 | Counsel's status report received (confidential) |
May 26 2005 | Rehearing denied Petition for rehearing denied. Opinion modified. Kennard, J., is of the opinion the petition should be granted. |
May 26 2005 | Opinion modified - change in judgment |
Jun 15 2005 | Compensation awarded counsel Atty Rubin |
Jun 16 2005 | Letter sent to: counsel with copy of correct modification of opinion. |
Jun 28 2005 | Remittitur issued (AA) |
Jul 1 2005 | Counsel's status report received (confidential) |
Jul 14 2005 | Received: acknowledgment of receipt of remittitur. |
Jul 25 2005 | Motion for appointment of counsel filed request to appoint associate counsel. |
Aug 10 2005 | Counsel appointment order filed Good cause appearing, the application of appointed counsel Richard L. Rubin for the appointment of associate counsel, filed July 25, 2005, is granted. Wesley A. Van Winkle is hereby appointed as associate counsel of record for condemned prisoner Richard John Vieira. Counsel is appointed for purposes of all postconviction proceedings in this court, and for subsequent proceedings, including the preparation and filing of a petition for clemency with the Governor of California, as appropriate. (See Supreme Ct. Policies Regarding Cases Arising From Judgments of Death, policy 3, timeliness std. 1-1, & compensation std. 2-1.) Werdegar, J., was absent and did not participate. |
Aug 23 2005 | Counsel's status report received (confidential) |
Sep 6 2005 | Received: letter from U.S.S.C., dated 8/30/2005, advising cert petition filed on 8/23/2005 as No. 05-6075. |
Oct 26 2005 | Counsel's status report received (confidential) from atty Rubin. |
Nov 7 2005 | Certiorari denied by U.S. Supreme Court |
Dec 7 2005 | Exhibit(s) returned People's 31, 44, 45, 41 and 83. |
Dec 20 2005 | Received: acknowledgment of receipt of exhibits. |
Dec 30 2005 | Counsel's status report received (confidential) from atty Rubin. |
Feb 7 2006 | Counsel's status report received (confidential) from atty Rubin. |
Apr 12 2006 | Counsel's status report received (confidential) from atty Rubin. |
Apr 19 2006 | Compensation awarded counsel Atty Rubin |
Jun 5 2006 | Counsel's status report received (confidential) from atty Rubin. |
Aug 2 2006 | Counsel's status report received (confidential) from atty Rubin. |
Aug 30 2006 | Compensation awarded counsel Atty Rubin |
Oct 31 2006 | Related habeas corpus petition filed (post-judgment) No. S147688 |
Nov 3 2006 | Filed: declaration of atty Richard Rubin (confidential). |
Nov 9 2006 | Filed: supplemental declaration of atty Richard Rubin (confidential). |
Nov 15 2006 | Compensation awarded counsel Atty Rubin |
Jan 24 2007 | Compensation awarded counsel Atty Rubin |
Briefs | |
Apr 16 2001 | Appellant's opening brief filed |
Mar 7 2002 | Respondent's brief filed |
Sep 11 2003 | Appellant's reply brief filed |