Supreme Court of California Justia
Docket No. S056391

People v. Williams

Filed 12/28/06



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S056391

v.

BOB RUSSELL WILLIAMS, JR.,

Kern

County

Defendant and Appellant.

Super. Ct. No. SCA060642A



Defendant Bob Russell Williams, Jr., pleaded guilty to one count of murder

(Pen. Code, § 187.)1 He admitted the special circumstances of committing the

murder in the course of a rape (§ 190.2, subd. (a)(17)(C)) and of a burglary (id.,

subd. (a)(17)(G)) but did not admit to the charged sodomy special circumstance.

He also pleaded guilty to five counts of burglary and one count of attempted

escape. At the penalty phase, the jury fixed the penalty for the murder at death.

The trial court denied defendant’s motion to modify the death verdict (§ 190.4,

subd. (e)) and sentenced defendant to death.

Defendant’s appeal is automatic. (§ 1239, subd. (b).) We affirm this

judgment in its entirety.


1

All statutory references are to the Penal Code unless otherwise indicated.


I. STATEMENT OF FACTS

A. Prosecution Evidence

After defendant entered the above mentioned plea on June 4, 1996, the

penalty phase trial commenced. The circumstances of defendant’s rape and

murder of Mary Breck was the centerpiece of the prosecution’s case. That

evidence, based largely on statements made by defendant after his arrest, discloses

the following circumstances. On October 27, 1994, defendant noticed the Breck

residence during a morning walk along a canal bank that ran behind the residence.

He entered through the unlocked front door, heard a hairdryer blowing in another

room, and stole a wallet from a purse lying on the kitchen counter. He emptied the

wallet and threw it in the trash in a park, keeping the credit cards.

He then committed a burglary of the Elliott household nearby. Brandie

Barnden, the daughter of the owners of the house, who was staying there with her

husband, returned to the house around 10:30 a.m., while defendant was still in the

house, noticed various books of matches on the floor, and heard someone else pick

up the telephone when she was about to call her mother. She promptly left the

house and called the police. The police arrived on the scene and Joe Elliott, the

homeowner, eventually confirmed that a handgun was missing from the bedroom.

Other guns and a black duffel bag containing a fishing tackle and a knife were also

missing but were found a short distance from the Elliott house.

Defendant lived at the time with his girlfriend, Tina Meagher, with her

mother, Deanna Meagher, and with Tina’s brother. Deanna Meagher received a

phone call at work about some burglaries in the area and returned home to talk to

defendant. She made clear to him that she “would call the authorities because she

wasn’t going to put up with anything.” She pretended to call a police detective

whose card she had and to leave a message for him. This upset defendant.

2

According to defendant’s testimony and his statements to Detective Legg, who

interviewed him shortly after his arrest, he took her to mean that she suspected

him of being involved in the burglaries and believed the police were “going to get

him.” After this brief discussion, defendant left, stating that he was going to check

on a job.

According to his statement to Detective Legg, defendant left the Meagher

house around 9:30 a.m. and returned to the Breck house with the credit cards he

had stolen from the house the previous day. He noted the absence of a white

pickup truck that the cards he had stolen informed him was owned by the residents

of that address. Defendant knocked, and Mary Breck came to the door wearing a

green nightgown. She returned wearing a sweater. He gave her the missing credit

cards and she gave him $5. Breck said that her driver’s license was missing and

she would like to see that returned as well. Defendant walked back to the park and

retrieved the license from the trash can where he had disposed of it the day before.

When defendant returned, Breck again answered the door. He pushed her

down as hard as he could, made her crawl into the living room, and tied her hands

with a telephone cord. She pleaded with him not to be hurt and said she would do

anything, whereupon defendant tied a bandana around her mouth to keep her quiet.

He pulled her into the bedroom, and cut her clothes off with a knife he had been

carrying, in order to embarrass her. Defendant testified that he did not cut Breck

with a knife and had no explanation for photographs showing that Breck’s hands

were cut.

According to his statement to Detective Legg, once Breck lay naked on the

floor he “noticed her pussy,” which excited him, and he proceeded to pull down

his pants and forcibly rape her. When asked why he did so, he said that he “just

wanted to hurt her.” Defendant related to Detective Legg that he did not think the

rape had hurt Breck, so he sodomized her “two or three times.” Defendant fondled

3

and licked her breasts, and rubbed his penis on them. When he ejaculated, his

penis was not inserted.

Defendant

then

blindfolded Breck by tying strips of pillowcase around her

eyes. He took a belt that was lying on a chair in the bedroom and put it around her

neck, pulling on it for five minutes until his muscles could not pull anymore. He

believed he had killed her but then heard gurgling sounds in the bedroom. He

returned to the bedroom, and strangled her with the belt as hard as he could for

“what seemed like another 15 minutes” until he was certain she was dead. He then

dragged her body outside because he wanted “to look around the residence for

things to steal [and] did not want to hear the gurgling noise again.” Defendant

took a portable television, a camcorder, and the keys to a Lexus parked in the

garage.

Breck’s body was discovered around 2:00 p.m. by Susan Reese, Breck’s

sister-in-law. Blood samples taken on the scene were consistent with the victim

and not with defendant. Tests of Breck’s body for semen were inconclusive.

Detective Legg arranged to have a “sex kit” done on defendant, and a penile swab

test tested negative for glycogenetic epithelial cells, an indicator of vaginal

contact, as well as negative for fecal material.

Defendant testified that he took fishing poles from the victim’s garage, as

well as the car. According to his testimony, he took these items because he

“realized something wrong [had] happened, and [he] just needed to get away from

people . . . and figure out what to do.” Defendant testified that he drove back to

the Meagher house, where he picked up his clothes, a gear bag and the .38-caliber

special handgun he had stolen from the Elliott house.

Defendant left Bakersfield for the Kern River canyon, where he fished for

several hours. After defendant resumed the drive, the stolen Lexus was spotted by

4

the California Highway Patrol, and, after a high-speed chase, defendant was

apprehended.

Also part of the prosecution’s case was the victim impact evidence

concerning the effects of Mary Breck’s murder on her husband and two children.

The entire family went through bouts of depression. Breck’s son, a high school

senior and an exceptional student, stopped attending classes and failed to graduate

from high school. Her daughter was sleeping 15 to 18 hours a day and was having

nightmares. Steven Breck testified to his difficulty coping with the death of his

wife, with whom he had had a 26-year relationship, whom he described as his

“one and only love.” Breck’s brother and niece also testified about the pain of

losing her.

B. Defense

Evidence

The defense case in mitigation consisted principally of evidence of the

abuse defendant suffered as a child, primarily from his stepmother, and of his own

mother’s neglect. Six months after defendant was born, his parents separated.

According to the testimony of his mother, Jennifer McNees, defendant’s father

Bob Williams, Sr., was abusive to her in the presence of the children. He retained

custody of defendant in Louisiana, and defendant was cared for by his paternal

grandparents and great-grandmother. When defendant was five years old, he went

to live with his father and stepmother after his father remarried. His stepmother

had a son one and one-half years older than defendant.

Soon thereafter, they moved to Virginia. Joan Nelson, who was a social

worker in Roanoke County, Virginia, helped to document the abuse of defendant,

which led to his placement in foster care in 1983 when he was seven. The

investigation uncovered a pattern of abuse at the hands of defendant’s stepmother.

This included locking defendant out of the house, denying him water, forcing him

5

to eat hot peppers if he lied, cutting his clothes off of him, and rubbing his face in

urine when he urinated on the floor. Defendant had reported to school authorities

in Louisiana that his stepmother had hit him with her fist, a report confirmed by an

interview with the stepmother. Nelson observed semicircular bruises on

defendant’s buttocks consistent with beatings with a folded belt. Defendant

testified and had stated in a 1983 interview that he had been confined to the

basement, was often fed only peanut butter sandwiches or not given food, and that

he had to sometimes eat food placed on the floor “like a dog.” According to the

defendant’s testimony at trial, if he told his parents a lie, he would have to eat a

teaspoon of Tabasco sauce, and his stepmother changed the rule to eating the

whole bottle. He was made to take cold baths.

Defendant also testified that his stepmother had sexually abused him, that

she touched his penis and had him touch her private parts. Dr. Eugene Couture, a

clinical psychologist who examined defendant, testified defendant had told him

that his stepmother made him suckle at her breast as punishment and was made to

conduct oral sex on her. Defendant’s mother also testified that he had admitted to

her sometime prior to the murder that his stepmother had sexually abused him,

although he did not go into details.

Defendant’s stepmother was charged with felony child abuse and pled

guilty to a misdemeanor offense of child neglect in 1983. Defendant was placed

in a foster home, and his foster parents reported that during visits his stepmother

was “hateful” to him, and that his father kept him waiting all day for a visit.

Dr. Carol Logan, testified that she conducted psychological testing on

defendant while he was in foster care, which showed that he had an above-average

IQ of 119. But she concluded that defendant had suffered from serious emotional

abuse to which he responded with “aggressive acting out.”

6



When his foster parents moved out of state later in 1983, defendant

returned to his father and stepmother’s house. According to defendant, the abuse

began again. On one occasion defendant’s stepmother ordered him to strip naked

and tied him to the bed because he could not spell the word “trespass,” then went

to a ballgame with her son. Social worker Ellen Groff, who had worked for the

Roanoke Department of Social Services, testified that defendant was found around

this time at a shopping center five miles from his home with a black eye that had

been inflicted a week earlier. He had reported to her that after discovering blood

on his shirt, the result of having been nipped in the ear by a puppy, his stepmother

ordered him to take his clothes off, tied him in bed by his feet with a rope, and

threatened to kill him if he left. He had nonetheless escaped.

Defendant was again removed from his home and, after briefly being

placed again in foster care, was sent to California to live with his mother. Chali

Houghteling, defendant’s half sister, testified that her mother did not try to help

defendant with his problems and had tried to give defendant to a neighbor.

Defendant got into fights and did not pay attention in school. Defendant’s mother

called the police when it was found defendant had “jammed” his half sister Stacey

Lorraine with a pair of scissors, leaving a slight mark on her hand. His mother

expected to pick him up at juvenile hall later that night, but instead he spent over a

year in the Children’s Home of Stockton.

When he returned to his mother’s home, she had remarried. In November

of 1988 when defendant was 12, he took a bicycle, a fishing pole, some military

medals and a camera belonging to his mother’s husband and ran away from home.

He eventually returned home and ran away again. This time his mother refused to

allow him to return to the house and told the police to take him into custody. He

spent the next five years in group homes and juvenile hall. His mother seldom

visited him. In 1993-1994, while attending his senior year in high school, he lived

7

with his younger half brother Timmy in the house his mother had formerly

occupied in Bakersfield. Timmy testified that defendant and he were best friends

and that defendant looked after him. They lived there without adult supervision

except for visits by defendant’s older sister.

Various mental health professionals testified on defendant’s behalf. Dr.

Eugene Couture testified that defendant was competent to stand trial, legally sane,

and that there was no evidence of brain damage. He opined that the most

appropriate diagnosis for defendant was antisocial personality disorder, a disorder

characterized by a “pervasive pattern of disregard and violation of the rights of

others.” People diagnosed with this disorder typically were abused as children.

Defendant also presented various character evidence. Defendant met Tina

Meagher at a dance and shortly thereafter Tina became pregnant by him. Their

son was born March 15, 1995, after defendant was jailed for the Breck murder.

Tina testified that defendant before the murder had expressed the desire that they

raise the baby together and would attend obstetrician’s appointments with her.

Defendant did not physically or sexually abuse Tina. She described him as “very

polite, kind, nice.” Defendant also got involved in country western dancing and

bull riding, and witnesses who participated with him in those activities testified to

having a good opinion of him. Michael Chambers, a cellmate of defendant in

early 1995, while defendant was awaiting trial, testified that defendant showed

remorse for his crimes.

Defendant himself testified that when committing murder, he had thoughts

of what his stepmother had done to him, and was reacting to those thoughts.

Defendant testified that he was “real angry” with himself and “sorry.”

8

II. DISCUSSION

Because defendant pleaded guilty and does not contest the validity of that

plea, all of his claims pertain to the penalty phase of the trial.

1. Failure

to

Appoint

Keenan Counsel

Defendant claims that the trial court’s revocation of the appointment of

cocounsel, also known as Keenan counsel, constituted error. (Keenan v. Superior

Court (1982) 31 Cal.3d 424 (Keenan).)

Factual Background

Defendant’s previous counsel, Kyle Humphrey, moved on December 15,

1994, to have Larry Fields appointed as Keenan counsel. Humphrey, in his

declaration, emphasized that this was a capital case and there would be an

“enormous amount of legal services involved” in the preparation of motions for

the guilt and penalty phases. The motion was granted and Fields was appointed

cocounsel.

On July 12, 1995, Humphrey and Fields filed a motion to be relieved as

counsel on the grounds of conflict of interest due to prior representation of a

potential witness. The motion was granted on July 14, 1995 by Judge Jerold

Turner. At the same time Judge Turner appointed in their places Dominic

Eyherabide as lead counsel and Michael Dellastritto as cocounsel.

During a hearing on a motion to continue the trial date, Judge Oberholzer

noted the lack of any request for cocounsel on Eyherabide’s part or any affidavit in

support of such request pursuant to section 987, subdivision (d), and asked for

such documentation.

Judge Oberholzer ultimately denied the request for Keenan counsel. He

stated that he did not “find anything sufficiently complex” that would warrant

appointment of cocounsel. The court noted that the guilt phase would “not be

9

particularly involved” because of defendant’s confession, and that counsel’s

efforts “have to be directed to the penalty phase.” Counsel responded that the

guilt phase might become more involved due to potential mental state defenses,

and that in any case the penalty phase would be extensive, in part due to the

prosecution’s litigation of defendant’s past criminal activity. The trial court

expressed the view that much of the required preparation could be done by an

investigator rather than by second counsel and denied the motion.

Applicable Law

In Keenan, supra, 31 Cal.3d 424, 432, we explicitly recognized that a trial

court may under some circumstances abuse its discretion by failing to appoint

second counsel in a capital case. Keenan was in part codified in section 987,

subdivision (d), which states: “In a capital case, the court may appoint an

additional attorney as a cocounsel upon a written request of the first attorney

appointed. The request shall be supported by an affidavit of the first attorney

setting forth in detail the reasons why a second attorney should be appointed. Any

affidavit filed with the court shall be confidential and privileged. The court shall

appoint a second attorney when it is convinced by the reasons stated in the

affidavit that the appointment is necessary to provide the defendant with effective

representation. If the request is denied, the court shall state on the record its

reasons for denial of the request.”

Defendant contends the trial court erred in revisiting and overturning the

decision of a previous judge to authorize Keenan counsel. (See People v. Riva

(2003) 112 Cal.App.4th 981, 991 [generally one trial judge may not overrule

another one].) But even if Judge Oberholzer exceeded his jurisdiction in revoking

the appointment of Keenan counsel, such error is not a basis for reversing the

judgment.

10

“The appointment of a second counsel in a capital case is not an absolute

right protected by either the state or the federal Constitution. (People v. Jackson

(1980) 28 Cal.3d 264, 286-288; Keenan v. Superior Court (1982) 31 Cal.3d 424,

428-430.) Thus, the error, if any, . . . must be judged under the standard

enunciated in People v. Watson (1956) 46 Cal.2d 818, 836, i.e., whether it is

‘reasonably probable’ a result more favorable to the defendant would have been

reached had the error not occurred.” (People v. Clark (1993) 5 Cal.4th 950, 997,

fn. 22.)

Defendant claims that the trial court’s action in revoking appointment of

Keenan counsel was in excess of its jurisdiction and was structural error, whereas

if the trial court had merely abused its discretion -- for example, if the first judge

to consider the request had incorrectly determined that Keenan counsel was not

warranted -- harmless error analysis would apply. But the fact that the trial court

allegedly exceeded its jurisdiction, rather than abused its discretion does not

change the fact that it is subject to harmless error analysis under the Watson

standard. Arizona v. Fulminante (1991) 499 U.S. 279, 310, cited by defendant,

does not support his position. That case recognizes certain structural errors not

subject to harmless error analysis, such as the total deprivation of the right to

counsel, the exclusion of members of a race from the grand jury, denial of the

right to self-representation at trial, or denial of a public trial. “Each of these

constitutional deprivations is a similar structural defect affecting the framework

within which the trial proceeds, rather than simply an error in the trial process

itself. ‘Without these basic protections, a criminal trial cannot reliably serve its

function as a vehicle for determination of guilt or innocence, and no criminal

punishment may be regarded as fundamentally fair.’ ” (Ibid.) But defendant fails

to explain why the erroneous deprivation of Keenan counsel that results from

excess of jurisdiction as opposed to abuse of discretion should be considered

11

structural error requiring reversal. We will therefore review the revocation of

Keenan counsel for prejudice under Watson’s “reasonably probable” standard.

Defendant claims two different types of prejudice. First, he contends that

defense counsel pressured him to plead guilty because the lack of resources would

have made it virtually impossible for counsel to conduct both the guilt and penalty

phases. Although the evidence that defendant committed the murder is

overwhelming, defendant contends that there were meritorious mental state

defenses that might have lessened his culpability at the guilt phase.

The record does not support defendant’s claim. Prior to accepting

defendant’s guilty plea, the prosecutor, District Attorney Edward Jagels, had a

colloquy with Defense Counsel Eyherabide. The prosecutor asked whether “you

believe that in entering this plea you may be gaining a tactical advantage with

regard to the penalty phase of the trial?” Counsel responded: Yes, . . . it’s for

tactical reasons, yes. . . . We’re doing it because we think it’s the best interest

[from a] tactical standpoint and because he’s guilty.” The prosecutor then asked if

counsel was of the opinion “as an experienced attorney that based on the strength

of the trial . . . your client will be convicted of the offense of [sic] which he’s

pleading guilty?” Counsel responded, “Yes I do.” Moreover, counsel’s

confidence that his client would have been convicted at the guilt and special

circumstance phases is well supported by the evidentiary record. Counsel

apparently believed that defendant had little to gain from making the prosecutor

prove his guilt, and that there was some tactical advantage in gaining sympathy for

his client and taking the focus to some extent away from defendant’s crime by

proceeding directly to the penalty phase. Although the strategy ultimately was

unsuccessful, we cannot say that it was an unreasonable decision. More

importantly, nothing in the present record suggests that this strategic decision

would have been altered had defendant been permitted a second attorney.

12

Defendant also claims that the lack of Keenan counsel hampered his ability

to mount a penalty phase defense. Again, the record does not support his

contention. Rather it shows that counsel presented an impressive defense at the

penalty phase, one that included extensive evidence of defendant’s physical and

emotional abuse at the hands of his stepmother, testimony of a number of mental

health professionals who had treated defendant, as well as the testimony of friends

and family regarding defendant’s redeeming qualities and remorse for the crime.

Defendant does not allege otherwise except in conclusory terms. 2

We therefore conclude that even if denial of Keenan counsel was error, it

was not prejudicial.

2. Inadequate Investigative Funds

Defendant contends there was inadequate provision of investigative funds.

The facts are these. On January 17, 1996, counsel requested funds to hire Pat

McGregor, an investigator specializing in penalty phase preparation. He

represented that she was willing to work for $35 per hour, which was higher than

the $20 per hour standard rate for investigators in Kern County at the time. The

trial court, again Judge Oberholzer, reluctantly agreed to compensation at the

higher rate because the case was coming to trial shortly and because there would

be only one attorney on the case. The trial court ordered a total of $7,000 in

investigative funds, some of which had already been allocated to an investigator

hired by the previous counsel, leaving a balance of approximately $4,375.


2

Defendant also argues that even if Judge Oberholzer did not act in excess of

his jurisdiction, he abused his discretion because the case was of sufficient
complexity to require cocounsel. Because, as explained below, we find no
prejudice from the decision to revoke Keenan counsel’s appointment, we need not
reach this question.

13



On April 3, 1996, when counsel submitted a bill for McGregor of $507,

Judge Oberholzer apparently changed his mind, determining that there was no

evidence of special expertise that would justify the higher $35 per hour rate, and

that McGregor would henceforth be compensated at $20 an hour. Counsel offered

to speak with McGregor about her willingness to work at the lower rate but

apparently she stopped work on the case. The next day the trial court authorized

expenses for Counsel Eyherabide himself to travel to Oregon to interview

witnesses. Later, Joe Serrano did some investigative work, primarily the service

of subpoenas and interviews with jurors for the new trial motion discussed below,

for $20 per hour for a total of approximately $1,610. The balance of the

authorized investigative funds went unspent.

Defendant

contends

that

the trial court’s payment rate of $20 an hour made

it impossible to hire a competent death penalty specialist. He claims that this low

rate, combined with the lack of Keenan counsel, prejudicially hampered his

counsel’s ability to uncover and present mitigating evidence at the penalty phase,

and that this violated his right to counsel, due process, equal protection and a

reliable penalty determination. 3


3

Defendant here and for a number of other claims urges that the error or

misconduct he is asserting infringed various of his constitutional rights to due
process and a fair trial. What we stated in People v. Boyer (2006) 38 Cal.4th 412,
441, footnote 17, applies here: “In most instances, insofar as defendant raised the
issue at all in the trial court, he failed explicitly to make some or all of the
constitutional arguments he now advances. In each instance, unless otherwise
indicated, it appears that either (1) the appellate claim is of a kind . . . that required
no trial court action by the defendant to preserve it, or (2) the new arguments do
not invoke facts or legal standards different from those the trial court itself was
asked to apply, but merely assert that the trial court’s act or omission, insofar as
wrong for the reasons actually presented to that court, had the additional legal
consequence
of violating the Constitution. To that extent, defendant’s new
constitutional arguments are not forfeited on appeal. [Citations.] [¶] In the latter


(footnote continued on next page)

14



The right to competent counsel under the federal and state Constitutions

includes the right to “reasonably necessary ancillary defense services.”

(Corenevsky v. Superior Court (1984) 36 Cal.3d 307, 319.) Section 987.9,

subdivision (a) provides among other things that upon the proper showing, funds

will be provided to indigent capital defendants for “payment of investigators,

experts, and others for the preparation or presentation of the defense.” The trial

court is to rule on the reasonableness of the request and “shall be guided by the

need to provide a complete and full defense for the defendant.” (Ibid.) We have

held that failure to seek pretrial investigative funds pursuant to section 987.9 was

one indication that counsel had failed to adequately investigate possible defenses,

requiring reversal in its entirety of a capital judgment. (In re Jones (1996) 13

Cal.4th 552, 565.)

Even if it were true that the unreasonable denial of section 987.9 funds

leading to an inadequate investigation and preparation could constitute reversible

error under some circumstances, a question we do not decide, no such error is

evident from the present record. There is no showing that $7,000 for conducting

the investigation, paid at a $20 per hour rate, was inadequate, or that it was

impossible to hire a competent specialist at that rate. In other words, defendant

fails to show that the trial court acted unreasonably pursuant to section 987.9.

Moreover, inasmuch as defendant’s claim can be understood as one for

ineffective assistance of counsel, based on counsel’s failure to adequately



(footnote continued from previous page)

instance, of course, rejection, on the merits, of a claim that the trial court erred on
the issue actually before that court necessarily leads to rejection of the newly
applied constitutional ‘gloss’ as well. No separate constitutional discussion is
required in such cases, and we therefore provide none.”

15

investigate available defenses because he was unable to do so, it is without merit.

“To find ineffective assistance of counsel a court must determine that counsel’s

performance was deficient, falling ‘ “below an objective standard of

reasonableness . . . under prevailing professional norms” ’ [citations], and that

there is a reasonable probability that ‘ “but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” ’ ” (People v. Kaurish (1990)

52 Cal.3d 648, 677.) Here, counsel himself conducted extensive witness

interviews and, as discussed above, mounted a substantial penalty phase defense.

Defendant contends that additional witnesses could have been produced to testify

to the abuse defendant suffered as a child. But given the quality and quantity of

witnesses testifying for the defense, there is no showing on this record that the

penalty phase defense mounted on defendant’s behalf fell below professional

norms, or that, had more witnesses been produced, it is reasonably probable a

more favorable verdict would have resulted. We therefore deny this claim.

3. Prosecutorial Failure to Give Notice of Aggravating Evidence

Pursuant to Section 190.3

Defendant

contends

the

prosecution failed to provide notice pursuant to the

fourth paragraph of section 190.3, which provides: “Except for evidence in proof

of the offense or special circumstances which subject a defendant to the death

penalty, no evidence may be presented by the prosecution in aggravation unless

notice of the evidence to be introduced has been given to the defendant within a

reasonable period of time as determined by the court, prior to trial. Evidence may

be introduced without such notice in rebuttal to evidence introduced by the

defendant in mitigation.” Defendant contends that the prosecution in fact

affirmatively misled defendant regarding the evidence to be presented, contrary

not only to statute but to due process under the United States Constitution, and that

16

therefore reversal is required. (See Sheppard v. Rees (9th Cir. 1989) 909 F.2d

1234.)

Specifically, defendant contends that the prosecution argued that defendant

committed the murder with premeditation and deliberation, notwithstanding the

fact that defense counsel made clear that defendant was pleading guilty to the

murder on a felony-murder theory, and that the prosecution had acknowledged this

felony-murder theory in the plea colloquy. Defendant was asked to plead, in count

one, that he murdered Breck “willfully, unlawfully, deliberately, with

premeditation and malice aforethought.” During the plea colloquy, defendant’s

counsel stated: “I want to make one other proviso here . . . . As to count one, it

does allege the language of a premeditated murder. My client is pleading guilty

based on the fact that we feel a jury would convict him on the theory that he

committed a felony murder. In other words, there was killing during the

commission of a felony. In fact, all the special circumstances allege that it was

that.” The prosecutor explained that the language of the plea was the “standard

language traditionally used. It does not preclude us from utilizing a felony murder

theory at trial.” Defense counsel then made clear that he was not requesting that

the plea language be changed.

The People contend that defendant did not raise the inadequate notice

argument below and that it is forfeited. Assuming without deciding that

defendant’s claim is properly preserved, we reject it on the merits. Contrary to

defendant’s argument, the prosecution’s premeditation argument was properly

introduced. Evidence about the manner in which Breck’s murder occurred, which

tended to show premeditation, was “evidence in proof of the offense . . . which

subject[s] a defendant to the death penalty” and therefore is not subject to the

notice requirements of section 190.3. Nothing in the above plea colloquy

suggested that the prosecutor was consenting to refrain during the penalty phase

17

from presenting evidence regarding the circumstances of the crime that would

support a theory of premeditation or from arguing to the jury that the murder was

committed with premeditation. In fact section 190.3 specifically authorizes the

prosecutor to present evidence of the circumstances of the crime in aggravation.

There is therefore no violation of section 190.3’s notice requirement, nor is there

any due process or other constitutional violation that would arise from unfair

surprise to defendant or his counsel.

Defendant

also

claims

a violation of the section 190.3 notice requirement

and of his rights under the Fifth, Eighth or Fourteenth Amendments, when the

prosecutor asked defendant’s mother, Jennifer McNees, whether defendant

became “interested in Satanism” at some point in his life. The trial court sustained

counsel’s objection to that question on Evidence Code section 352 grounds, i.e.,

that the probative value of such evidence would be outweighed by its prejudicial

effect. The prosecutor did ask whether defendant at one point listened to a lot of

heavy metal music, and whether defendant ever had a cross hanging upside-down

in his room. McNees answered affirmatively to the first question and “I don’t

recall” to the second. Defendant contends that the prosecution should have given

notice that he intended to present evidence that defendant was involved with

Satanism. Even assuming that the prosecutor’s questions could be viewed as a

violation of the notice requirement, and that the issue is preserved for appeal

notwithstanding defendant’s failure to request a continuance to prepare a response

(see People v. Williams (1997) 16 Cal.4th 153, 241-242), no conceivable prejudice

could have resulted from the above interchange. Counsel’s successful, timely

objection and McNees’s nonresponse to the question regarding the upside-down

18

cross meant the prosecutor was unable to present evidence of defendant’s alleged

interest in Satanism other than a penchant for heavy metal music.4

4. Judicial Error for Indicating During Voir Dire That the Murder

Was Premeditated

The court during voir dire indicated to some prospective jurors that

defendant had committed premeditated murder. One of those prospective jurors,

K.Y., served on the jury. The court told her to bear in mind “that the only time we

talk about a jury making a choice between [the] death penalty and life in prison

without the possibility of parole is where we have a first degree premeditated

murder and one or more special circumstances have either been found true or

admitted as in this case.” Defendant claims judicial error, because, as discussed

above, defense counsel made clear in the plea colloquy that he was pleading guilty

to first degree felony murder and not murder with premeditation and deliberation.

He contends this error violated his right to due process, to counsel, to an impartial

jury and a reliable verdict.

Defendant’s point is well taken. The above quoted statement is incorrect as

a matter of law, because those committing felony murder, without premeditation,

may be eligible for the death penalty. Because defendant did not plead guilty to

premeditated murder, premeditation and deliberation could not be assumed by the

jury, and if used by the prosecution as an aggravating circumstance, would have to


4

In his opening brief, defendant also argues that he did not receive notice of

the victim impact testimony of Amy May, the victim’s niece by marriage, and had
he received adequate notice, he could have lodged a “proper objection” on the
ground that May was not the “next of kin” authorized to make a sentencing
statement pursuant to section 1191.1. Defendant concedes in his reply brief,
however, that respondent is correct that such an objection would have been at odds
with our holding that victim impact evidence is not limited to the testimony of
blood relatives of the victim. (People v. Brown (2003) 31 Cal.4th 518, 573.)]

19

be proved to the jury. Therefore, the trial court’s characterization of the murder as

“premeditated” had the potential of relieving the prosecutor of the obligation to

prove what may have been one of the key pieces of its case in aggravation, thereby

potentially violating defendant’s right to due process. (See Sandstrom v. Montana

(1979) 442 U.S. 510, 520-521; see also People v. Sturm (2006) 37 Cal.4th 1218,

1230-1232 [trial court erred during capital case in stating that premeditation was a

“gimme,” when special verdict form indicated the defendant had been convicted of

felony murder].)

We conclude the error was not prejudicial. The trial court’s remark was

followed by the prosecution’s presentation of evidence of the circumstances of the

crime. That evidence supported a premeditation and deliberation theory, which

the prosecution argued to the jury, particularly based on the fact that defendant

returned to strangle Breck a second time to make sure that she was dead. Defense

counsel argued to the contrary that the evidence showed that “we weren’t dealing

with a real sophisticated, planned-out murder.” The task of K.Y and the other

jurors was ultimately not to decide whether or not defendant acted with

premeditation, but rather whether the aggravating circumstances outweighed the

mitigating ones such that death was the appropriate penalty. It is highly unlikely

that the trial court’s brief voir dire remark labeling the murder as “premeditated,”

would have skewed a juror’s ability to weigh the evidence presented and make an

unbiased penalty determination. We therefore conclude the trial court’s error was

harmless under any applicable standard.

5. Trial Court’s Refusal to Allow Voir Dire on Question of Religious

Affiliation

The jury questionnaire contained a question about whether the prospective

juror attended religious services regularly and about whether religious affiliation

or beliefs would cause “any problem sitting in judgment in a criminal case.”

20

Defense counsel requested a question about the prospective juror’s

“denominational preference,” which the trial court refused, remarking that “I

would be the first to say . . . it is helpful to know that, but also think there are a

couple of cases out there that seem to indicate that’s not appropriate inquiry.”

Defendant contends the trial court abused its discretion in not allowing inquiry

into such preference, thereby violating his rights to due process and a jury trial.

We disagree.

The trial court has considerable discretion in determining the scope of voir

dire. (Code Civ. Proc., § 223; see People v. Carter (2005) 36 Cal.4th 1216, 1250-

1251.) In the present case, the trial court cannot be said to have exercised its

discretion, given its belief, as quoted above, that it had no discretion to permit

inquiry into denominational preference. Although exclusion of a prospective juror

on grounds of religious affiliation is improper (see In re Freeman (2006) 38

Cal.4th 630, 643), it is not necessarily true that inquiry into such affiliation is

forbidden during voir dire. Membership in a particular religious denomination or

sect indicated on a jury questionnaire may alert the trial court and counsel to a

potential bias in favor of or against the death penalty that requires further

exploration at voir dire. (See People v. Catlin (2001) 26 Cal.4th 81, 118

[prospective juror identified himself with a particular denomination that believes

that God is the only person with the right to take someone’s life.].)

It does not follow, however, that a trial court’s refusal to allow a

denominational preference or affiliation question was either erroneous or

prejudicial. In the present case, voir dire included extensive inquiry by the trial

court, the prosecution, and defense counsel into prospective jurors’ attitudes

toward the death penalty. For example, in the case of K.Y., who was eventually

seated on the jury, the trial court asked her, as it did all prospective jurors, whether

she had any “conscientious opinions about the death penalty” that would cause her

21

to vote either automatically for or against the death penalty. When she stated that

she was “spiritually against the death penalty,” the trial court, the prosecutor and

defense counsel asked a number of follow-up questions to clarify her position.

Given this extensive inquiry into prospective jurors’ views on the death penalty,

the trial court was not required to place a question on denominational preference

on the jury questionnaire to be used as a preliminary indication of pro- or anti-

death-penalty bias.

Defendant contends that the refusal to ask such a question was particularly

damaging in the present case because, as explained more extensively below, one

of the jurors, T.F., committed misconduct by reading biblical verses aloud during

deliberations. Of course, the reasonableness of the trial court’s decision must be

considered at the time the decision was made and not with the benefit of hindsight.

Moreover, defendant points to no concrete evidence indicating that such an inquiry

would have led to T.F.’s exclusion from the jury. Nor does he contend that voir

dire regarding T.F.’s death penalty views was inadequate. We therefore conclude

that the trial court did not err in refusing a question on denominational preference.

6. Wheeler/Batson Challenges

Defense counsel objected to the peremptory challenges of three jurors, two

Hispanic and one Black, on the grounds that they were based on race or ethnicity,

and that the jury was the product of invidious discrimination and was not

representative of the community. (Batson v. Kentucky (1986) 476 U.S. 79, 86;

People v. Wheeler (1978) 22 Cal.3d 258, 271-272.) The trial court denied these

objections. Defendant now claims error.

A. Factual

Background

After exercising two uncontested peremptory challenges, the prosecutor

challenged R.R., a Hispanic male. Counsel made a Wheeler motion, citing R.R.’s

22

questionnaire, in which he stated he thought the death penalty was imposed too

seldom. The questionnaire also revealed that R.R. was employed as a machine

operator for a beer distributor, had a wife employed as a substitute teacher and two

young children and was “basically . . .a real mainstream down the middle fair

juror.” Counsel also noted that R.R. had “a couple of DUI’s” but indicated that he

learned his lesson. The trial court noted that R.R. on his questionnaire stated “he

sometimes feels cops have attitudes because he feels they have too much power.”

The court then ruled that the defense had not made a prima facie showing of

discrimination. The court noted that this was the “first Hispanic excused” and that

the court had “observed at least one item that might be of significance to an

attorney.” While finding no prima facie case, the trial court invited the prosecutor

to “make an observation or observations” as to why he excused R.R. The

prosecution declined to do so, stating that it would be “counterproductive” in light

of his understanding of the law.

After the defense exercised its sole peremptory challenge and the

prosecution exercised another unanswered challenge, the defense made a Wheeler

motion to the challenge against C.K., who was a Black male. Counsel stated that

C.K. was a man who appeared to be in his 60’s, an Air Force veteran who did not

have any problem with the death penalty, and had been on a prior jury which had

rendered a guilty verdict. He appeared to be “an extremely neutral fair citizen.”

The trial court again did not find a prima facie showing. The court first observed

that K.Y., a Black woman, had been seated as a juror. He further noted that the

large number of C.K.’s stepchildren and relatives who had been in trouble with the

law and had been in prison, was “a factor that was unique” to C.K.5


5

We note that defendant is Caucasian.

23



After exercising another uncontested peremptory challenge, the prosecution

challenged F.D., an Hispanic male. Defense counsel moved for a mistrial based

on the prosecution’s discriminatory challenges and the “systematic exclusion of

Hispanics from the jury.” He stated that F.D. appeared to be in his late 50’s and

was a postal carrier with children and grandchildren and a great respect for law

enforcement, who expressed the belief that the death penalty was imposed too

seldom. The trial court this time ruled that a prima facie case had been made and

directed the prosecutor to explain the reasons for the challenge. The prosecutor

explained that the prospective juror’s “demeanor and the manner in which he

answers questions struck me as an individual who was indecisive, perhaps did not

understand what he was being asked.” He further stressed that on his

questionnaire it stated that he did not “know if he could impose the death penalty

much.” The trial court denied the motion, noting that his own observations were

in accord with the prosecutor’s, that F.D. appeared to have trouble focusing on

what was being said and coming to grips with the issues, and that there were “long

pauses as he attempted to determine whether or not he could impose the death

penalty.”

B. Legal

Contentions

Defendant contends the trial court erred in finding no prima facie case had

been made with respect to R.R. and C.K. under the principles articulated in

Wheeler and Batson.6

A prima facie case of discrimination in jury selection under federal law

“can be made out by offering a wide variety of evidence, so long as the sum of the


6

Although counsel made no independent motion or objection based on

Batson in the trial court, his Wheeler motions were sufficient to preserve the
Batson claim on appeal. (People v. Yeoman (2003) 31 Cal.4th 93, 117-118.)

24

proffered facts gives ‘rise to an inference of discriminatory purpose.’ ” (Johnson

v. California (2005) 545 U.S. 162, 169.) As we have explained: “[O]ur Wheeler

decision . . . alluded to a ‘reasonable inference’ of group bias as a basis for a prima

facie showing and also called for the defendant to establish a ‘strong likelihood’

that a juror has been peremptorily challenged on the basis of group bias.

(Wheeler, supra, 22 Cal.3d at pp. 280, 281.) Our subsequent decision holding that

both of the quoted terms were essentially the same as the Batson standard, and that

a prima facie showing called for a demonstration that it was ‘more likely than not’

that group bias accounted for the challenge, was disapproved in Johnson, supra,

[545 U.S. at pp. 165-167, 173] (reversing People v. Johnson (2003) 30 Cal.4th

1302).” (People v. Cornwell (2005) 37 Cal.4th 50, 73.) In cases in which the trial

court found no prima facie showing of discrimination in jury selection, and it is

unclear what standard the trial court employed in making its determination, we

have reviewed the record independently to discern whether a prima facie showing

has been made under the proper “inference of discriminatory purpose” standard.

(See id. at pp. 71-74; People v. Avila (2006) 38 Cal.4th 491, 553-554.)

As to Prospective Juror R.R., we conclude the trial court did not err in

determining a prima facie case had not been made. Although R.R was presumably

a member of a cognizable racial or ethnic group, there was nothing else to indicate

group bias. At the time his removal was challenged, he was the only Hispanic

prospective juror to have been considered. His expressed sentiment of skepticism

toward the police and his two DUI misdemeanor convictions prosecuted by the

same office that was trying this case, one of which was approximately five years

before the trial, serve as neutral bases for the peremptory challenge.

It is true that defendant’s challenge may be somewhat stronger when the

challenge is viewed in light of the subsequent challenge to another Hispanic juror,

F.D.. However, as we have recently held, a trial court has no sua sponte duty to

25

reexamine rulings on previous Wheeler/Batson motions once it determines that a

prima facie case has been made as to one juror. (People v. Avila, supra, 38

Cal.4th at p. 549.) Defendant did not request that the trial court revisit R.R’s

challenge after the court had found a prima facie case of discrimination in the F.D.

challenge, and we review whether the trial court’s decision was correct at the time

it was made and not in light of subsequent events. Moreover, even if the trial

court had been asked to revisit the R.R. challenge, we find no basis for concluding

that its determination would have been different. The prosecution’s reasons for

excusing F.D. based on his demeanor and his hesitation regarding his ability to

impose the death penalty were strongly confirmed by the trial court’s own

independent observations, as discussed above. Therefore the challenge to F.D.

would have added little to defendant’s Wheeler motion with respect to the R.R.

challenge.7

We also conclude that the trial court did not err in finding no prima facie

case with respect to the challenge of Prospective Juror C.K. As discussed, a

significant number of his stepchildren and blood relatives had been in trouble with

the law and had been to prison, and he stated that “I have so many relatives that

have been in and out of court . . . I would have to have four or five pages to write

down . . . the different trials that they went through.” At least some of them had

been involved in the Kern County criminal justice system. One of his stepchildren

had been prosecuted for rape by the Kern County District Attorney’s Office

approximately three or four years before the present trial took place, a prosecution

that resulted in an acquittal. C.K. had personally been involved in helping some of


7

Because the challenge to F.D. appears to have been well founded, we also

reject defendant’s additional contention that the prosecutor’s reasons for
challenging F.D. were insufficient.

26

his relatives through the criminal justice system. The above taken together

constitutes a substantial race-neutral basis for a peremptory challenge. Moreover,

he was the only prospective Black juror peremptorily challenged, and at the time

of the challenge a Black woman had been seated on the jury. The subsequent

seating of another Black juror reinforces our confidence that the trial court did not

err in ruling that defendant had not carried his burden of making a prima facie case

of discrimination.

Defendant also contends that comparative analysis of prospective minority

jurors subject to peremptory challenge and seated White jurors demonstrates the

prosecution’s discriminatory intent. Assuming without deciding that appellate

courts are obliged to undertake comparative analysis in the present case (see

Miller-El v. Dretke (2005) 545 U.S. 231, 241; People v. Avila, supra, 38 Cal.4th at

p. 546), we disagree that the comparative analysis that defendant presents in this

court assists his case. Defendant points to three jurors who had some supposedly

comparable experience with law enforcement or involvement in the criminal

justice system. Prospective Juror L.J. had a son who had been convicted of a

marijuana-related misdemeanor. L.J. did not have nearly as extensive a family

involvement in the criminal justice system as did C.K., and did not express a

negative attitude toward law enforcement officers as did R.R.. Another juror,

E.G., had had a daughter-in-law whose brother was convicted of murder but,

unlike C.K., the juror did not appear to have any connection to the case or attend

court proceedings.

A closer question is presented by Juror S.M. S.M.’s husband was a witness

in the highly publicized murder trial of Patrick Dunn, which was the subject of a

book, Mean Justice, by Edward Hulme that was highly critical of the prosecutor in

this case, District Attorney Ed Jagels, and the criminal justice system in Kern

County. S.M. stated she felt that “there were some things that weren’t properly

27

brought out” by the prosecution, which would have led to more a favorable result

for Dunn. Therefore S.M., unlike C.K., came away from her experience with the

Kern County criminal justice system with a belief that the prosecution, and in all

likelihood the prosecutor in the present case, had been unfair to a defendant, and in

particular a murder defendant. S.M. did profess that this experience would not

affect her ability to be a fair juror on a murder trial, but so did C.K. Unlike R.R.,

she had not been recently prosecuted by the Kern County District Attorney, but

neither had C.K. On the other hand, S.M.’s husband was a witness in a Kern

County trial, whereas some members of C.K.’s family had been defendants.

Although it is difficult to explain on the cold record and without the benefit

of having heard the prosecutor’s reasons for the peremptory challenge of C.K.,

why S.M. was seated and C.K. was not, we do not believe this difficulty should be

a basis for concluding there was prima facie case that a Wheeler/Batson violation

had been committed. Our confidence in the results of appellate comparative

analysis is somewhat diminished when there is a “lone questionable peremptory

challenge” and the record reveals “a sound, objectively plausible basis” for the

challenge. (People v. Jackson (1996) 13 Cal.4th 1164, 1254 (conc. opn of Mosk,

J.) (Jackson).) Moreover, C.K. was the only Black juror to be peremptorily

challenged: (Cf. Miller-El v. Dretke, supra, 545 U.S.231, 241 [125 S.Ct. 2317,

2325] [10 Black prospective jurors struck and one on panel].) Although, to be

sure, a Wheeler/Batson violation may occur with a single discriminatory

challenge, when as here there is a legitimate basis for dismissing the prospective

juror and no pattern of discrimination appears as to Black jurors, a court should be

hesitant to infer a Wheeler/Batson violation when comparative analysis raises

questions as to a single prospective juror, particularly “given the legitimate role

that subjective factors may have in a prosecutor’s decision” to challenge or not

challenge jurors peremptorily. (Jackson, supra, at p. 1254 (conc. opn. of Mosk,

28

J.).) We therefore conclude that there was no prima facie case that a

Wheeler/Batson violation was committed in excluding C.K.

7. Erroneous Admission of Aggravating Evidence

Defendant claims that several pieces of aggravating evidence were

erroneously introduced at the penalty phase, in violation of his rights under the

Eighth and Fourteenth Amendments of the United States Constitution. We will

consider each of these in turn.8

A. Admission of the Anonymous Phone Calls

First, defendant claims there was insufficient foundation to hold him

responsible for several late-night phone calls made the night before the murder to

the Breck residence, in which the caller hung up immediately after the phone was

answered. He claims that these phone calls tended to buttress the prosecutor’s

contention that defendant planned and premeditated the murders.

Evidence Code section 403 states in pertinent part: “(a) The proponent of

the proffered evidence has the burden of producing evidence as to the existence of

the preliminary fact, and the proffered evidence is inadmissible unless the court

finds that there is evidence sufficient to sustain a finding of the existence of the

preliminary fact, when: [¶] . . . [¶] (4) The proffered evidence is of a statement

or other conduct of a particular person and the preliminary fact is whether that

person made the statement or so conducted himself.” Here, the trial court did not

err in admitting the evidence. The day before the phone calls, defendant had


8

In his opening brief, defendant contended that it was error to admit the

victim impact testimony of Amy May, the victim’s niece by marriage, because she
was not a blood relative. Defendant acknowledges in his reply brief that we have
already rejected this limitation on victim impact testimony. (People v. Brown,
supra, 31 Cal.4th 518, 573.) Defendant asks us to reconsider our holding in
Brown, but provides no persuasive reason for doing so.

29

stolen Breck’s wallet, and although not clear from the record, the wallet may have

contained a card or document with Breck’s unlisted number. Defendant

burglarized Breck’s home and raped and murdered her the following day. The

jury may reasonably have inferred that defendant made those calls. Moreover,

evidence of the calls touched only tangentially on the question of defendant’s

mental state at the time of the crimes, and therefore their admission, if error,

would have been harmless by any applicable standard.

B. Admission of Location of Johnson and Glass Burglaries

The prosecution sought to admit under section 190.3, factor (b) evidence of

three burglaries that had occurred shortly before the murders, as showing “[t]he

presence . . . of criminal activity by the defendant which involved the use or

attempted use of force or violence or the express or implied threat to use force or

violence.” The trial court initially excluded evidence of the circumstances of two

of these crimes, the burglaries at the Johnson and Glass residences, although it

allowed the fact of his conviction for these burglaries to be admitted under section

190.3, factor (c). At the close of the trial, just prior to instructing the jury,

however, the trial court ruled that evidence of defendant’s convictions for these

burglaries was not admissible under factor (c), because convictions are only

admissible under this section if they predate the murder or murders with which a

defendant is charged. (People v. Scott (1997) 15 Cal.4th 1188, 1223.) Because

the convictions for these burglaries were contemporaneous with defendant’s

murder conviction, they were therefore not admissible as prior felony convictions.

The trial court also ruled, however, that evidence of the Johnson and Glass

burglaries was still properly admitted under section 190.3, factor (a), the

circumstances of the crime, because they tended to show defendant’s state of mind

30

as someone in trouble with the law seeking to find the means to get away, at the

time the murder was committed.

Notwithstanding the initial limitations on the presentation of the evidence

regarding the Johnson and Glass burglaries, the prosecutor, during the opening

statement, showed the jury a map of where the various burglaries occurred and

divulged the locations of the Johnson and Glass burglaries. Counsel eventually

objected and the trial court sustained the objection, not allowing the prosecutor to

complete this part of his presentation. Defendant contends disclosure of the

location of these burglaries was prejudicial error, resulting in violations of his

right to due process, to counsel, and to an impartial jury.

The trial court’s exclusion of the circumstances of the Johnson and Glass

burglaries was based on the erroneous belief that such burglaries were only

admissible to the extent allowed under section 190.3, factor (c), rather than factor

(a). It is unclear what limitations if any would have been placed on the admission

of such evidence if it had been admitted under factor (a). But even assuming

error, no prejudice resulted. Defendant contends that the fact these burglaries,

together with the Elliott burglary, which was admitted into evidence, and the

Breck burglary/murder, were in the same location supported the prosecution’s

premeditation theory. In fact the evidence of the location of the burglaries was at

best only incidentally connected to the prosecution’s theory of defendant’s mental

state. We conclude that divulging the location of these burglaries was harmless

under any applicable standard.

C. Admission

of

Circumstances of the Elliott Burglary

Defendant

contends

that evidence of the Elliott burglary was erroneously

admitted under section 190.3, factor (b). After defense counsel objected before

trial to the admission of evidence of that burglary, the prosecution made an offer

31

of proof, indicating that defendant used a knife to gain access to the house, that he

stole a number of guns from the Elliott residence, and that the Elliotts’ adult

daughter returned to the house apparently while defendant was inside, although

there was no direct contact between them. The trial court concluded that the

evidence should be admitted, stating that there was “a fair inference that there is

an implied threat to use force or violence.”

At trial, the Elliotts’ daughter, Brandie Barnden, testified that she returned

to the Elliott house around 10:45 a.m. after having been at school, and noticed that

there were several matchbooks on the floor, that the garage door was not locked,

and that the door from the garage to the back yard was open. When she entered

her parents’ bedroom to listen to messages on the answering machine, something

caught her eye like the movement of a shoe, but she believed her mind was

playing tricks on her. When she telephoned her mother shortly thereafter, she

thought someone else was on the line, which caused her to leave the house and call

the police. Barnden’s father, Joe Elliott, subsequently reported several missing

guns and his fishing tackle. Most of the guns were recovered in a duffel bag

approximately 150 yards from the Elliott house, but a .38-caliber special handgun

was found on defendant.

Defense counsel move to strike evidence concerning the Elliott burglary,

contending it did not meet the criteria of section 190.3 for violent criminal

activity, and that this case was distinguishable from one in which we had admitted

burglary evidence, People v. Clair (1992) 2 Cal.4th 629, 672-678 (Clair). The

trial court denied the motion, stating that the fact that there was a “potential

confrontation with a[n] armed burglar” made the situation “fraught with the

potential for violence.” Defendant claims the trial court erred.

In

Clair, the evidence showed that the defendant broke into a woman’s

then-unoccupied apartment, that he was captured lying in the woman’s bed in his

32

underwear, and had brought a butcher knife with him that was found in the

bathroom. (Clair, supra, 2 Cal.4th at pp. 673-674.) We affirmed the trial court’s

holding that the evidence was appropriately admitted under section 190.3 as

criminal activity employing force or violence. “There was an implied threat. The

reasonable inferences are these. Aware of the presence of those who came to the

apartment in response to his arrival, defendant took up the knife in the kitchen

against their imminent entry. He did so in order to avoid apprehension and make

good his escape. Certainly, his purpose was not to employ the weapon simply to

facilitate the taking of property: he evidently came equipped with a screwdriver to

that end. Not only did he take up the knife, but he also carried it around the

apartment as he seemingly readied himself for action. Apparently deciding at the

last moment not to risk a physical confrontation but to try to lie himself out of

trouble, he cast the weapon away before he actually put it to use. Thus, he chose

not to follow through. But he did not, and could not, undo what he had already

done. He made an implied threat to use the knife against anyone who might

interfere.” (Clair, supra, 2 Cal.4th at pp. 676-677.)

Defendant argues that in this case, unlike in Clair, there was no evidence

defendant was readying himself to commit violence and then abandoned the plan.

Whether or not the trial court erred in admitting evidence of the Elliott burglary,

we conclude that the error was not prejudicial. The facts of the burglary were not

particularly gruesome. Indeed, the very characteristics of the burglary that make

the question of its admissibility close, i.e., that defendant did not enter the house

with intent to commit violence, and that no violence resulted, undermine the

notion that the jury would have been swayed toward a death sentence by

knowledge of the facts of the burglary. In light of the other aggravating evidence

against defendant ⎯ the circumstances of the crime emphasized by the prosecutor,

as well as the properly admitted evidence about the burglary convictions ⎯ we

33

conclude that the admission of the facts about this arguably nonviolent burglary

was harmless by any applicable standard.

D. Admission of Evidence of Premeditation and Sodomy

Defendant claims evidence that the murder was premeditated and that he

sodomized Breck should not have been admitted, because he did not plead to

either premeditated murder or to sodomy. As discussed above, section 190.3

explicitly permits evidence regarding the circumstances of the crime, including the

circumstance that the murder may have been premeditated, during the penalty

phase, and nothing in the plea agreement precluded such admission. So, too,

nothing in the plea agreement prevented admission of evidence that defendant

sodomized Breck, as Detective Legg testified defendant had admitted shortly after

his arrest.

8. Exclusion of Tape Recording and Video Recording Showing

Remorse

Defendant made a statement to Detective Legg about five hours after he

was arrested. He confessed to the murder, and claimed he did not know what had

happened and “went crazy all of a sudden.” He also apparently cried during the

confession. The confession was tape-recorded. Defendant made a second

confession shortly thereafter at the police station, which was not tape-recorded or

transcribed, in which he claimed to have “blacked out,” regaining consciousness

only after the murder. Defendant gave a third interview approximately 24 hours

later, in which he confessed to the crime in detail, abandoning any suggestion that

he “blacked out.” The prosecutor sought to admit the tape and transcripts of this

third interview into evidence, but sought to exclude the tape and transcript of the

first interview, which he opposed because it was exculpatory hearsay. The trial

court agreed, over defense counsel’s objection. Counsel sought to admit the tape

to make clear to the jury that defendant experienced remorse shortly after he had

34

committed the crime. Defendant now claims the trial court erred in excluding the

recording of the first interview and that this error violated his rights to due

process, a fair sentencing hearing, and a reliable penalty phase determination as

guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United

States Constitution.

“A trial court’s decision to admit or exclude evidence is reviewable for

abuse of discretion.” (People v. Vieira (2005) 35 Cal.4th 264, 292.) “[A]

defendant’s due process rights are violated when hearsay testimony at the penalty

phase of a capital trial is excluded, if both of the following conditions are present:

(1) the excluded testimony is ‘highly relevant to a critical issue in the punishment

phase of the trial,’ and (2) there are substantial reasons to assume the reliability of

the evidence.” (People v. Kaurish, supra, 52 Cal.3d at p. 704, quoting Green v.

Georgia (1979) 442 U.S. 95, 97.)

Defendant argues that his crying during the first interview was not hearsay

and should therefore have been admitted. We considered a similar situation

recently in People v. Jurado (2006) 38 Cal.4th 72, in which the defendant claimed

that his sobbing and other emotional conduct depicted on a videotaped

interrogation with the police was admissible nonhearsay. As we stated:

“Defendant is correct that, by themselves, defendant’s emotional displays were

nonassertive conduct, and thus not within the hearsay rule. . . . [¶] But the

defense sought to introduce more than just evidence of the emotional displays

themselves. To explain the significance of the emotional displays, and particularly

defendant’s statement that as a result of the murder he had received an ‘injury

from [his] conscience,’ the defense sought to introduce the statements defendant

made during the videotaped interview. As defendant must concede, those

statements, including assertions and descriptions of his own feelings and other

mental states, were hearsay. . . . As the trial court correctly determined, the

35

circumstance that defendant made his statements during a postarrest police

interrogation, when he had a compelling motive to minimize his culpability for the

murder and to play on the sympathies of his interrogators, indicated a lack of

trustworthiness. In past decisions, we have upheld the exclusion of self-serving

postcrime statements made under similar circumstances.” (People v. Jurado,

supra, 38 Cal.4th at pp. 129-130.)

In the present case, as in Jurado, defendant’s nonassertive conduct was

intertwined with statements he made designed to minimize his culpability, e.g.,

that he went “crazy all of a sudden,” thereby tending to disavow that he committed

the murder with premeditation. We conclude that the trial court did not abuse its

discretion in excluding the taped interview containing such self-serving

statements.

Defendant

contends

that

the tape recording should have been admitted as a

spontaneous utterance. Although defendant did not explicitly seek to admit the

evidence on those grounds at trial, he argued when pressing his Green v. Georgia

claim that in effect the statement was particularly reliable because it was

spontaneous. The trial court did not abuse its discretion in implicitly rejecting that

contention. “Evidence Code section 1240 provides, in pertinent part, that evidence

is ‘not made inadmissible by the hearsay rule’ if it ‘[p]urports to narrate, describe,

or explain an act, condition, or event perceived by the declarant’ (id., subd. (a)),

and it was ‘made spontaneously while the declarant was under the stress of

excitement caused by such perception.’ (Id., subd. (b).) ‘The crucial element in

determining whether a declaration is sufficiently reliable to be admissible under

this exception to the hearsay rule is . . . not the nature of the statement but the

mental state of the speaker. The nature of the utterance ⎯ how long it was

made after the startling incident and whether the speaker blurted it out, for

example ⎯ may be important, but solely as an indicator of the mental state of the

36

declarant. . . . [U]ltimately each fact pattern must be considered on its own merits,

and the trial court is vested with reasonable discretion in the matter.’ ” (People v.

Roybal (1998) 19 Cal.4th 481, 516.) Here, the trial court did not abuse its

discretion in concluding that defendant’s somewhat self-serving statements made

several hours after the murder did not qualify as a spontaneous utterance.

Defendant also claims the tape recording should have been admitted under

Evidence Code section 356, contending that because the court admitted the third

interview, it was obliged to also admit the first interview, a contention the trial

court rejected. Section 356 provides: “Where part of an act, declaration,

conversation, or writing is given in evidence by one party, the whole on the same

subject may be inquired into by an adverse party; when a letter is read, the answer

may be given; and when a detached act, declaration, conversation, or writing is

given in evidence, any other act, declaration, conversation, or writing which is

necessary to make it understood may also be given in evidence.” “The purpose of

this section is to prevent the use of selected aspects of a conversation, act,

declaration, or writing, so as to create a misleading impression on the subjects

addressed. [Citation.] Thus, if a party’s oral admissions have been introduced in

evidence, he may show other portions of the same interview or conversation, even

if they are self-serving, which ‘have some bearing upon, or connection with, the

admission . . . in evidence.’ ” (People v. Arias (1996) 13 Cal.4th 92, 156.) In the

present case, the trial court did not abuse its discretion in concluding that

admission of the third interview did not require admission of a different interview,

and that no misleading impression was created by admitting one without the other.

Finally, defendant claimed the trial court erred in failing to admit a

videotape of his interview with a television reporter some 72 hours after his arrest,

in which he expressed remorse for the crime and extended condolences to the

victim’s family. The trial court did not abuse its discretion in concluding that the

37

videotape did not pass muster under Green v. Georgia, inasmuch as there is no

substantial reason for believing that defendant’s postarrest statement to the media

was particularly reliable.

9. Improper Exclusion of Mitigating Evidence

Defendant argues that various pieces of mitigating evidence were wrongly

excluded in violation of his United States Constitution Fifth, Sixth, Eighth, and

Fourteenth Amendments rights. Each of these claims will be considered in turn.

A. Evidence of Mistreatment by Defendant’s Father

On direct examination Jennifer McNees, defendant’s mother, when asked

why she and her then husband Bob Williams, Sr., had moved out of his parents’

house soon after their marriage, replied that it was “not a good situation.” When

asked to elaborate, the prosecution objected. In chambers, counsel responded that

he intended to ask about fights between McNees and Bob Williams, Sr., when

defendant was very young, and in particular about an incident in which Williams,

Sr., punched McNees in the stomach while she was pregnant with defendant. The

prosecutor objected that incidents that did not occur in defendant’s presence or

occurred when he was so young that he would not have a memory of them should

be excluded. The court ruled that testimony regarding the punching incident

would be excluded unless the defense was prepared to offer some foundational

medical testimony that defendant was injured as a result. The trial court also

ruled, however, that testimony of violence that occurred in defendant’s presence

even at a young age would be admissible. Defendant contends the trial court erred

in not allowing evidence that defendant’s father punched his mother when she was

pregnant with defendant.

The Eighth Amendment to the United States Constitution requires that a

capital jury not be precluded from “considering, as a mitigating factor, any aspect

38

of a defendant’s character or record and any of the circumstances of the offense

that the defendant proffers as a basis for a sentence less than death.” (Lockett v.

Ohio (1978) 438 U.S. 586, 604, fns. & italics omitted.) Nonetheless, the trial

court still “ ‘determines relevancy in the first instance and retains discretion to

exclude evidence whose probative value is substantially outweighed by the

probability that its admission will create substantial danger of confusing the issues

or misleading the jury.’ ” (People v. Cain (1995) 10 Cal.4th 1, 64.) Defendant

argues on appeal that the punching incident would have shown that defendant was

an unwanted child, and the father, as well as the stepmother, neglected and abused

defendant. Defense counsel did not advance that theory of admissibility at trial,

nor is the act of violence toward the pregnant mother particularly probative of the

father’s subsequent conduct toward the child after he was born. Moreover, there

was considerable evidence that defendant’s father did not have a good relationship

with defendant. We conclude that the trial court did not abuse its discretion in

excluding this testimony, and, even if it had, the error would have been harmless

under any applicable standard.9

B. Evidence

of

Accommodation of Sexual Abuse

Evidence was presented that defendant may have been sexually abused, as

well as physically and emotionally abused, by his stepmother. Some of the

testimony came from Vahid Sadeghi, a marriage, family and child therapist who

had worked with and examined defendant at age 16 when the latter was in a group

home for adolescents on probation for minor crimes. He testified that defendant


9

Defendant also contends conclusorily that the trial court erred in upholding

the prosecution’s objection to a question asked of social worker Joan Nelson about
defendant’s father’s reaction to the news that defendant was to be moved to
California to live with his mother. The exclusion of evidence of such a tangential
matter was not error.

39

had told him that his stepmother asked him to take off his clothes and lay in bed

before she hit him, which raised a “red flag” for Sadeghi that sexual abuse may

have occurred. Defendant denied to Sadeghi that such abuse had occurred.

Sadeghi testified that some children do not reveal to him that they have been

molested, but when asked if he believed defendant’s denial, the prosecution

objected to the question as calling for speculation, which the trial court sustained.

Later, forensic psychologist Eugene Couture testified that according to various

studies, only 2 percent of sexual abuse within families is reported.

Defendant claims the trial court committed error in sustaining the objection

to the defense counsel’s question. We disagree. Contrary to defendant’s

assertion, the exclusion of Sadeghi’s answer to the above question did not

undermine defendant’s ability to make the case that he had been the victim of

sexual abuse notwithstanding his earlier denials. The trial court acted within its

discretion in disallowing a question that required the witness to speculate about the

truth of defendant’s denial of sexual abuse, while allowing evidence that such

denial is common, permitting defendant to adequately make his case that the

denial was untrue.

C. Other

Evidence

Defendant contends the trial court erred in excluding testimony by

defendant’s girlfriend, Tina Meagher, that defendant had told her to move on with

her life and to marry someone who would adopt their child. The trial court ruled

such testimony was inadmissible hearsay. Defendant argues on appeal that the

evidence should have been admitted following Green v. Georgia, supra, 442 U.S.

95. As discussed above, under Green hearsay may be admitted at the penalty

phase of a capital trial if it is “highly relevant to a critical issue in the punishment

phase of the trial,” and “substantial reasons existed to assume its reliability.” (Id.

40

at p. 97.) Defendant does not explain why either Green factor applies. Moreover,

nothing prevented defendant from retaking the stand to testify about this

statement. The claim therefore fails.

Defendant also claims error at the exclusion of a letter he had written his

mother as a child, which purported to show that defendant’s mother did not want

to visit her son. There was abundant evidence in the record that defendant’s

mother neglected and did not visit him. The exclusion of the letter, even if error,

was not prejudicial under any applicable standard.

The trial court also excluded a letter written by Irma Williams, defendant’s

grandmother, when defendant was around 16 years old, which stated that he could

come live with her. Defendant argues the letter was relevant for showing that his

placement with his mother was inadequate and his grandmother was offering him

a better alternative that he was never able to take advantage of. The trial court

concluded that the letter was not relevant to any issue in the case, that it was

written long after that placement, and that Irma Williams had already testified to

the substance of what was in the letter and had even read portions of the letter into

the record. We conclude the trial court did not abuse its discretion in excluding

the letter.

10. Prosecutorial Conduct During Defendant’s Testimony Regarding

Sexual Abuse

On direct examination, defendant was asked if his stepmother had sexually

molested him and he replied that she had. At that point, apparently, the prosecutor

reacted in some visible and audible way to defendant’s answer. Defense counsel

asked for a hearing outside the presence of the jury. The trial court did not grant

the request, but directed the prosecutor “not to make any other noises at his table.”

At the next opportunity outside the presence of the jury, defense counsel

moved for a mistrial based on the prosecutor’s previous conduct. He stated: “I

41

couldn’t actually see what counsel did but it had the sound as if he had just

dropped a binder or kind of flipped a notepad. But kind of like in disgust he threw

something and it was very audible to me . . . . I think he was trying to send a

message to the jury that he personally thinks that [defendant’s testimony was]

untrue. And that’s the only message I think that you could get from that reaction.”

Counsel also argued that the prosecutor, Edward Jagels, the Kern County District

Attorney had “a lot of stature in this community” and “when he does something

like that, I think it has a lot of influence over jurors.”

The prosecutor stated that he had dropped a yellow pad he was holding on a

binder, that the sound made was quite soft, and that he did so out of surprise

because he had had no previous information about defendant’s claims of

molestation.

The court denied the motion for the mistrial, stating: “What I observed was

essentially what [defense counsel] has described, that counsel slammed down

something, [it] wasn’t super loud, and rolled his eyes. And Mr. Jagels, you know

that’s inappropriate in front of the jury. I don’t want it to happen again.”

Defendant contends that the denial of this motion was in error, and violated his

Eight and Fourteenth Amendment rights to a fair penalty trial and reliable penalty

determination.

As the trial court’s comments indicate, the prosecutor’s behavior was

inappropriate. (See People v. Hill (1998) 17 Cal.4th 800, 834 [prosecutor audibly

laughing in the middle of defense counsel’s examination of various witnesses is

misconduct].) But such conduct does not necessarily require a declaration of a

mistrial. “Whether a particular incident is incurably prejudicial is by its nature a

speculative matter, and the trial court is vested with considerable discretion in

ruling on mistrial motions.” (People v. Haskett (1982) 30 Cal.3d 841, 854.) “A

trial court should grant a mistrial only when a party’s chances of receiving a fair

42

trial have been irreparably damaged, and we use the deferential abuse of discretion

standard to review a trial court ruling denying a mistrial.” (People v. Bolden

(2002) 29 Cal.4th 515, 555.)

We conclude the trial court did not abuse its discretion in denying the

motion for a mistrial. The trial court was in the best position to gauge the exact

nature of the prosecutor’s conduct and its likely effect on the jury. Nothing in the

record undermines the trial court’s implicit conclusion that the prosecutor’s brief

episode of inappropriate conduct did not irreparably damage defendant’s chance of

receiving a fair trial.

11. Prosecutorial Misconduct in Presenting Time and Place of Previous

Burglaries

As discussed in part 7, we reject defendant’s contention that there was

prejudicial error in disclosing the location of the Johnson and Glass burglaries.

Defendant also claims prosecutorial misconduct in such disclosure, in violation of

his rights under the Eighth and Fourteenth Amendments. We reject that claim as

well. As explained above, the exclusion of the location of the burglaries was

based on the trial court’s initially erroneous belief that such burglaries were only

admissible as prior convictions under section 190.3, factor (c), rather than under

factor (a). In any case the mention of these locational facts to the jury was not

prejudicial under any applicable standard. We come to the same conclusion with

regard to the prosecutor’s statement that defendant took long walks to “case” the

houses in which the burglaries took place.

12. Other Prosecutorial Misconduct Claims

Defendant makes three other prosecutorial misconduct claims, which we

consider in turn.

43

A. Questions about Satanism

As recounted above in part 3, the prosecution asked defendant’s mother

Jennifer McNees if defendant became “interested in Satanism” at some point in his

life. The trial court sustained counsel’s objection to that question on Evidence

Code section 352 grounds, i.e., that the probative value of such evidence would be

outweighed by its prejudicial effect. The prosecutor did ask whether defendant at

one point listened to a lot of heavy metal music, and whether defendant ever had a

cross hanging upside down in his room. McNees answered affirmatively to the

first question and “I don’t recall” to the second. Defendant claims misconduct,

contending that the prosecution asked about defendant’s association with Satanism

without any good faith belief that such evidence existed in order to plant a seed in

the jury’s mind that there was such association. The record does not indicate bad

faith on the prosecutor’s part. Rather, a probation report revealed defendant’s

interest in heavy metal music and that he at one point had an upside-down cross in

his room. Furthermore, McNees refused to speak to the prosecution. The

prosecution legitimately sought to counter defense evidence that painted defendant

in a sympathetic light with questions designed to probe the probation report

material. Although the trial court sustained the objection to the prosecution’s

question regarding Satanism, the question itself did not rise to the level of

misconduct, nor did the follow-up questions regarding the upside-down cross or

heavy metal music.

B. Gang

Involvement

The prosecutor also asked McNees: “During the time that Bob lived with

you, did you notice any conduct on his part having to do with gangs?” She

answered, “No, sir.” Defendant again claims the prosecution asked the question in

bad faith to tarnish the jury’s view of defendant. Nothing in the record indicates

44

that the prosecution, who had had no previous access to McNees, was asking the

question in bad faith. Nor can be it said that the question itself, followed by the

negative response, was prejudicial to defendant’s case.

C. Questioning Regarding Premeditation

The prosecution asked defendant during cross-examination whether he had

initially lied to the police about the Breck burglary that had occurred the day

before the murder because the burglary would have made the murder seem more

premeditated. Defendant replied in the negative and stated only that he did not

want to admit the burglary to the police. Defendant now contends that the

prosecution committed misconduct by questioning him about premeditation,

because he had pleaded guilty only to first degree felony murder and not

premeditated murder. As explained above in part 3, nothing in the plea agreement

restricted the prosecution’s ability to present evidence of the circumstances of the

crime, including evidence of premeditation. There was no misconduct.

13. Jury Instructions About Premeditation and Impaired Capacity

Defendant claims the trial court should have instructed the jury sua sponte

on the issue of premeditation and deliberation, because whether or not defendant

committed premeditated murder, or nonpremeditated felony murder as he

professed in his plea, was a critical issue at the penalty phase. He contends this

failure to instruct violated his due process rights under the Fourteenth

Amendment.

The trial court is required to instruct on general principles of law relevant to

the case. (People v. Breverman (1998) 19 Cal.4th 142, 154.) In the present case,

the jury was not required to make a determination on premeditation and

deliberation. Indeed, a capital jury during the penalty phase is neither statutorily

authorized nor constitutionally required to make any findings regarding the factors

45

in aggravation and mitigation. (See People v. Vieira, supra, 35 Cal.4th at p. 303.)

Instead, it is required only to weigh aggravating and mitigating evidence,

including the circumstances of the crime, in order to arrive at a penalty

determination. There is no reason why the jury should have had to view evidence

about how the murder took place through the filter of a legal definition of

premeditation and deliberation in order to make its penalty determination. The

lack of a premeditation instruction was not error.

Defendant also claims the trial court should have elaborated on section

190.3, factor (h), which states that the jury must consider “[w]hether or not at the

time of the offense the capacity of the defendant to appreciate the criminality of

his conduct or to conform his conduct to the requirements of law was impaired as

a result of mental disease or defect, or the affects of intoxication.” Defendant

argues that the trial court should have given an instruction, sua sponte, that would

have made clear that the impairment referred to in the above instruction

specifically could impair the defendant’s ability to deliberate. Again, because the

jury was not required to find whether or not defendant had deliberated, such an

instruction focusing on deliberation was not required or, in fact, appropriate.

Defense counsel at trial also requested an instruction elaborating on section

190.3, factor (h), and defendant on appeal contends it was error not to deliver at

least part of that instruction. The portion of the requested instruction that

defendant contends should have been delivered stated: “Mental or emotional

disturbance may result [from] any cause or may exist without apparent cause. For

this mitigating circumstance to exist, it is sufficient that . . . the defendant’s mind

or emotions were disturbed, that is, interrupted or interfered with, [from] any

cause whether [from] consumption of drugs, mental illness, or other cause, and

that he was under the influence of that disturbance when he killed Ms. Breck. A

person would be under the influence of a mental or emotional disturbance if a

46

mental or emotional condition existed which included [sic] his conduct so as to

make it different than it otherwise would have been. [¶] So if you are satisfied

from the evidence that at the time of the murder of Ms. Breck, the defendant was

under the influence of [a] mental or emotional disturbance, from any cause, it

would be your duty to find this as a mitigating circumstance.”

We find nothing in the above rather confusing instruction that would have

clarified the instruction already given pursuant to section 190.3, factor (h). The

trial court did not err in refusing such instruction.

Defendant also claims the trial court erred in failing to instruct sua sponte

according to CALJIC No. 2.02 regarding the use of circumstantial evidence to

prove whether or not defendant possessed a particular mental state. That

instruction is intended for a jury that is required to find a mental state as an

element of a crime. (See People v. Cole (2004) 33 Cal.4th 1158, 1222.) As

explained above, the jury was not required to find at the penalty phase that

defendant possessed a particular mental state during the murder, such as

premeditation and deliberation. The trial court did not err in failing to give this

instruction.

14. Failure to Give Reasonable Doubt Instruction with Respect to

Sodomy Evidence

As discussed, defendant did not plead guilty to the sodomy special

circumstance; although he initially told Detective Legg he had sodomized Breck,

he recanted that confession. During the penalty phase, the prosecutor introduced

evidence of defendant’s confession of sodomy and argued to the jury that

defendant had in fact sodomized Breck. The trial court instructed the jury with a

modified CALJIC No. 2.01 instruction that before the jury could consider the

Elliott burglary “to be a criminal act involving an implied threat of force or

violence, it must determine the defendant armed himself and was in the house at

47

the same time as Mrs. Barnden. This proof must be beyond a reasonable doubt

. . . .” The trial court then instructed the jury on the definition of reasonable doubt

“with reference to the instruction just read.” Defendant now claims that the

reasonable doubt instruction should have also referred to defendant’s alleged

crime of sodomy, in other words, that the jury should have been instructed that it

could only consider the alleged sodomy against defendant if it concluded beyond a

reasonable doubt that such act occurred. He contends that this instructional error

violated his rights under the Sixth, Eighth, and Fourteenth Amendments of the

United States Constitution.

Generally speaking, neither California law nor the United States

Constitution requires that aggravating factors be proven beyond a reasonable

doubt. (People v. Box (2000) 23 Cal.4th 1153, 1217.) The one exception is

unadjudicated criminal acts involving force or violence under section 190.3, factor

(b), which requires that jurors be instructed that they can consider such acts in

aggravation only if they find beyond a reasonable doubt that defendant had

committed the acts. (People v. Monterroso (2004) 34 Cal.4th 743, 793.)

Defendant claims that the sodomy evidence was being introduced as an

unadjudicated criminal act under section 190.3., factor (b) and that therefore a

reasonable doubt instruction was required. The record does not support his

contention. The trial court instructed the jury that “evidence has been introduced

that may show that the defendant engaged in criminal activity other than the

instant offense and the Elliott burglary. You may not consider such evidence as a

factor in aggravation. You may consider the Elliott burglary in deciding whether

the defendant has engaged in criminal activity which involves the use of, or the

express or implied threat of force or violence, if you conclude the defendant armed

himself and was in the house at the time Ms. Barnden was present.” Thus, the trial

court made clear that the Elliott burglary was the only incident to be considered

48

under factor (b), and that they could not consider sodomy as independent criminal

activity but only as a circumstance of the murder of which defendant was being

tried.

Defendant asserts that the trial court’s instruction defining the term

“sodomy” indicated that sodomy was to be considered as a criminal act under

section 190.3, factor (b). The trial court stated: “Various types of crimes have

been mentioned in this case, ladies and gentlemen, and I won’t define them for

you except for one. It has been my experience that sometimes people do not

understand the meaning of the word sodomy and I will define that for you from a

legal perspective. Sodomy is sexual conduct consisting of contact between the

penis of one person and the anus of another person. Any sexual penetration,

however slight, is sufficient to complete the act of sodomy. Proof of ejaculation is

not required.”

Sodomy per se is not a crime and the trial court did not define the crime of

sodomy, which is the commission of sodomy under specified circumstances, such

as by means of force, or with minors. (§ 286.) Rather, the trial court defined the

word “sodomy” because of the jury’s possible unfamiliarity with it. Read in

conjunction with the instruction in the previous paragraph, in which the trial court

made clear that the Elliott burglary was the only crime other than the current

offense to be considered in aggravation, the jury would not have understood the

trial court’s definition of sodomy to imply that sodomy could be considered under

section 190.3, factor (b). Moreover, the prosecutor said nothing during closing

argument to suggest that evidence of sodomy would be considered as

unadjudicated criminal activity, and spoke of such evidence solely within the

context of elaborating upon the circumstances of the crime. We therefore

conclude that the failure to instruct on reasonable doubt in reference to defendant’s

alleged sodomy of Breck was not error.

49

15. Failure to Instruct on Mitigating Factors

The jury was instructed under a modified version of section 190.3, factor

(k) to consider “any other circumstance which extenuates the gravity of the crime

even though it is not a legal excuse for the crime, and any sympathetic or other

aspect of the defendant’s character or record that the defendant proffers as a basis”

for mitigation. (See People v. Easley (1983) 34 Cal.3d 858, 879, fn. 10.)

Defendant contends the trial court improperly refused requested jury instructions

that would have specified the sort of evidence that can be considered in mitigation

under factor (k). As defense counsel acknowledges, this court has rejected the

argument that the Constitution requires additional jury instructions elaborating on

modified factor (k). (See People v. Catlin, supra, 26 Cal.4th at pp. 173-174 and

cases cited therein.) Defendant advances no persuasive argument for

reconsidering this position.

16. Responses to Jury Questions on Life Sentence

The jury was instructed: “It is the law of this state that the penalty for a

defendant found guilty of murder of the first degree shall be death or confinement

in the state prison for life without the possibility of parole in any case in which the

special circumstances alleged in this case have been found or admitted to be true.”

During deliberations, the jury asked the following questions: “Is it possible for the

court to provide the jury with a clear definition of the law of life in prison without

the possibility of parole. A. Does ‘life’ have time application [sic]; B. Does [sic]

any of the verdicts automatically go to appeals? C. Will the individual have the

right to go before a parole board even though they have no possibility of parole?”

The trial court discussed these questions with counsel outside the presence

of the jury, and defense counsel suggested that an instruction be given that

defendant “will never come before a parole board.” The trial court eventually

gave the jury the following response: “The instruction I’m going to read you and

50

will send back with you is this, which I think covers all three subparts of your

question: In making your decision in this case, as to the appropriate penalty, you

are to assume that if you select death that sentence will be carried out. If you

select life without possibility of parole, you are to assume that the defendant will

never be released from prison.”

Defendant claims judicial error from the trial court’s response, in violation

of his Eighth and Fourteenth Amendment rights. His claims are based on

Simmons v. South Carolina (1994) 512 U.S. 154 and its progeny. In these cases,

the court has held that “where a capital defendant’s future dangerousness is at

issue, and the only sentencing alternative to death available to the jury is life

imprisonment without possibility of parole, due process entitles the defendant ‘to

inform the jury of [his] parole ineligibility, either by a jury instruction or in

arguments by counsel.’ ” (Schafer v. South Carolina (2001) 532 U.S. 36, 39.)

This line of cases stemmed from South Carolina’s consistent refusal “to inform the

jury of a capital defendant’s parole eligibility status.” (Id. at p. 48, fn. omitted; see

also Ramdass v. Angelone (2000) 530 U.S. 156; Kelly v. South Carolina (2002)
534 U.S. 246.) The alternative to a death sentence was described in these cases as

“life imprisonment.” (Shafer, supra, at p. 48.) The Supreme Court held it to be

error for the trial court under these circumstances to reply to a jury question about

a defendant’s parole eligibility by saying that the jury was not to consider parole

eligibility in reaching its verdict, when the defendant is in fact not legally eligible

for parole.

Defendant’s attempt to draw a parallel between this line of cases and the

present one is unavailing. Here, the jury was instructed that life imprisonment was

“without the possibility of parole.” When asked by the jury whether “without the

possibility of parole” was in effect literally true, the trial court appropriately

responded: “If you select life without possibility of parole, you are to assume that

51

the defendant will never be released from prison.” Unlike the South Carolina

courts, the trial court was in no way being coy or uninformative about the nature

of the life sentence, but rather reaffirmed that the phrase “without possibility of

parole” was to be taken literally. In fact, the answer is very similar to the one

given in People v. Turner (2004) 34 Cal.4th 406, 436-438. In response to the

jury’s question of whether life imprisonment without parole “ ‘mean[s] exactly

what it implies,’ ” and related questions (id. at p. 436), the trial court stated:

“ ‘For the purpose of your deliberations, you are to assume life without the

possibility of parole means what it says.’ ” (Id. at p. 437, italics added.) We held

the response was not error. “By informing the jury that ‘life without the

possibility of parole’ means ‘what it says,’ the court effectively told the jury that

defendant would be ineligible for parole if the jury chose that sentence.” (Id. at p.

438.) In the present case, we find no error in the trial court’s similar response.

Defendant also claims error from the trial court’s failure to directly address

the question of appeals. In the present case, defendant points out that while his

death judgment was automatically appealed, a sentence of life imprisonment

without parole after having pleaded guilty to first degree murder and special

circumstances would likely not have resulted in an appeal. He argues that the jury

should have been so informed, so that it would not feel as though the death

sentence needed to be imposed in order to prevent defendant from escaping life

imprisonment by a successful appeal. But even with a guilty plea, defendant could

still appeal his murder conviction after obtaining a certificate of probable cause.

(§ 1237.5.) It is inappropriate for the jury to speculate about what may occur on

appeal, and the trial court was correct not to address that question directly.

52

17. Juror Misconduct

Shortly after the jury rendered its verdict, it was discovered that several

pages copied from a Bible had been brought into the jury room. Defendant

eventually moved for a new trial based on juror misconduct related to the use of

those biblical passages during deliberations. After a hearing during which several

jurors were called as witnesses, the trial court denied the motion. Defendant

contends on appeal that the trial court erred, and that such jury misconduct

violated defendant’s rights under the First, Fifth, Sixth, Eighth, and Fourteenth

Amendments to the federal Constitution.

a. Facts

While cleaning out the room in which jury deliberations had taken place, a

court staff member found several pages copied from a Bible in a juror’s notebook,

although the staff person did not note which juror’s notebook they had come from.

The biblical passages consisted of several verses from First Corinthians and

Romans. The trial court eventually granted defendant’s motion to obtain juror

address and phone information. After an investigation, counsel filed a motion for

a new trial on grounds of jury misconduct. The motion was supported by

declarations from two jurors. Juror S.M. indicated that the initial poll showed

jurors to be 9 to 3 in favor of death and shortly thereafter 10 to 2 in favor of death.

One of the jurors initially not voting for death, K. Y., “was very emotional and

appeared to be having a hard time making a decision.”

A male juror suggested that “the Scriptures may make her feel at ease with

a decision.” The juror, who later was identified as T.F., at one point read portions

of the Bible aloud. H.B., who was the other juror who did not vote in favor of

death during the first day of deliberations, stated in a declaration that T.F. was

using Scripture to “comfort” K.Y., and H.B. specifically remembered him reciting

53

the portion of First Corinthians about “killing the flesh to save the soul,” found in

First Corinthians, chapter 5, verse 5.

The trial court held an evidentiary hearing at which Jurors T.F. and K.Y.

testified. T.F. testified that he was prompted to copy biblical verses, possibly

during the lunch break, on the first day and to read them because K.Y. said

something to the effect that “doesn’t the Bible say you are not supposed to judge.”

He had read from First Corinthians, chapter 6, verses 1-3, and Romans, chapter 13,

verses 1 through 4, possibly 5. He denied reading from First Corinthians chapter

5. He did not recall if there was discussion about the biblical passages after they

were read or further discussion about the Bible. The next day, the jury reached its

verdict.

K.Y. testified that she recalled that certain biblical verses were read, but

that she did not request they be read. She could not recall anything about the

content of those verses. K.Y. and T.F. both testified that when she explained her

reason to decide to vote for death the following day, there was no reference to the

Bible or religion.

The People subsequently filed a memorandum of points and authorities

opposing the new trial motion, which was also supported by a declaration from

H.B. The declaration made clear that immediately after the Bible reading, H.B.

had stated words to the effect that religion should play no part in the decision, and

that the jurors had to consider man’s law not God’s law in deciding this case.

Juror C.R. also submitted a declaration confirming that H.B. had made the above

statement, and that religion was not discussed after the biblical passages had been

read. Juror B.H. stated in a declaration that a vote taken after the reading later that

afternoon was still 10 to 2.

54



Taking Jurors H.C.’s and T.F.’s testimony together, and taking portions that

were underlined by hand in the original court exhibit, the following passages were

either read, in the jury room, or underlined by a juror:

“1 It is reported commonly that there is fornication among you, and such

fornication as is not so much as named among the Gentiles, that one should have

his father’s wife.

“2 And ye are puffed up, and have not rather mourned, that he that hath

done this deed might be taken away from among you.

“3 For I verily, as absent in body, but present in spirit, have judged

already, as though I were present, concerning him that hath so done this deed,

“4 In the name of our Lord Jesus Christ, when ye are gathered together,

and my spirit, with the power of our Lord Jesus Christ,

“5 To deliver such an one unto Satan for the destruction of the flesh, that

the spirit may be saved in the day of the Lord Jesus.” (First Corinthians, ch. 5,

italics in printed edition; hand underlining in original court exhibit.)

“1 DARE any of you, having a matter against another, go to law before the

unjust, and not before the saints?

“2 Do ye not know that the saints shall judge the world? And if the world

shall be judged by you, are ye unworthy to judge the smallest matters?

“3 Know ye not that we shall judge angels? How much more things that

pertain to this life?” (First Corinthians, ch. 6, verses 1-3.)

“1 LET every soul be subject unto the higher powers. For there is no

power but of God: The powers that be are ordained of God.

“2 Whosoever therefore resisteth the power, resisteth the ordinance of

God: and they that resist shall receive to themselves damnation.

55



“3 For rulers are not a terror to good works, but to the evil. Wilt thou then

be afraid of the power? Do that which is good, and thou shalt have praise of the

same:

“4 For he is the minister of God to thee for good. But if thou do that which

is evil, be afraid; for he beareth not the sword in vain; for his is the minister of

God, a revenger to execute wrath upon him that doeth evil.

“5 Wherefore ye must needs be subject, not only for wrath but also for

conscience sake.

“6 For this cause pay ye tribute also: For they are God’s ministers,

attending continually upon this very thing.” (Romans, ch. 13, italics in original,

underlining in court exhibit.)

After T.F. read the Bible verses, he handed them to another juror, whom he

believed “could have been” K.Y.

The trial court found as a matter of fact that no discussions took place about

the biblical verses after they were read by T.F. The court found that it was unclear

from the testimony who underlined the biblical verses. The court concluded that

First Corinthians, chapter 5 had not been read aloud. The court further concluded

that, based on the content of the biblical passages, a layperson would not read

them to dictate that the penalty decision should be made according to religious law

rather than secular law, and therefore concluded that there was no substantial

likelihood that these passages influenced jurors. The trial court accordingly

denied the new trial motion.

b. Principles of Law and Application to the Present Case

i. Misconduct

“It is misconduct for a juror to consider material [citation] extraneous to the

record. [Citations.] Such conduct creates a presumption of prejudice that may be

56

rebutted by a showing that no prejudice actually occurred.” (People v. Mincey

(1992) 2 Cal.4th 408, 467.)

This court has held that reading aloud from the Bible or circulating bibilical

passages during deliberations is misconduct. (See People v. Danks (2004) 32

Cal.4th 269, 308 (Danks); People v. Mincey, supra, 2 Cal.4th at pp. 466-467.) The

Attorney General concedes that bringing biblical passages into the jury room and

reading them aloud during deliberation constitutes misconduct.

ii. Prejudice

“[W]hen misconduct involves the receipt of information from extraneous

sources, the effect of such receipt is judged by a review of the entire record, and

may be found to be nonprejudicial.” (In re Carpenter (1995) 9 Cal.4th 634, 653.)

A court’s inquiry into whether extraneous material influenced the jury

verdict is limited by Evidence Code section 1150, subdivision (a), which states:

“Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence

may be received as to statements made, or conduct, conditions, or events

occurring, either within or without the jury room, of such a character as is likely to

have influenced the verdict improperly. No evidence is admissible to show the

effect of such statement, conduct, condition, or event upon a juror either in

influencing him to assent to or dissent from the verdict or concerning the mental

processes by which it was determined.”

When misconduct is found, there is a presumption of prejudice that “ ‘ “ ‘

may be rebutted by an affirmative evidentiary showing that prejudice does not

exist or by a reviewing court’s examination of the entire record to determine

whether there is a reasonable probability of actual harm to the complaining party

[resulting from the misconduct]. . . .’ ” ’ ” (In re Carpenter, supra, 9 Cal.4th at p.

653, italics omitted.)

57

Speaking in reference to the introduction of extraneous material to jurors,

we explained: “The verdict will be set aside only if there appears a substantial

likelihood of juror bias. Such bias can appear in two different ways. First, we will

find bias if the extraneous material, judged objectively, is inherently and

substantially likely to have influenced the juror. [Citations.] Second, we look to

the nature of the misconduct and the surrounding circumstances to determine

whether it is substantially likely the juror was actually biased against the

defendant. [Citation.] The judgment must be set aside if the court finds prejudice

under either test.” (In re Carpenter, supra, 9 Cal.4th at p. 653, italics omitted.)

In assessing whether prejudice occurred here, we look to the recent case of

Danks, supra, 32 Cal.4th 269. There, a new trial motion was filed alleging juror

misconduct. The declarations filed in support thereof attested to misconduct by

two jurors. After the first day of penalty deliberations on Friday, Jurors K.A. and

B.P. independently spoke to their pastors over the weekend in ways the defendant

contended were improper. (Danks, supra, 32 Cal.4th at pp. 297-301.) That

Monday, K.A. brought pages from the Book of Numbers into the jury room and

passed them around to other jurors stating that the passage had given her

comfort.10


10 That biblical passage stated in part: “ ‘If anyone with malice aforethought
shoves another or throws something at him intentionally so that he dies or if in
hostility he hits him with his fist so that he dies, that person shall be put to death;
he is a murderer. The avenger of blood shall put the murderer to death, when he
meets him . . . . [¶] But if without hostility someone suddenly shoves another or
throws something at him unintentionally or, without seeing him, drops a stone on
him that could kill him, and he dies, then since he was not his enemy and he did
not intend to harm him, the assembly must judge between him and the avenger of
blood according to these regulations. The assembly must protect the one accused
of murder from the avenger of blood and send him back to the city of refuge to
which he fled.’ ” (Danks, supra, 32 Cal.4th at p. 298, fn. 10.)

58



This court held that K.A. had committed misconduct, but that it was not

prejudicial. The court concluded the biblical verses K.A. circulated were not

inherently prejudicial, based largely on the strength of the underlying penalty

phase evidence. (Danks, supra, 32 Cal.4th at p. 305.) The court also concluded

the sharing of biblical verses did not result in actual bias. “Juror K.A. ‘merely

shared [her] personal view and did not purport to validate it as truth or impose

[her] view on others.’ [Citation.] Indeed, there is no evidence that after the copy

circulated the passages were even discussed, other than perhaps one juror’s

comment that God did not have a role in the jury’s decision.” (Danks, supra, 32

Cal.4th at p. 308.)

It is true that the strength of the aggravating evidence against defendant in

the present case may not have been comparable to the evidence against Danks, a

remorseless multiple murderer who “strongly implied he would continue to be

violent in a controlled setting, and apparently threatened the jury.” (Danks, supra,

32 Cal.4th at p. 305.) Nonetheless, the biblical verses read in this case from

Romans, chapter 12 and First Corinthians, chapter 6, unlike the verse from the

Book of Numbers in Danks, did not propound an alternative set of rules or

standards about when the death penalty should be imposed, but merely counseled

deference to governmental authority and affirmed the validity of sitting in

judgment of one’s fellow human beings according to the law. Although we do not

hold that the reading of such verses can never be prejudicial, we believe that in the

present context jurors would understand the verses as a response to a particular

juror’s doubts about whether the Bible authorized her to sit in judgment, not as a

means of advancing a religiously based argument in favor of the death penalty for

defendant. We therefore conclude that the biblical verses were not “inherently and

substantially likely to have influenced” a juror. (In re Carpenter, supra, 9 Cal.4th

at p. 653.)

59



Furthermore, H.B.’s remark after the bible reading that jurors were not to

consider such verses in arriving at a verdict reinforced the limited manner in

which the biblical verses were used. The fact that the jurors did not discuss the

verses is an indication that they took H.B.’s admonition to heart, and weighs

against a finding of prejudice. (See Danks, supra, 32 Cal.4th at p. 308.) And the

fact that a vote taken that afternoon, after the biblical verses were read, showed the

same 10 to 2 split among jurors, tends to undercut defendant’s contention that the

reading was the decisive event in changing K.Y.’s mind. Nor is there any

indication that the reader of the verses, T.F., was animated by bias against the

defendant. Thus, we conclude from “the nature of the misconduct and the

surrounding circumstances” that it was not “substantially likely” that any juror

was “actually biased against the defendant” as a result of the reading. (In re

Carpenter, supra, 9 Cal.4th 653.)

Defendant

cites

People v. Harlan (Colo. 2005) 109 P.3d 616 (Harlan) in

support of his position. The defendant in Harlan had been sentenced to death for

the kidnapping, rape and murder of one woman and the shooting of another

woman. (Id. at p. 619.) The trial court eventually granted the defendant’s motion

to vacate the verdict on grounds of jury misconduct. The trial court found: “(1)

one or more jurors brought a Bible, a Bible index, and hand-written notes

containing the location of biblical passages into the jury room to share with

another juror during deliberations in the penalty phase of defendant’s trial; (2)

these extraneous materials contained a passage commanding the death penalty for

murderers and another instructing obedience to civil authorities; and (3) these

passages were pointed out by at least one juror to another juror before the jury

reached its unanimous verdict imposing the death sentence.” (Id. at pp. 619-620.)

Two of the biblical passages identified as shared with other jurors were the eye-

for-an-eye passage from Leviticus 24:20-21, and the passage from Romans 13:1

60

read in the present case: “ ‘[l]et every soul be subject to the governing authorities

for there is no authority except from God and the authorities that exist are

appointed by God.’ ” (Id. at p. 622.)

The Colorado Supreme Court held that such jury misconduct would be

considered prejudicial if there was “a reasonable possibility that the extraneous

information influenced the verdict to the detriment of the defendant.” (Harlan,

supra, 109 P.3d. at p. 625.) In arriving at its conclusion that the sharing of the

biblical passages was prejudicial, the court considered six factors: (1) that the

biblical passages were directly related to the ultimate issue of the case, i.e., the

sentence of life or death; (2) that the biblical passages would be considered

authoritative by typical jurors; (3) that the information was shared by others in the

jury room; (4) that the information was considered before the jury reached its

verdict; (5) that there was a reasonable possibility that both the Leviticus and

Romans passages would influence a typical juror to vote in favor of death. (Id. at

pp. 630-631.) As to this last point, the court stated: “The Romans text instructs

human beings to obey the civil government. Here, the State of Colorado was

seeking the death penalty. If the jury was unable to reach a unanimous verdict of

death, the trial court would have been required to impose a life sentence without

the possibility of parole. Drawn from an array of typical jurors in Colorado, at

least one juror in this case could have been influenced by these authoritative

passages to vote for the death penalty when he or she may otherwise have voted

for a life sentence.” (Id. at p. 631.)

Although Harlan does provide some support for defendant’s position, we

are not persuaded by it. First, the particular context in which the biblical readings

occurred in this case in response to a juror query about biblical views on judgment

was not present in Harlan. Second, the jury in Harlan heard an eye-for-an-eye

passage that, as discussed above, has a greater potential for prejudice than the

61

passages read here. Finally, as noted above, the Colorado Supreme Court has

adopted a “reasonably possible” standard for determining whether jury misconduct

resulted in prejudice at the penalty phase of a capital trial. (Harlan, supra, 109

P.3d at p. 625.) We have adopted a higher “reasonably probable” prejudice

standard for jury misconduct, including misconduct at the penalty phase of a

capital trial, whereby the extraneous material to which jurors are exposed must be

inherently likely to prejudice a juror, or there must be facts from which it can be

concluded that there was substantial likelihood of actual bias. (In re Carpenter,

supra, 9 Cal.4th at p. 653.) As discussed above, on the record before us defendant

does not meet that standard.

We therefore hold that the jury misconduct in this case was not prejudicial.

18. Trial Court’s Consideration of Probation Report Prior to the

Ruling on the Section 190.4 Motion.

The trial court read defendant’s probation report prior to ruling on the

automatic motion to modify the penalty pursuant to section 190.4 and defendant

claims prejudicial error in violation of his statutory and due process rights. As we

have stated: “In ruling on an application for modification of the verdict, the trial

court may only rely on evidence that was before the jury. [Citation.] Therefore,

the better procedure is to rule on the application for modification before reading

the probation report.” (People v. Navarette (2003) 30 Cal.4th 458, 526.) But

reading the probation report before ruling on the section 190.4 motion is not

prejudicial error when “nothing in the record suggests the court considered or

relied on the probation report . . . when ruling on the application for modification.”

(Ibid.)

In the present case there is no suggestion the trial court considered or relied

upon the probation report in making its ruling. On the contrary, when the

prosecution referred to material in the report while arguing the section 190.4

62

motion, the trial court sustained the defense’s objection, stating that he could not

“consider the probation report in reviewing this matter.” The court also alluded

vaguely to “other convictions” of defendant while explaining this ruling on the

section 190.4 motion, and defendant contends those convictions were ones that

were only set forth in the probation report. Whether or not that is the case, the

trial court made clear that it was not going to find those convictions to be factors

in aggravation because they did not involve violence. We conclude there was no

prejudice resulting from the trial court’s prior reading of the probation report.

19. Constitutional Challenges to the Death Penalty Statute

Defendant challenges a number of California’s death penalty provisions as

unconstitutional. Defendant contends that the failure to require written findings

from the jury regarding aggravating factors violates his right to meaningful

appellate review. We have consistently rejected this claim. (People v. Avila,

supra, 38 Cal.4th 491, 614-615; People v. Morrison (2004) 34 Cal.4th 698, 730.)

He contends that the jury should have been required to find all aggravating factors

beyond a reasonable doubt before imposing the death penalty. We have held that

the jury need not “ ‘find beyond a reasonable doubt that an aggravating

circumstance is proved (except for other crimes)’ ” (People v. Avila, supra, 38

Cal.4th at p. 614). Defendant argues we should reconsider our position, based on

Apprendi v. New Jersey (2000) 530 U.S. 466, and Ring v. Arizona (2002) 536 U.S.

584. “[W]e repeatedly have held that neither Apprendi v. New Jersey (2000) 530

U.S. 466 nor Ring v. Arizona (2002) 536 U.S. 584 affects California’s death

penalty law . . . .” (People v. Morrison, supra, 34 Cal.4th at p. 731.)

Defendant contends that jurors are constitutionally required to unanimously

agree on which factor they find in aggravation. We have rejected this argument.

(People v. Morrison, supra, 34 Cal.4th at pp. 730-731.) The United States

63

Supreme Court case, Richardson v. United States (1999) 526 U.S. 813, 815-816,

which defendant uses to support this argument, is not on point. Richardson

involved sentencing factors for defendants convicted of the federal drug crime of

continuing criminal enterprise. 11 (Richardson, at p. 816.) The court held that a

jury must unanimously agree not only that the defendant committed some

continuing series of violations, but also about which specific violations make up

that continuing series. (Id. at p. 824.) Richardson has no application to

California’s death penalty determination, which involves not a jury finding of guilt

but a weighing of numerous factors to arrive at an appropriate sentence. Nor does

Ring v. Arizona alter our conclusion on the unanimity issue. (People v. Morrison,

supra, 34 Cal.4th at pp. 730-731.)

Defendant contends that the lack of intercase proportionality review for

death penalty cases is unconstitutional. This court has repeatedly held that

proportionality review in such circumstances is not required. (People v. Anderson

(2001) 25 Cal.4th 543, 602; see Pulley v. Harris (1984) 465 U.S. 37, 50-51.)

Defendant contends that the use of the adjective “extreme” in section 190.3,

factor (g)12 is unconstitutionally vague and bars evidence of duress that was less

than extreme. We have rejected defendant’s contention. Such terms have

11 A continuing criminal enterprise occurs when a person “(1) . . . violates any
provision of this subchapter or subchapter II of this chapter the punishment for
which is a felony, and [¶] (2) such violation is a part of a continuing series of
violations of this subchapter or subchapter II of this chapter — [¶] (A) which are
undertaken by such person in concert with five or more other persons with respect
to whom such person occupies a position of organizer, a supervisory position, and
[¶] (B) from which such person obtains substantial income or resources.” (21
U.S.C. § 848 (c)).

12 Section 190.3, factor (g) has the jury consider “[w]hether or not defendant
acted under extreme duress or under the substantial domination of another
person.”

64

“commonsense meanings which the jury may be expected to apply” and are not

impermissibly vague. (People v. Arias, supra, 13 Cal.4th at p. 189.) Moreover,

factor (k) permits the jury to consider less extreme forms of duress in mitigation.

(People v. Bacigalupo (1993) 6 Cal.4th 457, 469.)

Defendant

asserts

that

California’s

death penalty statute does not narrow

the class of murderers selected for death. As we have held, “California’s death

penalty law sufficiently narrows the class of death-eligible defendants.” (People

v. Marks (2003) 31 Cal.4th 197, 237.)

Defendant

contends

that broad prosecutorial discretion in deciding whether

to seek the death penalty violates the equal protection clause and is

unconstitutional. This court has recognized the legitimacy of prosecutorial

discretion unless there is a “ ‘persuasive showing to the contrary.’ ” (People v.

Keenan (1988) 46 Cal.3d 478, 506.) Defendant makes no such showing in this

case.

20. Cumulative Error

Defendant

contends

various penalty phase errors are, taken together,

prejudicial and require reversal of the death sentence. Finding no individual

prejudicial error, we also conclude there is no cumulative prejudice.

III. DISPOSITION

The judgment is affirmed.

MORENO, J.

WE CONCUR: GEORGE, C. J.
KENNARD,

J.

BAXTER,

J.

WERDEGAR,

J.

CHIN,

J.

CORRIGAN,

J.

65





CONCURRING OPINION BY CORRIGAN, J.

I concur in the affirmance of the judgment, but express caution regarding

the jury selection discussion.

The majority assumes, without deciding, that Miller-El v. Dretke (2005)
545 U.S. 231, compels a comparative analysis of the cold record on review of a

Wheeler/Batson challenge. (Maj. opn., ante, at p. 27.) I agree that such an

assumption is prudent here. I write separately to voice concern that a cold-record

review is a particularly questionable method for achieving the important goal that

jury selection be untainted by group bias.

There are a great many legitimate factors that an advocate may properly

consider in the exercise of peremptory challenges. Many of these are subtle

nuances including attitude, tone of voice, facial expression, and the like. These

nuances are seldom captured by the written record. Further, an advocate may be

willing to accept a juror who shares some characteristics with an excused juror

because of other life experiences or views that make the accepted juror less

problematic from the advocate’s perspective.

Jury selection is, and should be, a highly individualized process. Juror by

juror consideration encourages just the opposite of group bias.

CORRIGAN, J.

WE CONCUR:

BAXTER, J.

CHIN, J.




1

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

Name of Opinion People v. Williams
__________________________________________________________________________________

Unpublished Opinion

Original Appeal XXX
Original Proceeding
Review Granted

Rehearing Granted

__________________________________________________________________________________

Opinion No.
S056391
Date Filed: December 28, 2006
__________________________________________________________________________________

Court:
Superior
County: Kern
Judge: Roger D. Randall

__________________________________________________________________________________

Attorneys for Appellant:

Charles M. Bonneau, Jr., under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Manuel M. Medeiros, State Solicitor General, Robert R. Anderson, Chief
Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Eric L. Christoffersen, Stephen
G. Herndon and Craig S. Meyers, Deputy Attorneys General, for Plaintiff and Respondent.







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

Charles M. Bonneau, Jr.
331 J Street, Suite 200
Sacramento, CA 95814
(916) 444-8828

Craig S. Meyers
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
9196) 324-5280



2

Opinion Information
Date:Docket Number:
Thu, 12/28/2006S056391

Parties
1The People (Respondent)
Represented by Attorney General - Sacramento Office
Craig S. Meyers, Deputy Attorney General
P.O. Box 944255
Sacramento, CA

2Williams, Bob Russell (Appellant)
San Quentin State Prison
Represented by Charles M. Bonneau
Attorney At Law
331 "J" Street, Suite 200
Sacramento, CA


Disposition
Dec 28 2006Opinion: Affirmed

Dockets
Sep 20 1996Judgment of death
 
Sep 30 1996Filed certified copy of Judgment of Death Rendered
  9-20-96.
Oct 4 1996Application for Extension of Time filed
  By Court Reporters Harcourt and Baumruk to Complete R.T.
Oct 7 1996Extension of Time application Granted
  To Court Reporters To 12-9-96 To Complete R.T.
Jan 12 2001Filed:
  Request by counsel for dual representation appointment
Jan 12 2001Filed:
  Request by inmate for dual representation
Jan 17 2001Counsel appointment order filed
  appointing Charles M. Bonneau to represent appellant for both the direct appeal and related state habeas corpus/executive clemency proceedings.
Jan 26 2001Received:
  notice from Superior Court -- record mailed to applt counsel's on 1/24/2001.
Feb 14 2001Compensation awarded counsel
  Atty Bonneau
Mar 19 2001Counsel's status report received (confidential)
  from atty Bonneau.
Mar 28 2001Compensation awarded counsel
  Atty Bonneau
Mar 29 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (1st request)
Apr 6 2001Extension of Time application Granted
  To 6/28/2001 as to applt. to request corr. of the record.
May 17 2001Counsel's status report received (confidential)
 
Jun 29 2001Application for Extension of Time filed
  to request record correction (2nd request)
Jul 5 2001Extension of Time application Granted
  to applt to 8-28-2001 to request correction of the record.
Aug 29 2001Counsel's status report received (confidential)
 
Aug 29 2001Application for Extension of Time filed
  By applt. to request corr. of the record. (3rd request)
Aug 31 2001Filed:
  Suppl. "proof of service by mail" of request for extension of time to request corr. of the record.
Sep 6 2001Extension of Time application Granted
  To 10/29/2001 to applt. to request corr. of the record.
Sep 17 2001Counsel's status report received (confidential)
 
Oct 29 2001Application for Extension of Time filed
  by applt. to request corr. of the record. (4th request)
Nov 1 2001Extension of Time application Granted
  To 12/28/2001 to applt. to request corr. of the record. No further extensions of time are contemplated.
Nov 16 2001Counsel's status report received (confidential)
 
Dec 17 2001Counsel's status report received (confidential)
  from atty Bonneau.
Dec 31 2001Received copy of appellant's record correction motion
  copy of applt's motion to correct and augment the record on appeal and for transfer of sealed records, and for settlement of the record.
Jan 11 2002Counsel's status report received (confidential)
  from atty Bonneau.
Jan 14 2002Compensation awarded counsel
  Atty Bonneau
Jan 24 2002Compensation awarded counsel
  Atty Bonneau
Mar 13 2002Counsel's status report received (confidential)
 
May 13 2002Counsel's status report received (confidential)
 
May 21 2002Compensation awarded counsel
  Atty Bonneau
Jun 12 2002Compensation awarded counsel
  Atty Bonneau
Jun 12 2002Compensation awarded counsel
  Atty Bonneau
Jul 11 2002Counsel's status report received (confidential)
 
Aug 8 2002Change of Address filed for:
  Appellant's counsel, Charles M. Bonneau.
Aug 16 2002Filed:
  Supplemental proof of service by mail of change of address.
Sep 9 2002Counsel's status report received (confidential)
 
Sep 19 2002Compensation awarded counsel
  Atty Bonneau
Nov 12 2002Counsel's status report received (confidential)
 
Nov 27 2002Record on appeal filed
  Clerk's transcript 16 volumes (3691 pp.) and reporter's transcript 42 volumes (3485 pp.) including material under seal. Clerk's transcript includes 1870 pp. of juror questionnaires.
Nov 27 2002Appellant's opening brief letter sent, due:
  January 6, 2003.
Dec 9 2002Compensation awarded counsel
  Atty Bonneau
Dec 26 2002Counsel's status report received (confidential)
 
Jan 8 2003Motion to augment AA record filed
  by appellant.
Jan 8 2003Request for extension of time filed
  to file appellant's opening brief. (1st request)
Jan 10 2003Extension of time granted
  to 3-7-2003 to file AOB.
Jan 13 2003Compensation awarded counsel
  Atty Bonneau
Feb 3 2003Received letter from:
  atty Bonneau, dated 1-31-2003, withdrawing appellant's motion to augment the record, filed on 1-8-2003.
Feb 19 2003Compensation awarded counsel
  Atty Bonneau
Mar 6 2003Request for extension of time filed
  to file appellant's opening brief. (2nd request)
Mar 6 2003Counsel's status report received (confidential)
 
Mar 11 2003Extension of time granted
  to 5/6/2003 to file appellant's opening brief.
May 5 2003Counsel's status report received (confidential)
 
May 5 2003Request for extension of time filed
  to file appellant's opening brief. (3rd request)
May 6 2003Compensation awarded counsel
  Atty Bonneau
May 7 2003Filed:
  Supplement to extension of time request.
May 8 2003Extension of time granted
  to 7/7/2003 to file appellant's opening brief.
Jul 3 2003Counsel's status report received (confidential)
 
Jul 3 2003Request for extension of time filed
  to file appellant's opening brief. (4th request)
Jul 8 2003Extension of time granted
  to 9/5/2003 to file appellant's opening brief.
Sep 3 2003Counsel's status report received (confidential)
 
Sep 3 2003Request for extension of time filed
  to file appellant's opening brief. (5th request)
Sep 9 2003Extension of time granted
  to 11/4/2003 to file appellant's opening brief. After that date, no further extension is contemplated. Extension is granted based upon counsel Charles M. Bonneau's representation that he anticipates filing that brief by 10/30/2003.
Nov 3 2003Appellant's opening brief filed
  (275 pp.) *** FILING ORDERED STRICKEN ON FEB. 24, 2004 ***
Nov 3 2003Motion for access to sealed record filed
  appellant's "Motion to Unseal the Record."
Nov 14 2003Counsel's status report received (confidential)
 
Nov 14 2003Filed:
  Declaration of attorney Bonneau regarding progress payment (confidential)
Nov 19 2003Compensation awarded counsel
  Atty Bonneau
Nov 20 2003Request for extension of time filed
  to file respondent's brief. (1st request)
Nov 25 2003Extension of time granted
  to 2/2/2004 to file respondent's brief.
Dec 31 2003Filed:
  Errata to appellant's opening brief.
Jan 2 2004Counsel's status report received (confidential)
  from atty Bonneau.
Jan 26 2004Request for extension of time filed
  to file respondent's brief. (2nd request)
Jan 29 2004Filed:
  Supplemental declaration in support of application for extension of time to file respondent's brief.
Feb 5 2004Extension of time granted
  to 4/2/2004 to file respondent's brief. After that date, only one further extension totaling 60 additional days is contemplated. Extension is granted based upon Deputy Attorney General Craig S. Meyers's representation that he anticipates filing that brief by 6/2/2004.
Feb 24 2004Motion for access to sealed record granted
  Appellant's "Motion to Unseal the Record" is granted in part and denied in part. The motion is granted to the following extent: The Clerk is directed to unseal the following portions of the record on appeal herein, and to provide copies thereof to appellant and respondent: 1. Second Supplemental Clerk's Transcript, pages 12 through 21. 2. Reporter's Transcript (Jan. 17, 1996) in its entirety, comprising cover through page 15. 3. "Supplemental Declaration in Support of Motion for Continuance," executed by Dominic P. Eyherabide on December 3, 1995, comprising pages 1 through 4; and "Confidential Supplemental Declaration in Support of Motion for Continuance [Sealing Requested]," filed on December 8, 1995, comprising pages 1 through 6, with "Proposed Timetable" on pages 3 through 6. 4. Reporter's Transcript (Apr. 3 & 4, 1996) in its entirety, comprising cover through page 6. 5. Reporter's Transcript, Volume IV (May 2, 1996), in its entirety, comprising cover through page 8. In all other respects, the motion is denied. On the court's own motion, the Clerk is directed to strike the filing of appellant's opening brief. Appellant in turn is directed to serve and file a new opening brief that does not disclose any information contained in any sealed portion of the record on appeal (see appellant's opening brief, p. 83), on or before March 5, 2004. Appellant is further directed to take all steps necessary and appropriate to cure the disclosure of such information in his original opening brief on or before March 5, 2004.
Feb 27 2004Counsel's status report received (confidential)
 
Mar 4 2004Received:
  Letter from appellant, dated 3/4/2004, advising the court that appellant's opening brief has been corrected and re-served pursuant to the court's order of 2/24/2004.
Mar 4 2004Appellant's opening brief filed
  (78,220 words - 275 pp.) *** filed pursuant to 2-24-2004 order ***
Mar 26 2004Request for extension of time filed
  to file respondent's brief. (3rd request)
Apr 1 2004Extension of time granted
  to 6/1/2004 to file respondent's brief. After that date, only one further extension totaling about 60 additional days will be granted. Extension is granted based upon Deputy Attorney General Craig Meyer's representation that he anticipates filing that brief by 8/2/2004.
May 25 2004Request for extension of time filed
  to file respondent's brief. (4th request)
May 28 2004Extension of time granted
  to 8/2/2004 to file respondent's brief. Extension is granted based upon Deputy Attorney General Craig Meyer's representation that he anticipates filing that brief by 8/2/2004. After that date, no further extension will be granted.
Jul 6 2004Motion for access to sealed record filed
  appellant's second motion to unseal the record.
Jul 13 2004Request for extension of time filed
  to file respondent's brief. (5th request)
Jul 13 2004Filed:
  Supplemental proof of service of appellant's second motion to unseal the record.
Jul 21 2004Extension of time granted
  to 9/1/2004 to file the respondent's brief. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon Deputy Attorney General Carl Carl Meyers's representation that he anticipates filing that brief by 10/1/2004.
Jul 26 2004Counsel's status report received (confidential)
 
Aug 25 2004Request for extension of time filed
  to file respondent's brief. (6th request)
Aug 31 2004Extension of time granted
  to 10-1-2004 to file respondent's brief. After that date, no further extension is contemplated. Extension granted based upon Deputy AG Craig S. Meyers's representation that he anticipates filing the brief by 10-1-2004.
Sep 8 2004Compensation awarded counsel
  Atty Bonneau
Sep 15 2004Motion for access to sealed record granted
  Appellant's "Second Motion to Unseal the Record," filed on July 6, 2004, is granted. he clerk is directed to unseal the following document and make it available for public access: "Confidential Declaration in Support of Request for Funds Pursuant to Penal Code 987.9 [Mitigation Specialists Services]," found at pages 67 to 78 of the "Sealed Record Under PC 987.9/First Supplemental Clerk's Transcript on Appeal." The clerk is further directed to provide a copy of the unsealed document to Respondent.
Sep 29 2004Counsel's status report received (confidential)
 
Sep 30 2004Respondent's brief filed
  (45,923 words; 162 pp.)
Oct 1 2004Counsel's status report received (confidential)
  (supplemental)
Oct 22 2004Request for extension of time filed
  to file appellant's reply brief.
Oct 26 2004Extension of time granted
  to 12/20/2004 to file appellant's reply brief.
Nov 30 2004Counsel's status report received (confidential)
  atty Bonneau.
Dec 20 2004Request for extension of time filed
  to file appellant's reply brief. (2nd request)
Dec 21 2004Extension of time granted
  to 2/21/2005 to file appellant's reply brief. After that date, no further extension will be granted. Extension is granted based upon counsel Charles M. Bonneau's representation that he anticipates filing that brief by 2/20/2005.
Feb 22 2005Request for extension of time filed
  to file appellant's reply brief. (3rd request)
Feb 24 2005Extension of time granted
  to 3/24/2005 to file appellant's reply brief. Extension is granted based upon counsel Charles M. Bonneau's representation that he anticipates filing that brief by 3/24/2005. After that date, no further extension will be granted.
Mar 23 2005Appellant's reply brief filed
  (24,318 words; 111 pages)
Mar 29 2005Counsel's status report received (confidential)
 
May 9 2005Filed:
  Declaraton of attorney Charles M. Bonneau (confidential).
May 31 2005Counsel's status report received (confidential)
 
Jun 29 2005Compensation awarded counsel
  Atty Bonneau, Charles
Jul 28 2005Counsel's status report received (confidential)
 
Sep 7 2005Compensation awarded counsel
  Atty Bonneau
Sep 19 2005Related habeas corpus petition filed (concurrent)
  No. S137389
Sep 29 2005Filed:
  declaraton of attorney Charles M. Bonneau (confidential).
Oct 7 2005Compensation awarded counsel
  Atty Bonneau
Feb 8 2006Compensation awarded counsel
  Atty Bonneau
Feb 16 2006Compensation awarded counsel
  Atty Bonneau
Aug 23 2006Oral argument letter sent
  advising counsel that the court could schedule this case for argument as early as the October calendar, to be held the week of October 2, 2006. The October calendar will be held at a special oral argument session in Santa Barbara, at the superior court, rather than in Los Angeles. The advisement of "focus issues," notification that two counsel are required, and any request for oral argument time in excess of 30 minutes must be submitted to the court within 10 days of the order setting the case for argument.
Sep 5 2006Case ordered on calendar
  October 3, 2006, at 9:00 a.m., in Santa Barbara
Sep 7 2006Request for Extended Media coverage Filed
  by The California Channel.
Sep 7 2006Request for Extended Media coverage Granted
  subject to the conditions set forth un rule 980, California Rules of Court.
Sep 8 2006Received:
  atty Bonneau's appearance sheet for oral argument, requesting 45 minutes for argument.
Sep 11 2006Request for Extended Media coverage Filed
  Santa Barbara News Press to serve as "pool" photographer.
Sep 14 2006Filed letter from:
  attorney Bonneau, dated September 13, 2006 re focus issues for oral argument and request for 45 minutes for argument.
Sep 14 2006Request for Extended Media coverage Granted
  subject to the conditions set forth in rule 980, California Rules of Court.
Sep 21 2006Exhibit(s) lodged
  Court's 1, 2 and 7
Sep 22 2006Received:
  letter from atty Bonneau, dated September 21, 2006, re additional authorities for oral argument.
Sep 25 2006Filed letter from:
  respondent, dated September 15, 2006, re focus issues for oral argument. (faxed copy received on September 15, 2006)
Sep 25 2006Received:
  letter from respondent, dated September 22, 2006, re additional authority for oral argument.
Sep 28 2006Received:
  letter from atty Bonneau, dated Sept. 26, 2006, withdrawing his citation to Ninth Circuit of Appeals opinion, Field v. Brown.
Oct 3 2006Cause argued and submitted
 
Oct 11 2006Compensation awarded counsel
  Atty Bonneau
Dec 28 2006Opinion filed: Judgment affirmed in full
  Opinion by Moreno, J. ----joined by George, C.J., Kennard, Baxter, Werdegar, Chin & Corrigan, JJ. Concurring Opinion by Corrigan, J. ----joined by Baxter & Chin, JJ.
Jan 8 2007Rehearing petition filed
  by appellant. (987 words; 8 pp.)
Jan 17 2007Time extended to consider modification or rehearing
  to March 28, 2007, or the date upon which rehearing is either granted or denied, whicever occurs first.
Jan 23 2007Filed:
  proof of service of appellant's "Letter re Focus Issues, time for Oral Argument."
Mar 21 2007Rehearing denied
  The petition for rehearing is DENIED.
Mar 21 2007Remittitur issued (AA)
 
Mar 29 2007Exhibit(s) returned
  Court's I, II and VII.
Mar 29 2007Received:
  acknowledgment of receipt of remittitur.
Apr 2 2007Order filed (150 day statement)
 
Apr 5 2007Received:
  acknowledgment of receipt of remittitur.
Jun 25 2007Received:
  letter from U.S.S.C., dated June 19, 2007; advising cert petn. filed on May 31, 2007; No. 06-11925.
Oct 1 2007Certiorari denied by U.S. Supreme Court
  (No. 06-11925),

Briefs
Nov 3 2003Appellant's opening brief filed
 
Mar 4 2004Appellant's opening brief filed
 
Sep 30 2004Respondent's brief filed
 
Mar 23 2005Appellant's reply brief filed
 
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